Valdez v. Astrue

Filing 19

*ORDER: Defendants decision denying benefits is reversed. The case is remanded to Defendant for further proceedings consistent with this Order. The Clerk is directed to enter judgment accordingly. Signed by Magistrate Judge Bernardo P Velasco on 7/10/12.(BAC) *Modified to reflect with opinion on 7/11/2012 (BAC).

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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 Ralph J. Valdez, 10 No. CV 11-0706-TUC-BPV Plaintiff, 11 v. 12 ORDER Michael J. Astrue, Commissioner of Social Security, 13 14 Defendant. 15 16 Plaintiff applied for disability insurance benefits (DIB) under Title II of the Social 17 Security Act (SSA), 42 U.S.C. §§ 416(i), 423(d), on January 17, 2008, alleging disability 18 due to irritable bowel syndrome, brain tumor, chronic gastroesophageal reflux disease, 19 20 sleep apnea, insomnia, and degenerative disc disease. Administrative Transcript (Tr.) 21 191-92, 239. The application was denied initially and on reconsideration, Tr. 93-94. 22 Plaintiff appeared and testified at a hearing held on August 14, 2009, at which time the 23 24 hearing was continued to permit Plaintiff to file an application for supplemental security 25 income (SSI) under Title XVI of the SSA, 42 U.S.C. §§ 1382, 1382(c). (Supplemental 26 Administrative Transcript (Supp. Tr. 729-40)) Plaintiff filed an SSI application on 27 28 August 18, 2009, Tr. 199-202, and the application was escalated to the hearing level, Tr. 1 98, 311. 2 Plaintiff appeared with counsel and testified at a supplemental administrative 3 hearing on February 25, 2010. Tr. 75-92. The ALJ issued a written decision on June 25, 4 5 2010, finding Plaintiff not disabled within the meaning of the SSA. Tr. 98-108. The 6 Appeals Council denied review. Tr. 114. Thereafter, Plaintiff, through a new attorney, 7 submitted additional arguments and evidence to the Appeals Council. On September 20, 8 2011, the ALJ’s decision became the final decision for purposes of judicial review under 9 10 42 U.S.C. § 405(g) when the Appeals Council set aside its earlier denial of review and 11 denied review again. Tr. 1. 12 Plaintiff now brings this action for review of the final decision of the 13 14 Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g). The United States 15 Magistrate Judge has received the written consent of both parties, and, accordingly, 16 presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73. 17 18 19 20 21 After considering the record before the Court and the parties’ briefing of the issues, the Court will reverse Defendant’s decision and remand for further proceedings. I. BACKGROUND Plaintiff alleges an onset of disability of July 1, 2001. Plaintiff was born in 1959, 22 23 and was 42 years old as of the date of the alleged onset of disability, and 46 years old on 24 his date last insured. Plaintiff received a GED in 1978. Plaintiff worked most recently 25 doing maintenance and custodial work. Plaintiff claims that because of his conditions he 26 27 is in pain, uses the bathroom on average 6 times per day with pain, often has accidents, is 28 -2- 1 2 tired and gets migraines. Plaintiff takes Vicodin and ibuprofen for pain, lisinopril for hypertension, AcipHex for GERD, and Testim for low testosterone. 3 II. STANDARD OF REVIEW 4 The Court has the “power to enter, upon the pleadings and transcript of the record, 5 6 a judgment affirming, modifying, or reversing the decision of the Commissioner of Social 7 Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The 8 court will set aside a denial of benefits only if the Commissioner's findings are based on 9 10 legal error or are not supported by substantial evidence in the record as a whole. See 42 11 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if 12 supported by substantial evidence, shall be conclusive”); Kail v. Heckler, 722 F.2d 1496, 13 14 1497 (9th Cir. 1984) (citing Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982), 15 Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir, 1982)); Smolen v. Chater, 80 F.3d 16 1273, 1279 (9th Cir. 1996); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 17 18 “Substantial evidence is such relevant evidence as a reasonable mind might accept as 19 adequate to support a conclusion.