Murray v. Commissioner Social Security Administration
Opinion and Order. Signed on 1/4/2017 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 1:15-cv-02120-MA
COMMISSIONER SOCIAL SECURITY
P.O. Box 370578
Las Vegas, NV 89137
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S. W. Third Ave., Suite 600
Portland, OR 97204-2902
SARAH ELIZABETH MOUM
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, MIS 221A
Seattle, WA 98104-707 5
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
Plaintiff Denis Murray seeks judicial review of the final decision of the Commissioner of
Social Security denying his application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). For the reasons that follow, I reverse the Commissioner's decision
and remand for an immediate award of benefits.
FACTUAL AND PROCEDURAL BACKGROUND
This case has a lengthy procedural background. On September 15, 2006, Plaintiff filed an
application for a period of disability and disability insurance benefits, alleging disability beginning
January 1, 2006, due to arthritis, diffuse idiopathic skeletal hyperostosis ("DISH"), high blood
pressure, high cholesterol, chronic kidney stones, thyroid condition, acid reflux, sleep apnea, anxiety
and depression. Tr. 106. Plaintiffs claim was denied initially and upon reconsideration. Plaintiff
filed a request for a hearing before an administrative law judge ("ALJ"). An ALJ held a hearing on
April 29, 2009, and issued an unfavorable decision on May 20, 2009. The Appeals Council denied
Plaintiffs request for review. Oh June 28, 2011, the United States District Court for the District of
Oregon granted a stipulated order reversing and remanding the ALJ' s decision. On November 16,
2011, the Appeals Council remanded the case to an ALJ for a hearing.
On September 19, 2012, a second hearing before an ALJ was conducted, and on February
4, 2013, the ALJ issued a second unfavorable decision. On Januaty 28, 2014, the Appeals Council
granted Plaintiffs request for review and remanded the case for further proceedings.
On August 19, 2014, the ALJ conducted a third hearing, at which Plaintiff appeared with his
attorney and testified. Vocational expert Steven R. Cardinal also appeared and testified. On
2 - OPINION AND ORDER
December 8, 2014, the ALJ issued a third unfavorable decision. On September 18, 2015, the
Appeals Council denied Plaintiffs request for review. Thus, the ALJ' s December 8, 2014 decision
is the Commissioner's final decision for purposes of this court's review.
Born in 1950, Plaintiff was 56 years old on his alleged onset of disability and 64 years old
on the date of the ALJ' s 2014 decision. Plaintiff has completed four or more years of college.
Plaintiff has past relevant work as a city planning director, a job he performed on a part-time basis
for 13 years working approximately 24 hours per week. Plaintiff alleges he retired from his city
planning director position on December 31, 2005 due to pain from his impairments.
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step
is potentially dispositive. The claimant bears the burden of proof at steps one through four. Molina
v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574
F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the
claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153,
1161 (9th Cir. 2012).
The ALJ found that Plaintiff meets insured status requirements for a DIB application through
December 31, 2010. Tidwell v. Apfel, 161F.3d599, 601 (9th Cir. 1998) (claimant seeking Title II
benefits must establish disability prior to the date last insured). Plaintiff's alleged onset of disability
is January 1, 2006. Therefore, Plaintiff must establish that between January 1, 2006 and December
31, 2010, he was unable to work due to any medically determinable physical or mental impairment,
or combination of impairments, that has lasted or can be expected to last for a continuous period of
3 - OPINION AND ORDER
12 months. 42 U.S.C. § 423(d)(l)(A); 20 C.F.R. § 404.1509.
Transcript Social Security
Administrative Proceeding ("Tr.") at 513, 515, ECF No. 7.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity from
January 1, 2006 through his date last insured, December 31, 2010. At step two, the ALJ found that
Plaintiff has the following severe impairments through his date last insured: degenerative disc
disease with a history oflaminectomy, DISH with radiculopathy, cervical degenerative disc disease
and osteomihritis. At step three, the ALJ found that Plaintiffs impairments or combination of
impairments, did not meet or medically equal a listed impairment.
The ALJ assessed that through the date last insured, Plaintiff had the residual functional
capacity ("RFC") to perform sedentary work but with the following limitations:
he is limited to occasional climbing of ramps and stairs. He cannot climb ladders,
ropes, and scaffolds. [Plaintiff! is further limited to frequent balancing, but only
occasional stooping, kneeling, crouching and crawling. He is also limited to no
exposure to hazards, such as unprotected heights.
At step four, the ALJ found that Plaintiff is able to perform his past relevant work as a city
planning director. Accordingly, the ALJ concluded that Plaintiff has not been under a disability
under the Social Security Act from January 1, 2006 through December 31, 2010.
ISSUES ON REVIEW
On appeal to this comi, Plaintiff contends the following errors were committed: (I) the ALJ
improperly found his mental impairments nonsevere at step two; (2) the ALJ improperly evaluated
his testimony; (3) the ALJ improperly evaluated the opinions ofhis treating physicians Rudy Greene,
M.D., Richard Morris, M.D., and Jill Hersch, Ph.D.; examining physician Thomas Brent Shields,
4 - OPINION AND ORDER
Ph.D.; and other source Susan DeMarinis, D.C.; (4) the ALJ improperly evaluated the lay testimony
of his wife Ellen Murray, and friend Michael Meiring; and (5) the ALJ improperly concluded he can
perform his past relevant work at step four.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied the
proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is 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." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The Commissioner's decision must be upheld, even ifthe evidence is susceptible to more than one
rational interpretation. Batson v. Commissioner Soc. Sec. Adm in., 359 F.3d 1190, 1193 (9th Cir.
2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be
affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir.
2014). Where "the Appeals Council considers new evidence in deciding whether to review a
decision of the ALJ, that evidence becomes patt of the administrative record, which the district court
must consider when reviewing the Commissioner's final decision for substantial evidence." Brewes
v. Comm 'r ofSoc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).
