Rumley v. Commissioner of Social Security, No. 4:2017cv05153 - Document 19 (E.D. Wash. 2018)
Court Description: ORDER Granting 13 Plaintiff's Motion for Summary Judgment; denying 17 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
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Rumley v. Commissioner of Social Security Doc. 19 1 2 3 4 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 5 6 Sep 05, 2018 7 SEAN F. MCAVOY, CLERK 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF WASHINGTON 11 12 13 BECKY R., No. 4:17-CV-05153-JTR Plaintiff, 14 v. 15 16 17 18 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, Defendant. 19 20 BEFORE THE COURT are cross-motions for summary judgment. ECF 21 Nos. 13, 17. Attorney D. James Tree represents Becky R. (Plaintiff); Special 22 Assistant United States Attorney Martha A. Boden represents the Commissioner of 23 Social Security (Defendant). The parties have consented to proceed before a 24 magistrate judge. ECF No. 7. After reviewing the administrative record and the 25 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 26 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 27 REMANDS the matter to the Commissioner for additional proceedings pursuant to 28 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 JURISDICTION Plaintiff filed an application for Disability Insurance Benefits on May 7, 2 3 2013, Tr. 203, alleging disability since October 1, 2004, Tr. 193, due to bipolar 4 disorder, attention deficit hyperactivity disorder, narcolepsy, arthritis, foot 5 injury/problem, and back injury/pain. Tr. 206. The application was denied 6 initially and upon reconsideration. Tr. 81-87, 89-93. Administrative Law Judge 7 (ALJ) Mary Gallagher Dilley held a hearings on July 7, 2015 1 and May 4, 2016 8 and heard testimony from Plaintiff, medical expert Peter Schosheim, M.D., and 9 vocational expert, Paul Prachyl, Ph.D. 2 Tr. 39-65. At the May 4, 2016 hearing, 10 Plaintiff amended her onset date to September 1, 2010, “for procedural ease.” Tr. 11 42. The ALJ issued an unfavorable decision on June 27, 2016. Tr. 20-33. The 12 Appeals Council denied review on July 24, 2017. Tr. 1-6. The ALJ’s June 27, 13 2016 decision became the final decision of the Commissioner, which is appealable 14 to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for 15 judicial review on September 27, 2017. ECF Nos. 1, 4 . 16 STATEMENT OF FACTS The facts of the case are set forth in the administrative hearing transcript, the 17 18 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 19 here. 20 Plaintiff was 47 years old at the amended date of onset. Tr. 193. At 21 application, she reported that she completed the eleventh grade in 1979. Tr. 207. 22 She reported her work history as a product demonstrator at Costco. Id. Plaintiff 23 reported that she stopped working in 2003 due to her conditions. Id. 24 25 1 26 record. 27 2 28 The hearing transcript from the July 7, 2015 hearing is absent from the The record also shows that a hearing was scheduled for January 7, 2016, Tr. 137-61, but there is no evidence this hearing was held. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 Plaintiff maintained ensured status for Disability Insurance Benefits through 2 September 30, 2010. Tr. 195. Therefore, she must establish disability on or before 3 September 30, 2010 to be eligible for benefits under Title II of the Social Security 4 Act. See 20 C.F.R. § 404.315(a)(1). 5 6 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 7 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 8 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 9 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 10 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 11 not supported by substantial evidence or if it is based on legal error. Tackett v. 12 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 13 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 14 another way, substantial evidence is such relevant evidence as a reasonable mind 15 might accept as adequate to support a conclusion. Richardson v. Perales, 402 16 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 17 interpretation, the court may not substitute its judgment for that of the ALJ. 18 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 19 findings, or if conflicting evidence supports a finding of either disability or non- 20 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 21 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 22 evidence will be set aside if the proper legal standards were not applied in 23 weighing the evidence