Brown v. Commissioner Social Security Administration
Filing
25
OPINION & ORDER: The Commissioner's final decision is reversed and remanded for a finding of disability and an award of benefits. A final judgment is entered pursuant to sentence four of 42 U.S.C. § 405(g). Signed on 12/12/12 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TAMYRA BROWN,
Plaintiff,
1: 11-cv-06277-PK
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
PAPAK, Magistrate Judge:
PlaintiffTamyra Brown challenges the Commissioner's decision denying her application
for disability insurance benefits (DIB) under Title II and supplemental security income (SSI)
under Title XVI of the Social Security Act. The Commissioner concedes that the Administrative
Law Judge (ALJ) erred in evaluating the medical evidence, and moves to remand for fi.!rther
proceedings. (#21.) Brown asks the Court to reverse and remand for an award of benefits, rather
than for finiher proceedings. The Court has jurisdiction under 42 U.S.C. § 405(g). For the
reasons set forth below, this case is remanded for an award of benefits.
Page 1- OPINION AND ORDER
BACKGROUND
Brown applied for SSI and DIB on March 4, 2008, alleging disability as of April!, 2003
due to "[f]ibromyalgia, back and neck problems, migraines, depression, thyroid, high cholesterol,
restless leg, [and] acid reflux." Tr. 106-111, 137. Brown was bom in 1960, possesses a high
school education, and worked as a hairdresser, cosmetology instructor, clerk, and babysitter. Tr.
141,145,235-237. After the Commissioner denied her application initially and upon
reconsideration, Brown requested a hearing before an administrative law judge (ALJ). Tr. 34-43,
47-55. The ALJ held a hearing on March 11,2010, taking testimony from Brown, agency
consulting medical expert Howard McClure, Jr., M.D., agency consulting psychological expert
Susan Pelzer, Ph.D., and a vocational expert. Tr. 617-640. On April27, 2010, the ALJ issued a
decision finding Brown not disabled. Tr. 13-21.
The ALJ applied the five-step sequential disability determination process set forth in 20
C.F.R. §§ 404.1520 and 416.920. Tr. 13-21. The ALJ found that Brown's date last insured was
June 30, 2009. Tr. 15. At step one, the ALJ found that Brown had not engaged in substantial
gainful activity during the period from her alleged onset date of April I, 2003, tln·ough the date
of the hearing. Id At step two, the ALJ found that Brown had the following severe
impahments: "lumbar spine degenerative disc disease with cln·onic low back pain and left leg
radiculopathy, chronic neck pain, osteoarthritis, and obesity .... " Jd At step three, the ALJ
found that Brown's impairments, or a combination of those impahments, did not meet or
medically equal a listed impairment. Tr. 15-17. The ALJ found that Brown had the residual
functional capacity to perf01m the full range of sedentary work. Tr. 17. Because of her body
habitus, Brown was precluded from climbing ladders, ropes, or scaffolds and working at heights
Page 2- OPINION AND ORDER
or with dangerous machinery. kl In consideration of her alleged mental impai1ments, the ALI
found Brown had mild to moderate restrictions in activities of daily living, mild difficulties in
social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Id
At step four, the ALI found that Brown could not perform her past relevant work as a hairdresser
or cosmetology instructor. Tr. 19. The ALI concluded at step tive that Brown could perform
jobs that exist in significant numbers in the national economy, and accordingly concluded that
she was not disabled. Tr. 20-21.
The Appeals Council denied review of the ALI's decision, making the ALI's decision the
Commissioner's final decision. Tr. 6-9. Brown then filed this action on September 6, 2011.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record as a whole. 42
U.S. C.§ 405(g); Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
"Substantial evidence means more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir. 2008) (citation omitted). The court must weigh
all of the evidence, whether it supports or detracts from the Commissioner's decision. }vfartinez
v. Heckler, 807 F.2d 771,772 (9th Cir. 1986). If evidence supports more than one rational
interpretation, the court upholds the Commissioner's decision. Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008). A reviewing court, however, "cannot affirm the decision of an
agency on a ground that the agency did not invoke in making its decision." Stout v. Comm'r Soc.
Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). "Finally, the court will not
Page 3- OPINION AND ORDER
reverse an ALI's decision for harmless error, which exists when it is clear from the record that
the ALI's en·or was inconsequential to the ultimate nondisability determination." Tommasetti,
533 F.3d at 1038 (citation omitted).
DISCUSSION
Brown argues that the ALI improperly rejected her testimony and the testimony of Dr.
