Archuleta v. Colvin

Filing 14

ORDER REVERSING AND REMANDING CASE FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Judge Richard A Jones. (RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RICHARD R. ARCHULETA,
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Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting Commissioner
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11 of Social Security,

Case No. C16-5275-RAJ
ORDER REVERSING AND
REMANDING CASE FOR
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Defendant.

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Richard Archuleta seeks review of the denial of his applications for Supplemental

14 Security Income and Disability Insurance Benefits. Mr. Archuleta contends the ALJ erred in (1)
15 concluding his impairments did not equal any of the Medical Listings; (2) evaluating the medical
16 evidence; (3) rejecting his own testimony; (4) finding he could return to his past work or,
17 alternatively, that he could perform other work existing in the national economy. Dkt. 9 at 1-2.
18 Mr. Archulta contends this case should be remanded for a finding of disability and an award of
19 benefits. Dkt. 9 at 2. As discussed below, the Court REVERSES the Commissioner’s final
20 decision and REMANDS the matter for further administrative proceedings under sentence four
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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
23 Commissioner Carolyn W. Colvin as the defendant in this suit. The Clerk is directed to update
the docket, and all future filings by the parties should reflect this change.
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1 of 42 U.S.C. § 405(g).
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BACKGROUND
On January 23, 2012, Mr. Archuleta applied for benefits, alleging disability as of

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5 September 18, 2010. Tr. 188-97. Mr. Archuleta’s applications were denied initially and on
6 reconsideration. Tr. 71-110, 115-32, 410. After conducting a hearing on January 28, 2013, the
7 ALJ issued a decision on February 15, 2013, finding Mr. Archuleta not disabled. Tr. 27-42, 448 70. The Appeals Council denied Mr. Archuleta’s request for review and Mr. Archuleta
9 subsequently sought judicial review. Tr. 1-6. By order dated January 12, 2015, the district court
10 reversed and remanded the case for further administrative proceedings. Tr. 533-541. The ALJ
11 conducted a second hearing on October 19, 2015, and on February 3, 2016, issued a decision
12 again finding Mr. Archuleta not disabled. Tr. 410-23, 432-91.
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THE ALJ’S DECISION

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Utilizing the five-step disability evaluation process,2 the ALJ found:

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Step one: Mr. Archuleta has not engaged in substantial gainful activity since September
18, 2010, the alleged onset date.

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Step two: Mr. Archuleta has the following severe impairments: unilateral
vestibulopathy, acromioclavicular joint arthritis, chronic biceps rupture, and status post
rotator cuff repair.

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Step three: These impairments do not meet or equal the requirements of a listed
impairment.3

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Residual Functional Capacity: Mr. Archuleta can perform a range of light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b) except he can occasionally climb ramps
and scaffolds, and never climb ladders, ropes or scaffolds. He can occasionally balance,

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20 C.F.R. §§ 404.1520, 416.920.
20 C.F.R. Part 404, Subpart P. Appendix 1.

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stoop, kneel, crouch and crawl. He can occasionally reach overhead with the left upper
extremity. He must avoid all exposure to unprotected heights.

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Step four: Mr. Archuleta can perform past relevant work as a cashier II and, as such, is
not disabled.

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Step five: Alternatively, as there are jobs that exist in significant numbers in the national
economy that Mr. Archuleta can perform, he is not disabled.

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Tr. 410-23. Mr. Archuleta now seeks judicial review of the ALJ’s February 3, 2016 decision
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finding him not disabled. Dkt. 3.4
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DISCUSSION
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A. Medical Evidence
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Mr. Archuleta contends the ALJ erred in weighing the medical opinion evidence. Dkt. 9
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at 8-13. Specifically, Mr. Archuleta contends the ALJ erred in rejecting the opinions of treating
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and examining physicians Larry G. Duckert, M.D., Ph.D. and Maciej Mrugala, M.D., and relying
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on the opinion of non-examining medical expert Peter R. DeMarco, M.D. Dkt. 9.
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In general, more weight should be given to the opinion of a treating physician than to a
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non-treating physician, and more weight to the opinion of an examining physician than to a
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nonexamining physician. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where a
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treating or examining doctor’s opinion is not contradicted by another doctor, it may be rejected
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only for clear and convincing reasons. Id. Where contradicted, a treating or examining
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physician’s opinion may not be rejected without “specific and legitimate reasons supported by
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substantial evidence in the record for so doing.” Id. at 830-31. “An ALJ can satisfy the
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‘substantial evidence’ requirement by ‘setting out a detailed and thorough summary of the facts
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and conflicting clinical evidence, stating his interpretation thereof, and making findings.’”
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The rest of the procedural history is not relevant to the outcome of the case and is thus omitted.

