Carr v. Commissioner, Social Security Administration
Filing
27
OPINION & ORDER: This action is Remanded to the Administration for further proceedings. The Administration should evaluate Carr's September 15,2011 MRI, and reevaluate all the evidence in the record in light of the new evidence, consistent with this opinion. Signed on 7/11/14 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BILL D. CARR,
Plaintiff,
6:13-cv-00521-PK
OPINION AND
ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
P APAK, Magistrate Judge:
Plaintiff Bill D. Carr filed this action on March 26, 2013, seeking judicial review of the
Commissioner of Social Secmity's ("Commissioner") final decision denying his applications for
disability insurance benefits ("DIB") and supplemental secmity income ("SSI") under Titles II
and XVI of the Social Security Act ("the Act"). This court has jurisdiction over Can's action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). All pmiies have consented to a Magistrate
Judge in accordance with Federal Rule of Civil Procedure 73 and 28 U.S. C.§ 636(c). I have
Page 1 - OPINION AND ORDER
considered the parties' briefs and all of the evidence in the administrative record. Por the reasons
set forth below, this case is remanded for further administrative proceedings.
DISABILTY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically detetminable
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 detetmining whether a claimant has made the requisite demonstration. See
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.P.R.§§ 404.1520(a)(4),
416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only
at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v.
Apfel, 180 P.3d 1094, 1098 (9th Cir. 1999).
At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work
activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.P.R.§§ 404.1520(a)(4)(i),
416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the
claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.P.R. §§
404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will
proceed to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impaitments.
See Bowen, 482 U.S. at 140-141; see also 20 C.P.R.§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment is "severe" if it significantly limits the claimant's ability to perform basic work
activities and is expected to persist for a period of twelve months or longer. See Bowen, 482
U.S. at 141; see also 20 C.P.R.§§ 404.1520(c), 416.920(c). The ability to perform basic work
Page 2- OPINION AND ORDER
activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§
404.1521(b), 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's
impairments are not severe or do not meet the duration requirement, the claimant will be found
not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c),
416.920(a)(4)(ii), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a
de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273,
1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impairment or combination of
impainnents can be found 'not severe' only if the evidence establishes a slight abnormality that
has 'no more than a minimal effect on an individual[']s ability to work." !d., quoting SSR 85-28,
1985 WL 56856, at *3 (1985).
If the claimant's impairments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impairments meet or equal "one of a number of
listed impahments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one
of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will
conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)( 4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d).
If the claimant's impahments are not equivalent to one of the enumerated impairments,
between the third and the fomih steps the ALJ is required to assess the claimant's residual
functional capacity ("RFC"), based on all the relevant medical and other evidence in the
claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of the
claimant's capacity to perf01m sustained, work-related physical and/or mental activities on a
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regular and continuing basis, 1 despite the limitations imposed by the claimant's impaitments. See
20 C.F.R. §§ 404.1545(a), 416.945(a); see also SSR 96-8p, 1996 WL 374184 (July 2, 1996).
At the fomih step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ dete1mines that
the claimant can still perform his or her past relevant work, the claimant will be found not
disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable ofperf01ming his or
her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden
of proof shifts, for the first time, to the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to detetmine whether a person with those
characteristics and RFC could perform any jobs that exist in significant numbers in the national
economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner
meets her burden to demonstrate the existence in significant numbers in the national economy of
jobs capable of being performed by a person with the RFC assessed by the ALJ between the third
and fomih steps of the five-step process, the claimant is found not to be disabled. See Bowen,
482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566,
416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits
1
"A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent
work schedule." SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).
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if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see
also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
LEGAL STANDARD
A reviewing court must affirm an ALJ's decision if the ALJ applied proper legal
standards and his or her findings are supported by substantial evidence in the record. See 42
U.S.C. § 405(g); see also Batson v. Comm'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). "'Substantial evidence' means more than a mere scintilla, but less than a preponderance; it
is such relevant evidence as a reasonable person might accept as adequate to support a
conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The court must review the record as a whole, "weighing both the evidence that supports
and the evidence that detracts from the Commissioner's conclusion." !d., quoting Reddick v.
Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of
the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlundv. Jv!assanari, 253
F.3d 1152, 1156 (9th Cir. 2001). Moreover, the couti may not rely upon its own independent
findings offact in detetmining whether the ALJ's findings are supported by substantial evidence
of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chene1y
Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is
immaterial that the evidence may be "susceptible [of! more than one rational interpretation."
Magallanes v. Bowen, 881 F.2d 747,750 (9th Cir. 1989), citing Gallantv. Heckler, 753 F.2d
1450, 1453 (9th Cir. 1984).
Page 5 - OPINION AND ORDER
SUMMARY OF ADMINISTRATIVE RECORD
I.
Procedural Background
Can.2 protectively filed for DIB and SSI under Titles II and XVI of the Act on April 9,
2009, asserting a disability onset date of April30, 1998, which was later amended to December
20, 2003, at Carr's request. Tr. 23, 42? Both claims were initially denied on September 23,
2009, and again on reconsideration on February 8, 2010. Tr. 74, 85. On Febmary 16,2010, Carr
requested a hearing before an ALJ, which was held, via video teleconference, on June 9, 2011.
Tr. 90, 38-65. Carr was represented by legal counsel. Tr. 23. The ALJ issued a decision on
August 19,2011, finding Carr not disabled. Tr. 20-32. Carr then obtained additional medical
evidence of his disability, which he submitted for review to the Appeals Council. Tr. 634, 19.
On Febmary 23,2013, the Appeals Council denied Carr's request for review. Tr. 1-3. Carr now
appeals to this court.
II.
ALJ's Findings
At step one of the sequential process outlined above, the ALJ found that Can· had not
engaged in substantial gainful activity since the amended alleged onset date. Tr. 25. At step
two, the ALJ determined that Carr had the following severe physical and mental impahments:
degenerative disc disease of the lumbar spine, complex partial seizure disorder, left shoulder pain
with a possible rotator cuff tear, and major depressive disorder. 4 Tr. 25. At step three, the ALJ
concluded that Carr's impairments, alone or in combination, did not meet or equal a listed
impairment for DIB or SSI pmposes. Tr. 26. The ALJ then assessed Can·'s RFC. She
2
Can· was born on March 12, 1951.
Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative
record filed herein as Docket No. 4.
4
The ALJ found that Carr's diabetes mellitus, hearing loss, and cellulitis of the left leg were nonsevere impairments. Tr. 26. Can· does not dispute these findings.
3
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concluded that Carr had the capacity to perform medium, unskilled work with the following
limitations: (1) he should avoid unprotected heights, moving machinery, and commercial
driving; (2) he should only occasionally interact with co-workers or reach with his left arm to or
above shoulder height; and (3) he should have no public interaction. Tr. 28. At step four, the
ALJ concluded that Carr was unable to perform any past relevant work, but at step five she found
that a person with Carr's limitations could perform jobs existing in significant numbers in the
national economy. Tr. 30-31. The ALJ therefore found Carr not disabled within the meaning of
the Act. Tr. 32.
DISCUSSION
Carr argues that the ALJ erred in assessing his RFC by improperly evaluating his
testimony and the opinions of his treating psychologist and physician and ignoring a finding by
the Oregon Office of Vocational Rehabilitation Services ("OVRS"). Pl.'s Opening Br. 24, 26,
17. He also argues that the ALJ inappropriately directed the vocational expert to testify to the
number of unskilled, medium jobs that exist in the national economy. Pl.'s Opening Br. 28-30.
Furthermore, he assigns error to the ALJ's step-five dete1mination that a significant number of
jobs exist in the national economy that a person with Carr's limitations could perf01m. Pl.'s
Opening Br. 31. Lastly, he asse11s, and the Commissioner now concedes, that the Appeals
Council improperly rejected new evidence and denied review of his case. Pl.'s Opening Br. 2025; Def.'s Br. 6.
For the reasons discussed below, I find that Carr is not entitled to benefits based on all of
the evidence now in the administrative record. I agree with the pmties, however, that the
Appeals Council erred in rejecting the new evidence and denying review of Can·'s case.
Consistent with the Commissioner's request, as discussed below, I find it appropriate to remand
Page 7- OPINION AND ORDER
this matter to the Administration for the purpose of reevaluating the record in light of this new
evidence. While I address and reject Can's other potentially dispositive assignments of enor in
this opinion, upon remand the Administration must reevaluate all of the evidence in suppmi of
Can·'s asserted impairments.
