Childers v. Commissioner Social Security Administration

Filing 27

Opinion and Order - The Commissioner's decision that Ms. Childers is capable of performing light work was not supported by substantial evidence in the record, and it is therefore REVERSED and REMANDED for further proceedings. Signed on 2/4/2015 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SHERYL N. CHILDERS,
Plaintiff,

Case No. 6:13-cv-01922-SI
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
James W. Moller, 8655 S.W. Citizens Dr., Ste. 104, Portland, OR 97070. Attorney for Plaintiff.
S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States
Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue,
Suite 600, Portland, OR 97204-2902; Richard M. Rodriguez, Special Assistant United States
Attorney, Office of the General Counsel, Social Security Administration, 701 Fifth Avenue,
Suite 2900 M/S 221A, Seattle, WA 98104-7075. Attorneys for Defendant
Michael H. Simon, District Judge.
Sheryl N. Childers seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying her application for Social Security

PAGE 1 – OPINION AND ORDER

Income (“SSI”) and Disability Insurance Benefits (“DIB”). Because the Commissioner’s
decision is not supported by substantial evidence, the decision is REVERSED and REMANDED
for further proceedings consistent with this opinion.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004).
“However, a reviewing court must consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625,
630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)
(internal quotations omitted)). The reviewing court, however, may not affirm the Commissioner
on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

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BACKGROUND
A. Plaintiff’s Application
Ms. Childers filed applications for SSI and DIB on May 10, 2010, alleging disability as
of March 31, 2006. AR 202, 223, 227. Born on May 28, 1959, Ms. Childers was 53 years old on
the date of the administrative hearing. AR 35. She obtained a GED in 1979 and has past work
experience as an agricultural worker, caregiver, administrative assistant, and accounting clerk.
AR 251, 253, 319. After the Commissioner denied her applications initially and upon
reconsideration, Ms. Childers requested a hearing before an Administrative Law Judge (“ALJ”).
AR 151. After an administrative hearing, held on June 11, 2012, the ALJ found Ms. Childers not
to be disabled. AR 11-21, 29. Ms. Childers sought review of the ALJ’s decision and submitted
additional evidence to the Appeals Council (“AC”). AR 2. The AC admitted the additional
evidence into the record but denied Ms. Childers’s request for review on August 27, 2013. AR 1.
The ALJ’s decision thus became the final decision of the Commissioner, and this appeal
followed.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42
U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20
C.F.R. § 404.1520 (DIB); 20 C.F.R. § 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140
(1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4). The
five-step sequential process asks the following series of questions:
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1.

Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.

2.

Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted
or must be expected to last for a continuous period of at least 12 months.
20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.

3.

Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds beyond step three. At that
point, the ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant’s “residual functional capacity” (“RFC”). This
is an assessment of work-related activities that the claimant may still
perform on a regular and continuing basis, despite any limitations imposed
by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c);
416.920(e); 416.945(b)-(c). After the ALJ determines the claimant’s RFC,
the analysis proceeds to step four.

4.

Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.

5.

Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);
416.960(c). If the claimant cannot perform such work, he or she is
disabled. Id.

