Elias v. Colvin
Filing
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ORDER: IT IS ORDERED that the final decision of the Commissioner is reversed. The case is remanded for further administrative proceedings. The Clerk of the Court is directed to prepare a judgment and close this case. Signed by Magistrate Judge Leslie A Bowman on 4/25/2016. (See attached PDF for complete information)(DLC)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting Commissioner)
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of Social Security,
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Defendant.
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Margaret Lorraine Elias,
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No. CIV 14-2371-TUC-LAB
ORDER
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The plaintiff filed this action for review of the final decision of the Commissioner for
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Social Security pursuant to 42 U.S.C. §§405(g) and 1383(c). (Doc. 1)
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The Magistrate Judge presides over this action pursuant to the 28 U.S.C. 636(c). (Doc.
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11)
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The Commissioner concedes the decision of the Administrative Law Judge (ALJ)
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denying benefits must be reversed. The action will be remanded for further administrative
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proceedings.
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PROCEDURAL HISTORY
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On April 7, 2006, Elias applied for disability insurance benefits and supplemental
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security income. (Tr. 88, 91). She alleged disability beginning on October 15, 2005, due to
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fibromyalgia, depression, back problems, high blood pressure, and “prone to illness.” (Tr. 107)
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Her claim was denied initially (Tr. 54-57) and upon reconsideration. (Tr. 60-66) Elias
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requested review and appeared with counsel at a hearing before Administrative Law Judge
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(ALJ) Lauren R. Mathon on September 6, 2007. (Tr. 11-18) In her decision, dated November
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28, 2007, the ALJ found Elias was not disabled from the alleged onset date, October 15, 2005,
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until the date of the decision. Id. Elias appealed, but the Appeals Council denied review. (Tr.
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Elias filed an action in this court appealing the Commissioner’s final decision. See 20
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C.F.R. § 422.210(a). The Commissioner’s final decision was reversed, and the case was
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remanded for further administrative proceedings. CV-10-244-TUC-CKJ (GEE), (Doc. 25)
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Elias supplemented the medical record and appeared with counsel at a second hearing
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before Administrative Law Judge (ALJ) Lauren R. Mathon on July 16, 2012. (Tr. 530) In her
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decision, dated August 9, 2012, the ALJ again found Elias was not disabled from the alleged
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onset date, October 15, 2005, until the date of the decision. (Tr. 511-521) Elias appealed, but
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the Appeals Council denied review making the decision of the ALJ the final decision of the
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Commissioner. (Tr. 493-496); See Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir.
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1989).
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Elias subsequently filed this action appealing the Commissioner’s final decision. See 20
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C.F.R. § 422.210(a). She argues, among other things, that the ALJ failed to properly credit the
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opinion of the treating physician R.L. Goedecke, D.O. (Doc. 14)
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The Commissioner filed an answering brief on April 8, 2015. (Doc. 18) She concedes
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the ALJ’s decision must be reversed and argues the case should be remanded for further
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administrative proceedings. Id. Elias filed a reply on April 27, 2015. (Doc. 19) She argues
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the action should be remanded for an award of benefits. Id.
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Claimant’s Work History and Medical History
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At the time of the second hearing, Elias was 55 years old and a high school graduate.
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(Tr. 532-534).
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She previously worked full-time as a registration and attendance clerk. (Tr. 536) She
briefly worked selling Avon products and doing odd jobs for an elderly couple. (Tr. 537)
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The medical record begins in 2002 with a prescription record for Levoxyl, which is used
to treat hypothyroidism, and Cartia, which is used to treat hypertension. (Tr. 395-96, 461)
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In 2003, Elias was diagnosed with breast cancer and was treated with a modified radical
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mastectomy. (Tr. 222, 264) After surgery, she was prescribed Tamoxifen and then Aromasin.
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(Tr. 298, 301, 303). Aromasin is an aromatase inactivator that “decreases the availability of
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estrogen needed to maintain tumor growth.” The Merck Manual of Diagnosis and Therapy,
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Seventeenth Ed., p. 1982 (1999); http://www.pdr.net/drug-summary/Aromasin-exemestane-475
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#16. Her subsequent x-rays and mammograms were negative for any cancer recurrence. (Tr.
