Andrews v. Commissioner Social Security Administration

Filing 16

OPINION AND ORDER. Based on this Opinion and Order, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is RESERVED and the matter is REMANDED for payment of benefits. Please access entire text by document number hyperlink. Ordered and Signed on 09/30/2019 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

LISA A., l

Plaintiff,

v.

Civ. No. 1:18-cv-00309-CL
OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MARK D. CLARKE, Magistrate Judge.
Plaintiff Lisa A. ("Plaintiff') seeks judicial review of the final decision of the
Commissioner of the Social Security Administrations denying her applications for disability
insurance benefits and supplemental security income under Titles II and XVI of the Social

1In

the interest of privacy, this Opinion and Order uses only the first name and the initial of the
last name of the non-governmental party or parties in this case.
Page 1 of 17 - OPINION AND ORDER

Security Act. For the reasons below, the Commissioner's decision should be REVERSED and
REMANDED for immediate payment of benefits.2

BACKGROUND
Plaintiff was born in 1956. Tr. 45, 94. She has a high school education. Tr. 94. Plaintiff
has several diagnosed physical and mental impairments. Her physical impairments include the
following: joint degeneration in the right shoulder, with reduced range of motion, for which
Plaintiff underwent rotator cuff surgery, Tr. 561, 712, 731; lumbar degenerative disc disease and
arthritis, with herniated gait discs, sciatica, and radiation of pain bilaterally to the lower
extremities, Tr. 546, 553, 559, 722-23; bilateral hip bursitis, with accompanying back pain and
reduced range of motion, Tr. 325-27, 373-76, 500,540, 553-54; gastroesophageal reflux disease
with Barrett's esophagus and irritable bowel syndrome, Tr. 327; chronic muscular strain
superimposed on degenerative instability with osteoporosis, Tr. 327; and tinnitus, Tr. 327.
Plaintiff also suffers from the following mental health impairments: anxiety with panic disorder,
Tr. 325,360,434,564; depression, with loss of interest in activities, sleep disturbance, decreased
energy, and difficulty concentrating or thinking, Tr. 359-60, 502, 564; and alcohol use disorder,
Tr. 360,366. The record shows that Plaintiff's mental impairments worsened after the death of
her son in 2012. Tr. 502, 362-71. Her anxiety and depression increased, as did her drinking. Tr.
502, 362-71. Plaintiff went into alcohol recovery treatment, which she successfully completed,
Tr. 567, and the record shows that her other mental impairments improved as a result, Tr. 65.
On June 28, 2013, Plaintiff protectively filed applications for DIB and SSI, alleging
disability beginning June 1, 2011, with a date last insured (DLI) of December 31, 2015, for DIB

2

The parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28
U.S.C. § 636(c)(l).

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purposes. Tr. 18. The applications were denied initially and upon reconsideration, and a hearing
was requested. Tr. 18. On August 18, 2016, a hearing was held before Administrative Law Judge
(ALJ) Robert Frank Spaulding presiding from Portland, Oregon, with Plaintiff appearing from
Medford. Tr. 40-78. The ALJ found Plaintiff not disabled. Tr. 29. Plaintiff filed a request for
review by the Appeals Council, which was denied. Tr. 1-3. The ALJ's ruling thus became the
final decision of the Commissioner, and Plaintiff now seeks review of that decision.
DISABILITY ANALYSIS

A claimant is disabled if he or she is unable 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[.]" 42 U.S.C.
§ 423(d)(l)(A). "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."
Keyser v. Comm 'r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1.

Is the claimant performing "substantial gainful activity"? 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay or
profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such
work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.

2.

Is the claimant's impairment "severe" under the Commissioner's
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is "severe" if it significantly
limits the claimant's physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or
must be expected to last for a continuous period of at least 12 months. 20
C.F.R. §§,404.1509; 416.909. If the claimant does not have a severe

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impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.
3.

Does the claimant's severe impairment "meet or equal" one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then
the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416 .920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds to the "residual functional
capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant's RFC. This is an assessment of workrelated activities that the claimant may still perform on a regular and
continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant's RFC, the
analysis proceeds to step four.

