Navarro v. Commissioner Social Security Administration
Filing
21
OPINION AND ORDER. This case is REVERSED and REMANDED for immediate calculation and payment of DIB and SSI benefits. See formal OPINION AND ORDER. Signed on 5/18/2015 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
LENA M. NAVARRO,
Case No. 6:14-cv-00811-AA
OPINION AND ORDER
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
Kathryn Tassinari
Mark A. Manning
Harder, Wells, Baron & Manning, P.C.
474 Willamette, Suite 200
Eugene, OR 97401
Attorneys for plaintiff
Billy Williams
Interim United States Attorney
Ronald K. Silver
Assistant United States Attorney
1000 SW Third StAve., Suite 600
Portland, OR 97201
Catherine Escobar
Special Assistant United States Attorney
Office of the General Council
Social Security Administration
701 Fifth Ave., Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER
AIKEN, Chief Judge:
Plaintiff Lena Navarro brings this action pursuant to the
Social Security Act
(nAct") to obtain judicial review of a final
decision of the Commissioner of Social Security (ncommissioner")
denying his application for disability insurance benefits
(nDIB") and supplemental security income (nSSI"). For the
reasons set forth below, the Commissioner's decision is REVERSED
and REMANDED for payment of benefits.
PROCEDURAL BACKGROUND
On April 8, 2010, plaintiff filed her applications for DIB
and SSI. Tr. 182, 186. After the applications were denied
initially and on reconsideration, plaintiff timely requested a
hearing before an administrative law judge (nALJ"). Tr. 133. On
March 14, 2012, an ALJ hearing was held before the Honorable
Stuart Waxman; plaintiff was represented by counsel and
testified therein; a vocational expert (nVE") also testified.
Tr. 13-47. On April 2, 2012, ALJ Waxman issued a decision
finding plaintiff not disabled within the meaning of the Act.
Tr. 103-113. After the Appeals Council declined review,
plaintiff filed a complaint in this court. Tr. 100-102.
STATEMENT OF FACTS
Born on June 20, 1970, plaintiff was 34 years old on the
Page 2 - Opinion and Order .
alleged onset date of disability and 41 years old at the time of
the hearing. Tr. 13, 182, 186. Plaintiff dropped out of high
school after completing the tenth grade. Tr. 15, 221. She
previously worked as a gas station attendant, fast food worker,
cook helper, administrative clerk, and residence leasing agent.
Tr. 41-42. Plaintiff alleges she became disabled on September 1,
2004 due to degenerative disc disease, neuropathy, severe back
arthritis, shoulder bursitis, depression, weight gain, bilateral
carpal tunnel syndrome ("CTS"), pinched nerves in elbows,
dyslexia, and chronic pain.
STANDARD OF REVIEW
The court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are supported
by substantial evidence in the record. Hammock v. Bowen, 879
F.2d 498, 501 (th Cir. 1989). Substantial evidence is "more than
.'
a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)). The court must weigh "both the evidence that supports
and detracts from the [Commissioner's] conclusions. Martinez v.
Heckler,
807 F. 2d 771, 772
Page 3 - OPINION AND ORDER
(9th Cir. 1986).
The initial burden of proof rests upon the plaintiff to
establish disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the plaintiff must
demonstrate an "inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected .
. to last for a
continuous period of not less than twelve months." 42 U.S.C.
§
423(d) (1) (A).
The Commissioner has established a five-step sequential
process for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
§
416.920. First,
the Commissioner determines whether a plaintiff is engaged in
"substantial gainful activity." Yuckert,
C.F.R.
§
482 U.S. at 140; 20
416.920(b). If so, the plaintiff is not disabled.
At step two, the Commissioner determines whether the
plaintiff has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R.
§
416.920(c). If not, the plaintiff is not disabled.
At step three, the Commissioner determines whether the
impairment meets or equals "one of a number 'of listed
impairments that
. are so severe as to preclude substantial
gainful activity." Yuckert,
Page 4 - Opinion and Order
482 U.S. at 140-41; 20 C.F.R.
§
416.920(d). If so, the plaintiff is conclusively presumed
disabled; if not, the Commissioner proceeds to step four.
Yuckert,
482 U.S. at 141.
At step four,
the Commissioner determines whether the
plaintiff can still perform
~past
relevant work." 20 C.F.R.
