Cervantez v. Colvin

Filing 20

ORDER: The decision of the Commissioner is vacated and this matter is remanded back to the Social Security Administration for an award of benefits. The Clerk of the Court shall enter judgment accordingly and terminate this action. Signed by Magistrate Judge John Z Boyle on 7/06/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Raquel Alina Cervantez,

No. CV-16-02914-PHX-JZB

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Plaintiff Raquel Alina Cervantez seeks review of the Social Security

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Administration Commissioner’s decision denying her application for disability benefits

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under the Social Security Act. (Doc. 1; Doc. 17.) For the reasons below, the Court will

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vacate the Commissioner’s decision and remand this matter for an award of benefits.

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I.

Background

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On July 16, 2014, Plaintiff filed a Title XVI application for disability benefits.

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(AR1 141.) Plaintiff asserts disability beginning on December 30, 2005. Plaintiff’s

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application was initially denied on December 22, 2014, and upon reconsideration on June

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1, 2015. (Id. at 98-101, 104-07.) Plaintiff requested a hearing which took place on March

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24, 2016. (Id. at 119.) Administrative Law Judge (ALJ) Laura S. Havens denied

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Plaintiff’s application for benefits in a decision dated April 26, 2016. (Id. at 13-40.) On

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July 26, 2016 the Appeals Council denied Plaintiff’s request for review of the ALJ’s

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decision, making the ALJ’s decision the final decision of the Commissioner of the Social

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Citations to “AR” are to the administrative record.

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Security Administration. (Id. at 1-3.)

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On August 30, 2016, having exhausted the administrative review process, Plaintiff

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sought judicial review of the ALJ’s decision by filing a Complaint in this Court pursuant

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to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1.) On January 16, 2017, Plaintiff filed an

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Opening Brief, seeking remand of this case to the Social Security Administration for an

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award of benefits. (Doc. 17.) Defendant filed a Response Brief in support of the

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Commissioner’s decision on February 15, 2017. (Doc. 18.) On February 28, 2017,

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Plaintiff filed a reply brief. (Doc. 19.)

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II.

Legal Standard
a. Standard of Review

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The Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of the

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Commissioner’s disability benefits determinations. The Court may set aside the

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Commissioner’s disability determination only if the determination is not supported by

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substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

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2007); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “‘Substantial evidence’

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means more than a mere scintilla, but less than a preponderance; it is such relevant

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evidence as a reasonable person might accept as adequate to support a conclusion.”

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); see also Reddick v. Chater,

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157 F.3d 715, 720 (9th Cir. 1998).

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In determining whether substantial evidence supports the ALJ’s decision, the

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Court considers the record as a whole, weighing both the evidence that supports and that

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which detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720; Tylitzki v. Shalala,

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999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ is responsible for resolving conflicts,

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

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1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court “must uphold

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the ALJ’s decision where the evidence is susceptible to more than one rational

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interpretation.” Andrews, 53 F.3d at 1039. “However, a reviewing court must consider

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the entire record as a whole and may not affirm simply by isolating a ‘specific quantum

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of supporting evidence.’” Orn, 495 F.3d at 630 (quoting Robbins v. Soc. Sec. Admin., 466

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F.3d 880, 882 (9th Cir. 2006)). The Court reviews only those issues raised by the party

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challenging the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir.

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2001). Similarly, the Court reviews “only the reasons provided by the ALJ in the

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disability determination and may not affirm the ALJ on a ground upon which he did not

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rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

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b. The ALJ’s Five-Step Evaluation Process

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To be eligible for Social Security benefits, a claimant must show an “inability to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than 12 months.” 42

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U.S.C. § 423(d)(1)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A

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person is under a disability only:

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if his physical or mental impairment or impairments are of
such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy.
42 U.S.C. § 423(d)(2)(A).
The ALJ follows a five-step evaluation process to determine whether an applicant
is disabled under the Social Security Act:
The five-step process for disability determinations begins, at
the first and second steps, by asking whether a claimant is
engaged in “substantial gainful activity” and considering the
severity of the claimant’s impairments. See 20 C.F.R. §
416.920(a)(4)(i)-(ii). If the inquiry continues beyond the
second step, the third step asks whether the claimant’s
impairment or combination of impairments meets or equals a
listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the
duration requirement. See id. § 416.920(a)(4)(iii). If so, the
claimant is considered disabled and benefits are awarded,
ending the inquiry. See id. If the process continues beyond
the third step, the fourth and fifth steps consider the
claimant’s “residual functional capacity” in determining
whether the claimant can still do past relevant work or make
an adjustment to other work. See id. § 416.920(a)(4)(iv)-(v).
Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). “The burden of proof is on the
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claimant at steps one through four, but shifts to the Commissioner at step five.” Bray v.

