Harrison v. Commissioner Social Security Administration

Filing 19

OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for an immediate calculation and award of benefits. IT IS SO ORDERED. Signed on 02/16/2012 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
KATHLEEN LYNN HARRISON,
Plaintiff,

v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
MERRILL SCHNEIDER
Schneider Law Offices
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
DAVID MORADO
Regional Chief Counsel, Region X, Seattle
ROBERTA G. BOWIE
Special Assistant United States Attorney
Social Security Administration
Office of the General Counsel
1301 Young Street, Suite A-702
Dallas, TX 75202
Seattle, WA 98105-7075
Attorneys for Defendant
1 - OPINION AND ORDER

Case No. 3:11-cv-365-MA
OPINION AND ORDER

MARSH, Judge
Plaintiff Kathleen Lynn Harrison, seeks judicial review of the
final decision of the Commissioner of Social Security denying her
spouse Daniel W. Harrison's (Harrison) applications for a period of
disability and disability insurance benefits (DIB) under Title II
of

the

Social

Security

Act,

42

U.S.C

§§

401-403.

Kathleen

Harrison, as personal representative of Harrison's estate, has been
substituted

as

plaintiff

resolution of this case.
42

U.S.C.

§

405(g).

following

Harrison's

death

pending

This Court has jurisdiction pursuant to

For the

reasons

that

follow,

this

court

reverses and remands for an immediate calculation of benefits.
FACTUAL AND PROCEDURAL BACKGROUND

On August 28, 2006, Harrison filed an application for a period
of disability and disability insurance benefits beginning April 21,
2006.

The claims were denied initially and upon reconsideration.

Harrison filed a request for a hearing before an administrative law
judge

(ALJ).

An ALJ held a hearing on April 22, 2009, at which

Harrison appeared with his attorney and testified.
expert, Richard Kiem,

A vocational

also appeared and testified.

2009, the ALJ issued an unfavorable decision.

On

May 28,

The Appeals Council

accepted additional evidence into the record, but denied Harrison's
request

for

therefore

review

became

on

the

purposes of review.
2 - OPINION AND ORDER

January
final

21,

2011.

decision

of

The
the

ALJ's

decision

Commissioner

for

Harrison

was

49

disabili ty began,

and

decision.

Harrison

years
52

has

old

years
past

on

the

date

old on the
relevant

he

date

work

in

alleges
of

his

the ALJ's

skilled

jobs,

including working as an analyst in the health systems industry, a
mechanical draftsman,
systems

and

analyst,

administrator.

a mechanical systems designer,
computer

a

programmer/applications

Harrison alleges disability due to low back pain.

Harrison last worked on April
history of back injury,
1986.

a computer

21,

2006.

Harrison has a past

including at least one back surgery in

Harrison died October II, 2011.
THE ALJ'S DISABILITY ANALYSIS

The

Commissioner

has

established

a

five-step

process for determining whether a person is disabled.
Yuckert,

482 U.S.

137, 140 (1987); 20 C.F.R.

§

sequential
Bowen v.

404.1520.

Each

step is potentially dispositive.

The claimant bears the burden of

proof at steps one through four.

See Valentine v. Comm'r Soc. Sec.

Admin., 574 F.3d 685,

689 (9th Cir. 2009); Tackett v. Apfel, 180

F.3d 1094, 1098 (9th Cir. 1999).

At step five, the burden shifts

to the Commissioner to show that the claimant can do other work
which exists in the national economy.

Andrews v. Shala1a, 53 F.3d

1035, 1043 (9th Cir. 1995).
The

ALJ

concluded

that

Harrison

requirements through December 31,

2010.

met

the

insured

status

A claimant seeking DIB

benefits under Title II must establish disability on or prior to
3 - OPINION AND ORDER

the last date insured.

42 U.S.C.

§

416(I) (3); Burch v. Barnhart,

400 F.3d 676, 679 (9th Cir. 2005).
At step one, the ALJ found that Harrison has not engaged in
substantial gainful activity since his alleged onset of disability.
See 20 C.F.R.

404.1520(b), 404.1571 et seq.

