Coumont v. Commissioner of Social Security

Filing 18

ORDER Granting 14 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Sep 14, 2017 4 SEAN F. MCAVOY, CLERK 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF WASHINGTON 12 13 14 MATTHEW ADAM COUMONT, Plaintiff, 15 16 17 18 19 v. No. 2:16-CV-00222-JTR ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, Defendant. 20 21 BEFORE THE COURT are cross-motions for summary judgment. ECF 22 No. 14, 16. Attorney Dana C. Madsen represents Matthew Adam Coumont 23 (Plaintiff); Special Assistant United States Attorney Richard M. Rodriguez 24 represents the Commissioner of Social Security (Defendant). The parties have 25 consented to proceed before a magistrate judge. ECF No. 6. After reviewing the 26 administrative record and the briefs filed by the parties, the Court GRANTS, in 27 part, Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for 28 Summary Judgment; and REMANDS the matter to the Commissioner for ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 1 additional proceedings pursuant to 42 U.S.C. § 405(g). 2 JURISDICTION 3 Plaintiff filed an application for Supplemental Security Income (SSI) on 4 June 7, 2012, Tr. 159, alleging disability since May 1, 2010, Tr. 144, due to 5 neuropathy in his legs and deafness in his right ear. Tr. 163. The application was 6 denied initially and upon reconsideration. Tr. 92-95, 102-105. Administrative 7 Law Judge (ALJ) Donna L. Walker held a hearing on December 11, 2014 and 8 heard testimony from Plaintiff, medical experts, Thomas McKnight, Ph.D. and 9 James M. Haynes, M.D., and vocational expert, Thomas A. Polsin. Tr. 29-71. The 10 ALJ issued an unfavorable decision on February 4, 2015. Tr. 11-25. The Appeals 11 Council denied review on April 27, 2016. Tr. 1-6. The ALJ’s February 4, 2015 12 decision became the final decision of the Commissioner, which is appealable to the 13 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 14 review on June 21, 2016. ECF No. 1, 4. STATEMENT OF FACTS 15 The facts of the case are set forth in the administrative hearing transcript, the 16 17 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 18 here. 19 Plaintiff was 42 years old at the date of application. Tr. 144. He completed 20 the twelfth grade in 1988. Tr. 164. He reported upon application that he last 21 worked in October of 2011 and stopped working due to his conditions. Tr. 163. 22 His work history includes the job of carpenter/construction worker. Tr. 164, 179. 23 24 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 25 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 26 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 27 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 28 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 not supported by substantial evidence or if it is based on legal error. Tackett v. 2 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 3 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 4 another way, substantial evidence is such relevant evidence as a reasonable mind 5 might accept as adequate to support a conclusion. Richardson v. Perales, 402 6 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 7 interpretation, the court may not substitute its judgment for that of the ALJ. 8 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 9 findings, or if conflicting evidence supports a finding of either disability or non- 10 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 11 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 12 substantial evidence will still be set aside if the proper legal standards were not 13 applied in weighing the evidence and making the decision. Brawner v. Secretary 14 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 18 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 19 proof rests upon the claimant to establish a prima facie case of entitlement to 20 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once the 21 claimant establishes that physical or mental impairments prevent him from 22 engaging in his previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 23 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 24 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 25 other work, and (2) specific jobs exist in the national economy which the claimant 26 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 27 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 28 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 2 3 4 5 6 ADMINISTRATIVE DECISION On February 4, 2015, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since June 7, 2014, the date of application. Tr. 13. At step two, the ALJ determined Plaintiff had the severe impairment of 7 bilateral lower extremity peripheral neuropathy, secondary to possible acute 8 alcohol abuse. Tr. 14. