Haworth v. Commissioner of Social Security

Filing 24

ORDER signed by Magistrate Judge Dale A. Drozd on 3/1/2015 ORDERING that plaintiff's 15 motion for summary judgment is GRANTED; defendant's 23 cross-motion for summary judgment is DENIED; the Commissioner's decision is REVERSED; and this matter is REMANDED with instructions to award benefits. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM R. HAWORTH, SR.,

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No. 2:13-cv-2453 DAD

Plaintiff,
v.

ORDER

CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.

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

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plaintiff‟s motion for summary judgment and defendant‟s cross-motion for summary judgment.

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For the reasons explained below, plaintiff‟s motion is granted, defendant‟s cross-motion is

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denied, the decision of the Commissioner of Social Security (“Commissioner”) is reversed, and

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the matter is remanded for further proceedings consistent with this order.

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PROCEDURAL BACKGROUND

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In September of 2010, plaintiff filed an application for Disability Insurance Benefits

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(“DIB”) under Title II of the Social Security Act (“the Act”), alleging disability beginning on

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August 9, 2009. (Transcript (“Tr.”) at 10, 149.) Plaintiff‟s application was denied initially, (id. at

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104-08), and upon reconsideration. (Id. at 112-16.) Plaintiff requested a hearing and a hearing

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was held before an Administrative Law Judge (“ALJ”) on April 26, 2012. (Id. at 28-73.)
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Plaintiff was represented by an attorney and testified at the administrative hearing. (Id. at 28-29.)

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In a decision issued on June 20, 2012, the ALJ found that plaintiff was not disabled. (Id. at 23.)

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The ALJ entered the following findings:

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1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.

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2. The claimant has not engaged in substantial gainful activity
since August 9, 2009, the alleged onset date (20 CFR 404.1571 et
seq.).

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3. The claimant has the following severe impairments:
degenerative disc disease of the lumbar spine, degenerative disc
disease of the cervical spine, chronic right shoulder rotator cuff
tendinitis, right knee pain, obesity, borderline intellectual
functioning and a history of substance abuse (20 CFR 404.1520(c)).

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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, and 404.1526).

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5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 404.1567(c) with the
following limitations: the claimant is able to lift, carry, push and/or
pull 50 pounds occasionally and 25 pounds frequently. The
claimant may sit for 8 hours in an 8-hour day. He may stand/walk
for 6 hours in an 8-hour day. The claimant is unable to climb
ladders, ropes or scaffolds. He may occasionally stoop, kneel,
crouch or crawl. The claimant must avoid all exposure to work
hazards, such as moving machinery or unprotected heights. The
claimant is limited to occasional working above the head with his
upper extremities. The claimant has no limitations in the ability to
receive, remember, understand or carryout simple tasks. His ability
to receive, remember, understand and carryout complex tasks is
limited to occasional. The claimant has no limitations in the ability
to deal with workplace changes or to make workplace judgments.

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6. The claimant is unable to perform any past relevant work (20
CFR 404.1565).

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7. The claimant was born on December 16, 1957 and was 51 years
old, which is defined as an individual closely approaching advanced
age, on the alleged disability onset date (20 CFR 404.1563).

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8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

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9. Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a

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framework supports a finding that the claimant is “not disabled”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).

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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 and 404.1569(a)).

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11. The claimant has not been under a disability, as defined in the
Social Security Act, from August 9, 2009, through the date of this
decision (20 CFR 404.1520(g)).

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(Id. at 12-23.)
On September 26, 2013, the Appeals Council denied plaintiff‟s request for review of the

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ALJ‟s June 20, 2012 decision. (Id. at 1-3.) Plaintiff sought judicial review pursuant to 42 U.S.C.

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§ 405(g) by filing the complaint in this action on November 25, 2013.
LEGAL STANDARD

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

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

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

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

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

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Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“[A] reviewing court must consider the entire record as a whole and may not affirm

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

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

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

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

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1072, 1075 (9th Cir. 2002).

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

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

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process has been summarized as follows:

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

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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.

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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.

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

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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.