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Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

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Applying the five-step evaluation process, the ALJ found that Plaintiff was not

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disabled and not entitled to benefits (AR 35.) At step one, the ALJ concluded the Plaintiff

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did not engage in substantial gainful activity since the application date. (Id. at 18.) At step

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two, the ALJ determined the Plaintiff has the following severe impairments:

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“degenerative disc disease, fibromyalgia syndrome, reflex sympathetic dystrophy of the

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right lower extremity, depression, anxiety, [and] bipolar disorder (20 CFR 404.1520(c)).”

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(Id.)

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

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combination of impairments that meets or medically equals the severity of one of the

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listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d),

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416.925, and 416.926).” (Id.) At step four, the ALJ determined that Plaintiff has the

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residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a)

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except:

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[S]he can sit six hours out of an eight-hour work day; she can
stand or walk two hours out of an eight-hour workday. She
requires a sit/stand option every thirty minutes. She can lift,
carry, push and pull ten pounds frequently and twenty pounds
occasionally. She can never climb ladders, ropes or scaffolds,
but can occasionally climb ramps and stairs. She can
occasionally balance, stoop, kneel, crouch, and crawl. She can
have only occasional exposure to heights, moving machinery,
humidity, temperature extremes, and vibrations. She can
occasionally understand, remember, and carry out complex
and detailed job instructions. She can only occasionally
interact with coworkers and the public.

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(Id. at 20.)

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The ALJ further found that Plaintiff has no past relevant work. (Id. at 34.) At step

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five, the ALJ found that “[c]onsidering the claimant’s age, education, work experience,

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and residual functioning capacity, there are jobs that exist in significant numbers in the

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national economy that the claimant can perform.” (Id.) The ALJ concluded that Plaintiff

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“has not been under a disability, as defined in the Social Security Act, since . . . the date

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the application was filed.” (Id. at 35.)

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III.

Analysis

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Plaintiff alleges that the ALJ erred in weighing medical opinion evidence and by

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discounting Plaintiff’s symptom testimony. (Doc. 17.) Specifically, Plaintiff contends the

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ALJ erred by (1) failing to provide specific and legitimate reasons for not assigning

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controlling weight to the treating physician’s opinion, and (2) by failing to provide clear

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and convincing reasons for finding Plaintiff not credible. (Id.) The Court addresses

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Plaintiff’s arguments below.

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a. Weighing of Medical Opinion Evidence

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Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for

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not assigning controlling weight to the opinions of Dr. Ajay Narwani, Plaintiff’s treating

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pain specialist. (Doc. 17 at 10.) Below, the Court addresses the ALJ’s treatment of Dr.

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Narwani’s opinions.

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i.

Legal Standard

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In weighing medical evidence, the Ninth Circuit distinguishes between the

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opinions of treating physicians, examining physicians, and non-examining physicians.

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See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, the ALJ should give

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the greatest weight to a treating physician’s opinion and more weight to the opinion of an

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examining physician than to one of a non-examining physician. See Andrews, 53 F.3d at

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1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6). If it is not contradicted by another

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doctor’s opinion, the opinion of a treating or examining physician can be rejected only

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for “clear and convincing” reasons. Lester, 81 F.3d at 830 (citing Embrey v. Bowen, 849

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F.2d 418, 422 (9th Cir. 1988)). “If a treating or examining doctor’s opinion is

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contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific

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and legitimate reasons that are supported by substantial evidence.” Garrison, 759 F.3d at

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1012 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).

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An ALJ can meet the “specific and legitimate reasons” standard “by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

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Cir. 1986). But, “[t]he ALJ must do more than offer his conclusions. He must set forth his

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

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849 F.2d at 421-22. “The opinion of a non-examining physician cannot by itself

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constitute substantial evidence that justifies the rejection of the opinion of either an

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examining or a treating physician.” Lester, 81 F.3d at 831 (emphasis in original).

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However, a non-treating or non-examining physician’s opinions may serve as substantial

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evidence “when the opinions are consistent with independent clinical findings or other

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evidence of record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

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ii.

Dr. Narwani’s Opinions

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Plaintiff sought treatment from Dr. Narwani from December 2012 to March 2016.

