Stacy v. Colvin, No. 1:2014cv03043 - Document 23 (E.D. Wash. 2015)

Court Description: ORDER Granting Plaintiff's 13 Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

Download PDF

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 KEVIN STACY, No. 1:14-CV-03043-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 10 v. 11 12 13 14 CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 15 16 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 17 No. 13, 15. Attorney D. James Tree represents Kevin Stacy (Plaintiff); Special 18 Assistant United States Attorney Daphne Banay represents the Commissioner of 19 Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 22. After reviewing the administrative record and 21 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 22 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 23 REMANDS the matter to the Commissioner for additional proceedings pursuant to 24 42 U.S.C. § 405(g). 25 JURISDICTION 26 Plaintiff filed applications for Supplemental Security Income (SSI) and 27 Disability Insurance Benefits (DIB) on April 18, 2011, alleging disability since 28 December 23, 1999, due to back pain, left rotator cuff injury, and two discs ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 1 removed from his back. Tr. 269. The applications were denied initially and upon 2 reconsideration. Tr. 127-142, 145-156. Administrative Law Judge (ALJ) Virginia 3 Robinson held a hearing on September 14, 2012, Tr. 34-66, at which Plaintiff, 4 represented by counsel, and vocational expert (VE) Scott Whitmer testified. At the 5 September 14, 2012, hearing, Plaintiff amended his onset date to July 15, 2010. 6 Tr. 38. The ALJ issued a decision on November 30, 2012, dismissing the DIB 7 application and denying the SSI application. Tr. 18-33. The Appeals Council 8 denied review on February 5, 2014. Tr. 1-7. The ALJ’s November 30, 2012, 9 decision denying the SSI benefits became the final decision of the Commissioner, 10 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 11 filed this action for judicial review on April 3, 2014. ECF No. 1, 3. Both Plaintiff 12 and Defendant agree that the application for SSI benefits is the sole application 13 before the Court. ECF No. 13 at 2; ECF No. 15 at 1-3. 14 STATEMENT OF FACTS 15 The facts of the case are set forth in the administrative hearing transcript, the 16 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 17 here. 18 Plaintiff was born on March 3, 1962, and was 48 years old at the amended 19 alleged onset date, July 15, 2010. Tr. 204. Plaintiff completed high school in 1981 20 and has past work as a carpenter and general laborer. Tr. 39, 57, 270. 21 The evidence in the record pertaining to the relevant time period is sparse, 22 consisting of only one urgent-care visit not related to the alleged impairments, one 23 examination by Jeffrey R. Merrill, M.D., and one MRI of the lumbar spine. Tr. 24 674-681, 694-695, 700-703. The opinion evidence is limited to a Department of 25 Social and Health Services Functional Assessment form completed by Dr. Merrill 26 limiting Plaintiff to less than a full range of sedentary work and the opinions of the 27 state agency medical consultants limiting Plaintiff to less than a full range of light 28 work. Tr. 69-81, 100-122, 696-697. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 At the administrative hearing, Plaintiff described being unable to work due 2 to back pain and left shoulder rotator cuff injury. Tr. 41. Plaintiff testified that he 3 could lift 20 pounds but would “pay for it later” and that he could “try and do it” 4 for two hours but could hurt his back by “just picking it up one time.” Tr. 41, 47- 5 48. He testified that since the amended date of onset, he has been doing jobs for 6 family and friends, including painting, weed pulling, and fixing fences, but he 7 would unexpectedly leave early or not show up at the scheduled times for these 8 jobs on an average of four or five times out of ten due to back pain. Tr. 40, 49. 9 10 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 11 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 12 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 13 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 14 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 15 not supported by substantial evidence or if it is based on legal error. Tackett v. 16 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 17 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 18 another way, substantial evidence is such relevant evidence as a reasonable mind 19 might accept as adequate to support a conclusion. Richardson v. Perales, 402 20 U.S. 389, 401 (1971). In determining whether the ALJ’s decision is supported by 21 substantial evidence, the administrative record must be reviewed as a whole, 22 weighing both the evidence that supports and the evidence that detracts from the 23 ALJ’s conclusion. Mangallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989). If 24 the evidence is susceptible to more than one rational interpretation, the court may 25 not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1098. 