Crosby v. Colvin
Filing
24
MEMORANDUM DECISION AND ORDER. Based on the foregoing, Petitioner's request for review 1 is hereby GRANTED, in part. This matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Decision and Order. See Melkonyan v. Sullivan, 501 U.S. 89, 99-100 (1991). Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
ANGELLA FARR CROSBY,
Petitioner,
Case No. 3:13-cv-00529-REB
vs.
MEMORANDUM DECISION
AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner, Social Security Administration,
Respondent.
Pending before the Court is Angella Crosby’s Petition for Review (Dkt. 1), seeking
review of the Social Security Administration’s final decision to deny her claim for Title II
Social Security Disability benefits and Supplemental Security Income payments. The
action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record
and otherwise being fully advised, the Court enters the following Memorandum Decision
and Order:
I. ADMINISTRATIVE PROCEEDINGS
On December 17, 2013, Petitioner Angella Crosby (“Petitioner”) filed an
application for Social Security Disability benefits and Supplemental Security Income
benefits, alleging a disability onset date of August 9, 2005. AR 21. Petitioner’s claims
were initially denied, and denied again on reconsideration on August 26, 2011. On
October 20, 2011, Petitioner timely filed a Request for Hearing before an Administrative
MEMORANDUM DECISION AND ORDER - 1
Law Judge (“ALJ”). Petitioner appeared and testified at a hearing held December 3,
2012. During that hearing, Petitioner amended her alleged disability onset date to March
11, 2011. On April 26, 2013, ALJ Caroline Siderius held a supplemental hearing in
Spokane, Washington, at which time Petitioner, represented by attorney Erica Wood,
appeared and testified. A vocational expert, Jinnie Lawson, and an impartial medical
expert, Marian Martin, also appeared and testified. AR 21.
On May 17, 2013, the ALJ issued a decision denying Petitioner’s claims, finding
that Petitioner was not disabled within the meaning of the Social Security Act. Petitioner
timely requested review from the Appeals Council. On October 16, 2013, the Appeals
Council denied Petitioner’s request for review, making the ALJ’s decision the final
decision of the Commissioner of Social Security. AR 1-4.
Having exhausted her administrative remedies, Petitioner timely filed the instant
action, arguing that the ALJ erred by (1) failing to discuss or give any weight to the
portions of Dr. Holmes’s opinion; (2) failing to find anxiety as a severe impairment at
step two of the sequential inquiry; (3) failing to give proper weight to the opinion of
treating psychologist, James Phillips, Ph.D.; and (4) denying benefits for a failure to
follow prescribed treatment without showing that Petitioner refused to follow prescribed
treatment as required under SSR 82-59.
MEMORANDUM DECISION AND ORDER - 2
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial
evidence and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel.
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d
1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if supported by
substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is
substantial evidence to support the ALJ’s factual decisions, they must be upheld, even
when there is conflicting evidence. Hall v. Sec’y of Health, Educ. & Welfare, 602 F.2d
1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389,
401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of
Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more
than a scintilla but less than a preponderance (see Sorenson v. Weinberger, 514 F.2d
1112, 1119 n. 10 (9th Cir. 1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1989)), and “does not mean a large or considerable amount of evidence.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a
whole to determine whether it contains evidence that would allow a reasonable mind to
accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney,
MEMORANDUM DECISION AND ORDER - 3
981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving
conflicts in medical testimony (see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)),
resolving ambiguities (see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95
(9th Cir. 1984)), and drawing inferences logically flowing from the evidence (see Sample
v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). Where the evidence is susceptible to
more than one rational interpretation in a disability proceeding, the reviewing court may
not substitute its judgment or interpretation of the record for that of the ALJ. Flaten, 44
F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis
in law. See id. However, reviewing federal courts “will not rubber-stamp an
administrative decision that is inconsistent with the statutory mandate or that frustrates
the congressional purpose underlying the statute.” Smith v. Heckler, 820 F.2d 1093, 1094
(9th Cir. 1987).
III. DISCUSSION
A.
Sequential Processes
In evaluating the evidence presented at an administrative hearing, the ALJ must
follow a sequential process in determining whether a person is disabled in general (see 20
C.F.R. §§ 404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594,
416.994) - within the meaning of the Social Security Act.