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 20 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “‘Substantial evidence’ 21 means ‘more than a scintilla,’ Perales, 402 U.S. at 401, but ‘less than a preponderance.’” 22 23 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).” Smolen, 80 F.3d at 24 1279. 25 III. DISCUSSION 26 27 28 Whether a claimant is disabled is determined using a five-step evaluation process. To establish disability, the claimant must show (1) he has not worked since the alleged -3- 1 disability onset date, (2) he has a severe impairment, and (3) his impairment meets or 2 equals a listed impairment or (4) his residual functional capacity (RFC) precludes him 3 from performing his past work. At step five, the Commissioner must show that the 4 5 claimant is able to perform other work. See 20 C.F.R. §§ 404.1520(a), 416.920(a). 6 In her decision, the ALJ found that Plaintiff met the insured status requirements of 7 the SSA through March 31, 2006. Tr. 100. The ALJ found that Plaintiff had not engaged 8 in substantial gainful activity since July 1, 2001. Tr. 100. At step two, the ALJ found 9 10 Plaintiff had irritable bowel syndrome, degenerative disc disease of the lumbar spine, and 11 pituitary tumor, all “severe” impairments pursuant to the regulations. Tr. 100. At step 12 three, the ALJ found Plaintiff did not have an impairment or combination of impairments 13 14 15 16 that met or medically equaled one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. Tr. 104. The ALJ found Plaintiff had the RFC to perform light exertional level work with 17 18 occasional postural functions and no work at unprotected heights, including the use of 19 ladders. Tr. 104. At step four, the ALJ found Plaintiff was unable to perform his past 20 relevant work as a maintenance worker/custodian. 21 Tr. 107. The ALJ considered testimony by a vocational expert in making a determination that there are jobs in the 22 23 national economy that Plaintiff could perform. Tr. 107-08. Therefore, the ALJ found 24 Plaintiff was not disabled since July 1, 2001 through the date of decision Tr. 108. 25 Plaintiff argues that (1) the ALJ erroneously evaluated Valdez’s recognized 26 27 irritable bowel syndrome, and (2) Dr. Kaapuraala’s opinion, submitted to the Appeals 28 -4- 1 2 3 Council, shows that substantial evidence does not support the ALJ’s residual functional capacity assessment and adverse credibility finding.1 The Commissioner responds, arguing that (1) the ALJ appropriately evaluated 4 5 Plaintiff’s irritable bowel syndrome, and (2) even in light of the additional evidence 6 submitted to the Appeals Council, the ALJ’s decision is supported by substantial 7 evidence. 8 A. Step Four: Residual Functional Capacity Determination 9 10 The ALJ found Plaintiff had the RFC to perform light exertional level work with 11 occasional postural functions and no work at unprotected heights. Tr. 104. In doing so, 12 the ALJ found Plaintiff’s testimony was not fully credible, that none of Plaintiff’s treating 13 14 physicians had completed a medical source statement on the Plaintiff’s ability to do 15 work-related physical activities, that a State agency physician’s assessment that there was 16 no evidence of a severe somatic medical impairment was given some weight, that the lay 17 18 witnesses’ statements did not provide any persuasive information showing Plaintiff able 19 to function to a lesser degree than described in the residual functional assessment. Tr. 20 104-06. 21 1. Evaluation of Medical Source Opinions 22 23 The ALJ acknowledged that Dr. Nestor, Plaintiff’s primary care physician, stated 24 that Plaintiff had been diagnosed with irritable bowel syndrome and chronic pain and 25 would be absent from school occasionally. (See Tr. 101, citing Dr. Nestor’s opinion at Tr. 26 27 28 1 Since Plaintiff filed his opening brief, Defendant has remedied Plaintiff’s additional point of error, that the administrative record does not include the transcript of the August 14, 2009 hearing. -5- 1 484) In formulating Plaintiff’s RFC, however, the ALJ stated that none of Plaintiff’s 2 treating physician’s had completed a medical source-statement on Plaintiff’s ability to do 3 work-related physical activities. Tr. 106. The Plaintiff asserts that the ALJ’s failure to 4 5 