5 - OPINION AND ORDER
The ALJ Did Not Err Step Two
At step two, a claimant is not disabled ifthe 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). See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii).
A severe impairment "significantly limits" a claimant's "physical or mental ability to do basic work
activities." 20 C.F.R. § 404.152l(a). See also Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir.
2005). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to
do most jobs." 20 C.F.R. §§ 404.152l(a), (b).
In the decision, the ALJ found Plaintiffs mental impairments do not cause more than
minimal limitation in Plaintiffs ability to perform basic mental work activities, and therefore are
nonsevere. Tr. 518. However, as noted above, the ALJ found Plaintiff has numerous other
impairments that are severe at step two. Plaintiff argues that the ALJ erred in determining his mental
limitations are nonsevere. I disagree.
Here, the ALJ resolved step two in Plaintiffs favor, finding other severe impairments and
continuing with the sequential evaluation. Therefore, even assuming arguendo the ALJ erred at step
two, the error is harmless. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005); see also Gray v.
Comm 'r ofSoc. Sec. Admin., 365 Fed. App'x 60, 61 (9th Cir. 2010) (rejecting argument that the ALJ
erred at step two by determining certain impairments were nonsevere, because any alleged error was
harmless since "the ALJ concluded that [claimant's] other medical problems were severe
impairments"); Mondragon v. Astrue, 364 Fed. App'x 346, 348 (9th Cir. 20 l 0) ("Any alleged error
at step two was harmless because step two was decided in [claimant]'s favor with regard to other
6 - OPINION AND ORDER
ailments."). To the extent that Plaintiff alleges the ALJ erred in evaluating the medical evidence of
his mental impairments when considering his RFC, I addresses those arguments below. In sh01i,
even ifthe ALJ erred in failing to identify depression and anxiety as severe, the error is hannless.
The ALJ Failed to Provide Clear and Convincing Reasons for Discounting Plaintiffs
To detennine whether a claimant's testimony regarding subjective pain or symptoms is
credible, an ALJ must perfotm two stages of analysis. 20 C.F .R. § 404.1529. The first stage is a
threshold test in which the claimant must produce objective medical evidence of an underlying
impairment that could reasonably be expected to produce the symptoms alleged. lvfolina, 674 F.3d
at 1112; Tommaselli v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of the
credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear and
convincing reasons for discrediting the claimant's testimony regarding the severity ofthe symptoms.
Garrison, 759 F.3d at 1014-15; Carmickle, v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166
(9th Cir. 2008).
The ALJ must make findings that are sufficiently specific to pennit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors theALJ may consider when
making such credibility determinations include the objective medical evidence, the claimant's
treatment history, the claimant's daily activities, inconsistencies in testimony, effectiveness or
adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at
1163; Tommasetti, 533 F.3d at 1039.
7 - OPINION AND ORDER
At the April 29, 2009 hearing, Plaintiff testified that he retired from his position with the City
of Phoenix in January 2006 due to health reasons. Plaintiff testified that he worked part-time and
believed he could no longer perform the job. Tr. 618. Plaintiff testified that on a typical day, he
would work from eight o'clock to noon, then come home and lie down for an hour or two to relieve
pain in his.back. Tr. 619. Plaintiff testified that he likes to attend car shows and that he uses a
mobility scooter to get around when attending shows. Tr. 624. Plaintiff described that he has
degenerative disc disease affecting his lower back, DISH disease affecting his upper back, and
arthritis affecting his neck. Tr. 626. Plaintiff described that he belongs to a gym for people over 50
years old and perfonns exercises and stretching daily. Tr. 628. Plaintiff testified that his hobby is
working on antique cars and that how long he can work on a car depends on the day. Tr. 631.
Plaintiff testified that he lays on a creeper and that it takes him a while to get onto the creeper, or he
works from a small stool at a workbench. Tr. 631-32. Plaintiff stated that he does not lift more than
20 pounds, and asks friends for assistance. Tr. 632. Plaintiff testified that when he is in pain, he
tends to withdraw and has difficulty socializing. Tr. 633-34. Plaintiff testified that he lies down for
an hour every day - even on a good day - and that on a bad day, he will spend a good portion of
time lying down. Tr. 635.
At the 2014 hearing, Plaintiff testified that he worked for the City of Phoenix for eleven years
pmi-time as a planner. Tr. 554. Plaintiff described that at times, he would have to go home to lie
down and take pain medication. Tr. 555. Plaintiff described that his hobby is to rebuild old cars.
Tr. 555. Plaintiff indicated that he has rebuilt a carburetor and repairs broken parts. Tr. 556.
Plaintiff noted that he lives with his wife on three qumiers of an acre of property, and that he uses
a riding mower to mow the lawn. Tr. 557. Plaintiff stated that he occasionally. barbeques when the
8 - OPINION AND ORDER
weather is nice. Tr. 558. Plaintiff testified that he takes care of his two small dogs, takes them for
short walks. Plaintiff testified that he will sit at the computer and check emails, and will typically
lie down during the day to stretch and rest his back. Tr. 559. Plaintiff testified that ifhe does the
grocery shopping, he will do so for 20 to 30 minutes. Tr. 560. Plaintiff testified that his legs will
occasionally go numb, and that he will have to rest for a few minutes until the episode passes. Tr.
561. Plaintiff stated that his radiculopathy in his legs and pain in his back has stayed the same since
his date of onset. Tr. 562.
Plaintiff testified that he decided to leave his city planning job because his symptoms
collectively got to the point where he was having difficulty completing his projects on time and was
having difficulty attending evening hearings, a requirement of his job. Tr. 563. Plaintiff testified
that the evening hearings were the most difficult for him because that is when his pain is the worst,
and when he has the most difficulty concentrating. Tr. 564. Plaintiff testified that he was having
difficulty answering questions at public hearings. Tr. 574. Plaintiff stated that the staff rep01is he
was required to prepare were taking two to three times longer to complete because he was having
a difficult time concentrating due to his pain. Tr. 563. Plaintiff testified that he cannot stand or walk
two hours in an eight hour day. Tr. 567-68. Plaintiff testified that he can sit for an hour, but has
difficulty rising from sitting. Tr. 568. Plaintiff stated that he can lift ten pounds. Tr. 568-69.
