Tomlinson v. Colvin

Filing 26

ORDER - Reversing the decision of the Commissioner of Social Security and remanding the case to the Commissioner for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The ALJ shall issue a new decision that i s consistent with the applicable law as set forth in this Order. The ALJ, however, is not precluded from reopening the hearing to receive additional evidence if deemed appropriate. The Clerk of Court is directed to enter judgment accordingly. (See Order for complete details.) Signed by Magistrate Judge Eileen S Willett on 11/18/2015. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sandra C. Tomlinson,

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Plaintiff,

No. CV-14-08190-PCT-ESW
ORDER

v.

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Carolyn W. Colvin, Acting Commissioner
of the Social Security Administration,

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Defendant.

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Pending before the Court is Plaintiff Sandra C. Tomlinson’s (“Plaintiff”) appeal of
the Social Security Administration’s (“Social Security”) denial of her claim for disability
benefits. Plaintiff filed applications for disability insurance benefits and supplemental
security income under Titles II and XVI of the Social Security Act. Plaintiff alleges
disability beginning on August 2, 2002.
This Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42 U.S.C. §§
405(g), 1383(c). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the case
for a rehearing. Both parties have consented to the exercise of U.S. Magistrate Judge
jurisdiction. (Doc. 12). After reviewing the Administrative Record (“A.R.”), Plaintiff’s

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Opening Brief (Doc. 23), and Defendant’s Response Brief (Doc. 25), 1 the Court finds that
the Administrative Law Judge’s (“ALJ”) decision contains harmful legal error. For the
reasons explained in Section II below, the decision is reversed and the case is remanded
to the Commissioner of Social Security for further administrative proceedings.

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I. LEGAL STANDARDS

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A. Disability Analysis: Five-Step Evaluation

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The Social Security Act (the “Act”) provides for disability insurance benefits to

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those who have contributed to the Social Security program and who suffer from a

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physical or mental disability. 42 U.S.C. § 423(a)(1).

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Supplemental Security Income to certain individuals who are aged 65 or older, blind, or

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disabled and have limited income. 42 U.S.C. § 1382. To be eligible for benefits based

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on an alleged disability, the claimant must show that he or she suffers from a medically

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determinable physical or mental impairment that prohibits him or her from engaging in

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any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A).

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The claimant must also show that the impairment is expected to cause death or last for a

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continuous period of at least 12 months. Id.

The

Act

also

provides

for

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To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an

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analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R.

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§§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the first four

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steps: 2
Step One: Is the claimant engaged in “substantial gainful
activity”? If so, the analysis ends and disability benefits are
denied. Otherwise, the ALJ proceeds to step two.

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Step Two: Does the claimant have a medically severe
impairment or combination of impairments? A severe

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Plaintiff did not file a Reply.

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Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
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impairment is one which significantly limits the claimant’s
physical or mental ability to do basic work activities. 20
C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not
have a severe impairment or combination of impairments,
disability benefits are denied at this step. Otherwise, the ALJ
proceeds to step three.

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Step Three: Is the impairment equivalent to one of a number
of listed impairments that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity? 20
C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets
or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. If the impairment is
not one that is presumed to be disabling, the ALJ proceeds to
the fourth step of the analysis.

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Step Four: Does the impairment prevent the claimant from
performing work which the claimant performed in the past?
If not, the claimant is “not disabled” and disability benefits
are denied without continuing the analysis. 20 C.F.R. §§
404.1520(f), 416.920(f). Otherwise, the ALJ proceeds to the
last step.

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If the analysis proceeds to the final question, the burden of proof shifts to the
Commissioner: 3

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Step Five: Can the claimant perform other work in the
national economy in light of his or her age, education, and
work experience? The claimant is entitled to disability
benefits only if he or she is unable to perform other work. 20
C.F.R. §§ 404.1520(g), 416.920(g). Social Security is
responsible for providing evidence that demonstrates that
other work exists in significant numbers in the national
economy that the claimant can do, given the claimant’s
residual functional capacity, age, education, and work
experience. Id.

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Parra, 481 F.3d at 746.
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B. Standard of Review Applicable to ALJ’s Determination
The Court must affirm an ALJ’s decision if it is supported by substantial evidence
and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial
evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197,
229 (1938)). It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id.
In determining whether substantial evidence supports the ALJ’s decision, the
Court considers the record as a whole, weighing both the evidence that supports and
detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient
evidence to support the ALJ’s determination, the Court cannot substitute its own
determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th
Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it
is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving
conflicts and ambiguities in the evidence and determining credibility. Magallanes, 881
F.2d at 750; see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court also considers the harmless error doctrine when reviewing an ALJ’s
decision.

This doctrine provides that an ALJ’s decision need not be remanded or

reversed if it is clear from the record that the error is “inconsequential to the ultimate
nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there
remains substantial evidence supporting the ALJ’s decision and the error “does not
negate the validity of the ALJ’s ultimate conclusion”) (citations omitted).

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II. PLAINTIFF’S APPEAL
A. Procedural Background
Plaintiff, who was born in 1971, has worked as a hotel desk clerk and dispatcher.
(A.R. 36, 54, 198).