state any reason for rejecting Dr. Nestor’s opinion about missing school was error 6 because the opinion was by any reasonable account a medical source statement about 7 Plaintiff’s ability to work. (Doc. 15, at 11) 8 "[T]he ALJ may only reject a treating or examining physician's uncontradicted 9 10 medical opinion based on 'clear and convincing' reasons." Carmickle v. Comm’r, Soc. 11 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester v. Chater, 81 F.3d 821, 12 830-31 (9th Cir. 1995)). Clear and convincing reasons are also required to reject a treating 13 14 doctor’s ultimate conclusions. Lester, 81 F.3d at 830 (citing Embry v. Bowen, 849 F.2d 15 418, 422 (9th Cir. 1988)). Where such an opinion is contradicted, it may be rejected for 16 specific and legitimate reasons that are supported by substantial evidence in the record. 17 18 Carmickle, 533 F.3d at 1164 (citing Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 19 1983)). When rejecting the opinion of a treating physician, the ALJ can meet this "burden 20 by setting out a detailed and thorough summary of the facts and conflicting clinical 21 evidence, stating [her] interpretation thereof, and making findings." Magallanes v. 22 23 Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). Here, because Dr. Nestor’s opinion was 24 contradicted by the opinions of medical consultants Dr. Dodson and Dr. Kattapong, see 25 Tr. 408, 436, the ALJ must offer specific and legitimate reasons supported by substantial 26 27 28 evidence to reject Dr. Nestor’s opinion. The Commissioner agreed that the ALJ acknowledged Dr. Nestor’s opinion but -6- 1 did not discount it. The Commissioner does not dispute that Dr. Nestor’s opinion 2 amounted to a medical source statement, but rather asserted that Dr. Nestor’s opinion was 3 not inconsistent with the RFC, and the ALJ reasonably inferred that Dr. Nestor’s opinion 4 5 would not result in work related absences that precluded working on a full-time basis. 6 There is no basis in the record to support the Commissioner’s assertions. Dr. Nestor’s 7 opinion is inconsistent with the RFC, because the RFC did not include any limitation 8 regarding occasional absences. Neither is there any support in the record that the ALJ 9 10 considered Dr. Nestor’s opinion but made a finding that Dr. Nestor’s opinion would not 11 result in work related absences that precluded working on a full-time basis. This Court 12 may not deny benefits on grounds not invoked by the Commissioner in denying benefits 13 14 originally. Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001). The Court finds that 15 the ALJ erred by failing to identify specific and legitimate reasons supported by 16 substantial evidence to reject Dr. Nestor’s opinion. 17 18 2. Evaluation of Third Party Statements 19 Plaintiff submits that the ALJ explicitly or implicitly recognized that Dr. 20 Northington and Ms. Irey provided corroborating statements about Valdez’s absences 21 from school, but did not provide any specific or germane reasons for rejecting the 22 23 24 25 statements. Commissioner responds that while the ALJ discussed the opinions of the lay witnesses and found them unpersuasive, they were entitled to no weight in the first 26 27 instance as opinions on issues reserved to the Commissioner. 28 -7- 1 Dr. Northington worked with Plaintiff’s vocational rehabilitation counselor for 2 the purpose of counseling Plaintiff on readiness to start his own business. Tr. 279. Dr. 3 Northington stated that he met with Plaintiff over several years, beginning in 2001, and 4 5 observed that Plaintiff had “continuous battles with his health and related mental health 6 problems.” Dr. Northington noted substantial physical problems including irritable bowel 7 syndrome, a high degree of instability, and the ability on “good days” to maintain regular 8 attendance. Tr. 279. Ultimately, Dr. Northington opined that he believed Plaintiff was 9 10 “unemployable” because of his “physical and mental health issues he deals with day-to- 11 day.” Tr. 280. 