Pedro Baltazar Jr. v. Commissioner of Social Security Administration

Filing 20

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick re: NOTICE OF MOTION AND MOTION for Summary Judgment 18 . Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PEDRO BALTAZAR, JR.,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
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Commissioner of Social Security,
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Defendant.
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____________________________________)

NO. CV 16-8132-E

MEMORANDUM OPINION
AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied, and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed a Complaint on November 1, 2016, seeking review

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of the Commissioner’s denial of benefits.

The parties filed a consent

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to proceed before a United States Magistrate Judge on December 2,

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2016.

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Plaintiff filed a motion for summary judgment on April 7, 2017.

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Defendant filed a motion for summary judgment on May 8, 2017.

The

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Court has taken both motions under submission without oral argument.

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See L.R. 7-15; “Order,” filed November 7, 2016.

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BACKGROUND

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On May 13, 2010, Plaintiff applied for disability insurance
benefits and supplemental security income, alleging disability

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beginning January 14, 2005 (Administrative Record (“A.R.”) 152-62).

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Plaintiff presented, among other evidence, a July 24, 2006 report

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authored by his treating orthopedist, Dr. Michael P. Rubinstein (A.R.

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441-44).

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orthopedic impairments restricted Plaintiff to work that would not

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require the lifting of more than 15 pounds (A.R. 443).

Dr. Rubinstein opined, inter alia, that Plaintiff’s

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On September 7, 2012, an Administrative Law Judge (“ALJ”)

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rejected Dr. Rubinstein’s opinion regarding Plaintiff’s lifting

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restriction (A.R. 26-27).

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rejection the fact that Dr. Rubinstein’s report had been “created for

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workers’ compensation purposes” and the fact that Dr. Concepcion

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Enriquez, a non-treating physician, subsequently opined Plaintiff

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could perform “light exertional work,” i.e. work requiring the lifting

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of 20 pounds1 (A.R. 26-27).

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jobs Plaintiff assertedly could perform, and, on that basis, denied

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disability benefits (A.R. 28-30).

The ALJ stated as reasons for this

The ALJ identified certain light work

On April 3, 2014, the Appeals

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See 20 C.F.R. § 404.1567(b).
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Council denied review (A.R. 1-3).

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On January 21, 2015, this Court reversed and remanded for further

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administrative proceedings (A.R. 797-807).2

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ALJ erred in connection with the ALJ’s consideration of Dr.

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Rubinstein’s opinion, stating:

The Court held that the

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The law is well established in this Circuit that a

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treating physician’s opinions are entitled to special weight

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because a treating physician is employed to cure and has a

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greater opportunity to know and observe the patient as an

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individual.

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(9th Cir. 1989).

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however, necessarily conclusive as to either a physical

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condition or the ultimate issue of disability.”

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v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

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given a treating physician’s opinion depends on whether it

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is supported by sufficient medical data and is consistent

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with other evidence in the record.

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404.1527(d)(2), 416.927(d)(2).

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opinion is uncontroverted by another doctor, it may be

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rejected only for “clear and convincing” reasons.

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Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Baxter

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v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991).

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here, the treating physician’s opinion is controverted, it

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may be rejected only if the ALJ makes findings setting forth

See McAllister v. Sullivan, 888 F.2d 599, 602
“The treating physician’s opinion is not,

Magallanes

The weight

See 20 C.F.R. §§

If the treating physician’s

See

Where, as

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The Honorable Robert N. Block, the judge who made this
decision, has since retired.
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specific and legitimate reasons that are based on the

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substantial evidence of record.

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Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“A treating

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physician’s opinion on disability, even if controverted, can

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be rejected only with specific and legitimate reasons

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supported by substantial evidence in the record.”);

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Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643,

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647 (9th Cir. 1987).

See, e.g., Reddick v.

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In July 2006, five months after he had performed

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surgery on plaintiff’s right shoulder, Dr. Rubinstein issued

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an opinion about plaintiff’s post-surgical functional

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abilities.

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plaintiff’s condition was “permanent and stationary” (i.e.,

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that plaintiff had reached maximum medical improvement).

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(See AR 441.)

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should be precluded from overhead work; constant repetitive

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use of the right arm; and lifting, pulling, or pushing more

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than 15 pounds.

(See AR 441-44.)

Dr. Rubinstein opined that

Dr. Rubinstein also opined that plaintiff

(See AR 443.)