4.

Can the claimant perform his or her "past relevant work" with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his
or her past relevant work, the analysis proceeds to step five.

5.

Considering the claimant's RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);
416.960(c). If the claimant cannot perform such work, he or she is disabled.
Id

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 954. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.

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1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work
which exists in the national economy"). If the Commissioner fails to meet this burden, the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55;

Tackett, 180 F.3d at 1099.
THE ALJ'S FINDINGS
Applying the five-step analysis, the ALJ made the following findings:
1. Plaintiff meets the insured status requirements of the Social Security Act through
December 31, 2015, and has not engaged in substantial gainful activity since the
alleged onset date of June 1, 2011. Tr. 20.
2. Plaintiff has the following severe impairments: degenerative disc disease, obesity,
post right-shoulder rotator cuff repair, bursitis of the right shoulder, pyriform
syndrome, and bilateral hip bursitis. Tr. 20.
3. Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments. Tr. 23.
a. Plaintiff has the RFC to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except Plaintiff is limited to frequent reaching overhead with
the dominant right arm; climbing ramps or stairs; and stooping, kneeling, or
crouching. She may also occasionally climb ladders or scaffolds. Tr. 24.
4. Plaintiff is able to perform past relevant work as an environmental health officer and
medical records clerk. Tr. 29.
Consequently, the ALJ concluded Plaintiff was not disabled as defined by the Social
Security Act. Tr. 29.

STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see
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also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "'Substantial evidence' means

'more than a mere scintilla but less than a preponderance,' or more clearly stated, 'such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."' Bray v.
Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shala/a, 53

F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court
must weigh "both the evidence that supports and detracts from the [Commissioner's]
conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations
of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Where the evidence before the ALJ is subject to more than one rational interpretation, the
Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d
at 1041). "However, a reviewing court must consider the entire record as a whole and may not
affirm simply by isolating a 'specific quantum of supporting evidence."' Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a

reviewing court "cannot affirm the [Commissioner's] decision on a ground that the
[Administration] did not invoke in making its decision." Stout v. Comm 'r Soc. Sec. Admin., 454
F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ's
decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that
an error is harmful normally falls upon the party attacking the agency's determination." Shinseki
v. Sanders, 556 U.S. 396,409 (2009).

Even where findings are supported by substantial evidence, "the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42

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U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript
record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or
without remanding the case for a rehearing.

DISCUSSION
Plaintiff argues that the ALJ erred in the following ways: (1) failing to conduct a proper
analysis at step two; (2) failing to properly analyze Plaintiffs Department of Veterans Affairs
(VA) disability rating; and (3) improperly evaluating the medical opinion evidence. This Court
finds that the ALJ erred in the latter two ways.

I.

The ALJ did not err in finding Plaintiff's mental impairments nonsevere.

Because Plaintiff made claims for mental impairments, the ALJ was required to apply the
"psychiatric review technique" ("PRT"). 20 C.F.R. §§ 404.1520a; 416.920a. Pursuant to the
PRT, the ALJ must determine whether plaintiff had a medically determinable mental impairment
and rate the degree of functional limitation for four functional areas. Id. If the impairment is
deemed "severe," the ALJ proceeds to step three of the disability analysis to determine if the
impairment meets or equals a specific listed mental disorder. Id. at (b) & (c).
The ALJ's written decision must incorporate the pertinenffindings and conclusions as
well as a specific finding as to the degree of limitation in each of the four functional areas: (1)
activities of daily living; (2) social functioning; (3) concentration persistence, or pace; and (4)
episodes of decompensation. Keyser, 648 F.3d at 725; 20 C.F.R. §§ 404.1520a(e)(4),
4 l 6.920a(e)(4). So long as the ALJ rates and assesses the claimant's limitations in each of the
four primary functional areas and provides the supportive information required under 20 CFR §
404.1520a(e)(4), the ALJ need not make specific findings as to each alleged impairment or

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medical condition identified by the claimant. Hoopai v. Astrue, 499 F.3d 1071, 1077-78; see also

