John Martinez v. Carolyn W. Colvin

Filing 24

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

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1 O 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 8:16-CV-00643 (VEB) 7 8 JOHN MARTINEZ, 10 11 DECISION AND ORDER Plaintiff, 9 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 Defendant. 13 I. INTRODUCTION 14 In February of 2013, Plaintiff John Martinez applied for supplemental security 15 16 17 18 income benefits under the Social Security Act. The Commissioner of Social Security denied the application.1 1 Plaintiff, represented by Lawrence D. Rohlfing, Esq.,  On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.  20 1 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 commenced this action seeking judicial review of the Commissioner’s denial of 2 benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 3 The parties consented to the jurisdiction of a United States Magistrate Judge. 4 (Docket No. 11, 12). On March 27, 2017, this case was referred to the undersigned 5 pursuant to General Order 05-07. (Docket No. 22). 6 II. BACKGROUND 7 Plaintiff applied for SSI benefits on February 22, 2013, alleging disability 8 beginning March 1, 2007. (T at 191-99).2 The application was denied initially and 9 on reconsideration. Plaintiff requested a hearing before an Administrative Law 10 Judge (“ALJ”). On August 14, 2014, a hearing was held before ALJ Sharilyn 11 Hopson. (T at 39). Plaintiff appeared with his attorney and testified. (T at 42-45, 52- 12 61). The ALJ also received testimony from Dr. Reuben Beezy (T at 46-51) and 13 Elizabeth Ramos, a vocational expert (T at 62-69). 14 On October 24, 2014, the ALJ issued a written decision denying the 15 application for benefits. 16 Commissioner’s final decision on February 9, 2016, when the Appeals Council 17 denied Plaintiff’s request for review. (T at 1-7). (T at 18-38). The ALJ’s decision became the 18 19 20 2  Citations to (“T”) refer to the administrative record at Docket No. 17. 2 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 On April 7, 2016, Plaintiff, acting by and through his counsel, filed this action 2 seeking judicial review of the Commissioner’s decision. (Docket No. 1). The 3 Commissioner interposed an Answer on September 6, 2016. (Docket No. 16). 4 Plaintiff filed a supporting memorandum of law on November 10, 2016 (Docket No. 5 20); Defendant filed an opposing memorandum of law on December 7, 2016. 6 (Docket No. 21). 7 After reviewing the pleadings, memoranda of law, and administrative record, 8 this Court finds that the Commissioner’s decision should be reversed and this case 9 remanded for further proceedings. 10 11 III. DISCUSSION A. Sequential Evaluation Process 12 The Social Security Act (“the Act”) defines disability as the “inability to 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which has 15 lasted or can be expected to last for a continuous period of not less than twelve 16 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 17 claimant shall be determined to be under a disability only if any impairments are of 18 such severity that he or she is not only unable to do previous work but cannot, 19 considering his or her age, education and work experiences, engage in any other 20 3 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 2 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 3 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 6 one determines if the person is engaged in substantial gainful activities. If so, 7 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 8 decision maker proceeds to step two, which determines whether the claimant has a 9 medically severe impairment or combination of impairments. 20 C.F.R. §§ 10 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 11 If the claimant does not have a severe impairment or combination of 12 impairments, the disability claim is denied. If the impairment is severe, the 13 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 14 with a number of listed impairments acknowledged by the Commissioner to be so 15 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 16 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 17 equals one of the listed impairments, the claimant is conclusively presumed to be 18 disabled. If the impairment is not one conclusively presumed to be disabling, the 19 evaluation proceeds to the fourth step, which determines whether the impairment 20 4 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 prevents the claimant from performing work which was performed in the past. If the 2 claimant is able to perform previous work, he or she is deemed not disabled. 