Standish v. Commissioner Social Security Administration
Filing
27
Opinion and Order signed on 11/3/2021 by Magistrate Judge Mustafa T. Kasubhai: The Commissioner's decision is REVERSED and this case REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for an immediate calculation and payment of benefits. (jk)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
KENNETH S.,1
Case No. 6:20-cv-00736-MK
Plaintiff,
OPINION
AND ORDER
v.
COMMISSIONER, Social Security
Administration,
Defendant.
_________________________________________
KASUBHAI, United States Magistrate Judge:
Plaintiff Kenneth S. seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying his applications for disability
insurance benefits (“DIB”) under Title II and supplemental security income (“SSI”) under Title
XVI of the Social Security Act (the “Act”). This Court has jurisdiction to review the
Commissioner’s decision pursuant to 42 U.S.C. § 405(g). All parties have consented to allow a
Magistrate Judge to enter final orders and judgment in this case in accordance with Fed. R. Civ.
P. 73 and 28 U.S.C. § 636(c). See ECF No. 6. For the reasons set forth below, the
Commissioner’s decision is REVERSED and this case is REMANDED for an immediate
calculation of benefits.
1
In the interest of privacy, the Court uses only the first name and last name initial of nongovernment parties whose identification could affect Plaintiff’s privacy.
Page 1 — OPINION AND ORDER
PROCEDURAL BACKGROUND
Plaintiff filed applications for SSI and DIB in February 2017 with an amended alleged
onset date of October 26, 2016. Tr. 246–53.2 Plaintiff’s application was denied initially in
January 2019 and again upon reconsideration in April 2019. Tr. 97, 113, 131, 149. Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”) and a hearing was held in
March 2019. Tr. 34–58. On March 20, 2019, the ALJ issued a decision finding Plaintiff not
disabled within the meaning of the Act. Tr. 16–20. The Appeals Council denied Plaintiff’s
request for review. Tr. 1–3. Plaintiff’s timely appeal followed.
FACTUAL BACKGROUND
Plaintiff was 55 years old on his alleged onset date. Tr. 39. He obtained a general
education development (“GED”) and has past relevant work experience as a truck driver and
landscaper. Tr. 274. Plaintiff alleges disability based on type 2 diabetes, diabetic neuropathy,
depression with psychotic features, anxiety, post-traumatic stress disorder (“PTSD”), bulging
discs in his back, and obsessive-compulsive disorder (“OCD”). Tr. 273.
LEGAL STANDARD
A court must affirm the Commissioner’s decision if it is based on proper legal standards
and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879
F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). The court must weigh “both
the evidence that supports and detracts from the [Commissioner’s] conclusion.” Martinez v.
2
Plaintiff previously filed for SSI and DIB in August 2013, with an alleged onset date of October
1, 2012, and was found not disabled within the meaning of the Act. Tr. 59. “Tr.” citations are to
the Administrative Record. ECF No. 21.
Page 2 — OPINION AND ORDER
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a
grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s.” Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400
F.3d 676, 680–81 (9th Cir. 2005) (holding that the court “must uphold the ALJ’s decision where
the evidence is susceptible to more than one rational interpretation” (citation omitted)). “[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) (citation and internal quotations omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must
demonstrate an “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.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First,
the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if
so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).
At step two, the Commissioner determines whether the claimant has a “medically severe
impairment or combination of impairments.” Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§
404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant’s]
physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If
the impairment does not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the
Commissioner determines whether the impairments meet or equal “one of a number of listed
Page 3 — OPINION AND ORDER
impairments that the [Commissioner] acknowledges are so severe as to preclude substantial
gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively
presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At this point, the Commissioner must evaluate medical and other relevant evidence to
determine the claimant’s “residual functional capacity” (“RFC”), an assessment of work-related
activities that the claimant may still perform on a regular and continuing basis, despite any
limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)–(c), 416.920(e),
416.945(b)–(c). At the fourth step, the Commissioner determines whether the claimant can
perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If
the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden
shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must
establish that the claimant can perform other work that exists in significant numbers in the
national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the Commissioner
meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff met the insured requirements of the Act and had
not engaged in substantial gainful activity since his alleged onset date. Tr. 19. At step two, the
ALJ found that Plaintiff had the following severe impairments: obesity, hearing loss, bilateral
right shoulder impingement, partial sacralization of L5 on the right and lower back pain,
hypertension, pancreatitis, asthma, diabetes mellitus, major depressive disorder, and anxiety. Id.
