Loetscher v. Colvin (previously Astrue)

Filing 20

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - granting 17 Motion for Summary Judgment; and denying 19 Motion for Summary Judgment. Signed by Magistrate Judge James P. Hutton. (CC, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Case No. CV-13-34-JPH

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WAYNE ROBERT LOETSCHER,
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Plaintiff,
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vs.

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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BEFORE THE COURT are cross-motions for summary judgment. ECF
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Nos. 17 and 19. Attorney Paul Clark represents plaintiff

(Loetscher). Special

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Assistant United States Attorney Jeffrey E. Staples represents defendant
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(Commissioner). The parties consented to proceed before a magistrate judge. ECF
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No. 6. After reviewing the administrative record and the briefs filed by the parties,
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the court grants plaintiff’s motion for summary judgment, ECF No. 17, reverses the
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ALJ’s decision and remands for further administrative proceedings pursuant to
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sentence four. Defendant’s motion for summary judgment, ECF No. 19, is denied.
ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 1

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JURISDICTION

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Loetscher protectively applied for disability insurance benefits (DIB) on

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March 25, 2009, alleging onset as of December 1, 2008 (Tr. 153-59). The claim was

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denied initially and on reconsideration (Tr. 92-100).

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Administrative Law Judge Marie Palachuk held a hearing July 6, 2011.

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Medical and vocational experts, as well as Mr. Loetscher, testified (Tr. 52-89). On

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July 27, 2011, the ALJ entered a partially favorable decision finding Loetscher’s

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impairments medially equaled Listing 11.16 from onset through June 14, 2010. The

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ALJ found that thereafter Loetscher no longer met or equaled a Listing based on

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medical improvement. He was unable to perform past relevant work, but could

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perform other work (Tr. 21-36). On November 23, 2012, the Appeals Council denied

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review. Later, they set aside the denial to consider additional evidence. After

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considering the new evidence the council decided it did not provide a basis for

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changing the ALJ’s decision, and on November 28, 2013 they denied review (Tr. 1-

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12). Loetscher filed this appeal pursuant to 42 U.S.C. §§ 405(g) on January 18,

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2013. ECF No. 1, 5.

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STATEMENT OF FACTS

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The facts have been presented in the administrative hearing transcript, the

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ALJ’s decision and the parties’ briefs. They are only briefly summarized here and

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throughout this order as necessary to explain the Court’s decision.
ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 2

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Loetscher was 26 years old at onset and 29 at the hearing (Tr. 79-80). He

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completed high school and three years of college. He has worked as a chemical

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processing laborer, kitchen helper, stock clerk, bagger, microcomputer support

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specialist and home attendant (Tr. 82-84, 173, 179). In the past he abused nitrous

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oxide, with some relapses. This caused neuropathy which impaired the ability to

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walk. It also caused weakness, numbness, pain, fatigue and lack of stamina (Tr.

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526).

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SEQUENTIAL EVALUATION PROCESS

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The Social Security Act (the Act) defines disability as the “inability to engage

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in any substantial gainful activity by reason of any medically determinable physical

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or mental impairment which can be expected to result in death or which has lasted or

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can be expected to last for a continuous period of not less than twelve months.” 42

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U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a plaintiff shall

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be determined to be under a disability only if any impairments are of such severity

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that a plaintiff is not only unable to do previous work but cannot, considering

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plaintiff’s age, education and work experiences, engage in any other substantial

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work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),

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1382c(a)(3)(B). Thus, the definition of disability consists of both medical and

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vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

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The Commissioner has established a five-step sequential evaluation process
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FOR SUMMARY JUDGMENT ~ 3

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step

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one determines if the person is engaged in substantial gainful activities. If so,

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benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the

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decision maker proceeds to step two, which determines whether plaintiff has a

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medially severe impairment or combination of impairments. 20 C.F.R. §§

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404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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If plaintiff does not have a severe impairment or combination of impairments,

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the disability claim is denied. If the impairment is severe, the evaluation proceeds to

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the third step, which compares plaintiff’s impairment with a number of listed