20 3 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 4 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 5 work, the fifth and final step in the process determines whether he or she is able to 6 perform other work in the national economy in view of his or her residual functional 7 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 8 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 9 The initial burden of proof rests upon the claimant to establish a prima facie 10 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 11 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 12 is met once the claimant establishes that a mental or physical impairment prevents 13 the performance of previous work. The burden then shifts, at step five, to the 14 Commissioner to show that (1) plaintiff can perform other substantial gainful 15 activity and (2) a “significant number of jobs exist in the national economy” that the 16 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 17 B. Standard of Review 18 Congress has provided a limited scope of judicial review of a Commissioner’s 19 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 20 5 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 made through an ALJ, when the determination is not based on legal error and is 2 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 3 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 4 “The [Commissioner’s] determination that a plaintiff is not disabled will be 5 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 6 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 7 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 8 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 9 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 10 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 11 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 12 conclusions as the [Commissioner] may reasonably draw from the evidence” will 13 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 14 the Court considers the record as a whole, not just the evidence supporting the 15 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 16 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 17 It is the role of the Commissioner, not this Court, to resolve conflicts in 18 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 19 interpretation, the Court may not substitute its judgment for that of the 20 6 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 2 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 3 set aside if the proper legal standards were not applied in weighing the evidence and 4 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 5 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 6 administrative findings, or if there is conflicting evidence that will support a finding 7 of either disability or non-disability, the finding of the Commissioner is conclusive. 8 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 C. Commissioner’s Decision 10 The ALJ determined that Plaintiff had not engaged in substantial gainful 11 activity since February 22, 2013, the application date. (T at 23). The ALJ found that 12 Plaintiff’s diabetes mellitus, diabetic peripheral neuropathy, hepatitis C, asthma, 13 mood disorder, and psychotic disorder were “severe” impairments under the Act. 14 (Tr. 24). 15 However, the ALJ concluded that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled one of the impairments 17 set forth in the Listings. (T at 24). 18 The ALJ determined that Plaintiff retained the residual functional capacity 19 (“RFC”) to occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; 20 7 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 stand/walk for 4 hours in an 8-hour workday (with the use of a cane as needed); sit 2 for 6 hours in an 8-hour workday (with the option to stand and stretch every hour for 3 1-3 minutes); occasionally climb stairs, bend, stoop, kneel, crouch, and crawl; never 4 climb ladders, ropes, scaffolds; avoid exposure to unprotected heights and 5 moving/dangerous machinery; avoid concentration exposure to pulmonary irritants; 6 perform work involving simple, routine tasks with no more than occasional contact 7 with the public, co-workers, and supervisors, and no teamwork requirements. (T at 8 26). 9 The ALJ found that Plaintiff could not perform his past relevant work as a 10 construction worker, delivery driver, or loader/unloader. (T at 31). Considering 11 Plaintiff’s age (41 on the application date), education (limited), work experience, 12 and residual functional capacity, the ALJ determined that there were jobs that exist 13 in significant numbers in the national economy that Plaintiff can perform. (T at 32). 14 As such, the ALJ found that Plaintiff was not entitled to benefits under the 15 Social Security Act from February 22, 2013 (the application date) through October 16 24, 2014 (the date of the ALJ’s decision). (T at 33). As noted above, the ALJ’s 17 decision became the Commissioner’s final decision when the Appeals Council 18 denied Plaintiff’s request for review. (T at 1-7). 19 20 8 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 2 D. Disputed Issue 3 Plaintiff offers a single argument in support of his claim that the 4 Commissioner’s decision should be reversed. He contends that the ALJ did not 5 properly weigh the medical opinion evidence. 