Waldon v. Colvin, No. 3:2015cv00631 - Document 25 (S.D. Cal. 2016)

Court Description: ORDER granting 16 Motion for Summary Judgment; denying 20 Defendant's Cross Motion for Summary Judgment; adopting re 22 Report and Recommendation. This matter is REMANDED to the Social Security Commission for calculation and issuance of disability benefits. Signed by Judge Anthony J. Battaglia on 8/29/2016. (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VAL J. WALDON, Case No.: 15cv0631 AJB (NLS) Plaintiff, 12 13 14 ORDER: v. CAROLYN W. COLVIN, acting Commissioner of Social Security, 15 16 (1) ADOPTING REPORT AND RECOMMENDATION (Doc. No. 22); Defendant. (2) OVERRULING DEFENDANT’S OBJECTIONS (Doc. No. 23); 17 (3) GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 16); 18 19 20 (4) DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT (Doc. No. 20); AND 21 22 23 (5) REMANDING FOR CALCULATION AND AWARD OF BENEFITS 24 25 26 On March 20, 2015, Plaintiff Val J. Waldon (“Plaintiff”) filed this appeal against 27 Defendant Carolyn W. Colvin, Commissioner of Social Security (“Commissioner” or 28 “Defendant”), pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). (Doc. 1 15cv0631 AJB (NLS) 1 No. 1.) The appeal seeks judicial review of an adverse final decision entered on 2 November 20, 2014, which denied Plaintiff’s claim for disability benefits. (Id. at 2.) On 3 December 14, 2015, Plaintiff filed a motion for summary judgment, (Doc. No. 16), and 4 on February 10, 2016, Defendant filed a cross-motion for summary judgment, (Doc. No. 5 20). The motions were referred to Magistrate Judge Nita L. Stormes for issuance of a 6 report and recommendation. 7 On May 10, 2016, Judge Stormes issued a report and recommendation, which 8 recommended that the Court grant Plaintiff’s motion for summary judgment, deny 9 Defendant’s cross-motion for summary judgment, and remand the action to the 10 Commissioner of Social Security to calculate and award disability benefits to Plaintiff. 11 (Doc. No. 22.) Defendant filed timely objections on May 24, 2016, (Doc. No. 23), and 12 Plaintiff filed a response to Defendant’s objections on June 1, 2016. (Doc. No. 24.) For 13 the reasons set forth below, the Court ADOPTS the report and recommendation, 14 GRANTS Plaintiff’s motion for summary judgment, and DENIES Defendant’s cross- 15 motion for summary judgment. 16 BACKGROUND 17 On August 27, 2008, Plaintiff filed a claim for disability and social security 18 disability insurance benefits. (Doc. No. 9-5 at 1–12.) The application asserted a disability 19 onset date of March 1, 1997. (Id.) The request was denied on December 17, 2008, and on 20 reconsideration on March 4, 2009. (Id.) Plaintiff filed a written request for a hearing on 21 March 17, 2009. (Id.) On April 12, 2010, and August 30, 2010, an administrative law 22 judge (“ALJ”) held hearings to determine whether Plaintiff was disabled. (Doc. No. 9-2 23 at 60–68, 35–59.) Based on the evidence and testimony presented, the ALJ issued a 24 decision on September 9, 2010, denying Plaintiff’s claim. (Id. at 19–34.) The ALJ found 25 that although Plaintiff had severe impairments,1 he could successfully adjust to other 26 27 These impairments included, “Diabetes mellitus; peripheral neuropathy; history of cerebrovascular accident; gastroesophageal reflux disease; hypertension; dyslipidemia; 1 28 2 15cv0631 AJB (NLS) 1 work. (Doc. No. 9-2 at 22–30.) Additionally, the ALJ discredited the testimony of 2 Plaintiff and his treating physician, Dr. Carol Sprague. (Id.) 3 Plaintiff filed an administrative request to review the decision, which the Appeals 4 Council denied. (Doc. No. 9-2 at 2–7, 17–18.) Plaintiff then filed a complaint for judicial 5 review with the Court. Plaintiff’s initial request for judicial review proceeded under a 6 separate case, Case No. 13cv1323, during which the parties filed cross-motions for 7 summary judgment. Those motions were referred to Judge Stormes for issuance of a 8 report and recommendation. In resolving the cross-motions for summary judgment in 9 Plaintiff’s prior appeal, Judge Stormes recommended the Court reverse the ALJ’s 10 findings because they were not supported by clear and convincing reasons for rejecting 11 the testimony of Plaintiff and Dr. Sprague. (Case No. 12cv1323, Doc. No. 19.) The Court 12 adopted the report and recommendation in its entirety and remanded the case to the 13 Social Security Administration for further proceedings and consideration of the 14 previously discredited testimony. (Id. at 17–18.) 15 On remand, the ALJ held a hearing on October 14, 2014. (Doc. No. 9-10 at 61– 16 104.) On November 20, 2014, the ALJ issued a decision finding Plaintiff “did not have an 17 impairment or combination of impairments that met or medically equaled the severity of 18 one of the listed impairments in 20 CFR Part 404 Subpart P.” (Id. at 10.) Additionally, 19 the ALJ concluded that Plaintiff “had the residual functional capacity to perform 20 sedentary work as defined in 20 CFR 404.1567(a)” with some limitations. (Id.) In 21 reaching these conclusions, the ALJ discredited much of Plaintiff’s testimony regarding 22 the extent of his disability. (Id. at 12–16.) The ALJ also rejected the opinion of Dr. 23 Sprague. The ALJ ultimately concluded that Plaintiff was not disabled and therefore not 24 entitled to disability benefits. (Id.) 25 Plaintiff then filed the instant action, again seeking review of the Social Security 26 27 28 right knee pain; possibly osteoarthritis; and history of alcohol and cocaine dependence.” (Doc. No. 9-10 at 8.) 