Wellman v. Commissioner Social Security Administration
Filing
23
OPINION AND ORDER. For the reasons stated, the Court REVERSES the Commissioner's decision and REMANDS this case for further proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 3/31/2021 by Magistrate Judge Stacie F. Beckerman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAMES W.,1
Case No. 1:20-cv-00541-SB
Plaintiff,
OPINION AND ORDER
v.
ANDREW M. SAUL, Commissioner of Social
Security,
Defendant.
BECKERMAN, U.S. Magistrate Judge.
James W. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social
Security Administration’s (“Commissioner”) denial of his applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the
Social Security Act. The Court has jurisdiction to hear Plaintiff’s appeal pursuant to 42 U.S.C. §
405(g), and the parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to
28 U.S.C. § 636(c). For the reasons explained below, the Court reverses the Commissioner’s
1
In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
PAGE 1 – OPINION AND ORDER
decision because it is based on harmful legal error and not supported by substantial evidence in
the record.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “‘not supported by substantial evidence or based on legal error.’” Bray v. Comm’r of Soc.
Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of
evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court
must consider the entire record, weighing the evidence that both supports and detracts from the
Commissioner’s conclusions. Id. Where the record as a whole can support either the grant or
denial of Social Security benefits, the district court “‘may not substitute [its] judgment for the
[Commissioner’s].’” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152
(9th Cir. 2007)).
BACKGROUND
I.
PLAINTIFF’S APPLICATIONS
Plaintiff was born in October 1985, making him thirty-one years old on December 1,
2016, his amended alleged disability onset date. (Tr. 36, 68.) Plaintiff graduated from high
school and has past relevant work experience as a security guard, tow truck driver, auto
mechanic, weigher, wood working machine operator, and general mechanic. (Tr. 21, 33.) In his
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applications, Plaintiff alleged disability due to paralysis of his right hand and “back problems.”
(Tr. 68.)
The Commissioner denied Plaintiff’s applications initially and upon reconsideration, and
on October 3, 2017, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).
(Tr. 13.) Plaintiff and a vocational expert (“VE”) appeared and testified at an administrative
hearing held on February 15, 2019. (Tr. 31-55.) On March 5, 2019, the ALJ issued a decision
denying Plaintiff’s applications. (Tr. 13-23.) On January 29, 2020, the Appeals Council denied
Plaintiff’s request for review, making the ALJ’s written decision the final decision of the
Commissioner. (Tr. 1-6.) Plaintiff now seeks judicial review of the ALJ’s decision. (Compl. at 12.)
II.
THE SEQUENTIAL PROCESS
A claimant is considered 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)(1)(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). Those five
steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the impairment meets or equals a listed
impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the
claimant can perform other work that exists in significant numbers in the national economy. Id.
at 724-25.
The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari,
262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those
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steps, the claimant is not disabled. Id. at 954. The Commissioner bears the burden of proof at
step five of the analysis, where the Commissioner must show 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, 180 F.3d
at 1100. If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262
F.3d at 954.
III.
THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is
disabled. (Tr. 13-23.) At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since December 1, 2016, his amended alleged disability onset date.
(Tr. 15.) At step two, the ALJ determined that Plaintiff suffered from the following severe
impairments: “[D]egenerative disc disease of the cervical and lumbar spine, neuropathy, status
post right shoulder dislocation with persistent mild tend[i]nosis and asthma[.]” (Tr. 15.) At step
three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed
impairment. (Tr. 16.) The ALJ then concluded that Plaintiff had the residual functional capacity
(“RFC”) to perform sedentary work, subject to these limitations: (1) Plaintiff can lift and carry
no more than ten pounds “occasionally or frequently,” (2) Plaintiff can stand, sit, and walk for no
more than six hours during an eight-hour workday, (3) Plaintiff can occasionally kneel, crouch,
crawl, climb ramps and stairs, push and/or pull with his right arm, reach overhead bilaterally,
reach in all “other directions” with his right arm, and handle with his right arm since he is lefthand dominant, (4) Plaintiff can never climb ladders, ropes, or scaffolds, (5) Plaintiff can
frequently balance, and (6) Plaintiff must avoid concentrated exposure to fumes, odors, dust,
gases, and poorly ventilated areas. (Tr. 16.) At step four, the ALJ concluded that Plaintiff was
unable to perform his past work. (Tr. 21.) At step five, the ALJ determined that Plaintiff was not
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disabled because a significant number of jobs existed in the national economy that he could
perform, including work as a call out operator, telephone solicitor, and surveillance system
monitor. (Tr. 22.)
