St. Louis v. Colvin

Filing 19

ORDER ON PLAINTIFF'S COMPLAINT by Judge David W. Christel. (KEB)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10

JODI ST. LOUIS,

11
12
13

Plaintiff,

CASE NO. 3:16-CV-05128-DWC
ORDER ON PLAINTIFF’S
COMPLAINT

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

14
Defendant.
15
16

Plaintiff filed this action, pursuant to 42 U.S.C § 405(g), seeking judicial review of the

17 denial of Plaintiff’s applications for Disability Insurance Benefits (“DIB”), Supplemental
18 Security Income (“SSI”) benefits, and Disabled Widow’s Benefits (“DWB”). The parties have
19 consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636(c), Fed. R.
20 Civ. P. 73 and Local Magistrate Judge Rule MJR 13. See also Consent to Proceed before a
21 United States Magistrate Judge, Dkt. 6.
22

After reviewing the record, the Court concludes the Administrative Law Judge (“ALJ”)

23 erred by failing to properly evaluate the opinions of one of Plaintiff’s treating physicians and one
24

ORDER ON PLAINTIFF’S COMPLAINT - 1

1 examining physician. Therefore, this matter is reversed and remanded, pursuant to sentence four
2 of 42 U.S.C. § 405(g), for further proceedings.
3
4

PROCEDURAL& FACTUAL HISTORY
On October 15, 2012, Plaintiff filed applications for DIB, SSI, and DWB. See Dkt. 9,

5 Administrative Record (“AR”) 247-68. Plaintiff alleges she became disabled on September 1,
6 2008, due to macular degeneration, lumbar degenerative disc disease, back pain, and thyroid
7 issues. See AR 247, 283. Plaintiff’s applications were denied upon initial administrative review
8 and on reconsideration. See AR 174-76, 179-86, 189-195. A hearing was held before an ALJ on
9 April 15, 2014, at which Plaintiff, represented by counsel, appeared and testified. See AR 47.
10

On May 13, 2014, the ALJ found Plaintiff was not disabled within the meaning of

11 Sections 202(e), 216(i), 223(d), and1614(a)(3)(A) of the Social Security Act. AR 37-38.
12 Plaintiff’s request for review of the ALJ’s decision was denied by the Appeals Council on
13 October 16, 2015, making that decision the final decision of the Commissioner of Social Security
14 (the “Commissioner”). See AR 5, 20 C.F.R. § 404.981, § 416.1481. After receiving an extension
15 of time to file a civil action from the appeals council, Plaintiff filed a complaint in this Court
16 seeking judicial review of the Commissioner’s final decision on February 19, 2016. AR 1.
17

Plaintiff argues the denial of benefits should be reversed and remanded for further

18 proceedings, because the ALJ: 1) failed to find Plaintiff’s depression and macular degeneration
19 to be severe impairments at Step Two of the sequential evaluation; 2) improperly evaluated the
20 medical opinion evidence from six treating, examining, and non-examining physicians; 3)
21 improperly discounted Plaintiff’s subjective symptom testimony; 4) failed to include all of
22 Plaintiff’s limitations in the residual functional capacity (“RFC”) finding, and 5) improperly
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 found Plaintiff was capable of performing jobs existing in significant numbers in the national
2 economy at Step Five. Dkt. 13, p. 1.
3

STANDARD OF REVIEW

4

Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social

5 security benefits only if the ALJ's findings are based on legal error or not supported by
6 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
7 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). “Substantial evidence” is
8 more than a scintilla, less than a preponderance, and is such “‘relevant evidence as a reasonable
9 mind might accept as adequate to support a conclusion.’” Magallanes v. Bowen, 881 F.2d 747,
10 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).
11
12

DISCUSSION
I.

Whether the ALJ Erred by Failing to Consider Plaintiff’s Depression and Macular
Degeneration to be Severe Impairments at Step Two of the Sequential Evaluation.

