Larsell v. Commissioner Social Security Administration

Filing 14

OPINION AND ORDER. For these reasons, the Court REVERSES the decision of theCommissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 9/30/16 by Judge Anna J. Brown. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DANIEL A. LARSELL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

SHERWOOD J. REESE
DREW L. JOHNSON
170 Valley River Dr.
Eugene, OR 97401
[phone]
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]

1 - OPINION AND ORDER

6:15-CV-01665-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
ERIN F. HIGHLAND
Special Assistant United States Attorney
701 Fifth Avenue, Ste. 2900 M/S 221 A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Daniel A. Larsell seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for
Disability Insurance Benefits (DIB) under Title II of the Social
Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter for further
proceedings.

ADMINISTRATIVE HISTORY
Plaintiff filed a protective application for DIB on June 6,
2011, alleging a disability onset date of April 16, 2009.
Tr. 126-32, 143.1

Plaintiff’s application was denied initially

on November 23, 2011, and on reconsideration on July 5, 2012.

1

Citations to the official transcript of record filed by
the Commissioner on January 11, 2016, are referred to as "Tr."
2 - OPINION AND ORDER

Tr. 77-81, 84-87.

An Administrative Law Judge (ALJ) held a

hearing on September 11, 2013.
represented by an attorney.

At the hearing Plaintiff was

Plaintiff and a vocational expert

(VE) testified at the hearing.

Tr. 11.

The ALJ ordered the following post-hearing examinations of
Plaintiff:

a neuropsychological evaluation by Ben Kessler,

Psy.D., on October 23, 2013; an opthalmological examination by
John Lee, M.D., on November 8, 2013; and a musculoskeletal
examination

by Cory Maughn, D.O., on November 9, 2013.

The ALJ issued her decision on February 14, 2014, in which
she found Plaintiff is not disabled and, therefore, is not
entitled to benefits.

Tr. 11-18.

Pursuant to 20 C.F.R.

§ 404.984(2) that decision became the final decision of the
Commissioner on July 6, 2015, when the Appeals Council denied
Plaintiff's request for review.

Tr. 1-3.

See Sims v. Apfel, 530

U.S. 103, 106-07 (2000).

BACKGROUND
Plaintiff was born in December 1949 and was fifty-nine years
old on his alleged onset date.

Tr. 53, 143.

He earned a degree

in accounting from Oregon State University and is certified as a
tax preparer.

Tr. 148.

Plaintiff only has past relevant work

experience as an accountant.

Tr. 17.

Although Plaintiff worked

after his alleged disability onset date, the ALJ found that work

3 - OPINION AND ORDER

did not rise to the level of substantial gainful employment.
Tr. 13.
Plaintiff alleges disability due to diabetes, heart
problems, vision impairment, high blood pressure, depression,
swollen feet, mental confusion, memory problems, and intestinal
problems.

Tr. 53.

Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 13-17.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate his

inability “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.”
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
4 - OPINION AND ORDER

The district 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 as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.

Id. (citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

5 - OPINION AND ORDER

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 404.1520(a)(4)(I).

See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairments or combination of impairments.
§ 404.1520(a)(4)(ii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
6 - OPINION AND ORDER

20 C.F.R.

§ 404.1520(e).

See also Social Security Ruling (SSR) 96-8p.

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 404.1520(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R. § 404.1520(g)(1).

7 - OPINION AND ORDER

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff met the insured status
requirements and has not engaged in substantial gainful activity
after his April 16, 2009, alleged onset date.

Tr. 13.

At Step Two the ALJ found Plaintiff has the severe
impairments of cervical spondylosis, lumbar spondylosis, type II
diabetes mellitus, obesity, hypertension, coronary artery
disease, and angina pectoris.

Tr. 13.

The ALJ found Plaintiff’s

impairment of mild depression is nonsevere.

Tr. 13.

At Step Three the ALJ concluded Plaintiff does not have an
impairment or combination of impairments that meet or medically
equal the severity of one of the listed impairments in 20 C.F.R.
part 404, subpart P, appendix 1.