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(See AR 308-405, 614-712, 1125-1221.) On April 4, 2016, Dr. Narwani completed a

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treating source statement (Id. at 1229-32.) In this treating source statement, Dr. Narwani

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opined Plaintiff suffers moderate to extreme pain that causes sleep disturbance, mood

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swings, difficulty concentrating or thinking, appetite disturbance, and decreased energy

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or stamina. (Id. at 1229.) Dr. Narwani opined that Plaintiff’s use of morphine for chronic

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pain causes side effects that would interfere with regular work activity. (Id.) Dr. Narwani

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further opined that Plaintiff’s daily living activities are moderately affected by her

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condition, and that Plaintiff’s limitation in completing tasks in a timely manner due to

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deficiencies in concentration, persistence, or pace is extreme. (Id. at 1230.) Dr. Narwani

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opined that Plaintiff would require breaks every 20 to 30 minutes, would be able to lift

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and carry five pounds occasionally,2 and would never be able to lift and carry ten pounds

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or greater. (Id.) Dr. Narwani also opined that Plaintiff would be able to climb stairs and

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ramps and balance occasionally, and that the Plaintiff would never be able to climb

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ladders or scaffolds, stoop, kneel, crouch, or bend at the waist. (Id. at 1232.) Finally, Dr.

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Narwani opined that Plaintiff would have to miss work more than four times a month as a

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The form used by Dr. Narwani defines “occasionally” as one-third of the day.
(AR 1230.)
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result of her impairments. (Id.)

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Dr. Narwani’s opinions were contradicted by the opinions’ of consultative

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examining physicians, Dr. Paul Bendheim and Dr. Matthew Khumalo. (AR 532-37,

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1095-1106.) Therefore, the ALJ could discount Dr. Narwani’s opinions only for specific

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and legitimate reasons supported by substantial evidence. Lester, 81 F.3d at 830-31;

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Garrison, 759 F.3d at 1015.

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iii.

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The ALJ erred by assigning the opinions of Plaintiff’s treating pain
specialist, Dr. Narwani, little weight.

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The ALJ gave Dr. Narwani’s opinions “little weight” because the severity opined

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“is not supported by the medical evidence of record,” and “is not likely to last for the

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requisite twelve-month period.” (AR 30.) The Court finds that the ALJ failed to provide

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specific and legitimate reasons supported by substantial evidence for giving Dr.

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Narwani’s opinions little weight.

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First, the ALJ does not cite to specific evidence or provide any explanation for

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why the severity opined by Dr. Narwani is “not supported by the medical evidence of

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record.” (Id.) The ALJ references a number of Dr. Narwani’s treatment notes that

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document Plaintiff’s visits, but fails to explain why these treatment notes inadequately

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support Dr. Narwani’s opinions. The ALJ further fails to specify or explain which

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medical records do not support Dr. Narwani’s findings. (Id. at 22-26.) In fact, a number

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of Dr. Narwani’s treatment notes reflect findings that are consistent with his opinions

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regarding Plaintiff’s limitations. (Id. at 308-405, 614-712, 1125-1221.) For example,

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Plaintiff frequently reported her pain to Dr. Narwani as “continuous” and “constant,” and

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reported worsening factors such as increased activity, movement, walking, going up

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stairs, going down stairs, prolonged sitting, and prolonged standing. (See, e.g., id. at 348,

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397, 644, 687, 1130, 1161, 1208.) Plaintiff also consistently rated her current pain at

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appointments as seven out of ten or above. (See, e.g., id. at 365, 382, 397, 648, 709, 1137,

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1180.) Numerous treatment notes from Dr. Narwani identify positive straight leg raise

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tests, antalgic gait, limited range of motion, and lower spine musculature tenderness,

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tightness, and trigger points in physical examinations dating back to March 2013. (See,

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e.g., id. at 388-89, 649-50, 683-84, 1138-39, 1199-1200.) Also, Dr. Narwani

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recommended Plaintiff for Trigger Point Injections for her pain—at times on a weekly

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basis—from 2013 to 2016. (Id. at 308-405, 614-712, 1125-1221.) The records reveal five

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appointments for Trigger Point Injections in October 2015 alone, which is consistent with

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Dr. Narwani’s opinions that Plaintiff would be absent from work more than four times a

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week. (Id. at 1161-64, 1165-68, 1169-72, 1173-75, 1176-79, 1229-32.)

