SCHOTT v. Berryhill
ORDER re 9 MOTION for Summary Judgment filed by ROANN K. SCHOTT. IT IS ORDERED that the Commissioners decision is reversed and this matter is remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405)(g). Signed by Magistrate Judge Kathleen L. DeSoto on 10/7/2019. (APP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ROANN K. S.,
ANDREW M. SAUL, Commissioner
of Social Security,
Plaintiff brings this action under 42 U.S.C. § 405(g) seeking judicial review
of a decision by the Commissioner of Social Security denying her application for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §
401 et seq.
Plaintiff protectively filed an application for Title II disability insurance
benefits in April 2014, alleging disability since April 3, 2014. (Doc. 6, at 273).
Plater later amended her alleged onset date to April 3, 2013. (Doc. 6, at 158).
Plaintiff met the insured status requirements of the Social Security Act through
December 31, 2018. (Doc. 6, at 134). Plaintiff’s claim was denied initially and on
reconsideration, and by an ALJ after an administrative hearing. (Doc. 6, at 216,
221, 129-146). The Appeals Council denied Plaintiff’s subsequent request for
review, thereby making the ALJ’s decision dated February 2, 2016 the agency’s
final decision for purposes of judicial review. Jurisdiction vests with this Court
pursuant to 42 U.S.C. § 405(g).
Standard of Review
42 U.S.C. § 405(g) provides a limited waiver of sovereign immunity,
allowing for judicial review of social security benefit determinations after a final
decision of the Commissioner made after a hearing. See Treichler v. Commissioner
of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). A court may set aside
the Commissioner’s decision “only if it is not supported by substantial evidence or
is based on legal error.” Treichler, 775 F.3d at 1098 (quoting Andrews v. Shalala,
53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Widmark
v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006). “The ALJ is responsible for
determining credibility, resolving conflicts in medical testimony, and resolving
ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “Where
evidence is susceptible for more than one rational interpretation,” the court must
uphold the ALJ’s decision. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
“Finally, the court will not reverse an ALJ’s decision for harmless error, which
exists when it is clear from the record that ‘the ALJ’s error was inconsequential to
the ultimate nondisability determination.’” Tommasetti v. Astrue, 533 F.3d 1035,
1038 (9th Cir. 2008) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th
To qualify for disability benefits under the Social Security Act, a claimant
bears the burden of proving that (1) she suffers from a medically determinable
physical or mental impairment that has lasted or can be expected to last for a
continuous period of twelve months or more; and (2) the impairment renders the
claimant incapable of performing past relevant work or any other substantial
gainful employment that exists in the national economy. 42 U.S.C. §§
423(d)(1)(A), 423(d)(2)(A). See also Batson v. Commissioner of Soc. Sec. Admin.,
359 F.3d 1190, 1193-94 (9th Cir. 2004).
In determining whether a claimant is disabled, the Commissioner follows a
five-step sequential evaluation process. 20 C.F.R. §§ 404.1520 and 416.920. If a
claimant is found to be “disabled” or “not disabled” at any step, the ALJ need not
proceed further. Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005). The
claimant bears the burden of establishing disability at steps one through four of this
process. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
At step one, the ALJ considers whether the claimant is engaged in
substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If
so, then the claimant is not disabled within the meaning of the Social Security Act.
At step two, the ALJ must determine whether the claimant has any
impairments, singly or in combination, that qualify as severe under the regulations.
20 C.F.R. §§ 404.1520(a)(4)(ii) and 416.920(a)(4)(ii). If the ALJ finds that the
claimant does have one or more severe impairments, the ALJ will proceed to step
At step three the ALJ compares the claimant’s impairments to the
impairments listed in the regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii) and
416.920(a)(4)(iii). If the ALJ finds at step three that the claimant’s impairments
meet or equal the criteria of a listed impairment, then the claimant is considered
disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 416.920(a)(4)(iii).
