Woodmark v. Commissioner Social Security Administration
Filing
22
Opinion and Order - The Commissioner's decision that Claimant is not disabled is REVERSED and this case is REMANDED for further proceedings consistent with this Opinion and Order. Signed on 5/31/2016 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANNETTE Y. WOODMARK,
Plaintiff,
Case No. 6:15-cv-472-SI
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
James W. Moller, 8655 S.W. Citizens Drive, Suite 104, Portland, OR 97070. Of Attorneys for
Plaintiff.
Billy J. Williams, U.S. Attorney, and Janice E. Hébert, Assistant U.S. Attorney,
U.S. ATTORNEY’S OFFICE, DISTRICT OF OREGON, 1000 S.W. Third Avenue, Suite 600, Portland,
OR 97204; Lisa Goldoftas, Special Assistant U.S. Attorney, OFFICE OF THE GENERAL COUNSEL,
SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA
98104. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Ms. Annette Y. Woodmark (“Claimant”) 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
PAGE 1 – OPINION AND ORDER
following reasons, the Court reverses the Commissioner’s decision and remands this case for
further proceedings.
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 of 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 of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (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.
PAGE 2 – OPINION AND ORDER
BACKGROUND
A. Claimant’s Application
Claimant protectively filed an application for DIB on April 12, 2011, alleging disability
beginning October 1, 2008. AR 112-13. Claimant was born on January 15, 1961 and was
50 years old at the time that she submitted her application. AR 112. Claimant alleges disability
based on bipolar disorder, depression, post-traumatic stress disorder, anxiety, arthritis, and back
and knee pain. AR 112-13.
Claimant is a high school graduate and received a nursing assistant certification in 1979.
AR 36, 201. Claimant started college in 1987 but stopped attending classes in 1990 and did not
obtain her degree at that time. AR 64. Claimant worked as an employment representative from
1996 to 2000; as a clerical worker from June 2000 to July 2003; and as a child support case
manager with the Oregon Department of Justice (“Oregon DOJ”) from August 2003 to
October 2008. AR 35-36, 202, 703. Claimant returned to school in 2008 and completed her
Bachelor’s degree in December 2010.1 AR 64. According to Claimant, she received many
accommodations while in school, such as extra time to complete written assignments, taperecording of classes, and no downgrading for spelling or grammar errors. AR 81-82. In
March 2012, Claimant began work at Lane Community College (“LCC”) as a part-time art
studio technician. AR 23, 69.
The Commissioner denied Claimant’s application initially and upon reconsideration.
AR 142, 149. Thereafter, Claimant requested a hearing before an Administrative Law Judge
(“ALJ”). See AR 159. Claimant appeared for a hearing on June 27, 2013, at which she was
1
Claimant’s hearing testimony on this issue is inconsistent with her DIB application.
Claimant testified on June 27, 2013 that she completed her college degree in December 2010.
AR 64. On Claimant’s DIB application, however, Claimant lists her college completion date as
December 2008. AR 201.
PAGE 3 – OPINION AND ORDER
represented by counsel. AR 21. Claimant testified at the hearing. Id. Claimant testified, in part,
that she was currently working at LCC for about 15 hours per week. AR 70-72. A vocational
expert (“VE”) also appeared and testified at the hearing. AR 21. On August 29, 2013, the ALJ
issued a decision finding that Claimant was not disabled within the meaning of the Social
Security Act. AR 18-37.
Claimant petitioned the Appeals Council for review of the ALJ’s decision. AR 14.
Claimant submitted additional medical evidence to the Appeals Council. AR 5. The Appeals
Council admitted some of the additional evidence into the record. AR 1-2; see also AR 694-760
(additional medical evidence). The additional medical evidence includes a letter dated March 12,
2008, from Dr. David V. Baldwin to Oregon Vocational Rehabilitation. AR 703. Dr. Baldwin is
a psychologist who treated Claimant in 2008. Id. In the letter, Dr. Baldwin opined that that
Claimant meets the diagnostic criteria for dissociative disorder, although she was receiving
treatment regularly and “doing fairly well.” Id. Dr. Baldwin stated that Claimant is “capable of
handling suitable and challenging employment,” but that her current position as a child support
case manager with the Oregon DOJ was a “continuing source of emotional stress” and
recommended that Claimant find alternative employment. Id.