In 2002, Plaintiff’s then ten-year old son was involved in an

automobile accident that left him severely brain-damaged and disabled. (A.R. 36-37).
Plaintiff was not in the accident. (A.R. 47).
On April 27, 2006, Plaintiff filed a Title II application for disability insurance
benefits and a Title XVI application for supplemental security income benefits. (A.R.
198-202, 203-09). Plaintiff’s applications allege that on August 2, 2002, she became
unable to work due to the following impairments: (i) bipolar disorder; (ii) post-traumatic
stress disorder (“PTSD”); (iii) shoulder injuries; and (iv) diabetes. (A.R. 126). Social
Security denied both applications on October 31, 2006. (A.R. 114-16, 117-20). On
October 12, 2007, upon Plaintiff’s request for reconsideration, Social Security affirmed
the denial of Plaintiff’s application. (A.R. 123-25, 126-29). Plaintiff then requested a
hearing before an ALJ. (A.R. 131). The ALJ who conducted the hearing denied Plaintiff
benefits in February 2010. (A.R. 88-105). Upon Plaintiff’s request for review, the
Appeals Council remanded the case for another hearing. (A.R. 106-13).
On January 23, 2013, another ALJ held Plaintiff’s second administrative hearing.
(A.R. 33-58). In her March 15, 2013 decision, the ALJ found that Plaintiff is not
disabled. (A.R. 11-32). The Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision the final decision of the Social Security Commissioner. (A.R.
1-7). On October 7, 2014, Plaintiff filed a Complaint (Doc. 1) pursuant to 42 U.S.C. §
405(g) requesting judicial review and reversal of the ALJ’s decision.
B. The ALJ’s Application of the Five-Step Disability Analysis
The ALJ completed all five steps of the disability analysis before finding that
Plaintiff is not disabled and entitled to disability benefits.

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1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since September 30, 2007. (A.R. 16). Neither party disputes this determination.

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2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments

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The ALJ found that Plaintiff has the following severe impairments: (i) morbid

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obesity; (ii) asthma; (iii) bipolar disorder; (iv) PTSD; (v) nightmare disorder and panic

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disorder with agoraphobia; (vi) major depressive disorder; (vii) diabetes mellitus; and

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(viii) peripheral neuropathy. (A.R. 17). The ALJ’s step two determination is undisputed.

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3. Step Three: Presence of Listed Impairment(s)

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The ALJ determined that Plaintiff does not have an impairment or combination of

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impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404,

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Subpart P, Appendix 1 of the Social Security regulations. (A.R. 18). Neither party

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disputes the ALJ’s determination at this step.

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4. Step Four: Capacity to Perform Past Relevant Work

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The ALJ found that Plaintiff has retained the residual functional capacity (“RFC”)

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to perform light exertional work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),

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except that:

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[Plaintiff] must avoid exposure to flumes [sic], odors, dusts,
gases and high humidity; can only occasionally climb ladders,
ropes and scaffolds; is limited to occupations requiring no
more than simple, routine, repetitive tasks involving only
simple work related decisions and relatively few work place
changes; and her work can require no more than occasional
interaction with others.
(A.R. 19-20).

After considering the testimony of a vocational expert (“VE”) and

Plaintiff’s RFC, the ALJ determined that Plaintiff is unable to perform her past relevant
work as a front desk clerk and dispatcher. (A.R. 23).
Plaintiff argues that the ALJ erred at step four by improperly weighing the
opinions of certain medical sources and discrediting Plaintiff’s subjective complaints.

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(Doc. 23 at 2). The Court finds that the ALJ committed harmful legal error by failing to
provide (i) specific and legitimate reasons for giving little weight to Drs. Gene Berg and
Rogelio Naranja’s opinions and (ii) clear and convincing reasons for rejecting Plaintiff’s
testimony regarding her symptoms.
5. Step Five: Capacity to Perform Other Work
At the final step, the ALJ found that Plaintiff is able to perform other jobs existing
in significant numbers in the national economy. (A.R. 24). In making this finding, the
ALJ relied on the Medical-Vocational Guidelines. Because the ALJ committed harmful
legal error at step four in assessing Plaintiff’s RFC, the ALJ’s determination at step five
is also erroneous.
C. Plaintiff’s Challenge at Step Four

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1. The ALJ Failed to Give Specific and Legitimate Reasons for
Discounting Drs. Gene Berg and Rogelio Naranja’s Opinions

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In weighing medical source opinions in Social Security cases, there are three

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categories of physicians: (i) treating physicians, who actually treat the claimant; (ii)

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examining physicians, who examine but do not treat the claimant; and (iii) non-

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examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81

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F.3d 821, 830 (9th Cir. 1995). An ALJ must provide clear and convincing reasons that

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are supported by substantial evidence for rejecting the uncontradicted opinion of a

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treating or examining doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216

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(9th Cir. 2005). An ALJ cannot reject a treating or examining physician’s opinion in

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favor of another physician’s opinion without first providing specific and legitimate

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reasons that are supported by substantial evidence, such as finding that the physician’s

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opinion is inconsistent with and not supported by the record as a whole. Bayliss, 427

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F.3d at 1216; 20 C.F.R. § 404.1527(c)(4) (an ALJ must consider whether an opinion is

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consistent with the record as a whole); see also Batson v. Comm’r of Soc. Sec. Admin.,

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359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.