13
A. Standard
14
At Step Two of the sequential evaluation, the ALJ must determine if a claimant has a
15
“severe medically determinable physical or mental impairment.” 20 C.F.R. §§ 404.1520(a)(4)(ii),
16
416.920(a)(4)(ii) (2015). See also Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996)
17
(internal citation omitted). Impairments must result “from anatomical, physiological, or
18
psychological abnormalities which can be shown by medically acceptable clinical and laboratory
19
diagnostic techniques.” 20 C.F.R. § 416.908 (2010). A medically determinable impairment is
20
considered “severe” if it “significantly limits [a claimant’s] physical or mental ability to do basic
21
work activities . . . .” 20 C.F.R. §§ 404.1520(a)(4)(iii) & (c), 416.920(a)(4)(iii) & (c); see also
22
Social Security Ruling (“SSR”) 96-3p, 1996 WL 374181 *1. Basic work activities are those
23
“abilities and aptitudes necessary to do most jobs,” including, for example, “walking, standing,
24

ORDER ON PLAINTIFF’S COMPLAINT - 3

1 sitting, lifting, pushing, pulling, reaching, carrying or handling; capacities for seeing, hearing and
2 speaking; understanding, carrying out, and remembering simple instructions; use of judgment;
3 responding appropriately to supervision, co-workers and usual work situations; and dealing with
4 changes in a routine work setting.” 20 C.F.R. § 404.1521(b), § 416.921(b); SSR 85- 28, 1985
5 WL 56856 *3.
6

The Step Two inquiry, however, is merely a threshold determination as to whether a

7 claimant has raised a “prima facie case of a disability.” Hoopai v. Astrue, 499 F.3d 1071, 1076
8 (9th Cir. 2007). See also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (noting the Step
9 Two determination is a de minimis screening device used to dispose of groundless claims).
10 “Ample authority cautions against a determination of nondisability at step two.” Ortiz v.
11 Commissioner of Social Sec., 425 Fed.Appx. 653, 655 (9th Cir. 2011) (citing Bowen v. Yuckert,
12 482 U.S. 137, 153 (1987); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005), Smolen, 80 F.3d
13 at 1290. An impairment or combination of impairments may be found “not severe only if the
14 evidence establishes a slight abnormality that has no more than a minimal effect on an
15 individual’s ability to work.” Smolen, 80 F.3d at 1290.
16

Here, the record contains evidence suggesting Plaintiff had the medically determinable

17 impairments of macular degeneration and depression, which the ALJ found to be not severe at
18 Step Two of the sequential evaluation. However, even assuming the ALJ erred by finding these
19 impairments to be not severe, 1 any error is harmless.
20
21
1

It is not at all clear the ALJ erred in assessing these medically determinable
impairments. The ALJ provided a thorough review of the medical evidence to demonstrate
23 Plaintiff’s macular degeneration caused no more than a minimal effect on Plaintiff’s ability to
work, and that Plaintiff’s depression did not last for a continuous period of twelve months. AR
24 22.
22

ORDER ON PLAINTIFF’S COMPLAINT - 4

1

An error is harmless if “there remains substantial evidence supporting the ALJ’s decision

2 and the error does not negate the validity of the ALJ’s ultimate conclusion.” Molina v. Astrue,
3 674 F.3d 1104, 1115 (9th Cir. 2012) (quoting Batson v. Comm’r of Soc. Sec. Admin, 359 F.3d
4 1190, 1197 (9th Cir. 2004)). Thus, if a claimant prevails at Step Two and the ALJ considers all
5 impairments—regardless of severity—in the subsequent steps, an ALJ’s failure to consider an
6 impairment “severe” is harmless. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). See
7 also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), Garcia v. Commissioner of Soc. Sec., 587
8 Fed.Appx. 367, 370 (9th Cir. 2014). Plaintiff prevailed at Step Two. AR 22. Further, the ALJ
9 ALJ actually considered Plaintiff’s depression and macular degeneration in the remaining steps
10 of the sequential evaluation. For instance, to account for Plaintiff’s depression, the ALJ limited
11 Plaintiff to simple tasks which require little to no judgment. AR 23. Also, the ALJ thoroughly
12 discussed the medical records pertaining to Plaintiff’s macular degeneration when assessing
13 Plaintiff’s RFC, noted two acceptable medical sources opined Plaintiff was malingering on
14 visual field testing, and otherwise incorporated the remaining credible limitation caused by
15 Plaintiff’s macular degeneration—a restriction to avoid fine binocular tasks—into the
16 hypotheticals he presented to the vocational expert at Steps Four and Five of the sequential
17 evaluation. AR 24-37, 93-94. Because the ALJ accounted for Plaintiff’s depression and macular
18 degeneration at all steps of the sequential evaluation, Plaintiff has failed to demonstrate how any
19 alleged error at Step Two was harmful.
20
21
22

II.