3 15cv0631 AJB (NLS) 1 Commissioner’s decision. (Doc. No. 1.) The matter was referred to Judge Stormes for 2 issuance of a report and recommendation on the parties’ cross-motions for summary 3 judgment. (Doc. No. 13.) Judge Stormes issued a report and recommendation (“the 4 R&R”), finding that the ALJ did not cite clear and convincing reasons to reject the 5 testimony of Dr. Sprague or Plaintiff. (Doc. No. 22 at 22–23.) Accordingly, Judge 6 Stormes recommends the Court grant Plaintiff’s motion for summary judgment and deny 7 Defendant’s cross-motion for summary judgment. Judge Stormes also recommends the 8 Court find Plaintiff “disabled” and remand to the Social Security Commissioner for an 9 award of benefits, finding remand for further proceedings would be futile. (Id. at 23.) 10 Defendant filed timely objections to the R&R. Defendant contends Judge Stormes’ 11 consideration of Dr. Sprague’s testimony and Plaintiff’s credibility was legally erroneous. 12 (Doc. No. 23.) Defendant additionally argues that remand for payment is “highly 13 inappropriate.” (Id. at 9.) 14 15 LEGAL STANDARDS I. 16 Review of the Report and Recommendation Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 17 judge’s duties in connection with a magistrate judge’s report and recommendation. The 18 district judge must “make a de novo determination of those portions of the report to 19 which objection is made,” and “may accept, reject, or modify, in whole or in part, the 20 finding or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); 21 see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the 22 absence of timely objection(s), the court “need only satisfy itself that there is no clear 23 error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 24 72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 25 F.3d 1114, 1121 (9th Cir. 2003). 26 II. 27 28 Judicial Review of Adverse Social Security Determinations Sections 206(g) and 1631(c)(3) of the Social Security Act allow unsuccessful applicants to seek judicial review of the Commissioner’s final agency decision. See 42 4 15cv0631 AJB (NLS) 1 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial review, however, is limited. The 2 Commissioner’s final decision should not be disturbed unless: (1) the ALJ’s findings are 3 based on legal error; or (2) the ALJ’s determinations are not supported by substantial 4 evidence in the record as a whole. See Schneider v. Comm’r of Soc. Sec. Admin., 223 5 F.3d 968, 973 (9th Cir. 2000). Substantial evidence means “more than a mere scintilla but 6 less than a preponderance; it is such relevant evidence as a reasonable mind might accept 7 as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 8 1995). 9 In making this determination, the Court must consider the record as a whole, 10 weighing both the evidence that supports, and the evidence that detracts from the ALJ’s 11 conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Desrosiers v. 12 Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ is 13 responsible for determining credibility, resolving conflicts in medical testimony, and for 14 resolving ambiguities.” Vasquez v. Astrue, 547 F.3d 1101, 1101 (9th Cir. 2008) (quoting 15 Andrews, 53 F.3d at 1039). Where the evidence is susceptible to more than one rational 16 interpretation, the ALJ’s decision must be affirmed. Id. (citation and quotations omitted). 17 Therefore, § 405(g) permits a court to enter a judgment affirming, modifying, or 18 reversing a decision of the Commissioner. 42 U.S.C. § 405(g). The Court may also 19 remand the action for an immediate award of benefits “upon a showing that there is new 20 evidence which is material and that there is good cause for failure to incorporate into the 21 record in a prior proceeding.” Id. 22 DISCUSSION Evaluation of Dr. Sprague’s Testimony 23 A. 24 During the administrative proceedings following the Court’s initial remand, the 25 ALJ rejected the opinion of Dr. Sprague, Plaintiff’s treating physician for approximately 26 the past ten years. In rejecting that opinion, the ALJ cited four reasons, including that: (1) 27 Plaintiff failed to comply with his diabetes medication regime; (2) Plaintiff’s reported 28 physical activity levels were inconsistent with his reports of foot and leg pain; (3) 5 15cv0631 AJB (NLS) 1 Plaintiff testified inconsistently regarding the facts underlying his post-traumatic stress 2 disorder (“PTSD”); and (4) Dr. Sprague improperly concluded Plaintiff was disabled. 