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2002); Tommasetti, 533 F.3d at 1041 (finding it not improper for an ALJ to reject a
treating physician’s opinion that is inconsistent with the record).

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i. Opinions of Dr. Shelly Woodward and Non-Examining
Psychologists

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In her Opening Brief, Plaintiff argues that the ALJ committed harmful error by

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failing to address the opinions of Dr. Shelly Woodward and non-examining psychologists

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Drs. Adrianne Galluci and Stephen Fair. (Doc. 23 at 21-22). As Defendants point out in

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their Response (Doc. 25 at 20-24), the ALJ did address those opinions. 4 (A.R. 17, 19,

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23). Plaintiff has not made any alternative argument regarding the ALJ’s assignment of

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weight to Drs. Woodward, Galluci, and Fair’s opinions. The Court thus deems the issue

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abandoned. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (deeming abandoned

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all issues raised in a brief not supported by argument); Grewal v. Choudhury, 377 F.

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App’x 617 (9th Cir. 2010) (undeveloped issue not supported by argument is deemed

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abandoned).
ii. Dr. Gene Berg

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On November 8, 2012, psychologist Dr. Gene Berg examined Plaintiff pursuant to

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a referral from Plaintiff’s attorney. (A.R. 978-988). Dr. Berg explained that Plaintiff

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obtained a score of forty-seven on the Beck Depression Inventory, “which is consistent

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with a severe level of depression and significant personal discomfort.” (A.R. 987).

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Based on his examination and review of Plaintiff’s medical records, Dr. Berg opined that

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Plaintiff would miss more than three days of work each month. (A.R. 984). Dr. Berg

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also opined that Plaintiff “would not be able to work a full time job in the next year.”

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(A.R. 987). Because Dr. Berg’s medical opinion was contradicted by another acceptable

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medical source, 5 the Court must determine whether the ALJ offered specific and

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legitimate reasons for discounting Dr. Berg’s medical opinion.

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Although the ALJ’s decision does not explicitly mention Drs. Galluci and Fair’s
names, the decision references Exhibits 3F-5F and 15F-16F, which contain Drs. Galluci
and Fair’s reports. (A.R. 396-426, 481-98).
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Dr. Berg’s opinion is contradicted by Drs. Galluci and Fair, who opined that
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The ALJ gave two reasons for giving Dr. Berg’s opinion little weight. The ALJ
first discounted Dr. Berg’s findings because they “were based on a one-time evaluation”
of Plaintiff. However, the opinions of examining physicians and psychologists must be
considered by the ALJ. See 20 C.F.R. § 404.1527; Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). Examining medical sources frequently only evaluate a claimant on one
occasion. Hence, the mere fact that an examining medical source conducts a “one-time
evaluation” is not itself a valid reason for rejecting that source’s opinion. See Henderson
v. Astrue, 634 F.Supp.2d 1182, 1192 (E.D. Wash. 2009) (holding that an ALJ's
implication that a medical source’s opinion should be rejected in part because they are
based on one-time exams is erroneous).
Defendants urge the Court to liberally construe the ALJ’s first reason for
discounting Dr. Berg’s opinion, arguing that the ALJ “properly determined that in light of
the record as a whole Dr. Berg’s opinion was unpersuasive because it was ‘based on a
one-time evaluation of the claimant.’” (Doc. 25 at 20). The Ninth Circuit has clearly
instructed that a court “cannot substitute [the court’s] conclusions for the ALJ’s, or
speculate as to the grounds for the ALJ’s conclusions. Although the ALJ’s analysis need
not be extensive, the ALJ must provide some reasoning in order for [the court] to
meaningfully determine whether the ALJ’s conclusions were supported by substantial
evidence.” Brown-Hunter v. Colvin, --F.3d ----, 2015 WL 6684997, *7 (9th Cir. Nov. 3,
2015) (quoting Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1103 (9th Cir. 2014).
Defendants are correct that an ALJ does not need not “recite magic words.” Yet the ALJ
in this case stated in a single sentence that Dr. Berg’s assessment is discounted “because
the findings therein were based on a one-time evaluation of [Plaintiff].” (A.R. 23). The
ALJ failed to provide any additional analysis that would allow the Court to meaningfully
review the ALJ’s conclusion without speculating as to the ALJ’s reasoning. The Court
finds that the ALJ’s first reason for discounting Dr. Berg’s opinion is not specific and
legitimate.