Whether the ALJ Properly Evaluated the Medical Opinion Evidence.
A. Standard
The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted

23 opinion of either a treating or examining physician or psychologist. Lester v. Chater, 81 F.3d
24

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v.
2 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). However, “[i]n order to discount the opinion of an
3 examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must
4 set forth specific, legitimate reasons that are supported by substantial evidence in the record.”
5 Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (citing Lester, 81 F.3d at 831). The ALJ
6 can accomplish this by “setting out a detailed and thorough summary of the facts and conflicting
7 clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157
8 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes, 881 F.2d at 751). In addition, the ALJ must
9 explain why the ALJ’s own interpretations, rather than those of the doctors, are correct. Reddick,
10 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22). The ALJ “may not reject ‘significant
11 probative evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)
12 (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642
13 F.2d 700, 706-07 (3d Cir. 1981))). The “ALJ’s written decision must state reasons for
14 disregarding [such] evidence.” Flores, 49 F.3d at 571.
15
16
17

B. Application of Standard
1. Mark Heilbrunn, M.D.
Dr. Heilbrunn examined Plaintiff on February 20, 2014. AR 470. During his examination,

18 Dr. Heilbrunn noted Plaintiff’s performance on a Snellen eye exam was 20/200 bilaterally with
19 corrective lenses, and 20/400 bilaterally without corrective lenses. AR 460. Dr. Heilbrunn
20 documented posterior kyphosis, decreased range of motion, and occasional crepitus in Plaintiff’s
21 neck. AR 460. Dr. Heilbrunn also documented lumbar midline paraspinous tenderness, positive
22 lordosis, and positive straight leg raise tests from both sedentary and supine positions, as well as
23 reduced range of motion in Plaintiff’s back, neck, and hips. AR 461-62.
24

ORDER ON PLAINTIFF’S COMPLAINT - 6

1

Based upon his examination, Dr. Heilbrunn completed two functional assessments. AR

2 463-64; 465-70. In his narrative functional assessment, Dr. Heilbrunn opined, due to Plaintiff’s
3 markedly decreased visual acuity, she would not be able to: avoid hazards in the workplace, read
4 very small print; adequately view a computer screen; or determine the differences in size and
5 shape of small objects without difficulty. AR 463. As for Plaintiff’s physical limitations, Dr.
6 Heilbrunn opined Plaintiff could not sit for more than 30 minutes uninterrupted; could sit for no
7 more than four to five hours in an eight-hour workday; could not stand or walk for more than 15
8 minutes uninterrupted; could not stand or walk for more than four hours in an eight-hour
9 workday; could not lift or carry more than 10 pounds for more than an occasional basis; and
10 would be unable to reach overhead on a more than occasional basis. AR 463-64.
11

Similarly, Dr. Heilbrunn completed a check-the-box medical source statement, wherein

12 he described Plaintiff has having the following limitations: Plaintiff could lift and carry up to 10
13 pounds on a continuous basis, but could not lift or carry any heavier weights whatsoever;
14 Plaintiff could not sit for more than 30 minutes at one time, and could not sit for more than four
15 hours in an eight-hour workday; Plaintiff could not stand or walk for more than 15 and 10
16 minutes at one time, respectively, and could not stand or walk for more than one to two hours in
17 an eight-hour workday. AR 466-67. Dr. Heilbrunn also assessed limitations in Plaintiff’s ability
18 to climb ladders, stairs, scaffolds, balance, stoop, kneel, crouch, crawl, reach and finger objects.
19 AR 467-68.
20

