Austin v. Astrue

Filing 25

ORDER by Judge Edward M. Chen Granting 13 Plaintiff's Motion for Summary Judgment; Denying 21 Defendant's Cross-Motion for Summary Judgment; and Remanding for Additional Proceedings. (emcsec, COURT STAFF) (Filed on 5/9/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RODNEY AUSTIN,

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For the Northern District of California

United States District Court

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No. C-12-3349 EMC

Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,

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Defendant.
___________________________________/

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT; DENYING DEFENDANT’S
CROSS-MOTION FOR SUMMARY
JUDGMENT; AND REMANDING FOR
ADDITIONAL PROCEEDINGS
(Dockets Nos. 13, 21)

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On February 26, 2010, Plaintiff Rodney Austin filed an application for Supplemental

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Security Income (“SSI”) benefits, alleging disability beginning October 27, 1994. His claim was

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denied. Mr. Austin has exhausted his administrative remedies with respect to his claim of disability.

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This Court has jurisdiction to review the administrative decision pursuant to 42 U.S.C. § 405(g).

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Mr. Austin has moved for summary judgment or, in the alternative, a remand for additional

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proceedings. The Commissioner has cross-moved for summary judgment. Having considered the

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parties’ briefs and accompanying submissions, the Court hereby GRANTS Mr. Austin’s motion for

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summary judgment and DENIES the Commissioner’s motion.

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I.

FACTUAL & PROCEDURAL BACKGROUND

In February of 2010, Mr. Austin filed an application for SSI benefits, alleging disability as of

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October 27,1994, due to combined mental and physical impairments. See AR 112-19 (Application

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and Amendments to Application). Mr. Austin’s application was initially denied on September 29,

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2010. See AR 54-57 (Notice of Disapproved Claims). Subsequently, his request for reconsideration

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was denied on January 18, 2011. See AR 61-66 (Notice of Reconsideration). Mr. Austin requested

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a hearing before an Administrative Law Judge (“ALJ”). See AR 82 (Request for Hearing by ALJ).

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A hearing was conducted before an ALJ on October 3, 2011. See AR 31-48 (Hearing Transcript).

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On October 26, 2011, the ALJ held that Mr. Austin was not disabled under the Section

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1614(a)(3)(A) of the Social Security Act. See AR 25. The ALJ evaluated Mr. Austin’s disability

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claim using the five-step sequential evaluation process required under 20 C.F.R. §§ 404.1520 and

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416.920.

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Step one disqualifies claimants who are engaged in substantial gainful
activity from being considered disabled under the regulations. Step
two disqualifies those claimants who do not have one or more severe
impairments that significantly limit their physical or mental ability to
conduct basic work activities. Step three automatically labels as
disabled those claimants whose impairment or impairments meet the
duration requirement and are listed or equal to those listed in a given
appendix. Benefits are awarded at step three if claimants are disabled.
Step four disqualifies those remaining claimants whose impairments
do not prevent them from doing past relevant work considering the
claimant’s age, education, and work experience together with the
claimant’s residual functional capacity (“RFC”), or what the claimant
can do despite impairments. Step five disqualifies those claimants
whose impairments do not prevent them from doing other work, but at
this last step the burden of proof shifts from the claimant to the
government. Claimants not disqualified by step five are eligible for
benefits.
Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003).
At step one, the ALJ found that Mr. Austin has not engaged in substantial gainful activity

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since his disability application on February 26, 2010. See AR 18 (ALJ decision). At step two, the

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ALJ concluded that Mr. Austin suffers from several severe impairments including degenerative disc

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disease of the thoracic and lumbar spine, left ankle osteopenia, obesity, depression, and

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posttraumatic stress disorder (PTSD). See AR 18. With respect to step three, the ALJ determined

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that Mr. Austin does not have an impairment or combination of impairments that meets or medically

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equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. See

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AR 18-19. At step four, the ALJ found that Mr. Austin possesses the residual functional capacity

