Clark v. Colvin

Filing 19

ORDER signed by Magistrate Judge Allison Claire on 03/08/16 ORDERING that plaintiff's 13 Motion for Summary Judgment is GRANTED; defendant's 14 Cross-Motion for Summary Judgment is DENIED; the Commissioner's decision is REVERSED and this matter is REMANDED for further proceedings consistent with this order. CASE CLOSED (Benson, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SHARON KAY CLARK,

12

Plaintiff,

13
14
15

No. 2:14-cv-0851 AC (TEMP)

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 and defendant’s cross-motion for summary judgment.1

20

For the reasons explained below, plaintiff’s motion is granted, the decision of the Commissioner

21

of Social Security (“Commissioner”) is reversed, and the matter is remanded for further

22

proceedings consistent with this order.
PROCEDURAL BACKGROUND

23
24

In July of 2010, plaintiff filed an application for Disability Insurance Benefits (“DIB”)

25

under Title II of the Social Security Act (“the Act”), alleging disability beginning on June 30,

26
27

1

Both parties have previously consented to Magistrate Judge jurisdiction over this action
pursuant to 28 U.S.C. § 636(c). See ECF Nos. 8 & 10.

28
1

1

2010. (Transcript (“Tr.”) at 16, 173-79.) Plaintiff’s application was denied initially, (id. at 123-

2

27), and upon reconsideration. (Id. at 137-41.) Plaintiff requested a hearing and a hearing was

3

held before an Administrative Law Judge (“ALJ”) on August 2, 2012 and August 3, 2012. (Id. at

4

49-105.) Plaintiff was represented by an attorney and testified at the administrative hearing. (Id.

5

at 49-50.)

6
7

In a decision issued on September 7, 2012, the ALJ found that plaintiff was not disabled.
(Id. at 29.) The ALJ entered the following findings:

8

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

9

2. The claimant has not engaged in substantial gainful activity
since June 30, 2010, the alleged onset date (20 CFR 404.1571 et
seq).

10
11

3. The claimant has the following severe impairments: depressive
disorder, frozen right shoulder, degenerative disc disease of the
lumber and cervical spine (20 CFR 404.1520(c)).

12
13

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).

14
15
16

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) except she
can sit for 8 hours requiring a change of position every 30 minutes
to one hour without leaving the work stations, stand or walk 30-45
minutes at a time for a total of 6 hours in an 8-hour day. She could
not climb ladders, ropes or scaffolds, and has no limitations in the
left upper extremity. In the right upper extremity she can
occasionally lift above the head or shoulder, and lift in all
directions. She is able to interact appropriately with the general
public, coworkers and supervisors. She has no limitation in her
ability to receive, remember and carryout simple job instructions;
occasionally receive, remember and carryout detailed job
instructions, job related judgments and able to make judgments and
adjustments to changes in the workplace.

17
18
19
20
21
22
23
24

6. The claimant is capable of performing past relevant work as a
cashier. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565).

25
26
27

////

28

////
2

1

7. The claimant has not been under a disability, as defined in the
Social Security Act, from June 30, 2010, through the date of this
decision (20 CFR 404.1520(f)).

2
3

(Id. at 18-29.)

4

On March 5, 2014, the Appeals Council denied plaintiff’s request for review of the ALJ’s

5

September 7, 2012 decision. (Id. at 1-3.) Plaintiff sought judicial review pursuant to 42 U.S.C. §

6

405(g) by filing the complaint in this action on April 4, 2014.
LEGAL STANDARD

7
8
9

“The district court reviews the Commissioner’s final decision for substantial evidence,
and the Commissioner’s decision will be disturbed only if it is not supported by substantial

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

1072, 1075 (9th Cir. 2002).

20

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

21

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

22

process has been summarized as follows:

23
24
25
26
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.
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.
Step three: Does the claimant’s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt.

28
3

1

404, Subpt. P, App. 1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.