MEMORANDUM DECISION AND ORDER - 4
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).
SGA is defined as work activity that is both substantial and gainful. “Substantial work
activity” is work activity that involves doing significant physical or mental activities. 20
C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done
for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b),
416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless
of how severe her physical/mental impairments are and regardless of her age, education,
and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not
engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that
Petitioner has not engaged in substantial gainful activity since March 11, 2011,
Petitioner’s application date. AR 23.
The second step requires the ALJ to determine whether the claimant has a
medically determinable impairment, or combination of impairments, that is severe and
meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” within the meaning of the Social
Security Act if it significantly limits an individual’s ability to perform basic work
activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of
impairments is “not severe” when medical and other evidence establish only a slight
abnormality or a combination of slight abnormalities that would have no more than a
minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the
MEMORANDUM DECISION AND ORDER - 5
claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here,
the ALJ determined that Petitioner has the following severe impairments: bipolar I,
borderline personality disorder, obesity, degenerative disc disease, and asthma. AR 23.
The third step requires the ALJ to determine the medical severity of any
impairments; that is, whether the claimant’s impairments meet or equal a listed
impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered
disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§
404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor equal one of the
listed impairments, the claimant’s case cannot be resolved at step three and the evaluation
proceeds to step four. Id. Here, the ALJ concluded that Petitioner’s impairments, while
severe, do not meet or medically equal, either singly or in combination, the criteria
established for any of the qualifying listed impairments. AR 24.
The fourth step of the evaluation process requires the ALJ to determine whether
the claimant’s residual functional capacity is sufficient for the claimant to perform past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s
residual functional capacity is his ability to do physical and mental work activities on a
sustained basis despite limitations from his impairments. 20 C.F.R. §§ 404.1545,
416.945. Likewise, an individual’s past relevant work is work performed within the last
15 years or 15 years prior to the date that disability must be established; also, the work
MEMORANDUM DECISION AND ORDER - 6
must have lasted long enough for the claimant to learn to do the job and be engaged in
substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965.
Here, the ALJ concluded Petitioner retained the residual functional capacity to perform
medium work, with some postural and environmental limitations. AR 25-26. The ALJ
further limited Petitioner to“up to 3 step tasks and simple repetitive well-learned tasks
with only occasional changes in the work setting.” AR 26. The ALJ also found: “There
should be no more than average production requirements. She is limited to superficial
contact with the public and coworkers. The claimant should work primarily alone with
occasional supervision and should work primarily with things rather than people.” AR
26. Additionally, she is unable to perform any past relevant work. AR 36.
In the fifth and final step, if it has been established that a claimant can no longer
perform past relevant work because of his impairments, the burden shifts to the
Commissioner to show that the claimant retains the ability to do alternate work and to
demonstrate that such alternate work exists in significant numbers in the national
economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see
also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do
other work, she is not disabled; if the claimant is not able to do other work and meets the
duration requirement, she is disabled. Here, the ALJ found that Petitioner is capable of
performing work found in significant numbers within the relevant economy, such as
working as a price marker or a parking lot attendant. AR 36. Therefore, based on
Petitioner’s age, education, work experience, and residual functional capacity, the ALJ
MEMORANDUM DECISION AND ORDER - 7
concluded that Petitioner was not under a disability as defined in the Social Security Act.
AR 36-37.
B.
Analysis
Petitioner does not challenge the AJL’s findings and conclusions as to her alleged
physical limitations, instead raising issues related only to the ALJ’s findings and
conclusions related to her mental impairments. She also has not challenged the ALJ’s
credibility finding, i.e., that Petitioner is not credible and her description of her symptoms
and limitations are “unpersuasive”. See AR 30.
1.
Treating Source Opinions
Petitioner argues that the ALJ failed to accord proper weight to opinion evidence
offered by Dr. James Phillips and Dr. T. Stephenson Holmes, both of whom are treating
physicians.
