John B Sanford v. Carolyn W Colvin

Filing 19

MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this case for further proceedings in accordance with this Memorandum Opinion and Order and with law. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 JOHN B. SANFORD, Plaintiff, 13 14 v. CAROLYN W. COLVIN, 15 Acting Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-06333-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On September 3, 2013, John B. Sanford (“Plaintiff” or “Claimant”) filed a complaint 20 seeking review of the final decision by the Commissioner of Social Security 21 (“Commissioner”) denying Plaintiff’s application for Social Security Disability Insurance 22 benefits. The Commissioner filed an Answer on December 5, 2013. On April 9, 2014, 23 the parties filed a Joint Stipulation (“JS”). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record 26 (“AR”), the Court concludes that the Commissioner’s decision must be reversed and this 27 case remanded for further proceedings in accordance with this Memorandum Opinion 28 and Order and with law. BACKGROUND 1 2 Plaintiff is a 37-year-old male who applied for Social Security Disability Insurance 3 benefits on June 3, 2010, alleging disability beginning March 11, 2009. (AR 23, 136.) 4 The ALJ determined that Plaintiff has not engaged in substantial gainful activity since 5 March 11, 2009, the alleged onset date. (AR 25.) 6 Plaintiff’s claim was denied initially on October 28, 2010, and on reconsideration 7 on March 4, 2011. (AR 23.) Plaintiff filed a timely request for hearing, which was held 8 before Administrative Law Judge (“ALJ”) Joseph P. Lisiecki, III on October 27, 2011, in 9 Orange, California. (AR 23.) Claimant appeared and testified at the hearing and was 10 represented by counsel. (AR 23.) Medical expert (“ME”) Dr. Steven B. Gerber and 11 vocational expert (“VE”) Kelly Winn-Boaitey also appeared and testified at the hearing. 12 (AR 23.) 13 The ALJ issued an unfavorable decision on November 18, 2011. (AR 23-31.) The 14 Appeals Council denied review on July 2, 2013. (AR 1-3.) DISPUTED ISSUES 15 16 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 17 grounds for reversal and remand: 18 1. Whether the ALJ erred in assessing the opinions/findings of Plaintiff’s 19 treating, examining, and/or reviewing physicians, and whether this resulted 20 in an incomplete hypothetical question to the vocational consultant. 21 22 2. Whether the ALJ erred in his evaluation of Plaintiff’s credibility and subjective symptoms. 23 STANDARD OF REVIEW 24 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine 25 whether the ALJ’s findings are supported by substantial evidence and free of legal error. 26 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 27 924 F.2d 841, 846 (9th Cir. 1991) (ALJ’s disability determination must be supported by 28 substantial evidence and based on the proper legal standards). 2 1 Substantial evidence means “‘more than a mere scintilla,’ but less than a 2 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting 3 Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such 4 relevant evidence as a reasonable mind might accept as adequate to support a 5 conclusion.” Richardson, 402 U.S. at 401 (internal quotation marks and citation 6 omitted). 7 This Court must review the record as a whole and consider adverse as well as 8 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 9 Where evidence is susceptible to more than one rational interpretation, the ALJ’s 10 decision must be upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 11 (9th Cir. 1999). “However, a reviewing court must consider the entire record as a whole 12 and may not affirm simply by isolating a ‘specific quantum of supporting evidence.’” 13 Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 14 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 15 16 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the “inability to engage in any 17 substantial gainful activity by reason of any medically determinable physical or mental 18 impairment which can be expected to result in death or . . . can be expected to last for a 19 continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 20 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to 21 determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 22 The first step is to determine whether the claimant is presently engaging in 23 substantial gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 24 claimant is engaging in substantial gainful activity, disability benefits will be denied. 