Camky v. Commissioner, Social Security Administration
Filing
20
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. See attached 22 page Opinion and Order for full text. Signed on 12/2/2013 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SCOTT D. CAMKY,
Plaintiff,
6:12-cv-01973-BR
OPINION AND ORDER
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
DREW L. JOHNSON
Drew L. Johnson, P.C.
1700 Valley River Drive
Eugene, OR 97405
(541) 434-6466
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1 - OPINION AND ORDER
KATHRYN TASSINARI
Harder, Wells, Baron & Manning, P.C.
474 Willamette
Suite 200
Eugene, OR 97401
(541) 686-1969
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
KATHRYN ANN MILLER
MATHEW W. PILE
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2240
(206) 615-3760
Attorneys for Defendant
BROWN, Judge.
Plaintiff Scott D. Camky seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act and Supplemental Security Income (SSI)
payments under Title XVI.
This Court has jurisdiction to review the Commissioner's
2 - OPINION AND ORDER
decision pursuant to 42 U.S.C. § 405(g).
For the reasons that
follow, the Court REVERSES the decision of the Commissioner and
REMANDS this matter pursuant to sentence four of 42 U.S.C.
§ 405(g) for further administrative proceedings consistent with
this Opinion and Order.
ADMINISTRATIVE HISTORY
Plaintiff filed his applications for DIB and SSI on
November 2, 2009.
Tr. 11.
The applications were denied
initially and on reconsideration.
An Administrative Law Judge
(ALJ) held a hearing on June 16, 2011.
Tr. 11.
Plaintiff was not represented by an attorney.
At the hearing
Plaintiff, lay-
witness Aubrey Harding, and a vocational expert (VE) testified at
the hearing.
Tr. 11.
The ALJ issued a decision on July 26, 2011, in which he
found Plaintiff is not entitled to benefits.
Tr. 28.
That
decision became the final decision of the Commissioner on
September 5, 2012, when the Appeals Council denied Plaintiff's
request for review.
Tr. 1.
BACKGROUND
Plaintiff was born on April 28, 1976, and was 35 years old
at the time of the hearing.
Tr. 45.
school with special education.”
3 - OPINION AND ORDER
Plaintiff completed “high
Tr. 45.
Plaintiff does not have
any past relevant work experience.
Tr. 27.
Plaintiff alleges disability since November 1, 2005, due to
blindness in his right eye, being a “slow learner,” bipolar
disorder, post-traumatic stress disorder (PTSD), urinary
incontinence, a torn meniscus in his left knee, a hand injury,
anger problems, and reflex sympathetic dystrophy.
Tr. 11, 14,
49, 56, 197.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 13-28.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate his
inability "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."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
4 - OPINION AND ORDER
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g).
See also Brewes v. Comm’r of Soc. Sec.
Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial
evidence is “relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.”
Molina, 674 F.3d.
at 1110-11 (quoting Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009)).
It is more than a “mere
scintilla” of evidence but less than a preponderance.
Id.
(citing Valentine, 574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
5 - OPINION AND ORDER
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
Keyser v. Comm’r of Soc. Sec. Admin., 648
F.3d 721, 724 (9th Cir. 2011).
See also Parra v. Astrue, 481
F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520, 416.920.
Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).
See
also Keyser, 648 F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii), 416.920(a)(4)(ii).
20 C.F.R. §§ 404.1509,
See also Keyser, 648 F.3d
at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
6 - OPINION AND ORDER
20 C.F.R.
See also Keyser, 648
F.3d at 724.
The criteria for the listed impairments, known as
Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.
See also Social Security Ruling
“A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule.”
at *1.
20 C.F.R.
SSR 96-8p,
In other words, the Social Security Act does not require
complete incapacity to be disabled.
Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
The assessment of
a claimant's RFC is at the heart of Steps Four and Five of the
sequential analysis when the ALJ is determining whether a
claimant can still work despite severe medical impairments.
An
improper evaluation of the claimant's ability to perform specific
work-related functions “could make the difference between a
finding of 'disabled' and 'not disabled.'”
SSR 96-8p, at *4.
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
7 - OPINION AND ORDER
20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
Here the
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).
The Commissioner may satisfy this burden through the
testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.
If the Commissioner meets this burden,
the claimant is not disabled.
