Harris v. Commissioner Social Security Administration
OPINION & ORDER: The Commissioner's decision that Plaintiff is not disabled is REVERSED, and this case is REMANDED for further proceedings consistent with the Opinion attached. Signed on 7/18/2017 by Judge Michael H. Simon. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SANDRA LORRAINE HARRIS,
Case No. 3:16-cv-0977-SI
OPINION AND ORDER
NANCY A. BERRYHILL,
Commissioner of Social Security,
Merrill Schneider, SCHNEIDER, KERR, AND ROBICHAUX, P.O. Box 14490, Portland, OR 97293.
Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Janice E. Hébert, Assistant United States
Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland,
OR 97204; Kathy Reif, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
Ms. Sandra Lorraine Harris seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to
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the Social Security Act. For the following reasons, the Commissioner’s decision is reversed and
remanded for further proceedings.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
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.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
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A. Plaintiff’s Application
Plaintiff filed an application for DIB and SSI on August 1, 2011, alleging disability
beginning on March 3, 2009. Administrative Record (“AR”) 199, 206. In her application,
reconsideration, and appeal council petition, Plaintiff specifically alleged disability due to back
pain, osteoarthritis, chronic obstructive pulmonary disease, acid reflux, depression, and anxiety.
AR 75-76, 89-90, 104-05, 120-22, 226, 382, 402. The Commissioner denied Plaintiff’s
applications initially on March 7, 2012, and upon reconsideration on February, 4, 2013. AR 13439, 140-43, 150-52, 153-54. Thereafter, she requested a hearing before Administrative Law
Judge (“ALJ”) Rudolph Murgo. AR 155-57. An administrative hearing was held on July 3, 2014.
AR 33. After leaving the record open for additional evidence, on July 22, 2014, the ALJ found
Plaintiff was not disabled from March 3, 2009, to July 22, 2014. AR 19. The Appeals Council
denied Plaintiff’s review, making the ALJ’s decision the final decision of the Commissioner. AR
1. “[A] civil action may be brought only after . . . [the Commissioner] has made a final decision
on the claim.” Bass v. Soc. Sec. Admin., 872 F.2d 832, 833 (9th Cir. 2012). Plaintiff now seeks
judicial review of that decision.
B. The Sequential 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)(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); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
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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:
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
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). An impairment or combination of
impairments 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). Unless
expected to result in death, this impairment must have lasted or 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 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.
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 continues. At that point, the ALJ must evaluate medical and other
relevant evidence to assess and determine the claimant’s “residual functional
capacity” (“RFC”). This is an assessment of work-related 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.
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.
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
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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 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. 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.” Id.; 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 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ found that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2013 based on her previous quarters of employment. AR 19-21. To
receive DIB, Plaintiff needs to establish disability on or before that date. AR 19. SSI benefits are
not dependent on insured status. The ALJ then applied the sequential process. AR 21-26.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since her alleged disability onset date of March 3, 2009. AR 21. At step two, the ALJ found that
the record established that Plaintiff suffered from osteoarthritis, obesity, and an anxiety disorder
at the level of a severe impairment resulting in significant work-related functional limitations.
AR 21. The ALJ further found that the record contained information on prescription drug abuse
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and marijuana use, but that this substance abuse did not result in work-related functional
limitations and did not qualify as severe. AR 22.
At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or equaled the severity of one of the specific impairments listed in the
regulations. Id. The ALJ also found that Plaintiff’s osteoarthritis and obesity, separately and in
combination, did not meet any criteria of § 1.04 (disorders of the spine) or any other listing, and
that no physician had concluded that Plaintiff met any listing criteria. AR 22; see 20 C.F.R. §
404, Subpt. P, App’x 1, § 1.04 (2014). The ALJ found further that Plaintiff’s mental impairments
and symptoms did not meet the listings for § 12.06 (anxiety and obsessive-compulsive disorders)
or § 12.09 (substance abuse disorders).1 AR 22; see 20 C.F.R. § 404, Subpt. P, App’x 1, §§
12.06, 12.09 (2014). While Plaintiff has mild restrictions in activities of daily living and
moderate difficulties in social functioning according to the ALJ’s findings, paragraph B of §
12.06 requires two findings of “marked” difficulties in order to meet the listed criteria. AR 22;
see 20 C.F.R. § 404, Subpt. P, App’x 1, § 12.06, ¶ B (2014). The ALJ found that Plaintiff did not
meet the requirements of paragraph C of the same section due to indications on the record that
Plaintiff is able to function outside of her home. AR 22; see 20 C.F.R. § 404, Subpt. P, App’x 1,
§ 12.06, ¶ C (2014).
