Power v. Commissioner of Social Security

Filing 21

ORDER signed by Magistrate Judge Dale A. Drozd on 9/29/2014 GRANTING plaintiff's 16 Motion for Summary Judgment and DENYING defendant's 17 Cross-Motion for Summary Judgment. The Commissioner's decision is REVERSED and this matter is REMANDED for further proceedings consistent with Order. (Marciel, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

PETER VLAD POWER,

12

Plaintiff,

13
14
15

No. 2:13-cv-0572 DAD

v.

ORDER

CAROLYN W. COLVIN, Commissioner
of Social Security,

16

Defendant.

17
18

This social security action was submitted to the court without oral argument for ruling on

19

plaintiff’s motion for summary judgment. For the reasons explained below, plaintiff’s motion is

20

granted, defendant’s cross-motion is denied, the decision of the Commissioner of Social Security

21

(“Commissioner”) is reversed, and the matter is remanded for further proceedings consistent with

22

this order.
PROCEDURAL BACKGROUND

23
24

On May 16, 2011, plaintiff filed an application for Disability Insurance Benefits (“DIB”)

25

under Title II of the Social Security Act (“the Act”). (Transcript (“Tr.”) at 14, 72.) On May 19,

26

2011, plaintiff filed an application for Supplemental Security Income (“SSI”) under Title XVI of

27

the Act. (Id. at 14, 73.) Both applications alleged disability beginning on December 1, 2006. (Id.

28

/////
1

1

at 14.) Plaintiff’s applications were denied initially, (id. at 88-92), and upon reconsideration. (Id.

2

at 98-102.)

3

Thereafter, plaintiff requested a hearing which was held before an Administrative Law

4

Judge (“ALJ”) on September 5, 2012. (Id. at 28-59.) Plaintiff was represented by “a non-

5

attorney representative,” (id. at 14), and testified at that administrative hearing. (Id. at 29.) In a

6

decision issued on October 19, 2012, the ALJ found that plaintiff was not disabled. (Id. at 23.)

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The ALJ entered the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2015.
2. The claimant has not engaged in substantial gainful activity
since December 1, 2006, the alleged onset date (20 CFR 404.1571
et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: substance
abuse in early remission and degenerative disc disease of the
lumbar spine with sciatic on the left lower extremity (20 CFR
404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except: he could stand and/or walk for 4 hours in an 8hour workday, with normal breaks; he could sit for 6 hours in an 8hour workday, with normal breaks; he could occasionally perform
postural activities; and he is unable to climb ladders, ropes, and
scaffolds.
6. The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
7. The claimant was born on September 3, 1973 and was 33 years
old, which is defined as a younger individual age 18-49, on the
alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 822

1

41 and 20 CFR Part 404, Subpart P, Appendix 2).

2

10. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

3
4

11. The claimant has not been under a disability, as defined in the
Social Security Act, from December 1, 2006, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).

5
6
7
8
9
10

(Id. at 16-22.)
On February 8, 2013, the Appeals Council denied plaintiff’s request for review of the
ALJ’s decision. (Id. at 1-3.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by
filing the complaint in this action on March 24, 2013.
LEGAL STANDARD

11
12

“The district court reviews the Commissioner’s final decision for substantial evidence,

13

and the Commissioner’s decision will be disturbed only if it is not supported by substantial

14

evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012).

15

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

16

support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v.

17

Chater, 108 F.3d 978, 980 (9th Cir. 1997).

18

“[A] reviewing court must consider the entire record as a whole and may not affirm

19

simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin.,

20

466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.

21

1989)). If, however, “the record considered as a whole can reasonably support either affirming or

22

reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d

23

1072, 1075 (9th Cir. 2002).

24

A five-step evaluation process is used to determine whether a claimant is disabled. 20

25

C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step

26

process has been summarized as follows:

27

Step one: Is the claimant engaging in substantial gainful activity? If
so, the claimant is found not disabled. If not, proceed to step two.