The ALJ gave Dr. Heilbrunn’s opinion as to Plaintiff’s visual impairments no weight, as

21 they were based “upon an exaggerated presentation of difficulty navigating through his office not
22 seen anywhere else in the record and not consistent with objective findings on her eye
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 examinations or retinal scans.” AR 34. The ALJ also gave less than full weight to the remainder
2 of Dr. Heilbrunn’s opinions for the following reason:
3
4
5

The undersigned notes that Dr. Heilbrunn’s opinion is generally consistent with
his findings upon examination of the claimant. However, his findings are likely
based upon exaggeration, as the claimant displayed limitations during her
evaluation with Dr. Heilbrunn not seen elsewhere in the record. It is also
impossible to determine how capable claimant actually is in light of the evidence
of malingering.

6
AR 34. Plaintiff concedes the ALJ properly discounted Dr. Heilbrunn’s opinions as to Plaintiff’s
7
visual limitations, as Dr. Heilbrunn did not perform detailed vision testing. Dkt. 13, p. 8.
8
However, Plaintiff argues the ALJ’s reasons for discounting the balance of Dr. Heilbrunn’s
9
opined limitations were neither specific and legitimate reasons, nor were they supported by
10
substantial evidence. The Court agrees.
11
The ALJ cites the fact Plaintiff displayed limitations during the evaluation not seen
12
elsewhere in the record. However, the ALJ’s reasoning here is conclusory, and unsupported by
13
citations to the record. In order to reject the opinion of a treating or examining physician, an ALJ
14
“must do more than offer his conclusions; he must set forth his own interpretations and explain
15
why they, rather than the doctors’, are correct.” Reddick, 157 F.3d at 725 (citing Embrey v.
16
Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). See Garrison v. Colvin, 759 F.3d 995, 1012 (9th
17
Cir. 2014). See also, e.g., McAllister v. Sullivan, 888 F.2d 599, 602-03 (9th Cir. 1989) (finding
18
similar reasoning for rejecting a treating physician’s opinion was “broad and vague, failing to
19
specify why the ALJ felt the treating physician’s opinion was flawed”). To simply state Dr.
20
Heilbrunn documented findings not otherwise reflected in the record as a whole “does not
21
achieve the level of specificity our prior cases have required[.]” Embrey, 849 F.2d at 421-22.
22
Further, while an ALJ may draw inferences logically flowing from the record, an ALJ
23
may not speculate. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999); SSR 86-8,
24

ORDER ON PLAINTIFF’S COMPLAINT - 8

1 available at 1986 WL 68636, at *8. Here, the ALJ posits it is “likely” Plaintiff was exaggerating
2 her symptoms during Dr. Heilbrunn’s examination, and notes it is impossible for anyone to
3 determine Plaintiff’s true functional capabilities in light of her malingering documented
4 elsewhere in the record. However, the ALJ does not connect these two concepts together. The
5 ALJ offers no explanation for how Dr. Heilbrunn’s observations and independent clinical
6 findings are undermined by Plaintiff’s history of malingering, other than mere conjecture that
7 because Plaintiff has malingered in other circumstances, she must be malingering here as well.
8 “[A]n ALJ may not reject an uncontradicted medical opinion based on sheer disbelief . . . . ”
9 Cotton v. Astrue, 374 Fed.Appx. 769, 771 (9th Cir. 2010) (citing Benecke v. Barnhart, 379 F.3d
10 587, 594 (9th Cir. 2004)). C.f. Ryan v. Comm’r, Soc. Sec. Admin., 528 F.3d 1194, 11999-1200
11 (9th Cir.2008) (noting an ALJ does not provide clear and convincing reasons for rejecting an
12 examining physician’s opinion “by questioning the credibility of the patient’s complaints where
13 the doctor does not discredit those complaints and supports his ultimate opinion with his own
14 observations.”). The ALJ’s reasoning in this instance is speculative, and unsupported by
15 substantial evidence. 2
16

Because the ALJ failed to articulate specific and legitimate reasons, supported by

17 substantial evidence, for discounting Dr. Heilbrunn’s opinion, the ALJ erred. Further, Dr.
18
19

