Arlinda Massey-Rhodes v. Michael J Astrue, No. 2:2012cv00380 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (am)

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARLINDA MASSEY-RHODES, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 21 22 23 24 25 26 27 28 Case No. CV-12-380-SP MEMORANDUM OPINION AND ORDER I. 19 20 ) ) ) ) ) ) ) ) ) ) ) ) ) INTRODUCTION On January 13, 2012, plaintiff Arlinda Massey-Rhodes filed a complaint against defendant Michael J. Astrue, seeking a review of a denial of Disability Insurance Benefits ( DIB ). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument. Plaintiff presents four specific disputed issues for decision: (1) whether the 1 1 administrative law judge ( ALJ ) properly assessed lay witness testimony 2 regarding plaintiff s work at the YWCA; (2) whether the ALJ properly determined 3 that plaintiff s lumbar impairment is not legally severe; (3) whether the ALJ 4 properly rejected the opinions of plaintiff s treating physicians; (4) whether the 5 ALJ properly assessed plaintiff s credibility. Memorandum in Support of 6 Plaintiff s Complaint ( P. Mem. ) at 12-21; Defendant s Memorandum in Support 7 of Answer ( D. Mem. ) at 2-9. 8 Having carefully studied, inter alia, the parties s written submissions, the 9 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 10 that, as detailed herein, the ALJ failed to explain why he rejected significant 11 probative evidence in his determination that plaintiff engaged in substantial 12 gainful activity, and the ALJ improperly discounted plaintiff s credibility. 13 Therefore, the court remands this matter to the Commissioner of the Social 14 Security Administration ( Commissioner ) in accordance with the principles and 15 instructions enunciated in this Memorandum Opinion and Order. 16 II. 17 FACTUAL AND PROCEDURAL BACKGROUND 18 Plaintiff, who was 52 years old on the date of her March 17, 2010 19 administrative hearing, completed several years of college. AR at 58, 92, 106. 20 Her past relevant work includes employment as a school director and teacher. Id. 21 at 106. 22 On November 29, 2005, plaintiff filed an application for DIB, alleging an 23 onset date of July 12, 2004, due to a large tumor in her right hip, muscle weakness, 24 pain, and memory problems. Id. at 135, 203 The Commissioner denied plaintiff s 25 application initially and upon reconsideration, after which she filed a request for a 26 hearing. Id. at 135, 141, 147. 27 28 2 1 On June 12, 2007, plaintiff, represented by counsel, appeared and testified 2 at a hearing before the ALJ. Id. at 51, 57-84. Vocational expert ( VE ) Gail 3 Marin also provided testimony. Id. at 84-90. The ALJ denied benefits on July 20, 4 2007. Id. at 39-48. 5 Plaintiff filed a request for review of the decision in August 2007. Id. at 6 169. On February 15, 2008, the Appeals Council remanded the case, ordering that 7 the ALJ: obtain additional evidence concerning plaintiff s impairments to 8 complete the administrative record in accordance with the regulatory standards 9 regarding consultative examinations and existing medical evidence; evaluate lay 10 witness testimony under the guidelines set forth in Social Security Ruling 06-3p 11 and provide reasons for the conclusions reached; give further consideration to 12 plaintiff s maximum residual functional capacity during the period at issue and 13 provide rationale, with specific references to record evidence, in support of 14 assessed limitations, and in so doing, evaluate the treating source opinion under 15 the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p, 16 explaining the weight given to such opinion evidence; and, finally, if warranted by 17 the expanded record, obtain supplemental evidence from a vocational expert to 18 clarify the effect of the assessed limitations on plaintiff s occupational base. Id. at 19 133. 20 On March 17, 2010, plaintiff appeared and testified at a second hearing. Id. 21 at 92-127. Vocational expert Gail L. Marin and medical expert Arthur Brovender, 22 M.D. also testified. Id. On March 22, 2010, the ALJ again denied plaintiff's claim 23 for benefits ( the 2010 Decision ). Id. at 32. 24 Applying the well-known five-step sequential evaluation process, the ALJ 25 found, at step one, that plaintiff engaged in substantial gainful activity during the 26 period from her alleged onset date of July 12, 2004 through her date last insured of 27 28 3 1 December 31, 2009; that is, she was specifically engaged in substantial gainful 2 activity from August 2007 through November 2008. Id. at 24. 