Sheehan v. Colvin
Filing
26
ORDER that the decision of the Commissioner is reversed and this matter is remanded for further proceedings. Signed by Judge H Russel Holland on 8/4/14. (LSP)
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
ALAN T. SHEEHAN,
)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social Security
)
Administration,
)
)
Defendant.
)
__________________________________________)
No. 3:13-cv-8203-HRH
ORDER
This is an action for judicial review of the denial of disability benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff has timely filed his opening brief,1
to which defendant has responded.2 Oral argument was not requested and is not deemed
necessary.
1
Docket No. 19.
2
Docket No. 22.
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Procedural Background
Plaintiff is Alan T. Sheehan. Defendant is Carolyn W. Colvin, acting Commissioner
of Social Security.
On April 14, 2010, plaintiff filed an application for disability benefits under Title II
of the Social Security Act, alleging that he became disabled on January 4, 2010. Plaintiff
alleged that he was disabled because of back surgery, severe chronic back pain, and bad
knees. Plaintiff’s application was denied initially and upon reconsideration. After a
hearing on January 4, 2012, an administrative law judge (ALJ) denied plaintiff’s claim. On
June 14, 2013, the Appeals Council denied plaintiff’s request for review, thereby making
the ALJ’s January 17, 2012 decision the final decision of the Commissioner. On August 9,
2013, plaintiff commenced this action in which he asks the court to find that he is entitled
to disability benefits.
General Factual Background
Plaintiff was born on September 2, 1959. Plaintiff was 52 years old at the time of the
administrative hearing. Plaintiff is married and has a high school education. His past
relevant work includes work as a project manager, general manager, estimator, and field
superintendent.
The ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the
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Social Security Act through December 31, 2014.”3
The ALJ then applied the five-step sequential analysis used to determine whether
an individual is disabled.4
At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since January 4, 2010, the alleged onset date....”5
At step two, the ALJ found that plaintiff had “the following severe impairments:
3
Admin. Rec. at 29.
4
The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit ... h[is] ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform ... h[is] past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow ... h[im]
to adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not, the
claimant is disabled.
Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
5
Admin. Rec. at 29.
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hypertension, low back pain, status post low back surgery x 2 in 1993 and 2000, [and]
bilateral knee pain, post knee surgery x 4 between 1975 and 2008....”6
At step three, the ALJ found that plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1, with special consideration given
to sections 1.02 and 1.04 of the Listings....”7
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009).
The ALJ found that plaintiff had
the residual functional capacity to perform less than the full
range of sedentary work as defined in 20 CFR 404.1567(a), with
sitting up to 6 hours per 8-hour day, standing and walking up
to 2 hours per 8-hour day, lifting up to 10 pounds occasionally,
no climbing ladders, ropes or scaffolds, the need to avoid
concentrated exposure to hazardous heights and moving
machinery, the need for frequent changes in position, and no
repetitive bending or twisting at the waist.[8]
The ALJ found that plaintiff was “generally credible” but found his credibility
“weaken[ed]” due to his receipt of unemployment insurance benefits “because receipt of
such benefits is commensurate with the understanding that the claimant is able-bodied and
6
Admin. Rec. at 29.
7
Admin. Rec. at 29.
8
Admin. Rec. at 30.
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actively looking for work....”9 The ALJ also noted that plaintiff had “submitted up to 16 job
applications since his alleged onset date,” which “implies he feels he could do some sort
of work activity[.]”10 The ALJ also found plaintiff less than credible because he was taking
only ibuprofen yet complained that his back pain was 7/10 and because he reported that
his back pain and left lower radicular symptoms were better since starting physical
therapy.11 The ALJ found plaintiff less than credible because Dr. Merkel’s12 physical
examination findings were normal on October 19, 2010 and January 1, 2011.13 And finally,
the ALJ appeared to find plaintiff less than credible because of his activities of daily
living.14
The ALJ gave “greater weight” to the opinions of Dr. Merkel15 and “less weight” to
9
Admin. Rec. at 31.
10
Admin. Rec. at 30.
11
Admin. Rec. at 31. Plaintiff saw Ty Harper at Harper Physical Therapy 20 times
between April 26, 2010 and June 24, 2010. Admin. Rec. at 258, 276-279, 281-290, 293-297,
308-309, 316-318, & 320-322.
