Hayden v. Colvin

Filing 19

ORDER, The Commissioner's decision denying benefits is REVERSED; and this action is REMANDED to the Commissioner on an open record for further proceedings. The Clerk of Court is DIRECTED to enter Judgment accordingly and to close its file in this matter. Signed by Magistrate Judge Bernardo P Velasco on 3/25/2016. (See Order for complete details) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sara Rafford Hayden,
Plaintiff,

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No. CV-14-02358-TUC-BPV
ORDER

v.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

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Plaintiff Sara Rafford Hayden has filed the instant action seeking review of the

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final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g).

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The Magistrate Judge has jurisdiction over this matter pursuant to the parties’ consent.

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(Doc. 9). Pending before the Court are Plaintiff’s Opening Brief (Doc. 14), Defendant’s

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Brief (Doc. 15), and Plaintiff’s Reply Brief (Doc. 18). For the following reasons, the

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Court remands this matter for further proceedings.

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I.

PROCEDURAL HISTORY

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On July 14, 2011, Plaintiff protectively filed an application for disability insurance

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benefits under the Social Security Act. (Transcript/Administrative Record (Doc. 11)

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(“Tr.”) 10, 164-65). Plaintiff alleges that she has been unable to work since January 20,

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20101 due to major depressive disorder, inability to concentrate, difficulty retaining new

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information, rheumatoid arthritis (“RA”), neck pain, and Sjogren’s Syndrome. (Tr. 29,

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177).

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Plaintiff initially indicated a disability onset date of September 24, 2009,
however, she later amended her alleged disability onset date to January 20, 2010. (See
Tr. 10, 164).

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After Plaintiff’s application was denied initially and on reconsideration (Tr. 79,

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97), the matter proceeded to hearing before Administrative Law Judge George W. Reyes

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(“ALJ”), where Plaintiff and vocational expert (“VE”) Ruth Van Vleet testified. (Tr. 25-

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71). On April 1, 2013, the ALJ issued his decision finding Plaintiff was not disabled

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under the Social Security Act. (Tr. 7-19). The Appeals Council subsequently denied

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Plaintiff’s request for review, thereby rendering the ALJ’s April 1, 2013 Decision the

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final decision of the Commissioner. (Tr. 1-5). Plaintiff then filed this action.

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II.

PLAINTIFF’S BACKGROUND AND STATEMENTS IN THE RECORD

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Plaintiff was born in July 1963. (Tr. 164). She has completed four or more years

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of college and last worked in 2008 as a research director for a newspaper. (Tr. 178, 201).

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Prior to working as a research director, she worked as an associate editor and editor in the

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magazine industry, an exhibitor services manager, a research director for a newspaper,

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and in advertising and design. (Id.). In about 2011, Plaintiff moved from California to

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Arizona to spend more time with her father who was ill. (Tr. 35).

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Plaintiff states that she is unable to work because she “feel[s] like she has brain

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damage. My brain just doesn’t connect the dots the way it did. I have extreme difficulty

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reading and writing.

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Plaintiff is forgetful and has difficulty completing tasks and following conversations and

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television shows. (Tr. 58, 192). She spends most of her time in bed watching television.

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(Tr. 193). She occasionally goes to the store but meals are sporadic. (Id.). She bathes

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about twice a month and usually wears the same clothing more than one day. (Tr. 194).

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She stopped going to her book club, lectures, the library, and the book store. (Tr. 197).

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She uses Skype to talk to her friends (Tr. 196) and “sometimes do[es] email but that takes

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an unreasonable amount of time.” (Tr. 193). “Once in a while I visit in person.” (Tr.

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196).

It’s very difficult to concentrate and to focus.”

(Tr. 30-31).

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Plaintiff also experiences nausea and her RA causes pain and numbness in her

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hands extending to her forearms and elbows. (Tr. 33, 36; see also Tr. 47 (RA causes

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swelling in her wrists), 57 (pain in wrists, hands and fingers limits typing and other

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activities)). She also experiences back pain. (Tr. 571). To treat her RA, Plaintiff goes to

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the hospital once a month for a two-hour IV infusion of Orencia and she self-administers

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injections of Methotrexate. (Tr. 49).

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steroid injections for localized swelling. (Tr. 50-51). About two or three days after the

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steroid injections, Plaintiff’s mood changes and she “can get suicidal.” (Tr. 51).

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III.

Additionally, at times, Plaintiff must undergo

THE ALJ’S DECISION

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A.

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Whether a claimant is disabled is determined pursuant to a five-step sequential

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process. See 20 C.F.R. §§404.1520. To establish disability, the claimant must show: (1)

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she has not performed substantial gainful activity since the alleged disability onset date

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(“Step One”); (2) she has a severe impairment(s) (“Step Two”); and (3) her

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impairment(s) meets or equals the listed impairment(s) (“Step Three”). “If the claimant

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satisfies these three steps, then the claimant is disabled and entitled to benefits. If the

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claimant has a severe impairment that does not meet or equal the severity of one of the

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ailments listed…, the ALJ then proceeds to step four, which requires the ALJ to

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determine the claimant's residual functioning capacity[2]….After developing the RFC, the

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ALJ must determine whether the claimant can perform past relevant work…. If not, then

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at step five, the government has the burden of showing that the claimant could perform

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other work existing in significant numbers in the national economy given the claimant's

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RFC, age, education, and work experience.” Dominguez, 808 F.3d at 405 (citations

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omitted).

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B.

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The ALJ found that Plaintiff had the following severe impairments: rheumatoid

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arthritis; Sjogren’s syndrome; cervical spine degenerative disc disease; lumbar spine

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degenerative disc disease; gastritis; and obesity.3 (Tr. 12). He also found that Plaintiff’s

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CLAIM EVALUATION

The ALJ’s Findings in Pertinent Part

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Residual Functioning Capacity (“RFC”) “is defined as ‘the most’ the claimant
can do, despite any limitations.” Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir. 2015),
as amended (Feb. 5, 2016) (citation omitted).
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The ALJ’s decision reflects that Plaintiff weighed approximately 199 pounds and
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“depression, considered singly and in combination,…is…nonsevere.” (Tr. 12). The ALJ

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assessed Plaintiff’s RFC as follows:
The claimant retains the capacity to lift and carry 20 pounds occasionally,
and 10 pounds frequently; stand and walk for 6 hours in an 8 hour workday;
sit for 6 hours in an 8 hour workday; pushing is commensurate with the
aforementioned lifting and carry limitations; the claimant may frequently
pull a weight commensurate with the aforementioned lifting and carrying
limitations: 20 pounds occasionally and 10 pounds frequently; perform
frequent handling and fingering; must avoid concentrated exposure to
extreme cold and heat, extreme vibration, fumes, odors, dusts, gases and
poor ventilation, or the like; avoid even moderate exposure to workplace
hazards, such as unprotected heights or dangerous machinery; must not
work in a fast-paced production environment; and is able to attend and
concentrate for 2 hour blocks of time throughout an 8 hour workday with
the two customary 10 to 15 minute breaks, and the customary 30 to 60
minute lunch period.

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(Tr. 14; see also Tr. 16 (ALJ stating that Plaintiff “retains the capacity for up to a wide

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range of light exertion work activity.”)).

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Citing the VE testimony, the ALJ determined that Plaintiff is capable of

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performing her past relevant work “as a journalist and research director. This work does

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not require the performance of work related activities precluded by the claimant’s

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[RFC]….” (Tr. 18; see also Tr. 60-61 (VE testimony that research director is sedentary

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work and journalist is light work)). Therefore, the ALJ determined that Plaintiff has not

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been under a disability as defined in the Social Security Act from January 20, 2010,

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through the date of his decision. (Tr. 19).
IV. DISCUSSION

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Plaintiff argues that: (1) the ALJ’s finding that Plaintiff was not credible was in

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error; (2) the ALJ erred in rejecting her treating doctors’ opinions in favor of the

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nonexamining doctors’ opinions; (3) the ALJ failed to provide a proper basis for finding

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the third party statement was not credible; and (4) the ALJ’s decision that Plaintiff could

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perform her past relevant work was not based on substantial evidence.

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counters that the ALJ’s decision was free of error on all matters at issue.

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is 64 inches tall. (Tr. 16).
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Defendant

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A.

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The Court has the “power to enter, upon the pleadings and transcript of the record,

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a judgment affirming, modifying, or reversing the decision of the Commissioner of Social

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Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §405(g). The

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factual findings of the Commissioner shall be conclusive so long as they are based upon

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substantial evidence and there is no legal error.

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Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the

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Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based

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on legal error or are not supported by substantial evidence in the record as a whole.”

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STANDARD

42 U.S.C. §§ 405(g), 1383(c)(3);

Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).

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Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a

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preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d

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871, 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial

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evidence is “such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the

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evidence can support either outcome, the court may not substitute its judgment for that of

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the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th

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Cir. 1992)). Moreover, the Commissioner, not the court, is charged with the duty to

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weigh the evidence, resolve material conflicts in the evidence and determine the case

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accordingly. Matney, 981 F.2d at 1019. However, the Commissioner's decision “‘cannot

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be affirmed simply by isolating a specific quantum of supporting evidence.’”

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180 F.3d at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)).

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Rather, the Court must “‘consider the record as a whole, weighing both evidence that

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supports and evidence that detracts from the [Commissioner’s] conclusion.’” Id. (quoting

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Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

Tackett,

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B.

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Plaintiff takes issue with the ALJ’s finding that although her impairments could

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reasonably be expected to cause the symptoms she complained of, her statements

PLAINTIFF’S CREDIBILITY

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concerning the intensity, persistence, and limiting effects of her symptoms were not

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entirely credible. (Tr. 15).

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When assessing a claimant’s credibility, the “ALJ is not required to believe every

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allegation of disabling pain or other non-exertional impairment.”

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F.3d 625, 635 (9th Cir. 2007) (internal quotation marks and citation omitted). However,

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where, as here, the claimant has produced objective medical evidence of an underlying

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impairment that could reasonably give rise to some degree of the symptom(s), and there

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is no affirmative finding of malingering, the ALJ’s reasons for rejecting the claimant’s

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symptom testimony must be clear and convincing, which “is the most demanding

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[standard] required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th

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Cir. 2014); see also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (reaffirming

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that the “clear and convincing” standard applies in such cases). “The ALJ must state

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specifically which symptom testimony is not credible and what facts in the record lead to

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that conclusion.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see also Orn,

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495 F.3d at 635 (the ALJ must provide cogent reasons for the disbelief and cite the

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reasons why the testimony is unpersuasive). In assessing the claimant’s credibility, the

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ALJ may consider ordinary techniques of credibility evaluation, such as the claimant’s

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reputation for lying, prior inconsistent statements about the symptoms or between

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testimony and conduct, and other testimony from the claimant that appears less than

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candid; unexplained or inadequately explained failure to seek or follow a prescribed

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course of treatment; the claimant’s daily activities; the claimant’s work record;

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observations of treating and examining physicians and other third parties; precipitating

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and aggravating factors; and

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Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Orn, 495 F.3d 636; Robbins

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v. Comm’r of Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006); Smolen, 80 F.3d at

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1284.