At step four, the ALJ found:
[Plaintiff] has the residual functional capacity to perform less than
the full range of medium work as defined in 20 CFR 404.1567(c)
and 416.967(c). She can lift 50 pounds occasionally and 25 pounds
frequently. She can stand and walk 6 hours out of an 8-hour day
and sit 8 hours out of an 8 hour day. She is limited to frequent
climbing, balancing, stooping, kneeling, crouching and crawling.
After the ALJ’s decision, the listing for substance abuse disorders, which previously
directed the reader to other listings describing symptoms caused by substance abuse, was
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She is limited to simple, routine tasks with SVP of 1 or 2. She is
limited to occasional public contact and frequent contact with
AR 23. The ALJ placed great weight on the opinion of Joshua Knight, M.D., who conducted a
comprehensive examination on February 11, 2012, and gave substantial weight to the state
agency’s mental assessment. AR 25, 26; see also AR 76-81, AR 111-16.
Although the ALJ found a medical basis for some of the symptoms reported by Plaintiff,
he did not fully credit her statements on the intensity, persistence, and limiting effects of those
symptoms. AR 23. The ALJ concluded that Plaintiff’s RFC indicated that she was capable of
performing past relevant work (“PRW”) as a warehouse laborer. AR 27. Plaintiff last previously
worked in a warehouse at IKEA, where she alleges she was terminated due to memory problems.
AR 23. The ALJ did not make a finding as to Plaintiff’s ability to perform other substantial
gainful activity at step five. Based on the finding at step four, the ALJ found that Plaintiff was
not disabled from her alleged onset date of March 3, 2009, through the date of the hearing.
Plaintiff seeks review of the determination by the ALJ that Plaintiff was not disabled
from March 9, 2009, to the present. She argues that the ALJ erred in making that determination
by: (a) improperly assessing Plaintiff’s RFC by failing to include the mental limitations given by
state agency consultants regarding Plaintiff’s ability to carry out simple, one- or two-step
instructions; (b) failing properly to consider functional limitations resulting from Plaintiff’s
impairment of uterine fibroids as part of the RFC; and (c) failing to give specific and legitimate
reasons to reject the opinion of the doctor who conducted the comprehensive examination and
found manipulative limitations. Each argument is addressed in turn.
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A. Assessment of Limited Ability to Follow Simple One- or Two-Step Instructions
Plaintiff argues that the ALJ erred by finding Plaintiff limited to simple, one- or two-step
instructions while her PRW requires a reasoning level of two, exceeding that limitation. The
Commissioner responds that any error is harmless because the vocational expert (“VE”)
identified other substantial gainful activity in the national economy Plaintiff could perform with
the RFC identified by the ALJ.
1. Whether the ALJ erred at step four
At step four of the sequential analysis, the ALJ found Plaintiff capable of her PRW as a
warehouse laborer. AR 27. The Social Security Administration relies on the Dictionary of
Occupational Titles (“DOT”) to determine whether claimants are capable of PRW or other
substantial gainful activity given their RFC after taking into account their impairments. A VE
may be called to testify at the hearing in order to present expert opinion evidence identifying
occupations listed in the DOT that a claimant retains the capacity to perform given her RFC.
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009).
At the hearing, the VE classified Plaintiff’s prior work from 2007 to 2009 as warehouse
laborer/stores. AR 27; see also DOT 922.687-058 available at 1991 WL 688132. Job
descriptions in the DOT include a “definition trailer” that identifies the abilities needed to
perform the given job. See DOT App’x C available at 1991 WL 688702. The definition trailer
for each job includes a “Scale of General Education Development (GED) Reasoning
Development,” including six levels identifying the degree of reasoning ability required for a
particular job. Id. According to the listing’s definition trailer, warehouse laborer has a reasoning
level of two, requiring workers to “[a]pply commonsense understanding to carry out detailed but
uninvolved written or oral instructions” and “[d]eal with problems involving a few concrete
variables in or from standardized situations.” Id.