25 Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether 26 the claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 27 746. An impairment is not severe if it does not significantly limit the claimant’s ability to 28 work. Smolen, 80 F.3d at 1290. Third, the ALJ must determine whether the impairment 3 1 is listed, or equivalent to an impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I 2 of the regulations. Parra, 481 F.3d at 746. If the impairment meets or equals one of the 3 listed impairments, the claimant is presumptively disabled. Bowen v. Yuckert, 482 U.S. 4 at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant 5 from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 6 Before making the step four determination, the ALJ first must determine the 7 claimant’s residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is 8 “the most [one] can still do despite [his or her] limitations” and represents an assessment 9 “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The 10 RFC must consider all of the claimant’s impairments, including those that are not severe. 11 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 12 If the claimant cannot perform his or her past relevant work or has no past 13 relevant work, the ALJ proceeds to the fifth step and must determine whether the 14 impairment prevents the claimant from performing any other substantial gainful activity. 15 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). The claimant bears the burden of 16 proving steps one through four, consistent with the general rule that at all times the 17 burden is on the claimant to establish his or her entitlement to benefits. Parra, 481 F.3d 18 at 746. Once this prima facie case is established by the claimant, the burden shifts to 19 the Commissioner to show that the claimant may perform other gainful activity. 20 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a 21 claimant is not disabled at step five, the Commissioner must provide evidence 22 demonstrating that other work exists in significant numbers in the national economy that 23 the claimant can do, given his or her RFC, age, education, and work experience. 20 24 C.F.R. § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is 25 disabled and entitled to benefits. Id. 26 27 28 4 THE ALJ DECISION 1 2 In this case, the ALJ determined at step one of the sequential process that Plaintiff 3 has not engaged in substantial gainful activity since March 11, 2009, the alleged onset 4 date. (AR 25.) 5 At step two, the ALJ determined that Plaintiff has the following medically 6 determinable severe impairments: Crohn’s colitis and bilateral avascular necrosis (20 7 C.F.R. § 404.1520(c)). (AR 25.) 8 At step three, the ALJ determined that Plaintiff does not have an impairment or 9 combination of impairments that meets or medically equals the severity of one of the 10 listed impairments. (AR 26.) 11 The ALJ then found that Plaintiff has the RFC to perform sedentary work as 12 defined in C.F.R. § 404.1567(a) with the following limitations: 13 Claimant is limited to lifting or carrying fifteen pounds occasionally and 14 ten pounds frequently; Claimant is limited to standing or walking for a 15 total of two hours in an eight hour workday; and Claimant is limited to 16 sitting for a total of six hours in an eight hour workday. In addition, 17 Claimant is able to occasionally engage in balancing, stooping, 18 kneeling, crouching, and climbing of ramps and scaffolds. Finally, 19 Claimant must avoid all exposure to workplace hazards such as 20 machinery and heights. 21 (AR 26-29.) In determining this RFC, the ALJ made an adverse credibility determination. 22 (AR 29.) 23 At step four, the ALJ found that Plaintiff is unable to perform his past relevant work 24 as a construction equipment mechanic. (AR 29.) The ALJ, however, also found that 25 considering Claimant’s age, education, work experience and RFC, there are jobs that 26 exist in significant numbers in the national economy that Claimant can perform, including 27 the sedentary unskilled jobs of telephone information clerk and charge account clerk. 28 (AR 30, 59-60.) 