2
Step four: Is the claimant capable of performing his past work? If
so, the claimant is not disabled. If not, proceed to step five.

3
4

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.

5
6

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

7
8

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

9

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

10

1098 (9th Cir. 1999).
APPLICATION

11

In her pending motion plaintiff asserts the following three principal claims: (1) the ALJ

12
13

erred in his treatment of the medical opinion evidence; (2) the ALJ improperly rejected plaintiff’s

14

own subjective testimony; and (3) the ALJ’s question to the Vocational Expert was incomplete.

15

I.

16

Medical Opinion Evidence
Plaintiff challenges the ALJ’s treatment of the medical opinions offered by Lynn

17

Holmquist, David E. McGee-Williams and Lynne Fiore. Although the ALJ’s decision provides a

18

detailed and thorough recitation of the opinions offered by these individuals, the ALJ concludes

19

his analysis of all the medical opinion evidence in a single lengthy paragraph that is vague and

20

conclusory, and ends by simply asserting that:

21

Dr. McGee-Williams, Dr. Fiore and physician assistant Holmquist’s
conclusions are inconsistent with the other treatment records, they
lack probative value. The undersigned gives those opinions little
evidentiary weight.

22
23
24
25

(Tr. at 28.)
In this regard, the ALJ’s decision properly and appropriately recounted the opinion of

26

Lynn Holmquist, a physician’s assistant, (“PAC), who had seen plaintiff “monthly since March

27

2009 for cervical disc disease, shoulder pain and frozen shoulder.” (Id. at 25.) The ALJ then

28

went on to recount PAC’s Holmquist’s summary of plaintiff’s symptoms and limitations.
4

1

Specifically, the ALJ acknowledged that it was PAC’s Holmquist’s opinion, in relevant part, that

2

plaintiff’s limitations restricted her to sitting and standing/walking for 30 minutes at a time for a

3

total of four hours in an eight-hour day, but plaintiff would need to “get up and walk around for

4

ten minutes every 30 minutes,” and would need to shift positions and take unscheduled breaks

5

three to four times a shift. (Id.) Moreover, according to PAC Holmquist, plaintiff could

6

occasionally lift up to 10 pounds, rarely lift 20 pounds, and “would miss work four days each

7

month.” (Id. at 25-26.)

8

Despite fully recounting PAC’s Holmquist’s opinion, the ALJ stated that he afforded

9

“[l]ittle weight” to PAC Holmquist’s opinion stating simply that the opinion was rendered by “a

10

physician (sic) assistant and not an acceptable medical source.” (Id. at 28) As noted above, the

11

ALJ also stated that “Holmquist’s conclusions are inconsistent with other treatment records, they

12

lack probative value,” and, therefore, were given “little evidentiary weight.” (Id.)

13

Although the opinion of a physician’s assistant is not an opinion from an acceptable

14

medical source, it is an “other source” opinion.2 See 20 C.F.R. §§ 404.1513(d)(1). Opinions and

15

evidence from other sources, such as physician’s assistants, are important and must be evaluated

16

by the ALJ. See Garrison v. Colvin, 759 F.3d 995, 1013-14 (9th Cir. 2014) (the ALJ erred by

17

failing to recognize “other source that can provide evidence about the severity of a claimant’s

18

impairments and how it affects the claimant’s ability to work”); SSR 06-03p, 2006 WL 2329939,

19

at *3 (“Opinions from these medical sources, who are not technically deemed ‘acceptable medical

20

sources’ under our rules, are important and should be evaluated on key issues such as impairment

21

severity and functional effects, along with the other relevant evidence in the file.”). The ALJ may

22

only discount evidence from an “other source,” such as a physician’s assistant, if the ALJ gives a

23

germane reason to each witness for doing so. See Britton v. Colvin, 787 F.3d 1011, 1013 (9th

24

Cir. 2015); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Petty v. Colvin, 954

25

2

26
27

“However, a physician’s assistant may be considered to be an acceptable medical source where
the assistant consults frequently and works closely with a physician and thus acts as an agent of
the doctor in the relationship with the patient.” Xiong v. Astrue, No. 1:09-cv-0928 SKO, 2010
WL 3715135, at *6 (E.D. Cal. Sept. 15, 2010) (citing In Gomez v. Chater, 74 F.3d 967, 970-71
(9th Cir. 1996)).