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Plaintiff argues that this reasoning level is inconsistent with the record and findings of the
ALJ, and as a result Plaintiff is not able to perform her PRW. The ALJ gave “significant weight”
to the mental limitations described by state agency consultants and specifically found Plaintiff
“can understand and remember simple, one or two step instructions.” AR 26. This finding is
supported by substantial evidence: Megan D. Nicoloff, Psy.D., and Joshua J. Boyd, Psy.D.,
mirror that exact language in their reports. AR 84-85, 99-100, 115-16, 132-33. The findings of
the state agency consultants and the ALJ also closely track the definition of GED reasoning level
one: “Apply commonsense understanding to carry out simple one- or two-step instructions. Deal
with standardized situations with occasional or no variables in or from these situations
encountered on the job.” DOT App’x C, available at 1991 WL 688702; see also Chase v. Colvin,
2013 WL 5567082, *5 (D. Or. Oct. 9, 2013) (“Additionally, the correlation here could not be
more exact: Level One Reasoning requires the ability to ‘carry out simple one- or two-step
instructions’ and the ALJ’s limitation in this case precisely tracks this language by stating that
Plaintiff could ‘carry out only simple 1-to-2 step instructions.’”).
The ALJ, however, did not include the limitation to simple, one- or two-step instructions
or a reasoning level of one when he asked the VE whether Plaintiff was capable of her PRW or
other substantial gainful activity. As a result, the VE did not indicate that Plaintiff’s PRW was
inconsistent with her RFC. AR 63-70. There is a clear conflict between the RFC found by the
ALJ limiting Plaintiff’s performance to one- or two-step tasks and the demands of level two
reasoning. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015); see also
Trujillo v. Colvin, 2014 WL 2213218 (D. Or. May 27, 2014) (“The weight of authority . . . finds
that the addition of the specific wording relating to ‘one- or two-step instructions’ is more
restrictive and correlates precisely with the phrasing used in the DOT’s definition of Reasoning
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Level 1, thereby rendering an RFC using this specific language compatible only with Reasoning
Level 1 jobs.”). The ALJ’s finding at step four that Plaintiff was capable of her PRW is not
supported by substantial evidence and is in error. The Commissioner does not dispute this error.
2. Whether the error was harmless
Although the Commissioner does not dispute that the ALJ erred by finding that Plaintiff
could perform her PRW, the Commissioner argues that this error was harmless because the
record contains information sufficient to make a step five finding that Plaintiff is capable of other
substantial gainful activity. In response to a hypothetical question including limitations that
otherwise meet or exceed Plaintiff’s RFC at the hearing, the VE identified the job of room
cleaner, requiring reasoning level one. AR 70; see also DOT 323.687-014 available at 1991
WL 672783. The Commissioner contends that this position fits Plaintiff’s RFC and demonstrates
that she is capable of substantial gainful activity, thereby satisfying step five.
The problem with the Commissioner’s argument is that the ALJ did not make an
alternative step five finding. Courts may not affirm an ALJ’s decision on grounds other than
those relied on by the ALJ. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). When an ALJ
makes a specific alternative finding at step five, an error at step four may be harmless. See, e.g.,
Tommasetti v. Astrue, 533 F.3d 1035, 1044 (9th Cir. 2008). The parties did not cite, nor could the
Court find, any Ninth Circuit opinion addressing the circumstances here, when the ALJ did not
make an alternative step five finding but the VE testified sufficiently for the record to support a
step five finding.