5 1 Consequently, the ALJ found that Claimant was not disabled within the meaning of 2 the Social Security Act. (AR 30.) 3 DISCUSSION 4 I. THE ALJ’S RFC IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE 5 The ALJ decision must be reversed. The ALJ’s RFC is not supported by 6 substantial evidence, and the ALJ failed to develop the record fully. The ALJ’s 7 nondisability determination is not supported by substantial evidence nor free of legal 8 error. 9 Although the ALJ’s findings generally are supported by substantial evidence, there 10 is an error in the opinion that requires reversal. Plaintiff John B. Sanford has the 11 medically severe impairments of Crohn’s colitis and bilateral avascular necrosis. (AR 12 25.) In March of 2009, he was diagnosed with Crohn’s colitis and underwent a 13 colostomy to remove his colon, and now must wear a colostomy bag. (AR 27, 378-379.) 14 Claimant’s colitis stabilized following the surgery. (AR 27.) His principal complaint is 15 that he has to make frequent trips to the restroom to change or evacuate his colostomy 16 bag. (AR 27.) He testified at the hearing that he would need to take five to seven 17 bathroom breaks a day of ten minutes each. (AR 48.) The VE testified that there is no 18 work that Plaintiff could perform with such a limitation. (AR 63.) 19 The ALJ’s RFC does not contain any limitation regarding the time lost during each 20 workday due to the number of times Plaintiff has to change his colostomy bag. The ALJ 21 relied on the medical expert’s testimony that “usually” the use of a colostomy bag does 22 not create any additional functional limitations. (AR 43.) This statement occurred before 23 Plaintiff’s testimony about the need for five to seven bathroom breaks a day and does 24 not appear to have considered it. The medical expert’s testimony is inconclusive and 25 insufficient to reject the limitation asserted by Plaintiff. The record on Plaintiff’s asserted 26 limitation is simply not developed adequately. Thus, the ALJ’s decision must be 27 reversed and remanded for additional proceedings. 28 6 1 A. Relevant Federal Law 2 The ALJ’s RFC is not a medical determination but an administrative finding or 3 legal decision reserved to the Commissioner based on consideration of all the relevant 4 evidence, including medical evidence, lay witnesses, and subjective symptoms. See 5 SSR 96-5p; 20 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must 6 consider all relevant evidence in the record, including medical records, lay evidence, and 7 the effects of symptoms, including pain reasonably attributable to the medical condition. 8 Robbins, 446 F.3d at 883. 9 In evaluating medical opinions, the case law and regulations distinguish among 10 the opinions of three types of physicians: (1) those who treat the claimant (treating 11 physicians); (2) those who examine but do not treat the claimant (examining physicians); 12 and (3) those who neither examine nor treat the claimant (non-examining, or consulting, 13 physicians). See 20 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 14 821, 830 (9th Cir. 1995). In general, an ALJ must accord special weight to a treating 15 physician’s opinion because a treating physician “is employed to cure and has a greater 16 opportunity to know and observe the patient as an individual.” Magallanes v. Bowen, 17 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If a treating source’s opinion on the 18 issues of the nature and severity of a claimant’s impairments is well-supported by 19 medically acceptable clinical and laboratory diagnostic techniques, and is not 20 inconsistent with other substantial evidence in the case record, the ALJ must give it 21 “controlling weight.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 22 Where a treating doctor’s opinion is not contradicted by another doctor, it may be 23 rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830. However, if the 24 treating physician’s opinion is contradicted by another doctor, such as an examining 25 physician, the ALJ may reject the treating physician’s opinion by providing specific, 26 legitimate reasons, supported by substantial evidence in the record. Lester, 81 F.3d at 27 830-31; see also Orn, 495 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 28 2002). Where a treating physician's opinion is contradicted by an examining 7 1 professional’s opinion, the Commissioner may resolve the conflict by