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The ALJ declined to credit Dr. Rubinstein’s opinion for

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two reasons.

One of the reasons proffered by the ALJ was

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that Dr. Rubinstein’s opinion was created for worker’s

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compensation purposes and “therefore was not specifically

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referring to the kinds of limitations to be considered when

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assessing disability under the Social Security laws and

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regulations.”

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that an ALJ must properly consider every medical opinion,

(See AR 26.)

However, it is well-settled

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without regard to its source or its criteria for disability.

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See Macri v. Chater, 93 F.3d 540, 543-44 (9th Cir. 1996);

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Desrosiers v. Secretary of Health and Human Services, 846

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F.2d 573, 576 (9th Cir 1988); Booth v. Barnhart, 181 F.

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Supp. 2d 1099, 1105 (C.D. Cal. 2002) (“[T]he ALJ may not

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disregard a physician’s opinion simply because it was

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initially elicited in a state workers’ compensation

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proceeding, or because it is couched in the terminology used

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in such proceedings.”); 20 C.F.R. §§ 416.927(c) and

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404.1527(c) (“Regardless of its source, we will evaluate

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every medical opinion we receive.”); see generally McLeod v.

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Astrue, 640 F.3d 881, 886 (9th Cir. 2011) (ALJ was required

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to consider VA rating of disability even though the VA and

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SSA criteria for determining disability are not identical).

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Morever, the Court fails to see how the types of general and

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widely-understood limitations recommended by Dr. Rubinstein

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– in overhead work; repetitive use of the arm; and lifting,

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pulling, or pushing – could have any special meaning that

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would not apply to the Social Security context.

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Accordingly, the Court finds that this was not a legally

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sufficient reason on which the ALJ could properly rely to

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reject Dr. Rubinstein’s opinion.

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The other reason proffered by the ALJ for rejecting Dr.

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Rubinstein’s opinion was that, although Dr. Rubinstein’s

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July 2006 opinion may have been reasonable for the period

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shortly after plaintiff’s surgery, more recent evidence

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showed that plaintiff had a greater residual functional
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capacity.

(See AR 26.)

Specifically, the ALJ noted the

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more recent opinion of Dr. Enriquez, an examining physician

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who opined in April 2011 that plaintiff could perform the

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equivalent of light work.

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The Court is mindful of authority that, as a general matter,

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a more recent medical opinion may have more probative value

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than an older opinion about a claimant’s abilities.

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e.g., Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986);

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Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985); see

(See AR 26; see also AR 676-80.)

See,

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also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).

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However, this authority is applicable only if the record

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reflects that the claimant’s condition had changed in the

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period between the two opinions.

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(finding that the most recent medical opinion was the most

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probative because the claimant’s condition “was

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progressively deteriorating”); cf. Young, 803 F.2d at 968

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(declining to afford greater weight to more recent medical

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report when “it is far from clear that [claimant’s]

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condition was progressively deteriorating”).

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record is far from clear that plaintiff’s shoulder condition

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improved after Dr. Rubinstein had issued his opinion so as

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to justify according greater weight to the more recent

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opinion of Dr. Enriquez.

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no evidence about plaintiff’s shoulder condition between the

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Here, the

Indeed, the record contains almost

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See Stone, 761 F.2d at 532

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two opinions.3

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Instead, the record appears to reflect only the

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presence of a conflict between the opinions of Dr.

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Rubinstein and Dr. Enriquez, which was merely determinative

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of the standard to be applied to the ALJ’s proffered reasons

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for not crediting the opinion of Dr. Rubinstein, and was not

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a legally sufficient reason in itself.

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at 830 (in event of conflict in the medical opinion

See Lester, 81 F.3d

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evidence, an ALJ still must provide legally sufficient

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reasons to reject a treating or examining physician’s

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opinion); see also Widmark v. Barnhart, 454 F.3d 1063,

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1066-67 and n.2 (9th Cir. 2006) (existence of a conflict

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among the medical opinions by itself cannot constitute

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substantial evidence for rejecting a treating physician’s

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opinion).