12 Ms. Irey, a Disabled Student Resources Specialist at Pima Community College, 13 14 worked with Plaintiff after he began attending Pima College in fall, 2001. Ms. Irey noted 15 that, in addition to Plaintiff’s gastrointestinal difficulties, Plaintiff struggled with back 16 and neck pain along with migraines that made “for a difficult time in getting through all 17 18 of his classes,” however, “instructors were pretty good about working around his 19 absences due to the major health issues he was having.” Ms. Irey also noted that Plaintiff 20 “was sick a vast majority of the time” and that although Plaintiff was “a dedicated student 21 who worked hard and pushed through the pain” his “health issues [were] a tremendous 22 23 24 25 barrier in being able to do what he would like to do.” Tr. 282. Though the Commissioner acknowledges that lay witness testimony as to a claimant’s symptoms or how an impairment affects the claimant’s ability to work is 26 27 28 competent evidence that the ALJ must take into account, Commissioner argued that there was no reason for the ALJ to cite reasons for finding Dr. Northington and Ms. Irey not -8- 1 2 3 credible, as their statements, like Dr. Nestor’s opinion were consistent with the residual functional capacity. The Court disagrees. Like Dr. Nestor’s opinion, Dr. Northington’s and Ms. Irey’s opinions both 4 5 corroborated Plaintiff’s contention that he would be absent from work because he was 6 absent from school due to health problems, and because of his difficulties attending 7 vocational rehabilitation counseling due to continuous battles with his health. Even if Dr. 8 Northington’s opinion as to Plaintiff’s “employability” is disregarded, Dr. Northington’s 9 10 observations from working with Plaintiff, that Plaintiff had the ability to maintain regular 11 attendance on “good days,” but manifested a “high degree of instability” and would only 12 complete two or three rehabilitation sessions then fail to make the next appointment, 13 14 corroborated Plaintiff’s assertion that he would be absent from work due to health 15 problems. There is no support for the ALJ’s cursory conclusion that these opinions are 16 “unpersuasive.” The opinions are compelling evidence that Plaintiff was motivated, but 17 18 unable to achieve attendance goals for college or vocational rehabilitation due to issues 19 with his health. Absent any convincing explanation supported by substantial evidence for 20 why the ALJ found these statements “unpersuasive,” this Court finds that it was error to 21 reject these statements. 22 23 The Commissioner argues that even if the ALJ erred by failing to state reasons for 24 not finding the lay witnesses’ opinions credible, any error was harmless, because the ALJ 25 reasonably found Plaintiff was not credible and the same reasons for finding Plaintiff not 26 27 28 credible applied to the lay witnesses. (Doc. 17, at 13) The ALJ is not required to discuss every witness’s testimony on an individualized, witness-by-witness basis, and may point -9- 1 to the germane reasons for rejecting testimony by one witness when rejecting similar 2 testimony by a different witness. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012); 3 see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (ALJ 4 5 did not err by rejecting evidence based on the same reasons the ALJ discounted 6 Plaintiff’s allegations). In this case, however, the ALJ did not point to the same rationale 7 used to discredit Plaintiff’s testimony as a reason the ALJ rejected the lay witnesses’ 8 statements. The ALJ only stated that the statements did not provide any persuasive 9 10 information. Because the ALJ did not reject the statements by pointing to the same 11 rationale she applied to Plaintiff’s testimony, this Court may not rely on such a rationale 12 to affirm the Commissioner’s decision. See Pinto, 249 F.3d at 847-48 (the district court 13 14 may not affirm the ALJ's decision “on a ground that the [ALJ] did not invoke in making 15 [her] decision[.]”); Accord Varney v. Sec’y Health & Human Serv. (Varney II), 859 F.2d 16 1396, 1399 (9th Cir.1988) (“there may exist valid grounds on which to discredit a 17 18 claimant's pain testimony.... But if grounds for such a finding exist, it is both reasonable 19 and desirable to require the ALJ to articulate them in the original decision.”) (internal 20 quotes and citation omitted). Furthermore, even if the ALJ were not required to state that 21 she was applying the same rationale to reject the lay witnesses’ statements as she applied 22 23 to reject the