Kline v. Colvin

Filing 32

ORDER granting 30 Motion to Amend/Correct. Signed by Judge David G Campbell on 1/12/2016.(DGC, nvo)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Glenn Kline, No. CV-14-08242-PCT-DGC Plaintiff, 10 11 v. 12 AMENDED ORDER Carolyn W. Colvin, 13 Defendant. 14 15 Pursuant to Plaintiff’s unopposed motion to amend (Doc. 30), 16 Plaintiff Robert Glenn Kline seeks review under 42 U.S.C. § 405(g) of the final 17 decision of the Commissioner of Social Security, which denied him disability insurance 18 benefits and supplemental security income under sections 216(i), 223(d), and 19 1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative 20 Law Judge (“ALJ”) was not supported by substantial evidence and was based on legal 21 error, the decision will be vacated and the matter remanded for an award of benefits. 22 I. Background. 23 Plaintiff is a 53 year old male who previously worked as a recreational vehicle 24 repairer. On March 29, 2010, Plaintiff applied for disability insurance benefits and 25 supplemental security income, alleging disability beginning December 2007.1 26 January 23, 2013, he appeared with his attorney and testified at a hearing before an ALJ. On 27 28 1 The ALJ’s opinion incorrectly stated that Plaintiff alleged disability beginning June 23, 2010, A.R. 25, which is after Plaintiff’s application date. 1 A vocational expert also testified. On March 13, 2013, the ALJ issued a decision that 2 Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals 3 Council denied Plaintiff’s request for review of the hearing decision, making the ALJ’s 4 decision the Commissioner’s final decision. 5 II. Legal Standard. 6 The district court reviews only those issues raised by the party challenging the 7 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 8 may set aside the Commissioner’s disability determination only if the determination is 9 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 10 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 11 preponderance, and relevant evidence that a reasonable person might accept as adequate 12 to support a conclusion considering the record as a whole. Id. In determining whether 13 substantial evidence supports a decision, the court must consider the record as a whole 14 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 15 As a general rule, “[w]here the evidence is susceptible to more than one rational 16 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 17 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 18 III. The ALJ’s Five-Step Evaluation Process. 19 To determine whether a claimant is disabled for purposes of the Social Security 20 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 21 the burden of proof on the first four steps, but the burden shifts to the Commissioner at 22 step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 23 At the first step, the ALJ determines whether the claimant is engaging in 24 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 25 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 26 has 27 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 28 three, the ALJ considers whether the claimant’s impairment or combination of a “severe” medically determinable -2- physical or mental impairment. 1 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 2 of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 3 be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 4 claimant’s residual functional capacity and determines whether the claimant is still 5 capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not 6 disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, 7 where he determines whether the claimant can perform any other work based on the 8 claimant’s residual functional capacity, age, education, and work experience. 9 § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 10 disabled. Id. 11 At step one, the ALJ found that Plaintiff met the insured status requirements of the 12 Social Security Act through December 31, 2014, and that he had not engaged in 13 substantial gainful activity since his alleged onset date. A.R. 22. At step two, the ALJ 14 found that Plaintiff had the following severe impairments: sleep apnea, degenerative disc 15 disease of the lumbar and thoracic spine, fibromyalgia, obesity, major depressive 16 disorder, anxiety disorder, “carpal tunnel syndrome status post release surgery,” and 17 “status post removal of hardware – right ankle.” Id. At step three, the ALJ determined 18 that Plaintiff did not have an impairment or combination of impairments that met or 19 medically equaled an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. 