If the ALJ proceeds beyond step three, he must assess the claimant’s residual
functional capacity. The claimant’s residual functional capacity is an assessment of
the work-related physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations. 20 C.F.R. §§ 404.1545(a),
416.945(a); Social Security Ruling (SSR) 96-8p. The assessment of a claimant’s
residual functional capacity is a critical part of steps four and five of the sequential
At step four, the ALJ considers whether the claimant retains the residual
functional capacity to perform her past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant establishes an inability to
engage in past work, the burden shifts to the Commissioner at step five to establish
that the claimant can perform other work that exists in significant numbers in the
national economy, taking into consideration claimant’s residual functional
capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v) and
416.920(4)(v). The ALJ may satisfy this burden through the testimony of a
vocational expert or by referring to the Medical-Vocational Guidelines set forth in
the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the ALJ meets this
burden, the claimant is not disabled.
The ALJ followed the five-step sequential evaluation process in evaluating
Plaintiff’s claim. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity after the amended alleged onset date of April 3, 2013.
(Doc. 6, at 134). At step two, the ALJ found that Plaintiff had the following severe
impairments: degenerative disc disease in the lumbosacral spine, degenerative
spondylolisthesis at L4-5, lateral foraminal stenosis at L5-S1, sacroiliitis, and
bilateral hip bursitis. (Doc. 6, at 134). At step three, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that met or medically
equaled any impairment described in the Listing of Impairments, 20 C.F.R. §
404.1520(d); 20 C.F.R. pt. 404, subpt. P, app. 1. (Doc. 6, at 1016-17).
The ALJ then found that Plaintiff had the residual functional capacity to
perform a reduced range of sedentary work as follows:
[Plaintiff] is able to lift and carry 20 pounds occasionally and 10 pounds
frequently, stand and walk for 2 hours in an 8-hour day, sit for 30 minutes at
one time where she can stand and stretch for 10 to 15 seconds before sitting
again and with normal breaks can sit for 6 hours in an 8-hour day; can never
climb ladders, ropes, and scaffolds and crawl, can occasionally climb ramps
and stairs, balance, stoop, kneel, and crouch, and avoid concentrated
exposure to extreme cold and vibration.
(Doc. 6, at 137). Based on this residual functional capacity, the ALJ found at step
four that Plaintiff was capable of performing past relevant work as an account
manager, logistic manager, and dispatcher/trailer coordinator, both as generally
performed in the national economy and as actually performed by her. (Doc. 6, at
140-41). Because Plaintiff was capable of past relevant work, the ALJ stopped at
step four and found that Plaintiff was not disabled within the meaning of the Social
Security Act from April 3, 2013 through the date of his decision on February 2,
2016. (Doc. 6, at 132, 141).
Plaintiff argues the ALJ’s decision is not supported by substantial evidence
and raises five issues on appeal. First, Plaintiff maintains the ALJ failed to fully
and fairly develop the administrative record because he did not order a consultative
physical or psychological evaluation and did not obtain all of her medical records.
Second, Plaintiff argues the ALJ erred by discounting the opinion of treating
physician Dr. Patrick Danaher in favor of opinions provided by the non-examining
state agency physicians. Third, Plaintiff contends the ALJ failed to give germane
reasons for discounting a functional capacity evaluation completed by physical
therapist Tara Wilson. Fourth, Plaintiff maintains the ALJ did not provide
sufficiently clear and convincing reasons for discrediting her subjective symptom
testimony. Finally, Plaintiff argues the ALJ erred by failing to consider the sideeffects of her medications. The Court addresses each of these arguments in the
order set forth below.
Subjective Symptom Testimony
Plaintiff argues the ALJ did not provide sufficiently clear and convincing
reasons for discounting her subjective testimony. Plaintiff testified that she spends
most of her days at home doing little more than taking short walks in her yard,
lying down and sitting in her recliner, watching television, and doing physical
therapy exercises. (Doc. 6, at 166-69). She explained that she microwaves meals
prepared by her husband, feeds the pets, does one load of laundry each week, needs
to lean on the sink to rinse out dishes, and spends most of her time lying down.
