Fenton v. Commissioner Social Security Administration
Filing
18
Opinion and Order - The ALJ's decision is reversed and remanded for immediate payment of benefits. Signed on 3/9/2015 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONA C. FENTON,
Plaintiff,
Case No. 6:14-cv-0350-SI
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
Alan Stuart Graf, 208 Pine Street, Floyd, VA 24091. Attorney for Plaintiff.
S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States
Attorney, UNITED STATES ATTORNEYS OFFICE, District of Oregon, 1000 S.W. Third
Avenue, Suite 600, Portland, OR 97201-2902; Lisa Goldoftas, 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.
Dona Fenton (“Plaintiff”) seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying her application for disability
insurance benefits (“DIB”) under Title II of the Social Security Act. For the reasons discussed
below, the Commissioner’s decision is reversed and remanded for immediate payment of
benefits.
PAGE 1 – OPINION AND ORDER
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 Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th
Cir. 2004). “[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)
(quotation marks omitted)). A 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.
BACKGROUND
A. Plaintiff’s Application
Plaintiff was born in March, 1968. AR 131. She protectively filed an application for DIB
benefits on May 6, 2010. AR 14, 131. Plaintiff initially alleged a disability onset date of June 10,
2009, but later amended that date to April 1, 2010. AR 14. Plaintiff was 42 years old at the
alleged disability onset date. AR 131.
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Plaintiff’s claim was denied initially on September 16, 2010, and upon reconsideration on
January 27, 2011. AR 14. She requested a hearing before an ALJ, and a hearing was held on
September 17, 2012. AR 29-62. On October 4, 2012, the ALJ issued a written decision finding
Plaintiff not disabled. AR 11-24. The Appeals Council denied Plaintiff’s subsequent request for
review on January 2, 2014, making the ALJ’s decision final. AR 1. 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; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20
C.F.R. § 404.1520(a)(4). The five-step sequential process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§ 404.1520(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. 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). 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). An impairment or
combination of impairments 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). Unless expected to result in death, this impairment must
have lasted or be expected to last for a continuous period of at least 12
months. 20 C.F.R. § 404.1509. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. § 404.1520(a)(4)(ii). If the
claimant has a severe impairment, the analysis proceeds to step three.
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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). If the
impairment does not meet or equal one or more of the listed impairments,
the analysis continues. 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). 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). 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. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c). If the claimant
cannot perform such work, he or she is disabled. Id.
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 (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). If, however, the Commissioner proves that
the claimant is able to perform other work existing in significant numbers in the national
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economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at
1099.
C. The ALJ’s Decision
After finding that Plaintiff met the insured status requirements of the Social Security Act
through September 30, 2015, the ALJ performed the sequential analysis. AR 16. At step one, the
ALJ determined that Plaintiff had not engaged in substantial gainful activity after April 1, 2010,
the alleged disability onset date. Id. At step two, the ALJ found that Plaintiff has the following
severe impairments: occipital headaches/occipital neuralgia, migraines, alcohol abuse, and
psoriasis. Id. At step three, the ALJ found that none of Plaintiff’s severe impairments met or
equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 17-18.
The ALJ next assessed Plaintiff’s RFC, and concluded:
[Plaintiff] has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a); specifically, she can
lift/carry ten pounds frequently and less than ten pounds
occasionally. She can sit for six or more hours in an eight-hour
workday and she can stand/walk for six hours in an eight-hour
workday. She can occasionally push/pull up to ten pounds. She can
occasionally climb ramps and stairs, balance, stoop, kneel, crouch
and crawl. She can never climb ladders, ropes or scaffold. She can
occasionally do bilateral overhead reaching. She must avoid
workplace hazards, such as unprotected heights or dangerous
machinery (machinery that can slice, dice, or crush). She can
understand, remember and carry out only simple tasks that can be
learned in 30 days or less. She can work in low stress jobs that
provide only occasional changes in work setting and occasional
decision-making.
AR 18. Proceeding to step four, the ALJ concluded that Plaintiff could not perform any of her
past relevant work. AR 23. At step five the ALJ found that Plaintiff can perform jobs that exist in
significant numbers in the national economy, including warehouse records clerk, label coder and
marker, and clerical collator. AR 23-24. Accordingly, the ALJ concluded that Plaintiff is not
disabled. Id.