Evan Merrill, Brown's treating podiatrist, and the testimony of Carla Morey, Brown's treating
physician's assistant. As a result, Brown argues that the ALI improperly relied on VE testimony
that did not consider all of Brown's ftmctionallimitations. The Commissioner concedes that the
ALJ erred in failing to discuss Dr. Menill's medical opinion, but argues that further proceedings
are appropriate to address that opinion. The Conm1issioner also implicitly concedes that the ALI
never addressed Morey's opinion, but nevertheless suggests that remand is appropriate to allow
the ALI to address the opinion of a different medical provider, Mark Greenberg, M.D., who
observed that Brown had 18 out of 18 tender points in a 2003 fibromyalgia screen. Finally, the
Commissioner argues that the ALJ properly found Brown's testimony not credible because it
conflicted with testimony of agency expert Dr. McClure and
Bro;\~1' s
rep01is of her daily
activities, including babysitting grandchildren, walking them to school, cooking, maintaining a
household, and gardening/yard work. The only question now before this comi is whether to
remand for further proceedings or for inm1ediate payment of benefits.
The decision whether to remand for further proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apftl, 211 F.3d 1172, 1178 (9th Cir.
2000). The Ninth Circuit sets fotih the following standard for determining whether to remand
for an award of benefits: "the district court should credit evidence that was rejected during the
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administrative process and remand for an immediate award of benefits if (1) the ALJ failed to
provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues
that must be resolved before a determination of disability can be made; and (3) it is clear from
the record that the ALJ would be required to find the claimant disabled were such evidence
credited." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman v. Apfel, 211
F.3d 1172, 1174, 1178 (9th Cir. 2000)). "The required analysis centers on what the record
evidence shows about the existence or non-existence of a disability." Strauss v. Comm 'r of the
Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
I.
Failure to Provide Legally Sufficient Reason for Rejecting Evidence
I find that the ALJ failed to provide legally sufficient justifications for rejecting the
opinion of Dr. Menill and Carla Morey, as well as Brown's own testimony.
II.
Dr. Merrill
Here, the Commissioner concedes that the ALJ improperly rejected the opinion of Dr.
Menill. Nevertheless, I briefly review his opinion as it pertains to Brown's functional
limitations. Dr. Merrill, a licensed podiatrist in Oregon, is considered an acceptable medical
source for the purpose of establishing impahments of the foot and ankle. See 20 C.F.R. §
404.1513(4), 416.913(4); Or. Rev. Stat.§ 677.010(14). Dr. Menill treated Brown for chronic
tendonitis in her right foot, starting in April2009. Tr. 552-553, 614. MRI results showed Brown
suffered a pmiial tear and tendonitis in the right peroneal tendons. Tr. 615. In Februmy 2010,
Dr. Merrill completed a questionnaire provided by Brown's counsel. Tr. 614-616. Dr. Menill
indicated that Brown's tendonitis caused her pain, weakness, and instability in the right lateral
foot/ankle. Tr. 614. Because of those symptoms, Dr. Merrill opined that Brown could stand and
Page 5c OPINION AND ORDER
walk only less than two hours in an eight hour workday, could sit with normal breaks for a total
of about six hours in an 8-hour workday, and would be prevented from completing a regular
workday more than two days per month because of her condition. Tr. 616.
A. Physician Assistant Morey
The Commissioner does not dispute that the ALJ did not address Morey's opinion at all
in his decision. Morey was Brown's primary medical provider, treating her for depression,
headaches, back pain, fibromyalgia, and other issues since 2000. Tr. 270-464, 555- 613. In a
questionnaire completed in April 2009, Morey stated that Brown suffered from fibromyalgia and
chronic lumbar radiculopathy (back pain). Tr. 533. In a medical evaluation dated January 25,
2010, Morey wrote that Brown's lumbar MRI showed compression of the left L5 nerve root,
severely stenotic at L5-Sl and mild narrowing of the right L5-S neural foramen. Tr. 537. Morey
opined that Brown could sit for a maximum of 30 minutes at a time due to increased pain, could
stand and walk a total of less than two hours in an eight hour workday, and could sit with normal
breaks for a total ofless than six hours in an eight hour workday. Tr. 537-538.