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impairments acknowledged by the Commissioner to be so severe as to preclude

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substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20

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C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed

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impairments, plaintiff is conclusively presumed to be disabled. If the impairment is

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not one conclusively presumed to be disabling, the evaluation proceeds to the fourth

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step, which determines whether the impairment prevents plaintiff from performing

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work which was performed in the past. If a plaintiff is able to perform previous work

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that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv),

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416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is

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considered. If plaintiff cannot perform past relevant work, the fifth and final step in

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the process determines whether plaintiff is able to perform other work in the national
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FOR SUMMARY JUDGMENT ~ 4

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economy in view of plaintiff’s residual functional capacity, age, education and past

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work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v.

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Yuckert, 482 U.S. 137 (1987).

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The initial burden of proof rests upon plaintiff to establish a prima facie case

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of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir.

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1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is

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met once plaintiff establishes that a mental or physical impairment prevents the

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performance of previous work. The burden then shifts, at step five, to the

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Commissioner to show that (1) plaintiff can perform other substantial gainful

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activity and (2) a “significant number of jobs exist in the national economy” which

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plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

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PARTIALLY FAVORABLE DECISION

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If the claimant is found disabled at any point in the process, the ALJ must also

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decide if disability continues through the date of the decision. In making this

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determination, the ALJ must follow an eight-step evaluation process (20 C.F.R.

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404.1594). If the ALJ can make a decision at any step, the evaluation does not

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proceed to the next step.

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At step one, the ALJ must determine if the claimant is engaging in substantial

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gainful activity. If the claimant is performing SGA and any applicable trial work

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period has been completed, the claimant is no longer disabled. C.F.R.
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404.1594(f)(1)).

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At step two, the ALJ must determine whether the claimant has an impairment

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or combination of impairments which meets or medically equals the criteria of an

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impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.

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404.1520(d), 404.1525 and 404.1526). If the claimant does, his disability continues

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(20 C.F.R. 404.1594(f)(2)).

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At step three, the ALJ must determine whether medical improvement has

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occurred (20 C.F.R. 404.1594(f)(3)). Medical improvement is any decrease in

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medical severity of the impairment(s) as established by improvement in symptoms,

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signs and/or laboratory findings (20 C.F.R. 404.1594(b)(1)). If medical improvement

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has occurred, the analysis proceeds to the fourth step. If not, the analysis proceeds to

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the fifth step.

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At step four, the ALJ must determine whether medical improvement is related

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to the ability to work (20 C.F.R. 404.2594(f)(4)). Medical improvement is related to

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the ability to work if it results in an increase in the claimant’s capacity to perform

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basic work activities (20 C.F.R. 404.1594(b)(3)). If it does, the analysis proceeds to

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the sixth step.

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At step five, the ALJ must determine if an exception to medical improvement

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applies (20 C.F.R. 404.1594(f)(5)). There are two groups of exceptions (20 C.F.R.

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404.1594(d) and (e)). If one of the first group of exceptions applies, the analysis
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FOR SUMMARY JUDGMENT ~ 6

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proceeds to the next step. If one of the second group of exceptions applies, the

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claimant’s disability ends. If none apply, the claimant’s disability continues.

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At step six,

the ALJ must determine whether all the claimant’s current

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impairments in combination are severe (20 C.F.R. 404.1594(f)(6)). If all current

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impairments in combination do not significantly limit the claimant’s ability to do

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basic work activities, the claimant is no longer disabled. If they do, the analysis

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proceeds to the next step.

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At step seven, the ALJ must assess the claimant’s residual functional capacity

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based on the current impairments and determine if the claimant can perform past

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relevant work, given his or her residual functional capacity and considering the

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claimant’s age, education, and past work experience (20 C.F.R. 404.1594(f)(7)). If

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the claimant has the capacity to perform past relevant work, disability has ended. If

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not, the analysis proceeds to the last step.

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At the last step, the ALJ must determine whether other work exists that the

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claimant can perform, given the assessed residual functional capacity and

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considering claimant’s age, education, and past work experience (C.F.R. 404.