The Ninth Circuit distinguishes 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). In turn, an examining
physician’s opinion is entitled to greater weight than the opinion of a nonexamining
physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753
F.2d 1450 (9th Cir. 1984). If the treating physician’s opinion is not contradicted by
MEMORANDUM DECISION AND ORDER - 8
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 the record for doing so. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.
1983).
Additionally, 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). 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 at 1216; 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).
a.
Dr. James Phillips
The ALJ accorded “little weight” to the opinion of Dr. Phillips, relying instead on
the testimony of Dr. Martin, the medical expert at the second hearing, and Petitioner’s
reported activities. AR 34–35. Petitioner argues that the ALJ relied solely on Dr.
Martin’s testimony to disregard Dr. Phillips’s opinions, but the record demonstrates that
the ALJ also considered that Petitioner’s own testimony indicated she was able to engage
MEMORANDUM DECISION AND ORDER - 9
in volunteer activities. See Reply Br., p. 5 (Dkt. 22). This finding undermined Dr.
Phillip’s opinion that Petitioner had “marked limitations” in her activity of daily living
and social functioning. AR 33. The ALJ appropriately relied on both Petitioner’s
activities and Dr. Martin’s testimony1 in giving little weight to Dr. Phillip’s opinion.
Additionally, the ALJ credited the opinions of reviewing doctors who assessed
Petitioner’s mental limitations based on their reviews of her medical records. They found
Petitioner could perform at least simple, routine tasks if her contact with others was
limited and they assessed mild to moderate limitations. AR 31, 116-18, 133–35. The
ALJ noted that these doctors “are highly qualified physicians and psychologists who are
experts in the evaluation of the medial issues,” and he gave their opinions “significant
weight” because they are “supported by the evidence and consistent with the record as a
whole.” AR 31.
Moreover, the ALJ discussed the medical records and opinions in detail2 and
specifically found that the opinions of Drs. Seidenfeld and Sanford were supported by the
“unremarkable mental status examination findings and the absence of any aggressive
treatment.” AR 32 (citing to AR 651, Nurse Practitioner Chad Lewis’s note that he
“started questioning her diagnosis at length”, and AR 757, Lewis’s notes on a medical
1
Although Dr. Martin did not review the “E” exhibits in the record, which contain the
Petitioner’s functional reports, these mostly relate to Petitioner’s own self reports, and the ALJ
found Petitioner not credible. See AR 902, 281-360. Dr. Martin reviewed all the medical
records available before the hearing and appropriately relied on them to form her opinions.
2
See AR 29–35.
MEMORANDUM DECISION AND ORDER - 10
visit describing Petitioner’s medication regimen). The ALJ also gave “significant
weight” to the opinion of Dr. Rebecca Alexander, who performed a psychological
consultative examination and performed “objective psychological testing, which showed
that the claimant’s memory and overall functioning was in the low average range.” AR
32–33 (citing AR 772–73, Dr. Alexander’s Wechsler Memory Scale Test Results).
Thus, the ALJ provided specific and legitimate reasons, supported by substantial
evidence, for giving only little weight to Dr. Phillips’s opinion.
b.
Dr. T. Stephenson Holmes
Dr. Holmes assessed some marked and several moderate limitations in Petitioner’s
functioning. AR 362–63. At the hearing, in response to counsel’s question, the
vocational expert testified that the moderate limitations assessed by Dr. Holmes, taken
together, “would preclude work just even at the moderate level.” AR 926–27. Petitioner
argues the ALJ erred in not incorporating these moderate limitations in his Residual
Functional Capacity Assessment because the ALJ did not explain why Dr. Holmes’s
opinions about Petitioner’s moderate limitations were not adopted; rather, the ALJ
discussed only Dr. Holmes’s assessment of marked limitations. Indeed, the ALJ
specifically discussed and rejected only Dr. Holmes’s marked limitations findings. The
ALJ did so based on her finding that the marked limitations were “due to spotty
medication adherence.” AR 32.
Petitioner not only takes issue with the ALJ ignoring the moderate limitations in
Dr. Holmes’s assessment, but also with the ALJ’s reliance on Petitioner not consistently
MEMORANDUM DECISION AND ORDER - 11
taking the medication that helps with her mental condition.3 Dr. James Phillips reported
that Petitioner’s imperfect compliance with her medication regimen was due to her mental
illness. See AR 728–30. Although the ALJ properly discounted parts of Dr. Phillips’s
assessment, as discussed above, the ALJ did not discuss the portion of Dr. Phillips’s
report that indicated Petitioner’s mental condition contributed to her imperfect medicine
compliance.