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The ALJ gave “substantial weight” to Dr. Bendheim’s November 2014 findings

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because they are “consistent with the medical evidence of record, and Dr. Bendheim is a

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qualified expert who had the opportunity to evaluate the Plaintiff face to face.” (AR 29.)

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However, other than these conclusory statements, the ALJ does not provide any basis for

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giving Dr. Bendheim’s opinion more weight than Plaintiff’s treating pain management

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specialist. Importantly, Dr. Bendheim did not opine regarding Plaintiff’s specific

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functional limitations. (Id. at 532-37.) Also, Dr. Bendheim only had a portion of

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Plaintiff’s psychiatric records and no medical or radiographic procedures to review to

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inform him of Plaintiff’s condition. (Id. at 533.) Dr. Bendheim even recommended

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Plaintiff seek “evaluation by a pain specialist regarding her anterior groin pain and

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possible reflex sympathetic dystrophy,” when at the time, Plaintiff had been treated by

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Dr. Narwani—a pain specialist—for nearly two years. (Id. at 400, 536-37.) The ALJ

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omitted specific discussion of how Dr. Bendheim’s findings contradict Dr. Narwani’s

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opinions or how Dr. Bendheim’s findings may be consistent with Dr. Narwani’s findings,

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including positive straight leg raising testing, decreased lumbar lordosis, tenderness upon

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palpitation in the lumbar spine, antalgic gait, decreased sensation, and chronic groin pain.

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(Id. at 535-36.)

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The ALJ also gave “substantial weight” to Dr. Khumalo’s February 2016 opinions

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because they are “consistent with the medical evidence of record, and Dr. Khumalo is a

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qualified expert who had the opportunity to evaluate, test, observe, and examine the

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claimant face to face.” (AR 30.) Again, aside from these brief conclusions, the ALJ

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provides no other specific reasoning for giving Dr. Khumalo’s opinions substantial

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weight, while giving Dr. Narwani’s opinions little weight. Dr. Khumalo was even more

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limited in his examination than Dr. Bendheim because he had no past records to review at

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all. (Id. at 1095.) Based on his examination, Dr. Khumalo opined that Plaintiff can stand

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or walk for two hours in a work day, sit for six hours in a work day, climb stairs or ramps

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occasionally, and balance, stoop, kneel, crouch, and crawl occasionally. (Id. at 1098-

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1102.) The ALJ does not explain how Dr. Khumalo’s findings are consistent with other

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medical evidence or inconsistent with Dr. Narwani’s opinions. Also, the ALJ omits

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specific discussion of Dr. Khumalo’s examination findings that are consistent with Dr.

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Narwani’s opinions, including muscular tenderness in the lumbothoracic region

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bilaterally, diminished range of motion, diagnosis of reflex sympathetic dystrophy, and

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chronic pain. (Id. at 1096.)

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The ALJ gave “partial weight” to the opinions of non-examining state-agency

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physician Dr. Combs because they are “generally consistent with the medical evidence of

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record.” (Id. at 29.) The ALJ awarded Dr. Combs’ opinion only partial weight because

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she found that, “based on evidence adduced at the hearing level … the [Plaintiff] is more

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restricted in standing and walking than Dr. Combs opined.” (Id.) Dr. Combs opined that

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Plaintiff can occasionally lift and carry twenty pounds, frequently lift and carry ten

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pounds, stand or walk for six hours in an eight hour work day, and sit for six hours in an

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eight hour work day. (Id. at 90.) Dr. Combs also opined Plaintiff can occasionally climb

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ramps, stairs, ladders, ropes, and scaffolds, can occasionally stoop, kneel, crouch, and

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crawl, and can frequently balance. (Id.) The ALJ provides no further explanation or

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analysis as to why she gave Dr. Combs’ opinions partial weight, while giving Dr.

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Narwani’s opinions little weight.

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The ALJ summarized the treating, examining, and non-examining doctors’

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opinions and gave Dr. Narwani’s opinions little weight without giving any specific

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reasons for discounting the treating specialist’s opinions and without clarifying which

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evidence she relied on to support her conclusions. Rather, the ALJ simply gives a

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conclusory statement of her opinion. But “[t]he ALJ must do more than offer [her]

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conclusions. [She] must set forth [her] own interpretations and explain why they, rather

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than the doctors’, are correct.” Embrey, 849 F.2d at 421-22. Therefore, the Court finds

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this conclusory reasoning is not supported by substantial evidence and constitutes an

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insufficient basis on which to give little weight to Dr. Narwani’s opinions.