3 At step two, the ALJ found that plaintiff suffered from the following severe 4 impairments: benign tumor ( lipoma ) with removal and resulting cavity 5 ( seroma ), and morbid obesity. Id at 25. 6 At step three, the ALJ found that plaintiff s impairments did not meet or 7 medically equal one of the listed impairments set forth in the Listings. Id. at 27. The ALJ then assessed plaintiff s residual functional capacity ( RFC )1 and 8 9 determined that she had the RFC to perform the full range of sedentary work, as 10 defined in 20 CFR 404.1567(a). Id at 28. 11 The ALJ found, at step four, that plaintiff was able to perform her past 12 relevant work as a teacher from December 2008 through the date last insured of 13 December 31, 2009. Id. at 31. 14 At step five, the ALJ found plaintiff capable of performing other, sedentary 15 work that exists in a significant number of jobs in the national economy. Id. at 3116 32. The ALJ therefore found plaintiff was not disabled. Id. at 32. 17 Plaintiff filed a timely request for review of the ALJ s decision, which was 18 denied by the Appeals Council. Id. at 200-202; 1-5. The 2010 Decision stands as 19 the final decision of the Commissioner. 20 21 22 23 24 25 26 27 28 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). 4 1 III. 2 STANDARD OF REVIEW 3 This court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner 5 must be upheld if they are free of legal error and supported by substantial 6 evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as 7 amended). But if the court determines that the ALJ s findings are based on legal 8 error or are not supported by substantial evidence in the record, the court may 9 reject the findings and set aside the decision to deny benefits. Aukland v. 10 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 11 1144, 1147 (9th Cir. 2001). 12 Substantial evidence is more than a mere scintilla, but less than a 13 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 14 relevant evidence which a reasonable person might accept as adequate to support 15 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 16 F.3d at 459. To determine whether substantial evidence supports the ALJ s 17 finding, the reviewing court must review the administrative record as a whole, 18 weighing both the evidence that supports and the evidence that detracts from the 19 [AC s] conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 20 affirmed simply by isolating a specific quantum of supporting evidence. 21 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 22 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 23 the ALJ s decision, the reviewing court may not substitute its judgment for that 24 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 25 1992)). 26 27 28 5 1 IV. 2 DISCUSSION 3 A. The ALJ Erroneously Determined that Plaintiff Engaged in Substantial 4 Gainful Activity from August 2007 through November 2008 5 Plaintiff argues the ALJ erred in determining she engaged in substantial 6 gainful activity from August 2007 through November 2008, because her work was 7 done under special circumstances. P. Mem. at 13-14. 8 If a plaintiff can engage in substantial gainful activity, she is not disabled 9 within the meaning of the Social Security Act. Tackett v. Apfel, 180 F.3d 1094, 10 1098 (9th Cir.1999); 20 C.F.R. § 404.1571. Substantial gainful activity is work 11 activity that involves doing significant physical or mental activities on a full- or 12 part-time basis, and is the kind of work usually done for pay or profit. 20 C.F.R. 13 §§ 404.1572, 416.972. Earnings that exceed a certain amount, as specified in the 14 regulations, create the presumption of substantial gainful activity. 20 C.F.R. 15 §§ 404.1574, 404.1575(c); see also Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th 16 Cir.1990); Lewis, 236 F.3d at 515 16. The plaintiff may rebut this presumption 17 with evidence of her inability to perform the job well, without special assistance, 18 or for only brief periods of time. Keyes, 894 F.2d at 1056; see also 20 C.F.R. 19 § 404.1573. 20 Special conditions are those that take into account [the] impairment. 