26 Nevertheless, a decision supported by substantial evidence will still be set aside if 27 the proper legal standards were not applied in weighing the evidence and making 28 the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 433 (9th Cir. 1988). If substantial evidence supports the administrative findings, or 2 if conflicting evidence supports a finding of either disability or non-disability, the 3 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 4 (9th Cir. 1987). 5 SEQUENTIAL EVALUATION PROCESS 6 The Commissioner has established a five-step sequential evaluation process 7 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 8 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 9 proof rests upon claimants to establish a prima facie case of entitlement to 10 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once 11 claimants establish that physical or mental impairments prevent them from 12 engaging in their previous occupations. 20 C.F.R. § 416.920(a)(4). If claimants 13 cannot do their past relevant work, the ALJ proceeds to step five, and the burden 14 shifts to the Commissioner to show that (1) the claimants can make an adjustment 15 to other work, and (2) specific jobs exist in the national economy which claimants 16 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 17 (2004). If claimants cannot make an adjustment to other work in the national 18 economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). 19 20 21 22 23 ADMINISTRATIVE DECISION On November 30, 2012, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. Tr. 18-33. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since July 15, 2010, the amended date of onset. Tr. 24. 24 At step two, the ALJ determined Plaintiff had the following severe 25 impairments: degenerative disc disease and left rotator cuff impingement, status- 26 post left shoulder surgery in May 2000. Tr. 24. 27 At step three, the ALJ found Plaintiff did not have an impairment or 28 combination of impairments that met or medically equaled the severity of one of ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 2 the listed impairments. Tr. 24. At step four, the ALJ assessed Plaintiff’s residual function capacity (RFC) 3 and determined he could perform light exertional level with the following 4 restrictions: 5 6 7 8 9 10 11 The claimant can frequently climb ramps or stairs, but never climb ladders, ropes, or scaffolds. He can occasionally stoop and crawl. He can frequently crouch. Reaching or handling is unlimited in the right upper extremity. He can occasionally reach overhead with the left upper extremity. He can otherwise reach frequently in all other directions with the left upper extremity. He can also frequently handle with the left upper extremity. He should avoid concentrated exposure to extreme cold, excessive vibrations, and workplace hazards such as dangerous machinery and unprotected heights. 12 13 Tr. 24. The ALJ concluded that Plaintiff was not able to perform his past relevant 14 work. Tr. 27. 15 At step five, the ALJ determined that, considering Plaintiff’s age, education, 16 work experience and RFC, and based on the testimony of the vocational expert, 17 there were other jobs that exist in significant numbers in the national economy 18 Plaintiff could perform, including the jobs of cashier II, scale operator, and laundry 19 sorter. Tr. 28. The ALJ thus concluded Plaintiff was not under a disability within 20 the meaning of the Social Security Act at any time from July 15, 2010, through the 21 date of the ALJ’s decision, November 30, 2012. Tr. 28. 22 23 ISSUES The question presented is whether substantial evidence supports the ALJ’s 24 decision denying benefits and, if so, whether that decision is based on proper legal 25 standards. Plaintiff contends the ALJ erred by (1) failing to properly consider 26 Plaintiff’s testimony about the severity of his symptoms; (2) failing to properly 27 consider medical opinion evidence regarding Plaintiff’s functional limitations; and 28 (3) failing to fully and fairly develop the record. ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 2 3 4 DISCUSSION A. Credibility Plaintiff contends the ALJ’s erred by improperly discrediting his symptom claims. ECF No. 13 at 15. The Court agrees. 5 It is generally the province of the ALJ to make credibility determinations, 6 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 7 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 8 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 9 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 10 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 11 “General findings are insufficient: rather the ALJ must identify what testimony is 12 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 13 F.3d at 834. 