28
3

Step two: Does the claimant have a “severe” impairment? If so,
proceed to step three. If not, then a finding of not disabled is
appropriate.

1
2
3

Step three: Does the claimant’s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App. 1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.

4
5

Step four: Is the claimant capable of performing his past work? If
so, the claimant is not disabled. If not, proceed to step five.

6
7

Step five: Does the claimant have the residual functional capacity to
perform any other work? If so, the claimant is not disabled. If not,
the claimant is disabled.

8
9

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation

10
11

process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden

12

if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094,

13

1098 (9th Cir. 1999).

14

APPLICATION

15

In his pending motion plaintiff argues that the ALJ committed the following three

16

principal errors in finding him not disabled: (1) the ALJ improperly failed to find plaintiff’s

17

mental impairment severe at step two of the sequential evaluation; (2) the ALJ improperly

18

rejected plaintiff’s testimony concerning his subjective symptoms; and (3) the ALJ’s treatment of

19

the medical opinion evidence constituted error.1 (Pl.’s MSJ (Dkt. No. 16) at 6-13.2)

20

I.

Step Two
Plaintiff argues that the ALJ improperly evaluated plaintiff’s mental impairment at step

21
22

two of the sequential evaluation process by finding that the impairment in question was not

23

severe. (Pl.’s MSJ (Dkt. No. 16) at 9-10.)
At step two of the sequential evaluation, the ALJ must determine if the claimant has a

24
25

medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273,

26

1

27
28

2

The court has reordered plaintiff’s claims for purposes of clarity and efficiency.

Page number citations such as this one are to the page number reflected on the court’s CM/ECF
system and not to page numbers assigned by the parties.
4

1

1289-90 (9th Cir. 1996) (citing Yuckert, 482 U.S. at 140-41). The Commissioner’s regulations

2

provide that “[a]n impairment or combination of impairments is not severe if it does not

3

significantly limit [the claimant’s] physical or mental ability to do basic work activities.” 20

4

C.F.R. §§ 404.1521(a) & 416.921(a). Basic work activities are “the abilities and aptitudes

5

necessary to do most jobs,” and those abilities and aptitudes include: (1) physical functions such

6

as walking, standing, sitting, lifting, and carrying; (2) capacities for seeing, hearing, and speaking;

7

(3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5)

8

responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing

9

with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b).
The Supreme Court has recognized that the Commissioner’s “severity regulation increases

10
11

the efficiency and reliability of the evaluation process by identifying at an early stage those

12

claimants whose medical impairments are so slight that it is unlikely they would be found to be

13

disabled even if their age, education, and experience were taken into account.” Yuckert, 482 U.S.

14

at 153. However, the regulation must not be used to prematurely disqualify a claimant. Id. at 158

15

(O’Connor, J., concurring). “An impairment or combination of impairments can be found not

16

severe only if the evidence establishes a slight abnormality that has no more than a minimal effect

17

on an individual[’]s ability to work.” Smolen, 80 F.3d at 1290 (internal quotation marks and

18

citation omitted). “[A]n ALJ may find that a claimant lacks a medically severe impairment or

19

combination of impairments only when his conclusion is ‘clearly established by medical

20

evidence.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Social Security Ruling

21

(“SSR”) 85-28). See also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (claimant

22

failed to satisfy step two burden where “none of the medical opinions included a finding of

23

impairment, a diagnosis, or objective test results”). “Step two, then, is ‘a de minimis screening

24

device [used] to dispose of groundless claims[.]’” Webb, 433 F.3d at 687 (quoting Smolen, 80

25

F.3d at 1290). See also Edlund v. Massanari, 253 F.3d 1152, 1158-59 (9th Cir. 2001) (discussing

26

this “de minimis standard”); Tomasek v. Astrue, No. C-06-07805 JCS, 2008 WL 361129, at *13

27

(N.D. Cal. Feb.11, 2008) (describing claimant’s burden at step two as “low”).