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1 Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d
2 715, 725 (9th Cir. 1998)). “The contrary opinion of a non-examining medical expert alone does
3 not constitute a specific, legitimate reason for rejecting a treating or examining physician’s
4 opinion[.]” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Rather, a non5 examining opinion may constitute substantial evidence only “when it is consistent with other
6 independent evidence in the record.” Id.
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1. Dr. Duckert’s 2012 Opinion
Mr. Archuleta contends the ALJ erred in rejecting Dr. Duckert’s 2012 opinion. The

9 Court disagrees.
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In 2012, otolaryngologist Dr. Duckert examined Mr. Archuleta and noted that he

11 “described an event in June 2010, which was characterized by whirling disabling vertigo” and
12 that he has had “a residual disequilibrium since along with a collection of other symptoms which
13 are more difficult to describe.” Tr. 336. Dr. Duckert performed extensive vestibular testing
14 which he found demonstrated “an absent response to caloric stimulus of the left ear” and
15 concluded that Mr. Archuleta had “a significant left peripheral vestibulopathy responsible for his
16 symptoms.” Id. Dr. Duckert opined that Mr. Archuleta was able to sit for prolonged periods
17 with occasional pushing and pulling of arm or leg controls, could sit for most of the day, walk or
18 stand for brief periods, could lift a maximum of 50 pounds and frequently lift or carry 25 pounds
19 and that participation in a rehabilitation program was appropriate at the time. Tr. 400-01. Dr.
20 Duckert further opined that Mr. Archuleta’s work function was impaired by a medically
21 determinable physical impairment and that his condition was expected to impair work function
22 for three months. Id.
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The ALJ reasonably rejected this opinion on the grounds that it was time-limited. Tr.
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1 420. Temporary limitations are insufficient to meet the durational requirement for a finding of
2 disability. See 20 C.F.R. 416.905(a) (claimant must have an impairment expected to last for a
3 continuous period of not less than 12 months); 42 U.S.C. 423(d)(1)(A) (disability means inability
4 to perform work by reason of an impairment that can be expected to last for a continuous period
5 of not less than 12 months); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th
6 Cir. 2008) (affirming ALJ’s finding that treating physicians’ short term excuse from work was
7 not indicative of “claimant’s long term functioning”); Figueroa v. Colvin, 2016 WL 5349453
8 (E.D. Wash. Sept. 23, 2016) (temporary limitations not sufficient to meet durational requirement
9 for finding of disability); O’Brian v. Colvin, 2015 WL 999904 *7 (W.D. Wash., February 13,
10 2015) (ALJ reasonably rejected nurse practitioner opinion on grounds “the impairment was
11 expected to impair work for only six months”). Here, Dr. Duckert’s opinion specifically
12 indicates that Mr. Archuleta’s impairments are only expected to impair work function for three
13 months. Tr. 400-01. Accordingly, this was a specific and legitimate reason to reject Dr.
14 Duckert’s 2012 opinion.
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2. Dr. DeMarco’s Nonexamining Opinion, Dr. Duckert’s 2014 Treatment Note,
and Dr. Duckert’s 2015 Post-Hearing Statement
Mr. Archuleta contends the ALJ erred in discounting Dr. Duckert’s 2015 post-hearing

18 statement and giving great weight to Dr. DeMarco’s nonexamining opinion. Dkt. 9 at 8-9.
19 Specifically, Mr. Archuleta contends that Dr. DeMarco based his opinion, in part, on a 2014
20 treatment note by Dr. Duckert and that Dr. Duckert’s 2015 statement undermines Dr. DeMarco’s
21 interpretation of that treatment note. Id. The Court agrees.
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In May 2014, Dr. Duckert examined Mr. Archuleta again due to continued complaints of

23 balance disturbance as well as other symptoms he felt “could implicate a migraine-type
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1 dizziness.” Tr. 684. Dr. Duckert performed another round of vestibular testing and found that,
2 “once again a unilateral vestibular deficit has been documented which remains uncompensated.”
3 Id. However, Dr. Duckert further opined that,
The other finding that I think is quite compelling and clinically
significant in [sic] his posturography. In this case, the data would
document a complete somatosensory dissociation. These findings would
define level of disability in excess of what one might anticipate given the
objective data documented on the other subtests. In my opinion, this
would implicate a significant nonorganic functional component to his
clinical picture. This would probably account for why he has failed to
respond to the physical therapy program in the past. … in my opinion
this calls into question the patient’s credibility and will explain why our
rehabilitation efforts have been challenged.