20 21 CFR § 404.1573. Factors that may show a plaintiff worked under such conditions 22 may include that she: 23 (1) required and received special assistance from other employees in 24 performing work; 25 (2) was allowed to work irregular hours or take frequent rest periods; 26 27 28 6 1 (3) was provided with special equipment or was assigned work especially 2 suited to the impairment; 3 (4) was able to work only because of specially arranged circumstances, such 4 as persons preparing for or getting plaintiff from work; 5 (5) was permitted to work at a lower standard than other employees; or 6 (6) was given the opportunity to work due to family relationships, past 7 association with an employer or the employer's concern for the plaintiff's welfare. 8 Id. At this and at all stages of the sequential evaluation, the ALJ must make full 9 and detailed findings of fact that are essential to the ALJ s conclusion so that a 10 reviewing court may determine the basis for the decision and whether substantial 11 evidence supports the Commissioner s decision. Lewin v. Schweiker, 654 F.2d 12 631, 634-35 (9th Cir.1981). Here, the ALJ s step one analysis does not show that 13 he considered all pertinent evidence. 14 Plaintiff worked part-time from mid-August 2007 through November 2008 15 at the Santa Monica YWCA as a head teacher/program specialist for a child-care 16 program. AR at 116-117, 868. It is undisputed that plaintiff received 17 compensation in excess of the statutory minimum from August 2007 through 18 November 2008. AR at 24; P. Mem. at 13. Therefore, the issue is whether 19 plaintiff has successfully rebutted the presumption that she performed substantial 20 gainful activity while employed at the YWCA. 21 Plaintiff provided substantial evidence to rebut the presumption. She 22 testified at the March 2010 hearing that the staff at the YWCA did all of the 23 physical work that would have been required by her position so that she did not 24 have to exert herself at all. AR at 123. For example, staff brought materials to her 25 for activities with the children while plaintiff remained seated. Plaintiff was 26 excused from set up, preparation, and clean up duties, which meant that, rather 27 28 7 1 than arriving to work between 7:30 a.m. and 8:00 a.m., she arrived when the 2 children arrived. Id. The testifying vocational expert acknowledged that the 3 YWCA made special accommodations for plaintiff and explained that, especially 4 considering the ages of the children plaintiff worked with, it s not common for . . 5 . a teacher to sit. Id. at 125. In addition to the testimony provided by plaintiff 6 and the vocational expert, letters from plaintiff s supervisor at the YWCA 7 demonstrated the special accommodations afforded plaintiff at the YWCA. Id. at 8 868-870. Specifically, plaintiff was permitted to work six hours per week from 9 home, sit at all times in each of the work areas, and leave when her physical 10 discomfort was too high. Id. Plaintiff bore no responsibility for set up or clean up 11 or for being physically active with the children. Id. Significantly, plaintiff s 12 supervisor noted in a March 2010 letter that [w]e would no longer be able to 13 make these accommodations for [plaintiff] however because of our program s 14 expansion. We now have more children which demands that all staff be physically 15 able to be mobile with the children. Id. at 869. 16 The ALJ failed to discuss plaintiff s or the vocational expert s testimony, or 17 the letters from plaintiff s supervisor at step one or at any subsequent stage of the 18 sequential evaluation. In his evaluation of plaintiff s credibility during his 19 discussion of her RFC, the ALJ referred briefly to the fact her employer was 20 willing to accommodate [her] due to her highly desirable expertise in humanistic 21 education. Id. at 31. But the ALJ failed to discuss or even acknowledge that her 22 previous employer was no longer able to accommodate her. This is insufficient. 23 If the ALJ chooses to disregard a plaintiff's statements, he must set forth 24 specific cogent reasons for his disbelief. Lewin v. Schweiker, 654 F.2d at 635. 25 See also Robbins v. Comm'r, 466 F.3d 880, 884 885 (9th Cir. 2006) (ALJ erred in 26 discounting credibility of plaintiff s testimony by failing to provide a narrative 27 28 8 1 discussion that contains specific reasons for the finding . . . supported by the 2 evidence in the case record nor was his brief notation sufficiently specific to 3 make clear . . . the weight the adjudicator gave to the individual s statements and 4 the reasons for that weight, as he is required to do ) (citing Social Security 5 Rulings 96 7p and 96 8p). The ALJ s lack of discussion of plaintiff s testimony, 6 the vocational expert s testimony, and plaintiff s supervisor s letters was 7 improper. See Vincent v. Heckler, 739 F.2d 1393, 1394 95 (9th Cir.1984) (per 8 curiam) (the Commissioner must explain why significant probative evidence has 9 been rejected ). Thus, the court finds that the ALJ s determination regarding 10 substantial gainful activity was both legally erroneous and unsupported by 11 substantial evidence. 