28

/////
5

Here, with respect to plaintiff’s “psychiatric impairments” the ALJ found that “the lack of

1
2

any continuing mental health care” showed that plaintiff’s impairments “did not last for the 12

3

continuous months necessary to establish a severe, disabling impairment.” (Tr. at 17.) Moreover,

4

the ALJ found that even if plaintiff’s impairment met the durational requirement there was “little

5

evidence” showing that the impairment caused “any more than minimal functional limitations.”

6

(Id.)
Plaintiff argues that “[l]ack of continuing medical treatment does not logically prove a

7
8

medical condition did not continue . . . .” (Pl.’s MSJ (Dkt. No. 16) at 9.) Nonetheless, “[a]t step

9

two of the analysis, the claimant has the burden of producing medical evidence of signs,

10

symptoms, and laboratory findings supporting the conclusion that his or her impairment is severe

11

and can be expected to last more than twelve months.” Chavez v. Colvin, No. 1:12-cv-0657 LJO

12

SMS, 2013 WL 5493371, at *11 (E.D. Cal. Oct. 2, 2013) (citing Ukolov v. Barnhart, 420 F.3d

13

1002, 1004-05 (9th Cir. 2005). See, e.g., Ruiz v. Colvin, No. EDCV 13-1623, 2014 WL

14

1654026, at *3 (C.D. Cal. Apr. 25, 2014) (same); Haddix v. Colvin, No. 2:12-cv-0829 AC, 2014

15

WL 128035, at *3 (E.D. Ca. Jan. 10, 2014) (same). Here, plaintiff has not met that burden.
Moreover, plaintiff’s argument fails to rebut the ALJ’s findings that plaintiff had not

16
17

attended “any dedicated mental health care” for a sustained period, that he “only sought a

18

physical disability rating from the Department of Veteran Affairs” and that the progress notes

19

from his few psychotherapy visits did “not show any complaints of limited activities of daily

20

living.” (Tr. at 17-18.) In this regard, it appears from the record before the court that, at least

21

during some of the relevant period of time, plaintiff was working in the National Guard and

22

attending school. (Id. 32, 43.)

23

Under these circumstances the court cannot find that plaintiff has met his burden of

24

producing medical evidence of signs, symptoms, and laboratory findings supporting the

25

conclusion that his mental impairment was severe. Accordingly, the court finds that plaintiff is

26

not entitled to relief with respect to this claim.

27

/////

28

//////
6

1
2

II.

Plaintiff’s Subjective Testimony
Plaintiff also argues that the ALJ erred by rejecting plaintiff’s testimony concerning the

3

severity of his impairments. (Pl.’s MSJ (Dkt. No. 16) at 10-12.) The Ninth Circuit has

4

summarized the ALJ’s task with respect to assessing a claimant’s credibility as follows:

5
6
7
8
9
10
11
12
13

To determine whether a claimant’s testimony regarding subjective
pain or symptoms is credible, an ALJ must engage in a two-step
analysis. First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other
symptoms alleged. The claimant, however, need not show that her
impairment could reasonably be expected to cause the severity of
the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom. Thus, the
ALJ may not reject subjective symptom testimony . . . simply
because there is no showing that the impairment can reasonably
produce the degree of symptom alleged.
Second, if the claimant meets this first test, and there is no evidence
of malingering, the ALJ can reject the claimant’s testimony about
the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so . . . .

14

Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks

15

omitted). “At the same time, the ALJ is not required to believe every allegation of disabling pain,

16

or else disability benefits would be available for the asking . . . .” Molina v. Astrue, 674 F.3d

17

1104, 1112 (9th Cir. 2012).

18

“The ALJ must specifically identify what testimony is credible and what testimony

19

undermines the claimant’s complaints.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,

20

693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.

21

1999)). In weighing a claimant’s credibility, an ALJ may consider, among other things, the

22

“[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] testimony or

23

between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work record, and

24

testimony from physicians and third parties concerning the nature, severity, and effect of the

25

symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

26

2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.