14 The ALJ found Plaintiff not fully credible concerning the intensity, 15 persistence, and limiting effects of his symptoms. Tr. 25. The ALJ reasoned that 16 Plaintiff was less than credible because his symptom reporting was (1) contrary to 17 the medical evidence; (2) undermined by his lack of treatment; and (3) contrary to 18 his activities of daily living (ADL). Tr. 25-26. 19 1. Contrary to the objective medical evidence 20 The ALJ noted that Plaintiff’s allegations of back pain were not supported 21 by the July 2010 MRI or evaluation, specifically noting that the MRI revealed 22 generally mild to moderate degenerative changes and that Dr. Merrill’s 23 examination resulted in “modest” findings. Tr. 25. 24 An ALJ may cite inconsistencies between a claimant’s testimony and the 25 objective medical evidence in discounting the claimant’s testimony. Bray v. 26 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). But, the ALJ 27 may not discredit the claimant’s testimony as to subjective symptoms merely 28 because they are unsupported by objective evidence. Lester, 81 F.3d at 834. ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 Considering the other two reasons the ALJ gave in support of her credibility 2 determination are not clear and convincing, as discussed below, the ALJ’s 3 determination that Plaintiff’s symptom statements are contrary to objective medical 4 evidence is insufficient to find the claimant less than fully credible. 5 2. Lack of Treatment 6 In assessing a claimant’s credibility, an ALJ can rely upon “‘unexplained or 7 inadequately explained failure to seek treatment or to follow a prescribed course of 8 treatment.’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting 9 Smolen, 80 F.3d at 1284); see Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (an 10 “unexplained, or inadequately explained, failure to seek treatment may be the basis 11 for an adverse credibility finding unless one of a ‘number of good reasons for not 12 doing so’ applies”). A claimant’s statements may be deemed less credible “if the 13 level or frequency of treatment is inconsistent with the level of complaints, or if the 14 medical reports or records show that the individual is not following the treatment 15 as prescribed and there are no good reasons for this failure.” S.S.R. 96-7p. 16 However, a claimant’s failure to follow a course of treatment may be 17 excused if the claimant cannot afford the treatment. Gamble v. Chater, 68 F.3d 18 319, 321-322 (9th Cir. 1995) (“Disability benefits may not be denied because of 19 the claimant’s failure to obtain treatment he cannot obtain for lack of funds. . . . It 20 flies in the face of the patent purposes of the Social Security Act to deny benefits 21 to someone because he is too poor to obtain medical treatment that may help him.” 22 (citation omitted)). 23 Plaintiff asserts that he was not able to afford medical treatment in this case. 24 Tr. 51-52. The ALJ concludes this explanation to be “unpersuasive,” for three 25 reasons (1) the claimant managed to fund his cigarette habit; (2) he has not 26 explored options such as charity care; and (3) Plaintiff received some income from 27 working for family and friends. Tr. 25-26. None of these assertions are supported 28 by the record. The record is void of any discussion regarding how Plaintiff paid ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 for cigarettes and whether he considered or pursued charity care. Instead, the 2 record shows Plaintiff applied for General Assistance through the Department of 3 Social and Health Services showing that he did seek alternative ways to pay for 4 medical care. Tr. 670-671. Additionally, the money earned from working for 5 family and friends is minimal. Plaintiff testified that it amounted to thirty to forty 6 dollars every two to three days. Tr. 39. 7 Therefore, the ALJ’s second reason for finding Plaintiff less than fully 8 credible is not supported by the record and does not qualify as “specific, clear and 9 convincing.” 10 3. 11 The ALJ’s third reason for finding Plaintiff less than fully credible, that 12 Plaintiff’s activities cast doubt on his alleged limitations, Tr. 26, is additionally not 13 a “specific, clear, and convincing” reason to undermine Plaintiff’s credibility. 14 ADLs A claimant’s daily activities may support an adverse credibility finding if (1) 15 the claimant’s activities contradict his other testimony, or (2) “the claimant is able 16 to spend a substantial part of his day engaged in pursuits involving performance of 17 physical functions that are transferable to a work setting.” Orn 495 F.3d at 639 18 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “The ALJ must make 19 ‘specific findings relating to [the daily] activities’ and their transferability to 20 conclude that a claimant’s daily activities warrant an adverse credibility 21 determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 22 2005)). A claimant need not be “utterly incapacitated” to be eligible for benefits. 