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Plaintiff could perform simple work on a full-time basis. (A.R. 398, 497).
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The ALJ’s second reason for discounting Dr. Berg’s opinion is that “Dr. Berg’s
evaluation took place at the request of counsel and [Plaintiff] was referred to the doctor
by counsel’s law firm . . . .” (A.R. 23). Defendants do not address Plaintiff’s argument
that this is an invalid reason for discounting a medical source’s opinion. Indeed, the
Ninth Circuit has held that “in the absence of other evidence to undermine the credibility
of a medical report, the purpose for which the report was obtained does not provide a
legitimate basis for rejecting it.” Reddick, 157 F.3d at 726; Lester, 81 F.3d 832 (absent
“evidence of actual improprieties,” examining doctor’s findings entitled to no less weight
when examination procured by the claimant than when obtained by the Commissioner).
Accordingly, the fact that Dr. Berg’s evaluation was obtained at the request of Plaintiff’s
counsel is not a sufficient sole basis for discounting Dr. Berg’s opinion.
For the above reasons, the Court concludes that the ALJ failed to provide specific
and legitimate reasons for discounting Dr. Berg’s opinion.
iii. Dr. Rogelio Naranja

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Similar to Dr. Berg, Plaintiff’s treating psychiatrist Dr. Rogelio Naranja opined in

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2012 that Plaintiff’s mental condition impedes her ability to sustain full-time

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employment. (A.R. 345). Dr. Naranja also opined that Plaintiff would miss more than

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three days of work each month. (A.R. 859). The ALJ discounted those opinions on two

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grounds. As Dr. Naranja’s opinions are contradicted, those grounds must be specific and

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legitimate. The ALJ first stated that Dr. Naranja’s “assigned limitations simply are not

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consistent with [Plaintiff’s] activities of daily living during the adjudicatory period.”

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(A.R. 23). The ALJ does not provide any supporting analysis for this boilerplate finding.

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Moreover, no other portion of the ALJ’s decision adequately explains how Plaintiff’s

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daily activities are inconsistent with Plaintiff’s alleged disability. As a result, the ALJ’s

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conclusory finding is not a specific and legitimate basis on which to discount Dr.

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Naranja’s opinion. See Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (“an

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ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing

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more than ignoring it . . . or criticizing it with boilerplate language that fails to offer a
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substantive basis for his conclusion”); Haggerty v. Astrue, 474 F. App’x 619 (9th Cir.
2012) (finding that an ALJ provided valid reasons for discounting a medical opinion
where the ALJ was “specific when he compiled a long list of [the claimant’s] activities,
which included driving, cooking, and volunteering at a fire department”) (emphasis
added).
The ALJ also discounted Dr. Naranja’s assessments by stating that “Dr. Naranja’s
own progress notes typically have [Plaintiff’s] GAF score at 60, which is indicative of
mild-moderate mental impairments.” (A.R. 22-23). This statement fails to acknowledge
that Plaintiff’s GAF score has varied significantly throughout her psychiatric treatment,
ranging from 40-70. (See, e.g., A.R. 803, 805, 807, 809, 852, 937, 941, 942, 987). As of
the date of his 2012 assessment, Dr. Naranja indicated that Plaintiff had a GAF score of
40. (A.R. 852). The Ninth Circuit has explained that “[c]ycles of improvement and
debilitating symptoms are a common occurrence, and in such circumstances it is error for
an ALJ to pick out a few isolated instances of improvement over a period of months or
years and to treat them as a basis for concluding a claimant is capable of working.”
Garrison, 759 F.3d at 1017. Plaintiff’s past GAF scores may be a valid consideration in
weighing Dr. Naranja’s opinions. However, given the significant variability in Plaintiff’s
GAF scores, the Court does not find that Plaintiff’s past GAF scores of 60 are a sufficient
sole basis to discount Dr. Naranja’s assessment of Plaintiff during a time in which she
had a much lower GAF score. Accordingly, the Court finds that the ALJ failed to
provide specific and legitimate reasons for discounting Dr. Naranja’s opinions.
The ALJ’s errors in discounting Drs. Berg and Naranja’s opinions alone warrant
remand. The Court, however, also finds that the ALJ committed harmful legal error in
rejecting Plaintiff’s testimony. Those errors are explained in the following section.

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2. The ALJ Failed to Give Clear and Convincing Reasons for Rejecting
Plaintiff’s Testimony Regarding Plaintiff’s Alleged Impairments

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When evaluating the credibility of a claimant’s testimony regarding subjective

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pain or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572

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F.3d 586, 591 (9th Cir. 2009). In the first step, 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.”
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant does not have
to show that the impairment could reasonably be expected to cause the severity of the
symptoms. Rather, a claimant must only show that it could have caused some degree of
the symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

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If a claimant meets the first step, and there is no evidence of malingering, the ALJ
can only reject a claimant’s testimony about the severity of his or her symptoms by
offering clear and convincing reasons that are supported by substantial evidence in the
record. Lingenfelter, 504 F.3d at 1036. The ALJ cannot rely on general findings. The
ALJ must identify specifically what testimony is not credible and what evidence
undermines the claimant’s complaints. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir.
2010).

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

including: a claimant’s reputation for truthfulness, prior inconsistent statements
concerning the symptoms, unexplained or inadequately explained failure to seek
treatment, and the claimant’s daily activities. Smolen, 80 F.3d at 1284; see also 20
C.F.R. § 404.1529(c)(4) (Social Security must consider whether there are conflicts
between a claimant’s statements and the rest of the evidence). In addition, although the
lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a
factor that the ALJ can consider in his or her credibility analysis. Burch v. Barnhart, 400
F.3d 676 (9th Cir. 2005); see also 20 C.F.R. 404.1529(c); Rollins v. Massanari, 261 F.3d
853, 857 (9th Cir. 2001).
Here, Plaintiff argues that the ALJ erred in discrediting Plaintiff’s testimony
regarding her subjective symptoms.

