Colleen M. Clark v. Carolyn W. Colvin

Filing 27

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner's decision and REMANDING this action for calculation of benefits, and it is further ORDERED that The Clerk of the Court file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case, without prejudice to a timely application for attorneys' fees and costs. (wr)

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1 O 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 2:16-CV-03415 (VEB) 7 8 COLLEEN M. CLARK, DECISION AND ORDER Plaintiff, 9 10 vs. 11 NANCY BERRYHILL, Acting Commissioner of Social Security, 12 Defendant. 13 I. INTRODUCTION 14 15 In August of 2012, Plaintiff Colleen M. Clark applied for Disability Insurance 16 Benefits under the Social Security Act. The Commissioner of Social Security denied 17 the application.1 18 1  On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 20 1 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 Plaintiff, by and through her attorney, Irene Ruzin, Esq. commenced this 2 action seeking judicial review of the Commissioner’s denial of benefits pursuant to 3 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 9, 11, 26). On June 6, 2017, this case was referred to the undersigned 6 pursuant to General Order 05-07. (Docket No. 25). 7 8 II. BACKGROUND 9 Plaintiff applied for Disability Insurance benefits on August 28, 2012, alleging 10 disability beginning August 24, 2012. (T at 130-31).2 The application was denied 11 initially and on reconsideration. 12 Administrative Law Judge (“ALJ”). Plaintiff requested a hearing before an 13 On November 10, 2014, a hearing was held before ALJ Mary Everstine. (T at 14 42). Plaintiff appeared with her attorney and testified. (T at 44-52). The ALJ also 15 received testimony from Sharon Spaventa, a vocational expert. (T at 52-54). 16 17 On December 12, 2014, the ALJ issued a written decision denying the application for benefits. (T at 27-41). The ALJ’s decision became the 18 19 20 2  Citations to (“T”) refer to the administrative record at Docket No. 15. 2 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 Commissioner’s final decision on May 11, 2016, when the Appeals Council denied 2 Plaintiff’s request for review. (T at 1-6). 3 On May 18, 2016, Plaintiff, acting by and through her counsel, filed this 4 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 5 1). The Commissioner interposed an Answer on October 6, 2016. (Docket No. 14). 6 Plaintiff filed a supporting memorandum of law on December 5, 2016. (Docket No. 7 21). The Commissioner filed an opposition memorandum on January 9, 2017. 8 (Docket No. 22). Plaintiff filed a Reply on January 23, 2017. (Docket No. 23). 9 After reviewing the pleadings, the parties’ memoranda, and administrative 10 record, this Court finds that the Commissioner’s decision must be reversed and this 11 case remanded for calculation of benefits. 12 13 14 III. DISCUSSION A. Sequential Evaluation Process 15 The Social Security Act (“the Act”) defines disability as the “inability to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which has 18 lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 20 3 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 claimant shall be determined to be under a disability only if any impairments are of 2 such severity that he or she is not only unable to do previous work but cannot, 3 considering his or her age, education and work experiences, engage in any other 4 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 5 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 6 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 9 one determines if the person is engaged in substantial gainful activities. If so, 10 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 11 decision maker proceeds to step two, which determines whether the claimant has a 12 medically severe impairment or combination of impairments. 20 C.F.R. §§ 13 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 14 If the claimant does not have a severe impairment or combination of 15 impairments, the disability claim is denied. If the impairment is severe, the 16 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 17 with a number of listed impairments acknowledged by the Commissioner to be so 18 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 19 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 20 4 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 equals one of the listed impairments, the claimant is conclusively presumed to be 2 disabled. If the impairment is not one conclusively presumed to be disabling, the 3 evaluation proceeds to the fourth step, which determines whether the impairment 4 prevents the claimant from performing work which was performed in the past. If the 5 claimant is able to perform previous work, he or she is deemed not disabled. 