28
5

1

F.Supp.2d 914, 926 (D. Ariz. 2013) (“An ALJ is free to discount testimony from other sources,

2

but as the Commissioner concedes, he must give reasons germane to each witness for doing so.”).

3

Here, the ALJ failed to offer any reason for rejecting PAC’s Holmquist’s opinion aside from the

4

bare assertion that the opinion, along with the opinions of Dr. McGee-Williams and Dr. Fiore,

5

was inconsistent with other, unspecified, treatment records.

6

The ALJ’s decision also discussed the opinion of Dr. David E. McGee-Williams, a

7

“Clinical Psychologist Neuropsychology.” (Tr. at 245.) Dr. McGee-Williams examined plaintiff

8

on January 27, 2010, February 22, 2010, March 4, 2010, March 5, 2010, and April 7, 2010,

9

during which time he administered the Halstead-Reitan Neuropsychological Test Battery for

10

Adults, the Wechsler Adult Intelligence Scale-III, the Wechsler Memory Scale-III, the Woodcock

11

Johnson-III Test of Cognitive Abilities (Visual-Auditory Learning subtest), the MMPI-2, a

12

Neuropsychological History Questionnaire, the Neuropsychological Deficit Scale for Adults and

13

a clinical interview. (Id.) Although Dr. McGee-Williams examined plaintiff most recently in

14

April of 2010, Dr. McGee-Williams submitted his report to the ALJ on May 6, 2011, and noted

15

that because more than a year had passed since he examined the plaintiff he could not “comment

16

on the patient’s current status.” (Id. at 244.)

17

The ALJ noted that IQ tests administered by Dr. McGee-Williams placed plaintiff “in the

18

borderline range,” that her Wechsler Memory Scale-III score placed plaintiff in the “extremely

19

low” range, and that plaintiff “obtained a general neuropsychological deficit scale score of 52

20

which places her in the moderately impaired range.” (Id. at 24-25.) Plaintiff’s “most significant

21

levels of impairment occurred in the areas of higher-order cognitive processing, incidental

22

memory function, non-visually mediated spatial motor skills, higher-level attention concentration,

23

and cognitive flexibility.” (Id. at 25.) “When one calculates the Halsted Impairment Index

24

(composed of the seven most brain-sensitive subsets) it is found that 100% of these tests are in the

25

impaired range.” (Id.) The ALJ also noted that it was the opinion of Dr. McGee-Williams that

26

this “was a generalized brain impairment pattern, as there are no significant left/right hemispheric

27

////

28

////
6

1

differences,” and that this was “a long-standing brain impairment pattern present, in all

2

probability, since birth.”3 (Id.)

3

The ALJ’s opinion, however, expressly “sets aside” the report of Dr. McGee-Williams,

4

because Dr. McGee-Williams “had seen the claimant once previously,” and “stated on May 6,

5

2011 that he was unable to assess the claimant’s current mental functioning.” (Id. at 28.) As was

6

true of PAC Holmquist and as noted above, after discussing other medical opinion evidence, the

7

ALJ asserts in a vague and conclusory manner that the opinion of Dr. McGee-Williams was

8

“inconsistent with other treatment records . . . lack[s] probative value,” and, therefore, [was]

9

given “little evidentiary weight.” (Id.)

10

However, it is clear that Dr. McGee-Williams had seen the plaintiff on more than one

11

occasion, as his opinion states that he examined plaintiff on five occasions. (Id. at 245.)

