Mary Margaret Gunness Vallandingham v. Carolyn W. Colvin

Filing 23

ORDER by Magistrate Judge Robert N. Block Reversing Decision of Commissioner and Remanding for Further Administrative Proceedings. IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings. (jtil)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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MARY MARGARET GUNNESS
VALLANDINGHAM,
Plaintiff,

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vs.

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CAROLYN COLVIN, Acting
Commissioner of Social Security,

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Defendant.
___________________________

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Case No. CV 14-4847 RNB
ORDER REVERSING DECISION OF
COMMISSIONER AND REMANDING
FOR FURTHER ADMINISTRATIVE
PROCEEDINGS

Plaintiff filed a Complaint herein on June 23, 2014, seeking review of the

19 Commissioner’s denial of her application for a period of disability and Disability
20 Insurance Benefits. In accordance with the Court’s Case Management Order, the
21 parties filed a Joint Stipulation on March 13, 2015. Thus, this matter now is ready
22 for decision.1
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As the Court advised the parties in its Case Management Order, the
25 decision in this case is being made on the basis of the pleadings, the administrative
26 record (“AR”), and the Joint Stipulation (“Jt Stip”) filed by the parties. In accordance
with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined
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which party is entitled to judgment under the standards set forth in 42 U.S.C. §
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(continued...)
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DISPUTED ISSUES
As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising

3 as the grounds for reversal and remand are as follows:
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1.

Whether the Administrative Law Judge (“ALJ”) properly

considered the treating chiropractor’s opinions.

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2.

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determination.

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3.

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Whether the ALJ made a proper adverse credibility
Whether the ALJ made a proper residual functional

capacity (“RFC”) determination.

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DISCUSSION
As discussed hereafter, the Court concurs with the Commissioner that reversal

13 is not warranted based on the ALJ’s alleged failure to properly consider the treating
14 chiropractor’s opinions. However, the Court concurs with plaintiff that the ALJ
15 failed to provide legally sufficient reasons on which she could properly rely in order
16 to reject plaintiff’s subjective symptom testimony. As a result of the Court’s finding
17 with respect to that issue, it is unnecessary for the Court to reach the issue of whether
18 the ALJ made a proper RFC determination.
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20 A.

Reversal is not warranted with respect to the ALJ’s consideration of the

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treating chiropractor’s opinions (Disputed Issue One).

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Disputed Issue One is directed to the ALJ’s rejection of the opinions of

23 plaintiff’s treating chiropractor, Dr. Jeff Tirsch. (See Jt Stip at 2-14.)
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In general, only licensed physicians and similarly qualified specialists qualify

25 as acceptable medical sources who can provide evidence to establish a claimant’s
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(...continued)
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1 impairment. See 20 C.F.R. § 404.1513(a). Chiropractors such as Dr. Tirsch are
2 classified as “other sources” who can provide evidence to show the severity of a
3 claimant’s impairment and how it affects his ability to work. See 20 C.F.R. §
4 404.1513(d)(1). An ALJ may not reject an opinion from an “other source” unless he
5 provides reasons germane to that opinion. See Molina v. Astrue, 674 F.3d 1104,
6 1111 (9th Cir. 2012); Turner v. Commissioner of Social Sec., 613 F.3d 1217, 1224
7 (9th Cir. 2010).2
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In October 2012, Dr. Tirsch issued two opinions about plaintiff’s functional

9 limitations due to her back problems. (See AR 570-78.) In both opinions, Dr. Tirsch
10 opined that plaintiff had sustained a herniated disc injury that limited her to standing
11 or sitting for 15 minutes at a time, that limited her to lifting less than 10 pounds only
12 on rare occasions, and that would render her absent from work more than four days
13 per month. (See id.) The ALJ gave “very little weight” to Dr. Tirsch’s opinions for
14 three reasons. The Court finds that, while two of the three reasons were legally
15 insufficient, the error was harmless because the remaining reason was legally
16 sufficient.
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One of the reasons proffered by the ALJ was that Dr. Tirsch’s opinions

