Cowie v. Commissioner Social Security Administration
OPINION AND ORDER. The Commissioner's decision is REVERSED and this case is REMANDED for further proceedings. IT IS SO ORDERED. Signed on 11/29/2017 by Magistrate Judge Youlee Yim You. (pvh)
IN THE UNITED STATES DISRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTINA L. COWIE,
Case No. 6:16-cv-01965-YY
OPINION AND ORDER
COMMISSIONER OF SOCIAL
YOU, Magistrate Judge:
Plaintiff Cristina A. Cowie (“Cowie”) brings this action for judicial review of the final
decision of the Commissioner of Social Security (“Commissioner”) denying her application for
Title II Disability Insurance Benefits (“DIB”) under the Social Security Act (“Act”). This court
has jurisdiction to review the Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). All parties have consented to allow a Magistrate Judge enter final orders and
judgment in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the
reasons set forth below, the Commissioner’s decision is REVERSED and this case is
REMANDED for further proceedings.
On August 19, 2012, Cowie applied for DIB, alleging disability as of January 15, 2011.
Tr. 156-57. Her applications were denied initially and upon reconsideration. Tr. 91-94, 98-100.
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On January 27, 2015, a hearing was held before an Administrative Law Judge (“ALJ”), wherein
Cowie was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 28-62. On
April 16, 2015, the ALJ issued a decision finding Cowie not disabled within the meaning of the
Act. Tr. 9-23. After the Appeals Council denied her request for review, Cowie filed a complaint
in this court. Tr. 1-4.
Born on August 16, 1974, Cowie was 36 years old on the alleged onset date of disability
and 40 years old at the time of the hearing. Tr. 33, 156. She obtained a GED in 1994 and worked
previously as a deli worker, food prep worker, pizza cook, and manager. Tr. 54-56, 168. Cowie
alleges disability due to back pain, leg weakness, peripheral neuropathy, seizures, incontinence,
and chronic obstructive pulmonary disease (“COPD”). Tr. 40-41, 167, 203, 211.
Disability is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to
determine whether a claimant is disabled within the meaning of the Act. Lounsburry v. Barnhart,
468 F.3d 1111, 1114 (9th Cir. 2006) (citation omitted); 20 C.F.R. § 404.1520.
At step one, the ALJ determines whether the claimant is performing substantial gainful
activity. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i) & (b).
At step two, the ALJ determines whether the claimant has “a severe medically
determinable physical or mental impairment” or combination of impairments that meets the 12-
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month durational requirement. 20 C.F.R. § 404.1520(a)(4)(ii) & (c). Absent a severe impairment
or combination of impairments, the claimant is not disabled. Id.
At step three, the ALJ determines whether the impairment or combination of impairments
meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (Listing of
Impairments). 20 C.F.R. § 404.1520(a)(4)(iii) & (d). If the impairment or combination of
impairments is determined to meet or equal any listed impairment, the claimant is disabled. Id.
If adjudication proceeds beyond step three, the ALJ evaluates medical and other relevant
evidence in assessing the claimant’s residual functional capacity (“RFC”). The claimant’s RFC is
an assessment of work-related activities the claimant may still perform on a regular and
continuing basis, despite the limitations imposed by her impairments. 20 C.F.R. § 404.1520(e);
SSR 96-8p, available at 1996 WL 374184.
At step four, the ALJ uses the RFC to determine whether the claimant can perform past
relevant work. 20 C.F.R. § 404.1520(a)(4)(iv) & (e). If the claimant cannot perform past relevant
work, then at step five the ALJ determines whether the claimant can perform other work in the
national economy. 20 C.F.R. § 404.1520(a)(4)(v) & (g).
The claimant bears the initial burden of establishing disability. Lockwood v. Comm’r of
Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010) (citation omitted). If the process reaches
step five, however, the burden shifts to the Commissioner to show that jobs exist in the national
or local economy within the claimant’s RFC. Id. If the Commissioner meets this burden, then the
claimant is not disabled; otherwise, the claimant is disabled and entitled to benefits. 20 C.F.R. §
404.1520(a)(4)(v) & (g).