§
416.920(e). If plaintiff can work, she is not disabled. If she
cannot perform past relevant work, the burden shifts to the
Commissioner. At step five, the Commissioner must establish that
the plaintiff can perform other work that exists in the national
economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R.
§
416.920(e)&(f). If the Commissioner meets this burden, the
plaintiff is not disabled. 20 C.F.R.
§
416.966.
THE ALJ'S FINDINGS
At step one of the five step sequential evaluation process,
the ALJ found that plaintiff had not engaged in substantial
gainful activity since the application date. Tr. 105. At step
two, the ALJ determined that plaintiff has the following severe
impairments: spine syndrome, failed back syndrome or post
laminectomy syndrome, myalgia myositis, lumbago, tardy ulnar
palsy, status post left ulnar nerve transposition in June 2006,
status post right ulnar nerve transposition in September 2006,
degenerative disc disease of the lumbar spine with some central
Page 5 - OPINION AND ORDER
canal stenosis, status post laminectomies and fusion,
lumbar
radiculopathy, minimal degenerative changes of the thoracic
spine, bilateral CTS, status post bilateral carpal tunnel
releases, obesity, fibromyalgia, muscle spasm, a history of
edema, and mild to moderate obstructive sleep apnea. Tr. 105106. At step three, the ALJ found that plaintiff's impairments
did not meet or equal the requirements of a listed impairment.
Tr. 107.
As plaintiff did not establish disability at step three,
the ALJ continued to evaluate how plaintiff's impairments
affected her ability to work. The ALJ resolved that plaintiff
had the residual functional capacity ("RFC") to perform
sedentary work as defined in 20 C.F.R.
§§
404.1567(a) and
416.9679(a), except that she should never climb ladders, ropes,
scaffolds, ramps, or stairs; should never balance, kneel,
crouch, or crawl; can occasionally stoop, push and/or pull
bilaterally, reach overhead bilaterally; and should avoid all
exposure to unprotected heights, walking on uneven terrain, and
all use of "moving machinery." Tr. 107.
At step four, the ALJ found that plaintiff was capable of
performing her past relevant work as an administrative clerk.
Tr. 111. Accordingly, the ALJ concluded that plaintiff was not
Page 6 - Opinion and Order
disabled within the meaning of the Act. Tr. 113.
DISCUSSION
Plaintiff alleges the ALJ erred by (1) not fully crediting
her pain testimony,
(2)
failing to properly credit the opinion
of Dr. Jeffrey Bert, and (3)
finding plaintiff capable of
performing her past relevant work.
I. Plaintiff's Testimony
Plaintiff contends the ALJ failed to provide clear and
convincing reasons, supported by substantial evidence, to reject
her subjective symptom statements concerning the extent and
severity of her impairments. When a plaintiff has medically
documented impairments that could reasonably be expected to
produce some degree of the symptoms complained of, and the
record contains no affirmative evidence of malingering, "the ALJ
can reject the claimant's testimony about the severity of .
symptoms only by offering specific, clear and convincing reasons
for doing so." 1 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996). A general assertion that plaintiff is not credible is
insufficient; the ALJ "must state which .
1
. testimony is not
The court notes defendant's contention that the
"substantial evidence" rather than "clear and convincing"
standard should be applied when assessing an ALJ's credibility
findings. Def.'s Br. 5-6. The Ninth Circuit has repeatedly
affirmed that the clear and convincing standard applies. Se€,
~' Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)
Page 7 - OPINION AND ORDER
credible and what evidence suggests the complaints are not
credible." Dodrill v. Shalala, 12 F.3d 915,
918
(9th Cir. 1993)
In assessing a plaintiff's credibility, an ALJ may consider
a range of factors,
including ordinary techniques of credibility
evaluation, such as
(1) plaintiff's reputation for lying or
prior inconsistent statements concerning symptoms;
(2)
unexplained or inadequately explained failure to seek treatment
or to follow a prescribed course of treatment; and (3)
evaluation of plaintiff's daily activities. See Ghanim v.
Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing Smolen, 80
F.3d at 1284). The reasons proffered must be "sufficiently
specific to permit the reviewing court to conclude that the ALJ
did not arbitrarily discredit the plaintiff's testimony." Orteza
v. Shalala, 50 F.3d 748,
750
(9th Cir. 1995) (citation omitted)
However, when evidence supports either confirming or reversing
an ALJ's decision, the court may not substitute its own judgment
for that of the ALJ. See Batson v. Comm'r of Soc. Sec. Admin.,
359 F.3d 1190, 1196 (9th Cir. 2004).
The ALJ found that objective medical evidence did not
"fully support" plaintiff's alleged level of impairment. Tr.