2

This is not to say, on remand, the ALJ will be required to accept Dr. Heilbrunn’s
20 opinion. As discussed more thoroughly, below, the ALJ made affirmative findings of
malingering based on other medical evidence, and properly discounted Plaintiff’s subjective
21 symptom testimony. To the extent Dr. Heilbrunn’s physical examination of Plaintiff relied upon
Plaintiff’s subjective reports, or on testing within Plaintiff’s subjective control, the ALJ could
22 properly discount Dr. Heilbrunn’s opinion on this basis. See Bray v. Comm’r, Soc. Sec. Admin.,
554 F.3d 1219, 1228 (9th Cir. 2009); Woodsum v. Astrue, 2012 WL 1388346, at *7 (W.D.
23 Wash., Mar. 29, 2012). See also, e.g., Calkins v. Astrue, 384 Fed.Appx. 613, 615-16 (9th Cir.
2010) (distinguishing Ryan and noting an ALJ must be able to “consider medical opinions in the
24 context of the record as a whole”).

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 Heilbrunn opined to more restrictive physical limitations than those the ALJ included in the RFC
2 finding; thus, the ALJ’s error was not “inconsequential to the ultimate nondisability
3 determination,” but was instead harmful error requiring remand. Molina, 674 F.3d at 1117.
4
5

2. Brenda Grant, M.D.
Dr. Grant was Plaintiff’s treating physician. AR 392, 405. On April 17, 2013, Dr. Grant

6 opined Plaintiff’s low back pain and neurological deficits in her legs caused by lumbar
7 degeneration, coupled with vision loss, would cause several limitations in Plaintiff’s functional
8 abilities. AR 486. Specifically, Dr. Grant opined Plaintiff: is unable to walk more than short
9 distances or lift and carry more than the lightest weights; cannot maintain one position for a
10 prolonged period of time. AR 486. Thus, Dr. Grant opined Plaintiff was unable to perform
11 physical labor, clerical work, or office work. AR 486.
12

The ALJ discounted Dr. Grant’s opinion for two reasons:

13

[1] This opinion is not consistent with Dr. Grant’s objective findings upon
examination of the claimant. [2] Further, insofar as this opinion is based on the
claimant’s reports of her limitations, and examination findings under the
subjective control of the claimant, the undersigned notes that such findings can be
accorded no weight as the claimant has displayed objective evidence of
malingering in the file as noted by Dr. Pratt and confirmed by Dr. Plotkin after an
independent impartial evaluation of the claimant’s longitudinal treatment record.

14
15
16

17 AR 33. Plaintiff argues these were not specific and legitimate reasons, supported by substantial
18 evidence, for discounting Dr. Grant’s opinion. The Court agrees. As to the ALJ’s first reason, it
19 is again conclusory, without explanation or citation to supporting items in the record. Reddick,
20 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22). See Garrison, 759 F.3d at 1012. See also,
21 e.g., McAllister, 888 F.2d at 602-03. As to the ALJ’s second reason, it is insufficiently specific
22 and not supported by substantial evidence in the record. An ALJ may discount a physician’s
23 opinion where the opinion is based to a large extent on a claimant’s self-reports, and the ALJ has
24

ORDER ON PLAINTIFF’S COMPLAINT - 10

1 properly discounted a claimant’s subjective symptom testimony. Tommasetti v. Astrue, 533 F.3d
2 1035, 1041 (9th Cir. 2008). However, when an opinion is not more heavily based on a patient’s
3 self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion.”
4 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, the ALJ simply indicates he is
5 discounting Dr. Grant’s opinion “to the extent” it relies on subjective testimony, however, the
6 ALJ points to nothing to indicate Dr. Grant relied more heavily on Plaintiff’s subjective reports
7 of pain than on the results of her physical examinations and imaging studies. AR 33. The ALJ’s
8 failure to articulate his reasoning frustrates this Court’s ability to perform meaningful judicial
9 review. Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001).
10

Because the ALJ failed to articulate specific and legitimate reasons, supported by

11 substantial evidence, for discounting Dr. Grant’s opinion, the ALJ erred.
12
13

