Bridges v. Colvin, No. 1:2015cv03160 - Document 23 (E.D. Wash. 2016)

Court Description: ORDER Granting Plaintiff's 16 Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Bridges v. Colvin Doc. 23 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Sep 19, 2016 2 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 7 8 JEFFREY BRIDGES, Plaintiff, 11 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. 9 10 No. 1:15-CV-03160-JTR CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 13 14 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 15 No. 16, 17. Attorney D. James Tree represents Jeff Bridges (Plaintiff); Special 16 Assistant United States Attorney L. Jamala Edwards represents the Commissioner 17 of Social Security (Defendant). The parties have consented to proceed before a 18 magistrate judge. ECF No. 22. After reviewing the administrative record and 19 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 20 Summary Judgment; DENIES Defendants’ Motion for Summary Judgment; and 21 REMANDS the matter to the Commissioner for additional proceedings pursuant to 22 42 U.S.C. § 405(g). 23 JURISDICTION 24 Plaintiff filed applications for Supplemental Security Income (SSI) and 25 Disability Insurance Benefits (DIB) on February 27, 2013, alleging disability since 26 May 10, 2012, due to type 1 diabetes, seizure disorder, kidney issues, depression, 27 anxiety, and high blood pressure. Tr. 209-221, 233, 236. The applications were 28 denied initially and upon reconsideration. Tr. 123-135, 137-154. Administrative ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 Law Judge (ALJ) Stephanie Martz held a hearing on July 23, 2014, and heard 2 testimony from Plaintiff and vocational expert Trevor Duncan. Tr. 31-67. The 3 ALJ issued an unfavorable decision on August 5, 2014. Tr. 15-25. The Appeals 4 Council denied review on July 8, 2015. Tr. 1-6. The ALJ’s August 5, 2014, 5 decision became the final decision of the Commissioner, which is appealable to the 6 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 7 review on September 8, 2015. ECF No. 1, 3. STATEMENT OF FACTS 8 The facts of the case are set forth in the administrative hearing transcript, the 9 10 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 11 here. 12 Plaintiff was 39 years old at the alleged date of onset. Tr. 209. Plaintiff 13 completed his GED in 2004. Tr. 237. His work history includes the jobs of 14 banquet server, convenience store clerk, dishwasher, seafood worker at a deli, host, 15 and server. Tr. 38-39, 237. Plaintiff reported he stopped working as of May 10, 16 2012, because of his condition. Tr. 237. 17 18 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 19 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 20 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 21 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 22 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 23 not supported by substantial evidence or if it is based on legal error. Tackett v. 24 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 25 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 26 another way, substantial evidence is such relevant evidence as a reasonable mind 27 might accept as adequate to support a conclusion. Richardson v. Perales, 402 28 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 interpretation, the court may not substitute its judgment for that of the ALJ. 2 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 3 evidence will be set aside if the proper legal standards were not applied in 4 weighing the evidence and making the decision. Brawner v. Secretary of Health 5 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 6 supports the administrative findings, or if conflicting evidence supports a finding 7 of either disability or non-disability, the ALJ’s determination is conclusive. 8 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 9 10 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 11 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 12 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 13 through four, the burden of proof rests upon the claimant to establish a prima facie 14 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 15 burden is met once the claimant establishes that physical or mental impairments 16 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 17 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, 18 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 19 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 20 exist in the national economy which the claimant can perform. Batson v. Comm’r 21 of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If the claimant cannot 22 make an adjustment to other work in the national economy, a finding of “disabled” 23 is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 24 ADMINISTRATIVE DECISION 25 On August 5, 2014, the ALJ issued a decision finding Plaintiff was not 26 27 28 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since May 10, 2012, the alleged onset date. Tr. 17. ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 At step two, the ALJ determined Plaintiff had the following severe 2 impairments: diabetes with nephritis and nephropathy, depression, anxiety 3 disorder, and personality disorder. Tr. 17. 4 At step three, the ALJ found Plaintiff did not have an impairment or 5 combination of impairments that met or medically equaled the severity of one of 6 the listed impairments. Tr. 18. 7 8 9 10 11 12 13 14 15 16 17 At step four, the ALJ assessed Plaintiff’s residual function capacity as follow: [T]he claimant has the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently. The claimant can sit for about six hours and stand and/or walk about six hours in an eighthour day with regular breaks. He has unlimited ability to push/pull within these exertional limits. The claimant has unlimited ability to climb ramps and stairs but never climb ladders, ropes, or scaffolds. He has unlimited ability to balance, stoop, kneel, crouch, and crawl. He should avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards. He can understand, remember and carry out simple, routine tasks with superficial contact with coworkers, supervisors and the general public. 18 Tr. 20. The ALJ identified Plaintiff’s past relevant work as banquet server, host, 19 and waiter and concluded that Plaintiff was not able to perform his past relevant 20 work. Tr. 24. 