Anderson v. Colvin, No. 2:2014cv00112 - Document 17 (E.D. Wash. 2015)

Court Description: ORDER Granting 13 Plaintiff's Motion for Summary Judgment; denying 14 Defendant's Motion for Summary Judgment. Case closed. Signed by Senior Judge Wm. Fremming Nielsen. (CV, Case Administrator)

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Anderson v. Colvin Doc. 17 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 ROBERT GOODWIN ANDERSON, Plaintiff, 7 -vs- 8 9 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 10 Defendant. 11 No. 2:14-CV-0112-WFN ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 12 Before the Court are cross-Motions for Summary Judgment (ECF Nos. 13 and 14). 13 Attorney Dana C. Madsen represents Plaintiff; Special Assistant United States Attorney 14 Jeffrey E. Staples represents Defendant. The Court has reviewed the administrative record 15 and briefs filed by the parties and is fully informed. JURISDICTION 16 17 Plaintiff protectively applied for supplemental security income benefits on July 18, 18 2012, alleging disability beginning on January 1, 2005,1 due to physical and mental 19 impairments. The application was denied initially and on reconsideration.2 20 A hearing was held before Administrative Law Judge (ALJ) James Sherry on April 21 24, 2013. At the hearing, Plaintiff, represented by counsel, testified as did K. Diana 22 23 24 25 26 1 At the hearing, Plaintiff's counsel and the ALJ agreed that, for purposes of this case, the disability onset date was the date of Plaintiff's application—July 18, 2012. (Tr. at 66.) 2 Plaintiff filed an earlier application dated January 13, 2011 that was adjudicated 27 and denied on November 1, 2011. Therefore, the time period relevant to this case begins 28 November 1, 2011. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 Kramer, a vocational expert (VE). The ALJ concluded that Plaintiff was not disabled. 2 The Appeals Council denied Plaintiff's request for review making the ALJ's decision the 3 final decision of the Commissioner. Pursuant to 42 U.S.C. § 405(g), this final decision is 4 appealable to the district court. Plaintiff sought judicial review on April 22, 2014. FACTS 5 6 7 The facts of the case are set forth in detail in the transcript of the proceedings and are briefly summarized here. 8 At the time of the hearing, Plaintiff was 41 years old and lived at the Union Gospel 9 Mission [UGM]. (Tr. at 64.) Plaintiff did not complete school past the ninth grade and 10 never obtained a GED. (Tr. at 36.) 11 Plaintiff suffers from multiple sclerosis [MS], headaches, back issues, poor eyesight, 12 sensitivity to light, weak legs, difficulty balancing, fatigue, and poor concentration. (Tr. at 13 73-79.) Plaintiff's impairments require him to lie down 2-3 times a day for approximately 14 30 minutes at a time. (Tr. at 74.) 15 Despite his impairments, Plaintiff can walk 50-100 yards with the assistance of a 16 cane, climb a flight of stairs, lift 10-20 pounds with some difficulty, sit for 15-20 minutes 17 at a time, and perform light chores at UGM for a couple hours a day. (Tr. at 69-79.) 18 SEQUENTIAL PROCESS 19 The Commissioner has established a five-step sequential evaluation process for 20 determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen v. Yuckert, 21 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon the 22 claimant to establish a prima facie case of entitlement to disability benefits. 23 Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). This burden is met once a claimant 24 establishes that a physical or mental impairment prevents him from engaging in his 25 previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant cannot do his past relevant 26 work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 27 that (1) the claimant can make an adjustment to other work; and (2) specific jobs exist in 28 the national economy which claimant can perform. Batson v. Comm'r, Soc. Sec. Admin., ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 2 Tackett v. 1 359 F.3d 1190, 1193-94 (9th 2004). If a claimant cannot make an adjustment to other 2 work in the national economy, a finding of "disabled" is made. 3 416.920(a)(4)(i-v). ADMINISTRATIVE DECISION 4 5 6 20 C.F.R. § At step one, the ALJ determined that Plaintiff did not engage is substantial gainful activity since July 18, 2012, the application date. 7 At step two, the ALJ found that Plaintiff had the following severe impairments: mild 8 discogenic spondylosis of the cervical spine at C5-6 and lumbar spine at L5-S1; mild 9 cervical dextroconvex scoliosis; chronic obstructive pulmonary disease/asthma; MS; 10 alcohol and polysubstance dependence; adjustment disorder with mixed anxiety and 11 depressed mood; personality disorder. 