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In sum, the Court finds that reversal is warranted

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based on the ALJ’s failure to properly consider the treating

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Although the Commissioner cites Carmickle v.
Commissioner, Social Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.
2008), for the proposition that medical opinions pre-dating the
alleged disability period are of limited value (see Jt. Stip at
16), the Court finds that authority distinguishable. In
Carmickle, the ALJ found that a medical opinion pre-dating the
alleged disability period had limited probative value because the
opinion was issued before the claimant’s accident and during a
time when claimant was working at two jobs. See id. at 1158,
1165. Here, by way of contrast, Dr. Rubinstein’s opinion was
issued after plaintiff’s accident and during a time when
plaintiff was no longer performing his past relevant work or any
other substantial gainful activity.
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physician’s opinion.

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(A.R. 800-803).

The Court remanded the matter for further

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administrative proceedings (A.R. 805-07).

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On August 30, 2016, the ALJ issued another decision (A.R. 696-

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705).

Again, the ALJ rejected Dr. Rubinstein’s opinion that Plaintiff

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is restricted to lifting no more than 15 pounds (A.R. 700, 702-03).

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Again, the ALJ stated that Dr. Rubinstein had rendered the opinion “in

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connection with the claimant’s Workers’ Compensation claim” (A.R.

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702).

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Dr. Enriquez (A.R. 702-03).

Again, the ALJ gave “great weight” to the contrary opinion of
The ALJ also stated:

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While the undersigned recognize [sic] claimant is limited in

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his capacity to lift, carry, push, and pull, physical

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examination was remarkable for only 20 percent reduction of

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range of motion and fully healed medical malleolar fracture

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(Exhibit 6F-17).

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pounds weight limit, the claimant is disabled only 16% in

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Workers’ Compensation claim, which has different rules and

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guidelines.

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given partial weight (702).

Despite Dr. Rubinstein’s limitation in 15

Therefore, the opinions of Dr. Rubinstein are

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Again, the ALJ found Plaintiff could perform light work

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throughout the period of alleged disability (A.R. 700).

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based on an application of the Medical Vocational Guidelines (“the

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Grids”), the ALJ found Plaintiff disabled beginning on January 19,

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2014 (the day before Plaintiff’s 55th birthday) (A.R. 704-05 (applying
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However,

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Grids Rule 202.02)).

The ALJ found Plaintiff not disabled prior to

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January 19, 2014 (A.R. 705).

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work rather than light work, the Grids would conclusively presume

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Plaintiff disabled on January 20, 2009 (his 50th birthday).

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Rule 201.10.

If Plaintiff were limited to sedentary

See Grids

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d at 1159; Hoopai v. Astrue, 499 F.3d 1071, 1074

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(9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161

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(9th Cir. 2012).

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reasonable mind might accept as adequate to support a conclusion.”

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Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and

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quotations omitted); see also Widmark v. Barnhart, 454 F.3d at 1066.

See Carmickle v.

Substantial evidence is “such relevant evidence as a

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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detracts from the [administrative] conclusion.

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But the

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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DISCUSSION

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I.

The ALJ Again Failed to State Legally Sufficient Reasons for
Rejecting the Opinion of Dr. Rubinstein.

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The ALJ must “consider” and “evaluate” every medical opinion of

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record.

20 C.F.R. § 404.1527(b) and (c).

In this consideration and

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evaluation, an ALJ “cannot reject [medical] evidence for no reason or

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the wrong reason.”

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1981); see Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ

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may not make his or her own lay medical assessment).

Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir.

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As this Court’s 2015 remand order advised, under the law of the

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Ninth Circuit the opinions of treating physicians command particular

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respect.

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opinion of the treating source than to the opinion of doctors who do

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not treat the claimant. . . .”

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(9th Cir. 1995) (citations omitted).

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conclusions “must be given substantial weight.”

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F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759,

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762 (9th Cir. 1989) (“the ALJ must give sufficient weight to the

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subjective aspects of a doctor’s opinion. . . .

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true when the opinion is that of a treating physician”) (citation

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omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007)

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(discussing deference owed to treating physicians’ opinions).

“As a general rule, more weight should be given to the

Lester v. Chater, 81 F.3d 821, 830

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A treating physician’s
Embrey v. Bowen, 849

This is especially

Even

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where the treating physician’s opinions are contradicted,4 “if the ALJ

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wishes to disregard the opinion[s] of the treating physician he . . .

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must make findings setting forth specific, legitimate reasons for

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doing so that are based on substantial evidence in the record.”

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Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation,

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quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at

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762 (“The ALJ may disregard the treating physician’s opinion, but only

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by setting forth specific, legitimate reasons for doing so, and this

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decision must itself be based on substantial evidence”) (citation and

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quotations omitted).