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298, 300, 422, 424)
X-rays taken in January of 2005 indicate mild hypertrophic spondylosis of the dorsal
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spine. (Tr. 425)
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In May of 2006, Elias’ treating physician, R.L. Goedecke, D.O., prescribed Zoloft for
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depression, which Elias attributed to her cancer medication. (Tr. 401) In June of 2006, Elias
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reported mental cloudiness, forgetfulness, memory loss, neck and shoulder pain, right hand pain,
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and pain down the back of her legs. (Tr. 401) She expressed a desire to be tested for
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fibromyalgia. (Tr. 401) In September of 2006, Goedecke noted Elias had a positive test for
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ANA (antinuclear antibody) indicating a possible autoimmune reaction. (Tr. 398)
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Earlier, in July of 2006, Elias sought treatment for depression at COPE Behavioral
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Services, Inc. (Tr. 355-58) She was prescribed Zoloft by Richard Barnes, M.D. (Tr. 477, 481,
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485)
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Goedecke referred Elias to a rheumatologist, J. Steven Strong, M.D., for neck and
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shoulder pain. (Tr. 323) In November of 2006, Strong examined Elias and recorded the
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following impression: “1. Cervical spondylosis with DDD, C4, C5 and C6; 2. Lumbar
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degenerative facet disease at L4/L5 and L5/S1; 3. History of low thyroid function, on thyroid
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replacement medication; 4. Essential HTN; 5. Status post breast malignancy, on long term
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Aromasin therapy.” (Tr. 323) (punctuation modified) He noted that, while Elias had a positive
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ANA test, she does not have active collagen disease. Id. He noted “mechanical abnormalities
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developing in her C and L spine” and recommended strengthening exercises and weight
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reduction. Id. He opined that her lethargy and fatigue may be a side effect of her medication.
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Id.
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Previously, in June of 2006, Paul J. Tangeman, reviewed the medical record and
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completed a Psychiatric Review Technique form assessing Elias’ psychological limitations. (Tr.
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276-89) Tangeman found “no medically determinable impairment.” Id.
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In July of 2006, Elias was examined by Jeri B. Hassman, M.D., at the behest of the state
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disability determination service. (Tr. 290) Hassman offered the following diagnoses: “History
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of stage 2 breast cancer and status post left mastectomy in 2003, currently on Aromasin; No
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evidence of fibromyalgia; Hypertension, controlled on medications; Depression. . . .” (Tr. 293)
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Hassman opined Elias could lift or carry 20-30 pounds occasionally and 10 pounds frequently.
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(Tr. 294)
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In January of 2007, Charles Fina, M.D., reviewed the medical record and completed a
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Physical Residual Functional Capacity Assessment of Elias’ ability to perform work related
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tasks. (Tr. 52, 386-93) Fina noted a primary diagnosis of hypertension and back pain. (Tr.
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386-93) He noted a secondary diagnosis of obesity and depression. Id. Fina concluded Elias
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could lift 50 pounds occasionally and 25 pounds frequently. Id. She could stand, walk, or sit
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about 6 hours in an 8-hour day. Id. He noted Elias should only occasionally climb ladders,
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ropes, and scaffolds. Id.
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In January of 2007, Eugene Campbell, reviewed the medical record and completed a
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Psychiatric Review Technique form assessing Elias’ psychological limitations. (Tr. 372-85)
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Campbell assessed a non-severe affective disorder. Id. He found Elias is mildly restricted in
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her “activities of daily living” and has mild difficulties “maintaining concentration, persistence
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or pace.” Id.
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In June of 2007, Elias underwent a nerve conduction study by Kaidong Wang, M.D. (Tr.
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427-30) Elias complained of numbness and tingling primarily in the fingertips of her right hand
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over the past 3 years. Id. She also complained of neck pain for at least the past five years. Id.
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Wang diagnosed “moderately severe bilateral carpal tunnel syndrome.” (Tr. 430) He found “no
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evidence of cervical radiculopathy.” Id. He recommended braces and education. Id. He did
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not think surgery was needed at that time. Id.
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In August of 2007, Richard Barnes, M.D., completed a Medical Source Statement
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Concerning the Nature and Severity of an Individual’s Mental Impairment. (Tr. 447-50)
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Barnes found Elias “markedly limited” in her “ability to perform activities within a schedule,
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maintain regular attendance and be punctual within customary tolerances.” (Tr. 448) He found
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her “moderately limited” in her “ability to complete a normal work day and workweek without
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interruption from psychologically based symptoms . . .” Id.