20 A.R. 28. At step four, the ALJ found that Plaintiff had the residual functional capacity to 21 perform: 22 23 24 25 26 27 light work as defined in 20 CFR 404.1567(b) except the claimant is able to occasionally balance, stoop, crouch, kneel, crawl, and climb ramps and stairs. The claimant should never operate foot controls with his right lower extremity, or be required to climb ladders, ropes, or scaffolds. The claimant should also avoid concentrated exposure to non-weather related extreme hot, extreme cold, pulmonary irritants, poorly ventilated areas, dangerous with moving mechanical parts, and exposure to unprotected heights. The claimant will also require a position having simple repetitive and routine tasks that 2can be learned through demonstration, without the reading of instructions. 28 2 A.R. 31. -3- 1 The ALJ further found Plaintiff unable to perform any of his past relevant work. A.R. 36. 2 At step five, the ALJ concluded that, considering Plaintiff’s age, education, work 3 experience, and residual functional capacity, there were jobs that existed in significant 4 numbers in the national economy that Plaintiff could perform, including “Photocopier 5 Operator,” “Routing Clerk,” and “Router.” A.R. 37. 6 IV. Analysis. 7 Plaintiff argues that the ALJ’s disability determination was defective for three 8 reasons: (1) the ALJ improperly rejected the medical opinions of Plaintiff’s treating 9 physician, (2) the ALJ improperly rejected the opinion of Plaintiff’s treating mental 10 health certified physician assistant, and (3) the ALJ improperly discounted Plaintiff’s 11 testimony. The Court will address each argument below. 12 A. 13 Plaintiff argues that the ALJ improperly discounted the medical opinions of 14 Dr. Henry H. Kaldenbaugh. Dr. Kaldenbaugh has been Plaintiff’s treating physician for 15 more than 20 years. 16 Dr. Kaldenbaugh consulted with Plaintiff on 30 occasions concerning Plaintiff’s 17 fibromyalgia and related health issues.3 18 medications to treat Plaintiff’s fibromyalgia and its symptoms.4 19 Opinion of Plaintiff’s Treating Physician. A.R. 61. During the time period relevant to this case, Dr. Kaldenbaugh also prescribed several In December 2010, Dr. Kaldenbaugh completed a Fibromyalgia Residual 20 Functional Capacity Questionnaire. 21 Plaintiff suffered from fibromyalgia and that this condition had lasted for 12 months or 22 could be expected to last for the next 12 months. A.R. 330. Dr. Kaldenbaugh reported 23 that Plaintiff’s signs and symptoms included multiple tender points, nonrestorative sleep, 24 25 26 27 28 A.R. 330-32. Dr. Kaldenbaugh indicated that frequent severe headaches, incoordination, severe fatigue, depression, numbness and 3 See Plaintiff Br., Doc. 19, at 13 n.13 (collecting administrative record citations documenting 30 consultations between Plaintiff and Dr. Kaldenbaugh). 4 See, e.g., A.R. 520 (prescribing Tramadol, an opioid drug used to treat chronic moderate to moderately severe pain); A.R. 281 (prescribing Savella, a drug approved by the Food and Drug Administration to treat fibromyalgia). -4- 1 tingling of upper extremities, vestibular dysfunction, cognitive impairment, and low back 2 pain. Id. He stated that Plaintiff experienced moderately severe pain (i.e., “[p]ain 3 seriously affect[ing] ability to function”) and severe fatigue (i.e., fatigue “which 4 precludes ability to function”), and that these symptoms were sufficiently severe to 5 interfere with Plaintiff’s attention and concentration “daily and almost constantly.” 6 A.R. 332. Dr. Kaldenbaugh further opined that, as a result of these symptoms, Plaintiff 7 would not be able to work on a regular and continuing basis. Id. Subsequently, in 8 summarizing Plaintiff’s January 22, 2013 consultation, Dr. Kaldenbaugh stated that 9 Plaintiff “is significantly disabled due to his current diagnoses and is unable to work even 10 part time.” A.R. 958. 