6 7 IV. ANALYSIS A. Medical Opinion Evidence 8 In disability proceedings, a treating physician’s opinion carries more weight 9 than an examining physician’s opinion, and an examining physician’s opinion is 10 given more weight than that of a non-examining physician. Benecke v. Barnhart, 11 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 12 1995). If the treating or examining physician’s opinions are not contradicted, they 13 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 14 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 15 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 16 1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting 17 medical evidence, and/or the absence of regular medical treatment during the alleged 18 period of disability, and/or the lack of medical support for doctors’ reports based 19 substantially on a claimant’s subjective complaints of pain, as specific, legitimate 20 9 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 reasons for disregarding a treating or examining physician’s opinion. Flaten v. 2 Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 3 An ALJ satisfies the “substantial evidence” requirement by “setting out a 4 detailed and thorough summary of the facts and conflicting clinical evidence, stating 5 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 6 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 7 “The ALJ must do more than state conclusions. He must set forth his own 8 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 9 10 This Court will review the pertinent medical opinions and then address the ALJ’s consideration of that evidence. 11 1. 12 Dr. Charlene K. Krieg performed a consultative psychological evaluation in 13 June of 2013. Dr. Krieg diagnosed substance abuse, in remission, as well as 14 personality disorder NOS. (T at 526). She reported that Plaintiff “did not evidence 15 any disorder on mental status” and opined that he had no mental impairment(s) that 16 would limit his ability to engage in work activities and/or complete a normal 17 workday or workweek. (T at 526). Dr. Krieg 18 19 20 10 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 2. 2 In July of 2013, Dr. Heather Barrons, a non-examining State Agency review 3 consultant, opined that Plaintiff was limited to simple work with occasional 4 interpersonal contact. (T at 102). 5 restriction of activities of daily living, mild difficulties maintaining social 6 functioning, and moderate difficulties in maintaining concentration, persistence, or 7 pace. (T at 104, 108). In October of 2013, Dr. Paul Balson reaffirmed Dr. Barrons’s 8 assessment. (T at 120-21). 9 3. State Agency Review Consultants She characterized Plaintiff as having mild Dr. Lissaur 10 In August 2011, Dr. Ralph Lissaur, Plaintiff’s treating psychologist, opined 11 that Plaintiff cannot live independently, could not tolerate the stresses of 12 employment, avoided or responded inappropriately to interpersonal relationships, 13 and had trouble completing simple tasks or following directions without undue 14 interruptions and distractions and/or complying with a schedule and routine 15 requirements on a sustained basis. (T at 585). Dr. Lissaur consistently reiterated 16 these findings in treatment notes between January of 2011 and August of 2014. (T at 17 569-585, 794, 796, 798). In August of 2014, Dr. Lissaur assigned a Global 18 19 20 11 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 Assessment of Functioning (“GAF”) score3 of 48 (T at 794), which is indicative of 2 serious impairment in social, occupational or school functioning. Haly v. Astrue, No. 3 EDCV 08-0672, 2009 U.S. Dist. LEXIS 76881, at *12-13 (Cal. CD Aug. 27, 2009). 4 4. 5 Sandra Rosen, a treating social worker, completed a report in March of 2011, 6 wherein she noted a diagnosis of bipolar disorder and assigned a GAF score of 45 (T 7 at 657). Ms. Rosen described Plaintiff as isolating himself from others, unable to 8 work, and experiencing visual hallucinations. (T at 657). 9 5. Ms. Rosen ALJ’s Consideration of Medical Opinion Evidence 10 The ALJ assigned “little weight” to the opinion of Dr. Lissaur, the treating 11 psychiatrist, finding his opinion “conclusory” and “not consistent with the record in 12 its entirety.” (T at 30-31). The ALJ also noted that Dr. Lissaur “did not have the 13 benefit” of reviewing other medical reports in the record. (T at 30-31). 14 The ALJ afforded some weight to the opinion of Dr. Kreig, the consultative 15 examiner, finding her assessment not “inconsistent” with the evidence, but 16 nevertheless concluding that Plaintiff’s mental health impairments were more 17 restricting than Dr. Kreig’s assessment indicated. (T at 31). The ALJ likewise 18 3  “A GAF score is a rough estimate of an individual's psychological, social, and occupational 19 functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998).  20 12 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 afforded less weight to the opinions of the State Agency review consultants, finding 2 Plaintiff somewhat more limited with regard to his mental health impairments. (T at 3 31). 