Plaintiff’s credibility, the error could only be considered harmless if “the 24 ALJ's well-supported reasons for rejecting the claimant's testimony apply equally well to 25 the lay witnesses’ testimony.” Molina, 674 F.3d at 1117. It is not evident in this case that 26 27 28 the same rationale used to discredit the Plaintiff’s testimony would apply equally well to the lay witnesses. For example, the lay witnesses cannot be found to have only sought - 10 - 1 minimal conservative treatment, one of the rationales used to find Plaintiff less than 2 credible, as a basis for rejecting their testimony. Furthermore, though the Commissioner 3 may have intended to argue that the lay witnesses’ statements were based on Plaintiff’s 4 5 own statements which have been discredited, the ALJ did not make such a finding, and 6 furthermore there is no support in the record for such a finding. Both lay witnesses’ 7 statements were based on the lay witnesses’ personal experiences and interactions with 8 Plaintiff in an educational setting, not on Plaintiff’s self-reporting of his inability to 9 10 11 12 maintain adequate attendance. Finally, the ALJ’s failure to properly reject both Dr. Nestor’s opinion and the lay witnesses’ statements was not harmless as to the ultimate issue of disability. An ALJ’s 13 14 error is harmless only where it is “inconsequential to the ultimate nondisability 15 determination.” Molina, 674 F.3d at 1115 (quoting Carmickle, 533 F.3d at 1162; 16 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008); Robbins v. Comm’r, Soc. Sec. 17 18 Admin., 466 F.3d 880, 885 (9th Cir. 2006); Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 19 1050, 1055 (9th Cir. 2006)). An ALJ’s failure to consider testimony at issue cannot be 20 deemed inconsequential to the ultimate nondisability determination when the testimony 21 identifies limitations not considered by the ALJ, is uncontradicted by the record, and is 22 23 highly probative of Plaintiff’s ability to work in a competitive environment. See Molina, 24 674 F.3d at 1115 (discussing the Ninth Circuit’s application of harmless error principles 25 as explained in Stout, 454 F.3d 1050.) “In evaluating whether the claimant satisfies the 26 27 28 disability criteria, the Commissioner must evaluate the claimant's ‘ability to work on a sustained basis.’” Lester, 81 F.3d at 833 (quoting 20 C.F.R. § 404.1512(a)). Both the lay - 11 - 1 witnesses’ statements and Dr. Nestor’s opinion are highly probative of Plaintiff’s “ability 2 to work on a sustained basis.” The ALJ did not consider these statements in addressing 3 Plaintiff’s ability to work on a sustained basis, and these statements are uncontradicted by 4 5 6 7 8 the record. Accordingly, the ALJ’s rejection of these opinions and statements was not harmless. 3. Evaluation of Plaintiff’s Activities Plaintiff argues that Plaintiff’s sedentary activities were erroneously cited as 9 10 support for the ALJ’s RFC assessment that Plaintiff could perform light work. 11 Additionally, Plaintiff argues that the ALJ’s analysis was unreasonable because the 12 activity upon which the ALJ relied, Plaintiff’s attendance at college, did not reflect 13 14 15 16 sustained work activity, but rather showed that Plaintiff would miss school or work occasionally. In discussing Plaintiff’s symptoms, and whether they were credible, the ALJ 17 18 commented that Plaintiff attended college, and, “in regard to the claimant’s complaints of 19 back pain” that Plaintiff was spending long hours on the computer, and, thus it could be 20 inferred that Plaintiff was able to attend classes, prepare assignments, and take 21 examination. The ALJ concluded that “[t]hese studies demonstrate the ability to 22 23 24 25 concentrate, write, research, maintain a schedule and complete tasks on time.” Tr. 106. The ALJ did not err in relying on Plaintiff’s ability to attend class, prepare assignments and take examinations as evidence of Plaintiff’s ability to concentrate, write, 26 27 28 research, maintain a schedule and complete tasks on time. Though Plaintiff asserts that the ALJ’s analysis was unreasonable, the ALJ did not, as argued by Plaintiff, cite - 12 - 1 2 3 Plaintiff’s ability to complete college coursework as evidence that Plaintiff had the ability to perform light work as opposed