20 C.F.R. §§ 404.1520(g)(1),
416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since November 1, 2005, his
alleged onset date.
Tr. 13.
At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative joint disease of the left knee,
borderline intellectual function, bipolar disorder, anti-social
personality disorder, and obesity.
Tr. 13.
At Step Three the ALJ found Plaintiff’s impairments do not
8 - OPINION AND ORDER
meet or equal the criteria for any impairment in the Listing of
Impairments.
Tr. 14-17.
The ALJ found Plaintiff can perform
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
with the following additional limitations:
“He can occasionally
climb ramps or stairs but can never climb ladders, ropes, or
scaffolds.
frequently.
He can perform other postural activities only
He should have no work at unprotected heights and
none in the vicinity of moving machinery.
He is limited to
performing work which involves simple, 1-2 step tasks.”
Tr. 18.
At Step Four the ALJ concluded Plaintiff does not have any
past relevant work experience.
Tr. 27.
At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy such as a
bakery worker, garment folder, or basket filler.
38.
Tr. 27-28. Tr.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected the opinion of examining psychologist William A.
McConochie, Ph.D.; (2) failed to develop the record as to
Plaintiff’s mental illness, alleged blindness, urinary
incontinence, and knee injury; and (3) provided an improper
hypothetical to the VE.
9 - OPINION AND ORDER
I.
Medical Evidence
Plaintiff contends the ALJ erred when he rejected the
opinion of Dr. McConochie, examining psychologist.
A.
Standard
An ALJ may reject an examining or treating physician's
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes “findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record.”
Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
When the medical
opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give “clear and convincing reasons” for
rejecting it.
Thomas, 278 F.3d at 957.
See also Lester v.
Chater, 81 F.3d 821, 830-32 (9th Cir. 1995).
Generally the more
consistent an opinion is with the record as a whole, the more
weight an opinion should be given.
20 C.F.R. § 416.927(c)(4).
A nonexamining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
“The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.”
Id. at 831.
a nonexamining physician’s opinion contradicts an examining
physician’s opinion and the ALJ gives greater weight to the
10 - OPINION AND ORDER
When
nonexamining physician's opinion, the ALJ must articulate his
reasons for doing so.
See, e.g., Morgan v. Comm'r of Soc. Sec.
Admin, 169 F.3d 595, 600-01 (9th Cir. 1999).
A nonexamining
physician’s opinion can constitute substantial evidence if it is
supported by other evidence in the record.
B.
Id. at 600.
Opinion of Dr. McConochie
Dr. McConochie performed a Psychodiagnostic Evaluation of
Plaintiff on March 4, 2010, at the request of Disability
Determination Services (DDS)2 to “clarify possible evidence of
bipolar disorder.”
Tr. 578.
The background information that DDS
provided to Dr. McConochie “consisted only of a function report
completed by [Plaintiff].”
Tr. 578.
Dr. McConochie noted
Plaintiff complained of PTSD, bipolar disorder, and problems with
his left hand and knee.
Tr.
578.
Dr. McConochie observed
Plaintiff’s “speech was clear, eye contact is good, thought
content is relevant and logical and affect his [sic] within
normal limits.”
Tr. 580.
Dr. McConochie noted Plaintiff
reported he “has been knocked out numerous times in fights and
once in 1995 when he was on a bicycle and hit by a car,” “has
difficulty controlling his temper,” and “hit a guy in public just
two weeks ago.”
Tr. 580.
2
Dr. McConochie also opined Plaintiff
DDS is a federally-funded state agency that makes
eligibility determinations on behalf and under the supervision of
the Social Security Administration pursuant to 42 U.S.C.
§ 421(a).
11 - OPINION AND ORDER
“has a variety of symptoms suggestive of possible brain damage.”
Tr. 581.
Based on Plaintiff’s “history of special education, his
interview style and his response to interview questions,”
Dr. McConochie estimated Plaintiff has a verbal intelligence
quotient (IQ) between 70 and 75 and functions in the “low
borderline range of intelligence.”
Tr. 581.
The ALJ noted,
however, “Dr. McConochie did not perform any recognized
intelligence testing.”
Tr. 25.
Dr. McConochie gave Plaintiff an Axis I diagnosis of
“Bipolar II Disorder,” an Axis II diagnosis of antisocial
personality disorder, and an Axis III diagnosis of “numerous
congenital problems, as well as left hand damage and possible
brain damage . . . .
and headaches.”