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Dr. DeMarco testified at the October 2015 hearing that Mr. Archuleta’s vestibular test

11 results do show an abnormality within the vestibular part of the labyrinth. Tr. 438-39. However,
12 Dr. DeMarco went on to opine that individuals may fail vestibular testing and still have minimal
13 physical findings. Id. Dr. DeMarco indicated that he did not find Mr. Archuleta’s symptoms
14 such as “tipping to the left, listing to the left, falling, feeling he is nauseous and going to throw
15 up” consistent based on the testing results alone. Tr. 449. Dr. DeMarco indicated that the only
16 limitation he could definitively assess was that Mr. Archuleta should not work around heights
17 but also acknowledged that he could not “comment on what [Mr. Archuleta] does in terms of
18 day-to-day activity, not having observed him.” Tr. 438-39, 443. Dr. DeMarco goes on to testify
19 that he does not find Mr. Archuleta’s alleged symptoms consistent with the nature of his
20 impairment for four reasons: (1) Dr. Duckert’s 2014 treatment note indicated a “significant non21 organic functional component to his clinical picture” which Dr. DeMarco interpreted as
22 questioning whether Mr. Archuleta was “faking it”; (2) individuals with this impairment almost
23 always respond to physical therapy which Mr. Archuleta did not; (3) individuals with ongoing
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1 significant symptoms almost always have significant hearing loss which Mr. Archuleta did not;
2 and (4) he would have expected someone with such significant symptoms to have documented
3 specific findings during an acute attack, such as in an emergency room. Tr. 441, 442, 449, 451.
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In November 2015, Dr. Duckert submitted a post-hearing statement in which he

5 responded to questions posed by Mr. Archuleta’s attorney. Tr. 1558-60. Specifically, when
6 asked what he meant by a “nonorganic functional component” in his May 2014 treatment note,
7 Dr. Duckert responded “emotional or psychiatric.” Tr. 1558. When asked whether a non8 organic functional component could refer to psychological factors or psychological overlay and
9 whether it did in this case, Dr. Ducker responded “no.” Id. When asked whether Mr.
10 Archuleta’s vestibular symptoms and findings had a neurological or other cause, Dr. Duckert
11 responded that “Mr. Archuleta’s symptoms are secondary to a combined peripheral /central
12 vestibular abnormality unequivocally.” Tr. 1559. When asked whether Dr. Duckert thought it
13 was possible to intentionally exaggerate or falsify the results of vestibular testing given Mr.
14 Archuleta’s documented vestibular complaints and that he has had “two rounds of vestibular
15 testing over two years” Dr. Duckert responded “no, only one of the tests implicates patient bias.”
16 Id. When asked whether he had any reason to believe Mr. Archuleta was intentionally falsifying
17 his test results or malingering, Dr. Duckert responded that “the platform test on 5/1/14 is
18 suspect.” Id. Finally, Mr. Archuleta’s counsel asked whether, in Dr. Duckert’s opinion, Mr.
19 Archuleta suffered from balance disturbance with disturbed function of the vestibular labyrinth
20 demonstrated by caloric or other vestibular tests, as defined by the Social Security
21 Administration” as:
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How do we evaluate vertigo with disturbances of labyrinthine-vestibular
function, including Menier’s disease? 1. These disturbances of balance
are characterized by an hallucination of motion or loss of position sense
and a sensation of dizziness which may be constant or may occur in
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paroxysmal attacks. Nausea, vomiting, ataxia, and incapacitation are
frequently observed, particularly during the acute attack.