3 In the R&R, Judge Stormes found the ALJ did not rely on clear and convincing 4 reasons to reject Dr. Sprague’s opinion, finding the reasons cited were unsupported by 5 the record. Defendant objects that the R&R improperly assessed the evidence underlying 6 the ALJ’s rejection of Dr. Sprague’s report. (Doc. No. 23 at 4–5.) According to 7 Defendant, Judge Stormes reexamined treatment notes and failed to provide deference to 8 the ALJ’s decision in instances where the evidence is susceptible to more than one 9 reasonable interpretation. (Id. at 4.) 10 As Plaintiff’s treating physician, Dr. Sprague’s opinion is entitled to substantial 11 weight. See Roulhac v. Astrue, No. EDCV07-01676, 2009 WL 3066636, at *3 (C.D. Cal. 12 Sept. 21, 2009). Moreover, because her testimony was not contradicted by that of another 13 doctor, the ALJ is entitled to reject Dr. Sprague’s testimony only for “clear and 14 convincing” reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In rejecting the 15 testimony of a treating physician, the ALJ must do more than offer conclusions—the ALJ 16 must set forth his own interpretations and explain why they are correct. Orn v. Astrue, 17 495 F.3d 625, 632 (9th Cir. 2007) (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th 18 Cir. 1988)). An ALJ can “meet this burden by setting out a detailed and thorough 19 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 20 and making findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 21 The singular instance of Plaintiff’s purported non-compliance with his treatment 22 regime does not amount to a clear and convincing reason to reject Dr. Sprague’s 23 testimony. Though the ALJ cites to a conflicting pharmacy note as suggestive that 24 Plaintiff failed to take the recommended amount of medicine for treatment of diabetes, 25 the record considered as a whole supports a different finding. As noted in the R&R, the 26 ALJ’s determination that Plaintiff take his diabetes medication twice a day is unsupported 27 by any of Dr. Sprague’s treatment notes. Thus, distinct from Defendant’s contention that 28 the reviewing court defer to the agency’s determination when evidence is susceptible to 6 15cv0631 AJB (NLS) 1 more than one interpretation, the reviewing court need not accept the ALJ’s unsupported 2 reason for rejecting a treating physician’s opinion. The record does not support chronic or 3 ongoing non-compliance with Plaintiff’s diabetes treatment regime, contrary to the 4 conclusion articulated by the ALJ. Cf. Garcia v. Astrue, No. 12-954, 2012 WL 5342516, 5 at *5 (C.D. Cal. Oct. 29, 2012) (upholding the ALJ’s rejection of treating physician’s 6 opinion when records reflected that plaintiff chronically failed to comply with her 7 prescribed medication plan and the doctor described plaintiff's medication compliance as 8 “poor”, “sporadic”, and “erratic”); Saesee v. Astrue, No. 1:08CV00117, 2010 WL 9 671031, at *20 (E.D. Cal. Feb. 19, 2010) (concluding the ALJ’s interpretation was 10 reasonable because the plaintiff’s compliance with her medications was in doubt on at 11 least three occasions). Accordingly, the instance of non-compliance with Plaintiff’s 12 diabetes treatment is inconsistent with the record and does not amount to a clear and 13 convincing reason to reject Dr. Sprague’s opinion. 14 As a second reason for rejecting Dr. Sprague’s testimony, the ALJ concluded 15 Plaintiff’s reported levels of pain associated with peripheral neuropathy and meralgia 16 paresthetica in his feet was inconsistent with Plaintiff’s ability exercise in accordance 17 with his physician’s recommendation. (Doc. No. 23 at 2.) In the R&R, Judge Stormes 18 concluded that Plaintiff’s attempts to exercise were not inconsistent with Dr. Sprague’s 19 opinions regarding severe pain in his legs and feet. Defendant contends the R&R 20 improperly reassessed the evidence to reach a favorable outcome for Plaintiff. 21 “A claimant’s ability to engage in daily activities that are incompatible with the 22 severity of symptoms described by a treating physician is an appropriate basis upon 23 which to discredit that opinion.” Franz v. Colvin, 91 F. Supp. 3d 1200, 1212 (D. Or. 24 2015). However, a social security claimant may engage in exercise for therapeutic 25 reasons despite pain. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 26 Although the record supports the conclusion that Plaintiff engaged in daily 27 walking, this activity was consistent with prescribed treatment for his diabetes and other 28 health concerns. The activities cited by the ALJ for rejecting Dr. Sprague’s pain reports 7 15cv0631 AJB (NLS) 1 was encouraged and prescribed as part of Plaintiff’s treatment plan. (See Doc. No. 9-9 at 2 173) (“A daily routine of regular physical activity, as appropriate for this patient’s 3 physical condition, was encouraged”); (Id. at 139–140) (“patient was given opportunity 4 … to verbalize an understanding of the importance of regular exercise”); (Id. at 81–82) 5 (“advised to increase in walking during the holiday season” “discussed the role of 6 exercise in diabetes regiment”). 