27

1997)). If the ALJ’s credibility finding is supported by substantial evidence in the record, the

28

court “may not engage in second-guessing.” Id.
7

Here, the ALJ found that plaintiff’s medically determinable impairments could reasonably

1
2

be expected to cause the symptoms alleged, but that plaintiff’s statements concerning the

3

intensity, persistence and limiting effects of those symptoms were not credible to the extent they

4

were inconsistent with the ALJ’s residual functional capacity assessment for several reasons. (Tr.

5

at 19.)

6

In this regard, the ALJ noted that “the medical evidence” suggested that plaintiff’s pain

7

was not as functionally limiting as he alleged, in light of the “few significant findings” on

8

physical examination, the “few neurological deficits . . . a gait ranging from normal to minimally

9

antalgic,” and in light of the decision of plaintiff’s chiropractor to treat plaintiff conservatively,

10

“despite the claimant’s request for more aggressive treatment.” (Id.) The ALJ also noted that

11

plaintiff’s care had been “conservatively limited to the use of pain medications in addition to

12

physical therapy and chiropractic care,” and that plaintiff had “been offered surgical treatment,”

13

but the record documented “no follow through.” (Id.)

14

“[A]fter a claimant produces objective medical evidence of an underlying impairment, an

15

ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical evidence

16

to fully corroborate the alleged severity . . . .” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.

17

2005) (emphasis added). Nonetheless, lack of medical evidence is a relevant factor for the ALJ to

18

consider in his credibility analysis. (Id. at 681.) Moreover, a conservative course of treatment

19

may discredit a claimant’s allegations of disabling symptoms. See Parra v. Astrue, 481 F.3d 742,

20

750-51 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008); Meanel v. Apfel, 172 F.3d 1111, 1114

21

(9th Cir. 1999) (failure to request “any serious medical treatment for [claimant’s] supposedly

22

excruciating pain” was adequate reason to reject claimant’s pain testimony).

23

Another reason offered by the ALJ for rejecting plaintiff’s testimony was that plaintiff’s

24

“own admitted activities show[ed] that he [was] quite functional.” (Tr. at 19.) Specifically, the

25

ALJ noted that plaintiff continued to attend church, socialize with friends, do his own shopping,

26

some housework and work one weekend per month in the National Guard. (Id.)

27
28

While a plaintiff need not be “utterly incapacitated to be eligible for benefits,” Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989), the ALJ may consider the plaintiff’s daily activities as
8

1

a factor in evaluating the plaintiff’s subjective complaints. See Bunnell v. Sullivan, 947 F.2d

2

341, 346-47 (9th Cir. 1991) (including effectiveness of medication, treatment other than

3

medication, the claimant’s daily activities, and ordinary techniques of credibility evaluation

4

among the factors that may be considered by an ALJ in assessing the credibility of allegedly

5

disabling subjective symptoms); 20 C.F.R. § 404.1529(a) (“We will consider all of your

6

statements about your symptoms, such as pain, and any description you . . . may provide about

7

how the symptoms affect your activities of daily living and your ability to work.”).

8

The ALJ also rejected plaintiff’s testimony because it was inconsistent with the “medical

9

opinions that show that he has considerable work-related abilities despite his impairments.” (Tr.

10

at 19.) The ALJ noted that an examining physician found that plaintiff was capable of standing

11

and walking for six hours, sitting for six hours and carrying fifty pounds occasionally, and that

12

plaintiff’s treating physician opined that plaintiff could lift ten pounds frequently and work an

13

eight-hour workday five days per week. (Id. at 19-20.) Such considerations are legally

14

permissible. See Burch, 400 F.3d at 680-81 (ALJ may properly rely on inconsistency between

15

claimant’s subjective complaints and objective medical findings); Batson v. Commissioner, 359

16

F.3d 1190, 1196-97 (9th Cir. 2004) (ALJ’s credibility determinations affirmed where ALJ relied

17

on opinions of consulting doctors and claimant’s testimony was unsupported by either objective

18

medical evidence or any persuasive reports from treating doctors).
The final reason offered by the ALJ for rejecting plaintiff’s testimony was that on January

19
20

4, 2007, the Department of Veterans Affairs rated plaintiff as only ten percent disabled. (Tr. at

21

20.) That rating was increased on December 12, 2011, but only to twenty percent disabled.3 (Id.)