Tr. 1560. Dr. Duckert responded affirmatively. Id.
The ALJ gave “great weight” to Dr. DeMarco’s opinion and “limited weight” to Dr.
Duckert’s 2015 opinion. However, the ALJ does not appear to reject any portion of Dr.
Duckert’s 2015 opinion. Tr. 421. Instead, the ALJ finds that Dr. Duckert’s statement that the
claimant has symptoms secondary to a vestibular abnormality “does not undercut Dr. DeMarco’s
testimony.” Id. The ALJ notes that Dr. DeMarco readily agreed the claimant had an
abnormality of the vestibular system identified on testing but that “[t]he issue is the severity of
the claimant’s symptoms and the degree of functional limitations.” Id. Moreover, the ALJ notes
that Dr. DeMarco “provided a careful analysis in support of his opinion that the symptoms are
not as severe as reported by the claimant.” Id.
Contrary to the ALJ’s finding, Dr. Duckert’s 2015 post-hearing opinion does undermine
Dr. DeMarco’s nonexamining opinion in several ways. First, Dr. DeMarco opined that
symptoms such as “tipping to the left, listing to the left, falling … and feeling that he is nauseous
and going to throw up” were not consistent with Mr. Archuleta’s vestibular test results alone
because “he has not sustained any hearing change.” Tr. 449. However, Dr. Duckert clearly
opined that Mr. Archuleta had symptoms “secondary to a combined peripheral and central
vestibular abnormality unequivocally” and that these symptoms included disturbances of balance
“characterized by hallucination of motion or loss of position sense and a sensation of dizziness
which may be constant or may occur in paroxysmal attacks …[and that] nausea, vomiting, ataxia
and incapacitation are frequently observed, particularly during the acute attack.” Tr. 1558-60.
The ALJ finds Dr. Duckert’s opinion does not undermine Dr. DeMarco’s opinion because the
issue is the severity of symptoms. Tr. 421. However, Dr. DeMarco’s opinion appears to indicate
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1 that these types of symptoms (e.g. nausea, vomiting, hallucination of motion) are not consistent
2 while Dr. Duckert’s opinion appears to indicate that these symptoms are, in fact, consistent and
3 that Mr. Archuleta experiences these symptoms.
Second, although Dr. Duckert states that “the platform test on 5/1/14 is suspect” he also

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5 states that he “does not believe it was possible to intentionally exaggerate or falsify the results of
6 vestibular testing.” Tr. 1559. This statement renders the proper interpretation of Dr. Duckert’s
7 May 2014 treatment note and 5/1/2014 platform test ambiguous and draws into question whether
8 Dr. DeMarco reasonably interpreted this note as indicative of symptom exaggeration or
9 malingering. Moreover, Dr. DeMarco’s own opinion is also equivocal indicating both that the
10 only limitation he could definitively assess is that Mr. Archuleta should not work around heights
11 but also acknowledging that he could not “comment on what [Mr. Archuleta] does in terms of
12 day-to-day activity, not having observed him.” Tr. 438-39, 443. The ALJ has a duty to develop
13 the record where it is ambiguous or inadequate to allow for proper evaluation of the evidence.
14 See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (duty to further develop record
15 triggered when there is ambiguous evidence or record is inadequate to allow for proper
16 evaluation of evidence); 20 C.F.R. § 416.912(e)(1). The issue of symptom exaggeration or
17 malingering is a pivotal issue in this case as it is central to the ALJ’s evaluation of the medical
18 evidence and Mr. Archuleta’s credibility. Accordingly, on remand, the ALJ should develop the
19 record as necessary to clarify and reevalute Dr. Duckert’s 2015 statement as well as Dr.
20 DeMarco’s opinion.5
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The Commissioner argues the ALJ properly rejected Dr. Duckert’s 2015 statement as
22 inconsistent with the record evidence, including the opinion of Dr. DeMarco. Dkt. 11 at 15.
However, the ALJ did not, in fact, discount Dr. Duckert’s statement on this basis. Tr. 421.
23 Moreover, Dr. Duckert’s treating opinion, particularly the interpretation of his own treatment
note, would typically be entitled to greater weight than Dr. DeMarco’s nonexamining opinion.
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3. Dr. Mrugala
In November 2015, Dr. Mrugala completed an assessment of functioning form in which

3 he indicated Mr. Archuleta was diagnosed with chronic dizziness, unsteady gait, chronic
4 headaches, and intermittent left sided paresthesias. Tr. 1561-66. Dr. Mrugala opined that Mr.
5 Archuleta was limited to less than sedentary work due to his mobility issues, use of crutches and
6 chronic dizziness. Tr. 1561. Dr. Mrugala further indicated that “given frequent falls” an
7 assistive device is needed and that he had recently prescribed a walker for Mr. Archuleta. Tr.
8 1562. Dr. Mrugala also indicated that he did not have a basis to suspect Mr. Archuleta was
9 malingering. Tr. 1564. Given Mr. Archuleta’s symptoms Dr. Mrugala indicated he did not think
10 work that required lifting and carrying would be suitable, that Mr. Archuleta should not perform
11 work around hazards, that he would not be able to maintain an average work pace and that is
12 work pace would be expected to be significantly slower. Tr. 1562. Dr. Mrugala estimated that
13 Mr. Archuleta would need to take breaks every two to three hours and indicated that he would
14 expect him to be absent from full-time work twice a month or more due to his impairments. Tr.
15 1562-63. Finally, when asked whether Mr. Archuleta had been unable to ambulate effectively,
16 as defined in listing 1.00(B)(2) for the past 12 months and whether his ability to ambulate was
17 expected to return in the next 12 months Dr. Mrugala responded “yes.” Tr. 1565; 20 C.F.R. Part
18 404, Subpt. P. App. 1, § 1.00(B)(2).
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The ALJ gave little weight to Dr. Mrugala’s opinion on the grounds that (1) Mr.