These reasons must be stated in the ALJ’s

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decision itself; the Court “cannot affirm the decision of an agency on

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a ground that the agency did not invoke in making its decision.”

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Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001).

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In the second administrative decision, the ALJ again erred by

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relying on illegitimate reasoning to reject the opinion of Plaintiff’s

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treating physician.

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Rubinstein’s opinion because of the Workers’ Compensation context in

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which Dr. Rubinstein rendered the opinion.

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advised, the purpose for which a medical opinion is obtained “does not

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provide a legitimate basis for rejecting it.”

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F.3d 715, 726 (9th Cir. 1998); see Nash v. Colvin, 2016 WL 67677, at

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*7 (E.D. Cal. Jan. 5, 2016) (“the ALJ may not disregard a physician’s

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medical opinion simply because it was initially elicited in a state

Again, the ALJ appeared to discount Dr.

As the Court previously

Reddick v. Chater, 157

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Rejection of an uncontradicted opinion of a treating
physician requires a statement of “clear and convincing” reasons.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v.
Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
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workers’ compensation proceeding . . .”) (citations and quotations

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omitted); Casillas v. Colvin, 2015 WL 6553414, at *3 (C.D. Cal.

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Oct. 29, 2015) (same); Franco v. Astrue, 2012 WL 3638609, at *10 (C.D.

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Cal. Aug. 23, 2012) (same); Booth v. Barnhart, 181 F. Supp. 2d 1099,

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1105 (C.D. Cal. 2002) (same).

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workers’ compensation terminology into social security parlance.

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However, as the Court previously advised, no translation of the

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opinion here in question was necessary.

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involving the lifting of no more than 15 pounds needs no translation

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An ALJ sometimes must translate

A restriction to work

to be understandable in the social security context.

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The ALJ’s repeated preference for the 20 pound lifting

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restriction suggested by Dr. Enriquez cannot constitute a “specific,

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legitimate” reason for rejecting the opinion of Dr. Rubinstein.

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the Court previously advised, the contradiction of a treating

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physician’s opinion by another physician’s opinion triggers rather

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than satisfies the requirement of stating “specific, legitimate

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reasons.”

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(9th Cir. 2007); Orn v. Astrue, 495 F.3d at 631-33; Lester v. Chater,

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81 F.3d at 830-31.

As

See, e.g., Valentine v. Commissioner, 574 F.3d 685, 692

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Defendant now appears to argue that the ALJ was privileged to

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reject the opinion of Dr. Rubinstein because “a finding of disability

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is a determination reserved to the Commissioner” (Defendant’s Motion

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at 2).

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legitimate explanation why the ALJ rejected the opinion of Dr.

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Rubinstein.

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Commissioner,” the ALJ still must set forth specific, legitimate

Acknowledgment of this reservation provides no specific or

Even though the issue of disability is “reserved to the

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reasons for rejecting a treating physician’s opinion that a claimant

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is disabled.

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draw a distinction between a medical opinion as to a physical

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condition and a medical opinion on the ultimate issue of

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disability.”); see also Social Security Ruling 96-5p5 (“adjudicators

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must always carefully consider medical source opinions about any

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issue, including opinions about issues that are reserved to the

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Commissioner”).

See Rodriguez v. Bowen, 876 F.2d at 762 n.7 (“We do not

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Defendant also appears to argue that Dr. Rubinstein’s 15 pound

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lifting restriction was inconsistent with “clinical findings.”

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inconsistency between a treating physician’s opinion and clinical

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findings can constitute a specific, legitimate reason for rejecting

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the opinion.

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Cir. 1989).

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ALJ failed to demonstrate any inconsistency between Dr. Rubinstein’s

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15 pound lifting restriction and any clinical findings.

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the ALJ purported to divine a 20 pound lifting restriction from the

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particulars of Dr. Rubinstein’s examination of Plaintiff, or from Dr.

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Rubinstein’s 16 percent workers’ compensation disability rating, the

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ALJ improperly substituted her own lay assessment for expert medical

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opinion.

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nor this Court properly may conclude that Dr. Rubinstein’s clinical

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findings were inconsistent with a 15 pound lifting restriction (or

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consistent only with a 20 pound lifting restriction).

See, e.g., Weetman v. Sullivan, 877 F.2d 20, 23 (9th
In the present case, however, the stated reasoning of the

See Day v. Weinberger, 522 F.2d at 1156.