20 6 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 7 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 8 work, the fifth and final step in the process determines whether he or she is able to 9 perform other work in the national economy in view of his or her residual functional 10 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 11 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 12 The initial burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 14 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 15 is met once the claimant establishes that a mental or physical impairment prevents 16 the performance of previous work. The burden then shifts, at step five, to the 17 Commissioner to show that (1) plaintiff can perform other substantial gainful 18 activity and (2) a “significant number of jobs exist in the national economy” that the 19 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 20 5 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 B. Standard of Review 2 Congress has provided a limited scope of judicial review of a Commissioner’s 3 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 4 made through an ALJ, when the determination is not based on legal error and is 5 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 6 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 7 “The [Commissioner’s] determination that a plaintiff is not disabled will be 8 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 9 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 10 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 11 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 12 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 13 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 14 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 15 conclusions as the [Commissioner] may reasonably draw from the evidence” will 16 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 17 the Court considers the record as a whole, not just the evidence supporting the 18 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 19 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 20 6 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 It is the role of the Commissioner, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 3 interpretation, the Court may not substitute its judgment for that of the 4 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 5 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 6 set aside if the proper legal standards were not applied in weighing the evidence and 7 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 8 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 9 administrative findings, or if there is conflicting evidence that will support a finding 10 of either disability or non-disability, the finding of the Commissioner is conclusive. 11 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 12 C. Commissioner’s Decision 13 The ALJ determined that Plaintiff had not engaged in substantial gainful 14 activity since August 24, 2012, the alleged onset date, and met the insured status 15 requirements of the Social Security Act through December 31, 2016 (the “date last 16 insured”). (T at 21). 17 hypertension, osteoarthritic changes of the bilateral hips, and obesity were “severe” 18 impairments under the Act. (Tr. 32). The ALJ found that Plaintiff’s status post L3-5 fusion, 19 20 7 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 However, the ALJ concluded that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled one of the impairments 3 set forth in the Listings. (T at 34). 4 The ALJ determined that Plaintiff retained the residual functional capacity 5 (“RFC”) to perform sedentary work, as defined in 20 CFR § 404.1567 (a), except 6 that she would need to stand and stretch for a few seconds every 30 minutes. (T at 7 34). The ALJ concluded that Plaintiff could perform her past relevant work as a 8 housing programs manager and city planner. (T at 35). 9 Accordingly, the ALJ determined that Plaintiff was not disabled within the 10 meaning of the Social Security Act between August 24, 2012 (the alleged onset date) 11 and December 12, 2014 (the date of the decision) and was therefore not entitled to 12 benefits. (T at 37). As noted above, the ALJ’s decision became the Commissioner’s 13 final decision when the Appeals Council denied Plaintiff’s request for review. (T at 14 1-6). 15 D. Disputed Issues 16 Plaintiff offers three (3) main arguments in support of her claim that the 17 Commissioner’s decision should be reversed. First, Plaintiff argues that the ALJ did 18 not properly evaluate the medical opinion evidence. Second, she challenges the 19 20 8 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 ALJ’s credibility determination. Third, Plaintiff asserts that the ALJ’s step five 2 analysis was flawed. This Court will address each argument in turn. 3 4 5 IV. ANALYSIS A. Medical Opinion Evidence 6 In disability proceedings, a treating physician’s opinion carries more weight 7 than an examining physician’s opinion, and an examining physician’s opinion is 8 given more weight than that of a non-examining physician. Benecke v. Barnhart, 9 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 10 1995). If the treating or examining physician’s opinions are not contradicted, they 11 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 12 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 13 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 14 1035, 1043 (9th Cir. 1995). 