Nicholson v. Colvin, 106 F.Supp.3d 1190, 1194-95 (D. Or. 2015).
The step two inquiry is a de minimis screening device used to dispose of groundless
claims. Bowen v. Yuckert, 482 U.S. 147, 153-54 (1987). The claimant bears the burden of
establishing that she has a severe impairment at step two by providing medical evidence. 20
C.F.R. §§ 404.1512, 416.912. An impairment or combination of impairments is "not severe only

ifthe evidence establishes a slight abnormality that has no more than a minimal effect on an
individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (emphasis in
original) (citing Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). The ALJ is required to
consider the combined effect of all of the claimant's impairments on his or her ability to
function. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Thus, if the
ALJ determines that a claimant has a severe impairment at step two, the sequential analysis
proceeds and the ALJ must continue to consider all of the claimant's limitations, severe or not.
SSR 96-9p, 1996 WL 374184 (July 2, 1996). Where an ALJ fails to identify a severe impairment
at step two, but nonetheless considers at subsequent steps all of the claimant's impairments,
including the erroneously omitted severe impairment, the error at step two is harmless. See Lewis

v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
Here, the ALJ' s finding at step two that Plaintiffs mental impairments were nonsevere
was supported by substantial evidence. The ALJ properly discussed Plaintiffs limitations in each
of the four functional areas, and the record supports his conclusions regarding Plaintiffs
limitations. Thus, the ALJ correctly applied the PRT to determine that Plaintiffs mental
impairments were nonsevere.

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The record supports the ALJ's finding of mild limitation for activities of daily living.
First, Plaintiff does not experience significant mental impediments to her personal care; Plaintiff
is able to feed, dress, and bathe herself without assistance. Tr. 245. Second, Plaintiffs mental
impairments do not prevent her from taking care of her home and her pets. Tr. 244, 246. Finally,
Plaintiff is not precluded by her mental impairments from enjoying activities such as watching
television and spending time with her grandson. Tr. 247,360. Therefore, the record supports the
ALJ's finding of mild limitation in the first functional area.
The record supports the ALJ's finding of mild limitation for social functioning as well.
Though the record indicates that Plaintiff prefers not to interact with other people, her mental
impairments do not prevent her from residing with her husband or interacting with other family
members. Tr. 359-60. Furthermore, the record indicates that Plaintiff gets along well with
authority figures and can follow spoken instructions. Tr. 248. Therefore, substantial evidence
supports the ALJ' s finding of mild limitation with regard to the second functional area.
The ALJ' s finding of mild limitation with regard to concentration, persistence, or pace is
likewise supported by the record. The ALJ properly considered Plaintiffs subjective testimony
regarding her inability to adapt to changes and cope with stress. Tr. 21. The ALJ noted that the
records taken by Plaintiff's treating physicians do not support Plaintiffs claims of significant
problems with attention, concentration, and short-term memory. Tr. 21. The medical evidence
supports the ALJ's finding. Plaintiffs treating physicians consistently reported normal cognitive
function, normal mood, and appropriate affect. Tr. 503, 625, 678, 691, 764, 792. Therefore, the
ALJ's finding that Plaintiff's concentration, persistence, and pace are only mildly limited is
supported by substantial evidence.

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The fourth and final functional area is episodes of decompensation. The ALJ concluded
that Plaintiff had experienced no episodes of decompensation of extended duration. Tr. 21. The
record supports the ALJ' s conclusion.
Because the ALJ properly discussed Plaintiff's limitations with regard to all four
functional areas and supported his conclusions, the ALJ did not err in finding Plaintiff's mental
impairments nonsevere at step two. Moreover, due to her severe physical impairments, Plaintiff
passed beyond step two in the sequential analysis, and the ALJ properly considered all of
Plaintiff's limitations in the subsequent steps. In determining Plaintiffs RFC at step three, the
ALJ discussed all of Plaintiff's impairments, including her mental impairments. Tr. 25.
Therefore, the ALJ properly considered Plaintiff's mental impairments and did not make a
harmful error at step two.

II.

The ALJ erred in failing to properly weigh Plaintiff's VA disability rating.