12
Mary Merkel, M.D., at the Spine Institute of Arizona treated plaintiff from June 2,
2009 through October 19, 2010. Admin. Rec. at 227-238, 327-335, & 366-368.
13
Admin. Rec. at 32.
14
Admin. Rec. at 31.
15
On June 1, 2010, Dr. Merkel noted that plaintiff was capable of doing light duty
work 20 hours per week. Admin. Rec. at 335. On July 29, 2010, Dr. Merkel
“[r]ecommend[ed] that [plaintiff] be on permanent light duty. No lift, push, pull more than
(continued...)
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the opinion of Dr. Briggs.16 The ALJ considered Dr. Rowley’s opinion17 but assigned no
specific weight to it. And, the ALJ gave the opinions of Drs. Keer18 and Anderson19 some
weight.20
At step four, the ALJ found, based on the testimony of the vocational expert, that
15
(...continued)
25 pounds, frequent positional change and no repetitive bending or twisting at the waist.
Admin. Rec. at 329.
16
Admin. Rec. at 32-33. Brian Briggs, M.D., examined plaintiff on November 15,
2010, and opined that plaintiff did not have any condition that would impose any
limitations for 12 continuous months. Admin. Rec. at 347.
17
Dr. Rowley at the Arizona Spine Institute began treating plaintiff on January 11,
2011. Admin. Rec. at 362. On December 12, 2011, Dr. Rowley opined that plaintiff had
moderately severe pain, which was defined as “pain [that] seriously affects ability to
function.” Admin. Rec. at 353.
18
On July 9, 2010, Nadine Keer, D.O., opined that plaintiff could occasionally
lift/carry 20 pounds; frequently lift/carry 10 pounds; could stand/walk for 6 hours; sit for
6 hours; was unlimited as to pushing and pulling; could frequently climb ramps/stairs;
could occasionally climb ladders/ropes/scaffolds; was unlimited as to balancing, stooping
and crouching; could occasionally kneel and crawl; and should avoid concentrated
exposure to hazards such as machinery and heights. Admin. Rec. at 83-84.
19
On December 17, 2010, Lloyd Anderson, M.D., opined that plaintiff could
occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for 6 hours;
sit for 6 hours; was unlimited as to pushing and pulling; could frequently climb
ramps/stairs; could occasionally climb ladders/ropes/scaffolds, crawl and kneel; was
unlimited as to balancing, stooping, and crouching; and should avoid concentrated
exposure to hazards such as machinery and heights. Admin. Rec. at 94-95.
20
Admin. Rec. at 33.
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plaintiff could perform his past relevant work as a project manager and estimator.21
Thus, the ALJ concluded that plaintiff “has not been under a disability, as defined
in the Social Security Act, from January 4, 2010 through the date of this decision....”22
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner....” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct
legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial
evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether
substantial evidence supports the ALJ’s decision, [the court] review[s] the administrative
record as a whole, weighing both the evidence that supports and that which detracts from
the ALJ’s conclusion.’” Id. If the evidence is susceptible to more than one reasonable
interpretation, the court must uphold the Commissioner’s decision.
Id.
But, the
Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of
21
Admin. Rec. at 33.
22
Admin. Rec. at 33.
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supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff argues that the ALJ erred in rejecting Dr. Rowley’s opinion and Dr. Merkel’s
opinion. Plaintiff also argues that the ALJ failed to support his RFC with substantial
evidence and that the ALJ erred at step four. Finally, plaintiff argues that the ALJ erred
in finding him less than credible.
Dr. Rowley
On December 12, 2011, Dr. Rowley opined that plaintiff had moderately severe pain,
which was defined as “pain [that] seriously affects ability to function.”23 The ALJ
considered Dr. Rowley’s opinion but assigned no specific weight to it.24 The ALJ noted that
Dr. Rowley “opined [that] the claimant’s pain was precipitated by movement/overuse.
However, he provided no estimates of associated restrictions or limitations.... He further
noted in reference to questions #5 and 6 on [the medical source statement] form that it was
‘unknown to him.’”25 Question 5 asked “[h]ow often is your patient’s experience of pain
sufficiently severe to interfere with attention and concentration” and Question 6 asked “[t]o
23
Admin. Rec. at 353.