7 The frequency and duration of Plaintiff’s exercise is also consistent with his pain 8 as documented by Dr. Sprague. (See Doc. No. 9-9 at 206.) The record does not suggest 9 Plaintiff engaged in lengthy or strenuous daily activities; instead only walking for 10 exercise as encouraged by his medical providers. Accordingly, Plaintiff’s attempts to 11 comply with the exercise regime suggested by his providers is not a clear and convincing 12 reason to reject Dr. Sprague’s report about Plaintiff’s pain levels. See Albery v. Colvin, 13 No. CV-13-00321, 2014 WL 956135, at *11 (D. Ariz. Mar. 12, 2014) (“Plaintiff’s 14 participation in rehabilitation at the advice of his treating physicians is not inconsistent 15 with his claims of limitations.”); Feliz v. Colvin, No. CV-12-02196, 2014 WL 847137, at 16 *9 (D. Ariz. Mar. 5, 2014) (“Plaintiff’s limited walking on a treadmill, which was 17 consistent with her doctor’s advice that she exercise ‘as tolerated,’ is not inconsistent 18 with her claims of severe abdominal pain.”); Clark v. Colvin, No. C13-791, 2013 WL 19 6189726, at *5 (W.D. Wash. Nov. 26, 2013) (holding that the plaintiff’s swimming and 20 stretching were not inconsistent with her claims of pain and inability to work because 21 health care providers encouraged this exercise). 22 Next, in rejecting Dr. Sprague’s opinion, the ALJ cited the belief that Plaintiff 23 falsely alleged he was drafted into combat during the Vietnam war. As support, the ALJ 24 cited Plaintiff’s testimony about being in the Coast Guard as inconsistent with the 25 assertion Plaintiff witnessed combat and suffered from PTSD. In the R&R, Judge 26 Stormes concluded that there was no factual support to conclude that Dr. Sprague’s 27 reports of Plaintiff’s PTSD and depression were based on false allegations of being 28 drafted into the Vietnam War. Again, Defendant objects to the conclusion set forth in the 8 15cv0631 AJB (NLS) 1 2 R&R, asserting the court reevaluated the evidence presented. Plaintiff’s accounts of PTSD associated with his past military experience is well- 3 documented throughout the record. (See Doc. Nos. 9-8 at 108; 9-9 at 13, 42–45, 167, 169, 4 227.) Regardless of whether Plaintiff engaged in a combat position in Vietnam, a combat 5 position elsewhere, or even a non-combat position altogether is not dispositive of whether 6 an individual can suffer from PTSD. Courts have recognized that non-combat positions 7 may also result in PTSD. See Treadwell v. Astrue, No. 10CV2016, 2012 WL 987302, at 8 *3 (S.D. Cal. Mar. 22, 2012) (“The records show that Plaintiff reported two significant 9 non-combat accidents while in the military that both meet stressor criteria for PTSD.”). 10 Thus, a distinction between whether Plaintiff engaged in combat or worked in a non- 11 combat position during the Vietnam War is not a clear and convincing reason to reject the 12 testimony of Dr. Sprague regarding Plaintiff’s PTSD. 13 Finally, the ALJ rejected Dr. Sprague’s testimony that Plaintiff was disabled 14 because such a finding is reserved for the Commissioner. In the R&R, the court 15 concluded that Dr. Sprague was offering her opinion, as opposed to an administrative 16 decision as to disability, and cited to the court’s prior review of Plaintiff’s claims. In its 17 prior review of the ALJ’s determinations, the court noted that in rejecting Dr. Sprague’s 18 testimony, the ALJ only stated that such a determination was left to the Commissioner, 19 which did not amount to “specific and legitimate reasons” to reject all of Dr. Sprague’s 20 testimony. (Doc. No. 22 at 17.) 21 Defendant argues, again, that a disability determination is reserved for the 22 Commissioner, and treating source opinions are not entitled to controlling weight on the 23 issue of disability. (Doc. No. 23 at 4.) Although Defendant is correct that the ultimate 24 determination of whether a claimant is disabled is left to the Commissioner, this does not 25 change the fact that there must be a clear and convincing reason to reject the treating 26 physician’s opinion. 27 While a treating physician’s determination that a claimant is disabled is not 28 binding on an ALJ, such a conclusion does not entitle the ALJ to reject the physician’s 9 15cv0631 AJB (NLS) 1 conclusions regarding the nature and severity of a claimant’s impairments. See Gallant v. 2 Heckler, 753 F. 2d 1450, 1455 (9th Cir. 1984); Stewart v. Harris, 509 F. Supp. 31, 34 3 (N.D. Cal. 1980). Again, Dr. Sprague’s conclusion regarding whether Plaintiff was “disabled” is 4 5 stated as her opinion and not as a substitute for the agency’s determination. Even if the 6 ALJ properly rejected the conclusion that Plaintiff is “disabled,” that is insufficient 7 reasons to reject the remainder of her opinion regarding Plaintiff’s medical conditions 8 and related symptoms. Considering the record as a whole and Defendant’s objections, Defendant did not 9 10 provide clear and convincing reasons, supported by substantial evidence, to reject Dr. 11 Sprague’s notes and opinions. Evaluation of Plaintiff’s Credibility 12 B. 13 During the proceedings on remand, the