3. Other Medical Opinions
In addition to the opinions of Dr. Heilbrunn and Dr. Grant, Plaintiff also challenges the

14 ALJ’s resolution of four other medical opinions in the record. However, the ALJ’s evaluation of
15 these opinions was proper.
16

First, the ALJ properly discounted Joshua Pratt, O.D., Ph.D.’s opinion as to Plaintiff’s

17 visual impairments by reference to Dr. Pratt’s finding of malingering. AR 448. Tommasetti, 533
18 F.3d at 1041 (ALJ may properly discount a physician’s opinion where it is based on discounted
19 subjective reports). The ALJ also noted Dr. Pratt’s opinion as to Plaintiff’s visual acuity was
20 rendered without corrective lenses, despite the fact Dr. Pratt had documented 20/40 vision with
21 corrective lenses. AR 31, 420. The ALJ also properly discounted John Rodakowski, M.D.’s
22 opinion by reference to Plaintiff’s failure to comply with treatment recommendations, such as a
23 referral to physical therapy and her prescription for hypothyroid medication. AR 32. See
24

ORDER ON PLAINTIFF’S COMPLAINT - 11

1 Romanelli v. Astrue, 267 Fed.Appx. 722, 724 (9th Cir. 2008). The ALJ offered specific and
2 legitimate reasons, supported by substantial evidence, for discounting these opinions.
3

Second, Plaintiff argues the ALJ gave too much weight to the opinions of consulting

4 physician, Michael D. Plotkin, M.D. However, the ALJ’s evaluation of these opinions was not
5 error. An ALJ may give more weight to a non-examining, consulting medical advisor over an
6 examining physician if the ALJ provides “specific, legitimate reasons that are supported by
7 substantial evidence in the record.” Nguyen, 100 F.3d at 1466. See also Widmark v. Barnhart,
8 454 F.3d 1063, 1066-67 (9th Cir. 2006) (holding the conflicting check-box opinion of a non9 examining physician meant the ALJ was only required to offer specific, legitimate reasons to
10 discount the opinion of an examining physician). Further, while a nonexamining physician’s
11 opinion on its own is not considered substantial evidence, it may constitute substantial evidence
12 if it is consistent with other evidence in the record. Lester, 81 F.3d at 830-31; Tonapetyan v.
13 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Here, Dr. Plotkin explained the basis of his opinion
14 and cited to evidence in the record—such as Dr. Pratt’s finding of malingering on visual field
15 testing—to support his opinion. AR 52-58. Also, contrary to Plaintiff’s argument, Dr. Plotkin did
16 explain how he considered the opinions of examining ophthalmologists in the record. AR 55-58
17 (noting Dr. Seifter documented peripheral vision loss but a normal central visual field, noted this
18 is inconsistent with macular degeneration, and suggested Dr. Seifter’s recommended ERG/EOG
19 diagnostic testing is used to assess whether a claim of peripheral vision loss is “bogus”).
20

Third, Plaintiff argues the ALJ purported to give great weight to examining physician Dr.

21 Seifter’s opinion, but failed to recognize all of the opined limitations and assessed severe
22 impairments, including more limited vision than that found by the ALJ. AR 34, 471. However,
23 the ALJ acknowledged the only limitation Dr. Seifter opined to—an inability to perform fine
24

ORDER ON PLAINTIFF’S COMPLAINT - 12

1 binocular tasks—and concluded it caused no more than a minimal limitation in Plaintiff’s ability
2 to work. AR 22. Further, the ALJ posed hypotheticals to the vocational expert concerning a
3 limitation preventing Plaintiff from engaging in “fine binocular tasks”, and the vocational expert
4 opined to three jobs which did not require fine binocular tasks. AR 37, 93-94. Thus, Plaintiff has
5 failed to demonstrate how the ALJ’s evaluation of Dr. Seifter’s opinion contained harmful error.
6

However, because the ALJ erred in evaluating the opinions of Dr. Heilbrunn and Dr.

7 Grant, the ALJ should reevaluate the medical opinion evidence on remand.
8

III.