108-109. The ALJ explained that although MRis of plaintiff's
lumbosacral and thoracic spine revealed abnormal findings,
Page 8 - Opinion and Order
her
extreme symptoms were nonetheless disproportionate. Id. Once a
plaintiff produces medical evidence of an underlying impairment,
an ALJ may not discredit plaintiff's testimony regarding
subjective symptoms merely because they are unsupported by
medical evidence. Berry v. Astrue,
622 F.3d 1228, 1234 (9th Cir.
2010). Thus, alone, the ALJ's rationale would not suffice.
However, the ALJ also impugned plaintiff's credibility based on
symptom magnification and self-limiting behaviors. Tr. 107-109.
Self-limiting behaviors on examination, as well as symptom
exaggeration, may detract from a plaintiff's credibility. Thomas
v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
First, the ALJ indicated plaintiff demonstrated positive
Waddell's signs on examination in March 2005. Tr. 288. Plaintiff
references a medical journal abstract which states that
Waddell's testing "does not distinguish between malingering and
psychological conditions." Pl.'s Reply Br. 3 (citing Gordon
Waddell et al., Nonorganic Physical Signs in Low-Back Pain, 5
Spine 117, 117-25 (Mar.-Apr. 1980)). Plaintiff further notes
that in order to be deemed "clinically significant," three or
more Waddell's signs must be detected on examination. Id.
Although defendant cites one case that found detection of
Waddell's signs potentially probative, the case is
Page 9 - OPINION AND ORDER
distinguishable, as there was no suggestion that fewer than
three Waddell's signs were detected, as here. Tr. 288, See
Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001). More
significantly, the examining physician did not assign any import
to the findings. Tr. 287-89. Therefore, the ALJ's reason is not
clear and convincing. See Reinertson v. Barnhart, 127 Fed.Appx.
285, 289 (9th Cir. 2005) (Where an examining physician reported
two out of five Waddell's signs but did not assign any
significance to them, the ALJ's conclusion that physician had
documented "functional behavior" was not supported by
substantial evidence.).
Next, plaintiff argues it was improper to use plaintiff's
reported "somatization" to undermine her credibility. Pl.'s
Reply Br. 4. Indeed, there are only two references to
somatization in the record. In 2008, Dr. Rusu reported, "I
expect there is a degree of somatization but I am not sure about
the secondary gains .
" Tr. 584. In 2010, another
physician, after r~viewing Dr. Rusu's notes, indicated
"[plaintiff] has some degree of somatization." Tr. 410. The
physicians appeared to be inferring that plaintiff was
exaggerating symptoms in order to obtain pain medication, and
both discussed limiting plaintiff's access to narcotics. Tr.
Page 10 - Opinion and Order
410, 584. Nonetheless, neither the ALJ nor the treating doctors
explicitly mentioned drug-seeking behavior, commented on the
degree of any symptom exaggeration, or whether her
"somatization" was willful deception or rather a psychiatric
response consistent with somatization disorder. Further, the
court notes that the two incidents where somatization disorder
appears in the record were fairly isolateq considering the
seven-year relevant time period. Further, the defendant does not
proffer any further evidence of somatization in support of the
ALJ's findings. Accordingly, the ALJ's reference to isolated
"possible somatization" is not a sufficient rationale to
discount plaintiff's credibility.
The ALJ also questioned plaintiff's credibility because she
missed medical appointments. Tr. 110. The parties agree
plaintiff missed medical appointments on two occasions during
the relevant time period. Pl.'s Reply Br. 5; Def.'s Br. 5; Tr.
570. Although failure to follow a prescribed course of treatment
or an inadequately explained failure to seek treatment may
impact credibility, plaintiff's absence from two appointments
over a seven-year time period is not probative, particularly
considering she provided reasons for her absences. Pl.'s Opening
Br. 17; See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
Page 11 - OPINION AND ORDER
2008) .