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At step one, the ALJ found Cowie last met the insured status of the Act on December 31,
2014, and had not engaged in substantial gainful activity since the alleged onset date, January 15,
2011. Tr. 11.
At step two, the ALJ determined the following impairments were medically determinable
and severe: degenerative disc disease of the lumbar spine, COPD, and peripheral neuropathy. Id.
At step three, the ALJ found that Cowie’s impairments, either singly or in combination,
did not meet or equal the requirements of a listed impairment. Tr. 14.
Because Cowie did not establish presumptive disability at step three, the ALJ continued
the sequential evaluation to determine how Cowie’s impairments affected her ability to work.
The ALJ resolved that Cowie had the RFC to perform medium work, except that she “was
capable of frequent climbing of ladders, ropes or scaffolds, and frequent stooping,” and “needed
to avoid concentrated exposure to extreme cold, excessive vibration, respiratory irritants such as
fumes, odors, dusts, gases, and poorly ventilated areas, the operational control of moving
machinery, unprotected heights and hazardous machinery.” Tr. 14-15.
At step four, the ALJ found Cowie could not perform any past relevant work. Tr. 21.
At step five, the ALJ determined, based on the VE’s testimony, that there were a
significant number of jobs in the national and local economy that Cowie could perform despite
her impairments, such as hand packager, coffee maker, office helper, and mailroom clerk. Tr. 2122. Accordingly, the ALJ concluded Cowie was not disabled under the Act from January 15,
2011, through December 31, 2014, and rejected her DIB claim. Tr. 22.
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STANDARD OF REVIEW
The reviewing 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. 42 U.S.C. §
405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). “Substantial evidence means more
than a mere scintilla, but less than a preponderance, i.e. such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Robbins v. Social Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006) (citation and internal quotations omitted). This court must weigh the
evidence that supports and detracts from the ALJ’s conclusion. Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007) (citation omitted). The entire record must be considered as a whole
and the court “may not affirm simply by isolating a specific quantum of supporting evidence.”
Robbins, 466 F.3d at 882 (citation and internal quotations omitted). Conversely, the court may
not substitute its judgment for that of the Commissioner. Ryan v. Comm’r of Soc. Sec. Admin.,
528 F.3d 1194, 1205 (9th Cir. 2008) (citation omitted). Where the evidence is susceptible to
more than one rational interpretation, the Commissioner’s decision must be upheld if it is
“supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008) (citation and internal quotations omitted).
Cowie argues the ALJ erred by rejecting: (1) her subjective symptom testimony; (2) the
third-party testimony of her husband, Joseph Hauptman; and (3) the medical opinion of nurse
practitioner Mason Harrison.
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Subjective Symptom Testimony
Cowie asserts the ALJ wrongfully discredited her subjective symptom testimony
concerning the severity of her impairments. When a claimant 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.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the
ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints
are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered
must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not
arbitrarily discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir.
1995) (internal citation omitted). If the “ALJ’s credibility finding is supported by substantial
evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278
F.3d 947, 959 (9th Cir. 2002) (citation omitted).
At the hearing, Cowie identified her progressively worsening back pain as her largest
barrier to employment. Tr. 34-35. She characterized her average pain level as “[a]bout a seven”
out of ten (with “ten meaning that you should be hospitalized”), and described her symptoms as
tingling pain and cramps that radiate into her legs, arms, and neck. Tr. 35-36. As a result, Cowie
stated her arms and legs “are very weak,” such that she is unable to lift or carry more than ten
pounds, and could “not squat down without help getting back up.” Tr. 37, 40, 47. To ease her
back and leg pain, Cowie explained that she takes ibuprofen and changes positions “constantly”;
she also endorsed the need to lie down for approximately 30 minutes “four or five times a day.”
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Tr. 35-39. Later in the hearing, when asked to “remind” counsel how often she needed to lie
down to ease her symptoms, Cowie responded “seven or eight times a day.” Tr. 53.