DISCUSSION
In this appeal, Plaintiff argues that the ALJ erred by failing to: (1) provide clear and
convincing reasons for discounting Plaintiff’s symptom testimony; (2) provide legally sufficient
reasons for discounting the opinion of Plaintiff’s treating physician, Christian Holland, D.O.
(“Dr. Holland”); (3) find at step two that Plaintiff’s complex regional pain syndrome (“CRPS”),
also known as reflex sympathetic dystrophy (“RSD”), was a severe impairment; (4) satisfy her
step five burden of showing that significant numbers of jobs exist in the national economy that
Plaintiff can perform; and (5) pose hypothetical questions to the VE that accounted for all of
Plaintiff’s credible limitations. As explained below, the Court concludes that the Commissioner’s
decision is based on harmful legal error and not supported by substantial evidence in the record.
Accordingly, the Court reverses the Commissioner’s decision and remands this case for further
proceedings.
I.
PLAINTIFF’S SYMPTOM TESTIMONY
A.
Applicable Law
The Ninth Circuit has “established a two-step analysis for determining the extent to
which a claimant’s symptom testimony must be credited[.]” Trevizo v. Berryhill, 871 F.3d 664,
678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which could reasonably be expected to produce
the pain or other symptoms alleged.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)
(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). Second, “‘[i]f the
claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the
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claimant’s testimony about the severity of the symptoms if she gives specific, clear and
convincing reasons for the rejection.’” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)
(quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).
Clear and convincing reasons for rejecting a claimant’s testimony “include conflicting
medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the
claimant’s testimony or between her testimony and her conduct, daily activities inconsistent with
the alleged symptoms, and testimony from physicians and third parties about the nature, severity
and effect of the symptoms complained of.” Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL
2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th
Cir. 2008), Lingenfelter, 504 F.3d at 1040, and Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th
Cir. 1997)).
B.
Analysis
There is no evidence of malingering here and the ALJ determined that Plaintiff provided
objective medical evidence of underlying impairments which might reasonably produce the
symptoms alleged. (See Tr. 17, the ALJ determined that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms”). The ALJ was
therefore required to provide specific, clear, and convincing reasons for discounting Plaintiff’s
testimony. See Ghanim, 763 F.3d at 1163. The Court finds that the ALJ failed to satisfy that
standard here.
The ALJ’s decision includes this boilerplate language: “[Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the reasons explained
in this decision.” (Tr. 17.) The ALJ explained that Plaintiff’s statements about the intensity,
persistence, and limiting effects of his symptoms are “inconsistent because they are not
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supported by the objective medical evidence,” as “[n]either diagnostic imaging nor
electrodiagnostic studies support [his alleged] loss of function.” (Tr. 18.) The ALJ added that this
“lack of objective evidence is further supported by findings on physical examination.” (Tr. 18.)
It is well settled that an ALJ may discount a claimant’s testimony based on, among other
things, a lack of supporting medical evidence. See, e.g., Wills v. Saul, 829 F. App’x 838, 839 (9th
Cir. 2020) (holding that the ALJ provided clear and convincing reasons for discounting the
claimant’s testimony and noting that the “ALJ reasonably relied on . . . the lack of supporting
medical evidence to find [that the claimant’s] symptom allegations were not entirely credible”).
Here, substantial evidence (i.e., more than a mere scintilla of evidence but less than a
preponderance, Bray, 554 F.3d at 1222) supports the ALJ’s finding that the objective medical
evidence undermined Plaintiff’s testimony:
•
December 1, 2016: Plaintiff alleged the onset of disability based on back
problems and paralysis of his right hand. (Tr. 36, 54.)
