Thomas v. Commissioner of Social Security

Filing 21

ORDER signed by Magistrate Judge Deborah Barnes on 3/26/2018 GRANTING IN PART and DENYING IN PART 17 Motion for Summary Judgment, GRANTING IN PART and DENYING IN PART 19 Cross-Motion for Summary Judgment, REVERSING the Commissioner's decision and REMANDING Case for further proceedings consistent with this order. CASE CLOSED. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NATASHIA I. THOMAS,

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Plaintiff,

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No. 2:16-cv-2060 DB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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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.1

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Plaintiff’s motion argues that the Administrative Law Judge erred by failing to address Listing

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12.09, by rejecting plaintiff’s testimony, and with respect to the treatment of the medical opinion

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evidence. For the reasons explained below, plaintiff’s motion is granted in part and denied in

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

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matter is remanded for further proceedings consistent with this order.

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Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant
to 28 U.S.C. § 636(c). (See ECF Nos. 6 & 8.)
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PROCEDURAL BACKGROUND
In May of 2012, plaintiff filed applications for Disability Insurance Benefits (“DIB”)

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under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income

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(“SSI”) under Title XVI of the Act alleging disability beginning on August 30, 2008. (Transcript

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(“Tr.”) at 17, 246-60.) Plaintiff’s applications were denied initially, (id. at 143-47, 149-54), and

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upon reconsideration. (Id. at 156-62.)

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

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Judge (“ALJ”) on August 28, 2014. (Id. at 39-75.) Plaintiff was represented by an attorney and

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testified at the administrative hearing. (Id. at 39-41.) In a decision issued on March 13, 2015, the

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ALJ found that plaintiff was not disabled. (Id. at 28.) The ALJ entered the following findings:
1. The claimant last met the insured status requirements of the
Social Security Act on March 31, 2009.
2. The claimant has not engaged in substantial gainful activity
since August 30, 2008, the alleged onset date (20 CFR 404.1571 et
seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: lumbar
scoliosis, carpal tunnel syndrome, bipolar disorder, and social
anxiety disorder (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 she can occasionally climb ladders, ropes and
scaffolds, stoop, kneel, crouch, crawl. She can frequently climb
ramps and stairs, and balance. She is able to understand, remember
and carry out very short and simple instructions, maintain attention
for 2-hours (sic) segments, maintain regular attendance and be
punctual within customary tolerances, sustain an ordinary routine
without special supervision, work in coordination with or proximity
to others without being unduly distracted by them, make simple
work-related decisions and complete a normal workday and
workweek without interruption from psychologically based
systems, perform at a consistent pace without an unreasonable
number and length of rest periods, ask simple questions or request
assistance, accept instructions and respond appropriately to
criticism from supervisors, get along with coworkers or peers
without unduly distracting them or exhibiting behavioral extremes,
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respond appropriately to changes in a routine work setting, and be
aware of normal hazards and take appropriate precautions. She
must avoid concentrated exposure to dust, fumes, odors, and
pulmonary irritants.

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6. The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).

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7. The claimant was born on October 16, 1980 and was 27 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).

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8. The claimant has a limited education and is able to communicate
in English (20 CFR 404.1564 and 416.964).

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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
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, 404.1569(a), 416.969, and 416.969(a)).

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11. The claimant has not been under a disability, as defined in the
Social Security Act, from August 30, 2008, through the date of this
decision (20 CFR 404.1502(g) and 416.920(g)).

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(Id. at 19-28.)
On July 18, 2016, the Appeals Council denied plaintiff’s request for review of the ALJ’s

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March 13, 2015 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 August 27, 2016. (ECF No. 1.)

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LEGAL STANDARD
“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).

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

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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).

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APPLICATION
Plaintiff’s pending motion asserts the following three principal claims: (1) the ALJ erred

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by failing to consider Listing 12.09; (2) the ALJ improperly rejected plaintiff’s testimony; and (3)

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the ALJ’s treatment of the medical opinion evidence constituted error. (Pl.’s MSJ (ECF No. 17)

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at 16-21.2)

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Page number citations such as this one are to the page number reflected on the court’s CM/ECF
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I.

Listing 12.09
At step three of the sequential evaluation, the ALJ must determine whether a claimant’s

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impairment or impairments meet or equal one of the specific impairments set forth in the Listings.

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20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The physical and mental conditions

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contained in the Listings are considered so severe that “they are irrebuttably presumed disabling,

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without any specific finding as to the claimant’s ability to perform his past relevant work or any

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other jobs.” Lester, 81 F.3d at 828. The Listings were “designed to operate as a presumption of

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disability that makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990);

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see also Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). If a claimant shows that his

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impairments meet or equal a Listing, he will be found presumptively disabled. 20 C.F.R. §§

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404.1525-404.1526, 416.925-416.926.

