Moore v. Commissioner Social Security Administration
Filing
20
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 further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 08/09/2013 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARTEN WILLIAM MOORE,
Plaintiff,
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
KATHRYN TASSINARI
Harder, Wells, Baron & Manning, P.C.
474 Willamette Street, Suite 200
Eugene, Oregon 97401
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
GERALD J. HILL
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
6:12-cv-01190-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff,
Marten
William
Moore,
brings
this
action
for
judicial review of a final decision of the Commissioner of Social
Security (the Commissioner) denying his application for disability
insurance benefits (DIB) under Title II of the Social Security Act
(the
Act)
and
supplemental
security
benefits under Title XVI of the Act.
1381-1383f.
405(g).
income
(SSI)
See 42 U.S.C.
disability
§§
401-434,
This court has jurisdiction pursuant to 42 U.S.C.
For the
reasons set forth below,
I
§
reverse the final
decision of the Commissioner and remand for further proceedings
consistent with this opinion.
PROCEDURAL BACKGROUND
Plaintiff protectively filed his applications for DIB and SSI
on August 25, 2008, alleging disability due to
back, diabetes.n
and
upon
Tr. 159.
~[d]isc
disease in
His applications were denied initially
reconsideration.
Administrative Law Judge
A
(ALJ)
hearing
was
on December 15,
held
before
2010,
plaintiff was represented by counsel and testified.
an
at which
Vocational
Expert (VE) Vernon Arne was also present throughout the hearing and
testified.
On
January
10,
2011,
plaintiff's application.
2 - OPINION AND ORDER
ALJ
issued
a
decision
denying
After the Appeals Council denied review,
plaintiff timely appealed.
Ill
the
FACTUAL BACKGROUND
Born on April 17,
1963,
plaintiff was 39 years old on the
alleged onset date of disability and 47 years old on the date of
the hearing.
Plaintiff has a high school education with vocational
training in automobile technology, and has past relevant work as an
Tr. 18, 163.
auto mechanic and auto detail manager.
Plaintiff alleges his disabilities became disabling on July
10,
In
2002.
to
addition
the
plaintiff
testimony,
hearing
submitted an Adult Function Report and a Pain Questionnaire.
165-72,
173-75.
Daugherty, M.D.,
Plaintiff's
primary
care
Robert
De'fllayde C.
402-04.
Tr.
submitted an opinion.
provider,
Tr.
Perry, M.D., examined the plaintiff and submitted an evaluation.
Tr.
295-300.
records
and
submitted
Desai
reviewed
plaintiff's
medical
Physical
Residual
Functional
Capacity
M.
Finally,
a
Tr. 303-11.
Assessment.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
a
established
five-step
sequential
Bowen v.
process for determining whether a person is disabled.
Yuckert,
482
u.s.
137'
C.F.R.
20
Each
step
§§
is
The claimant bears the burden of proof at
potentially dispositive.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
The burden shifts to the Commissioner at Step Five to
Cir. 1999).
show that
(1987);
416.920(a) (4) (i)-(v).
404.1520 (a) (4) (i)- (v),
Steps One through Four.
140-42
a
significant
3 - OPINION AND ORDER
number of
jobs
exist
in
the
national
economy that the claimant can perform.
See Yuckert,
482 U.S. at
141-42; Tackett, 180 F.3d at 1098.
At Step One, the ALJ determined that plaintiff has not engaged
in substantial gainful activity since the alleged onset date, July
10, 2002.
See 20 C.F.R.
§§
404.1571 et seq., 416.971 et seq.; Tr.
11.
At
obesity,
Step
Two,
the
degenerative
ALJ determined
of the
back,
morbid
and
chronic obstructive pulmonary disease are severe impairments.
See
§§
disease
plaintiff's
diabetes,
20 C.F.R.
disc
that
404.1520(c), 416.920(c); Tr. 11-12.
At Step Three, the ALJ determined that plaintiff does not have
an impairment or combination of impairments that meet or medically
equal
any
listed
impairment.
See
20
C.F.R.
§§
404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 12.