Orn v. Astrue, 495

functional restrictions caused by the symptoms.

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In concluding that Plaintiff was not fully credible, the ALJ cited Plaintiff’s

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frequent travel between Arizona and California, improvement with medication, that

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medical records did not indicate that Plaintiff was in “acute or apparent distress”, lack of

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side-effects from medication that would interfere with the ability to work, and that she

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exercised, participated in court hearings and Skyped with her psychologist or psychiatrist.

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(See Tr. 16-17).

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With regard to travel between Arizona and California, the record reflects that after

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Plaintiff moved from California to Arizona in 2011 (Tr. 35), she continued to see many

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of her treating doctors located in California including her rheumatologist Dr. Barry,

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psychiatrist Dr. Smith, and Dr. Lim at Redwood Pulmonary Medical Associates, because

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the doctors were familiar with her conditions and complications including bad reactions

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to medications. (See Tr. 52-53). At the February 2013 hearing before the ALJ, Plaintiff

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testified that: between June 2011 through the end of that year, she “think[s]…” she

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traveled to California five times; in 2012, she traveled to California four times; and in

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2013, she traveled to California about once every three or four months by airplane and

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she stayed with her cousin who picked her up at the airport. (Tr. 35 (she normally travels

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to California by airplane); Tr. 41). In discounting Plaintiff’s credibility, the ALJ cited

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2012 treatment notes from Dr. Lim indicating Plaintiff’s report that she traveled from

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California to Arizona “weekly” (Tr. 623) and “frequently” (Tr. 620). (Tr. 17 & n.1

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(citing Tr. 620, 623)).

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physician [Dr. Lim] contradict her testimony and thus substantially reduce her

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credibility.” (Id.). The ALJ also stated that Plaintiff was able to drive a car for two days

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to Arizona. (Tr. 17 (citing Tr. 813)).

According to the ALJ, Plaintiff’s “prior admissions to her

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In support of the ALJ’s finding, Defendant cites 2012 records from California

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providers indicating Plaintiff’s presence in California for an emergency room visit,

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laboratory testing, and appointments on January 14 and 17, February 10, March 9, May

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14 and 15, June 25 and 28, July 24, October 9, and December 14, 18 and 19. (Doc. 15, p.

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5). Plaintiff counters that she saw her doctors in California as often as they requested her

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to be seen and she scheduled her appointments close together. (Doc. 18, p. 5). She

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points out that the dates cited by Defendant are consistent with a grouping of medical

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visits during an extended stay four to five times in 2012. (Id.; see also see also Tr. 46-47

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(Plaintiff testified that she was in California in 2012 “right before Christmas)…[for]

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[a]bout a week.”)). Plaintiff also points to other errors in Dr. Lim’s notes to undermine

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the ALJ’s decision to make Dr. Lim’s notes “the cornerstone of his credibility finding[]”,

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especially when there is no showing that the frequency of Plaintiff’s travel had any

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bearing on Dr. Lim’s treatment. (Doc. 14, pp. 13-14).

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Inconsistencies in a claimant’s statements can impact the credibility determination.

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It can be said that Plaintiff traveled several times a year between Arizona and California,

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which is essentially what she testified to doing. The records cited by Defendant do not

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support the finding that Plaintiff traveled to California on a weekly basis in 2012.

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Notwithstanding Dr. Lim’s apparently errant note, the substantial evidence of record does

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not support a clear and convincing finding that Plaintiff traveled to California on “a

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weekly basis[].” (Tr. 17). Moreover, Plaintiff’s statement in December 2012 that she

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drove for two days from Arizona to California does not necessarily undermine her

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credibility given that she made this statement upon presentation for treatment of neck

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pain after making that drive. (Tr. 813). Nor is there any other instance to support a

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conclusion that Plaintiff made that drive on a regular basis. Instead, Plaintiff testified that

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she normally flew to California. (Tr. 35).

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While the ALJ acknowledged that Plaintiff’s compliance in taking medications

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weighed in her favor, he noted that her medications have been relatively effective in

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controlling her symptoms and that any side effects would not interfere with her ability to

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perform work activities in a significant manner. (Tr. 17). The ALJ also stated that

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although Plaintiff “alleged disabling pain, progress notes frequently show she was in no

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acute or apparent distress.” (Tr. 17 (citing Tr. 620, 623, 654, 658, 743, 747, 750, 753,

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758, 761, 764, 766, 770, 773, 778)). Plaintiff testified that to treat her RA, she goes to

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the hospital once a month for a two-hour IV infusion of Orencia and she self-administers

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injections of Methotrexate.

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steroid injections for localized swelling and have fluid aspirated. (Tr. 50-51). About two

(Tr. 49). Additionally, at times, Plaintiff must undergo

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or three days after the steroid injections, Plaintiff’s mood changes and she “can get

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suicidal.” (Tr. 51). Further, the Orencia and Methotrexate suppresses her immune

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system which leaves her susceptible to infection. (Id.). If she gets a cold, she must stop

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taking the medications and her pain increases. (TR. 52). She testified that in the past two

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to three years, she has had to go off her medications six or seven times because of

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infections. (Id.).

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“doing okay with” her RA, she means:

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Plaintiff also testified that when she reports to her doctor that she is

Probably that there’s nothing new and wild coming at me and that it’s just
pretty much status quo….[T]hat I don’t have anything out of the ordinary to
complain to my doctor about, so if I’m having a flare I wouldn’t necessarily
say that to my doctor because I’ve had so many of them in the past and I
know what they would say with what to deal with and I know what the
protocol is to take care of that and that’s it’s eventually going to go away.
(Tr. 50).
The record reflects that Plaintiff is on a host of medications including: Orencia,
Methotrexate, leflurnonide (Arava), Aleve, Dexilant, fentanyl extended release patch,
Ambien, bupropion, Cymbalta, folic acid, leucovorin, MiraLax, Synthroid, Taztia,
hydrocodone, Zofran, promethazine, and lorazepam (Ativan). (Tr. 654). “Impairments
that can be controlled effectively with medication are not disabling for the purpose of
determining eligibility for [disability] benefits.” Warre v. Comm’r of Soc. Sec. Admin.,
439 F.3d 1001, 1006 (9th Cir. 2006). To support the finding that Plaintiff’s medications
were effective in controlling her symptoms, the ALJ cites three treatment notes, the
earliest of which is dated September 22, 2011, when Plaintiff presented to Patel Medical
Clinic to establish a treatment relationship with a primary care physician in Arizona. (Tr.
776). Plaintiff reported doing well on her current regimen for RA and that with regard to
depression, she “den[ied] any depressive symptoms” and stated she was doing well on
Wellbutrin. (Tr. 776, 779). The ALJ also cited a July 24, 2012 treatment note by Dr.
Lim, who was treating Plaintiff for pulmonary issues, noted that Plaintiff’s pleurisy was
no longer problematic and that Plaintiff’s “current immunosuppressive regimen has been
working very well to control her rheumatoid symptoms.” (Tr. 624). The final note cited
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by the ALJ was from a January 3, 2013 examination with Dr. Maricic, the rheumatologist

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who oversaw Plaintiff’s Orencia infusions in Arizona, noting that Plaintiff was “doing

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fairly well in terms of her RA, although she still has some synovitis [in her left wrist and

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MCPs bilaterally] on exam.” (Tr. 655). Dr. Maricic also noted that Plaintiff experienced

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morning stiffness anywhere from two minutes to one hour and that she is able to attend to

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her activities of daily living. (Tr. 654).

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By focusing on the three cited treatment notes, the ALJ overlooked that despite

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Plaintiff’s medication regimen, she presented: in June 2011 with limited range of motion

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secondary to arthritis (Tr. 383); in October 2011 with a flare causing swelling and pain in

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her hands and knee pain (Tr. 379); in November 2011 with complaints of diffuse

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swelling and redness in her hands signifying “RA exacerbation” (Tr. 768 (November 22,

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2011); see also Tr. 765 (on November 17, 2011, Plaintiff presented with an acute flare up

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of moderately severe RA); Tr. 767 (injection administered on November 22, 2011); Tr.

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770 (injection administered on November 17, 2011)); in May 2012, with pain noted in the

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paraspinal muscles of the lumbar spine and bilateral sacroiliac joints, worse on the right

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side (Tr. 761 (on May 4, 2012 Plaintiff also presented as anxious); Tr. 758 (May 31,

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2012)); also in May 2012, for right knee fluid aspiration upon complaints of knee pain

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(Tr. 817); in June 2012 with mild synovitis in her hands and knee swelling and pain

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requiring fluid aspiration and an injection (Tr. 816); in July 2012 with puffy wrists

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requiring fluid aspiration (Tr. 815); in September 2012 with reports of morning stiffness

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and increased pain during the past month in her wrists, MCPs and knees with exam

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showing synovitis in the wrists and MCPs and tenderness in the metatarsal head

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bilaterally (Tr. 658-59); and in December 2012 for left knee aspiration. (Tr. 812).

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As for the ALJ’s citation to records indicating either “no acute or apparent

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distress” or not mentioning the issue of distress, such records do not undermine Plaintiff’s

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allegations given that the notes essentially show that Plaintiff received treatment for the

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symptoms about which she complained, nor is there any indication that the providers

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questioned Plaintiff’s credibility with regard to the reason why she presented for

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treatment on the particular occasion or for any other reason. The treatment notes support

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Plaintiff’s complaints of nausea (Tr. 620; Tr. 741-43; Tr. 747); abdominal pain (Tr. 741-

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43 (mild epigastric tenderness on exam); Tr. 678; Tr. 747; Tr. 750-53 (same and also

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noting vomiting)); facial pressure and pain in teeth and exam finding of sinus tenderness

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(Tr. 771-73 (diagnosis of sinusitis for which Levaquin was prescribed)); joint swelling

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and pain (Tr. 620 -55 (mild hand swelling noted on exam); Tr. 654 (reported pain scale of

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3/10 and trace synovitis of left wrists and MCPs bilaterally along with tenderness in

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metatarsal head bilaterally); Tr. 658-59 (reported pain scale of 6/10 and finding of

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synovitis); Tr. 765 (acute flare up of RA affecting both wrists, ankle joints and right knee,

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requiring injection); Tr. 768-770 (upon examination bilateral hands show erythema and

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diffuse edema, Plaintiff “states she is miserable.”)); musculoskeletal pain (Tr. 758 (on

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examination pain noted in paraspinal muscles of the lumbar spine and in bilateral

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sacroiliac joints worse on the right side); Tr. 761 (on examination pain noted in

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paraspinal muscles of the lumbar spine and in bilateral sacroiliac joints worse on the right

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side); Tr. 764 (on examination pain noted in paraspinal muscles of the lumbar spine and

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in bilateral sacroiliac joints worse on the right side and Vicodin was refilled and Valium

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was also prescribed)); and shortness of breath (Tr. 761 (noting that Plaintiff appeared

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anxious although she denied anxiety); Tr. 623-24 (diagnoses included chest discomfort

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and bronchodilators were prescribed)).

