Jeffrey Scott Lind v. Carolyn W Colvin

Filing 14

ORDER Reversing Decision of Commissioner and Remanding For Further Administrative Proceedings by Magistrate Judge Robert N. Block. (lwag)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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JEFFREY SCOTT LIND,

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Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting )
Commissioner of Social Security, )
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Defendant.
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_____________________________

Case No. EDCV 14-1474 RNB
ORDER REVERSING DECISION OF
COMMISSIONER AND REMANDING
FOR FURTHER ADMINISTRATIVE
PROCEEDINGS

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The Court now rules as follows with respect to the two disputed issues listed

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21 A.
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Reversal is not warranted based on the ALJ’s consideration of the treating

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

physicians’ opinions (Disputed Issue One).

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The decision in this case is being made on the basis of the pleadings, the
26 administrative 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
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determined which party is entitled to judgment under the standards set forth in 42
28 U.S.C. § 405(g).
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1 of plaintiff’s treating physicians: Dr. Prete, Dr. Tan, and Dr. Gilbert. (See Jt Stip at
2 4-13.)
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The law is well established in this Circuit that a treating physician’s opinions

4 are entitled to special weight because a treating physician is employed to cure and has
5 a greater opportunity to know and observe the patient as an individual. See
6 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The treating physician’s
7 opinion is not, however, necessarily conclusive as to either a physical condition or the
8 ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
9 1989). The weight given a treating physician’s opinion depends on whether it is
10 supported by sufficient medical data and is consistent with other evidence in the
11 record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician’s
12 opinion is uncontroverted by another doctor, it may be rejected only for “clear and
13 convincing” reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter
14 v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where, as here, a treating
15 physician’s opinion is controverted, it may be rejected only if the ALJ makes findings
16 setting forth specific and legitimate reasons that are based on the substantial evidence
17 of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“A
18 treating physician’s opinion on disability, even if controverted, can be rejected only
19 with specific and legitimate reasons supported by substantial evidence in the
20 record.”); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th
21 Cir. 1987).2
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Although the record does not clearly show the extent of Dr. Gilbert’s
26 treating relationship with plaintiff, the ALJ considered Dr. Gilbert to be a treating
physician. (See AR 30.) The Court notes that, even if Dr. Gilbert was only an
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examining physician, the legal standard applicable to his opinion would have been
28 the same. See Lester, 81 F.3d at 830-31.
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Dr. Prete and Dr. Tan

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The ALJ considered the opinions of Dr. Prete and Dr. Tan collectively. (See

3 AR 30.)
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Dr. Prete, a rheumatologist, issued an opinion about plaintiff’s limitations from

5 rheumatoid arthritis. (See AR 893-99.) Dr. Tan, an internist, issued an opinion about
6 plaintiff’s limitations from rheumatoid arthritis and other impairments. (See AR 9007 07.) Both physicians opined that plaintiff would be limited to (1) lifting 5-10 pounds
8 frequently and 10-20 pounds occasionally; and (2) standing or walking for one hour
9 in an eight-hour workday. (See AR 896, 897, 902, 903.) Moreover, both physicians
10 opined that plaintiff’s symptoms and limitations began in 2008. (See AR 899, 906.)
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The ALJ accorded “little weight” to Dr. Prete’s and Dr. Tan’s opinions because

12 plaintiff “worked until February 2010 and described work activities (including lifting,
13 standing, and walking) in excess of the treating physicians’ restrictions.” (See AR
14 at 30; see also AR 51-52, 71, 155, 156.) The Court finds that this was a legally
15 sufficient reason on which the ALJ could properly rely to accord little weight to Dr.
16 Prete’s and Dr. Tan’s opinions. See Valentine v. Commissioner Social Sec. Admin.,
17 574 F.3d 685, 692-93 (9th Cir. 2009) (ALJ properly rejected treating physician’s
18 opinion that claimant was unemployable during time he was continuing to work full19 time); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ
20 properly discounted physician’s opinion about limitations for period during which
21 claimant completed high school, obtained college degree, finished nurse training
22 program, and participated in military training).
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Moreover, since this was a legally sufficient reason on which the ALJ could

