William H. McKeithen v. Carolyn W. Colvin

Filing 20

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. The Agency must reevaluate Plaintiff's disability onset date in light of the findings made in this Order. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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WILLIAM H. McKEITHEN,

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No. EDCV 16-2224 SS

Plaintiff,

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v.

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NANCY A. BERRYHILL1,
Acting Commissioner of
Social Security,

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MEMORANDUM DECISION AND ORDER

Defendant.

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I.

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INTRODUCTION

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Plaintiff William H. McKeithen (“Plaintiff”) seeks review of

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the final decision of the Commissioner of the Social Security

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Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for former Acting Commissioner Carolyn
W. Colvin in this case. See Fed. R. Civ. P. 25(d).
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Administration (hereinafter the “Commissioner” of the “Agency”)

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concluding that Plaintiff was disabled as of September 3, 2014,

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but was not disabled prior to that date. (Administrative Record
(“AR”) 34).

The parties consented, pursuant to 28 U.S.C. § 636(c),

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to the jurisdiction of the undersigned United States Magistrate
Judge.

For

the

reasons

stated

below,

the

decision

of

the

Commissioner is REVERSED and REMANDED for further proceedings.

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II.

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PROCEDURAL HISTORY

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In

2009,

disability

Plaintiff

and

filed

disability

an

application

insurance

benefits

for

a

period

(“DIB”),

and

of
an

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application for supplemental security income (“SSI”), alleging a

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disability onset date of September 1, 2008.

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initially denied both applications on January 27, 2010, and upon

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reconsideration on May 27, 2010.

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(AR 107).

(AR 107).

The Agency

Plaintiff requested a

hearing before an Administrative Law Judge (“ALJ”), which occurred
on July 21, 2011.

(AR 41-54).

After the hearing, the ALJ

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determined that Plaintiff was not “disabled” under the Social
Security Act and denied benefits.

(AR 114).

Plaintiff sought

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review by the Appeals Council, which later remanded the action back

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to the ALJ.

(AR 118-22).

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2

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On remand, following a second hearing (AR 55-76), the ALJ again
denied benefits. (AR 133).

On appeal, the Appeals Council remanded

the matter to the ALJ for a second time.

(AR 139-44).

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An ALJ held a third hearing.

(AR 77-99).

Following this

hearing, the ALJ issued a partially favorable ruling.

(AR 22-40).

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The ALJ concluded that Plaintiff was disabled as of September 3,

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2014, but not from September 1, 2008 as Plaintiff contends.

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34).

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decision.

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Plaintiff

requested

(AR 18).

August 22, 2016.

of

the

partially

favorable

The Appeals Council denied the request on

(AR 1-7).

Accordingly, Plaintiff filed this

action to challenge the ALJ’s findings regarding his disability
onset date.

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review

(AR

III.
STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits.

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the Commissioner’s denial of benefits when the ALJ’s findings are

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based on legal error or are not supported by substantial evidence

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in the record as a whole.”

“The court may set aside

Aukland v. Massanari, 257 F.3d 1033,

1035 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1097

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(9th Cir. 1999)); accord Smolen v. Chater, 80 F.3d 1273, 1279 (9th
Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir.
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1989).

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benefits

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However, the court must “affirm the denial of disability
if

Commissioner

it

is

applied

supported
the

by

substantial

correct

legal

evidence

standards.”

and
Marci

the
v.

Chater, 93 F.3d 540, 543 (9th Cir. 1996).

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“Substantial evidence is more than a scintilla, but less than

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a preponderance.”

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

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1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.

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1997)).

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accept as adequate to support a conclusion.”

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It is “relevant evidence which a reasonable person might
Id.

To determine

whether substantial evidence supports a finding, the court must
“consider the record as a whole, weighing both evidence that
supports and evidence that detracts from the [Commissioner’s]

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conclusion.”

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2 F.3d 953, 956 (9th Cir. 1993).