At step three, the ALJ found that Plaintiff did not have an impairment or combination thereof
that met or medically equaled the severity of a listed impairment. Id. The ALJ found that
Plaintiff had the RFC to perform medium work with the following limitations:
Page 4 — OPINION AND ORDER
[He could] occasionally reach overhead with the right upper
extremity. He [could] be exposed to no more than moderate noise
level. He [could] understand and remember short, simple job
instructions. He [could] perform simple, routine, and repetitive
tasks. He [could] maintain attention and concentration for two-hour
intervals to complete such task without more than the normally
expected brief interruptions. He [could] tolerate superficial public
contact.
Tr. 22.
At step four, the ALJ found that Plaintiff was unable to perform any past relevant work.
Tr. 28. At step five, the ALJ found, in light of Plaintiff’s age, education, work experience, and
RFC, a significant number of jobs existed in the national economy such that Plaintiff could
sustain employment despite his impairments. Tr. 29. The ALJ thus found Plaintiff was not
disabled within the meaning of the Act. Tr. 30.
DISCUSSION
Plaintiff asserts that remand is warranted for two reasons: (1) the ALJ erred by
improperly rejecting Plaintiff’s subjective symptom testimony; and (2) the ALJ erred in
weighing the medical opinion evidence.
I.
Subjective Symptom Testimony
Plaintiff assigns error to the ALJ’s evaluation of his subjective symptom testimony. Pl.’s
Op. Br. 9–12, ECF No. 22. 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 her symptoms only by offering specific, clear and convincing reasons for
doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion that the
claimant is not credible is insufficient; instead, the ALJ “must state which . . . testimony is not
credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d
Page 5 — OPINION AND ORDER
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) (citation omitted). If the ALJ’s finding
regarding the claimant’s subjective symptom testimony 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).
Social Security Ruling (“SSR”) 16-3p provides that “subjective symptom evaluation is
not an examination of an individual’s character,” and requires that the ALJ consider all the
evidence in an individual’s record when evaluating the intensity and persistence of symptoms.3
SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct. 25, 2017). The ALJ must examine “the entire
case record, including the objective medical evidence; an individual’s statements about the
intensity, persistence, and limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other relevant evidence in the
individual’s case record.” Id. at *4.
Plaintiff testified that he had delusions, nightmares, depression, and anxiety. Tr. 50. His
back pain had progressively worsened since his previous ALJ hearing, and he could “barely load
the dishwasher without having to stop and sit down” or sweep the floor. Tr. 44. He did not drive
places, and instead used a medical cab service to take him to appointments and the grocery store.
Tr. 45–46. He cooked using a microwave. Tr. 46. Plaintiff experienced foot pain and estimated
that he could only walk less than 700 feet before requiring rest. Tr. 53.
3
Effective March 28, 2016, SSR 16-3p superseded and replaced SSR 96-7p, which governed the
assessment of claimant’s “credibility.” See SSR 16-3p, 2017 WL 5180304, at *1–2 (S.S.A. Oct.
25, 2017).
Page 6 — OPINION AND ORDER
The ALJ rejected Plaintiff’s subjective symptom testimony. Tr. 23. The Commissioner
asserts this was proper because Plaintiff’s subjective complaints were inconsistent with the
evidence in the record. Def.’s Br. 4–6, ECF No. 25.