(Doc. 6, at 169-71). Plaintiff stated that she goes grocery shopping once a week
with her husband and has to take hydrocodone and use lidocaine patches before
leaving the house. (Doc. 6, at 172, 174). Plaintiff further testified that while
shopping, she cannot walk around the store without leaning on her husband and the
cart for support. (Doc. 6, at 172). Plaintiff stated that she is constant pain and uses
Tramadol, Advil, and lidocaine patches on a daily basis. (Doc. 6, at 175-76).
The ALJ must follow a two-step process when evaluating a claimant’s
subjective symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th
Cir. 2007). At step one, “the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged.”
Lingenfelter, 504 F.3d at 1036. If the claimant meets this initial burden, at step two
the ALJ may discredit the claimant’s subjective symptom testimony about the
severity of his symptoms “only by offering specific, clear and convincing reasons
for doing so.” Lingenfelter, 504 F.3d at 1036.
Factors for the ALJ to consider when assessing a claimant’s subjective
testimony include (1) daily activities, (2) the location, duration, frequency, and
intensity of pain and other symptoms, (3) precipitating and aggravating factors, (4)
the type, dosage, effectiveness, and side effects of any medication, (5) treatment
other than medication, and (6) any measures used to relieve pain and other
symptoms. 20 C.F.R. §§ 404.1529(c)(3); 416(c)(3). In addition, the ALJ may
consider (1) ordinary techniques of credibility evaluation, such as prior
inconsistent statements concerning the alleged symptoms, and (2) unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course of
treatment. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ may also
take the lack of objective medical evidence into consideration when assessing
subjective symptom testimony but may not discount that testimony “solely because
the available objective medical evidence does not substantiate [the claimant’s]
statements.” 20 C.F.R. §§ 404.1529(c)(2), 416.929(c). Batson v. Comm’r of Soc.
Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004).
Here, the ALJ found that Plaintiff met her initial burden because she
produced evidence of medically determinable impairments that could reasonably
be expected to cause her alleged symptoms. The ALJ then found that Plaintiff’s
subjective statements concerning the intensity, persistence and limiting effects of
her symptoms were not entirely credible for several reasons. (Doc. 6, at 139).
First, while the ALJ recognized that Plaintiff was limited due to
degenerative disc disease, he pointed out that this impairment was present long
before her alleged onset date and had not prevented her from working. The ALJ
further noted that Plaintiff stopped working at the time of her alleged onset date
not because of her pain and other symptoms but because her employment was
terminated for allegedly violating company policy. (Doc. 6, at 137, 177). An ALJ
may consider evidence that a claimant stopped working for reasons unrelated to
disability when discounting subjective symptom testimony. See Berry v. Astrue,
622 F.3d 1228, 1235 (9th Cir. 2010); Tommasetti v. Astrue, 533 F.3d 1035, 1040
(9th Cir. 2008); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).
Consistent with the ALJ’s observation, Plaintiff stated on a disability report
form that she had been wrongfully discharged and had therefore stopped working
for “other reasons” not related to her alleged disability. (Doc. 6, at 396). Plaintiff
nevertheless takes the position that the reasons for her termination were in fact
disability-related because her back pain caused the gruff and stern demeanor for
which she was apparently terminated. Plaintiff does not point to any evidence or
treatment notes reflecting such a link, however, and her treating pain specialist Dr.
Patrick Danaher consistently observed that she demonstrated “appropriate mood
and affect” during their visits. (Doc. 10, at 396, 400, 489). The ALJ permissibly
found the fact that Plaintiff stopped working for reasons unrelated to her alleged
disability undermined her testimony as to the severity of her symptoms.
Second, the ALJ considered that after her alleged onset date, Plaintiff held
herself out as capable of working in order to collect unemployment benefits. (Doc.
6, at 137). Receipt of unemployment benefits may “cast doubt on a claim of
disability,” as it shows the claimant “holds [herself] out as capable of working.”
Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). See also Carmickle v.
Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008) (where a
claimant holds himself out as available for full-time work, receipt of
unemployment benefits may undermine a claim of disability). The ALJ noted that
while Plaintiff alleges disability since April 3, 2013, she received approximately
$16,985 in unemployment compensation during the second, third, and fourth
quarters of 2013. (Doc. 6, at 137, 275). Plaintiff concedes that she collected
unemployment benefits during this period and does not argue or point to evidence
that she only claimed availability for part-time work. (Doc. 12, 4). See Dale S. v.
Berryhill, 2018 WL 4042818 *9 (C.D. Cal. Aug. 22, 2018) (“A represented
claimant, upon seeing that the ALJ has relied on receipt of unemployment
compensation to discount subjective testimony should either present evidence to
the Appeals Council that he/she only claimed availability for part-time work or
else be found to have waived any challenge to the ALJ’s finding of
inconsistency.”) The ALJ permissibly cited Plaintiff’s receipt of unemployment
benefits after her alleged onset date as a basis for discounting her subjective
Third, the ALJ discussed evidence showing that Plaintiff’s symptoms
improved with treatment. (Doc. 6, at 137-38). When assessing a claimant’s
subjective testimony, an ALJ may consider evidence demonstrating that the
claimant’s condition improved in response to treatment. See 20 C.F.R. §§
404.1529(c)(3)(v), 416.929(c)(3)(v); Tommasetti v. Astrue, 533 F.3d at 1040;
Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003). The ALJ considered
evidence reflecting that Plaintiff’s back pain improved following lumbar fusion
surgery in August 2014. (Doc. 6, at 138, 445-447). The ALJ also cited evidence
showing that lumbar epidurals and sacroiliac joint injections provided additional
relief, as did physical therapy. (Doc. 6, at 138, 480-484, 487-494). While the
record reflects that Plaintiff continued to experience some degree of chronic back
pain, the ALJ appropriately found that her subjective complaints as to the disabling
severity of her pain were undermined by evidence showing overall improvement
Finally, the ALJ found that Plaintiff reported engaging in activities that were
not entirely consistent with her alleged limitations. An ALJ may rely on a
claimant’s activities when discounting subjective complaints if those activities are
inconsistent with the alleged symptoms. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
2007). As the ALJ pointed out, Plaintiff claimed in a July 21, 2014, function report
that she was unable to sit, stand, or walk for more than five minutes, but indicated
she was able to feed animals, do some laundry and vacuuming, drive a car, and
leave her home on her own. (Doc. 6, at 139, 309, 311-312). While the activities
Plaintiff described were certainly limited, the ALJ reasonably found they were not
consistent with Plaintiff’s claim that she could only sit, stand, or walk for five
minutes at a time.
The Court concludes the ALJ provided sufficiently clear and convincing
reasons supported by substantial evidence for discounting Plaintiff’s subjective
testimony. To the extent Plaintiff argues the ALJ erred by not specifically walking
through each of the seven factors set forth in 20 CFR §§ 404.1529(c)(3) and
416.929(c)(3), including medication side effects, when assessing her subjective
testimony, the Court is not persuaded. Review of the ALJ’s decision reflects that
he adequately considered the relevant evidence and any error in not addressing
medication side effects was harmless as outlined below.
Medication Side Effects
Plaintiff maintains the ALJ failed to consider the side effects of her
medications in making his residual functional capacity assessment. The ALJ is
required to consider all factors that might have a significant impact on a claimant’s
ability to work, including medication side effects. Erickson v. Shalala, 9 F.3d 813,
817-18 (9th Cir. 1993). Side effects that are not “severe enough to interfere with [a
claimant’s] ability to work” need not be considered. Osenbrock v. Apfel, 240 F.3d
1157, 1164 (9th Cir. 2001). A claimant has the burden of producing evidence that
her use of prescription drugs impairs her ability to work. Miller v. Heckler, 770
F.2d 845, 849 (9th Cir. 1985).