Cowie additionally testified to urinary incontinence, problems grasping objects, and
seizures, which cause a stutter, achiness, and fatigue. Tr. 40-43, 46. Regarding mental health
issues, Cowie initially testified to depression, suicidal ideation, and poor motivation; upon the
ALJ’s follow-up inquiry, she acknowledged that she was not participating in “any talk therapy or
counseling” because her psychological medications “pretty much manage[d] the symptoms to
[her] satisfaction.” Tr. 45-46, 49. Cowie commented that, “almost a year ago,” she reduced her
chronic alcohol consumption from numerous drinks per day down to two. Tr. 43. As for daily
activities, Cowie remarked she does no cleaning and limited cooking; the remainder of the day
she “pretty much play[s] on the computer” or watches television. Tr. 44, 50-51, 53.
After summarizing her hearing testimony, the ALJ determined that Cowie’s medically
determinable impairments could reasonably be expected to produce some degree of symptoms,
but her statements regarding the extent of these symptoms were not fully credible 1 due to her
activities of daily living and the observations of the Cooperative Disability Investigation Unit
(“CDIU”) officer, as well as the lack of corroborating medical evidence relating to her physical
symptoms. 2 Tr. 15-19.
The court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making an
overarching credibility determination and instead assesses whether the claimant’s subjective
symptom statements are consistent with the record as a whole. See SSR 16-39, available at 2016
WL 1119029 (superseding SSR 96-7p). According to the Commissioner, “SSR 16-3p has an
effective date of March 28, 2016 [and is therefore] inapplicable to the present matter.” Def.’s
Resp. Br. 5. n.2 (citation omitted). In any event, the ALJ’s findings in regard to this issue fail to
pass muster irrespective of which standard governs.
Cowie does not challenge the ALJ’s treatment of her psychological impairments, either at step
two or in formulating the RFC. See generally Pl.’s Opening Br.; see also
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The ALJ’s reasons are legally sufficient and supported by substantial evidence, but only
as to the period that predates 2014. Evidence from 2011 through 2013 evinces of level of daily
functioning far in excess of Cowie’s subjective symptoms statements. See Molina v. Astrue, 674
F.3d 1104, 1112-13 (9th Cir. 2012) (“[e]ven where [daily] activities suggest some difficulty
functioning, they may be grounds for discrediting the claimant’s testimony to the extent that they
contradict claims of a totally debilitating impairment”) (citations omitted).
For instance, in applying for benefits in 2012, and in subsequent updates to the Social
Security Administration, Cowie claimed to be experiencing intense pain in her legs, back, and
hands, as well as frequent seizures, which prevented her from walking, squatting, completing
housework, cooking, and performing self-care independently. See, e.g., Tr. 167, 203, 206, 211,
215, 325. Yet Cowie’s Adult Function Report (dated February 2013), Hauptman’s Third-Party
Adult Function Report (dated February 2013), and the CDIU Report (dated March 2013)
demonstrate that Cowie was cleaning for several hours per day, going on “long hikes in the
countryside,” grocery shopping, camping and fishing monthly in the summertime, socializing,
and gambling “at the Seven Feathers Casino in Canyonville.” Tr. 178, 180, 187, 199. In addition,
the CDIU officer observed Cowie to: stand for twenty minutes, with good posture and without
any pain behavior or excessive movement; sit comfortably for twenty-five minutes; and “bend
over [without] exhibiting any sign of discomfort.” Tr. 197-98, 200. Likewise, medical records
from 2011 through 2013 show Cowie was wrestling with her adult nephews, looking for work,
hiking, helping her in-laws move, and addicted to alcohol. Tr. 236, 243, 290, 293, 335, 491.
Cowie reported “chronic alcoholism,” drinking up to “24 beers daily,” with “definite
v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (courts “review only issues which are argued
specifically and distinctly in a party’s opening brief”).
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withdrawal” symptoms if she does not drink. Tr. 199, 223, 226, 233, 240-41, 244, 278-81, 290,
303, 325, 335, 403-05, 435, 443, 452-54, 495.