Additionally, the ALJ relied on Petitioner’s failure to take her medicine, and its
impact on her limitations, to discount several medical and other opinions. See AR 33
(relying on Petitioner’s ability to control her bipolar symptoms when on medication to
give less weight to the opinions of Dr. Rebecca Alexander, and Sandy Philips, LCSW);
AR 34 (relying in part on the medical evidence demonstrating that Petitioner’s bipolar
symptoms were well controlled when she consistently took her psychiatric mediation to
discount testimony of a psychological rehabilitation counselor, Justine Arabi).
The ALJ may consider a claimant’s lack of compliance with medical directives
and medications, but where there is evidence that the illness itself may be the cause, the
3
To the extent Petitioner seeks to rely on SSR 82-59 to support the latter argument, the
Court finds that Ruling does not apply to the facts of this case. See Garrison v. Colvin, 759 F.3d
995, 1018 (9th Cir. 2014) (“we do not punish the mentally ill for occasionally going off their
medication when the record affords compelling reason to view such departures from prescribed
treatment as part of claimants’ underlying mental afflictions”); Roberts v. Shalala, 66 F.3d 179
(9th Cir. 1995) (SSR 82-59 does not apply unless the Commissioner “premise[s] the denial of
benefits solely on the [claimant’s] failure to follow prescribed treatment.”) (emphasis added;
alterations in original). See also Colcord v. Colvin, No. 6:13-CV-02068-MA, 2015 WL 589305,
at *6 (D. Or. Feb. 11, 2015) (finding “the ALJ fails to acknowledge that plaintiff’s lack of
adherence to taking her medications is a significant symptom of her mental illness”).
MEMORANDUM DECISION AND ORDER - 12
AJL should discuss that possibility and explain why she is relying on the failure to take
medication despite the fact such failure might be caused by the mental illness.4 Here, the
ALJ did not do so. Although the ALJ discussed some of Dr. Martin’s testimony and, in
turn, Dr. Martin explained that individuals with bipolar disorder may go off their
medications at times5 (but Petitioner did not fit the usual pattern), the ALJ did not discuss
that part of Dr. Martin’s testimony. And, even though Dr. Martin’s statements may
provide reasons the ALJ could have discounted record evidence that the bipolar disorder
caused Petitioner to not take her medication consistently, the ALJ did not consider those
statements, or any other record evidence, in discounting Dr. Holmes’s testimony.6 Under
4
See, e.g., Reed v. Comm’r of Soc. Sec. Admin., No. 3:14-CV-00553-MA, 2015 WL
1246249, at *5 (D. Or. Mar. 17, 2015) (with regard to a claimant’s credibility, evidence of
unexplained or inadequately explained failure to follow a prescribed course of treatment may be
considered but, where a claimant provides evidence of a good reason for not taking medication
for his symptoms, his symptom testimony cannot be rejected for not doing so) (citations,
alterations, and internal quotation marks omitted). Although this relates to a credibility finding,
the same rationale supports requiring the ALJ to consider the reasons a claimant may not be
taking medication before using that as the sole justification to discount a treating physician’s
opinions.
5
Dr. Martin explained: “they sort of feel good when they are in a hypomanic or manic
period, and sometimes they are reluctant to sort of dampen that down with medication,” but
“after a while they realize they’re better off taking [medication].” AR 905. She then commented
that Petitioner’s “records seem to indicate a somewhat differ[ent] pattern . . . and just sort of
consistently it looks like she consistently misses meds here and there.” Id.
6
For example, Dr. Seidenfeld noted “Dr. Holmes[‘s] opinion is not supported by his own
exams,” and”contrasts sharply with the other evidence in the record.” AR 114, 118. Dr. Sanford
reached the same conclusion. AR 131, 135. But, the ALJ did not mention these records or any
others in discounting Dr. Holmes’s opinions. Instead, the ALJ relied solely on Petitioner’s lack
of compliance with her medications and that her symptoms resolved when she consistently took
the medications.