relying on the 2 examining physician’s opinion if the examining physician’s opinion is supported by 3 different, independent clinical findings. See Andrews v. Shalala, 53 F.3d 1035, 1041 4 (9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an uncontradicted opinion of an 5 examining physician, an ALJ must provide clear and convincing reasons. Bayliss v. 6 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician’s opinion is 7 contradicted by another physician’s opinion, an ALJ must provide specific and legitimate 8 reasons to reject it. Id. However, “[t]he opinion of a non-examining physician cannot by 9 itself constitute substantial evidence that justifies the rejection of the opinion of either an 10 examining physician or a treating physician”; such an opinion may serve as substantial 11 evidence only when it is consistent with and supported by other independent evidence in 12 the record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600. 13 14 15 B. Analysis 1. Need For Assistive Device During his treatment for colitis, Mr. Sanford was placed on a steroid treatment 16 regimen which caused avascular necrosis of the hips, bilaterally. (AR 28.) An MRI of 17 the pelvis revealed mild left hip joint effusion, sclerosis in the left femoral head with an 18 area of collapse and the presence of edema in the left femoral head. (AR 28.) X-rays 19 did not reveal any fractures or dislocations. (AR 28.) An orthopedic consulting 20 examiner, Dr. Anh Tat Hoang, found moderate tenderness in his hip joint and limited 21 Claimant to a light exertional RFC, sitting for six hours and standing/walking four hours 22 in an eight hour workday. (AR 28, 456-459.) State agency reviewing physicians, 23 however, assessed a sedentary RFC with occasional on all posturals and no heights, 24 hazards, ladders or scaffolding, as did Dr. Gerber. (AR 42-43.) The ALJ adopted the 25 latter RFC. (AR 26.) 26 Claimant appeared for his exam with Dr. Hoang on two crutches for ambulation 27 (AR 28, 457) and Dr. Hoang’s report states, “A cane is medically necessary for 28 ambulation.” (AR 459.) Two State agency physicians opined Plaintiff needed a cane for 8 1 “prolonged ambulation.” (AR 461, 498.) Plaintiff asserts error because the ALJ’s RFC 2 and hypothetical to the VE contain no limitation requiring a cane for ambulation. 3 Plaintiff’s contention lacks merit. 4 The ALJ found that during the hearing the Claimant stated that, although he does 5 use crutches occasionally, he generally does not need or use ambulatory devices. (AR 6 28.) The ALJ found Claimant was able to walk with only a slight limp favoring his left 7 extremity. (AR 28, 459.) More specifically, Plaintiff stated the following at the hearing: 8 Q. past? 9 10 Okay - - do you use a cane? Have you used a cane in the A. I have been on crutches on and off ever since my hip 11 problems. It just kind of varies. Generally, I don’t use 12 them. I do occasionally when I have a real bad day. 13 Q. Okay. 14 A. I use crutches. But it’s pretty rare. 15 (AR 48-49.) (Emphasis added.) Based on Plaintiff’s own testimony, the ALJ’s decision 16 to reject physician RFC assessments requiring a cane, and not include such a limitation 17 in his RFC or in his hypothetical to the VE, was reasonable. The ALJ rejected Plaintiff’s 18 assertion that he needs a cane based on his inconsistent statements at the hearing. 19 Light v. Comm’r of Soc. Sec. Adm., 119 F.3d 789, 792 (9th Cir. 1997) (in weighing a 20 claimant’s credibility, an ALJ may consider “inconsistencies in his testimony or between 21 his testimony and conduct”). An ALJ may reject a physician’s opinion based on 22 discredited subjective symptoms, as was done here. Tonapetyan v. Halter, 242 F.3d 23 1144, 1149 (9th Cir. 2001). 24 Plaintiff disputes the ALJ’s interpretation of the evidence but it is the ALJ who has 25 the responsibility for resolving conflicts in the evidence. Andrews, 53 F.3d at 1039. 26 Where the ALJ’s interpretation of the evidence is reasonable as it is here, it should not 27 be second-guessed. Rollins v. Massanari, 264 F.3d 853, 857 (9th Cir. 2001). 28 9 2. 1 2 Bathroom Breaks Plaintiff also contends that the ALJ erred in not including in his RFC the time lost 3 at work because of frequent breaks to change or evacuate his colostomy bag. The 4 Court agrees that the ALJ’s RFC is not supported by substantial evidence to justify 5 omission of this limitation and that the ALJ failed to develop the record adequately. 