I.
ALJ's Alleged Errors
A.
Carr's Credibility
Carr contends that the ALJ failed to provide a clear and convincing reason, supported by
substantial evidence, for finding his testimony conceming the extent and severity of his
impahments not credible. When a claimant has produced objective medical evidence that could
reasonably be expected to cause the alleged symptoms, and there is no affirmative evidence of
malingering, "the ALJ may reject the claimant's testimony regarding the severity of [the
claimant's] symptoms only if he [or she] makes specific findings stating clear and convincing
reasons for doing so." Smolen, 80 F.3d at 1284, citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th
Cir. 1993). "The ALJ must specify what testimony is not credible and identify the evidence that
undermines the claimant's complaints." Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).
A general asse1iion that the claimant is not credible is insufficient. See Smolen, 80 F.3d at 1284.
Furthermore, the ALJ's decision to discredit the claimant's testimony must be based on
substantial evidence. See Reddick, 157 F. 3d at 720, citing Smolen, 80 F.3d at 1279. If the
"ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not
engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002), citing
},;/organ v. Comm'r ofSoc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).
At his hearing, Can .testified that his back and shoulder problems, seizure disorder, and
depression resulted in physical and mental limitations that prevented him from engaging in
Page 8- OPINION AND ORDER
substantial gainful activity. Carr explained that his back and shoulder pain frequently prevented
him from vacuuming and completely prevented him from mowing the lawn or shoveling. Tr. 49.
He also testified that he had trouble picking items up off the floor, holding small items, reaching
at or above shoulder height with his left arm, repeatedly lifting items at waist level, and bending
and squatting. Tr. 46, 47, 49. Carr further repmied that he experienced pain walking more than
fifty yards on a mild uphill grade or seventy-five to one hundred yards on a flat grade and
sometimes experienced pain from sitting more than forty minutes or standing for any length of
time. Tr. 48. Because of his depression, Carr stated that he had a lack of interest and energy and
easily became frustrated and angry. Tr. 53. He also testified that he had trouble getting along
with others due to mood swings and occasionally lost focus due to attention deficit issues. Tr.
53, 57. Finally, Can· claimed to experience side effects from his seizure medication, including
restlessness and the inability to determine when he was satiated or dehydrated. Tr. 51. Carr
estimated that, on average, the combined effects of his disabilities limited his overall
productivity to one to one-and-a-half hours, five days a week. Tr. 54.
The ALJ found that Carr's "medically determinable impaitments could reasonably be
expected to cause the alleged symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with" the medical record and Can's daily activities. Tr. 29. The ALJ found
Carr's testimony inconsistent with the following evidence: (1) a May 2, 2009 physical
examination in which Dr. Amy Cowan observed that Carr could walk and bend without any
difficulty and had 5/5 motor strength in his upper and lower extremities, Tr. 29, 276-280; (2) the
opinion of Dr. Paul Stoltzfus, who performed a mental status examination on Carr on September
13, 2009, and concluded that Can· was mildly depressed but did not have a major depressive
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disorder, did not appear to be in any pain or discomfort, was able to pay attention and
concentrate during his interview, and recalled 3/3 items immediately and 2/3 items after five
minutes, Tr. 29, 387; (3) Carr's own statement to his treating psychologist, Dr. David Freed,
during a treatment session on June 29, 2010, that he discontinued using his antidepressant
medication because he was, at the time, feeling "ok," Tr. 29-30, 582; (4) an October 20,2010
brain magnetic resonance imaging ("MRI") that "proved unremarkable," Tr. 29, 438; (5) a
February 17, 2011 electroencephalography that "was normal," Tr. 29, 455; (6) the absence of
medical records showing that Carr had "undergone any actual treatment for his impairments," Tr.
30; (7) the absence of medical records to corroborate his allegations of experiencing side effects
from his medication, Tr. 30; and (8) Carr's hearing testimony that he was able to maintain a small
garden, do laundry, sweep, shop, occasionally cook, wash dishes, and lift a case of twenty-four
soda cans into a shopping cart, Tr. 30, 46-50.