To the extent

Neither the ALJ

We simply lack

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A true

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Social Security rulings are binding on the
Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1
(9th Cir. 1990).
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the requisite medical expertise so to conclude.

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Accordingly, the ALJ again erred by rejecting the opinion of the

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treating physician without stating legally sufficient reasons for

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doing so.

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II.

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The Court is Unable to Determine that the ALJ’s Error was
Harmless.

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An error “is harmless where it is inconsequential to the ultimate

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non-disability determination.”

Molina v. Astrue, 674 F.3d 1104, 1115

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(9th Cir. 2012) (citations and quotations omitted); see McLeod v.

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Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where

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“the reviewing court can determine from the ‘circumstances of the

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case’ that further administrative review is needed to determine

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whether there was prejudice from the error”).

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The ALJ’s error may have prejudiced Plaintiff.

The ALJ relied on

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a light work exertional capacity in deciding Plaintiff was not

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disabled prior to January 19, 2014 (A.R. 700-05).

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work exertional capacity might well alter the ALJ’s conclusion.

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vocational expert (on whose testimony the ALJ relied) did not identify

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any jobs performable by a person restricted to the lifting of no more

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than 15 pounds (A.R. 848-51).

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A less than light
The

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III. A Remand with a Directive for the Immediate Payment of Benefits
Would not be an Appropriate Remedy in the Present Case.

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The “extreme remedy” of a “remand for an immediate award of

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benefits is appropriate . . . only in rare circumstances.”

Brown-

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Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (citations and

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quotations omitted); see INS v. Ventura, 537 U.S. 12, 16 (2002)

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(remand without a directive for an immediate award of benefits is “the

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proper course, except in rare circumstances.”).

In the Ninth Circuit,

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a remand for an immediate award of benefits properly may occur only

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where:

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(1) the record has been fully developed and further

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administrative proceedings would serve no useful purpose;

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(2) the ALJ has failed to provide legally sufficient reasons

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for rejecting evidence, whether claimant testimony or

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medical opinion; and (3) if the properly discredited

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evidence were credited as true, the ALJ would be required to

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find the claimant disabled on remand.

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Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); see Dominguez

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v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016) (district court should

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examine whether the record “is fully developed, is free from conflicts

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and ambiguities, and all essential factual issues have been resolved

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. . . .

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administrative proceedings would serve no useful purpose, it may not

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remand with a direction to provide benefits”) (citations and

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quotations omitted); Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.),

Unless the district court concludes that further

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cert. denied, 531 U.S. 1038 (2000) (district court may not properly

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direct an immediate award of benefits unless, among other things,

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“there are no outstanding issues that must be resolved before a

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determination of disability can be made, and . . . it is clear from

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the record that the ALJ would be required to find the claimant

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disabled” if the improperly rejected evidence were credited)

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(citations and quotations omitted).6

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In the present case, it is not clear that the ALJ would be

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required to find Plaintiff disabled prior to January 19, 2014, even if

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Dr. Rubinstein’s opinion were credited.

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presume disability as of Plaintiff’s 50th birthday (January 20, 2009)

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if Plaintiff were limited to a sedentary exertional capacity.

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However, a 15 pound lifting capacity exceeds a sedentary lifting

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capacity.

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lifting no more than 10 pounds at a time . . .”).

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Plaintiff’s argument, SSR 83-12 does not require application of the

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sedentary level Grid where a claimant’s exertional capacity falls

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between light and sedentary.

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870-71 (9th Cir. 2000); Walker v. Apfel, 197 F.3d 956, 958 (8th Cir.

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1999); Stone v. Colvin, 2015 WL 1433469, at *8-11 (E.D. Mo. March 27,

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2015); Warren v. Astrue, 2011 WL 3444268, at *2-3 (E.D. Tex. Aug. 5,

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2011); but see Strong v. Apfel, 122 F. Supp. 2d 1025, 1029-31 (S.D.