The
ALJ
found
that
plaintiff has
the
residual
functional
capacity (RFC) to perform less than the full range of light work,
including limitations that plaintiff can only perform tasks that
involve no more than four hours of standing or walking,
hours of sitting,
in an eight-hour workday,
and six
with the option of
alternating between sitting and standing as needed; occasionally
lift or carry 20 pounds, and frequently lift or carry 10 pounds;
occasionally climb ramps or stairs, but never climb ladders, ropes,
or
scaffolds;
occasionally balance,
4 - OPINION AND ORDER
stoop,
kneel,
crouch,
and
crawl; and can never be exposed to vibration or hazards.
the ALJ found
Four,
Step
At
C.F.R.
20
See
work.
relevant
past
perform any
plaintiff is
that
unable
§§
that
Tr. 12-18.
jobs
to
404.1565,
416. 965; Tr. 18.
At
however,
Five,
Step
the ALJ found
exist
in
significant numbers in the national economy that plaintiff can
Wire
including
perform,
Small
Assembly,
Cable
and
Assembly,
Product
Worker, and Check Cashier.
Assembly,
Document
See 20 C.F.R.
§§
Motor
Electric
Optical
Preparer,
404.1569, 404.1569(a),
416.969, 416.969(a); Tr. 18-19.
Accordingly,
the ALJ found that plaintiff was not disabled
within the meaning of the Act.
ISSUES ON REVIEW
Plaintiff raises three issues on appeal.
First,
plaintiff
claims that the ALJ improperly rejected his testimony.
Second,
plaintiff argues that the ALJ provided insufficient reasons for
the
rejecting
physician.
opinion
of
Daugherty,
Dr.
plaintiff's
treating
plaintiff argues that the ALJ erred in his
Third,
consideration
of
the
chart
notes
of
Andrew
M.D.
Kokkino,
Accordingly, plaintiff concludes that the ALJ failed to carry his
burden at Step Five.
STANDARD OF REVIEW
The
court must
affirm the
Commissioner's decision
if
the
Commissioner applied proper legal standards and the findings are
5 - OPINION AND ORDER
supported by substantial evidence in the record.
405(g); Andrews v.
Shalala,
53 F.3d 1035, 1039
42 U.S. C.
(9th Cir.
§
1995).
"Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
court must
weigh
all
of
the
evidence,
whether
detracts from the Commissioner's decision.
807 F.2d 771, 772 (9th Cir. 1986).
to
more
than
one
rational
decision must be upheld.
supports
The
or
Martinez v. Heckler,
If the evidence is susceptible
interpretation,
Andrews,
it
Id.
the
Commissioner's
53 F. 3d at 1039-40.
If the
evidence supports the Commissioner's conclusion, 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).
DISCUSSION
I.
Rejection of Plaintiff's Testimony
In deciding whether to accept subjective symptom testimony, an
ALJ must perform two stages of analysis.
416.929.
evidence
First,
of
an
the
claimant
underlying
must
produce
impairment
that
expected to produce the symptoms alleged.
F. 3d 1273, 1281-82 (9th Cir. 1996).
20 C.F.R.
§§
404.1529,
objective
medical
could reasonably be
Smolen v. Chater,
80
Second, absent a finding of
malingering, the ALJ can reject the claimant's testimony about the
6 - OPINION AND ORDER
severity of
his
symptoms
only by
convincing reasons for doing so.
offering
specific,
clear
and
Id. at 1281.
If an ALJ finds that the claimant's testimony regarding his
subjective symptoms is unreliable, the "ALJ must make a credibility
determination
citing
unpersuasive."
Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999).
the
reasons
why
the
testimony
is
In doing so, the ALJ must identify what testimony is credible and
what
testimony
undermines
the
claimant's
complaints,
and
make
"findings sufficiently specific to permit the court to conclude
that
the
ALJ
testimony."
did
not
arbitrarily
discredit
[the]
claimant's
Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).
The ALJ may rely upon ordinary techniques of credibility evaluation
in weighing the claimant's credibility.
Tommasetti v. Astrue, 533
F. 3d 1035, 1039 (9th Cir. 2008).
At the hearing,
parents.
as
a
Tr. 31.
result
of
Plaintiff stated that his back pain has worsened
weight
inability to work.
that
his
diabetes
occasional
plaintiff testified that he lives with his
Tr.
gain,
37,
causes
irritability
and
40.
his
and
is
the
primary
cause
of
his
Plaintiff additionally testified
blood
upset
sugar
to
stomach.
run
high,
causing
Tr.
41-42,
53-54.