12 At step three, the ALJ found that Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled any of the listed impairments 14 described at 20 C.F.R. Part 404, Subpart P, Appendix 1(20 C.F.R. §§ 416.920(d), 416.925, 15 and 416.926). 16 At step four, the ALJ found that Plaintiff had the residual functional capacity [RFC] 17 to perform medium work subject to certain exertional, social, and environmental 18 limitations. The ALJ concluded that Plaintiff could perform past relevant work as a hand 19 packager and salvager. 20 21 Because the ALJ found Plaintiff capable of performing past relevant work, the ALJ did not reach step five. STANDARD OF REVIEW 22 23 24 25 26 27 28 In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. [Tackett, 180 F.3d at 1097]. Substantial evidence is defined as being more than a mere scintilla, but ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 3 1 2 3 4 5 6 7 8 less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. 169 F.3d 595, 599 (9th Cir. 1999). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 9 10 It is the role of the trier of fact, not this court, to resolve conflicts in evidence. 11 Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, 12 the court may not substitute its judgment for that of the Commissioner. Tackett, 180 13 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision 14 supported by substantial evidence will still be set aside if the ALJ did not apply the 15 proper legal standards in weighing the evidence and making the decision. Brawner v. 16 Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). If substantial 17 evidence exists to support the administrative findings, or if conflicting evidence exists that 18 will support a finding of either disability or non-disability, the Commissioner's 19 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 20 1987). ISSUES 21 22 23 24 25 1. Did the ALJ err in evaluating the medical evidence of Plaintiff's mental and physical impairments? 2. Did the ALJ err in finding Plaintiff not credible and rejecting Plaintiff's subjective complaints? DISCUSSION 26 27 28 1. Did the ALJ err in evaluating the medical evidence of Plaintiff's mental and physical impairments? ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 4 1 Plaintiff argues that the ALJ erred by assigning greater weight to the opinions of 2 nonexamining physicians Drs. Rubin and Eather and by not providing adequate reasons for 3 rejecting the opinions of treating physician Dr. Wurst and examining physicians Drs. 4 Greene and Arnold. 5 In weighing medical source opinions, the ALJ should distinguish between three 6 different types of doctors: (1) treating doctors, who actually treat the claimant; 7 (2) examining doctors, who examine but do not treat the claimant; and (3) nonexamining 8 doctors who neither treat nor examine the claimant. Lester, 81 F.3d at 830. The ALJ 9 should give more weight to the opinion of a treating doctor than to the opinion of an 10 examining doctor. Orn, 495 F.3d at 631. The ALJ should give more weight to the opinion 11 of an examining doctor than to the opinion of a nonexamining doctor. Id. 12 When a doctor's opinion is not contradicted by another doctor, the ALJ may reject 13 the opinion only for "clear and convincing" reasons. Baxter v. Sullivan, 923 F.2d 1391, 14 1396 (9th Cir. 1991) (quoting Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989)). When 15 a doctor's opinion is contradicted by another doctor, the ALJ is only required to provide 16 "specific and legitimate reasons" for rejecting the opinion of the first doctor. Murray v. 17 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 18 In this case, there is conflicting medical evidence regarding whether Plaintiff is 19 disabled. Compare Tr. at 699 (Dr. Wurst opining that Plaintiff is "unable to perform work 20 of any kind") with Tr. at 140 (Dr. Eather opining that Plaintiff is "capable of completing a 21 40 hour work week"). Therefore, the ALJ was only required to provide "specific and 22 legitimate reasons" for rejecting the opinions finding Plaintiff disabled. 