Ward v. Colvin
Filing
19
MEMORANDUM DECISION AND ORDER Plaintiff's Petition for Review (Dkt. 1 ) is GRANTED. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GARY BRUCE WARD,
Petitioner,
Case No. 1:13-cv-00495-CWD
v.
MEMORANDUM DECISION AND
ORDER
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Respondent.
INTRODUCTION
Currently pending before the Court for its consideration is Petitioner Gary Ward’s
Petition for Review (Dkt. 1) of the Respondent’s denial of social security benefits, filed
November 19, 2013. The Court has reviewed the Petition for Review and the Answer, the
parties’ memoranda, and the administrative record (“AR”), and for the reasons that follow, will
remand to the Commissioner with instructions.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on February 9, 2011, claiming disability beginning on December 2, 2006, due to
back pain caused by thoracic fractures and degenerative disc disease, asthma, chronic obstructive
MEMORANDUM DECISION AND ORDER - 1
pulmonary disease, and upper and lower extremity tremors. This application was denied initially
and on reconsideration, and a hearing was conductedon July 25, 2012, before Administrative
Law Judge (“ALJ”) John Molleur. After hearing testimony from Petitioner, vocational expert
Beth Cunningham, and Petitioner’s wife, ALJ Molleur issued a decision finding Petitioner not
disabled on August 24, 2012. Petitioner timely requested review by the Appeals Council, which
denied his request for review on October 10, 2013.
Petitioner appealed this final decision to the Court. The Court has jurisdiction to review
the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the July 2012 hearing, Petitioner was 47 years of age. Petitioner completed
high school. Petitioner’s prior work experience includes work as a medical sales representative
and hospital equipment maintenance technician.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining whether a
claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be determined
whether the claimant is engaged in substantially gainful activity. The ALJ found Petitioner had
not engaged in substantial gainful activity since his alleged onset date of December 2, 2006. At
step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ
found Petitioner’s degenerative disc disease, asthma, and chronic obstructive pulmonary disease
severe within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed impairment. The
ALJ found that Petitioner’s impairments did not meet or equal the criteria for the listed
impairments, specifically considering the listings for disorders of the musculoskeletal system
(1.00) and respiratory system (3.00). If a claimant’s impairments do not meet or equal a listing,
MEMORANDUM DECISION AND ORDER - 2
the Commissioner must assess the claimant’s residual functional capacity (“RFC”) and
determine, at step four, whether the claimant has demonstrated an inability to perform past
relevant work.
The ALJ found Petitioner was not able to perform his past relevant work as an inventory
clerk or medical sales representative. If a claimant demonstrates an inability to perform past
relevant work, the burden shifts to the Commissioner to demonstrate, at step five, that the
claimant retains the capacity to make an adjustment to other work that exists in significant levels
in the national economy, after considering the claimant’s residual functional capacity, age,
education and work experience.
The ALJ determined Petitioner retained the RFC to perform a reduced range of sedentary
work. The ALJ found as follows:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a).
Specifically, he can lift/carry 10 pounds, stand/walk for 2 hours
and sit for 6 hours in an 8-hour workday. He is able to balance,
bend, stoop, kneel, crouch and crawl on an occasional basis. He
can climb stairs and ramps occasionally. The claimant must avoid
exposure to dust, fumes, gases, noxious irritants and extreme
humidity and heat.
(AR 13.) Given the above limitations, the ALJ concluded Petitioner would be able to perform the
requirements of representative occupations such as order clerk, charge account clerk, and
document preparer.
STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because of the
inability “to engage in any substantial gainful activity by reason of any medically determinable
MEMORANDUM DECISION AND ORDER - 3
physical or mental impairment which . . . has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. §
1382c(a)(3)(A); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be
determined to be disabled only if her physical or mental impairments are of such severity that she
not only cannot do her previous work but is unable, considering her age, education, and work
experience, to engage in any other kind of substantial gainful work which exists in the national
economy. 42 U.S.C. § 423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if the
decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. §
405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v.
Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841,
846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It
is more than a scintilla but less than a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066
(9th Cir. 1997), and “does not mean a large or considerable amount of evidence.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s claims.
42 U.S.C. § 405(g); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.
1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence,
will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence
to support the decision of the Commissioner, the decision must be upheld even when the
evidence can reasonably support either affirming or reversing the Commissioner’s decision,
MEMORANDUM DECISION AND ORDER - 4
because the Court “may not substitute [its] judgment for that of the Commissioner.” Verduzco v.
Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may question
an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s credibility
assessment is entitled to great weight, and the ALJ may disregard a claimant’s self-serving
statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ makes a
careful consideration of subjective complaints but provides adequate reasons for rejecting them,
the ALJ’s well-settled role as the judge of credibility will be upheld as based on substantial
evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).
DISCUSSION
Petitioner challenges the ALJ’s conclusion at step four when determining his RFC.
Specifically, Petitioner contends the ALJ erred by (1) rejecting Petitioner’s testimony and by
failing to provide clear and convincing reasons for finding Petitioner not fully credible; (2)
failing to consider the cumulative effect of all of Petitioner’s medical impairments; and (3)
rejecting the opinions of treating provider Daniel Marsh, M.D., and consultative examiner Mark
Harris, M.D. The Court will examine the first two issues in the context of Petitioner’s credibility,
and then turn its analysis to the ALJ’s treatment of the physician opinions.
1.
Credibility
Ward argues that the ALJ erred in discrediting his testimony. Ward testified that his
impairments include thoracic pain, tremors, and the frequent need to rest due to pain. Activity
exacerbates his condition, but when he is able to rest in his recliner, the pain subsides. He uses an
armchair because he needs something to put his arms on to hold him up due to thoracic fractures
and resulting kyphosis. Ward plans out his activities around rest. Sometimes, Ward sits at the
MEMORANDUM DECISION AND ORDER - 5
dining room table to read a magazine or a book, and he is able to check e-mail on his computer.
It generally takes him an entire day to do the laundry, he is able to load the dishwasher while
sitting, and he can sit in his recliner in the kitchen and help his wife chop vegetables for dinner,
albeit slowly.
Ward has not done yard work for several years, and he is able to vacuum one area rug
once a week. He is no longer able to walk down to the basement, so his son helps him with the
water softener located in the basement. Ward is able to shop at the grocery store, but he leans on
the cart and is unable to buy enough groceries for a whole week. Instead, he takes a short trip to
the store once a day. The tremors occur in his hands, and have become progressively worse over
time. When he completed the disability questionnaire, his handwriting was not entirely legible
and it took him most of a day to complete it because of his hand tremor. (AR 46, 257-265.)
The ALJ concluded that Ward’s statements “concerning the intensity, persistence and
limiting effects of his symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment,” and provided a discussion of the evidence
supporting that conclusion.
An ALJ is not “required to believe every allegation of disabling pain” or other nonexertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (quoting Fair v. Bowen,
885 F.2d 597, 603 (9th Cir. 1989)). But, to discredit a claimant’s testimony when a medical
impairment has been established, the ALJ’s findings must be supported by specific, cogent
reasons for the disbelief. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Unless there is
affirmative evidence showing that the claimant is malingering, the ALJ must provide clear and
convincing reasons for rejecting pain testimony. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.
2005). General findings are insufficient; the ALJ must identify what testimony is not credible
MEMORANDUM DECISION AND ORDER - 6
and what evidence undermines the claimant’s complaints. Reddick, 157 F.3d at 722.
The reasons an ALJ gives for rejecting a claimant’s testimony must be supported by
substantial evidence in the record. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294,
1296 (9th Cir. 1999). If there is substantial evidence in the record to support the ALJ’s
credibility finding, the Court will not engage in second-guessing. Thomas v. Barnhart, 278 F.3d
957, 959 (9th Cir. 2002). When the evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999).