MEMORANDUM DECISION AND ORDER - 13
these circumstances, where the ALJ relied on just one factor to discount Dr. Holmes’s
testimony, and the record contained evidence that factor itself may be caused by
Petitioner’s mental illness, the ALJ’s reason for giving Dr. Holmes’s opinions little
weight is not supported by the required substantial evidence and this case will be
remanded for the ALJ to consider whether Petitioner’s mental illness caused her to not
consistently take her medication and whether, even with inconsistent medication
compliance, Petitioner is not disabled. In the alternative, the ALJ may rely on other
specific and legitimate reasons to discount Dr. Holmes’s testimony.
Finally, to the extent the ALJ relied solely on Petitioner’s spotty medicine
adherence to discount other opinions in the record, the ALJ shall revisit her decision as to
how much weight to give those sources. However, because Petitioner did not specifically
challenge the ALJ’s treatment of these sources except with regard to the medicine
compliance issue, if the ALJ provided another reason to support her decision on how
much weight to give those sources’ opinions, the ALJ is not required to revisit her
determinations.
2.
Petitioner’s Anxiety
Petitioner also argues that the ALJ erred at step two analysis by not addressing her
anxiety. To the extent the ALJ may not have considered any limitations caused by
Petitioner’s anxiety, she should do so on remand.
MEMORANDUM DECISION AND ORDER - 14
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing
inferences from facts and determining credibility. Allen, 749 F.2d at 579; Vincent ex. rel.
Vincent, 739 F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to
more than one rational interpretation, one of which is the ALJ’s, a reviewing court may
not substitute its interpretation for that of the ALJ. Key, 754 F.2d at 1549.
Here, the ALJ did not properly consider all of the evidence. Specifically, the ALJ
provided only one reason for discounting the opinion of treating physician Stephenson
Holmes, and that reason—failure to consistently take medication that helped alleviate
Petitioner’s mental illness—also may be caused by Petitioner’s mental illness. The ALJ
must provide specific and legitimate reasons for rejecting Dr. Holmes’s opinion, and
although there may be other reasons in the record that could support the ALJ’s treatment
of Dr. Holmes’s opinion, the ALJ did not rely upon those reasons and the Court cannot
supply the rationale for the ALJ. See Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014)
(the court is “constrained to review the reasons the ALJ asserts”).
This is not to say that this Court conclusively finds that Petitioner is disabled.
Relatedly, it is not for this Court to resolve the question of whether Petitioner is disabled
when considering all the relevant medical evidence and how Dr. Holmes’s opinions may
factor into the ALJ’s determination. Rather, the Court is charged with reviewing the basis
of the ALJ’s decision, highlighting those areas that may call into question the decisions
MEMORANDUM DECISION AND ORDER - 15
reached by the ALJ, and, in doing so, should not be misunderstood as substituting its own
judgment for that of the ALJ’s.
The Court finds the cumulative nature of the ALJ’s decision does not afford the
Court confidence that the ALJ fairly considered all the evidence in the record, at least
how it is reflected in the ALJ’s decision. This action is therefore remanded to allow the
ALJ to revisit the opinion of Dr. Holmes and Petitioner’s anxiety diagnosis. In other
words, because the Court has doubts as to whether Petitioner is, in fact, disabled, see
Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014), this case is remanded to the ALJ
for further proceedings on an open record. On remand, the ALJ is not required to revisit
her determination as to Petitioner’s credibility, Dr. Phillip’s opinion to the extent it was
discussed and properly discredited, or any other evidence. Burrell v. Colvin, 775 F.3d
1133, 1135 (9th Cir. 2014).
V. ORDER
Based on the foregoing, Petitioner’s request for review (Dkt. 1) is hereby
GRANTED, in part. This matter is remanded pursuant to sentence four of 42 U.S.C.
§ 405(g) for further proceedings consistent with this Memorandum Decision and Order.
See Melkonyan v. Sullivan, 501 U.S. 89, 99-100 (1991).
DATED: March 31, 2015
Honorable Ronald E. Bush
U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 16
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