In an October 24, 2006 Function Rep01i-Adult, Plaintiff described that in a typical day, he
wakes with a stiff back and neck, and takes a hot shower. Tr. 119. After breakfast, Plaintiff stated
he goes to the gym to perform stretching exercises. If his pain level is high, he will go home and lie
down or sit in a chair. If his pain level is moderate, he will work around the house, such as mow the
lawn, do the laundry or work in the garage on his antique cars. Plaintiff described that if his back
9 - OPINION AND ORDER
begins to spasm, he must stop all activity and lie down. Plaintiff stated that his back and neck pain
increases throughout the day. Tr. 126. Plaintiff indicated that in the evening, he prepares dinner for
thirty minutes, then sits in a lounge chair until he goes to bed between nine and ten o'clock. Tr. 121,
126. Plaintiff indicated that if his pain is intense, his wife will cook. Plaintiff indicated that he takes
care of his dogs, with help from his wife. Plaintiff noted that he does not need any help with
personal care, except if his back is in severe spasms.
Plaintiff stated he is able to drive and ride in a car, unless his pain is too great. Tr. 122.
Plaintiff indicated that he enjoys watching television, RV-ing, wine tasting, and working on antique
cars and that he is only able to perform these tasks when his back pain permits. Tr. 123. Plaintiff
described that he is able to go to dinner, play cards and board games, and go on wine tours, attend
car shows, swap meets, and church. Plaintiff also indicated that if a lot of walking is involved, he
will use a mobility scooter. Tr. 123. Plaintiff indicated that he does not handle stress ve1y well, and
that it causes his back muscles to tighten. Tr. 125. Plaintiff noted that he has had panic attacks prior
to traveling. Tr. 125.
In an October 24, 2006 Pain Questionnaire, Plaintiff stated that he gets an intense pain in his
lower and middle back, with chronic pain from the tightness of his muscles in his back and neck.
Plaintiff stated that he will get a sharp pain in his back sporadically lasting a few seconds, but his
chronic pain can last all day. Tr. 127. Plaintiff noted that stress, standing or sitting for more than one
hour, and riding in the car makes the pain worse and that lying down makes the pain better. Tr. 127.
Plaintiff indicated that he takes celebrex, lexapro and tramadol for pain. Tr. 128. Plaintiff noted he
can be up and active for two hours before needing to rest on some days, other days he can be active
for four to six hours. Tr. 128.
10 - OPINION AND ORDER
In the 2014 decision, the ALJ found that Plaintiffs allegations and testimony concerning his
subjective limitations were not entirely credible. The ALJ listed several reasons for discounting
Plaintiffs testimony: ( 1) his active lifestyle is inconsistent with his alleged limitations; (2) he failed
to comply with treatment; (3) he inconsistently repotied improvement.
Plaintiff's active lifestyle
Contradiction with a claimant's activities of daily living is a clear and convincing reason for
rejecting a claimant's testimony. Tommasetti, 533 F.3d at 1039. However, "disability claimants
should not be penalized for attempting to lead normal lives in the face of their limitations." Reddick
v. Chafer, 157 F.3d 715, 722 (9th Cir. 1998). "[T]he mere fact that a plaintiff has carried on cetiain
daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in
any way detract from [his] credibility as to [his] overall disability." Vertigan v. Halter, 260 F.3d
1044, 1050 (9th Cir. 2001). A claimant's daily activities may undetmine his allegations ifthe
claimant spends a substantial part of his day engaged in activities that are transferrable to a work
setting, or if the activities contradict his testimony.
Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
Here, the ALJ discounted Plaintiffs credibility because he engages in an active lifestyle
inconsistent with the level of impairment he alleges. For example, the ALJ indicated that Plaintiff
mows the lawn with a riding lawnmower, walks the family dogs, runs errands, checks his emails on
the computer, shops, and occasionally barbeques meals. The ALJ noted that Plaintiff flew to Las
Vegas, Nevada in 2006 withol!t difficulty, traveled to Potiland for a car show, reported that he had
multiple trips planned, and restores antique cars. The ALJ indicated that Plaintiff exercises four
times a week, perfotms home exercises, as receives chiropractic treatments regularly. The ALJ
11 - OPINION AND ORDER
found that these activities demonstrate that Plaintiff has the physical ability to function, and the
mental ability to socially interact, concentrate, attend, and persist, contrary to his allegations of
impaitment. Tr. 522.
Admittedly this case is a difficult one - as demonstrated by the multiple appeals and nearly
ten years of medical records. Yet, when viewing the record as a whole, I conclude the ALJ' s
rationale is not supp01ied by substantial evidence and thus fails to provide a clear and convincing
basis for discounting Plaintiffs testimony. The activities described by the ALJ are not inconsistent
with Plaintiffs allegations. The record contains evidence that Plaintiff no longer travels by plane,
and when traveling by car, he stretches eve1y hour to relieve pain and numbness. Tr. 42, 624-25.
Also, consistent with Plaintiffs reports to his various treatment providers, each time he has traveled
lengthy distances, there is an exacerbation of his low back pain, neck pain, and numbness. Tr. 264,
413-14, 448-49, 975-76, 1148. And, consistent with Plaintiffs testimony that he has difficulty
walking distances longer than one block, Plaintiff repotis he brings along a mobility scooter to assist
him in getting around car shows. Tr. 41, 264, 624. Plaintiff testified that the dogs are small, and
do not require extensive walking. Tr. 559. Plaintiff also testified that his wife prepares the foods
for barbequing, and that he simply grills the items. Tr. 558. The camping described by Plaintiff is
done in an RV - he is not backpacking and pitching a tent. Tr. 123, 415. The exercises Plaintiff
perfotms at the gym are stretching exercises and pedaling on a stationary bicycle - he is not lifting
. weights or attending cross fit classes. Tr. 46, 264.