When a plaintiff has been given a disability rating by the Department of Veterans' Affairs
(YA), the ALJ must consider the VA's findings "because of the similarities between the VA

disability program and the Social Security disability program." Hiler v. Astrue, 687 F.3d 1208,
1211 (9th Cir. 2011). While a VA determination of disability is ordinarily entitled to "great
weight," the ALJ may give less weight to a VA disability rating if he gives "persuasive, specific,
[and] valid reasons for doing so that are supported by the record." See McCartey v. Massanari,
298 F.3d 1072, 1076 (9th Cir. 2002).
On April 18, 2011, the VA determined that Plaintiff had been 90 percent disabled since
February 1, 2009, due to a hysterectomy scar; dysthymia with panic disorder; tinnitus; irritable
bowel syndrome; bulging disc; and pain in the back, hips, knees, and elbows. Tr. 323-27. The
ALJ gave two reasons for departing from the VA's disability rating: (1) Plaintiff had maintained

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an active daily routine, and (2) Plaintiffs impairments improved through physical exercise and
therapy. Tr. 28. Based on the foregoing, the ALJ found that the VA rating warranted little
weight. Tr. 28.
This Court finds neither reason legally sufficient. First, the ALJ's finding that Plaintiff
maintained an active daily routine is unconvincing. For support, the ALJ cited to evidence in the
medical record that shows Plaintiff engaging in strenuous activities, including bowling and
fishing. Tr. 28. However, examination of the cited portion of the record shows that Plaintiff
reported that she was unable to bowl more than one game because of"severe" pain in her right
shoulder. Tr. 615. Furthermore, Plaintiffs fishing voyage likewise exacerbated her shoulder
pain. Tr. 618. Plaintiffs attempts to engage in recreation, especially when the attempts are
painful and unsuccessful, are not evidence that she has maintained an active daily routine.
Therefore, the ALJ's finding that Plaintiff maintained an active daily routine is not supported by
the record.
Second, the ALJ' s finding that Plaintiffs physical impairments have improved
significantly is likewise insufficient. The ALJ noted in his decision that the medical record
demonstrates that Plaintiffs "conditions" have "significantly improved through exercise and
physical therapy." Tr. 26-28. Indeed, Plaintiffs physical therapy records from December 2014
through November 2015 show reduced pain, increased range of motion, and improved function
of the right shoulder. Tr. 737-750. However, the cited portion of the record shows improvement
only to Plaintiffs right shoulder, not her other impairments. In fact, the physical therapy records
indicate that Plaintiffs hip and back pain remained constant throughout the course of physical
therapy. Tr. 740, 741, 743, 744, 748.

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Elsewhere in the record, clinical findings similarly demonstrate a lack of improvement to
Plaintiffs hip and back. Orthopedic records from September 28, 2015, state that Plaintiffs back
pain was "constant and fluctuat[ing] in intensity" and that standing and walking were
"exacerbating factors" Tr. 722. Furthermore, in records dating to June 25, 2015, both hips were
described as "[t]ender to palpation," and, on Plaintiffs right hip, the FABER maneuver elicited a
"snap in the groin region." Tr. 728. Because the ALJ failed to address the lack of improvement to
Plaintiffs hips and back, instead focusing exclusively on Plaintiffs shoulder, the ALJ's second
reason is not supported by the record. Therefore, the ALJ erred in failing to provide sufficient
reasons for discrediting Plaintiffs VA rating.

ill.

The ALJ erred in failing to properly weigh the opinion of Jon McKellan, M.D.,
a treating physician; Dr. McKellan's opinion should be credited as true.

The ALJ must consider all medical opinion evidence. 20 C.F.R. § 404.1527(b). The
opinion of a treating physician is given "controlling weight" if it is "well-supported by medically
acceptable clinical laboratory techniques and is not inconsistent with the other substantial
evidence in the record." 20 C.F.R. § 404.1527(c)(2). Generally, the opinion of a treating
physician is entitled to more weight than that of a physician who did not treat the patient. Lester
v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). However, the ALJ need not accept the opinion of a

treating physician if the opinion is "brief, conclusory, and inadequately supported by clinical
findings." Bray v. Comm 'r ofSoc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).