24
Admin. Rec. at 33.
25
Admin. Rec. at 33.
-8-
what degree does your patient experience deficiencies of concentration, persistence, or pace
resulting in failure to complete tasks in a timely manner (in work settings or elsewhere)?”26
“As a general rule, more weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). “At least where the treating doctor’s opinion is not contradicted by
another doctor, it may be rejected only for ‘clear and convincing’ reasons.” Id. (quoting
Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[I]f the treating doctor’s opinion
is contradicted by another doctor, the Commissioner may not reject this opinion without
providing ‘specific and legitimate reasons’ supported by substantial evidence in the record
for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
Dr.
Rowley’s opinion that plaintiff’s pain would seriously affect his ability to function was
contradicted by Drs. Briggs, Keer, and Anderson. Thus, the ALJ was required to give
specific and legitimate reasons for rejecting Dr. Rowley’s opinion.
The ALJ rejected Dr. Rowley’s opinion because “he provided no estimates of
associated restrictions or limitations”, but rather answered the two questions that related
to specific restrictions or limitations as “unknown to him.”27 Plaintiff argues that this was
not a legitimate reason because the vocational expert had no difficulty in assessing the
26
Admin. Rec. at 353-354.
27
Admin. Rec. at 33.
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effect “moderately severe pain” would have on a person’s ability to function. The
vocational expert testified that someone who had “moderately severe pain” as Dr. Rowley
opined plaintiff had “could not sustain employment.”28 Plaintiff thus argues that the fact
that Dr. Rowley answered “unknown to me” to the two specific questions about functional
limitations does not translate into a complete failure to provide restrictions and limitations.
Plaintiff insists that it was sufficient that Dr. Rowley found that plaintiff had severe pain,
which was defined as seriously affecting the ability to function.
“The ALJ need not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and inadequately supported by clinical
findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Dr. Rowley’s opinion was
brief and conclusory and thus the ALJ did not err in rejecting it.
Dr. Merkel
On June 1, 2010, Dr. Merkel opined that plaintiff could do light work for 20 hours
per week.29 On July 29, 2010, Dr. Merkel recommended that plaintiff be “on permanent
light duty. No lift, push, pull more than 25 pounds, frequent positional change and no
repetitive bending or twisting at the waist.”30 The ALJ gave Dr. Merkel’s opinion “greater
28
Admin. Rec. at 73.
29
Admin. Rec. at 335.
30
Admin. Rec. at 329.
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weight.”31 Plaintiff contends, however, that the ALJ failed to recognize that Dr. Merkel’s
assessment was inconsistent with the ability to sustain employment. Plaintiff argues that
Dr. Merkel opined that he was limited to working 20 hours per week. An RFC is an
assessment of an individual’s ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days
a week, or an equivalent work schedule. SSR 96–8p. Thus, plaintiff argues that if Dr.
Merkel opined that he could only work 20 hours per week, then her opinion could not be
substantial evidence supporting the ALJ’s assessment that plaintiff retained the capacity
for full-time work.
It is not clear how many hours a week Dr. Merkel was opining plaintiff could work
in July 2010. The ALJ may have assumed that because Dr. Merkel did not indicate a
specific number of hours in July 2010, that Dr. Merkel meant that plaintiff could work 40
hours per week. On the other hand, as plaintiff points out, the ALJ also noted that the
functional limitations that Dr. Merkel found in July 2010 “were essentially unchanged from
the June 1, 2010 exam, when Dr. Merkel advised for light duty work of 20 hours per
week....”32 If plaintiff’s functional limitations were unchanged from June 2010 to July 2010,
then it may follow that plaintiff was still limited to 20 hours per week. Because Dr.
31
Admin. Rec. at 32.
32
Admin. Rec. at 32.
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Merkel’s opinion was unclear, the ALJ should have sought some clarification from Dr.
Merkel, especially if he were going to give her opinion “greater” weight than the other
medical opinions in the record. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)
(Because the ALJ has a duty to fully and fairly develop the record, “[i]f the ALJ thought he
needed to know the basis of Dr. Hoeflich’s opinions in order to evaluate them, he had a
duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or
submitting further questions to them”). The ALJ erred in failing to clarify the ambiguity
as to Dr. Merkel’s opinion.