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With regard to side-effects, Plaintiff testified that she has experienced esophagitis,

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nausea, sleepiness, and drowsiness. (Tr. 44). Upon further questioning by the ALJ

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about a 2013 treatment note from treating psychiatrist Dr. Smith that Plaintiff reported no

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side-effects (Tr. 45 (citing Tr. 638)), Plaintiff testified that she experienced the nausea

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and vomiting in 2009 (Tr. 45). A November 4, 2009 treatment note from Dr. Smith

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indicates “Little [illegible]…low dose Cymbalta, but so far were tolerated.” (Tr. 243).

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Also, in 2010, Dr. Smith noted that “Ambien is causing cognitive [illegible].” (Tr. 242).

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In 2012, Dr. Smith noted Plaintiff’s complaint that she “feel[s] nauseous a lot. May start

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new medication for [nausea].” (Tr. 639).

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The record also reflects that in January 2009, Dr. Lim suspected that depression

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and Plaintiff’s “many medications…may be contributing to…” her “complaints about

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mental capacity and focus.” (Tr. 563 (noting that Plaintiff “is sensitive to medications

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[sic] side effects.”)).

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Remicade caused drug-induced lupus and that Plaintiff experienced adrenal suppression

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secondary to frequent steroid injections. (Tr. 234). Dr. Fraze also mentioned Plaintiff’s

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report that steroid injections, while helpful to her joints, cause a number of side-effects

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including insomnia, agitation, and fatigue. (Id.).

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Cymbalta initially caused fatigue, but it had resolved. (Tr. 235). Also in 2010, Drs. Barry

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and Smith suspected that Cymbalta was causing a flare in Plaintiff’s RA, but then ruled

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that out. (Tr. 241-42, 401; see also Tr. 823-24 (during this period Plaintiff was taken to

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the ER upon possible reaction to tapering Cymbalta and taking Tramadol, which resulted

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in vomiting, shakiness and diaphoresis)). The substantial evidence of record supports

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Plaintiff’s statement that she has suffered side effects from her medication.

In 2010, endocrinologist Elizabeth Fraze, M.D., wrote that

Plaintiff also told Dr. Fraze that

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To further discount Plaintiff’s credibility, the ALJ pointed out that “[s]he walks

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for exercise, and one physician has encouraged her to diet and exercise more.” (Tr. 17).

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He also cited Plaintiff’s testimony that she had “once weighed much more than 200

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pounds, but had lost weight and now weighed 190 pounds.” (Id.; see also Tr. 12 (ALJ

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found Plaintiff’s severe impairments included obesity)). Plaintiff’s exercise is not

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inconsistent with her statement that she can walk up to 45 minutes before she needs to

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rest.

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credibility or how Plaintiff’s activities of daily living, as she described them, translated

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into the ability to carry out full time work functions. On this record, Plaintiff’s exercise

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pursuant to doctor’s orders does not undermine her credibility. See e.g. Vertigan v.

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Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the

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mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping,

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driving a car, or limited walking for exercise, does not in any way detract from her

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credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in

(Tr. 197). The ALJ does not explain how Plaintiff’s exercise diminishes her

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1

order to be disabled.”).

2

The ALJ also found Plaintiff’s credibility was diminished because she

3

“participated in court hearings and Skypes regularly with her psychiatrist or

4

psychologist.” (Tr. 17). The record reflects that Plaintiff was involved in disability

5

discrimination litigation against her former employer regarding her termination by new

6

management in 2008. (Tr. 38). Plaintiff testified that the suit was settled in November of

7

that same year and no hearings or depositions were involved. (Tr. 39, 41). The ALJ

8

pointed to nothing about the 2008 litigation that would impact Plaintiff’s credibility.

9

Instead, that litigation occurred prior to her alleged disability onset date and has no

10

bearing on this case.

11

After Plaintiff’s mother passed away, litigation arose apparently concerning a

12

probate issue. (See Tr. 37-38, 41). Plaintiff testified there was one hearing concerning

13

that issue. (Tr. 41). There was no discussion about the length of the hearing or any other

14

factor that would indicate that Plaintiff’s ability to attend that hearing was inconsistent

15

with, or otherwise undermined, her allegations.

16

Plaintiff’s psychologist, Dr. Furze, is located in California. (Tr. 32 (Plaintiff has

17

been seeing Dr. Furze for about seven or eight years)). Plaintiff’s appointments with Dr.

18

Fruze last about 50 minutes each and occur about twice a week over Skype. (Id.). No

19

reason has been proffered by the ALJ to support the finding that Plaintiff’s credibility is

20

diminished because she sees her psychologist over Skype.

21

At bottom, the reasons cited by the ALJ for discounting Plaintiff’s credibility

22

either are not supported by the substantial evidence of record or otherwise do not provide

23

a basis to disbelieve Plaintiff. The ALJ has failed to state clear and convincing reasons

24

to reject Plaintiff’s credibility.

25

C.

26

Plaintiff challenges the ALJ’s decision to give significant weight to the

27

nonexamining doctors’ opinions and to “assign[] little weight” to the opinions of

28

Plaintiff’s treating rheumatologist Dr. Barry, psychiatrist Dr. Smith, and psychologist Dr.

TREATING PROVIDER OPINIONS

- 13 -

1

Furze,. (Doc. 14, p. 5). According to Plaintiff, the treating doctors’ opinions, taken

2

separately or together, established her inability to perform full-time work.

3

Defendant counters that the ALJ provided sufficient reasons to discount the treating

4

doctors’ opinions.

(Id.).

5

It is well-settled that the opinions of treating doctors are entitled to greater weight

6

than the opinions of examining or nonexamining doctors. Andrews v. Shalala, 53 F.3d

7

1035, 1040-1041 (9th Cir. 1995). Generally, more weight is given to the opinion of a

8

treating source than the opinion of a doctor who did not treat the claimant. See Turner v.

9

Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1222 (9th Cir. 2010); Winans v. Bowen, 853

10

F.2d 643, 647 (9th Cir. 1987). Medical opinions and conclusions of treating doctors are

11

accorded special weight because treating doctors are in a unique position to know

12

claimants as individuals, and because the continuity of their dealings with claimants

13

enhances their ability to assess the claimants’ problems. See Embrey v. Bowen, 849 F.2d

14

418, 421-22 (9th Cir. 1988); Winans, 853 F.2d at 647; see also Bray v. Comm’r of Soc.

15

Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (“A treating physician’s opinion is

16

entitled to []substantial weight.[]”) (internal quotation marks and citation omitted);

17

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (“We afford greater weight to a

18

treating physician's opinion because he is employed to cure and has a greater opportunity

19

to know and observe the patient as an individual.”)(internal quotation marks and citation

20

omitted); 20 C.F.R 20 ' 404.1527 (generally, more weight is given to treating sources,

21

“since these sources are likely to be the medical professionals most able to provide a

22

detailed, longitudinal picture of [the claimant’s] medical impairment(s) and may bring a

23

unique perspective to the medical evidence that cannot be obtained from the objective

24

medical findings alone or from reports of individual examinations, such as consultative

25

examinations….”).

26

A treating doctor’s opinion may not be entitled to controlling weight where it is

27

not “well-supported” or inconsistent with other substantial evidence in the record. Orn,

28

495 F.3d at 631 (citing 20 C.F.R. ' 404.1527(d)(2)). In such a case, the ALJ must

- 14 -

1

consider the factors outlined in the regulations in determining what weight to accord the

2

treating doctor’s opinion.4 Id at 631-32; see also Social Security Ruling 96-2p, 1996 WL

3

374188, *4 (“Adjudicators must remember that a finding that a treating source medical

4

opinion is not well-supported by medically acceptable clinical and laboratory diagnostic

5

techniques or is inconsistent with other substantial evidence in the case record means

6

only that the opinion is not entitled to ‘controlling weight,’ not that the opinion should be

7

rejected. Treating source medical opinions are still entitled to deference and must be

8

weighed using all of the factors provided in 20 CFR '' 404.1527 and 416.927.”)

9

Importantly, even if the treating doctor’s opinion does not meet the test for controlling

10

weight, that opinion may still be entitled to the greatest weight and should be adopted.

11

Orn, 495 F.3d at 632 (quoting SSR 96-2p, 1996 WL 374188, *4).

12

An ALJ may reject a treating doctor’s uncontradicted opinion only after giving

13

“‘clear and convincing’ reasons supported by substantial evidence in the record.” Reddick

14

v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 830

15

(9th Cir. 1995)). “Even if the treating doctor’s opinion is contradicted by another doctor,

16

the ALJ may not reject this opinion without providing ‘specific and legitimate reasons’

17

supported by substantial evidence in the record.” Reddick, 157 F.3d at 725 (citing Lester,

18

81 F.3d. at 830). “‘The ALJ can meet this burden by setting out a detailed and thorough

19

summary of the facts and conflicting clinical evidence, stating [his] interpretation thereof,

20
21

4

22

the “[l]ength of the treatment relationship and the frequency of
examination” by the treating physician; and the “nature and extent of the
treatment relationship” between the patient and the treating physician. [20
C.F.R.] § 404.1527(d)(2)(i)-(ii)….Additional factors relevant to evaluating
any medical opinion, not limited to the opinion of the treating physician,
include the amount of relevant evidence that supports the opinion and the
quality of the explanation provided; the consistency of the medical opinion
with the record as a whole; the specialty of the physician providing the
opinion; and “[o]ther factors” such as the degree of understanding a
physician has of the Administration's “disability programs and their
evidentiary requirements” and the degree of his or her familiarity with other
information in the case record. Id. § 404.1527(d)(3)-(6).

23
24
25
26
27
28

The factors for consideration as to the weight the opinion will be given include

Orn, 495 F.3d at 631.
- 15 -

1

and making findings.’” Tommasetti 533 F.3d at 1041 (quoting Magallanes, 881 F.2d at

2

751).

3

nonexamining doctors than he did to Plaintiff’s treating doctors. When a non-treating

4

physician relies on the same clinical findings as a treating physician, but differs only in

5

his or her conclusions, the conclusions of the non-treating physician are not “substantial

6

evidence.” Orn, 495 F.3d at 632-33; see also Lester, 81 F.3d at 831 (the opinion of a

7

nonexamining doctors cannot by themselves “constitute substantial evidence that justifies

8

the rejection of the opinion of either an examining physician or a treating physician.”)