§§

At step two,

the ALJ found that Harrison had the following
spinal laminectomy with residual pain and

severe impairments:
radiculopathy,

exacerbated by obesity;

reactive airway disease;

attention deficit hyperactivity disorder;
See 20 C.F.R.

§

and memory problems.

404.1520(c).

At step three, the ALJ found that Harrison's impairments, or
combination of impairments did not meet or medically equal a listed
impairment.

See 20 C.F.R.

§§

404.1520(d), 404.1525, 404.1526.

The ALJ assessed plaintiff with a residual functional capacity
(RFC)

for

no

more

than

sedentary

nonexertional limitations.
At step four,

See 20 C.F.R.

§§

with

postural

404.1527, 404.1529.

the ALJ found plaintiff unable to perform any

past relevant work.
At step five,

exertion

See 20 C.F.R. § 404.1565.
the ALJ concluded that considering Harrison's

age, education, work experience, and residual functional capacity,
the claimant has acquired work skills from past relevant work that
are

transferrable

to

other

occupations

with

jobs

existing

in

significant numbers in the national economy that the claimant can
perform.

See

20

C.F.R.

4 - OPINION AND ORDER

§§

404.1569,

404.1569a,

404.1568(d).

Accordingly, the ALJ concluded that Harrison is not disabled under
the meaning of the Act.
ISSUES ON REVIEW

On appeal to this
errors were committed:

court,

plaintiff contends the following

(1) the ALJ improperly rejected the opinion

of Harrison's treating physician;

(2) the ALJ erred in failing to

specify the frequency and duration of Harrison's sit/stand option
in the RFC; and (3) the ALJ erred in failing to clearly identify
Harrison's transferrable skills.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
§

405(g); Andrews, 53 F.3d at 1039.

42

u.s.c.

"Substantial evidence means

more than a mere scintilla but less than a preponderance; it is
such

relevant

evidence

as

a

reasonable

adequate to support a conclusion."
690.

mind

might

Id.; Valentine,

accept

as

574 F.3d at

The court must weigh all the evidence, whether it supports or

detracts from the Commissioner's decision.
807 F.2d 771,

772

(9th Cir.

1986).

Martinez v. Heckler,

The Commissioner's decision

must be upheld, even if the evidence is susceptible to more than
one rational interpretation.

Batson v.

Comm'r of Soc.

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews,
1039-40.

Security

53 F.3d at

If the evidence supports the Commissioner's conclusion,

5 - OPINION AND ORDER

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); Batson, 359 F.3d at 1193.

DISCUSSION
I.

Appeals Council Evidence.
Plaintiff submitted additional medical evidence to the Appeals

Council following the ALJ's adverse decision.

The Appeals Council

considered the evidence, but determined that the evidence did not
provide a

basis

for

changing the Commissioner's decision.

As

recently explained by the Ninth Circuit, where the Appeals Council
has considered additional materials not before the ALJ, this court
may consider the

evidence

submitted to the Appeals Council to

determine whether, "in light of the record as a whole, the ALJ's
decision was supported by substantial evidence."
Soc.

Security Admin.,

also Lingenfelter v.
2007);

Harman v.

denied,

531 U.S.

659 F.3d 1228, 1232
Astrue,

Apfel,
1038

1451-52 (9th Cir. 1993).

211

(2000);

(9th Cir.

504 F.3d 1028,
F.3d 1172,
Ramirez v.

Taylor v. Comm'r

1180

2011).

1030 n.2

(9th Cir.

(9th Cir.),

Shalala,

See

cert.

8 F.3d 1449,

Therefore, I consider the specific pieces

of evidence submitted to the Appeals Council as they pertain to
plaintiff's arguments.

IIII
IIII

6 - OPINION AND ORDER

II.

The ALJ Im12ro12erly Rejected
Harrison's Treating Physician.

Q:einion

of

Dr.

opinion

is

given more

weight than the opinion of a non-treating physicians.

Turner v.

In general,

a

the

treating physician's

Buhl,

Commissioner of Soc. Security, 613 F.3d 1217, 1223 (9th Cir. 2010);
Lester v.