PAGE 5 – OPINION AND ORDER
DISCUSSION
Plaintiff argues that the ALJ erred by (1) discounting her credibility; (2) rejecting the
opinion of treating neurologist Mia Schreiner; and (3) failing to reconcile an inconsistency
between the DOT and the VE testimony. For the reasons discussed below, the ALJ’s decision is
reversed.
A. Plaintiff’s Credibility
Plaintiff argues that the ALJ improperly found her not credible. There is a two-step
process for evaluating the credibility of a claimant's own testimony about the severity and
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 v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)
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
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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 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
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, 1996 WL 374186 (Jul. 2, 1996).
Further, the U.S. Court of Appeals for 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.
At the administrative hearing, Plaintiff testified that she is unable to work due to
recurring debilitating migraine headaches that occur at least four days per week. AR 38-39. She
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stated that her headaches cause dizziness and tearfulness, rendering her unable to perform her job
at Big Lots. AR 36. Plaintiff testified that she left her job at Big Lots because she was offered a
job with her cousin that would not require her to lift objects and would require fewer hours.
AR 37. Plaintiff disagreed with the ALJ’s presentation of the medical evidence, stating that she
had two or three headaches per week in 2011. AR 38. She stated that her headaches got worse
in 2012, but that she has not seen a doctor since January of 2012. AR 39. Plaintiff manages her
pain with Tegretol and Tylenol. AR 40.
The ALJ rejected Plaintiff’s testimony. AR 18-22. First, the ALJ found that Plaintiff’s
statements regarding her headaches were inconsistent with the medical evidence. AR 19. 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). Here, the ALJ noted that Plaintiff’s testimony
that she “felt dizzy up to 20 times per day” was contradicted by her reports to her treating
neurologist Mia Schreiner, M.D. The ALJ, however, does not point to any specific evidence
within the medical record to contradict Plaintiff’s testimony on this point. AR 19.
The ALJ also found that contrary to Plaintiff’s testimony, Plaintiff reported to
Dr. Schreiner that she did not have any headaches in 2011 after increasing her dosage of
Tegretol. AR 19, 39. At the hearing, Plaintiff contested this assertion. AR 39. Dr. Schreiner
differentiated between Plaintiff’s daily headaches and episodic headaches in her treatment notes.
Understood in context, Dr. Schreiner’s progress notes from 2011 indicate that Plaintiff suffered
from frequent headaches and experienced relief only after Dr. Schreiner increased Plaintiff’s
medication dosage. AR 284, 286. In any case, Dr. Schreiner commented that Plaintiff’s
headaches had returned by July, 2011, and Dr. Schreiner’s notes regarding “the nature, severity,
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and effect of [Plaintiff’s] symptoms” are consistent with Plaintiff’s testimony. AR 286; Thomas,
278 F.3d at 958–59. Dr. Schreiner’s medical records do not provide a legally sufficient reason
for rejecting Plaintiff’s credibility.
Second, the ALJ found that Plaintiff’s positive response to treatment reflected negatively
on her testimony that she was unable to work due to her impairments. Id. Impairments that can
be controlled with medication are not disabling. Warre v. Comm’r, 439 F.3d 1001, 1006 (9th
Cir. 2006). Here, the ALJ noted that Plaintiff’s symptoms were managed with Tegretol for over a
year, and that Tegretol did not cause any side effects. AR 19-20, 284, 285. On January 3, 2012,
for example, Plaintiff reported doing fine with no headaches after an increase in her dosage of
Tegretol. AR 281. On this record, it was proper for the ALJ to infer that Plaintiff’s condition
improved with medication.
Plaintiff’s response to medication, however, is not a clear and convincing reason to reject
her hearing testimony. Plaintiff testified that her headaches increased in frequency over time, and
that her symptoms had worsened. AR 38-39. The fact that medication helped alleviate Plaintiff’s
symptoms in the past does not imply that Tegretol is presently effective at treating Plaintiff’s
headaches. Because Plaintiff’s date last insured is September 30, 2015,1 her present symptoms
are relevant. On this record, it was not reasonable for the ALJ to use Plaintiff’s past response to
medication to discredit her testimony regarding her present symptoms. See Kahler v.