The Grids would conclusively

See 20 C.F.R. § 404.1567(a) (“Sedentary work involves
Contrary to

See, e.g. Moore v. Apfel, 216 F.3d 864,

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Even when these standards are met, the district court
retains “some flexibility” to refuse to remand for an immediate
award of benefits. See Connett v. Barnhart, 340 F.3d 871, 876
(9th Cir. 2003); see also Garrison v. Colvin, 759 F.3d at 1021-22
(perhaps limiting this “flexibility” to circumstances where “an
evaluation of the record as a whole creates serious doubt as to
whether the claimant is, in fact, disabled”).
16

1

Iowa 2000) (remanding for immediate payment of payments based on the

2

sedentary level Grid where the claimant had a 15 pound lifting

3

capacity).

4

a vocational specialist (“VS”) would be required in the present case:

Indeed, SSR 83-12 suggests that the further assistance of

5
6

In situations where the rules would direct different

7

conclusions, and the individual’s exertional limitations are

8

somewhere “in the middle” in terms of the regulatory

9

criteria for exertional ranges of work, more difficult

10

judgments are involved as to the sufficiency of the

11

remaining occupational base to support a conclusion as to

12

disability.

13

these types of cases.

Accordingly, VS assistance is advisable for
SSR 83-12, 1983 WL 31253, at *2-3.

14
15

In any event, even if Plaintiff were deemed disabled on

16

January 20, 2009, his entitlement to benefits for the period

17

January 14, 2005, through January 19, 2009, would still be in doubt.

18
19

For the above reasons, the Court will not direct the immediate

20

payment of benefits for the period preceding January 19, 2014.

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
17

1

IV.

Although the Court Previously Remanded for Further Administrative

2

Proceedings on an “Open Record,”7 the Court Need not Do So Again.

3

Rather, the Court Will Remand for Further Administrative

4

Proceedings in Which Dr. Rubinstein’s Opinion Regarding a 15

5

Pound Lifting Restriction Will be Credited as True.

6
7

When an ALJ fails to state legally sufficient reasons for

8

rejecting the testimony of a claimant or the opinion of the treating

9

physician, and where outstanding issues remain such that a directive

10

for the payment of benefits would be inappropriate, courts within the

11

Ninth Circuit usually remand on an “open record,” i.e. without placing

12

any limitation on the scope of the further administrative proceedings.

13

See, e.g. Such was the remedy this Court implemented in 2015 when the

14

first administrative decision failed to state legally sufficient

15

reasons for rejecting the opinion of Dr. Rubinstein.

16

below, however, implementation of this same remedy for the near-

17

identical error in the second administrative decision would no longer

18

be appropriate.

As discussed

19
20

In Varney v. Secretary, 859 F.2d 1396, 1401 (9th Cir. 1988), the

21

Ninth Circuit adopted the Eleventh Circuit’s rule of crediting as true

22

improperly rejected testimony from a claimant when there are no

23

outstanding issues that must be resolved before a proper disability

24

determination can be made and it is clear from the record that the ALJ

25

would be required to award benefits if the testimony were credited.

26
27
28

7

The previous remand for further administrative
proceedings did not purport to limit the scope of the remand in
any way (A.R. 806).
18

1

As indicated above, the Ninth Circuit subsequently applied this rule

2

equally to improperly rejected medical opinion.

3

Colvin, 759 F.3d at 1020; Harman v. Apfel, 211 F.3d 1172, 1178 (9th

4

Cir.), cert. denied, 531 U.S. 1038 (2000).

5

Eleventh Circuit also credited as true improperly rejected evidence

6

when further administrative proceedings were required before a proper

7

disability determination could be made.

8

F.2d at 1398, 1401.

9

on this appeal whether to apply the Eleventh Circuit rule where

10

See, e.g. Garrison v.

At the time of Varney, the

See Varney v. Secretary, 859

The Varney Court stated that “we need not decide

further proceedings are required for other reasons.”

Id. at 1401.

11
12

Subsequently, some Ninth Circuit cases have credited (or approved

13

the crediting of) improperly rejected evidence while remanding for

14

further administrative proceedings, even when the ultimate issue of

15

entitlement to disability benefits remained in doubt.

16

v. Commissioner, 473 Fed. App’x 536, 537 (9th Cir. 2012) (“Cero”);

17

Vasquez v. Astrue, 572 F.3d 586, 594 (9th Cir. 2009) (“Vasquez”);

18

Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989) (“Hammock”).

19

Ninth Circuit ordered such a remedy in Hammock “because the delay

20

experienced by Hammock has been severe and because of Hammock’s

21

advanced age.”