In Section 5 of the ALJ’s decision, the ALJ

explained the two-step process to be used in determining the credibility of a claimant’s
symptoms. (A.R. 20-21). After summarizing Plaintiff’s symptom testimony, the ALJ
stated that Plaintiff’s medically determinable impairments could reasonably be expected
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to cause the alleged symptoms, but Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of the symptoms are not entirely credible. (A.R. 21-22).
The ALJ then provided her reasons for discrediting Plaintiff’s testimony.

ALJ did not find that Plaintiff was malingering, those reasons must be clear and
convincing and supported by substantial evidence in the record. Lingenfelter, 504 F.3d at
1036.

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i.

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Because the

Alleged Symptoms
Impairments

Pertaining

to

Plaintiff’s

Physical

The ALJ’s reasons for discrediting Plaintiff’s testimony regarding her alleged
symptoms pertaining to her physical impairments include the following:

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1. The ALJ found that “[a] close review of the record reveals that it was

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[Plaintiff’s] decision to care for her disabled son.” (A.R. 21). While the reason why a

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claimant ceased working can be a valid consideration in determining the claimant’s

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credibility, the ALJ does not discuss the precise evidence in the record that led to the

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ALJ’s conclusion. This invites impermissible speculation as to the grounds for the ALJ’s

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conclusion. Brown-Hunter, 2015 WL 6684997 at *7.

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2. Regarding Plaintiff’s diabetes mellitus, the ALJ found that it is not disabling

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when Plaintiff is compliant with prescribed treatment. (A.R. 21). The ALJ cited medical

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records from Dr. Mushtaq Syed indicating that after Plaintiff lost weight on her

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prescribed diet, Dr. Syed was able to discontinue Plaintiff’s insulin and other diabetic

21

medications. (A.R. 21-22). The ALJ also discussed that pulmonary testing revealed

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“fairly extensive respiratory functioning when a bronchodilator is administered . . . .”

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(A.R. 22). An ALJ may discredit a claimant’s testimony that an impairment is disabling

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if the impairment can be controlled with medication. Warre v. Comm’r, 439 F.3d 1001,

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1006 (9th Cir. 2006). Here, however, Plaintiff has alleged a number of physical and

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mental impairments aside from diabetes and asthma. The Court therefore does not find

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that the above findings are clear and convincing reasons to discredit Plaintiff’s testimony

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3. As to Plaintiff’s alleged disabling pain, the ALJ found that the “evidence
indicates that many of these problems appear to relate to the strain of moving her son.
This pain should have been significantly improved by the hoist installed in her house and
the provision of an in-house nurse for eight hours a day.” (A.R. 22). Yet Plaintiff
testified that she injured her back when moving her disabled son. (A.R. 40, 45-46). Dr.
Shelly Woodward’s August 12, 2006 report states that “[a] recently installed hoist has
helped with lifting [Plaintiff’s son], but the pain continues.” (A.R. 385). The ALJ does
not discuss evidence in the record that suggests that Plaintiff’s back has healed since
Plaintiff no longer has to lift her son.

An ALJ’s speculation does not constitute

substantial evidence, let alone clear and convincing evidence. See Edlund v. Massanari,
253 F.3d 1152, 1159 (9th Cir. 2001) (an ALJ’s “concerns and speculation” regarding the
effects of a claimant’s substance abuse did not constitute substantial evidence supporting
the rejection of examining psychologist’s opinion); Lester v. Chater, 81 F.3d 821, 832
(9th Cir. 1995) (holding that an ALJ improperly rejected treating and examining
physicians’ opinions where the rejection was based on “unsupported and unwarranted
speculation”).
4. The ALJ engaged in further speculation when explaining that she did not find
credible Plaintiff’s testimony that she can lift a maximum of ten pounds because “[i]t
would seem that [Plaintiff] would have to provide a significant amount of care for her son
when a third party is not present to assist her.” (A.R. 22). Plaintiff, however, asserted
that she relies on the assistance of her husband, who is her disabled son’s father. (A.R.
38, 871). Plaintiff has stated that even though separated from her husband, he is often at
her home and is also available for assistance at night if needed. (A.R. 42, 870). Plaintiff
has also indicated that she relies on the assistance of her mother. (A.R. 268, 303). In
fact, Plaintiff lives in a trailer on her parent’s property. (A.R. 303). The ALJ did not

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attempt to determine how much assistance and what kind of assistance third parties
provide Plaintiff.6 Again, speculation is not clear and convincing evidence.
5. The ALJ stated that “none of [Plaintiff’s] treatment providers ever concluded
that her back pain warranted physical therapy, steroidal injections or surgery.” (A.R. 22).
This finding is not supported by the record. Medical reports show that Plaintiff received
steroid injections in her back on June 29, 2011, July 15, 2011, and August 4, 2011 after
the provider determined that Plaintiff may benefit from the procedures. (A.R. 1004,
1006, 1008). A 2008 medical record notes that Plaintiff “has had physical therapy for her
back and neck pain, which she states made her symptoms worse.” (A.R. 567). A 2003
medical record states that Plaintiff tried chiropractic therapy for her back pain, which did
not help. (A.R. 645).
6. The ALJ recounted that Plaintiff “testified that she has not lifted [her son]
since 2002; however, this in contradiction to a progress note from a physician in October
2004 in which the doctor reports that [Plaintiff] has been the ‘primary caretaker’ of her
son for the past two years.”