Colvin, 2014 WL 65741, at *7-8 (W.D. Wash. Jan. 8, 2014) (finding ALJ’s determination that
claimant’s headaches were adequately treated with medication not supported by substantial
evidence in the record because the record showed periods of time during which the claimant
experienced significant improvement on her medication and periods of time where medication
1
Plaintiff has acquired sufficient quarters of coverage to remain insured through
September 30, 2015. AR 14, 16.
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was not always completely effective in ameliorating headache symptoms). Plaintiff’s positive
response to treatment in the past does not provide a clear and convincing reason for rejecting her
testimony. See Warre, 439 F.3d at 1006.
Third, the ALJ discussed gaps in Plaintiff’s treatment records. AR 19, 39. Failure to seek
treatment can reflect negatively on a claimant’s credibility. Smolen, 80 F.3d at 1284. Here,
Plaintiff went nine months without treatment in 2012 despite allegations of frequent debilitating
headaches. AR 39. There is also a gap in treatment from April, 2010 to April, 2011. AR 286.
Plaintiff testified that during the periods when she did not see a doctor, she continued to manage
her headaches as directed, with the medication prescribed by her treating neurologist. On this
record, the Court finds that the gaps identified in Plaintiff’s treatment records do not provide a
clear and convincing reason for rejecting her testimony.
Fourth, the ALJ concluded that Plaintiff’s daily activities undermined her credibility as to
the severity of her limitations. AR 20-21. 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 Plaintiff’s testimony regarding her
limitations, Plaintiff was able to work from October, 2009, until April of 2010. AR 20. The ALJ
also noted that Plaintiff was able to drive a car, perform household chores, attend church, and
visit with neighbors. AR 21. The Court finds that these activities do not contradict Plaintiff’s
testimony. Plaintiff testified that her headaches and their attendant debilitating symptoms are
episodic; and headaches are the primary reason Plaintiff testified that she cannot work. It follows
that during the periods when Plaintiff is not suffering a migraine headache, she would not be
significantly limited in her daily functioning. It is thus consistent with Plaintiff’s testimony that,
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when not suffering a migraine, she is able to perform the daily activities noted by the ALJ.
Similarly, Plaintiff’s work activity performed before the alleged onset date—and after she had
been “released back to work” by her treating neurologist—does not reflect negatively on her
credibility. See AR 37.
In sum, the ALJ’s credibility determination is not supported by clear and convincing
reasons.
B. Treating Neurologist Dr. Mia Schreiner
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
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.
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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, 80 F.3d at 1286.
Dr. Schreiner first examined Plaintiff in June, 2009. AR 269-70. At that time, Plaintiff
was having new onset headaches every day but was otherwise healthy. AR 270. Dr. Schreiner
prescribed Tegretol and Percocet. AR 242, 256-57, 269-70, 287. By September, 2009, the
frequency of Plaintiff’s headaches had decreased from their previous daily occurrence, and were
then only episodic. AR 253. In June, 2010 Dr. Schreiner wrote,
I’d like her to continue not working, as she has a very strenuous
job and I feel that she is unable to do this at this time because
exertion makes her headache worse.
AR 260. In February, 2012, Dr. Schreiner again noted that Plaintiff’s once daily headaches were
now only “episodic, about 4 in 10-12 days.” AR 287. Dr. Schreiner concluded that even lowstress jobs would cause Plaintiff to have headaches, and that she would miss more than two days
of work per month due to her symptoms and limitations. AR 358-59.
The ALJ rejected Dr. Schreiner’s opinion. AR 20. Instead, the ALJ gave some weight to
the opinions of the state agency physicians, who both assessed limitations that would not
preclude substantial gainful activity, thus contradicting Dr. Schreiner’s opinion. AR 20, 63-72,
75-84. The ALJ was therefore required to provide specific, legitimate reasons for rejecting
Dr. Schreiner’s controverted opinion. Lester, 81 F.3d at 830.
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First, the ALJ noted that Dr. Schreiner’s opinion was inconsistent with her own progress
notes. AR 20. As an initial matter, some of the alleged inconsistencies are between Plaintiff’s
testimony and Dr. Schreiner’s opinion. These alleged inconsistencies are discussed above.
Further, the Court can find no inconsistencies within Dr. Schreiner’s own treatment records.
Dr. Schreiner’s records describe symptoms and limitations that wax and wane over time, noting
headaches that have occurred daily and episodically. AR 284, 286. Because the Commissioner
has not shown inconsistency within Dr. Schreiner’s progress notes, the ALJ’s conclusion that
Dr. Schreiner’s opinion was inconsistent with her own examination and treatment records was
not a specific, legitimate reason for rejecting it. Lester, 81 F.3d at 830.