Chater,

81 F.3d 821,

830-31

(9th Cir.

1995).

If the

treating physician's medical opinion is supported by medically
acceptable diagnostic techniques and is not inconsistent with other
substantial evidence in the record, the treating physican's opinion
is given controlling weight.
Cir.

2007).

If

a

treating

Orn v. Astrue, 495 F.3d 625, 631 (9th
physician's

opinion

is

not

given

controlling weight because it is not well-supported, or because it
is inconsistent with other substantial evidence in the record, the
ALJ must still articulate the relevant weight to be given to the
opinion

under

the

404.1527 (d) (2).

Id.

To

reject

the

examining physician,
reasons for doing so.

factors

provided

uncontroverted

for

opinion

in

of

20

a

C.F.R.

§

treating

or

the ALJ must present clear and convincing
Bayliss

V.

Barnhart,

427 F.3d 1211,

1216

(9th Cir. 2005); Rodriguez V. Bowen, 876 F.2d 759, 761-62 (9th Cir.
1989).

If a treating or examining doctor's opinion is contradicted

by another doctor's opinion,
legitimate reasons.
this

Bayliss,

burden by providing a

7 - OPINION AND ORDER

it may be rejected by specific and
427 F.3d at 1216.

An ALJ can meet

detailed summary of the

facts

and

conflicting medical evidence,

stating his own interpretation of

that evidence, and making findings.

Tommasetti v. Astrue, 533 F.3d

1035, 1041 (9th Cir. 2008); Carmickle v. Commissioner, Soc. Sec.
Admin., 533 F.3d 1155,1164 (9th Cir. 2008); Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989).
Plaintiff submits that the ALJ erred in assessing the opinion
of Harrison's treating physician, Walter R. Buhl, M.D.

According

to plaintiff, the ALJ failed to provide either clear and convincing
evidence,
Buhl's

or specific and legitimate reasons for rejecting Dr.

opinion

that

Harrison

was

unable

to

work

full-time.

Plaintiff submits that when Dr. Buhl's opinion is fully credited,
Harrison is disabled within the meaning of the regulations.

I

agree.
The ALJ's primary reason for discounting Dr. Buhl's opinion
appears

to

be

based

on

a

performed on October 5, 2007.
PCE,

Physical

Capacity

Evaluation

(PCE)

Dr. Buhl referred Harrison for the

which was conducted by physical therapist Steve Alstot at

ProActive Orthopedic and Sports Physical Therapy of Oregon City.
(Tr. 640-43.)

Mr. Alstot noted that the Harrison needed to take

frequent breaks during the PCE, terminated the treadmill test, and
did not perform some tests due to pain.

In one portion of the PCE,

Mr. Alstot noted that Harrison scored in the moderate range (six of
16 posi ti ve scores)

for magnified illness behavior.

Mr. Alstot

stated that due to Harrison's partial completion of the PCE,
8 - OPINION AND ORDER

he

could not give a complete and valid recommendation of Harrison's
Mr.

capabilities.

Alstot

concluded that

based on the overall

results, Harrison was best suited to sedentary work on a part-time
basis.

(Id. at 640.)

In a letter dated October 24,
dated

April

21,

2009,

Dr.

Buhl

2007, and an identical letter
specifically

limitations found in the October 5, 2007 PCE.

endorsed

the

In those letters,

Dr. Buhl opined:
[I]t has come to my attention that CIGNA has asserted
that I released Mr. Harrison to full time work. This is
an inaccurate statement. I did not and have not released
Mr. Harrison for full time work.
Mr. Harrison still
suffers from chronic pain, which requires narcotic pain
medications, Oxycontin and Oxycodone.
Mr. Harrison has previously undergone pain management
treatment and therapy and is interested in pursuing
further pain management treatment in hopes of alleviating
some of his chronic pain and increasing his functional
abilities.
I also agree and feel that the Physical Capacity
Evaluation [PCE] that was done by ProActive is an
accurate assessment of the conditions, which Dan Harrison
is in now and has been suffering \vith for a long period
of time.
(Tr. 646.)
.

In the decision,

the ALJ concluded that Harrison gave less

than a "good effort" on the PCE, and gave it little weight in the
decision.