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The claimant bears the burden of establishing a prima facie case of disability under the

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Listings. See Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). To “meet” a listed

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impairment, the claimant must establish that his condition satisfies each element of the listed

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impairment. See Zebley, 493 U.S. at 530; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999).

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To “equal” a listed impairment, the claimant “must establish symptoms, signs, and laboratory

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findings” at least equal in severity and duration to each element of the listed impairment. Id.

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Listing 12.09 is unusual in that it is a reference listing which serves “to indicate which of

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the other listed mental or physical impairments must be used to evaluate the behavioral or

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physical changes resulting from regular use of addictive substances.” 20 C.F.R., Pt. 404, Subpt.

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P, App. 1, § 12.00. One of the other listings referenced by Listing 12.09, is Listing 11.14. Id.

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Here, plaintiff specifically argues that the ALJ failed to consider Listing 12.09 by failing to

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consider Listing 11.14. (Pl.’s MSJ (ECF No. 17) at 16-17.)

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A. Reference to Listing 11.14
Listing 11.14 concerns peripheral neuropathies and, at the time of the ALJ’s decision,
pointed to “disorganization of motor function as described in 11.04B, in spite of prescribed

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system and not to page numbers assigned by the parties.
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treatment.”3 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.14 (Jan. 2, 2015). Listing 11.04B was

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satisfied where there was “[s]ignificant and persistent disorganization of motor function in two

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extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and

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station.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.04B (Jan. 2, 2015). “Persistent

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disorganization of motor function” is defined as “paresis or paralysis, tremor or other involuntary

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movements, ataxia and sensory disturbances . . . which occur singly or in various combinations . .

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. . The assessment of impairment depends on the degree of interference with locomotion and/or

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interference with the use of fingers, hands, and arms.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §

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11.00C (Jan. 2, 2015).

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In this regard, to establish disability pursuant to Listing 11.14, plaintiff must have

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demonstrated: (1) disorganization in motor function; (2) in two extremities; (3) resulting in

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sustained disturbance of: (a) gross and dexterous movements; or (b) gait and station; and (4) the

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disorganized motor function is persistent or sustained, in spite of treatment.
Here, the ALJ’s decision revealed that plaintiff had a history of regular use of addictive

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substances. (Tr. at 19-20, 23-24.) Moreover, plaintiff testified that she “can’t hold things,”

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continuously drops things, and had “fumbly fingers.” (Id. at 50.) The record reveals that plaintiff

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complained of “[n]umbness and tingling bilateral hands and wrists,” and was diagnosed with

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neuropathy. (Id. at 727.) An August 27, 2014, nerve conduction study found “evidence of

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bilateral severe median neuropathy at the wrists.” (Id. at 762.) Medical opinion evidence opined

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that plaintiff could not feel with either hand. (Id. at 767.)

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B. ALJ’s Failure to Consider Listing 12.09 and 11.14

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Despite the presence of this evidence, the ALJ’s decision makes no mention of Listing

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11.14 or Listing 12.09. “An ALJ must evaluate the relevant evidence before concluding that a

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claimant’s impairments do not meet or equal a listed impairment.” Lewis, 236 F.3d at 512 (citing

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Social Security Regulations define peripheral neuropathy as a disorder that “results when the
kidneys do not adequately filter toxic substances from the blood. These toxins can adversely
affect nerve tissue. The resulting neuropathy may affect peripheral motor or sensory nerves, or
both, causing pain, numbness, tingling, and muscle weakness in various parts of the body.” 20
C.F.R. § Pt. 404, Subpt. P, App. 1.
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Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (“We hold that, in determining whether a

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claimant equals a listing under step three of the Secretary’s disability evaluation process, the ALJ

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must explain adequately his evaluation of alternative tests and the combined effects of the

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impairments.”)).
Moreover, an “ALJ must provide a discussion of the evidence and an explanation of

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reasoning for his conclusion sufficient to enable meaningful judicial review.” Diaz v.

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Commissioner of Social Sec., 577 F.3d 500, 504 (3rd Cir. 2009) (quotation omitted); see also

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Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“The ALJ’s decision regarding the

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applicability of Listing 1.04A is devoid of reasoning. . . . This insufficient legal analysis makes it

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impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ’s

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findings.”).

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Accordingly, the court finds that plaintiff is entitled to summary judgment with respect to

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the claim that the ALJ erred at step three of the sequential evaluation by failing to consider

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Listing 12.09.

