Anderson v. Colvin

Filing 20


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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 STEVEN WAYNE ANDERSON, 9 10 11 12 Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 16 17 18 19 20 21 22 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS Defendant. 13 14 CASE NO. 3:16-CV-05409- DWC Plaintiff Steven Wayne Anderson filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant’s denial of Plaintiff’s application for supplemental security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 7. After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when evaluating the medical evidence, and consequently in formulating the residual functional capacity (“RFC”) and finding Plaintiff capable of performing jobs existing in the national economy. The ALJ’s error is therefore harmful, and this matter is reversed and 23 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 1 1 remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social 2 Security (“Commissioner”) for further proceedings consistent with this Order. 3 FACTUAL AND PROCEDURAL HISTORY 4 On December 18, 2009, Plaintiff filed applications for SSI, alleging disability as of 5 January 1, 2002. See Dkt. 9, Administrative Record (“AR”) 20. The application was denied upon 6 initial administrative review. See AR 20. A video hearing was held before ALJ Caroline Siderius 7 regarding the denial of Plaintiff’s SSI claim. AR 20. In a decision dated March 1, 2012, the ALJ 8 determined Plaintiff to be not disabled. See AR 20-30. The Appeals Council denied Plaintiff’s 9 administrative appeal, making the ALJ’s decision the final decision of the Commissioner. AR 1. 10 Plaintiff appealed to the United States District Court for the Eastern District of Washington, 11 which upon stipulation of the parties remanded the case for further proceedings. See AR 59412 605; Anderson v. Colvin, 2:13-cv-03137-RHW (E.D. Wash. Nov. 13, 2014). 13 On remand, Plaintiff received a second hearing before ALJ Kimberly Boyce, who found 14 Plaintiff not disabled on March 25, 2016. AR 550-63. The Appeals Council declined to assume 15 jurisdiction of the opinion, making the ALJ’s decision the final decision of the Commissioner. 20 16 C.F.R. § 404.981, § 416.1481. Plaintiff now appeals the second decision finding Plaintiff not 17 disabled. 1 18 Plaintiff maintains the ALJ erred by: (1) improperly assessing the medical opinion 19 evidence; and (2) discounting Plaintiff’s subjective complaints and testimony. See Dkt. 11, p. 2. 20 21 22 23 1 When stating “the ALJ” or “the ALJ’s decision” throughout this Order, the Court is 24 referring to ALJ Boyce’s March 2016 decision. OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 2 1 2 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 3 social security benefits if the ALJ’s findings are based on legal error or not supported by 4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 5 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 6 DISCUSSION 7 I. 8 Plaintiff asserts the ALJ erred by improperly evaluating the medical evidence. Dkt. 11, Whether the ALJ Properly Evaluated the Medical Evidence. 9 pp. 4-16. Specifically, Plaintiff avers the ALJ improperly rejected the medical opinion of Mary 10 Pellicer, M.D. and improperly assessed all of the medical evidence supporting Plaintiff’s 11 allegations regarding his mental impairments, including the opinions of Dick Moen, MSW, 12 Russell Anderson, MSW, Aaron Burdge, Ph.D., and Thomas Genthe, Ph.D. See id. 13 The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 14 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 15 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 16 502, 506 (9th Cir. 1990)). When a treating or examining physician’s opinion is contradicted, the 17 opinion can be rejected “for specific and legitimate reasons that are supported by substantial 18 evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 19 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can 20 accomplish this by “setting out a detailed and thorough summary of the facts and conflicting 21 clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 22 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 23 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 3 1 2 A. Mary Pellicer, M.D. Plaintiff avers the ALJ erred in her treatment of Dr. Pellicer’s medical opinion. Dkt. 11, 3 pp. 4-9. Dr. Pellicer completed a consultative examination of Plaintiff on June 13, 2014. AR 9044 09. Dr. Pellicer