23 a. John Wurst, M.D. 24 Plaintiff started seeing Dr. Wurst for treatment of his MS beginning September 21, 25 2010. (Tr. at 697.) Plaintiff continued to see Dr. Wurst about every one or two months 26 through at least September 2012. 27 consistently diagnosed Plaintiff with relapsing remitting MS. Dr. Wurst documented 28 Plaintiff's complaints and appearance, monitored his level of pain, and made adjustments (Tr. at 696.) ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 5 Over this time period, Dr. Wurst 1 to his medications. It does not appear that Dr. Wurst ever assessed Plaintiff's mental or 2 physical limitations or otherwise evaluated how Plaintiff's MS affected his daily activities 3 or ability to work. In a letter dated January 13, 2012, Dr. Wurst summarily opined that, 4 because of Plaintiff's MS, Plaintiff is disabled and "unable to perform work of any kind." 5 (Tr. at 259; 699.) 6 The ALJ gave little weight to Dr. Wurst's opinions reasoning that Dr. Wurst's 7 opinions were not supported by his own findings, which revealed mild limitations. (Tr. 8 at 20.) The ALJ also reasoned that Dr. Wurst's opinions were based on Plaintiff's non- 9 credible self-reporting and that Plaintiff did not put forth maximum effort during muscle 10 testing. (Tr. at 20.) 11 Based on the record before him, the ALJ gave sufficient reasons for assigning little 12 weight to Dr. Wurst's opinions. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 13 2005) (finding that an ALJ may cite internal inconsistencies in evaluating a physician's 14 report); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (doctor's opinion may 15 be discounted if it relies on a claimant's unreliable self-report). 16 Nevertheless, the Court finds that the ALJ erred in discounting Dr. Wurst's opinions 17 without fully developing the record. "In Social Security cases the ALJ has a special duty 18 to fully and fairly develop the record and to assure that the claimant's interests are 19 considered." Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). An ALJ fails to 20 provide clear and convincing reasons for rejecting a physician's opinion when the ALJ 21 does not know the basis of the opinion. Id. Dr. Wurst, a neurologist, has been Plaintiff's 22 treating physician for several years and apparently is the only physician whom Plaintiff 23 has regularly seen for his MS. The Court agrees with the ALJ that Dr. Wurst's January 13, 24 2012 letter is conclusory. But rather than completely discounting Dr. Wurst's opinion, the 25 ALJ should have developed the record to determine the basis of Dr. Wurst's opinions. See 26 id.; see also Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980) ("Before the ALJ can 27 reject an opinion of a . . . claimant's treating physician because it is conclusory, basic 28 principles of fairness require that [the ALJ] . . . give [the claimant] an opportunity to ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 6 1 obtain a more detailed statement."). On remand, the ALJ should conduct an appropriate 2 inquiry into Dr. Wurst's opinions by means of subpoena, by submitting further questions to 3 Dr. Wurst, allowing Plaintiff to obtain a more detailed opinion, or other methods. 4 The ALJ should also be mindful of the fact that multiple sclerosis is a progressively 5 disabling condition characterized by periods of remission and exacerbation. Estes v. R.R. 6 Ret. Bd., 776 F.2d 1436, 1437 (9th Cir. 1985). The Ninth Circuit has recognized that 7 "multiple sclerosis can be disabling notwithstanding normal activity in periods of 8 remission." Id. at 1438. In evaluating a claimant with MS, the ALJ must consider "the 9 frequency and duration of the exacerbations, the length of the remissions, and the evidence 10 of any permanent disabilities." Wilcox v. Sullivan, 917 F.2d 272, 277 (6th Cir.1990); see 11 also 20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1, § 11.00(D) ("In conditions which are 12 episodic in character, such as multiple sclerosis ... consideration should be given to 13 frequency and duration of exacerbations, length of remissions, and permanent residuals."). 