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Second, the ALJ does not explain how she came to the conclusion that “the

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severity opined . . . is not likely to last for the requisite twelve-month period.” (AR 30.)

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Instead, she gives substantial weight to the medical testimony of the consultative

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examining doctors who were not able to reach a consensus about the duration of

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Plaintiff’s condition. The most recent examining physician, Dr. Khumalo, opined in 2016

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that the limitations he found lasted or will last for twelve consecutive months. (Id. at

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1105.) However in 2014, over one year prior, examining physician Dr. Paul Bendheim

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opined that Plaintiff’s condition would not “impose any limitations for twelve continuous

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months.” (Id. at 536.) The ALJ entirely fails to clarify the examiners’ contradicting

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opinions or to relate these medical opinions to the rejected opinions of Dr. Narwani who

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had been seeing Plaintiff for her chronic condition since December 2012 and most likely

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could better adduce a longitudinal picture of Plaintiff’s condition. Therefore, the Court

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finds this reason is also not specific, legitimate, or supported by substantial evidence.

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b. Plaintiff’s Symptom Testimony

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Plaintiff also argues that the ALJ erred by failing to provide clear and convincing

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reasons for discounting Plaintiff’s symptom testimony. (Doc. 17 at 16-24.) The Court

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addresses this argument below.

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i.

Legal Standard

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An ALJ engages in a two-step analysis to determine whether a claimant’s

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testimony regarding subjective pain or symptoms is credible. Garrison, 759 F.3d at 1014-

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15 (citing Lingenfelter, 504 F.3d at 1035-36). “First, the ALJ must determine whether the

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claimant has presented objective medical evidence of an underlying impairment ‘which

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could reasonably be expected to produce the pain or other symptoms alleged.’”

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Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.

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1991) (en banc)). The claimant is not required to show objective medical evidence of the

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pain itself or of a causal relationship between the impairment and the symptom. Smolen v.

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Chater, 80 F.3d 1273,1282 (9th Cir. 1996). Instead, the claimant must only show that an

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objectively verifiable impairment “could reasonably be expected to produce his pain.”

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Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1282); see also Carmickle v.

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Comm’r, SSA, 533 F.3d 1155, 1160-61 (9th Cir. 2008) (“[R]equiring that the medical

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impairment ‘could reasonably be expected to produce’ pain or another symptom …

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requires only that the causal relationship be a reasonable inference, not a medically

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proven phenomenon”).

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Second, if a claimant shows that she suffers from an underlying medical

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impairment that could reasonably be expected to produce her pain or other symptoms, the

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ALJ must “evaluate the intensity and persistence of [the] symptoms” to determine how

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the symptoms, including pain, limit the claimant’s ability to do work. See 20 C.F.R. §

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404.1529(c)(1). General assertions that the claimant’s testimony is not credible are

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insufficient. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). The ALJ must

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identify “what testimony is not credible and what evidence undermines the claimant’s

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complaints.” Id. (quoting Lester, 81 F.3d at 834).

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In weighing a claimant’s credibility, the ALJ may consider many factors,

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including, “(1) ordinary techniques of credibility evaluation, such as the claimant’s

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reputation for lying, prior inconsistent statements concerning the symptoms, and other

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testimony by the claimant that appears less than candid; (2) unexplained or inadequately

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explained failure to seek treatment or to follow a prescribed course of treatment; and (3)

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the claimant’s daily activities.” Smolen, 80 F.3d at 1284; see Orn, 495 F.3d at 637-39.

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The ALJ also considers “the claimant’s work record and observations of treating and

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examining physicians and other third parties regarding, among other matters, the nature,

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onset, duration, and frequency of the claimant’s symptom; precipitating and aggravating

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factors; [and] functional restrictions caused by the symptoms . . . .” Smolen, 80 F.3d at

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1284 (citation omitted).

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At this second step, the ALJ may reject a claimant’s testimony regarding the

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severity of his or her symptoms only if the ALJ “makes a finding of malingering based on

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affirmative evidence,” Lingenfelter, 504 F.3d at 1036 (quoting Robbins, 466 F.3d at 883),

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or if the ALJ offers “clear and convincing reasons” for finding the claimant not credible.

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Carmickle, 533 F.3d at 1160 (quoting Lingenfelter, 504 F.3d at 1036). “‘The clear and

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convincing standard is the most demanding required in Social Security Cases.’”