Physician assistants like Morey are considered to be "other sources" under the regulations
and Social Security Rulings, as opposed to "acceptable medical sources" that reflect judgments
about the nature and severity of a claimant's impairments. 20 C.F.R. § 404.1513(a), (d); S.S.R.
No. 06-03p, available at 2006 WL 2329939, at *2. Neve1iheless, an ALJ must consider all
relevant evidence, including opinions of"other sources." S.S.R. No. 06-03p at *2, *6. Indeed,
opinions from "other sources" are "important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other relevant evidence in the file." !d.
at *3. Infmmation from "other sources" cannot establish the existence of a medically
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detenninable impairment, but it "may provide insight into the severity of the impairment(s) and
how it affects the individual's ability to function." Id Moreover, the ALI "generally should
explain the weight given to opinions from these 'other sources,' or otherwise ensure that the
discussion of the evidence in the determination or decision allows a claimant or subsequent
reviewer to follow the [ALI's] reasoning, when such opinions may have an effect on the outcome
of the case." Id at *6.
Here, the ALI completely failed to mention Brown's long-standing treatment by Morey,
or Morey's opinion that Brown's pain prevented her from standing and walking two hours in a
workday or sitting six hours in a workday. Brown does not contend that Morey's opinion should
have been used to establish Brown's medically dete1minable impairments, but she does argue
that Commissioner ened by failing to consider Morey's opinion altogether. For this, the
Commissioner has no explanation. Instead, the Commissioner states that remand is required to
evaluate the opinion of Dr. Greenberg conceming Brown's fibromyalgia diagnosis. This brief
reference to Dr. Greenberg is puzzling, to say the least, since it comes in the midst of the section
of the Commissioner's brief discussing Morey and is not elaborated on anywhere else.
Moreover, neither Brown nor the Commissioner argue that the ALI erred by omitting
fibromyalgia from the list of Brown's severe impailments at step two, even though Dr.
Greenberg found Brown tested positive for 18 out of 18 tender points in a fibromyalgia screen in
January 2003. Tr. 194-195. In sum, the ALJ's failure to address Dr. Greenberg's fibromyalgia
testing has no bearing on the ALJ's improper rejection of Morey's opinion concerning the
severity and functional effect of Brown's impairment. See S.S.R. No. 06-03p at *3.
B. Brown
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The Commissioner also argues that the ALJ properly found Brown's testimony not
credible. Brown's medical records, function reports, and hearing testimony collectively describe
the progression of her back, neck, leg, and foot pain. Brown sought treatment for pain as early as
2000. Tr. 463. In 2001, she was treated for neck pain and headaches. Tr. 249. Then, in 2002,
she sought treatment for back pain, which had recurred intermittently for many years. Tr. 207208. Brown's pain worsened in 2003, apparently due to a combination offibromyalgia, migraine
headaches, long-standing depression, insomnia, and obesity. Tr. 194-196, 211-21. Brown
continued to stmggle with sleep in 2003 and 2004, but her heachaches improved. Tr. 214-215,
216-217. In 2005, however, Brown repmied aggravated low back pain and an MRI confirmed
lumbar spine radiculopathy. Tr. 209,219,220. After vicodin was ineffective to control her
pain, she received spinal injections from a pain specialist. Tr. 224-226, 228. By 2006, Brown
continued to report back pain, although it was stabilized by narcotics and muscle relaxers. Tr.
296. Over the next two years, her back pain seemed to worsen and by February 2008 she
repmied being unabk to stand for more than 10 minutes without increased pain. Tr. 256.
In a
function repmi submitted in March 2008, around the time of Brown's application for Social
Security benefits, Brown repmied constant pain in her lower back and generally tlu·oughout her
body, and right ankle pain and swelling when standing. Tr. 149. Even though Brown could not
stand more than 10-15 minutes at a time, she was still able to cook, do laundry and other
household chores, and take care of her grandchildren after school. Tr. 144-146. Her symptoms
remained relatively stable throughout 2008 and into 2009, with constant aching from
fibromyalgia, chronic back pain, aching in her ankle, and depression. Tr. 408, 577, 579. MRI
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results in March 2009 confirmed the structural cause of her ankle pain- inflamation in the sheath
sunounding tendons in her right foot. Tr. 553, 606. Brown began seeing Dr. Menill, a
podiatrist, who placed her in a cast boot and planned possible injections or surgery. Tr. 552-553.