ALJ concluded Plaintiff’s assertions were 14 “not totally credible” and articulated several reasons in support of this conclusion, 15 including: (1) Plaintiff’s activities of daily living; (2) Plaintiff’s discontinuance of drug 16 and alcohol treatment; (3) Plaintiff’s failure to follow up for a cardiac catherization; (4) 17 Plaintiff’s reports of alcohol use; (4) Plaintiff’s limitations; and (5) Plaintiff’s 18 impairments and pain. (Doc. No. 9-10 at 15–16.)2 In the R&R, Judge Stormes rejected 19 the proffered challenges to Plaintiff’s credibility, finding each did not constitute a clear 20 and convincing reason to reject Plaintiff’s testimony. (Doc. No. 22 at 19–22.) The ALJ is required to make “a credibility determination with findings sufficiently 21 22 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 23 24 25 26 27 28 The ALJ also cited Plaintiff’s varying testimony regarding military experience as evidence of Plaintiff’s dishonesty. (Doc. No. 9-10 at 16.) For the reasons noted above regarding the ALJ’s evaluation of Dr. Sprague’s testimony about Plaintiff’s PTSD, the Court does not find Plaintiff’s testimony regarding his military experience inconsistent or demonstrative or dishonest. Accordingly, the Court does not find the varying testimony a clear and convincing reason for finding Plaintiff not credible. 2 10 15cv0631 AJB (NLS) 1 claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 2 (quoting Thomas, 278 F.3d at 958). There is a two-step analysis an ALJ employs. First, 3 the claimant must produce objective medical evidence of an underlying impairment or 4 impairments that could reasonably be expected to produce some degree of symptom. Id. 5 Second, if the claimant meets this threshold, and there is no evidence of malingering, the 6 ALJ can reject the testimony only for clear and convincing reasons. Id.; Robbins v. Soc. 7 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). “General findings are insufficient; rather, 8 the ALJ must identify what testimony is not credible and what evidence undermines the 9 claimant’s complaints.” Lester, 81 F.3d at 834. 10 11 1. Assessment of Daily Living Activities In the R&R, Judge Stormes concluded that the fact Plaintiff could conduct 12 activities of daily living was not inconsistent with limitations on his ability to work. (Doc. 13 No. 22 at 20.) Defendant objects, arguing that the R&R merely disagrees with the ALJ’s 14 conclusion. (Doc. No. 23 at 5.) 15 “Daily activities may be grounds for an adverse credibility finding if a claimant is 16 able to spend a substantial part of his day engaged in pursuits involving the performance 17 of physical functions that are transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 18 639 (9th Cir. 2007) (internal quotation marks and citation omitted). The Ninth Circuit has 19 “repeatedly asserted that the mere fact that a plaintiff has carried on certain daily 20 activities, such as grocery shopping, driving a car, or limited walking for exercise, does 21 not in any way detract from [his] credibility as to [his] overall disability.” Vertigan, 260 22 F.3d at 1050; see also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (internal citations 23 omitted) (“The Social Security Act does not require that claimants be utterly 24 incapacitated to be eligible for benefits, and many home activities are not easily 25 transferable to what may be the more grueling environment of the workplace, where it 26 might be impossible to periodically rest or take medication.”). However, “daily activities 27 may be grounds for an adverse credibility finding if a claimant is able to spend a 28 substantial part of his day engaged in pursuits involving the performance of physical 11 15cv0631 AJB (NLS) 1 functions that are transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th 2 Cir. 2007). 3 Here, the ALJ did not explain how Plaintiff’s ability to complete daily activities 4 was inconsistent with any of his medical conditions. (See Doc. No. 9-10 at 15) (simply 5 stating Dr. Sprague reported that Plaintiff was able to perform his activities of daily 6 living). There are no facts to suggest that Plaintiff’s daily activities were inconsistent with 7 his medical conditions or that completion of daily activities would translate to 8 performance in a work environment. Instead, Plaintiff testified that he cannot use his 9 fingers very well and his wife must help him dress. (Doc. No. 9-10 at 75.) Further, he 10 testified that he has to have someone drive him around, he does limited cooking, and 11 virtually no cleaning. (Id. at 81.) An adverse credibility determination can be made in two 12 circumstances. Either the claimant’s activity contradicts his testimony or the claimant’s 13 activity meets the threshold for transferable work skills. Phillips v. Colvin, 61 F. Supp. 3d 14 925, 944 (N.D. Cal. 2014). The ALJ did not provide evidence for either. Further, even 15 though Dr. Sprague noted that Plaintiff could perform his daily activities, she also stated 16 that he would not be able to work in any capacity due to his medical conditions and the 17 side effects of medications used to treat those conditions. (Doc. No. 9-9 at 206.) 