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See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566; 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ performed the sequential analysis. At step one, he found that Ms. Childers had
not engaged in substantial gainful activity since March 31, 2006. AR 13. At step two, the ALJ
concluded that Ms. Childers had the following severe impairments: fibromyalgia, cervical spine
degenerative joint disease, and left knee status post meniscectomy and Hauser procedure. Id. At
step three, the ALJ determined that Ms. Childers did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. AR 14.
The ALJ next assessed Ms. Childers’s RFC and found that she could perform light work
with occasional climbing of ramps, stairs, ladders, ropes, and scaffolds, and occasional
balancing, kneeling, stooping, crouching, and crawling. AR 15. At step four, the ALJ found that
Ms. Childers retained the ability to perform her past relevant work as an accounting clerk.
AR 20. At step five, based on the testimony of a vocational expert (“VE”), the ALJ concluded in
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the alternative that Ms. Childers could perform jobs that exist in significant numbers in the
national economy, including floor attendant for a bingo parlor. AR 20-21. Accordingly, the ALJ
found Ms. Childers was not disabled. Id.
DISCUSSION
Ms. Childers argues that the Commissioner erred by (A) improperly evaluating the
medical opinions of three providers; (B) finding Ms. Childers to be not fully credible; and
(C) failing to consider medical evidence submitted after the hearing. Because the ALJ
improperly evaluated the medical evidence, his decision is reversed and remanded for further
proceedings consistent with this opinion.
A. Medical Evidence
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). The
Ninth Circuit distinguishes between the opinions of three types of physicians: treating
physicians, examining physicians, and non-examining physicians. The opinions of treating
physicians are generally accorded greater weight than the opinions of non-treating physicians.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor’s opinion that is not
contradicted by the opinion of another physician can be rejected only for “clear and convincing”
reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991).
If a treating doctor’s opinion is contradicted by the opinion of another physician, the ALJ
must provide “specific, legitimate reasons” for discrediting the treating doctor’s opinion. Murray
v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). In addition, the ALJ generally must accord greater
weight to the opinion of an examining physician than that of a non-examining physician.
Lester, 81 F.3d at 830. As is the case with the opinion of a treating physician, the ALJ must
provide “clear and convincing” reasons for rejecting the uncontradicted opinion of an examining
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physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an examining
physician is contradicted by another physician’s opinion, the ALJ must provide “specific,
legitimate reasons” for discrediting the examining physician’s opinion. Lester, 81 F.3d at 830.
Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance on a
claimant’s discredited subjective complaints, inconsistency with medical records, inconsistency
with a claimant’s testimony, and inconsistency with a claimant’s daily activities. Tommasetti v.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1039. It is error to ignore an
examining physician’s medical opinion without providing reasons for doing so. An ALJ
effectively rejects an opinion when he ignores it. Smolen v. Chater, 80 F.3d 1273, 1286 (9th
Cir. 1996).
1. Orthopedic Surgeon Christopher Walton, M.D.
Ms. Childers first contests the ALJ’s evaluation of Ms. Childers’s knee surgeon,
Christopher Walton, M.D. Dr. Walton performed right-knee arthroscopic surgery for
Ms. Childers’s medial meniscus tear on November 21, 2002. On examination, Dr. Walton
observed unstable grade III changes in the weight-bearing area of the medial femoral condyle
and described “further tearing of the medial meniscus with extension to the peripheral fibers.”
AR 387.
Dr. Walton next evaluated Ms. Childers in April 2005. AR 383-84. He noted that
Ms. Childers reported that both of her knees bother her “all the time,” and diagnosed developing
osteoarthritis in the right knee and a recurrent medial meniscus tear in the left knee. Id.
Dr. Walton recommended injections, hinged knee sleeves for both knees, and left knee
arthroscopic surgery. On August 11, 2005, Ms. Childers underwent left-knee arthroscopic
surgery. AR 378. For post-operation soreness, Dr. Walton provided Ms. Childers with samples of
Celebrex on September 21, 2005. AR 372. Upon examination on October 21, 2005, Ms. Childers
PAGE 7 – OPINION AND ORDER