24 properly rely to accord little weight to Dr. Prete’s and Dr. Tan’s opinions, it is
25 unnecessary for the Court to address whether the ALJ’s other stated reason for
26 according little weight to Dr. Prete’s and Dr. Tan’s opinions was legally sufficient.
27 See Howell v. Commissioner Social Sec. Admin., 349 Fed. Appx. 181, 184 (9th Cir.
28 2009) (now citable for its persuasive value per Ninth Circuit Rule 36-3) (upholding
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1 ALJ’s rejection of treating physician’s opinion where ALJ “had enough evidence” to
2 do so, without regard to whether all of the ALJ’s reasons for doing so were legally
3 sufficient); Donathan v. Astrue, 264 Fed. Appx. 556, 559 (9th Cir. 2008) (where ALJ
4 provided proper, independent reasons to reject treating physicians’ opinions, any error
5 the ALJ may have committed as to other reasons was harmless or inconsequential).
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Dr. Gilbert

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Dr. Gilbert, a rheumatologist, issued an opinion about plaintiff’s limitations

9 from erosive polyarthritis. (See AR 908-14.) Dr. Gilbert opined that plaintiff would
10 be limited to (1) lifting 0-10 pounds occasionally, and (2) standing or walking for one
11 hour in an eight-hour workday. (See AR 911, 912.) Dr. Gilbert also opined that
12 plaintiff’s symptoms and limitations began in September 2006. (See AR 914.)
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The ALJ accorded “little weight” to Dr. Gilbert’s opinion because he had

14 assessed limitations in lifting, standing, and walking that were not consistent with
15 plaintiff’s actual work activities in 2007 and 2008. (See AR 31; see also AR 51, 7116 72, 155, 156.) As in the case of Dr. Prete and Dr. Tan, the Court finds that this was
17 a legally sufficient reason on which the ALJ could properly rely to accord little
18 weight to Dr. Gilbert’s opinion. It therefore is unnecessary for the Court to address
19 whether the ALJ’s other stated reasons for according little weight to Dr. Gilbert’s
20 opinion were legally sufficient.
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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

25 with respect to plaintiff’s subjective symptom testimony. (See Jt Stip at 13-19.)
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An ALJ’s assessment of pain severity and claimant credibility is entitled to

27 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v.
28 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the “Cotton test,” where the
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1 claimant has produced objective medical evidence of an impairment which could
2 reasonably be expected to produce some degree of pain and/or other symptoms, and
3 the record is devoid of any affirmative evidence of malingering, the ALJ may reject
4 the claimant’s testimony regarding the severity of the claimant’s pain and/or other
5 symptoms only if the ALJ makes specific findings stating clear and convincing
6 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see
7 also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12
8 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991)
9 (en banc).
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Plaintiff alleged that he was no longer able to work because of rheumatoid

11 arthritis, osteoarthritis, asthma, a heart stent, and degenerative disc disease of the
12 lumbar spine. (See AR 65, 88.) Plaintiff testified that due to his impairments, he was
13 limited to standing for 4-5 minutes at a time, sitting for half an hour at a time, and
14 lifting ten pounds. (See AR 53.) He also testified that on a scale of zero to ten, his
15 pain was five or six. (See AR 58.)
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The ALJ determined that although plaintiff’s medically determinable

17 impairments could reasonably be expected to cause the alleged symptoms, plaintiff’s
18 statements concerning the intensity, persistence, and limiting effects of these
19 symptoms were not credible to the extent they were inconsistent with the ALJ’s RFC
20 assessment. (See AR 33.) In support of this adverse credibility determination, the
21 ALJ proffered four reasons. (See AR 32.) The Court finds that none of the four
22 reasons was a legally sufficient reason on which the ALJ could properly rely in
23 support of his adverse credibility determination.
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First, the ALJ found that plaintiff’s “allegations of generally disabling