18 Considered with Dr. Sprague’s testimony regarding Plaintiff’s limitations and 19 various medical conditions, the fact Plaintiff could complete activities of daily living was 20 not a clear and convincing reason to find Plaintiff was not credible. 21 22 2. Assessment of Alcohol & Drug Treatment Discontinuance In the R&R, Judge Stormes concluded that Plaintiff’s discontinuance of his drug 23 and alcohol rehabilitation in 1997 was not a clear and convincing reason to find Plaintiff 24 not credible. (Doc. No. 22 at 20.) In support, the R&R cited Plaintiff’s later rehabilitation, 25 noting Plaintiff “continued with the rehabilitation and reported to be in remission prior to 26 his date last insured.” (Id.) Defendant again objects that the R&R improperly disagreed 27 with the ALJ’s findings. (Doc. No. 23 at 8.) 28 An unexplained or inadequately explained failure to seek treatment or to follow a 12 15cv0631 AJB (NLS) 1 prescribed course of treatment is a factor that weighs claimant’s credibility. Tommasetti, 2 533 F.3d at 1039. Similarly, the failure to follow a prescribed treatment that would 3 ameliorate an impairment, without good reason, is a valid basis for denying benefits. See 4 20 C.F.R. §§ 404.1530(b), 416.930(b). 5 Although the record establishes that Plaintiff initially discontinued his alcohol and 6 drug treatment regime, Plaintiff testified that his treatment was initially discontinued 7 because he struggled with addiction. (Doc. No. 9-10 at 85.) Plaintiff, however, did return 8 to treatment and ceased using alcohol and drugs. (Id.) Despite his inability to complete 9 group treatment sessions in September and October 1997, Plaintiff was eventually able to 10 continue treatment and has refrained from drug or alcohol use since approximately 11 September 2000. (Doc. No. 9-9 at 168) (noting Plaintiff “reported his last drink of 12 alcohol and use of cocaine was in September 2000” and that Plaintiff “currently remains 13 sober”). Considering the record as a whole, the ALJ’s reliance on Plaintiff’s discontinued 14 treatment in 1997, when followed by eventual completion of alcohol and drug treatment 15 and continued rehabilitation, is not a clear and convincing reason to find Plaintiff not 16 credible. See Bakarich v. Colvin, No. CV-13-02620, 2015 WL 1470103, at *10 (D. Ariz. 17 Mar. 31, 2015) (finding no clear and convincing reasons to reject the plaintiff’s testimony 18 when the ALJ cited to records that were several years old, isolated examples, and failed 19 to address the most recent treatment notes). 20 3. Assessment of Failure to Appear for Cardiac Catherization 21 The R&R concluded the fact that Plaintiff did not show up for a cardiac 22 catherization was not a clear and convincing reason to find Plaintiff was not credible. 23 (Doc. No. 22 at 21.) Defendant contends that the R&R did not cite to any authority to 24 explain why the ALJ’s consideration of the medical note regarding cardiac catherization 25 was erroneous. (Doc. No. 23 at 6.) 26 An individual’s statements “may be less credible if the level or frequency of 27 treatment is inconsistent with the level of complaints, or if the medical reports or records 28 show that the individual is not following the treatment as prescribed and there are no 13 15cv0631 AJB (NLS) 1 good reasons for this failure.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). 2 “Moreover, a claimant’s failure to assert a good reason for not seeking treatment, ‘or a 3 finding by the ALJ that the proffered reason is not believable, can cast doubt on the 4 sincerity of the claimant's pain testimony.’” Id. at 1114 (citing Fair, 885 F.2d at 603). 5 The ALJ did not note whether the cardiac catherization was a prescribed course of 6 treatment or a suggested diagnostic test. Additionally, it is unclear how the failure to 7 appear for a cardiac catherization relates to Plaintiff’s other medical conditions and 8 reports of pain unrelated to a cardiac ailment. Accordingly, one instance where Plaintiff 9 failed to appear for a test, without any indication of whether that test was prescribed as a 10 course of treatment, or otherwise necessary to Plaintiff’s treatment, is not a clear and 11 convincing reason to find Plaintiff not credible. 12 13 4. ALJ’s Assessment of Progress Notes The R&R found the ALJ’s conclusion that Plaintiff was not forthcoming 14 regarding his history of alcohol abuse was not a clear and convincing reason to find 15 Plaintiff not credible. (Doc. No. 22 at 21.) Defendant objects, asserting that the R&R 16 second-guessed the ALJ’s analysis and speculated about what Plaintiff conveyed to his 17 physicians. (Doc. No. 21 at 8.) 18 Inconsistent or conflicting testimony about alcohol use can contribute to an adverse 19 credibility finding. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006). 