Plaintiff stated that he can walk up to three blocks, and can lift
two jugs of milk and a bag of groceries.
Tr.
43.
As to sitting
limitations, plaintiff testified that he cannot sit in one position
for a long period of time without pain in his back and leg.
7 - OPINION AND ORDER
Tr.
43-44.
Plaintiff reported that he can dress himself, but requires
the use of a chair in the shower, and getting ready in the morning
can take between two and three hours.
Tr. 46, 55-56.
Plaintiff
testified that his parents do most of the chores and errands around
their house, but that he will occasionally go shopping and mow the
lawn on a riding lawnmower.
Tr. 46-47.
Plaintiff described his daily activities as waking between
5:30 and 6:00, letting his cats out and eating a small snack, and
then going back to sleep until 7:30 or 8:00, when his mother makes
breakfast.
or plays
Tr. 48.
After breakfast, plaintiff watches television
computer games,
sometimes
eats
lunch,
watching television or talking with his father.
summer,
he
sometimes
mows
the
lawn.
Tr.
and returns
Tr. 49.
49-50.
to
In the
Plaintiff
additionally testified that he takes a two-to-three-hour nap daily.
Tr.
57.
After dinner,
plaintiff testified that he watches more
television and goes to bed around 11:00.
In his Adult
Function Report,
Tr. 50.
plaintiff described similar
activities, but added that two or three times per week he goes to
a
friend's
hours."
house
in
the
Tr. 165, 169.
afternoon
to
"socialize
for
a
couple
Plaintiff reported that he cooks himself
meals two-to-three times per 'tJeek, but that his mother primarily
does the cooking.
Tr.
167.
Plaintiff stated, however,
that he
cannot perform any type of household work that requires standing
for a long period of time or bending over.
8 - OPINION AND ORDER
Tr. 168.
Plaintiff
checked that his conditions affect his abilities to lift, squat,
bend,
stand, reach, walk, sit, climb stairs, and complete tasks.
Tr. 170.
Plaintiff stated that he can walk about 100 yards before
needing to rest for 10 minutes.
The
ALJ
impairments
could
but
credible.
Tr. 17.
medical
plaintiff's
testimony
plaintiff's
determinable
medically
expected to
reasonably be
that
symptoms,
the
that
found
Id.
cause
the
alleged
nonetheless
was
not
The ALJ rejected plaintiff's testimony because
evidence
in
the
record
did
not
fully
support
plaintiff's very sedentary alleged limitations and activities of
daily living, plaintiff stopped working for reasons unrelated to
disability and had a poor work record before he allegedly became
disabled, he did not comply with prescribed medical treatment, and
made inconsistent statements regarding his drug use.
I
Tr. 13-17.
conclude that the ALJ cited clear and convincing reasons for
rejecting plaintiff's testimony.
The ALJ reasonably found that the medical record does not
support
plaintiff's
allegations
limitations dating back to 2002.
of
very
significant
back
As the ALJ noted, while there is
some discussion of back problems in 2002 and 2003, plaintiff did
not complain of back pain to his physicians again until 2009.
Even
in April and July of 2009, plaintiff's complaints do not appear
serious enough to rise to the level of disabling, as they were only
mentioned in passing in the chart notes and treated conservatively
9 - OPINION AND ORDER
with ibuprofen and stretching.
Only in September of
Tr. 346-47.
2009, less than two weeks after plaintiff's claim was denied upon
reconsideration, does plaintiff report significant back pain to his
Tr.
physician.
In addition,
345.
plaintiff's allegation to a
specialist in October of 2009 that he had been experiencing severe
back pain radiating into his leg for four-to-six months is belied
by his report in July of that year that he "had no radiation into
the lower extremities."
Compare Tr. 387 with Tr. 346.
Moreover, the medical record reveals that during the lengthy
period in which plaintiff was not complaining of back pain,
engaged
in
impairments.
inconsistent
activities
with
significant
he
back
For example, in August of 2004, plaintiff reported
elbow pain when "lifting wood or other heavy objects."
In January of 2008,
Tr. 248.
plaintiff reported he hurt his chest while
working on his car and "leaning on the floor of the car to get into
the dashboard."
Tr.
356.
While,
as the ALJ noted,
the medical
record contains evidence of more significant back problems, the ALJ
reasonably concluded that the longitudinal medical record does not
support plaintiff's allegations of back impairments dating back to
alleged onset date of disability.