In some circumstances, an ALJ may reject subjective complaints where the claimant’s
“statements at [their] hearing do not comport with objective medical evidence in [their] medical
record.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). However,
especially in the mental health context, an ALJ may not cherry-pick isolated instances of
favorable psychological symptoms when the record as a whole reflects long-standing
psychological disability. See Ghanim v. Colvin, 763 F.3d. 1154, 1164 (9th Cir. 2014); see also
Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Moreover, a lack of objective evidence
may not be the sole basis for rejecting a claimant’s subjective complaints. See Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001).
An independent review of the record reveals that Plaintiff’s subjective complaints,
relating to his mental and physical impairments, were consistent with medical records. For
example, in July 2017 Plaintiff presented as disheveled with a tense mood, anxious affect, and
reported that he felt “hopeless about [the] situation and fe[lt] he [would] not ever[ ] feel relief
from anxiety and depression.” Tr. 936; see also id. (“Depression and panic ongoing with periods
of hallucinations and psychosis.”). In September 2017, Plaintiff reported lower back pain that
was “aggravated with bending, standing, and walking.” Tr. 1057. In December 2017, treatment
notes reflected that Plaintiff felt depressed, that his back pain was “killing him,” as well as
serious pain in his hips. Tr. 1091. In August 2018, Plaintiff presented with pain in his legs. Tr.
1152. In a January 2019 evaluation, Plaintiff checked yes to the question “[d]o you often feel sad
Page 7 — OPINION AND ORDER
or depressed?” Tr. 1143. Accordingly, the medical record in this case was not a legally sufficient
reason to reject Plaintiff’s subjective symptom testimony.
II.
Medical Evidence
Plaintiff next contends that the ALJ improperly assessed the medical evidence of record.
Pl.’s Op. Br. 12–20, ECF No. 22. The ALJ is responsible for resolving conflicts in the medical
record, including conflicting doctors’ opinions. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d
1155, 1164 (9th Cir. 2008). The law distinguishes between the opinions of three types of
physicians: treating physicians, examining physicians, and non-examining physicians. See 20
C.F.R. §§ 404.1527, 416.927.4 The opinions of treating physicians are generally accorded greater
weight than the opinions of non-treating physicians. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
A treating physician’s opinion that is not contradicted by the opinion of another doctor
can be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396
(9th Cir. 1991) (citation omitted). Where a treating physician’s opinion is contradicted, however,
the ALJ must provide “specific, legitimate reasons” for discrediting the opinion. Murray v.
Heckler, 722 F.2d 499, 502 (9th Cir. 1983). An ALJ can meet this burden by “setting out a
detailed and thorough summary of the facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings.” Garrison, 759 F.3d at 1012 (citation omitted).
Similarly, “the opinion of an examining doctor, even if contradicted by another doctor, can only
be rejected for specific and legitimate reasons that are supported by substantial evidence in the
record.” Lester, 81 F.3d at 830–31. Lastly, “[a]n ALJ ‘may reject the opinion of a non-examining
4
The Commissioner has issued revised regulations changing this standard for claims filed after
March 27, 2017. See 20 C.F.R. § 404.1520c. Plaintiff’s claim was filed before March 27, 2017,
and therefore is controlled by 20 C.F.R. §§ 404.1527, 416.927.
Page 8 — OPINION AND ORDER
physician by reference to specific evidence in the medical record.’” Jason W. v. Comm’r of Soc.
Sec. Admin., No. 6:18-cv-00483-JR, 2018 WL 6701273, at *2 (D. Or. Dec. 20, 2018) (citing
Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998)).
A.
Brett Robinson, M.D.
Dr. Robinson served as Plaintiff’s primary treating physician. Tr. 1046. The doctor
diagnosed Plaintiff with Type 2 diabetes, hypertension, asthma, back pain, leg pain, peripheral
neuropathy, degenerative disc disease, and lumbar disorder. Id. Dr. Robinson also opined that
Plaintiff would have to “lie down and . . . stretch occasionally” if required to work for eight
hours, and that he was only capable of standing or walking for 30 minutes at one time. Tr. 1047.
Finally, the doctor opined that Plaintiff would miss work two days per month because of his
impairments. Tr. 1048.