25 symptoms and limitations are not corroborated by the evidence.” The Court finds that
26 this vague reason was not legally sufficient because the ALJ did not specify what
27 medical evidence supported his rationale or explain how that evidence undermined
28 plaintiff’s subjective symptom testimony. See Treichler v. Commissioner of Social
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1 Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (“An ALJ’s vague allegation that
2 a claimant’s testimony is not consistent with the objective medical evidence, without
3 any specific findings in support of that conclusion, is insufficient for our review.”)
4 (citation and internal quotation marks omitted); Parra v. Astrue, 481 F.3d 742, 750
5 (9th Cir. 2007) (“The ALJ must provide ‘clear and convincing’ reasons to reject a
6 claimant’s subjective testimony, by specifically identifying ‘what testimony is not
7 credible and what evidence undermines the claimant’s complaints.’”) (quoting Lester,
8 81 F.3d at 834); Dodrill, 12 F.3d at 918 (“It’s not sufficient for the ALJ to make only
9 general findings; he must state which pain testimony is not credible and what
10 evidence suggests the complaints are not credible.”).3
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Second, the ALJ found that the record indicated plaintiff had received

12 unemployment benefits. (See AR 32; see also AR 430, 705.) The ALJ explained that
13 an application for unemployment benefits, “while not precluding the receipt of Social
14 Security disability benefits, requires an individual to certify that he was willing and
15 able to engage in work activity” and that “[t]his is not consistent with a claim of
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Although the Commissioner cites evidentiary findings made by the ALJ
in other portions of his opinion that purportedly support this part of the adverse
credibility determination (see Jt Stip at 16-17), the ALJ did not specifically link these
findings to his adverse credibility determination. Accordingly, the Court cannot
consider them as part of that determination. See Burrell v. Colvin, 775 F.3d 1133,
1139 (9th Cir. 2014) (rejecting link between ALJ’s findings about medical record and
adverse credibility determination elsewhere in the opinion where the ALJ “never
stated that he rested his adverse credibility determination on those findings” and “did
not make a specific finding linking a lack of medical records to Claimant’s
testimony”); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (rejecting
link between ALJ’s finding of possibly adverse evidence and adverse credibility
determination in other portion of decision where ALJ did not “specifically link” the
evidence to his conclusion that claimant’s excess pain testimony lacked credibility);
see also Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009) (declining to attribute
ALJ’s discussion of physicians’ opinions to adverse credibility determination in other
portion of ALJ’s decision).
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1 disability.” (See AR 32.) The Court is mindful that a claimant’s receipt of
2 unemployment benefits could be a legally sufficient reason to find a claimant not
3 credible if it evidenced that the claimant considered himself capable of work and held
4 himself out as available for work. See Copeland v. Bowen, 861 F.2d 536, 542 (9th
5 Cir. 1988). However, as the ALJ noted here, a claimant’s receipt of unemployment
6 benefits does not preclude receipt of Social Security benefits: for example, a person
7 capable of only part-time work may receive benefits under both programs. Compare
8 Cal. Unemp. Ins. Code § 1253.8 (an individual shall not be disqualified from
9 unemployment benefits solely on the basis that he is only available for part-time
10 work); with 20 C.F.R. § 404.1545(b) (claimant under the Social Security Act is
11 assessed for his capacity to work “on a regular and continuing basis”); and Social
12 Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2 (defining “a regular and
13 continuing basis” as “8 hours a day, for 5 days a week, or an equivalent work
14 schedule”). Accordingly, a claimant’s receipt of unemployment benefits does not
15 necessarily constitute a legally sufficient reason for an adverse credibility
16 determination when the record “does not establish whether [the claimant] held
17 himself out as available for full-time or part-time work.” See Carmickle v. Comm’r,
18 Social Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008); see also Giuliano v.
19 Colvin, 577 Fed. Appx. 859, 865 (10th Cir. 2014) (noting that claimant who was
20 receiving unemployment benefits was also looking for part-time work, which may not
21 have been inconsistent with allegations of total disability under the Social Security
22 Act); Mulanax v. Commissioner of Social Sec., 293 Fed. Appx. 522, 523 (9th Cir.
23 2008) (receipt of unemployment benefits that were payable to applicants available for
24 temporary or part-time jobs was not necessarily inconsistent with a claim of disability
25 under the Social Security Act).
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Here, although the record does contain evidence that plaintiff was “on