conducted a clinical interview, reviewed medical records, and examined 5 Plaintiff. Id. Dr. Pellicer observed Plaintiff did not have full range of motion in his back. AR 6 906-07. She also observed Plaintiff experienced knee discomfort in both knees when performing 7 straight leg raises. AR 908. Plaintiff had 5/5 on muscle strength. AR 908. Based upon her 8 examination, Dr. Pellicer determined Plaintiff had chronic back and knee pain secondary to 9 osteoarthritis, as well as other illnesses related to depression, anxiety, and hepatitis C. AR 908. In 10 relevant part, Dr. Pellicer opined “[b]ased on the patient’s history, my examination, and other 11 available information” Plaintiff has the following functional limitations: 12 1. He is able to stand and walk for at least 4 hours in an 8 hour day with more frequent breaks due to chronic knee and back pain. 13 2. He is able to sit for about 6 hours cumulatively in an 8 hour day with more frequent breaks due to chronic knee and back pain. 14 15 3. The claimant would be capable of lifting and carrying 10 pounds occasionally due to chronic knee and back pain. 16 4. The claimant can bend and squat occasionally but can’t crawl, kneel or climb due to chronic knee and back pain. 17 18 AR 909. 19 The ALJ afforded partial weight to Dr. Pellicer’s opinion. AR 559. The ALJ noted Dr. 20 Pellicer’s “[s]tanding, walking and sitting limitations are adopted and incorporated into the 21 residual functional capacity.” AR 559. However, the ALJ dismissed Dr. Pellicer’s “opinion that 22 the claimant can only lift or carry up to 10 pounds occasionally/frequently” because “the 23 claimant’s muscle strength is routinely 5/5.” AR 559. In addition, the ALJ dismissed Dr. 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 4 1 Pellicer’s postural limitations regarding Plaintiff’s ability to crawl, kneel or climb “given the 2 objective findings throughout the record as articulated.” AR 559. 3 As an initial matter, the parties dispute what legal standard applies to Dr. Pellicer’s medical 4 opinion. Plaintiff argues Dr. Pellicer’s opinion was uncontradicted. Dkt. 11, pp. 6-7. Thus, 5 Plaintiff argues Dr. Pellicer’s opinion could only be rejected for clear and convincing reasons 6 supported by substantial evidence. See id. Defendant argues Dr. Pellicer’s opinion is contradicted 7 by Plaintiff’s treating nurse practitioner, Kelli Campbell, ARNP, “who opined that Plaintiff 8 could perform light exertional work.” Dkt. 18, p. 10. Thus, Defendant argues the Court should 9 evaluate whether the ALJ’s treatment of Dr. Pellicer’s opinion is supported by specific and 10 legitimate reasons supported by substantial evidence. Id. However, as noted by Plaintiff, Ms. 11 Campbell’s treatment note cited by Defendant does not appear to contradict Dr. Pellicer’s findings. 12 See AR 457. Indeed, the record cited by Defendant appears to support Dr. Pellicer’s findings as 13 Ms. Campbell put a line through a notation requiring Plaintiff to be able to walk or stand for six 14 hours in an eight hour day, instead noting Plaintiff could sit for most of the day. See AR 457. 15 Regardless, the Court need not address the parties’ dispute because the ALJ’s reason for 16 discounting Dr. Pellicer’s medical opinion is neither clear and convincing nor specific and 17 legitimate and supported by substantial evidence. 18 First, the ALJ rejected Dr. Pellicer’s opinion regarding Plaintiff’s inability to crawl, 19 kneel, or climb “given the objective findings throughout the record as articulated.” AR 559. The 20 ALJ did not cite to any evidence in the record inconsistent with Dr. Pellicer’s opinion, nor did 21 the ALJ explain why her conclusions—rather than Dr. Pellicer’s clinical observations—are 22 correct. See AR 33. The ALJ’s statement lacks the specificity required by the Court. As noted by 23 the Ninth Circuit: 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 5 1 2 3 4 5 To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the 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 own interpretations and explain why they, rather than the doctors’, are correct. Moreover[,] the ALJ’s analysis does not give proper weight to the subjective elements of the doctors’ diagnoses. The subjective judgments of treating physicians are important, and properly play a part in their medical evaluations. 