Unsupported RFC
Plaintiff argues that the ALJ’s RFC is unsupported because the ALJ stated at the
hearing that the first hypothetical he was giving the vocational expert was not based on any
particular exhibit, but rather that he had taken Exhibit 4A, which was Dr. Anderson’s
opinion, and modified it. On December 17, 2010, Lloyd Anderson, M.D., opined that
plaintiff could occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk
for 6 hours; sit for 6 hours; was unlimited as to pushing and pulling; could frequently climb
ramps/stairs; could occasionally climb ladders/ropes/scaffolds, crawl and kneel; was
unlimited as to balancing, stooping, and crouching; and should avoid concentrated
exposure to hazards such as machinery and heights.33
33
Admin. Rec. at 94-95.
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Plaintiff argues that Dr. Anderson’s opinion, which the ALJ gave “some weight”,34
cannot constitute substantial evidence for the ALJ’s RFC because Dr. Anderson opined that
plaintiff could perform a limited range of light work, not a limited range of sedentary work
as the ALJ found. In addition, “‘[t]he opinion of a nonexamining physician cannot by itself
constitute substantial evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.’” Ryan v. Comm’r of Social Sec., 528 F.3d
1194, 1202 (9th Cir. 2008) (quoting Lester, 81 F.3d at 831). Plaintiff insists that the ALJ
articulated no basis for finding him capable of a limited range of sedentary work and that
the ALJ appears to have made this finding based on the ALJ’s own opinion of his capacities,
which is not evidence. See Gonzalez Perez v. Sec. of Health and Human Serv., 812 F.2d
747, 749 (1st Cir. 1987) (ALJ may not substitute own opinion for findings and opinion of
physician).
The fact that the ALJ did not rely on one single medical opinion does not mean that
the ALJ’s RFC was not supported by substantial evidence. The ALJ also did not rely on his
own medical opinion. Rather, in assessing plaintiff’s RFC, the ALJ expressly stated that
the RFC was supported “by the findings and opinions found in treating physician notes
and physical therapy records, in conjunction with the findings of the state agency’s
34
Admin. Rec. at 33.
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reviewing physicians.”35 The ALJ did not rely solely on Dr. Anderson’s opinion, but also
relied on Dr. Merkel’s opinion, Dr. Briggs’ opinion, and Dr. Keer’s opinion. And, Dr.
Anderson’s opinion that plaintiff could perform a limited range of light work can be
supporting evidence for the ALJ’s finding that plaintiff could perform a limited range of
sedentary work. A finding that a claimant has the capacity for light work includes a
finding that he has the capacity for sedentary work. See 20 C.F.R. § 404.1567(b).
Credibility
“An ALJ engages in a two-step analysis to determine whether a claimant’s testimony
regarding subjective pain or symptoms is credible.” Garrison v. Colvin, --- F.3d ---, 2014
WL 3397218, at *15 (9th Cir. 2014). “‘First, the ALJ must determine whether the claimant
has presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged.’“ Id. (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “In this analysis, the
claimant is not required to show ‘that h[is] impairment could reasonably be expected to
cause the severity of the symptom []he has alleged; []he need only show that it could
reasonably have caused some degree of the symptom.’” Id. (quoting Smolen, 80 F.3d at
1282). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue
itself, or the severity thereof.’” Id. (quoting Smolen, 80 F.3d at 1282). “If the claimant
35
Admin. Rec. at 33.
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satisfies the first step of this analysis, and there is no evidence of malingering, ‘the ALJ can
reject the claimant's testimony about the severity of her symptoms only by offering specific,
clear and convincing reasons for doing so.’” Id. at *16 (quoting Smolen, 80 F.3d at 1281).
“This is not an easy requirement to meet: ‘The clear and convincing standard is the most
demanding required in Social Security cases.’” Id. (quoting Moore v. Comm’r of Soc. Sec.
Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “In evaluating the claimant’s testimony, the ALJ
may use ‘ordinary techniques of credibility evaluation.’” Molina v. Astrue, 674 F.3d 1104,
1112 (9th Cir. 2012) (quoting Turner v. Comm’r of Social Sec., 613 F.3d 1217, 1224 n.3 (9th
Cir. 2010)). “For instance, the ALJ may consider inconsistencies either in the claimant’s
testimony or between the testimony and the claimant’s conduct, unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course of
treatment, and whether the claimant engages in daily activities inconsistent with the
alleged symptoms[.]” Id. (internal citations omitted). “While a claimant need not vegetate
in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant’s
testimony when the claimant reports participation in everyday activities indicating
capacities that are transferable to a work setting[.]” Id. at 1112-13 (internal citations
omitted). “Even where those activities suggest some difficulty functioning, they may be
grounds for discrediting the claimant’s testimony to the extent that they contradict claims
of a totally debilitating impairment.” Id. at 1113.
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The ALJ found plaintiff less than credible based on the receipt of unemployment
insurance benefits “because receipt of such benefits is commensurate with the understanding that the claimant is able-bodied and actively looking for work....36 The ALJ also noted
that plaintiff had submitted up to 16 job applications since his alleged onset date and found
that this “is not entirely consistent with his disability claim.”37
These were not clear and convincing reasons to find plaintiff less than credible
because it is defendant’s policy that the “[r]eceipt of unemployment benefits does not
preclude the receipt of Social Security disability benefits.”38 Under the five-step sequential
analysis used to determine whether a claimant is disabled, “a person can qualify for Social
Security disability benefits even though he or she remains capable of performing some
work.”39 The “receipt of unemployment benefits” only “undermine[s] a claimant’s alleged
inability to work fulltime,” if the claimant holds himself out as available for full-time work.
Carmickle v. Comm’r, Social Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008). Contrary
to defendant’s contention, the evidence in the record does not establish that plaintiff was
holding himself out as available for full-time work. The record does not include plaintiff’s
36
Admin. Rec. at 31.
37
Admin. Rec. at 30.
38
Admin. Rec. at 224.
39
Admin. Rec. at 224.
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application for unemployment benefits so the court cannot tell whether plaintiff was
holding himself out as available for full-time work. See Jenson v. Colvin, Case No.
CV–13–01018–PHX–BSB, 2014 WL 1878449, at *11 (D. Ariz. May 9, 2014) (“ALJ erred in
discounting the claimant’s subjective complaints based on his receipt of unemployment
benefits when the record did not include the unemployment benefits application”).
Plaintiff’s testimony that he was looking for “[j]ust about anything” in the way of work
does not indicate whether he was looking for full-time or parti-time work.40 And, the
comment plaintiff made to his physical therapist on June 24, 2010 that he was “hoping to
resume working activities over the next month pending continued progress and
physician[’]s approval”41 does not indicate whether plaintiff hoped to work full-time or
part-time.
The ALJ also found plaintiff less than credible because he reported that his condition
improved with physical therapy. This was not a clear and convincing reason. While an
ALJ may permissibly discount credibility when a claimant “respond[s] favorably to
conservative treatment...,” Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), a
claimant’s report of improvement from time to time does not detract from credibility
because “[t]his is unlikely behavior for a person intent on overstating the severity of h[is]
40
Admin. Rec. at 50.
41
Admin. Rec. at 308.
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ailments.” Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998).
The ALJ also found plaintiff less than credible because although plaintiff complained
of severe pain, he only took prescription ibuprofen. An “‘unexplained, or inadequately
explained, failure to seek treatment or follow a prescribed course of treatment’ is a relevant
factor in assessing credibility of pain testimony....” Meanel v. Apfel, 172 F.3d 1111, 1114
(9th Cir. 1999) (quoting Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991)). But, here,
although plaintiff declined Dr. Merkel’s offer to prescribe stronger pain medication42 and
although he told Dr. Rowley that he wanted to take as little medication as possible,43 he did
agree to a prescription for stronger pain medication to be used during bad flare-ups.44
Thus, this was not a clear and convincing reason to find plaintiff less than credible.