(A.R. 22).

Contradictions between the record and a

claimant’s testimony can be a valid reason for discrediting the claimant’s symptom
testimony. Smolen, 80 F.3d at 1284. But the ALJ’s example fails to show such a
contradiction. Plaintiff testified that she stopped lifting her son in 2002 because she
acquired equipment that would do the lifting for her. (A.R. 38-39). Thus, Plaintiff’s
statement in October 2004 that she is her son’s “primary caretaker” does not contradict
her statement that she has not lifted her son since 2002. While the Court has found a
number of contradictions between Plaintiff’s testimony and evidence in the record, 7 the
Court cannot affirm an ALJ’s decision on a ground not asserted by the ALJ. Brown-

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6

For instance, the ALJ asked Plaintiff how often the nurse assists. (A.R. 38).
When Plaintiff stated “approximately 40 hours a week,” the ALJ asked about the
weekend. Plaintiff answered that “[her son’s] father will come over,” but the ALJ did not
ask when the son’s father arrives, departs, or how much help he provides. (Id.).
7

For instance, a November 2006 medical record states that Plaintiff “pick[ed] up
son out of bed and fell.” (A.R. 554).
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Hunter, 2015 WL 6684997, *4 (“A reviewing court may not make independent findings
based on the evidence before the ALJ to conclude that the error was harmless.”).
7. The ALJ found that as of October 2004, Plaintiff “denied any physical
limitations (1F/18) and all diagnostic has been rather unremarkable (exhibits 6F, 7F, 13F
and 18F).” (A.R. 22). Although the ALJ correctly noted that Plaintiff denied physical
limitations during Plaintiff’s 2004 intake at Behavioral Healthcare Options, the ALJ does
not explain her reasons for concluding that this single record from 2004 outweighs the
many records from 2003 through 2012 that do suggest that Plaintiff has some physical
limitations. See Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (an ALJ
cannot selectively rely on some entries in a claimant’s medical records while ignoring
others). Moreover, the fact that diagnostic tests have been unremarkable is a valid
consideration in determining Plaintiff’s credibility, but it cannot be the sole basis for
discounting pain testimony. Rollins, 261 F.3d at 857.
8.

The ALJ’s credibility analysis also discussed Plaintiff’s purported daily

activities. The ALJ stated that Plaintiff told Dr. Shelly Woodward that Plaintiff “remains
very much involved in the daily care of her son, including getting him ready for and
taking him to school.” (A.R. 22).

The ALJ also discussed that Plaintiff provided

physical therapy for her disabled son. (A.R. 22, 386). Finally, the ALJ discussed
Plaintiff’s statements that Plaintiff “still cares for her son and does many household
activities.” (A.R. 22, 513). The ALJ’s first statement mischaracterizes the evidence
because Dr. Woodward’s report actually states that Plaintiff’s mother takes Plaintiff’s son
to school, which is across the street from Plaintiff and her mother’s homes. (A.R. 386).
Moreover, all of the statements ignore the significant amount of evidence in the record
indicating that Plaintiff (i) relies on the assistance of her mother, husband, and a near fulltime nurse and (ii) needs multiple periods of rest throughout the day. (A.R. 41, 267).
The ALJ has not adequately explained how Plaintiff’s daily activities translate to the
ability to sustain competitive employment on a full-time basis. Garrison, 759 F.3d at
1016 (stating that the Ninth Circuit has “repeatedly warned that ALJs must be especially
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cautious in concluding that daily activities are inconsistent with testimony about pain,
because impairments that would unquestionably preclude work and all the pressures of a
workplace environment will often be consistent with doing more than merely resting in
bed all day”).

5

ii.

6
7
8

Alleged Symptoms
Impairments

Pertaining

to

Plaintiff’s

Mental

The ALJ’s reasons for discrediting Plaintiff’s testimony regarding her alleged
symptoms pertaining to her mental impairments include the following:

9

1. The ALJ discussed that in late 2004, Plaintiff’s GAF was 65. (A.R. 22). This

10

fails to acknowledge that Plaintiff’s GAF scores have varied, ranging from 40 to 70. For

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instance, Dr. Naranja stated in November 2010 that Plaintiff’s highest GAF for the past

12

year was 55. (A.R. 785). To reiterate, an ALJ cannot selectively rely on some entries in

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a claimant’s records while ignoring others. See Holohan, 246 F.3d at 1207-08.