6 Embrey, 849 F.2d at 421-22 (internal footnote omitted. Here, the ALJ provided only a 7 conclusory statement finding Dr. Pellicer’s assessment inconsistent with other objective findings 8 in the record. The ALJ’s blanket statement is insufficient to reject Dr. Pellicer’s opinion. See 9 Embrey, 849 F.2d at 421-22; McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (the ALJ’s 10 rejection of a physician’s opinion on the ground that it was contrary to clinical findings in the 11 record was “broad and vague, failing to specify why the ALJ felt the treating physician’s opinion 12 was flawed”). 13 Second, the ALJ discounted Dr. Pellicer’s opinion regarding Plaintiff’s limitations to lift 14 or carry up to 10 pounds occasionally because most of Dr. Pellicer’s findings were “normal” and 15 the claimant’s muscle strength was routinely 5/5. AR 559. However, the ALJ’s treatment of this 16 portion of Dr. Pellicer’s opinion suggests improper “cherry-picking” to support the ALJ’s 17 decision, while failing to address aspects of Dr. Pellicer’s opinion undermining the ALJ’s 18 determination. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (“[T]he ALJ 19 improperly cherry-picked some of [the doctor’s] characterizations of [the claimant’s] rapport and 20 demeanor instead of considering these factors in the context of [the doctor’s] diagnoses and 21 observations of impairment.”) (citations omitted). Dr. Pellicer conducted a clinical interview, 22 reviewed medical records, and reviewed imaging results in reaching her determination. See AR 23 904-09. Moreover, Dr. Pellicer made her determination regarding Plaintiff’s ability to lift and 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 6 1 carry based upon Plaintiff’s chronic knee and back pain, not on Plaintiff’s scores on muscle 2 strength. See AR 909. The ALJ did not explain how muscle strength—upon which Dr. Pellicer 3 did not base her opinion upon—undermines her determination regarding Plaintiff’s ability to lift 4 and carry. Thus, the ALJ’s statement, without further analysis or explanation, lacks the 5 specificity required by the Court. Embrey, 849 F.2d at 421-22. Moreover, given that Dr. Pellicer 6 cited to Plaintiff’s chronic back and knee pain to reach her determination, the ALJ was required 7 to explain why her own interpretation, rather than Dr. Pellicer’s, is correct. Reddick, 157 F.3d at 8 725 (citation omitted); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“[J]udges, 9 including administrative law judges of the Social Security Administration, must be careful not to 10 succumb to the temptation to play doctor. The medical expertise of the Social Security 11 Administration is reflected in regulations; it is not the birthright of the lawyers who apply them. 12 Common sense can mislead; lay intuitions about medical phenomena are often wrong”) (internal 13 citations omitted)). 14 Third, the ALJ purportedly adopted and incorporated Dr. Pellicer’s opinion regarding 15 Plaintiff’s ability to stand, walk, and sit during an eight hour workday. See AR 559. Plaintiff 16 argues the ALJ did not incorporate these restrictions; specifically, “the ALJ’s RFC does not 17 reflect … [Dr. Pellicer’s opinion] that Mr. Anderson was limited to standing and walking for 18 four hours in an eight hour day with more frequent breaks.” Dkt. 11, pp. 8-9. However, Dr. 19 Pellicer opined Plaintiff “is able to stand and walk for at least 4 hours in an 8 hour day with 20 more frequent breaks due to chronic knee and back pain.” AR 909 (emphasis added). Dr. Pellicer 21 did not limit Plaintiff to standing or walking for only four hours in an eight hour workday, but 22 rather noted Plaintiff could stand or walk for at least four hours in an eight hour work day. In the 23 RFC, the ALJ determined Plaintiff could “stand or walk for up to 6 hours per day in 1 hour 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 7 1 intervals, with an opportunity to be seated for at least 15 minutes after each 1 hour period.” AR 2 555. Thus, the limitations in the RFC are a reasonable interpretation of Dr. Pellicer’s opined 3 limitations regarding Plaintiff’s ability to sit and stand in an eight hour workday, including her 4 opined limitation regarding Plaintiff’s need for “more frequent” breaks from standing or 5 walking. See AR 555, 909. Therefore, Plaintiff has not demonstrated that the ALJ erred by 6 failing to incorporate this portion of Dr. Pellicer’s medical opinion. 7 However, the ALJ erred in rejecting portions of Dr. Pellicer’s opinion as none of the 8 reasons provided by the ALJ to partially reject her opinion are specific and legitimate—or clear 9 and convincing—and supported by substantial evidence. See Reddick, 157 F.3d at 725. 