If a treating physician's opinion is uncontradicted, the ALJ must state clear and
convincing reasons, supported by substantial evidence, for rejecting it. Lester, 81 F .3d at 830-31.

If the treating physician's opinion is in dispute, the ALJ must provide "specific and legitimate
reasons that are supported by substantial evidence" for rejecting it. Id Objective clinical tests can
constitute "substantial evidence" to support the opinion of a nontreating physician over that of a
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treating physician. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). However, the
opinion of a nontreating, nonexamining physician does not "by itself constitute substantial
evidence that justifies the rejection of the opinion of an examining or treating physician."

Morgan v. Comm'r ofSoc. Sec. Admin., 169 F.3d 595,602 (9th Cir. 1999) (citations omitted).
When the ALJ fails to provide adequate reasons for rejecting a treating physician's opinion, that
opinion is credited as true as a matter of law. Lester, 81 F.3d at 834 (citing Hammock v. Bowen,
879 F.2d 498 (9th Cir. 1989).
Dr. Jon McKellan was Plaintiff's treating physician for over one year. Tr. 473-75, 504,
564-66. In September 2013, Dr. McKellan assessed Plaintiff's impairments with regard to her
ability to maintain substantial employment and identified severe limitations of Plaintiff's ability
to work. Tr. 473-75. Dr. McKellan opined that Plaintiff could neither sit nor stand for longer than
two hours continuously; required the ability to sit or stand at will; could lift 10 pounds at most,
and only rarely; could not twist, stoop, or crouch; and was significantly limited in her ability to
reach, handle, and finger. Tr. 473-75. Thus, Dr. McKellan believed Plaintiff would require an
assistive device for occasional walking and standing. Tr. 473-75. Furthermore, in Dr.
McKellan's opinion, Plaintiff's concentration would be constantly interrupted throughout the
workday, and she was incapable of even "low stress" employment. Tr. 473-75. Ultimately, Dr.
McKellan estimated that Plaintiff was likely to require at least four absences per month. Tr. 47375. Later, in June 2014, Dr. McKellan conducted another assessment of Plaintiff's limitations
and came to the same conclusions. Tr. 564-66.
The ALJ gave "little weight" to Dr. McKellan's opinion because he found that "the
medical record does not support [it]." Tr. 27. The ALJ gave three reasons for his finding. Tr. 27.
First, Plaintiff's orthopedist found Plaintiff's lumbar spine MRI scans "normal for her age". Tr.

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27. Second, several in-office examination reports showed "mostly normal abilities to function"
with no "debilitating pain." Tr. 27. Finally, Plaintiff's physical therapy history "describe[s] wellcontrolled pain and increased range of motion." Tr. 27. This Court finds that the ALJ's reasons
are not supported by substantial evidence.
First, the ALJ noted that Dr. Jason Conaughty, an orthopedist, considered Plaintiff's
lumbar spine MRI "essentially normal for her age." Tr. 723. However, in the same examination,
Dr. Conaughty noted that Plaintiff's lumbar spine range of motion was limited, and her deep
tendon reflexes were "muted in both extremities." Tr. 723. Moreover, the radiologist who
performed the MRI noted a "[m]ild broad-based disc bulge at L3-4." Tr. 705. Therefore, the
ALJ's first reason for discounting Dr. McKellan's opinion about Plaintiff's lumbar spine
limitations is not supported by substantial evidence.
Second, the ALJ found that the record included a history of examinations describing
"normal function" without "debilitating pain." Tr. 27. For support, the ALJ cited to three
exhibits. Tr. 27. While these exhibits report some normal functionality-especially in relation to
Plaintiff's gait and right shoulder-they also report "constant" and "fluctuating" back pain,
"chronic" hip pain, weakness in the lower extremities, and difficulty walking and climbing. Tr.
722, 729, 725, 726, 743. Furthermore, elsewhere in the record, Plaintiff's back pain is reported as
"constant," "severe," and up to a 7 on the 10-point scale. Tr. 551,662,624. Therefore, the ALJ's
second reason is insufficiently supported as well.
Finally, the ALJ noted that Plaintiff's physical therapy records "describe well-controlled
pain symptoms and ranges of motion." Tr. 27. As discussed above, the physical therapy records
from 2015 do show significant improvement in the pain and functionality of Plaintiff's right
shoulder. Tr. 737-754. However, the records do not demonstrate any considerable improvement