The ALJ next noted that plaintiff's ADL's, as reported by
plaintiff and her daughter, demonstrated functionality which
belied disability. Tr. 109, 242-48 250-56. The ALJ noted that
plaintiff is ~ble to clean, watch television, cook, and provide
care for her granddaughter, who lives with her. 2 Tr. 109, 242-43.
Plaintiff, in her disability application, indicated she is able
to go out on her own, shop and handle money, get along with
others, pay attention and follow directions, and manage stress
and changes in her routine. Tr. 245, 247-48. At hearing,
plaintiff explained she rarely goes out on her own other than to
grocery shop, does not drive, has a state-provided assistant 20
hours per week to help with housekeeping and food preparation,
has trouble navigating the stairs to and from her apartment, and
uses a chair while in the shower. Tr. 32-36. Plaintiff's
daughter, who the ALJ generally found credible on this issue,
indicated that although plaintiff is able to clean and prepare
some meals, it takes several hours for her to do chores, and
even simple tasks such as laundry require assistance. Tr. 110,
2
The court notes that although caring for a young child
suggests a certain level of functionality, the ALJ did not
provide specific examples of plaintiff's childcare duties which
were inconsistent with her alleged level of impairment. The fact
that plaintiff "cares" for a child is not sufficienti without
greater specificity, to impugn her credibility.
Page 12 - Opinion and Order
250-56.
Activities such as light household chores, grocery
shopping, and occasional preparation of meals are activities
that do not necessarily translate to a full-time work
environment. Fair v. Bowen, 8$5 F.2d 597, 603 (9th Cir. 1989)
Only if a plaintiff's level of activity is inconsistent with
plaintiff's alleged limitations would such activities bear on
credibility. Reddick v. Chater, 157 F.3d 715, 723 n.1
(9th Cir.
1998). Here, while plaintiff's activities reflect some
functionality, the ALJ failed to identify inconsistencies
between plaintiff's activities and her alleged level of
impairment; he merely articulated plaintiff's fairly low
activity level. Tr. 109. While the ALJ appeared to attach
significance to plaintiff's willingness to care for her
granddaughter, the ALJ did not provide detail on what aspect of
caregiving was contradicted by plaintiff's allegations. Id. As
such, the ALJ's failure to explain why plaintiff's testimony was
inconsistent with her ADL's was reversible error. Garrison v.
Colvin, 759 F.3d 995, 1016 (9th Cir. 2014).
Plaintiff further argues that the ALJ misinterpreted her
alleged self-limiting behavior during some medical examinations.
For example, in 2006, Dr. Bert reported plaintiff appeared to be
Page 13 - OPINION AND ORDER
voluntarily limiting her spine bending on examination due to
pain. Tr. 109, 306. Dr. Alina Rizea indicated on two separate
encounters in 2005 that plaintiff "would not bend" during
examination, citing back pain. Tr. 316, 318. In 2012, an
examining nurse reported plaintiff's performance on a
neurological examination was inconsistent, and noted plaintiff
may be "consciously limiting her responses." Tr. 722. In 2011, a
nurse practitioner indicated plaintiff was "unwilling/unable to
put shoulder through ROM" due to pain. Tr. 696.
Despite these incidents, not one of the physicians
performing the examinations indicated that plaintiff was being
uncooperative, and only one mentioned that plaintiff "may" have
been consciously limiting herself. Tr. 291, 306, 316, 318, 585,
696, 722. That a plaintiff "may" have been consciously limiting
herself during a single examination is not clear and convincing
grounds to impugn a plaintiff's credibility. While the court
recognizes that self-limiting behavior is generally a valid
reason to discount a plaintiff's testimony pursuant to Thomas,
unlike that case, the physicians here did not indicate plaintiff
attempted to exaggerate her symptoms, exhibit dramatic pain
behaviors, or was likely capable of significantly better
performance. Tr. 290-291, 306, 316, 318, 584-85,
Page 14 - Opinion and Order
695-96, 721-23.
To the contrary, plaintiff's physicians, particularly after
2010, routinely noted plaintiff's history of back surgeries and
reports of extreme back pain, diagnosed back disorders, and
continued to prescribe medications to address her impairments.
Id.
Therefore, based on the record as a whole, the court does
not find that "possible" self-limiting behavior on a handful of
back examinations in the context of degenerative disc disease of
the lumbar spine, lumbago, spine syndrome, and failed back
syndrome (or post-laminectomy syndrome) to be determinative of
plaintiff's overall credibility. See Tr. 105-106. An ALJ's error
is harmless only so long as the ALJ provides valid reasons for
rejecting the evidence, substantial evidence supporting the
ALJ's credibility determination remains, and the error does not
negate the validity of the ultimate credibility conclusion.
Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th
Cir. 2008) (citations omitted). Here, the ALJ' s rationales do not
withstand scrutiny; therefore, the credibility assessment is not
valid.
II. Dr. Bert's Opinion
The ALJ assigned little weight to Dr. Bert's opinion that
plaintiff was "unemployable," "completely disabled," and "fits
Page 15 - OPINION AND ORDER
the criteria for Social Security complete and total disability."
Tr. 110, 496, 558. The ALJ further found that Dr. Bert's
assessment was not consistent with the objective evidence, that
the doctor relied heavily on plaintiff's own subjective
complaints, and that the opinions were improper because the
issue was reserved to the Commissioner. Tr. 110.
The ALJ must consider all medical opinion evidence. 20
C.F.R.
§
404.1527(b). Physicians may provide medical or clinical
opinions, or they may provide opinions on the ultimate issue of
disability. Reddick, 157 F.3d at 725. A medical source's
conclusory statement that plaintiff is disabled or "unable to
work" does not bind the Commissioner to find plaintiff is
disabled. 20 C.F.R.
§
404.1527(d) (1). However, opinions about
the likelihood of disability are not conclusory. Hill v. Astrue,
698 F.3d 1153, 1160 (9th Cir. 2012). Generally, the ALJ should
afford more weight to doctors who treat a plaintiff than those
who do not. Lester, 81 F.3d 821, 830
(9th Cir. 1995). In
resolving ambiguities in the medical record, an ALJ may reject
the uncontradicted opinion of a treating doctor by providing
clear and convincing reasons, supported by substantial evidence,
to do so; the contradicted opinion of a treating doctor may be
rejected by providing specific and legitimate reasons
Page 16 - Opinion and Order
~hat
are
supported by substantial evidence. Orn v. Astrue, 495 F.3d 625,
631-32
(9th Cir. 2007). When evaluating medical opinions, an ALJ
is not required to accept an opinion that is brief, conclusory,
arid inadequately supported by objective findings. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may also
reject the opinion of a doctor that is largely based on a
plaintiff's self-reports when the plaintiff has been deemed not
credible. Tommasetti, 533 F.3d at 1041.
The parties dispute whether Dr. Bert's opinion statements
were conclusory. Pl.'s Opening Br. 19; Def.'s Br. 12. In 2010,
Dr. Bert wrote that plaintiff was "unemployable." Id. Although
Dr. Bert mentioned some probable causes of plaintiff's pain, his
assertion that plaintiff was unemployable did not include any
explanation or objective findings; therefore, the opinion was
conclusory. 20 C.F.R.
§
404.1527(d) (1)
For the same reasons,
the ALJ did not err in disregarding Dr. Bert's 2011 opinion that
plaintiff was "completely disabled" and "fit[] the criteria for
Social Security complete and total disability." Tr. 558.
Nevertheless, Dr. Bert provided other medical opinion
evidence in February 2012 that was more detailed in describing
various aspects of plaintiff's impairments. Tr. 735-37. Dr. Bert
indicated via questionnaire that plaintiff's diagnoses were
Page 17 -OPINION AND ORDER
spinal stenosis at L2-3 and status post-fusion at L3-L5. Tr.
735. He indicated plaintiff experienced back and leg pain, would
have to rest one hour per day, had weakness,
should not drive,
could stand and walk for less than 2 hours per day, could sit
less than 6 hours per day, could occasionally lift up to ten
pounds, could never lift 20 pounds or more, and would likely
miss more than two days per month due to her impairments. Tr.
736-37. Defendant argues that Dr. Burt's 2012 opinion is invalid
because it is unsupported by objective findings or explanation
for the restrictions, and was based on plaintiff's subjective
reports. Def.'s Br. 12.
While Dr. Bert's February 2012 opinion predominantly
consists of 1-2 word answers and check-the-box responses, it
nonetheless sets out necessary details that were lacking in the
doctor's previous opinions. The 2012 opinion indicates
plaintiff's diagnoses, symptoms, treatment plan (surgery at L23), and a functional assessment. Tr. 735-37. Further, Dr. Bert,
in a treatment note from June 20, 2011, reported:
This unfortunate woman has a known spinal
stenosis at L2-3. She has been falling down
and unable to function without the use of a
cane. She has a lot of leg discomfort on the
right and the left .
