Prue v. Commissioner Social Security Administration

Filing 16

OPINION and ORDER - The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this opinion. IT IS SO ORDERED. DATED this 14th day of August, 2017, by United States Magistrate Judge John V. Acosta. (peg)

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

JUSTIN SCOTT PRUE,
Plaintiff,

Case No.: 3:16-CV-01044-AC
OPINION AND ORDER

v.

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
ACOSTA, Magistrate Judge:
Justin Scott Prue ("plaintiff') seeks judicial review of a final decision by the Commissioner
of Social Security ("Commissioner") denying his application for Title II Disability Insurance
Benefits ("DIB") under the Social Security Act ("Act"). Because the Commissioner's decision is not
supported by substantial evidence, her decision should be REVERSED and REMANDED for futiher
proceedings.
Ill

Page 1 - OPINION AND ORDER

Procedural Background
Plaintiff filed his application for DIB on February 20, 2014, alleging disability as of May 30,
2010. (Tr. 169-70.) The Commissioner denied his application initially and upon reconsideration,
and he requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 114-18, 120-22, 12627.) An administrative hearing was held on July 2, 2015. (Tr. 40-74.) After the hearing, the ALJ
issued an unfavorable decision on October 5, 2015, finding plaintiff not disabled. (Tr. 15-39.) The
Appeals Council denied plaintiffs subsequent request for review, making the ALJ's decision final.
(Tr. 1-6.)
Factual Background
Born on June 18, 1981, plaintiff was 28 years old on the alleged onset date of disability
and 34 years old atthe time of the hearing. (Tr. 76, 89, 111, 169.) He speaks English, graduated
high school, and has U.S. Marine Corps training in combat engineering and recruiting. (Tr. 86,
109, 111, 199.) Plaintiff alleges disability due to failed back syndrome, post traumatic stress
disorder ("PTSD"), major depression, and suicidal ideation. (Tr. 198.)
Standard of Review
The court must affirm the Commissioner's decision if it is based on proper legal standards
and the findings are suppmied by substantial evidence in the record. Hammockv. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The comt must weigh
"both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez
v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either

Page 2 - OPINION AND ORDER

a grant or a denial, [the comt] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden of proofrests upon the claimant to establish disability. Howardv. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not less
than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. 1 First, the
Commissioner dete1mines whether a claimant is engaged in "substantial gainful activity." Yuckert,
482 U.S. at 140; 20 C.F.R. § 404.1520(b). Ifso, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe
impairment or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(C).
If the claimant does not have a medically determinable, severe impairment, he is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either
singly or in combination, meet or equal "one of a number of listed impairments that the
[Commissioner] aclmowledges are so severe as to preclude substantial gainful activity." Yuckert,
482 U.S. at 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if not,
the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform "past relevant

1

Effective March 27, 2017, updates were made to the regulations and some sections of
the regulations were renumbered. The C.F .R. sections referenced throughout this opinion are the
versions of the C.F.R. that were in effect at the time plaintiff requested judicial review.
Page 3 - OPINION AND ORDER

work." 20 C.F.R. § 404.1520(±). If the claimant can work, he is not disabled; ifhe cannot perform
past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must
establish that the claimant can perform other work existing in significant numbers in the national or
local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). If the Commissioner meets
this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.
The ALJ's Findings
The ALJ performed the sequential analysis. At step one of the five-step process outlined
above, the ALJ found that plaintiff had not engaged in substantial gainful activity since May 30,
2010, the alleged onset date. (Tr. 20.) At step two, the ALJ concluded that plaintiff had the
following severe impairments: degenerative disc disease, obesity, failed back syndrome, anxiety,
depression, and PTSD. (Tr. 20-21.) At step three, the ALJ determined that plaintiff did not have
an impairment or combination of impairments that met or medically equaled a listed impairment.
(Tr. 21-22.)
The ALJ next assessed plaintiffs residual functional capacity ("RFC") and found that
plaintiff has the RFC to
perfo1m modified sedentary work as defined in 20 CFR 404. I 567(a). The claimant
can lift/carry 10 pounds occasionally and less than I 0 pounds frequently. He can sit
for 6 of 8 hours and stand/walk for 2 of 8 hours. He can push/pull as much as he
could lift and carry. The claimant can never climb ladders or scaffolds. He can no
more than occasionally crouch, crawl, balance, stoop, kneel and climb ramps and
stairs. He is further limited to simple, routine and repetitive tasks and simple work
related decision [sic]. He can no more than occasionally interact with the public and
with coworkers.
(Tr. 23-32.)
At step four, the ALJ found that plaintiff had no past relevant work. (Tr. 32.) At step five,
the ALJ concluded that plaintiff could "perform the requirements ofrepresentative occupations such
Page 4 - OPINION AND ORDER

as" electronics jobs, semi-conductor jobs, and circuit board jobs. (Tr. 33-34.) The ALJ therefore
concluded plaintiff was not disabled. (Tr. 34.)
Discussion