The ALJ gave no weight to Dr. Robinson’s opinion. Tr. 26. The Commissioner argues
this was proper because Dr. Robinson’s opinion was inconsistent with the record. Def.’s Br. 10.
“A conflict between treatment notes and a treating provider’s opinions may constitute an
adequate reason to discredit the opinions of a treating physician or another treating provider.”
Ghanim, 763 F.3d at 1161. However, “such observations must be ‘read in context of the overall
diagnostic picture’ the provider draws.” See Ghanim, 763 F.3d. at 1162 (citation omitted); see
also Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (“[T]he ALJ selectively relied
on some entries in [the claimant’s] records . . . and ignored the many others that indicated
continued, severe impairment.”); cf. Lester, 81 F.3d at 833 (“Occasional symptom-free
periods . . . are not inconsistent with disability.”). “The fact that a person suffering from
depression makes some improvement does not mean that the person’s impairment [ ] no longer
Page 9 — OPINION AND ORDER
seriously affect[s] [their] ability to function in a workplace.” Ghanim, 763 F.3d at 1162 (citation
omitted).
Here, the medical records cited by the ALJ were not inconsistent with Dr. Robinson’s
opinion. Compare Tr. 1046–48 (Dr. Robinson’s opinion), with Tr. 1152 (rehabilitation specialist
reporting the pain was worst at the L5 region, right SI joint over the hip and down the right leg
was worse than the left); Tr. 1156 (Dr. Hook opining that a musculoskeletal exam reveals pain
limits range of motion in the bilateral lower extremities, transitions from sitting to standing and
standing to sitting slow and labored); Tr. 1051–52 (cardiologist Dr. Kamineni opining
hypertension, and history of abnormal electrocardiogram); Tr. 1057 (PA-C Hoke opining pain in
bilateral lower back). In fact, a thorough review of the relevant medical records demonstrates
that the ALJ’s characterization of Dr. Robinson’s opinion lacks support in the record. To the
contrary, the record supports the doctor’s opined limitations. See, e.g., Tr. 1089 (recommending
watching sugar intake, exercise, new stop-smoking prescription, and discussing suicidal
ideations); Tr. 1091 (opining mood that mood has been okay, recommending new medication for
nightmares, increase in lower back pain); Tr. 1113–14 (expressing concern about memory and
recommending testing for memory); Tr. 1116 (assessing major depression, type 2 diabetes,
hypertension, and nicotine dependance); Tr. 1126 (recommending physiatry evaluation for back
pain).
In sum, the ALJ failed to supply legally sufficient reasons for rejecting Dr. Robinson’s
medical opinion.5
Plaintiff’s argument that the ALJ failed to account for the opinions of non-examining DDS
physicians and erred by not including any specific limitations on sitting, standing, or walking is
foreclosed by the Ninth Circuit’s decision in Terry v. Saul. 998 F.3d 1010, 1013 (9th Cir. 2021)
(“There is no reason to think that the vocational expert was not familiar with Social Security Ruling
83-10 and the agency’s longstanding interpretation of ‘medium work.’ We thus determine that the
5
Page 10 — OPINION AND ORDER
B.
Joselyn Salaz, QMHP, LPC, Ph.D.
Dr. Salaz served as Plaintiff’s treating mental health provider. Tr. 1041. In her February
2019 evaluation, Dr. Salaz reported seeing Plaintiff once or twice a month since April 2015. Id.
The doctor diagnosed Plaintiff with PTSD, major depressive disorder (recurrent with psychotic
features), generalized anxiety disorder, and panic disorder. Id. She also opined Plaintiff “would
need several breaks over a two hour period due to hallucinations/panic/extreme anxiety . . . if
other people are present.” Tr. 1045.
The ALJ gave little weight to Dr. Salaz’s opinion. Tr. 25. The Commissioner argues this
was proper because Dr. Salaz’s opinion (1) lacked support in the record; and (2) did not consider
Plaintiff’s substance use.
1.