Tr. 14.

The ALJ found Plaintiff has the RFC to perform light work
with the following limitations:

He can stand and walk in

combination for six hours and can sit for at least six hours out
of an ordinary work day; he can lift 20 pounds occasionally and
10 pounds frequently; he cannot climb ladders, ropes, or
scaffolds; he can frequently climb ramps and stairs, stoop,
crouch, kneel and crawl; and he should not be exposed to hazards
that require a quick response.

Tr. 14-15.

At Step Four the ALJ found Plaintiff is able to perform his
past relevant work as an accountant.

8 - OPINION AND ORDER

Tr. 17.

Accordingly, the ALJ found Plaintiff is not disabled.
Tr. 17.

DISCUSSION
Plaintiff contends the ALJ erred when she (1) failed at Step
Two to include Plaintiff’s edema as a severe impairment,
(2) failed to address Plaintiff’s alleged vision impairment,
(3) gave little weight to the opinion of examining physician
Dr. Maughn, (4) did not give clear and convincing reasons for
rejecting Plaintiff’s testimony, and (5) found Plaintiff retains
the ability to perform his past work as an accountant.
I.

The ALJ did not err at Step Two.
Plaintiff contends the ALJ erred at Step Two when she failed

to include Plaintiff’s edema as a severe impairment.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.

Stout v. Comm’r of

Soc. Sec., 454 F.3d 1050, 1052 (9th Cir. 2006).
C.F.R. §§ 404.1509, 404.1520(a)(4)(ii).

See also 20

A severe impairment

"significantly limits" a claimant's "physical or mental ability
to do basic work activities."

20 C.F.R. § 404.1521(a).

See also

Ukolov v. Barnhart, 420 F.3d 1002 at 1003 (9th Cir. 2005).

The

ability to do basic work activities is defined as "the abilities
and aptitudes necessary to do most jobs."
9 - OPINION AND ORDER

20 C.F.R.

§§ 404.1521(a), (b).

Such abilities and aptitudes include

walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, handling, seeing, hearing, speaking; understanding,
carrying out, and remembering simple instructions; using
judgment; responding appropriately to supervision, co-workers,
and usual work situations; and dealing with changes in a routine
work setting.

Id.

Conversely, an impairment is not severe if it

“has no more than a minimal effect on the ability to do basic
work activities.”

Id.

See also SSR 96-3p.

Dr. Douglas Thayer, M.D., Plaintiff’s primary treating
physician, first diagnosed “2+ pitting edema in the ankles” on
August 7, 2008, and continued to observe and to diagnose
“significant” edema in Plaintiff’s ankles.
356-58, 368.

Tr. 227-28, 235-36,

Dr. Daniel Lincoln, M.D., an examining physician,

also observed “2+ pitting edema to the knees” in his May 12,
2012, evaluation of Plaintiff.

Tr. 348.

Dr. Maughn examined

Plaintiff on November 9, 2013, and found Plaintiff had
“2+ pitting edema in his bilateral lower extremities extending to
the mid shin.”

Tr. 407.

Neither Dr. Lincoln nor Dr. Maughn

specifically diagnosed Plaintiff with edema or included it as a
factor in their assessment of Plaintiff’s limitations.

The

medical records beginning in 2008 attributed Plaintiff’s edema to
his medications for hypertension and diabetes.
241, 245, 380.

Tr. 228, 235,

Plaintiff testified he had “tremendous water

10 - OPINION AND ORDER

retention” in his feet “maybe once a month,” but he stated he
took water pills and elevated his feet to address these symptoms.
Tr. 40.
The ALJ specifically addressed the swelling in Plaintiff’s
legs at Step Two and concluded:
Plaintiff] testified that his legs swell and he
needs to elevate them when seated. This
requirement is not evident by or supported in the
medical record. There is nothing to medically
demonstrate that the use of compression stockings
is not an adequate measure.
Tr. 15.