Plaintiff argues that the ALJ erred by:

(!) improperly disregarding the Veteran

Administration's (VA) decision that plaintiff was unemployable; (2) improperly rejecting the
medical opinion of Dr. Steven Mandelblatt; (3) improperly rejecting the medical opinion ofLCSW
Ms. Martha O'Neal; (4) failing to provide a clear and convincing reason to reject his subjective
symptom testimony; and ( 5) assigning an RFC assessment to plaintiff that was not supported by
substantial evidence.

L

VA Disability Rating
Plaintiff argues the ALJ failed to provide a persuasive, specific and valid reason for

discrediting the VA disability rating decision that he was unemployable. (Pl. 's Opening Br. 4-5,
Pl.'s Reply Br. 1-3.)
An ALJ must ordinarily give great weight to a Veterans Administration determination of
disability. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). "While a VA disability
decision does not necessarily compel the SSA to reach an identical result, the ALJ must consider the
VA' s findings in reaching his decision because of the similarities between the VA disability program
and the Social Security disability program." Hiler v. Astrue, 687 F.3d 1208, 1211 (9th Cir. 2012)
(internal quotes omitted). However, because the VA and SSA criteria for determining disability are
not identical, the ALJ may give less weight to a VA disability rating ifhe gives persuasive, specific,
valid reasons for doing so that are supported by the record. Id.
Here, the AL.T considered the VA's March 6, 2013 letter, noting that plaintiff was given an

Page 5 - OPINION AND ORDER

80% rating of service connected disability but was paid at the I 00% rate because he was deemed
"unemployable." (Tr. 31.) The ALJ also noted that plaintiff"appears to have a 70% rating for PTSD
and a 40% rating for ankylosis spondylitis." (Tr. 31.) The ALJ gave "substantial weight to the
conclusions of the Department of Veteran Affairs," noting that plaintiffs "overall disability rating
of 80%" was "not inconsistent" with his assessment of plaintiffs limitations or RFC, and that the
VA letter's limitations "do not result in a finding the claimant is totally unable to work." (Tr. 31.)
Plaintiff argues that the ALJ eJTed when evaluating the VA disability rating because he did
not weigh the VA's finding that plaintiff was "unemployable," specifically that the ALJ failed to
provide a persuasive, specific, and valid reason for assigning less weight to this pmi of the VA's
disability rating. (Pl.'s Opening Br. 5, Pl.'s Reply Br. 1.) This couti agrees. Under 38 C.F.R. §
4.16(a), a total disability rating is assigned by the VA when a person, "in the judgment of the rating
agency, [isJ unable to secure or follow a substantially gainful occupation as a result of a serviceconnected disabilities." Here, although the ALJ noted both the 80% service connected disability
rating and that plaintiff was paid at the 100% rate because he was "deemed unemployable," the ALJ
failed to explain why he discredited the VA's finding of plaintiffs unemployability, how the VA's
100% unemployability rating was consistent with his finding that plaintiff could work, and why the
RFC was consistent with the disability rating. Therefore, the ALJ eJTed in evaluating the VA
disability rating.
II.

Medical Opinion of Treating Physician, Dr. Steven Mandelblatt
Next, plaintiff argues the ALJ eJTed by failing to provide a specific and legitimate reason for

rejecting Dr. Steven Mandelblatt's medical opinion from February 2015. (Pl. 's Opening Br. 5-9,
Pl. 's Reply Br. 3-6.)
Page 6 - OPINION AND ORDER