The ALJ also cited plaintiff's poor work history and nondisability
plaintiff's
reason
for
testimony.
leaving
work as
a
reason
A poor work history or
for
rejecting
non-disability
reason for leaving the job immediately prior to the alleged onset
10 - OPINION AND ORDER
date are proper reasons for discrediting a plaintiff's testimony.
See
Burton
v.
Massanari,
268
F.3d
824,
828
(9th
Cir.
2001)
(rejecting a claimant's testimony in part because he left a job
after being laid off, rather than for health reasons); Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
(rejecting a claimant's
testimony in part because her "work history was spotty") .
Although
there was some confusion on this point at the hearing, plaintiff
reported that he "quit working due to arrest" in 2002.
159.
his
Tr. 36-39,
In addition, plaintiff reported inconsistent work prior to
alleged
disability
in
2002,
and
his
earnings
history
corroborates that plaintiff was not consistently employed full time
before his alleged period of disability.
Tr. 153, 160.
reasonably discounted plaintiff's testimony,
in part,
The ALJ
because he
quit his job prior to the alleged onset date for reasons other than
disability and because plaintiff has an inconsistent work history.
The
plaintiff
treatment.
ALJ
also
was
discredited
not
always
plaintiff's
compliant
credibility
because
prescribed
medical
with
Noncompliance with prescribed medical treatment is a
valid reason to reject a claimant's testimony.
F.2d 597,
603
(9th Cir.
instances
of
noncompliance.
hospitalization,
1989)
Here,
During
Fair v. Bowen, 885
the ALJ noted multiple
an
April
of
2007
plaintiff repeatedly went to the cafeteria and
ordered food that was not on his diabetic diet despite admonitions
from his doctors.
Tr. 264-65.
11 - OPINION AND ORDER
In December of 2008, plaintiff left
a prescribed sleep study within minutes against medical advice.
Additionally, despite a recommendation from Dr. Kokkino
Tr. 375.
that plaintiff engage in a course of physical therapy and weight
loss to help with his back pain, plaintiff admitted at the December
5,
2010 hearing that he had not had any physical therapy since
Tr.
2003.
50,
226-31,
ALJ
The
387.
discredited
reasonably
plaintiff's testimony because he demonstrated noncompliance with
medical treatment on multiple occasions.
Finally, the ALJ discredited plaintiff's testimony because he
made inconsistent statements to doctors and at the hearing about
when
he
ceased
using
reported
plaintiff
methamphetamine
to
his
two months
doctor
that
Tr.
prior.
3,
2002,
stopped
using
October
On
methamphetamine.
he
252.
At
the
hearing,
however, plaintiff admitted that he continued using methamphetamine
for some period after his 2002 arrest, but that he quit before his
period of probation was completed.
Tr.
51-52.
Yet,
during his
April of 2007 hospital visit, plaintiff admitted to continuing use
of methamphetamine, and injecting drugs one-to-three months prior.
Tr. 271.
The ALJ reasonably cited these inconsistencies in making
an adverse credibility finding.
I conclude that these reasons,
taken together, constitute clear and convincing reasons to reject
plaintiff's
subjective
symptom
discredited plaintiff's testimony.
Ill
12 - OPINION AND ORDER
testimony.
The
ALJ
properly
II.
Rejection of Dr. Daugherty's Opinion
Plaintiff next argues that the ALJ improperly rejected the
opinion
of
Generally,
Dr.
more
Daugherty,
weight
is
plaintiff's
given
to
the
treating
physician.
opinion of a
treating
physiciah than to the opinion of doctors who did not treat the
claimant.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
The
Commissioner must provide clear and convincing reasons to reject
the uncontradicted opinion of a treating or examining physician.
Id. at 830-31.
Where a physician's opinion is contradicted by that
of another physician, the ALJ may reject the physician's opinion by
providing specific and legitimate reasons supported by substantial
evidence in the record.
"'The ALJ
including
a
conclusory,
need
not
treating
and
Id.
accept
the
physician,
inadequately
if
opinion
that
of
any
opinion
supported by clinical
Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)
physician,
is
brief,
findings.'"
(quoting Bray
v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)) .
"'Where
ALJ is
. . the record contains conflicting medical evidence, the
charged with determining
conflict.'"
(9th Cir.
Id.