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including considering claimant’s reputation for truthfulness and inconsistencies in
claimant’s testimony, or between claimant’s testimony and conduct, claimant’s daily activities,
claimant’s work record, and testimony from physicians and third parties concerning the nature,
severity and effect of the symptoms of which claimant complains. Thomas v. Barnhart, 278 F.3d
947, 958-59 (9th Cir. 2002). Also, the ALJ may consider the location, duration and frequency of
symptoms; factors that precipitate and aggravate those symptoms; the amount and side effects of
medications; and treatment measures taken by the claimant to alleviate those symptoms. See
Soc. Sec. Ruling 96-7p.
Here, the ALJ gave several reasons for rejecting Ward’s testimony. First, the ALJ
rejected Ward’s testimony because Ward described daily activities that are not limited to the
extent one would expect given his complaints of disabling symptoms and limitations. The ALJ
cited that Ward takes care of his house with time to rest, cares for his cat, prepares meals, and
goes shopping. The ALJ questioned also Ward’s fine motor manipulation skills, because he was
able to sit in the kitchen and slice and dice food. But the mere fact a claimant has carried on
MEMORANDUM DECISION AND ORDER - 7
certain daily activities “does not in any way detract from [his] credibility as to [his] overall
disability.” Orn, 495 F.3d at 639 (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.
2001)).
Daily activities may be grounds for an adverse credibility finding “if a claimant is able to
spend a substantial part of his day engaged in pursuits involving the performance of physical
functions that are transferable to a work setting.” Orn, 495 F.3d at 639 (quoting Fair v. Bowen,
885 F.2d 597, 603 (9th Cir. 1989)). The ALJ must make specific findings relating to the daily
activities and their transferability to conclude that a claimant’s daily activities warrant an adverse
credibility determination. Here, however, there is neither evidence to support that Ward’s
activities are transferrable to a work setting nor proof that Ward spent a substantial part of his
day engaged in transferable skills. Further, there is no indication that the ALJ took into
consideration the effect of Ward’s tremors, which were clearly documented by his treating
physician Dr. Marsh, and the consultative examiner, Dr. Harris, as well as evidenced by Ward’s
own handwriting in the record. The Court concludes, therefore, that the ALJ failed to make
sufficient findings, as more fully explained below.
First, Ward’s activities are so punctuated by rest that they cannot be said to bear a
meaningful relationship to the activities and demands of the workplace. The ALJ’s rationale for
discrediting Ward’s testimony about the extent of his limitations was that Ward’s abilities
“provide support for the RFC conclusion.” This rational is insufficient. The ALJ may not support
his credibility determination by referring to the RFC conclusion. Additionally, the ALJ supported
his adverse credibility finding by indicating the record supports the inference that “treatment has
been generally successful in controlling” his pain symptoms, because Ward obtained
improvement from pain block injections. However, the record contains no evidence of
MEMORANDUM DECISION AND ORDER - 8
conservative treatment that alleviates Ward’s pain on a daily, long-term basis. Rather, Dr. Marsh
indicated on May 3, 2010, that Ward’s pain is controlled by structuring his activities to minimize
pain symptoms. (AR 277.)
Only one pain block procedure, performed on May 20, 2010, is noted in the record. Dr.
Marsh indicated that the pain would return and repeat injections would be required, or an
ablation would be necessary to cauterize the nerves. (AR 274.) Ward testified he was reluctant to
proceed with ablation because of the 50/50 success rate. (AR 52.) Thus, while Ward did receive
temporary improvement from pain block injections, the ALJ failed to consider the long term
outcome. There was substantial evidence in the record indicating the relief provided by pain
block injections was temporary, and the pain would return. There was no assessment by the ALJ
as to how the pain block injections would control Ward’s pain on a daily, sustained basis to
allow him to work full-time. Thus, the ALJ’s credibility determination as to the limiting effects
of Ward’s pain, and the ability to control it with fairly invasive treatment, is not supported by
substantial evidence.