Plaintiff argues “the medical records are replete with references to side
effects from her medications, which included nausea, weight gain, gastrointestinal
issues, fatigue, and mental acuity.” (Doc. 10, at 22). But Plaintiff does not support
this general argument with any citations to the record and does not identify any
objective evidence that her medications caused side effects that might interfere
with her ability to work. Instead, Plaintiff relies on her own subjective claims of
drowsiness and problems with concentration. Because Plaintiff did not produce any
“evidence of side effects severe enough to interfere with [her] ability to work,” any
error on the ALJ’s part in not addressing those side effects was harmless. See
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ’s failure to discuss
medication side effects is not error where alleged side effects are not supported by
the record); Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (claimant failed to
meet his burden of producing evidence that prescription medications impaired his
ability to work).
Other Source Evidence
Plaintiff next argues the ALJ erred by not giving more weight to the opinion
of her physical therapist, Tara Wilson.
A physical therapist is not an “acceptable medical source” and is instead
considered an “other source” under the regulations. 20 C.F.R. §§404.1513(d)(1),
416.913(d). Other sources cannot give medical opinions and “cannot establish the
existence of a medically determinable impairment” but can provide evidence about
the severity of a claimant’s impairments and how they affect the claimant’s ability
to work. SSR 06-03p. See also 20 C.F.R. §§ 404.1513(d), 416.913(d). While an
ALJ must provide specific and legitimate reasons based on substantial evidence to
discount evidence from an “acceptable medical source,” evidence from an “other
source” is not entitled to the same deference and may be discounted if the ALJ
provides germane reasons for doing so. Molina v. Astrue, 674 F.3d 1104, 1111-12
(9th Cir. 2012).
In July 2015, Wilson completed a Medical Source Statement of Ability to do
Work-Related Activities (Physical) form on which she indicated that Plaintiff
could only sit, stand, or walk for five minutes at a time. (Doc. 6, at 507). Wilson
explained that her opinion was based on having treated Plaintiff for approximately
one month – from June 8, 2015 to July 27, 2015. (Doc. 6, at 506). Wilson stated
that Plaintiff could sit, stand, or walk for a total of one to two hours in a an eighthour work day, and would spend the rest of that time lying down. (Doc. 6, at 507).
Wilson referred the reader to her treatment notes for details. (Doc. 6, at 507).
The ALJ noted that Wilson had only seen Plaintiff five times over a sixweek period (Doc. 6, at 139), and found that her opinion regarding Plaintiff’s
limited ability to sit, stand, and walk was apparently based on Plaintiff’s subjective
complaints, as Wilson had done no objective testing to measure Plaintiff’s abilities.
(Doc. 6, at 139). Consistent with the ALJ’s reasoning, Wilson’s notes reflect that
during one of their sessions, Plaintiff reported doing better but then having more
back pain after doing “a lot of driving this last weekend” which suggests she could
sit for more than five minutes. (Doc. 6, at 499). While Wilson described Plaintiff
having some pain flareups with increased exercises or driving, she also wrote that
Plaintiff tolerated therapy well and benefited from a SI (sacroiliac) belt. (Doc. 6, at
495-505). The ALJ reasonably discounted the extreme limitations identified by
Wilson for the germane reason that she had only seen Plaintiff a handful of times
over a short period of time, had not done any objective testing, and seemed to rely
in large part on Plaintiff’s subjective complaints.
Medical Opinion Evidence
Plaintiff argues the ALJ erred by discounting the opinion of treating
physician Dr. Patrick Danaher in favor of opinions provided by the non-examining
state agency physicians.
When evaluating a disability claim, an ALJ may rely on medical “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. Chater, 81 F.3d 821, 830 (9th Cir. 2995). Generally, the opinion of a
treating physician is entitled to the greatest weight. Lester, 81 F.3d at 830. “The
opinion of an examining physician is, in turn, entitled to greater weight than the
opinion of a non-examining physician.” Lester, 81 F.3d at 830.