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Garrison, 793 F.3d at 1015 (quoting Moore v. Soc. Sec. Admin., 278 F.3d 920, 924 (9th

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Cir. 2002)).

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ii. Plaintiff’s Testimony

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Plaintiff testified that she has degenerative disc disease, fibromyalgia, reflex

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sympathetic dystrophy of the right lower extremity, depression, bipolar disorder, and

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anxiety. (AR 46-47.) Plaintiff testified that she can usually dress and bathe herself except

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she sometimes needs help putting her underwear on. (Id. at 47.) Plaintiff claimed that she

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does not do many chores except that she will wash her own dish if she makes herself

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something to eat, does her own laundry, and buys her own groceries. (Id. at 48.) Plaintiff

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testified that she cannot mop, do any yard work or gardening, or exercise. (Id.) Plaintiff

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further claimed that she watches television for seven hours a day on average. (Id.)

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Plaintiff testified that she does not drive and claims she goes “absolutely nowhere.” (Id.

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at 49.) Plaintiff also testified that her medication makes her sleepy and nauseated. (Id. at

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50.) Plaintiff also claimed that she can only walk for five to ten minutes before she has to

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sit down. (Id. at 51.) Plaintiff claimed that she visits her pain doctor on a weekly basis

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and her mental health doctor once every two to three months—sometimes every six to

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eight weeks. (Id.) On average, Plaintiff rated her pain at a seven out of ten and claims that

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she has to lie down every day for a couple of hours to relieve the pain—sometimes

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multiple times a day. (Id. at 52, 55.)

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iii. The ALJ failed to provide clear and convincing reasons supported by
substantial evidence for rejecting Plaintiff’s symptom testimony.

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The ALJ found that Plaintiff’s medically determinable impairments could

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reasonably be expected to cause the alleged symptoms. (AR 21.) However, the ALJ

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found Plaintiff’s “statements concerning the intensity, persistence and limiting effects of

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these symptoms are not entirely consistent with the medical evidence and other evidence

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in the record …” (Id.) Here, because there was no affirmative evidence of malingering,

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the ALJ was required to provide clear and convincing reasons supported by substantial

9

evidence for rejecting Plaintiff’s testimony regarding the severity of her symptoms.

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The ALJ determined Plaintiff’s testimony was “not entirely consistent” with the

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medical evidence and other evidence because (1) Plaintiff’s “activities of daily living are

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not consistent with her allegations of complete disability;” and (2) Plaintiff made

13

inconsistent statements. (AR 34.) The Court finds these are not sufficient reasons for

14

discounting Plaintiff’s testimony.

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First, while an ALJ may discredit a claimant’s allegations if a claimant has

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“engaged in numerous daily activities involving skills that could be transferred to the

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workplace,” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005), “the mere fact that a

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plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or

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limited walking for exercise, does not in any way detract from her credibility as to her

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overall disability. One does not need to be utterly incapacitated in order to be disabled.”

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Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001).

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Here, the ALJ asserts that Plaintiff’s activities of daily living include the ability to

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“bathe, groom, toilet, and take care of her personal hygiene without assistance, except

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that she needs help to put on pants.” (AR 34.) The ALJ also cites to Plaintiff’s ability to

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prepare simple meals, feed herself, do household chores such as laundry, and shop in the

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store for necessities. (Id.) Lastly, the ALJ notes that Plaintiff can “sort, hand [sic], and

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use paper files.” (Id.) The ALJ never specifies how often or long Plaintiff can engage in

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these activities or if the activities comprise a substantial part of Plaintiff’s day. The ALJ

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also never specifies how engaging in these activities is inconsistent with Plaintiff’s

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allegations of complete disability. Also, the ALJ makes no finding as to how limited

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Plaintiff is in these activities or whether these activities are transferrable to the

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workplace. The ALJ only lists Plaintiff’s activities and does not clearly detail which part

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of Plaintiff’s testimony is not credible or what evidence undermines Plaintiff’s

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complaints. The ALJ’s conclusory findings do not equate to clear and convincing reasons

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supported by substantial evidence for discrediting Plaintiff’s symptom testimony.

8

Second, the ALJ points to a discrepancy between claims Plaintiff made about her

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high school completion status. (Id.) The ALJ identifies a statement Plaintiff made to

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consultative examiner Dr. Steven Hirdes that she dropped out of high school, which

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contradict records from Dr. Narwani that indicate Plaintiff completed high school. (Id.)