22

“Even though it is not binding or conclusive, the VA disability rating has to be considered.”

23

McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011). See also McCartey v. Massanari, 298 F.3d

24

/////

25
3

26
27
28

VA regulations provide that a veteran usually must meet certain rating criteria in order to be
awarded individual unemployability. 38 C.F.R. § 4.16(a) (stating, in relevant part, that “if there is
only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are
two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and
sufficient additional disability to bring the combined rating to 70 percent or more”).
9

1

1072, 1076 (9th Cir. 2002) (“an ALJ must ordinarily give great weight to a VA determination of

2

disability”).

3

For the reasons stated above, the court finds that the ALJ offered specific, clear and

4

convincing reasons for rejecting plaintiff’s testimony. Accordingly, the court finds that plaintiff

5

is also not entitled to relief with respect to this claim.

6

III.

7
8
9

Medical Opinion Evidence
Plaintiff next argues that the ALJ’s treatment of the medical opinion evidence constituted

error. (Pl.’s MSJ (Dkt. No. 16) at 6-9.)
The weight to be given to medical opinions in Social Security disability cases depends in

10

part on whether the opinions are proffered by treating, examining, or nonexamining health

11

professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a

12

general rule, more weight should be given to the opinion of a treating source than to the opinion

13

of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. This is so because a

14

treating doctor is employed to cure and has a greater opportunity to know and observe the patient

15

as an individual. Smolen, 80 F.3d at 1285; Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir.

16

1990). The uncontradicted opinion of a treating or examining physician may be rejected only for

17

clear and convincing reasons, while the opinion of a treating or examining physician that is

18

controverted by another doctor may be rejected only for specific and legitimate reasons supported

19

by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining

20

physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion

21

of either an examining physician or a treating physician.” (Id. at 831.) Although a treating

22

physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not accept the

23

opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and

24

inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir.

25

2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)).

26

Greater weight should be given to the “‘opinion of a specialist about medical issues related to his

27

or her area of specialty.’” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (quoting 20

28

C.F.R. § 404.1527(d)(5)).
10

Here, the ALJ asserted that the opinions of plaintiff’s treating physician, an examining

1
2

physician, and two nonexamining physicians were “generally given significant weight” because

3

they were “consistent with the discussed treatment evidence . . . .” (Tr. at 20.) However, it was

4

the opinion of plaintiff’s treating physician, Dr. Zoriada Soriano, that plaintiff could only

5

walk/stand for a total of one to two hours and sit for a total of two to four hours. (Id. at 578-79.)

6

Despite purporting to give treating physician Dr. Soriano’s opinion significant weight, the ALJ

7

determined that plaintiff had the residual functional capacity to walk/stand for four hours and sit

8

for six hours. (Id. at 18.) To the extent the ALJ rejected those limitations indicated by Dr.

9

Soriano’s opinion, the ALJ failed to offer any reasons, let alone specific and legitimate reasons,

10

for doing so.
Moreover, although Dr. Soriano’s opinion was purportedly “generally given significant

11
12

weight” by the ALJ, the ALJ expressly rejected “Dr. Soriano’s opinion that the claimant requires

13

rest periods during the day” asserting that Dr. Soriano provided no basis for that limitation and

14

that it was inconsistent with her later statement that plaintiff could work fulltime. (Id. at 20.)

15

However, the court notes that Dr. Soriano’s opinion is found on a short, largely check the box/fill

16

in the blank, form which simply asks for a checkmark if the claimant requires any rest periods.