By May 2009, Dr. Merrill recommended surgery because Brown's ankle had not improved with
conservative treatments. Tr. 548-549. Surgery on her foot in July 2009 helped her return to full
weight bearing by September 2009, but her back pain remained problematic. Tr. 540, 546. In
November 2009 she received a steroid injection because of pain that could not be relieved with
medication. Tr. 568-570. In February 2010, Brown reported that her back pain prevented her
from standing more than 20 minutes at a time, despite taking vicodin four times a day, and
activity increased her pain level to 7-8 out of 10. Tr. 562.
In the hearing before the ALJ, Brown testified that her daily activities involve taking care
of the house, reading, watching TV, playing the piano a bit, and going to her grandchildren's
basketball games. Tr. 629- 630. Brown's husband does the grocety shopping and her daughter
usually brings dinner, so Brown does not cook very much. Id Brown is no longer able to do
household chores every day like she used to, and she stopped gardening and doing yard work
altogether. Tr. 630 -632. She no longer can walk her grandchildren to school. Tr. 631. When
she does walk, she can hardly move the next day. !d. Sitting on the bleachers during her
grandson's basketball game also hurts her back so much that the next day it's hard to move,
although watching her granddaughter's games are easier because they are shorter. Tr. 632.
While at home, she lays down in her bed and sits in a chair during the day. Jd. Although her foot
surgery improved the pain somewhat in her foot, she still remains in constant pain. Id.
In his decision, the ALJ thoroughly summarized Brown's hearing testimony, but
Page 9- OPINION AND ORDER
ultimately rejected her statements concerning the intensity, persistence, and effects of her
symptoms. The Commissioner argues that the ALJ provided sufficient reasons for his adverse
credibility finding because he relied on the testimony of Dr. McClure, the agency expett, who
opined that the record did not demonstrate Brown's pain was "that unmanageable." Tr. 19, 622.
The Commissioner also argues that the ALJ properly relied on the fact that, contrmy to Brown's
hearing testimony in March 20 I 0, her function report in March 2008 indicated that she babysat
her grandchildren, walked them to school, cooked and maintained her household, and did
gardening and yard work. Tr. 18.
When a claimant's medical record establishes the presence of a "medically determinable
impahment" that "could reasonably be expected to produce the [claimant's alleged] pain or other
symptoms," the ALJ must evaluate the claimant's credibility in describing the extent of those
symptoms. 20 C.F.R. § 404.1529. In weighing a claimant's credibility, the ALJ conducts a
two-part analysis. In the first pmt, the claimant "must produce objective medical evidence of an
underlying impahment" or impairments that could reasonably be expected to produce some
degree of symptom. Tommasetti v. Astrue, 533 F.3d 1035, 1939 (9th Cir. 2008), quoting Smolen
v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir. 1996). If the claimant meets this threshold and there
is no affirmative evidence of malingering, the ALJ moves to the second part of the analysis.
There, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by
offering specific, clear and convincing reasons for doing so." ld, quoting Smolen, 80 F.3d at
1281, 1283-84 (emphasis added). In evaluating a claimant's credibility, the ALJ may consider,
inter alia, the "claimant's reputation for truthfulness, inconsistencies either in claimant's
testimony or between her testimony and her conduct, claimant's daily activities, her work record,
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and testimony from physicians and third parties conceming the nature, severity, and effect of the
symptoms of which claimant complains." Thomas v. Barnhart, 278 F.3d 947,959 (9th Cir.
2002) (internal modifications omitted), citing Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997). In
the event the ALJ determines that the claimant's report is not credible, such a dete1mination must
be made "with findings sufficiently specific to pem1it the court to conclude that the ALJ did not
arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.
2002), citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en bane).
For several reasons, I find that the ALJ failed to provide clear and convincing reasons for
rejecting Brown's testimony about the severity of her symptoms. First, although he recapitulated
Brown's testimony, as well as testimony of other witnesses, the ALJ provided no analysis
whatsoever explaining why he rejected Brown's subjective complaints. See Robbins v. Soc.