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of one of 11 the listed impairments. Tr. 17. 12 13 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform a range of light work with the following limitations: 14 15 16 17 18 19 20 21 22 The claimant can lift or carry up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk up to six hours in an eight hour day, and sit without limitation. The claimant has unlimited ability to push or pull notwithstanding his limitations in lifting and carrying. The claimant can frequently climb ramps and stairs, never climb ladders, ropes, and scaffolds, but has no manipulative or visual limitations. The claimant should avoid concentrated exposure to extreme cold, vibration, hazards such as machinery and heights, and even moderate exposure to noise. The claimant has unlimited ability to work in an environment with heat, humidity, fumes, odors, dusts, gases, and poor ventilation. 23 Tr. 18. The ALJ identified Plaintiff’s past relevant work as construction worker 24 and concluded that Plaintiff was not able to perform this work. Tr. 23. 25 At step five, the ALJ determined that, considering Plaintiff’s age, education, 26 work experience and residual functional capacity, and based on the testimony of 27 the vocational expert, there were other jobs that exist in significant numbers in the 28 national economy Plaintiff could perform, including the jobs of airline security ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 representative, mailroom clerk, and storage rental clerk. Tr. 24. The ALJ 2 concluded Plaintiff was not under a disability within the meaning of the Social 3 Security Act at any time from the date of application, June 7, 2012, through the 4 date of the ALJ’s decision, February 4, 2015. Tr. 25. ISSUES 5 The question presented is whether substantial evidence supports the ALJ’s 6 7 decision denying benefits and, if so, whether that decision is based on proper legal 8 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh and 9 consider the medical opinions in the record, (2) failing to find that Plaintiff’s 10 mental health impairments were severe at step two, (3) failing to properly consider 11 Plaintiff’s credibility, and (4) failing to form a proper residual functional capacity 12 determination. DISCUSSION 13 14 A. Medical Opinions 15 Plaintiff argues that the ALJ erred in the weight she gave to the opinions of 16 John Arnold, Ph.D., Thomas McKnight, Ph.D., and James M. Haynes, M.D. ECF 17 No. 14 at 15-17. 18 In weighing medical source opinions, the ALJ should distinguish between 19 three different types of physicians: (1) treating physicians, who actually treat the 20 claimant; (2) examining physicians, who examine but do not treat the claimant; 21 and, (3) nonexamining physicians who neither treat nor examine the claimant. 22 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 23 weight to the opinion of a treating physician than to the opinion of an examining 24 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 25 should give more weight to the opinion of an examining physician than to the 26 opinion of a nonexamining physician. Id. 27 When an examining physician’s opinion is not contradicted by another 28 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 and when an examining physician’s opinion is contradicted by another physician, 2 the ALJ is only required to provide “specific and legitimate reasons” to reject the 3 opinion. Lester, 81 F.3d at 830-831. The specific and legitimate standard can be 4 met by the ALJ setting out a detailed and thorough summary of the facts and 5 conflicting clinical evidence, stating her interpretation thereof, and making 6 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 7 required to do more than offer her conclusions, she “must set forth [her] 8 interpretations and explain why they, rather than the doctors’, are correct.” 9 Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 1988). 10 1. John Arnold, Ph.D. 11 On December 8, 2014, Dr. Arnold evaluated Plaintiff and diagnosed him 12 with undifferentiated somatoform disorder, major depressive disorder, generalized 13 anxiety disorder, alcohol dependence in self-reported sustained partial remission, 14 personality disorder, and rule out borderline intellectual functioning. Tr. 320-321. 15 Dr. Arnold completed a Mental Medical Source Statement form in which he gave 16 Plaintiff a marked 1 limitation in the abilities to perform activities within a 17 schedule, maintain regular attendance, and be punctual within customary 18 tolerances, to work in coordination with or proximity to others without being 19 distracted by them, to complete a normal workday and workweek without 20 interruptions from psychologically based symptoms and to perform at a consistent 21 pace without an unreasonable number and length of rest periods, and to accept 22 instruction and respond appropriately to criticism from supervisors. Tr. 323-324. 