Second, the ALJ noted that Dr. Schreiner’s opinion was inconsistent with Plaintiff’s
statements and work activity. The ALJ may reject a physician’s opinion if it conflicts with a
claimant’s activities. Morgan v. Comm’r, 169 F.3d 595, 602 (9th Cir. 1999). For example, the
ALJ noted that although Dr. Schreiner wrote in June, 2009 that Plaintiff should not work,
Plaintiff was able to work from October, 2009 until April, 2010, the amended alleged onset date.
AR 21-22, 37. Because Plaintiff was “released back to work in October of ’09,” however, her
work activity before the alleged onset date does not conflict with longitudinal record of
Dr. Schreiner’s opinion. AR 37.
The ALJ also rejected Dr. Schreiner’s opinion because she found that when Plaintiff left
her job in April, 2010, it was not due to her disability; rather, it was with the intention of taking
another, less strenuous, job with fewer hours. AR 20. The record reveals that Dr. Schreiner
recommended that Plaintiff cease working because the strain of her heavy exertion job
precipitated her headaches. AR 260. Further, Plaintiff never began working at a new job after
April, 2010. AR 37. Because Plaintiff ceased to perform her heavy exertion job based on
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Dr. Schreiner’s recommendation, the Court finds no contradiction with Dr. Schreiner’s opinion.
Plaintiff may have believed for a time that she was capable of working after April, 2010, but
there are no facts in evidence that show she was actually capable of sustaining gainful
employment.
Third, the ALJ found that Dr. Schreiner’s opinion relied heavily upon Plaintiff’s
statements, which the ALJ held to be not credible. The ALJ may reject portions of a physician’s
opinion predicated on reports of a claimant properly found not credible. Ryan v. Astrue, 528
F.3d 1194, 1199–1200 (9th Cir. 2008) As discussed above, however, the ALJ erroneously
rejected Plaintiff’s testimony. Therefore, Dr. Schreiner’s reliance upon Plaintiff’s subjective
complaints is not a legally sufficient reason for rejecting Dr. Schreiner’s opinion.
In sum, the ALJ failed to provide sufficient specific, legitimate reasons for rejecting
Dr. Schreiner’s opinion.
C. VE Testimony and DOT
Plaintiff next argues that the ALJ erred by relying upon VE testimony that conflicted with
the DOT. Here, the ALJ limited Plaintiff to sedentary work; the VE identified that she could
perform the occupations of label coder and clerical collator, both light exertion jobs. The VE,
however, also identified the sedentary job of warehouse records clerk. Because the ALJ found at
step five that Plaintiff could perform the sedentary job of warehouse records clerk consistent
with her RFC, any error in the ALJ’s reliance upon the VE’s other testimony was harmless.
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an ALJ’s error may be harmless if it has
no effect on the ultimate non-disability determination). Because the ALJ improperly discredited
Plaintiff’s testimony and the opinion of her treating neurologist, however, the ALJ assessed an
incomplete RFC and presented a deficient hypothetical to the VE. This issue regarding
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disagreement between the VE and the DOT is therefore moot, because VE’s testimony was
based on an improper hypothetical.
D. 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., 775 F.3d 1090, 1099-1100 (9th Cir. 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 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 v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014).
[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.
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Colvin, 775 F.3d 1133, 1141-42 (9th Cir. 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, 775 F.3d at 1142 (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, no further development of the record is necessary to support a finding of disability.
Dr. Schreiner opined that even low-stress jobs would cause Plaintiff to have headaches, and
estimated that she would miss more than two days of work per month due to her symptoms.
AR 358-59. The VE testified that an individual with this limitation would not be able to “hold a
job or sustain . . . employment” at the level of skill identified. AR 58-59. When the improperly
rejected medical evidence is credited as true, no useful purpose would be served by further
administrative proceedings. The case is therefore reversed and remanded for immediate payment
of benefits. Garrison, 759 F.3d at 1020.
CONCLUSION
For the reasons articulated above, the ALJ’s decision is reversed and remanded for
immediate payment of benefits.
IT IS SO ORDERED.
DATED this 9th day of March, 2015.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 16 – OPINION AND ORDER
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