14 On remand, the ALJ should develop the record, through further inquiry into Dr. Wurst's 15 opinions or otherwise, as to "the frequency and duration of the [Plaintiff's MS related] 16 exacerbations, the length of the remissions, and the evidence of any permanent 17 disabilities." Wilcox, 917 F.2d at 277. 18 b. William Greene, Ph.D. 19 Dr. Greene completed psychological evaluations of Plaintiff on March 16, June 8, 20 and December 7, 2010. These reports have limited relevance because they were all made 21 before the time period relevant to this case—November 1, 2011. 22 Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) ("Medical opinions that 23 predate the alleged onset of disability are of limited relevance."). Plaintiff argues that 24 the ALJ failed to consider these evaluations in issuing his unfavorable decision on 25 November 1, 2011. ECF No. 13 at 4 n.4. But a review of the ALJ's earlier decision shows 26 that the ALJ did in fact consider Dr. Greene's evaluations. See Tr. at 101 ("Little weight is 27 given to the . . . evaluations completed by William Greene on . . . [March 16, June 8, and 28 December 7, 2010].") Because these opinions predate the period relevant to this case, and ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 7 See Carmickle v. 1 because the ALJ considered them in his previous opinion, the ALJ was not required to 2 revisit them. 3 Despite addressing Dr. Greene's opinions in his earlier decision, the ALJ addressed 4 them again in the unfavorable decision that is presently before the Court. The ALJ 5 gave little or no weight to Dr. Greene's opinions because they were based on Plaintiff's 6 non-credible self-reporting and not supported by objective mental findings. 7 at 21.) The ALJ also reasoned that Plaintiff's ability to keep appointments and 8 perform chores indicated that his focus and concentration were not disabling. 9 at 22.) 10 (Tr. (Tr. Even if Dr. Greene's opinions were fully credited, they would do not establish 11 Plaintiff's disability. In the March 16, 2010 evaluation, Dr. Greene noted Plaintiff's 12 alcohol and substance abuse history, and mild and moderate levels of depression and 13 anxiety. (Tr. at 736.) Dr. Greene concluded, with the help of continuing counseling, 14 Plaintiff would "be able to return to work full-time." 15 2010 evaluation, Dr. Greene noted increased severity of Plaintiff's depression and 16 anxiety, which he attributed largely to Plaintiff's recent diagnosis of MS. Dr. Greene 17 concluded, however, that over the course of 6 months, Plaintiff would likely be capable 18 of transitioning to work he could do, even with MS. (Tr. at 753.) In the December 7, 19 2010 evaluation, Dr. Greene observed Plaintiff's depression and anxiety increase, rising 20 to the "marked" level of severity, and noted physical problems relating to Plaintiff's MS. 21 Dr. Greene noted that the "MS symptoms flare and then go into remission." 22 at 762.) Dr. Greene did not offer a conclusive determination on Plaintiff's ability to 23 work, noting the recentness of Plaintiff's MS diagnosis and course of medication. (Tr. 24 at 764.) (Tr. at 740.) In the June 8, (Tr. 25 On remand, the ALJ need not re-address Dr. Greene's opinions because they are 26 outside the time period relevant to this case, the ALJ considered them in a previous 27 determination (that Plaintiff did not appeal), and they would not establish Plaintiff's 28 disability. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 8 1 c. John Arnold, Ph.D. 2 Dr. Arnold completed a psychological evaluation of Plaintiff on November 2, 2011. 3 Dr. Arnold diagnosed Plaintiff with major depressive disorder, anxiety disorder, alcohol 4 dependence sustained partial remission. (Tr. at 773.) Regarding Plaintiff's ability to work, 5 Dr. Arnold noted that Plaintiff's symptoms would affect "regular attendance, 6 concentration, productivity, and social interactions." (Tr. at 774.) But Dr. Arnold did not 7 rule out the possibility that Plaintiff was capable of some types of work. Dr. Arnold 8 concluded that Plaintiff could understand and carry out simple instructions, complete 9 simple tasks without close supervision without disrupting others, recognize hazards and 10 take appropriate precautions, and use the bus for transportation. (Tr. at 774.) Dr. Arnold 11 also noted that Plaintiff could only concentrate for short periods of time and would work 12 best in positions that have minimal interaction with others. (Tr. at 774.) Dr. Arnold 13 recommended continued counseling and appropriate medication management. 