The listings of impairments characterizes edema as a

sign of other impairments such as chronic heart failure.
20 C.F.R. pt. 404, Subpt. P. App’x 1, §§ 4.00D2, 4.02.

See

Thus,

edema can establish the existence of an impairment, but it is not
an impairment itself.

Id.

The ALJ, therefore, did not find

Plaintiff’s edema to be a severe impairment.
Even if the ALJ erred by failing to find edema to be a
severe impairment, the Ninth Circuit has held when the ALJ has
resolved Step Two in a claimant's favor, any error in failing to
designate a specific impairment as severe does not prejudice a
claimant at Step Two.

Burch v. Barnhart, 400 F.3d 676, 682 (9th

Cir. 2005)(any error in omitting an impairment from the severe
impairments identified at Step Two was harmless when Step Two was
resolved in claimant's favor).
On this record the Court concludes the ALJ did not err at
Step Two because she provided legally sufficient reasons
11 - OPINION AND ORDER

supported by substantial evidence in the record for finding
Plaintiff did not have the severe impairment of edema.
II.

The ALJ erred by failing to address the medical evidence and
to develop the record fully regarding Plaintiff’s alleged
vision impairment.
Plaintiff contends the ALJ erred when she failed to address

Plaintiff’s testimony regarding vision problems and the
ophthalmological evaluation of Plaintiff by Dr. Lee.
The Commissioner bears the burden of developing the record.
Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001).

When

important medical evidence is incomplete, the ALJ has a duty to
recontact the provider for clarification.
§§ 404.1527(c)(2).

20 C.F.R.

See also Garcia v. Comm’r. of Soc. Sec., 768

F.3d 925, 930 (9th Cir. 2014)(ALJ always has a “special duty to
fully and fairly develop the record” even when claimant is
represented by an attorney)(citing Celaya v. Halter, 332 F.3d
1177, 1183 (9th Cir. 2003)).
"Critical to the fair and effective operation of the system
for distributing social security benefits based on disability is
the gathering and presentation of medical evidence."

Reed v.

Massanari, 270 F.3d 838, 841 (9th Cir. 2001)(citation omitted).
Although the burden to demonstrate a disability lies with the
claimant, "it is equally clear the ALJ has a duty to assist in
developing the record.”
§§ 404.1512(d)-(f)).
12 - OPINION AND ORDER

Id. (quotation omitted; citing 20 C.F.R.

"One of the means available to an ALJ to supplement an
inadequate medical record is to order a consultative examination,
i.e., 'a physical or mental examination or test purchased for [a
claimant] at [the Social Security Administration's] request and
expense.'”

Id. (quoting 20 C.F.R. §§ 404.1519, 416.919).

"[T]he

Commissioner has broad latitude in ordering a consultative
examination.”

Id. at 842 (quotation omitted).

Although the

government is not required to bear the expense of an examination
for every claimant, some cases “normally require a consultative
examination,” including cases in which “additional evidence
needed is not contained in the records of [the claimant's]
medical sources” and cases involving an “ambiguity or
insufficiency in the evidence [that] must be resolved.”

Id.

(quoting 20 C.F.R. §§ 404.1519a(b)(1),(4)).
At the hearing Plaintiff testified he had a vision
impairment that would interfere with his ability to work and that
he was unable to read small print without holding the writing
within 8-10 inches of his face.

Tr. 27, 34.

Lay-witness Eugenie

Taylor, a close friend of Plaintiff who Skypes almost daily with
him, stated in a letter submitted through Plaintiff’s counsel
that Plaintiff’s poor eyesight “forces him to lean in and sit
improperly to be able to read his computer screen.”

Tr. 191.

The ALJ did not address Taylor’s statement other than to note
that “Skype requires the use of a computer monitor, not

13 - OPINION AND ORDER

dissimilar to spending time working with a computer.”

Tr. 15.