9

(emphasis in original). “When a nontreating physician's opinion contradicts that of the

10

treating physician—but is not based on independent clinical findings, or rests on clinical

11

findings also considered by the treating physician—the opinion of the treating physician

12

may be rejected only if the ALJ gives ‘specific, legitimate reasons for doing so that are

13

based on substantial evidence in the record.’” Morgan v. Comm’r of Soc. Sec., 169 F.3d

14

595, 600 (9th Cir. 1999 (quoting Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995)

15

(other citations omitted); see also Orn, 495 F.3d at 632.

As discussed in further detail below, the ALJ accorded more weight to the

16

With regard to Plaintiff’s physical impairments, the ALJ gave “substantial weight”

17

to the opinions of state agency nonexamining Drs. Disney and Goodrich who opined that

18

Plaintiff retained “the capacity to perform light exertion work with frequent pulling,

19

frequent bilateral handling and fingering, avoiding concentrated exposure to extreme heat

20

and cold, vibration and fumes, odors, dusts, gases and poor ventilation, and avoid even

21

moderate exposure to workplace hazards.”

22

allegations of mental impairment, the ALJ gave “substantial weight” to the opinions of

23

state agency nonexamining Drs. Salk, Ph.D., and Marks, M.D., who “opined the claimant

24

has no functional limitations and that her depression is not severe.” (Tr. 14). Plaintiff

25

points out that the ALJ referred to the nonexamining doctors as state agency

26

psychological or medical “consultants” to argue that the ALJ was under the mistaken

27

impression that these doctors examined her, even though they did not. (Doc. 14, p. 5).

28

Defendant persuasively counters that, at best, the ALJ’s mention of consultants was “a

- 16 -

(Tr. 18).

With regard to Plaintiff’s

1

harmless scrivener’s error. The ALJ does not indicate that these doctors personally

2

evaluated Plaintiff; instead, he specifically acknowledges their review of the medical

3

record.” (Doc. 15, pp. 15-16).

4

Plaintiff argues that the nonexamining doctors’ opinions cannot be considered

5

substantial evidence because the record indicates that the nonexamining physicians

6

mistakenly believed that her date last insured was December 31, 2011, which meant that

7

“if the non-examining doctors did not find her disabled prior to that date, she would not

8

be eligible for disability at all.” (Doc. 14, p.5 (citing Tr. 79, 80, 88, 90, 94, 97, 98,107)).

9

Further, the nonexamining doctors’ record review also indicated that, presumably

10

because the date last insured was in the past, a consultative examination was not possible.

11

(Id. at p. 6 (citing Tr. 88, 94)). At the hearing, Plaintiff’s counsel informed the ALJ that

12

there was “a mistake in the date last insured…” and that Plaintiff’s date last insured was

13

December 31, 2013, not December 31, 2011. (Tr. 28). The ALJ acknowledged that

14

Plaintiff’s date last insured was December 31, 2013. (Id.).

15

Plaintiff argues, and Defendant does not dispute, that the nonexamining doctors

16

“did not write up any evidence after [December 31, 2011]…accept [sic] for one note in

17

January 2012 (Tr. 108) and specifically bookmarked all records before that date. (Tr.

18

108). It is impossible to know if they reviewed any evidence after January 2012.” (Doc.

19

14, p. 6; see also Doc. 15, p. 15). Plaintiff contends that the mistake about the date last

20

insured had “numerous implications” in that “[i]t set in the minds of the non-examining

21

doctors an erroneous legal boundary. It prevented them from looking at all the medical

22

evidence. It stopped them from obtaining a consultative examination when that might

23

have shed light on her psychiatric impairments.” (Doc. 14, pp. 6-7). Defendant points

24

out that “[e]ven if a doctor’s opinion addresses only a portion of the alleged period of

25

disability[,] it is still probative evidence about the claimant’s functioning that an ALJ

26

may consider[]”, thus the state agency physician opinions that Plaintiff was not disabled

27

as of December 31, 2011 remain worthy of weight. (Doc. 15, p. 16). Assuming that the

28

state agency reviewing physicians limited their review to records generated on or before

- 17 -

1

January 2012 as Plaintiff posits, the ALJ’s decision reflects that he considered records

2

after January 2012. (See e.g. (Tr. 13 (citing medical records from throughout 2012); Tr.

3

14 (citing Exh. 28F (Tr. 781-83 (Dr. Furze’s February 14, 2013 Mental Work Tolerance

4

Recommendations), Tr. 652 (Dr. Smith’s February 12, 2013 letter)); Tr. 15-16 (citing

5

treatment records with dates after January 2012 and into January 2013)).

6

1.

PLAINTIFF’S RA

7

In arriving at the RFC assessment, the ALJ accepted the limitations assessed by

8

reviewing Drs. Disney and Goodrich5, whose opinions he found were supported by the

9

objective medical evidence showing that Plaintiff “had no neurologic deficits, and

10

retained normal motor strength and a normal gait….” (Tr. 18). The ALJ also cited these

11

same reasons to give the nonexamining doctors’ opinions more weight than Plaintiff’s

12

treating rheumatologist, Dr. Barry. (See id. (giving “substantial weight” to the

13

nonexamining doctors’ opinion and giving “little weight” to Dr. Barry’s opinion)).

14

Plaintiff contends that none of the above-mentioned areas are indicative of disability

15

resulting from RA. (See Doc. 14, p. 10 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1,

16

'14.09 (Inflammatory arthritis)).6 Although the Listing does not specifically include

17

neurologic deficits or deficiencies as relevant to a finding of disability for this condition,

18

it does mention the inability to ambulate effectively caused by joint inflammation or

19

deformity, which, in essence, takes into account the ALJ’s and reviewing doctor’s

20

reliance on the fact that Plaintiff’s exams reflected normal gait. See 20 C.F.R. Pt. 404,

21

Subpt. P, App. 1, '14.09(A)(1).

22

Upon a record review focusing on a December 31, 2011 date last insured, Drs.

23

Disney and Goodrich concluded that Plaintiff was limited, inter alia, to frequent handling

24

and fingering.

(Tr. 93, 112). Dr. Goodrich noted that Plaintiff’s history “supports

25
5

26
27

Dr. Disney reviewed records upon Plaintiff’s initial application and Dr. Goodrich
reviewed records upon Plaintiff’s request for reconsideration of the denial of her
application. (Tr. 79, 108).
6

28

Plaintiff does not contend she meets the Listing, instead, she cites to the Listing
to support her argument that that the ALJ relied upon findings that have no relation to
assessment of her impairment. (See Doc. 14, p. 10).
- 18 -

1

significant RA, but no good functional examinations.” (Tr. 111). Both Drs. Goodrich

2

and Disney noted that a consultative examination was not possible. (Tr. 90, 112). As

3

discussed above, it is not entirely clear that the reviewing doctors considered records

4

dated after December 31, 2011, in making their determination. In addition to other

5

complaints associated with RA, Plaintiff presented with finger and hand pain and

6

swelling in January and April 2010 (Tr. 406, 409-411), and hand and wrist pain and

7

swelling in October and November 2011 (Tr. 379, 765, 768-70). Presumably these

8

records were considered by the reviewing doctors given that they existed before

9

December 31, 2011. Records from 2012 and 2013 show Plaintiff’s continued complaints

10

of wrist and hand pain and swelling, along with findings on examination of synovitis in

11

her wrists and MCPs or puffiness in her wrists. (Tr. 658, 654-55, 815, 816).

12

regard to these latter records, the ALJ stated when assessing Plaintiff’s credibility that

13

“claimant has rheumatoid arthritis with hand and knee swelling….”, and he mentions a

14

January 2013 report showing “she had only trace synovitis of her left wrist with normal

15

range of motion, and trace synovits [sic] of her fingers….” (Tr. 15 (citing Tr. 654-55).

16

The ALJ’s analysis overlooks Plaintiff’s continued complaints of issues with her hands

17

and wrists and, instead, focuses on one occasion. Plaintiff has testified that her RA

18

symptoms includes flares. (See Tr. 50).
The American Arthritis Association notes, “Rheumatoid arthritis is a
chronic disease, meaning it can't be cured [,]” and some people have
intermittent symptoms or “flares,” while others have ongoing symptoms
that worsen over time. See http://www.arthritis.org/types-what-isrheumatoid-arthritis.php (visited 01/11/2012); DuPerry v. Life Ins. Co. of
N. Am., 632 F.3d 860, 864 n. 1 (4th Cir. 2011) (“Rheumatoid arthritis is ‘an
inflammatory disease of the joints that causes the joints to swell and to
stiffen. It is a chronic condition, permanent in nature.’ ”) (quoting Moore v.
J.B. Hunt Transp., Inc., 221 F.3d 944, 946 (7th Cir. 2000)); see also Lowe v.
Apfel, 238 F.3d 429 (Table), 2000 WL 1290356, at *2 (9th Cir. Sept. 12,
2000) (Kleinfeld, C.J., dissenting) (“Rheumatoid arthritis, like chronic
fatigue syndrome, is characterized by ‘[s]pontaneous remissions and
exacerbations.’”) (citation omitted).

19
20
21
22
23
24
25
26
27
28

With

Salazar v. Astrue, 859 F. Supp. 2d 1202, 1227 (D. Or. 2012).
Additionally, the jobs the ALJ determined that Plaintiff could perform required the
- 19 -

1

ability to frequently or occasionally finger and frequently handle, which comported with

2

Drs. Disney’s and Goodrich’s assessments. See Dictionary of Occupational Titles ''

3

131.262-018 (reporter), 132.037-022 (editor, publications).

4

showing on the instant record that the reviewing doctors would have assessed the same

5

physical limitations had they been aware that Plaintiff’s date last insured did not fall in

6

2011 but in 2013, thus enlarging the period for record review which included continued

7

instances of hand and wrist pain and swelling concerning a claimant who the doctors

8

already concluded, upon their limited review of the record, was restricted in handling and

9

fingering. Further, there would have been time to obtain a functional evaluation—an

10

assessment which reviewing Dr. Goodrich noted was lacking. “Different people may be

11

affected by similar injuries in different ways. Different people have greater or lesser

12

sensitivity to pain. Without a personal medical evaluation it is almost impossible to assess

13

the residual functional capacity of any individual.” Penny, 2 F.3d at 958.

However, there is no

14

Moreover, in arriving at his RFC assessment, the ALJ rejected the 2005 opinion

15

from Dr. Barry, who has been Plaintiff’s treating rheumatologist since 2002. In 2005, Dr.

16

Barry wrote that she was presently treating Plaintiff “for rheumatoid arthritis and more

17

recently chronic intermittent pleuritis.” (Tr. 785). She went on to state that: Plaintiff’s

18

“disease is still active and does cause joint pain and chest pain intermittently, which may

19

make it difficult for her to travel to and from work. I would recommend that, if possible,

20

she be allowed to telecommute on an as-needed basis, perhaps one to two days per week,

21

but certainly this would vary depending on how she responds to future treatments.” (Id.).