An ALJ may reject the uncontradicted medical opinion of a treating or examining physician
only for "clear and convincing" reasons supported by substantial evidence in the record. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81F.3d821, 830-31 (9th
Cir. 1995)). An ALJ may reject the contradicted opinion of a h·eating or examining doctor by
providing "specific and legitimate reasons that are suppmied by substantial evidence." Id.
Dr. Mandelblatt treated plaintiff for a number of years and issued medical opinions in 2011,
2012, and 2015. (Tr. 1027, 1125, 2165.) The medical opinion at issue is the Medical Source
Statement he completed on February 27, 2015, where he diagnosed plaintiff with failed back surgery,
chronic lower back pain, and depression. (Tr. 2165-68.) Dr. Mandelblatt opined that plaintiff was
unable to"[ c]omplete a normal workday and workweek without interruptions from psychologically
based symptoms" and was unable to "[p]erform at a consistent pace without an umeasonable number
and length ofrest periods." (Tr. 2166.) He wrote that plaintiff was seriously limited in getting along
with peers, responding to changes in a routine, dealing with normal work stress, interacting
appropriately with the general public and maintaining socially appropriate behavior. (Id.)
With respect to plaintiffs physical limitations, Dr. Mandelblatt wrote that plaintiff's
impairments prevented him from lifting or carrying any amount of weight, that plaintiff can sit for
less than two hours, can stand/walk for less than two hours, and that plaintiffs impairments posed
both postural and manipulative limitations that prevent him from climbing (ramps, stairs, ladders,
ropes, scaffolds), balancing, kneeling, crouching, crawling, stooping, reaching, handling, fingering,
and feeling. (Tr. 2167.) Dr. Mandelblatt indicated it was his medical opinion that plaintiff would
be "off-task" 25% or more on a typical workday, and would have more than four absences a month
from work. (Tr. 2168.) His overall prognosis was "fair for continued stability shmi term, poor to
Page 7 - OPINION AND ORDER

nonexistent for recovery" noting that plaintiffs "chronic failed back pain, PTSD/depression is
unfortunately, given the amount of Therapy/Medication/Evaluations he has had, not likely to
improve significantly." (Tr. 2165, 2168.)
Here, the ALJ gave "little weight" to Dr. Mandelblatt's 2015 opinion. (Tr. 30-31.) As an
initial matter, Dr. Mandelblatt's opinion that plaintiff had such significant limitations were
contradicted by the opinions of state agency medical consultants Dr. Linda Jensen and Dr. Sharon
Eder; who reviewed the medical evidence and concluded that plaintiff could occasionally lift twenty
pounds, frequently lift ten pounds, andhad only occasional postural limitations. (Tr. 82-83, 103-04.)
The ALJ was therefore required to provide a specific and legitimate reason for discrediting Dr.
Mandelblatt's controve1ied opinion. Bayliss, 427 F.3d at 1216.
The ALJ gave three reasons for discrediting Dr. Mandelblatt's 2015 medical opinion. (Tr.
30-31.) First, the ALJ noted imaging results of plaintiffs spine showed his fusion hardware was
intact, and no additional surgery was recommended. (Tr. 31.) "A conflict between treatment notes
and a treating provider's opinions may constitute an adequate reason to discredit the opinions of a
treating physician or another treating provider." Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir.
2014) (citing Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012)). However, "[o ]bservations
[of improvement] must be 'read in context of the overall diagnostic picture' the provider draws."
Ghanim, 763 F.3d at 1162 (quoting Holohan v. Massanari, 246 F.3d 1195, 1205(9th Cir. 2001)).

Here, substantial evidence does not suppmi the ALJ's conclusion that Dr. Mandelblatt's
medical opinion was inconsistent with his treatment notes.

Although treatment notes show

plaintiffs fusion hardware was intact, when read in their entirety the treatment notes do not supp mi
Dr. Mandelblatt's overall findings regarding plaintiffs limitations. On February 19, 2012, Dr.
Page 8 - OPINION AND ORDER

Mandelblatt wrote that plaintiffs hardware was intact finding there was "NO evidence of hardware
failure or latent infection or any other problem that would explain your [ongoing] pain in a different
manner," but did note that the "markers of inflammation ... are slightly high for unknown reasons."
(Tr. 2237.)