15 The courts have recognized several types of evidence that may constitute a 16 specific, legitimate reason for discounting a treating or examining physician’s 17 medical opinion. For example, an opinion may be discounted if it is contradicted by 18 the medical evidence, inconsistent with a conservative treatment history, and/or is 19 based primarily upon the claimant’s subjective complaints, as opposed to clinical 20 9 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 findings and objective observations. See Flaten v. Secretary of Health and Human 2 Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 3 An ALJ satisfies the “substantial evidence” requirement by “setting out a 4 detailed and thorough summary of the facts and conflicting clinical evidence, stating 5 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 6 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 7 “The ALJ must do more than state conclusions. He must set forth his own 8 interpretations and explain why they, rather than the doctors’, are correct.” Id. 9 In May of 2013, Dr. Jeremy Smith, Plaintiff’s treating orthopedic surgeon, 10 completed a medical source statement. He reported a diagnosis of spondylolisthesis, 11 with an onset date of October 26, 2011. (T at 451). Dr. Smith indicated that he had 12 been treating Plaintiff monthly since October of 2012. (T at 451). He described 13 Plaintiff’s prognosis as “guarded” and opined that her symptoms were “permanent.” 14 (T at 453). Dr. Smith opined that Plaintiff could stand/walk for less than 2 hours in 15 an 8-hour workday and sit for less than 6 hours in an 8-hour workday. (T at 455). 16 He indicated that Plaintiff would need to alternate between standing and sitting, and 17 could never climb, balance, stoop, kneel, crouch, or crawl. (T at 455-56). 18 Dr. Smith provided a second medical source statement in August of 2013. In 19 that statement, he limited Plaintiff’s ability to lift/carry to less than 10 pounds, 20 10 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 opined that she could stand/walk for less than 2 hours in an 8-hour workday, noted 2 that she needed a cane or assistive device when standing and/or walking, and opined 3 that she could sit for less than 6 hours in an 8-hour workday. (T at 460). Dr. Smith 4 further indicated that Plaintiff would need to take unscheduled breaks during an 8- 5 hour workday and would likely be absent from work more than 3 times per month 6 due to her impairments or treatment. (T at 460). 7 Dr. Daniel Ghiyam, Plaintiff’s treating primary care physician, provided a 8 medical source statement in January of 2014. Dr. Ghiyam diagnosed spinal fusion 9 with low back pain radiating to the left leg and characterized Plaintiff’s prognosis as 10 “poor.” (T at 464). He noted decreased range of motion and described Plaintiff’s 11 course of treatment as including spinal fusion, physical therapy, epidural injections, 12 and pain medication. (T at 464). Dr. Ghiyam opined that Plaintiff could never 13 lift/carry less than 10 pounds and could stand/walk less than 2 hours in an 8-hour 14 workday. (T at 465). He stated that Plaintiff did not need a cane or assistive device, 15 but was limited with regard to her ability to sit and would need to take unscheduled 16 breaks and shift positions at will. (T at 465). Dr. Ghiyam reported that Plaintiff 17 would likely be absent from work more than 3 times per month due to her 18 impairments or treatment. (T at 465). He opined that she was limited to occasional 19 20 11 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 bending, climbing, crouching, balancing, kneeling, and crawling; and frequent 2 reaching, handling, and fingering. (T at 466). 3 The ALJ found the opinions of Dr. Smith and Dr. Ghiyam “unpersuasive” 4 because they were “internally inconsistent with treatment/progress notes and appear 5 to be clearly dependent on [Plaintiff’s] subjective, unsupported claims of limitation.” 6 (T at 34). This Court finds the ALJ’s assessment of the medical opinion evidence 7 flawed for the reasons that follow. 8 A “discrepancy” between treatment notes and a medical source opinion can 9 constitute “a clear and convincing reason for not relying on the doctor's opinion 10 regarding” the claimant’s limitations. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 11 (9th Cir. 2005). However, the ALJ here does not articulate discrepancies sufficiently 12 material to justify discounting the medical source opinion evidence. Rather, the ALJ 13 references periodic reporting of improvement, including some relative improvement 14 following surgery, without accounting for documentation of persistent pain (T at 15 469, 474, 478, 487-89) and continued limitation. (T at 455-56, 459-62). The ALJ 16 found it significant that Plaintiff “admitted doing better than she was pre- 17 operatively” (T at 34). However, the ALJ does not account for the fact that this is a 18 relative statement comparing her symptoms before and after surgery, which does 19 20 12 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 not, in itself, contradict her treating providers’ assessment of continued limitations at 2 a level of severity that would preclude even sedentary work. 3 In addition, the ALJ made a material error in reviewing Dr. Ghiyam’s 4 statement. The ALJ gave “partial” weight to Dr. Ghiyam’s opinion “to the extent it 5 supports the capacity to perform unlimited sitting ….” (T at 35). However, Dr. 6 Ghiyam indicated that Plaintiff’s ability to sit was affected by her impairment. (T at 7 465). Although he did not quantify the level of impairment, Dr. Ghiyam’s statement 8 cannot be read to support a finding that Plaintiff had no limitation as to sitting. 