The Appeals Council found that the new information does not provide a basis for
overturning the decision of the ALJ. AR 1-2. On January 16, 2015, the Appeals Council denied
Claimant’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. AR 1. Claimant now seeks judicial review of the ALJ’s decision.
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.
PAGE 4 – OPINION AND ORDER
§ 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), 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:
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). 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), 416.921(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, 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 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), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
PAGE 5 – OPINION AND ORDER
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. 20 C.F.R. §§ 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.
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, 1098 (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 began her opinion by finding that Claimant met the insured status requirements
of the Social Security Act through December 31, 2013, meaning that Claimant must establish
disability on or before that date in order to be entitled to DIB. AR 21, 23. The ALJ then
performed the sequential analysis. At step one, the ALJ found that Claimant has not engaged in
PAGE 6 – OPINION AND ORDER
substantial gainful activity since October 1, 2008, the alleged onset date. AR 23. The ALJ
explained that although Claimant worked after October 1, 2008, this work activity did not rise to
the level of substantial gainful activity as defined by the Social Security Regulations (“SSR”). Id.
At step two, the ALJ found that Claimant has the following severe impairments: irritable
bowel syndrome (“IBS”); a history of anterior cruciate ligament repair; degenerative disc disease
of the cervical spine and lumbar spine; bilateral high frequency hearing loss; osteoarthritis of the
left foot; post-concussive syndrome; and adjustment disorder with mixed anxiety and depressed
mood. AR 23-24. The ALJ noted that the record references additional impairments including
obesity, moderate obstructive sleep apnea, low potassium, hypertension, and gastroesophageal
reflux disease. AR 24. The ALJ concluded that the record does not support a finding that those
additional impairments significantly limited Claimant’s ability to perform basic work activities,
and thus that those additional impairments were not “severe” under the SSR. Id. Nonetheless, the
ALJ considered those impairments she found nonsevere in combination with Claimant’s severe
impairments in her decision. Id.
At step three, the ALJ found that Claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. AR 24.
The ALJ next addressed Claimant’s RFC. The ALJ found that Claimant has the ability to
perform light work as defined in 20 C.F.R. § 404.1564(b). AR 26. Specifically, the ALJ found
that Claimant can: (1) frequently push, pull, and perform foot operations with the left side;
(2) occasionally climb ramps and stairs; (3) occasionally balance, stoop, kneel, crouch, and
crawl; and (4) can tolerate a moderate noise intensity level. Id. The ALJ additionally found that
Claimant: (1) must be allowed to alternate between sitting and standing positions at will
PAGE 7 – OPINION AND ORDER
throughout the day while remaining on task; (2) can never climb ladders, ropes, or scaffolds;
(3) must avoid all exposure to excessive noise and unprotected heights; (4) must work in a low
stress job in which she has only occasional decision-making and changes in work setting;
(5) cannot tolerate production rate or pace work; and (6) would be off task outside normal work
breaks for five percent or less of a normal workday. Id.
In formulating the RFC, the ALJ found that although Claimant’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms . . . [her] statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible.” AR 27. The ALJ reasoned that the medical evidence does not support Claimant’s
allegations of debilitating impairments and associated limitations, and that Claimant’s allegations
are inconsistent with her work and educational history. AR 27-32.
At step four, the ALJ determined that Claimant is unable to perform any past relevant
work. AR 35. At step five, the ALJ considered Claimant’s age, education, work experience,
RFC, and the VE’s testimony. AR 36-37. The ALJ concluded that Claimant could perform
jobs—such as cleaner/polisher, marking clerk, and office helper—that exist in significant
numbers in the national economy. AR 37. Accordingly, the ALJ ruled that Claimant has not been
under a disability, as defined in the Social Security Act, from October 1, 2008, the alleged onset
date, through August 29, 2013, the date of the ALJ’s decision. Id.
DISCUSSION
Claimant argues that the ALJ provided inadequate—and often factually inaccurate—
reasons for discrediting Claimant’s subjective symptom testimony, and thus that substantial
evidence in the record does not support the ALJ’s credibility finding. The Court first discusses
whether the ALJ properly discounted Claimant’s credibility. Because the Court finds that the
ALJ did not provide legally sufficient reasons for finding Claimant less than fully credible, the
PAGE 8 – OPINION AND ORDER
Court then discusses whether to remand this case for further proceedings or to remand this case
for an immediate award of benefits.