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(“RFC”) to perform sedentary work, as defined in 20 CFR 416.967(a) with the following

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modifications: can lift 20 pounds, can sit for six hours in an eight-hour day, can stand and walk for

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two hours in an eight-hour day, and can do simple repetitive tasks. See AR 20. Although the ALJ

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determined that Mr. Austin’s medically determinable impairments could reasonably be expected to

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cause the alleged symptoms, the ALJ also found that Mr. Austin’s statements regarding the intensity,

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persistence, and limiting effects of his symptoms were not credible to the extent that they conflicted

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with an RFC for sedentary work. See AR 21. In so finding, the ALJ relied on statements by Mr.

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Austin’s treating psychiatrist, Dr. James Dotson, and a nurse practitioner that indicated potential

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malingering, as well as Mr. Austin’s failure to comply with prescribed treatments. See id. Further,

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the ALJ discredited opinions by Mr. Austin’s treating physician Dr. Diana Coffa and a consulting

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psychiatrist Dr. Jena Al-Mufti. See AR 22-23. The ALJ determined that both Dr. Coffa and Dr.

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Al-Mufti had uncritically relied on Mr. Austin’s unconvincing subjective statements and found their
respective opinions unpersuasive. See id. At step five, the ALJ found that Mr. Austin has no past

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relevant work; however, after consulting with a vocational expert, the ALJ ultimately determined

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that Mr. Austin’s RFC, age, education, and work experience allow him to participate in work that

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exists in significant numbers in the national economy. See AR 23-24.

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Thereafter, Mr. Austin appealed the ALJ’s decision. The Appeals Council denied the appeal
on May 4, 2012. AR 1. Mr. Austin then requested review in this Court. Docket No. 1.
II.

DISCUSSION

A court may set aside the Commissioner’s denial of benefits if it is not supported by

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substantial evidence or if it is based on legal error. See Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). Substantial evidence is relevant evidence that a reasonable mind might accept as

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adequate to support a conclusion, and it requires more than a scintilla, but less than a preponderance

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of evidence. Id. In determining whether substantial evidence supports the Commissioner’s

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decision, the Court reviews the administrative record as a whole. Id. Where the evidence is

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susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed. Andrews

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v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995).

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In the instant case, Mr. Austin contends that the ALJ erred for three reasons: (1) the ALJ

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erroneously discredited Mr. Austin’s statements regarding the severity of his symptoms; (2) the ALJ

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improperly rejected the opinion of Mr. Austin’s treating physician, Dr. Coffa; and (3) the ALJ

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incorrectly rejected the opinion of Mr. Austin’s consulting psychiatrist, Dr. Al-Mufti. See Plaintiff’s

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Motion for Summary Judgment, Docket 13, at 4-14 (“Plaintiff’s Motion”). Each of these

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contentions is addressed below.

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A.

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Mr. Austin’s Credibility
First, Mr. Austin argues that the ALJ did not cite sufficient evidence to discredit Mr. Austin

determination with sufficiently specific findings such that a court can conclude that the ALJ did not

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arbitrarily discredit the claimant’s testimony. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

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2002). “In weighing a claimant’s credibility, the ALJ may consider [the claimant’s] reputation for

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truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his

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daily activities, his work record, and testimony from physicians and third parties concerning the

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when all of the evidence is considered. See id. at 11. The ALJ must make a credibility

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United States District Court

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nature, severity, and effect of the symptoms of which he complains.” Light v. SSA, 119 F.3d 789,

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792 (9th Cir. 1997). The ALJ may also consider an “unexplained, or inadequately explained, failure

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to . . . follow a prescribed course of treatment.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). .

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“[I]f the ALJ’s credibility finding is supported by substantial evidence in the record,” the Court

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“may not engage in second-guessing.” Thomas, 278 F.3d at 959.