12 B. The ALJ Properly Found Plaintiff s Low Back Pain Not to be a Severe 13 Impairment 14 Plaintiff contends that the ALJ improperly found that her low back pain was 15 not a severe impairment. P. Mem. at 14-17. Having carefully reviewed the record, 16 the court is persuaded that the ALJ s conclusion was proper. 17 At step two, the Commissioner considers the severity of the claimant s 18 impairments. 20 C.F.R. § 416.920 (a)(4)(ii). [T]he step-two inquiry is a de 19 minimis screening device to dispose of groundless claims. Smolen v. Chater, 80 20 F.3d 1273, 1290 (9th Cir. 1996). An impairment or combination of impairments 21 may be found not severe only if the evidence establishes a slight abnormality that 22 has no more than a minimal effect on an individual s ability to work. Webb v. 23 Barnhart, 433 F.3d 683, 686 quoting Smolen, 80 F.3d at 1290. 24 The ALJ found there was no evidence that plaintiff s history of lower back 25 pain had more than a minimal effect on plaintiff s ability to work. AR at 26. 26 The ALJ principally cited the findings of Dr. Bleecker, a state agency consultative 27 28 9 1 orthopedic surgeon. Id. Dr. Bleecker examined plaintiff in October 2009, noting 2 that she complained of low back pain and numbness and tingling going down her 3 right leg into her big toe. Id. at 650. Despite these complaints, though, Dr. 4 Bleecker s diagnosis was recurrent lipoma and did not include any condition 5 related to plaintiff s back. Id. at 26, 652. 6 Other objective findings in the record also reflect only slight abnormalities 7 concerning plaintiff s back pain. In April 2006, plaintiff saw treating physiastrist 8 Dr. Mislynne Charles who noted that plaintiff denied any back pain, although 9 she was tender over the right sciatic notch. AR at 455-456. While Dr. Charles 10 diagnosed plaintiff with right sciatica, her assessment that there was no evidence 11 of disability supports the conclusion that the condition did not impact plaintiff s 12 ability to function. Id. at 456. Plaintiff underwent an MRI on her back in August 13 2009, but while changes in her spine were noted, they were all characterized as 14 mild or moderate. Id. at 671; see id. at 26. The MRI was the basis for treating 15 orthopedic surgeon Michael Smith s diagnosis of disc disease lumbar spine. Id. 16 at 742-743. But, as discussed, infra, the ALJ properly discounted Dr. Smith s 17 opinion regarding plaintiff s limitations. 18 Although the ALJ found that plaintiff s back pain was not a severe 19 impairment, the ALJ resolved Step Two in plaintiff s favor, determining that she 20 suffered from the following severe impairments: history of benign tumor 21 ( lipoma ) with removal and resulting cavity ( seroma ), and morbid obesity. Id. 22 at 25. Therefore, even if the court were to find, which it does not, that the ALJ 23 erred in finding plaintiff's lumbar impairment was not severe at step two, the 24 error would have been harmless. See Burch v. Barnhart, 400 F.3d 676, 682 (9th 25 Cir. 2005) (holding that any error in omitting an impairment from the severe 26 27 28 10 1 impairments identified at step two was harmless where the step was resolved in the 2 claimant s favor). 3 C. The ALJ Provided Specific and Legitimate Reasons for Rejecting the 4 Opinion of Treating Physicians Brien and Smith 5 Plaintiff contends that the ALJ improperly rejected the opinions of treating 6 physicians Brien and Smith. Pl. Mem. at 17-19. Specifically, plaintiff claims that 7 the ALJ failed to offer specific and legitimate reasons for discounting these 8 physicians opinions. Id. at 17. The court disagrees. As discussed in more detail, 9 below, the ALJ s reasons for discounting these opinions namely, that they were 10 inconsistent with the medical records overall and inconsistent with the physicians 11 own treating notes (AR at 30) were specific, legitimate reasons supported by 12 substantial evidence. 13 In determining whether a claimant has a medically determinable 14 impairment, among the evidence the ALJ considers is medical evidence. 