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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

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

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

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1098 (9th Cir. 1999).
APPLICATION

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In his pending motion plaintiff asserts the following two principal claims: (1) the ALJ‟s

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treatment of the medical opinion evidence constituted error; and (2) the ALJ improperly rejected

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plaintiff‟s own subjective testimony. (Pl.‟s MSJ (Dkt. No. 15) at 14-23.1)

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I.

Plaintiff argues that the ALJ erred by rejecting the opinion of Dr. George Scarmon,

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Medical Opinion Evidence

plaintiff‟s treating physician. (Id. at 13-18.)
The weight to be given to medical opinions in Social Security disability cases depends in

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Finally, greater weight should be given to the “„opinion of a specialist about medical issues

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related to his or her area of specialty.‟” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004)

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(quoting 20 C.F.R. § 404.1527(d)(5)).

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Here, on July 28, 2011, Dr. George Scarmon, plaintiff‟s treating physician, completed a

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Medical Assessment of Ability to do Work-Related Activities (PHYSICAL) form with respect to

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plaintiff. (Tr. at 333.) Dr. Scarmon opined, in part, that plaintiff was able to stand/walk for two

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to three hours in an eight-hour work day, that he was unable to climb, bend, balance, stoop, kneel,

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crouch or crawl, that plaintiff was required to take ten minute breaks from work every forty-five

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minutes, and that plaintiff is unable to work. (Id. at 18, 333.)

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The ALJ afforded Dr. Scarmon‟s opinion “little weight.” (Tr. at 21.) In support of this

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determination, the ALJ stated that in light of the fact that plaintiff had obtained a prescription for

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medical marijuana from a physician other than Dr. Scarmon because plaintiff “did not want

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anyone to know [he] used it,” Dr. Scarmon was “unable to consider significant evidence that may

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have affected his medical opinion.” (Id. at 21.) The ALJ concluded that “[b]ecause Dr. Scarmon

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was unaware of the claimant‟s marijuana use, he was unable to ascertain whether the use of
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marijuana or lack of sobriety would affect claimant‟s credibility regarding his symptoms of pain

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and physical limitations,” and also “was unable to consider whether and to what extent side

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effects of the drug use would affect the claimant‟s physical capacities.”2 (Id.)

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There is, however, nothing in the record to suggest that plaintiff did not have a valid

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prescription for medical marijuana. (Id. at 37.) Accordingly, there is no reason to question

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plaintiff‟s credibility based on his use of medical marijuana in this context. See Akers v. Colvin,

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Civil No. 12-1944-CL, 2014 WL 1236293, at *7 (D. Or. Mar. 25, 2014) (“Plaintiff‟s use of

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medical marijuana was not a clear and convincing reason to reject her credibility.”); Riley v.

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Astrue, No. C11-5318-TSZ-MAT, 2012 WL 628540, at *10 (W.D. Wash. Feb. 7, 2012)

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(“Because plaintiff had medical authorization to possess and use medical marijuana for medical

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purposes, the ALJ‟s conclusion that plaintiff‟s marijuana use negatively impacts his credibility is

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rejected.”).
Moreover, Dr. Scarmon‟s opinion indicated that it was supported by objective medical

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findings, including x-rays and examinations. (Tr. at 333.) In this regard, an August 9, 2009, CT

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scan of plaintiff‟s spine revealed “anterior osteophytic spurring and bony bridging at C2-C3” and

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“fairly marked degenerative disease at the anterior articulation of C1 and C2.” (Id. at 258.) Dr.