11 The Ninth Circuit has held that the uncontradicted opinion of a claimant’s treating 12 physician can be rejected only for “clear and convincing” reasons. Lester v. Chater, 81 13 F.3d 821, 830 (9th Cir. 1995) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 14 1988)). Even if contradicted by the opinion of another doctor, a treating physician’s 15 opinion “can only be rejected for specific and legitimate reasons that are supported by 16 substantial evidence in the record.” Lester, 81 F.3d at 830-31 (internal citation omitted). 17 Under the “specific and legitimate reasons” standard, an ALJ must present “a detailed 18 and thorough summary of the facts and conflicting clinical evidence, stating his 19 interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 20 Cir. 1986). “[T]he ALJ must do more than offer [her] conclusions. [She] must set forth 21 [her] own interpretations and explain why they, rather than the doctors’, are correct.” 22 Embrey, 849 F.2d at 421-22. 23 The Court concludes that Dr. Kaldenbaugh’s opinion is properly evaluated under 24 the “clear and convincing” standard. Although the ALJ stated that Dr. Kaldenbaugh’s 25 opinion was contradicted by “the well-supported medical opinion of other sources as 26 mentioned in this opinion,” she did not explain which aspects of Dr. Kaldenbaugh’s 27 opinion were contradicted or by whom. A.R. 35. In her brief, the Commissioner asserts 28 that Dr. Kaldenbaugh’s “opinion of disability” is contradicted by Dr. Brecheisen. -5- 1 Doc. 24 at 8. 2 Dr. Kaldenbaugh’s opinion – namely, that Plaintiff experienced moderately severe pain 3 and severe fatigue which disrupted Plaintiff’s attention and concentration “daily and 4 almost constantly.” 5 fibromyalgia, a physical examination did not reveal “any objective medical evidence of 6 the claimant’s allegation of permanent disability.” A.R. 313. This statement is not 7 inconsistent with Dr. Kaldenbaugh’s conclusion that Plaintiff suffered moderately severe 8 pain and severe fatigue as the result of his fibromyalgia. See SSR 12-2p, 77 Fed. Reg. 9 43,640, 43,643 (recognizing that “objective medical evidence” will not always 10 substantiate the intensity and persistence of pain and other symptoms caused by 11 fibromyalgia); see also 20 C.F.R. § 404.1529(c)(3) (recognizing that a claimant may 12 suffer symptoms that “suggest a greater severity of impairment than can be shown by 13 objective medical evidence alone”). But Dr. Brecheisen did not contradict the pertinent aspects of Dr. Brecheisen reported that although Plaintiff suffered from 14 Even if Dr. Kaldenbaugh’s opinion were properly characterized as contradicted, 15 the ALJ’s rejection of the opinion would constitute reversible error because the ALJ did 16 not provide legitimate reasons for discounting it. The ALJ offered the following rationale 17 for her decision to accord “little weight” to Dr. Kaldenbaugh’s opinion: 18 19 20 21 22 23 24 25 26 27 [Dr. Kaldenbaugh’s] opinions are based solely on the claimant’s subjective pain complaint and while Dr. Kaldenbaugh has treated the claimant for his fibromyalgia pain, Dr. Kaldenbaugh is merely a primary care physician and not a rheumatologic specialist. . . . Further, while Dr. Kaldenbaugh diagnosed the claimant with fibromyalgia, upon digital palpitation, a positive pain response was listed at 8 of 18 tender point locations on December 30, 2010, the same day the opinion was completed, insufficient to warrant such a diagnosis under SSR 12-2p. . . . . Combined, as this opinion is conclusory, and unsupported by Dr. Kaldenbaugh’s own treating records, as well as the well-supported medical opinion of other sources as mentioned in this opinion, little weight was afforded to the medical source opinion offered by Dr. Kaldenbaugh and only [to] the extent it is consistent with the above analysis.5 The ALJ’s assertions that Dr. Kaldenbaugh’s opinion was “conclusory,” “unsupported by Dr. Kaldenbaugh’s own treating records,” and based “solely on the 28 5 A.R. 35. -6- 1 claimant’s subjective pain complaint” are not supported by the record, which shows that 2 Dr. Kaldenbaugh made a variety of objective findings consistent with his assessment of 3 Plaintiff’s limitations.6 The ALJ’s assertion that Dr. Kaldenbaugh’s digital palpitation is 4 insufficient to warrant a fibromyalgia diagnosis under SSR 12-2p (the Social Security 5 Administration’s Policy Interpretation Ruling on Evaluation of Fibromyalgia) is both 6 incorrect and irrelevant. It is incorrect because SSR 12-2p does not require any positive 7 tender point findings where the patient has a history of widespread pain and repeated 8 manifestations of six or more fibromyalgia symptoms not attributable to another malady. 