to sedentary work. The ALJ rejected Plaintiff’s claims of disabling symptoms for a variety of reasons 4 5 such as noncompliance, normal objective tests, minimal conservative treatment, failure to 6 follow through with physical therapy, failure to seek mental health treatment despite 7 stress-related diarrhea, and inconsistencies in the record. Tr. 105-06. Plaintiff did not 8 argue that the ALJ’s credibility analysis was erroneous, thus this Court does not reach 9 10 11 12 that issue. Plaintiff does argue that the ALJ’s notation that Plaintiff’s diarrhea was “stress related” as an “unclear notation,” meaning possibly that stress caused diarrhea, in which 13 14 case “the ALJ’s [RFC] assessment should have included a limitation on stress,” or that 15 “[i]f the ALJ denied that Plaintiff had diarrhea because he was not treated for mental 16 illness, this was unreasonable because an ALJ may not disregard exacerbations of that 17 18 impairment caused by stress.” (Doc. 15, at 15) The Court finds, however, that the ALJ 19 cited this as an example of Plaintiff’s failure to seek treatment of a condition that was 20 causing exacerbation of his symptoms, an allowable consideration when assessing a 21 claimant’s credibility. See Smolen, 80 F.3d at 1284 (in assessing claimant’s testimony the 22 23 ALJ may consider an “unexplained or inadequately explained failure to seek treatment or 24 to follow a prescribed course of treatment”); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 25 1989) (same); Tommasetti, 533 F.3d at 1039 (in assessing a claimant’s credibility, the 26 27 28 ALJ properly inferred that Claimant’s pain was not as all-disabling as reported when claimant did not seek an aggressive treatment program”). - 13 - 4. Substantial Evidence 1 After the ALJ’s determination, Plaintiff submitted to the Appeals Council a June 2 3 2011 statement from treating physician Dr. Kaapuraala: 4 . . . I reviewed the records from my patient, Ralph Valdez . . . from the Ortiz Community Health Center in 2006. At that time, he had not yet been diagnosed with the pituitary adenoma, but was experiencing significant fatigue that was attributed to low testosterone. In hindsight, this was likely a result of the pituitary adenoma. In my opinion, based on my review of the medical records and my treatment of Mr. Valdez, the significant fatigue he was experiencing precluded him from performing any full time employment prior to March 2006. In short, I do believe that Mr. Valdez was disabled prior to March 2006. 5 6 7 8 9 10 11 Tr. 719. 12 The Appeals Council determined that this information did not provide a basis for 13 14 changing the ALJ’s decision because the opinion was on a matter reserved for the 15 Commissioner and, additionally, the opinion was inconsistent with the longitudinal 16 record. Tr. 2. 17 Though not bound by a treating physician’s opinion on the ultimate issue of 18 19 disability, such opinions cannot be rejected without presenting clear and convincing 20 reasons for doing so. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (quoting 21 Montijo v. Sec’y Health & Human Serv., 729 F.2d 599, 601 (9th Cir. 1984) (per curiam)); 22 23 see also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (stating that “reasons for 24 rejecting a treating doctor’s credible opinion on disability are comparable to those 25 required for rejecting a treating doctor’s medical opinion”); Lester v. Chater, 81 F.3d at 26 27 28 830. The Appeals Council did not identify in what manner it found this opinion to be - 14 - 1 inconsistent with the longitudinal record, and thus this Court cannot easily assess this 2 finding. The Court’s review of the record, however, supports the Appeals Council’s 3 finding. 