22

Ninth Circuit observed: (1) the claimant was 58 years old; (2) “the

23

purpose of the credit-as-true rule is to discourage ALJs from reaching

24

a conclusion about a claimant’s status first, and then attempting to

25

justify it by ignoring any evidence in the record that suggests an

26

opposite result”; and (3) a “credit-as-true rule” “helps prevent

27

unnecessary duplication in the administrative process.”

28

F.2d at 594.

Hammock, 879 F.2d at 503.

See, e.g. Cero

Similarly, in Vasquez, the

Vasquez, 879

In Cero, an unpublished decision, the Ninth Circuit
19

The

1

“remanded to the ALJ with instructions to fully credit the opinions of

2

[the treating physicians]” where further proceedings were necessary to

3

determine whether the claimant was disabled during the relevant time

4

period.

See Cero, 473 Fed. App’x at 537-38.

5
6

In the present case, the factors identified in Hammock and

7

Vasquez argue for a similar remedy.

Plaintiff currently is 58 years

8

old.

9

This Court previously remanded the case for further administrative

Plaintiff filed his claims for benefits over seven years ago.

10

proceedings after the ALJ failed to state specific, legitimate reasons

11

for rejecting the opinion of Dr. Rubinstein.

12

cited the appropriate Ninth Circuit authorities regarding this issue.

13

Now, for a second time, the ALJ has failed to apply these authorities

14

properly, repeating essentially the same error of law that

15

necessitated the previous remand.

16

provide a third opportunity for proper administrative application of

17

these authorities.

18

Cir. 2004) ("Allowing the Commissioner to decide the issue again would

19

create an unfair ‘heads we win; tails, let's play again’ system of

20

disability benefits adjudication. . . .”) (citations and quotations

21

omitted); see also Garrison v. Colvin, 759 F.3d at 1019 (a “credit-as-

22

true rule is designed to achieve fairness and efficiency”); Brown v.

23

Bowen, 682 F. Supp. 858, 862 (W.D. Va. 1988) (rejecting argument that

24

the court should give the Administration a third opportunity correctly

25

to resolve a particular issue in the disability analysis).

At that time, the Court

The Court should not be required to

See Benecke v. Barnhart, 379 F.3d 587, 595 (9th

26
27

Accordingly, on remand the Administration shall credit as true

28

Dr. Rubinstein’s opinion regarding Plaintiff’s lifting capacity and
20

1

shall conduct further proceedings to determine whether Plaintiff is

2

entitled to benefits prior to January 19, 2014.

3

Colvin, 2013 WL 645719, at *8 (C.D. Cal. 2013) (crediting treating

4

physicians’ opinions as true and remanding for further administrative

5

proceedings rather than giving the Administration a third opportunity

6

to provide legally sufficient reasons for rejecting a treating

7

physicians’ opinions); Smith v. Astrue, 2011 WL 3962107, at *8 (C.D.

8

Cal. Sept. 8, 2011) (same); Toland v. Astrue, 2011 WL 662336, at *8

9

(C.D. Cal. Feb. 14, 2011) (same).

See McNeill v.

10
11

In selecting this remedy, the Court is mindful of a district

12

court’s lack of authority to order the payment of benefits in the

13

absence of a disability.

14

1136, 1138 (9th Cir. 2011) (“a claimant is not entitled to benefits

15

under the statute unless the claimant is, in fact, disabled, no matter

16

how egregious the ALJ’s errors may be”).

17

language in some Ninth Circuit decisions that might be read as

18

precluding the crediting of improperly rejected evidence where, as

19

here, there exists a need for further administrative proceedings.

20

example, in Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2016)

21

(“Dominguez”), the Ninth Circuit stated:

See Strauss v. Commissioner, 635 F.3d 1135,

The Court is also mindful of

22
23

The district court must “assess whether there are

24

outstanding issues requiring resolution before considering

25

whether to hold that the claimant’s testimony is credible as

26

a matter of law.”

27

[1090] at 1105 [9th Cir. 2014] [(“Treichler”)].

28

outstanding issues do exist, the district court cannot deem

Treichler [v. Commissioner,] 775 F.3d

21

If such

For

1

the erroneously disregarded testimony to be true; rather,

2

the court must remand for further proceedings.

3
4

Dominguez, 808 F.3d at 409.

Similarly, dicta in a recent Ninth

5

Circuit case states that, when an ALJ does not give specific,

6

legitimate reasons for rejecting a treating physician’s opinion, the

7

district court “can reverse and remand for an award of benefits . . .

