Rush v. Colvin

Filing 15

ORDER re 3 Complaint filed by John L Rush by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner and awarded benefits as he has demonstrated that he has been disabled since June 10, 2010.(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOHN L. RUSH,
Plaintiff,

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CASE NO. 3:16-cv-05247 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States

21 Magistrate Judge, Dkt. 6). This matter has been fully briefed (see Dkt. 12, 13, 14).
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After considering and reviewing the record, the Court concludes that the ALJ

23 erred when failing to credit fully the medical opinions of examining doctor, Dr.
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 Heilbrunn. Dr. Heilbrunn’s opinions are supported by his examination of plaintiff and the
2 ALJ has not explained why his opinions should be rejected in favor of non-examining
3 doctors’ opinions. Even if the ALJ’s failure to credit fully plaintiff’s allegations and
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testimony was to be upheld by this Court, Dr. Heilbrunn explicitly relied on his
examination findings, and there is no evidence that he more heavily relied on plaintiff’s

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subjective complaints.
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In addition, the Court concludes that no useful purpose would be served by
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remanding this matter to the Administration for further administrative proceedings.
Plaintiff’s applications discussed herein have been pending for over six years; two

11 different ALJs have had the opportunity to provide a valid reason to reject the medical
12 opinions of Dr. Heilbrunn and have failed to do so; Dr. Heilbrunn’s examination results
13 fully support Dr. Heilbrunn’s opinions regarding plaintiff’s limitations; and, vocational
14 expert testimony demonstrates that adoption of Dr. Heilbrunn’s opinions would result in
15 a determination that plaintiff is not capable of productive work.
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Therefore, this matter is reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g) to the Acting Commissioner, and plaintiff should be found disabled and
awarded benefits as of June 10, 2010, the date of Dr. Heilbrunn’s examination and

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opinion.
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ORDER ON PLAINTIFF’S COMPLAINT - 2

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BACKGROUND

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Plaintiff, JOHN L. RUSH, was born in 1965 and was 44 years old on the alleged

3 date of disability onset of March 19, 2010 (see AR. 134-37, 138-41). Plaintiff graduated
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from high school and obtained a 2-year associate’s degree (AR. 598).

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Plaintiff has work history as a log truck driver and school bus mechanic (AR. 172-

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83). As summarized by one doctor, plaintiff worked “his whole life until he became
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functionally limited because of his back injury” (AR. 395). This report is demonstrated to
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be accurate by his certified earnings records, beginning when he was sixteen and
continuing uninterrupted through two back surgeries (2001 and 2005) until 2010 (see AR.

11 142-43; see also AR. 144-151). He was unable to continue driving the logging truck in
12 March, 2010 because of worsening pain (AR. 392). Plaintiff tried to go back to work for
13 approximately two months in August and September of 2010, but was unsuccessful (AR.
14 598). Plaintiff again attempted work, reporting on November 22, 2010 that he was
15 starting an apprentice position the next day, however, a week later, he reported being in a
16 lot of pain (10/10), which ended this second work attempt (AR. 379, 381). He testified
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that he “did not want to quit work” (AR. 597).

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According to the ALJ, plaintiff has at least the severe impairments of

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“degenerative disc disease of the lumbar spine, obesity, bilateral knee osteoarthritis, and
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opiate dependence (20 CFR 404.1520(c) and 416.920(c))” (AR. 559).
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At the time of the last hearing, plaintiff was living with his wife in a fifth wheel

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trailer on his grandmother’s property (AR. 583-85).

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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PROCEDURAL HISTORY
Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42

3 U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
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U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
following reconsideration (see AR. 78-81, 92-96). Following a hearing, an unfavorable

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decision and a stipulated remand from this Court (see AR. 8-29, 46-77, 673), plaintiff’s
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second hearing was held before Administrative Law Judge Michael Gilbert (“the ALJ”)
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on September 18, 2014 (see AR. 578-629). On June 26, 2015, the ALJ issued a written
decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social

11 Security Act (see AR. 553-77).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

13 not the ALJ provided legitimate reasons for rejecting the key limitation identified by
14 examining physician, Dr. Heilbrunn; (2) Whether or not the ALJ’s Step 3 denial was
15 correct; (3) Whether or not the ALJ provided clear and convincing reasons for finding
16 that plaintiff’s testimony was not credible; and (4) Whether or not this case should be
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remanded for payment of benefits, rather than further administrative proceedings (see
Dkt. 12, p. 1).