9 See 77 Fed. Reg. at 43,642. It is irrelevant because the ALJ does not dispute that Plaintiff 10 suffers from fibromyalgia. A rheumatologist, Dr. Ken Epstein, diagnosed Plaintiff with 11 Fibromyalgia, A.R. 259, 261-63, and the ALJ herself found that Plaintiff suffers from 12 fibromyalgia, A.R. 27. Finally, the fact that Dr. Kaldenbaugh is not a rheumatologist is 13 also irrelevant. Neither the ALJ nor the Commissioner suggests that a rheumatologic 14 specialization is necessary to treat and evaluate the severity of Plaintiff’s pain and 15 fatigue. 16 Because the ALJ failed to provide legitimate reasons for rejecting 17 Dr. Kaldenbaugh’s opinion, let alone clear and convincing ones, the Commissioner’s 18 decision must be vacated.7 19 20 21 22 23 24 25 26 27 28 6 See, e.g., A.R. 334 (describing digital palpitation, which elicited pain from eight tender point sites); A.R. 280 (noting that patient was “moving slowly due to lower back pain and unable to squat due to quadriceps femoris weakness”); A.R. 352 (reporting that “[p]atient fell in home several days ago hitting knees”); A.R. 360 (patient appears “moderately uncomfortable” and “depressed”); A.R. 362 (reporting that Plaintiff “has fallen several times during the past week and feels dizzy with standing. Was bedridden for three days.”). 7 Although the ALJ’s failure to credit Dr. Kaldenbaugh’s medical opinion is dispositive, the Court will proceed to the remaining issues in this case in the interest of judicial economy. -7- 1 B. 2 Plaintiff’s second contention is that the ALJ improperly discounted the medical 3 opinion of Robert F. Nordman, PAC, who treated Plaintiff’s depression during the time 4 period relevant to this case.8 Opinion of Plaintiff’s Treating Physician Assistant. 5 Physician assistants are not considered “acceptable medical sources” for purposes 6 of documenting a medical impairment. 20 C.F.R. § 404.1513(a). They are, however, 7 considered “other sources” the Commissioner may rely on to show the severity of a 8 claimant’s impairments and how those impairments may affect her ability to work. 9 § 404.1513(d)(1). The ALJ may discount a physician assistant’s opinion by giving 10 “germane reasons” for doing so that are “substantiated by the record.” See Molina v. 11 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Under this standard, the ALJ may discount 12 a physician assistant’s opinion if, for example, it is conclusory (e.g., expressed in a 13 standardized check-the-box form that fails to provide supporting reasons or clinical 14 findings), inconsistent with the physician assistant’s treatment records, or inconsistent 15 with other objective medical evidence in the record. See id.; Bayliss v. Barnhart, 427 16 F.3d 1211, 1218 (9th Cir. 2005). 17 PAC Nordman provided Plaintiff with mental health care from October 2011 18 through at least December 2012. See, e.g., A.R. 803 (Oct. 4, 2011); A.R. 598 (Dec. 13, 19 2012). 20 depression. See, e.g., A.R. 803 (prescribing Remeron and Wellbutrin). In December 21 2012, Nordman completed a check-the-box questionnaire assessing Plaintiff’s ability to 22 perform work-related activity. See A.R. 592-93. Nordman indicated that Plaintiff’s 23 psychiatric status imposed a variety of “severe” and “moderately severe” limitations on 24 his ability to carry out work on a sustained basis in a routine work setting. See id. For 25 example, Nordman reported that Plaintiff’s condition had caused a severe deterioration in 26 Plaintiff’s personal habits, and would severely limit his ability to perform simple and During this time, Nordman prescribed a number of medications to treat 27 8 28 Although Nordman’s evaluation appears to be cosigned by Dr. Dan Graber, Plaintiff does not dispute that the evaluation is properly attributed to Nordman. See Doc. 19 at 12 n.12. -8- 1 repetitive tasks on a sustained basis. See id. Nordman included a handwritten note on the 2 questionnaire stating that Plaintiff “relies heavily on his spouse for app[ointments], 3 remember [sic] things, etc. Unlikely [Plaintiff] will be able to work again.” Id. 4 The ALJ determined that Nordman was not an acceptable medical source and 5 concluded that his opinion should be discounted because the “extreme set of limitations” 6 identified in his opinion was “not supported by the medical evidence offered by the 7 claimant.” A.R. 31. This was a germane reason for discounting Nordman’s conclusions. 