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in Plaintiffs other physical impairments. Tr. 737-754. Rather, the physical therapy notes to
which the ALJ cited describe ongoing pain and tightness in the hips and back, as well as
difficulty sleeping, walking, and climbing. Tr. 741, 748. Thus, the ALJ's third and final reason is
not supported by substantial evidence.
The opinion of Dr. McKellan is supported by medically acceptable clinical findings and
is consistent with substantial evidence in the record. Therefore, controlling weight should have
been given to his opinion. The ALJ did not provide legally sufficient reasons for discrediting his
opinion. The opinion should be credited as true.

REMAND
A district court may "revers[e] the decision of the Commissioner of Social Security, with
or without remanding the cause for a rehearing," Treichler v. Comm'r ofSoc. Sec. Admin., 775
F.3d 1090, 1099 (9th Cir. 2014) (citing 42 U.S.C. § 405(g)), but "the proper course, except in
rare circumstances, is to remand to the agency for additional investigation or explanation," id.
(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643
(1985)). Ninth Circuit case law precludes a district court from remanding a case for an award of
benefits unless certain prerequisites are met. Burrell v. Colvin, 775 F .3d 1133, 1141 (9th
'\

Cir.2014) (discussing Garrison v. Colvin, 759 F.3d 995 (9th Cir.2014)). The district court must
first determine that the ALJ made a legal error, such as failing to provide legally sufficient
reasons for rejecting evidence. Id. If the court finds such an error, it must next review the record
as a whole and determine whether it is fully developed, is free from conflicts and ambiguities,
and "all essential factual issues have been resolved." Treichler, 775 F.3d at 1101. In conducting
this review, the district court must consider whether there are "inconsistencies between [the
claimant's] testimony and the medical evidence in the record," id. at 1105, or whether the

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'
government has pointed to evidence in the record "that the ALJ overlooked" and explained "how
that evidence casts into serious doubt" the claimant's claim to be disabled, Burrell, 775 F.3d at
1141. Unless the district court concludes that further administrative proceedings would serve no
useful purpose, it may not remand with a direction to provide benefits. Id.; Dominguez v.
Colvin, 808 F.3d 403,407 (9th Cir. 2015), as amended (Feb. 5, 2016).
On this record, this Court believes no useful purpose would be served by remanding the
case for further proceedings. This Court is properly convinced that the ALJ failed to provide
sufficient reasons for rejecting Dr. McKellan's opinion of Plaintiff's limitations. As discussed
above, Dr. McKellan opined that Plaintiff would be forced to miss at least four days of work per
month. Furthermore, during the hearing, the vocational expert testified that an individual who
missed two or more days per month on a regular basis could not maintain competitive
employment. Tr. 77. Therefore, when credited as true, Dr. McKellan's opinion establishes that
Plaintiff was disabled. Considering Plaintiff's VA rating of 90% disability and the testimony of
the vocational expert, the ALJ's failure to properly credit Dr. McKellan's opinion is a reversible
error. Moreover, the record is fully developed, and no meaningful purpose would be served by
remanding for additional proceedings.
A claimant who is unable to perform past relevant work as well as any other work that
exists in significant numbers in the national economy, after taking into account the claimant's RFC
and age, education, and work experience, is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv);
416.920(a)(4)(iv); 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). Plaintiff meets
these criteria, is therefore disabled, and remanding this case for further administrative proceedings
would serve no useful purpose; "rather, it would merely delay the award of benefits." Dominguez,

Page 16 of 17 - OPINION AND ORDER

808 F.3d at 407. Therefore, the Commissioner's decision is reversed and remanded for the
payment of benefits.
ORDER

Based on the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision
of the Commissioner is REVERSED and the matter is REMANDED for payment of benefits.
IT IS SO ORDERED.
DATEDthis 3:,)da

Page 17 of 17 - OPINION AND ORDER