A. Claimant’s Credibility
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). “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 v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 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).2 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
2
The Commissioner disputes that the specific, clear, and convincing standard applies and
argues that courts must apply the more deferential “substantial evidence” standard of review set
forth in 42 U.S.C. § 405(g). Ninth Circuit law is clear, however, that “the ALJ may ‘reject the
claimant’s testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)
(quoting Lingenfelter, 504 F.3d at 1036). The Court will follow Ninth Circuit law.
PAGE 9 – OPINION AND ORDER
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
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 16-3p, available at 2016 WL 1119029. 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.
Further, the Ninth Circuit has said that an ALJ also “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’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 step one of the credibility assessment, the ALJ found that Claimant’s medically
determinable impairments could reasonably be expected to cause her alleged symptoms. AR 27.
PAGE 10 – OPINION AND ORDER
At step two, however, the ALJ found that Claimant’s statements concerning the intensity,
persistence, and limiting effects of these symptoms are not fully credible. Id. The ALJ reasoned
that Claimant’s subjective symptom testimony is not supported by the medical record or
Claimant’s work and educational history. The Court addresses each argument in turn.
1. The Medical Record
The ALJ began her credibility assessment by asserting that the medical evidence does not
support Claimant’s allegedly debilitating impairments and associated limitations. AR 27. The
ALJ then engaged in a lengthy recitation of the medical record. See AR 27-31. In the ALJ’s
description of the medical record, however, the ALJ did not explain which pain testimony she
found to be not credible and why. An ALJ must “specifically identify the testimony she or he
finds not to be credible and must explain what evidence undermines the testimony.” Holohan v.
Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). Although the Commissioner argues that
portions of the medical record identified by the ALJ contradict Claimant’s subjective symptom
testimony, a reviewing court may only consider the reasons that the ALJ asserts for discrediting a
claimant’s subjective symptom testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.
2003). Because the ALJ did not explain why her general description of the medical record
undermines Claimant’s testimony, her description is not a clear and convincing reason, supported
by substantial evidence, to discredit Claimant.
After her general description of the medical record, the ALJ asserted specific reasons for
finding that Claimant’s testimony conflicts with the medical record: (1) Claimant’s allegations of
IBS are inconsistent with the medical record; (2) Claimant only alleged back and knee pain in the
context of obtaining and renewing her Oregon medical marijuana card; and (3) Claimant’s
allegations of severe foot pain are unsupported by the medical record. AR 31-32. The Court
addresses each of the ALJ’s assertions in turn.
PAGE 11 – OPINION AND ORDER
a. Claimant’s Allegations of IBS
The ALJ found that Claimant “testified at the hearing to constant stress-related diarrhea
since 2003, but the medical evidence of record does not support this statement.” AR 31. The ALJ
cited to a medical report dated November 2011 where the provider stated that Claimant’s IBS
symptoms were improving due to treatment that included fiber supplements and stress
management. AR 531. This same report characterized “stress as the biggest factor” in Claimant’s
IBS symptoms. Id. The ALJ also cited to a March 2012 report in which Claimant complained of
back pain and severe muscle spasms but denied bowel problems, AR 627-28, and to an
August 2011 report that states that Claimant had been experiencing abdominal pain symptoms
for nearly a year and a half, although she has had symptoms as early as 2002. AR 511. The
August 2011 report additionally stated that although Claimant regularly was taking medication,
Claimant did not notice significant improvement and was still seeing blood in her stool. Id. The
ALJ concluded that the record “demonstrates that claimant’s complaints of abnormal bowel
symptoms were intermittent, and generally well managed through medication,” and that
Claimant “was and remains able to work despite her allegations” regarding IBS. AR 31-32.
Claimant argues that the ALJ’s finding that Claimant testified to “constant stress-related
diarrhea since 2003” is not supported by her hearing testimony. See AR 31 (emphasis added).