Inconsistency with the Medical Record
The Commissioner argues that Dr. Salaz’s opinion was inconsistent with the medical
records, particularly with concentration and memory. Def.’s Br. 8. As the Commissioner
correctly notes, inconsistency with medical evidence is a specific and legitimate reason to
discount the opinions of sources who are not on the list of acceptable medical sources. See
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
Here, however, the ALJ’s rejection of Dr. Salaz’s opinion was improper because the
opinion was consistent with the medical record during the relevant period. For example, nonexamining Drs. Johnson, Kehri, and Barsukov all opined that Plaintiff suffered from deficits in
her memory and concentration. See Tr. 90 (Dr. Johnson), 123 (Dr. Kehri), 93 (Dr. Barsukov).
Plaintiff’s lay witness statement also explained that Plaintiff had limitations concentrating. Tr.
ALJ’s reference to the term in his questioning of the expert sufficiently conveyed Terry’s standing
and walking limitations.”).
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303. Dr. Robinson, Plaintiff’s primary care physician, opined that Plaintiff had a marked
limitation in his “ability to maintain attention and concentration for extended periods.” Tr. 1044.
And mental health treatment notes also reflected that Plaintiff had serious memory issues. Tr.
400. As such, the medical record in this case was not a specific and legitimate reason to reject
Dr. Salaz’s opinion.
2.
Substance Use
The Commissioner argues that discounting Dr. Salaz’s opinion was proper because she
did not appear aware of Plaintiff’s substance abuse. Def.’s Br. 9. An ALJ may discount an
examining physician’s opinion based on erroneous facts. Chaudhry v. Astrue, 688 F.3d 661 (9th
Cir. 2012). The Commissioner correctly highlights that Dr. Salaz did not specifically discuss
Plaintiff’s substance abuse in any treatment records. See Tr. 396–411, 821–42, 983–95, 1041–45.
However, the treatment records that discuss Plaintiff’s substance abuse, none discuss that the
issue was related to his impairments. See, e.g., Tr. 95, 428, 413, 417, 419, 422–26, 647, 731–33,
738. Moreover, the ALJ’s own decision found that Plaintiff’s “methamphetamine use and heroin
use [were] not a contributing factor material to the determination of disability.” Tr. 30. As such,
the ALJ’s rejection of Dr. Salaz’s opinion based on an unrelated issue that the ALJ’s own
decision found immaterial was not a specific and legitimate reason to discount the opinion of
Plaintiff’s treating mental health provider.
C.
Crystal Hatton, QMHP.
Qualified Mental Health Professional (“QMHP”) Crystal Hatton served as one of
Plaintiff’s mental health providers. In May 2018, QMHP Hatton documented Plaintiff’s ongoing
suicidal ideations, visual hallucinations, and other serious mental health symptoms. Tr. 926.
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QMHP Hatton diagnosed Plaintiff with depression with psychotic features and panic attacks. Tr.
927.
The ALJ failed to acknowledge QMHP Hatton’s statements in the decision. See Tr. 22–
28. The Commissioner argues this was proper because QMHP Hatton’s opinion was (1) not a
medically acceptable source under agency regulations; and (2) did not meet the definition of
opinion.
1.
Medically Acceptable Source
The Commissioner asserts the ALJ was not required to even mention QMHP Hatton
opinion simply because she was not a medically acceptable source under agency regulations.
Def.’s Br. 12. The regulations set forth “guidelines for the Commissioner to follow when
weighing conflicting opinions from acceptable medical sources, while containing no specific
guidelines for the weighing of opinions from other sources. This permits the Commissioner to
accord opinions from other sources less weight than opinions from acceptable medical sources.”
Gomez v. Chater, 74 F.3d 967, 970–71 (9th Cir. 1996).6 Although an ALJ may discount “other
sources” for germane reasons, opinions from “other sources” may still be used to show the
severity of a person’s impairment and how that affects that person’s ability to work. See 20
C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). Put differently, although the ALJ was permitted to
reject QMHP Hatton’s opinion, the fact that QMHP Hatton is an “other source” was not itself a
legally independent reason to reject QMHP Hatton’s opinion.