In turn, the ALJ gave Dr. Buhl's letter little weight,

finding Dr. Buhl's opinion inconsistent with his treatment notes,
and "[w]hile Dr. Buhl denies releasing [Harrison] back to full time

9 - OPINION AND ORDER

work, at no time does he assess the claimant as unable to work."
(Tr. 25.)
To

begin,

explanation

the

ALJ

concerning

has

the

failed

distinction

to

provide

between

an

adequate

Harrison

being

completely unable to work, and Dr. Buhl's opinion that Harrison was
unable

to

work

full-time.

Under

the

relevant

regulations,

a

claimant is disabled if he is unable to work an eight hour day.
Ratto v. Secretary, Dep't of Health & Human Servs., 839 F. Supp.
1415, 1430-31 (D. Or. 1993); Rodriguez v. Bowen, 876 F.2d 759, 763
(9th

Cir.

1989);

See

also

SSR

96-8p,

*1

(residual

functional

capacity is the ability to work on a "regular and continuing basis"
for "8 hours a day, for 5 days a week, or an equivalent schedule") .
Thus,

the fact that Harrison was not released to full-time work

presumably

rendered

regulations.

him

disabled

Accordingly,

I

within

the

meaning

of

the

rej ect the Commissioner's argument

that the ALJ sufficiently accommodated Dr.

Buhl's limitation to

part-time work at a sedentary level because the ALJ's RFC included
a "sit, stand, walk" option.
The Commissioner argues that the ALJ could properly discount
Dr. Buhl's opinion because it is based on Harrison's self-reports,
and

I

note

that

plaintiff

does

not

challenge

credibility determination in this proceeding.
Commissioner,

the

adverse

According to the

because Harrison scored in the moderate range of

magnified illness behavior on the Waddell's testing during the
10 - OPINION AND ORDER

October 2007 PCE, the ALJ could appropriately discount Dr. Buhl's
opinion.

I disagree for multiple reasons.

Initially,

I

recognize that an ALJ may discount a treating

physician's opinion that is based to a large extent on a claimant's
properly discounted self-reports.

Tommasetti,

533 F.3d at 1041.

In this case, the ALJ found Harrison's complaints of chronic pain
not entirely credible.

And, if the PCE were the only basis for Dr.

Buhl's opinion, I would agree with the Commissioner.

See Ukolov v.

Barnhart,

However,

420 F. 3d 1002, 1005-06

(9th Cir.

2005).

Dr.

Buh1 conducted independent analysis supported by objective testing,
and

referred

Harrison

to

other

physicians

for

objective

verification of his subjective symptoms, which the ALJ fails to
discuss or inaccurately discusses.
For example,
several

tests

in April and May of 2006,

during

his

examinations

of

positive results on straight leg testing,
responses in his left lower leg.
spinal

MRI

showed

that

the

Dr.

Harrison,

with

very

with diminished touch

(Tr. 100.)
vertebral

Buhl performed

An April 26,
body

heights

2006
were

unremarkable, and but there was some scarring at the L4-5 level.
(Tr.

107.)

However,

The ALJ noted as much in the decision.

the MRI

(Tr.

19.)

at the L5 level also showed "a small medial

osteophyte which may irritate the left traversing L5 nerve root.The ALJ did not discuss that finding.

11 - OPINION AND ORDER

A May 26, 2006 CT scan of

the lumbar spine also showed scarring on the left at L4-5.

(Tr.

100. )
Dr. Buhl then referred Harrison to Kim A. Wayson, M.D., for a
surgical
Harrison

was

Dr.

consultation.

management.

not

a

(Tr.

308-14.)

Wayson

surgical

ultimately

candidate,

Meanwhile,

and

concluded

would

need

that
pain

Harrison was undergoing

nerve block steroid injections and trigger point injections with
Jonathan Blatt, M.D., with mixed results, and which ultimately did
(Tr. 373-76.)

not relieve his pain.

Harrison also was referred to Steven S. Anderson, M.D., for
electrodiagnosis

and

nerve

conduction

studies.

Dr.