CatT's limitation testimony was contradicted by substantial medical evidence in the record
and by his own account of his daily activities. The ALJ identified these contradictions in her
decision, providing clear and convincing reasons, supported by substantial evidence, for
discrediting Carr's testimony. The ALJ's credibility finding is therefore sustained.
B.
Weight Accorded to Treating Doctor's Opinion
CatT next contends that the ALJ improperly accorded little weight to the opinion of Dr.
Freed, his treating psychologist. In weighing the medical evidence in the record, the
Commissioner generally affords enhanced weight to treating doctors' opinions. See 20 C.F .R. §
404.1527(d)(2). Indeed, where these opinions are well supported by diagnostic techniques and
are not inconsistent with other medical evidence in the record, treating doctors' opinions are
accorded controlling weight. See id. Even where a treating doctor's opinion is contradicted by
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competent medical evidence, it is still entitled to deference. See id.; see also, e.g., Orn v. Astrue,
495 F.3d 625, 631-632 (9th Cir. 2007) (treating doctor's opinion contradicted by medical
evidence in the record "still entitled to deference"), quoting SSR 96-2p, 1996 WL 374188, at *4
(July 2, 1996).
The ALJ may reject a treating doctor's opinion because it is contradicted by an examining
doctor's opinion if the ALJ provides specific and legitimate reasons for doing so. See, e.g.,
Valentine v. Comm'r ofSoc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009), quoting Thomas,
278 F.3d at 957; Holohan v. }vfassanari, 246 F.3d 1195, 1202 (9th Cir. 2001), citing Lester v.
Chafer, 81 F.3d 821, 830 (9th Cir. 1995). These reasons must be supported by substantial
evidence in the record. See Valentine, 574 F.3d at 692, quoting Thomas, 278 F.3d at 957. To
meet this burden, the ALJ may provide "a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his [or her] interpretation thereof, and making findings."
J\lfagallanes, 881 F.2d at 751, citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986); see
also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (affi1ming "the long-settled rule that
we will not set aside the denial of a disability claim unless 'the Secretary's findings are not
supported by substantial evidence in the record as a whole"'), quoting Stone v. Heckler, 761 F.2d
530, 531 (9th Cir. 1985).
In this case, the ALJ accorded little weight to Dr. Freed's opinion because "the objective
medical evidence of record fails to support it." Tr. 30. On a medical source statement dated
May 18,2011, Dr. Freed stated that Can had experienced four or more episodes of
decompensation in the past year. Tr. 616. The ALJ, however, found that "[t]he medical record
does not contain instances of repeated decompensation." Tr. 27. Dr. Freed fmiher opined that,
to work on a regular and continuing basis, Can would need frequent breaks of variable length,
Page II -OPINION AND ORDER
more than four hours of rest during each eight-hour workday, and could be expected to miss at
least four days of work per month due to "both physical and psychological limitations,"
including back, neck, and shoulder pain, mental illness, and his seizure disorder. Tr. 614-617.
The ALJ cited three pieces of evidence in the record that contradicted Dr. Freed's opinion: (1)
Dr. Stoltzfus's September 2009 opinion that Can did not have a major depressive disorder or
severe limitations of memory or concentration, Tr. 29, 387; (2) Carr's June 2010 statement to Dr.
Freed that he was feeling "ok," Tr. 29-30, 582; and, to the extent that Dr. Freed's opinion was
based on his assessment of Can·'s physical limitations, (3) Dr. Cowan's May 2009 opinion that
Can's physical strength and mobility were not severely impaired, Tr. 29, 276-280.
Dr. Freed's opinion was contradicted by medical evidence in the record. The ALJ was
therefore not required to accord it controlling weight. See, e.g., Valentine, 574 F.3d at 692;
Holohan, 246 F.3d at 1202, citing Lester, 81 F.3d at 830. It was within the ALJ's discretion to
accord greater weight to the opinions of Drs. Stoltzfus and Cowan and to credit Can's statement
conceming his discontinued used of medication. Because the ALJ provided specific and
legitimate reasons for according little weight to Dr. Freed's opinion, the ALJ's treatment of Dr.
Freed's opinion provides no grounds for disturbing the Commissioner's final decision.
C.