20 Archuleta’s “use of crutches related to dizziness is not medically established” according to Dr.
21 DeMarco, (2) Dr. Mrugala’s own records do not document inability to ambulate effectively in
22 the prior 12 months, and (3) “to the extent Dr. Mrugala relied on the claimant’s allegation of
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See Lester, 81 F.3d at 830.
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1 symptoms that lack credibility, his opinion is discounted.” Tr. 421. None of these reasons is
2 sufficient.
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First, to the extent the ALJ rejects Dr. Mrugala’s treating opinion as inconsistent with the

4 nonexamining opinion of Dr. DeMarco this reason fails. As discussed above, the record must be
5 developed and Dr. DeMarco’s opinion must be reevaluated on remand along with Dr. Duckert’s
6 2015 statement. Accordingly, this was not a sufficient reason to reject Dr. Mrugala’s opinion.
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Second the ALJ improperly rejected Dr. Mrugala’s opinion on the grounds that his own

8 records did not document the inability to ambulate effectively in the prior12 months. Tr. 421.
9 Inconsistency between a treating physician’s opinion and his own treatment notes may be a
10 specific and legitimate reason to reject that opinion. See Ghanim v. Colvin, 763 F.3d at 1161.
11 Here, the ALJ points to an April 2015 treatment note in which Dr. Mrugala found Mr. Archuleta
12 was able to ambulate without crutches although with a “slightly wide base” and that he was
13 unable to tandem walk. Tr. 421, 1065. The ALJ also points to another provider’s treatment note
14 that same month which described Mr. Archuleta’s gait as non-ataxic and not broad-based, and
15 indicated he was able to heel-and-toe walk normally. Tr. 421, 741. However, these findings do
16 not substantially undermine Dr. Mrugala’s opinion that Mr. Archuleta had been unable to
17 “ambulate effectively” in the prior 12 months. The ability to “ambulate effectively” is described
18 in listing 1.00(B) (and in Dr. Mrugala’s statement) as,
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[I]ndividuals must be capable of sustaining a reasonable walking pace
over a sufficient distance to be able to carry out activities of daily living.
They must have the ability to travel without companion assistance to and
from a place of employment or school. Therefore, examples of
ineffective ambulation include, but are not limited to, the inability to
walk without the use of a walker, two crutches or two canes, the inability
to walk a block at a reasonable pace on rough or uneven surfaces, the
inability to use standard public transportation, the inability to carry out
routine ambulatory activities, such as shopping and banking, and the
inability to climb a few steps at a reasonable pace with the use of a single
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hand rail. The ability to walk independently about one’s home without
the use of assistive devices does not, in and of itself, constitute effective
ambulation.

3 Tr. 1566; 20 C.F.R. Part 404, Subpt. P. App. 1, § 1.00(B). In his testimony Mr. Archuleta
4 himself acknowledged that he was capable of walking without crutches a short distance in his
5 living room but that he always used them when he went outside for balance and to prevent falls.
6 Tr. 462-63. Moreover, as Mr. Archuleta notes, the record as a whole shows that while on some
7 occasions his ability to ambulate was better than others, he was frequently noted to have a wide
8 based gait, was unable to tandem walk and had positive Romberg tests. Tr. 360-62, 1099, 1554.
9 Dr. Mrugala himself noted during the 2015 examination that he observed Mr. Archuleta’s gait to
10 be “definitely ataxic,” that he walked “with crutches with a wide base” and was “unable to
11 tandem walk.” Tr. 1554. Moreover, several of Dr. Mrugala’s other treatment notes indicate that,
12 although on some occasions Mr. Archuleta’s ability to ambulate was less impaired than others,
13 that he still used crutches for safety. Tr. 1069, 1073. Under the circumstances, Mr. Archuleta’s
14 ability to walk without crutches a short distance in a medical office on a few occasions, without
15 more, does not directly undermine Dr. Mrugala’s opinion that he has been unable to ambulate
16 effectively in the prior 12 months. Accordingly, substantial evidence does not support the ALJ’s
17 rejection of Dr. Mrugala’s opinion on this basis.
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Finally, the ALJ states that “to the extent Dr. Mrugala relied on the claimant’s allegation