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Here, the issue is whether the ALJ properly discredit Mr. Austin’s reports of pain and related

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symptoms. In evaluating the credibility of a claimant’s subjective reports of pain or other

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symptoms, an ALJ follows a two step process. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th

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Cir. 2007). First, the ALJ must determine whether the record contains objective medical evidence of

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an underlying impairment “which could reasonably be expected to produce the pain or other

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symptoms alleged.” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991). The plaintiff need not

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show that the impairment could reasonably be expected to produce the severity of symptom

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reported, only that it could reasonably have caused the type of symptom reported. Lingenfelter, 504

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F.3d at 1036 (citing Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.1996)).

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Where the claimant meets this first test, the ALJ must then consider whether there is

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affirmative evidence of malingering. Lingenfelter, 504 F.3d at 1036. If there is not, “the ALJ must

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provide clear and convincing reasons for rejecting the claimant’s testimony regarding the severity of

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symptoms.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). On the other hand, where

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there is affirmative evidence of malingering, the ALJ need not meet the clear and convincing

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evidence standard. See Flores v. Comm’r of Soc. Sec., 237 F. App’x 251, 252 (9th Cir. 2007); see

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also Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (holding that if

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there exists affirmative evidence of malingering, the general requirement that the ALJ provide clear

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and convincing reasons for an adverse credibility finding does not apply).

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In this case, the ALJ found that there was objective medical evidence establishing that Mr.

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Austin had degenerative disc disease of the thoracic and lumbar spine, left ankle osteopenia,

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depression and PTSD. AR 18. The ALJ further found that “the claimant’s medically determinable

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impairments could reasonably be expected to cause the alleged symptoms.” AR 21. The next

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inquiry is thus whether there is affirmative evidence of malingering in the record.
Though the ALJ did not make an explicit finding of malingering, this is not required. See

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Carmickle, 533 F.3d at 1160 n.1. The ALJ did identify affirmative evidence of malingering in the

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record, which is sufficient. Id. In particular, the ALJ highlighted various encounters between Mr.

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Austin and his physicians that call into question the validity of Mr. Austin’s subjective symptom

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reports. See AR 21-23. For example, the ALJ referred to reports from Dr. Dotson wherein the

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doctor stated that Mr. Austin was “observed to walk quickly down the hall without any obvious

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discomfort” and that Mr. Austin “does not present clinically like someone who is disabled.” See AR

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21. Similarly, the ALJ cited an encounter in August 2010, during which Dr. Roy Johnson, Mr.

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Austin’s psychologist, observed Mr. Austin walking extremely slowly to his appointment but

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walking at a more rapid pace after he left the office. See id. Dr. Johnson then observed Mr. Austin

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running halfway across an intersection to wait for traffic at the median. See id.

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Furthermore, the ALJ cited Dr. Dotson’s observations that Mr. Austin repeatedly has “a

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normal affect and conversational tone in the reception area, which drastically changes for the worse

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when he is interacting with Dr. Dotson in the office.” See id. The ALJ also noted that Mr. Austin

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reported seeing munchkins, which Dr. Dotson opined was not consistent with any mental illness.

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See AR 22-23. Finally, the ALJ pointed to statements from various treating and examining

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physicians indicating potential malingering by Mr. Austin. See AR 21. Dr. Dotson stated that Mr.

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Austin “may be exaggerating his symptoms for secondary gain,” and Dr. Johnson opined that “any

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psychiatric diagnosis is contaminated by the claimant’s lack of cooperation and misleading

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information provided.” See id. Similarly, a nurse practitioner at San Francisco General Hospital

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indicated that Mr Austin was participating in exaggerated pain behavior. See id.

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Mr. Austin contends that while the ALJ may have justifiably found some of Mr. Austin’s

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statements not credible, the ALJ did not provide sufficiently specific, clear, and convincing reasons

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for disbelieving his testimony when the entire record is considered. See Plaintiff’s Motion at 10-12.