was noted to be improving but still sore. AR 371. Later that year Dr. Walton opined that
Ms. Childers had early underlying osteoarthritis in both knees. Id.
At step two, the ALJ found that Ms. Childers’s left-knee status post meniscectomy and
Hauser procedure was a severe impairment. AR 13. The ALJ also discussed Ms. Childers’s knee
condition at length, citing to Dr. Walton’s treatment notes in the record. AR 17. Because the ALJ
considered and addressed Dr. Walton’s opinion in his written decision, including his diagnosis of
moderate osteoarthritis, and included appropriate postural accommodations in the RFC, the
Court finds no error in the ALJ’s assessment of Dr. Walton’s opinion. See AR 15-17, 518.
2. Orthopedist Craig Mohler, M.D., and Treating Physician Thea Petersen, M.D.
Ms. Childers next argues that the ALJ improperly rejected the opinions of Craig Mohler,
M.D., and Thea Petersen, M.D. Dr. Mohler examined Ms. Childers for the first time on March 7,
2011. AR 521-23. Dr. Mohler observed that Ms. Childers reported constant pain over the right
medial aspect of her right knee for the past year. He noted various positive findings and
discussed total right-knee arthroplasty with Ms. Childers. Id. Dr. Mohler also noted that he
concurred with the opinion of Christopher Park, ORT, who performed a functional capacity
evaluation on March 29, 2012. AR 565. Mr. Park’s examination revealed that Ms. Childers could
perform sedentary-light work with occasional standing and walking, and frequent sitting.
AR 553-60.
Dr. Petersen first examined Ms. Childers on July 26, 2011. AR 450-51. Dr. Petersen
established care as Ms. Childers’s treating physician. Id. Dr. Petersen concurred with Dr. Park’s
physical capacity evaluation regarding Ms. Childers’s limitations. AR 19, 450, 564-65. 567.
Dr. Petersen opined that Ms. Childers could lift fifteen pounds occasionally and five pounds
frequently. AR 564.

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The ALJ gave some weight to these assessments, but ultimately found that Ms. Childers
could perform light lifting and that she had no limitations on standing or walking. AR 19. The
ALJ instead credited the opinions of the state agency medical consultants, who assessed
limitations in contrast with the opinions of Dr. Mohler and Dr. Petersen. AR 18-19. For example,
consultative physician Kurt Brewster, M.D., opined that Ms. Childers can perform light work
and retained the ability to lift twenty pounds maximum and ten pounds frequently. AR 398.
Consultative physician DeWayde Perry, M.D. also opined that Ms. Childers was capable of
performing medium work, lifting fifty pounds occasionally, and frequently lifting twenty-five
pounds. AR 546-52. Although the ALJ gave substantial weight to the opinions of the
consultative physicians, he was still required to provide specific, legitimate reasons for rejecting
the controverted opinions of Drs. Mohler and Petersen. See Lester, 81 F.3d at 830.
The ALJ rejected the opinions of Drs. Mohler and Petersen. AR 19. First, he noted that
their opinions were inconsistent with examination and treatment records, due in part to the
absence of “significant neurological findings” in the record. Id. The Commissioner expands on
this reasoning, arguing that physical examinations confirmed that Ms. Childers has “no
significant motor or sensory deficits in the lower extremities, normal coordination, full range of
motion, and normal gait and station.” Def.’s Br. 13; AR 16, 19, 396-98, 452, 464, 487, 544-46.
The Court rejects this argument. The evidence discussed by the Commissioner does not
contradict the specific findings and limitations noted by Drs. Mohler and Petersen. Specifically, a
lack of motor or sensory deficits does not impugn, for example, Dr. Petersen’s restrictions on
lifting. Because the Commissioner has not shown inconsistency within the examination and
treatment records of the opinions at issue, the ALJ’s finding that these opinions were inconsistent

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with the examination and treatment records was not a specific, legitimate reason for rejecting
them. See Lester, 81 F.3d at 830.
Second, the ALJ found that the opinions of Drs. Mohler and Petersen were inconsistent
with evidence that Ms. Childers responded well to treatment and medication. For example, the
Commissioner notes that Ms. Childers responded well to physical therapy, AR 498, and that her
left knee improved after surgery. AR 17, 380, 578. The Commissioner also points out that
Ms. Childers’s pain symptoms were managed by amitriptyline and Zanaflex. AR 16-17, 463-64.
The Court rejects this argument. While the record contains some evidence that Ms. Childers’s
condition improved with medication, her overall medical history reveals ongoing intractable
knee pain and an inconsistent response to medication over time. See, e.g., AR 454 (note from
Dr. Petersen recommending a trial of methocarbamol because previous medication “did not work
well for her”), 464 (note from medical provider diagnosing “chronic intractable pain of the
cervical spine due to degenerative disc disease,” despite some successful pain management using
Zanaflex). Thus, the evidence of short-lived favorable responses to medication and treatment in
the record is not a legally sufficient reason to reject the opinions of Drs. Mohler and Petersen.
In sum, the ALJ failed to provide sufficient specific, legitimate reasons for rejecting the
opinions of these providers. The Commissioner’s decision should therefore be reversed.1
B. Credibility
Ms. Childers next argues that the ALJ improperly rejected her credibility. There is a twostep process for evaluating the credibility of a claimant’s own testimony about the severity and
1