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support either affirming or reversing that conclusion, the court

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may not substitute its judgment for that of the Commissioner.

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Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan,
If the evidence could reasonably

Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health &
Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

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\\
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IV.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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To qualify for disability benefits, a claimant must demonstrate

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a

medically

determinable

physical

or

mental

impairment

that

prevents him from doing a substantial gainful activity, and that

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is expected to result in death or last for a continuous period of

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at least twelve months.

Reddick, 157 F.3d at 721 (citing 42 U.S.C.

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§ 423 (d) (1) (A)).

The impairment must render the claimant

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incapable of performing any other substantial gainful employment

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in the national economy.

Tackett, 180 F.3d at 1098 (citing 42

U.S.C. § 423 (d) (2) (A)).
To decide if a claimant is entitled to benefits, an ALJ conducts
a five-step inquiry. 20 C.F.R. § § 404.1520, 416.920.

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(1) Is the claimant presently engaged in a substantial gainful

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activity?

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no, proceed to step two.

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If yes, the claimant is found not disabled.

(2) Is the claimant’s impairment severe?
is found not disabled.

If

If no, the claimant

If yes, proceed to step three.

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(3) Does the claimant’s impairment meet or equal one of the
specific impairments described in 20 C.F.R. Part 404,

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Subpart P, Appendix 1?

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disabled.

If yes, the claimant is found

If not, proceed to step four.

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(4) Is the claimant capable of performing his past work?

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yes, the claimant is found not disabled.

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If

If no, proceed

to step five.

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(5) Is the claimant able to do any other work?

If not, the

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claimant is found disabled.

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not disabled.

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If yes, the claimant is found

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

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262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R.
§§ 404.1520 (a) – (g) (1) & 416.920 (a) – (g) (1).

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The claimant has the burden of proof at steps one through four

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and

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Bustamante, 262 F.3d at 953-54.

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the

Commissioner

has

the

burden

of

proof

at

step

five.

“Additionally, the ALJ has an

affirmative duty to assist the claimant in developing the record
at every step of the inquiry.”

Id.

at 954.

If, at step four,

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the claimant meets his burden of establishing an inability to
perform past work, the Commissioner must show that the claimant

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can perform some other work that exists in “significant numbers”

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in

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residual functional capacity (“RFC”), age, education, and work

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the

national

experience.
721;

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economy,

taking

into

account

the

claimant’s

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at

C.F.R.

§§

404.1520

(g)

(1),

416.920

(g)

(1).

The

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Commissioner may do so by the testimony of a vocational expert
(“VE”)

or

by

reference

to

the
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Medical-Vocational

Guidelines

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appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly

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known as “the Grids”).

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(9th Cir. 2001).

Osenbrock v. Apfel, 240 F.3d 1157, 1162

When a claimant has both exertional and non-

exertional limitations, the Grids are inapplicable and thus the

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ALJ must take VE testimony.

Moore v. Apfel, 216 F.3d 864, 869 (9th

Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.
1988)).

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Plaintiff contends that the ALJ failed to give proper weight

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to the treating physicians’ opinions in determining Plaintiff’s

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disability onset date.

Plaintiff also argues that the ALJ failed

to provide clear and convincing reasons to reject Plaintiff’s
subjective

testimony.

The

Court

agrees

with

Plaintiff’s

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contentions and REMANDS this action to the Agency for further

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proceedings.

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Plaintiff contends that the ALJ erred by failing to give proper
weight to the physical functional assessments of treating doctors
Harold Luke, M.D., and Wilson Gomer, M.D., and the examining doctor

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Robert Steinberg, M.D.

(Plaintiff’s Memorandum In Support of the

Complaint (“Pl. MSO”) at 11-20).

Plaintiff further argues that

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had

the

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physicians’ opinions, Plaintiff’s disability onset date would have

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the

ALJ

properly

credited

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treating

and

examining

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been September 1, 2008, not September 3, 2014.

