Mayes v. Commissioner Social Security Administration
Filing
21
OPINION AND ORDER. Signed on 12/15/2014 by Judge Anna J. Brown. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SALLY LOU MAYES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
MARLENE R. YESQUEN
Black Chapman Webber & Stevens
221 Stewart Avenue, Suite 209
Medford, OR 97501
(541) 772-9850
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
(503) 727-1003
1 - OPINION AND ORDER
1:13-cv-01907-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2733
Attorneys for Defendant
BROWN, Judge.
Plaintiff Sally Lou Mayes seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Act.
This Court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C.
§
405(g).
Following a thorough
review of the record, the Court REVERSES the Commissioner's final
decision and REMANDS this matter for further administrative
proceedings.
ADMINISTRATIVE HISTORY
Plaintiff filed her application for SSI on September 29,
Tr. 24. 1
2009.
reconsideration.
Her application was denied initially and on
An Administrative Law Judge (ALJ) held a
1
Citations to the official transcript of record filed by
the Commissioner on February 18, 2014, are referred to as "Tr."
2 - OPINION AND ORDER
hearing on May 21, 2012. 2
Tr. 40.
represented by an attorney.
At the hearing Plaintiff was
Plaintiff and a vocational expert
(VE) testified at the hearing.
Tr. 41.
The ALJ issued a decision on July 20, 2012, in which he
found Plaintiff is not entitled to benefits.
Tr. 33.
That
decision became the final decision of the Commissioner on May 29,
2013, when the Appeals Council denied Plaintiff's request for
review.
Tr. 1-3.
BACKGROUND
Plaintiff was born on June 25, 1964, and was 47 years old on
the date of the hearing.
equivalency degree.
Tr. 245.
Tr. 194.
Plaintiff has a high-school
Plaintiff has prior relevant work
experience as a "garde manger" and home attendant.
Tr. 31-32.
Plaintiff alleges disability since September 29, 2009, due
to lupus; fatigue; right-foot injuries; plantar fasciitis in both
feet; light, sun, and heat sensitivity; anxiety; depression;
limitations as a result of heart surgery in July 2009; disc
degeneration and arthritis; and poor eyesight.
Tr. 193.
Except when noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.
2
After carefully reviewing the
The hearing transcript indicates the hearing took place on
May 21, 2013.
It is clear from the administrative history of the
case that this is a typographical error and that the hearing in
fact took place on May 21, 2012.
3 - OPINION AND ORDER
medical records, this Court adopts the ALJ's summary of the
medical evidence except where noted.
See Tr. 24-28.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which .
.
. has lasted or can be expected to last for
a continuous period of not less than 12 months."
§
423(d) (1) (A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d
453, 459-60 (9th Cir. 2001)).
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.
u.s.c.
§
405(g).
(9th Cir. 2012).
42
See also Brewes v. Comm'r, 682 F.3d 1157, 1161
Substantial evidence is "relevant evidence that
a reasonable mind might accept as adequate to support a
conclusion."
Molina, 674 F. 3d. at 1110-11 (quoting Valentine v.
Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)).
4 - OPINION AND ORDER
It
is "more than a mere scintilla" of evidence but less than a
preponderance.
Id.
(citing Valentine, 574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009) .
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner's findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006) .
DISABILITY ANALYSIS
Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within
the meaning of the Social Security Act.
Soc. Sec. Admin., 648 F.3d 721, 724
Keyser v. Comm'r of
(9th Cir. 2011).
See also
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
§
416.920.
Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
5 - OPINION AND ORDER
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R.
§
416.920(a) (4) (I).
See also Keyser, 648
F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
Stout v. Comm'r Soc.
Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
C.F.R.
§
See also 20
416.920(a) (4) (ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a
claimant's impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.
The claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§
416. 920 (a) (4) (iii).
20 C.F.R.
See also Keyser, 648 F. 3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments) .
If the Commissioner proceeds beyond Step Three, she must
assess the claimant's residual functional capacity (RFC).
The
claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
6 - OPINION AND ORDER
20 C.F.R.
§
416.920(e).