and making the decision. Brawner v. Secretary of Health 24 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 25 SEQUENTIAL EVALUATION PROCESS 26 The Commissioner has established a five-step sequential evaluation process 27 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen 28 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 proof rests upon the claimant to establish a prima facie case of entitlement to 2 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 3 claimant establishes that physical or mental impairments prevent her from 4 engaging in her previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant 5 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 6 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 7 other work, and (2) specific jobs which the claimant can perform exist in the 8 national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 9 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 10 national economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(4)(v). 11 ADMINISTRATIVE DECISION 12 On June 27, 2016, the ALJ issued a decision finding Plaintiff was not 13 14 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 15 from September 1, 2010, her amended date of onset, through September 30, 2010, 16 her date last insured. Tr. 22. 17 At step two, the ALJ determined Plaintiff had the following severe 18 impairments through the date last insured: left ankle degenerative joint disease 19 status post-surgery; depression; and anxiety disorder. Tr. 22. 20 At step three, the ALJ found Plaintiff did not have an impairment or 21 combination of impairments that met or medically equaled the severity of one of 22 the listed impairments through the date last insured. Tr. 24. 23 24 At step four, the ALJ assessed Plaintiff’s residual function capacity through the date last insured: 25 26 27 28 the claimant had the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently. She could stand and/or walk for about two hours and sit for six hours in an eight-hour day with normal breaks. The claimant was limited to pushing and pulling 20 ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 pounds occasionally and 10 pounds frequently. She could never crawl or climb ladders, ropes or scaffolds, but could occasionally climb ramps and stairs. The claimant could never balance on the left foot, but could frequently balance on the right foot. She could frequently kneel. The claimant could occasionally crouch and stoop. She needed to avoid all exposure to temperature extremes of cold and heat and hazards such as moving machinery and heights. The claimant could perform simple, routine tasks. 1 2 3 4 5 6 7 Tr. 26. The ALJ identified Plaintiff’s past relevant work as demonstrator and 8 concluded that Plaintiff was not able to perform this past relevant work. Tr. 31. At step five, the ALJ determined that, considering Plaintiff’s age, education, 9 10 work experience and residual functional capacity, and based on the testimony of 11 the vocational expert, there were other jobs that exist in significant numbers in the 12 national economy Plaintiff could perform through the date last insured, including 13 the jobs of dies loader, final assembler, and patcher. Tr. 32. The ALJ concluded 14 Plaintiff was not under a disability within the meaning of the Social Security Act at 15 any time from September 1, 2010, through the date last insured, September 30, 16 2010. Tr. 33. ISSUES 17 18 This is a difficult case in which Plaintiff is required to establish disability 19 almost three years prior to her filing date to be eligible for benefits. The record 20 provides limited insight into her impairments prior to the September 30, 2010 date 21 last insured. The majority of the evidence appears to address her decision to 22 donate a kidney to her child and her treatment for acute osteoarthritis in her left 23 foot. 24 The parties’ arguments, addressed further below, focus on what impairments 25 the evidence established prior to the September 30, 2010 date last insured. 