18 concerned an issue reserved to the Commissioner. (See AR 21.) Although the Court
19 concurs that the ultimate issue of disability concerns an issue reserved to the
20 Commissioner, the ALJ still was required to address Dr. Tirsch’s opinions to the
21 extent they concerned the severity of plaintiff’s impairments and how it affected her
22 ability to work. See 20 C.F.R. § 404.1513(d)(1); Stout v. Commissioner, Social Sec.
23 Admin., 454 F.3d 1050, 1053 (9th Cir. 2006) (“In determining whether a claimant is
24 disabled, an ALJ must consider lay witness testimony concerning a claimant’s ability
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To the extent that plaintiff appears to be arguing that Dr. Tirsch’s
opinions were entitled to deference because he was an acceptable medical source (see
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Jt Stip at 4, 33), the Court disagrees because a chiropractor is clearly classified by the
28 Commissioner’s regulations as an “other source.” See 20 C.F.R. § 404.1513(d)(1).
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1 to work.”). Accordingly, the Court finds that this generic reason by itself was non2 responsive to the evidence and therefore was not a legally sufficient reason on which
3 the ALJ could properly rely in order to accord very little weight to Dr. Tirsch’s
4 opinions.
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Another reason proffered by the ALJ was that Dr. Tirsch’s opinions were not

6 supported by his own treatment notes, which purportedly reflected that plaintiff had
7 sustained a mere lumbosacral strain and that plaintiff could ambulate effectively and
8 lift 20 pounds with pain medication. (See AR 21; see also AR 194, 561, 565.)
9 However, this was not an accurate summary of Dr. Tirsch’s treatment notes, which
10 reflected that plaintiff had also sustained cervicobrachial syndrome and a thoracic
11 spine sprain (see AR 194) and that, to the extent that plaintiff could lift 10-20 pounds
12 with medication, such medication would prevent her from focusing while performing
13 her job (see AR 565). Accordingly, the Court finds that this also was not a legally
14 sufficient reason on which the ALJ could properly rely to accord very little weight to
15 Dr. Tirsch’s opinions.
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Another reason proffered by the ALJ was that Dr. Tirsch’s opinions were

17 “inconsistent with the record on the whole,” specifically the opinions of Dr. Kantor
18 and Dr. Wallack, two examining physicians who had found, respectively, that
19 plaintiff had no work restrictions or could perform medium work. (See AR 21; see
20 also AR 295-319, 376-81.) The Court concurs that Dr. Tirsch’s opinions were clearly
21 inconsistent with the opinions of the examining physicians, who were acceptable
22 medical sources. Accordingly, the Court finds that this was a legally sufficient reason
23 on which the ALJ could properly rely to accord very little weight to Dr. Tirsch’s
24 opinions. See Molina, 674 F.3d at 1112 (ALJ provided germane reason where “other
25 source” opinion was inconsistent with a psychiatrist’s opinion, which was entitled to
26 greater weight); Putnam v. Colvin, 586 F. App’x 691, 693 (9th Cir. 2014) (now
27 citable for its persuasive value per Ninth Circuit Rule 36-3) (ALJ provided germane
28 reason to reject “other source” opinion where it was inconsistent with the findings of
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1 four acceptable medical sources); Castle v. Colvin, 567 F. App’x 495, 495 (9th Cir.
2 2014) (same); Blodgett v. Commissioner of Social Sec. Admin., 534 F. App’x 608,
3 611 (9th Cir. 2013) (ALJ provided germane reason to reject “other source” opinion
4 that conflicted with acceptable medical source observations); De Herrera v. Astrue,
5 372 F. App’x 771, 773 (9th Cir. 2010) (ALJ provided germane reasons to reject nurse
6 practitioner’s opinion that was rejected by two reviewing physicians and that ran
7 contrary to the weight of the evidence); see generally Bayliss v. Barnhart, 427 F.3d
8 1211, 1218 (9th Cir. 2005) (finding germane ALJ’s rejection of lay opinion testimony
9 because it was inconsistent with claimant’s activities and the objective evidence in
10 the record).
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In conclusion, the Court finds that, even if two of the ALJ’s three stated

12 reasons in support of her rejection of Dr. Tirsch’s opinions were not legally sufficient,
13 the error was harmless because the ALJ’s remaining reason was supported by
14 substantial evidence. See Valentine v. Commissioner, Social Sec. Admin., 574 F.3d
15 685, 694 (9th Cir. 2009) (ALJ’s improper rejection of lay testimony of witness
16 because she was an interested party who never saw claimant at work was harmless
17 error because there were other germane reasons for rejecting her testimony); Williams
18 v. Astrue, 493 F. App’x 866, 869 (9th Cir. 2012) (where ALJ provided germane
19 reason to discredit lay witnesses’ opinions, “under Valentine the ALJ properly
20 discredited their testimony and the other improper reasons cited by the ALJ for
21 discrediting their lay opinions were harmless.”).
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The ALJ failed to make a proper adverse credibility determination

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(Disputed Issue Two).