Whether the ALJ Provided Specific, Clear, and Convincing Reasons, Supported by
Substantial Evidence, for Discounting Plaintiff’s Subjective Symptom Testimony.

9
The ALJ has sole responsibility for resolving conflicting testimony and questions of
10
credibility. Sample, 694 F.2d at 642 (citing Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir.
11
1971); Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). Where more than one rational
12
interpretation concerning a plaintiff’s testimony can be drawn from substantial evidence in the
13
record, a district court may not second-guess the ALJ’s credibility determinations. Fair v.
14
Bowen, 885 F.2d 597, 604 (9th Cir. 1989).
15
An ALJ must offer “specific, cogent reasons” for discounting a claimant’s testimony.
16
Reddick, 157 F.3d at 722. Further, if an ALJ finds a claimant has a medically determinable
17
impairment which reasonably could be expected to cause the claimant's symptoms, and there is
18
no evidence of malingering, the ALJ may reject the claimant’s testimony only “by offering
19
specific, clear and convincing reasons.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)
20
(citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993)). See also Reddick, 157 F.3d at 722.
21
But, the clear and convincing reasons standard does not apply where there is affirmative
22
evidence of malingering. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir.
23
2008).
24

ORDER ON PLAINTIFF’S COMPLAINT - 13

1

Here, the ALJ discounted Plaintiff’s testimony due to affirmative evidence of

2 malingering in the record, as opined to and documented by Dr. Pratt and Dr. Plotkin. AR 25.
3 This was proper. “[A]ffirmative evidence of malingering supports an adverse credibility
4 finding.” Merillat v. Comm’r, Soc. Sec. Admin., 350 Fed.Appx. 163, 166 (9th Cir. 2009) (citing
5 Robbins v. Comm’r, Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). See Hamilton v.
6 Comm’r, Soc. Sec. Admin., 368 Fed.Appx. 724, 726 (9th Cir. 2010) (citing Tonapetyan, 242 F.3d
7 at 1148) Further, the ALJ also properly cited to a lack of objective medical evidence to support
8 the degree of Plaintiff’s alleged limitations, as well as inconsistencies between Plaintiff’s
9 testimony at the hearing and her reports made to physicians throughout the medical record. AR
10 29, 459. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. §
11 404.1529(c)(2)); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). These are specific,
12 cogent reasons for discounting Plaintiff’s subjective symptom testimony.
13

However, an evaluation of a claimant’s testimony also relies, in part, on an accurate

14 assessment of the medical evidence. See 20 C.F.R. §§ 404.1529(c), 416.929(c). As discussed in
15 Section II, above, the ALJ erred in evaluating the opinion evidence from Plaintiff’s treating and
16 examining physicians. Further, the Court notes at least one of the ALJ’s proffered reasons for
17 discounting Plaintiff’s testimony is simply inaccurate. Specifically, the ALJ notes Plaintiff has
18 inconsistently reported her alcohol use to treating providers. AR 35. But, the ALJ misrepresents
19 the findings on Plaintiff’s alcohol use made by Dr. Rodakowski. AR 35. Plaintiff did not report
20 she consumed alcohol on a daily basis, nor did she admit to being annoyed at questions
21 concerning her alcohol use. AR 364. 3 Finally, the Court notes the Social Security Administration
22
23

3

The Court is mindful this error may have arisen from the somewhat inartful phrasing
24 contained in Dr. Rodakowski’s treatment notes. Dr. Rodakowski noted Plaintiff’s response to the

ORDER ON PLAINTIFF’S COMPLAINT - 14

1 recently adopted SSR 16-3p, which requires an ALJ to refrain from “assess[ing] an individual’s
2 overall character or truthfulness in the manner typically used during an adversarial court
3 litigation.” SSR 16-3p, available at 2011 WL 1119029, *10. 4 As this case must be remanded for
4 further proceedings in any event, the ALJ should also reevaluate Plaintiff’s subjective testimony
5 anew on remand, especially in light of the changes articulated in SSR 16-3p.
6

IV.

Whether the Case Should be Remanded for an Award of Benefits or Further
Proceedings.