26 However, there appears to be missing records from multiple providers that could 27 provide additional insight into Plaintiff’s impairments and functional abilities in 28 September of 2010. The record shows that several providers were referring her to ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 specialists and that these specialists were reporting back to these providers, yet the 2 records from the referring providers are absent. In 2009, Plaintiff’s primary care 3 provider was listed as Emmanuel Edibiopko, M.D., Tr. 261-62, 265, 272, 490, 4 along with Darian J. VanGorkum, DPM, Tr. 262, 265. Earlier, in 2006, Dr. Cote 5 was listed as her primary care provider. Tr. 460, 465, 468. There is no evidence 6 from these providers throughout the record. Additionally, at application, Plaintiff 7 stated that she had received treatment from Badger Mountain Family Medicine 8 from 2010 to 2013, Dr. Peacock at Columbia Rheumatology in 2012 to 2013, and 9 KGH Physicians Clinic. Tr. 210-13. No evidence from these locations appear in 10 the record. It does appear that some of these records were requested upon initial 11 evaluation of the claim, but it is unclear what response the Commissioner received. 12 Tr. 68-69 (showing records were requested from Columbia Rheumatology and 13 Badger Mountain Family Medicine). At the May 4, 2016 hearing, the ALJ referred 14 to the July 2015 hearing, stating “[t]here are outstanding medical records and we 15 weren’t able to proceed.” Tr. 41. 16 This highlights a separate difficulty in this case: an incomplete record 17 before this Court. First, there is evidence of three separate hearings being 18 scheduled in this case: (1) July 7, 2015, Tr. 106; (2) January 7, 2016, Tr. 137-61; 19 and (3) May 4, 2016, Tr. 162. Yet, the ALJ states that only the July 7, 2015 and 20 the May 4, 2016 hearings were held. Tr. 20. More frustrating for the Court, only 21 the May 4, 2016 hearing transcript is in the record. Tr. 39-65. Therefore, without 22 the transcript of the July 7, 2015 hearing, there is no way of knowing what 23 evidence the ALJ had intended to gather. 24 The questions presented by Plaintiff appears to overlook the missing medical 25 records and the missing hearing transcripts. Plaintiff contends the ALJ erred by (1) 26 failing to find her bilateral hand arthritis severe at step two, (2) failing to properly 27 weigh the medical opinions of her treating providers, and (3) failing to properly 28 address her symptoms statements. However, the Court finds overcoming the lack ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 of evidence and incomplete record as a major challenge in addressing Plaintiff’s 2 arguments. DISCUSSION 3 3 4 5 6 7 1. Step Two Plaintiff argues that the ALJ erred in failing to find the arthritis in both hands as a severe impairment. ECF No. 13 at 6-13. The step-two analysis is “a de minimis screening device used to dispose of 8 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An 9 impairment is “not severe” if it does not “significantly limit” the ability to conduct 10 “basic work activities.” 20 C.F.R. § 404.1522(a). Basic work activities are 11 “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). “An 12 impairment or combination of impairments can be found not severe only if the 13 evidence establishes a slight abnormality that has no more than a minimal effect on 14 an individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 15 1996) (internal quotation marks omitted). A medically determinable impairment 16 must be established with objective medical evidence; a claimant’s statements alone 17 will not suffice. See 20 C.F.R. § 404.1521. 18 The ALJ found that current evidence showed the existence of bilateral hand 19 arthritis, but that the impairment was not medically determinable on or before the 20 date last insured. Tr. 24. In doing so, the ALJ addressed three specific citations to 21 22 3 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 the record: (1) A January 18, 2011 treatment note in which Plaintiff presented with 2 bandages on the fingers of both hands and one hand had a swollen and discolored 3 small finger related to a recent fall, Tr. 504; (2) A March 30, 2011 treatment note 4 describing Plaintiff as having more arthritic changes in her hands, Tr. 507; and (3) 5 A November 19, 2014 report showing Plaintiff had arthritis affecting both her 6 hands and the examination showed moderate swelling of the joints of both hands, 7 Tr. 376. 8 9 The ALJ appears to overlook a potentially alarming rheumatological trifecta concerning Plaintiff: (1) she had a history of inflammation severe enough to be 10 treated with prednisone, Tr. 454 (a May 2, 2007 note in which she reported she had 11 been diagnosed with “chronic inflammation” and had taken prednisone as 12 treatment); (2) she was suffering from degenerative osteoarthritis in at least one of 13 her peripheral joints prior to the date last insured, Tr. 262 (osteoarthritis in the left 14 foot); and (3) she was precluded from taking anti-inflammatory medication, Tr. 15 448-49 (Plaintiff donated a kidney to her son in 2007 and was instructed to avoid 16 long term use of anti-inflammatory medication). This coupled with Plaintiff’s 17 allegations of arthritis symptoms in her hands prior to her date last insured, Tr. 53, 18 should have triggered the ALJ’s duty to develop the record and work on gathering 19 the missing treatment notes from her primary care physicians, a podiatrist, and a 20 rheumatologist from 2006 through 2013. 