Where there are conflicting medical opinions in the record, the ALJ is
responsible for resolving that conflict. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th
Cir. 2012). If a treating physician’s opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence” in the record, it is entitled to controlling
weight. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir 2007). If a treating physician’s
opinion is not entitled to controlling weight, the ALJ considers several factors in
determining what weight it will be given. Orn, 495 F.3d at 631. Those factors
include the “[l]ength of the treatment relationship and the frequency of the
examination” and the “[n]ature and extent of the treatment relationship.” Orn, 495
F.3d at 631 (quoting 20 C.F.R. § 404.1527(c)(2)(i)-(ii)). Additional factors relevant
to the ALJ’s evaluation of any medical opinion, not limited to that of a treating
physician, include: (1) the supportability of the opinion; (2) the consistency of the
opinion with the record as a whole; (3) the specialization of the treating or
examining source; and (4) any other factors that are brought to the ALJ’s attention
that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c).
To discount the uncontroverted opinion of a treating or examining physician,
the ALJ must provide clear and convincing reasons for doing so and those reasons
must be supported by substantial evidence. Lester, 81 F.3d at 830 (9th Cir. 1995).
To discount the controverted opinion of a treating or examining physician, the ALJ
must provide specific and legitimate reasons supported by substantial evidence in
the record. Lester, 81 F.3d at 830. The ALJ may accomplish this by setting forth "a
detailed and thorough summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and making findings." Magallanes v. Bowen, 881
F.2d 747, 751 (9th Cir. 1989).
The administrative record in this case contains conflicting opinions from
treating and non-examining medical sources. Given these conflicting opinions, the
ALJ was required to give specific and legitimate reasons for discrediting one
opinion in favor of another.
Dr. Danaher is a pain medicine specialist who began treating Plaintiff for
low back pain in April 2010. (Doc. 6, at 514). Dr. Danaher saw Plaintiff
approximately four or five times a year in 2011 and 2012 (Doc. 6, at 521-5530,
644-670) and less frequently thereafter. (Doc. 6, at 480-484, 487-494, 512-513).
He administered occasional lumbar epidurals and sacroiliac joint injections for
Plaintiff’s low back and hip pain. (Doc. 6, at 390, 483, 525).
On October 6, 2015, Dr. Danaher completed a residual functional capacity
form on which he stated that Plaintiff symptoms included “bilateral low back pain
and bilateral hip pain,” and “occasional radicular right leg pain with prolonged
standing (ie, longer than 3 hours).” (Doc. 6, at 514). Dr. Danaher indicated that L45 lumbar fusion surgery performed by orthopedic surgeon Dr. Michael Woods in
August 2014 had resulted in “minimal improvement,” sacroiliac joint injections
yielded “only temporary improvement on one occasion,” and physical therapy
resulted in “minor improvement.” (Doc. 6, at 515). Dr. Danaher’s prognosis for
Plaintiff was “poor for return to work secondary to ongoing low back pain.” (Doc.
6, at 515). He stated that “sitting, standing, or walking for two hours causes
disabling low back pain requiring [Plaintiff] to lay down,” (Doc. 6, at 516) and
wrote that Plaintiff was not capable of working because “she is not able to sit for
prolonged periods of time.” (Doc. 6, at 518).
The ALJ considered Dr. Danaher’s opinion but gave it limited weight
primarily because it was not consistent with his treatment records, particularly his
more recent ones. (Doc. 6, at 140). When Dr. Danaher provided his October 2015
opinion, he had most recently seen Plaintiff on May 26, 2015 and July 7, 2015.
(Doc. 6, at 480-484, 487-491). At the office visit in May 2015, Plaintiff presented
with low back and bilateral hip pain but described no neurologic deficits. (Doc. 6,
at 480). Plaintiff’s gait was antalgic with full weight bearing and no use of an
assistive device, and she had normal lower extremity strength bilaterally. (Doc. 6,
at 482). Dr. Danaher found limited active range of motion in Plaintiff’s lumbar
spine and administered bilateral trochanteric bursa injections. (Doc. 6, at 483). Dr.