The ALJ does not address in his opinion the statements by either
Plaintiff or Taylor regarding Plaintiff’s alleged vision
impairment.
Dr. Gale Smolen, M.D., an examining psychiatrist, noted in
her May 4, 2012, report that Plaintiff “is almost legally blind”
even with glasses and indicated an Axis III diagnosis of vision
impairment.

Tr. 342, 344.

The ALJ, however, did not address

Dr. Smolen’s finding.
The ALJ ordered a post-hearing ophthalmological examination,
which was performed on November 8, 2013, by Dr. Lee.

The record

includes an examination report consisting of medical
hieroglyphics without a narrative explanation setting out
Dr. Lee’s opinion or conclusions.

Tr. 389-91.

In any event, the

ALJ does not address Dr. Lee’s report in her opinion.
In her Response to Plaintiff’s Opening Brief the
Commissioner interpreted Dr. Lee’s report as reflecting Dr. Lee
found Plaintiff did not have any acute vision problems and that
any of Plaintiff’s vision problems could be corrected with
glasses.

new

Plaintiff, however, points out that the report is

“illegible” and cannot be properly evaluated.

The Court agrees.

As noted, the ALJ must develop the record when there is ambiguous
evidence or when the record is inadequate to allow for proper
evaluation of the evidence.

14 - OPINION AND ORDER

McLeod v. Astrue, 640 F.3d 881, 885

(9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d 453, 459–60
(9th Cir. 2001)).

Thus, the Court finds the illegible report is

not sufficient to satisfy the AJL’s duty to develop the record as
to Plaintiff’s alleged vision impairment.
Although the ALJ found Plaintiff is not disabled and is able
to perform his past relevant work as an accountant, the ALJ did
not make any determination regarding Plaintiff’s alleged vision
impairment that is supported by the record; i.e., whether it
constitutes a severe impairment (Step Two) and/or how such an
impairment could affect Plaintiff’s ability to perform his past
relevant work.

Plaintiff’s testimony and Dr. Smolen’s report

indicate Plaintiff’s vision constitutes a significant functional
limitation.

Although the court must weigh all of the evidence

whether it supports or detracts from the Commissioner's decision
(Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.
2008)), the Court is “constrained to review the reasons the ALJ
asserts.”

Here the ALJ did not provide any reasons for failing

to address the opinions of Dr. Lee or Dr. Smolen.

See Connett v.

Barnhart, 340 F.3d 871, 874 (“It was error for the district court
to affirm the ALJ's credibility decision based on evidence that
the ALJ did not discuss.”).

See also Marsh v. Colvin, 792 F.3d

1170, 1172 (9th Cir. 2015)(court cannot affirm the agency on a
ground not invoked by the ALJ without violating the Chenery
rule)(citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

15 - OPINION AND ORDER

On this record the Court concludes the ALJ erred when she
failed to provide legally sufficient reasons supported by
substantial evidence in the record for failing to address and to
develop the record fully as to Plaintiff’s alleged vision
impairment.
III. The ALJ did not err when considering Dr. Maughn’s opinion.
Plaintiff contends the ALJ erred when she rejected the
opinion of Dr. Maughn, an examining physician, that Plaintiff has
notable objective limitations in neck flexion.
An ALJ may reject an examining or treating physician's
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes “findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record.”

Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes v.
Bowen,881 F.2d 747, 751 (9th Cir. 1989)).

Legitimate reasons for

rejecting a physician’s opinion may include 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).
Plaintiff was involved in an automobile accident on July 1,
2011.

He followed up with his treating physician, Dr. Thayer, on

July 11, 2011.

At that time Dr. Thayer noted Plaintiff had

16 - OPINION AND ORDER

decreased range of motion of his “head” with full forward
flexion.

Tr. 221-22.

Dr. Thayer diagnosed cervical and thoracic

strain, and prescribed physical therapy.

Tr. 223.

The physical

therapy evaluation on July 18, 2011, indicated Plaintiff was
“sorest in the area of his lower neck at C6-7 on the right.”
Tr. 283.

The physical-therapy progress report dated

September 22, 2011, noted Plaintiff was last seen on August 11,
2011, for treatment, but he did not call back for further
treatment.