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The Court agrees that remand is required, as discussed below.

See Pl. MSO at 20.

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V.

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DISCUSSION

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A.

The ALJ Failed To Provide Specific And Legitimate Reasons To

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Reject The Treating Physicians’ Opinions

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As a matter of law, the greatest weight is accorded to the

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claimant's treating physician.

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1160-61 (9th Cir. 2014).

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entitled to special weight because the treating physician is hired

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Ghanim v. Golvin, 763 F.3d 1154,

The opinions of treating physicians are

to cure and has a better opportunity to know and observe the
claimant as an individual.

Id.

Further, as a general rule, when

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a treating or examining physician’s opinion is not contradicted by
another

physician,

it

may

be

rejected

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convincing” reasons.

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(9th Cir. 2017).

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detailed and thorough summary of the facts.

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only

for

“clear

and

See Trevizo v. Berryhill, 871 F.3d 664, 675

675.

The ALJ can meet this burden by setting forth a
Trevizo, 871 F.3d at

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When

a

treating

or

an

examining

physician’s

opinion

is

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contradicted by another doctor, it may only be rejected if the ALJ
provides “specific and legitimate” reasons supported by substantial
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evidence in the record.

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(9th Cir. 2014); see also Orn v. Astrue, 495 F.3d 625, 633 (9th

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See Garrison v. Colvin, 759 F.3d 995, 1012

Cir. 2007.

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Here,

Consultative

Examiner

Azizollah

Karamalou,

M.D.,

contradicted the assessments of treating doctors Luke and Gomer,

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and examining consultative physician Robert Steinberg. (Compare AR

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619 with AR 522-28, 570-76, and 549-51). Dr. Luke’s questionnaire

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indicates his first date of treatment for Plaintiff’s pulmonary

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condition was June 2, 2004. (AR 522). Dr. Steinberg viewed records

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dating back to September 24, 2008 and concluded that “the earliest
date that the patient’s symptoms and limitations apply is 2009.”
(AR 542-551).

Because of the conflicting opinions, the ALJ must

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provide

“specific

and

legitimate”

reasons

for

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rejecting

the

opinions of Doctors Luke, Gomer, and Steinberg.

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1. Treating Physician Harold Luke, M.D.

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Dr. Harold Luke, M.D., practices pulmonary medicine in Redlands

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and Grand Terrace, California.

(See e.g., AR 516, 521, 528).

Dr.

Luke is affiliated with Redlands Community Hospital and the Quality

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Medical Corporation’s Happy Care Clinic (“Quality Clinic”).

(See

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e.g., AR 514, 528).

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Dr. Luke noted that Plaintiff has received treatment from Quality

In a summary report drafted on June 30, 2011,

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Clinic since 2004. (AR 515). Further, in 2009, Plaintiff presented

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to Dr. Luke at Quality Clinic after suffering from an episode of

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severe shortness and breath and chest pain.

(AR 515).

Chest x-

rays demonstrated Plaintiff maintained only forty-six percent of

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his lung capacity. (AR 515)

Further, Dr. Luke assessed that

Plaintiff suffered from emphysema and diabetes.

(AR 515).

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Dr. Luke assessed plaintiff on several occasions between 2009

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and 2011.

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diagnosed plaintiff with COPD, chronic bronchitis, obesity, bipolar

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disorder,

(See AR 497-528).

hypertension,

and

During a visit in 2010, Dr. Luke

diabetes.

(AR

505).

Dr.

Luke

recommended that Plaintiff refrain from doing physical light work.
(AR 505).

He further recommended that Plaintiff engage in “walking

exercise daily after meals for 20 minutes one way.” (AR 505).

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On September 25 2011, Dr. Luke completed a Pulmonary Impairment
Questionnaire.

(AR 522-28).

Dr. Luke determined that, in an

eight-hour workday, Plaintiff could only sit, stand and walk for
up to one hour each day.

(AR 525).