Partial blindness, knee and foot problems,
Tr. 582.
Dr. McConochie opined Plaintiff is mildly-to-moderately
impaired in his ability to understand and to remember
instruction; moderately-to-severely impaired in his ability to
sustain concentration, attention, and persistence; and moderately
impaired in his ability to engage in appropriate social
interaction.
Tr. 582.
Dr. McConochie concluded Plaintiff’s “primary psychological
limitations to work activity appear to include borderline verbal
intelligence, personality disorder and problems with major
12 - OPINION AND ORDER
depression and apparent manic episodes during which he spends
excessively.
He has anger management problems.
assistance in managing money.”
He needs
Tr. 582-83.
The ALJ gave little weight to Dr. McConochie’s opinion on
the ground that it was “based entirely on [Plaintiff’s]
statements” and not otherwise supported by the record.
The ALJ found Plaintiff has “problems with lying.”
Tr. 26.
Tr. 22.
In fact, Plaintiff described himself as a “pathological liar” and
admitted he “has a pathological tendency to confabulate,” and
“embellishes everything he says to impress people.”
345; Pl.’s Reply Br. at 2.
Tr. 366,
In light of these tendencies, the ALJ
concluded Plaintiff was not entirely credible as to the
intensity, persistence, and limiting effects of his symptoms.
Tr. 23.
Plaintiff has not challenged the ALJ’s finding as to his
credibility.
Tr. 23.
The Court concludes on this record that the ALJ did not err
when he rejected the part of Dr. McConochie’s opinion that was
based solely on Plaintiff’s self-reporting because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
Part of Dr. McConochie’s
opinion, however, was based on his observations and impressions
of Plaintiff during his examination of Plaintiff, including his
estimate of Plaintiff’s verbal IQ and his opinion that Plaintiff
may have brain damage.
13 - OPINION AND ORDER
Accordingly, the Court concludes the ALJ
erred when he rejected this part of Dr. McConochie’s opinion
without developing the record further.
II.
Development of the Record
Plaintiff contends the ALJ erred when he failed to develop
the record as to Plaintiff’s intelligence, possible brain damage,
possible factitious disorder, blindness in his right eye, urinary
incontinence, and left knee pain.
A.
Standard
As noted, the Commissioner bears the burden of developing
the record.
2001).
Reed v. Massanari, 270 F.3d 838, 841 (9th Cir.
When important medical evidence is incomplete, the ALJ
has a duty to recontact the provider for clarification.
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
20
See also Brown v.
Heckler, 713 F.2d 441, 443 (9th Cir. 1983)(ALJ has a “special
duty to fully and fairly develop the record” even when claimant
is represented by an attorney).
“Critical to the fair and
effective operation of the system for distributing social
security benefits based on disability is the gathering and
presentation of medical evidence.”
Reed v. Massanari, 270 F.3d
838, 841 (9th Cir. 2001)(citation omitted).
Although the burden
to demonstrate a disability lies with the claimant, “it is
equally clear the ALJ has a duty to assist in developing the
record.”
Id. (quotation omitted; citing 20 C.F.R. §§
404.1512(d)-(f), 416.912(d)-(f)).
14 - OPINION AND ORDER
“One of the means available to an ALJ to supplement an
inadequate medical record is to order a consultative examination,
i.e., 'a physical or mental examination or test purchased for [a
claimant] at [the Social Security Administration's] request and
expense.’”
Id. (quoting 20 C.F.R. §§ 404.1519, 416.919).
“[T]he
Commissioner has broad latitude in ordering a consultative
examination.”
Id. at 842 (quotation omitted).
Although the
government is not required to bear the expense of an examination
for every claimant, some cases “normally require a consultative
examination,” including cases in which “additional evidence
needed is not contained in the records of [the claimant’s]
medical sources” and cases involving an “ambiguity or
insufficiency in the evidence [that] must be resolved.”
Id. (quoting 20 C.F.R. §§ 404.1519a(b)(1),(4) and
416.919a(b)(1),(4)).
Particularly when the claimant is unrepresented, the ALJ
must “scrupulously and conscientiously probe into, inquire of,
and explore for all the relevant facts.
He must be especially
diligent in ensuring that favorable as well as unfavorable facts
and circumstances are elicited.”