District courts in this circuit, however, are divided on whether a court must remand in
such circumstances, because to do otherwise would be affirming on a ground not relied on by the
ALJ, or whether a court may affirm because the record is sufficient to show that the ALJ’s error
is inconsequential to the ultimate non-disability determination. Compare Sheehan v. Colvin,
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2014 WL 3828396, at *7 (D. Ariz. Aug. 4, 2014) (“An ALJ’s step four determination is harmless
error if ‘the ALJ properly concluded as an alternative at step five that [the claimant] could
perform work in the national and regional economies.’ Tommasetti, 533 F.3d at 1044. Here, the
ALJ did not make any alternative step five findings. Thus, the ALJ’s step four error was not
harmless.” (footnote omitted)); Glover v. Astrue, 2011 WL 1230045, at *9 (D. Or. Mar. 10,
2011), report and recommendation adopted, 2011 WL 1212233 (D. Or. Mar. 30, 2011)
(“Because the ALJ made no alternative step five findings, this court cannot review such
findings.”); with Summers v. Astrue, 2011 WL 1211860, at *3 (C.D. Cal. Mar. 30, 2011) (finding
that the ALJ’s step four error was harmless, even though the ALJ did not make a step five
determination, because “[b]ased on the vocational expert’s testimony cited by the Commissioner,
the Court has no doubt that a remand for further proceedings here would be pointless”); Hadnot
v. Astrue, 2008 WL 5048428, at *11-12 (N.D. Cal. Nov. 25, 2008), aff’d on other grounds, 371
F. App’x 875 (9th Cir. 2010) (holding that although the ALJ erred at step four in relying on the
VE’s response to an improper hypothetical, because the VE also testified in response to a proper
hypothetical, there was sufficient evidence in the record to determine at step five that the plaintiff
was not disabled, despite the fact that the ALJ did not reach step five); Cowan v. Astrue, 2008
WL 2761684, *10 (N.D. Cal. July 14, 2008) (holding that, even if the ALJ erred in his step four
determination, the error would be harmless because the “[p]laintiff could not pass the fifth step
of the disability determination because he is capable, according to the testimony of the VE, of
performing many other kinds of work outside his past work experience that exist in significant
numbers in the national economy”).
Because the Court finds, as discussed below, that the ALJ made another error in his
opinion that requires remand, the Court does not reach the issue of whether a court may affirm
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the Commissioner’s finding of non-disability when the record contains evidence that the plaintiff
is capable of performing other work in the national economy, even when the ALJ stopped his or
her analysis at step four. Upon remand, the Commissioner properly must apply Plaintiff’s
restrictions to simple one- or two- step instructions and perform a step five analysis.
B. Limitations Caused by Plaintiff’s Uterine Fibroids
The ALJ acknowledged Plaintiff’s reports of pain from uterine fibroids but found this
condition to be non-severe at step two. See AR 21 (finding only osteoarthritis, obesity, and
anxiety disorder to be Plaintiff’s severe impairments). The ALJ concluded that the evidence in
record did not support any work-related functional limitations caused by Plaintiff’s uterine
fibroids. AR 25. The ALJ noted that Plaintiff had not alleged uterine fibroids as an impairment at
the time she filed her application, her request for reconsideration, or her request for a hearing,
and that she did not testify at the hearing to any limitations related to this condition. Id.
Plaintiff argues that the ALJ erred by failing to find any limitations from or include any
accommodation in Plaintiff’s RFC due to uterine fibroids given the evidence in the record. The
Commissioner responds that the RFC includes limitations sufficient to address Plaintiff’s nonsevere uterine fibroid condition in that it limits Plaintiff to no more than six hours of standing or
walking in an eight-hour day with an ability to sit for an unlimited amount of time and limits
Plaintiff’s lifting to no more than 50 pounds occasionally and 25 pounds frequently. The
Commissioner argues that the medical evidence regarding Plaintiff’s uterine fibroids supports no
greater accommodations and that, even if it did, the ALJ’s interpretation of the evidence is a
reasonable one and may not be second guessed. The Commissioner also argues that the ALJ
appropriately discounted Plaintiff’s allegations of pain relating to her fibroids as part of her drugseeking behavior, repeatedly identified in the record by her treatment providers. Finally, the ALJ
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discounted the alleged severity of any limitations from Plaintiff’s fibroids because Plaintiff
declined to have a hysterectomy to treat the condition.