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Since the record contains affirmative evidence of malingering with regards to both physical and

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psychological symptoms, however, the ALJ’s opinion need not establish clear and convincing

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reasons for concluding that Mr. Austin’s subjective complaints were not credible. See Carmickle,

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533 F.3d at 1160.
Mr. Austin specifically challenges the ALJ’s interpretation of various facts in the record

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indicating malingering. Mr. Austin contends that the “linchpin” of the ALJ’s argument, that Mr.

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Austin “was noted to only episodically use his cane for ambulation when distracted by his cell

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phone,” is not dispositive because there could be multiple explanations for this behavior besides

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malingering. See Pl.’s Mot. at 11-12. Furthermore, Mr. Austin argues that numerous justifications

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consistent with a finding of disability could explain his increased pace as he crossed the street. See

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AR 12. Finally, Mr. Austin maintains that neither Dr. Dotson, a psychiatrist, nor Dr. Johnson, a

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psychologist, specializes in spine, orthopedic, or pain problems, making their observations less

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persuasive. See id. While it is true that there could be multiple explanations for Mr. Austin’s

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behavior in these incidents, the ALJ’s interpretation of this evidence is a rational one, and thus owed

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deference. Magallanes, 881 F.2d at 750 (courts “must uphold the ALJ’s decision where the

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evidence is susceptible to more than one rational interpretation.”); see also Sandgathe v. Chater, 108

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F.3d 978, 980 (9th Cir. 1997) (same). Further, the ALJ points to a number of additional facts in the

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record that provide affirmative evidence of malingering, such as his nurse practitioner’s statements

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of exaggerated pain behavior, and Dr. Dotson’s statements that Mr. Austin may have been

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exaggerating his symptoms for secondary gain. AR 21, 233, 261. This Court thus finds that there

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was affirmative and substantial evidence of malingering in the record, and that the ALJ thus did not

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need to cite to clear and convincing reasons for rejecting Mr. Austin’s testimony about the extent of

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his symptoms as not credible. Carmickle, 533 F.3d at 1160.

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In this case, the ALJ made a number of specific factual findings in support of his finding that

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Mr. Austin was not credible. See AR 21. In addition to the evidence of malingering discussed

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above, the ALJ pointed out that Mr. Austin “refuses to cooperate with the court mandated

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psychologist” and “takes medications that are not prescribed by his physician.” Id. Moreover, Mr.

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Austin “has not been fully compliant with his psychiatric medication regime.” Id. Next, the ALJ

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cited inconsistencies between Mr. Austin’s hearing testimony and his medical records regarding his

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reported alcohol use. See id. Based on these factors, the ALJ rejected Mr. Austin’s testimony about
the extent of his symptoms “to the extent they are inconsistent with the . . . residual functional

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capacity assessment.” AR 21. The ALJ’s opinion considered many of the permissible factors for

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weighing a claimant’s credibility including Mr. Austin’s failure to follow prescribed treatments, Mr.

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Austin’s reputation for truthfulness, inconsistencies in Mr. Austin’s testimony, and statements from

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Mr. Austin’s treating physicians. Particularly in light of the affirmative evidence of malingering in

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the record, the Court finds that ALJ’s adverse credibility determination is supported with sufficiently

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specific findings that are substantially supported by the record as a whole. See Thomas, 278 F.3d at

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959 (the court “may not engage in second-guessing.”where “the ALJ’s credibility finding is

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supported by substantial evidence in the record”).

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B.

Opinion of Dr. Coffa

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Next, Claimant argues that the ALJ improperly discredited the opinion of Mr. Austin’s

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treating physician, Dr. Coffa. See Plaintiff’s Motion at 4-9. The ALJ completely rejected Dr.