12

Moreover, it is entirely unclear why the opinion of an examining physician, and a specialist,

13

should be set aside or given little weight simply because the physician saw the plaintiff on only

14

one occasion.4 Examining physicians often see the claimant on only one occasion.

15

Additionally, the fact that Dr. McGee-Williams was unable to comment on plaintiff’s

16

condition as of May 6, 2011, provides no basis for the ALJ’s decision to set aside his opinion.

17

The question before the ALJ was whether plaintiff had been under a disability from June 30,

18

2010, through the date of the decision. (Id. at 29.) Although it is not clear exactly when Dr.

19
20
3

21
22
23
24
25
26
27

Although not discussed in the ALJ’s decision, the testing administered by Dr. McGee-Williams
also found that if plaintiff “engaged in a particular task and is interrupted, she is likely to have
serious difficulty returning to the original task without undue levels of inefficiency,” that plaintiff
“demonstrated difficulty sustaining attention/concentration and perform (sic) mental work under
increasing time pressure and demand,” and that plaintiff “demonstrated severe impairment” in
higher-order cognitive processing. (Tr. at 247.) Moreover, Dr. McGee-Williams also opined,
with regard to plaintiff’s long-standing brain impairment, that “[t]he psychological effects are
undoubtedly going to include frustration, anger and probable depression,” and that “[s]imply
attempting to negotiate the demands of everyday life effectively, with the kinds of deficits and
lack of general intellectual power seen here, is going to be very difficult.” (Tr. at 249.)
4
Generally greater weight should be given to the “‘opinion of a specialist about medical issues
related to his or her area of specialty.’” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004)
(quoting 20 C.F.R. § 404.1527(d)(5)).

28
7

1

McGee-Williams drafted his opinion, it had to have been sometime on or after April 7, 2010, the

2

date he last examined plaintiff.

3

“Where evidence predating the alleged date of disability is made part of the record, the

4

regulations require the Commissioner to consider that evidence.” Cotton v. Colvin, No. 5:14-CV-

5

425-FL, 2015 WL 5714912, at *3 (E.D. N.C. Sept. 29, 2015) (citing 20 C.F.R. § 404.1520(a)(3)

6

(“We will consider all evidence in your case record when we make a determination.”)); see also

7

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“The ALJ must consider all medical

8

opinion evidence.”); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (“there is no

9

valid reason to exclude consideration of medical records dated prior to Vandenboom’s alleged

10

date of onset”); Sayers v. Colvin, No. 3:14-CV-00253-RCJ-WGC, 2015 WL 5092669, at *7 (D.

11

Nev. Aug. 25, 2015) (rejecting Commissioner’s assertion “that the ALJ was not required to

12

discuss [medical opinions] because they were not significant or probative as they were rendered

13

prior to the alleged amended onset date”).

14

Moreover, the ALJ’s vague and conclusory assertion that the opinion of Dr. McGee

15

Williams was “inconsistent with the other treatment records,” is not sufficient. (Tr. at 28.) In this

16

regard, “an ALJ errs when he rejects a medical opinion or assigns it little weight while doing

17

nothing more than ignoring it, asserting without explanation that another medical opinion is more

18

persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his

19

conclusion.” Garrison, 759 F.3d at 1012-13.

20

With respect to Dr. Fiore, a psychologist, on June 21, 2012, Lynne Fiore, Ph.D.,5

21

completed a Mental Residual Functional Capacity Questionnaire. (Tr. at 608-12.) Although the

22

ALJ’s opinion states that Dr. Fiore had “seen the claimant once on April 17, 2012 for chronic

23

major depressive disorder and developmental problems,” (id. at 27), Dr. Fiore’s opinion states

24

that plaintiff was seen on two occasions, April 17, 2012, and June 5, 2012. (Id. at 608.) The ALJ

25

recounted Dr. Fiore’s opinion, noting that Dr. Fiore “sees the claimant for individual therapy to

26

reduce depression and pain management skills,” that the plaintiff had “moderate-severe

27

5

At one point, the ALJ’s decision mistakenly refers to Dr. Fiore as an “M.D.” (Tr. at 27.)