10 “[H]armless error principles apply in the Social Security context.” Molina v. Astrue, 674 11 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the 12 claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 13 Comm’r, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 14 1115. The determination as to whether an error is harmless requires a “case-specific application 15 of judgment” by the reviewing court, based on an examination of the record made “‘without 16 regard to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 111817 1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). 18 Had the ALJ properly considered the opinion of Dr. Pellicer, she may have included 19 additional limitations in the RFC and in the hypothetical questions posed to the vocational 20 expert. AR 555, 518-24. For example, had the ALJ fully credited Dr. Pellicer’s medical opinion, 21 she may have included limitations related to Plaintiff’s limitations to lift or carry up to 10 pounds 22 occasionally. The ALJ may have also included limitations related to Plaintiff’s inability to crawl, 23 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 8 1 kneel, or climb. As the ultimate disability determination may have changed, the ALJ’s error 2 regarding Dr. Pellicer’s opinion is not harmless and requires reversal. Molina, 674 F.3d at 1115. 3 4 B. Dick Moen, MSW Plaintiff also argues the ALJ erred in her treatment of several of Plaintiff’s mental health 5 providers, including the December 2010 opinion of Dick Moen, MSW. Dkt. 11, pp. 12-13. Mr. 6 Moen completed a Psychological/Psychiatric Evaluation in April 2009 and December 2010. See 7 AR 448-53; 466-72. Plaintiff challenges the ALJ’s treatment of Mr. Moen’s December 9, 2010 8 evaluation and opinion, during which Mr. Moen completed a clinical interview and conducted a 9 mental status examination. Mr. Moen opined Plaintiff has moderate impairments in his 10 perception and thinking disturbances, and moderate impairments with respect to work activities 11 due to depression, Posttraumatic Stress Disorder (“PTSD”), and Attention Deficit Hyperactivity 12 Disorder (“ADHD”). AR 467. Mr. Moen also opined Plaintiff has a number of moderate 13 functional limitations related to cognitive and social factors, including his ability to understand, 14 remember, and persist in tasks, ability to learn new tasks, ability to perform tasks without undue 15 supervision, and ability to maintain appropriate behavior in a work setting. AR 468. 16 After discussing Mr. Moen’s April 2009 opinion, the ALJ noted “[a] later template form 17 opinion from Mr. Moen dated December 2010 is assigned partial weight for the same reasons.” 18 AR 560. The ALJ did not otherwise analyze or discuss Mr. Moen’s December 2010 opinion. 19 Medical opinions from “other medical sources,” such as therapists, must be considered. 20 See 20 C.F.R. § 404.1513 (d); see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24 21 (9th Cir. 2010) (citing 20 C.F.R. § 404.1513(a), (d)); SSR 06-3p, 2006 WL 2329939. “Other 22 medical source” testimony “is competent evidence that an ALJ must take into account,” unless 23 the ALJ “expressly determines to disregard such testimony and gives reasons germane to each 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 9 1 witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Turner, 613 F.3d at 2 1224. “Further, the reasons ‘germane to each witness’ must be specific.” Bruce v. Astrue, 557 3 F.3d 1113, 1115 (9th Cir. 2009); see Stout, 454 F.3d at 1054 (explaining “the ALJ, not the 4 district court, is required to provide specific reasons for rejecting lay testimony”). Moreover, to 5 the extent an “other medical source” was working closely with, and under the supervision of, a 6 doctor, her opinion is to be considered that of an “acceptable medical source.” See Taylor v. 7 Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citing Gomez v. Chater, 74 8 F.3d 967, 971 (9th Cir. 1996)). As noted by Plaintiff, the parties stipulated that Mr. Moen and 9 Russell Anderson, MSW worked “under the supervision of Phillip Rodenberger, M.D.” AR 597, 10 599. Accordingly, the ALJ could only dismiss their opinions for specific and legitimate reasons 11 supported by substantial evidence. See Taylor, 659 F.3d at 1234; Gomez, 74 F.3d at 971. 