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STANDARD OF REVIEW
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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's
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denial of social security benefits if the ALJ's findings are based on legal error or not
supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d

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ORDER ON PLAINTIFF’S COMPLAINT - 4

1 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
2 1999)).
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DISCUSSION
(1)

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Whether or not the ALJ provided legitimate reasons for rejecting the
key limitation identified by examining physician, Dr. Heilbrunn 1.

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Plaintiff contends that the ALJ erred by failing to provide specific and legitimate

7 reasons for failing to credit the opinions by Dr. Heilbrunn, which, when credited,
8 according to vocational testimony, render plaintiff unable to engage in competitive
9 employment (see Dkt. 12, p. 4; see also AR. 75,623). Plaintiff also points out that this
10 matter previously was before this Court and was reversed and remanded to the
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Administration for further consideration (id.). Regarding Dr. Heilbrunn’s opinion,
plaintiff points out that the ALJ assigned to this matter following remand “was reminded
of [] vocational evidence and Dr. Heilbrunn’s specific limitations by the Appeals Council

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when it implemented the March 5, 2014 Court Order” (id.). As quoted by plaintiff, from
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the Appeals Council:
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The Administrative Law Judge considered the medical opinion of Mark
Heilbrunn, M.D., who performed a consultative examination of the
claimant in June 2010 (internal citation to AR. 310-315). Dr. Heilbrunn
indicated that the claimant could sit for at least 10 minutes for a total of
four hours per day and stand/walk in 15-20 minute increments for total
of 3-4 hours per day (internal citation to AR. 314-315). The
Administrative Law Judge did not reject the sitting limitation or
adequately address the sit/stand option. While the decision noted that the

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The Court first notes that plaintiff is correct that defendant “failed to follow the Scheduling Order, which
required ‘beginning on page 1, defendant shall indicate whether each error raised in the opening brief is disputed or
undisputed’” (Dkt. 14, p. 1 (quoting Dkt. 11, p. 2). As noted by plaintiff, instead, defendant “re-stated and re-ordered
the issues [plaintiff] raised” (id. (citing Dkt. 13, p. 2)). This makes the Court’s job more difficult.

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ORDER ON PLAINTIFF’S COMPLAINT - 5

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vocational expert addressed a sit/stand option every 30 minutes (internal
citation to AR. 25, 72), vocational expert later stated that an individual
who could sit for four hours a day, changing positions every 20 minutes,
and stand for 10 to 15 minutes at a time for total of 3 to 4 hours would be
significantly impaired in the ability to work productively (internal
citation to AR. 75-76).

5 (id. (quoting AR. 684)). Despite the fact that this specific medical opinion and limitations
6 were brought to the attention of the ALJ assigned to this matter following remand, as
7 noted by plaintiff, “[r]ather than adopting the sit/stand limitations identified by Dr.
8 Heilbrunn, or providing a valid reason to reject them, the ALJ sidestepped them” (id.
9 (quoting AR. 567-68)).
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When an opinion from an examining doctor is contradicted by other medical
opinions, the examining doctor’s opinion can be rejected only “for specific and legitimate
reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81

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F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.
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1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
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Plaintiff argues that, again, Dr.Heilbrunn’s opinions were not rejected properly.
Plaintiff’s argument is persuasive.
Dr. Heilbrunn noted that plaintiff had a history of L4-5 discectomy in July, 2001

19 and after developing increasing post-op lumbar pain, underwent a second surgery, a L4-5
20 and S1 fusion, in February 2005 (AR. 310). Dr. Heilbrunn examined plaintiff, and based
21 on his examination, provided a number of opinions regarding specific limitations
22 experienced by plaintiff (see AR. 310-15). For example, as noted, Dr. Heilbrunn opined
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that plaintiff could “sit for at least 20 minutes interrupted, as in the examination, and has

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ORDER ON PLAINTIFF’S COMPLAINT - 6

1 a maximum sitting capacity of four out of eight hours” (AR. 314). Dr. Heilbrunn also
2 opined that plaintiff “could be expected to stand or walk for 10 to 15 minutes
3 uninterrupted, as in the examination room/clinic and has a maximum standing/walking
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capacity of 3-4 out of 8 hours, with a limitation justified by lumbar right radiculopathy
and bilateral knee osteoarthritis” (AR. 315).