Dr. Mandelblatt determined plaintiffs hardware was not causing plaintiffs

inflammation, but recognized that plaintiffs pain still remained, which is consistent with the
limitations he noted in his Medical Source Statement written on February 27, 2015. Therefore, Dr.
Mandelblatt's statements concerning plaintiffs physical limitations are not inconsistent with fact
that plaintiffs hardware was intact.
Additionally, the fact that no additional surgery was recommended is not a specific and
legitimate reason for discrediting Dr. Mandelblatt's 2015 medical opinion. Review of the record
shows the decision to not pursue additional surgery was made after medical providers determined
that it was "unlikely that further stabilization is likely to be beneficial," and recommended injections
to help alleviate plaintiffs pain instead. (Tr. 2220.) Therefore, the medical decision to no longer
suggest additional surgery was not based on plaintiffs pain being controlled, but because other
methods were deemed more beneficial. Therefore, this was a not specific and legitimate reason for
discrediting Dr. Mandelblatt's medical opinion.
Next, the ALJ found that plaintiffs pain symptoms "were at least somewhat controlled by
medication." (Tr. 31.) Again, when reviewing the medical record in its entirety, this reason was not
suppmted by substantial evidence, and therefore not a specific and legitimate reason for discrediting
Dr. Mandelblatt's 2015 medical opinion. "That a person ... makes some improvement does not
mean that the person's impairments no longer seriously affect [his] ability to function in a
workplace." Holohan, 246 F.3d at 1205. Here, plaintiff had improvement in controlling his back
Page 9 - OPINION AND ORDER

pain when he began using medication, eventually being able to paiiicipate in activities of daily living
like cycling and traveling with family, but by 2015 plaintiff found medication was no longer
effective; he experienced debilitating pain and was able to function only minimally. (Tr. 1099, 2108,
2130, 2194, 2205, 2258.) Here, the fact that plaintiffs pain was "somewhat controlled" did not
contradict the fact that Dr. Mandelblatt overall determined plaintiff would suffer from physical
limitations that would affect his ability to work.
Finally, the ALJ noted plaintiffs activity levels, which included biking, traveling, and
socializing, which the ALJ found suggested that plaintiffs "physical ai1d psychological symptoms
may not be as debilitating as alleged." (Tr. 31.) Inconsistency between a treating provider's opinion
aild a claimailt's daily activities may constitute a specific and legitimate reason to discount that
opinion. Ghanim, 763 F.3d at 1162 (citing Morgan v. Comm 'r ofSoc. Sec. Admin. , 169 F.3d 595,
600-02 (9th Cir. 1999)). Here, although plaintiff's activity levels increased during 2013, including
biking for long distances and traveling, these activities significantly decreased in 2015, when he
returned with multiple complaints of debilitating back pain. (See Tr. 1058, 1079, 2030, 2055, 2197,
2205, 2233.) As Dr. Mandelblatt's medical opinion was issued in February 2015, his findings are
suppmied by the record.
When reviewed as a whole, on this record, the ALJ's reasons for discrediting Dr.
Mandelblatt's 2015 opinion are not supported by substantial evidence.
III.

Medical Opinion of Other Source, LCSW Ms. Maiiha O'Neal
Next, plaintiff ai·gues that the ALJ erred by assigning little weight to the medical opinion of

LCSW, Martha K. O'Neal, an "other source." (Pl.'s Opening Br. 9-11, Pl. 's Reply Br. 6-7.)
Evidence from

all

acceptable medical source is used to establish whether a claimant has a

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medically determinable impairment. 20 C.F.R. § 404.1508. Acceptable medical sources include
licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists,
nad qualified speech-language pathologists. 20 C.F.R. § 404.1513(a). Evidence from "other
sources," including, but not limited to, "nurse practitioners, physicians' assistants, naturopaths,
chiropractors, audiologists, therapists," may also be used to show the severity of a claimant's
impairments and how they affect his ability to work. 20 C.F.R. § 404.1513(d). In order to reject
evidence from "other sources," the ALJ must give germane reasons for doing so. Molina, 674 F.3d
at 1111 (9th Cir. 2012).
On February 2, 2009, Ms. O'Neal wrote a letter noting she treated plaintiff for "his
adjustment to disability and chronic pain, and depression." (Tr. 362.) Ms. O'Neal wrote that
plaintiffs Burns Depression Checklist suggested severe depression, that she assessed suicidality, and
that plaintiff fits the PTSD criteria. (Id.) Ms. O'Neal additionally noted that the functional impact
of plaintiffs back pain was minimized on evaluation based on "his stoicism with doctors." (Id.)
The ALJ gave Ms. O'Neal's opinion "little weight," finding that she was not an acceptable
medical source. (Tr. 30.) Although Ms. O'Neal is not an "acceptable medical source," this is not
a germane reason for rejecting her medical opinion. See SSR 06-03p (When making a dete1mination
or decision of disability all available evidence in the record will be considered, including "objective
medical evidence; other evidence from medical sources, including their opinions; statements by the
individual and others about the impairment(s) and how it affects the individual's functioning;
information from other "non-medical sources" and decisions by other governmental and
nongovernmental agencies about whether an individual is disabled or blind").
Next, the ALJ gave little weight to Ms. O'Neal's opinion because it was "rendered prior to
Page 11 - OPINION AND ORDER