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II.

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

credibility as follows:
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 . . . .

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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). “The clear and convincing standard is the most demanding required in Social Security
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cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At

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

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

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(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. Commissioner Social Sec. Admin., 574

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F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,

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599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other

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things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s]

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

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

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

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

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(9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the

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

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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 entirely credible for the

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reasons explained in” the ALJ’s decision. (Tr. at 23.) Plaintiff argues that the ALJ rejected

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plaintiff’s testimony simply because it was not supported by medical evidence and because it was

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inconsistent with her activities of daily living. (Pl.’s MSJ (ECF No. 17) at 17-20.) Plaintiff’s

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characterization of the ALJ’s findings, however, is inaccurate.

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In this regard, it is true that “after a claimant produces objective medical evidence of an

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underlying impairment, an ALJ may not reject a claimant’s subjective complaints based solely on

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a lack of medical evidence to fully corroborate the alleged severity.” Burch v. Barnhart, 400 F.3d

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676, 680 (9th Cir. 2005). Here, however, the ALJ did not reject plaintiff’s testimony based on a

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lack of evidence to corroborate, but instead upon “clinical indications” that were “inconsistent”

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with plaintiff’s testimony. (Tr. at 23.) Inconsistency is a permissible reason to discredit
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subjective complaint. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (“These

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inconsistencies [lab reports contradicting plaintiff’s subjective complaint] constitute significant

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and substantial reasons to find Parra’s testimony less than completely credible.”).
Moreover, the ALJ also rejected plaintiff’s testimony because the record revealed that

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plaintiff had made “numerous claims of being ‘clean’ even though she was not.” (Tr. at 24.) The

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ALJ’s decision discussed, at length, the numerous false claims. (Id.) The ALJ noted that this

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finding suggests that plaintiff may have “not been entirely candid with her medical providers and

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they in turn may have relied on her misstatements in the course of providing treatment.” (Id.)

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The ALJ also rejected plaintiff’s testimony because of “significant gaps in treatment.”

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(Id.) The ALJ’s decision specifically noted that plaintiff “sought no primary care treatment

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between December 8, 2008, and June 28, 2010.” (Id.) And that plaintiff “sought no outpatient

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mental health treatment since March 7, 2013,” and “attended no clinic visits between August

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2013 and January 1, 2014.” (Id.)

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Inconsistent statements and a lack of treatment are each permissible reasons to reject a

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plaintiff’s testimony. See Burch, 400 F.3d at 681 (“The ALJ is permitted to consider lack of

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treatment in his credibility determination.”); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th

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Cir. 1997) (“In weighing a claimant’s credibility, the ALJ may consider [her] reputation for

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truthfulness, inconsistencies either in [her] testimony or between [her] testimony and [her]

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conduct, [her] daily activities, [her] work record, and testimony from physicians and third parties

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concerning the nature, severity, and effect of the symptoms of which [she] complains.”).

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For the reasons stated above, the court finds that the ALJ provided clear and convincing

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reasons for rejecting plaintiff’s testimony. Accordingly, plaintiff is not entitled to summary

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judgment on the claim that the ALJ’s treatment of the subjective testimony constituted error.

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III.

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Medical Opinion Evidence
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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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 v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894

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F.2d 1059, 1063 (9th Cir. 1990).

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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.) Finally, although a

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

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accept the opinion of any physician, including a treating physician, if that opinion is brief,

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conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661,

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671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.

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2009)).

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A.

Dr. Ronald Chambers

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In a vague and conclusory manner, plaintiff argues that the ALJ “gave no consideration to

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the opinions expressed by Dr. Chambers, and mischaracterized the record of [plaintiff’s]

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treatment frequency.” (Pl.’s MSJ (ECF No. 17) at 20.) Plaintiff, however, does not provide any

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explanation as to what opinion Dr. Chambers allegedly provided. Moreover, the citation to the

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record provided by plaintiff is not to an opinion but instead to treatment records. See Orn v.

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Astrue, 495 F.3d 625, 634 (9th Cir. 2007) (“The primary function of medical records is to

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promote communication and recordkeeping for health care personnel—not to provide evidence

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for disability determinations.”); Reddick, 157 F.3d at 725 (“In disability benefits cases such as

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this, physicians may render medical, clinical opinions, or they may render opinions on the

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ultimate issue of disability—the claimant’s ability to perform work.”).

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Accordingly, the court finds no error with respect to this claim.

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B.