6 The ALJ acknowledged Plaintiff’s contention that he must make frequent trips to 7 the restroom because of his colostomy bag. (AR 27.) At the hearing, Claimant was 8 asked why he cannot work and responded as follows: I’m pretty limited as to what I would be able to do because of the 9 10 sitting and standing, but I’d say the biggest thing would be holding a 11 job due to bathroom trips. I mean, an average day for me is five to 12 seven bathroom trips probably lasting ten minutes plus . . . 13 (AR 48.) 14 Plaintiff’s attorney then asked the VE whether there would be any work Plaintiff 15 could perform if he needed a job that would require restroom breaks “no less than five 16 times a day, and no more than seven, with ten minutes at each break.” (AR 63.) The 17 VE’s response was, “There wouldn’t be any work.” (AR 63.) The VE explained that 18 Claimant would be “away from their workstation for anywhere from a half-hour to an hour 19 more than regular breaks.” (AR 63.) 20 The ALJ, however, assessed no limitation in his RFC for restroom breaks to empty 21 his colostomy bag (AR 26) and the ALJ’s hypothetical question to the VE contained no 22 limitation in the RFC for unscheduled bathroom breaks. (AR 58-59.) The ALJ relied 23 exclusively on the opinion of Dr. Gerber, the medical expert, who opined that the use of 24 a colostomy bag “usually doesn’t create any additional functional limitations beyond 25 those to which I have testified.” (AR 43.) (Emphasis added.) The ALJ somewhat 26 misstates and overstates Dr. Gerber’s testimony by finding that he “opined that the use 27 of such device would not cause the Claimant to experience any additional functional 28 limitations.” (AR 28.) On cross-examination, moreover, Dr. Gerber admitted that 10 1 Plaintiff has no control over his bowel functions (AR 43) and, when asked if the passive 2 emptying of the intestinal contents would occur constantly, he stated, “It can. Yes.” (AR 3 43-44.) This statement provides a medical basis for Plaintiff’s testimony. 4 Dr. Gerber’s testimony, as it stands, is insufficient to overcome the combined 5 testimony of Plaintiff that he would require five to seven bathroom breaks a day of ten 6 minutes each and the VE’s testimony that such a limitation would preclude all work. Dr. 7 Gerber’s statement was a generalization that use of a colostomy bag “usually” does not 8 create any additional functional limitations. Dr. Gerber made that comment and 9 presented his RFC before Plaintiff gave his testimony about the number of bathroom 10 breaks needed and before the VE opined there would be no work for the number of 11 breaks Plaintiff claimed he would need. Plaintiff contends that Dr. Gerber never even 12 heard either Plaintiff’s testimony or the VE’s testimony, as Dr. Gerber testified by phone 13 and disconnected after his testimony, but Plaintiff offers no citation to the record to 14 support this assertion and the Court finds nothing in the record to verify the assertion. 15 Nonetheless, the Court is not satisfied that Dr. Gerber considered how the number of 16 bathroom breaks this plaintiff requires might impact the RFC that was assessed. Dr. 17 Gerber’s RFC relies on a generalization that a colostomy bag “usually” does not require 18 additional functional limitations rather than what limitations this particular plaintiff would 19 require. The Court, moreover, does not read Dr. Gerber’s testimony to be saying that 20 Plaintiff’s testimony is false or unbelievable. Therefore, because he did not consider 21 Plaintiff’s testimony, Dr. Gerber’s opinion is inconclusive and insufficient as a basis for 22 disregarding or rejecting Plaintiff’s testimony about the number of breaks needed, for 23 omitting any limitation regarding bathroom breaks and for rejecting the VE’s opinion that 24 all work is precluded. Batson v. Commissioner of Soc. Sec. Adm., 359 F.3d 1190, 1195 25 (9th Cir. 2004) (physician’s opinion may be rejected when “unsupported by the record as 26 a whole”); Thomas, 278 F.3d at 987 (physician’s opinion may be rejected when 27 inconsistent with “other evidence of record”). 