•
December 13, 2016: Peter Grant, M.D. (“Dr. Grant”), a consulting
specialist, determined that the electrodiagnostic testing of Plaintiff’s “back
and lower extremity areas [showed] no evidence of lumbosacral
radiculopathy, lumbosacral plexopathy, or other neurophysiologic
abnormality.” (Tr. 300.) Dr. Grant added that “[o]n [e]lectrodiagnostic
evaluation . . . , [he] could delineate no specific neurophysiologic
abnormalities to correlate with [Plaintiff’s] difficulties,” Plaintiff’s
bilateral lower extremity electromyography (“EMG”) “exams were
normal,” bilateral “lumbosacral paraspinal EMG exams were normal,” and
bilateral “lower extremity nerve conduction studies were normal as well.”
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(Tr. 300; see also Tr. 377, Dr. Grant stated that no electrodiagnostic
abnormalities were encountered during his December 13, 2016 exam and
testing).
•
August 16, 2017: Thomas Davenport, M.D. (“Dr. Davenport”), a nonexamining physician, reviewed Plaintiff’s records and determined that
Plaintiff could perform a modified version of light exertional level.
(Tr. 97-101.)
•
November 21, 2017: Dr. Grant evaluated Plaintiff for a second time.
(Tr. 377.) Dr. Grant stated that on electrodiagnostic evaluation, he “could
delineate no specific neurophysiologic abnormalities to correlate with
[Plaintiff’s] difficulties,” Plaintiff’s bilateral upper extremity EMG exams
were normal, Plaintiff’s bilateral cervical paraspinal EMG exams were
normal, and Plaintiff’s bilateral upper extremity nerve conduction studies
were normal. (Tr. 378.) As to his impressions, Dr. Grant stated that
Plaintiff’s “most symptomatic” diagnosis was “probably” his “[c]hronic
muscular/myofascial right neck, shoulder, periscapular, and upper
extremity pain syndrome with associated upper extremity referred
symptoms including pain and paresthesia[],” the degenerative disease in
Plaintiff’s cervical spine “may have some degenerative and referred
symptoms associated with [it],” and there is “[s]ome element of
anxiety/adjustment disorder reaction with mixed emotional features with
associated somatic preoccupation, . . . inconsistencies on examination, and
functional overlay noted.” (Tr. 378.) Dr. Grant recommended myofascial-
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oriented physical therapy and believed that long-term management of
Plaintiff’s condition would “best be accomplished through a daily home
program of stretching progressing to strengthening exercises for the neck,
shoulder, and periscapular areas.” (Tr. 378.)
Nevertheless, it is also well settled that in discounting Plaintiff’s symptom testimony, the
ALJ may not rely solely on a lack of supporting medical evidence. See Valdez v. Berryhill, 746
F. App’x 676, 677 (9th Cir. 2018) (noting that an “ALJ may properly include lack of supporting
medical evidence in the reasons to discredit claimant testimony as long as it is not the only
reason” (citing Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005))); see also Taylor v.
Berryhill, 720 F. App’x 906, 907 (9th Cir. 2018) (holding that the ALJ “failed to provide clear
and convincing reasons supported by substantial evidence to support her conclusion that [the
claimant’s] testimony was not entirely credible,” and noting that a “lack of objective medical
evidence cannot be the sole reason to discredit claimant testimony” (citing Burch, 400 F.3d at
681)). As Plaintiff correctly pointed out in his brief, the ALJ did not cite any reasons other than a
lack of objective medical evidence to discredit Plaintiff’s testimony. (See Pl.’s Opening Br. at 17,
“The ALJ’s only discussion of the supportability and reliability of Plaintiff’s testimony was an
assertion that the symptoms Plaintiff described were not entirely consistent with the medical
evidence[.]”; see also Tr. 17-20, the ALJ failed to explain what record evidence undermined
specific portions of Plaintiff’s symptom testimony, other than a lack of supporting medical
evidence).
The Commissioner argues that the ALJ did not commit harmful error because she
provided “several independent bases” for discounting Plaintiff’s testimony. (Def.’s Br. at 11.)
However, like the ALJ’s decision, the Commissioner’s response identifies only one specific
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basis—a lack of supporting medical evidence—for discounting Plaintiff’s testimony. (See Def.’s
Br. at 10-11, “Plaintiff states that the ALJ’s only discussion of the supportability and reliability
of Plaintiff’s testimony was regarding [conflicting medical evidence]. Yet, the ALJ continues for
two pages in the decision outlining the objective evidence that undermined Plaintiff’s
complaints.”).