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1594(f)(8)). If the claimant can perform other work, the claimant is no longer

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disabled. If the claimant cannot perform other work, disability continues. Although

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the claimant generally continues to have the burden of proving disability at this step,

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the Social Security Administration is responsible for providing evidence that
ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 7

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demonstrates that other work exists in significant numbers in the national economy

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that the claimant can do, given the residual functional capacity, age, education and

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work experience.

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If it is found that the claimant is disabled and there is medical evidence of a

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substance abuse disorder(s), the ALJ must determine if the disorder is contributing

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factor material to the determination of disability. In making this determination, the

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undersigned must evaluate the extent to which the claimant’s mental and physical

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limitations would remain if the claimant stopped the substance abuse. If the

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remaining limitations would not be disabling, the substance abuse disorder(s) is a

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contributing factor material to the determination of disability (20 C.F.R. 404.1535).

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If so, the claimant is deemed not entitled to benefits and therefore not disabled.

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STANDARD OF REVIEW

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Congress has provided a limited scope of judicial review of a Commissioner’s

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decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision,

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made through an ALJ, when the determination is not based on legal error and is

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supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.

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1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s]

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determination that a plaintiff is not disabled will be upheld if the findings of fact are

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supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir.

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1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla,
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FOR SUMMARY JUDGMENT ~ 8

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Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a

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preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989).

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Substantial evidence “means such evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

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(1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner]

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may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze,

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348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a

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whole, not just the evidence supporting the decision of the Commissioner. Weetman

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v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525,

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526 (9th Cir. 1980)).

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It is the role of the trier of fact, not this Court, to resolve conflicts in evidence.

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Richardson, 402 U.S. at 400. If evidence supports more than one rational

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interpretation, the Court may not substitute its judgment for that of the

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Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be

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set aside if the proper legal standards were not applied in weighing the evidence and

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making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d

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432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the

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administrative findings, or if there is conflicting evidence that will support a finding

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ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 9

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of either disability or nondisability, the finding of the Commissioner is conclusive.

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Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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ALJ’S FINDINGS

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ALJ Palachuk found Loetscher met the insured status requirements of the Act

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and was insured through June 30, 2014 (Tr. 21, 24). At step one, she found

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Loetscher worked after onset but at less than SGA levels (Tr. 25). At step two, the

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ALJ found Loetscher suffers from toxicity syndrome from nitrous oxide inhalation

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causing polyneuropathy and demyelination, and substance abuse (Tr. 25). At step

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three, the ALJ found Loetscher’s impairments equaled Listing 11. 16 from onset

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through June 14, 2010, meaning he was disabled (Tr. 26, 28). The ALJ proceeded to

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determine whether Loetscher was still disabled as of the decision date. Significantly,

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she determined medical improvement occurred as of June 15, 2010, the

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improvement was related to the ability to work and Loetscher continued to suffer

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severe impairments although they no longer met or equaled a Listed impairment.

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The ALJ assessed an RFC for a range of light work and determined Loetscher is

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unable to perform any of his past relevant work (Tr. 28-29, 34). The ALJ found he

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can perform other jobs, such as office helper, parking lot attendant and outside

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delivery driver (Tr. 35). Alternatively, the ALJ found an RFC for a range of

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sedentary work meant Loetscher could work as a telemarketer, sewing machine

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operator and production assembler (Id.). Accordingly, the ALJ found Loetscher was
ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 10

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not disabled as defined by the Act beginning June 15, 2010 (Tr. 36).
The ALJ found substance abuse disorder was not a contributing factor
material to disability (Tr. 28).

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ISSUES

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Loetscher alleges the ALJ should have found him credible after June 14, 2010

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and erred when she weighed the medical evidence. ECF No. 17 at 2. The

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Commissioner responds that the ALJ’s findings are factually supported and free of

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harmful legal error. She asks the Court to affirm. ECF No. 18 at 2.

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DISCUSSION

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A. Credibility

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Loetscher alleges the ALJ erred when she found him less than credible after

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June 14, 2010. ECF No. 17 at 22-28. He is correct.