See also Social Security Ruling (SSR)
96-8p.
"A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm'r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885
F.2d 597, 603
(9th Cir. 1989)).
The assessment of a claimant's
RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.
An improper evaluation
of the claimant's ability to perform specific work-related
functions "could make the difference between a finding of
'disabled' and 'not disabled.
SSR 96-8p, at *4.
111
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R.
§
416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R.
Keyser, 648 F.3d at 724-25.
§
416.920(a)(4)(v).
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
7 - OPINION AND ORDER
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R.
§
416.920(g) (1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff had not engaged in
substantial gainful activity since September 29, 2009, her
application date.
Tr. 26.
At Step Two the ALJ found Plaintiff has the severe
impairments of arthritis of the lumbrosacral and thoracic spine;
aortic stenosis with aortic regurgitation, "status post aortic
valve replacement"; nonobstructive coronary disease; pulmonary
hypertension; discoid lupus; "plantar fibromatosis versus
ganglion cyst of the right foot"; history of right-ankle
fracture,
"status post open reduction and internal fixation with
hardware"; cannabis abuse; and fibromyalgia beginning March 8,
2010.
Tr. 26-28.
At Step Three the ALJ found Plaintiff's impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.
Tr. 28.
In his RFC assessment the ALJ found
Plaintiff has the functional capacity to "perform light work as
defined in 20 C.F.R.
8 - OPINION AND ORDER
§
416.967(b), except she can no more than
occasionally climb ladders, ropes, and scaffolds, or stoop.
In
addition, she should avoid even moderate exposure to hazards.u
Tr. 28-31.
At Step Four the ALJ found Plaintiff is unable to perform
any past relevant work.
Tr. 31-32.
At Step Five, however, the ALJ found Plaintiff could perform
jobs that exist in significant numbers in the national economy
such as housekeeping cleaner; assembler, dry cell and battery;
and basket filler.
Tr. 32-33.
Accordingly, the ALJ found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.
Tr. 33.
DISCUSSION
Plaintiff contends the ALJ erred by (1) citing legally
insufficient reasons to reject Plaintiff's testimony and
(2) erroneously discrediting the opinion of Jonathan Neal, P.A. 3
I.
Plaintiff's Testimony
Plaintiff contends the ALJ failed to provide legally
sufficient reasons for discrediting Plaintiff's testimony.
3
In her Reply Brief Plaintiff contends she also assigns
error to the ALJ's failure to include depression and anxiety as
medically-determinable impairments and the ALJ's rejection of the
lay testimony.
Because Plaintiff did not specifically and
distinctly raise these arguments in her Opening Brief, the Court
does not consider these assignments of error.
See Carmickle v.
Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir.
2008).
See also Boyer v. Comm'r Soc. Sec. Admin., No. 3:12-cv00392-SI, 2013 WL 3333060, at *10 (D. Or. July 1, 2013).
9 - OPINION AND ORDER
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cotton, 799 F.2d 1403, 1407 (9th
See also Spelatz v. Astrue, 321 F. App'x 689, 692
Cir. 1986).
(9th Cir. 2009).
The claimant, however, need not produce
objective medical evidence of the actual symptoms or their
severity.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App'x 570, 570 (9th Cir. 2012).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).
General assertions that the claimant's
testimony is not credible are insufficient.
Id.
The ALJ must
identify "what testimony is not credible and what evidence
undermines the claimant's complaints."
Id.
(quoting Lester, 81
F.3d at 834).
A. Sununary of Plaintiff's Testimony
Plaintiff testified at the May 21, 2012, hearing and
10 - OPINION AND ORDER
submitted an Adult Function Report.
1.
Plaintiff's Hearing Testimony
At the hearing Plaintiff testified she last worked
approximately ten hours per week as a caregiver in 2009.
Tr. 45.
Plaintiff reported her symptoms on a bad day are "very
bad" pain in her back, hips, and legs as well as foot pain from
plantar's warts.
Tr. 46.
Plaintiff testified many of her
symptoms were caused by lupus and her medication does not control
the joint pain and skin irritation.
Tr. 47.