19 of symptoms that lack credibility, his opinion is discounted.” Tr. 421. “If a treating provider's
20 opinions are based ‘to a large extent’ on an applicant’s self-reports and not on clinical evidence,
21 and the ALJ finds the applicant not credible, the ALJ may discount the treating provider’s
22 opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). However, here the ALJ does
23 not affirmatively find that Dr. Mrugala relied to a large extent on Mr. Archuleta’s self-reported
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1 symptoms and his conclusory rejection of the opinion “to the extent” it relies on Mr. Archuleta’s
2 self-reported symptoms does not meet the level of specificity our case law requires. See Embrey
3 v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (conclusory reasons are insufficient and do “not
4 achieve the level of specificity” required to justify rejecting a treating opinion). Furthermore,
5 “when the opinion is not more heavily based on a patient’s self-reports than on clinical
6 observations, there is no evidentiary basis for rejecting the opinion.” Ghanim, 763 F.3d at 1162.
7 Here Dr. Mrugala examined Mr. Archuleta on multiple occasions and on his most recent physical
8 examination personally observed Mr. Archuleta’s gait to be ataxic, that he walked with crutches
9 with a wide base and was unable to tandem walk. Tr. 1554. Without further explanation the
10 Court cannot conclude that Dr. Mrugala relied more heavily on Mr. Archuleta’s self-reports than
11 on his clinical observations. Additionally, as discussed below, in this case the ALJ failed to give
12 sufficient reasons for discounting Mr. Archuleta’s subjective symptom testimony. Accordingly,
13 the ALJ erred in rejecting Dr. Mrugala’s opinion on this basis.
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On remand the ALJ should reevaluate Dr. Mrugala’s opinion.
B. Mr. Archuleta’s Testimony

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Mr. Archuleta contends the ALJ erred in discounting his testimony. The Court agrees.

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To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent

18 reasons for the disbelief.” Lester, 81 F.3d at 834 (citation omitted). The ALJ “must identify what
19 testimony is not credible and what evidence undermines the claimant’s complaints.” Id.; see
20 also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993). If a claimant presents objective
21 medical evidence of an underlying impairment and there is no evidence of malingering, “‘the
22 ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
23 specific, clear and convincing reasons for doing so.’” Lingenfelter v. Astrue, 504 F.3d 1028,
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1 1036 (9th Cir. 2007) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996)).
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The ALJ discounted Mr. Archuleta’s testimony, in part, based on evidence of symptom

3 exaggeration. Tr. 418-19. Evidence of symptom exaggeration may be a valid basis for
4 discounting a claimant’s subjective symptom testimony. See Tonapetyan v. Halter, 242 F.3d
5 1144, 1148 (9th Cir. 2001) (holding an adverse credibility determination based, in part, evidence
6 of the claimant’s tendency to exaggerate). However, here, substantial evidence does not support
7 this finding. As noted above, although Dr. DeMarco’s opinion and Dr. Duckert’s 2014 treatment
8 note do raise the question of potential symptom exaggeration, Dr. Duckert’s 2015 statement
9 renders that evidence ambiguous to an extent that must be clarified on remand. Accordingly,
10 under the circumstances, substantial evidence does not support rejecting Mr. Archuleta’s
11 testimony on that basis.
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The ALJ also discounted Mr. Archuleta’s testimony based on “inconsistencies” in the