28
8

1

depression,” “has confusion and difficulty talking at times,” and “[b]ased on Dr. McGee-Williams

2

neurocognitive evaluation” and testing plaintiff had “serious limitations in mental functioning,”

3

and “a brain impairment since birth impacting her job performance, mental health and daily living

4

expectations.” (Id. at 27.) The ALJ also noted that Dr. Fiore opined that plaintiff could likely

5

“not hold a job due to disabilities.”6 (Id.)

6

The ALJ stated with respect to Dr. Fiore’s opinion that:

7

Dr. Fiore gave very restrictive mental limitations noting that the
claimant has moderate-severe depression. She opined that the
claimant’s condition has not changed since the report of Dr.
McGee-Williams on April 7, 2010. Dr. Fiore’s assessed limitations
are too restrictive for the objective findings in the record. Dr.
Fiore’s statement that the claimant has a brain impairment since
birth impacting her job performance, mental health and daily living
expectations and that she could “probably not hold a job due to
disabilities” is given no probative value here. The claimant has
held jobs for 2-3 years at a time. Clearly, the claimant does not
have a brain impairment since birth making her unable to hold a
job.

8
9
10
11
12
13
14

(Tr. at 28.)

15

The ALJ, however, may not reject Dr. Fiore’s opinion by simply asserting that the

16

“assessed limitations are too restrictive for the objective findings in the record” or as

17

“inconsistent with the other treatment records.” In this regard, the weight to be given to medical

18

opinions in Social Security disability cases depends in part on whether the opinions are proffered

19

by treating, examining, or nonexamining health professionals. Lester, 81 F.3d at 830; Fair v.

20

Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a general rule, more weight should be given to

21

the opinion of a treating source than to the opinion of doctors who do not treat the claimant . . . .”

22

Lester, 81 F.3d at 830. This is so because a treating doctor is employed to cure and has a greater

23

opportunity to know and observe the patient as an individual. Smolen, 80 F.3d at 1285; Bates v.

24
6

25
26
27

Although not discussed in the ALJ’s decision, Dr. Fiore also evaluated plaintiff’s mental
abilities and aptitudes needed to do unskilled work, semiskilled and skilled work, and particular
types of jobs. With the exception of her abilities to interact appropriately with the general public,
maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness,
Fiore found that plaintiff was either seriously limited, but not precluded or unable to meet
competitive standards. (Tr. at 610-11.)

28
9

1

Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990). The uncontradicted opinion of a treating or

2

examining physician may be rejected only for clear and convincing reasons, while the opinion of

3

a treating or examining physician that is controverted by another doctor may be rejected only for

4

specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at

5

830-31. As noted above, “an ALJ errs when he rejects a medical opinion or assigns it little

6

weight while doing nothing more than ignoring it, asserting without explanation that another

7

medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a

8

substantive basis for his conclusion.” Garrison, 759 F.3d at 1012-13.

9

Moreover, with respect to Dr. Fiore’s statements concerning whether plaintiff has had a

10

brain impairment since birth and her inability to “hold a job,” although it is not clear from the

11

ALJ’s opinion, Dr. Fiore actually made two separate statements in response to two separate

12

portions of the Mental Residual Functional Capacity Questionnaire. In this regard, when asked to

13

explain plaintiff’s limitations in her abilities and aptitude to do particular job types, Dr. Fiore

14

responded that plaintiff “has a brain impairment since birth impacting job performance, mental

15

health and daily living expectations.” (Tr. at 611.) A later question asks Dr. Fiore to estimate

16

how often plaintiff’s impairments would cause her to be absent from work, and Dr. Fiore

17

responded that plaintiff “probably couldn’t hold a job due to disabilities afore mentioned.” (Tr. at

18

612.) Although evidence that plaintiff has held a job would certainly be inconsistent with Dr.