Danaher noted that a component of Plaintiff’s pain had improved following L4-L5
fusion surgery in August 2014, and he recommended that she resume physical
therapy and participate in a reconditioning program. (Doc. 6, at 483).
At the July 7, 2015, follow up visit, Dr. Danaher noted that the bilateral
trochanteric bursa injections had resolved Plaintiff’s left sided hip pain and
provided five weeks of relief from right sided pain. (Doc. 6, at 487). Dr. Danaher
described Plaintiff’s level of distress as mild, noted that her gait and left hip were
normal, and administered another trochanteric bursa injection in her right hip.
(Doc. 6, at 489). Dr. Danaher did not see Plaintiff again before completing the
residual capacity assessment form on October 6, 2015. The ALJ discussed Dr.
Danaher’s treatment notes from these two office visits and reasonably found they
were not consistent with all of the limitations he identified on the residual
functional capacity form.
The ALJ also found that Dr. Danaher’s opinion was apparently based on
Plaintiff’s subjective complaints as to the severity of her pain, as he had performed
no objective testing to identify her limitations and determine what tasks she was
able to perform. (Doc. 6, at 140). As discussed above, the ALJ provided
sufficiently clear and convincing reasons for discounting Plaintiff’s subject
testimony as to the severity of her pain and resulting limitations. Having
discounted that that testimony, the ALJ permissibly discounted Dr. Danaher’s
opinion to the extent it was based on Plaintiff’s statements regarding the severity of
her pain and limitations. See Morgan v. Commissioner of Social Sec. Admin., 169
F.3d 595, 602 (9th Cir. 1999); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
1999); Bray v. Commissioner, 554 F.3d 1219, 1228 (9th Cir. 1999).
Moreover, to the extent Dr. Danaher stated that Plaintiff most likely would
not be able to return to work full time, the ALJ properly pointed out that a
statement by a medical source that a claimant is “unable to work” is an opinion on
an issue reserved to the Commissioner and is not a medical opinion. 20 C.FR. §§
Even where, as here, the ALJ properly discounts medical opinion evidence,
the residual functional capacity assessment must be supported by substantial
evidence in the record. See Lester, 81 F.3d at 830. In finding Plaintiff capable of a
limited range of sedentary work, the ALJ gave partial weight to the opinions of the
state agency physicians. Dr. Shanker Gupta reviewed the medical records and
issued his opinion in September 2014 (Doc. 6, at 196-204), and Dr. Ronal Hull
reviewed the medical records and issued his opinion in April 2015. (Doc. 6, at 206215). Both Dr. Gupta and Dr. Hull found that Plaintiff was capable of sitting,
standing, or walking a total of six hours in an eight-hour day, and identified other
limitations consistent a range of light work. Notably, however, neither of them had
Plaintiff’s most recent medical records in front of them when they issued their
opinions. Even the ALJ agreed that Dr. Gupta and Dr. Hull overstated Plaintiff’s
abilities and gave their opinions only partial weight. The ALJ rejected many of
their findings, including their assessment of Plaintiff’s ability to stand and walk,
climb ladders, ropes, and scaffolds, and crawl. (Doc. 6, at 140). Thus, the opinions
of these non-examining medical sources do not constitute substantial evidence to
support the ALJ’s residual functional capacity assessment. As discussed below, the
Court agrees with Plaintiff that the ALJ erred by not ordering a consultative
Duty to Develop the Record
Plaintiff argues the ALJ failed to fully and fairly develop the record because
he did not order a consultative physical or psychological evaluation and did not
obtain all of her medical records
An “ALJ in a social security case has an independent ‘duty to fully and
fairly develop the record and to assure that the claimant’s interests are
considered.’” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting
Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). But the “ALJ’s duty to
develop the record further is triggered only when there is ambiguous evidence or
when the record is inadequate to allow for proper evaluation of the evidence.”
Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).
Furthermore, whether to order a consultative evaluation or additional testing
is left to the ALJ’s discretion. See 20 C.F.R. §§ 404.1519a, 416.919a. See also
Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001). The ALJ may order “a
consultative examination to try to resolve an inconsistency in the evidence, or
when the evidence as a whole is insufficient to allow” the ALJ to make an
informed disability determination. See 20 C.F.R. §§ 404.1519a, 416.1519a.
Plaintiff asserts that some of her medical records are missing and maintains
the ALJ should have secured them. Plaintiff lists several medical providers by
name but does not identify what records she believes are missing, explain what
information they would have provided, or elaborate on how the records would have
been material to the disability determination. (Doc. 10, at 20). Moreover, at the
administrative hearing, the ALJ asked Plaintiff’s attorney if he needed more time
to get any additional medical records. (Doc. 6, at 157). Plaintiff’s attorney
identified certain additional medical records that predated the April 3, 2013,
amended alleged disability onset date, but he did not suggest there were any other
missing medical records. (Doc. 6, at 157). The ALJ held the record open for a
period of thirty days to allow Plaintiff to submit additional medical records. (Doc.
6, at 193-194). Plaintiff’s vague reference to additional medical records is
inadequate to establish that those records are material or that the ALJ should have
obtained those records.
Plaintiff next argues the ALJ should have ordered a consultative
psychological examination because he stated she was “not as incapacitated as she
claims or perceives herself to be” (Doc. 6, at 138) when discounting her subjective
testimony. But Plaintiff does not develop this argument any further, cite to any
medical evidence of a severe mental impairment, or challenge the ALJ’s step two
finding that she does not have any severe mental impairments. She fails to show
how the evidence of record concerning her psychological health was ambiguous or
otherwise insufficient to support the ALJ’s decision. Accordingly, Plaintiff has not
given the Court any reason to find that the ALJ had a duty to further develop the
record by ordering a psychological evaluation.
Plaintiff’s final argument – that the ALJ should have ordered a physical
consultative evaluation – is more persuasive. As discussed above, the ALJ properly
discounted the functional capacity assessments provided by Dr. Danaher and
Wilson. The only other functional capacity assessments were those provided by the
state agency physicians, which the ALJ found overstated many of Plaintiff’s
physical limitations. There are no consultative examiner opinions in the record, and
no other medical or other source opinions identifying Plaintiff physical abilities
and limitations. Absent such an opinion, the evidence as a whole was insufficient
to allow the ALJ to make an informed disability determination. The ALJ thus erred
by failing to obtain a consultative physical examination. Because the residual
functional capacity assessment is not supported by substantial evidence, this case
must be remanded.
Except in rare circumstances, the proper course is to remand to the agency
for further proceedings. Leon v. Berryhill , 874 F.3d 1130, 1132 (9th Cir. 2017).
Under the credit-as-true rule, a district court may remand for an award of benefits
when the following three conditions are satisfied: “(1) the record has been fully
developed and further administrative proceedings would serve no useful purpose;
(2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence,
whether claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be required to find the
claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.
2014). Even if all three requirements are met, the Court retains “flexibility” in
determining the appropriate remedy and may remand for further proceedings
“when the record as a whole creates serious doubt as to whether the claimant is, in
fact, disabled within the meaning of the Social Security Act.” Burrell v. Colvin,
775 F.3d 1133, 1141 (9th Cir. 2014 (quoting Garrison, 759 F.3d at 1021). Here,
remand for further proceedings is warranted because a consultative examination is
necessary, the record has not been fully developed, and there are outstanding issues
that must be resolved before a disability determination can be made.
For all of the above reasons,
IT IS ORDERED that the Commissioner’s decision is reversed and this
matter is remanded for further proceedings pursuant to sentence four of 42 U.S.C.
DATED this 7th day of October, 2019
Kathleen L. DeSoto
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?