13 treatment record regarding Mr. Archuleta’s ability to ambulate, his use of crutches as well as
14 with respect to his reports of visual disturbances and vertigo. Tr. 418-19. An ALJ may discredit
15 a claimant’s testimony when it is inconsistent with medical evidence. See Johnson v. Shalala, 60
16 F.3d 1428, 1434 (9th Cir. 1995) (ALJ properly discounted claimant’s testimony based on
17 contradictions between that testimony and the relevant medical evidence). Here the ALJ
18 observed that in May 2014, Dr. Ma noted the Mr. Archuleta had a normal gait and was able to
19 toe walk and heel walk. Tr. 419, 1085. He further notes that in April 2015 Dr. Mrugala found
20 that although Mr. Archuleta had a wide-based gait he was able to ambulate without crutches and
21 that treatment notes from other providers in April 2015 indicate that Mr. Archuleta was able to
22 ambulate without crutches and was capable of tandem walking. Tr. 419, 741, 1065. It does
23 appear from the record that Mr. Archuleta reported and exhibited greater difficulty with
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1 ambulation at some times than at others. However, the ALJ fails to identify or explain how the
2 fluctuation in Mr. Archuleta’s ambulatory ability is inconsistent with Mr. Archuleta’s testimony.
3 See Lester, 81 F.3d at 834 (the ALJ “must identify what testimony is not credible and what
4 evidence undermines the claimant’s complaints.”). The Court agrees with Mr. Archuleta that,
5 overall, the record shows he consistently reported symptoms of dizziness, episodes of vertigo,
6 falling, nystagmus, and that, on many occasions, he was observed as unable to tandem walk, and
7 had a positive Romberg tests. See, e.g., Tr. 275, 313, 360-62, 364, 686, 138-89, 1392, 1410,
8 1414, 1418, 1423, 1451-52, 1454, 1461-62, 1484, 1492, 1554. Moreover, Dr. Duckert’s 2015
9 statement appears to confirm that Mr. Archuleta’s vestibular impairment causes disturbances of
10 balance “characterized by an hallucination of motion or loss of position sense and a sensation of
11 dizziness which may be constant or may occur in paroxysmal attacks. Nausea, vomiting, ataxia,
12 and incapacitation are frequently observed, particularly during the acute attack.” Tr. 1560
13 (emphasis added). Thus, it does not appear that a fluctuation of symptoms related to balance
14 disturbance is necessarily inconsistent with the nature of Mr. Archuleta’s impairment, nor does
15 the ALJ identify any specific inconsistency with Mr. Archuleta’s testimony. See Holohan v.
16 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“the ALJ must specifically identify the
17 testimony she or he finds not to be credible and must explain what evidence undermines the
18 testimony); Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (finding legal error
19 where “the ALJ failed to identify the testimony she found not credible, she did not link that
20 testimony to the particular parts of the record supporting her non-credibility determination.”).
21

The ALJ also notes that the treatment records related to Mr. Archuleta’s shoulder surgery

22 make no mention of his complaints of vertigo, other than one mention to a provider that he did
23 not follow through with physical therapy because of vertigo. Tr. 419. However, it is unclear
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1 how this finding undermines Mr. Archuleta’s testimony since his reason for visiting the surgeon
2 was to repair his injured shoulder not to address his vertigo. The ALJ also notes that the
3 ophthalmologist did not find any ophthalmologic reason for Mr. Archuleta’s nystagmus and
4 equilibrium problems. Tr. 419. However, several of Mr. Archuleta’s providers observed
5 nystagmus on examination and Dr. Duckert identified Mr. Archuleta’s vestibular impairment as
6 the cause of his symptoms, including balance disturbance. Tr. 338, 986, 1004, 1042, 1088, 1091,
7 1329, 1558-60. As such, it is also unclear how the ophthalmologist’s failure to find an
8 ophthalmologic reason for Mr. Archuleta’s symptoms undermines his testimony. The ALJ also
9 notes that Mr. Archuleta did not report distorted vision to Dr. Mrugala on his 2015 visit.
10 However, Mr. Archuleta reported distorted vision consistently throughout the record and the fact
11 that he did not specifically report it on one visit to a provider does not substantially undermine
12 his testimony. See, e.g., Tr. 337, 285, 319, 364-65, 658, 662, 668, 686, 688, 744, 747, 761, 785,
13 811, 815, 831, 1062, 1091.
14

Finally, the ALJ discounted Mr. Archuleta’s testimony based on his failure to exercise.

15 An ALJ may consider a failure to follow a prescribed course of treatment when weighing a
16 claimant’s credibility. See Tommasetti v. Astrue, 533 F.3d 1035, 1039–40 (9th Cir. 2008). The
17 ALJ must consider a claimant’s reasons for failing to adhere to recommended treatment before
18 making an adverse credibility finding. See Smolen, 80 F.3d at 1284. An ALJ may discount a
19 claimant’s credibility due to an “unexplained or inadequately explained” failure to follow a
20 prescribed course of treatment.” Tommasetti, 533 F.3d at 1039. Where a claimant provides
21 evidence of a good reason for failing to comply with treatment his symptom testimony cannot be
22 rejected for not doing so. See Smolen, 80 F.3d at 1284. Here, when asked by the ALJ, Mr.
23 Archuleta indicated that, in addition to his other symptoms, he had experienced medical issues
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1 related to his feet, including a surgery that had prevented him from engaging in exercise
2 consistently. Tr. 474-76. The ALJ fails to address this explanation in discounting Mr.
3 Archuleta’s testimony. Accordingly, substantial evidence does not support this reason for
4 discounting Mr. Archuleta’s testimony.
5

Accordingly, on remand, the ALJ should also reevaluate Mr. Archuleta’s testimony.