As an initial matter, the Court does not find that Plaintiff’s refusal to have a major
surgery such as a hysterectomy, which has significant side effects and has the significant risks
inherent in all surgery requiring general anesthesia, is a clear and convincing reason to discount
Plaintiff’s complaints in the record of pain due to uterine fibroids. Moreover, some of Plaintiff’s
treatment providers also advised Plaintiff not to have a hysterectomy. See AR 392 (May 7, 2012,
Plaintiff agrees with Dr. Dyson’s recommendation that Plaintiff not pursue a hysterectomy and
instead alter her diet and await menopause2); AR 405 (January 29, 2013, Dr. Nathaniel Crumet
confirms that Dr. Dyson’s recommendation to await menopause is the preferred course of
Reviewing the record as a whole, however, the ALJ’s conclusion that Plaintiff’s uterine
fibroids did not result in significant work limitations was a rational interpretation of the record,
and thus must be upheld even if there is another rational interpretation of the record. Burch, 400
F.3d at 679. First, the fact that Plaintiff did not claim any limitations from this condition is
evidence the ALJ reasonably considered. Second, Plaintiff’s only complaint related to this
condition was pain, and both the record and Plaintiff’s testimony reflect a pattern of behavior
that could be reasonably categorized as drug-seeking.
On September 17, 2010, Dr. Crumet reported that Plaintiff admitted that she used
prescription pain medicine that she received from friends, stating “I know it ain’t right.” AR 334.
On October 6, 2010, Plaintiff said she had tried Vicodin, oxycodone, morphine, and Percocet for
pain relief; except for Vicodin, no prescription is indicated in the record for these pain
No direct medical report or opinion from Dr. Dyson has been included in the record;
only second-hand summaries of his diagnosis by Plaintiff’s other physicians appear.
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medicines. AR 474. On January 24, 2012, Dr. Crumet reported that Plaintiff gave a friend some
of her Vicodin in exchange for “paying for them architina”; she also admitted to overusing
Vicodin.3 AR 356-57. On August 3, 2012, Plaintiff admitted to eating a marijuana brownie,
leading to the cancellation of her prescription for narcotics. AR 387. In November 2012, Plaintiff
had a urine drug screen test positive for methadone and marijuana. AR 417. On December 17,
2012, Plaintiff denied any possibility of a positive marijuana screening for her urinalysis and
admitted to drinking a neighbor’s liquid methadone; she repeatedly but unconvincingly
attempted to explain her positive urinalysis test. AR 389.
On April 22, 2013, Plaintiff confirmed that she receives liquid methadone from a
neighbor about once per week. AR 410. On May 22, 2013, Plaintiff again reported taking
methadone from a neighbor. AR 413. On June 17, 2013, Plaintiff reported that she took
methadone for her pain symptoms but did not have any relief. AR 415. On June 19, 2013,
Plaintiff told Dr. Crumet “I need my pain medicine.” AR 406. On July 1, 2013, Plaintiff asked
Dr. Meera Jain, M.D., for opiates and was described as “very focused on Vicodin”; at the same
consultation she admitted to taking Vicodin and did not have a current prescription. AR 417-19.
On April 22, 2014, Plaintiff stated she wanted pain medicine and that ibuprofen did not work.
AR 426. At the hearing, Plaintiff told the ALJ that she frequently asked for pain medication and
Dr. Crumet’s note reads, “Friend takes some of her Vicodin in exchange for paying for
them architina.” AR 356. The ALJ appears to have interpreted this statement to mean that
Plaintiff was selling her Vicodin to buy “Architina.” It is unclear what “architina” means in the
original note, and the Court could find no definition of the term or examples of its use. Given
Plaintiff’s confusion at the hearing, the ALJ’s reading may have been mistaken. AR 57-58. (“I
don’t know nothing about that. Yes. No. I don’t know about that at all. I never even heard it
before.”) Excluding the unknown term, a plausible reading of Dr. Crumet’s note is that Plaintiff
had a friend pay for her prescription, and in return she gave some of her prescription medicine to
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explained that she did not feel she was abusing drugs by having others supply occasional pain
pills without a prescription. AR 58.