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When presented with conflicting medical opinions, the ALJ must determine

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credibility and resolve the conflict. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

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1190, 1195 (9th Cir. 2004) (citation omitted). The ALJ’s credibility findings must be

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supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th

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Cir. 1990). Absent affirmative evidence of malingering, the ALJ’s reasons for

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rejecting the claimant’s testimony must be “clear and convincing.” Lester v. Chater,

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81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: rather the ALJ

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must identify what testimony is not credible and what evidence undermines the
ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 11

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claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918

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(9th Cir. 1993).

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There is no evidence of malingering. Loetscher alleges the ALJ failed to give

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clear and convincing reasons for her credibility assessment. The Court is required to

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evaluate whether the determination is supported by substantial evidence, i.e.,

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relevant evidence that a reasonable mind might accept as adequate to support a

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conclusion. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Commissioner

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admits the ALJ may have erred when she relied on Loetscher’s use of marijuana,

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apparent ability to climb stairs to his third-floor apartment and his non-use of a cane

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(Tr. 30), but any error is harmless because substantial evidence supports the remain

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clear and convincing reasons. ECF No. 19 at 11-12.

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The court agrees these three reasons are not clear, convincing and supported

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by substantial evidence. Loetscher used marijuana during the period the ALJ found

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him largely credible, before June 15, 2010 (see e.g., Tr. 485), meaning marijuana use

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by itself should not diminish Loetscher’s credibility after he medically improved

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(Tr. 444). Next, the Court finds no support in the record for the ALJ’s finding

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Loetscher climbed stairs to a third floor apartment. There is simply no testimony or

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evidence supporting this finding. Third, the fact that Loetscher brought a cane to the

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hearing but did not use it hardly compels an adverse credibility finding as it is

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undisputed that neuropathy symptoms vary.
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In the Court’s view the errors are harmful because some of the ALJ’s

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additional reasons are also unsupported by the record. For example, the ALJ relied

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on Loetscher’s statements inconsistent with conduct, and achieving good pain

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control with medication (Tr. 30-31). These are not borne out by the record as a

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whole. Loetscher has rather consistently complained of pain with standing. The

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ability at times to ride a bike is not necessarily inconsistent with his complaint. Pain

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control with medication has varied, as evidenced by several changes of medication

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and prescribed dosage.

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The ALJ is correct, however, that some objective evidence may be

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inconsistent with claimed limitations. Loetscher testified he could not focus. He

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earned a grade point average of 3.5 at WSU (Tr. 494). The record also shows,

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however, he was given attendance accommodations by the university (Tr. 496). The

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ALJ notes imaging studies did not reveal significant abnormalities (but see Tr. 323

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“data suggests a severe condition”). Dr. Spence opined Loetscher was

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deconditioned, and this contributed to back pain. Although lack of supporting

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medical evidence cannot form the sole basis for discounting pain testimony, it is a

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factor the ALJ can consider when analyzing credibility. Burch v. Barnhart, 400 F.3d

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676, 680 (9th Cir. 2005). Dr. Spence failed to account for the use of prescribed pain

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medication, which undermines confidence in his opinions.

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The ALJ notes Loetscher carried a walking cane to the hearing. He did not use
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FOR SUMMARY JUDGMENT ~ 13

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it either entering or leaving the hearing (Tr. 30). Although an ALJ’s personal

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observations, standing alone, cannot support a determination that a claimant is not

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credible, they may form part of that determination. Fair v. Bowen, 885 F.2d 597, 602

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(9th Cir. 1989). Loetscher inconsistently reported his drug use, a factor generally

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appropriate for consideration. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir.

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1999). Loetscher said he stopped using substances in December 2008, but evidence

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showed he continued to use in January, February and May 2009, and used marijuana

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from 2009-11 (Tr. 30, 237, 310, 315-17, 357, 420, 444, 486). The record also shows

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marijuana was medically prescribed on February 6, 2011—five months before the

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hearing (Tr. 482), and this record was sent to the ALJ a little over a month before

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her decision.