By relying solely on a lack of supporting medical evidence to discount Plaintiff’s
testimony, the ALJ committed harmful error. On remand, the ALJ should reevaluate Plaintiff’s
testimony in accordance with this opinion and “specifically identify the testimony [from Plaintiff
that she] finds not to be credible and explain what evidence undermines that testimony.” Lambert
v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (simplified).
II.
MEDICAL OPINION EVIDENCE
A.
Applicable Law
“There are three types of medical opinions in social security cases: those from treating
physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r, Soc.
Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995)). “Where a treating or examining physician’s opinion is contradicted by another
doctor, the ‘[ALJ] must determine credibility and resolve the conflict.’” Id. (quoting Thomas v.
Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002)). “An ALJ may only reject a treating physician’s
contradicted opinions by providing ‘specific and legitimate reasons that are supported by
substantial evidence.’” Ghanim, 763 F.3d at 1161 (quoting Ryan v. Comm’r of Soc. Sec., 528
F.3d 1194, 1198 (9th Cir. 2008)).
“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.’” Garrison, 759 F.3d at 1012 (quoting Reddick v. Chater, 157 F.3d
PAGE 10 – OPINION AND ORDER
715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient: “‘The ALJ must do more
than state conclusions. He must set forth his own interpretations and explain why they, rather
than the doctors’, are correct.’” Id. (quoting Reddick, 157 F.3d at 725). “[A]n ALJ errs when he
rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it,
asserting without explanation that another medical opinion is more persuasive, or criticizing it
with boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012-13
(citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).
B.
Analysis
Plaintiff argues that the ALJ failed to provide legally sufficient reasons for discounting
the opinion of Plaintiff’s treating physician, Dr. Holland. (Pl.’s Opening Br. at 13-16.) The Court
agrees.
Dr. Holland completed a medical source statement on February 4, 2019, wherein he
explained that he treated Plaintiff for CRPS, also known as RSD, in his right upper extremity
based on “symptomology of pain, intermittent swelling [and] intermittent [skin] color change.”
(Tr. 467-71.) Dr. Holland also stated that Plaintiff suffers from associated neck pain and
supraspinatus tendinosis of the right rotator cuff, spondylosis, and “moderate canal stenosis.”
(Tr. 471.) In terms of work-related limitations, Dr. Holland stated that Plaintiff has suffered from
the following limitations since November 2016, the month before Plaintiff’s amended alleged
disability onset date: (1) an inability to avoid being absent from work less than three times per
month, which, according to the VE, would prevent Plaintiff from sustaining gainful employment;
(2) an inability to stand/walk for more than four hours during an eight-hour workday, or for more
than ten interrupted minutes; (3) inability to reach for more than ninety minutes during an eighthour workday, or for more than five uninterrupted minutes; and (4) an inability to handle for
more than twenty minutes during an eight-hour workday, or for more than five uninterrupted
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minutes. (Tr. 467-71; see also Tr. 52, “In my experience, . . . an individual may get away by
missing work one day a month. If he missed more than that on a consistent basis he will be
terminated.”).
The ALJ was required to give specific and legitimate reasons for discounting
Dr. Holland’s opinion because it conflicted with the opinions of the non-examining state agency
physicians, none of whom opined that Plaintiff suffered from limitations that would prevent him
from sustaining gainful employment. See Tate v. Astrue, No. 11-cv-7971-PLA, 2012 WL
3705186, at *4 (C.D. Cal. Aug. 27, 2012) (“Dr. Styner’s and Dr. Dillin’s opinions on the
ultimate issue of whether plaintiff was disabled during the alleged disability period conflicted
with those of examining and State Agency physicians who opined that plaintiff was able to
perform some work [during the period at issue]. . . . Thus, the ALJ was required to give specific
and legitimate reasons for rejecting and assigning little weight to the opinions of Dr. Styner and
Dr. Dillin.”). The ALJ failed to do so.2
The ALJ provided two specific reasons for discounting Dr. Holland’s opinion. First, the
ALJ discounted Dr. Holland’s opinion because it did not “differentiate between [Plaintiff’s] right
and left arm is assigning reach and manipulative limitations,” which the ALJ found to be a
“significant oversight” given that Plaintiff’s “chronic arm pain is specific to his right, nondominant arm.” (Tr. 21.) This was not a specific and legitimate reason, supported by substantial
evidence, for discounting Dr. Holland’s opinion, nor was it an accurate interpretation of
Dr. Holland’s opinion and treatment records. Indeed, although some of Dr. Holland’s opinions
were presented in the form of answers to check-box questionnaires, none of which addressed
Given this finding, on remand the ALJ should reevaluate Dr. Holland’s opinion and
whether Plaintiff’s CRPS constituted a severe impairment. After doing so, the ALJ should
present new hypothetical questions to the VE, if necessary, and consider whether there are a
“significant number” of jobs in the economy that Plaintiff can perform.