2003)).
credibility and
resolving
the
(quoting Benton v. Barnhart, 331 F.3d 1030, 1040
The ALJ is
responsible for
translating the
claimant's medical conditions into functional limitations in the
RFC.
See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.
13 - OPINION AND ORDER
Ultimately, the RFC is. sufficient if it is "consistent with
2008) .
Id.
restrictions identified in the medical testimony."
Dr. Daugherty submitted an opinion listing degenerative disc
obesity,
diabetes,
disease,
depression
plaintiff's
as
Dr. Daugherty described plaintiff's symptoms
Tr. 402.
diagnoses.
and
to level of
as "back pain with radiation to lower extremity Id.
toes."
After describing the clinical findings that support
the diagnoses,
Dr. Daugherty opined that plaintiff would have to
lay down or rest for 20 to 30 minutes three to four times per day.
Tr. 403.
Dr. Daugherty, however, checked that he did not know how
much plaintiff could stand, walk, or sit during a normal workday,
Tr.
but that plaintiff could only lift 10 pounds occasionally.
404.
Finally, Dr. Daugherty opined that plaintiff would miss more
than two days of work per month, explaining that plaintiff "could
not perform a physical job of 8 [hours per day]."
Id.
Because Dr. Daugherty's opinion was contradicted by that of
Drs.
Perry and Desai,
the ALJ was required to cite specific and
legitimate reasons to reject his opinion.
31.
Lester, 81 F.3d at 830-
The ALJ rejected Dr. Daugherty's opinion because the opinion
relied on plaintiff's subjective report of symptoms, the opinion is
conclusory, and is unsupported by record evidence.
Tr. 17.
As an
initial matter, I note that much of Dr. Daugherty's opinion is not
inconsistent
with
the
RFC.
Dr.
Daugherty
did
not
plaintiff's sitting, standing, or walking limitations.
14 - OPINION AND ORDER
opine
on
Moreover,
the ALJ reasonably concluded that
Dr.
Daugherty's opinion that
plaintiff would be off schedule more that two days per month was
qualified by his
in
handwritten explanation
that
section
that
plaintiff "could not perform a physical job of 8 [hours per day)."
Tr.
17,
404
Plaintiff's inability to perform
(emphasis added).
physical work, however, was reasonably accounted for in the RFC's
limitation of plaintiff to less than the full range of light work.
The only functional limitations in Dr.
Daugherty's opinion
that conflict with the RFC, then, are his limitation of plaintiff
to lifting no more than 10 pounds on an occasional basis and the
requirement that plaintiff rest for 20 to 30 minutes, three to four
Tr. 404.
times per day.
for
rejecting
Dr.
I conclude that the ALJ's stated reasons
Daugherty's
opinion
to
apply
the
lifting
limitation, but not the resting limitation.
Unlike Dr. Daugherty, the RFC limited plaintiff to lifting 20
pounds occasionally, and 10 pounds frequently.
explanation that Dr.
Daugherty'~
Tr. 12.
The ALJ's
opinion was not consistent with
other evidence in the record, however, provides ample justification
for
Indeed,
rejecting this opined limitation.
Dr.
Daugherty's
limitation to lifting no more than 10 pounds is contradicted by
plaintiff's own testimony.
At the hearing,
that he could lift two jugs of milk,
limitation opined by Dr.
the
alleged
onset
date
15 - OPINION AND ORDER
Daugherty.
of
plaintiff testified
an amount greater than the
Tr.
disability,
43.
In addition, after
plaintiff
reported
to
physicians that he hurt his elbow "lifting wood or other heavy
objects," and that he had been working on his car.
Tr. 248, 356.
The ALJ reasonably cited inconsistency with the record to reject
Dr. Daugherty's opined lifting limitation.
The ALJ erred in his consideration of Dr. Daugherty's opinion
that plaintiff must rest for 20 to 30 minutes three to four times
per day.
are
not
The ALJ's reasons for rejecting Dr. Daugherty's opinion
relevant
is
It
finding.
this
to
on
reliant
neither
plaintiff's subjective reports nor unsupported by clinical findings
and
the
remainder
of
the
medical
Rather,
record.
is
it
corroborated by the imaging cited in the opinion, and was stated by
Dr. Daugherty in terms that make clear he was not merely relying on
plaintiff's
self-reporting.