4 For the following reasons, this Court finds the ALJ’s consideration of the 5 medical opinion evidence inadequate and not supported by substantial evidence. In 6 sum, the ALJ characterized Dr. Lissaur’s opinion as “conclusory” and faulted the 7 treating psychiatrist for “providing very little explanation of the evidence relied on 8 in forming that opinion.” (T at 30). The ALJ also noted that Dr. Lissaur “did not 9 have the benefit” of reviewing the other medical reports in the record. (T at 31). The 10 ALJ’s assessment is flawed in four respects. 11 First, Dr. Lissaur is not required to state the obvious, namely, that his opinion 12 is based, in significant measure on his clinical expertise and experience treating 13 Plaintiff on numerous occasions over a period covering three and a half years. (T at 14 569-585, 794, 796, 798). See Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 15 Cal. 1994)(“[W]e also hold that the ALJ committed a legal error when he failed to 16 grant deference to the conclusions [of claimant’s treating physician]…[The courts 17 have] ‘accorded deference to treating physicians precisely because they are the 18 doctors with ‘greater opportunity to observe and know the patient.’”)(emphasis in 19 original)(quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1993)). Moreover, 20 13 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 assessments of mental health impairments are not generally amendable to precise 2 measurement or reference to “objective” test results. As such, the ALJ erred by 3 faulting Dr. Lissaur for allegedly failing to provide an adequate explanation of his 4 findings. 5 Second, it is simply not accurate to characterize Dr. Lissaur’s assessment as 6 “conclusory.” The treatment notes consistently report clinical findings and indicate 7 that Plaintiff had depressed mood, poor concentration and attention, impaired insight 8 and judgment, and occasionally experienced auditory and visual hallucinations. (T at 9 569-89, 794, 796, 798). This is not a case where a treating provider completed a 10 “checkbox” assessment of limitations. Rather, the record contains detailed treatment 11 notes from Dr. Lissaur, over an extended period of time, documenting significant 12 impairments and assessing significant limitations. The ALJ’s characterization of 13 this record as “conclusory” is not supported by substantial evidence. 14 Third, the ALJ apparently believed Dr. Lissaur would have altered his 15 assessment if he had “the benefit of reviewing the other medical reports contained in 16 the current record ….” (T at 31). Presumably, the ALJ is referring to the opinions 17 provided by Dr. Krieg (the consultative examiner) and Drs. Barron and Balson (the 18 non-examining State Agency review consultants). However, if that was the case, 19 then the proper course would have been for the ALJ to re-contact Dr. Lissaur, 20 14 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 provide him with those reports, and inquire as to whether they altered the treating 2 provider’s opinion. There is no question that “the ALJ has a duty to assist in 3 developing the record.” Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 4 587, 589 (9th Cir. 1998); 20 C.F.R. §§ 404.1512(d)-(f); see also Sims v. Apfel, 530 5 U.S. 103, 110-11, 147 L. Ed. 2d 80, 120 S. Ct. 2080 (2000) (“Social Security 6 proceedings are inquisitorial rather than adversarial. It is the ALJ’s duty to 7 investigate the facts and develop the arguments both for and against granting 8 benefits . . . .”). This duty includes an obligation to re-contact a treating physician 9 under appropriate circumstances. 10 In the present case, there was a significant discrepancy between the findings 11 of the treating provider, on the one hand, and the consultative examiner and State 12 Agency consultants, on the other. The treating provider assessed severe limitations; 13 the non-treating professionals found moderate to no impairment. 14 The ALJ noted this inconsistency, recognized that the treating provider had 15 not had the “benefit” of reviewing the other reports, and then resolved the conflict by 16 adopting findings more consistent with the non-treating providers. (T at 30-31). 17 This was not proper; the ALJ should have re-contacted Dr. Lissaur before resolving 18 the inconsistency in favor of the non-treating opinions. See SSR 96-5p; see also 19 20 15 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 Estrada v. Astrue, No EDCV 07-01226, 2009 U.S. Dist. LEXIS 15824, at *11 (C.D. 2 Cal. Feb. 25, 2009). 3 Fourth, the ALJ placed great emphasis on Plaintiff’s difficulties complying 4 with treatment recommendations and his ability to engage in a “somewhat normal 5 level of daily activity and interaction.” (T at 30). While not explicitly stated, it 6 appears the ALJ believed Dr. Lissaur’s assessment was based on Plaintiff’s 7 subjective complaints, which the ALJ found not credible because of non-compliance 8 with treatment recommendations and because of Plaintiff’s ability to engage in 9 “somewhat normal” activities of daily living. Although these are, in general, proper 10 considerations when assessing a treating provider’s opinion, Flaten v. Secretary of 11 Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995), the ALJ’s 12 analysis here was insufficient. 