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The ALJ did not credit fully the opinion of Dr. Heilbrunn, although he gave it
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“some weight because the doctor examined the claimant and it is somewhat consistent
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with the doctor’s clinical findings” (AR. 567). However, the ALJ did not indicate how
any aspect of Dr. Heilbrunn’s opinion is not consistent with his clinical findings. Instead,

11 in part, the ALJ found that “the balance of the medical evidence supports the limitations
12 set forth in the above residual functional capacity [”RFC”], [noting] specifically,
13 treatment providers generally found he had tenderness and decreased range of motion of
14 the back and decreased sensation in the right lower extremity but otherwise had an
15 unremarkable physical examinations” (id. (citations omitted)). First, the Court notes that
16 the ALJ’s indication that “the balance of the medical evidence” supports his RFC
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determination is not a specific and legitimate rationale for failing to credit fully any
particular opinion. See, e.g., Embrey v. Bowen, 849 F.2d 418, 421 (9th 1988) (“To say

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that medical opinions are not supported by sufficient objective findings or are contrary to
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the preponderant conclusions mandated by the objective findings does not achieve the
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level of specificity our prior cases have required, even when the objective factors are
listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his

24 own interpretations and explain why they, rather than the doctors’, are correct”).

ORDER ON PLAINTIFF’S COMPLAINT - 7

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Furthermore, more importantly, the specific findings noted by the ALJ from

2 treatment providers actually support Dr. Heilbrunn’s medical opinion. As noted by the
3 ALJ, “treatment providers generally found [that plaintiff] had tenderness and decreased
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range of motion of the back and decreased sensation in the right lower extremity but
otherwise had unremarkable physical examinations” (AR. 567 (citations omitted)). The

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Court concludes that the ALJ’s recitation of objective findings from treatment providers
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that support the opinion of Dr. Heilbrunn does not support the ALJ’s determination not to
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credit fully his opinions.
The ALJ also indicated that he was not crediting fully the opinion of examining

11 doctor, Dr. Heilbrunn, because of his finding that the “State agency analysis of this
12 consultative exam is supported, specifically the finding that there were no manipulative
13 limits required based on exam” (AR. 567-68 (citation and footnote omitted)). First, the
14 indication that one aspect of Dr. Heilbrunn’s opinion may have been contradicted by the
15 opinion of non-examining State agency consultants is not a legitimate reason to reject
16 opinions from Dr. Heilbrunn, and simply sets the standard which must be met by the ALJ
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in order to reject the opinions from Dr. Heilbrunn, that is, specific and legitimate reasons
based on substantial evidence in the record as a whole. See Lester, 81 F.3d at 830-31

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(citing Andrews, 53 F.3d at 1043; Murray, 722 F.2d at 502) (When an opinion from an
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examining doctor is contradicted by other medical opinions, the examining doctor’s
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opinion can be rejected only “for specific and legitimate reasons that are supported by
substantial evidence in the record”). In addition, an examining physician’s opinion

24 generally is “entitled to greater weight than the opinion of a nonexamining physician.”

ORDER ON PLAINTIFF’S COMPLAINT - 8

1 Lester, supra, 81 F.3d at 830 (citations omitted); see also 20 C.F.R. §
2 404.1527(c)(1)(“Generally, we give more weight to the opinion of a source who has
3 examined you than to the opinion of a source who has not examined you”). Therefore, the
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ALJ’s finding that the State agency medical consultants’ opinions regarding manipulative
limitations is supported is not a specific and legitimate reason supported by substantial

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evidence in the record to reject Dr. Heilbrunn’s opinions regarding sitting and standing
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limitations.
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The ALJ also failed to credit fully the opinions from Dr. Heilbrunn in part by
indicating that some of the findings in the treatment record “undermine the claimant’s

11 credibility with his reports of pain and limits” (AR. 568). However, the ALJ does not
12 explain why even if this were true that it would entail a legitimate reason for failing to
13 credit fully Dr. Heilbrunn’s opinions based on examination.
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Finally, the ALJ indicated that even “assuming some of those limits found by this

15 doctor were credible, the vocational expert noted that there were still jobs that the
16 claimant can perform in the national economy” (id. (citation omitted)). However, as the
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vocational expert indicated that the limitations that were not adopted by the ALJ would
preclude work, such as the sit/stand limitations, the fact that accommodating other of the

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limitations would allow plaintiff to work is not a legitimate reason for failing to credit the
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limitations regarding sitting and standing.
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Therefore, for the reasons stated and based on the record as a whole, the Court
concludes that the ALJ’s reasons for failing to credit fully the medical opinions of