Other Assignments of Error
Carr also asserts that the ALJ should have accorded greater weight to the opinion of his
treating physician, Dr. David Edmonds, should have considered the OVRS's disability finding,
should not have proposed a hypothetical that directed the vocational expert to assess the number
of unskilled, medium jobs in the national economy, and should not have considered the
vocational expett's testimony on the number of jobs that a person with Can's limitations could
perf01m in Oregon as dispositive of whether a significant number of jobs existed within the
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national economy. Pl.'s Opening Br. 17, 28, 31. Even ifi were to agree with Can on these
issues and find in addition that these enors were not harmless, a direct award of benefits would
not be merited in the instant case. Because I remand this case for the reasons set forth below and
direct the ALJ to reconsider all of evidence in the record in light of the results of Carr's
September 20 II MRI, it is unnecessary to address Can·'s remaining claims that the ALJ erred.
II.
New Evidence
The Appeals Council must consider new evidence submitted by the claimant when that
evidence is material and the claimant had good cause for failing to incorporate it into the record.
42 U.S.C. § 405(g); see also 1\Iayes v. kfassanari, 276 F.3d 453,461-462 (9th Cir. 2001).
"[E]vidence is sufficiently material ... 'only where there is a reasonable possibility that the new
evidence would have changed the outcome of the Secretary's detetmination had it been before
him."' Booz v. Sec'y ofHealth & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984), quoting
Dorsey v. Heckler, 702 F.2d 597,604-605 (5th Cir. 1983); see also Mayes, 276 F.3d at 462
("Booz governs the materiality inquiry."). The new evidence must have a "'direct[] and
substantial[]"' bearing on the disputed issue. lvfayes, 276 F.3d at 462, quoting Ward v.
Schweiker, 686 F.2d 762, 764 (9th Cir. 1982). To establish good cause, the claimant must show
that the new evidence was unavailable and could not have been obtained prior to the hearing
before the ALJ. Id at 463, citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). The
claimant cannot "meet the good cause requirement simply by obtaining a more favorable rep01t
from an expett witness once his claim is denied. The claimant must establish good cause for not
seeking the expett's opinion prior to the denial of his claim." Clem v. Sullivan, 894 F.2d 328,
332 (9th Cir. 1990) (citation omitted); see also ,1,;Jayes, 276 F.3d at 462 ("Clem governs the good
cause inquiry.").
Page 13 -OPINION AND ORDER
Can's September 15, 2011 MRI, which he submitted to the Appeals Council as new
evidence, satisfies both requirements. It is material to detetmining properly the extent of his
impaitment. The ALJ found that Carr's "statements concerning the intensity, persistence and
limiting effects of [his] symptoms [were] not credible" and there was "[o]bjective medical
evidence inconsistent with [Can's] allegations of disability." Tr. 29. Among other medical
evidence presented in the record, Can·'s April2001 MRI showed disc desiccation at L5-Sl. Tr.
305. Can's September 2011 MRI, however, showed that his back condition had deteriorated;
L5-S 1 was now herniated. Tr. 678. Evidence of a more severe condition bears directly and
substantially on a proper assessment of the degree to which Can's impairments limit his ability to
work. At the time of her decision, the ALJ did not have the opportunity to evaluate the
administrative record in consideration of this new, objective medical evidence.
Can· also had good cause for not including the results of his September 2011 MRI in his
medical record. At the time of his hearing, Carr had not undergone the MRI study. And there is
no evidence that Carr "simply ... obtain[ed] a more favorable report from an expett witness
once his claim [was] denied." Clem, 894 F.2d at 332. To the contrary, Carr underwent the
September 2011 MRI when he visited the emergency room for an unrelated injury and was "in so
much pain that he [was] unable to sit and [had] to be examined standing up." Tr. 632.
Moreover, Dr. Edmonds's notes from September 1, 2011, indicate that he had previously
requested that Can· receive an MRI, but this request had been denied. Tr. 670.
The Commissioner concedes that the ALJ should reevaluate Can's medical record in light
of his September 2011 MRI results. Because this evidence is material and Can had good reason
for not previously including it in the medical record, I find that the Appeals Council erred in
rejecting this evidence and denying review of Can·'s applications for DIB and SSI.
Page 14- OPINION AND ORDER
III.