For claims filed on or after March 27, 2017, certain health care providers that were previously
considered “non-acceptable” under SSR 06-03p (rescinded) now qualify as acceptable medical
sources. See 20 C.F.R. §§ 416.902, 404.1502. Because Plaintiff’s claim was filed before March
27, 2017, however, the old regulations found at 20 C.F.R. §§ 404.1527, 416.927 apply.
6
Page 13 — OPINION AND ORDER
2.
Definition of Opinion
The Commissioner next asserts the ALJ properly ignored QMHP Hatton’s statement
because the statement fell short of the definition of an “opinion.” Def.’s Br. 12. The assertion,
however, is an impermissible post hoc rationalization this Court will not consider. See Bray, 554
F.3d at 1225 (“Long-standing principles of administrative law require us to review the ALJ’s
decision based on the reasoning and factual findings offered by the ALJ—not post hoc
rationalizations that attempt to intuit what the adjudicator may have been thinking.”).
As such, the ALJ’s implicit rejection of QMHP Hatton by failing to discuss the opinion
was harmful error.
III.
Remand
A reviewing court has discretion to remand an action for further proceedings or for a
finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th
Cir. 1985). Whether an action is remanded for an award of benefits or for further proceedings
depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179
(9th Cir. 2000). In determining whether an award of benefits is warranted, the court conducts the
“three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under this analysis the court
considers whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting
evidence; (2) the record has been fully developed and further proceedings would serve no useful
purpose; and (3) if the improperly discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand. See Dominguez v. Colvin, 808 F.3d 403, 407
(9th Cir. 2015). Even if all of the requisites are met, however, the court may still remand for
further proceedings “when the record as a whole creates serious doubt as to whether the claimant
is, in fact, disabled[.]” Id. at 1021. “Serious doubt” can arise when there are “inconsistencies
Page 14 — OPINION AND ORDER
between the claimant’s testimony and the medical evidence,” or if the Commissioner “has
pointed to evidence in the record the ALJ overlooked and explained how that evidence casts
serious doubt” on whether the claimant is disabled under the Act. Dominguez, 808 F.3d at 407
(citing Burrell, 775 F.3d at 1141 (internal quotation marks omitted)).
Here, the first requisite is met based on the ALJ’s harmful legal errors discussed above.
The ALJ failed to supply legally sufficient reasons for rejecting the medical opinions of Drs.
Salaz and Robinson as well as QMHP Hatton’s opinion. As to the second requisite, the record
has been fully developed and further proceedings would not be useful. The VE testified that
employers generally do not tolerate employees with absences in excess of two days per month.
Tr. 56. Thus, fully crediting Dr. Robinson’s opinion that Plaintiff’s impairments would result in
at least two absences per month, the third requisite is also satisfied because on remand the ALJ
would be required to find Plaintiff disabled. Tr. 1048.
Considering the record as a whole, the Court concludes that there is no reason for serious
doubt as to whether Plaintiff is disabled. Garrison, 759 F.3d at 1020–21 (citations omitted); see
also Revels v. Berryhill, 874 F.3d 648, 668 n.8 (9th Cir. 2017) (explaining that where each of the
credit-as-true factors is met, only in “rare instances” does the record as a whole leave “serious
doubt as to whether the claimant is actually disabled”) (citing Garrison, 759 F.3d at 1021). As
such, the Court exercises its discretion and credits the erroneously discredited evidence as true
and remands this case for an immediate calculation and payment of benefits.
///
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CONCLUSION
For the reasons above, the Commissioner’s decision was not based on substantial
evidence. Accordingly, the Commissioner’s decision is REVERSED and this case REMANDED
pursuant to sentence four of 42 U.S.C. § 405(g) for an immediate calculation and payment of
benefits.
IT IS SO ORDERED.
DATED this 3rd day of November 2021.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge
Page 16 — OPINION AND ORDER
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