The ALJ also seemed to suggest that plaintiff was less than credible because some
of his physical examination findings were normal. The ALJ cited to two of Dr. Merkel’s
treatment notes, one from October 19, 2010 and one from January 1, 2011.45 This was not
a clear and convincing reason for finding plaintiff less than credible. First of all, Dr. Merkel
did not see plaintiff on January 1, 2011. In fact, Dr. Merkel stopped treating plaintiff on
42
Admin. Rec. at 232.
43
Admin. Rec. at 356.
44
Admin. Rec. at 364. (On January 11, 2011, plaintiff was given 15 tabs of Norco for
severe pain flare-ups.)
45
Admin. Rec. at 32.
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October 19, 2010. Secondly, on October 19, 2010, plaintiff’s physical exam of his lumbar
spine was not entirely normal as Dr. Merkel found that the “range of motion is guarded in
all directions.”46
Finally, the ALJ appeared to find plaintiff less than credible based on his daily
activities.47 This was not a clear and convincing reason because the activities that the ALJ
listed (doing some chores and exercise, visiting friends, going out to dinner, and going
fishing) do not translate into a finding that plaintiff could work full-time.
In sum, the ALJ erred in finding plaintiff less than credible.
Step four
At step four, the ALJ found that plaintiff could “perform past relevant work....”48
This finding was based on the vocational expert’s testimony. The ALJ stated that the
vocational expert “testified that based upon the claimant’s residual functional capacity, he
would be able to perform his past relevant work as project manager and estimator, both
as actually and generally performed.”49 This was error because the ALJ found that plaintiff
46
Admin. Rec. at 367.
47
Admin. Rec. at 31.
48
Admin. Rec. at 33.
49
Admin. Rec. at 33.
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had “the need for frequent changes in position”50 and the vocational expert testified that
neither the job of estimator nor project manager “would necessarily provide a frequent
position change.”51 The vocational expert testified that there would be no past relevant
work if there was a need for frequent changes in position.52
An ALJ’s step four determination is harmless error if “the ALJ properly concluded
as an alternative at step five that [the claimant] could perform work in the national and
regional economies.” Tommasetti, 533 F.3d at 1044. Here, the ALJ did not make any
alternative step five findings.53 Thus, the ALJ’s step four error was not harmless.
Remand
Because the ALJ erred as to Dr. Merkel’s opinion, plaintiffs’ credibility, and at step
four, the court must determine whether to remand this matter for further proceedings or
an award of benefits. “Remand for further administrative proceedings is appropriate if
enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th
50
Admin. Rec. at 30.
51
Admin. Rec. at 68.
52
Admin. Rec. at 68.
53
As defendant points out, the vocational expert testified that a hypothetical person
who had limitations consistent with the ALJ’s RFC could work as a customer service
representative, an information clerk, and a telephone order clerk. Admin. Rec. at 68-69.
But, the ALJ did not address this testimony in his decision.
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Cir. 2004) (emphasis omitted). “Conversely, where the record has been developed fully
and further administrative proceedings would serve no useful purpose, the district court
should remand for an immediate award of benefits.” Id.
More specifically, the district court should credit evidence that
was rejected during the administrative process and remand for
an immediate award of benefits if (1) the ALJ failed to provide
legally sufficient reasons for rejecting the evidence; (2) there
are no outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear from
the record that the ALJ would be required to find the claimant
disabled were such evidence credited.
Id. However, the court is required “to remand for further proceedings when, even though
all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole
creates serious doubt that a claimant is, in fact, disabled.” Garrison, 2014 WL 3397218, at
*21.
If plaintiff’s testimony were credited as true, then plaintiff would be disabled
because plaintiff testified that he has to lay down for 3-4 hours every day54 and the
vocational expert testified that someone with that limitation could not work.55 But, here,
an evaluation of the record as a whole, as it currently exists, creates serious doubt that
plaintiff is disabled. In this case, Dr. Merkel’s opinion needs to be clarified and the ALJ
may need to make step five findings, depending on what that clarification reveals. Thus,
54
Admin. Rec. at 54-55.
55
Admin. Rec. at 74.
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a remand for further proceedings is appropriate.
Conclusion
The decision of the Commissioner is reversed and this matter is remanded for
further proceedings.
DATED at Anchorage, Alaska, this 4th day of August, 2014.
/s/ H. Russel Holland
United States District Judge
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