23 Additionally, Dr. Arnold opined that Plaintiff had a moderate2 limitation in the 24 25 26 27 28 1 A marked limitation is defined as “[f]requent interference on the ability to function in a work setting (i.e. 1/3 to 2/3 of an 8 hour workday).” Tr. 322. 2 A moderate limitation is defined as an “[o]ccasional interference on the ability to function in a work setting (i.e. up to 1/3 of an 8 hour workday).” Tr. 322. ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 abilities to understand and remember detailed instructions, to carry out detailed 2 instructions, to maintain attention and concentration for extended periods, to 3 sustain an ordinary routine without special supervision, to get along with 4 coworkers or peers without distracting them or exhibiting behavioral extremes, to 5 maintain socially appropriate behavior and to adhere to basic standards of neatness 6 and cleanliness, to respond appropriately to changes in the work setting, to be 7 aware of normal hazards and take appropriate precautions, and to set realistic goals 8 or make plans independently of others. Tr. 322-324. 9 The ALJ gave this opinion “little weight,” stating that “as noted by Dr. 10 McKnight, Dr. Arnold’s opinions are internally inconsistent, based on the 11 claimant’s subjective complaints, and yet also inconsistent with the claimant’s 12 statements throughout the record.” Tr. 16. 13 The ALJ’s first reason for rejecting Dr. Arnold’s opinion, that it was 14 internally inconsistent, is not legally sufficient. The Ninth Circuit has held that 15 internal inconsistencies in a provider’s report and opinion meets the clear and 16 convincing standard. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 17 However, here the ALJ failed to provide any more than the conclusion that internal 18 inconsistencies existed. She did not state what in Dr. Arnold’s report or opinion 19 was inconsistent. Tr. 16. Earlier in the decision, the ALJ noted that Dr. McKnight 20 discounted Dr. Arnold’s conclusions and summarized Dr. McKnight’s findings of 21 inconsistencies as “Dr. Arnold appreciated memory, concentration, and attending 22 within normal limits, and opined that the claimant could follow detailed 23 instructions, but provided diagnosis of impairments including somatoform 24 disorder, generalized anxiety disorder, and personality disorder.” Tr. 15. 25 However, citing a doctor’s opinion is not equivalent to ALJ making findings. 26 Additionally, the ALJ’s restatement of Dr. McKnight’s summary of Dr. Arnold’s 27 opinion is inaccurate. The ALJ stated that Dr. McKnight found that Dr. Arnold 28 “opined that the claimant could follow detailed instructions,” Tr. 15, but Dr. ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 Arnold actually opined that Plaintiff had a moderate limitation in the ability to 2 understand, remember, and carry out detailed instructions. Tr. 322-323. As such, 3 this reason fails to meet the clear and convincing standard. The ALJ’s second reason for rejecting Dr. Arnold’s opinion, that it was 4 5 based on Plaintiff’s unreliable statements while simultaneous finding the opinion 6 inconsistent with Plaintiff’s statements, is not legally sufficient. The ALJ is 7 required to set out a detailed and thorough summary of the facts and conflicting 8 clinical evidence and state her interpretation thereof, and make findings. 9 Magallanes, 881 F.2d at 751. Here, the ALJ failed to articulate how Dr. Arnold’s 10 opinion could be both based on Plaintiff’s statements and inconsistent with 11 Plaintiff’s statements. Tr. 15-16. As such, the reason falls short of the specific and 12 legitimate standard, let alone, the heightened clear and convincing standard. 13 The ALJ erred in her treatment of Dr. Arnold’s opinion. Plaintiff argues that 14 Dr. Arnold’s opinion should be credited as true and benefits should be awarded, 15 however, this Court finds that considering the ALJ’s credibility determination 16 included some clear and convincing reasons supporting the determination that 17 Plaintiff’s self-reports were less than fully credible. Therefore, the case is 18 remanded for additional proceedings to address the medical source opinions in the 19 file. 20 2. 21 Plaintiff also challenged the weight the ALJ provided to the testimony of the 22 medical expert who appeared at the hearing, Dr. McKnight. ECF No. 14 at 16-17. 23 Dr. McKnight testified that Plaintiff had no medical determinable mental health 24 25 impairments. Tr. 49-50. A nonexamining physician’s opinion, with nothing more, does not constitute 26 substantial evidence, particularly in view of the conflicting observations, opinions, 27 and conclusions of an examining physician. Lester, 81 F.3d at 831 (citing Pitzer v. 28 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, Thomas McKnight, Ph.D. ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 1456 (9th Cir. 1984)). In Gallant, the Court held that “the report of [a] non- 2 treating, non-examining physician, combined with the ALJ’s own observance of 3 [the] claimant’s demeanor at the hearing” did not constitute “substantial evidence” 4 and, therefore, did not support the Commissioner’s decision to reject the examining 5 physician’s opinion that the claimant was disabled. 753 F.2d at 1456. The opinion 6 of a nonexamining physician may serve as substantial evidence only when it is 7 supported by other evidence in the record and is consistent with it. Andrews, 53 8 F.3d at 104. 9 Considering the ALJ is instructed to readdress the opinion of Dr. Arnold, whose 10 opinion contradicts Dr. McKnight’s, the ALJ will also readdress Dr. McKnight’s 11 opinion on remand. Should the ALJ choose to give Dr. McKnight’s opinion 12 weight, she will cite to supporting evidence with specificity. 13 3. 14 Plaintiff challenged the weight the ALJ gave to the testimony of the medical 15 16 James M. Haynes, M.D. expert who appeared at the hearing, Dr. Haynes. ECF No. 14 at 15-16. At the hearing, Dr. Haynes testified that Plaintiff could occasionally lift 17 twenty pounds and frequently lift ten pounds. Tr. 39. Standing and walking he 18 limited to six hours with two to four hours at one time. Id. He opined there were 19 no limitations with sitting, postural limitations or environmental restrictions. Id. 20 Additionally he would keep Plaintiff off ladders and scaffolds. Id. The ALJ then 21 gave Dr. Haynes’ opinion “significant weight” stating that it was based on a review 22 of the longitudinal record and was consistent with and supported the residual 23 functional capacity determination. Tr. 22. 24 Plaintiff argues that the ALJ put Dr. Haynes’ opinion before that of his 25 treating and examining providers. ECF No. 14 at 16. However, the only other 26 examining or treating opinion in the record regarding Plaintiff’s physical residual 27 functional capacity was that of Dr. Hull, an examining provider who opined 28 Plaintiff “would have significant difficulty with any job requiring prolonged ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 standing or walking, and should certainly be avoiding any work requiring climbing 2 or ladders.” Tr. 284. Dr. Hull’s opinion does vary from Dr. Haynes’ opinion in 3 the extent to which Plaintiff can stand/walk, but it would not be considered work 4 preclusive as it conforms to the definition of sedentary work. See 20 C.F.R. § 5 416.967(a). Nonetheless, because the case is being remanded to address the 6 opinions surrounding Plaintiff’s mental health impairments, the ALJ is further 7 instructed to readdress the opinions regarding Plaintiff’s physical residual 8 functional capacity on remand. 9 B. Plaintiff challenges the ALJ’s finding that Plaintiff’s mental health 10 11 Step Two impairments were not severe at step two. ECF No. 14 at 17-18. 12 Step-two of the sequential evaluation process requires the ALJ to determine 13 whether or not the claimant “has a medically severe impairment or combination of 14 impairments.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation 15 omitted). “An impairment or combination of impairments can be found ‘not 16 severe’ only if the evidence establishes a slight abnormality that has ‘no more than 17 a minimal effect on an individual[’]s ability to work.’” Id. at 1290. The step-two 18 analysis is “a de minimis screening device to dispose of groundless claims.” Id. In 19 her step two determination, the ALJ found Plaintiff’s anxiety to be not severe. Tr. 20 21. Considering the ALJ erred in her treatment of Dr. Arnold’s opinion, the 21 22 ALJ’s step two finding that Plaintiff lacked any severe mental health impairments 23 cannot stand. Upon remand, the ALJ is to make a new step two determination. 24 C. 25 26 Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ECF No. 14 at 11-15. 27 It is generally the province of the ALJ to make credibility determinations, 28 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 2 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 3 testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281; 4 Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ must 5 identify what testimony is not credible and what evidence undermines the 6 claimant’s complaints.” Lester, 81 F.3d at 834. The ALJ found Plaintiff less than fully credible concerning the intensity, 7 8 persistence, and limiting effects of his symptoms. Tr. 19. The ALJ reasoned that 9 Plaintiff was less than fully credible because (1) the medical evidence did not 10 support his allegations, (2) Plaintiff inconsistently reported his alcohol use, (3) 11 Plaintiff made inconsistent statements regarding his work history, and (4) the 12 record contained evidence that Plaintiff exaggerated his symptoms. 