However, the record reflects that Cowie dramatically reduced her alcohol consumption
approximately twelve months prior to the December 2014 date last insured. Compare Tr. 403-05
(Cowie reporting to Dr. Steinbrenner in March 2013 historically dinking “up to 24 to 48 beers a
day” and presently drinking “6+ beers a day”), with Tr. 479 (Cowie remarking to Harrison in
January 2014 during their first appointment that she was “down to an honest 2 beers a day, which
is a significant decrease for her”). Although some of Cowie’s allegedly disabling conditions
improved in 2014, the medical evidence suggests that others worsened. See Tr. 479-90, 505-27
(Cowie making no complaints of seizures or breathing issues to medical providers post-2013, but
nonetheless reporting “more severe and constant” back pain).
The ALJ failed to distinguish between these two periods and instead exclusively relied on
inconsistencies in the record that coincided with Cowie’s period of significant alcohol abuse to
discredit her hearing testimony. See Tr. 18, 20 (ALJ relying on non-medical evidence 3 from no
later than August 2013). This is problematic given the remote alleged onset date and the fact that
there is no dispute Cowie suffers from chronic, degenerative conditions. See Tr. 16-17 (ALJ
accepting objective medical evidence from within the relevant time period of Cowie’s
“moderately severe and chronic generalized peripheral neuropathy” and “advanced degenerative
disc disease at L5-S1”); see also Dahl v. Comm’r of Soc. Sec., 2015 WL 5772060, *5 (D. Or.
Sept. 30, 2015) (even mild degenerative disc disease can be disabling) (collecting cases).
Even assuming the medical evidence from 2014 belied Cowie’s self-reports, an ALJ cannot
reject a claimant’s subjective symptom testimony solely on this basis. Lingenfelter, 504 F.3d at
1040 (citations omitted).
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As such, a significant question exists concerning Cowie’s work-related abilities during
the twelve month period that preceded the December 2014 date last insured. The record is silent
concerning Cowie’s daily activities during this period and her hearing testimony (obtained
shortly after the date last insured lapsed) largely pertains to her current functioning. See, e.g., Tr.
34-53. Further, there is no medical evidence from an acceptable medical source concerning
Cowie’s physical functioning in 2014. See Tr. 64-76, 78-90 (state agency consulting source
opinions from 2013), 403-05 (physical capacity evaluation from Roger Steinbrenner, M.D., dated
March 2013; Dr. Steinbrenner did not identify any functional limitations and instead opined that
Cowie’s “[c]hronic alcoholism may be her major limiting factor”); see also Tr. 519-24
(Harrison’s medical opinion, dated January 2015, reflecting treatment over the past year).
Therefore, the record is insufficient to support the ALJ’s decision as to this period. See
Robbins, 466 F.3d at 884 n.2 (reversing the ALJ’s credibility finding where he neglected to
account for or otherwise “investigate the possible disparity” between the claimant’s inconsistent
reports of alcohol use); see also Lee v. Colvin, 2016 WL 3647974, *2-5 (D. Or. July 7, 2016)
(reversing the ALJ’s decision where there the record demonstrated that the claimant’s back
condition was not disabling as of the alleged onset date but was nonetheless “gradually
deteriorating and may have become more extreme prior to the established disability date”).
Accordingly, the ALJ’s credibility finding is reversed as it relates to 2014.
Cowie also contends the ALJ neglected to provide a legally sufficient reason, supported
by substantial evidence, to reject the lay witness statements of Hauptman. Lay testimony
concerning a claimant’s symptoms or how an impairment affects the ability to work is competent
evidence that an ALJ must take into account. Molina, 674 F.3d at 1114 (citation omitted). The
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ALJ must provide “reasons germane to each witness” in order to reject such testimony. Id.
(citation and internal quotation omitted).
As noted above, Hauptman completed a Third-Party Adult Function Report in February
2013. Tr. 176-83. He reported “all of [Cowie’s] daily and personal activities” were limited. Tr.
176. Hauptman identified problems with personal care, standing, walking, lifting, squatting,
concentration, and pain. Tr. 177-78, 181. He nonetheless indicated Cowie could perform
household chores (such as cooking and cleaning) in moderation, walk the dog daily, shop for
groceries, socialize over the “phone with longtime girlfriends,” follow written and spoken
instructions well, and camp, fish, and go on short hikes in the summertime. Tr. 177-82.