Plaintiff testified
her pain level on a scale of one to ten is a ten without pain
medication and five with pain medication.
Tr. 48.
As to side
effects from her lupus medication, Plaintiff testified she
becomes "very nauseated," she sometimes vomits after taking her
medication, and her eyesight has deteriorated as a result of her
medication.
Tr. 48-49.
Plaintiff reported, however, she was not
on any medication for anxiety and is not engaging in therapy.
Tr. 52.
Plaintiff testified she walks slowly for ten to fifteen
minutes three or four times a week.
Tr. 50.
Plaintiff testified
she also cares for her son and completes household chores that
include doing the laundry but do not include mopping the floor.
Tr. 56.
She stated, however, she must "pace [her] self."
Tr. 56.
Plaintiff reported she can go grocery shopping, but she cannot
complete other activities that day if she does so.
11 - OPINION AND ORDER
Tr. 56.
Plaintiff testified she can lift a gallon of milk, but only with
two hands.
Tr. 58.
2.
Plaintiff's Adult Function Report
In her Adult Function Report dated December 26, 2010,
Plaintiff reported she wakes up at 5:30 a.m. to care for her
pets, to make coffee, and to prepare her son for school.
Tr. 282.
After her son leaves for school, Plaintiff stated she
begins her day "trying to make money."
Tr. 282.Plaintiff
indicated she cooks meals for her son, cleans his laundry, and
helps with his homework.
Tr. 282.
Plaintiff reported she is
usually capable of performing personal-care activities, but is
occasionally limited by pain or shaking hands.
Tr. 283.
Although Plaintiff reported being capable of performing most
household chores, she indicated she cannot perform yard work or
complete household repairs.
Tr. 284.
Plaintiff indicated she
goes outside three or four times a day, can drive a car, and goes
grocery shopping for approximately an hour twice per month.
Tr. 284-85.
Plaintiff reported increased pain and fatigue has
impacted her functional capabilities.
Tr. 285-86.
Plaintiff
indicated her conditions affect her ability to lift, squat, bend,
stand, reach, walk, sit, kneel, climb stairs, see, and
concentrate.
Tr. 287.
Plaintiff reported she can lift "no more
than 10 11 pounds and cannot walk more than three or four blocks
12 - OPINION AND ORDER
without resting.
B.
Tr. 287.
Analysis
The ALJ rejected Plaintiff's testimony because Plaintiff's
allegations of disabling limitations were inconsistent with the
objective medical evidence, the treatment records, the course of
Plaintiff's medical treatment, and Plaintiff's activities of
daily living.
Tr. 29-30.
After a thorough review of the record, the Court concludes
there is not a significant inconsistency between the objective
medical evidence and Plaintiff's alleged limitations, and the
Court finds the treatment record is generally consistent with
Plaintiff's allegations.
In particular, the Court concludes the
progress of Plaintiff's conditions as reflected in the medical
record generally follows the increasing severity of the
limitations described by Plaintiff and reflects that Plaintiff's
moderate limitations near the beginning of her alleged period of
disability become more significant as the date of the hearing
gets closer.
See, e.g., Tr. 369, 442, 462, 659, 661.
Finally, the ALJ's finding that Plaintiff's alleged
limitations are inconsistent with her activities of daily living
is not supported by the record.
Indeed, throughout her testimony
Plaintiff consistently qualified her reports of performing
household chores and caring for her son by indicating that she is
unable to perform many of these activities throughout the day, is
13 - OPINION AND ORDER
limited by pain, and has to take frequent rest breaks.
e.g., Tr. 59, 283, 286, 287.
finding,
See,
Moreover, contrary to the ALJ's
the lay-witness testimony similarly reflected
Plaintiff's limitations in her ability to perform household
activities.
Tr. 253, 256, 275, 276.
Accordingly, on this record the Court concludes the ALJ
erred when he rejected Plaintiff's testimony because the ALJ
failed to provide legally sufficient reasons supported by
substantial evidence in the record for doing so.
II.
Opinion of Jonathan Neil, Physician Assistant (PA)
Plaintiff argues the ALJ provided legally insufficient
reasons for rejecting the opinion of PA Neil.