Tr. 280.

Neither Dr. Thayer nor the physical

therapist stated any opinion regarding Plaintiff’s limitations.
A radiology examination on April 26, 2012, by Dr. Victor
Leonardo, M.D., reflected Plaintiff has cervical and lumbar
spondylosis.

Tr. 337-38.

Dr. Lincoln, who examined Plaintiff in

May 2012 regarding neck and back complaints, diagnosed him with
chronic neck and back pain, but Dr. Lincoln found “no
limitations” in Plaintiff’s ability to stand, to walk, or to sit.
Dr. Lincoln further indicated Plaintiff has “no limitations” in
the work-place environment, and his “maximum sitting capacity” is
without limitation.

Tr. 346-50.

As previously noted, following the hearing before the ALJ,
Dr. Maughn conducted a musculoskeletal examination of Plaintiff
on November 9, 2013.

Tr. 405-17.

Dr. Maughn noted Plaintiff’s

neck rotation was limited to 15 degrees to the left and
15 degrees to the right, limited in flexion to 15 degrees, and

17 - OPINION AND ORDER

limited in extension to 15 degrees.

Tr. 407.

Dr. Maughn

diagnosed Plaintiff with “chronic neck pain with x-rays showing
severe spondylosis” and noted Plaintiff has “notable objective
restrictions with range of motion.”

Tr. 409.

In his functional

assessment for postural activities, however, Dr. Maughn
indicated:

“Limitations of never with respect to ladders,

scaffolds and ropes.

It is very difficult for [Plaintiff] to

extend, flex or rotate his neck which would make these activities
extremely difficult.

He would have no other limitations with

respect to postural activities.”

Tr. 409.

As to workplace

environmental activities, Dr. Maughn concluded:

“[Plaintiff]

would have limitations to working around heights and heavy
machinery due to his decreased range of motion of his neck and
likely decreased reaction time. . . .

He would have no other

limitation with respect to workplace environmental activities.”
Tr. 409.

In the check-box portion of his report, however,

Dr. Maughn noted a sitting limitation of four hours in an eighthour day.

Tr. 411.

The ALJ noted Dr. Maughn assessed Plaintiff with notable
objective restrictions with range-of-motion testing and a medium
RFC.

Tr. 16, 309.

The ALJ, however, concluded “[t]here is no

treating source residual functional capacity in the record,” and
the ALJ found Dr. Maughn’s assessment “did not take into account
pain reasonably associated with the degree of claimant’s spinal

18 - OPINION AND ORDER

disease.”
weight.”

The ALJ, therefore, gave Dr. Maughn’s opinion “limited
Tr. 17.

The Court concludes on this record that the ALJ did not err
when she gave Dr. Maughn’s opinion limited weight because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
IV.

The ALJ did not err when she found Plaintiff’s testimony was
not credible.
Plaintiff contends the ALJ erred by failing to provide clear

and convincing reasons for finding Plaintiff’s testimony was not
fully credible.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
19 - OPINION AND ORDER

(9th Cir. 1995)).

General assertions that the claimant’s

testimony is not credible are insufficient.

Id.

The ALJ must

identify “what testimony is not credible and what evidence
undermines the claimant's complaints.”

Id. (quoting Lester, 81

F.3d at 834).
Plaintiff maintained he was unable to work because of pain
in his neck that prevented him from looking down to fill out
forms, poor vision that impaired his ability to read small print,
and swelling of his legs that required elevation.
Tr. 39-40, 47.
The ALJ provided several reasons for finding Plaintiff’s
statements about his limitations, at least those arising from his
neck and leg symptoms, were “not entirely credibile.”
First, the ALJ found Plaintiff was noncompliant with
treatment for his diabetes and that Plaintiff’s purported stamina
difficulties or concentration were the result of his uncontrolled
diabetes.

Tr. 15.

The ALJ may find a claimant’s testimony was

not credible if the claimant does not follow prescribed treatment
“and there are no good reasons for this failure.”