The ALJ afforded Hauptman’s third-party testimony “partial weight.” Tr. 20.
Specifically, the ALJ “considered [Hauptman’s] report and finds that it supports that [Cowie] has
some limitations.” Id. Regardless, the ALJ rejected Hauptman’s lay statements to the extent they
were contravened by Cowie’s wide range of daily activities and the objective medical evidence.
Id. Inconsistency with the record is a germane reason to discount third-party testimony. Bayliss
v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Lay witness testimony may also be
disregarded on the same basis as the claimant’s discredited subjective reports. Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
Substantial evidence supports the ALJ’s determination concerning this issue. As
addressed in Section I, the ALJ provided clear and convincing reasons, supported by substantial
evidence, to reject plaintiff’s subjective symptom testimony concerning her functioning prior to
2014 and these reasons are equally applicable to Hauptman’s 2013 lay statements. See Molina,
674 F.3d at 1114-22 (affirming the ALJ’s decision “where the same evidence that the ALJ
referred to in discrediting the claimant’s claims also discredits the lay witness’s claims”)
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(citation and internal quotations omitted). The ALJ’s decision is upheld as to the third-party
Lay Medical Opinion Evidence
Cowie next argues the ALJ improperly rejected the medical opinion of nurse practitioner
Harrison who treated her in 2014. While only “acceptable medical sources” can diagnose and
establish that a medical impairment exists, evidence from “other sources” can be used to
determine the severity of an impairment and how it affects the claimant’s ability to work. 20
C.F.R. § 404.1527(f). “Other sources” include, but are not limited to, nurse practitioners. SSR
06-03p, available at 2006 WL 2329939. To disregard the opinion of an other, or lay medical,
source, the ALJ must provide a reason that is germane to that witness and adequately supported
by the record. 20 C.F.R. § 404.1527(f); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24
(9th Cir. 2010) (citation omitted).
Cowie initiated care with Harrison in January 2014 for emotional lability and poor sleep.
Tr. 479-81, 519. Prior to the date last insured, Cowie sought treatment from Harrison three
additional times (in March, October, and December 2014) for, in relevant part, chronic and
worsening lower back pain, bilateral leg weakness, peripheral neuropathy, and bowel urgency
that recently progressed to incontinence. Tr. 482-90, 516-18. During each office visit, Harrison
documented Cowie’s self-reported symptoms and performed physical examinations, which were
unremarkable. Tr. 479-90, 516-18.
In January 2015, Harrison completed a Physical Medical Source Statement. 4 Tr. 519-22.
He listed Cowie’s diagnoses as peripheral neuropathy, lumbar radiculopathy and spondylosis,
That same month, Harrison wrote a letter on behalf of Cowie stating “due to medical
circumstances she has been and is unable to work.” Tr. 524. However, because Harrison’s letter
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and limb weakness. Tr. 519. Regarding functional limitations, Harrison opined Cowie: could
sit/stand for 30 minutes at one time and two hours in an eight hour workday; needed job that
permitted shifting positions at will and one or two unscheduled breaks per day; could never lift
50 pounds and occasionally lift less than ten pounds; and could rarely twist, stoop, crouch/squat,
and climb ladders or stairs. Tr. 520-21. He did not indicate the presence of any limitations due to
psychological conditions or with attention, concentration, attendance, reaching, handling, and
fingering. Tr. 519-22.
The ALJ assigned “little weight” to Harrison’s opinion because it “lack[ed] sufficient
corroborating medical evidence.” Tr. 20. The ALJ also rejected Harrison’s opinion because it
was inconsistent with Cowie’s “range of activities” and appeared to “to rely largely on [Cowie’s]
self-reported symptoms/limitations.” Id.
As discussed in Section I, the ALJ erred in evaluating Cowie’s subjective symptom
testimony pertaining to the period in 2014 when she ceased drinking heavily. Thus, it was
unreasonable for the ALJ to rely on the credibility of Cowie’s self-reports in affording less
weight to Harrison’s opinion.