2
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whether any reaching, handling, or fingering limitations applied only to the left or right arm,
Dr. Holland also provided a “basis for [his] assessment” after the check-box questionnaires.
(Tr. 467-70) (simplified). In this section, Dr. Holland explained that his assessment is based on
Plaintiff’s CRPS in his right upper extremity and the pain, intermittent swelling, and intermittent
skin redness in his right upper extremity. (Tr. 471.) Dr. Holland’s treatment records likewise
demonstrate that his opinions and treatment focused largely on limitations in Plaintiff’s right
upper extremity. (See, e.g., Tr. 352, April 12, 2017, Dr. Holland noted that Plaintiff’s primary
impairments include “neck and right arm pain” and “progressive weakness in [his] right hand
and right arm”). Given this evidence, the ALJ erred by discounting Dr. Holland’s opinion based
on any “significant oversight” or failure to differentiate between Plaintiff’s arms.
The ALJ’s second reason for discounting Dr. Holland’s opinion was based on
Dr. Holland’s alleged failure to explain the basis for his opinion that Plaintiff would be absent
from work three times a month, particularly in light of the opinions of examining physician,
Mike Henderson, D.O. (“Dr. Henderson”), that Plaintiff engaged in excessive pain behaviors.
(See Tr. 21, “Dr. Holland fails to provide a basis for finding that [Plaintiff] will be absent 3 times
per month, particularly in light of Dr. Henderson’s observations [regarding] . . . ‘excessive pain
behaviors and inconsistencies on exam’” (citing Tr. 365)).
As an initial matter, Dr. Holland’s check-box opinion on Plaintiff’s absenteeism appears
to be based on his assessment that Plaintiff suffers from “chronic” pain and swelling due to
CRPS and stenosis. (See Tr. 471, setting forth the basis for Dr. Holland’s check-box opinions).
Thus, Dr. Holland provided an explanation for his opinion on absenteeism.
More problematic, however, is the ALJ’s reliance on Dr. Henderson’s opinion to discount
Dr. Holland’s opinion. The Court agrees that some of Dr. Henderson’s findings appear
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incompatible with Plaintiff’s claim of complete disability. For example, Dr. Henderson found
that Plaintiff’s exam was “theatrical and inconsistent with poor effort,” Plaintiff exhibited
“multiple excessive pain behaviors and inconsistencies on exam,” and Plaintiff’s exam was
“completely unreliable.” (Tr. 365.) The Social Security Administration, however, “has specific
guidelines for the evaluation of CRPS for purposes of disability determination,” Saffaie v.
Berryhill, 721 F. App’x 709, 710 (9th Cir. 2018) (citing SSR 03-02p)), which recognize that “[i]t
is characteristic of [CRPS] that the degree of pain reported is out of proportion to the severity of
the injury sustained by the individual.” Pettingill v. Saul, No. 18-2979, 2020 WL 2404616, at *5
(E.D. Cal. May 12, 2020) (simplified). Here, the ALJ did not evaluate the medical opinions in
accordance with SSR 03-02p. Pursuant to those guidelines, Dr. Henderson’s findings as to
Plaintiff’s pain behaviors are not necessarily inconsistent with Dr. Holland’s opinion about the
effects of Plaintiff’s CRPS.3 Accordingly, the ALJ erred in discounting Dr. Holland’s opinion
based on Dr. Henderson’s findings.