Anderson

examined Harrison and conducted an electromyogram (EMG) on June 23,
2006.

(Tr. 464-68.)

Testing revealed abnormalities in Harrison's

left L5, and Dr. Anderson diagnosed chronic left L5 radiculopathy
at that time.

(Tr. 464-65.)

Dr. Anderson confirmed this diagnosis

in letter dated July 10, 2007, which provides in relevant part:
Diagnosis:
Chronic left L5 radiculopathy.
There was
both clinical evidence and electromyographic evidence of
atrophy of one of the left foot muscles.
This was
unilateral
both
on
physical
examination
and
electrodiagnostic examination and therefore this appears
to be related to the radiculopathy. (Tr. 114-15.)
The record reflects that Dr. Anderson shared these results with Dr.
Buhl's office.

(Id. )

To be sure,

Dr.

confirm the presence of nerve involvement.

12 - OPINION AND ORDER

Buhl's treatment notes
(Tr. 525.)

Certainly,

Dr.

Buhl' s

diagnosis

of

chronic

L5

radiculopathy

is

based on

objective evidence.
Despite
radiculopathy,

Dr.
the

Anderson's
ALJ

objective

erroneously

verification

concluded

that

of

L5

Harrison's

"subjective complaints of radiculopathy are not consistent with or
supported by medical evidence of record imaging or findings."
23.)

(Tr.

The ALJ's conclusion is directly undermined by Dr. Anderson's

2007 letter which the ALJ wholly fails to discuss.

Instead, the

ALJ summarily found that Dr. Anderson's records conflict with Dr.
Buhl's because Dr. Anderson did not opine that Harrison is unable
to work.

This is neither a specific, nor a legitimate basis upon

which to discount Dr. Buhl's opinion.

Dr. Anderson's notes do not

reflect that he offered any opinion concerning Harrison's ability
to work.

Looking at the record as a whole, contrary to the ALJ's

conclusion, I find that Dr. Anderson's records are consistent with
those of Dr. Buhl.
Furthermore,

Dr.

Buhl

Council dated June 16, 2009.

submitted

a

letter

to

the

Appeals

In that letter, Dr. Buhl opines that

Harrison is "substantially and permanently disabled" by his chronic
L5

radiculopathy.

Dr.

Buhl

states

that

the

chronic

L5

radiculopathy is likely caused by scarring around the L5 root, and
that Harrison is likely not rehabilitatable.

(Tr. 658.)

Dr. Buhl

clearly bases his opinion of Harrison's limited functional capacity
on Harrison's chronic pain caused by radiculopathy, a finding which
13 - OPINION AND ORDER

is supported by objective, substantial evidence in the record, not
merely on Harrison's self-reports.
The ALJ's other stated reason for rejecting Dr. Buhl's opinion
is that the opinion is inconsistent with his treatment notes.
Although the ALJ does not specify which notes are inconsistent, the
commissioner

suggests

September 12, 2007,

that

notations

from

June

19,

2007

and

show Harrison's disability seeking behavior.

Again, I disagree.
On June 19,

2007,

Dr.

Buhl explained that he had seen some

videos of Harrison performing his daily activities and it appeared
that Harrison was "able to do more. ",
states

that

Harrison

appeared

"to

(Tr.
be

590.)

defending

The notation
his

disabled

status," and Dr. Buhl referred him to a neurologist and for neuropsychiatric testing to gain some objective verification of his
symptoms.

In the September 12, 2007 notation, Dr. Buhl states that

Harrison may not be employable at that time because of the quantity
of narcotic medications he was then taking.

(Tr. 587.)

While Dr.

Buhl further states that Harrison is capable of some "useful work,"
Dr. Buhl states that it is "of course at short intervals according
to

[Harrison)," and that Harrison thought he could work for two

hours at that time.
did Dr.

(Id.)

However, at no point in either notation

Buhl opine that Harrison could work an eight hour day.

'It is apparent from the record that Harrison was involved
in litigation with his long-term disability carrier.

14 - OPINION AND ORDER

Additionally,

Harrison's

radiculopathy

was

confirmed

by

Dr.

Anderson in October 2007, a short time following these allegedly
contradictory notes.