23 Fair, 885 F.2d at 603. 24 The ALJ did not conclude that Plaintiff’s activities contradicted his other 25 testimony, instead, she noted that Plaintiff reported being able to do odd jobs for 26 family and friends for about 15 hours per week, including raking leaves, painting, 27 doing maintenance work, pulling weeds, and fixing fences, and agreed that 28 Plaintiff could not sustain such activities throughout a workday. Tr. 26. But, just ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 commenting on the existence of such activities, is not sufficient for an adverse 2 credibility determination. The ALJ must make specific findings relating the 3 activities and their transferability, which was not done here. 4 4. Conclusion 5 In conclusion, the ALJ erred by failing to provide “specific, clear, and 6 convincing” reasons to find Plaintiff less than fully credible in his symptom 7 reporting. Accordingly, the Court finds this matter must be remanded for 8 additional proceedings for the ALJ to properly assess Plaintiff’s credibility. Upon 9 remand, the ALJ should consider the record as a whole and limit her rationale to 10 the evidence in the record. 11 B. 12 13 State agency examiner, Alnoor Virji, M.D. Plaintiff asserts that the opinion of Dr. Virji is unreliable and not supported by the record. ECF No. 13 at 19. The Court agrees. 14 The records for the relevant period of time contain only the opinions of Dr. 15 Merrill and the state agency medical consultants. The ALJ gave “greater weight” 16 to the opinion of one state agency medical consultant, Dr. Virji, over the opinion of 17 Dr. Merrill. Tr. 26-27. In forming his opinion, Dr. Virji reviewed Dr. Merrill’s 18 opinion and the “MISC ME” opinion dated June 11, 2011. Tr. 115. There is no 19 2011 ME opinion in the record. Plaintiff asserts that Dr. Virji actually reviewed an 20 opinion given 10 years earlier by Dr. McLauglin and mistakenly formed his 21 opinion on the belief that Dr. McLauglin’s opinion, limiting Plaintiff to medium 22 work, was performed during the relevant time period. ECF No. 13 at 17. 23 Defendant appears to agree that Dr. McLauglin’s 2001 opinion was mistaken as a 24 2011 opinion by Dr. Virji, but asserts that Dr. Virji did not base his opinion on the 25 2001 opinion of Dr. McLauglin. Defendant contends that Dr. Virji gave Dr. 26 McLauglin’s opinion little weight and, instead, Dr. Virji based his opinion on the 27 specific evidence in the record. ECF No. 15 at 10-11. 28 A nonexamining physician’s opinion, with nothing more, does not constitute ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 substantial evidence, particularly in view of the conflicting observations, opinions, 2 and conclusions of an examining physician. Lester, 81 F3d at 831 (citing Pitzer v. 3 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 4 1456 (9th Cir. 1984)). In Gallant, the Court held that “the report of [a] non- 5 treating, non-examining physician, combined with the ALJ’s own observance of 6 [the] claimant’s demeanor at the hearing” did not constitute “substantial evidence” 7 and, therefore, did not support the Commissioner's decision to reject the examining 8 physician’s opinion that the claimant was disabled. 753 F.2d at 1456. The opinion 9 of a nonexamining physician may serve as substantial evidence only when it is 10 supported by other evidence in the record and is consistent with it. Andrews, 53 11 F.3d at 104. In her review of medical opinions, the ALJ gave Dr. Virji’s opinion “greater 12 13 weight” over that of the treating physician, because his opinion “more accurately 14 reflects the overall medical evidence and the claimant’s activities.” Tr. 27. The 15 ALJ then went on to cite the evidence in the record that was not consistent with Dr. 16 Virji’s opinion: 17 While I agree with Dr. Virji’s opinion that the claimant is limited to occasional overhead reaching with the left arm, I find that the claimant retains the ability to reach frequently in all other directions. I note that, when examined in July 2010, he had only mild loss of motion on internal rotation, and the empty can and arc maneuver tests were negative (7F9). 18 19 20 21 22 Tr. 27. Without reference to other evidence in the record supporting Dr. Virji’s 23 opinion, it is not substantial evidence. Furthermore, the ambiguity presented by 24 the misrepresentation of the record in his opinion supports the conclusion that Dr. 25 Virji’s opinion may not be reliable and is therefore not relevant evidence as a 26 reasonable mind might accept as adequate to support a conclusion. 27 C. 28 Jeffrey R. Merrill, M.D. Plaintiff argues the ALJ failed to properly consider and weigh the medical ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 opinion expressed by Dr. Merrill. ECF No. 13 at 9-12. 2 The ALJ gave Dr. Merrill’s opinion “little weight” for three reasons: (1) it 3 was inconsistent with Plaintiff’s report that he could lift 20 pounds “without any 4 problems”; (2) it was not supported by the physical examination; and (3) it was not 5 consistent with Plaintiff’s activities. Tr. 26-27. 