14 774.) Regarding Plaintiff's test results, Dr. Arnold noted that Plaintiff likely over reported 15 his symptoms, thus requiring the test results to be interpreted with caution. (Tr. at 776.) (Tr. at 16 The ALJ gave little weight to Dr. Arnold's opinions. The ALJ observed that Dr. 17 Arnold was unaware of Plaintiff's ongoing alcohol dependence and that Plaintiff's test 18 results were consistent for over-reporting or exaggeration of symptoms. (Tr. at 22-23.) 19 20 21 On remand, development of the record may require reconsideration of Dr. Arnold's opinions. d. Diane Rubin, M.D. and Bruce Eather, Ph.D. 22 Drs. Rubin and Eather reviewed Plaintiff's medical record for a state-level 23 determination of disability on October 22, 2012. Dr. Rubin noted Plaintiff's diagnoses of 24 MS, back disorders, asthma, alcohol and substance addiction disorders, and affective 25 disorders. (Tr. at 135.) Dr. Rubin gave significant weight to the opinions of Dr. Wurst 26 and the records from Sacred Heart Hospital. (Tr. at 136-37.) Dr. Rubin rated Plaintiff's 27 exertional limitations finding few physical limitations. 28 completed a mental RFC and rated Plaintiff's mental limitations as mostly moderate or not ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 9 (Tr. at 137-39.) Dr. Eather 1 significant. (Tr. at 139-40.) Dr. Eather opined that Plaintiff was "[c]apable of non[-] 2 complex and multi[-]step routine tasks, concentration and pace may wane due to 3 [symptoms] . . . capable of completing a 40 hour work week." (Tr. at 140.) 4 5 The ALJ gave significant weight to Dr. Rubin's and Dr. Eather's opinions reasoning that they were well supported by the objective medical evidence. (Tr. at 21.) 6 The Court concluded supra that the ALJ must augment the record regarding Dr. 7 Wurst's opinions and Plaintiff's physical and mental limitations caused by his MS. As Dr. 8 Rubin and Dr. Eather both rely, in part, on Dr. Wurst's opinions, the ALJ may need to 9 further analyze the opinions of Drs. Rubin and Eather depending on the development of 10 the record on remand. And, as the ALJ is no doubt well aware, he must give greater 11 weight to the opinions of treating doctors than to the opinion of examining doctors and 12 more weight to the opinions of examining doctors than to the opinions of nonexamining 13 doctors. Orn, 495 F.3d at 631. e. Jerry Gardner, Ph.D. 14 15 Dr. Gardner completed a review of Plaintiff's medical record for a state-level 16 determination of disability on August 29, 2012. Dr. Gardner noted Plaintiff's diagnoses of 17 MS, back disorders, asthma, alcohol and substance addiction disorders, and affective 18 disorders. (Tr. at 121.) Dr. Gardner gave significant weight to the opinions of Dr. Wurst 19 and the records from Sacred Heart Hospital. (Tr. at 123.) Dr. Gardner rated Plaintiff's 20 exertional, mental, and social limitations and ultimately concluded that Plaintiff was not 21 disabled. (Tr. at 123-27.) 22 23 The ALJ gave great weight to Dr. Gardner's opinions because they were internally consistent and consistent with the objective medical evidence. 24 The Court concluded supra that the ALJ must augment the record regarding 25 Dr. Wurst's opinions and Plaintiff's physical and mental limitations caused by his 26 MS. As Dr. Gardner relies, in part, on Dr. Wurst's opinions, the ALJ may need to 27 further analyze Dr. Gardner's opinion depending on the development of the record on 28 remand. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 10 1 2 3 2. Did the ALJ err in finding Plaintiff not credible and rejecting Plaintiff's subjective complaints? The ALJ found Plaintiff's reporting of his symptoms not entirely credible. In 4 reaching this conclusion, the ALJ primarily reasoned that Plaintiff's reporting of symptoms 5 was inconsistent with the objective medical evidence and Plaintiff's activities of daily 6 living. (Tr. at 18, 24.) Throughout the opinion, the ALJ also noted other factors that 7 influenced his credibility decision including the fact that Plaintiff (1) did not require 8 hospitalization, Tr. at 18 and 21; (2) did not undergo more than conservative treatment 9 with pain medication, Tr. at 18-19; and (3) engaged in drug seeking behavior, Tr. at 19. 