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2. The ALJ noted that “as of September 2005, Plaintiff was showing “no overt

15

psychiatric signs or symptoms. [Plaintiff] was able to go on a make-a-wish cruise to the

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Bahamas, and she was taking no psychotropic medications.” (A.R. 22). Contrary to this

17

assertion, however, the record shows that Plaintiff was taking psychotropic medications

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as of September 2005. A September 13, 2005 progress note from Behavioral Healthcare

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Options states “Pt’s psych. meds were continued” and lists Lamictal, Fluoxetine, and

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Seroquel. (A.R. 370). Moreover, Plaintiff testified at the administrative hearing that her

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disabled son’s nurse attended the cruise to assist with her son’s care. (A.R. 44). While a

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claimant’s ability to travel may in some instances discredit a claimant’s testimony, 8 the

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ALJ does not explain how Plaintiff’s participation in a one-time cruise with her husband, 9

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8

In support of the ALJ’s reference to Plaintiff’s cruise in the ALJ’s adverse
credibility finding, Defendant cites to Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir.
2008). The claimant in Tommasetti, however, traveled to “Venezuela for an extended
time to care for an ailing sister.” Id. at 1040. This is in stark contrast to a one-time
leisure cruise.
9

While not clear from the administrative hearing transcript, a medical record
states that Plaintiff’s husband attended the cruise. (A.R. 370).
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disabled son, and her son’s nurse contradicts Plaintiff’s testimony that she is unable to
sustain full-time employment. The Ninth Circuit has clearly instructed that disability
claimants should not be penalized for attempting to lead normal lives in the face of their
limitations. Reddick, 157 F.3d at 722.
3. The ALJ stated that the “record suggests” that Plaintiff did not develop
difficulties with anxiety and panic attacks until March 2006. (A.R. 22). The ALJ does
not discuss the precise evidence that led to this conclusion and such evidence is not
obvious based on the Court’s review of the record. For instance, a medical record
indicates that Plaintiff has been on Prozac since at least 2003. (A.R. 685). Plaintiff
reported that she attempted suicide two years after her son’s 2002 accident. (A.R. 386).
Finally, a September 26, 2006 consultative examination states that Plaintiff “is being
treated for bipolar disorder for two years for post stress.” (A.R. 431) (emphasis added).
For the above reasons, the Court finds that the ALJ failed to provide clear and
convincing reasons for discrediting Plaintiff’s testimony regarding her symptoms. The
following section explains why it is appropriate to remand the case for further
proceedings rather than for an award of benefits.
3. Remand for Further Proceedings is Appropriate
Ninth Circuit jurisprudence “requires remand for further proceedings in all but the
rarest cases.” Treichler, 775 F.3d at 1101 n.5. The Ninth Circuit, however, has adopted
a test to determine when a case should be remanded for payment of benefits in cases
where an ALJ has improperly rejected claimant testimony or medical opinion evidence.
Id. at 1100-01; Garrison, 759 F.3d at 1020. This test is commonly referred to as the
“credit-as-true” rule, which consists of the following three factors:
1. Has the ALJ failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion? Treichler, 775 F.3d at 1100-01.

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2. Has the record been fully developed, are there outstanding
issues that must be resolved before a disability
determination can be made, or would further administrative

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proceedings be useful? Id. at 1101. To clarify this factor, the
Ninth Circuit has stated that “[w]here there is conflicting
evidence, and not all essential factual issues have been
resolved, a remand for an award of benefits is
inappropriate.” Id.

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3. If the improperly discredited evidence were credited as true,
would the ALJ be required to find the claimant disabled on
remand? Id.; Garrison, 759 F.3d at 1020.

7

Where a court has found that a claimant has failed to satisfy one of the factors of

8

the credit-as-true rule, the court does not need to address the remaining factors.

9

Treichler, 775 F.3d at 1107 (declining to address final step of the rule after determining

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that the claimant has failed to satisfy the second step). Moreover, even if all three factors

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are met, a court retains the discretion to remand a case for additional evidence or to

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award benefits. Id. at 1101-02. A court may remand for further proceedings “when the

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record as a whole creates serious doubt as to whether the claimant is, in fact, disabled

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within the meaning of the Social Security Act.”

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Treichler, the Ninth Circuit noted that “[w]here an ALJ makes a legal error, but the

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record is uncertain and ambiguous, the proper approach is to remand the case to the

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agency.” 775 F.3d at 1105.

Garrison, 759 F.3d at 1021.

In

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Here, the vocational expert testified that Plaintiff would not be able to maintain

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employment if Plaintiff’s impairments would cause (i) Plaintiff to miss three days of

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work per month or (ii) be off task approximately fifteen percent of the work day. (A.R.

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56). Drs. Berg and Naranja, whose opinions were improperly discounted by the ALJ,

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concluded that Plaintiff’s mental impairments would cause Plaintiff to miss more than

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three days of work each month. (A.R. 859, 984). The record raises crucial questions as

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to whether Plaintiff’s impairments would in fact cause her to miss three days of work per

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month or be off task approximately fifteen percent of the work day. The record also

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raises crucial questions as to whether Plaintiff’s impairments may be properly controlled

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with diet and medication. The record is filled with conflicting and ambiguous evidence.