6

C.

7

Mr. Archuleta contends that ALJ erred in failing to perform an adequate medical

Step Three

8 equivalence assessment for Listings 2.07, 11.03, 1.03 and 1.06. Dkt. 9 at 4-8. The Court
9 disagrees.
At step three of the evaluation process, the ALJ must determine whether a claimant has

10

11 an impairment or combination of impairments that meets or equals a condition outlined in the
12 Listing. See 20 C.F.R. §§ 404.1520(d), 416.920(d). “An ALJ must evaluate the relevant
13 evidence before concluding that a claimant’s impairments do not meet or equal a listed
14 impairment. A boilerplate finding is insufficient to support a conclusion that a claimant’s
15 impairment does not do so.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.2001) (citing Marcia v.
16 Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)). However, “[a]n ALJ is not required to discuss the
17 combined effects of a claimant’s impairments or compare them to any listing in an equivalency
18 determination, unless the claimant presents evidence in an effort to establish equivalence.”
19 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.2005). The claimant must offer some plausible
20 theory as to how his combined impairments are medically equal to a listed impairment. Id.
Here, Mr. Archuleta’s counsel presented no argument at the hearing that Mr. Archuleta’s

21

22 impairments medically equaled Listings 2.07, 11.03, 1.03 and 1.06. Tr. 484-91.6 Accordingly,
23
6

Counsel appears to have made a conclusory statement to the Appeals Council that her

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1 as Mr. Archuleta failed to offer a plausible argument of equivalency, the Court cannot conclude
2 the ALJ erred in failing to perform an adequate equivalency analysis. However, as discussed
3 above, this matter must be remanded for the ALJ to reevaluate the medical evidence.
4 Accordingly, Mr. Archuleta is free to raise or not to raise these or other equivalency arguments
5 to the ALJ on remand.
6

D.

7

In general, the Court has “discretion to remand for further proceedings or to award

Scope of Remand

8 benefits.” Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The Court may remand for
9 further proceedings if enhancement of the record would be useful. See Harman v. Apfel, 211
10 F.3d 1172, 1178 (9th Cir. 1990). The Court may remand for benefits where (1) the record is
11 fully developed and further administrative proceedings would serve no useful purpose; (2) the
12 ALJ fails to provide legally sufficient reasons for rejecting evidence, whether claimant testimony
13 or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ
14 would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995,
15 1020 (9th Cir. 2014). “Where there is conflicting evidence, and not all essential factual issues
16 have been resolved, a remand for an award of benefits is inappropriate.” Treichler v. Comm’r of
17 Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014).
18

Here, there is conflicting and ambiguous evidence in the record that must be developed

19 and reevaluated on remand. Moreover, it is not clear that the ALJ would be required to find Mr.
20 Archuleta disabled if the medical opinion evidence and Mr. Archuleta’s testimony were properly
21
impairments equaled Listing 2.07 in seeking review of the ALJ’s 2013 opinion. Tr. 273.
22 However, no plausible argument was presented in support of that statement. Id. In reply Mr.
Archuleta contends he advanced the argument that his vestibular disorder equaled Listing 2.07,
23 and presented evidence supporting his argument at the hearing level. Dkt. 13 at 2. However, in
reviewing the hearing testimony the Court is unable to locate such an argument.
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1 considered. Because the record does not compel a finding of disability, the Court finds it
2 appropriate to remand this case for further administrative proceedings. See Treichler, 775 F.3d
3 at 1107.
4
5

CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is REVERSED and this

6

7 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. §
8 405(g).
9

On remand, the ALJ should develop the record as necessary, reevaluate the opinions of

10 Dr. Mrugala, Dr. DeMarco and the 2015 statement from Dr. Duckert, reevaluate Mr. Archuleta’s
11 testimony, address any arguments Mr. Archuleta may raise about equivalency at step three and
12 proceed with steps four and five with the assistance of a vocational expert if necessary.
13
DATED this 31st day of January, 2017.

A

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The Honorable Richard A. Jones
United States District Judge

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