Further, Plaintiff was limited

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to lifting and carrying up to 10 pounds frequently, and up to 20
pounds

occasionally.

(AR

525).

Dr.

Luke

also

found

that

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Plaintiff’s reported level of pain, a five on a one-to-ten scale,

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would “frequently” interfere with his concentration and attention.

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(AR 527).

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The ALJ incorporated the previous ALJ’s decision and rejected
Dr. Luke’s medical assessment of Plaintiff.

(AR 30).

The previous

ALJ rejected Dr. Luke’s assessment for several reasons.
31).

(AR 130-

The ALJ found that Dr. Luke made a contradictory assessment

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of Plaintiff’s physical capabilities.

(AR 130).

The ALJ noted

that Dr. Luke determined in 2011 that Plaintiff could not stand or

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walk for more than one hour in an eight-hour workday, despite his

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2010 recommendation that Plaintiff engage in recreational walking

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for exercise up to three times daily and for twenty minutes at a

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time.

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(AR 130).

In addition, the ALJ concluded that Dr. Luke

rendered his 2011 assessment only as “a series of checked boxes
that

were

marked

support.”

without

(AR 130-31).

any

specific

clinical

or

objective

Finally, the ALJ found Dr. Luke never

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administered any type of pulmonary function study when assessing

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Plaintiff.

(AR 131).

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The Court finds that the ALJ’s reasons for rejecting Dr. Luke’s
assessments are not specific and legitimate.

The ALJ’s initial

determination that Dr. Luke made a contradictory assessment of

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Plaintiff’s
physical

physical

functional

capabilities
assessment

is

of

unfounded.

Plaintiff

in

Dr.
2011

Luke’s
was

an

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assessment of what Plaintiff could do at that particular time.

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505).

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“recreational” walking for exercise was expressly worded as a goal

His

recommendation

in

2010

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that

Plaintiff

engage

(AR
in

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for Plaintiff.

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Plaintiff endeavor to walk “daily after meals for 20 minutes on

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(AR 505).

For example, he recommended that

way . . . if possible to condition the heart.”

(AR 505).

words “if possible” suggest that this was a goal.

The

Accordingly,

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the ALJ’s reason for rejecting Dr. Luke’s opinion because the
doctor’s findings were “contradictory” is not supported by the
record.

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Furthermore, the ALJ’s rejection of Dr. Luke’s

assessment

because of a “series of checked boxes that were marked without any
specific clinical or objective support” is not supported by the
record.

(AR 130-31).

Contrary to the ALJ’s finding, Dr. Luke

supplied handwritten responses and comments to nine of the twenty-

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one questions on the assessment form.

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Luke submitted chart notes reflecting his own findings in support

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of

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Plaintiff’s diminished lung capacity, and Dr. Luke detailed other

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his

responses,

he

referenced

medical findings he made.

(AR 522-28).

a

chest

(AR 515-16).

x-ray

Moreover, Dr.

demonstrating

See Garrison, 759 F.3d at

1014 n.17 (emphasizing that more than just the face of a “check-

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box”

form

should

be

considered

when

considering

its

weight,

including notes and charts attached in support of a questionnaire’s

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responses.).

Thus, the record does not support the ALJ’s rejection

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of Dr. Luke’s opinion on the basis that the assessment was a “series

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of checked boxes that were marked without any specific clinical or

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objective support.”

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4

In addition, the ALJ erred by stating that Dr. Luke never

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administered any type of pulmonary function study.

Dr. Luke

administered and referenced a chest x-ray showing Plaintiff’s

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significantly reduced lung capacity.

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that the ALJ failed to provide specific and legitimate reasons to

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(AR 515).

Thus, Court finds

reject Dr. Luke’s opinions.

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2. Treating Physician Wilson Gomer

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14
Primary

15

care

physician,

Dr.

Wilson

Gomer,

M.D.,

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Plaintiff from July 2012 to October 2012.