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For example:
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1. It is unclear exactly how much care Plaintiff provides for her son and whether
such care translates to the ability to sustain competitive, full-time employment. The
record suggests that the nurse for Plaintiff’s son only works every Tuesday through
Friday and every other Monday. (A.R. 870). This begs the question as to who provides
the substantive care to Plaintiff’s son on the nurse’s off days. Plaintiff’s assertion that
she relies on the help of her mother conflicts with a January 28, 2009 progress note
stating that Plaintiff is “taking care of [her] mother + father other than [her] son.” (A.R.
959). Plaintiff has also stated that “her son needs her to care for him.” (A.R. 873). In
April 2004, Dr. Neeta Soni reported that Plaintiff “could not attend the diabetic classes as
she has to take care of a 12-year old son who is chronically sick.” (A.R. 661).

A

February 2012 medical record noted that Plaintiff “is a caregiver for her son . . . .” (A.R.
914). The record also suggests that Plaintiff may have cleaned her entire home on her
own as it indicated that Plaintiff stated “I wanted to clean my house and get it done.”
(Id.).
2. On the other hand, it was assessed during a June 2011 medical appointment
that Plaintiff “can no longer physically care for her son and the nurse and her husband are
helpful.” (A.R. 885). Plaintiff stated that her mother helps schedule appointments for
Plaintiff and Plaintiff’s son. (A.R. 268). Dr. Woodward opined that Plaintiff would not
be capable of managing disability benefits in Plaintiff’s own interest. (A.R. 394).

In

addition, Plaintiff reported to Dr. Woodward the “chronic presence of suicidal ideation”
and feeling “scared to be around people.” (A.R. 387). Plaintiff stated that her distress
regarding Dr. Woodward’s evaluation caused her to be more than fifteen minutes late to
the appointment. (A.R. 385, 387).
3. It is unclear from the record whether Plaintiff’s alleged impairments necessitate
Plaintiff’s frequents naps and rest periods. (A.R. 267). During a February 2012 medical
appointment, Plaintiff attributed “her sedated state to staying up with her son last night.”
(A.R. 914).

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4. In December 2008, Plaintiff stated that a back brace “seems to help [with her
back pain] at times.” (A.R. 564). Plaintiff also stated that “medication seems to help
manage” her pain. (Id.).
5. A 2005 medical record states that Plaintiff’s “depression is being handled by
her psychiatrist. It is stable on current medications. . . . Back pain is stable on current
medical regime. . . . The patient is progressively working out and feeling better. Diabetes
is very well controlled . . . .” (A.R. 596).
6. In September 2011, Plaintiff stated that she “believes her mood is relatively
stable.”

(A.R. 898).

In November 2011, Plaintiff denied all side effects to her

medications and “report[ed] being happy with the relief of [signs and symptoms] with
these medications.” (A.R. 906). Plaintiff also reported no issues with falling or staying
asleep, energy level, or appetite.

(Id.).

This is corroborated by an overnight

polysomnogram conducted in 2007 that “demonstrated normal sleep efficiency of 90%.”
(A.R. 571).
7. Plaintiff also reported no issues with falling or staying asleep in January 2012.
(A.R. 910). Plaintiff reported taking her medications everyday and stated “I feel like I
am doing a lot better. I don’t have anxiety or feel like I am going to explode.” (Id.).
8.

A June 2012 progress note stated that Plaintiff’s “blood pressure is well

controlled with medication” and that Plaintiff’s “blood sugar is also well controlled.”
(A.R. 929). The note also stated that Plaintiff takes Lasix and “now her leg edema is
much better, it has much much improved from before.” (Id.).
9. Plaintiff has admitted to “drinking excessive amount[s] of fluids.” (A.R. 895).
It is unclear how this may be affecting her health.
The above factual conflicts and questions are significant and should be resolved
through further administrative proceedings. See Treichler, 775 F.3d at 1105 (finding that
crucial questions as to the extent of a claimant’s impairment given inconsistencies
between the claimant’s testimony and the medical evidence in the record are “exactly the
sort of issues that should be remanded to the agency for further proceedings”); see also
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Greger v. Barnhart 464 F.3d 968, 972 (9th Cir. 2006) (stating that so long as the ALJ
“specifically identif[ies] what testimony is credible and what testimony undermines the
claimant’s complaints . . . questions of credibility and resolutions of conflicts in the
testimony are functions solely of the [ALJ]”) (citation omitted).
III. CONCLUSION
Based on the foregoing, the Court finds that the decision of the Commissioner of
Social Security is not supported by substantial evidence in the record as a whole and is
not based on proper legal standards. Accordingly,
IT IS ORDERED reversing the decision of the Commissioner of Social Security
and remanding the case to the Commissioner for further administrative proceedings
pursuant to sentence four of 42 U.S.C. § 405(g). The ALJ shall issue a new decision that
is consistent with the applicable law as set forth in this Order. The ALJ, however, is not
precluded from reopening the hearing to receive additional evidence if deemed
appropriate. The Clerk of Court is directed to enter judgment accordingly.
Dated this 18th day of November, 2015.

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