With respect to working on cars, Plaintiff testified that he does what he can, takes breaks
when needed, and that he has great difficulty getting underneath the cars. Tr. 49-50. The ALJ
12- OPINION AND ORDER
discounted Plaintiff testimony because he admitted to rebuilding a carbuerator, but there is nothing
in record indicating that working on the carbuerator exceeds Plaintiffs lifting restrictions.
Accordingly, I conclude that the ALJ's finding is not supp01ied by substantial evidence in
the record as a whole, and therefore e!l'ed in discounting Plaintiffs testimony based on his active
lifestyle. Vertigan, 260 F.3d at 1050 (holding that grocery shopping, driving a car, walking for an
hour, getting together with her friends, playing cards, swimming and reading did not undennine
claimant's allegations of disabling back pain). Plaintiffs ability to perform some activities at his
own pace with frequent opportunities to rest does not establish that he has the ability to work fulltime on a.consistent basis.
failure to comply with treatment
The ALJ discredited Plaintiff for failing to attend physical therapy, noting he was discharged
after failing to attend therapy for one month in November 2007. Tr 381. The ALJ noted that
Plaintiff began physical therapy again in 2009, but again missed appointments despite admitting that
his back and neck pain were improved. However, the record does not fully support the ALJ' s
conclusion. Substantial evidence supports the ALJ's conclusion that Plaintiff was discharged from
physical therapy in November 2007. Yet contrary to the ALJ' s finding, Plaintiff stopped physical
therapy in 2009 due to the clinic closing, requiring Plaintiff to travel to Central Point to continue
care. Tr. 997, 1146-47. Furthermore, subsequent to 2007, Plaintiff consistently attended physical
therapy, including at least 58 sessions from 2011 to 2014, missing appointments only when he was
out of town or was switching insurance companies. Tr. 952, 1146-48. Thus, I conclude the ALJ's
finding is not suppotied by substantial evidence in the record as a whole. Accordingly, this rationale
is neither a clear nor convincing reason for discounting Plaintiffs testimony.
13 - OPINION AND ORDER
medical improvement and inconsistent statements
In the decision, the ALJ noted that the objective medical record showed improvement and
stability, contrary to Plaintiffs allegations of disability. An ALJ may consider prior inconsistent
statements concerning symptoms and "other testimony by [plaintiff! that appears less than candid
in weighing plaintiffs credibility." Tommasetti, 533 F.3d at 1039. As the ALJ accurately reported,
Plaintiff has reported he was doing "okay," was feeling better, and was maintaining despite doing
some physically challenging work at home. Tr. 377, 962, 963. Plaintiff did report to his physical
therapist in September 2011 that he worked on a heavy home improvement project, and was building
Tr. 963, 964.
Plaintiffs ability to perform a heavy home improvement project is
inconsistent with his allegation that he cannot lift more than 25 pounds. Thus, the ALJ's finding in
this regard is supported by substantial evidence and the ALJ could discount Plaintiffs testimony on
However, numerous other repo1ts by Plaintiff relied upon by the ALJ are not clearly or
specifically supported by substantial evidence. For example, the ALJ relied on various repo1ts by
Plaintiff to Dr. Greene in 2006 that Plaintiffs lumbar spondylosis was improved, and his DISH
stable. Tr. 521. The ALJ fails to note, however, that in August 2005, Dr. Greene opined that
Plaintiff had "severe bilateral foraminal narrowing impinging on the right S 1 nerve" and that
Plaintiff may be disabled due to his lumbar disk disease. Tr. 244-45 .. Additionally, Dr. Greene's
2006 treatment notes consistently reflect a decreased range of motion in the neck and low back, and
that in August 2006, he recommended bed rest for an acute exacerbation of his lumbar spondylosis.
Tr. 229-37. In November 2006, Plaintiff reported to Dr. Greene he had increased pain and achiness,
14-0PINION AND ORDER
with numbness in his hands. Tr. 316-18. Thus, contrary to the ALJ's finding, Dr. Greene's records
reflect a mixed picture, at best.
The ALJ discredited Plaintiff because he repo1ied to Dr. Hersch in December 2007 that he
was "feeling better," and reported to a physical therapist in December 2011 and February 2012 that
he was "doing okay," and had increased back pain after driving "a lot." Tr. 521. The ALJ found that
Plaintiff was doing well, except when he over-exerted himself, and that Plaintiff could perform the
right job with the right restrictions. Tr. 521.
Contraiy to the ALJ's finding, Plaintiffs reports to Dr. Hersch and his physical therapists
also are consistent with Plaitniffs testimony concerning his limitations. Indeed, the ALJ did not
discuss that in October 2007, Plaintiff reported to Dr. Hersch that he was feeling increased
depression due to increased back pain, and the unpredictability of his physical abilities. Tr. 379.
Moreover, although Plaintiff reports to his physical therapists instances of improved mobility and
decreased pain, there frequently are times when Plaintiff has increased pain and soreness. Tr. 945978.
Having carefully reviewed Plaintiffs various rep01is of improvement cited by the ALJ, I
conclude that they are not supported by substantial evidence when the record is viewed as a whole.
While there are instances where Plaintiff has rep01ied feeling better and has increased abilities,
similarly there are instances of exacerbation, increased pain, and reduced abilities. Plaintiffs rep01is
are consistent with his allegations of waxing and waning symptoms with ongoing back pain.