Medical sources are divided into two categories:
"acceptable medical sources" and "other sources."
§
416.902.
20 C.F.R.
Acceptable medical sources include licensed
physicians and psychologists.
20 C.F.R.
§
416.902.
Medical
sources classified as "other sources" include, but are not
limited to, nurse practitioners, physician assistants,
therapists, licensed clinical social workers, and chiropractors.
20 C.F.R.
§
416.913(d) (1).
See also SSR 06-03p, at *2.
"The ALJ
may discount testimony from these 'other sources' if the ALJ
'gives reasons germane to each witness for doing so.'"
Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v.
Comm'r Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th Cir. 2010)).
14 - OPINION AND ORDER
The Social Security Administration notes:
With the growth of managed health care in recent years
and the emphasis on containing medical costs, medical
sources who are not acceptable medical sources, such as
nurse practitioners, physician assistants, and licensed
clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation
functions previously handled primarily by physicians
and psychologists. Opinions from these medical
sources, who are not technically deemed acceptable
medical sources under our rules, 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.
SSR 06-03p, at *3.
Factors the ALJ should consider when determining the weight
to give an opinion from these "important" sources include the
length of time the source has known the claimant and the number
of times and frequency that the source has seen the claimant, the
consistency of the source's opinion with other evidence in the
record, the relevance of the source's opinion, the quality of the
source's explanation of his opinion, and the source's training
and expertise.
SSR 06-03p, at *4.
On the basis of the
particular facts and the above factors, the ALJ may assign a notacceptable medical source either greater or lesser weight than
that of an acceptable medical source.
SSR 06-03p, at *5-6.
The
ALJ, however, must explain the weight assigned to such sources to
the extent that a claimant or subsequent reviewer may follow the
ALJ's reasoning.
SSR 06-03p, at *6.
PA Neil, Plaintiff's primary-care provider, submitted a
15 - OPINION AND ORDER
Physical Residual Functional Capacity Questionnaire dated May 9,
2012.
PA Neil was Plaintiff's primary-care provider from May 1,
2006, through the disability determination.
Tr. 635.
PA Neil
listed Plaintiff's diagnoses as systemic lupus erythematosus
(SLE), fibromyalgia, discoid lupus erythematosus (OLE), chronic
low-back pain, anxiety, chronic right-ankle pain, and "aortic
stenosis valve replacement."
Tr. 635.
PA Neil opined
Plaintiff's prognosis is poor and listed Plaintiff's symptoms as
multiple joint pain, swelling, low-back pain, rash, and fatigue.
Tr. 635.
PA Neil listed "warm joints," painful muscle groups to
palpation, facial rash, anxious affect, and aortic repair to
support his findings.
factors,
Tr. 635.
PA Neil found psychological
including anxiety, affect Plaintiff's physical
condition.
PA Neil opined Plaintiff would be incapable of even
low-stress employment because anxiety worsens Plaintiff's pain.
Tr. 636.
PA Neil opined Plaintiff can walk three or four blocks
without rest or severe pain, sit for 30 minutes and stand for 20
minutes at one time, and sit for four hours and stand and walk
for two hours in an eight-hour workday.
Tr. 636-37.
PA Neil
opined Plaintiff would need unscheduled breaks of ten to fifteen
minutes every one to two hours in an employment setting.
Tr. 637.
PA Neil found Plaintiff is only capable of lifting ten
pounds or less rarely, but she could never lift more than ten
16 - OPINION AND ORDER
pounds.
Tr. 637.
PA Neil opined Plaintiff would miss
approximately three day of work per month.
Tr. 638.
PA Neil
reported Plaintiff's conditions and limitations have persisted as
PA Neil described them since May 2011.
Tr. 639.
The ALJ rejected PA Neil's opinion because it was based on
conditions that the ALJ found were not medically determinable
(i.e., systemic lupus and anxiety) and relied on Plaintiff's
subjective complaints without support from objective findings.
Tr. 31.
The ALJ's rejection of PA Neil's opinion on the ground that
PA Neil relied to some extent on "non-medically determinable"
conditions is not a germane reason to reject PA Neil's opinion.