24 examining doctor, Dr. Heilbrunn, do not constitute specific and legitimate rationale

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 supported by substantial evidence in the record. The Court also concludes that this error
2 is not harmless.
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The Ninth Circuit has “recognized that harmless error principles apply in the
Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th

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Cir. 2006) (collecting cases)). Recently the Ninth Circuit reaffirmed the explanation in
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Stout that “ALJ errors in social security are harmless if they are ‘inconsequential to the
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ultimate nondisability determination’ and that ‘a reviewing court cannot consider [an]
error harmless unless it can confidently conclude that no reasonable ALJ, when fully

11 crediting the testimony, could have reached a different disability determination.’” Marsh
12 v. Colvin, 792 F.3d 1170, 1173 (9th Cir. July 10, 2015) (citing Stout, 454 F.3d at 105513 56). The court further indicated that “the more serious the ALJ’s error, the more difficult
14 it should be to show the error was harmless.” Id. at 792 F.3d 1170 (citing Stout, 454 F.3d
15 at 1056; Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 750 (6th Cir. 2007)).
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Here, the ALJ failed to credit fully the opinion that plaintiff could sit for at least
20 minutes uninterrupted and for a maximum of four out of eight hours and stand or walk
for 10 to 15 minutes uninterrupted and for maximum of 3 to 4 out of eight hours (AR.

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314-15). The vocational expert (“VE”) testified that in his opinion, “the person needs to
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be able to remain in one position either sitting or standing for a half an hour at a time in
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order to be productive” (AR. 623). The VE further testified that workers “just simply,
they can’t be getting up and down with the amount of frequency that was described” (id.).

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ORDER ON PLAINTIFF’S COMPLAINT - 10

1 minutes [un]interrupted, [] a maximum sitting capacity of four out of eight hours [and]
2 could stand/walk for 10 to, make it 15 minutes at a time uninterrupted and has a
3 maximum stand/walking capacity of four out of eight hours” (AR. 622).
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Because the Court cannot conclude with confidence that no reasonable ALJ when
crediting fully the opinion of Dr. Heilbrunn could have reached a different disability

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determination, the ALJ’s error in evaluating this opinion is not harmless error. See
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Marsh, 792 F.3d at 1173 (citing Stout, 454 F.3d at 1055-56). In fact, it is clear that if his
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opinions are credited fully, plaintiff could not be adequately “productive” in order to
sustain gainful employment and would be found disabled (see AR. 623).
(2)

Whether or not this case should be remanded for payment of benefits,
rather than for further administrative proceedings.

Plaintiff contends that the Administration twice has considered this matter and
twice has failed to provide adequate rationale for failing to credit fully Dr. Heilbrunn’s

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opinions and that this matter should be remanded with a direction to award benefits. The
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applications being considered herein were filed in March, 2010 (see AR. 556).
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Defendant’s only argument in response, other than that she disagrees with the Ninth
Circuit’s decisions regarding the “credit-as-true” doctrine, appears to be that serious

19 doubts remain as to if plaintiff is disabled because the ALJ offered valid reasons to
20 discredit plaintiff’s subjective allegations and that this provides an additional reason for
21 discrediting the medical opinion of Dr. Heilbrunn (see Dkt. 13, pp. 14-15). However, the
22 ALJ did not indicate that he was failing to credit fully the opinion from Dr. Heilbrunn on
23 the basis that it was heavily based on plaintiff’s subjective complaints and according to
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ORDER ON PLAINTIFF’S COMPLAINT - 11

1 the Ninth Circuit, “[l]ong-standing principles of administrative law require us to review
2 the ALJ’s decision based on the reasoning and actual findings offered by the ALJ - - not
3 post hoc rationalizations that attempt to intuit what the adjudicator may have been
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thinking.” Bray v. Comm’r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citing SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v.