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Disputed Issue Two is directed to the ALJ’s adverse credibility determination

26 with respect to plaintiff’s subjective symptom testimony. (See Jt Stip at 14-28.)
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An ALJ’s assessment of pain severity and claimant credibility is entitled to

28 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v.
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1 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the “Cotton test,” where the
2 claimant has produced objective medical evidence of an impairment which could
3 reasonably be expected to produce some degree of pain and/or other symptoms, and
4 the record is devoid of any affirmative evidence of malingering, the ALJ may reject
5 the claimant’s testimony regarding the severity of the claimant’s pain and/or other
6 symptoms only if the ALJ makes specific findings stating clear and convincing
7 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see
8 also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12
9 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991)
10 (en banc). Here, since the Commissioner has not argued that there was evidence of
11 malingering and that a lesser standard consequently should apply, the Court will
12 apply the “clear and convincing” standard to the ALJ’s adverse credibility
13 determination. See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (applying
14 “clear and convincing” standard where the government did not argue that a lesser
15 standard should apply based on evidence of malingering); see also Ghanim v. Colvin,
16 763 F.3d 1154, 1163 n.9 (9th Cir. 2014) (same).
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Plaintiff alleged that she could not work because of back and neck injuries;

18 anxiety and depression; and digestive problems caused by medications. (See AR 32,
19 36, 39-40, 61.) Plaintiff testified that on account of her conditions, she would require
20 multiple trips to the restroom, had trouble with focus, could sit for 15-20 minutes at
21 a time in front of a computer, could stand for 15 minutes at a time, and could lift less
22 than 10 pounds. (See AR 40-42.) Plaintiff also stated in a Function Report that her
23 activities included monitoring her bank account, walking her dog, grooming herself,
24 attending doctor’s appointments, having lunch with her daughter, watching television,
25 picking up around the house, driving, shopping, and meeting her friends for lunch or
26 dinner. (See AR 163, 165-67.)
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The ALJ determined that although plaintiff’s medically determinable

28 impairments could reasonably be expected to cause the alleged symptoms, plaintiff’s
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1 statements concerning the intensity, persistence, and limiting effects of these
2 symptoms were not credible to the extent they were inconsistent with the ALJ’s RFC
3 assessment. (See AR 20.) In support of this adverse credibility determination, the
4 ALJ proffered five reasons. (See AR 20-21.) The Court finds that none of the five
5 reasons constituted a legally sufficient reason.
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One of the reasons proffered by the ALJ was that plaintiff’s treatment was

7 consistent “with no more than moderate pain levels that are not disabling.”
8 Specifically, the ALJ noted that plaintiff had not undergone surgery, had received
9 only a recommendation for physical therapy and pain management, and had taken
10 only Ibuprofen and Norco. (See AR 20.) In general, “evidence of conservative
11 treatment is sufficient to discount a claimant’s testimony regarding severity of an
12 impairment,” and a prominent example of conservative treatment is use of only over13 the-counter pain medication. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007);
14 Osenbrock v. Apfel, 240 F.3d 1156, 1166 (9th Cir. 2001) (ALJ properly rejected
15 excess symptom testimony where claimant had not been using a strong Codeine or
16 Morphine based analgesic). Here, however, plaintiff’s treatment was not clearly
17 conservative: under the direction of her treating medical sources, plaintiff took at
18 least two prescription pain medications (i.e., Norco and Tramadol); took several other
19 medications for pain and digestive problems; and regularly underwent treatment and
20 physical therapy, which included electrical muscle stimulation, myofascial release
21 techniques, application of ice, manipulative procedures, and exercises. (See, e.g., AR
22 150, 210, 255, 377, 568.) Because no medical expert characterized this treatment as
23 conservative or incommensurate with plaintiff’s subjective symptom complaints, the
24 Court cannot find that the ALJ’s lay analysis of plaintiff’s treatment as conservative
25 was overwhelmingly compelling. See Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir.
26 2008) (“The ALJ and the judge may not impose their own respective notion that the
27 severity of a physical impairment directly correlates with the intrusiveness of the
28 medical treatment ordered. . . . A circumstantial critique by non-physicians, however
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1 thorough or responsible, must be overwhelmingly compelling in order to overcome
2 a medical opinion.”) (citation and internal quotation marks omitted); Nguyen v.
3 Chater, 172 F.3d 31, 35 (1st Cir. 1999) (ALJ’s lay conclusions from the medical
4 evidence were invalid where no medical opinion in the record suggested that
5 claimant’s course of treatment was incommensurate with his purported ailment); see
6 generally Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992) (rejecting ALJ’s
7 finding that limitations could not be produced by claimant’s documented medical
8 condition because the ALJ did not rely on any medical report or opinion for that
9 finding); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is not
10 qualified as a medical expert). Moreover, although the ALJ was correct that
11 plaintiff’s treatment did not include surgery, the Court does not find this fact
12 compelling given the type of treatment that plaintiff actually received and given the
13 absence of evidence in the record that surgery would have been the appropriate
14 treatment given the severity of plaintiff’s subjective symptom complaints. See Kager
15 v. Astrue, 256 Fed Appx. 919, 923 (9th Cir. 2007) (rejecting ALJ’s characterization
16 of claimant’s treatment as conservative where she took prescription pain medication,
17 sought and received treatment from massage therapists and physical therapists,
18 regularly performed exercises, and repeatedly sought treatment); see also Shaw v.
19 Chater, 221 F.3d 126, 134 (2d Cir. 2000) (treating physician’s recommendation of
20 only physical therapy, hot packs, and EMG testing – rather than surgery or
21 prescription drugs – was not substantial evidence of non-disability because the ALJ
22 was not permitted to substitute his own expertise or view of the medical proof for the
23 treating physician’s opinion).
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Another reason proffered by the ALJ was that plaintiff’s medication side