[t]here is weakness
on examination today. There is marked
limitation of motion of her back and
positive straight leg raise on the right
Page 18 - Opinion and Order
. I reviewed her MRI from 2009 and it was
clear at that point that she had moderate
canal stenosis at L2-3, which is above her
L3-L5 fusion. I believe this is a true
transition syndrome progressively worsening
with weakness .
. I am strongly
recommending a decompression at L2-3.
Tr. 744. In October 2011, Dr. Bert found, among other things,
"marked limitation of motion .
[in] back flexion ahd
extension." Tr. 740. Plaintiff then underwent a lumbar MRI on
November 18, 2011. Tr. 746-47. Dr. Bert reviewed the findings
and reported plaintiff had a "9-mm spinal canal at [L]2-3 with
foraminal stenosis." Tr. 738. He also noted decreased strength
in the left anterior thigh, left foot numbness, and positive
straight leg raising on the right. Id. The doctor concluded
plaintiff "has the ravages of progressive spinal stenosis." Id.
Thus, while the 2012 questionnaire is somewhat laconic, the
opinion goes beyond a bare conclusion, and Dr. Bert's treatment
notes from the time support his opinions. See Burrell v. Colvin,
775 F. 3d 1133, 1140 (9th Cir. 2014). Therefore, the .ALJ erred in
rejecting Dr. Burt's 2012 opinion.
The ALJ also found that Dr. Bert failed to adequately
address plaintiff's "increasingly more obvious symptom
exaggeration" around the time of his 2012 opinion. Tr. 111. As
described above, although plaintiff reported increasing
Page 19 - OPINION AND ORDER
symptoms, it was Dr. Bert's opinion that they were related to
progressively worsening transition syndrome in the area of her
spine above her spinal fusion. Tr. 744. Further, the ALJ's
assertion that plaintiff's symptoms were due to exaggeration was
largely based on the ALJ's assessment of her "significantly
diminished credibility" regarding subjective complaints and
effort-dependent testing. Tr. 111. However, because the ALJ
failed to give specific'· clear and convincing reasons for
discrediting plaintiff's testimony as explained above, that
assessment is not a valid reason to discredit Dr. Bert's
opinion.
3
Burrell, 775 F.3d at 1141 (citing Tommasetti, 533 F.3d
at 1041).
Accordingly, the ALJ did not provide legitimate reasons
supported by substantial evidence for giving little weight to
Dr. Bert's 2012 assessment.
III. VE Testimony
Plaintiff argues that the ALJ's step four finding was
erroneous because it did not account for the limitations set
3
Defendant, in briefing, also notes that plaintiff's
insurance declined to pay for the surgery recommended by Dr.
Bert. Def. 's Br. 13. There are any number of reasons why an
insurance company might decline to pay for a surgery, regardless
of a plaintiff's disability status. The fact that an insurance
company declined to cover a surgery, without more, is immaterial
to the disability determination at issue,
Page 20 - Opinion and Order
forth in the discredited testimony of plaintiff and Dr. Bert.
Pl.'s Br. 20. As described above, the ALJ determined plaintiff
could perform work at a sedentary exertion level with additional
restrictions. Tr. 107. Based on the ALJ's RFC, the VE indicated
plaintiff was capable of performing her previous work as an
administrative clerk. Tr. 44, 111. Providing alternative step
five findings, the VE indicated plaintiff's RFC would allow her
to perform the occupations of cashier II
(660 positions in
Oregon), microfilming document preparer (117 positions in
Oregon), and food and beverage clerk (less than 25 positions in
Oregon). Tr. 45, 112. When the ALJ posed hypothetical questions
applying the restrictions imposed by Dr. Bert, including an
hour-long break in addition to regular breaks and missing more
than two days per month, the VE indicated plaintiff would be
precluded from all sedentary work. Tr. 44.
However, as the ALJ's RFC did not include impairments set
forth by plaintiff through her testimony or by Dr. Bert's 2012
opinion, it was not based on substantial evidence and is
therefore invalid. Accordingly, all the jobs -- including
plaintiff's past relevant work and alternative step five jobs
identified by the VE based upon the RFC were invalid.