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Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“we may not uphold an agency’s decision
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on a ground not actually relied on by the agency”) (citing Chenery Corp, supra, 332 U.S.
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at 196).
In addition, even if the ALJ had offered this reason of not crediting fully plaintiff’s

11 subjective statements and for failing to credit fully the medical opinions of Dr. Heilbrunn,
12 any such finding would not be supported by substantial evidence in the record as a whole,
13 as there is no evidence that Dr. Heilbrunn relied heavily on plaintiff’s subjective
14 statements. In fact, to the contrary, Dr. Heilbrunn repeatedly indicated that his opinions
15 were based on “the examination” (see AR. 314-15). For example, Dr. Heilbrunn indicated
16 his opinion that plaintiff “was able to lift/carry, as measured in the examination, a
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maximum of 10 pounds on the right and 20 pounds on the left” (AR. 315). He also
indicated his opinion regarding plaintiff’s ability “to stand or walk for 10-15 minutes

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uninterrupted, as in the examination room/clinic . . . .” (id.). Therefore, the Court is not
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persuaded by defendant’s argument that any alleged support for the ALJ’s failure to
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credit fully plaintiff’s statements and testimony is a valid reason not to credit fully Dr.
Heilbrunn’s opinion or presents an outstanding issue that must be resolved before a

24 determination of disability can be made. Even if there were support for the ALJ’s

ORDER ON PLAINTIFF’S COMPLAINT - 12

1 findings regarding plaintiff’s statements, a determination of disability can be made
2 without any crediting of plaintiff’s statements, based solely on the objective medical
3 evidence. Therefore, for these reasons and based on the record as a whole, the Court
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concludes that defendant’s argument does not provide a basis for remand of this matter
for further administrative proceedings as opposed to a remand with a direction to award

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benefits. In addition, as discussed further below, this case is one of the rare circumstances
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in which a remand with a direction to award benefits is appropriate.
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Generally, when the Social Security Administration does not determine a
claimant’s application properly, “‘the proper course, except in rare circumstances, is to

11 remand to the agency for additional investigation or explanation.’” Benecke v. Barnhart,
12 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit has put
13 forth a “test for determining when [improperly rejected] evidence should be credited and
14 an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th
15 Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)).
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It is appropriate when:
(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.

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Harman, supra, 211 F.3d at 1178 (quoting Smolen, supra, 80 F.3d at 1292).
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At the first step, the Court already has concluded that the ALJ failed to provide
legally sufficient reasons for rejecting the opinions of Dr. Heilbrunn, see supra, section 1.

24 As will be discussed further below, regarding the second step, the Court concludes that

ORDER ON PLAINTIFF’S COMPLAINT - 13

1 no outstanding issues need to be resolved before a determination regarding disability can
2 be made.
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The final step is to determine whether or not “if the improperly discredited
evidence [was] credited as true, the ALJ would be required to find the claimant
disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (citing

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Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008); Lingenfelter v.
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Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 640 (9th
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Cir. 2007); Benecke, supra, 379 F.3d at 595; Smolen, supra, 80 F.3d at 1292)). The
court noted that at this final “stage of the credit-as-true analysis, we do not consider

11 arguments against crediting evidence that the ALJ did not make.” Id. at 1022 n.29.
12 The Court already has noted during the harmless error analysis that the VE’s
13 testimony establishes that if the opinions regarding sitting and standing/walking
14 limitations from Dr. Heilbrunn are adopted, plaintiff would be precluded from
15 productive work and would be found disabled, see supra, section 1 (see also AR.
16 623). Therefore, all that remains is the second step as to whether there are
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outstanding issues that must be resolved before a determination of disability can be
made.

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When confronted with a similar issue, the Garrison Court found that “the district
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court abused its discretion by remanding for further proceedings where the credit-as-true
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rule is satisfied and the record afforded no reason to believe that [the claimant] is not, in
fact, disabled.” Garrison, 759 F.3d at 1021 (footnote omitted). The court noted that

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ORDER ON PLAINTIFF’S COMPLAINT - 14

1 simply providing an ALJ with another opportunity to reject evidence is not proper, and
2 concluded as follows:
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Although the Commissioner argues that further proceedings would serve
the “useful purpose” of allowing the ALJ to revisit the medical opinions
and testimony that she rejected for legally insufficient reasons, our
precedent and the objectives of the credit-as-true rule foreclose the
argument that a remand for the purpose of allowing the ALJ to have a
mulligan qualifies as a remand for a “useful purpose” under the [second]
part of the credit-as-true analysis. (Citations to Benecke, 379 F.3d at 595
(“Allowing the Commissioner to decide the issue again would create an
unfair ‘heads we win; tails, let’s play again’ system of disability benefits
adjudication.”); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004)
(“The Commissioner, having lost this appeal, should not have another
opportunity to show that Moisa is not credible any more than Moisa, had he
lost, should have an opportunity for remand and further proceedings to
establish his credibility.” (citation omitted))).
Id. at 1021-22.
Here, regarding step two, the Court concludes that there are no outstanding issues