Higbee v. Sullivan, 975 F.2d
558, 561 (9th Cir. 1992)(citation omitted).
When making disability determinations:
If the evidence is consistent but we do not have
sufficient evidence to decide whether you are
disabled, or if after weighing the evidence we
decide we cannot reach a conclusion about whether
15 - OPINION AND ORDER
you are disabled, we will try to obtain additional
evidence . . . . We will request additional
existing records, recontact your treating sources
or any other examining sources, ask you to undergo
a consultative examination at our expense, or ask
you or others for more information.
20 C.F.R. § 404.1527(c)(3).
B.
Plaintiff’s IQ and Possible Brain Damage
Although the Court has concluded the ALJ properly discounted
Dr. McConochie’s opinion to the extent that it is based on
Plaintiff’s self-reporting, Dr. McConochie’s opinions as to
Plaintiff’s IQ and the possibility that Plaintiff has brain
damage were based at least in part on Dr. McConochie’s own
observations.
Even though Dr. McConochie estimated Plaintiff’s
verbal IQ was between 70 and 75 after interviewing Plaintiff, the
ALJ noted “unfortunately Dr. McConochie did not perform any
recognized intelligence testing.”
Tr. 25.
Dr. McConochie also
concluded Plaintiff has “a variety of symptoms suggestive of
possible brain damage,” but, again, he did not perform any tests
to support this observation.
Tr. 581.
The record also does not
reflect Plaintiff has had an IQ test or has been examined by a
physician to determine whether he has brain damage.
Although the
ALJ found Plaintiff had the impairments of borderline
intellectual functioning, bipolar disorder, and anti-social
personality disorder, the ALJ concluded Plaintiff is not
disabled.
A developed record as to Plaintiff’s IQ and whether he
has possible brain damage, however, may or may not have resulted
16 - OPINION AND ORDER
in a different conclusion as to whether Plaintiff is disabled.
Accordingly, the Court concludes the ALJ erred when he
failed to develop the record further as to Plaintiff’s IQ and
possible brain damage under these circumstances.
C.
Possible Factitious Disorder
In November 2006 Plaintiff saw Robert H. Ablove, M.D.,
treating physician, for swelling in Plaintiff’s left hand.
Dr. Ablove noted:
“Given the pattern of his swelling, we are
concerned about factitious swelling of the hand,” and Dr. Ablove
wanted to “sort out whether this is a factitious disorder or
not.”
Tr. 741.
In July 2006 Jennifer F. Stevens, M.D., another
treating physician, also saw Plaintiff for left hand pain and
swelling that she believed had “no apparent cause.”
Tr. 536.
Dr. Stevens noted Plaintiff was leaving out information in his
report to her, and she wondered whether it was due to a
personality or learning disorder or was intentional.
Tr. 536.
The record does not reflect a follow-up evaluation took place to
determine whether Plaintiff, in fact, has factitious disorder.
Accordingly, the Court concludes the ALJ erred when he
failed to develop the record further as to whether Plaintiff has
factitious disorder, which may or may not have resulted in a
different conclusion as to whether Plaintiff is disabled.
D.
Blindness, Urinary Incontinence, and Knee Pain
Plaintiff stated he testified at the hearing that he has
17 - OPINION AND ORDER
been blind in his right eye since birth, but, as noted by the
ALJ, Plaintiff did not produce any evidence of having had an eye
examination before 2004.
Tr. 14.
The ALJ also noted Plaintiff
testified he needed glasses, but he also stated he could see to
drive without difficulty and the last time he wore glasses was 20
years ago.
Tr. 23, 54, 55.
Plaintiff also complains of urinary incontinence, but, as
the ALJ pointed out, the record reflects Plaintiff “has neither
sought nor obtained any treatment or evaluation apart from one
consultation with a urologist five years ago, in May 2006.”
Tr. 14, 545-47.
Although Plaintiff testified he has to urinate
every 30 minutes, the ALJ noted he was able to sit through the
90-minute hearing without a break.
Tr. 24.
Plaintiff also contends the ALJ failed to develop the record
as to Plaintiff’s left knee pain because in March 2010 DeWayde C.
Perry, M.D., examining physician, recommended an MRI of
Plaintiff’s knee.
Tr. 608.