IV. Remedy
Page 21 - OPINION AND ORDER
The ALJ erred in assessing the credibility of plaintiff's
pain testimony and the weight provided to the treating
physician's testimony in this .case. Courts are empowered to
affirm, modify, or reverse the decision by the Commissioner
"with or without remanding the case for a rehearing.'' 42 U.S.C.
§
405(g). Remand for the calculation of benefits is one possible
remedy. Benecke v. Barnhart, 379 F.3d 587, 593
(9th Cir.
2004) (citations omitted). The Ninth Circuit employs the "creditas-true" standard when the following requisites are met:
( 1) the
record has been fully developed and further proceedings would
serve no useful purpose,
(2) the ALJ has failed to provide
legally sufficient reasons for rejecting evidence, and (3) if
the improperly discredited evidence were credited as true, the
ALJ would be required to find the plaintiff disabled on remand.
Garrison, 759 F.3d at 1020.
Defendant argues that even if plaintiff's 2012 testimony
and Dr. Bert's 2012 opinion were credited and plaintiff found
disabled, remand would be necessary for further proceedings
including calculation of an onset date. Def. 's Br. 15-16. The
Ninth Circuit has repeatedly stated,
"allowing the Commissioner
to decide the issue again would create an unfair 'heads we win;
tails, let's play again' system of disability benefits
Page 22 - Opinion and Order
adjudication." Benecke, 379 F.3d at 595j Moisa v. Barnhart, 367
F.3d 882, 887
(9th Cir. 2004) ("The Commissioner, having lost
this appeal, should not have another opportunity to show that
Moisa is not credible any more than Moisa, had he lost, should
have an opportunity for remand and further proceedings to
establish his credibility.") ( citation omitted) .
Here, the record does not require supplementation. In 2012,
plaintiff's treating physician outlined functional impairments
based on a recent MRI and examination findings. Tr. 734-37. The
ALJ failed to provide legally sufficient reasons for
discrediting Dr. Bert, who had a lengthy longitudinal record of
treating plaintiff. His opinion should therefore have been
afforded significant, if not controlling, weight. 20 C.F.R.
§
404.1527; Holohan v. Massinari, 246 F.3d 1195, 1202 (9th Cir.
2001). The ALJ also failed to provide legally sufficient reasons
for discrediting plaintiff, who described her many problems
carrying out even basic housekeeping tasks, such as her
testimony that she must lay down for half an hour after washing
a small load of dishes. Tr. 37. Further, plaintiff has a long
and consistent history of severe back pain following two lumbar
surgeries, in addition to a range of other problems including
impairments which cause her to regularly fall at home and drop
Page 23
OPINION AND ORDER
things. Tr. 29, 35.
Moreover, despite finding both plaintiff and Dr. Bert not
credible, the ALJ determined plaintiff could only perform
limited sedentary work, and only identified four jobs in the
national economy she could perform. Tr. 112-13. Although the VE
did not provide job numbers for plaintiff's past relevant work,
the three alternative jobs plaintiff was found able to perform
exist only in small numbers in the state economy. Tr. 112; see
Beltran v. Astrue, 700 F.3d 386, 389-90 (9th Cir. 2012).
Although not dispositive, certainly even fewer jobs exist in the
part of the state where plaintiff resides. Thus, even if the
improperly discredited evidence were only partially credited, it
is reasonable to assume the already small job numbers would be
diminished even further.
Finally, in reviewing the record as a whole, the court is
satisfied that plaintiff is disabled. Both objective and
testimonial evidence support a litany of severe impairments that
affect her ability to function in the workplace. Tr. 105-106. In
combination, and based on her own pain allegations and the
opinion of her treating physician, these impairments would
substantially limit her ability to succeed in even a sedentary
position. Therefore, if the improperly rejected evidence were
Page 24 - Opinion and Order
credited as true, an ALJ would be required to find plaintiff
disabled on remand. Accordingly, no further proceedings are
necessary. Lingenfelter v. Astrue, 504 F.3d 1028, 1040-41 (9th
Cir. 2007).
CONCLUSION
For the reasons set forth herein, this case is REVERSED and
REMANDED for immediate calculation and payment of DIB and SSI
benefits.
IT IS SO ORDERED.
Dated this
~
;'~day
of May 2015.
Ann Aiken
United States District Court Judge
Page 25 - OPINION AND ORDER
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