Second, the fact that Ward can, and does, engage in occasional chopping and dicing of
food in the kitchen bears no relationship to the work activities he would be required to perform
for the jobs the ALJ identified. The vocational expert testified that the job of charge account
clerk would require data entry and the ability to use a computer frequently throughout the day,
while the job of order clerk would require frequent handwriting. (AR 64-66.) The job of
document preparer also would require keyboarding and handwriting to some degree. The ALJ
did not explain how a few minutes of slowly chopping and dicing while sitting in a recliner
discredited Ward’s documented inability to write quickly or legibly, or to use a keyboard
throughout the day in a work setting. Rather, it appears the ALJ discredited the effect of Ward’s
MEMORANDUM DECISION AND ORDER - 9
tremors entirely, because no provision was made for consideration of the effect of the tremors in
the ALJ’s RFC analysis. The ALJ’s conclusion that, because Ward sometimes helps his wife
chop and dice during meal preparation, he therefore has transferrable skills, is in error. The jobs
of order clerk, charge account clerk, or document preparer all require handwriting and
keyboarding. The ALJ erroneously disregarded the evidence of handwriting and keyboarding
requirements. The ALJ’s credibility determination is therefore not supported by substantial
evidence, and the RFC analysis is in error because it did not include all of Ward’s limitations in
relation to the fine motor skills required for the representative jobs identified as available for
him. 1
2.
Physician Testimony
The United States Court of Appeals for the Ninth Circuit distinguish among the opinions
of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who
examine but do not treat the claimant (examining physicians); and (3) those who neither examine
nor treat the claimant (nonexamining physicians). Lester v. Chatter, 81 F.3d 821, 830 (9th Cir.
1995). Generally, more weight is accorded to the opinion of a treating source than to nontreating
physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). If the treating physician’s
opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing”
reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). If the treating doctor’s opinion
is contradicted by another doctor, the Commissioner may not reject the treating physician’s
opinion without providing “specific and legitimate reasons” supported by substantial evidence in
1
The ALJ made short shrift of Ward’s tremors, ignoring their potential limiting effects entirely
because “one would expect that an individual that is limited by hand tremors would not risk self- injury
by utilizing sharp knives.” (AR 15.) But, there was substantial discussion of the effect of the tremors
during the hearing, and Ward’s attorney posed several questions to the vocational expert about the
vocational effect of the tremors Ward experienced.
MEMORANDUM DECISION AND ORDER - 10
the record for so doing. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983).
An ALJ is not required to accept an opinion of a treating physician if it is conclusory and
not supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th
Cir. 1992). Additionally, an ALJ is not bound to a physician’s opinion of a petitioner’s physical
condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
1989). If the record as a whole does not support the physician’s opinion, the ALJ may reject that
opinion. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in
the record that may not support the physician’s opinion include clinical findings from
examinations, conflicting medical opinions, conflicting physician’s treatment notes, and the
claimant’s daily activities. Id.; Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005); Connett v.
Barnhart, 340 F.3d 871 (9th Cir. 2003); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595
(9th Cir. 1999). An ALJ may also reject a treating physician’s opinion if it is based “to a large
extent” on a claimant’s self -reports that have been property discounted as not credible.
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
Here, the ALJ gave little weight to either medical opinion rendered by treating physician
Dr. Marsh, or consultative examiner Dr. Harris. In the present case, treating source Daniel
Marsh, MD, completed a physical RFC assessment dated July 15, 2011. (AR 360-367). Dr.
Marsh concluded that the Petitioner had the following limitations:
1. Occasionally lift and/or carry less than ten pounds;
2. Frequently lift and/or carry less than ten pounds;
3. Stand and/or walk for a total of less than two hours in an eight our work
day;
4. Sit for a total of less than about six hours in an eight hour work day; and
5. Limited pushing and/or pulling in the upper and lower extremities.
(AR 360-361). Dr. Marsh indicated these limitations were due to the Petitioner’s severe thoracic
MEMORANDUM DECISION AND ORDER - 11
pain. (AR 361).
Dr. Marsh further indicated that the Petitioner was to never perform the following
postural limitations: climbing, balancing, stooping, kneeling, crouching and crawling.