22

At the time, Plaintiff’s employer instituted the accommodation which remained in place

23

until new management took over in 2008 and refused to continue with the

24

accommodation and terminated Plaintiff.7 (Doc. 14, p. 10; see also Tr. 38-39). The VE

25
7

26
27
28

Plaintiff testified that before new management took over, she did not keep a
typical work schedule. (Tr. 56). Instead, she was permitted to work around doctor’s
appointments and her energy level to the extent that she would come to work later and
work into the night, and she frequently worked on weekends. (Id.). While at work, she
would need to stretch her back by lying on the floor. (Tr. 56-57). Additionally, when she
used a keyboard, her hands and wrists would “get [a] very dull…ache [sic] pain and I
would need to stop for a while….[T]hey’ll get a little…more inflamed if I’m overdoing it
- 20 -

1

testified that Dr. Barry’s recommendation would prevent Plaintiff from working

2

anywhere except a specially accommodated position. (Id. (citing Tr. 67-68)). Plaintiff

3

stresses that Dr. Barry never retracted her recommendation. (Doc. 18, p.4). She also

4

points out that her “treatment continued to get more intensive requiring monthly infusions

5

of a biologic agent [Orencia] at the hospital on top of self administered injections

6

[Methotrexate].” (Id.). According to Plaintiff, “even in 2005 the doctor considered that

7

the need for telecommuting days may change based on [Plaintiff’s] responsiveness to

8

treatment. It did change, it got worse.” (Id.).

9

The ALJ gave Dr. Barry’s opinion little weight finding it was “inconsistent with

10

the objective medical evidence showing no neurologic deficits, normal motor strength

11

and gait, and the claimant’s relatively good activities of daily living including that she

12

was able to travel ‘frequently’ between Arizona and California and even drive this

13

distance. The frequency, and distance, of these trips shows the claimant has no difficulty

14

traveling to and from work and does not need to telecommute one to two days per week

15

or even on an as-needed basis.” (Tr. 18). Defendant also argues that Dr. Barry did not

16

actually assess any work limitations, instead, “[s]he merely stated that it ‘may’ be

17

difficult for Plaintiff to travel and she ‘recommend[ed]’ allowing Plaintiff to

18

telecommute.” (Doc. 15, p. 15 (citing Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d

19

685, 691-92 (9th Cir. 2009) (where a doctor makes recommendations, but does not

20

indicate that a claimant is incapable of working except under the recommended

21

conditions, the ALJ does not err by excluding the recommended restrictions from the

22

RFC assessment); Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1165 (9th

23

Cir. 2008)).

24

Dr. Barry’s letter is clear that when Plaintiff is in pain caused by RA and pleurisy,

25

she should be permitted to telecommute. Unlike the “observation” in Valentine or the

26

recommendation of a using a reclining chair as an alternative to a sit/stand option in

27

Carmickle, Dr. Barry’s letter was written for the direct purpose of indicating an

28
on a keyboard.” (Tr. 57-58).
- 21 -

1

accommodation of functional limitations relating to Plaintiff’s employment. The record

2

also supports the conclusion that the ALJ also considered Dr. Barry’s letter as requiring a

3

work accommodation. (See Tr. 67-68). As stated above, the ALJ’s reliance on lack of

4

evidence showing neurologic deficits and normal motor strength do not support the

5

rejection of limitations caused by Plaintiff’s RA. See e.g. Orn, 495 F.3d at 635 (“An ALJ

6

may not exclude a physician's testimony for a lack of objective evidence of impairments not

7

referenced by the physician.”). While evidence that Plaintiff had a normal gait may factor

8

into an assessment under the Listing, here, there is no reason why having a normal gait

9

would obviate the need to telecommute due to chest and joint pain, especially where Dr.

10

Barry did not cite issues associated with walking as a reason for the restriction. See Orn,

11

495 F.3d at 635. Instead, consistent with Dr. Barry’s letter, the record reflects Plaintiff’s

12

complaints of chest pain and joint pain primarily related to her upper extremities.

13

Finally, the ALJ’s reference to Plaintiff’s travel between Arizona and California—which

14

is addressed in more detail above when discussing the ALJ’s rejection of Plaintiff’s

15

credibility—there is no suggestion on the instant record that Plaintiff was able to carry

16

out full-time work immediately after such travel or that such travel occurred back and

17

forth commensurate with travel necessary for full time work. See e.g. Fair v. Bowen, 885

18

F.2d 597, 603 (9th Cir. 1989) (“The Social Security Act does not require that claimants be

19

utterly incapacitated to be eligible for benefits….”). The ALJ failed to state sufficient

20

reasons to reject Dr. Barry’s 2005 opinion.

21

2.

MENTAL IMPAIRMENTS

22

On February 12, 2013, Dr. Smith, Plaintiff’s treating psychiatrist, wrote that

23

Plaintiff met the Listing for 12.04, affective disorder. (Tr. 652). Plaintiff bears the

24

burden of demonstrating that she meets a listing. To meet Listing 12.04, Plaintiff must

25

show that she “meets at least one paragraph A criterion and at least two paragraph B

26

criteria.” Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1992) (citing 20 C.F.R. Pt.. 404,

27

Subpt. P, App. 1 (emphasis in original)).8 As for paragraph A criteria, Plaintiff argues

28
8

Pertinent to Plaintiff’s claim are the following requirements set out in the
- 22 -

1

that her records document pervasive loss of interest; appetite disturbance with change in

2

weight (weight gain); sleep disturbance; psychomotor retardation; and difficulty

3

concentrating or thinking. (Doc. 18, p. 2). With regard to the Paragraph B criteria, she

4

argues that “Dr. Smith documents the necessary criteria….” (Id.).

5

Psychologist Cynthia T. Furze, Ph.D., wrote an undated letter stating that she had

6

been treating Plaintiff for depression since 20089 and that within the course of eighteen

7

months “multiple and cumulative traumas…”, including Plaintiff’s 2008 termination,

8

Plaintiff underwent surgery10, her mother’s diagnosis with and death from brain cancer,

9

Listing:

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

A. Medically documented persistence, either continuous or
intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the
following:
a. Anhedonia or pervasive loss of interest in almost all
activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking….
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended
duration….
20 C.F.R. Pt. 404, Subpart P, App. 1, '1204.
A claimant can also meet Listing 12.04 by satisfying Paragraph C. Id. Plaintiff
does not assert that Dr. Smith’s notes support a finding that she satisfies Paragraph C, she
instead focuses on Paragraphs A(1) and B. (See Doc. 18, p. 2 & nn. 2, 3).
9

Another undated letter from Dr. Furze indicates she has been treating Plaintiff for
depression since 2009. (Tr. 495).
10

Dr. Furze does not identify the type of surgery Plaintiff had. The record reflects
- 23 -

1

and the ensuing lawsuit over her mother’s estate, have “deepened [Plaintiff’s] depression

2

to the point where she is currently disabled.” (Tr. 605). Dr. Furze stated that “[a] major

3

manifestation of [Plaintiff’s] depression is neurovegetative cognitive functioning[,]”

4

which causes her “to have great difficulty concentrating on minor tasks, organizing and

5

motivating herself to accomplish minimal goals. Ms. Hayden continues to have difficulty

6

with routine hygiene and grooming, she has allowed her mortgage to move toward

7

foreclosure four times in the past years, not because of financial deficit, but because of

8

her impaired organizational functioning.” (Id.). Dr. Furze also indicated concern that

9

interaction between Plaintiff’s RA and depression “is making recovery more difficult.”

10

(Id.). Dr. Furze opined that it was unlikely that Plaintiff would return to work anytime in

11

the foreseeable future. (Id.).

12

In 2010, Dr. Furze submitted a form indicating that Plaintiff was disabled from

13

performing her customary work due to major depression and cognitive neurovegetative

14

symptoms of depression. (Tr. 499; see also Tr. 498). In 2011, Dr. Furze reaffirmed her

15

opinion. (Tr. 497). In February 2013, Dr. Furze submitted Mental Work Tolerance

16

Recommendations indicating that since 2009, Plaintiff had several limitations. (Tr. 781-

17

83). Dr. Furze opined that in the area of understanding and memory, Plaintiff was

18

markedly limited in the abilities to understand and remember short and simple

19

instructions as well as detailed instructions, and she was moderately limited in the ability

20

to remember locations and work-like procedures. (Tr. 781). In the area of concentration

21

and persistence, Plaintiff was markedly limited in the abilities to: carry out detailed

22

instructions; maintain attention and concentration for extended periods; perform activities

23

within a schedule or maintain regular attendance and be punctual; sustain an ordinary

24

routine without special supervision; make simple work-related decisions; and complete a

25

workday and workweek without interruptions from psychologically based symptoms and

26

to perform at a consistent pace without more than the normal rest periods. (Tr. 781-82).

27

In that same area, Plaintiff was moderately limited in the ability to carry out short and

28
that Plaintiff had gallbladder surgery in August 2011. (Tr. 318).
- 24 -

1

simple instructions, and she was mildly limited in the abilities to maintain attention and

2

concentration for brief periods and to work in coordination with or proximity to others

3

without being distracted by them. (Tr. 781-82). In the area of social interaction, Plaintiff

4

was moderately limited in the abilities to: accept instructions and respond appropriately

5

to criticism from supervisors; and maintain socially appropriate behavior and adhere to

6

basic standards of neatness and cleanliness. (Tr. 782). In that same area, Plaintiff was

7

mildly limited in the ability to ask simple questions or request assistance, and she was not

8

significantly limited in the abilities to interact appropriately with the general public and

9

to get along with co-workers or peers with distracting them or exhibiting behavioral

10

extremes. (Id.). In the area of adaptation, Plaintiff was: markedly limited in the ability to

11

set realistic goals or make realistic plans independently of others; she was moderately

12

limited in the ability to respond appropriately to changes in the work setting; and she was

13

mildly limited in the abilities to be aware of normal hazards and take appropriate

14

precautions and to travel in unfamiliar places or to use public transportation. (Tr. 783).

15

Dr. Furze pointed out that Plaintiff’s “relative strength with respect to social interactions

16

does not mitigate her impairments in memory, concentration, and planning which render

17

her unable to work in any capacity at the present time. The impact of her depression and

18

resulting cognitive impairments is worsened by her chronic and multiple medical

19

problems.” (Id.).