4 5 There is evidence in the record that Plaintiff reported symptoms of fatigue, 6 daytime sleepiness, and decreased energy or lethargy, beginning in June, 2006 and 7 continuing through July, 2009. Tr. 294, 512, 538-39, 557, 644-46. Plaintiff’s symptoms 8 were attributed to sleep apnea, which was itself determined to be explained by Plaintiff’s 9 10 tumor, Tr. 539, 541, and treated successfully to at least some extent, through the 11 application of testosterone gel beginning in August, 2006, Tr. 646, see also Tr. 492 12 (reporting no fatigue at neurology clinic appointment on June 6, 2007), though Plaintiff’s 13 14 reports of fatigue continued even after testosterone treatment, Tr. 541, 587, 707. Though 15 the severity of Plaintiff’s fatigue cannot be comprehensively assessed by the medical 16 record, it is evident that Plaintiff’s fatigue, decreased energy, and daytime sleepiness 17 18 19 20 21 were serious enough to merit the use of diagnostic sleep studies, treatment for Plaintiff’s sleep apnea, and treatment of Plaintiff’s low testosterone levels. In fact, the ALJ noted, but did not discount, evidence that Plaintiff reported lethargy and decreased energy levels, was being followed by Dr. Newman for decreased 22 23 testosterone levels, and was being treated with Testim, but that serum testosterone levels 24 continued to go down. Tr. 102-03. Thus, the Appeals Council’s statement that Dr. 25 Kaapuraala’s opinion was inconsistent with the longitudinal record was not supported by 26 27 28 the agency’s prior determination. Dr. Kaapuraala gave his opinion of the cause and effect of Plaintiff’s fatigue, prior - 15 - 1 to 2006. The evidence in the record though, is that Plaintiff began seeking treatment for 2 fatigue only in 2006. It is not clear how long Plaintiff was experiencing significant 3 fatigue prior to his first reports of fatigue in June, 2006. Thus, in this manner, Dr. 4 5 Kaapuraala’s opinion is inconsistent with this Court’s review of the medical record. It is 6 not clear that this is what the Appeals Council meant by noting inconsistencies with the 7 longitudinal record. A finding that there was no evidence of fatigue prior to 2006 could 8 have been simply stated by the Appeals Council, but this is not what they stated. 9 10 Furthermore, the Appeals Council did not consider all of the factors set forth in 20 11 C.F.R. § 404.1527(c)(2)-(6) for evaluation of a medical source statement. Determination 12 of the weight to afford Dr. Kaapuraala’s opinion requires consideration of (1) the 13 14 frequency of examination and the length, nature, and extent of the treatment relationship, 15 (2) the evidence in support of Dr. Kaapuraala’s opinion, (3) the consistency of the 16 opinion and the record as a whole, (4) whether Dr. Kaapuraala is a specialist, and, (5) 17 18 19 20 21 other factors that would support or contradict Dr. Kaapuraala’s opinion. 20 C.F.R. § 404.1527(c)(2)-(6). Though the Commissioner suggests that a retrospective opinion, such as Dr. Kaapuraala’s may be given less weight when issued after the period at issue with no prior 22 23 assessment of the claimant’s limitations, (Doc. 17, at 17-18)(citing Johnson v. Shalala, 24 60 F.3d 1428, 1432 (9th Cir. 1995)), this was not the basis for the Appeals Council’s 25 rejection of the opinion, and this Court may not deny benefits on grounds not invoked by 26 27 28 the Commissioner in denying benefits originally. See Pinto, 249 F.3d at 847-48. Because of the inconsistencies in the record and Dr. Kaapuraala’s opinion, as well - 16 - 1 2 3 as the Ninth Circuit’s instruction that the Court will not credit the opinion as a matter of law, but will remand for its proper evaluation. IV. APPROPRIATE REMEDY ON REMAND 4 5 Plaintiff argues that the appropriate remedy is to remand the case for an award of 6 benefits. The decision to remand for further development of the record or for an award of 7 benefits is within the discretion of the Court. 42 U.S.C. § 405(g); Harman v. Apfel, 211 8 F.3d 1172, 1173-74 (9th Cir. 2000). “Where the Commissioner fails to provide adequate 9 10 reasons for rejecting the opinion of a treating or examining physician, we credit that 11 opinion ‘as a matter of law.’” Lester, 81 F.3d at 834 (quoting Hammock v. Bowen, 879 12 F.2d 498, 502 (9th Cir. 1989); Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) 13 14 15 16 (“Because the ALJ failed to provide legally sufficient reasons for rejecting Benecke's testimony and her treating physicians' opinions, we credit the evidence as true.”). This Circuit has held that an action should be remanded for an award of benefits 17 18 where the ALJ has failed to provide legally sufficient reasons for rejecting evidence, no 19 outstanding issue remains that must be resolved before a determination of disability can 20 be made, and it is clear from the record that the ALJ would be required to find the 21 claimant disabled were the rejected evidence credited as true. Smolen, 80 F.3d at 1292. 