20 “[H]owever, a finding of just a single line of inconsistent testimony alone cannot be 21 enough without further corroboration or explanation.” Id. 22 Upon review of the record, there is no evidence to suggest that Plaintiff was not 23 forthcoming regarding his history of alcohol use. The record is replete with references of 24 Plaintiff’s prior alcohol dependence, instances of relapse, and Plaintiff’s continued 25 sobriety. The one instance cited by the ALJ as inconsistent and demonstrative of Plaintiff 26 not fully disclosing his alcohol dependence is not a clear and convincing reason for 27 finding Plaintiff not credible. See Norris v. Colvin, 160 F. Supp. 3d 1251 (E.D. Wash. 28 2016) (“Although the ALJ’s opinion does note one inconsistent statement concerning 14 15cv0631 AJB (NLS) 1 alcohol use, the Court finds that the ALJ did not provide sufficiently ‘clear and 2 convincing’ evidence to support a negative credibility finding based on these purportedly 3 inconsistent statements.”) (internal citation omitted). Accordingly, the Court finds the 4 ALJ’s conclusion that Plaintiff was not forthcoming regarding his alcohol dependence 5 unsupported by the record, and therefore not a clear and convincing reason to find 6 Plaintiff not credible. 7 5. Assessment of Plaintiff’s Limitations 8 The R&R concluded that Dr. Sprague’s opinion supported a finding that Plaintiff’s 9 ailments met or equaled a listing, contrary to the finding of the ALJ. (Doc. No. 22 at 22.) 10 Defendant objects, the R&R did not find error in the ALJ’s conclusions in this regard. 11 (Doc. No. 22 at 21–22.) 12 The claimant has the burden of producing medical evidence that establishes all of 13 the requisite medical findings for a listed impairment. Burch v. Barnhart, 400 F.3d 676, 14 683 (9th Cir. 2005); Bowen v. Yuckert, 482 U.S. 137, 146 (1987). If the claimant’s 15 condition meets or equals one in the Listing of Impairments, the claimant is presumed 16 conclusively to be disabled. “Medical equivalence will be found ‘if the medical findings 17 are at least equal in severity and duration to the listed findings’” and is “determined on 18 the basis of a comparison between the ‘symptoms, signs and laboratory findings’ about 19 the claimant's impairment as evidenced by the medical records ‘with the medical criteria 20 shown with the listed impairment.’” Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 21 1990) (quoting 20 C.F.R. § 404.1526). In evaluating whether a claimant equals a listed 22 impairment, “the ALJ must explain adequately his evaluation of alternative tests and the 23 combined effects of the impairments.” Id. 24 The record demonstrates that Dr. Sprague described Plaintiff as having a “marked 25 limitation in concentration due to pain and fatigue” as well as “marked impairment in his 26 social functioning.” (Doc. No. 9-9 at 206.) To the extent the ALJ rejected Dr. Sprague’s 27 conclusion that Plaintiff had a marked impairment, that argument is rejected for the 28 reasons set forth above. Accordingly, finding the ALJ’s conclusion not supported by the 15 15cv0631 AJB (NLS) 1 record, specifically, the report of Dr. Sprague, this does not constitute a clear and 2 convincing reason to find Plaintiff not credible. 3 4 6. Assessment of Plaintiff’s Impairments and Pain The R&R held the ALJ improperly discredited Plaintiff’s reports of impairments 5 and related pain. (Doc. No. 22 at 22.) Defendant objects, asserting that the lack of 6 objective evidence considered together with the ALJ’s other credibility determinations is 7 sufficient evidence upon which to discredit Plaintiff. (Doc. No. 23 at 6.) 8 9 In evaluating the credibility of pain testimony after a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s 10 subjective complaints based solely on a lack of medical evidence to fully corroborate the 11 alleged severity of pain. See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). 12 Unless there is affirmative evidence showing that the claimant is malingering, the ALJ’s 13 reasons for rejecting pain testimony must be clear and convincing. See Lester, 81 F.3d at 14 834. The ALJ must specify what testimony is not credible and identify the evidence that 15 undermines the claimant’s complaints—“[g]eneral findings are insufficient.” Reddick v. 16 Chater, 157 F.3d 715, 722 (9th Cir. 1998) (internal quotation marks omitted). 17 In disregarding the Plaintiff’s testimony regarding his pain, the ALJ simply noted, 18 “the objective evidence if the claimant’s medical record, during the period at issue, does 19 not establish impairments likely to produce disabling pain or other limitations as 20 alleged[.]” (Doc. No. 9-10 at 16.) The ALJ does not cite to any particular portion of the 21 record as undermining Plaintiff’s testimony regarding pain or impairments. The ALJ also 22 did not express through clear and convincing reasons why the Plaintiff’s testimony and 23 the medical record did not establish disabling pain or other limitations. General assertions 24 that the claimant’s testimony is not credible are insufficient. Wilson v. Astrue, 752 F. 25 Supp. 2d 1146, 1158 (D. Or. 2010); see also Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 26 