17

There is no follow up question asking the doctor to support that opinion regarding the patient’s

18

limitation. (Id. at 579.) Moreover, where the form did ask Dr. Soriano to support her

19

assessments she provided essentially the same answer, i.e., that plaintiff suffers from chronic

20

lower back pain and damage to his left “sided disc.”4 (Id.) In this regard, it is not legitimate to

21

reject part of an opinion for being unsupported and inconsistent but adopt another part of that

22

opinion when the entire opinion relies on the same support and there was no opportunity for the

23

physician to explain what the ALJ perceived as an inconsistency.

24

An ALJ may not simply pick and choose from a medical opinion, using only those

25

portions favorable to a finding of nondisability without providing specific and legitimate reasons

26

for doing so that are supported by substantial evidence. See Robinson v. Barnhart, 366 F.3d

27
28

4

The clinical term written by Dr. Soriano to describe plaintiff’s condition on the form is
illegible.
11

1

1078, 1083 (10th Cir. 2004) (ALJ not entitled to “pick and choose from a medical opinion, using

2

only those parts that are favorable to a finding of nondisability”); Loza v. Apfel, 219 F.3d 378,

3

393-94 (5th Cir. 2000) (ALJ “cannot ‘pick and choose’ only the evidence that supports his

4

position”); Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (ALJ may reject portion of

5

opinion by providing “specific and legitimate reasons based on substantial evidence in the

6

record”); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984) (“the Secretary’s attempt to

7

use only the portions favorable to her position, while ignoring other parts, is improper”); Fiorello

8

v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (while the ALJ is not obligated to “reconcile

9

explicitly every conflicting shred of medical testimony,” she cannot simply selectively choose

10

evidence in the record that supports her conclusions); Day v. Weinberger, 522 F.2d 1154, 1156

11

(9th Cir. 1975) (An ALJ is not permitted to reach a conclusion “simply by isolating a specific

12

quantum of supporting evidence”).

13

Here, the ALJ did not provide specific or legitimate reasons for declining to adopt

14

portions of Dr. Soriano’s opinion. Accordingly, the court finds that the ALJ’s treatment of the

15

medical opinion evidence constituted legal error. Plaintiff is, therefore, entitled to summary

16

judgment in his favor as to this claim.

17

CONCLUSION

18

With error established, the court has the discretion to remand or reverse and award

19

benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose

20

would be served by further proceedings, or where the record has been fully developed, it is

21

appropriate to exercise this discretion to direct an immediate award of benefits. See Garrison v.

22

Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (abuse of discretion for district court to remand for

23

further proceedings where credit-as-true rule is satisfied and record afforded no reason to believe

24

plaintiff was not disabled); Benecke, 379 F.3d at 596 (“Because the evidence establishes that

25

Benecke would be unable to maintain employment while managing her pain and fatigue, remand

26

for further administrative proceedings serves no useful purpose and is unwarranted.”). However,

27

where there are outstanding issues that must be resolved before a determination can be made, or it

28

/////
12

1

is not clear from the record that the ALJ would be required to find plaintiff disabled if all the

2

evidence were properly evaluated, remand is appropriate. Benecke, 379 F.3d at 594.

3

Here, there are outstanding issues that must be resolved and it is not clear from the record

4

that the ALJ would be required to find plaintiff disabled if all the evidence were properly

5

evaluated. Accordingly, the court finds that this matter should be remanded for further

6

proceedings so that the ALJ can properly consider Dr. Soriano’s opinion, provide specific and

7

legitimate reasons supported by substantial evidence in the record for any portion of Dr. Soriano’s

8

opinion that the ALJ rejects, and determine whether plaintiff was disabled.

9

Thus, IT IS HEREBY ORDERED that:

10

1. Plaintiff’s motion for summary judgment (Dkt. No. 16) is granted;

11

2. Defendant’s cross-motion for summary judgment (Dkt. No. 17) is denied;

12

3. The Commissioner’s decision is reversed; and

13

4. This matter is remanded for further proceedings consistent with this order.

14

Dated: September 29, 2014

15
16
17
18

DAD:6
Ddad1\orders.soc sec\power0572.ord.docx

19
20
21
22
23
24
25
26
27
28
13