15 - OPINION AND ORDER
In summary, although the record supports one of the reasons the ALJ provided to discount
Plaintiff's testimony, 1 on the record before me, I conclude that the ALJ's remaining reasons, when,
taken together, do not amount to clear, convincing and specific support for the ALJ's adverse
credibility determination. The ALJ has erred.
The ALJ Erred in Evaluating the Medical Evidence
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians' opinions. Carmickle, 533 F.3d at 1164. To reject the uncontroverted opinion of
a treating or examining physician, the ALJ must present clear and convincing reasons. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons.
Garrison, 759 F.3d at 1012; Ghanim, 763 F.3d at 1161. When evaluating conflicting opinions, an
ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or
conclusoty. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). In addition, a doctor's work
restrictions based on a claimant's subjective statements about symptoms are reasonably discounted
when the ALJ finds the claimant less than fully credible. Brayv. Comm 'r Soc. Sec. Admin., 554 F.3d
1219, 1228 (9th Cir. 2009); Batson, 359 F.3d at 1195.
Although substantial evidence supp01ts the ALJ' s decision to discredit claimant based
on his inconsistency in building a deck, this is one instance in the 1,365-page record spanning
nearly ten years. By and large, Plaintiffs alleged limitations are consistent with his allegations
of increased pain and decreased range of motion;
16- OPINION AND ORDER
The ALJ Erred in Evaluating the Opinions of Dr. Greene
Dr. Greene is Plaintiffs treating rheumatologist. Although Dr. Greene did not provide a
separate medical source statement, Dr. Greene treated Plaintiff as early as 2004 and his treatment
notes contain three opinions reflecting Plaintiffs inability to work full-time. In August 2005, Dr.
Greene opined that Plaintiffs may be disabled due to his severe lumbar degenerative disk disease.
In June 2009, Dr. Greene opined that Plaintiff cannot work full-time due to his
intermittent disability. Tr. 900. In April 2011, Dr. Greene opined that Plaintiffs depression was
amplifying his pain. Tr. 886.
In the decision, the ALJ gave Dr. Greene's June 2009 and April 2011 opinions "little weight"
because they are not supp01ted by the objective medical record, are inconsistent with Plaintiffs
active lifestyle, and because Plaintiffs mental impairments cause only mild limitations. Plaintiff
complains that the ALJ failed to provide adequate reasons,2 backed by substantial evidence, for
discounting Dr. Greene's opinions. Plaintiff is correct.
consistent with medical evidence.
A medical opinion's inconsistency with the objective medical record may constitute an
adequate reason to discredit that opinion. Tommasetti, 533 F.3d at 1041. In the decision, the ALJ
reasoned that Dr. Greene's "[c]hart notations emphasize improvement, rather than disability." Tr.
521. Contrmy to the ALJ's finding, the overall record is consistent with Dr. Greene's opinions.
First, Dr. Greene's opinions of severe lumbar spondylosis and degenerative disk disease are
Contrary to Plaintiffs suggestion, Dr. Greene's opinions were contradicted by those of
nonexamining physicians Richard Alley, M.D., and Mmtin Kehrli, M.D. Therefore, the ALJ was
required to provide specific and legitimate reasons supported by substantial evidence to discount
Dr. Greene's opinion.
17 - OPINION AND ORDER
wholly supported by objective medical evidence. To be sure, a July 2005 lumbar MRI ordered by
Dr. Greene shows widespread degenerative changes, with "[m]oderately severe multilevel
degenerative disk disease and facet arthrosis elsewhere in the lumbar spine ... resulting in multilevel
foraminal narrowing and central canal stenosis at the L2-3, L3-4, and L4-5 levels." Tr. 200-01.
Additionally, at LS-SI, the MRI shows right paracentral disk protrusion/extrusion combined with
facet arthrosis, resulting in severe bilateral neural foraminal narrowing, with the disk protrusion "just
abut the budding right Sl nerve root." Tr. 200-01. Dr. Greene's August 2005 treatment notes
indicate that the results of the July 2005 MRI showed "multilevel severe degenerative disk disease,
LS-S 1 right paracentral disk protrusion causing severe bilateral neural foraminal narrowing
impinging on the right SI nerve. Cervical MRI showing spondylosis at multiple levels." Tr. 244.
Dr. Greene indicated that Plaintiffs lumbar spondylosis is "quite severe" and that this condition
could be exacerbated by stress, prolonged sitting or any movement. Tr. 244. Additionally, Dr.
Greene opined that Plaintiff"may indeed be disabled seconda1y to such severe lumbar disk disease,"
and that Plaintiffs cervical spondylosis was "severe enough neck disease as well to warrant
disability although he possibly could work part time." Tr. 244-45. Remarkably, the ALJ failed to
discuss the significant objective findings of the July 2005 lumbar spine MRI, and failed to discuss
Dr. Greene's August 2005 treatment notes. Clearly, Dr. Greene's 2005 opinion is supported by
Although Dr. Greene's August treatment note and opinion and the July 2005 MRI are just
prior to Plaintiffs alleged onset date, they provide significant background information for Dr.
Greene's remaining treatment notes and opinions. Thus, I conclude the ALJ ened in omitting any
discussion of Dr. Greene's 2005 opinion. Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395
18- OPINION AND ORDER
(9th Cir. 1984) (noting ALJ need not discuss all medical evidence presented, but must explain why
significant, probative evidence has been rejected).
Second, the 200S MRI findings are largely suppo1ied by a 2008 CT scan of the lumbar spine,
which showed at LS-S 1 "marked narrowing of the disc space" and a "dorsal retrolisthesis of LS on
S 1" and "narrowing of both neural foramina due to the disc space narrowing and adjacent facet
anthropathy." Tr. 424.
Third, Dr. Greene's opinion was supp01ied by Zakir Ali, M.D. Plaintiff was seen by Dr. Ali
in Januaiy 2009, for EMG nerve conduction studies to rule out any significant neuorgenic damage.