13 1. Medical Evidence 14 Plaintiff challenges the ALJ’s determination that his statements were 15 inconsistent with the medical evidence in the record. ECF No. 14 at 11-12. 16 Although it cannot serve as the sole ground for rejecting a claimant’s credibility, 17 objective medical evidence is a “relevant factor in determining the severity of the 18 claimant's pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 19 (9th Cir. 2001). 20 The ALJ cited to the record, including expert testimony, showing that the 21 record was inconsistent with his statements. Tr. 19-21. Plaintiff argues that the 22 ALJ overlooked evidence that supported his statements. ECF No. 14 at 11-12. 23 However, if the evidence is susceptible to more than one rational interpretation, the 24 court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 25 1097. Therefore, the ALJ’s first reason is supported by substantial evidence and 26 because there are additional legally sufficient reasons provided by the ALJ, see 27 infra., it too meets the clear and convincing standard. 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 2. Reported Alcohol Use 2 Plaintiff challenges the ALJ’s reliance on his inconsistent reports of alcohol 3 abuse in the credibility determination. ECF No. 14 at 12-13. An ALJ may 4 properly consider evidence of a claimant’s substance use in assessing credibility. 5 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (ALJ’s finding that 6 claimant was not a reliable historian regarding drug and alcohol usage supports 7 negative credibility determination); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th 8 Cir. 1999) (conflicting or inconsistent testimony concerning alcohol or drug use 9 can contribute to an adverse credibility finding). Here, Plaintiff argues that the ALJ relied on inconsistent statements made 10 11 three years apart by Plaintiff and his brother and because of the time between the 12 statements, the ALJ reliance on them were unreasonable. ECF No. 14 at 12-13. 13 The ALJ cited to Plaintiff’s statement that he only drank two light beers a day and 14 his brother’s statement that he drank approximately 18 beers a night. Tr. 21. A 15 neurological consultation performed on May 23, 2010 states “He drinks two to four 16 beers a day according to his brother, but his brother also is concerned that Matthew 17 denies his drinking a bit.” Tr. 207. Another report the same day states “He states 18 he generally drank two or three beers a day but over the last week or so has had 19 much more alcohol intake secondary to pain.” Tr. 215. A psychiatric consultation 20 the next day states “patient states he drinks ‘maybe four beers’ a day but records 21 reveal that he may be minimizing this and also perhaps hiding his drinking.” Tr. 22 219. Discharge records state “he began drinking significant amounts of alcohol 23 which his brother stated was approximately an 18-pack per night during the week 24 prior to admission.” Tr. 205. All these statements were made in close proximity, 25 May 2010, and show that Plaintiff is inconsistent in reporting his alcohol intake. 26 As such, the ALJ’s reason was supported by substantial evidence and is legally 27 sufficient. 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 3. Inconsistent Statements 2 The ALJ found that Plaintiff made inconsistent statements regarding his 3 work history, stating that he “denied any work subsequent to his alleged onset day, 4 but later admitted to engaging in small jobs whenever possible.” Tr. 22. In 5 determining a claimant’s credibility, the ALJ may consider “ordinary techniques of 6 credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 7 statements . . . and other testimony by the claimant that appears less than candid.” 8 Smolen, 80 F.3d at 1284. 9 Plaintiff argues that these statements were made as part of his history in 10 medical reports and not as his current activities. ECF No. 14 at 13. While Plaintiff 11 is accurate that the history section of one record lists his past employment as a 12 construction worker, Tr. 211, a later report states, “[t]he patient still works in 13 construction, however due to his neuropathy the patient is unable to work full 14 time.” Tr. 300. In his testimony, Plaintiff admitted to trying “to get any little 15 work” he could physically do, but also asserted he could not do what he used to do. 16 Tr. 52. Upon further questioning and the ALJ assuring Plaintiff that the question 17 was not if he could do the work he used to do, but whether he was working part 18 time, Plaintiff stated that he was not working part time. Tr. 53. Here, the ALJ’s 19 determination was supported by substantial evidence and meets the clear and 20 convincing standard. 