6 In weighing medical source opinions, the ALJ should distinguish between 7 three different types of physicians: (1) treating physicians, who actually treat the 8 claimant; (2) examining physicians, who examine but do not treat the claimant; 9 and, (3) nonexamining physicians who neither treat nor examine the claimant. 10 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 11 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at 12 631. The ALJ should give more weight to the opinion of an examining physician 13 than to the opinion of a nonexamining physician. Id. When a treating physician’s 14 opinion is not contradicted by another physician, the ALJ may reject the opinion 15 only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 16 (9th Cir. 1991). When a treating physician’s opinion is contradicted by another 17 physician, the ALJ is only required to provide “specific and legitimate reasons” for 18 rejecting the opinion of the treating physician. Murray v. Heckler, 722 F.2d 499, 19 502 (9th Cir. 1983). Likewise, when an examining physician’s opinion is not 20 contradicted by another physician, the ALJ may reject the opinion only for “clear 21 and convincing” reasons. Lester, 81 F.2d at 830. When an examining physician’s 22 opinion is contradicted by another physician, the ALJ is only required to provide 23 “specific and legitimate reasons” for rejecting the opinion of the examining 24 physician. Id. at 830-831. 25 Here, Plaintiff alleges that Dr. Merrill is a treating physician and Defendant 26 does not contest this assertion. ECF No. 13 at 5, 8-9; ECF No. 15 at 3, 5-7. The 27 Court views Dr. Merrill as an examining physician as he only evaluated Plaintiff 28 once for the purposes of a GAU evaluation. Tr. 700. ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 Plaintiff asserts that the ALJ is required to provide clear and convincing 2 reasons, and Defendant maintains that only specific and legitimate reasons are 3 required. ECF No. 13 at 9; ECF No. 15 at 5. As set forth above, Dr. Virji’s 4 opinion is not substantial evidence. Therefore, Dr. Merrill’s opinion is not 5 contradicted and the “clear and convincing” standard applies. 6 First, in reviewing the record as a whole, the assertions made by Plaintiff 7 regarding his ability to lift 20 pounds is not consistent with the definition of light 8 work set forth in 20 C.F.R. § 416.967(b). While Plaintiff states that he can lift 20 9 pounds “without any problems,” Tr. 295, Plaintiff later testified that he may be 10 able to lift 20 pounds but he would “pay for it later” and that he could “try and do 11 it” for two hours but that “just picking it up one time” could hurt his back. Tr. 47- 12 48. While these statements may appear contradictory, the ALJ does not focus on 13 the contradictory nature between Plaintiff’s statement on a Function Report and 14 Plaintiff’s testimony. Instead, she grasps a single statement made by Plaintiff to 15 discount the opinion of the treating physician. Considering the evidence as a 16 whole, this single statement does not reflect the totality of Plaintiff’s statement 17 regarding his ability to lift 20 pounds and therefore is not a “clear and convincing” 18 reason to reject Dr. Merrill’s opinion. 19 The ALJ’s second reason for rejecting Dr. Merrill’s opinion, that it was not 20 supported by the physical examination or the lumbar spine MRI, meets the “clear 21 and convincing” standard. Dr. Merrill was the only person to examine Plaintiff 22 during the relevant time period aside form an unrelated urgent-care visit. Dr. 23 Merrill performed a physical evaluation on Plaintiff on July 12, 2010, concluding 24 that “his findings on physical exam are modest.” Tr. 702. After receiving the 25 results of the MRI performed on July 16, 2010, Dr. Merrill opined that Plaintiff 26 was limited to less than a full range of sedentary work. Tr. 696-697. The ALJ 27 accurately set forth the findings from the examination and the MRI which appear 28 inconsistent with the opinion of Dr. Merrill. A doctor’s recorded observations and ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 opinions that are contradictive is a clear and convincing reason to reject that 2 doctor’s opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 3 Plaintiff contends that the ALJ misunderstood the objective evidence and 4 misinterpreted the MRI results and that the moderate and marked findings on the 5 MRI are sufficient evidence to support Dr. Merrill’s opinion. ECF 18 at 5-6. If the 6 evidence is susceptible to more than one rational interpretation, the court may not 7 substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1098. Because the 8 single examination and MRI result in evidence is open to multiple interpretations, 9 this Court may not disturb the ALJ’s determination. As such, the ALJ’s second 10 reason for rejecting