9 In sum, both treating providers assessed limitations with regard to Plaintiff’s 10 ability to sit for prolonged periods, with Dr. Smith, the orthopedic specialist, twice 11 finding Plaintiff unable to sit for even 2 hours in an 8-hour workday. (T at 455, 460). 12 The ALJ’s consideration of this evidence was flawed and cannot be sustained. 13 The ALJ also asserts that the treating physicians relied too heavily on 14 Plaintiff’s subjective complaints. (T at 34-35). However, “when an opinion is not 15 more heavily based on a patient's self-reports than on clinical observations, there is 16 no evidentiary basis for rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 1154, 17 1162 (9th Cir. 2014). Indeed, “a patient's complaints or reports of [her] complaints, 18 or history, is an essential diagnostic tool.” Williams v. Colvin, 13-03005, 2014 U.S. 19 Dist. LEXIS 6244, at *33 (E.D.Wa. Jan. 15, 2004). Here, both physicians had an 20 13 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 extended opportunity to observe and treat Plaintiff. Dr. Smith had highly relevant 2 expertise as an orthopedic surgeon. The ALJ’s conclusion that the physicians’ 3 assessments were inordinately based on Plaintiff’s subjective complaints is not 4 supported by substantial evidence. 5 The ALJ referenced a June 2013 opinion by Dr. E. Christian, a non-examining 6 State Agency review consultant, who concluded that Plaintiff retained the RFC to 7 perform light work. (T at 36, 66-76). However, the opinion of a non-examining, 8 State Agency physician does not, without more, justify the rejection of an examining 9 physician’s opinion. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)(citing Pitzer 10 v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)). The rejection of an examining 11 physician opinion based on the testimony of a non-examining medical consultant 12 may be proper, but only where there are sufficient reasons to reject the examining 13 physician opinion independent of the non-examining physician's opinion. See e.g., 14 Lester, 81 F.3d at 831; Roberts v. Shalala, 66 F.3d 179 (9th Cir. 1995). 15 For the reasons outlined above, this Court finds the ALJ committed legal error 16 in failing to properly assess the medical opinion evidence. See Ghokassian v. 17 Shalala, 41 F.3d 1300, 1303 (9th Cir. Cal. 1994)(“[W]e also hold that the ALJ 18 committed a legal error when he failed to grant deference to the conclusions [of 19 claimant’s treating physician]…[The courts have] ‘accorded deference to treating 20 14 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 physicians precisely because they are the doctors with ‘greater opportunity to 2 observe and know the patient.’”)(emphasis in original)(quoting Murray v. Heckler, 3 722 F.2d 499, 502 (9th Cir. 1993)). 4 B. Credibility 5 A claimant’s subjective complaints concerning his or her limitations are an 6 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 7 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 8 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 9 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 10 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 11 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 12 findings are insufficient: rather the ALJ must identify what testimony is not credible 13 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 14 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 15 However, subjective symptomatology by itself cannot be the basis for a 16 finding of disability. A claimant must present medical evidence or findings that the 17 existence of an underlying condition could reasonably be expected to produce the 18 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 19 § 404.1529(b), 416.929; SSR 96-7p. 20 15 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 In this case, Plaintiff testified as follows: although she had some improvement 2 in her symptoms following back surgery in January of 2013, she continues to 3 experience constant low back pain and hip pain. (T at 47-48). She is not able to sit 4 or stand for longer than 30 minutes at a time and performed stretching exercises 5 once per hour throughout the day to relieve pain. (T at 47, 49). She can lift at most 6 7-8 pounds. (T at 51). 7 The ALJ concluded that Plaintiff’s medically determinable impairments could 8 reasonably be expected to cause the alleged symptoms, but that her statements 9 regarding the intensity, persistence, and limiting effects of the symptoms were not 10 fully credible. (T at 35). This Court finds the ALJ’s analysis flawed. 11 First, the ALJ found Plaintiff’s subjective complaints inconsistent with the 12 medical record. (T at 35). However, this finding was impacted by the ALJ’s errors 13 outlined above, including, in particular, her error in believing that Dr. Ghiyam 14 assessed no limitation with respect to sitting. 