13 For example, the ALJ did not give adequate consideration to the impact that 14 Plaintiff’s impairments, including his recognized difficulties with social interaction, 15 may have had on his difficulties consistently complying with treatment 16 recommendations. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.1996) 17 (noting that “it is a questionable practice to chastise one with a mental impairment 18 for the exercise of poor judgment in seeking rehabilitation”)(quoting Blankenship v. 19 Bowen, 874 F.2d 1116, 1124 (6th Cir.1989)). 20 16 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 Moreover, the ALJ’s reliance on Plaintiff’s “somewhat normal” activities of 2 daily living does not adequately account for the evidence indicating that Plaintiff 3 relied heavily on very supportive family members and could not perform his 4 activities of daily living without assistance. A clear implication of Dr. Lissaur’s 5 assessments is that, notwithstanding Plaintiff’s ability to maintain a relatively stable, 6 albeit modest, level of activity, that ability would degrade if he was required to 7 consistently follow directions, keep appointments, or maintain a schedule. 8 Individuals with chronic mental health problems “commonly have their lives 9 structured to minimize stress and reduce their signs and symptoms.” Courneya v. 10 Colvin, No. CV-12-5044, 2013 U.S. Dist. LEXIS 161332, at *13-14 (E.D.W.A. 11 Nov. 12, 2013)(quoting 20 C.F.R. Pt. 404, Subp't P, App. 1 § 12.00(D)). 12 Social Security Act does not require that claimants be utterly incapacitated to be 13 eligible for benefits, and many home activities are not easily transferable to what 14 may be the more grueling environment of the workplace, where it might be 15 impossible to periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 16 603 (9th Cir. 1989); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 17 2012)(“The critical differences between activities of daily living and activities in a 18 full-time job are that a person has more flexibility in scheduling the former than the 19 latter, can get help from other persons . . ., and is not held to a minimum standard of 20 17 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB “The 1 performance, as she would be by an employer. The failure to recognize these 2 differences is a recurrent, and deplorable, feature of opinions by administrative law 3 judges in social security disability cases.”)(cited with approval in Garrison v. 4 Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)). For the reasons outlined above, this Court finds that the ALJ’s consideration 5 6 of Dr. Lissaur’s opinion was inadequate and a remand is therefore required. 7 B. Remand 8 In a case where the ALJ's determination is not supported by substantial 9 evidence or is tainted by legal error, the court may remand the matter for additional 10 proceedings or an immediate award of benefits. Remand for additional proceedings 11 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 12 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 13 F.3d 587, 593 (9th Cir. 2004). 14 Here, this Court finds that remand for further proceedings is warranted. 15 Although the ALJ’s consideration of Dr. Lissaur’s opinion was flawed for the 16 reasons outlined above, there is evidence in the record calling into question whether 17 Plaintiff is disabled within the meaning of the Social Security Act. The consultative 18 examiner and State Agency review consultants assessed little to no limitations 19 arising from Plaintiff’s mental health impairments. 20 The divergence of opinion 18 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 between well-qualified professionals creates some doubt as to the extent of 2 Plaintiff’s limitations. 3 deference, and while the ALJ here did not satisfy his duty to resolve the conflicting 4 evidence in a manner supported by substantial evidence, the doubt as to disability 5 means a remand for further proceedings is the appropriate remedy. There is also 6 some evidence in the record suggesting that Plaintiff’s symptoms were managed 7 with medication when he was compliant with treatment recommendations. 8 Accordingly, this Court finds that a remand for further proceedings is the correct 9 result. See Strauss v. Comm’r of Soc. Sec., 635 F.3d 1135, 1138 (9th Cir. 10 2011)(“Ultimately, a claimant is not entitled to benefits under the statute unless the 11 claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be.”). 12 Although the treating provider’s opinion is entitled to V. ORDERS 13 IT IS THEREFORE ORDERED that: 14 Judgment be entered REVERSING the Commissioner’s decision and 15 REMANDING this matter for further proceedings consistent with this Decision and 16 Order; and 17 18 19 20 19 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB 1 The Clerk of the Court shall file this Decision and Order, serve copies upon 2 counsel for the parties, and CLOSE this case without prejudice to a timely 3 application for attorneys’ fees and costs. 4 5 6 DATED this 11th day of September, 2017, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 DECISION AND ORDER – MARTINEZ v BERRYHILL 8:16-CV-00643-VEB

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