28 11 1 Both the ALJ and the Commissioner mistakenly rely on the medical evidence for 2 their determination of nondisability. They note that no treating physician provided a 3 medical source statement indicating disability (AR 27) and that State agency physicians 4 and Dr. Gerber found Plaintiff capable of sedentary work with some postural and 5 environmental limitations. (AR 28.) The medical evidence, however, predates Plaintiff’s 6 testimony at the hearing that he needs five to seven restroom breaks a day of ten 7 minutes each. The medical evidence did not and could not consider Plaintiff’s testimony. 8 The physician RFCs also did not and could not consider the limitation asserted by 9 Plaintiff, discuss it or offer any basis for excluding it from their RFCs. The ALJ erred in 10 relying on this uninformed medical evidence that failed to address Plaintiff’s testimony or 11 to include an appropriate limitation in their RFCs. Batson, 359 F.3d at 1195; Thomas, 12 278 F.3d at 957. 13 Also, the ALJ’s adverse credibility determination is of little relevance here. The 14 ALJ discounted Plaintiff’s credibility on the basis of the medical evidence, which as noted 15 above did not consider Plaintiff’s testimony. The ALJ also discounted Plaintiff’s 16 testimony because of inconsistent daily activities that appear to relate to his hip issues 17 and have little to do with Plaintiff’s need for bathroom breaks. The ALJ does not directly 18 challenge Plaintiff’s veracity or credibility on the number of bathroom breaks needed 19 other than to cite Dr. Gerber’s opinion which the Court has found to be an insufficient 20 basis for rejecting a limitation for bathroom breaks. 21 The Court, however, is not reaching a determination that Plaintiff is disabled, only 22 that the record is ambiguous and not fully developed. In Social Security cases, the ALJ 23 has special independent duty to develop the record fully and fairly to assure the 24 claimant’s interests are considered. Tonapetyan, 242 F.3d at 1150; Smolen, 80 F.3d at 25 1288. Ambiguous evidence or the ALJ’s own finding that the record is adequate to allow 26 for proper evaluation of the evidence triggers the ALJ’s duty to conduct an appropriate 27 inquiry. Smolen, 80 F.3d at 1288; Tonapetyan, 242 F.3d at 1150. The ALJ may 28 discharge this duty by subpoenaing the claimant’s physicians, submitting questions to 12 1 them, continuing the hearing or keeping the record open after the hearing to allow 2 supplementation of the record. Smolen, 80 F.3d at 1288; Tonapetyan, 242 F.3d at 1150. 3 Here, Plaintiff’s testimony that he needed five to seven bathroom breaks a day of 4 ten minutes each and the VE’s testimony that such a limitation would preclude all work 5 came at the end of the hearing, after the submission of medical evidence and testimony 6 which did not consider the limitation Plaintiff asserted at the hearing. The ALJ should 7 have asked Dr. Gerber (if he was still on the phone as claimed) or recontacted him (if as 8 Plaintiff contends he already had disconnected) to inquire if five to seven bathroom 9 breaks was plausible and if so whether his RFC should reflect that limitation. An ALJ is 10 required to recontact a doctor if his report is insufficient to make a disability 11 determination. Bayliss, 427 F.3d at 1217, citing 20 C.F.R. § 404.1512(e). The ALJ had 12 Plaintiff present and could have questioned him to test his credibility and asked him if the 13 five to seven breaks he requires was for an 8 hour period or all day. As a result, the 14 record is ambiguous and inconclusive on whether the ALJ erred by omitting a limitation 15 for bathroom breaks from his RFC, and from his hypothetical question to the VE. The 16 ALJ erred by not developing the record more fully. Partly because the medical 17 professionals never had an opportunity to consider Plaintiff’s testimony and partly 18 because Plaintiff’s testimony is ambiguous, the Court will remand the case for further 19 proceedings. If there exists no basis for challenging Plaintiff’s assertion that he needs 20 five to seven bathroom breaks a day of ten minutes each, the VE’s testimony that all 21 work is precluded would require a determination of disability. ORDER 22 23 IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the 24 Commissioner of Social Security and remanding this case for further proceedings in 25 accordance with this Memorandum Opinion and Order and with law. 26 27 DATED: April 25, 2014 28 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 13

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