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The ALJ clearly erred when she assessed the use of pain medication. She

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notes “there is nowhere in the record where pain medications were a normal course”

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of Loetscher’s treatment. She also states he obtained good pain control with

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tramadol (Tr. 31). Neither is accurate in context. On May 7, 2009 treating source

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Linda Wray, M.D., opined a non-narcotic such as gabapentin or amitriptyline could

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be prescribed for pain and sleep problems (Tr. 310). On June 4, 2009, treating source

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Suzanne Skinner, M.D., prescribed a trial of gabapentin (Tr. 362). Two weeks later

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it is noted to be somewhat helpful. It was prescribed through October 2009 (Tr. 363,

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371). Loetscher used amitriptyline in February 2010. Side effects from gabapentin
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were noted (Tr. 400), and tramadol was added for pain (Tr. 402). Pain medication

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was changed to hydrocodone in August 2011, after the ALJ’s decision (Tr. 259). The

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record shows that on the hearing date, Loetscher indicated he took prescribed

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medications for pain: tramadol and amitriptyline (Tr. 237). Although one record

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indicates good pain control on tramadol (Tr. 446), other records indicate negative

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side effects and other drugs were added at different times for pain control. The ALJ

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erred when she indicated “there were no stated adverse side effects noted by the

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claimant” with respect to medication. Loetscher testified he gets fatigue “from the

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medications” (Tr. 31, 78, 237, 400).

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On this record the evidence of credibility after June 14, 2010 is somewhat

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ambiguous. It is clear, however, that the record does not support most of the ALJ’s

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cited reasons for finding Loetscher less credible after June 14, 2010. These errors

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appear harmful, especially when considered in connection with the testimony of the

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medical expert on whom the ALJ relied (below).

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B. Medical expert

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Loetscher alleges the ALJ gave too much credit to the opinion of William

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Spence, M.D., who testified at the hearing. ECF No. 17 at 15-17. The Commissioner

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concedes Dr. Spence may have made errors and lacked clarity, but this does not

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require remand. ECF No. 19 at 5-6.

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The Court agrees with Loetscher that Dr. Spence’s testimony contained error,
and it appears harmful.

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Significantly, Dr. Spence testified Loetscher was on no pain medications and

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he saw no record of it (Tr. 63-64). The record contains numerous references to

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prescribed pain medications (see e.g., Tr. 237, 310, 362-63, 371, 425-26, 428-29,

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438-39, 441-42, 444-47, 463, 474, 478, 484-86, 501-02). When counsel advised Dr.

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Spence that Loetscher takes prescribed tramadol, Dr. Spence indicated he was

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unfamiliar with the drug but stated, “if the pain were severe enough I’d be looking

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for things such as opiates that are required for pain, something like that” (Tr. 64).

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Tramadol is a synthetic opiate, meaning it would be consistent with what Dr. Spence

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described as “severe enough pain” (Tr. 64). The ALJ relied on Dr. Spence’s opinion

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when she found medical improvement as of June 15, 2010, but at least part of Dr.

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Spence’s opinion does not appear to be based on an accurate review of the record.

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Dr. Spence opined Listing 11.16 was met through June 14, 2010 (Tr. 26-28).

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Loetscher’s primary allegation appears to be that the ALJ should not have relied on

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Dr. Spence’s opinion that he had medically improved and was no longer disabled as

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of June 15, 2010. Because of errors in Dr. Spence’s testimony and the credibility

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analysis, remand is appropriate.

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Loetscher alleges the ALJ erred when she relied on Dr. Spence’s extensive

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and extremely qualified credentials. ECF No. 17 at 17. However, at the hearing.
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FOR SUMMARY JUDGMENT ~ 16

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counsel agreed to the doctor’s qualifications. Dr. Spence is board certified in internal

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medicine, pulmonary disease and critical care. As the Commissioner accurately

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observes, counsel specifically stated he had no objection to Dr. Spence as an expert,

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thereby waiving this issue on appeal. ECF No. 19 at 5; Tr. 54-55; see Meanel v.