20 C.F.R. 15 § 416.927(b). In evaluating medical opinions, the regulations distinguish among 16 three types of physicians: (1) treating physicians; (2) examining physicians; and 17 (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 18 F.3d 821, 830 (9th Cir.1995) (as amended). Generally, a treating physician's 19 opinion carries more weight than an examining physician's, and an examining 20 physician's opinion carries more weight than a reviewing physician's. Holohan v. 21 Massanari, 246 F.3d 1195, 1202 (9th Cir.2001); 20 C.F.R. § 416.927(c)(1)-(2). 22 The opinion of the treating physician is generally given the greatest weight 23 because the treating physician is employed to cure and has a greater opportunity to 24 understand and observe a claimant. Smolen, 80 F.3d at 1285 (9th Cir.1996); 25 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). 26 27 28 11 1 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 2 Smolen, 80 F.3d at 1285. If a treating physician s opinion is uncontradicted, the 3 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 4 81 F.3d at 830. If the treating physician s opinion is contradicted by other 5 opinions, the ALJ must provide specific and legitimate reasons supported by 6 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 7 specific and legitimate reasons supported by substantial evidence in rejecting the 8 contradicted opinions of examining physicians. Id. at 830 31. The opinion of a 9 non-examining physician, standing alone, cannot constitute substantial evidence. 10 Widmark v. Barnhart, 454 F.3d 1063, 1067 n. 2 (9th Cir.2006); Morgan v. 11 Comm'r, 169 F.3d 595, 602 (9th Cir.1999); Erickson v. Shalala, 9 F.3d 813, 818 n. 12 7 (9th Cir.1993). 13 Dr. Smith s and Dr. Brien s opinions concerning plaintiff s physical 14 limitations contradict the opinions of a number of other physicians in the record. 15 Both of these treating physicians completed Hip Impairment Questionnaires on 16 plaintiff s behalf in February 2010 and opined that, in an eight-hour workday, 17 plaintiff could sit, stand and/or walk only up to one hour. Id. at 30, 745, 753. Dr. 18 Brien found that plaintiff could lift/carry 10-20 pounds occasionally and up to 10 19 pounds frequently. Id. at 753. Dr. Smith gave a slightly more limited assessment, 20 finding that plaintiff could lift/carry 5-10 pounds occasionally, and lift/carry up to 21 five pounds frequently. Id. at 745. Dr. Brien recommended against an eight-hour 22 work day for plaintiff. Id. at 755. Dr. Smith noted that the 800 mg of Motrin 23 prescribed to plaintiff made her dizzy-sleepy-disoriented. Id. at 30, 745. 24 These opinions are contrary to those of treating physiatrist Dr. Mislynne 25 Charles, state agency consultative orthopedic surgeon Dr. Harlan Bleecker, and 26 non-examining orthopedic surgeon Dr. Arthur Brovender, who testified as a 27 28 12 1 medical expert at the March 17, 2010 hearing. Id. at 99, 103-106, 455-456, 6502 653. Dr. Charles saw plaintiff once, in April 2006. At that time, Dr. Charles 3 observed that plaintiff had normal strength and a normal gait. Id. at 29, 456. Dr. 4 Charles noted that plaintiff suffered from right sciatica. Id. at 456. Significantly, 5 Dr. Charles opined that, based upon her evaluation, she saw no evidence that 6 plaintiff was disabled. Id. at 29, 456. Dr. Bleecker saw plaintiff a few years later, 7 in October 2009. Id. at 650-662. He opined that plaintiff could not kneel, squat, 8 or climb, but could lift 10 pounds occasionally and frequently. Id. at 29, 653. Dr. 9 Bleecker opined further that in an eight-hour day plaintiff could sit for six hours 10 and stand/walk for four hours, with normal periods of rest. Id. The medical expert 11 who testified at the March 2010 hearing, Dr. Brovender, concurred with Dr. 12 Bleecker. Id. at 29-30, 103-106. Having not examined plaintiff himself, Dr. 13 Brovender based his opinion upon the portions of the medical records from the 14 case that he had reviewed, including Dr. Bleecker s and Dr. Charles s assessments 15 and the treating notes of Drs. Brien and Smith. Id. at 99. Dr. Brovender opined 16 that plaintiff had the Residual Functional Capacity to do sedentary work. Id. at 30, 17 104. 