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Coffa’s opinions, finding them “neither controlling nor persuasive.” AR 22. In doing so, the ALJ

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provided three justifications: (1) the ALJ could not find any treatment records with Dr. Coffa’s name

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on them, (2) Dr. Coffa “apparently relied quite heavily on the subjective report of symptoms and

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limitations provided by the claimant, and seemed to uncritically accept as true most, if not all, of

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what the claimant reported,” and (3) Dr. Coffa’s report of Mr. Austin’s lifting abilities was

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inconsistent with Mr. Austin’s hearing testimony. Id.

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As a preliminary matter, the Court concludes that Dr. Coffa was Mr. Austin’s treating

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physician. Mr. Austin correctly points out that Dr. Coffa electronically signed multiple treatment

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records for Mr. Austin between December 2010 and June of 2011. See AR 406, 408, 596, 617.

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Furthermore, throughout the record, other physicians reference Dr. Coffa’s involvement with Mr.

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Austin’s treatment. See AR 414, 416, 418, 594. Indeed, it is clear that Dr. Coffa possessed an

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ongoing treatment relationship with Mr. Austin. Thus, to the degree that the ALJ rejected Dr.

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Coffa’s opinion because he could not find treatment records with her name on them, he seems to

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have overlooked relevant parts of the record.

heavily on an uncritical acceptance of Plaintiff’s subjective report of symptoms in forming her

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The ALJ does not cite to any part of the record for his conclusion that Dr. Coffa relied

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opinion. AR 22. The only record of Dr. Coffa’s the ALJ discusses is a treating physician

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questionnaire filled out in August 2011. Id. That questionnaire asks for the clinical or laboratory

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findings on which the doctor bases her diagnosis and physical restrictions. AR 388, 390. Dr. Coffa

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responded that her opinions were based on “MRI and CT of spine showing nerve root compression.”

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AR 390, see also AR 388 (same). She also writes that Mr. Austin had “surgery [that] improved [his]

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pain, but patient still has significant pain,” and notes that persistent pain could affect his ability to

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concentrate. AR 388. There is no other discussion of Mr. Austin’s subjective reports of pain. AR

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388-92. There is nothing in this record indicating that Dr. Coffa relied uncritically on Mr. Austin’s

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subjective reports of pain, or that her opinion was based primarily on those subjective reports as

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opposed to the CT and MRI results referenced by Dr. Coffa, or her other observations of his

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condition both before and after surgery. See AR 406, 408, 595-96 (Dr. Coffa’s treatment notes from

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before and after Mr. Austin’s April 2011 surgery to relieve his leg pain). In this respect, therefore,

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the ALJ’s decision to reject Dr. Coffa’s testimony (as a treating physician) is not supported by

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substantial evidence in the record.

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Furthermore, the ALJ’s reliance, in rejecting Dr. Coffa’s testimony, on the small

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inconsistency between Dr. Coffa’s diagnosis that Mr. Austin could less than ten pounds and Mr.

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Austin’s testimony that he could lift eight (8) pounds with this left hand and about 15-20 pounds

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with this right hand, see AR 35, was misplaced because the discrepancy was not significant.

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Moreover, the ALJ having found Mr. Austin not credible, was hard pressed to then rely on Mr.

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Austin’s untrustworthy statements to discredit his treating physician’s statements.

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As Mr. Austin’s treating physician, Dr. Coffa’s opinion was entitled to controlling weight if

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it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not

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inconsistent with the other substantial evidence” in the record. See 20 C.F.R. § 404.1527(d)(2)

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(2012). In this case, the ALJ did not consider Dr. Coffa a treating physician and hence did not apply

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the appropriate standard in evaluating Dr. Coffa’s opinion.

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Even if the ALJ had correctly applied the standard appropriate to a treating physician in

opinion is nonetheless entitled to some weight. See Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir.