As the ALJ accurately reported, Plaintiffs symptoms reflected intermittent radicular compression,
without any evidence of significant radicular nerve damage. Tr. 476. Dr. Ali noted that Plaintiffs
symptoms are "very suggestive of compression of the lumbosacral nerve roots in his back." Tr. 47S.
Dr. Ali opined that the EMG or nerve conduction tests "cannot determine compression of the nerve
root from foraminal stenosis ... In his particular condition the pain, numbness and intermittent
weakness may be from compression or irritation of a right sided lumbosacral nerve root, most likely
the right SI or LS." Tr. 477, 47S-76. Dr. Ali noted that a weight-bearing MRI would be most
diagnostic. Tr. 476. In the decision, the ALJ focused on the lack of nerve damage when discounting
Plaintiffs testimony, and overlooked that Dr. Ali's opinion substantiated Dr. Greene's 200S opinion
and the corresponding 200S lumbar MRI results. Thus, the ALJ' s finding that Dr. Greene's opinions
are not supported by the objective medical record is not supported by substantial evidence.
And finally, the ALJ discounted Dr. Greene's 2009 opinion that Plaintiff suffers from
intermittent disability because Dr. Greene's treatment notes show improvement and stability. As
discussed above, the ALJ erred in discounting Plaintiffs credibility on this basis. Dr. Greene's notes
19 - OPINION AND ORDER
show periods of improvement, as well as periods of increased pain and decreased abilities.
Therefore, I conclude the ALJ erred in discounting Dr. Greene's opinion on this basis. See Hase v.
Colvin, 6:15-cv-01214-BR, _ _ F.Supp.3d _ , 2016 WL 5107032, *7 (D. Or. Sept. 19, 2016)
(holding ALJ erred in discounting physician's opinion on same basis as discrediting claimant); see
also Garrison, 759 F.3d at 1017 (noting ALJ may not discount physician's opinion simply because
there are"[ c]ycles ofimprovement and debilitating symptoms" over the course of months or years).
Plaintiff's active lifestyle
The ALJ discounted Dr. Greene's opinion because it is inconsistent with Plaintiffs active
lifestyle. As discussed above with respect to Plaintiffs credibility, the ALJ erred in discrediting
Plaintiff on this basis. See Morgan v. Comm 'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.1999)
("A physician's opinion of disability premised to a large extent upon the claimant's own accounts
of his symptoms and limitations may be disregarded where those complaints have been properly
discounted") (internal quotations and citations omitted). As discussed above with respect to
Plaintiffs credibility, Dr. Greene's treatment notes from 2006 though 2011 repott instances where
Plaintiffs DISH and depression are stable, or improved. However, Dr. Greene's treatment notes also
reflect numerous instances where Plaintiffs pain is increased, and his condition worsened.
Therefore, this rationale is not supported by substantial evidence and does not provide a specific and
legitimate basis for discounting Dr. Greene's opinions. The ALJ has erred.
depression exacerbated his pain
In the decision, the ALJ rejected Dr. Greene's 2011 opinion that Plaintiffs lumbar pain was
exacerbated by depression. The ALJ concluded that Plaintiffs mental impairments cause only mild
limitations, and therefore, discounted Dr. Greene's conclusion that Plaintiffs depression worsened
20 - OPINION AND ORDER
his lumbar pain. I conclude this is not a specific or legitimate basis to disregard Dr. Greene's
opinions. Dr. Greene's treatment notes reflect that Plaintiffs depression waxes and wanes with his
pain from his low back, and that Plaintiffs depression is significantly improved on medication. Tr.
314. However, none of Dr. Greene's opinions provide that Plaintiff is disabled by his mental
impairments. Rather, Dr. Green's assorted opinions in 2005, 2009 and 2011 identify Plaintiffs
cervical and lumbar spondylosis as the source of his disability. Accordingly, the ALJ's rationale is
not supported by substantial evidence in the record as a whole.
The AL! Erred in Evaluating Dr. Morris's Opinion
Dr. Morris is Plaintiffs treating primaty care physician. Dr. Morris opined in March 2005
that his low back and neck pain are increasing and that exploring disability is reasonable. Tr. 34548. In a March 2008 treatment note, Dr. Morris advised Plaintiff to avoid prolonged activities, and
overhead work. Tr. 429. In a Januaty 2012 treatment note, Plaintiff reported to Dr. Morris that he
was experiencing increased numbness in his back and legs, and is only able to walk one block
without pain. Tr. 927. In that note, Dr. Morris indicated that Plaintiff complains of parethesias in
both lower extremities, not classic for spinal stenosis or claudication, and that x-rays and revealed
only degenerative changes. Dr. Morris stated that he did not know the source of Plaintiffs
symptoms, and requested a neurological consultation. Tr. 927-929.
Dr. Morris provided a
November 2012 medical source statement containing a similar opinion. Tr. 1322. In the decision,
the ALJ rejected Dr. Morris's 2012 opinion because he was unable to determine the source of
Plaintiffs medical problem. Tr. 526.
The Commissioner concedes that the ALJ did not provide a specific or legitimate reason for
discounting Dr. Morris's 2012 opinion. The Commissioner insists that the error is harmless because
21 - OPINION AND ORDER
Dr. Morris's treatment notes and 2005 and 2008 opinions do not express any limitations that exceed
the capabilities of Plaintiff's past relevant work as a city planning director. According to the
Commissioner, Plaintiffs work as a city planning director does not involve vigorous exercise or
overhead work, and therefore, even if Dr. Morris's opinions are credited, the limitations described
do not prevent Plaintiff from performing his past relevant work. I disagree.
In Jannaiy 2012, Dr. Morris opined that Plaintiff needed to avoid prolonged activities due
to exacerbation of pain and numbness. Plaintiffs past relevant work ("PRW") as a city planner was
described as highly skilled sedentary work. Tr. 527. Sedentary work is defined as a job that involves
sitting most of the time, with walking and standing occasionally required. 20 C.F.R. § 404.1567(a).