Nor,
similar
for
reasons,
conclude that the ALJ's stated reasons apply to Dr.
opinion more generally.
Daugherty
I
Daugherty's
It is clear from his opinion that Dr.
objective
considered
can
evidence
and
clinical
findings,
which he cited appropriately, and accordingly had some support in
the
record.
Thus,
the
ALJ erred in
his
consideration of
Dr.
Daugherty's opinion. 1
Ill
1
Defendant's argument that the ALJ's citation to Dr.
Perry's evaluation and Dr. Desai's review was sufficient to
Because a treating
reject Dr. Daugherty's opinion is meritless.
physician is generally given greater weight than an evaluating or
reviewing physician, the ALJ was required to cite additional
reasons for favoring Drs. Perry and Desai over Dr. Daugherty.
16 - OPINION AND ORDER
III. Consideration of Dr. Kokkino's Chart Note
Plaintiff next argues that the ALJ erred in his consideration
of Dr.
Kokkino's chart note summarizing plaintiff's October 28,
2009 visit.
Because this is a chart note, and not an opinion as to
plaintiff's
functional
Kokkino' s
Dr.
limitations,
require any individual treatment from the ALJ.
note
did not
Rather, so long as
the ALJ's decision is supported by substantial evidence in light of
Dr.
Kokkino's chart note,
as well as the rest of the evidence in
the record, then the ALJ must be affirmed in this respect.
Dr.
Kokkino noted that imaging indicated that plaintiff had
"quite a bit of spinal pathology,"
Dr. Kokkino thought lead
•t~hich
to plaintiff's "current lack of sensation and impairment in the
left lower extremity."
Tr.
387.
Because Dr.
Kokkino considered
plaintiff a high risk surgical candidate, he recommended a course
of physical therapy and a "serious weight loss regimen."
Id.
Dr.
Kokkino did not opine as to any functional limitations.
Kokkino's chart note and
The ALJ explicitly considered Dr.
findings in crafting the RFC.
Dr.
Kokkino' s
diagnoses
at
Step
Two
and
accommodate plaintiff's back impairments.
significant
findings
in
his
The ALJ accounted for
Tr. 15-16.
chart
note,
crafted
the
RFC
to
While Dr. Kokkino noted
the ALJ also
significant functional limitations in the RFC.
included
There is nothing in
Dr. Kokkino's opinion that deprives the ALJ's RFC determination of
the support of substantial evidence.
17 -OPINION AND ORDER
The ALJ properly considered
Dr.
Kokkino's
chart
note
along
with
the
rest
of
the
record
evidence.
Because
I
conclude
Daugherty's opinion,
and considered Dr.
that
the
ALJ
improperly
rejected
Dr.
but properly rejected plaintiff's testimony
Kokkino' s
chart note alongside other record
evidence, I ultimately agree with plaintiff that the ALJ failed to
carry his burden at Step Five.
IV.
Remand
After finding the ALJ erred,
remand
for
benefits.
further
proceedings
Harman v. Apfel,
this court has discretion to
or
for
immediate
211 F. 3d 1172, 1178
payment
(9th Cir.
The issue turns on the utility of further proceedings.
of
2000).
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
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 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.
18 - OPINION AND ORDER
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
Connett
evidence.
v.
Barnhart, 340 F. 3d 871, 876 (9th Cir. 2003).
It is not clear what effect Dr.
Daugherty's opined resting
limitation would have on the ultimate disability determination, as
it is unclear if such a limitation could be accommodated in the
workplace.
Accordingly, there are outstanding issues that must be
resolved before a
determination of disability can be made,
and
remand is necessary.
On remand, the ALJ must reconsider Dr. Daugherty's opinion.
If the ALJ accepts Dr. Daugherty's opinion, or portions thereof, he
should
revise
testimony.
the
RFC
accordingly
and
obtain
additional
VE
If the ALJ once again rejects Dr. Daugherty's opinion,
he must cite legally sufficient reasons for doing so.
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
19 - OPINION AND ORDER
CONCLUSION
Based
on
the
foregoing,
the
Commissioner's
decision
is
REVERSED, and this case is REl'JANDED pursuant to sentence four of 42
U.S.C. § 405(g) for further administrative proceedings consistent
with this opinion.
IT IS SO ORDERED.
DATED this ~ day of August, 2013.
Malcolm F. Marsh
United States District Judge
20 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?