Moreover, Dr. Buhl consistently opined that

Harrison was capable of working only on a part-time basis.
With the exception of this alleged inconsistency,
summarily concluded that Dr.

the ALJ

Buhl's opinion was contradicted by

those of Drs. Wayson and Blatt because neither "have assessed that
[Harrison] cannot work."
Blatt

offered

capabilities.
nothing

in

any

As with Dr. Anderson, neither Wayson nor

opinion

concerning

Harrison's

physical

When their records as a whole are examined, I find

the

notes

of Wayson or

Blatt

that

contradicts

the

opinion of Dr. Buhl.
I

also reject the Commissioner's suggestion that Dr.

Buhl

pursued only a conservative and routine course of treatment.

The

ALJ did not discount Dr.

Buhl's opinion on that basis,

Commissioner's post-hoc rationalization is rejected.
Commissioner,

454 F. 3d 1050,

1054

(9th Cir.

and the
Stout v.

2006) (the court may

review only those reasons the ALJ asserts); Connett v. Barnhart,
340 F.3d 871, 874 (9th Cir. 2003) ("We are constrained to review the
reasons the ALJ asserts.")
Furthermore,
the record itself.
and

the Commissioner's arguments are undermined by
Dr. Buhl prescribed narcotics, muscle relaxers,

anti -depressants

to

treat

Harrison's

symptoms.

Dr.

Buhl

referred Harrison for a consultation with Dr. Wayson, who concluded
15 - OPINION AND ORDER

that Harrison was not a surgical candidate.

Harrison attempted

osteopathic intervention and acupuncture I but obtained no sustained
relief.

Harrison

was

referred

for

physical

therapy I neither of which provided relief.
two nerve

and multiple

certainly not

conservative.

and

pool

Harrison also received

steroid injections l

Harrison/s record of treatment I

results.
was

blocks I

therapy

with mixed

although unsuccessful l

Moreover I

Harrison cannot be

faulted for not pursuing surgical intervention where surgery was
not recommended.

See Fair v. Bowen l

885 F.2d 597 1 604

(9th Cir.

1989) .
LastlYI the ALJ/s discussion of Harrison/s medical record is
not supported by substantial evidence in the record as whole.
495

F.3d

at

633-34.

inaccuracies.

First l

The

ALJ/s

decision

contains

Orn l

numerous

the ALJ erroneously describes Harrison as

left handed; Harrison is right handed.

(Tr. 8 1 467.)

Second l

the

ALJ erroneously noted that a work release for May 1 to May 8 1 2006
did not coincide with Harrison/s description of when he stopped
working.

(Tr. 23.)

To be sure I

The ALJ/s determination is wholly incorrect.
Harrison described to Dr. Buhl that he stopped

working on April 21/ 2006 1 due to low back pain I which increased in
severity until April 26 1 2006.

On April 26 1 when the pain became

intolerable I Harrison was taken by ambulance to the hospital where
he remained until May 11 2006.
a

note

from

the

doctor

16 - OPINION AND ORDER

to

At that point I
be

released

from

Harrison requested
work l

which

the

discharging doctor provided through May 8,

2006.

(Tr.

423.)

On

May 9, 2006, Harrison received another two week note to be excused
from work.

(Tr. 98.)

At that point, Dr. Buhl's notes reflect that

he completed Family Medical Leave Act paperwork for Harrison.
100.)

(Tr.

Contrary to the ALJ's conclusion, I find no inconsistencies

in Harrison's description of events in April and May of 2006.
Third, the ·ALJ inaccurately describes Harrison's discussion of
a transcutaneous electrical nerve stimulation (TENS) unit with Dr.
Buhl.

The ALJ erroneously suggests that either Dr.

Fiks prescribed the TENS unit in September of 2006.

Buhl or Dr.
Contrary to

the ALJ's finding, the record reflects that Harrison was discharged
from the hospital on May 1, 2006, with a recommendation to continue
using a TENS unit.

(Tr. 423.)

The record also reflects that on

September 7, 2006, Harrison reported to Dr. Buhl that he had seen
Dr.