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26, 2012, Dr. Gomer completed a Multiple Impairment Questionnaire.

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(AR 570-77).

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apnea, depression, hypertension, chest pain, diabetes, emphysema,

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(AR 570).

treated

He concluded that Plaintiff suffers from COPD, sleep

hyperlipidemia, shortness of breath, and heart disease.
71).

On October

(AR 570-

Based on his treatment, Dr. Gomer opined that that Plaintiff

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could not sit, stand or walk for more than one hour in an eighthour workday.

(AR 572).

Further, he opined that Plaintiff could

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occasionally lift and carry up to 10 pounds.

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based on Plaintiff’s reported pain level, Dr. Gomer concluded that

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(AR 573).

Moreover,

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Plaintiff’s experience of pain was enough to “constantly” interfere

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with Plaintiff’s attention and concentration.

(AR 575).

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4

The ALJ rejected Dr. Gomer’s physical assessment based on four

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7

reasons.

Initially, the ALJ characterized Dr. Gomer’s assessment

as “vague and overly broad objective findings.”

(AR 31).

The ALJ

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pointed to the lack of a pulmonary function study, chest x-rays,

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MRI studies, or other diagnostic tools in the treatment record.

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(AR 31).

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consists of “a series of checked boxes on a preprinted form

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Next, the ALJ concluded that Dr. Gomer’s assessment

solicited by the claimant’s representative.”

(AR 31).

The ALJ

also found Dr. Gomer’s assessment contradicted Dr. Luke’s.
31).

(AR

The ALJ noted that Dr. Gomer concluded that Plaintiff could

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not sit, stand, or walk more than one hour in an eight-hour workday,

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but Dr. Luke also recommended that Plaintiff walk for exercise up

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to three times a day and for twenty minutes at a time.

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Finally,

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the

ALJ

rejected

Dr.

Gomer’s

assessment

(AR 31).

because

he

responded “No” to the question, “Have you substituted medications
in

an

attempt

to

produce

less

symptomology

or

relieve

side

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effects?”

(AR 31-32).

The ALJ found that numerous medications

could be used to control Plaintiff’s condition.

(AR 31-32).

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26
27

The Court finds that the ALJ’s reasons for rejecting the
treating

physician

Gomer’s

assessments

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14

are

not

specific

and

1

legitimate.

2

characterized as “vague findings.”

3
4

clear.

First,

Dr.

Gomer’s

assessments

are

improperly

The findings are specific and

Moreover, the ALJ did not explain what further studies

should have been done.

Thus, “vague findings” was not a legitimate

5
6

reason to reject Dr. Gomer’s report.

7
Second, Dr. Gomer’s responses do not display a “series of

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9

mindlessly checked boxes.”

Dr. Gomer submitted pages of charts

10

and notes in support of his assessment. (AR 529-36, 562-68, 597-

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615, 664-98).

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15
16

Moreover, he supplied handwritten responses to

fourteen of the twenty-nine questions on the first questionnaire
form (AR 570-76), and he submitted handwritten responses to ten
out of fourteen responses on the most recent questionnaire.
646-50).

(AR

Thus, Dr. Gomer’s responses were not just checked boxes.

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Third, Dr. Gomer’s assessment of Plaintiff’s ability to walk
and stand in an eight-hour workday does not contradict Dr.

Luke’s

“recommendation” that he walk for twenty minutes at a time up to
three times a day to condition his heart.

(AR 549).

As stated

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24

before, Dr. Luke’s recommendation was expressly worded as a goal
rather than an assessment of what Plaintiff could presently do.

25

(AR

505).

For

this

26

reason,

Dr.

contradict Dr. Luke’s.