Additionally, the medical evidence that the ALJ relied upon is not wholly inconsistent
with the functional limitations identified by Harrison. Both the ALJ’s decision and Harrison’s
Physical Medical Source Statement refer to objective medical evidence of severe degenerative
disc disease in the lumbar spine and “moderately severe and chronic” peripheral neuropathy, and
either condition could have caused or contributed to many of Cowie’s purported limitations. Tr.
16-17, 20, 280-81, 437, 506, 509-11, 513, 519. Also, Harrison did not opine as to any reaching,
handling, or fingering restrictions and denied the need for an assistive device. Tr. 521. In sum,
did not identify the medical basis of his opinion or delineate any concrete work-related
limitations, it is not probative as to Cowie’s functional abilities.
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the fact Dr. Steinbrenner assessed no functional limitations or that prior exams denoted full
motor strength in the lower extremities, the ability to ambulate without assistive devices, and
good grip strength does not necessarily undermine Harrison’s conclusions. For these reasons, the
ALJ committed harmful legal error in evaluating Harrison’s opinion, such that reversal is
warranted. See Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (only
mistakes that are “non-prejudicial to the claimant or irrelevant to the ALJ’s ultimate disability
conclusion” are harmless).
The decision whether to remand for further proceedings or for the immediate payment of
benefits lies within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1176-78 (9th
Cir. 2000). 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. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
1099-1100 (9th Cir. 2014). The court nevertheless may not award benefits punitively. Strauss v.
Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011); see also Dominguez v.
Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the standard for determining the
As discussed herein, the ALJ erred by failing to provide legally sufficient reasons,
supported by substantial evidence, for disregarding Harrison’s medical opinion and Cowie’s
subjective symptom testimony. The record before this court is nonetheless ambiguous
concerning the extent of Cowie’s allegedly disabling physical impairments after she ceased
drinking. On the one hand, Cowie endorsed neuropathy, incontinence, severe and worsening
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back pain, and leg weakness during 2014. Tr. 479-90, 505-33. The medical evidence similarly
shows severe degenerative disk disease in the lumbar spine and “moderately severe and chronic”
peripheral neuropathy. Tr. 437, 506, 280-81, 509-11.
Conversely, Cowie gave inconsistent or incomplete testimony at the 2015 hearing
relating to her need to lie down, limitations relating to sitting and fingering, and mental health
symptoms. Tr. 34-53. She also endorsed limitations due to seizures and COPD that are not born
out by the medical record from the time period in question. Compare id., with Tr. 479-90, 50533. This is significant given that Harrison’s opinion appears to be based, at least in part, on
Cowie’s self-reports, and there in no medical or other evidence in the record post-2013
concerning Cowie’s physical functional abilities. Further, Harrison’s Physical Medical Source
Statement did not acknowledge Cowie’s history of significant alcohol abuse or otherwise
account for what impact, if any, it might have on her functional abilities, despite the fact that his
chart notes list “alcohol abuse” as part of Cowie’s medical history and reveal that her continued,
albeit limited, alcohol consumption “may be the cause of the chronic peripheral neuropathy.” Tr.
485; see also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999) (ALJ
need not accept a medical opinion that fails to take into account a claimant’s drug or alcohol
Finally, while it is doubtful (given the medical evidence from 2014 of neuropathy and
increased back pain) that Cowie would be able to perform work consistent with the ALJ’s RFC,
the VE testified that a hypothetical individual capable of a far more limited range of light work
would still be competitively employable. 5 Tr. 59-60.
Presuming this testimony accurately captured all the limitations reflected in Cowie’s and
Harrison’s statements, the court cannot find the ALJ’s errors harmless because the VE did not
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In light of these ambiguities, further proceedings are required to resolve this case. Upon
remand, the ALJ must consult a medical expert to review the entire record and opine as to
Cowie’s functional abilities during 2014 and, if necessary, reformulate Cowie’s RFC and obtain
additional VE testimony.
For the reasons stated above, the Commissioner’s decision is REVERSED and this case
is REMANDED for further proceedings.
IT IS SO ORDERED.
DATED this 29th day of November 2017.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Jude
identify any specific representative occupations or their incidence in regard to this hypothetical.
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