12 Here, the ALJ failed to provide any reasons for rejecting Mr. Moen’s December 2010 13 opinion, other than referring to her discussion of the April 2009 opinion. See AR 560. An ALJ 14 may not reject significant, probative evidence without explanation. Flores v. Shalala, 49 F.3d 15 562, 571 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)). 16 Moreover, if an ALJ does not consider significant, probative evidence favorable to a claimant’s 17 position, the ALJ “thereby provide[s] an incomplete residual functional capacity determination.” 18 Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). Here, the ALJ’s failure to specifically 19 discuss Mr. Moen’s December 2010 opinion was error, particularly given that Mr. Moen’s 20 opinion contained functional limitations favorable to Plaintiff’s claim for disability not 21 accounted for in the RFC. See AR 550. Accordingly, upon remand, the ALJ shall consider and 22 specifically discuss Mr. Moen’s December 2010 opinion. 23 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 10 1 2 C. Russell Anderson, MSW Plaintiff also maintains the ALJ erred in assessing Russell Anderson, MSW’s November 3 2009 opinion. 2 See Dkt. 11, pp. 11-12. Mr. Anderson completed a Psychological/Psychiatric 4 Evaluation on November 25, 2009. AR 193-200. As part of his evaluation, Mr. Anderson 5 conducted a mental status examination and clinical interview, reviewed a medical record, and 6 charted Plaintiff’s self-reported symptoms. Id. Mr. Anderson opined Plaintiff was incapable of 7 “engaging in his usual line of occupation, such as driving [a] truck, working construction, or 8 doing manual labor, primarily due to his inattentiveness, mood disorder, and multiple physical 9 problems.” AR 197. Mr. Anderson also opined Plaintiff’s psychiatric symptoms, even when 10 contained, are likely to prevent him from maintaining consistent employment behaviors. AR 197. 11 The ALJ dismissed Mr. Anderson’s November 2009 assessment because “the only 12 evidence he reviewed” was one medical record from April 2009. AR 560. The ALJ also 13 dismissed the November 2009 opinion because Mr. Anderson’s opinion was conclusory, finding 14 Mr. Anderson “focused more on checking-boxes.” AR 560. Ultimately, the ALJ noted Mr. 15 Anderson’s opinion “is assigned partial weight however, as he took the time to examine and/or 16 interview the claimant, as well as complete a report.” AR 560. 17 First, the ALJ dismissed Mr. Anderson’s November 2009 assessment because he only 18 reviewed one medical record from April 2009. However, as Mr. Anderson conducted his own 19 clinical interview and examination, the ALJ failed to explain why Mr. Anderson’s opinion 20 21 2 Although Plaintiff also referenced another January 2011 assessment by Mr. Anderson, 22 Plaintiff did not assign any error to the ALJ’s discussion—or lack of discussion—of Mr. Anderson’s January 2011 assessment. The Court will only consider those arguments actually 23 argued in Plaintiff’s opening brief. Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Thus, the Court has only addressed Plaintiff’s arguments with respect to Mr. 24 Anderson’s November 2009 opinion. OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 11 1 should be discounted simply because he did not review additional records. Without an 2 explanation as to why Mr. Anderson’s observations are not credible on this basis, the Court 3 cannot determine if the ALJ’s reasoning is specific and legitimate and supported by substantial 4 evidence. See Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (an ALJ errs when he 5 rejects a medical opinion or assigns it little weight when asserting without explanation another 6 medical opinion is more persuasive). 7 Second, the ALJ partially rejected Mr. Anderson’s November 2009 opinion because he 8 determined Mr. Anderson’s opinion was conclusory and focused on a “check box” format. AR 9 560. An ALJ need not accept the opinion of a treating physician if that opinion is brief, 10 conclusory and inadequately supported by clinical findings. Batson v. Comm'r of Soc. Sec. 11 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). But, discrediting a doctor’s opinion simply because 12 she used a check box form is not valid unless that opinion is inconsistent with the underlying 13 clinical records. See Garrison, 759 F.3d at 1014 n.17 (“the ALJ was [not] entitled to reject 14 [medical] opinions on the ground that they were reflected in mere check-box forms” where the 15 “check-box forms did not stand alone” but instead “reflected and were entirely consistent with 16 the hundreds of pages of treatment notes”); see also Neff v. Colvin, 639 Fed.Appx. 459 (9th Cir. 17 2016) (unpublished); Esparza v. Colvin, 631 Fed.Appx. 460, 462 (9th Cir. 2015) (unpublished). 