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Dr. Herbert Monie
On February 26, 2014, Dr. Monie completed a Welfare-to-Work Exemption Request

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form. (Tr. at 755-56.) As noted by the ALJ’s decision, plaintiff’s “allegations would find support

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in the opinion of” Dr. Monie. (Id. at 26.) In this regard, Dr. Monie opined that plaintiff “had

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chronic conditions that precluded the claimant from working more than 2 hours per day, 4 days

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per week.” (Id.)
The ALJ afforded “little weight” to Dr. Monie’s opinion, stating:

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… Dr. Monie examined the claimant on merely one occasion in
February 2014 in order to get the form completed. Thus, no
treating relationship was established. Moreover, his examination
included no abnormal findings. Thus, this opinion appears to be
based solely on this claimant’s subjective complaints rather than on
any objective findings.4 While his opinion took into account the
fact that she was attending weekly NA/AA meeting (sic), his
opinion does not take into account her substance abuse.

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(Tr. at 26.)

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Dr. Monie, however, had actually treated plaintiff on more than one occasion. See

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Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994) (treating physician despite only two

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visits over 14 months). In this regard, Dr. Monie treated plaintiff on February 20, 2013. (Tr. at

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749-50.) Dr. Monie’s notes from that examination reflect that plaintiff was treated for social

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anxiety, Dr. Monie discussed plaintiff’s use of methamphetamine and marijuana, and diagnosed

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plaintiff as suffering from social anxiety, mood disorder, and amphetamine abuse in remission.

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(Id.)

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In this regard, the court finds that the ALJ failed to offer a specific and legitimate, let

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alone clear and convincing, reason supported by substantial evidence in the record for rejecting

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Dr. Monie’s opinion.

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C.

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On June 4, 2014, Dr. McMullin completed a Welfare-to-Work Exemption Request form.

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(Tr. at 758-59.) Therein, Dr. McMullin opined that plaintiff could work 3 hours per day, 5 days

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Dr. Douglas McMullin

“Mental disorders cannot be ascertained and verified as are most physical illnesses, for the
mind cannot be probed by mechanical devices in order to obtain objective clinical manifestations
of mental illness.” Hartman v. Bowen, 636 F.Supp. 129, 132 (N.D. Cal. 1986).
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per week, stand no more than 15 minutes, was unable to perform any lifting or bending, and was

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prone to anger, outbursts and confrontations. (Id.)
The ALJ afforded Dr. McMullin’s opinion “little weight.” (Id. at 26.) In support of this

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determination, the ALJ noted that there were “few objective findings” to support Dr. McMullin’s

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opinion. (Id.) In this regard, the ALJ noted that despite opining that plaintiff’s “bipolar disorder

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limited her ‘to some degree,’” Dr. McMullin did not refer plaintiff for mental health treatment.

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(Id. at 26-27.) Moreover, although Dr. McMullin opined that plaintiff’s back pain impaired her

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ability to lift and bend, Dr. McMullin “did not prescribe any pain medications, specialty referrals,

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chiropractic adjustments, physical therapy, steroid injections, medical imagery, or any other

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alternative measure to control her back pain.” (Id. at 27.)

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These are clear and convincing reasons supported by substantial evidence in the record for

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rejecting Dr. McMullin’s opinion. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001)

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(ALJ reasonably discounted a treating physician’s opinion where conservative treatment was

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inconsistent with symptoms one would expect if claimant was disabled). Thus, the court finds no

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error with respect to this claim.
Accordingly, plaintiff’s motion for summary judgment is granted on the claim that the

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ALJ’s treatment of Dr. Monie’s opinion was erroneous, but denied as to the claim that the ALJ

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erred with respect to the treatment of the opinions of Dr. Chambers and Dr. McMullin.

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CONCLUSION

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After having found error, “‘[t]he decision whether to remand a case for additional

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evidence, or simply to award benefits[,] is within the discretion of the court.’” Trevizo v.

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Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232

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(9th Cir. 1987)). A case may be remanded under the “credit-as-true” rule for an award of benefits

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where:

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(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 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.
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Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the

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“credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when

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the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within

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the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d

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403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative

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proceedings would serve no useful purpose, it may not remand with a direction to provide

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benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir.

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2014) (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the

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proper approach is to remand the case to the agency.”).

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Here, as reflected by the mixed findings on summary judgment, the court cannot find that

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further administrative proceedings would serve no useful purpose. This matter will, therefore, be

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remanded for further proceedings.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 17) is granted in part and denied in

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part;
2. Defendant’s cross-motion for summary judgment (ECF No. 19) is granted in part and
denied in part;

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3. The Commissioner’s decision is reversed; and

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

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Dated: March 26, 2018

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DLB:6
DB\orders\orders.soc sec\thomas2060.ord

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