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Scarmon‟s treatment notes referred to plaintiff as suffering from “[s]evere degenerative arthritis,”

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(id. at 334), and x-rays of plaintiff‟s lumbosacral spine taken after Dr. Scarmon rendered his

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opinion showed “severe degenerative arthritis in [plaintiff‟s] thoracic and cervical spine as well as

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lumber spine.” (Id. at 336.)
The ALJ also rejected Dr. Scarmon‟s opinion in part because it “fails for inconsistency

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with medical treatment.” (Id. at 21.) In this regard, the ALJ asserted that “[i]f the claimant were

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truly disabled as alleged, one would expect more aggressive treatment, such as surgery,

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hospitalization or consultation with a specialist.” (Id.) Dr. Scarmon‟s treatment notes, however,

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During the April 26, 2012 administrative hearing, the ALJ went even further, stating, “[w]ell,
we don‟t look at medical marijuana. There‟s no such thing in this room. Marijuana is marijuana
and it‟s still illegal. So you haven‟t been clean for 15 years.” (Tr. at 38.) The ALJ also asserted
that because Dr. Scarmon did not write plaintiff‟s prescription for medical marijuana, “in [the
ALJ‟s] judgment means that he doesn‟t approve of it and doesn‟t approve of it for medical (sic)
and all the side-effects, then, are a detriment. That‟s what the bottom line is.” (Id. at 39.)
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reflect his wide ranging and increasingly aggressive treatment of plaintiff, which included

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administering of medications, recommended weight loss, physical therapy and steroid injections.

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(Id. at 249-57.)
The ALJ concluded his rejection of treating physician Dr. Scarmon‟s opinion by stating

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that “[u]ltimately, the undersigned finds Dr. Scarmon‟s opinion conclusory, providing very little

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explanation of the evidence relied on in forming that opinion.” (Id. at 21.) However,

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To say that medical opinions are not supported by sufficient
objective findings or are contrary to the preponderant conclusions
mandated by the objective findings does not achieve the level of
specificity . . . required, even when the objective factors are listed
seriatim. The ALJ must do more than offer his conclusions. He
must set forth his own interpretations and explain why they, rather
than the doctors‟, are correct.

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Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). See also Tackett v. Apfel, 180 F.3d

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1094, 1102 (9th Cir. 1999) (“The ALJ must set out in the record his reasoning and the evidentiary

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support for his interpretation of the medical evidence.”); McAllister v. Sullivan, 888 F.2d 599,

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602 (9th Cir. 1989) (“Broad and vague” reasons for rejecting the treating physician‟s opinion do

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not suffice). Here, the ALJ did not set forth his own interpretations of the medical evidence or

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explain why they, rather than those of treating physician Dr. Scarmon, were correct.

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For these reasons, the court finds that the ALJ failed to provide specific and legitimate

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reasons supported by substantial evidence in the record for rejecting treating physician Dr.

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Scarmon‟s opinion. Accordingly, the court finds that plaintiff is entitled to summary judgment in

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his favor with respect to his claim that the ALJ erred in his treatment of the opinion of plaintiff‟s

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treating physician.

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II.

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Subjective Testimony
Plaintiff also asserts that the ALJ erred by rejecting plaintiff‟s own subjective testimony.

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(Pl.‟s MSJ (Dkt. No. 15) at 19-23.) The Ninth Circuit has summarized the ALJ‟s task with

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respect to assessing a claimant‟s credibility as follows:

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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
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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.

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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 . . . .

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

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

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

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1104, 1112 (9th Cir. 2012).

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

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

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

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

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

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

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

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

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

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

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court “may not engage in second-guessing.” Id.
Here, the ALJ found that plaintiff‟s medically determinable impairments could reasonably

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

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

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were inconsistent with the ALJ‟s residual functional capacity assessment. (Tr. at 19.) Thus, the

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ALJ found, in part, that plaintiff‟s allegations regarding the severity of his symptoms and

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corresponding functional limitations, was not fully credible in light of the “significant gaps” in his

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treatment history.3 In this regard, the ALJ noted that the evidence of record reflected that plaintiff

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“stopped all treatment from July 2011 through February 2012, a period of approximately 7

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months.” (Id. at 19.)

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It is well-established that an ALJ may discredit a plaintiff‟s testimony for lack of

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consistent treatment. See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (the ALJ may

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properly rely on failure to seek treatment during “three or four month period” to discredit

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plaintiff‟s subjective complaints). Accordingly, for this reason alone the court finds that plaintiff

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is not entitled to relief with respect to his claim that the ALJ erred in rejecting plaintiff‟s

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subjective testimony.