22 23 Remand for further proceedings is appropriate in this case because even after 24 applying the credit as true rule to improperly rejected evidence, it is not clear from the 25 record that the ALJ would be required to find Plaintiff disabled. Here there are issues that 26 27 require resolution before a finding of disability can be made. 28 - 17 - The ALJ improperly rejected Dr. Nestor’s opinion that Plaintiff would be absent 1 2 from school occasionally due to the impairments of irritable bowel syndrome and chronic 3 pain. The ALJ further improperly rejected the lay witness statement of Ms. Irey, that 4 5 Plaintiff “was sick a vast majority of the time” and would have “a difficult time in getting 6 through all of his classes,” and Dr. Northington’s opinion that Plaintiff’s continuous 7 battles with his health problems, including a high degree of instability and the ability only 8 on “good days” to maintain regular attendance, would render Plaintiff unemployable. 9 10 Finally, the Appeals Council improperly rejected the opinion of physician Dr. Kaapuraala 11 that “the significant fatigue [Plaintiff] was experiencing precluded him from performing 12 full time employment prior to March 2006.” 13 When questioned at the administrative hearing, the vocational expert identified no 14 15 jobs in response to the following question: 16 Now let’s assume based on his prior testimony and some indication from Dr. Newman in particular, he’s got problems with lack of energy, overall fatigue and weakness, so that he’s going to have difficulty reporting to work on a reliable basis. He’s likely to miss more than two days a month. He may get into work and not be able to complete a day, so he’s not able to work eight hours a day, five days a week consistently. 17 18 19 20 21 22 23 Tr. 90. Though Dr. Nestor’s opinion and the lay witnesses’ statements are consistent with this hypothetical which establishes that Plaintiff is disabled, it is not clear from Dr. 24 25 Nestor’s opinion how many days a month Plaintiff would either miss work, or show up 26 for work but not be able to complete a day. Additionally, Dr. Nestor’s opinion was dated 27 from 2005, but Plaintiff alleges an onset date in 2001. Thus, it is unclear from the record 28 - 18 - 1 that the ALJ would be required to find Plaintiff disabled for the entire claimed period of 2 disability even if the evidence is credited as true. Similarly, though the lay witnesses’ 3 statements establish that Plaintiff’s absences due to health problems significantly 4 5 interfered with his attempt to return to school and to complete a vocational rehabilitation 6 program as early as 2001, they do not establish how many days a month Plaintiff would 7 miss work or have to leave work early. 8 Thus, there are still outstanding issues regarding Plaintiff’s ability to perform 9 10 sustained work and, assuming Plaintiff is found to be incapable of performing sustained 11 work, a determination of a disability onset date. A remand for further proceedings would 12 allow the ALJ to consider Dr. Nestor’s opinion and the lay witnesses’ statements, 13 14 properly evaluate Dr. Kaapuraala’s opinion, which the ALJ did not have the opportunity 15 to assess, see Harman v. Apfel, 211 F.3d 1172, 1180 (“While we properly may consider 16 the additional evidence presented to the Appeals Council in determining whether the 17 18 Commissioner's denial of benefits is supported by substantial evidence, it is another 19 matter to hold on the basis of evidence that the ALJ has had no opportunity to evaluate 20 that Appellant is entitled to benefits as a matter of law.”), and to obtain additional 21 evidence if necessary to adequately develop the record in regard to a determination of 22 23 Plaintiff’s ability to work on a sustainable basis. 24 25 Accordingly, // 26 27 28 // // - 19 - 1 IT IS ORDERED: 2 1. Defendant’s decision denying benefits is reversed. 3 2. The case is remanded to Defendant for further proceedings consistent with 4 5 6 7 this Order. 3. The Clerk is directed to enter judgment accordingly. Dated this 10th day of July, 2012. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 20 -

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