Fiks,

a pain management specialist,

who was

recommending a

surgically implanted electrode, a procedure distinct from using a
TENS unit.

(Tr.

511.)

Dr.

Buhl's notes reflect that Harrison

decided not have the implanted electrode procedure.
note,

too,

(Tr. 522.)

I

that the ALJ incorrectly found that Harrison was not

prescribed Diazempam until July 27,

2006,

when Dr.

reflect that it was prescribed on May 19, 2006.

Buhl's notes

(Tr. 517.)

Finally, I conclude that the ALJ erred in implicitly crediting
the nonexamining physicians, Drs. Kehrli and Pritchard, who opine
that Harrison is capable of performing sedentary work with postural
17 - OPINION AND ORDER

limitations.

As discussed above,

the opinions of Drs.

Wayson,

Blatt and Anderson were consistent with Dr. Buhl, and Dr. Buhl's
opinion is consistent with the medical record as a whole.
the opinions of Drs.

Kehrli

and Pritchard are not

evidence that may justify rejecting Dr. Buhl's opinion.
F.3d

at

831

substantial

(nonexamining

evidence

to

physician's

opinion

substantial
Lester, 81

alone

is

not

justify rejecting treating physician's

After an extensive review of the record,

opinion) .

Thus,

I therefore

conclude that the ALJ's reasons for favoring the nonexamining over
those of the examining and treating physicians do not satisfy the
appropriate legal standards.
In summary, I conclude that the ALJ erred when he discredited
the

opinion

of

Dr.

Buhl

without

providing

legally

sufficient

reasons supported by substantial evidence in the record for doing
so.

Orn, 495 F.3d at 632-33.

III. Credit as True.

After finding the ALJ erred, this court has the discretion to
remand

for

benefits.

further
Harman,

proceedings
211

or

F. 3d at 1178.

utility of further proceedings.

for

immediate

payment

of

The issue turns on the

A remand for an award of benefits

is appropriate where there is no useful purpose to be served by
further proceedings or where the record is fully developed.
The

Ninth Circuit

has

established a

three-part

test

"for

determining when evidence should be credited and an immediate award
18 - OPINION AND ORDER

of benefits directed."

Id.

The Court should grant an immediate

award of benefits when:
(1) the ALJ has failed to provide legally sufficient
reasons for rej ecting such evidence, (2) there are no
outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required to
find the claimant disabled were such evidence credited.
Id.
Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
has discretion whether to credit the evidence.

Connett, 340 F.3d

at 876.
As

discussed

above,

the

ALJ

failed

to

provide

legally

sufficient reasons for rejecting Harrison's treating physician's
opinion that Harrison was not capable of performing sedentary work
on a full-time basis.

It is clear from the relevant regulations

that working part-time at the sedentary level renders one disabled
under the regulations.
Additionally,
Vocational

Expert

at

See Ratto, 839 F. Supp. at 1430-31.
the

Richard

hearing

there

Kiem that

the

was

testimony

sedentary

from

occupations

identified would require Harrison to sit for at least six hours a
day.

(Tr. 55.)

Therefore, when Dr. Buhl's opinion that Harrison is

unable to work more than on a part-time basis,

it is clear that

Harrison is disabled under the meaning of the regulations.
In short, when the improperly discredited evidence is fully
credited, Harrison is unable to sustain competitive employment on
19 - OPINION AND ORDER

a full-time basis.

Because there are no outstanding issues that

must be resolved and it is clear from the record that Harrison is
entitled to disability benefits, I reverse the ALJ's decision and
remand

for

an

immediate

payment

of benefits.

See

Benecke

v.

Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004).
Because I have remanded for an immediate award of benefits, I
do not address plaintiff's remaining issues.
CONCLUSION

Based

on

the

foregoing,

the

Commissioner's

decision

is

REVERSED, and this case is REMANDED pursuant to sentence four of 42
U.S.C. § 405(g) for an immediate calculation and award of benefits.

IT IS SO ORDERED.
DATED this ~ day of FEBRUARY, 2012.

1n~.;z~~

Malcolm F. Marsh
united States District Judge

20 - OPINION AND ORDER