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CONCLUSION

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

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

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

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

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Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (finding that it was an abuse of discretion for the

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district court to remand for further proceedings where the credit-as-true rule is satisfied and the

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record afforded no reason to believe that plaintiff was not disabled); Benecke, 379 F.3d at 596

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(“Because the evidence establishes that Benecke would be unable to maintain employment while

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managing her pain and fatigue, remand for further administrative proceedings serves no useful

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purpose and is unwarranted.”). However, where there are outstanding issues that must be

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The ALJ also found that plaintiff was not fully credible in light of his daily activities, his
“statements relative to the issue of substance abuse,” and his “generally unpersuasive appearance
and demeanor while testifying at the hearing.” (Id. at 20.) The court does not find those reasons
given by the ALJ to be the required specific, clear and convincing reasons for rejecting testimony.
See generally Lingenfelter, 504 F.3d at 1035-36 (“ALJ can reject the claimant‟s testimony about
the severity of her symptoms only by offering specific, clear and convincing reasons for doing
so”); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“One does not need to be „utterly
incapacitated‟ in order to be disabled.); Riley v. Astrue, No. C11-5318-TSZ-MAT, 2012 WL
628540, at *10 (W.D. Wash. Feb. 7, 2012) (“Because plaintiff had medical authorization to
possess and use medical marijuana for medical purposes, the ALJ‟s conclusion that plaintiff‟s
marijuana use negatively impacts his credibility is rejected.”).
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resolved before a determination can be made, or it is not clear from the record that the ALJ would

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be required to find plaintiff disabled if all the evidence were properly evaluated, remand is

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appropriate. Benecke, 379 F.3d at 594.

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Here, the court finds that the record has been fully developed and that the ALJ failed to

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provide a legally sufficient reason for rejecting the medical opinion offered by plaintiff‟s treating

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physician, Dr. George Scarmon. Moreover, if the medical opinion offered by Dr. Scarmon were

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credited as true, the ALJ would be required to find plaintiff disabled on remand. In this regard, a

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Vocational Expert testified at the administrative hearing on April 26, 2012. When asked a

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hypothetical question that included the limitations indicated by treating physician Dr. Scarmon‟s

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July 28, 2011 opinion, the Vocational Expert testified that the limitations indicated by that

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opinion precluded plaintiff from all work. (Tr. at 71-72.) Thus, had the ALJ‟s decision been

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based on the Vocational Expert‟s testimony in response to the proper hypothetical question that

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included all of plaintiff‟s limitations, the ALJ would have been required to find plaintiff disabled.

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Accordingly, the court finds that this is a case where it is appropriate to remand with the

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direction to award benefits. See Martinez v. Colvin, 585 Fed. Appx. 612, 613 (9th Cir. 2014) (“if

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Martinez‟s testimony and Dr. Novak‟s opinion were properly credited, Martinez would be

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considered disabled. We therefore reverse the decision of the district court and remand with

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instructions to remand to the ALJ for the calculation and award of benefits”)4; Garrison, 759 F.3d

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at 1023 (“Garrison satisfies all three conditions of the credit-as-true rule and . . . a careful review

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of the record discloses no reason to seriously doubt that she is, in fact, disabled. A remand for a

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calculation and award of benefits is therefore required under our credit-as-true precedents.”);

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Moore v. Comm‟r of Soc. Sec. Admin., 278 F.3d 920, 925 (9th Cir. 2002) (remanding for

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payment of benefits where the ALJ improperly rejected the testimony of the plaintiff‟s examining

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physicians); Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir. 1994) (awarding benefits where

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the ALJ “improperly discounted the opinion of the treating physician”).

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Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
36-3(b).
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s motion for summary judgment (Dkt. No. 15) is granted;

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2. Defendant‟s cross-motion for summary judgment (Dkt. No. 23) is denied;

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3. The Commissioner‟s decision is reversed; and

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4. This matter is remanded with instructions to award benefits.

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Dated: March 1, 2015

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DAD:6
Ddad1\orders.soc sec\haworth2453.ord.docx

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