SSR 96-7p.

See Tommasetti, 533 F.3d at 1039 (a claimant’s unexplained
failure to follow a prescribed treatment recommendation is a
relevant credibility consideration).
Here Plaintiff testified he sometimes forgot to take his
insulin and pills.

Tr. 43.

20 - OPINION AND ORDER

Plaintiff also testified he was

noncompliant with his prescribed exercise program because he
forgot to exercise.

Tr. 43.

In July 2011 Dr. Thayer stated

Plaintiff’s control of his hemoglobin as a measure of diabetes
was “completely unacceptable.”

Tr. 219.

Dr. Thayer noted

Plaintiff “does not have much interest in using insulin” and was
“not particularly interested” in following Dr. Thayer’s
suggestion that he eat smaller meals throughout the day as
opposed to one large meal.

Tr. 219-20.

In July 2012 Dr. Thayer

again noted Plaintiff’s diabetes was not adequately controlled.
Tr. 357.

In September 2013 Dr. Thayer also stated Plaintiff’s

diabetes was “poorly controlled” and noted Plaintiff was not
eating or taking his insulin regularly.

Tr. 364.

Thus, the

Court concludes the ALJ properly discounted Plaintiff’s
credibility based on his noncompliance with medical treatment.
The ALJ also discounted Plaintiff’s credibility based on his
participation in daily activities inconsistent with his symptoms
and limitations.

Activities are a proper ground for the ALJ to

question the credibility of an individual’s subjective
allegations “[e]ven where those activities suggest some
difficulty functioning.”

Molina v. Astrue, 674 F.3d 1104, 1113

(9th Cir. 2012).
Plaintiff’s testimony indicated to a limited extent that he
drives, takes care of himself and his pets, does his own
shopping, prepares his meals, participates in civil war re-

21 - OPINION AND ORDER

enactments, maintains his yard, and uses the computer daily to
Skype with friends and to play computer games.

Tr. 155-58.

Plaintiff’s daughter, Patricia Adams, indicated in her ThirdParty Function Report dated August 12, 2011, that Plaintiff “is
fairly sedentary” and spends most of his day sleeping or watching
TV or on the computer.

Tr. 163.

Dr. Smolen stated in his report

that Plaintiff was able to perform the routine activities of
daily living albeit at a slow pace.

Tr. 342.

Plaintiff had adopted a “sedentary lifestyle.”

The ALJ also noted
Tr. 16.

Thus,

the Court finds the ALJ reasonably concluded Plaintiff’s daily
activities were inconsistent with his complaint of disabling
symptoms and limitations.
The ALJ also concluded Plaintiff’s allegations were
inconsistent with the medical evidence.

The ALJ may not reject a

claimant’s testimony merely because the degree of symptoms
alleged is not substantiated by objective medical evidence.
Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)(lack of
medical evidence cannot form the sole basis for discounting pain
testimony, but is a factor that the ALJ can consider in his
credibility analysis).

Medical evidence, however, is still a

relevant factor in determining the severity of a claimant’s pain
and its disabling effects.

Rollins v. Massanari, 261 F.3d 853,

857 (9th Cir. 2001).
Here, as a basis for her conclusion that the medical

22 - OPINION AND ORDER

evidence did not substantiate Plaintiff’s statements, the ALJ
cited Dr. Maughn’s opinion that Plaintiff could perform mediumlevel work and Dr. Lincoln’s report in which he assessed
Plaintiff with “no workplace limitations.”

Tr. 16, 350, 405.

Finally, the ALJ found Plaintiff stopped working for reasons
other than his disability.

Tr. 16.

The ALJ may assign less

weight to a claimant’s testimony when the claimant stopped
working for reasons other than disability.
268 F.3d 824, 833 (9th Cir. 2001).

Bruton v. Massanari,

The ALJ noted Plaintiff

stopped working as a tax preparer when the company for which he
was working did not ask him back.

Tr. 16.