8 See Bayliss, 427 F.3d at 1218 (conflict between objective medical evidence and a lay 9 person’s opinion is a germane reason for discounting that opinion). The record confirms 10 that at least some of Nordman’s findings were inconsistent with the objective medical 11 evidence. See, e.g., A.R. 310-11 (opinion of Dr. Mark Brecheisen, concluding Plaintiff 12 suffers from “mild depression” and “is able to perform basic activities of daily living 13 such as personal grooming and hygiene”). The Court concludes that the ALJ did not err 14 in discounting Nordman’s opinion. 15 C. 16 In evaluating the credibility of a claimant’s testimony regarding subjective pain or 17 other symptoms, the ALJ is required to engage in a two-step analysis. First, the ALJ 18 must determine whether the claimant presented objective medical evidence of an 19 impairment that could reasonably be expected to produce some degree of the pain or 20 other symptoms alleged. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). Second, 21 if the Plaintiff has made such a showing and there is no evidence of malingering, the ALJ 22 may reject the claimant’s testimony about the severity of the symptoms only by giving 23 specific, clear, and convincing reasons for the rejection. Id. Plaintiff’s Credibility. 24 Plaintiff testified that he stopped working due to pain and frequent falls. A.R. 50. 25 He stated: “I can’t sit down a long time without a lot of pain. And I can’t stand very 26 long. I have to be able to stand, sit, and lay. And there’s no job that’ll let me lay down 27 that I know of.” A.R. 51. He testified that he fell “a couple times a week.” A.R. 52. He 28 -9- 1 further testified that he was struggling with severe depression associated with his chronic 2 pain. A.R. 59. 3 The ALJ found that Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause these symptoms, but concluded that Plaintiff’s 5 statements regarding the intensity, persistence, and limiting effects of the symptoms were 6 not fully credible. A.R. 32. The ALJ gave three reasons for this conclusion. First, the 7 Plaintiff’s testimony was not fully supported by objective medical evidence. A.R. 33. 8 Second, Plaintiff’s testimony was undermined by his failure to pursue follow-up 9 rheumatologic care. A.R. 34. Third, Plaintiff’s testimony was undermined by his failure 10 to start exercising or quit smoking and by his testimony that he maintained a 11 woodworking hobby as a stress reliever and held yard sales at his home. Id. The Court 12 concludes that these do not constitute clear and convincing reasons for rejecting 13 Plaintiff’s testimony. 14 Plaintiff’s inability to point to objective medical evidence substantiating the 15 intensity of the pain and fatigue caused by his fibromyalgia is unremarkable, and does not 16 constitute grounds for discounting Plaintiff’s testimony. 17 contemplates that there will be cases where “objective medical evidence does not 18 substantiate a person’s statements about the intensity, persistence, and functionally 19 limiting effects” of his or her fibromyalgia symptoms, and instructs the ALJ to look 20 beyond the medical evidence to determine whether the claimant’s complaint is reliable in 21 such a case. 77 Fed. Reg. 43,640, 43,643. See also Preston v. Sec’y of Health & Human 22 Servs., 854 F.2d 815, 817-18 (6th Cir. 1988) (noting that physical examinations of 23 patients with fibromyalgia “will usually yield normal results – a full range of motion, no 24 joint swelling, as well as normal muscle strength and neurological reactions.”). SSR 12-2p specifically 25 The ALJ’s second reason – that Plaintiff did not pursue follow-up rheumatologic 26 care after being diagnosed by Dr. Epstein in 2010 – is not a clear and convincing reason 27 for discounting Plaintiff’s testimony. The Commissioner is correct that the amount of 28 treatment “is an important indicator of the intensity and persistence of [Plaintiff’s] - 10 - 1 symptoms.” Doc. 24 at 13 (citing 20 C.F.R. § 404.1529(c)(3)). But the record indicates 2 that Plaintiff’s sought extensive treatment for fibromyalgia and was prescribed several 3 medications for this condition and its symptoms. See, e.g., A.R. 281 (prescribing Savella 4 to treat fibromyalgia). 