21 “In Social Security cases the ALJ has a special duty to fully and fairly 22 develop the record and to assure that the claimant’s interests are considered.” 23 Smolen, 80 F.3d at 1288. Despite the ALJ’s duty to develop the record, it remains 24 the claimant’s burden to prove that she is disabled. 42 U.S.C. § 423(d)(5)(A); 20 25 C.F.R. § 404.1512(a). “An ALJ’s duty to develop the record . . . is triggered only 26 when there is ambiguous evidence or when the record is inadequate to allow for 27 proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 28 (9th Cir. 2001); Webb, 433 F.3d at 687 (“The ALJ’s duty to supplement a ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 claimant’s record is triggered by ambiguous evidence, the ALJ’s own finding that 2 the record is inadequate[,] or the ALJ’s reliance on an expert’s conclusion that the 3 evidence is ambiguous.”). An ALJ may fulfill her duty to develop the record by 4 continuing the hearing, or keeping the record open after the hearing to allow 5 supplementation of the records. Smolen, 80 F.3d at 1288. 6 Here, the record is ambiguous as to the existence of arthritis in Plaintiff’s 7 hands prior to the date last insured. As discussed above, there is evidence of a 8 history of inflammation prior to the date last insured and complaints involving her 9 hands shortly after the date last insured. Even the first diagnosis of hand arthritis 10 in the record, dated November of 2014, actually refers to a previous diagnosis: 11 “She has been diagnosed with OA affecting the hands.” Tr. 376. Additionally, the 12 ALJ was aware of the outstanding evidence as it was referred in the materials 13 Plaintiff provided upon application and referenced in the medical evidence. Thus, 14 the ALJ’s duty to develop the record was triggered. There is an argument that the 15 ALJ fulfilled her duty by continuing the July 7, 2015 hearing to allow for 16 additional evidence to be gathered. See Tr. 41. However, without the transcript of 17 the July 7, 2015 hearing, this Court cannot make such a determination. 18 Defendant argues that the ALJ’s step two determination was legally 19 sufficient as she relied on the statements of Dr. Schosheim. ECF No. 17 at 7-8. In 20 her step two analysis, the ALJ stated “[c]onsistent with the opinion of Dr. 21 Schosheim, the undersigned finds. . . hand arthritis [was] not [a] medically 22 determinable impairments on or before the date the claimant’s insured status 23 expired.” Tr. 24. However, a review of Dr. Schosheim’s testimony shows a very 24 limited consideration of the record. Upon cross examination, he clearly indicated 25 that he was only considering evidence of Plaintiff’s impairments from September 26 1, 2010 to September 30, 2010. Tr. 48-50. When Plaintiff’s counsel inquired 27 about evidence prior to September 1, 2010 he rejected it because it was before the 28 onset date. Tr. 49-50. When asked about evidence in the months following ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 September 30, 2010, he rejected it because it was after the date last insured. Tr. 2 49. The ALJ’s reliance on the opinion which only took into account a month of 3 evidence is in sharp contrast with the Ninth Circuit’s approach to the treatment of 4 evidence in establishing the existence of an impairment prior to the date last 5 insured, which has consistently been that “reports containing observations made 6 after the period for disability are relevant to assess the claimant’s disability.” 7 Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988); see also Sampson v. Chater, 8 103 F.3d 918, 922 (9th Cir. 1996); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 9 1228-29 (9th Cir. 2010); Tobeler v. Colvin, 749 F.3d 830, 833 (9th Cir. 2014). In conclusion, the ALJ’s step two determination finding there was no 10 11 evidence that Plaintiff’s bilateral hand arthritis was present prior to the date last 12 insured cannot stand in the face of the absent medical evidence and the incomplete 13 record before the Court. Therefore, the case is remanded for the ALJ to properly 14 and fully develop the record by gathering evidence from the locations listed above 15 and supplementing the administrative record with the transcript from the July 7, 16 2015 hearing and any evidence establishing that the January 2016 hearing was 17 either held or continued. 