27 unemployment” (see AR 430, 705), the record does not provide any context for that
28 evidence. The record does not contain plaintiff’s unemployment benefits application,
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1 does not specify whether plaintiff claimed he was available for full-time or part-time
2 work, and does not otherwise specify the basis for any application for unemployment
3 benefits. Accordingly, the Court finds that the evidence in the record that plaintiff
4 was “on unemployment” did not give rise to a legally sufficient reason on which the
5 ALJ could properly rely in support of his adverse credibility determination. See, e.g.,
6 Plummer v. Colvin, 2014 WL 7150682, at *16 (D. Az. Dec. 16, 2014) (claimant’s
7 receipt of unemployment benefits was not clear and convincing reason for ALJ’s
8 adverse credibility determination where the record did not contain the unemployment
9 benefits application nor establish the manner in which claimant held herself out as
10 available for work in completing any such application); Wood v. Colvin, 2014 WL
11 4407719, at *9 (E.D. Wash. Sept. 8, 2014) (same where record contained no
12 certification by claimant that he was physically and mentally able to work full-time);
13 Miller v. Colvin, 2014 WL 1873276, at *4 (C.D. Cal. May 9, 2014) (same where
14 there was no indication whether claimant based her claim for unemployment benefits
15 on full-time or part-time work); Ellis v. Astrue, 2011 WL 5025839, at *5-*6 (D. Or.
16 Oct. 20, 2011) (same where record did not contain claimant’s unemployment benefits
17 application).
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Third, the ALJ found that the record contained “some evidence of non-

19 compliance with medication.” (See AR 32; see also AR 645, 647.) In general, an
20 ALJ may base his adverse credibility determination on a claimant’s unexplained or
21 inadequately explained failure to seek treatment or follow a prescribed course of
22 treatment. See Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989). Here, the
23 evidence cited by the ALJ pertained to a single incident in November 2011, when
24 plaintiff was traveling in Texas and sought medical attention for shortness of breath,
25 after having forgotten to bring his water pills on the trip and not having taken a dose
26 in ten days. (See AR 645, 647.) Thus, while the record did contain a quantum of
27 evidence showing that plaintiff did not take one of his (many) medications for ten
28 days, the Court finds that this reason did not constitute a legally sufficient reason on
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1 which the ALJ could properly rely in support of his adverse credibility determination
2 because plaintiff’s non-compliance was an accidental, brief, and isolated incident,
3 which was preceded and followed by years of plaintiff’s compliance with his
4 treatment. See Burrell, 775 F.3d at 1140 (noting that “one weak reason” is
5 insufficient to meet the “specific, clear, and convincing” standard for an ALJ’s
6 adverse credibility determination); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
7 Cir. 2007) (noting that “we must consider the entire record on the whole, weighing
8 both the evidence that supports and the evidence that detracts from the
9 Commissioner’s conclusion, and may not affirm simply by isolating a specific
10 quantum of supporting evidence”); cf. Molina v. Astrue, 674 F.3d 1104, 1114 (9th
11 Cir. 2012) (upholding ALJ’s adverse credibility determination where “the record was
12 filled with evidence” that the claimant had improperly failed to obtain treatment).
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Fourth, the ALJ found that plaintiff’s hearing testimony about how far he could