The Commissioner also argues that the ALJ did not err in his evaluation of the medical
evidence because Drs. Petersen and Mohler did not offer any specific functional limitations aside
from their concurrence with Dr. Park’s physical capacity evaluation. Def.’s Br. 12; AR 19, 567.
This is, first, inaccurate; both providers noted specific limitations in their written assessments.
See AR 564. Further, the fact that these providers concurred with Dr. Park does not absolve the
ALJ of his responsibility to provide legally sufficient reasons for rejecting their opinions.
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limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)
(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “First, the ALJ must
determine whether the claimant has presented objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other symptoms alleged.”
Lingenfelter, 504 F.3d at 1036 (quotation marks and citation omitted). When doing so, the
claimant “need not show that her impairment could reasonably be expected to cause the severity
of the symptom she has alleged; she need only show that it could reasonably have caused some
degree of the symptom.” Smolen, 80 F.3d at 1282.
Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)).
The ALJ may consider objective medical evidence and the claimant’s treatment history,
as well as the claimant’s daily activities, work record, and the observations of physicians and
third parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d
at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location,
duration, frequency, and intensity of the individual’s pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any

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medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other
than medication, the individual receives or has received for relief of pain or other symptoms; and
any measures other than treatment the individual uses or has used to relieve pain or other
symptoms. See SSR 96–7p, available at 1996 WL 374186 (Jul. 2, 1996).
Further, the Ninth Circuit has said that an ALJ “may consider . . . ordinary techniques of
credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements
concerning the symptoms, . . . other testimony by the claimant that appears less than candid[,
and] unexplained or inadequately explained failure to seek treatment or to follow a prescribed
course of treatment.” Smolen, 80 F.3d at 1284. The ALJ may not, however, make a negative
credibility finding “solely because” the claimant’s symptom testimony “is not substantiated
affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883. The ALJ’s credibility
decision may be upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s
testimony are upheld. See Batson, 359 F.3d at 1197.
Ms. Childers testified that she is unable to work due to a combination of physical and
mental impairments. She testified that she has neck and back pain, pain and numbness in her
upper extremities, headaches, knee problems, and trouble sleeping. AR 39. Ms. Childers stated
that she has difficulty working on a computer because of neck and upper back pain, as well as
severe cramping, pain, and numbness in her arms. She stated that her headaches interfere with
her ability to concentrate. AR 39. Ms. Childers also described her knee problems with a history
of multiple surgeries, including total knee replacement on the right. She has difficulty standing,
walking, and balancing. AR 44.
The ALJ rejected Ms. Childers’s testimony as to the nature and extent of her limitations. AR 1420. First, he found that Ms. Childers’s conservative treatment record contradicted her testimony