18 2. Opinion Evidence 19 Plaintiff argues the ALJ failed to properly consider and weigh the opinions 20 expressed by Plaintiff’s treating rheumatologist, Sean LaSalle, M.D., and treating 21 mental health counselor, Carole Siefken, ARNP. ECF No. 13 at 13-18. 22 For all cases filed prior to March 27, 2017, acceptable medical sources 23 included providers who had attained a M.D., but not nurse practitioners. 20 C.F.R. 24 § 404.1502(a). In weighing opinions from acceptable medical sources, the ALJ 25 should distinguish between three different types of physicians: (1) treating 26 physicians, who actually treat the claimant; (2) examining physicians, who 27 examine but do not treat the claimant; and, (3) nonexamining physicians who 28 neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 1995). The ALJ should give more weight to the opinion of a treating physician 2 than to the opinion of an examining physician. Orn v. Astrue, 495 F.3d 625, 631 3 (9th Cir. 2007). Likewise, the ALJ should give more weight to the opinion of an 4 examining physician than to the opinion of a nonexamining physician. Id. 5 When a treating physician’s opinion is not contradicted by another 6 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 7 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 8 physician’s opinion is contradicted by another physician, the ALJ is only required 9 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 10 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). The specific and legitimate standard 11 can be met by the ALJ setting out a detailed and thorough summary of the facts 12 and conflicting clinical evidence, stating her interpretation thereof, and making 13 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 14 required to do more than offer her conclusions, she “must set forth [her] 15 interpretations and explain why they, rather than the doctors’, are correct.” 16 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 17 In contrast, an ALJ is only required to give “germane” reasons to discount 18 evidence from “other sources,” including the opinions of a nurse practitioner. 19 Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993); Molina v. Astrue, 674 F.3d 1104, 20 1111 (9th Cir. 2012). 21 A. Sean LaSalle, M.D. 22 Dr. La Salle, a rheumatologist, began treating Plaintiff in January of 2015. 23 Tr. 304. On April 3, 2015, he completed a Medical Report form opining, among 24 other limitations, that Plaintiff’s bilateral hand arthritis had not only been present, 25 but had precluded her from handling bilaterally since January of 2010, “per patient 26 report.” Tr. 304-05. The ALJ gave “no weight” to this opinion because (1) 27 “records in evidence do not establish that the claimant had osteoarthritis on or 28 before the date her insured status expired,” (2) his diagnoses included ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 fibromyalgia, which was not a medically determinable impairment on or before 2 Plaintiff’s date last insured, and (3) the opinion was based on Plaintiff’s self- 3 reports. Tr. 30. Once again, the Court has difficulty addressing the ALJ’s reasons with 4 5 potentially such a large number of records being absent. Due to the ALJ’s failure 6 to develop the record, the rejection of Dr. LaSalle’s opinion cannot be upheld. 7 Once the missing medical evidence has been associated with the record, the ALJ 8 will readdress Dr. LaSalle’s opinion. B. 9 Carole Siefken, ARNP Nurse Siefken completed mental residual functional capacity forms on 10 11 March 20, 2014, Tr. 292-94, and February 10, 2015, Tr. 298-301. The ALJ 12 assigned both opinions “little weight” because (1) Nurse Siefken did not provide 13 any rationale or cite any evidence to support her opinions, (2) the opinions were 14 based on the Plaintiff’s medical issues, but there was no evidence Nurse Siefken 15 completed any physical examinations, and (3) Nurse Siefken provided the opinions 16 as to Plaintiff’s current functioning and the Plaintiff was required to establish 17 disability on or before September 30, 2010. Tr. 30-31. The ALJ is accurate that these opinions only address Plaintiff’s functional 18 19 abilities as of 2014 and 2015. Considering the ALJ was only held to the lower 20 standard of “germane reasons,” the ALJ did not error in her treatment of Nurse 21 Siefken’s opinions. That being said, the ALJ’s assessment of the opinions may 22 change with additional evidence being added to the record. Therefore, the ALJ 23 will address all functional opinions upon remand after the supplementing the 24 record with the missing evidence. 