21 4. Exaggerated Symptoms 22 Plaintiff challenges the ALJ’s finding that Dr. Arnold indicated there was 23 significant over reporting on his part. ECF No. 14 at 13-14. The Ninth Circuit has 24 held that a “tendency to exaggerate,” among other reasons, can support an 25 unfavorable credibility determination. Tonapetyan v. Halter, 242 F.3d 1144, 1148 26 (9th Cir. 2001). 27 28 Dr. Arnold stated that while Plaintiff’s “efforts appeared generally in earnest at face value,” his validity scales on the MCMI-III “suggest[ed] his test taking ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 attitude was overrepresented with themes of self-debasement.” Tr. 319. Dr. 2 Arnold continued, “The Millon scoring procedure is designed to adjust for these 3 influences on scale elevations to some extent. Overall, his MCMI-III profile was 4 judged interpretable, with some caution for over reporting. The latter may have 5 also been due, to a degree, by marked clinical depression.” Id. Plaintiff argues 6 that the ALJ stepped into the role of doctor in interpreting Dr. Arnold’s statements 7 to support her finding of over reporting. ECF No. 14 at 13-14. However, Dr. 8 Arnold’s statement supports a finding of over reporting and the test scores could be 9 explained only to “some degree” by Plaintiff’s depression. As such, the ALJ did 10 not err in drawing the conclusion that Plaintiff was prone to exaggerations. While this Court finds that the ALJ erred in her treatment of medical source 11 12 opinions in the file, she did not err in her treatment of Plaintiff’s credibility. 13 C. 14 Residual Functional Capacity Plaintiff argues that the ALJ’s residual functional capacity determination as 15 presented to the vocational expert in the form of a hypothetical lacks an evidentiary 16 basis because the ALJ failed to include all the limitations addressed by Dr. Haynes. 17 ECF No. 14 at 18-19. 18 A claimant’s residual functional capacity is “the most [a claimant] can still 19 do despite [his] limitations.” 20 C.F.R. § 416.945(a). In formulating a residual 20 functional capacity, the ALJ weighs medical and other source opinions and also 21 considers the claimant’s credibility and ability to perform daily activities. See, 22 e.g., Bray v. Comm'r, Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). 23 Here, since the case is being remanded and the ALJ is instructed to reweigh 24 the medical source opinions and readdress step two. A new residual functional 25 determination will also be necessary. In addition, the ALJ will call a vocational 26 expert to testify at any additional proceedings. 27 REMEDY 28 The decision whether to remand for further proceedings or reverse and ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 award benefits is within the discretion of the district court. McAllister v. Sullivan, 2 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 3 where “no useful purpose would be served by further administrative proceedings, 4 or where the record has been thoroughly developed,” Varney v. Secretary of Health 5 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 6 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 7 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 8 (noting that a district court may abuse its discretion not to remand for benefits 9 when all of these conditions are met). This policy is based on the “need to 10 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 11 outstanding issues that must be resolved before a determination can be made, and it 12 is not clear from the record that the ALJ would be required to find a claimant 13 disabled if all the evidence were properly evaluated, remand is appropriate. See 14 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 15 F.3d 1172, 1179-80 (9th Cir. 2000). 16 Considering the record as a whole, it is not clear that the ALJ would be 17 required to find Plaintiff disabled if all the evidence were properly evaluated. 18 Further proceedings are necessary for the ALJ to reweigh the medical source 19 opinions in the record, make a new step two determination, and form a new 20 residual functional capacity determination. The ALJ will also supplement the 21 record with any outstanding medical evidence and take testimony from a 22 vocational expert. CONCLUSION 23 24 Accordingly, IT IS ORDERED: 25 1. 26 27 28 Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED, in part, and the matter is REMANDED to the Commissioner for ORDER GRANTING PLAINTIFF’S MOTION . . . - 15 1 additional proceedings consistent with this Order. 2 3. Application for attorney fees may be filed by separate motion. 3 The District Court Executive is directed to file this Order and provide a copy 4 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 5 and the file shall be CLOSED. 6 DATED September 14, 2017. 7 8 9 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 16

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