Dr. Merrill’s opinion meets the “clear and convincing” 11 standard. The ALJ’s final reason for rejecting Dr. Merrill’s opinion, that Plaintiff’s 12 13 testimony about working odd jobs for friends and family was inconsistent with the 14 opinion is not a “clear and convincing” reason. In discussing Plaintiff’s 15 performance of these odd jobs, the ALJ states “I agree with the claimant that he 16 likely cannot sustain such tasks throughout a workday.” Tr. 26. As addressed 17 above, the ALJ failed to make specific findings relating these activities and their 18 transferability to work at any exertional level. Therefore, this testimony cannot be 19 used to discredit the opinion that Plaintiff is limited to sedentary work. 20 In conclusion, only one of the three reasons the ALJ provided for rejecting 21 Dr. Merrill’s opinion meetings the “clear and convincing” standard required. Since 22 this case is being remanded, the ALJ is directed to reconsider Dr. Merrill’s opinion 23 in light of a new credibility determination and the finding that Dr. Virji’s opinion is 24 not substantial evidence. 25 D. 26 Develop the record. Plaintiff assets that because Dr. Virji’s opinion cannot be relied upon as 27 substantial evidence and because the ALJ rejected the opinion of Dr. Merrill, then 28 the ALJ’s determination is not supported by substantial evidence and additional ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 2 development of the record is necessary. ECF No. 13 at 20. The ALJ has “a special duty to fully and fairly develop the record and to 3 assure that the claimant’s interests are considered.” Smolen, 80 F.3d at 1288. This 4 duty exists even when the claimant is represented by counsel. Brown v. Heckler, 5 713 F.2d 441, 443 (9th Cir. 1983). Despite this duty to develop the record, it 6 remains the claimant’s burden to prove that he is disabled. 42 U.S.C. § 7 423(d)(5)(A); 20 C.F.R. § 416.912(a). “An ALJ’s duty to develop the record . . . 8 is triggered only when there is ambiguous evidence or when the record is 9 inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 10 276 F.3d 453, 459-460 (9th Cir. 2001). “One of the means available to an ALJ to 11 supplement an inadequate medical record is to order a consultative examination.” 12 Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001). 13 Considering that the opinion of Dr. Virji cannot be relied upon as substantial 14 evidence and the ALJ rejected the opinion of Dr. Merrill, this matter must be 15 remanded for additional proceedings. Upon remand the ALJ is directed to send 16 Plaintiff out for a consultative physical examination to further develop the record. 17 18 REMEDY Plaintiff argues the ALJ’s decision should be reversed and remanded for an 19 immediate award of benefits. ECF No. 13 at 21-22. The decision whether to 20 remand for further proceedings or reverse and award benefits is within the 21 discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 22 1989). The Court may award benefits if the record is fully developed and further 23 administrative proceedings would serve no useful purpose. Smolen, 80 F.3d at 24 1292. Remand for additional proceedings is appropriate when additional 25 proceedings could remedy defects. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th 26 Cir. 1989). In this case, it is not clear from the record that the ALJ would be 27 required to find Plaintiff disabled if the record was fully developed and all the 28 evidence were properly evaluated. Further proceedings are necessary for a proper ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 determination to be made. On remand, the ALJ shall redetermine Plaintiff’s credibility regarding his 2 3 symptom reporting, and reassess Plaintiff’s RFC, taking into considering the 4 opinion of Dr. Merrill and all other medical evidence of record relevant to 5 Plaintiff’s claim for disability benefits. The ALJ is directed to further develop the 6 record by requiring Plaintiff to undergo new consultative physical examination 7 prior to a new administrative hearing and, if warranted, by eliciting medical expert 8 testimony to assist the ALJ in formulating a new RFC determination. The ALJ is 9 also directed to obtain testimony from a vocational expert and take into 10 consideration any other evidence or testimony relevant to Plaintiff’s disability 11 claim. 12 CONCLUSION 13 Accordingly, IT IS ORDERED: 14 1. 15 16 Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is 17 GRANTED, in part, and the matter is REMANDED to the Commissioner for 18 additional proceedings consistent with this Order. 19 3. Application for attorney fees may be filed by separate motion. 20 The District Court Executive is directed to file this Order and provide a copy 21 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 22 and the file shall be CLOSED. 23 DATED November 12, 2015. 24 25 26 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 15

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.