5 physician and not a rheumatologist, but the ALJ fails to explain why that fact detracts 6 from Plaintiff’s credibility. Plaintiff received this treatment from his general practice 7 The ALJ’s third reason – that Plaintiff’s other activities undermine his credibility – 8 also misses the mark. Although the Court absolutely agrees with the ALJ’s apparent 9 view that quitting smoking and taking up exercise would improve Plaintiff’s condition, 10 his failure to do so does not show that his testimony about pain and fatigue is suspect. 11 Making these lifestyle changes can be difficult for someone in good health; they are even 12 more challenging for a person suffering from sleep apnea, degenerative disc disease, 13 fibromyalgia, obesity, major depressive disorder, anxiety disorder, carpal tunnel 14 syndrome, and complications related to ankle surgery. Plaintiff’s failure to take these 15 clearly beneficial steps does not constitute a clear and convincing reason for concluding 16 that he was being untruthful about his pain and fatigue. 17 Nor does Plaintiff’s participation in woodworking and yard sales amount to a clear 18 and convincing reason to conclude that he was being untruthful. The ALJ did not find 19 that Plaintiff engaged in these activities on a regular basis or for a significant part of the 20 day, and the record indicates that Plaintiff spent far less time on these activities than 21 would be required to complete a typical work shift. See, e.g., A.R. 52-53 (Plaintiff 22 engaged in woodworking for “a half an hour every time, not [an] everyday-type [of] 23 thing”). Nor did the Commissioner find that Plaintiff’s alleged symptoms would have 24 precluded him from engaging in these activities on a limited basis. 25 The Court concludes that the ALJ failed to provide specific, clear, and convincing 26 reasons for rejecting Plaintiff’s testimony about the severity of his symptoms. Vasquez, 27 572 F.3d at 591. 28 - 11 - 1 V. Remedy. 2 Where an ALJ fails to provide adequate reasons for rejecting evidence of a 3 claimant’s disability, the Court must credit that evidence as true. Lester, 81 F.3d at 834. 4 An action should be remanded for an immediate award of benefits when the following 5 factors are satisfied: (1) the record has been fully developed and further administrative 6 proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally 7 sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; 8 and (3) the ALJ would be required to find the claimant disabled if the improperly 9 discredited evidence were credited as true. Garrison v. Colvin, 759 F.3d 995, 1020 (9th 10 Cir. 2014) (internal citations omitted). There is “flexibility” which allows “courts to 11 remand for further proceedings when, even though all conditions of the credit-as-true rule 12 are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant 13 is, in fact, disabled.” Garrison, 759 F.3d at 1020. 14 The relevant factors require the Court to remand for an award of benefits. The 15 ALJ failed to provide a legally sufficient reason for rejecting Dr. Kaldenbaugh’s medical 16 opinion, and this opinion, if credited as true, would require the ALJ to enter an award of 17 benefits. See A.R. 70 (testimony of Social Security Administration’s vocational expert, 18 concluding that Plaintiff would be precluded from doing any work if he suffered from the 19 limitations described in Dr. Kaldenbaugh’s medical opinion). The ALJ likewise failed to 20 provide a legally sufficient reason for rejecting Plaintiff’s symptom testimony, and this 21 testimony, if credited as true, would also require the ALJ to enter an award of benefits. 22 Finally, the Court’s independent evaluation of the record as a whole does not reveal any 23 substantial grounds for doubting that the claimant is disabled. Therefore, the Court 24 concludes that remand for an award of benefits is the appropriate remedy in this case. 25 26 27 28 - 12 - 1 2 IT IS ORDERED that Plaintiff’s unopposed motion to amend (Doc. 30) is granted. 3 IT IS ORDERED the final decision of the Commissioner of Social Security is 4 vacated and this case is remanded for an award of benefits based on Plaintiff’s 5 application dated July 6, 2010, with a finding of disability beginning June 23, 2010. 6 Dated this 12th day of January, 2016. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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