the claimant's alleged onset date" and therefore, "does not reflect his functioning during the relevant
period." Medical opinions that predate the alleged onset of disability are oflimited relevance. See
Carmickle v. Comm 'r, 533 F.3d 1155, 1165 (9th Cir. 2008). As Ms. O'Neal's medical opinion was

rendered in February 2009, over a year prior to plaintiffs alleged onset date of May 30, 2010, the
ALJ reasonably gave it little weight reasonably finding her opinion would not accurately reflect
work-related limitations present in 2010. Similarly, the ALJ gave "little weight" to Ms. O'Neal's
medical opinion because it was not consistent with plaintiffs activity levels during the relevant
period, noting plaintiffs ability to travel, bike ride, swim, play darts, shoot guns and bows, visit his
grandparents and complete college coursework. (Tr. 30.) Indeed, Ms. O'Neal's medical opinion was
issued in Februaiy 2009, during a time when plaintiffs daily activities were different from the
activities he participated in after his alleged onset date of May 30, 2010. The ALJ provided germane
reasons for discrediting Ms. O'Neal's opinion and there is no error.
IV.

Plaintiffs Subjective Symptom Testimony
Plaintiff also argues the AL.T erred by failing to provide a clear and convincing reason for

rejecting his subjective symptom testimony. (Pl.'s Opening Br. 14-18, Pl.'s Reply Br. 8-10.)
If "there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's

testimony about the severity ofher symptoms only by offering specific, clear and convincing reasons
for doing so."' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v.
Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not

credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence
suggests the complaints are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). The
reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the
Page 12- OPINION AND ORDER

ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th
Cir. 1995) (internal citation omitted).
Examples of clear and convincing reasons include conflicting medical evidence, effective
medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or
between his testimony and his conduct, daily activities inconsistent with the alleged symptoms, a
sparse work history, testimony that is vague or less than candid, and testimony from physicians and
third parties about the nature, severity and effect of the symptoms complained of. Tommasetti, 533
F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Soc. Sec. Admin.,
119 F.3d 789, 792 (9th Cir. 1997).
At the hearing, plaintiff testified that he is unable to work due to constant lower back pain
and severe depression. (Tr. 4 3.) He reported having some pain relief from medication, but no
treatments have completely eliminated the pain. (Id.) Plaintiff testified that his pain always remains
at "7 out of 1O" and worsens with more activity. (Tr. 44-45.) The ALJ rejected plaintiffs testimony
regarding his symptoms and limitations, overall finding that the medical evidence record suggests
that plaintiffs physical and mental symptoms are not as compromised as plaintiff suggests. (Tr. 24.)
The ALJ provided a clear and convincing reason for rejecting plaintiffs subjective symptom
testimony.
First, the ALJ noted that although plaintiff was diagnosed with degenerative disc disease,
failed back syndrome, and obesity, medical imaging showed plaintiff had intact hardware with no
complications and had no additional surgery recommended. As discussed above with respect to Dr.
Mandelblatt' s medical opinion, the co mi similarly finds this is not a clear and convincing reason for
discrediting plaintiffs subjective symptom testimony. When read in context, these facts do not
Page 13 - OPINION AND ORDER

contradict plaintiffs subjective symptom testimony and the medical opinion evidence that his pain
remained despite medical evidence showing no complications with his spinal hardware. This is not
a clear and convincing reason for discrediting plaintiffs subjective symptom testimony.
Next, the ALJ found plaintiffhad some relief with medication and other treatment. (Tr. 24.)
Again, as discussed above, although plaintiffhadinitial improvement with medication and treatment,
an independent review of the record shows plaintiffs improvement was not long-term and he was
experiencing debilitating back pain through 2015. (See Tr. 1058, 1079, 2030, 2055, 2197, 2205,
2233.) Therefore, although plaintiff experienced "some relief' from his pain, it does not contradict
his testimony that he was unable to work because of his impairments.
Third, the ALJ noted plaintiffs high activity levels were "inconsistent with the claimant's
allegedly debilitating symptoms." (Tr. 24.) The ability to spend "a substantial part of [one's] day
engaged in pursuits involving the performance of physical functions that are transferable to a work
setting" is a clear and convincing reason to reject a plaintiffs symptom testimony. See Orn v.

Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Fair v. Bowen, 885 F.2d at 603). Indeed,
although plaintiff reported spending time walking, cycling, and traveling with family, the record
reflects that he had to stop many of these activities after pain symptoms returned and prevented him
from participating in them. (See Tr. 1797, 2029-30, 2036, 2066, 2108, 2122, 2194.) Therefore, this
was not a clear and convincing reason to discredit plaintiffs subjective symptom testimony.
Finally, the ALJ discredited plaintiffs subjective symptom testimony with respect to his
mental health symptoms because he was never psychiatrically hospitalized, never placed in an
inpatient program, and had mental status exams within normal limits. (Tr. 27.) Inconsistency
between plaintiffs testimony and the medical record is a clear and convincing reason to discredit
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a claimant's testimony. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Indeed, an
independent review of the record showed plaintiff suffered from depression and PTSD, but over the
course of treatment he was able to become comfmtable driving without PTSD symptoms, interacted
appropriately with family and friends, and his affect and mood began to improve. (See Tr. 807, 853,
1113, 1124, 1131, 1138, 1140.) This was a clear and convincing reason to discredit plaintiffs
subjective symptom testimony.
In sum, the ALJ provided at least one clear and convincing reason for discrediting plaintiffs
subjective symptom testimony. There is no error.
V.

RFC Not Supported by Substantial Evidence
Finally, plaintiff argues the ALJ en-ed when assessing his RFC, by "fail[ing] to include all

limitations that were supported by the record." (Pl.'s Opening Br. 11, Pl.'s Reply Br. 7-8.)
Specifically, plaintiff argues the ALJ "should have included more restrictive limitations in regards
to plaintiffs ability to maintain adequate pace, persist and sustain workplace activity, as a result of
his severe impairments." (Pl.' s Opening Br. 11.)
The RFC is the maximum a claimant can do despite his limitations. See 20 C.F.R.
§§404.1545. In determining the RFC, the ALJ must consider limitations imposed by all of a
claimant's impairments, even those that are not severe, and evaluate "all of the relevant medical and
other evidence," including the claimant's testimony. SSR 96-8p. The ALJ is responsible for
resolving conflicts in the medical testimony and translating the claimant's impairments into concrete
functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).
Only limitations supported by substantial evidence must be incorporated into the RFC and, by
extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d
Page 15 - OPINION AND ORDER

1157, 1163-65 (9th Cir. 2001).
Because the ALJ erred in evaluating the VA disability rating and Dr. Mandelblatt's medical
opinion, the court finds the ALJ erred in assessing plaintiffs RFC.
Remand

The decision whether to remand for further proceedings or for immediate payment of benefits
is within the discretion of the court. Harmen v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) cert.
denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A remand for

an award ofbenefits 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 suppmi
the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-39 (9th Cir. 2011) (quoting
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The collli may not award benefits

punitively and must conduct a "credit-as-true" analysis to determine ifa claimant is disabled under
the Act. Id at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of
benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting 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. The "credit-as-true" doctrine is not a mandatory
rule in the Ninth Circuit, but leaves the collli flexibility in determining whether to enter an award
of benefits upon reversing the Commissioner's decision. Connett, 340 F.3d at 876 (citing Bunnell
v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en bane)). The reviewing court should decline to

credit testimony when "outstanding issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir.

Page 16 - OPINION AND ORDER

2010).
Here, the ALJ failed to credit the VA determination that plaintiff was "unemployable" and
the February 2015 medical opinion of Dr. Mandelblatt who opined that plaintiff had significant
physical and mental limitations that would prevent him from working. (Tr. 167-68, 2166.) Given
the improvement of plaintiffs mental limitations, Dr. Mandelblatt's findings that plaintiff could
perform some physical activities, and the VA disability rating that plaintiff is unemployable, this
court finds issues still remain such that the case should be remanded for futiher proceedings.
Conclusion

Based on the foregoing discussion, the Commissioner's decision is REVERSED and this case
is REMANDED for further proceedings consistent with this opinion.
IT IS SO ORDERED .
.

. ;,I

I t,/fA.~

DATED this _LL_ day of August 2017.
;j

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JOHN V. ACOSTA
Unit~tj States Magistrate Judge
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