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concluding that Dr. Coffa’s opinion was not entitled to controlling weight, a treating physician’s

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United States District Court

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2007). “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-

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supported’ or because it is inconsistent with other substantial evidence in the record, the

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Administration considers specified factors [listed in 20 C.F.R. §§ 416.927(c) and 404.1527(c)] in

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determining the weight it will be given.” Id. at 631. The Ninth Circuit emphasized that “[a] finding

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that a treating source medical opinion is not well-supported by medically acceptable clinical and

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laboratory diagnostic techniques or is inconsistent with substantial evidence in the case record

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means only that the opinion is not controlling weight, not that the opinion should be rejected.” See

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id. at 631-32 (internal quotation marks omitted). The ALJ must still consider the factors listed in §

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416.927(c)(2)-(6). Id. at 632.

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In the current case, the Commissioner argues that the ALJ properly rejected Dr. Coffa’s

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opinion because it “was not well supported by accepted medical techniques.” See Defendant’s

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Motion at 5. Further, the Commissioner contends that “[w]hile Dr. Coffa electronically signed some

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treating records, the doctor did not explain the limitations by reference to those records.” See id.

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Assuming for the sake of argument that Dr. Coffa’s opinions were not well-supported, under Orn,

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the ALJ must still consider the factors listed in 20 C.F.R. § 416.927(c). See Orn, 495 F.3d at 631.

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Those factors include

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the amount of relevant evidence that supports the opinion and the
quality of the explanation provided; the consistency of the medical
opinion with the record as a whole; the specialty of the physician

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providing the opinion; and “[o]ther factors” such as the degree of
understanding a physician has of the Administration’s “disability
programs and their evidentiary requirements” and the degree of his or
her familiarity with other information in the case record.

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Id.; see also 20 C.F.R. § 416.927(c). In the instant case, the ALJ did not analyze all of the factors

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enumerated in 20 C.F.R. § 416.927(c) and required by the Ninth Circuit in Orn, but simply

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discredited Dr. Coffa’s opinion in its entirety. See AR 22. For example, as discussed above, while

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Dr. Coffa’s opinion may have relied partially on reports from Mr. Austin, she cites independent

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evidence of the “MRI and CT of spine showing nerve root compression” to support her conclusion

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regarding Mr. Austin’s exertional limitations. See AR 390. Similarly, the record documents a
surgery to relieve Mr. Austin’s back and leg pain in April of 2011, which is also consistent with Dr.

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Coffa’s testimony of Mr. Austin’s long history of pain. See AR 599-602. Dr. Coffa treated Mr.

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Austin both before and after his surgery, and thus would have had the opportunity to see the

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progression of his condition over this critical period, and to observe the trajectory of his recovery.

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AR 406, 408, 595-96, 617. Furthermore, the ALJ did not consider Dr. Coffa’s specialty or her

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familiarity with Mr. Austin and his record as a whole. See AR 22. At the time of the hearing, Dr.

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Coffa had seen Mr. Austin at least four times over the course of almost a year. AR 388-92, 406,

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408, 596, 617.

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Accordingly, the ALJ’s rejection of Dr. Coffa’s opinion cannot be affirmed on this record.

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The ALJ failed to accord Dr. Coffa’s opinion as that of a treating physician. Even if the ALJ had

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properly found Dr. Coffa’s opinion was not entitled to controlling weight, under Orn, the ALJ

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should have analyzed all of the applicable factors listed in § 416.927(c) to determine the appropriate

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weight to accord to Dr. Coffa’s opinion. The ALJ did not do so. These failures constitute reversible

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legal error.

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C.

Opinion of Dr. Al-Mufti

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Additionally, Mr. Austin contends that the ALJ committed legal error by failing to credit the

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opinion of his consultative examining psychiatrist, Dr. Jena Al-Mufti. See Plaintiff’s Motion at 13-

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14. Dr. Al-Mufti provided a consultative psychiatric evaluation of Mr. Austin on July 27, 2010. See

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AR 23, 210-15. During this single appointment, Dr. Al-Mufti reviewed Mr. Austin’s records,

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conversed with Mr. Austin, and administered tests designed to determine Mr. Austin’s level of

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mental functioning. See AR 210-15. In conclusion, Dr. Al-Mufti assigned Mr. Austin a Global

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Assessment of Functioning (GAF) of 45-50, denoting serious symptoms. See AR 23, 213. After

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reviewing her report, the ALJ gave Dr. Al-Mufti’s opinion “no weight because she did not

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administer any malingering tests despite the extensive record, which shows symptom exaggeration.”