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15

Gomer’s

assessment

did

not

1

Finally, the ALJ’s decision to reject Dr. Gomer’s assessment

2

because he responded “No” to a question on his assessment form

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4

about

providing

substitute

medication

specific and legitimate reason.

to

Plaintiff

(AR 574).

is

not

a

Dr. Gomer adjusted

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6
7

Plaintiff’s diabetes medication and made several additions to the
medications in his regimen. (AR 698). Further, the ALJ is a

8

layperson, not a doctor. An ALJ cannot challenge a medical doctor’s

9

treatment choices and a physician’s awareness of the scope of

10

treatments available to his patient.

11

F.3d 1094, 1102 (9th Cir. 1999); Day v. Weinberger, 522 F.2d 1154,

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14
15

1156 (9th Cir. 1975).

See Tackett v. Apfel, 180

Accordingly, the Court finds that the ALJ

failed to provide specific and legitimate reasons for rejecting
Dr. Gomer’s assessment.

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3. Examining Consultative Physician Robert Steinberg, M.D.

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19

Plaintiff’s counsel retained Dr. Robert Steinberg, M.D., to

20

assess Plaintiff.

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Integrative Medicine specialist.

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23

(AR 538-52).

Dr. Steinberg is an Internal and
(AR 538).

On September 27, 2012,

after examining Plaintiff and reviewing medical records dating back
to 2009, Dr. Steinberg provided a detailed report on Plaintiff’s

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limitations.

(AR 538-52).

Dr. Steinberg concluded that in an

eight-hour day, Plaintiff could sit only for about two hours, and

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stand/walk for only about thirty minutes to one hour.

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He also opined that Plaintiff can lift and carry up to 10 pounds
16

(AR 549).

1

frequently and up to 20 pounds occasionally.

2

Steinberg

found

that

increase

in

competitive

3
4

a

Plaintiff’s
work

pain

(AR 549). Dr.

symptoms

would

environment.

likely

(AR

550).

Additionally, Dr. Steinberg advised that Plaintiff would need

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7

unscheduled

rest-breaks

at

unpredictable

intervals

during

eight-hour work day, for twenty minutes a time at every hour.

8

550).

9

and limitations was in 2009.

the
(AR.

He determined that the earliest date of Plaintiff’s symptoms
(AR 551).

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15

The ALJ rejected examining doctor Steinberg’s assessment on
three grounds.

First, the ALJ asserted that a non-examining

medical

Ostrow

advisor

found

that

the

record

supporting

Dr.

Steinberg’s assessment contained insufficient “objective findings”

16

to endorse the restrictive standing and walking limitations and

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unscheduled rest breaks recommended by Dr. Steinberg.

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Second, the ALJ concluded that Plaintiff’s reported pain level, a

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five on a one-to-ten scale, is intrinsically at odds with Dr.

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(AR 30-31).

Steinberg’s opinion that the pain would “frequently” interfere with
Plaintiff’s attention and concentration.

(AR 31).

Lastly, the

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25

ALJ

rejected

Dr.

Steinberg’s

assessment

based

on

the

ALJ’s

determination that Plaintiff’s lungs were essentially clear on
examination.

(AR 31)

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27
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17

1
2
3
4

The Court finds that the ALJ’s reasons for rejecting examining
doctor Steinberg’s assessment are not specific and legitimate.

As

a matter of law, a non-examining medical advisor’s opinion will
not suffice to override a treating or examining and consultative

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6
7

physician’s opinion.

See Garrison, 759 F.3d at 1012; Lester v.

Chater, 81 F.3d 821, 830 (1995) (“The ALJ’s primary reasons for

8

rejecting

9

conflicted with the testimony of a non-examining medical advisor.

10

In so doing, the ALJ committed an error of law.”); see also Pitzer

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v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (“[T]he non-

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15

[the

treating

physicians’]

opinions

were

that

they

examining physician’s conclusion, with nothing more, does not
constitute

substantial

evidence,

particularly

in

view

of

the

conflicting observations, opinions, and conclusions of an examining

16

physician.”).