Remand for Further Administrative Proceedings
Upon a claimant's successful appeal of the Commissioner's final decision, this court has
discretion to remand an administrative action for corrective proceedings, or to reverse or modify
the Commissioner's final decision without futiher proceedings. See 42 U.S.C. § 405(g); see also
Harman v. Apfel, 211 F.3d 1172, 1177-1178 (9th Cir. 2000). This court may remand for an
immediate award of benefits only when the record before it clearly shows that the claimant "is, in
fact, disabled." Strauss v. Comm'r ofSoc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
This decision tums on the utility offutiher proceedings. Id., quoting Benecke v. Barnhart, 379
F.3d 587, 593 (9th Cir. 2004). Further administrative proceedings serve no useful purpose where
the record has been fully developed and the following tlu·ee criteria have been met:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence;
(2) there are no outstanding issues that must be resolved before a detetmination 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., quoting Benecke, 379 F.3d at 593. When these criteria are satisfied, the proper course is to
"remand for an immediate award of benefits." Id., quoting Benecke, 379 F.3d at 593. More
typically, though, "'the proper course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation."' Benecke, 379 F.3d at 593, quoting INS v. Ventura,
537 U.S. 12, 16 (2002).
Ca11' argues that his September 2011 MRI is sufficient evidence of impairment such that
the Commissioner would now be required to find him disabled. I find this argument
unpersuasive. The MRI does not clearly establish that Carr's degenerative disc disease, either
alone or in combination with his other impairments, meets or equals the severity of one of the
listed impairments. See 20 C.F.R. § 404, subpt. P, app. 1, § 1.04 (defining criteria for listed
disorders of the spine).
Page 15- OPINION AND ORDER
Moreover, Carr has not convincingly argued that, in light of this new evidence, "there are
no outstanding issues that must be resolved before a determination of disability can be made."
Strauss, 635 F.3d at 1138, quoting Benecke, 379 F.3d at 593. Instead, it remains umesolved how
severely, and in what ways, Carr's disabilities limit his capacity to work. In her decision based
upon the evidence then in the record, the ALJ discredited Carr's testimony and accorded little
weight to the opinions of Drs. Freed and Edmonds, both of whom opined that Carr had
substantial work limitations. Based on the new evidence Carr submitted to the Appeals Council,
it is necessary for the ALJ to reevaluate the extent and severity of Can·'s impairments and
reassess his RFC. Specifically, in light of the September 2011 MRI, the ALJ must reconsider the
credibility of Carr's testimony and reconsider the weight accorded to each of the expert medical
opinions in the record5 and the weight, if any, accorded to the OVRS's finding. See Elstun v.
Comm'r Soc. Sec. Admin., No. 6:12-cv-01811-MA, 2013 WL 5573014, at *8 (D. Or. Oct. 9,
2013) ("The ALJ clearly ened in considering the [OVRS's] disability determination because she
failed to explain the consideration it was given."); see also SSR 06-03p, 2006 WL 2329939, at
*6 (Aug. 9, 2006) ("[E]vidence of a disability decision by another governmental or
nongovemmental agency cannot be ignored and must be considered."); 1\IcCartey v. lvfassanari,
298 F.3d 1072, 1076 (9th Cir. 2002) (holding that where there is a marked similarity between
two federal disability programs, the ALJ must accord great weight to other agency's disability
determination). The court cannot determine whether Carr's new MRl makes his limitation
testimony credible or whether Drs. Freed and Edmonds's opinions and the OVRS's disability
finding now deserve more weight. This detennination is appropriately left to the Administration.
See 42 U.S. C. § 405(g); see also Connett, 340 F.3d at 874.
5
This includes reconsideration of Dr. Freed's opinions to the extent that his opinions conceming
Carr's mental impairments are related to his assessment of Can's physical impairments.
Page 16- OPINION AND ORDER
CONCLUSION
For the reasons set forth above, this action is remanded to the Administration for further
proceedings. The Administration should evaluate Carr's September 15,2011 MRI, and
reevaluate all the evidence in the record in light of the new evidence, consistent with this
opinion.
IT IS SO ORDERED.
t \'~""
DATED this~ay of July, 2014.
Paul Papak
United States Magistrate Judge
Page 17- OPINION AND ORDER
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