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that must be resolved before a determination of disability can be made and that no useful
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purpose would be served by providing a third opportunity for an ALJ to come up with a
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reason to fail to credit fully the medical opinions of examining doctor, Dr. Heilbrunn. See
id. As noted by plaintiff, this matter has been pending for over six years and the

18 Administration has had two opportunities already to provide a specific and legitimate
19 reason for any failure to credit fully this opinion and has not done so. In addition, also as
20 noted by plaintiff, the Appeals Council specifically pointed out the discussed limitations
21 and opinion from Dr. Heilbrunn when sending this matter to a new ALJ following
22 stipulated remand from this Court in March, 2014 (see Dkt. 12, p. 4 (quoting AR. 684)).
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ORDER ON PLAINTIFF’S COMPLAINT - 15

1

In addition, Dr. Heilbrunn’s opinions regarding sitting and standing limitations are

2 supported by his examination. For example, Dr. Heilbrunn noted that plaintiff had a
3 lumbar midline vertical surgical scar, and had “tenderness in the lower part of the scar
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area with pain radiating to the posterior right buttock and right hip . . . .” (AR. 313).
Dr. Heilbrunn noted that straight “leg raising from a sedentary position is 45 degrees on

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the right and 80 degrees on the left; from a supine position is 20 degrees on the right and
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25 degrees on the left” (id.). Dr. Heilbrunn observed that plaintiff’s lower extremity
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strength was four out of five on the right and that plaintiff suffered from decreased
“sensation in the lateral aspect of the right thigh, corresponding to the L2 dermatome”

11 (id.). Dr. Heilbrunn observed multiple range of motion findings supporting his opinion,
12 including plaintiff’s “markedly decreased lumbar range of motion, which limits
13 [plaintiff’s] sitting, standing, and walking abilities” (AR. 314). Dr. Heilbrunn also
14 indicated that his standing/walking limitation also was justified by plaintiff’s bilateral
15 knee osteoarthritis, which the ALJ found to be a severe impairment (see AR. 559).
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For the reasons stated and based on the record as a whole, the Court concludes that
Dr. Heilbrunn’s opinion should be “credited-as-true.” See Garrison, 759 F.3d at 1021-22.
As noted already, the VE testimony demonstrates that the limitations in Dr. Heilbrunn’s

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opinions alone require that plaintiff be found disabled. Therefore, the Court need not
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evaluate further the ALJ’s failure to credit fully plaintiff’s allegations and testimony.
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Therefore, based on the record as a whole, the Court concludes that the “credit-astrue” doctrine should be applied and benefits should be awarded following remand of this

24 matter. The Court notes that plaintiff’s alleged date of disability onset for the relevant

ORDER ON PLAINTIFF’S COMPLAINT - 16

1 applications is March 19, 2010 (see AR. 310, 556). However, it appears that Dr.
2 Heilbrunn’s opinions, from June 10, 2010, approximately three months later, provide the
3 earliest objective and opinion evidence demonstrating disability. The Court also notes
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plaintiff’s indication that based on a subsequent application, plaintiff has been determined
by the Social Security Administration to be disabled as of November 26, 2015, due to

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degenerative disc disease in his lumbar spine (see Dkt. 14, p. 7(citing exhibit A to reply
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brief)). Therefore, following remand of this matter, plaintiff should be found disabled
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from June 10, 2010, through November 26, 2015.
(3)

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Whether or not the ALJ’s Step 3 denial was correct and whether or not
the ALJ erred by failing to credit fully plaintiff’s allegations and
testimony.

As the Court already has determined that the ALJ erred by failing to credit fully
Dr. Heilbrunn’s opinions, and that this failure, along with the record as a whole, requires
that this matter be reversed and remanded with a direction to award benefits, this step

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three issue and the crediting of plaintiff’s allegations and testimony need not be
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discussed.
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CONCLUSION

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Based on these reasons and the relevant record, the Court ORDERS that this

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matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §

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405(g) to the Acting Commissioner. Following remand of this matter, plaintiff should be
awarded benefits as he has demonstrated that he has been disabled since June 10, 2010.

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ORDER ON PLAINTIFF’S COMPLAINT - 17

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JUDGMENT should be for plaintiff and the case should be closed.

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Dated this 17th day of October, 2016.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 18