Accordingly, because Dr. Steinberg is Plaintiff’s

17

examining

18

opinion, by itself, may not stand to override Dr. Steinberg’s

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assessment.

doctor,

the

non-examining

medical

advisor

Ostrow’s

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21

Next, the ALJ had no factual basis to determine that Plaintiff’s

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reported pain level as a five on a one-to-ten scale is intrinsically
at

odds

with

Dr.

Steinberg’s

interfere

that

Plaintiff’s

the

pain

attention

would

25

“frequently”

26

concentration.

27

with Plaintiff that there is nothing inconsistent between a mid-

(AR 559).

with

opinion

and

As a factual matter, the Court agrees

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18

1

range level of pain and an inference that such a pain would

2

“frequently”

3

interfere

with

an

the

finding

individual’s

attention

and

concentration.

4
5
Finally,

6
7

ALJ’s

that

Plaintiff’s

lungs

were

essentially clear on examination lacks merit. Dr. Steinberg found

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decreased breath sounds in all lung fields in Plaintiff, with a

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prolonged expiratory phase. (AR 544). Furthermore, Dr. Steinberg’s

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findings are consistent with the opinions of treating physicians

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Luke and Gomer, who similarly determined that Plaintiff suffered

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13
14

from wheezing (AR 523, 533), poor breath sounds (AR 505), and
diminished breathing. (AR 515).

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16

Thus, the Court finds the ALJ failed to give specific and

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legitimate reasons for rejecting examining consultative doctor

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Steinberg’s assessment.

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21

B.

The ALJ Failed To Provide Clear And Convincing Reasons To
Reject Plaintiff’s Credibility

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24

Plaintiff

also

challenges

the

ALJ’s

credibility

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determination. Plaintiff contends that the ALJ failed to provide

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clear and convincing reasons supported by substantial evidence in

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the record for discrediting his testimony.

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19

(Pl. MSO at 20-22).

1

The Court agrees and remands this action for further proceedings

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consistent with this decision.

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4

The ALJ presented several reasons for discounting Plaintiff’s

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6
7

credibility.

The ALJ initially concluded that Plaintiff was not

credible because the chest pain he experienced while trimming his

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hedges subsided when he discontinued that activity.

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The ALJ also found that Plaintiff’s testimony lacked credibility

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because Plaintiff failed to stop smoking after being medically

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advised to do so.

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15

(AR 32).

(AR 32).

Consequently, the ALJ held that

Plaintiff’s failure to quit smoking evinced his failure to follow
medical advice, thus undermining his credibility.

(AR 32).

For

the reasons stated below, the Court concludes that the ALJ failed

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to provide clear and convincing reasons to reject Plaintiff’s

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credibility.

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19

1.

Chest Pain Testimony

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21

Plaintiff

challenges

the

ALJ’s

decision

to

reject

his

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24

credibility based on his alleged “inconsistent” testimony about
Plaintiff’s chest pain.

(Pl. MSO at 20).

In particular, the ALJ

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discredited Plaintiff’s testimony regarding his chest pain because

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the “chest pain ceased after [Plaintiff] stopped trimming” the

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hedges.

(AR 32).

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20

1
2
3
4

The

ALJ

may

use

“ordinary

techniques

of

credibility

evaluation, such as . . . prior inconsistent statements.”
763 F.3d at 1163 (quoting Smolen, 80 F.3d at 1284).

Ghanim,

As a general

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6
7

rule, the Ninth Circuit “do[es] not consider a cursory finding that
a single line of testimony is ‘equivocal’ sufficient to constitute

8

substantial evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880,

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884 (9th Cir. 2006).

In Robbins, the Ninth Circuit held that an

10

ALJ failed to provide clear and convincing reasons to discount a

11

claimant’s

12

credibility

when

relying

on

a

inconsistent testimony regarding alcohol use.

“single

line”

of

Id.

13
14
Here, as in Robbins, the ALJ erroneously relied on a single

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16

limited discrepancy to reject Plaintiff’s credibility.