19

Fiore’s assertion that plaintiff could not hold a job due to her disabilities, it is not inconsistent

20

with Dr. Fiore’s opinion that plaintiff has had a brain impairment since birth nor is it a specific

21

and legitimate reason supported by substantial evidence in the record for discrediting Dr. Fiore’s

22

entire opinion.

23

Accordingly, for the reasons stated above, the court finds that the ALJ’s treatment of the

24

medical opinion evidence constituted error. Plaintiff is, therefore, entitled to relief with respect to

25

this claim.

26

II.

27
28

Subjective Testimony
The Ninth Circuit has summarized the ALJ’s task with respect to assessing a claimant’s

credibility as follows:
10

1
2
3
4
5
6

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.

7
8
9

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 . . . .

10

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

11

omitted). “The clear and convincing standard is the most demanding required in Social Security

12

cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At

13

the same time, the ALJ is not required to believe every allegation of disabling pain, or else

14

disability benefits would be available for the asking . . . .” Molina v. Astrue, 674 F.3d 1104, 1112

15

(9th Cir. 2012).

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27
28

Here, the ALJ’s decision fails to identify what portions of plaintiff’s testimony were
credible and what portions of testimony undermined her complaints. The ALJ’s decision does
11

1

recount plaintiff’s testimony, including her testimony that she “cannot walk one hour; sit for 4

2

hours . . . is unable to stand for 30 minutes at a time,” and “lies down 3-4 hours at a time.” (Tr. at

3

22-23.) However, the ALJ’s decision then rejects plaintiff’s testimony by stating simply that

4

although plaintiff’s “medically determinable impairments could reasonably be expected to cause

5

the alleged symptoms” plaintiff’s “statements concerning the intensity, persistence and limiting

6

effects of those symptoms are not credible to the extent they are inconsistent with” the ALJ’s

7

residual functional capacity assessment. (Id. at 24.) In this regard, the ALJ’s decision does not

8

provide a clear and convincing reason for rejecting plaintiff’s subjective testimony regarding her

9

symptoms.

10

Accordingly, plaintiff is also entitled to summary judgment in her favor with respect to

11

this claim as well.

12

III.

13

Complete Hypothetical
Plaintiff also argues that in determining that she was able to perform past relevant work

14

the ALJ relied on the testimony of the Vocational Expert (“VE”) that was provided in response to

15

an inadequate hypothetical question which failed to account for all of plaintiff’s limitations. ECF

16

No. 13 at 12.

17

While an ALJ may pose a range of hypothetical questions to a VE based on alternate

18

interpretations of the evidence, the hypothetical question that ultimately serves as the basis for the

19

ALJ’s determination, i.e., the hypothetical question that is predicated on the ALJ’s final RFC

20

assessment, must account for all of the limitations and restrictions of the particular claimant.

21

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). “If an ALJ’s

22

hypothetical does not reflect all of the claimant’s limitations, then the expert’s testimony has no

23

evidentiary value to support a finding that the claimant can perform jobs in the national

24

economy.” Id. (citation and quotation marks omitted). See also Taylor v. Commissioner of

25

Social Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) (“Because neither the hypothetical nor

26

the answer properly set forth all of Taylor’s impairments, the vocational expert’s testimony

27

cannot constitute substantial evidence to support the ALJ’s findings.”); Palomares v. Astrue, 887

28

F.Supp.2d 906, 919 (N.D. Cal. 2012) (“Since the analysis of RFC was flawed and not based on
12

1

the whole record, the VE’s testimony based thereon has no evidentiary value, and the ALJ’s

2

finding that Mr. Palomares can perform his previous work is not based on substantial evidence in

3

the whole record.”); cf. SSR 83-14 (“Any limitation on these functional abilities must be

4

considered very carefully to determine its impact on the size of the remaining occupational base

5

of a person who is otherwise found functionally capable of light work.”).