2007) (noting the ALJ must specifically identify “what testimony is not credible and what 27 evidence undermines the claimant’s complaints”). Accordingly, the ALJ’s general 28 finding that Plaintiff was not credible for lack of objective medical evidence is 16 15cv0631 AJB (NLS) 1 insufficient to warrant finding Plaintiff not credible. Consistent with Ninth Circuit precedent, because the ALJ’s reasons for discounting 2 3 Plaintiff’s testimony are not supported by substantial evidence and thus do not meet the 4 clear and convincing standard when considering the record in its entirety, the Court 5 concludes the ALJ erred in discrediting Plaintiff’s testimony. See Burrell v. Colvin, 775 6 F.3d 1133, 1140 (9th Cir. 2014). Accordingly, Defendant’s objections to the R&R’s 7 findings regarding the ALJ’s credibility determinations are overruled.3 8 C. 9 The R&R concluded that this matter should be remanded to the Social Security Remand for Payment 10 Administration for an award of benefits to Plaintiff, finding further administrative 11 proceedings unnecessary. (Doc. No. 22 at 22.) Defendant argues that remand for payment 12 is highly inappropriate because the R&R did not establish that Plaintiff is “disabled” or 13 that the record was complete. (Doc No. 23 at 7.) 14 A court has discretion to remand for further proceedings or remand for payment of 15 benefits. Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir. 2000). “Remand for further 16 administrative proceedings is appropriate if enhancement of the record would be useful.” 17 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Conversely, where the record 18 has been developed fully and further administrative proceedings would serve no useful 19 purpose, the district court should remand for an immediate award of benefits. See Smolen 20 v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); Varney v. Secretary of Health and Human 21 Services, 859 F.2d 1396, 1399 (9th Cir. 1988). More specifically, the district court should 22 credit evidence that was rejected during the administrative process and remand for an 23 immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for 24 25 26 27 28 In finding the Plaintiff not credible, the ALJ also cited Plaintiff’s failure to follow his diabetes treatment regime and that Plaintiff’s exercise habits were inconsistent with his reported pain levels. However, for the reasons set forth above regarding the ALJ’s assessment of Dr. Sprague’s reports, the Court finds these are also not clear and convincing reasons to find Plaintiff not credible. 3 17 15cv0631 AJB (NLS) 1 rejecting the evidence; (2) there are no outstanding issues that must be resolved before a 2 determination of disability can be made; and (3) it is clear from the record that the ALJ 3 would be required to find the claimant disabled were such evidence credited. Harman, 4 211 F.3d at 1178; see also McCartey v. Massanari, 298 F.3d 1072, 1076–77 (9th Cir. 5 2002). 6 Upon review of the record and for the reasons set forth above, remand for an 7 immediate award of benefits is appropriate. If the discredited testimony were considered, 8 it is clear the ALJ would find Plaintiff disabled. Additionally, the record is fully 9 developed and no outstanding issues remain that would require further proceedings. 10 Under such circumstances, remand for award of benefits in lieu of further administrative 11 proceedings is appropriate. See Mendoza v. Colvin, 2015 WL 6437337, at *2 (9th Cir. 12 Oct. 23, 2015) (remanding for award of benefits where ALJ failed to provide legally 13 sufficient reason for rejecting medical opinion, as well as the plaintiff’s testimony); 14 Martinez v. Colvin, 585 Fed. Appx. 612, 613 (9th Cir. 2014) (“if Martinez’s testimony 15 and Dr. Novak’s opinion were properly credited, Martinez would be considered disabled. 16 We therefore reverse the decision of the district court and remand with instructions to 17 remand to the ALJ for the calculation and award of benefits”); Moore v. Comm’r of Soc. 18 Sec. Admin., 278 F.3d 920, 925 (9th Cir. 2002) (remanding for payment of benefits where 19 the ALJ improperly rejected the testimony of the plaintiff's examining physicians); 20 Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir. 1994) (awarding benefits where the 21 ALJ “improperly discounted the opinion of the treating physician”). Thus, Defendant’s 22 objection to remand for immediate award of benefits is overruled. 23 /// 24 25 /// 26 27 /// 28 18 15cv0631 AJB (NLS) 1 2 CONCLUSION For reasons set forth above, the Court hereby ADOPTS the R&R, (Doc. No. 22), 3 OVERRULES Defendant’s objections, (Doc. No. 23), DENIES Defendant’s cross- 4 motion for summary judgment, (Doc. No. 20), and GRANTS Plaintiff’s motion for 5 summary judgment, (Doc. No. 16.) This matter is REMANDED to the Social Security 6 Commission for calculation and issuance of disability benefits. 7 8 IT IS SO ORDERED. 9 10 Dated: August 29, 2016 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 15cv0631 AJB (NLS)

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