Discounting a plaintiff’s disability allegations due to extensive evidence of drug-seeking
behavior is a reasonable interpretation of the medical evidence; the Court appropriately defers to
the ALJ’s interpretation of the evidence on this issue. See Edlund v. Massanari, 253 F.3d 1152,
1157 (9th Cir. 2001), as amended on reh’g (Aug. 9, 2001) (upholding an ALJ’s finding that a
claimant’s reported limitations were not credible when he was found to be “exaggerating his
complaints of physical pain in order to receive prescription pain medication to feed his Valium
addiction”); Massey v. Comm’r Soc. Sec. Admin., 400 F. App’x 192, 194 (9th Cir. 2010) (“[T]he
ALJ’s interpretation that [plaintiff] is engaged in drug-seeking behavior is a clear and convincing
reason for disregarding his testimony.”); see also Wilcox v. Colvin, 2014 WL 6650181 (D. Or.
2014) (“The ALJ's discounting of Plaintiff's disability allegations due to ‘extensive evidence of
drug-seeking behavior’ . . . is a reasonable interpretation of the medical record. Accordingly, the
Court defers to the ALJ's interpretation of the evidence on this issue.”) (citing Burch v. Barnhart,
400 F.3d at 679).
Finally, the RFC includes some limitations on standing and walking, requires the ability
to sit at will, and includes some lifting limitations. These are limitations that rationally relate to
Plaintiff’s uterine fibroid condition. The ALJ did not err in his consideration of Plaintiff’s
C. The ALJ’s Rejection of Dr. Joshua Knight’s Finding of Manipulative Limitations
The ALJ specifically found that the record evidence did not support manipulative
limitations. AR 25. Plaintiff argues that the ALJ improperly discounted the diagnosis of
temporary manipulative limitations made by Dr. Knight while giving the rest of his opinion great
weight. The Commissioner responds that the ALJ correctly credited Dr. Knight’s finding of
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temporary manipulative limitations lasting less than one year, but that such temporary limitations
do not give rise to a finding of disability. To qualify for SSI or DIB, an impairment must last or
be expected to last for a continuous period of twelve months. 20 C.F.R. § 404.1509.
In his opinion, the ALJ noted:
Evidence does not suggest any manipulative limitations lasting a
12-month period. The claimant was evaluated for hand pain in July
2011. On examination, there was no swelling or tenderness. Grip
strength and sensation were intact. (Exhibit lF-1-2). In December
2012, the claimant’s physician noted that she was supposed to be
using the wrist splints only at night, not as needed for pain, and
was to use them nightly for 6 weeks (Exhibit 5F-6). No diagnosis
has been established for her hand complaints. I do not find
evidence to support manipulative limitations.
AR 25. The ALJ gave great weight to the opinion of Dr. Knight. Id.
On September 1, 2010, Dr. Kathryn Moreland found that Plaintiff’s tendons were tender
in the lateral epicondylar area and that Plaintiff could grip and lift a full saline bottle despite a
weaker grip in her right hand. AR 340; 480. On September 17, 2010, Dr. Crumet, Plaintiff’s
primary care physician, found “4+/5” finger spread on the right hand and full 5/5 finger spread in
the left hand and that Plaintiff’s hand strength was 5/5 bilaterally. AR 336. On July 19, 2011, Dr.
Crumet examined Plaintiff’s hands and found:
[N]o clubbing, cyanosis, or edema. Bilateral hands without
swelling, redness. or tenderness. Grip strength and intrinsic mm
strength 5/5 bilaterally. Sensation to light touch intact throughout.
Negative tinels and phalen’s signs. No crepitance with passive or
active flexion or extension.
During the comprehensive exam on February 11, 2012, Dr. Knight reported “tenderness
diffusely throughout the hands with a soft tissue lesion on the left hand overlying her radiocarpal
joint region.” AR 379. Dr. Knight diagnosed Plaintiff with generalized pain throughout both
PAGE 16 – OPINION AND ORDER
hands, noting her history of manual labor, and suspected “mild multifocal hand arthritis” or “a
component of tenosynovitis.” AR 380. For motor skills, Dr. Knight reported:
The claimant states she has difficulty gripping and holding objects
securely to the palm by the last three digits as well as involving the
first three digits. The claimant’s thumb functions with normal
opposition. There is no evidence of myotonia or grip release. There
is generalized tenderness without erythema or effusions. There is
no evidence of diminution of function with repetition. There is no
evidence of spasticity or ataxia. Sensation to touch and pin in all
five fingers is normal. Joint position and vibration sense are
normal. Subjective and objective findings are consistent.