18 In resolving the inconsistencies between the various physicians 19 assessments of plaintiff s physical limitations, the ALJ properly provided two 20 specific and legitimate reasons supported by substantial evidence for discounting 21 the opinions of Dr. Brien and Dr. Smith. Id. at 30. The ALJ explained that he 22 gave their opinions little weight because they were (1) inconsistent with the 23 overall medical records and (2) inconsistent with their own treating notes. Id. 24 With regard to the overall medical records, the substantial evidence discussed 25 above shows that Dr. Brien and Dr. Smith ascribed more significant limitations to 26 plaintiff than did the other three physicians. The reason proffered by the ALJ to 27 28 13 1 discount the opinions of Dr. Brien and Dr. Smith that they were therefore 2 inconsistent with the overall medical records is specific, legitimate and 3 supported by substantial evidence. 4 Similarly, the ALJ s second reason that Dr. Brien s and Dr. Smith s 5 opinions were inconsistent with their own treating notes is specific, legitimate 6 and supported by substantial evidence. After plaintiff s last surgery in December 7 2008 for removal of a fluid-filled sac, or seroma, Dr. Brien noted consistently that 8 she was doing well. See, e.g., id. at 555, 556, 588. On January 20, 2009, for 9 instance, Dr. Brien observed that plaintiff had no pain associated with the right 10 thigh. . . . She is doing quite well. Id. at 553. At visits in February and March 11 2009, Dr. Brien noted that plaintiff had no complaints and was doing well. Id. at 12 548, 550. He did opine in March 2009 that plaintiff would need decreased 13 activities, particularly up and down motion, significant sitting and standing 14 positions as well as squatting until beginning of April. Id. at 547. And he noted 15 that while plaintiff s symptoms were markedly improved, she was experiencing 16 some discomfort while sitting for any length of time as well as standing. Id. at 17 545. In August of 2009, Dr. Brien reported that plaintiff was doing well without 18 complaints[,] although [s]he still has intermittent discomfort when standing for a 19 long period of time. Id. at 711. And in October 2009, plaintiff was reported as 20 doing reasonably well, albeit with some episodes of discomfort recently. Id. 21 at 710. At a January 21, 2010 appointment, Dr. Brien again observed that 22 plaintiff was doing reasonably well, and that she denied any significant 23 complaints. Id. at 708. Dr. Brien s consistently positive assessment that plaintiff 24 was doing well and generally complaint free, with some or intermittent 25 discomfort, does not comport with his February 2010 opinion of significant 26 27 28 14 1 physical limitations. Similar to Dr. Brien although not as pronounced, Dr. Smith s 2 treatment notes indicated that plaintiff was doing well. Id. at 532-533. 3 Accordingly, the reasons the ALJ provided to discount the opinions of 4 treating physicians Drs. Brien and Smith were specific, legitimate and supported 5 by substantial evidence. 6 D. The ALJ Failed to Properly Consider Plaintiff s Credibility 7 Plaintiff contends that the ALJ failed to properly consider plaintiff s 8 credibility. P. Mem. at 19-21. Specifically, plaintiff argues that the three reasons 9 the ALJ provided for discounting plaintiff s credibility are not supported by 10 substantial evidence. Id. at 19-21. Because the ALJ s erroneous analysis at step 11 one is inextricably intertwined with his determination of plaintiff s credibility, this 12 court disagrees. 13 The Commissioner must make specific credibility findings, supported by the 14 record. SSR 96-7p. To determine whether testimony concerning symptoms is 15 credible, the Commissioner engages in a two-step analysis. Lingenfelter v. Astrue, 16 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the Commissioner must determine 17 whether a claimant produced objective medical evidence of an underlying 18 impairment which could reasonably be expected to produce the pain or other 19 symptoms alleged. Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 20 (9th Cir. 1991) (en banc)). Second, if there is no evidence of malingering, an 21 ALJ can reject the claimant s testimony about the severity of her symptoms only 22 by offering specific, clear and convincing reasons for doing so. Smolen, 80 F.3d 23 at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The 24 Commissioner may consider several factors in weighing a claimant s credibility, 25 including: (1) ordinary techniques of credibility evaluation such as a claimant s 26 reputation for lying; (2) the failure to seek treatment or follow a prescribed course 27 28 15 1 of treatment; and (3) a claimant s daily activities. Tommasetti v. Astrue, 533 F.3d 2 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 