25 effects (i.e., constipation, diarrhea, and stomach problems) required bathroom breaks
26 2-3 times per day for 15-20 minutes, but that these breaks could be accommodated
27 during regularly scheduled work breaks and normal allowable use of restrooms during
28 the course of the day. (See AR 21.) However, contrary to the ALJ’s characterization
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1 of the record, plaintiff testified that she required breaks more frequently, up to 3-5
2 times per day for 15-20 minutes at a time (see AR 40). See Reddick v. Chater, 157
3 F.3d 715, 722 (9th Cir. 1998) (rejecting ALJ’s rationale for adverse credibility
4 determination when it was “not entirely accurate regarding the content or tone of the
5 record”). Moreover, the ALJ adduced no vocational evidence to support her
6 conclusion that the type of breaks that plaintiff required could be adequately
7 accommodated with regularly scheduled work breaks and normal allowable use of
8 restrooms during the course of the day. Accordingly, the Court finds that this also
9 was not a legally sufficient reason on which the ALJ could properly rely in support
10 of her adverse credibility determination.
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Another reason proffered by the ALJ was that claimant was able to perform “a

12 significant range of activities of daily living.” Specifically, the ALJ noted that
13 plaintiff could drive her daughter to school and work each day, tidy up her home, care
14 for her dogs, meet friends for lunch, shop, carry her purse in and out of stores, and
15 make a bed. (See AR 21.) Although the ALJ acknowledged that plaintiff reported
16 being able to perform these activities only in 15 minute increments and with help
17 from her family, the ALJ concluded that plaintiff’s ability to perform a significant
18 level of activities of daily living was consistent with a light RFC. (See id.) The
19 Court disagrees. Evidence that plaintiff performed some household and social
20 activities on this limited basis – in 15 minute increments and with assistance – does
21 not convince the Court that plaintiff engaged in activities that resembled those
22 necessary for engaging in competitive, full-time employment at the light exertional
23 level. See Ghanim, 763 F.3d at 1165 (claimant’s performance of basic chores,
24 sometimes with help, and attendance at occasional social events did not show that
25 claimant engaged activities transferable to a work setting); Smolen, 80 F.3d at 1284
26 n.7 (“[M]any home activities may not be easily transferable to a work environment
27 where it might be impossible to rest periodically or take medication.”); Vertigan v.
28 Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (evidence that claimant did certain
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1 chores that did not consume a substantial part of the day did not detract from her
2 credibility); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (claimant’s ability
3 to assist with some household chores was not determinative of disability).
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Another reason proffered by the ALJ was that plaintiff continued working after

5 her work injury in September 2009 and filed a worker’s compensation claim. (See
6 AR 22.) However, the Court fails to see how evidence that plaintiff filed a worker’s
7 compensation claim undermined plaintiff’s subjective symptom testimony.
8 Moreover, the record reflects that plaintiff worked only until November 2009 (or two
9 months after her injury) and was terminated because she could not perform her work
10 duties. (See AR 32.) Evidence of this brief, unsuccessful attempt at employment
11 following plaintiff’s injury did not constitute a legally sufficient reason on which the
12 ALJ could properly rely in support of her adverse credibility determination. See
13 Lingenfelter v. Astrue, 504 F.3d 1028, 1039 (9th Cir. 2007) (evidence that claimant
14 tried to work for nine weeks after his injury was not a clear and convincing reason to
15 find claimant not credible).
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The sole remaining reason proffered by the ALJ was that plaintiff’s subjective