Functional limitations are based on both subjective and objective
AR 379. He cautioned that symptoms were difficult to characterize based on his 45 minute
examination and recommended further imaging. AR 376, 380.
Dr. Knight ultimately recommended “temporarily limiting handling and fingering to
occasionally” and that “reaching and feeling are without limitations.” AR 380. On May 7, 2012,
Dr. Crumet found normal sensation throughout Plaintiff’s hands. AR 393. On December 17,
2012, Dr. Crumet found Plaintiff exhibited a “5/5” score on grip, extension, and finger spread in
her hands. AR 389. On February 7, 2014, Dr. Jessica Chan, D.O., also found Plaintiff exhibited a
grip score of 5/5. AR 422. Reviewing doctors listed Plaintiff’s manipulative limitations as
frequent, rather than constant. AR 114, 131.
Plaintiff has shown objective medical evidence of the underlying impairment, including
reduced grip strength, capacity for finger spread, and an abnormality in the form of a soft tissue
lesion on the left hand, that “could reasonably be expected to produce the pain or other
symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (quotation marks omitted). Contrary to the
ALJ’s finding that her hand complaints had no diagnosis, Dr. Knight, whose opinion the ALJ
accorded great weight, listed “generalized hand pain” under the heading “Diagnoses” in his
opinion. AR 380. “[T]he claimant need not show that her impairment could reasonably be
PAGE 17 – OPINION AND ORDER
expected to cause the severity of the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282
(9th Cir. 1996) (emphasis added). Plaintiff has made that showing.
Furthermore, the record shows substantial objective medical evidence that Plaintiff’s
symptoms lasted for at least twelve months. She complained of hand pain on September 1, 2010,
and Dr. Moreland reported that her grip strength was weaker in her right hand. AR 340, 480.
More than a year later, on February 11, 2012, Dr. Knight examined Plaintiff and found
functional limitations based in part on objective findings. AR 380. Finally, Dr. Knight’s
functional assessment recommended Plaintiff should have a “maximum lifting and carrying
capacity” of 50 pounds occasionally and 25 pounds frequently, but “[l]ess if her hands
predominantly support the load.” Id. These recommendations were not included in the ALJ’s
recommendations, and the ALJ provided no explanation for discounting this portion of an
opinion to which he otherwise gave great weight. “Where an ALJ does not explicitly reject a
medical opinion . . . he errs.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). In sum, the
ALJ erred by not providing specific and legitimate reasons to discount Dr. Knight’s limitations
on handling and by not finding that Plaintiff’s manipulative limitations lasting greater than one
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246
F.3d 1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to
the agency for additional investigation or explanation, a court has discretion to remand for
immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 10991100 (9th Cir. 2014). The issue turns on the utility of further proceedings. A remand for an
PAGE 18 – OPINION AND ORDER
award of benefits is appropriate when no useful purpose would be served by further
administrative proceedings or when the record has been fully developed and the evidence is
insufficient to support the Commissioner’s decision. Id. at 1100. A court may not award benefits
punitively and must conduct a “credit-as-true” analysis on evidence that has been improperly
rejected by the ALJ to determine if a claimant is disabled under the Act. Strauss v. Comm’r of
Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The United States Court of Appeals for
the Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. 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 matters have been resolved. 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, or whether the 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. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
PAGE 19 – OPINION AND ORDER
appropriate remedy and a reviewing court is not required to credit
claimants’ allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
The ALJ erred by concluding his analysis at step four and by improperly rejecting
Plaintiff’s handling and manipulative limitations. The record, however, is not free from material
conflict and ambiguity. Thus, this action is remanded for further proceedings so that the
Commissioner properly can consider Plaintiff’s handling and manipulative limitations and
perform a step five analysis.
The Commissioner’s decision that Plaintiff is not disabled is REVERSED, and this case
is REMANDED for further proceedings consistent with this opinion.
IT IS SO ORDERED.
DATED this 18th day of July, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 20 – OPINION AND ORDER
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