18 To the extent that the ALJ discounted Mr. Anderson’s opinion simply because the opinion was 19 contained on a check box form, the ALJ committed legal error. However, the Court agrees Mr. 20 Anderson’s opinion is brief and does not contain extensive notes. Nevertheless, as this matter is 21 already remanded for further consideration, the ALJ shall reevaluate the opinion of Mr. 22 Anderson and correct the errors discussed above. 23 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 12 1 2 D. Aaron Burdge, Ph.D. Plaintiff also avers the ALJ erred in assessing Aaron Burdge, Ph.D.’s May 3, 2012 3 Psychological Evaluation Report. Dkt. 11, pp. 13-14. Dr. Burdge conducted a clinical interview, 4 mental status examination, and reviewed two Psychological/Psychiatric Evaluations authored by 5 Dick Moen, MSW. AR 786-94. Dr. Burdge opined in relevant part Plaintiff “is unlikely to 6 function adequately in a work setting until his psychological symptoms have been managed more 7 effectively.” AR 789. Although the ALJ gave the remainder of Dr. Burdge’s opinion significant 8 weight, the ALJ rejected this portion of Dr. Burdge’s opinion, finding it overly reliant on 9 Plaintiff’s self-reports and not supported by his own findings and “those [findings] throughout 10 the record as stated”. AR 559. 11 First, the ALJ rejected Dr. Burdge’s opinion because she determined it was based on 12 Plaintiff’s self-report. “An ALJ may reject a treating physician’s opinion if it is based ‘to a large 13 extent’ on a claimant self-reports that have been properly discounted as incredible.” Tommasetti 14 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan v. Comm’r. Soc. Sec. Admin., 15 169 F.3d 595, 602 (9th Cir. 1999) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989))). 16 However, “when an opinion is not more heavily based on a patient’s self-reports than on clinical 17 observations, there is no evidentiary basis for rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 18 1154, 1162 (9th Cir. 2014) (emphasis added) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 19 1194, 1199-1200 (9th Cir. 2008). Here, Dr. Burdge reviewed medical records and performed a 20 mental status examination and Trail Making Tests A & B, charting a number of results. See AR 21 786-94. Thus, the record demonstrates Dr. Burdge did not base his medical assessment largely 22 on self-reported symptoms. Rather, Dr. Burdge provided a medical source statement based on the 23 doctor’s observations, the objective results of testing, as well as Plaintiff’s self-reported 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 13 1 symptoms. See 778-81. Thus, the ALJ’s decision finding Dr. Burdge’s assessment relied heavily 2 on Plaintiff’s subjective complaints is not a legitimate reason to discount Dr. Burdge’s opinion. 3 Second, the ALJ rejected Dr. Burdge’s opinion, finding it not supported by his own 4 findings and the overall evidence of record. However, Dr. Burdge based part of his decision on 5 the Psychological/Psychiatric Evaluations completed by Mr. Moen. Because the Court has 6 already determined the ALJ erred in evaluating Mr. Moen’s opinion, the ALJ should also 7 reevaluate Dr. Burdge’s opinion upon remand. 8 9 E. Thomas Genthe, Ph.D. Finally, Plaintiff argues the ALJ erred in evaluating Thomas Genthe, Ph.D.’s opinion. 10 Dkt. 11, pp. 14-15. Dr. Genthe completed a Psychological Evaluation on April 22, 2014. AR 11 853-59. Dr. Genthe conducted a diagnostic interview, charted behavioral observations, and 12 conducted a mental status examination. See id. Dr. Genthe also reviewed medical records. Id. 13 Although Dr. Genthe observed Plaintiff was cooperative and friendly, he also observed Plaintiff 14 was filthy and Plaintiff’s ability to understand and remember detailed instructions was assessed 15 as poor. AR 857. Dr. Genthe opined Plaintiff would be unable to function in a work setting 16 absent management of his psychological symptoms. AR 858. 17 The ALJ gave significant weight to portions of Dr. Genthe’s opinion, including his 18 opinion “that the claimant is able to follow and carry-out short, simple instructions and work at 19 least near others.” AR 559. However, the ALJ rejected the remainder of Dr. Genthe’s opinion 20 because “although Dr. Genthe initially stated in his report that the claimant appeared well21 groomed with good hygiene, he then commented in his medical source statement that” Plaintiff 22 appeared filthy. AR 559. Although the ALJ acknowledged Dr. Genthe made “perhaps a 23 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 14 1 typographical error, this contradiction suggests that Dr. Genthe may not have paid sufficient 2 attention to assessing the claimant’s limitations.” AR 559. 