6

Here, because the ALJ erroneously rejected the opinions of PAC Holmquist, Dr. Fiore,

7

Dr. McGree-William and plaintiff’s own subjective testimony the hypothetical question posed by

8

the ALJ to the VE did not include all the limitations indicated by that evidence. (Tr. at 100-04.)

9

Because the ALJ’s hypothetical question to the VE did not reflect all of plaintiff’s limitations, the

10

ALJ could not properly rely on the VE’s testimony to make the determination that plaintiff was

11

able to perform past relevant work. See Bray, 554 F.3d at 1228 (“If an ALJ’s hypothetical does

12

not reflect all of the claimant’s limitations, then the expert’s testimony has no evidentiary value to

13

support a finding that the claimant can perform jobs in the national economy.”); Werthy v.

14

Astrue, 882 F.Supp.2d 1202, 1235 (D. Or. 2011) (“The ALJ’s hypothetical question to the VE,

15

although consistent with the ALJ’s RFC assessment, failed to include all of Werthy’s limitations

16

and restrictions. The ALJ therefore could not rely on the VE’s testimony to make a determination

17

that Werthy is able to work.”); see also Robbins v. Social Sec. Admin., 466 F.3d 880, 886 (9th

18

Cir. 2006) (in posing a hypothetical to VE “an ALJ is not free to disregard properly supported

19

limitations”).

20

Accordingly, the court finds that plaintiff is also entitled to summary judgment in her

21

favor with respect to her claim that the ALJ failed to pose a legally adequate hypothetical

22

question to the VE.

23

SCOPE OF REMAND

24

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

25

benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded

26

under the “credit-as-true” rule for an award of benefits where:

27
28

(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has
failed to provide legally sufficient reasons for rejecting
13

1

evidence, whether claimant testimony or medical opinion; and
(3) if the improperly discredited evidence were credited as true,
the ALJ would be required to find the claimant disabled on
remand.

2
3
4

Garrison, 759 F.3d at 1020. Even where all the conditions for the “credit-as-true” rule are met,

5

the court retains “flexibility to remand for further proceedings when the record as a whole creates

6

serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social

7

Security Act.” Id. at 1021. See also Treichler v. Commissioner of Social Sec. Admin., 775 F.3d

8

1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ makes a legal error, but the record is uncertain

9

and ambiguous, the proper approach is to remand the case to the agency.”).
Here, although the ALJ committed several significant errors, it is also true that the nature

10
11

of the ALJ’s errors renders a considerable amount of evidence unevaluated and that the record

12

contains conflicting evidence as to whether or not plaintiff is in fact disabled. Accordingly, this

13

matter will be remanded for further proceedings.
On remand, the ALJ shall consider and evaluate the opinions of Dr. McGee-Williams and

14
15

Dr. Fiore and provide specific and legitimate reasons supported by substantial evidence in the

16

record, if any portion of those opinions are discredited. The ALJ shall also consider plaintiff’s

17

subjective testimony and, if any portion of plaintiff’s testimony is found to be not credible, the

18

ALJ shall provide clear and convincing reasons. Finally, the ALJ shall also consider the opinion

19

of PAC Holmquist and, if that opinion is rejected, the ALJ shall provide a germane reason for

20

doing so. If the ALJ receives testimony from a VE the ALJ shall ensure that the VE’s

21

hypothetical question accounts for all of plaintiff’s limitations.
CONCLUSION

22

Accordingly, IT IS HEREBY ORDERED that:

23
24

1. Plaintiff’s motion for summary judgment (ECF. No. 13) is granted;

25

2. Defendant’s cross-motion for summary judgment (ECF. No. 14) is denied;

26

3. The Commissioner’s decision is reversed for the reasons indicated above; and

27

////

28

////
14

1
2

4. This matter is remanded for further proceedings consistent with this order.
DATED: March 8, 2016

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15