3 At the first step, the ALJ found that plaintiff s medically determinable 4 impairments could reasonably be expected to cause the symptoms alleged. AR at 5 29. At the second step, the ALJ was required to provide clear and convincing 6 reasons for discounting plaintiff s credibility. Here, the ALJ discounted plaintiff s 7 credibility because: (1) the record reveals her limitations were not as severe as 8 she alleges; (2) she engaged in activities including, assisting in the care of her 9 son, light household chores, and yoga that are inconsistent with a disabling 10 impairment; and (3) she engaged in substantial gainful activity, working as a 11 teacher, through most of 2008. Id. at 30-31. 12 The court understands the ALJ s discounting of plaintiff s credibility 13 because the record reveals plaintiff s limitations were not as severe as she 14 claimed [a]s discussed above (see id. at 30) to mean that the ALJ found the 15 medical evidence did not support her claimed limitations. An ALJ may not reject 16 a claimant s subjective complaints based solely on a lack of objective medical 17 evidence, but it may be one factor used to evaluate credibility. Bunnell, 947 F.2d 18 at 345; see also Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). In this 19 case, however, it was the only clear and convincing reason provided. 20 As discussed with respect to step one above, the ALJ erred in finding that 21 plaintiff engaged in substantial gainful activity. For the same reasons, the ALJ s 22 discounting of plaintiff s credibility based on her ostensible ability to engage in 23 substantial gainful activity was not clear and convincing. The court cannot say 24 that the ALJ s error with respect to plaintiff s ability to engage in substantial 25 gainful activity was harmless. This error also may have influenced the ALJ s 26 finding that plaintiff s daily activities were inconsistent with a disabling 27 28 16 1 impairment. At a minimum, because this finding regarding plaintiff s daily 2 activities appears inextricably intertwined with the ALJ s flawed decision that she 3 engaged in substantial gainful activity, the daily activities reason also is not a clear 4 and convincing reason supported by substantial evidence. Accordingly, the ALJ 5 erred in discounting plaintiff s credibility. 6 V. 7 REMAND IS APPROPRIATE 8 The decision whether to remand for further proceedings or reverse and 9 award benefits is within the discretion of the district court. McAllister v. Sullivan, 10 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 11 further proceedings, or where the record has been fully developed, it is appropriate 12 to exercise this discretion to direct an immediate award of benefits. See Benecke 13 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 14 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings 15 turns upon their likely utility). But where there are outstanding issues that must be 16 resolved before a determination can be made, and it is not clear from the record 17 that the ALJ would be required to find a plaintiff disabled if all the evidence were 18 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 19 Harman, 211 F.3d at 1179-80. 20 Here, as set out above, remand is required because the ALJ erred in failing 21 to explain his rejection of significant probative evidence at step one and in failing 22 to properly evaluate plaintiff s credibility. On remand, the ALJ shall: (1) consider 23 plaintiff s testimony and the testimony of vocational expert Gail Marin, as well as 24 the evidence provided by plaintiff s supervisor in Exhibit 43F, and either credit 25 their testimony and opinions or provide a cogent explanation supported by 26 substantial evidence for rejecting them; and (2) reconsider plaintiff s subjective 27 28 17 1 complaints and either credit plaintiff s testimony or provide clear and convincing 2 reasons supported by substantial evidence for rejecting them. The ALJ shall then 3 proceed through the five-step sequential analysis to determine what work, if any, 4 plaintiff is capable of performing. 5 VI. 6 CONCLUSION 7 IT IS THEREFORE ORDERED that Judgment shall be entered 8 REVERSING the decision of the Commissioner denying benefits, and 9 REMANDING the matter to the Commissioner for further administrative action 10 consistent with this decision. 11 12 13 DATED: December 6, 2012 14 SHERI PYM United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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