10 It is generally the province of the ALJ to make credibility determinations. Andrews, 11 53 F.3d at 1039. "To determine whether the claimant's testimony regarding the severity of 12 [his] symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques of 13 credibility evaluation, such as the claimant's reputation for lying, prior inconsistent 14 statements concerning the symptoms, and other testimony by the claimant that appears less 15 than candid; (2) unexplained or inadequately explained failure to seek treatment or to 16 follow a prescribed course of treatment; and, (3) the claimant's daily activities." Smolen, 17 80 F.3d at 1284. Absent affirmative evidence showing that the claimant is malingering, 18 the ALJ must provide "specific, clear and convincing" reasons for rejecting the claimant's 19 testimony about the severity of the symptoms. 20 (9th Cir. 2012). Molina v. Astrue, 674 F.3d 1104, 1122 21 The Court held supra that the ALJ must further develop the record regarding Dr. 22 Wurst's opinions. If development of the record reveals an objective basis for Dr. Wurst's 23 opinion that Plaintiff is completely disabled and unable to work, then the ALJ will need to 24 reassess Plaintiff's credibility. The ALJ should also re-evaluate Plaintiff's credibility in 25 light of the fact that MS often follows "periods of remission and exacerbation." Estes, 776 26 F.2d at 1437. As the ALJ will likely need to re-evaluate Plaintiff's credibility upon further 27 development of the record, the Court need not address Plaintiff's specific assignments of 28 error related to the ALJ's credibility determination. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 11 1 ISSUES ON REMAND 2 Remanding for further proceedings is appropriate in this case because the record is 3 not sufficiently developed and it is not clear from the record that the ALJ would be 4 required to find Plaintiff disabled upon augmentation of the record. Benecke v. Barnhart, 5 379 F.3d 587, 595-96 (9th Cir. 2004). On remand, the ALJ should: 6 1. Conduct an appropriate inquiry into Dr. Wurst's opinion that Plaintiff is unable 7 to work because of his MS. The ALJ may make this inquiry by means of subpoena, by 8 submitting further questions to Dr. Wurst, allowing Plaintiff to obtain a more detailed 9 opinion from Dr. Wurst, or other methods. 10 2. Consider that multiple sclerosis is a progressively disabling condition 11 characterized by periods of remission and exacerbation. The ALJ shall develop the record, 12 through further inquiry into Dr. Wurst's opinions or otherwise, as to the frequency and 13 duration of the Plaintiff's MS related exacerbations, the length of the remissions, and the 14 evidence of any permanent disabilities. 15 3. If necessary, reconsider the other medical evidence, including the opinions of 16 Drs. Gardner, Arnold, Rubin and Eather, which relied on Dr. Wurst's opinions to some 17 extent. 18 19 4. Reassess Plaintiff's credibility if development of the record reveals an objective basis for Dr. Wurst's opinion that Plaintiff is completely disabled and unable to work. 20 5. If necessary, analyze how Plaintiff's past and/or current alcohol use may 21 contribute to his MS or other impairments. If the ALJ finds Plaintiff disabled on remand, 22 the ALJ should also determine whether Plaintiff's DAA is a contributing factor material to 23 his disability. CONCLUSION 24 25 Having reviewed the record and the ALJ's findings, the Court concludes that there 26 are unresolved issues, the record does not clearly require a finding of disability, and further 27 development of the record is required. Accordingly, 28 IT IS ORDERED that: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 12 1 2 1. Plaintiff's Motion for Summary Judgment, filed October 27, 2014, ECF No. 13, is GRANTED. 2. Defendant's Motion for Summary Judgment, filed December 8, 2014, ECF 3 4 No. 14, is DENIED. 3. This matter is REMANDED to the Commissioner of Social Security for further 5 6 proceedings consistent with this decision and sentence four of 42 U.S.C. § 405(g). The District Court Executive is directed to file this Order and provide copies to 7 8 counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. DATED this 15th day of January, 2015. 9 10 11 12 13 01-12-15 s/ Wm. Fremming Nielsen WM. FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT- 13

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