15 assessments of Plaintiff’s treating primary care doctor and orthopedic surgeon are 16 actually supportive of her testimony. When properly considered, the 17 Second, the ALJ found that Plaintiff’s activities of daily living contradicted 18 her claims. (T at 35). In particular the ALJ concluded that Plaintiff’s activities 19 20 16 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 indicated “the capacity to perform focused and sustained activities similar to the 2 capacity required to perform work duties at many jobs.” (T at 36). 3 However, even if Plaintiff’s rather limited activities (cooking, washing dishes, 4 shopping, driving, performing exercises for pain relief) did indicate any ability to 5 sustain focus in spite of pain, that would still leave the question of Plaintiff’s ability 6 to sit for prolonged periods, which would be required for a sedentary job. 7 The ALJ did not explain how Plaintiff’s activities reflected on her limitations 8 in that regard and/or how her activities even arguably contradicted the conclusions 9 of her treating providers, both of whom assessed limitation as to prolonged sitting. 10 The Ninth Circuit “has repeatedly asserted that the mere fact that a plaintiff has 11 carried on certain daily activities ... does not in any way detract from her credibility 12 as to her overall disability." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 13 (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). “The Social 14 Security Act does not require that claimants be utterly incapacitated to be eligible for 15 benefits, and many home activities are not easily transferable to what may be the 16 more grueling environment of the workplace, where it might be impossible to 17 periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 18 1989). 19 20 17 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 Third, the ALJ discounted Plaintiff’s credibility because she found the course 2 of treatment to be “limited and conservative.” (T at 35). However, it is not clear 3 what additional treatment the ALJ would have expected Plaintiff to receive. She 4 was treated with physical therapy, epidural injections, spinal fusion surgery, and 5 narcotic pain medication. (T at 464). See Perez v. Colvin, No EDCV 14-2626, 2016 6 U.S. Dist. LEXIS 44230, at *17 (C.D. Cal. Mar. 31, 2016)(“The ALJ cannot fault 7 Plaintiff for failing to pursue nonconservative treatment options if none 8 existed.”)(citing Lapeirre-Gutt v. Astrue, 382 F. App'x 662, 664 (9th Cir. 2010)). 9 C. Step 4 Analysis 10 At step four, the ALJ concluded that Plaintiff could perform her past relevant 11 work as a housing programs manager and city planner. (T at 35). This finding was 12 based on a hypothetical presented to the vocational expert, which, in turn, was based 13 on the limitations assessed by the ALJ. For the reasons outlined above, the ALJ’s 14 assessment of Plaintiff’s limitations was flawed, which undermines the step 4 15 analysis for the same reasons. 16 D. Remand 17 In a case where the ALJ's determination is not supported by substantial 18 evidence or is tainted by legal error, the court may remand for additional 19 proceedings or an immediate award of benefits. Remand for additional proceedings 20 18 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 2 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 3 F.3d 587, 593 (9th Cir. 2004). 4 In contrast, an award of benefits may be directed where the record has been 5 fully developed and where further administrative proceedings would serve no useful 6 purpose. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). 7 remanded for an award of benefits where (1) the ALJ has failed to provide legally 8 sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 9 must be resolved before a determination of disability can be made, and (3) it is clear 10 from the record that the ALJ would be required to find the claimant disabled were 11 such evidence credited. Id. (citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th 12 Cir.1989); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989); Varney v. Sec'y of 13 Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988)). 14 Courts have Here, Plaintiff’s treating primary care doctor and orthopedic surgeon assessed 15 limitations inconsistent with even sedentary work. Plaintiff’s testimony was 16 supported by her treating providers’ opinions. The ALJ failed to provide legally 17 sufficient reasons for discounting Plaintiff’s credibility and assigning little weight to 18 the treating provider assessments. It is clear from the record that the ALJ would be 19 required to find Plaintiff disabled if this evidence was credited and this Court finds 20 19 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB 1 no outstanding issues to be resolved before a disability determination can be made. 2 As such, this Court finds that a remand for calculation of benefits is the appropriate 3 remedy. 4 5 VI. ORDERS IT IS THEREFORE ORDERED that: 6 Judgment be entered REVERSING the Commissioner’s decision and 7 REMANDING this action for calculation of benefits, and it is further ORDERED 8 that 9 The Clerk of the Court file this Decision and Order, serve copies upon counsel 10 for the parties, and CLOSE this case, without prejudice to a timely application for 11 attorneys’ fees and costs. 12 13 14 DATED this 11th day of September, 2017, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 20 DECISION AND ORDER – CLARK v BERRYHILL 2:16-CV-03415-VEB

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