Based on the foregoing reasons, the Court concludes that the ALJ failed to provide
specific and legitimate reasons, supported by substantial evidence, for discounting Dr. Holland’s
opinion.
///
///
///
Also problematic is Dr. Henderson’s finding that Plaintiff’s imaging showed signs of
“spondylosis but no [signs of] stenosis.” (Tr. 365.) Dr. Henderson reviewed Plaintiff’s records
from Southern Oregon Spine Care and Siskiyou Community Health Center (Tr. 364), and those
records reflect that Plaintiff’s imaging revealed “fairly severe . . . foraminal stenosis” at C5-C6,
“severe right-sided foraminal narrowing” at C6-C7, and moderate central stenosis at C6-C7.
(See, e.g., Tr. 337, March 2, 2017 note from South Oregon Spine Care describing the results of
the MRI of Plaintiff’s cervical spine and the findings that his treating spine specialists found to
be “pertinent”). Thus, the records Dr. Henderson reviewed do not support his findings.
3
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III.
REMEDY
A.
Applicable Law
“Generally when a court of appeals reverses an administrative determination, ‘the proper
course, except in rare circumstances, is to remand to the agency for additional investigation or
explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citing INS v. Ventura,
537 U.S. 12, 16 (2002)). In a number of cases, however, the Ninth Circuit has “stated or implied
that it would be an abuse of discretion for a district court not to remand for an award of benefits
when [the three-part credit-as-true standard is] met.” Garrison, 759 F.3d at 1021 (citations
omitted).
The credit-as-true standard is met if three conditions are satisfied: “(1) the record has
been fully developed and further administrative proceedings would serve no useful purpose; (2)
the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion; and (3) if the improperly discredited evidence were credited as
true, the ALJ would be required to find the claimant disabled on remand.” Id. at 1020 (citations
omitted). Even when the credit-as-true standard is met, the district court retains the “flexibility to
remand for further proceedings when the record [evidence] as a whole creates serious doubt as to
whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at
1021.
B.
Analysis
Even if Plaintiff could satisfy the credit-as-true standard here, the record creates serious
doubt about whether Plaintiff is disabled. See Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014)
(“[W]e need not determine whether the three preliminary [credit-as-true] requirements are met
because, even assuming that they are, we conclude that the record as a whole creates serious
doubt as to whether Claimant is, in fact, disabled.”).
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The record includes several reports that create sufficient doubt about whether Plaintiff is
disabled. For example, during the February 15, 2019 hearing before the ALJ, Plaintiff testified
that he stopped working because he “lost the ability of using [his] right arm,” which impacts his
ability to handle. (Tr. 37.) Plaintiff also testified that he cannot tie his shoes due to his inability to
use his right arm, he has walked with a cane since 2005 or 2006, and he can “maybe [walk] 20
feet” without his cane. (Tr. 38, 42-43.) In a function reported dated February 13, 2017, Plaintiff
testified he cannot stand or walk for “prolonged periods of time,” he needs help getting dressed,
his daily activities consist of drinking coffee and “find[ing] a comfortable position,” he does not
perform house or yardwork due to a “lack of mobility,” he goes outside “once for about 15 to 30
[minutes] or the pain becomes to[o] much,” and his hobbies “used to [include] . . . go[ing]
hunting.” (Tr. 225-29.) When asked how often he hunts, Plaintiff stated “[n]ot at all” since 2006.
(Tr. 229.)
Notably, however, when Plaintiff developed a rash and needed to see a dermatologist on
October 19, 2018, Plaintiff reported that he “hunts daily” and did “not want to put anything
scented on his skin because he hunts every day.” (Tr. 436.) In the Court’s view, it would be
inappropriate to remand this case for benefits given the inconsistent testimony described above,
which appears to detract from the reliability of Plaintiff’s self-reports regarding his functional
limitations. The Court therefore remands this case for further proceedings consistent with this
opinion.
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CONCLUSION
For the reasons stated, the Court REVERSES the Commissioner’s decision and
REMANDS this case for further proceedings consistent with this opinion.
IT IS SO ORDERED.
DATED this 31st day of March, 2021.
HON. STACIE F. BECKERMAN
United States Magistrate Judge
PAGE 17 – OPINION AND ORDER
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