Plaintiff testified that he cannot sit for more than one hour. Although Plaintiffs PRW as a city
planner does not involve overhead work, it would require prolonged sitting. Crediting Dr. Morris's
opinion, it is not possible for Plaintiff to perform the full-range of sedentary work without increasing
his pain and numbness. See Desrosiers v. Sec. Health Human Servs., 846 F.2d 573, 580 (9th Cir.
1988) (finding plaintiff could not perform light work due to pain from prolonged activity).
Therefore, contraiy to the Commissioner's contention, the error in evaluating Dr. Morris's opinion
is not harmless. See Triechler v. Comm 'r Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)
(holding an error is harmless only if it is inconsequential to the nondisability determination).
The ALJ Did Not Err in Evaluating the Opinion ofJill Hersch, Ph.D.
Dr. Hersch is Plaintiffs treating psychologist and provided counseling to Plaintiff
intermittently from 2006 through 2014. Dr. Hersch opined in a letter dated September 10, 2014 that
Plaintiff does not have the ability to "perform skilled or semi-skilled work on a day to day basis in
a regular work setting" and that additional physical constraints caused by the workplace would
22 - OPINION AND ORDER
exacerbate Plaintiffs pain. Tr. 1363-64. Plaintiff argues that the ALJ failed to provide specific and
legitimate reasons for discounting her 2014 opinion. I disagree.
In the decision, the ALJ provided numerous reasons for discounting Dr. Hersch's opinion.
First, the ALJ discounted her opinion because it is outside the area of her expertise. Here, the ALJ
described that Dr. Hersch's opinion focused on Plaintiffs physical pain, which is outside the scope
of Dr. Hersch's area of expe1iise. Tr. 525. See 20 C.F.R. § 404.1527(d)(5) (generally more weight
is given to the opinion of a specialist about issue related to his or her specialty). The ALJ' s findings
in this regard are backed by substantial evidence.
Second, the ALJ discounted Dr. Hersch's opinion because it is inconsistent with her
treatment notes. For example, the ALJ detailed that in 2006, Plaintiff sought counseling from Dr.
Hersch for anxiety, including Plaintiffs difficulty flying, concerns about retiring, and some
depression that occurred when a relative died. Tr. 525. The ALJ noted that the bulk of Dr. Hersch's
notes from 2004 to 2007 related to mild mental symptoms and relate to Plaintiffs pain complaints.
As the ALJ c01Tectly indicated, Dr. Hersch's notes refer to mild anxiety and depression, and that Dr.
Hersch has not diagnosed a pain disorder. Indeed, Dr. Hersch's notes are consistent with those of
Drs. Greene and Morris indicating that Plaintiffs depression increases with exacerbation of his back
pain and that his .mental impaiiments are situational and well-controlled with medication. The ALJ's
findings are backed by substantial evidence, and the ALJ reasonably could find that Dr. Hersch was
treating Plaintiff for anxiety umelated to his allegations of disability.
Finally, the ALJ discounted Dr. Hersch's opinion because itwas provided some seven years
after her last treatment notations. This is a specific and legitimate reason to discount a physician's .
opinion. See Orn, 495 F.3d at 631 (noting ALJ may consiger the length and frequency of
23 - OPINION AND ORDER
examination when weighing opinions). Because the ALJ's reasoning concerning Dr. Hersch is
supported by substantial evidence, and is a reasonable interpretation of the record, it will not be
The ALJ Erred in Discounting the Opinion ofOther Source Susan Demarinis, D.C.
Dr. DeMarinis has been Plaintiffs chiropractor for over 10 years. In an October 2006
physical capacities summmy, Dr. DeMarinis noted that Plaintiffs DISH disease is progressive and
that he additionally is limited by degenerative disc disease. Dr. DeMarinis opined that Plaintiff has
a very limited ability to sit or stand for more than 30 minutes, extremely limited ability to walk any
distance, and moderately limited in his ability to lift more than 25 pounds, particularly overhead.
Dr. DeMarinis indicated that if Plaintiff performs activity overextending his limited capacity creates
further limitation in his spinal ranges of motion. Tr. 186. Dr. DeMarinis opined that if Plaintiff
continued to work at desk and computer station, the effects would be "particularly detrimental." Tr.
In the decision, the ALJ gave limited weight to Dr. DeMarinis's conclusions. The ALJ
discounted Dr. DeMarinis' s opinion offering two primaiy reasons: (1) it was motivated by secondmy
gain; (2) the limitations expressed in DeMarinis's opinion are inconsistent with the activities
performed by Plaintiff described in her treatment notes; and (3) the medical evidence shows
improvement and stabilization.
The Commissioner concedes that the ALJ improperly relied on secondary gain as a rationale.
However, the Commissioner argues that the inconsistency between the activities described in Dr.
DeMarinis' s treatment notes and her opinions is a germane reason for discounting them.
24 - OPINION AND ORDER
As discussed above, I have determined that the ALJ erred in discounting Plaintiffs credibility
based on his active lifestyle and lack of objective medical evidence. Consistent with DeMarinis's
opinion, each time Plaintiff participates in activities that exceed his described limitations, he
exacerbates his back and/or neck resulting in increased pain. Additionally, Plaintiff has periods of
improvement, as well as periods of exacerbation. Therefore, I conclude that the ALJ has not
provided germane reasons that are backed by substantial evidence for discounting DeMarinis's
opinion. See Hase, 2016 WL 5107032 at *7 (where ALJ errs in discounting claimant's credibility,
ALJ errs in discounting physician's opinion premised on same reasons). The ALJ has erred.
The ALJ Erred in Discounting the Opinion a/Thomas Brent Sheilds, Ph.D.
Dr. Sheilds performed a psychodiagnostic evaluation in December 2006. In that evaluation,
Dr. Shields observed that Plaintiff walked slowly and stiffly, displayed pain behavior when
transitioning from sitting to standing, and shifted his weight during the interview. Tr. 272. Dr.