20

The ALJ found Plaintiff had no limitations in the areas of daily living, social

21

functioning, or concentration, persistence or pace. (Tr. 13) Nor did he find that Plaintiff

22

experienced any episodes of decompensation of an extended duration. (Id.). The ALJ

23

did not cite Plaintiff’s depression as a severe impairment.11 (See Tr. 12). However, he

24
11

25
26
27
28

The determination whether an impairment or combination of impairments is
severe is made at step two of the sequential process. Step two “is ‘a de minimis screening
device [used] to dispose of groundless claims.’” Webb v. Barnhart, 433 F.3d 683, 686
(9th Cir. 2005) (quoting Smolen, 80 F.3d at 1290) (alteration in original). “At step two,
the ALJ assesses whether the claimant has a medically severe impairment or combination
of impairments that significantly limits his ability to do basic work activities.” Id. (citing
20 C.F.R. § 404.1520(a)(4)(ii)). Basic work activities include understanding, carrying out
and remembering simple instructions; use of judgment; responding appropriately to
supervision, co-workers and usual work situations; and dealing with changes in a routine
- 25 -

1

included in the RFC assessment that Plaintiff “must not work in a fast-paced production

2

environment; and is able to attend and concentrate for 2 hour blocks of time throughout

3

an 8 hour workday with the two customary 10 to 15 minute breaks, and the customary 30

4

to 60 minute lunch period.” (Tr. 14).

5

The ALJ gave Dr. Furze’s and Dr. Smith’s opinions “little weight”, finding they

6

were conclusory, unsupported by clinical signs and findings reported in the case record,

7

and that Dr. Furze’s opinion was based primarily on Plaintiff’s self-reports which the

8

ALJ discounted upon his finding that Plaintiff was not fully credible. (Tr. 14). He also

9

asserted that Dr. Furze’s notes “contain[ed] few objective mental status examination

10

findings…” and that both Dr. Furze’s and Dr. Smith’s opinions were inconsistent with

11

mental status examinations showing Plaintiff had appropriate affect, logical thoughts and

12

was cooperative, “and her relatively good activities of daily living discussed herein

13

including her frequent travel between Arizona and California.” (Id.).

14

After the ALJ issued his decision denying Plaintiff’s application, Dr. Furze

15

submitted a letter explaining that her conclusions are based on her clinical observations

16

of Plaintiff’s “verbal and cognitive functioning and speech during our sessions. These

17

signs and observations include difficulty concentrating, difficulty finding words and

18

maintaining a line of conversation or reasoning, apathy, anhedonia (inability to

19

experience pleasure in normally pleasurable activities) emotional lability, and suicidal

20

ideation.” (Tr. 847). Dr. Furze also stated that “[c]linical depression does not make

21

travel impossible, or even improbable, only more difficult.” (Tr. 848). She also stressed

22

that mental status examinations only focused on one point in time and that she routinely

23

does not use treatment notes “as an ongoing documentation of symptoms for the patient.

24
25
26
27
28

work setting. 20 C.F.R. '' 404.1521(b)(3)-(6). “An impairment or combination of
impairments may be found ‘not severe only if the evidence establishes a slight
abnormality that has no more than a minimal effect on an individual's ability to work.’”
Webb, 433 F.3d at 686 (quoting Smolen, 80 F.3d at 1290). In assessing the ALJ’s
finding that an impairment is not severe at step two, the Court “must determine whether
the ALJ had substantial evidence to find that the medical evidence clearly established that
[the plaintiff] did not have a medically severe impairment or combination of
impairments.” Id. at 687.
- 26 -

1

The absence of observations regarding functioning in my office notes did not mean that

2

they were absent

3

documented although, as shown in my reports, were ongoing in the patient.” (Id.).

4

Although the Appeals Council considered Dr. Furze’s letter, the ALJ’s decision was

5

upheld. (Tr. 1-4).

in the patient.

In this case, the symptoms were not typically

6

At the outset, Defendant is correct that Dr. Furze’s statements that Plaintiff’s

7

depression is disabling, alone, are not binding. McLeod v. Astrue, 640 F.3d 881, 884-85

8

(9th Cir. 2011)(“Although a treating physician's opinion is generally afforded the greatest

9

weight in disability cases, it is not binding on an ALJ with respect to the existence of an

10

impairment or the ultimate determination of disability.”); 20 C.F.R. '' 404.1527(d)(1),

11

404.1527(d)(3) (“A statement by a medical source that you are ‘disabled’ or ‘unable to

12

work’ does not mean that we will determine that you are disabled[,]” and will not be

13

given “any special significance….”). Instead, “an ALJ may reject a treating physician's

14

uncontradicted opinion on the ultimate issue of disability only with ‘clear and

15

convincing’ reasons supported by substantial evidence in the record.…If the treating

16

physician's opinion on the issue of disability is controverted, the ALJ must still provide

17

‘specific and legitimate’ reasons in order to reject the treating physician's opinion.”

18

Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2001).

19

Here, the record contains Dr. Furze’s notes and explanations in support of her

20

opinion. “The primary function of medical records is to promote communication and

21

record-keeping for health care personnel—not to provide evidence for disability

22

determination.” Orn, 495 F.3d at 634; see also Hutsell v. Massanari, 259 F.3d 707, 712

23

(8th Cir. 2001) (“A treating doctor’s silence on the claimant’s work capacity does not

24

constitute substantial evidence supporting an ALJ’s functional capacity determination

25

when the doctor was not asked to express an opinion on the matter and did not do so,

26

particularly where the doctor did not discharge the claimant from treatment.”).

27

Furze’s notes, while rather disjointed, reflect Plaintiff’s continued complaints of

28

depression and hopelessness (Tr. 504 (March 2010); Tr. 503 (feeling very down in June

- 27 -

Dr.

1

2011); Tr. 629 (October 2012); Tr. 628 (November 2012 “like I’m dying….‘Don’t do

2

anything to sustain living’”); Tr. 627 (increased depression in December 2012), Tr. 627

3

(January 2013)); not being able to think (Tr. 504 (March 2010); Tr. 627 (trouble focusing

4

in January 2013)); forgetfulness and needing to write things down (Tr. 606, 632 (April

5

2012); Tr. 629 (October 2012); Tr. 628 (November 2012); Tr. 627 (December 2012 and

6

January 2013)); sleep issues including difficulty sleeping as well as hypersomnia (Tr. 506

7

(January 2012); Tr. 606 (April 2012); Tr. 630 (in October 2012 noting “[s]omatic

8

distress” upon Plaintiff reports of “[h]ardly get[ting] out of bed. Not able to do

9

anything.”); Tr. 629 (on November 5, 2012 Plaintiff reported she spent “[a]ll day Sunday

10

in bed. Joints swollen.”); Tr. 627 (on November 26, 2012 Plaintiff reported she was

11

sleeping for 10 hours); Tr. 627 (December 3, 2012)); and suicidal thoughts (Tr. 504

12

(March 2010); Tr. 629 (October 2012)). Plaintiff reported rarely leaving her house and

13

showering infrequently. (Tr. 629 (October 2012); Tr. 628 (reporting in November 2012

14

that she left the house only once other than to go to the doctors’ appointments and she

15

does not like going out); see also Tr. 627 (noting in January 2013 that Plaintiff was

16

“disconnected socially.”)). In November 2012, Plaintiff told Dr. Furze that she had “‘no

17

plan to continue on the planet.’ Hit self on head—hurt. Considered ‘cutting’ self.

18

Started to try—self mutilation would feel good….I don’t want to live like this.” (Tr.

19

628). In December 2012, Plaintiff reported she was “still in a tailspin despite [increased]

20

medication.

21

Wellbutrin after the death of Plaintiff’s father)).

(Tr. 627; see also Tr. 640 (In December 2012, Dr. Smith increased

22

Dr. Furze’s notes reflect that Plaintiff had difficulty concerning mental

23

organization and she was easily overwhelmed. (Tr. 629). Dr. Furze’s notes also indicate

24

that she discussed methods to help Plaintiff with forgetfulness. (Tr. 606 “Use external

25

brain” i.e. notes to prompt self to daily tasks—i.e. shower, etc.” and “Cont. CBM for

26

routine func[tions and] exercise [increase] clarity of thoughts, [decrease] weight”)). Dr.

27

Furze also discussed setting goals to get to sleep by midnight and to “get on ‘normal’

28

time schedule.” (Tr. 627 (December 2012); see also Tr. 628 (November 2012)). They

- 28 -

1

also set a goal for Plaintiff to increase the times she left her house to every other day,

2

even if only to walk around the block. (Tr. 628). Based on Plaintiff’s treatment history,

3

Dr. Furze wrote the undated letter indicating Plaintiff had “great difficulty concentrating

4

on minor tasks, organizing and motivating herself to accomplish minimal goals[]” (Tr.

5

605) and assessed Plaintiff with several marked and moderate limitations in mental

6

functioning (Tr. 781-83).

7

Although an ALJ may reject a treating doctor’s opinion as based solely on the

8

plaintiff’s subjective complaints where the ALJ has set forth proper reasons to discount

9

the plaintiff’s credibility, see e.g. Tonapeyton v. Halter, 242 F.3d 1144, 1149 (9th Cir.

10

2001), here, as discussed above, the ALJ failed to set forth sufficient reasons to discount

11

Plaintiff’s credibility. Moreover, there is nothing in the record to suggest that either Dr.

12

Furze or Dr. Smith “disbelieved [Plaintiff’s] description of her symptoms, or that [Dr.

13

Furze and Dr. Smith]…relied on those descriptions more heavily than [their] own clinical

14

observations in reaching [their] conclusion[s]…” regarding Plaintiff’s limitations. Ryan

15

v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199-200 (9th Cir. 2008) (citing Regennitter v.

16

Comm’r Soc. Sec. Admin., 166 F.3d 1294, 1300 (9th Cir.1999) (substantial evidence did

17

not support ALJ's finding that examining psychologists took claimant's “statements at

18

face value” where psychologists' reports did not contain “any indication that [the

19

claimant] was malingering or deceptive”)).

20

reasons to discount Plaintiff’s credibility, he may not rely on that credibility assessment

21

to discredit the treating doctors’ opinions.

Because the ALJ provided insufficient

22

To reject Dr. Furze’s and Dr. Smith’s opinions, the ALJ relies heavily on Dr.

23

Smith’s reports that Plaintiff presented on many occasions with appropriate affect, logical

24

thoughts and was cooperative. (See Tr. 14) The Ninth Circuit has recognized that

25

“[r]eports of ‘improvement’ in the context of mental health issues must be interpreted

26

with an understanding of the patient's overall well-being and the nature of her

27

symptoms….They must also be interpreted with an awareness that improved functioning

28

while being treated and while limiting environmental stressors does not always mean that

- 29 -

1

a claimant can function effectively in a workplace” Garrison, 759 F.3d at 1017 (citations

2

omitted). Moreover,
[w]hen mental illness is the basis of a disability claim, clinical and
laboratory data may consist of the diagnoses and observations of
professionals trained in the field of psychopathology. The report of a
psychiatrist should not be rejected simply because of the relative
imprecision of the psychiatric methodology or the absence of substantial
documentation, unless there are other reasons to question the diagnostic
technique.