Plaintiff himself

indicated he did not return to his last job after the 2011 tax
season because it “wasn’t worth it,” he got ill from contact with
the children of clients, he had to work extra hours and to study
on his own without getting paid, and he had to pay for his own
licensing.

Tr. 394.

On this record the Court concludes the ALJ provided legally
sufficient reasons supported by substantial evidence in the
record for rejecting Plaintiff’s testimony as to the limiting
effects of his impairments.

The Court, therefore, concludes the

ALJ did not err when she rejected Plaintiff's testimony.
V.

The ALJ erred when she found Plaintiff was able to perform
his past work.
Plaintiff contends the ALJ erred at Step Four when she found

Plaintiff retains the ability to perform his past work as an
23 - OPINION AND ORDER

accountant.

Plaintiff contends the ALJ failed to consider

Plaintiff’s neck pain, vision, and edema impairments.
As previously noted, the Court has concluded the ALJ did not
err when she gave limited weight to Dr. Maughn’s post-hearing
opinion and rejected Plaintiff’s symptom testimony at the hearing
because the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.

The Court has

also concluded the ALJ did not err when she did not include
Plaintiff’s edema as a severe impairment because she provided
legally sufficient reasons supported by substantial evidence in
the record for doing so.
Even though the ALJ did not include in her evaluation of
Plaintiff’s RFC certain limitations that Plaintiff alleged in his
testimony at the hearing and that Dr. Maughn set out in his posthearing opinion, the ALJ included some of those limitations in
her hypotheticals posed to the VE.

For example, the ALJ included

a limitation for following simple instructions.

The VE stated

Plaintiff would not be able to perform his past work as an
accountant with the simple-instruction limitation because an
accountant is a highly skilled job.

Tr. 49.

Without that

limitation, however, the VE stated Plaintiff would be able to
perform his past work as an accountant.

Tr. 50.

The ALJ then

modified her hypothetical to include a requirement that Plaintiff
elevate his feet to waist height for an entire day once a month

24 - OPINION AND ORDER

and added that Plaintiff is unable to hold his head in a forward
flexed position for more than 30% of the time.

The VE stated

Plaintiff’s past work as an accountant would be “ruled out” with
those restrictions.

Tr. 50.

Although the ALJ included limitations that she properly
rejected in her hypotheticals to the VE, the ALJ relied on her
own evaluation of Plaintiff’s RFC (i.e., that Plaintiff is able
to perform light work) when determining whether Plaintiff is able
to perform past relevant work.
was

The ALJ also noted her evaluation

less restrictive than Dr. Maughn’s post-hearing assessment

(a “medium residual function capacity”).

See SSR 96-8p.

Tr. 17.

The ALJ ultimately concluded Plaintiff is capable of performing
his past relevant work as an accountant on the ground that the
ALJ’s evaluation of Plaintiff’s RFC does not preclude that work.
Tr. 17.
As noted, however, the Court has concluded the ALJ erred
when she did not address nor develop fully the record regarding
Plaintiff’s allegation as to his vision impairment.

If the ALJ

fully and properly considered that limitation, it could affect
the ALJ’s determination as to whether Plaintiff has the ability
to perform his past relevant work as an accountant.

The Court,

therefore, concludes the ALJ erred when she determined on an
incomplete record that Plaintiff is able to perform his past
relevant work as an accountant.

25 - OPINION AND ORDER

REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for the calculation of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.

Id. at 1179.

The court may

"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."

Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

The court should grant an immediate award

of benefits when
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits if

the case were remanded for further proceedings.

Id. at 1178 n.2.

The Court concludes on this record that a remand for further
proceedings consistent with this Opinion and Order is required to
26 - OPINION AND ORDER

permit the ALJ to determine whether Plaintiff has a vision
impairment and, if so, whether such impairment is severe, how
such an impairment is severe, how such an impairment would impact
Plaintiff’s ability to perform his past relevant work as an
accountant, and whether such an impairment renders Plaintiff
disabled.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 30th day of September, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

27 - OPINION AND ORDER