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In September of 2007, Elias’ treating physician, R.L. Goedecke, D.O., completed a
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Medical Source Statement Concerning the Nature and Severity of an Individual’s Physical
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Impairment. (Tr. 452) He opined Elias could carry less than 10 pounds occasionally and
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nothing frequently. Id. She could stand or walk less than 2 hours in an 8-hour day. Id. She
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could not sit, climb, balance, stoop, kneel, crouch, crawl, reach, handle, finger, or feel. (Tr. 452-
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53) He opined Elias was “unable to handle any occupation” due to her Aromasin treatment,
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joint pain, chronic fatigue, and fibromyalgia-lupus. (Tr. 454)
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On September 4, 2007, Elias’ sister, Barbara R. Hutchings, wrote a letter on Elias’s
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behalf. (Tr. 243) Hutchings wrote that she gives Elias and her son rides when Elias is not
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feeling well. Id. Sometimes, she picks up groceries for them. Id. Hutchings estimates that she
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helps Elias with errands “a few times a month.” Id.
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At a hearing before the ALJ on July 16, 2012, Elias testified that she is unable to work
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due to “a big decline in my mental strengths, my mental capacities as far as remembering, as
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far as the thought process, my extreme fatigue that I’m still experiencing.” (Tr. 541) She
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opined her fatigue could be caused by her medications. (Tr. 541) She also complained of
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“achiness that I feel in my body, the pain, my neck and shoulders from the fibromyalgia.” (Tr.
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541)
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Elias also complained of back pain. (Tr. 542) She stated, “I have a problem with my
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lower back and my sciatic.” (Tr. 542) Elias conceded, however, that she is not a doctor and
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does not know for certain that her pain comes from fibromyalgia or sciatica. (Tr. 544)
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Since the previous hearing, she has not had hand surgery, but her physician has
prescribed hand braces. (Tr. 538) She stated they help “a little bit.” (Tr. 539)
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Elias takes hydrochlorothiazide for blood pressure, levothyroxine for her thyroid and
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sertraline for depression. (Tr. 545) She no longer takes Aromasin to prevent breast cancer. (Tr.
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545) She states she is fatigued and naps for a couple of hours “maybe four days out of a week.”
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(Tr. 545) Elias testified that she shops for groceries, but her son helps her now. (Tr. 545-546)
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Vocational expert Kathleen McAlpine testified that the attendance clerk and data entry
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clerk jobs are sedentary and semiskilled. (Tr. 547-548) She further testified that a person with
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the same age, education, and vocational background as Elias who could perform light level
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work and was limited to frequent climbing, balancing, stooping, kneeling, crouching and
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crawling, and could occasionally climb ladders, ropes, and scaffolds could work as a data entry
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clerk, security guard, companion, or hostess. (Tr. 549-552) Such a person could still work as
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a security guard, companion, or hostess if they could use their right hand only frequently but
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not continuously. (Tr. 551-552)
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CLAIM EVALUATION
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Social Security Administration (SSA) regulations require that disability claims be
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evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520, 416.920; Baxter
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v. Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991). The first step requires a determination of
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whether the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4),
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416.920(a)(4). If so, then the claimant is not disabled, and benefits are denied. Id. If the
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claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two which
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requires a determination of whether the claimant has a “medically severe impairment or
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combination of impairments.” 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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In making a determination at step two, the ALJ uses medical evidence to consider
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whether the claimant’s impairment more than minimally limits or restricts his or her “physical
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or mental ability to do basic work activities.” Id. If the ALJ concludes the impairment is not
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severe, the claim is denied. Id. Upon a finding of severity, the ALJ proceeds to step three,
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which requires a determination of whether the impairment meets or equals one of several listed
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impairments that the Commissioner acknowledges are so severe as to preclude substantial
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gainful activity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P,
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App.1. If the claimant’s impairment meets or equals one of the listed impairments, then the
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claimant is presumed to be disabled, and no further inquiry is necessary. Ramirez v Shalala,
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8 F.3d 1449, 1452 (9th Cir. 1993). If the claimant’s impairment does not meet or equal a listed
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impairment, evaluation proceeds to the next step.
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The fourth step requires the ALJ to consider whether the claimant has sufficient residual
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functional capacity1 (RFC) to perform past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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If the ALJ concludes the claimant has sufficient RFC, then the claim is denied. Id. If the
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claimant cannot perform any past work, then the ALJ must move to the fifth step, which
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requires consideration of the claimant’s RFC to perform other substantial gainful work in the
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national economy in view of the claimant’s age, education, and work experience. 20 C.F.R. §§
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404.1520(a)(4); 416.920(a)(4).