Security Admin., 466 F.3d 880, 884-885 (9th Cir. 2006) (ALJ improperly rejected claimant's
testimony when he provided no "meaningful explanation" or citation to the record to support the
conclusion that claimant was not credible); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)
("General findings are insufficient; rather, the ALJ must identity what testimony is not credible
and what evidence undermines the claimant's complaints."). Because the ALJ provided no
reasoning to support his conclusion, this court is left with the distinct impression that the ALJ
"arbitrarily discredit[ed] claimant's testimony." Thomas, 278 F.3d at 959. This enor alone is
sufficient to find that the ALJ failed to provide a legally sufficient reason for rejecting Brown's
testimony.
Additionally, even if the ALJ relied on an inconsistency between Brown's repmts of pain
and her daily activities- and it is not clear that he did- the ALJ still wed. An ALJ may look to
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testimony of a claimant's daily activities to supp011 a finding that subjective pain complaints are
not credible. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 n.2 (9th Cir. 1990). If, despite her
claims of pain, "a claimant is able to perform household chores and other activities that involve
many of the same physical tasks as a pmiicular type of job, it would not be farfetched for an ALJ
to conclude that the claimant's pain does not prevent the claimant from working." !d., quoting
Fair v. Bowen, 885 F.2d 597, 602 -04 (9th Cir. 1989). Yet, "[t]he Social Security Act does not
require that claimants be utterly incapacitated to be eligible for benefits, ... and many home
activities are not easily transferable to what may be the more grueling environment of the
workplace, where it might be impossible to periodically rest or take medication." Id; see also
Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ("This court has repeatedly asse11ed that
the mere fact that a plaintiff has carried on certain daily activities ... does not in any way detract
from her credibility as to her overall disability. One does not need to be 'utterly incapacitated' in
order to be disabled.") (citations omitted). For example, a claimant may have the capacity to
travel periodically, cook meals, and wash dishes and still be prevented from working. Fair, 885
F.2d at 603. Thus, "if a claimant is able to spend a substantial pati of his day engaged in pursuits
involving the performance of physical functions that are transferable to a work setting, a specific
finding as to this fact may be sufficient to discredit an allegation of disabling excess pain."
Gonzalez, 914 F.2d at 1201.
Here, even according to the function report in March 2008, which described Brown's
activity level before her symptoms deteriorated, Brown was not spending a substantial pa11 of the
day doing physical functions that could be transfened to the work setting. While she cooked and
completed household chores, she had to take breaks for at least 15 minutes for every 10-15
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minutes spent doing those activities. And by the time Brown testified at her hearing two years
later, she explained that she had for the most part stopped these activities due to increased back
and foot pain. In sum, Brown's daily activities did not properly serve to discredit her subjective
complaints of pain.
Finally, the ALJ erred to the extent he relied on Dr. McClure's testimony to discredit
Brown's complaints. Without examining Brown, Dr. McClure opined that the record did not
indicate Brown's pain was "that unmanageable" so as to prevent sedentary work. Tr. 622. As an
initial matter, Dr. McClure's opinion alone cmmot provide the substantial evidence necessary to
support the ALJ's decision, because it is inconsistent with the opinions of Brown's treating
providers and other evidence in the record. See Saelee v. Chafer, 94 F.3d 520, 522 (9th
Cir.l996) ("The findings of a nontreating, nonexamining physician can amount to substantial
evidence, so long as other evidence in the record supports those findings."). Further, although an
ALJ may reject excess pain testimony by making specific findings justifying that decision, the
ALJ here did not refer to Dr. McClure's testimony as the basis for rejecting Brown's testimony.
See Col/on v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). Finally, Dr. McClure provided no
specific justification for his conclusion that Brown's pain was not "that unmanageable," other
than his vague reference to "the record." Tr. 622. Dr. McClure's testimony therefore indicates
that he rejected Brown's pain complaints because they were not suppotied by objective medical
findings in the record. An ALJ may not reject excess pain testimony solely on the ground that it
was not fully corroborated by objective medical findings. See Cotton, 799 F.2d at 1407. It
therefore stands to reason that an ALJ may not rely exclusively on the opinion of an agency nonexamining expeti who rejects a claimant's excess pain testimony for that same impermissible
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reason.
In sum, because the ALJ failed to provide legally sufficient reasons for rejecting
Brown's testimony and the opinions of Dr. Merrill and Moray, the court credits that evidence as
true. Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (crediting as true claimant's
testimony and opinions of her treating physicians before addressing second and third steps of the
remand inquhy).