As noted by the ALJ, however,
Plaintiff failed to follow up on Dr. Perry’s recommendation
despite Plaintiff's complaints about pain.
The existence of blindness in Plaintiff’s right eye, urinary
incontinence, and left knee pain does not appear to be supported
by medical evidence in the record.
As noted, Plaintiff conceded
in his Reply Brief that he has a tendency to confabulate, and he
has not challenged the ALJ’s findings as to his credibility.
18 - OPINION AND ORDER
Accordingly, the Court concludes the ALJ did not err when he
failed to develop the record as to Plaintiff’s alleged
impairments of blindness in his right eye and urinary
incontinence because the only basis for these impairments is
Plaintiff’s self-reporting and the ALJ did not find Plaintiff’s
testimony was credible.
The Court further concludes Plaintiff’s
failure to obtain an MRI as recommended by Dr. Perry is evidence
that his knee pain is not as severe as he alleges and, in any
event, does not trigger the ALJ’s duty to develop the record
further as to this alleged impairment.
III. The ALJ’s hypothetical to the VE
Plaintiff contends the ALJ’s hypothetical posed to the VE
was inadequate because it did not include Dr. McConochie’s
finding that Plaintiff has moderate-to-severe impairment in
concentration, attention, and persistence and did not include
Plaintiff’s social-functioning limitations.
Sandra Lundblad, Psy.D., DDS reviewing physician, agreed
with Dr. McConochie that Plaintiff is moderately limited in his
ability to interact appropriately with the public.
Tr. 601.
Although the ALJ assigned “great weight” to Dr. Lundblad’s
opinion, he did not include this limitation in Plaintiff’s RFC
nor in his hypothetical to the VE and he did not explain why this
limitation was omitted.
Tr. 26.
The Court, therefore, concludes
the ALJ’s omissions and errors may have affected the VE’s opinion
19 - OPINION AND ORDER
as to Plaintiff’s ability to perform jobs that exist in
significant numbers in the national economy.
In addition, the Court has concluded the ALJ erred when he
failed to develop the record sufficiently with respect to
Plaintiff’s IQ, possible brain damage, and possible factitious
disorder.
As a result of the error, the ALJ may have erred in
his assessment of Plaintiff’s RFC, and, accordingly, the ALJ’s
hypothetical posed to the VE may have been inadequate.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for calculation of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
See, e.g., Brewes v. Comm’r Soc.
Sec. Admin., 682 F.3d 1157, 1164 (9th Cir. 2012).
The court may
“direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose.”
Id. (quoting Smolen v. Chater, 80 F.3d
1273, 1292 (9th Cir. 1996)).
The Ninth Circuit has established a three-part test for
determining when evidence should be credited and an immediate
award of benefits directed.
Strauss v. Comm’r of Soc. Sec.
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
20 - OPINION AND ORDER
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.
Id.
The second and third prongs of the test often merge into a
single question:
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
See, e.g.,
Harman v. Apfel, 211 F.3d 1172, 1178 n.2 (9th Cir. 2000).
On this record the Court concludes further proceedings are
necessary.
Because the ALJ did not sufficiently develop the
record as to Plaintiff’s IQ and possible brain damage and
factitious disorder, it is unclear whether Plaintiff suffers from
additional severe impairments and, if so, how these impairments
may have affected the ALJ’s evaluation of Plaintiff’s RFC.
In
addition, if the record had been properly developed as to these
issues and if the ALJ’s hypothetical posed to the VE had included
Plaintiff’s limitations as to social functioning, it is unclear
whether the VE would have concluded that Plaintiff could perform
jobs that exist in significant numbers in the national economy.
Accordingly, the Court remands this matter to the ALJ for
further proceedings (1) to develop the record as to Plaintiff’s
IQ and possible impairments related to factitious disorder and
brain damage and to determine how those impairments, if they
21 - OPINION AND ORDER
exist, affect the ALJ’s evaluation of Plaintiff’s RFC; (2) to
include Plaintiff’s limitation as to social functioning in the
ALJ’s evaluation of Plaintiff’s RFC or to provide reasons
supported by evidence in the record as to why this limitation
does not affect his evaluation of Plaintiff’s RFC; and (3) to
include Plaintiff's social-functioning limitations in his
hypothetical posed to the VE in addition to any limitations found
after further development of the record.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 2nd day of December, 2013.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
22 - 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?