3 Plaintiff argues the ALJ erred by rejecting Dr. Genthe’s opinion because of one 4 inconsistency in his written report. The Court agrees. As noted above, an ALJ may not reject 5 significant, probative evidence without explanation. Flores, 49 F.3d at 571. Here, Dr. Genthe’s 6 opinion was supported by a thorough mental status examination, the results of which Dr. Genthe 7 assessed as fair to poor. AR 856-57. The Court finds the ALJ erred by rejecting portions of Dr. 8 Genthe’s opinion favorable to Plaintiff’s position, without specifically discussing the findings 9 and offering a specific and legitimate reason supported by substantial evidence to reject each 10 opined limitation. See Hill, 698 F.3d at 1161. Thus, upon remand, the ALJ shall also reevaluate 11 the medical opinion of Dr. Genthe. 12 II. Whether the ALJ erred by failing to provide clear and convincing reasons supported by the record to find Plaintiff lacked credibility. 13 Plaintiff contends the ALJ failed to give clear and convincing reasons for rejecting 14 Plaintiff’s testimony about his symptoms and limitations. Dkt. 11, pp. 17-19. Absent evidence of 15 malingering, an ALJ must provide clear and convincing reasons to reject a claimant’s testimony. 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 17 F.2d 341, 344 (9th Cir. 1991)). “General findings are insufficient; rather, the ALJ must identify 18 what testimony is not credible and what evidence undermines the claimant’s complaints.” Lester, 19 81 F.3d at 834. 20 In this case, the ALJ found Plaintiff’s testimony concerning the intensity, persistence, and 21 limiting effects of his symptoms to be not entirely credible. See AR 556. In light of the ALJ’s 22 error evaluating the medical evidence, the credibility of the Plaintiff’s statements necessarily 23 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 15 1 must be reviewed. Thus, upon remand, the ALJ should reconsider Plaintiff’s alleged symptoms 2 anew as necessitated by further consideration of the medical opinion evidence. 3 III. 4 Plaintiff argues the Court should remand for a calculation and award for benefits. Dkt. Whether the Matter Should Be Remanded for Benefits. 5 11, p. 19. The Court may remand this case “either for additional evidence and findings or to 6 award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the 7 Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand 8 to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 9 595 (9th Cir. 2004) (citations omitted). Thus, it is “the unusual case in which it is clear from the 10 record that the claimant is unable to perform gainful employment in the national economy,” that 11 “remand for an immediate award of benefits is appropriate.” Id. 12 Benefits may be awarded where “the record has been fully developed” and “further 13 administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v. 14 Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where: 15 16 17 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] 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. 18 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 19 Here, because issues still remain in regard to evaluating the medical opinion evidence, remand is 3 20 warranted. 21 3 Plaintiff argues the ALJ erred by failing to find Plaintiff disabled pursuant to MedicalVocational Rule 201.14. See Dkt. 11, pp. 4-8. Plaintiff’s argument is dependent on the ALJ 23 giving significant weight to Dr. Pellicer’s medical opinion. See id. After reconsidering Dr. Pellicer’s opinion on remand, the ALJ shall consider whether Medical-Vocational Rule 201.14 24 applies to Plaintiff’s new RFC. 22 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 16 1 2 CONCLUSION Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 3 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 4 this matter is remanded for further administrative proceedings in accordance with the findings 5 contained herein. 6 Dated this 23rd day of December, 2016. 7 8 A 9 David W. Christel United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 OPINION REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 17

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