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See AR 23.

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

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the opinion of doctors who do not treat the claimant.” Lester, 81 F.3d at 830. While the opinion of

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an examining physician is entitled to less deference than that of a treating physician, “the opinion of
an examining doctor, even if contradicted by another doctor, can only be rejected for specific and

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legitimate reasons that are supported by substantial evidence in the record.” Id. at 830-31. Dr. Al-

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Mufti’s diagnosis of antisocial personality disorder, see AR 213, is directly contradicted by Mr.

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Austin’s treating psychiatrist, Dr. Dotson, who opined that Mr. Austin “does not present clinically

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like someone who is disabled.” See AR 236. Further, as mentioned, there is extensive evidence of

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Mr. Austin’s potential malingering. Dr. Dotson opined that Mr. Austin “may be exaggerating his

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symptoms for secondary gain,” and Mr. Austin’s nurse practitioner suggested that Mr. Austin

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participates in exaggerated pain behavior. See AR 233, 261. Dr. Johnson stated that “any

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psychiatric diagnosis is contaminated by the claimant’s lack of cooperation and misleading

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information provided.” See AR 232. Despite this significant evidence of potential malingering and

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Dr. Al-Mufti’s statement that she reviewed Mr. Austin’s record (which made reference to potential

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malingering), see AR 210, Dr. Al-Mufti failed to administer any malingering tests. The ALJ had a

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sufficient basis to reject Dr. Al-Mufti’s opinion. Moreover, given the ALJ properly discredited Mr.

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Austin’s testimony, the ALJ’s rejection of Dr. Al-Mufti’s opinion is based on specific and legitimate

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reasons supported by substantial evidence. See Andrews, 52 F.3d at 1043 (holding that “an opinion

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of disability premised to a large extent upon the claimant’s own accounts of his symptoms and

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limitations may be disregarded, once those complaints themselves have been properly discounted.”).

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D.

Remedy
Having concluded that the ALJ erred in his decision denying benefits, the Court must decide

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whether or not there should be a remand for further administrative proceedings. In Benecke v.

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Barnhart, 379 F.3d 587 (9th Cir. 2004), the Ninth Circuit held that

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[r]emand for further administrative proceedings is appropriate if
enhancement of the record would be useful. Conversely, where the
record has been developed fully and further administrative
proceedings would serve no useful purpose, the district court should
remand for an immediate award of benefits. More specifically, the
district court should credit evidence that was rejected during the
administrative process and remand for an immediate award of benefits
if (1) the ALJ failed to provide legally sufficient reasons for rejecting
the evidence; (2) there are no outstanding issues that must be resolved
before a determination of disability can be made; and (3) it is clear
from the record that the ALJ would be required to find the claimant
disabled were such evidence credited.

12

Id. at 593. The ALJ erred in rejecting Dr. Coffa’s opinion without considering all the relevant facts;

13

it is not clear what weight the ALJ would ultimately give to Dr. Coffa’s opinion upon proper

14

consideration. Nor is it not clear from the record that the ALJ would be required to find Mr. Austin

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disabled if Dr. Coffa’s testimony were credited in part. On remand, the ALJ should evaluate Dr.

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Coffa’s opinion in light of the factors enumerated in Orn, and reassess Mr. Austin’s claim of

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disability in light of that evidence.

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This order disposes of Docket Nos. 13 and 21.

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IT IS SO ORDERED.

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Dated: May 9, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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25
26
27
28

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