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as to the severity of her pain. Id. Conservative treatment can be “sufficient to discount a
claimant’s testimony regarding [the] severity of an impairment.” Parra v. Astrue, 481 F.3d 742,
750-51 (9th Cir. 2007). Further, an “individual’s statements may be less credible if … the
medical reports or records show that the individual is not following the treatment as prescribed
and there are no good reasons for this failure.” SSR 96-7p, available at 1996 WL 374186. Here,
despite her complaints of pain, Ms. Childers testified that she did not take prescription pain
medication. AR 14, 42, 45. She further testified, however, that she tries to avoid taking
prescription medication for health reasons and due to side effects.2 Id. Further, she stated that she
uses prescription medication such as Hydrocodone and Oxycodone when the pain is intolerable,
as well as ibuprofen, extra-strength Tylenol, and medical marijuana. AR 42, 50. Ms. Childers’s
conservative course of treatment therefore neither bolsters nor undermines her testimony
regarding the severity of her pain and related limitations, because she provided a “good reason”
for her failure to more aggressively treat her pain. See, e.g., Garrison v. Colvin, 759 F.3d 995,
1015 n.19 (9th Cir. 2014); Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012).
Second, the ALJ found that Ms. Childers’s activities after her alleged onset date
undermined her credibility as to the severity of her limitations. AR 13, 18. Evidence of an active
lifestyle can undermine a disability claimant’s credibility, Bray, 554 F.3d at 1226-27, and daily
activities that are inconsistent with alleged symptoms are a relevant credibility consideration.
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ noted that despite her
testimony regarding her limitations, Ms. Childers performed work activities in 2008, 2009,
and 2010. AR 227, 232, 313. Ms. Childers, however, did not perform work at a substantial
gainful level after the alleged onset date of 2006. Her part-time work was limited to a few hours
2

Contrary to the ALJ’s implication, the Court finds that Ms. Childers’s alcohol consumption does not bear
upon her decision not to take prescription pain medication. See AR 15.

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a day, a few days each week, and she ultimately stopped working due to her symptoms. AR 3637, 341, 364. The type and intensity of work Ms. Childers performed after her alleged disability
onset date is entirely consistent with her testimony regarding her symptoms and limitations.
The ALJ also found that Ms. Childers’s daily activities such as doing laundry, cleaning,
sweeping, performing yard work, shopping for groceries, and doing volunteer work contradicted
her subjective symptom testimony. AR 17-18. On close analysis of Ms. Childers’s testimony
regarding her limitations, however, and her statements regarding her ability to perform these
activities occasionally and in short duration, the Court finds no inconsistency. See AR 39, 40, 48,
265, 300-03. In sum, Ms. Childers’s work activity and activities of daily living therefore do not
provide clear and convincing reason to reject her testimony that she was completely disabled
after her alleged onset date. See Rollins, 261 F.3d at 857.
Third, the ALJ found that Ms. Childers responded positively to treatment. Impairments
that can be controlled with medication and conservative treatment are not disabling. Warre v.
Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006). Here, the ALJ noted that Ms. Childers’s pain
improved with medication and physical therapy. AR 17, 463-64, 498. The ALJ also noted Dr.
Mohler’s statement in 2012 that Ms. Childers’s left knee did not require surgery or injections.
AR 17, 578. As discussed above, it was not proper for the ALJ to infer from some positive
responses to medication that Ms. Childers’s condition was easily improved with medication. The
record as a whole reveals that, while Ms. Childers did exhibit some improvement with therapy
and medications, her overall level of pain and limitation remained relatively stable. Ms.
Childers’s sporadically positive responses to treatment therefore do not provide a clear and
convincing reason for rejecting her testimony regarding pain and knee impairments. See Warre,
439 F.3d at 1006.

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Fourth, the ALJ found that Ms. Childers’s statements regarding her limitations were
inconsistent with the objective clinical findings in the record. AR 16. The ALJ may consider
“testimony from physicians . . . concerning the nature, severity, and effect of the symptoms of
which [the claimant] complains” when assessing credibility. Thomas v. Barnhart, 278 F.3d 947,
958–59 (9th Cir. 2002) (quotation marks omitted). Here, the ALJ noted that Ms. Childers’s
cervical MRI findings and consistently negative neurological findings were inconsistent with her
testimony. AR 468-88. Ms. Childers’s medical records also reveal that she ambulates normally
and has normal strength and range of motion, despite allegations of ongoing knee problems.
AR 396-98, 452, 464, 487, 544-46. On this record, the ALJ provided one clear and convincing
reason to support his credibility finding. While Ms. Childers provides an alternative, rational
interpretation of the objective medical findings, the Commissioner’s reasonable conclusion must
be upheld. Burch, 400 F.3d at 679.
3.