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In determining whether the claimant retains the ability to perform other work, the ALJ
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may refer to the Medical Vocational Guidelines (“the grids”) promulgated by the SSA. Tackett
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v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). The grids categorize jobs according to their
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exertional requirements such as sedentary work, light work, or medium work. Id. Based on the
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claimant’s exertional ability, age, education, and work experience, the grids determine whether
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or not the claimant is disabled. Id. The grids are a valid basis for denying claims where they
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completely and accurately describes the claimant’s abilities and limitations. Id. at 1101-02.
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Residual functional capacity is defined as that which an individual can still do despite his or
her limitations. 20 C.F.R. §§ 404.1545, 416.945.
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If the claimant has significant nonexertional limitations, the grids do not apply. Penny
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v. Sullivan, 2 F.3d 953, 958-959 (9th Cir.1993). “Non[]exertional limitations are limitations that
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do not directly affect a claimant’s strength.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th
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Cir.1988). Mental limitations are nonexertional. Id. at 1340-41. If nonexertional limitations
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“significantly limit the range of work permitted by the claimant’s exertional limitations, the
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grids are inapplicable,” and the ALJ must take the testimony of a vocational expert to deny the
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claim. Id. at 1341.
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“The burden of proof is on the claimant as to steps one to four.” Tackett v. Apfel, 180
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F.3d 1094, 1098 (9th Cir. 1999). “As to step five, the burden shifts to the Commissioner.” Id.
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The ALJ’s Findings
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At step one of the disability analysis, the ALJ found Elias “has not engaged in substantial
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gainful activity since October 15, 2005, the alleged onset date.” (Tr. 513) At step two, she
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found Elias has “the following severe combination of impairments: status post breast cancer and
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mastectomy; back pain.” Id. At step three, the ALJ found Elias’s impairments did not meet or
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equal the criteria for any impairment found in the Listing of Impairments, Appendix 1, Subpart
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P, of 20 C.F.R., Part 404. (Tr. 518)
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The ALJ then analysed Elias’s residual functional capacity (RFC). (Tr. 518) The ALJ
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overlooked Goedecke’s opinion and erroneously stated “none of the claimant’s treating
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physicians has completed a medical source statement on the claimant’s ability to do work-
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related physical activities.” (Tr. 520) She found Elias has the residual functional capacity to
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perform a light level work2 “except that postural activities are limited to frequent for climbing,
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balancing, stooping, kneeling, crouching and crawling; she can occasionally climb ladders,
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ropes and scaffolds.” Id.
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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567, 416.967.
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At step four, the ALJ found Elias was able to perform her “past relevant work as a data
entry clerk (school attendance clerk)” and was not disabled. (Tr. 520-521)
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STANDARD OF REVIEW
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An individual is entitled to disability benefits if he or she demonstrates, through
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medically acceptable clinical or laboratory standards, an inability to engage in substantial
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gainful activity due to a physical or mental impairment that can be expected to last for a
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continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “[A]
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claimant will be found disabled only if the impairment is so severe that, considering age,
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education, and work experience, that person cannot engage in any other kind of substantial
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gainful work which exists in the national economy.” Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.
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1993).
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The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g),
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1383(c)(3). The decision to deny benefits “should be upheld unless it contains legal error or is
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not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
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Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept
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as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a
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preponderance.” Id.
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“Where evidence is susceptible to more than one rational interpretation, the ALJ’s
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decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider
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the entire record as a whole and may not affirm simply by isolating a specific quantum of
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supporting evidence.” Id.
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In evaluating evidence to determine whether a claimant is disabled, the opinion of a
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treating physician is entitled to great weight. Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir.
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1993). The Commissioner may reject a treating physician’s uncontradicted opinion only if she
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sets forth clear and convincing reasons for doing so. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
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1995). If the treating physician’s opinion is contradicted by another doctor, the Commissioner
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may reject that opinion only if she provides specific and legitimate reasons supported by
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substantial evidence in the record. Lester, 81 F.3d at 830. No distinction is drawn “between
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a medical opinion as to a physical condition and a medical opinion on the ultimate issue of
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disability.” Rodriguez v. Bowen, 876 F.2d 759, 761 n.7 (9th Cir. 1989).
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“The opinion of an examining physician is, in turn, entitled to greater weight than the
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opinion of a non[-]examining physician.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).
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“[T]he Commissioner must provide ‘clear and convincing’ reasons for rejecting the
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uncontradicted opinion of an examining physician.” Id. “[T]he opinion of an examining doctor,
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even if contradicted by another doctor, can only be rejected for specific and legitimate reasons
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that are supported by substantial evidence in the record.” Id. at 830-31.