14 walk was inconsistent with the record: in response to the ALJ’s question about
15 “restrictions in walking,” plaintiff testified that he walked his dog every day for one
16 or two blocks; but the record reflected that he stated he could walk one half to one
17 mile. (See AR 32; see also AR 53, 160, 430, 443, 705, 877, 884.) In general, an ALJ
18 may base his adverse credibility determination on inconsistencies in a claimant’s
19 statements about his daily activities. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
20 2007). Here, however, the purported inconsistency was not clear from the record;
21 rather, both the ALJ’s question and plaintiff’s response were ambiguous as to whether
22 plaintiff was being asked or testifying about his maximum walking capacity.
23 Moreover, the record is not clearly inconsistent with plaintiff’s hearing testimony.
24 For example, the record reflects that plaintiff’s walking distance waxed and waned,
25 so that plaintiff’s hearing testimony that he walked for one or two blocks was
26 consistent with evidence in the record that reflected plaintiff walked for only one27 fourth or one-half of a mile. (See AR 430, 741, 800.) The record also reflects that
28 when plaintiff walked for longer distances, he did so with serious difficulties and had
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1 to rest for 20 minutes, had trouble breathing, had to use a knee brace and cane, and
2 walked with a limp. (See AR 160, 162.) The Court therefore cannot find that
3 plaintiff’s ability to walk, in this fuller context, was a legally sufficient basis for the
4 ALJ’s finding that plaintiff had made inconsistent statements about his daily
5 activities. See Reddick, 157 F.3d at 722-23 and n.1 (ALJ’s adverse credibility
6 determination premised on a claimant’s daily activities must consider the full context
7 of the activities, such as whether they were sporadic or punctuated with rest).
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Accordingly, the Court finds that reversal is warranted based on the ALJ’s

9 failure to make a proper adverse credibility determination.
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CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further

13 proceedings or simply to award benefits is within the discretion of the Court. See,
14 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister, 888 F.2d at
15 603; Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted
16 where additional administrative proceedings could remedy defects in the decision.
17 See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at
18 635. Remand for the payment of benefits is appropriate where no useful purpose
19 would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d
20 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v.
21 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily
22 delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).
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Where, as here, a claimant contends that he is entitled to an award of benefits

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

12 assertion that he is entitled to an award of benefits (see Jt Stip at 19), he has
13 completely failed to proffer any argument for that remedy in light of the foregoing
14 case authorities and has made no attempt to show that this case raises the rare
15 circumstances that would warrant remand for an award of benefits. Plaintiff’s failure
16 to adequately brief the issue of the appropriate remedy militates in favor of the Court
17 exercising its discretion to remand for further proceedings. See Vasquez, 572 F.3d
18 at 597 (remanding for further proceedings where neither party presented any
19 argument about the effect of the ALJ’s errors, meaning that there were no facts
20 presented that clearly indicated the proper outcome).
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Two other considerations also militate in favor of the Court exercising its

22 discretion to remand for further proceedings. First, the record contains no vocational
23 expert testimony reflecting that a person could not work with the limitations
24 described by plaintiff’s subjective symptom testimony. See Harman v. Apfel, 211
25 F.3d at 1172, 1180 (9th Cir. 2000) (remanding for further proceedings in part where
26 there was no testimony from the vocational expert that the limitations established by
27 the improperly discredited evidence would render claimant unable to engage in any
28 work); see also Strauss v. Commissioner of the Social Sec. Admin., 635 F.3d 1135,
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1 1138 (9th Cir. 2011) (same where the record does not demonstrate the claimant is
2 disabled within the meaning of the Social Security Act).
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Second, the evidence in the record regarding a possible disability onset date is

4 conflicting and ambiguous. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010)
5 (remanding for further proceedings where the case has an “outstanding issue” of
6 “when Luna’s disability began”); Regennitter v. Commissioner of Social Sec.
7 Admin., 166 F.3d 1294, 1300 (9th Cir. 1999) (same where disability onset date
8 remained an unresolved issue); House v. Colvin, 583 Fed. Appx. 628, 629-30 (9th
9 Cir. 2014) (same after noting that “Social Security regulations make clear that
10 determination of a disability onset date is a complex and fact-specific inquiry”).
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Based on its review and consideration of the entire record, the Court therefore

12 has concluded on balance that a remand for further administrative proceedings
13 pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. Accordingly, IT
14 IS HEREBY ORDERED that Judgment be entered reversing the decision of the
15 Commissioner of Social Security and remanding this matter for further administrative
16 proceedings.4
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18 DATED: April 23, 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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