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Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999).

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C. Treating doctors and Appeals Council evidence

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Loetscher alleges the ALJ failed to properly credit, and misread, the opinions

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of treating doctor Mulloy Hansen, M.D. ECF No. 17 at 18-22. In February 2010, Dr.

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Hansen opined Loetscher was severely limited (Tr. 396). Because the ALJ found

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Loetscher was disabled until June 15, 2010, Loetscher is unable to show prejudice.

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Interestingly, Dr. Hansen also opined treatment was unlikely to improve Loetscher’s

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employability (Tr. 397).

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In March 2011, Dr. Hansen offered another opinion. The ALJ summarizes Dr.

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Hansen’s assessed RFC as consistent with sedentary work. Loetscher alleges this is

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error, as Dr. Hansen found he is more limited. ECF No. 17 at 18; 33, 499-500.

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According to the Commissioner, the ALJ properly rejected Dr. Hansen’s opinion

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that Loetscher could perform less than a full range of sedentary work. ECF No. 19 at

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12-15.

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Dr. Hansen opined in 2011 that Loetscher’s work function is impaired. He

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opined Loetscher is able to stand for 30 minutes, sit 20-30 minutes (for a total of two
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FOR SUMMARY JUDGMENT ~ 17

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hours) and lift ten pounds occasionally; he has significant lower limb impairment

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and is unable to climb, crouch, stoop, or bend and has gross motor extremity

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restrictions (Tr. 499-500). The ALJ rejected this opinion, in part because she found it

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was based on Loetscher’s unreliable self-report, and in part because it was

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contradicted by the opinion of the medical expert (Tr. 33). For the reasons stated

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above, both are erroneous.

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On January 20, 2010, just five months before the ALJ found Loetscher was

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no longer disabled, treating Dr. Keane reviewed test results and opined there was

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“significant bilateral lower extremity polyneuropathy” (Tr. 399). As noted, the

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Appeals Council accepted and considered evidence related to Loetscher’s condition

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after the hearing, meaning it is part of the record on review. Brewes v. Comm’r of

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Soc. Sec. Admin., 682 F.3d 1157 (9th Cir. 2012). A record dated August 3, 2011,

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shows Dr. Keane changed Loetscher’s pain medication from tramadol to

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hydrocodone because of side effects (Tr. 259). The ALJ should consider the new

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evidence from treating Drs. Keane and Hansen on remand, and give it whatever

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weight the ALJ determines is appropriate with respect to whether Loetscher’s

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condition medially improved after June 14, 2010. The ALJ may also wish to

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consider other additional medical evidence on remand.

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ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 18

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D. Remand

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The Court is unable to tell from this record whether Loetscher medically

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improved enough by June 15, 2010 to perform other work existing in the national

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economy, and if so, whether continued drug abuse might disqualify him from

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receiving benefits. See Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000).

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Because issues remain to be resolved with respect to Loetscher’s condition after

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June 14, 2010, the Court exercises its discretion and orders remand for further

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proceedings rather than for an award of benefits.

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The Court wishes to make clear it expresses no opinion as to what the ultimate

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outcome on remand will or should be. The Commissioner is free to give whatever

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weight to the additional evidence he or she deems appropriate. “[Q]uestions of

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credibility and resolution of conflicts in the testimony are functions solely of the

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Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

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CONCLUSION
After review the Court finds the ALJ’s decision is not supported by substantial
evidence and free of harmful legal error.
IT IS ORDERED:

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1. Plaintiff’s motion for summary judgment, ECF No. 17, is granted. The ALJ’s

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decision is reversed and the case remanded pursuant to sentence four for

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further proceedings.
ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 19

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2. The Defendant’s motion for summary judgment, ECF No. 19, is denied.

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The District Court Executive is directed to file this Order, provide copies to

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counsel, enter judgment in favor of plaintiff and CLOSE the file.
DATED this 14th day of March, 2014.

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S/ James P. Hutton

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JAMES P. HUTTON
UNITED STATES MAGISTRATE JUDGE

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ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT ~ 20