25 2. Plaintiff’s Symptom Statements 26 Plaintiff contests the ALJ’s determination that Plaintiff’s symptom 27 statements were not supported by the medical evidence and other evidence in the 28 record. ECF No. 13 at 18-21. ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 It is generally the province of the ALJ to make credibility determinations, 2 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 3 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 4 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 5 testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281; 6 Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ must 7 identify what testimony is not credible and what evidence undermines the 8 claimant’s complaints.” Lester, 81 F.3d at 834. In making her determination, the ALJ summarized Plaintiff’s testimony at 9 10 the first hearing and the second hearing in separate paragraphs. Tr. 26-27. The 11 ALJ then found that Plaintiff’s medically determinable impairments could be 12 expected to cause her alleged symptoms, but that her “statements concerning the 13 intensity, persistence and limiting effects of these symptoms are not entirely 14 consistent with the medical evidence and other evidence in the record.” Tr. 27. 15 The ALJ reasoned that Plaintiff’s symptom statements were unreliable because (1) 16 they were not supported by the medical evidence, (2) she failed to follow 17 prescribed treatment, and (3) she did not seek out mental health treatment. Tr. 27- 18 29. 19 Considering the transcript from the first hearing is not in the record, it is 20 difficult for the Court to assess whether or not the ALJ’s reasons for rejecting 21 Plaintiff’s testimony at that hearing meet the necessary standard. Upon remand, 22 the ALJ will supplement the record with the transcript from the July 7, 2015 23 hearing. 24 As for the ALJ’s reasons for rejecting the testimony from the May 4, 2016 25 hearing, the ALJ failed to meet the necessary specific, clear and convincing 26 standard. First, the ALJ found that Plaintiff’s symptom statements were not 27 supported by the medical evidence. Tr. 27-28. An ALJ may cite inconsistencies 28 between a claimant’s testimony and the objective medical evidence in discounting ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 the claimant’s testimony. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 2 1227 (9th Cir. 2009). Here, the ALJ summarized the hearing testimony, asserted it 3 was not supported by the medical evidence, and then summarized the medical 4 evidence. Id. In doing so, the ALJ failed to state which specific medical records 5 undermined which specific allegation by Plaintiff. See Lester, 81 F.3d at 834 6 (“General findings are insufficient; rather, the ALJ must identify what testimony is 7 not credible and what evidence undermines the claimant’s complaints.”). In only 8 one of the findings did the ALJ connect Plaintiff’s testimony to the medical 9 evidence demonstrating inconsistency. The ALJ found that “[w]hile the claimant 10 testified that she did not recall breaking her cast by walking on it, the medical 11 records show she was casted three separate times in February 2010 because she 12 broke the cast walking on it, which was against medical advice (1F14-16).” Tr. 27. 13 This reason meets the specificity requirement addressed in Lester, but because the 14 ALJ failed to provide other legally sufficient reasons for rejecting Plaintiff’s 15 symptom statements, this reason alone cannot support her determination. See 16 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (Objective medical 17 evidence is a “relevant factor in determining the severity of the claimant’s pain and 18 its disabling effects,” but it cannot serve as the sole reason for rejecting a 19 claimant’s credibility.). 20 The ALJ’s second reason for rejecting Plaintiff’s testimony was merely a 21 reference to Plaintiff’s failure to continue her physical therapy and not a specific 22 finding. See Tr. 28. The ALJ’s inference consisted of just two sentences. The 23 first stated that Rodney Graves, DPM “gave the claimant a walking boot and a 24 physical therapy referral.” Tr. 27-28. Then the ALJ stated that Plaintiff “only 25 went to physical therapy for an initial evaluation.” Tr. 28. Nowhere did the ALJ 26 actually find that a failure to complete physical therapy underscored Plaintiff’s 27 symptoms. Therefore, this inference lacks the specificity required of specific, clear 28 and convincing. See Garrison v. Colvin, 759 F.3d 1014, 1021 (9th Cir. 2014) ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) 2 (“The clear and convincing standard is the most demanding required in Social 3 Security cases.”)). 