7
Plaintiff argues the case should be reversed and remanded for the award of benefits,
8
rather than for further proceedings.
9
Generally, when the Social Security Administration does not determine a claimant’s
10
application properly, “the proper course, except in rare circumstances, is to remand to the agency
11
for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.
12
2004) (citations omitted). However, the Ninth Circuit has established a “test for determining
13
when [improperly rejected] evidence should be credited and an immediate award of benefits
14
directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (quoting Smolen, 80 F.3d at
15
16
17 CAGE questionnaire was as follows: “DENIES having tried to cut down on alcohol
consumption, being annoyed when questioned about alcohol use, feeling guilty about drinking
18 and consuming an ‘eye opener’ drink in the morning.” The CAGE questionnaire is a four-part
questionnaire where positive responses indicate clinically significant alcohol abuse behaviors.
19 See CAGE Questionnaire, National Institute on Alcohol Abuse and Alcoholism,
https://pubs.niaaa.nih.gov/publications/inscage.htm (last visited December 14, 2016).
4
The changes to Social Security Administration practice articulated in SSR 16-3p could
20
not apply to the ALJ decision at issue before this court. 42 U.S.C. § 405 does not contain any
21 express authorization from Congress allowing the Commissioner to engage in retroactive
rulemaking. See Bowen v. Georgetown Univ. Hosp, 488 U.S. 204, 214-215 & n.3 (1988). See
22 also Portlock v. Barnhart, 208 F.Supp.2d 451, 456 (D. Del. June 24, 2002) (holding the
application of a recently-revised SSR to an applicant’s pending claim on appeal would constitute
23 an impermissible retroactive application of an agency rule) (citing Bowen, 488 U.S. at 224).
Thus, despite Plaintiff’s argument to the contrary, the Commissioner’s adoption of SSR 16-3p is
24 not a separate and independent basis to find the ALJ erred by discounting Plaintiff’s testimony.

ORDER ON PLAINTIFF’S COMPLAINT - 15

1 1292. This test, often referred to as the “credit-as-true” rule, allows a court to direct an
2 immediate award of benefits when:
3
4

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

5
Harman, 211 F.3d at 1178 (quoting Smolen, 80 F.3d at 1292). See also Treichler v.
6
Commissioner of Social Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014), Varney v. Sec’y of
7
Health & Human Servs., 859 F.2d 1396 (9th Cir. 1988). Further, even if the ALJ has made the
8
three errors under Harman and Smolen, such errors are relevant only to the extent they impact
9
the underlying question of Plaintiff’s disability. Strauss v. Commissioner of the Social Sec.
10
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). “A claimant is not entitled to benefits under the
11
statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may
12
be.” Id. (citing Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 357 (7th Cir. 2005)). Therefore,
13
even if the credit-as-true conditions are satisfied, a court should nonetheless remand the case if
14
“an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.”
15
Garrison, 759 F.3d at 1021 (citing Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2004)).
16
Here, outstanding issues must be resolved. Dr. Heilbrunn and Dr. Grant’s opinions are
17
contradicted by less restrictive opinions in the record. Further, the record contains evidence of
18
malingering by Plaintiff. Thus, there is insufficient evidence in the record to establish Plaintiff
19
should be found disabled as a matter of law, and the case should be remanded for additional
20
proceedings. See Harman, 211 F.3d at 1180. See also Treichler, 775 F.3d at 1104-06.
21
CONCLUSION
22
Based on the foregoing reasons, the Court finds the ALJ committed harmful error by
23
failing to properly evaluate Dr. Heilbrunn and Dr. Grant’s opinions. Therefore, the Court orders
24

ORDER ON PLAINTIFF’S COMPLAINT - 16

1 this matter be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). On
2 remand, the ALJ should reevaluate the medical opinion evidence, re-evaluate Plaintiff’s
3 subjective symptom testimony, reevaluate Plaintiff’s residual functional capacity, and proceed on
4 to Step Four and/or Step Five of the sequential evaluation as appropriate. The ALJ should also
5 develop the record as needed. Judgment should be for Plaintiff and the case should be closed.
6

Dated this 16th day of December, 2016.

A

7
8

David W. Christel
United States Magistrate Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 17