The Court agrees. At the hearing, Claimant testified that her IBS is stress-related and “very much
affected by the kind of work” that she is doing at the time. AR 78. Claimant testified that with
her current work schedule, her bowels wake her up at about 3:00 a.m. several times per week and
she has diarrhea until the late morning. Id. According to Claimant, she is able to work part-time
despite her bowel problems because she wears adult diapers. AR 80. Although Claimant stated
that her bowel problems began in 2003, she also testified that the severity of her IBS depends on
how she manages stress and her work schedule. AR 78-80. Thus, the ALJ’s finding that Claimant
PAGE 12 – OPINION AND ORDER
alleged constant stress-related diarrhea since 2003 is not supported by her hearing testimony, nor
is Claimant’s hearing testimony regarding her IBS inconsistent with the medical evidence cited
by the ALJ. Thus, Claimant’s allegations of IBS symptoms are not a specific, clear, and
convincing reason to discredit Claimant’s credibility.
b. Claimant’s Allegations of Back and Knee Pain
The ALJ found that the medical record shows that Claimant only alleged pain symptoms
relating to her back and knee in the context of obtaining and renewing her medical marijuana
card. AR 32. Claimant argues that this finding is factually incorrect. The Court agrees. Although
Claimant sought and obtained a medical marijuana card in 2010, AR 28, Claimant complained of
back pain as early as November 2002. AR 278; see also AR 291-92 (April 2005 medical report
noting that Claimant has a history of lower back pain). Additionally, Claimant began a six-week
physical therapy regimen in February 2006 for her “[l]ong history of back pain” that “progressed
to numbness and tingling” in her right leg. AR 328-29. Thus, the ALJ’s finding that Claimant
only alleged back and knee pain in the context of receiving medical marijuana is unsupported by
the medical record.
The ALJ also noted that an April 2013 medical report stated that Claimant’s chronic pain
symptoms are well-controlled with marijuana. AR 32. That same medical report, however,
described Claimant’s condition as persistent and her pain as “exhausting,” “miserable,” and
“unbearable.” AR 682. The medical report also states that Claimant was incapacitated by pain
seven days out of the previous month. Id. An ALJ may not selectively quote from treatment
records when making a credibility determination. See Holohan, 246 F.3d at 1207-08. Thus, the
ALJ’s passing reference to the April 2013 medical report is not a specific, clear, and convincing
reason to discredit Claimant’s subjective pain testimony.
PAGE 13 – OPINION AND ORDER
c. Claimant’s Allegations of Foot Pain
The ALJ found that Claimant’s allegation of severe pain in her left foot is not supported
by the record. AR 32. The ALJ, however, does not identify any evidence in the record that
contradicts Claimant’s allegation of severe foot pain. In fact, the ALJ explicitly noted that
Claimant complained of this pain to a treating physician in January 2012. Id. (citing AR 528).
Ninth Circuit law is clear that “‘the ALJ must identify what testimony is not credible and what
evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d 1133, 1138
(9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)) (emphasis added).
Because the ALJ does not identify what medical evidence in the record conflicts with Claimant’s
testimony on this point, the ALJ’s finding that Claimant’s allegation of severe pain is
unsupported by the record is a legally insufficient reason for discrediting Claimant.
In sum, the ALJ did not provide specific, clear, and convincing reasons for finding that
the medical record undermines Claimant’s credibility.
2. Claimant’s Work and Educational History
The ALJ found that Claimant’s decision to leave work in order to pursue her degree
reflects negatively on Claimant’s credibility because it demonstrates “the claimant’s ability to
achieve a long term goal.” AR 31. The ALJ also noted that “prior to going to school, the
claimant stated she wanted to work one day per week in art therapy, as she now is.”3 Id. The ALJ
concluded that “[t]his demonstrates that the claimant, despite her limitations, is able to attend and
complete school as well as successfully work.” Id.
The Commissioner argues that the ALJ reasonably found that Claimant decided to leave
work in order to pursue a degree rather than due to her impairments. The Commissioner cites to
3
The Court notes that the ALJ found that Claimant’s work at LCC did not rise to the
level of “substantial gainful employment” as defined in the SSR. AR 23.