17 symptom complaints were unsupported by the objective medical evidence,
18 specifically: (1) an MRI and x-ray that showed no more than mild to moderate
19 degenerative disc disease; and (2) the opinions of Dr. Kantor and Dr. Wallack. (See
20 AR 20.) However, since the ALJ’s other three reasons were legally insufficient to
21 support her adverse credibility determination, this remaining reason cannot be legally
22 sufficient by itself. See Robbins v. Social Sec. Admin., 466 F.3d 880, 884 (9th Cir.
23 2006) (where ALJ’s initial reason for adverse credibility determination was legally
24 insufficient, his sole remaining reason premised on lack of medical support for
25 claimant’s testimony was legally insufficient); Light v. Social Sec. Admin., 119 F.3d
26 789, 792 (9th Cir. 1997) (“[A] finding that the claimant lacks credibility cannot be
27 premised wholly on a lack of medical support for the severity of his pain.”).
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CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further

3 proceedings or simply to award benefits is within the discretion of the Court. See,
4 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan,
5 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir.
6 1981). Remand is warranted where additional administrative proceedings could
7 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th
8 Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is
9 appropriate where no useful purpose would be served by further administrative
10 proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record
11 has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986);
12 or where remand would unnecessarily delay the receipt of benefits, Bilby v.
13 Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).
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Where, as here, a claimant contends that she is entitled to an award of benefits

15 because of an ALJ’s failure to properly consider her subjective symptom testimony,
16 the Court applies a three-step framework. See Treichler v. Commissioner of Social
17 Sec. Admin., 775 F.3d 1090, 1099-1102 (9th Cir. 2014); see also Burrell, 775 F.3d
18 at 1141-42; Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). First, the Court
19 asks whether the ALJ failed to provide legally sufficient reasons for rejecting
20 evidence, whether claimant testimony or medical opinion. Second, the Court
21 determines whether the record has been fully developed, whether there are
22 outstanding issues that must be resolved before a determination of disability can be
23 made, and whether further administrative proceedings would be useful. Third, if the
24 Court concludes that no outstanding issues remain and further proceedings would not
25 be useful, the Court may find the relevant testimony credible as a matter of law and
26 then determine whether the record, taken as a whole, leaves “not the slightest
27 uncertainty as to the outcome of the proceeding.” Treichler, 775 F.3d at 1100-01
28 (citations omitted). Only when all three elements are satisfied does a case raise the
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1 “rare circumstances” that allow the Court to exercise its discretion to remand for an
2 award of benefits. See id.
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Here, the Court finds that the second element has not been satisfied because

4 outstanding issues remain and further administrative proceedings would be useful.
5 Specifically, the most essential factual issue – whether plaintiff is disabled – remains
6 unresolved because the record is unclear and contains conflicting evidence on that
7 issue. As discussed above, the opinions of plaintiff’s treating chiropractor were in
8 clear conflict with the opinions of the acceptable medical sources. See id. (remand
9 for award of benefits is inappropriate where “there is conflicting evidence, and not
10 all essential factual issues have been resolved”) (citation omitted); see also Strauss
11 v. Commissioner of the Social Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011)
12 (same where the record does not demonstrate the claimant is disabled within the
13 meaning of the Social Security Act). Moreover, the Court notes that the record
14 contains no vocational expert testimony reflecting that a person could not work with
15 the limitations described by plaintiff’s subjective symptom testimony. See Harman
16 v. Apfel, 211 F.3d at 1172, 1180 (9th Cir. 2000) (remanding for further proceedings
17 in part because there was no testimony from the vocational expert that the limitations
18 established by the improperly discredited evidence would render claimant unable to
19 engage in any work).
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Therefore, based on its review and consideration of the entire record, the Court

21 has concluded on balance that a remand for further administrative proceedings
22 pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. Accordingly, IT
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28 //
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1 IS HEREBY ORDERED that Judgment be entered reversing the decision of the
2 Commissioner of Social Security and remanding this matter for further administrative
3 proceedings.3
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5 DATED: March 26, 2015
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ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE

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It is not the Court’s intent to limit the scope of the remand.
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