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The ALJ also asserts that Plaintiff has made inconsistent statements regarding self-harm

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behavior. (Id.) The ALJ compares a record from Aurora Hospital reporting Plaintiff never

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engaged in self-harm behavior against statements Plaintiff made to Dr. Hirdes claiming

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she cut herself, pulled her hair and eyelashes out, and burned herself with an iron. (Id.)

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Notably, multiple pages in the same record from Aurora Hospital confirm Plaintiff’s self-

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harming behavior and record it in more detail than the general form on the first page that

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indicated no history of self-harming behavior. (Id. at 807, 813, 821, 823.)

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However, the ALJ makes no effort to explain how these inconsistencies undermine

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Plaintiff’s specific testimony about the severity of her pain symptoms. The ALJ must

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identify “what testimony is not credible and what evidence undermines the claimant’s

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complaints.” Lester, 81 F.3d at 834; see also Brown-Hunter v. Colvin, 806 F.3d 487, 493

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(9th Cir. 2015) (finding error where the ALJ’s conclusory statement that “the functional

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limitations from the claimant’s impairments were less serious than she has alleged” was

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based on “unspecified claimant testimony and a summary of medical evidence.”).

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Without further analysis regarding whether the inconsistent statements undermine

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Plaintiff’s claims about the intensity and persistence of her pain, the Court finds that

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simply pointing out these inconsistencies is not a sufficient basis on which to discredit

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Plaintiff’s symptom testimony about the severity of her pain.

2

The Commissioner argues that the ALJ “reasonably considered that Plaintiff’s

3

evasiveness and apparent symptom magnification during Dr. Bendheim’s examination

4

detracted from the reliability of Plaintiff’s allegations.” (Doc. 18 at 6.) More specifically,

5

Defendant cites to the giveaway weakness of Plaintiff’s right quadriceps noted in Dr.

6

Bendheim’s examination. (AR 534.) Defendant theorizes the giveaway weakness noted

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by Dr. Bendheim is a sign of symptom magnification and malingering. (Doc. 18 at 6.)

8

However, the ALJ did not make a finding of malingering, and does not specifically cite to

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the giveaway weakness during Dr. Bendheim’s examination as a basis for giving

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Plaintiff’s symptom testimony little weight. Also, the ALJ does not specifically rely on

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any portion of Dr. Bendheim’s medical opinions as support for her decision to discount

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Plaintiff’s symptom testimony. “[T]he Court reviews only the reasons provided by the

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ALJ in the disability determination and may not affirm the ALJ on a ground upon which

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[s]he did not rely.” Orn, 495 F.3d at 630 (citing Connett v. Barhart, 340 F.3d 871, 874

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(9th Cir. 2003)).

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IV.

Remand for an award of benefits is appropriate here.

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Having determined that the ALJ’s decision is not supported by substantial

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evidence, the Court must vacate the Commissioner’s decision. The remaining issue for

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the Court is whether to remand this matter for an award of benefits or for further

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proceedings. The Court has discretion to remand for an award of benefits or for further

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proceedings. Smolen, 80 F.3d at 1292.

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“When an ALJ’s denial of benefits is not supported by the record, the proper

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course, except in rare circumstances, is to remand to the agency for additional

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investigation or explanation.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012)

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(quotation omitted); see also Treichler v. Comm’r, SSA, 775 F.3d 1090, 1101 (9th Cir.

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2014) (noting that a remand for further administrative proceedings is generally useful

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where the record has not been fully developed, there are outstanding conflicts and

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ambiguities to be resolved, or the presentation of further evidence may “prove

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enlightening.”). Conversely, in appropriate circumstances “courts are free to reverse and

2

remand a determination by the Commissioner with instructions to calculate and award

3

benefits.” Garrison, 759 F.3d at 1019. The case can be remanded to an ALJ with

4

instructions to award benefits when each of the following are satisfied:

5

8

(1) the record has been fully developed and further
administrative proceedings would serve no useful purpose;
(2) the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the
claimant disabled on remand.

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Garrison, 759 F.3d at 1020. If all three criteria are met the case should be remanded for

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award of benefits unless an “evaluation of the record as a whole creates serious doubt as

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to whether the claimant is, in fact, disabled within the meaning of the Social Security

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Act.” Id. at 1021.