Appeals Council’s Rejection of Additional Evidence
Ms. Childers argues, finally, that the Commissioner’s decision should be reversed

because the Appeals Council did not consider two documents submitted after the ALJ’s decision.
Pl.’s Br. 16. In the Ninth Circuit, where the claimant submits evidence after the ALJ’s decision
and the Appeals Council specifically considers that evidence, the administrative record under
review “includes evidence submitted to and considered by the Appeals Council.” Brewes v.
Comm’r, 682 F.3d 1157, 1162 (9th Cir. 2012); see also Ramirez v. Shalala, 8 F.3d 1449, 1451–
52 (9th Cir.1993).
The Appeals Council’s August 27, 2013 denial of Ms. Childers’s request for review
states that it “looked at Southland Mental Health medical records dated July 31, 2012 to
August 13, 2012 [and] Southlane Medical Group medical records dated July 3, 2012 to

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August 14, 2012.” AR 2. These medical documents are therefore part of the record before the
Court. Brewes, 682 F.3d at 1162. The Appeals Council concluded that the new information
submitted by Ms. Childers “does not affect the decision about whether [Ms. Childers was]
disabled beginning on or before June 29, 2012” and refused to disturb the ALJ’s disability
determination. AR 2.
The new evidence contains treatment notes from Dr. Petersen, who opined that
Ms. Childers is unable to perform any task for an extended period of time, including prolonged
standing, and states that Ms. Childers is not capable of maintaining gainful employment. Because
this evidence sets forth concrete functional limitations that are relevant to the disability
determination, the ALJ should have the opportunity to consider this evidence on remand and, if
necessary, incorporate any limitations substantiated therein into the RFC.
C. Type of Remand
Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., --- F.3d ---, 2014 WL 7332774, at *7 (9th Cir. Dec. 24, 2014). The
issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate
when no useful purpose would be served by further administrative proceedings or when the
record has been fully developed and the evidence is insufficient to support the Commissioner’s
decision. Id. A court may not award benefits punitively and must conduct a “credit-as-true”
analysis on evidence that has been improperly rejected by the ALJ to determine if a claimant is
disabled under the Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th
Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison, 759 F.3d at 999.
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[The Ninth Circuit has] devised a three-part credit-as-true standard, each part of which
must be satisfied in order for a court to remand to an ALJ with instructions to calculate
and award benefits: (1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally
sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion;
and (3) if the improperly discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.
Id. at 1020.
Ordinarily, if all three of these elements are satisfied, a district court must remand for a
calculation of benefits. Id. If, however, “an evaluation of the record as a whole creates serious
doubt that a claimant is, in fact, disabled,” the district court retains the “flexibility” to remand for
further proceedings even when these elements are satisfied. Id. at 1021; see also Burrell v.
Colvin, --- F.3d ---, 2014 WL 7398892, at *7 (9th Cir. Dec. 31, 2014) (remanding for further
proceedings without analyzing whether the three factors are met “because, even assuming that
they are, we conclude that the record as a whole creates serious doubt as to whether Claimant is,
in fact, disabled”). Moreover, when remanding for further development of the record, the district
court has the discretion to remand on an open record or with the directive that the claimant’s
testimony be credited as true. See Burrell, 2014 WL 7398892, at *6 (observing that a court’s
“flexibility” includes the option to “remand on an open record for further proceedings” (citing
Garrison, 759 F.3d at 1021)).
Here, the ALJ failed to provide legally sufficient reason for rejecting Dr. Mohler’s
opinion as well as Dr. Petersen’s opinion, and failed to incorporate the limitations they assessed
into the RFC. The ALJ should thus be given the opportunity to consider those limitations,
incorporate them into the RFC, and, if necessary, take new testimony from a vocational expert
regarding Ms. Childers’s ability to perform jobs that exist in significant numbers in the national
economy. Because there are outstanding issues that must be resolved before a determination of
disability can be made, the case is remanded for further proceedings consistent with this opinion.
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CONCLUSION
The Commissioner’s decision that Ms. Childers is capable of performing light work was
not supported by substantial evidence in the record, and it is therefore REVERSED and
REMANDED for further proceedings
IT IS SO ORDERED.
DATED this 4th day of February, 2015.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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