Sheilds noted that Plaintiffs mood was depressed and appeared mildly distracted. Dr. Shields found
that Plaintiff could spell "world" forward and backwards without complication, and made one en·or
on the serial sevens task, indicating mild problems with concentration. Tr. 272. Dr. Shields found
that Plaintiff exhibited moderate depression and anxiety, and noted that Plaintiffs self-repo1ied
symptoms appeared consistent with other records Dr. Shields reviewed. Tr. 274. Dr. Shields noted
that Plaintiffs primary complaint is physical pain, not his mental impairments. Dr. Shields opined
that Plaintiffs psychological factors are not a "significant role in exacerbating his physical problems
and/or perception of pain. Hence, a diagnosis of pain disorder appears unlikely." Tr. 274. Dr.
Shields opined that Plaintiff has mild impairment in attention and concentration, and is capable of
25 - OPINION AND ORDER
understanding, remembering, and carrying out simple to moderately difficult instructions. Tr. 274.
Dr. Shields further opined that Plaintiff:
seems likely to exhibit moderate impairment in his ability to sustain concentration,
persistence and pace for 8 hours a day, 5 days per week. Based on Dr. Susan
DeMarinis' statements (10/26/06), this man is likely to have significant physical
limitations to working in even a skilled labor context. Of course, whether or not he
can persist physically should be determined through medical evaluation.
Tr. 275. Dr. Shield diagnosed an anxiety disorder, NOS (depression and anxiety) and assigned a
In the decision, the ALJ gave Dr. Shields opinion little weight because it was based on Dr.
DeMarinis's opinion. As discussed above, the ALJ erred in discounting Dr. DeMarinis's opinion,
and therefore this is not a specific and legitimate basis to discount Dr. Shields's opinion. The
Commissioner also contends that the ALJ cited to inconsistencies between Dr. Shields findings on
the mental status examination indicating Plaintiffs mild limitation in concentration and his opinion
that Plaintiff would have moderate impairment in sustaining concentration, persistence and pace.
The Commissioner's second rationale stretches what can reasonably be inferred from the ALJ's
decision. See Connett v. Barnhart, 340 F3d 871, 874 (9th Cir. 2003) (holding the court is
constrained "to review the reasons the ALJ asserts").
Even ifthe ALJ did cite this inconsistency as a basis for discounting Dr. Shields' opinion,
I find no discrepancy in Dr. Shields' findings. Plaintiffs ability to sustain concentration, persistence
and pace for a full day is a different measurement of his abilities than his orientation, attention and
concentration in performing the serial sevens task and spelling "world." Compare Tr. 272 with 27475. Accordingly, this rationale is not supported by substantial evidence and fails to provide a
specific and legitimate basis for discounting Dr. Shields' opinion.
26 - OPINION AND ORDER
In summary, I conclude that the ALJ has erred in evaluating the medical evidence. To be
sure, the ALJ discounted every treating or examining provider to care for Plaintiff in favor of the
nonexamining agency physicians. On the record before me, I conclude the ALJ has committed
harmful error. The ALJ' s errors in evaluating Plaintiffs testimony and the medical evidence are
outcome determinative, and therefore, I decline to address Plaintiffs remaining arguments.
The Ninth Circuit provides that an award of benefits is appropriate where three prerequisites
are met: (1) the record is fully developed and further administrative proceedings would serve no
useful purpose; (2) the ALJ has not provided legally sufficient reasons for rejecting the evidence; and
(3) ifthe improperly discredited evidence were credited as true, the ALJ would be required to find
the claimant disabled on remand. Garrison, 759 F.3d at 1020; Triechler, 775 F.3d at 1101. The
decision to remand for an award of benefits is always discretionaiy, and the court may decline to do
so ifthere is "serious doubt" the claimant is disabled. Garrison, 759 F.3d at 1021. Here, Plaintiff
satisfies all three conditions of the credit-as-true standard.
First, there are no outstanding issues that need to be resolved, and no additional proceedings
are necessary. The record contains nearly ten years of medical records, with numerous evaluations
of Plaintiffs physical and mental capacities. There is also sufficient vocational testimony in the
record from which to assess whether someone with Plaintiffs limitations can sustain work on a fulltime basis. Additional evidence would not be beneficial or enlightening. Remanding this case
would serve no useful purpose. Garrison, 759 F.3d at 1022.
Second, as discussed above, the ALJ failed to provide legally sufficient reasons to support
the adverse credibility determination and evaluation of the medical evidence from treating physicians
27 - OPINION AND ORDER
Drs. Greene and Morris, examining psychologist Dr. Shields, and Plaintiffs chiropractor Dr.
DeMarinis concerning Plaintiffs pain and its impact on his abilities.
Third, if the improperly credited evidence were credited as true, it is clear the ALJ would be
required to find Plaintiff disabled. To be sure, Plaintiff testified that he lays down for at least an hour
each day to relieve pain and discomfort in his back. Tr. 555, 599, 639. The VE testified at the 2014
hearing that if an individual was off task for ten percent of each day, the person is not competitively
employable. Tr. 579. Similarly, if Drs. Greene and Shields' opinions are credited as true, the
vocational testimony establishes that Plaintiff is disabled. Tr. 577.
Finally, an exercise of my discretion to award benefits in this case appropriate. I have
carefully examined the medical evidence in this lengthy transcript and have no serious doubt as to
the limitations expressed by Plaintiff and numerous treating and examining providers who have
attested to those same limitations.
For the reasons stated above, the Commissioner's final decision denying benefits to Plaintiff
is REVERSED and this proceeding is REMANDED for an immediate calculation and award of
IT IS SO ORDERED.
DATED this __jf_ day of JANUARY, 2017.
Malcolm F. Marsh
United States District Judge
28 - OPINION AND ORDER
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