(AR 362). With respect to manipulative limitations, Dr. Marsh opined that the Petitioner was
limited in reaching in all directions, handling (gross manipulation), fingering (fine manipulation)
and was not limited with feeling (skin receptors). (AR 363). Dr. Marsh indicated that handling
and reaching caused thoracic pain for the Petitioner. Id. Finally, Dr. Marsh commented that the
Petitioner’s thoracic pain is due to the degenerative condition in his spine and it is a severe and
permanent condition. (AR 365). Upon reviewing Dr. Marsh’s RFC, the vocational expert was of
the opinion that such an RFC would preclude full-time work because it indicated less than
sedentary work capabilities due to the limitations upon standing, walking or sitting, and lifting
less than ten pounds. (AR 66.)
Dr. Harris’s consultative examination report states that the Petitioner had the following
functional limitations:
1. Limitations in walking greater than 15 minutes at a time without rest break .
2. No limitations with sitting other than change of position as needed.
3. Limitations with standing for more than 15 minutes at a time with frequent
rest breaks.
4. No limitations with lifting, carrying, handling objects, hearing speaking or
traveling.
5. Limitations with use of the arms above the shoulder level to only
occasionally. Otherwise no limitations with use of the upper limbs.
6. No limitations with the use of his lower limbs.
7. No limitations with the use of the spine.
8. Change position as needed.
9. No unprotected heights.
10. Do not operate machinery.
(Tr. 347-348). Dr. Marsh reported normal findings in cervical, shoulder, hip, lumbar, knee,
elbow, forearm, ankle, wrist, and thumb range of motion, although there was decreased extension
MEMORANDUM DECISION AND ORDER - 12
of Ward’s cervical range of motion. Dr. Marsh noted Ward’s tremor in bilateral upper and lower
limbs throughout, but documented a normal, non-antalgic gait.
Here, Dr. Marsh, like Dr. Harris, performed a physical examination, and both are in
agreement with the diagnosis, arrived at after studying Ward’s MRI images, examining Ward,
and listening to Ward’s patient history. Accordingly, both doctors arrived at the same findings. It
is only their conclusions from those findings that differed. Orn, 495 F.3d at 634 (differentiating
between a doctor’s findings versus the conclusions drawn from those findings). While Dr. Marsh
believed Ward was more limited with postural activities and reaching, Dr. Harris concluded there
was no limitation with the use of upper limbs below shoulder level, lower limbs, or spine. It
should be noted, however, that on the day Dr. Harris examined Ward, he reported his pain to be
“3 out of 10, best is 3 out of 10, worst is 10 out of 10.” (AR 344.) Dr. Harris examined Ward on
a relatively pain free day, whereas Dr. Marsh, who had more opportunities to observe Ward due
to the treating relationship over time, had occasion to examine Ward on days when he was
experiencing more pain. (See AR 277, reporting pain at 8 out of 10).
The ALJ rejected both physician opinions. He concluded Dr. Marsh’s statement should
be given “little weight” because “it does not appear to reflect an unfettered opinion. The doctor
relied on the subjective reports of symptoms and limitations provided by the claimant, to [sic]
and seemed accept as true most, if not all, of what the claimant reported.” However, Dr. Marsh
did not believe Ward was malingering. Further, as explained above, the Court concluded the
ALJ’s credibility analysis was in error and not based upon substantial evidence or the record as a
whole. Thus, it was error for the ALJ to reject Dr. Marsh’s opinion on the basis of the ALJ’s
erroneous credibility finding.
The ALJ provided a second reason for rejecting Dr. Marsh’s opinion, reasoning that Dr.
MEMORANDUM DECISION AND ORDER - 13
Marsh’s opinion was inconsistent with the doctor’s own clinical findings. However, the ALJ did
not specify what clinical findings he found inconsistent. And, although Respondent now argues
that the ALJ discussed elsewhere in the record that Dr. Marsh’s physical examination revealed a
non-antalgic gait, good balance, and negative straight leg raise to be the inconsistent findings,
general findings made by the ALJ when rejecting the treating physician’s opinion are
insufficient. Instead, the ALJ must specifically identify the evidence that undermines the opinion
of the treating physician. Burrell v. Colvin, No. 12-16673, slip. op. at 10 (9th Cir. Dec. 31, 2014).