Although the record reflects some uncertainty and even debate as
to whether Plaintiff has DLE or SLE, the symptoms and limitations
regarding those conditions are consistent throughout the record.
See Tr. 521, 659, 661, 688.
Thus, the mere fact that PA Neil
included both conditions in his list of diagnoses is not a
germane reason to reject PA Neil's opinion.
The ALJ also noted Plaintiff did not seek mental-health
treatment for her alleged psychological limitations.
The fact
that PA Neil included anxiety as a limitation in his assessment
of Plaintiff's functional capacity, however, is not a germane
reason to reject PA Neil's opinion in light of his treatment
notes that reflect Plaintiff exhibited tearfulness during
17 - OPINION AND ORDER
appointments multiple times.
See, e.g., Tr. 528, 546, 550.
The ALJ's rejection of PA Neil's opinion on the ground that
he relied on Plaintiff's subjective reporting is also not a
germane reason to reject PA Neil's assessment of Plaintiff's
functionality because, as noted, the ALJ erroneously discredited
Plaintiff's testimony.
Thus, the ALJ's rejection of PA Neil's
opinion cannot properly be based on the ALJ's erroneous finding
that Plaintiff's testimony was not credible.
Moreover, in his
opinion PA Neil explicitly referenced Plaintiff's "warm joints,"
facial rash, and heart problems as objective clinical findings
that support his assessment of Plaintiff.
Tr. 635.
Accordingly, on this record the Court concludes the ALJ did
not provide legally sufficient reasons for rejecting PA Neil's
opinion.
III. Remand
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.
Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).
issue turns on the utility of further proceedings.
The
A remand for
an award of benefits is appropriate when no useful purpose would
be served by further administrative proceedings or when the
record has been fully developed and the evidence is insufficient
to support the Commissioner's decision.
Strauss v. Comm'r, 635
F.3d 1135, 1138-39 (9th Cir. 2011) (quoting Benecke v. Barnhart,
18 - OPINION AND ORDER
379 F.3d 587, 593 (9th Cir. 2004)).
The court may not award
benefits punitively and must conduct a "credit-as-true" analysis
to determine whether a claimant is disabled under the Act.
Id.
at 1138.
Under the "credit-as-true" doctrine, evidence should be
credited and an immediate award of benefits directed when:
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are not
any 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 if such evidence were
credited.
Id.
The reviewing court should decline to credit testimony when
"outstanding issues" remain.
Luna v. Astrue, 623 F.3d 1032, 1035
(9th Cir. 2010).
Although the "credit-as-true" doctrine is not a mandatory
rule in the Ninth Circuit, it leaves the court with the
flexibility to determine whether to enter an award of benefits
upon reversing the Commissioner's decision.
Connett v. Barnhart,
340 F.3d 871, 876 (9th Cir. 2003) (citing Bunnell v. Sullivan, 947
F.2d 871 (9th Cir. 1991) (en bane)).
When the reviewing court
finds the elements of the "credit-as-true" rule have been
satisfied, however, the court may only remand for further
proceedings if "an evaluation of the record as a whole creates
serious doubt that the claimant is, in fact, disabled."
Garrison, 759 F.3d at 1021.
19 - OPINION AND ORDER
On this record the Court concludes outstanding issues must
be resolved before a determination of disability can be made.
For example, the ALJ must consider, among other things, how PA
Neil's statement that his opinion is only descriptive of
Plaintiff's conditions since May 2011 may affect the ultimate
disability determination . . Accordingly, on remand the ALJ must
reconsider Plaintiff's testimony and PA Neil's opinion; must make
a disability determination in which he properly accounts for
Plaintiff's testimony and PA Neil's opinion; and must address any
inconsistencies as to such evidence, the overall medical record,
and the ALJ's RFC determination.
CONCLUSION
For these reasons, the Court REVERSES the final decision of
the Commissioner and REMANDS this matter pursuant to sentence
four of 42 U.S.C.
§
405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this
~day
of December, 2014.
ANN~~
United States District Judge
20 - OPINION AND ORDER
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