3
4
5
6
7
8
9
10
11
12

Sanchez v. Apfel, 85 F.Supp.2d 986, (C.D. Cal. 2000) (quoting Christensen v. Bowen, 633
F.Supp. 1214, 1220-21 (N.D.Cal. 1986) (quotation marks and citation omitted). Also of
significance is that Dr. Smith and Dr. Furze had been treating Plaintiff for some time
when they submitted their opinions. Orn, 495 F.3d at 633 (“the treating relationship of
both [treating] physicians provides a ‘unique perspective’ on [Plaintiff’s] condition”.)).
The record reflects that during Plaintiff’s course of treatment with Dr. Smith, he

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

continued to diagnose major depressive disorder and he prescribed Cymbalta and later
added Wellbutrin, and changed dosages of medication several times. (See e.g., Tr. 246
(prescribed Cymbalta); Tr. 243 (increased Cymbalta); Tr. 242 (decrease Ambien,
continue Cymbalta); Tr. 241 (decrease Cymbalta per rheumatologist’s request due to
possibly causing increase in RA symptoms); Tr. 240 (increase Cymbalta); Tr. 239 (add
Wellbutrin); Tr. 238 (medications include Cymbalta, Ambien, Wellbutrin and Ativan),
Tr. 640 (increase Wellbutrin)).

Additionally, consistent with Dr. Furze, Dr. Smith’s

notes also reflect his observations of Plaintiff’s depressive symptoms and continued
complaints of difficulty focusing and processing information (Tr. 246 (on September 24,
2009, Dr. Smith’s impression was significant symptoms of major depressive disorder
“including…prominent cognitive complaints…” upon Plaintiff’s complaints of difficulty
with concentration, decision making and processing information together with weight
gain, sleep issues, increased crying, and little pleasure); Tr. 243 (December 2009 note
indicating “mood better but cognitive [symptoms] still prominent”); Tr. 242 (January
2010 note indicating Dr. Smith’s impression included: “still significant” symptoms of
major

depressive

disorder

“especially
- 30 -

cognitive

complaints

and

poor

1

concentration/focus….”); Tr. 241 (Dr. Smith’s February 2010 assessment included

2

“tiredness and poor conc/focus”); Tr. 240 (May 2010 note of increase in symptoms of

3

major depressive disorder)). Although Dr. Smith’s notes beginning in October 2010

4

reflect that Plaintiff’s symptoms were stable, Dr. Smith added Wellbutrin in March 2011

5

because he found her symptoms to be at a dysthymic level. (Tr. 239 (noting Plaintiff’s

6

report of low motivation and productivity)). In June and September of 2011, he found

7

that although Plaintiff was generally stable, she presented as “flat”. (Tr. 238).12 In May

8

2012, upon Plaintiff’s complaints of increased insomnia and poor focus, Dr. Smith

9

adjusted her medication. (Tr. 599). Medication was increased again in October 2012

10

upon increased depressive symptoms due to grief associated with the death of Plaintiff’s

11

father. (Tr. 640 (also noting Plaintiff presented as “flat”); see also Tr. 639 (December

12

2012 note keeping Plaintiff on higher dose of Wellbutrin: “Generally more stable on

13

higher dose Wellbutrin—has [symptoms] of bereavement since father passed away but

14

less neurovegetative [symptoms].”)). By February 2013, Dr. Smith noted Plaintiff’s

15

continued complaints of poor concentration and problems sleeping, and his impression

16

was: “MDD: Higher stress related to recent medical problems. Worse sleep is notable

17

and is affecting patient’s functioning.” (Tr. 638) He continued Plaintiff on Cymbalta,

18

Wellbutrin and Ativan. (Id.). Also in February 2013, Dr. Smith wrote the Plaintiff met

19

Listing 12.04. (Tr. 652).

20
21
22
23
24
25
26
27
28

12

Consistent with the time period when Dr. Smith found Plaintiff was generally stable, a
September 2011 record from Dr. Patel’s clinic reflects that “[p]resently, [Plaintiff] denies
any depressive symptoms. Current medications include Wellbutrin XL. Currently she is
doing well without any significant affective symptoms. Presently, Ms. Hayden denies
suicidal ideation.” (Tr. 776; see also Tr. 779 (same treatment note reflecting that with
regard to depression, “she is doing well on Wellbutrin”)). Subsequent records reflect
Plaintiff’s report during 2011 through May 2012 to providers at the Patel Medical Clinic
that her depression was “well controlled on medication….” (Tr. 756, 759 (although
Plaintiff “seemed anxious”), 762, 765, 768, 771). The Ninth Circuit has recognized in
the context of mental health issues that “[c]ycles of improvement and debilitating
symptoms are a common occurrence….‘[The treating physicians’] statements must be
read in the context of the overall diagnostic picture he draws.’” Garrison, 759 F.3d at
1017 (quoting Holohan, 246 F.3d at 1205).
- 31 -

1

There is no indication on the record that the doctors reviewing Plaintiff’s claim of

2

mental impairment, to whom the ALJ attributed substantial weight, reviewed Plaintiff’s

3

medical records dated after January 2012. (See e.g., Tr. 91-92, 109-110 (both indicating

4

date last insured of December 31, 2011)).

5

assessments from Dr. Furze. (See e.g. Tr. 91-92; Tr. 109-110).

6

provide a broader picture of Plaintiff’s alleged mental impairment and limitations and

7

inform consideration of Dr. Smith’s opinion, as well. Yet, the records appear to have

8

been overlooked by the nonexamining doctors.

Nor do they refer to any records or
Dr. Furze’s records

9

Drs. Smith’s and Furze’s records contain documentation to support the conclusion

10

that Plaintiff is more limited than that determined by the reviewing doctors and the ALJ.

11

As discussed above, the nonexamining doctors’ opinions in this case, which appear to be

12

based upon findings in Dr. Smith’s records through January 2012 and no other clinical

13

findings, cannot by themselves constitute substantial evidence upon which to reject Dr.

14

Smith’s opinion. See Orn, 495 F.3d at 632-33; Lester, 81 F.3d at 831. Upon full review

15

of the record as discussed above, the Court concludes that the ALJ failed to set forth

16

specific and legitimate reasons supported by substantial evidence of record for rejecting

17

Drs. Smith’s and Furze’s opinions. This error impacts the ALJ’s analysis beginning at

18

step two.

19

D.

20

Plaintiff submitted a letter from her former supervisor Normal Bell, who

21

commented upon workplace accommodations provided to Plaintiff, finding her “stretched

22

out on the floor, straightening her back…”, and recurring mobility issues with her hands

23

and fingers which limited her typing. (Tr. 227). The ALJ gave Mr. Bell’s statements

24

little weight because they were “based on what the claimant told him or displays for him,

25

and the claimant is not fully credible….” (Tr. 18). The ALJ also stated that Mr. Bell’s

26

statements were contradicted by the objective evidence. (Id.).

LAY TESTIMONY

27

“Lay testimony as to a claimant's symptoms or how an impairment affects the

28

claimant's ability to work is competent evidence that the ALJ must take into account.”

- 32 -

1

Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.2012) (citations omitted). To discount

2

competent lay witness testimony, the ALJ must state reasons that are germane to each

3

witness. Id. Because the ALJ failed to set forth sufficient reasons for finding Plaintiff

4

not fully credible, his rejection of Mr. Bell’s statement as based on Plaintiff’s reports is

5

without basis. As to the ALJ’s finding that Mr. Bell based his comments on Plaintiff’s

6

“displays” for him, Plaintiff persuasively argues that she “was terminated in 2008 and she

7

filed her application [for disability benefits] in 2011. Apparently, the ALJ believes that

8

at least four years before she filed for disability, she was laying the groundwork for her

9

case by faking back pain, getting down on the floor and stretching in front of her

10

supervisor.” (Doc. 14, p. 12).

11

complaint of back issues, as well as pain and swelling in her hands and fingers which, in

12

turn, support Mr. Bell’s statements concerning Plaintiff’s limited ability to type. The

13

ALJ failed to set forth sufficient reasons to reject Mr. Bell’s statement.

Further, the objective medical record supports Plaintiff’s

14

E.

15

The ALJ determined that Plaintiff could perform her past work as an research

16

director (editor) and journalist. (Tr. 18-19). Plaintiff argues that the record does not

17

support a conclusion that she ever worked as a journalist as that job is described by the

18

Dictionary of Occupational Titles and that her past work as a research director, as she

19

actually performed such work, is precluded by the ALJ’s RFC assessment, which

20

included limitations on sitting and use of her hands for fine manipulation.

PLAINTIFF’S PAST RELEVANT WORK

21

Plaintiff bears the burden of establishing that she cannot perform her prior relevant

22

work either as actually performed or as generally performed in the national economy.

23

Lewis v. Barnhart, 281 F.3d 1081, 1084 (9th Cir. 2002); see also SSR 82-61, 1982 WL

24

31387, *1-*2. With respect to making vocational findings as to whether a claimant can

25

perform her past relevant work, “the best source for how a job is generally performed is

26

usually the Dictionary of Occupational Titles.” Pinto v. Massanari, 249 F.3d 840, 845

27

(9th Cir. 2001).

28

The Court agrees with Plaintiff that despite referring to herself as a journalist

- 33 -

1

during testimony (Tr. 44), the substantial evidence of record does not support the

2

conclusion that Plaintiff’s past work involved being a “reporter” as that term is identified

3

in the Dictionary of Occupational Titles entry cited by the VE and ALJ. (See e.g., Tr.

4

201-04, 113). While the Court agrees with Defendant that Plaintiff must show that she

5

cannot perform her past relevant work as either actually performed or generally

6

performed, the substantial evidence of record at this point, for the reasons stated above,

7

does not support the ALJ’s RFC assessment given his improper rejection of opinions

8

from Plaintiff’s treating doctors, Plaintiff’s credibility and Mr. Bell’s statements.

9

V.

REMAND FOR FURTHER PROCEEDINGS

10

Plaintiff requests that the Court remand this matter for payment of benefits

11

because “[t]he evidence in its totality demonstrates that [she] was and is unable to

12

work….” (Doc. 18, p. 11; see also Doc. 14, p. 17). In the event the Court determines the

13

ALJ’s decision contains harmful error, Defendant requests that the Court remand for

14

further proceedings. (Doc. 15, pp. 22-23).

15

“A district court may ‘revers[e] the decision of the Commissioner of Social

16

Security, with or without remanding the cause for a rehearing,’ Treichler v. Comm'r of

17

Soc., Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (citing 42 U.S.C. § 405(g))

18

(alteration in original), but ‘the proper course, except in rare circumstances, is to remand

19

to the agency for additional investigation or explanation,’ id. (quoting Fla. Power &

20

Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)).”

21

Dominguez, 808 F.3d at 407. Remand for an award of benefits is appropriate only where

22

the following three prerequisites are met:

23
24
25
26
27
28

(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion; and (3) if the improperly discredited
evidence were credited as true, the ALJ would be required to find the
claimant disabled on remand.[13]
13

The Ninth Circuit has noted that the third factor “naturally incorporates what we
have sometimes described as a distinct requirement of the credit-as-true rule, namely that
- 34 -

1

Garrison, 759 F.3d at 1020 (footnote and citations omitted). In evaluating whether

2

further administrative proceedings would be useful, the court “consider[s] whether the

3

record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues

4

have been resolved, and whether the claimant's entitlement to benefits is clear under the

5

applicable legal rules.” Treichler, 775 F.3d at 1103-04.