PAGE 14 – OPINION AND ORDER
Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001), in support of the legal proposition that this is
a sufficient basis to disregard subjective symptom testimony. See id. at 828 (finding that the ALJ
did not err in rejecting the claimant’s subjective pain testimony where the claimant “stated at the
administrative hearing and to at least one of his doctors that he left his job because he was laid
off, rather than because he was injured”). This was not the reasoning of the ALJ, however. The
ALJ discounted Claimant’s credibility because Claimant’s decision to leave work reflected her
“ability to achieve a long term goal.” AR 31. A reviewing court may only consider the reasons
that the ALJ provides for discrediting a claimant’s subjective symptom testimony. Connett,
340 F.3d at 874. The Court agrees with Claimant that her ability to achieve a long-term goal and
to secure a part-time job that does not rise to the level of substantial gainful employment are not,
in and of themselves, specific, clear, and convincing reasons for discrediting Claimant.
The ALJ also found that although Claimant testified to “many accommodations in her
past job, the record does not support this finding.” AR 31. At the hearing, Claimant expressed
frustration that although the Oregon DOJ gave other employees accommodations that were
identical to some accommodations that she had asked for, Claimant did not receive those
accommodations. AR 82-83. The only special accommodation that Claimant identified receiving
at the Oregon DOJ was time off to see her psychiatrist during the weekday. AR 84. Although
Claimant testified that Oregon Vocational Rehabilitation paid for hearing aids and special shoes
that allowed Claimant to stand on cement floor, Claimant’s hearing testimony is vague as to
when she received the hearing aids and special shoes. AR 83. Thus, it is unclear that Claimant
testified to receiving “many accommodations in her past job.” AR 31 (emphasis added).
The ALJ noted that Claimant’s Employee Assistance Program (“EAP”) records do not
identify what accommodations, if any, were provided to Claimant. AR 31. The EAP records,
PAGE 15 – OPINION AND ORDER
however, are actually medical records from appointments Claimant had with Ms. Abelson, a
Licensed Clinical Social Worker, in 2006 and 2008. See AR 660-678. EAP referred Claimant to
Ms. Abelson. AR 662. Ms. Abelson, in turn, referred Claimant to Dr. Baldwin for further
psychological treatment in 2008. AR 677-78. These records do not contradict Claimant’s hearing
testimony. Additionally, an ALJ cannot disregard testimony “solely because it is not
substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883. Thus, the
absence of any discussion in Claimant’s EAP referral records regarding special accommodations
is not a clear and convincing reason for discrediting Claimant’s testimony.
In sum, the ALJ did not provide specific, clear, and convincing reasons for finding that
Claimant’s work and educational history undermines her credibility.
B. Remand for Benefits vs. Further Proceedings & Credit-as-True Doctrine
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). 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 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. at 1100. 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 Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
PAGE 16 – OPINION AND ORDER
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). It has been described by the United States
Court of Appeals for the Ninth Circuit as:
[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,
775 F.3d at 1141 (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”).
Further administrative proceedings may serve a useful purpose in this case. For example,
the Appeals Council admitted additional evidence into the record that has not been considered by
the ALJ. Additionally, the ALJ appears to have based her evaluation of Dr. Prescott’s and
Ms. Myers’s opinions in part on her finding regarding Claimant’s credibility and hearing
testimony.4 AR 34-35. Thus, outstanding issues remain and the Court remands this case for
further proceedings. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
4
Claimant suggests that if the Court remand this case for further proceedings, one or
more of Claimant’s mental health providers should complete a psychiatric review form to be
PAGE 17 – OPINION AND ORDER
On remand, the ALJ shall reconsider Claimant’s credibility, taking into account the
additional medical evidence the Appeals Council admitted into the record. If necessary, the ALJ
shall also reconsider those portions of Dr. Prescott’s and Ms. Myer’s opinions that the ALJ
afforded only partial weight to due to the ALJ’s finding regarding Claimant’s credibility, or any
other portion of the record as required, and formulate a new RFC and determine whether work
exists in significant numbers in the national economy for a person with Claimant’s limitations.
CONCLUSION
The Commissioner’s decision that Claimant is not disabled is REVERSED and this case
is REMANDED for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 31st day of May, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
entered into the record. Claimant, however, cites no authority that would support the procedure
she suggests for remand in this case. Accordingly, the Court will not order such a form to be
completed.
PAGE 18 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?