Here, the ALJ failed to consider the relatively aggressive treatment regimen Dr. Marsh
recommended. Dr. Marsh was not treating Ward’s pain conservatively. Rather, because
conservative pain management was not working, Dr. Marsh prescribed injection therapy, which
provided temporary relief, and believed Ward was a candidate for radiofrequency ablation. (AR
274.) Additionally, although both Dr. Marsh and Dr. Harris described a non-antalgic gait, the
area of pain was in Ward’s thoracic region, at the site of three broken vertebrae located at T8,
T9, and T10, and throughout the region of the resulting kyphosis. Neither physician was of the
opinion that Ward was unable to walk because of gait problems. Thus, the ALJ’s statement that
Dr. Marsh’s clinical findings were inconsistent with the doctor’s own opinion does not warrant
the rejection of his opinion.
Dr. Marsh did not claim that Ward’s limitations with respect to walking were caused by
his gait or inability to balance, but rather because his thoracic pain and kyphosis limited his
ability to tolerate long periods of sitting or walking, and thus limited his ability to work. Thus,
the medical records appear consistent with Dr. Marsh’s opinion, and not inconsistent with his
clinical findings. The two reasons provided by the ALJ for rejecting the opinion of Dr. Marsh are
insufficient; they simply are not “specific, legitimate reasons supported by substantial evidence
MEMORANDUM DECISION AND ORDER - 14
in the record,” because the substantial evidence in the record contradicts them. 2
The same is true of the ALJ’s assessment of Dr. Harris’s opinion. The ALJ rejected Dr.
Harris’s opinion that Ward could only stand/walk for 15 minutes at a time as “completely
inconsistent with his own examination.” (AR 16.) Again, although the ALJ discussed Dr.
Harris’s examination findings earlier in the analysis, the ALJ did not elaborate on which portions
of the medical examination findings conflicted with Dr. Harris’s opinions regarding Ward’s
ability to stand and walk. Even if the Court presumes the ALJ is relying upon Dr. Harris’s
finding that Ward could perform a full squat, tandem walk, dress and undress himself, walked
with a non-antalgic gait, and had no limitations (other than cervical flexion) with his range of
motion, the ALJ did not comment on the fact that Dr. Harris examined Ward on a relatively pain
free day. The ALJ apparently overlooked this fact when assessing whether Dr. Harris’s opinion
conflicted with his clinical findings upon examination. There is, however, substantial support in
the medical records that Ward reported his pain as worse to Dr. Marsh than reported to Dr.
Harris on the one occasion. Further, there is evidence in the record that Ward was receiving
aggressive pain management therapy for that pain. Accordingly, the reason given for rejecting
Dr. Harris’s opinion was not a specific, legitimate reason supported by substantial evidence in
the record.
CONCLUSION
The ALJ’s reasons for disregarding the opinions of Ward’s treating and consultative
physicians and for disregarding Ward’s testimony are legally insufficient. However, there remain
2
Petitioner argues that the clear and convincing standard should apply, because Dr. Marsh’s
opinion is not contradicted by Dr. Harris’s opinion. However, the Court finds the conflict between which
standard to apply is not material to the determination, because even under the “specific and legitimate”
standard, there is not substantial evidence in the record to support the rationale for rejecting Dr. Marsh’s
opinion.
MEMORANDUM DECISION AND ORDER - 15
issues in the record that should be decided by the agency, given the limited evidence in the
record about Ward’s ability to hand write and keyboard, and the nature of Ward’s pain, which is
localized in his thoracic region. Although Ward’s pain does not appear to affect his underlying
ability to walk, it does appear to limit the length of time for walking and sitting, thereby
precluding sedentary work. The Court will remand to the agency for further proceedings.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)
Plaintiff’s Petition for Review (Dkt. 1) is GRANTED.
2)
This action shall be REMANDED to the Commissioner for further
proceedings consistent with this opinion.
3)
This Remand shall be considered a “sentence four remand,”
consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852,
854 (9th Cir. 2002).
January 06, 2015
MEMORANDUM DECISION AND ORDER - 16
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