6

The Ninth Circuit has been clear that it is an abuse of discretion to remand “for an

7

award of benefits when not all factual issues have been resolved.” Treichler, 775 F.3d at

8

1101, n.5 (citation omitted). Moreover, even when all three factors of the test are met,

9

the “district court retains the flexibility to ‘remand for further proceedings when the

10

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

11

within the meaning of the Social Security Act.’” Treichler, 775 F.3d at 1102 (quoting

12

Garrison, 759 F.3d at 1021); see also Dominguez, 808 F.3d at 407-08 (“the district court

13

must consider whether…the government has pointed to evidence in the record ‘that the

14

ALJ overlooked’ and explained ‘how that evidence casts into serious doubt’ the

15

claimant’s claim to be disabled.”)(quoting Burrell, 775 F.3d at 1141).

16

With regard to Plaintiff’s statements about the limiting effects of her impairments,

17

“an ALJ's failure to provide sufficiently specific reasons for rejecting the testimony of a

18

claimant or other witness does not, without more, require the reviewing court to credit the

19

claimant’s testimony as true.” Treichler, 775 F.3d at 1106 (“a reviewing court is not

20

required to credit claimants’ allegations regarding the extent of their impairments as true

21

merely because the ALJ made a legal error in discrediting their testimony.”). “The

22

touchstone for an award of benefits is the existence of a disability, not the agency's legal

23

error. To condition an award of benefits only on the existence of legal error by the ALJ

24

would in many cases make disability benefits…available for the asking, a result plainly

25

contrary to 42 U.S.C. § 423(d)(5)(A).” Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th

26

Cir. 2015) (internal quotation marks and citations omitted). Thus, “only where ‘there are

27
28

there are no outstanding issues that must be resolved before a determination of disability
can be made.” Garrison, 759 F.3d at 1020 n. 26 (citing Smolen, 80 F.3d at 1292).
- 35 -

1

no outstanding issues that must be resolved before a determination of disability can be

2

made,’ do we have discretion to credit a claimant's testimony as true and remand for

3

benefits, and only then where ‘it is clear from the record that the ALJ would be required

4

to find [the claimant] disabled’ were such evidence credited.” Treichler, 775 F.3d at

5

1106. (quoting Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir 2004)).

6

Plaintiff contends that, in light of the ALJ’s failure to set forth sufficient reasons to

7

reject Dr. Barry’s restriction regarding telecommuting, Dr. Barry’s opinion should be

8

credited thus resulting in the award of benefits in light of the VE testimony. (See e.g.

9

Doc. 14, p. 10). However, Dr. Barry wrote the letter in 2005, and even though Plaintiff

10

points out that the Doctor never retracted the restriction, the record reflects that Dr. Barry

11

based that restriction on Plaintiff’s RA and “more recent[] chronic intermittent pleuritis”,

12

both of which caused “joint and chest pain intermittently”.

13

acknowledged that the need for telecommuting “would vary depending on how [Plaintiff]

14

responds to future treatments.” (Id.). The record reflects Plaintiff’s complaint of chest

15

discomfort as late as July 2010. (See e.g., Tr. 545-46 (in July 2010, Plaintiff complained

16

of “constant chest discomfort but no evidence of recurrent pleural effusion[]” and Dr.

17

Lim14 noted: “Stable, follow. Suspicious for pleuritic origin.”)). However, by January

18

2011, Dr. Lim found “no recent exacerbations of pleurisy.” (Tr. 542); see also Tr. 537 (a

19

January 2012 note reflects “no recent exacerbations of pleurisy…”, although Plaintiff had

20

a mild respiratory infection)). In July 24, 2012, Dr. Lim wrote that Plaintiff “has a

21

history of rheumatoid arthritis and recurrent bouts of pleurisy…the latter has not been

22

problematic in quite some time.” (Tr. 624)). Dr. Lim’s July 24, 2012 note also reflects

23

Plaintiff’s report that “[h]er current immunosuppressive regimen has been working very

24

well to control her rheumatoid symptoms.” (Id.). Plaintiff contends she got worse after

25

Dr. Barry’s 2005 letter and cites to the addition of monthly Orencia infusions for that

26

premise. (Doc. 18, p. 4). However, Defendant points out that in January 2013, Plaintiff

27

reported significant improvement in her RA while on Orencia and that she was able to do

28
14

Dr. Lim treated Plaintiff for pulmonary issues.
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(Tr. 785).

Dr. Barry

1

travel frequently to California. (Doc. 15 p. 14; see also Tr. 623-24 (Plaintiff’s report in

2

July 2012 to Dr. Lim that her current immunosuppressive regimen, which included

3

Orencia, had been working very well to control her RA symptoms); Tr. 779 (Plaintiff

4

reported in September 2011 that she was “doing well on her current regimen” for RA,

5

which included Orencia); but see Tr. 401-02 (Plaintiff’s May 2010 report of significant

6

increase in RA activity despite the Methotrexate and Orenica. Arava was discussed); Tr.

7

654 (in January 2010, although Plaintiff reported doing “fairly well in terms of her RA”,

8

while on Orencia, she also complained of morning stiffness lasting from two minutes to

9

one hour)). Plaintiff did not testify about chest discomfort or chest pain at the hearing.

10

The matter of Dr. Barry’s letter and impact of Plaintiff’s RA and pleuritis during the time

11

period at issue requires further exploration.

12

Additionally, the ALJ relied on opinions from nonexamining doctors whose

13

opinions were based solely on a record review but who appear not to have evaluated

14

portions of Plaintiff’s medical record even though the records were before them due to

15

their mistaken belief that Plaintiff’s date last insured was fell in 2011 instead of 2013.

16

Apparently, because of the mistake concerning Plaintiff’s date last insured, no

17

consultative examination was conducted despite nonexamining Dr. Goodrich’s

18

observation that there were “no good functional examinations” in the record. (Tr. 111).

19

Cf. Penny,2 F.3d at 958 (“Without a personal medical evaluation it is almost impossible

20

to assess the residual functional capacity of any individual.”). The ALJ’s consideration

21

of Plaintiff’s limitations caused by RA overlooks the longitudinal picture of Plaintiff’s

22

continued complaints, especially with issues involving her hands and fingers which could

23

very well impact the ALJ’s RFC assessment and finding that Plaintiff could do past work.

24

With regard to Plaintiff’s mental impairments, while the Court has set out reasons

25

why the ALJ improperly rejected Dr. Smith’s and Dr. Furze’s opinions, Defendant

26

persuasively casts serious doubt regarding the Doctors’ opinions. See e.g. Dominguez,

27

808 F.3d at 407. Dr. Smith provided absolutely no explanation to support his brief

28

statement that Plaintiff met Listing 12.04. (See Doc. 15, p. 9 (“Dr. Smith does not even

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1

identify which criteria in Listing 12.04 he believes Plaintiff satisfies.”)). Even assuming

2

that Dr. Smith’s sparse notes, which mention Plaintiff’s continued symptoms from

3

depression, support a finding under Paragraph A of the Listing, they do little to support

4

the necessary findings for the Paragraph B criteria. The same is true of Dr. Furze’s notes

5

with regard to her opinion expressed in her letters and her Mental Work Tolerance

6

Recommendations. Treatment notes from other providers indicating Plaintiff was well

7

groomed (Tr. 743 747, 752, 755, 761, 770, 773, 778), conflict with Dr. Furze’s statement

8

that Plaintiff’s depression interfered with routine hygiene and grooming.

9

Plaintiff cannot be faulted for retaining her long treatment relationship with doctors in

10

California, the scheduling and travel plans associated with same arguably undermine Dr.

11

Furze’s opinion that Plaintiff is significantly limited in areas such as organizing herself,

12

understanding and remembering simple instructions, or using public transportation.

13

Additionally, Plaintiff achieved a level of stability with her depressive symptoms for

14

some time in 2011 and 2012 as reported by Drs. Smith and Patel. While the Court

15

recognizes that cycles of improvement must be read in the context of the overall

16

diagnostic picture, the record suggest that Plaintiff’s subsequent increase in depression in

17

2012 may have been situational in light of the passing of Plaintiff’s father, as noted by

18

the ALJ. (Tr. 13). Even Plaintiff has suggested that “a consultative examination…might

19

have shed light on her psychiatric impairments.” (Doc. 14, p. 7).

Although

20

For the above stated reasons, while the record strongly supports the conclusion

21

that Plaintiff may have limitations caused by her mental impairment that the ALJ did not

22

include in the RFC assessment, inconsistencies and conflicts in the record preclude

23

crediting Dr. Smith’s and Dr. Furze’s opinions at this point.

24

consideration of the impact of any limitations caused by Plaintiff’s mental impairments

25

on her ability to work may require exploration with a VE. Moreover, even if Dr. Barry’s,

26

Dr. Smith’s, and Dr. Furze’s opinions, taken together or separately, satisfy the three

27

preliminary requirements for awarding benefits, for the reasons stated above, the record

28

as a whole creates serious doubt as to whether Plaintiff is, in fact, disabled under the

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Additionally, further

1

Social Security Act. Consequently, remand for an award of benefits in this case is

2

inappropriate. Brown-Hunter, 806 F.3d at 496 (remanding to the ALJ on an open record

3

for further proceedings where there is conflicting evidence and not all essential factual

4

issues have been resolved); Burrell, 775 F.3d at 1142 (remanding to the ALJ on an open

5

record where the record creates serious doubt as to whether the claimant is, in fact,

6

disabled.”). Instead, this matter shall be remanded to the ALJ on an open record for

7

further proceedings. See id.

8

The Court is not unsympathetic to the fact that remand for further proceedings

9

prolongs an ultimate resolution. As, the Ninth Circuit has stated: “While we have

10

recognized the impact that delays in the award of benefits may have on claimants, such

11

costs are a byproduct of the agency process, and do not ‘obscure the more general rule

12

that the decision of whether to remand for further proceedings turns upon the likely utility

13

of such proceedings.’” Treichler, 775 F.3d at 1103 (quoting Harman v. Apfel, 211 F.3d

14

1172, 1179 (9th Cir. 2000)).

15

VI.

16
17

CONCLUSION
For the foregoing reasons, this matter is remanded to the ALJ on an open record

for further proceedings consistent with this Order. Accordingly,

18

IT IS ORDERED that:

19

(1)

the Commissioner’s decision denying benefits is REVERSED; and

20

(2)

this action is REMANDED to the Commissioner on an open record for

21
22
23
24

further proceedings.
The Clerk of Court is DIRECTED to enter Judgment accordingly and to close its
file in this matter.
Dated this 25th day of March, 2016.

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26
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