8

[or] [a]lternatively, the district court can remand on an open record

9

for further proceedings.”

Gardner v. Berryhill, 2017 WL 1843742, at

10

*5 n.3 (9th Cir. May 9, 2017) (citations and quotations omitted)

11

(“Gardner”).

12

third alternative.

The Gardner Court did not admit the possibility of a
See id.

13
14

Yet, as previously discussed, Ninth Circuit cases sometimes have

15

implemented a third alternative, deeming the improperly rejected

16

evidence to be true while remanding for further proceedings.

17

Cero; Vasquez; Hammock.8

See

18
19

To the extent there exists a conflict between Vasquez, Hammock

20

and the like and Dominguez, Treichler, Gardner and the like, for the

21

reasons previously discussed, this Court chooses to follow Vasquez and

22
23
24
25
26
27
28

8

Some Ninth Circuit cases have even appeared to state
that the improperly rejected evidence must be credited as true.
See, e.g. Benecke v. Barnhart, 379 F.3d at 594; Lester v. Chater,
81 F.3d 821, 834 (9th Cir. 1995). Other Ninth Circuit cases deny
that there is anything mandatory about crediting as true
improperly rejected evidence. See, e.g. Treichler, 775 F.3d at
1106. The Ninth Circuit has sometimes suggested, and sometimes
denied, the existence of an intra-circuit conflict in this
regard. Compare Vasquez, 879 F.2d at 593 with Garrison v.
Colvin, 759 F.3d at 1021 n.27.
22

1

Hammock.

See Page v. Colvin, 2016 WL 6835075, at *6 (N.D. Cal.

2

Nov. 20, 2016) (“the Treichler rule should not be interpreted to

3

require that an ALJ be given a second chance to do what the ALJ should

4

have done correctly in the first place”); see generally Greenhow v.

5

Secretary, 863 F.2d 633, 636 (9th Cir. 1988) (the existence of an

6

intra-circuit conflict leaves the district court to “make the

7

unsatisfactory choice between two opposing lines of authority, neither

8

of which has an unimpaired claim to being the law of the circuit”),

9

overruled in part, United States v. Hardesty, 977 F.2d 1347 (9th Cir.

10

1992) (en banc), cert. denied, 507 U.S. 978 (1993) (overruling

11

Greenhow to the extent Greenhow held that a Ninth Circuit panel may

12

choose between opposing lines of Ninth Circuit authority without

13

calling for en banc review); see also Agnew-Corrie v. Astrue, 875 F.

14

Supp. 2d 967, 973 (D. Ariz. 2012), aff’d, 579 Fed. App’x 2014 (9th

15

Cir. 2014) (“The Ninth Circuit is split on whether remanding for

16

further vocational expert opinion, using the ‘credited’ testimony is

17

appropriate.”); but see Mangat v. Colvin, 2017 WL 1223881, at *9-10

18

(S.D. Cal. Feb. 3, 2017) (holding that Dominguez and Treichler

19

preclude the crediting of improperly rejected evidence when further

20

administrative proceedings are required).

21
22

To the extent Defendant may contend that the Ninth Circuit’s

23

credit-as-true rule (in any of its iterations) usurps the proper fact-

24

finding role of the Administration, Defendant must direct such

25

argument to the Ninth Circuit or to the United States Supreme Court,

26

rather than to this Court.

27

n.25 (challenge to the validity of the Ninth Circuit’s credit-as-true

28

rule foreclosed by Ninth Circuit precedents, including Moisa v.

See Garrison v. Colvin, 759 F.3d at 1022

23

1

Barnhart, 367 F.3d 882, 886-87 (9th Cir. 2004)); Agnew-Corrie v.

2

Astrue, 875 F. Supp. 2d at 972 (“this District Court is bound by Ninth

3

Circuit precedent, all of which seems to recognize some form of

4

credit-as-true, and cannot simply declare it all overruled”).

5
6

CONCLUSION

7
8

For all of the foregoing reasons,9 Plaintiff’s and Defendant’s

9

motions for summary judgment are denied and this matter is remanded

10

for further administrative action consistent with this Opinion.

11
12

LET JUDGMENT BE ENTERED ACCORDINGLY.

13
14

DATED: May 31, 2017.

15
16
/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
9

27
28

The Court has not reached any other issue raised by
Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be an
appropriate remedy at this time.
24