6
7

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First, the Court finds the record as a whole is fully developed. The ALJ had an

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opportunity to review Plaintiff’s medical record and testimony, and further administrative

15

proceedings would serve no useful purpose. Second, as the Court discussed in detail

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above, the ALJ failed to provide legally sufficient reasons for giving the opinions of

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Plaintiff’s treating pain specialist, Dr. Narwani, little weight. The ALJ further erred by

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failing to provide legally sufficient reasons for discrediting Plaintiff’s symptom

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testimony. Finally, the vocational expert testified that in order to maintain work only two

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absences would be tolerated per month, and an individual could only be off task up to

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fifteen percent of the work day. (AR 60-65.) If the limitations opined by Dr. Narwani

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were credited as true—that Plaintiff would have to miss work more than four times a

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month—Plaintiff would be unable to maintain work due to her absences and the ALJ

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would be required to find Plaintiff disabled. (Id. at 63, 1229-34.) Also, if Plaintiff’s

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symptom testimony were credited as true—that due to the severity of the pain she cannot

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stand for more than five to ten minutes and she has to lie down every day for a couple of

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hours (sometimes multiple times a day)—Plaintiff would be unable to maintain work due

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to her inability to stay on task for multiple hours per day and the ALJ would be required

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to find Plaintiff disabled. (Id. at 51, 55, 64.) Under these circumstances, the Court finds

2

remanding for an award of benefits is appropriate.

3

Defendant argues that remanding for an award of benefits is improper because the

4

requirements of the credit-as-true doctrine are not satisfied. (Doc. 18 at 14.) Defendant

5

argues that the contradictory examining opinions of Dr. Bendheim and Dr. Khumalo

6

prohibit application of the doctrine and require remand for further proceedings. (Id.)

7

However, the ALJ had the full opportunity to review the records and resolve any

8

contradictions. Also, the Commissioner does not provide any arguments or explanations

9

for how the medical evidence casts serious doubt on Plaintiff’s claim to be disabled. The

10

opinions of examining physicians’ Dr. Bendheim and Dr. Khumalo—who each only

11

examined Plaintiff once and both without relevant medical records—conform with Dr.

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Narwani’s medical opinions that Plaintiff experiences chronic pain, muscular tenderness,

13

limited range of motion, and reflex sympathetic dystrophy.3 (AR 532-37, 1095-1106.) As

14

shown in the record, Plaintiff has been afflicted with a number of severe impairments

15

since at least 2012 and has been receiving pain management treatment for these

16

impairments on a regular basis. (AR 308-405, 614-712, 1125-1221). After reviewing the

17

record, this Court sees no reason to seriously doubt that Plaintiff is disabled. Allowing the

18

ALJ “to decide the issue again would create an unfair ‘heads we win; tails, let’s play

19

again’ system of disability benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587,

20

595 (9th Cir. 2004). See also Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The

21

Commissioner, having lost this appeal, should not have another opportunity to show that

22

[Plaintiff] is not credible any more than [Plaintiff], had [s]he lost, should have an

23

opportunity for remand and further proceedings to establish [her] credibility.”).

24

In addition, Plaintiff applied for benefits three years ago. (AR 141-46.) Applicants

25

for disability benefits “… can experience tremendous financial difficulties while awaiting

26
27
28

3

Dr. Bendheim’s report recommends Plaintiff seek “evaluation by a pain
specialist regarding … possible reflex sympathetic dystrophy.” (AR 536-37) (emphasis
added). At that time, Plaintiff had been treated by a pain specialist for reflex sympathetic
dystrophy since December 2012—nearly two years. (Id. at 400.)
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the outcome of their appeals and proceedings on remand.” Varney v. Sec’y of Health &

2

Human Servs., 859 F.2d 1396, 1398 (9th Cir. 1988). The Court does not wish to further

3

delay the benefits to Plaintiff as a result of the agency’s denial of her application.

4

The ALJ provided legally insufficient reasons for giving the opinions of Plaintiff’s

5

treating pain management specialist, Dr. Narwani, little weight. The ALJ also provided

6

legally insufficient reasons for discrediting Plaintiff’s symptom testimony. Because no

7

remaining issues exist to be resolved and no serious doubt exists about Plaintiff’s

8

disability, this Court concludes that Plaintiff is entitled to remand for an immediate award

9

of benefits.

10

Accordingly,

11

IT IS ORDERED that the decision of the Commissioner is vacated and this

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15

matter is remanded back to the Social Security Administration for an award of benefits.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly and terminate this action.
Dated this 6th day of July, 2017.

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Honorable John Z. Boyle
United States Magistrate Judge

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