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The ALJ need not accept the claimant’s subjective testimony of disability, but if she
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decides to reject it, “she must provide specific, cogent reasons for the disbelief.” Lester, 81
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F.3d at 834. “Unless there is affirmative evidence showing that the claimant is malingering, the
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Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.”
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Id. “General findings are insufficient; rather, the ALJ must identify what testimony is not
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credible and what evidence undermines the claimant’s complaints.” Id.
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DISCUSSION
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The ALJ erred by not considering the opinion of the treating physician Goedecke when
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evaluating Elias’s RFC. The Commissioner concedes this point and acknowledges that the case
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must be remanded. The court must decide whether that remand should be for further
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administrative proceedings or for payment of benefits.
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Ordinarily, if the Commissioner is reversed, the court should remand for further
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administrative proceedings. The court may, however, remand for payment of benefits if “(1)
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the record has been fully developed and further administrative proceedings would serve no
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useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting
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evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited
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evidence were credited as true, the ALJ would be required to find the claimant disabled on
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remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
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The case should be
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remanded for further proceedings, however, “when the record as a whole creates serious doubt
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as to whether the claimant is, in fact, disabled.” See Garrison, 759 F.3d at 1022. “A claimant
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is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter
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how egregious the ALJ’s errors may be.” Strauss v. Commissioner of the Soc. Sec. Admin., 635
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F.3d 1135, 1138 (9th Cir. 2011).
Here, Elias argues that the ALJ impermissibly ignored Goedecke’s opinion of her
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physical limitations, and she should be awarded benefits on the strength of his opinion.
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Goedecke opined in September of 2007 that Elias could carry less than 10 pounds
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occasionally and nothing frequently. (Tr. 452) He further concluded she could stand or walk
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less than 2 hours in an 8-hour day. Id. She could not tolerate any amount of sitting. Id. She
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could never push or pull with her upper or lower extremities. Id. He further concluded that
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Elias was “unable to handle any occupation.” (Tr. 454) Goedecke’s opinion, if credited as
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true, would mean that Elias was indeed disabled. Certain aspects of his opinion, however, are
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inconsistent with the record as a whole. These inconsistencies must be addressed before the
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issue of disability can be resolved.
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For example, Goedecke’s opinion is so limiting is seems to preclude any employment
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at all. The record indicates, however, that Elias was working part-time in May of 2012. (Tr.
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676)
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Goedecke’s opinion that Elias cannot tolerate any amount of sitting and could never push
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or pull with her upper or lower extremities seems to rule out driving a car. Elias, however,
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testified in her first hearing that she does drive. (Tr. 26)
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Moreover, Goedecke attributed Elias’s functional limitations, at least in part, to her
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treatment with Aromasin. Elias, however, stated at the second hearing that she stopped taking
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Aromasin in the summer of 2011. (Tr. 545)
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Goedecke also stated that Elias’s physical limitation could be attributed to her
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fibromyalgia. Elias, however, conceded at the second hearing that she has not been diagnosed
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with fibromyalgia. (Tr. 544) Goedecke previously referred Elias to a rheumatologist, J. Steven
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Strong, M.D., for neck and shoulder pain. (Tr. 323); (Doc. 14, p. 7) In November of 2006,
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Strong examined Elias, and found that, while Elias has a positive ANA test, she does not have
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active collagen disease. (Tr. 323) He concluded, “[s]he is not a candidate for steroid therapy
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or immunosuppressive therapy.” (Tr. 323) For her joint pain, Strong prescribed head lift
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exercises, swimming, and weight reduction. (Tr. 323) Ordinarily, the opinion of a specialist
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in his area of expertise is given more weight than the opinion of a generalist. Holohan v.
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Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).
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The inconsistencies between Goedecke’s opinion and the record as a whole “create[]
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serious doubt as to whether the claimant is, in fact, disabled.” Garrison, 759 F.3d at 1022.
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This case will be remanded for further administrative proceedings. See, e.g., Burrell v. Colvin,
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775 F.3d 1133, 1141 (9th Cir. 2014) (remand for further administrative proceedings ordered
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where “ the record as a whole creates serious doubt as to whether Claimant is, in fact,
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disabled.”); see also Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015) (remand for
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further administrative proceedings ordered where there was a “significant factual conflict in the
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record.”).
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IT IS ORDERED that the final decision of the Commissioner is reversed. The case is
remanded for further administrative proceedings.
The Clerk of the Court is directed to prepare a judgment and close this case.
DATED this 25th day of April, 2016.
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