III.
No Outstanding Issues
The second requirement for remand to award benefits is also satisfied here because there
are no outstanding issues remaining to be addressed by the ALJ. The Commissioner suggests
that the ALJ must be allowed to "address" Dr. Merrill's and Moray's opinions on remand. But
he improperly ignored both those sources, and as a result, I credit them as true. Moreover, the
record need not be supplemented with further vocational testimony. Based on Moray and Dr.
Merrill's opinions that Brown could only stand for less than two hours a day and sit for six hours
a day, Brown's counsel asked the VEto consider an individual with those limitations. Tr. 639.
The VE testified that such an individual would not be able to perf01m Brown's past work or any
work. Tr. 639-640. Additionally, the VE agreed that an individual who had to take unscheduled
breaks to lay down or leave the workplace could not remain employed. Tr. 638. This limitation
reflects Moray's opinion that Brown has to lie down or rest periodically during the day, and
Brown's own testimony that she lays down in her bed everyday at least once during the daytime.
Tr. 537, 632. Because the record, including the existing VE testimony, clearly establishes that
Brown cannot perform either sedentary work or any other substantial gainful work that exists in
the national economy, there is no need to remand this case to the ALJ to redetermine her residual
Page 14- OPINION AND ORDER
functional capacity or solicit addition VE testimony. See Benecke v. Barnhart, 379 F.3d 587,
595 (9th Cir. 2004).
IV.
Finding of Disability Required
Given my conclusion above that no outstanding issues exist for the ALJ, the third
requirement is also met in this case. After crediting the testimony of Brown and opinions of Dr.
Merrill and Carla Morey, the ALJwould be required to find Brown disabled. The
Commissioner, however, suggests that Brown may have difficulty establishing disability before
her date last insured of June 30, 2009, but does not explain why that is so.
Where the court has already determined to remand for the immediate award of benefits, it
also proper for the court to dete1mine the onset date of disability. See Vertigan v. Halter, 260
F.3d 1044, 1054 (9th Cir. 2001 ). The Commissioner addresses the issue of dete1mining
disability onset date in Social Security Ruling 83-20. S.S.R. No. 83-20, available at 1983 WL
31249. According to SSR 83-20, factors relevant to the onset of disability "include the
individual's allegation, the work history, and the medical evidence." ld., 1983 WL 31249, at* 1.
While the factors are evaluated together, an individual's allegations or the date of work stoppage
"is significant in determining onset only if it is consistent with the severity of the condition( s)
shown by the medical evidence." Id.
Here, plaintiff alleges onset of disability on April 1, 2003, and the ALJ found that she had
not engaged in substantial gainful activity since then. Tr. 15. Moreover, medical evidence
supports that onset date, even though the eventual source of Brown's pain symptoms was not
identified until later. The record shows that Brown received various treatments for back pain
Page 15-0PINION AND ORDER
since at least 2000. By 2003, several medical providers had recognized Brown's pain symptoms
and gave her various pain-related diagnoses. Tr. 207-208 (Patricia Hoyecki, FNP diagnoses
chronic back pain in June 2002); Tr. 386 (Carla Morey diagnoses back pain and fibromyalgia in
December 2002); Tr. 194-196 (Dr. Greenberg diagnoses fibromyalgia, depression/anxiety, and
obesity in Januaty 2003); Tr. 211-213 (Dr. Tippin diagnoses insonmia, restless leg syndrome,
migraine, chronic depression, chronic pain syndrome, and obesity in July 2003). But it was only
in June 2005 that Brown underwent a lumbar MRJ, which finally revealed the structural cause of
her pain symptoms. Tr. 220. In light of the MRJ results, Brown's neurologist revised her
diagnosis to "L5 radiculopathy, left, secondary to foramina! stenosis" and observed that Brown
"clearly has a significant back problem that requires continued treatment." I d. The combination
of plaintiffs allegation of onset, her cessation of substantial gainful activity, and the medical
evidence all supp01t a finding of disability with an onset date of April 1, 2003.
CONCLUSION
For the reasons set fmth above, the Commissioner's final decision is reversed and
remanded for a tinding of disability and an award of benefits. A final judgment is entered
pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
D'tcd "'"
12
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Honorable Paul Papak
United States Magistrate Judge
Page 16- OPINION AND ORDER
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