4 The final reason provided by the ALJ for rejecting Plaintiff’s statements, 5 that she only sought mental health treatment three times in 2010, fails to meet the 6 specific, clear and convincing standard. Noncompliance with medical care or 7 unexplained or inadequately explained reasons for failing to seek medical 8 treatment casts doubt on a claimant’s subjective complaints. 20 C.F.R. § 9 404.1530; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Here, the ALJ found 10 that Plaintiff’s testimony that she had missed work due to her depression, was 11 inconsistent with only three counseling sessions she attended in 2010. Tr. 29. In 12 coming to this conclusion, the ALJ failed to consider Plaintiff’s ability to afford 13 treatment at this time. See Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). At 14 the May 4, 2016 hearing, Plaintiff testified that while she had insurance during this 15 time, she still had limited funds to seek treatment. Tr. 57. Additionally, the record 16 contains a January 18, 2011 counseling session in which Plaintiff presented with 17 injuries to her hands and stated that her spouse refused to allow her to seek 18 treatment due to the cost. Tr. 504. The Ninth Circuit has held that “it is a 19 questionable practice to chastise one with a mental impairment for the exercise of 20 poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 21 (9th Cir. 1996) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (9th Cir. 22 1989)). As such, the ALJ’s rejection of Plaintiff’s testimony due to lack of 23 counseling is not legally sufficient. 24 The ALJ failed to provide legally sufficient reasons for rejecting Plaintiff’s 25 statements from the May 4, 2016 hearing. Therefore, upon remand the ALJ will 26 readdress Plaintiff’s symptom statements in full. 27 REMEDY 28 The decision whether to remand for further proceedings or reverse and ORDER GRANTING PLAINTIFF’S MOTION . . . - 15 1 award benefits is within the discretion of the district court. McAllister v. Sullivan, 2 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 3 where “no useful purpose would be served by further administrative proceedings, 4 or where the record has been thoroughly developed,” Varney v. Secretary of Health 5 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 6 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 7 (9th Cir. 1990); see also Garrison, 759 F.3d at 1021 (noting that a district court 8 may abuse its discretion not to remand for benefits when all of these conditions are 9 met). This policy is based on the “need to expedite disability claims.” Varney, 10 859 F.2d at 1401. But where there are outstanding issues that must be resolved 11 before a determination can be made, and it is not clear from the record that the ALJ 12 would be required to find a claimant disabled if all the evidence were properly 13 evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 14 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 15 In this case, it is not clear from the record that the ALJ would be required to 16 find Plaintiff disabled if all the evidence were properly evaluated. Further 17 proceedings are necessary for the ALJ to supplement the record with the 18 outstanding medical evidence referenced above and the transcript from the July 7, 19 2015 hearing. Additionally, the ALJ will readdress the opinion evidence in the file 20 and the reliability of Plaintiff’s symptom statements. The ALJ will call a medical 21 expert and a vocational expert to testify at a remand hearing and make a new 22 determination addressing steps one through five. CONCLUSION 23 24 Accordingly, IT IS ORDERED: 25 1. 26 27 28 Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 13, GRANTED, in part, and the matter is REMANDED to the Commissioner for additional ORDER GRANTING PLAINTIFF’S MOTION . . . - 16 1 proceedings consistent with this Order. 2 3. Application for attorney fees may be filed by separate motion. 3 The District Court Executive is directed to file this Order and provide a copy 4 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 5 and the file shall be CLOSED. 6 DATED September 5, 2018. 7 8 9 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 17
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