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the ALJ’s finding that Plaintiff is capable of light physical

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exertion may conflict with Plaintiff’s claim that he endured pain

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while

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21

trimming

his

hedges,

that

inconsistency

alone

sufficient to wholly reject Plaintiff’s credibility.

is

not

Thus, the

Court agrees that this rationale fails to provide a clear and

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23

Although

convincing reason to reject Plaintiff’s credibility.

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25
26
27
28
21

1

2.

Plaintiff’s Failure To Quit Smoking

2
3
4

Plaintiff

challenges

the

ALJ’s

decision

to

reject

his

credibility based on his failure to follow medical advice to quit

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6
7

smoking.

(Pl. MSO at 21).

“A claimant's subjective symptom

testimony may be undermined by an unexplained, or inadequately

8

explained, failure to ... follow a prescribed course of treatment.”

9

Trevizo, 871 F.3d at 679 (citations omitted).

Failure to assert a

10

reason for not following treatment “can cast doubt on the sincerity

11

of the claimant's pain testimony.”

Id.

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13
14
15

As a general rule, “in the case of impairments where the
stimulus to seek relief is less pronounced, and where medical

16

treatment is very unlikely to be successful, the approach to

17

credibility makes little sense.”

18

example, in Orn, the Ninth Circuit, held that a claimant’s failure

19

to follow a medically advised treatment for treating his obesity

20
21

Orn, 495 F.3d at 638.

was not sufficient to discount the claimant’s credibility.
Therefore,

the

court

found

that

the

ALJ

erred

in

For

Id.

rejecting

22
23

claimant’s credibility on this ground.

Id.

24
25

Additionally, the Court notes that the Seventh Circuit in

26

Shramek v Apfel followed several steps (omitted by the ALJ here)

27

before denying benefits for a failure to follow medical advice to

28
22

1

quit smoking.

2

follow medical advice, the Seventh Circuit found that an inquiry

3
4

Before denying benefits because of a failure to

must be conducted into the circumstances surrounding the failure,
and a determination must be made as to whether following the

5
6
7

treatment advice would have restored the person’s ability to work
or sufficiently improve his condition.

Shramek v. Apfel, 226 F.3d

8

809, 812-13 (7th Cir. 2000) (cited in Bray v. Comm’r of Soc. Sec.

9

Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)).

10
11
12
13
14
15

Here, Plaintiff’s failure to follow medical advice to quit
smoking is similar the plaintiff in Orn, who failed to follow
medical advice to lose weight.

In neither situation is the failure

to follow medical advice, on the facts of the case, a clear and

16

convincing reason to reject the claimant’s subjective testimony.

17

Furthermore, the ALJ here failed to consider whether quitting

18

smoking

19

sufficiently improved his health condition to allow him to work.

20
21

would

have

restored

Plaintiff’s

ability

to

work

or

Without such an inquiry, Plaintiff’s failure to quit smoking alone
cannot constitute a convincing reason to reject his credibility.

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23
24
25

Therefore, the Court agrees that Plaintiff’s failure to follow the
medical advice to quit smoking, under these facts, does not provide
a clear and convincing reason to reject his credibility.

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27
28
23

1

VI.

2

CONCLUSION

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4

Consistent with the foregoing, and pursuant to sentence four

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6
7

of 42 U.S.C. § 405(g),1 IT IS ORDERED that judgment be entered
REVERSING the decision of the Commissioner and REMANDING this

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matter for further proceedings consistent with this decision.

The

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Agency must reevaluate Plaintiff’s disability onset date in light

10

of the findings made in this Order.

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the Clerk of the Court serve copies of this Order and the Judgment

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IT IS FURTHER ORDERED that

on counsel for both parties.

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DATED:

November 13, 2017

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18

/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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This sentence provides: “The [district] court shall have power
to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
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1

NOTICE

2

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,
WESTLAW OR ANY OTHER LEGAL DATABASE

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