21 At step five, the ALJ determined that, considering Plaintiff’s age, education, 22 work experience and residual functional capacity, and based on the testimony of 23 the vocational expert, there were other jobs that exist in significant numbers in the 24 national economy Plaintiff could perform, including the jobs of production 25 assembler, “cleaner, housekeeper,” and hand packager. Tr. 25. The ALJ 26 concluded Plaintiff was not under a disability within the meaning of the Social 27 Security Act at any time from the alleged onset date, May 10, 2012, through the 28 ALJ’s decision, August 5, 2014. Id. ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 ISSUES The question presented is whether substantial evidence supports the ALJ’s 2 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff contends the ALJ erred by (1) failing to properly consider 5 Plaintiff’s testimony about the severity of his symptoms, and (2) failing to properly 6 weigh the opinion of Jeremiah Crank, M.D. Additionally, briefing from both 7 parties address the issue of whether S.S.R. 14-1p should be applied in this case. DISCUSSION 8 9 10 11 A. Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ECF No. 16 at 13-19. 12 It is generally the province of the ALJ to make credibility determinations, 13 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 14 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 15 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 16 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 17 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 18 “General findings are insufficient: rather the ALJ must identify what testimony is 19 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 20 F.3d at 834. 21 The ALJ found Plaintiff less than fully credible concerning the intensity, 22 persistence, and limiting effects of his symptoms. Tr. 20. The ALJ reasoned that 23 Plaintiff was less than fully credible because (1) his symptom reports were 24 inconsistent with the medical evidence, (2) his symptom reports were inconsistent 25 with his daily activities, and (3) he held himself out as ready, willing, and able to 26 work by receiving unemployment benefits. Tr. 21-22. 27 1. Inconsistent with Medical Evidence 28 In her decision, the ALJ found that Plaintiff’s symptom statements were ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 inconsistent with the medical evidence stating that Plaintiff had not developed 2 retinopathy or neuropathy complications, that Plaintiff’s only diabetic 3 hospitalization was when he was taking drugs, that his blood sugars ran high rather 4 than low, and that the longitudinal evidence showed Plaintiff’s mood and affect 5 had generally been stable despite minimal mental health treatment. Tr. 21. 6 Plaintiff only challenges the ALJ’s reliance on the lack of retinopathy or 7 neuropathy complications. ECF No. 16 at 14. 8 This reason for finding Plaintiff less than fully credible is not legally 9 sufficient. While it cannot serve as the sole reason for rejecting a claimant’s 10 credibility, objective medical evidence is a “relevant factor in determining the 11 severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 12 F.3d 853, 857 (9th Cir. 2001). Therefore, Plaintiff’s failure to challenge all the 13 evidence supporting this reason is insufficient on its own to disturb the ALJ’s 14 determination. Plaintiff did challenge the lack of retinopathy and neuropathy as 15 evidence of a lack of severity. ECF No. 16 at 14. As discussed below, retinopathy 16 and neuropathy are only two of several potential complications of diabetes. See 20 17 C.F.R. Part 404, Subpart P, App. 1 § 9.00. Plaintiff did not allege retinopathy or 18 neuropathy as impairments preventing work. Tr. 46, 236. The ALJ relied on only 19 two out of several possible complications of diabetes as an indicator of severity, 20 and substituted her medical judgement for a doctor’s, which is impermissible. See 21 Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990). Therefore, this falls short 22 of the specific, clear and convincing standard. 23 2. 24 The ALJ’s second reason for finding Plaintiff less than fully credible, that 25 Plaintiff’s activities cast doubt on his alleged limitations, is not a specific, clear, 26 and convincing reason to undermine Plaintiff’s credibility. 27 28 Daily Activities A claimant’s daily activities may support an adverse credibility finding if (1) the claimant’s activities contradict his other testimony, or (2) “the claimant is able ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 to spend a substantial part of his day engaged in pursuits involving performance of 2 physical functions that are transferable to a work setting.” Orn v. Astrue, 495 F.3d 3 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 4 “The ALJ must make ‘specific findings relating to [the daily] activities’ and their 5 transferability to conclude that a claimant’s daily activities warrant an adverse 6 credibility determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th 7 Cir. 2005)). A claimant need not be “utterly incapacitated” to be eligible for 8 benefits. Fair, 885 F.2d at 603. 9 Here, the ALJ found that Plaintiff’s activities of exercising regularly, going 10 fishing by himself, volunteering, and attending a weekly Wiccan group was 11 inconsistent with his reported limitations. Tr. 22. However, it is unclear how these 12 activities were inconsistent with the testimony the ALJ summarized earlier in the 13 opinion. Tr. 20. The ALJ did not address how these activities were inconsistent 14 with Plaintiff’s reported difficulties controlling his blood sugar levels, the number 15 of people these activities involved as inconsistent with Plaintiff’s discomfort 16 around people, or the rate at which Plaintiff was involved with these activities as 17 inconsistent with his reported fatigue. Therefore, this reason fails to meet the 18 specific, clear and convincing standard. 19 3. Unemployment Benefits 20 The ALJ’s third reason for rejecting Plaintiff’s credibility, that Plaintiff held 21 himself out as ready, willing, and able to work, by receiving unemployment 22 benefits, is not legally sufficient. The receipt of unemployment benefits can affect 23 a person’s claim for social security benefits, however, there must be evidence to 24 support that the claimant held himself out as ready, willing, and able to work full- 25 time. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161-1162 (9th Cir. 26 2008); see also Wash. Rev. Code § 50.20.119 (setting forth part-time work 27 exception for unemployment benefits). Here, there is no evidence whether 28 Plaintiff held himself out as available for part-time or fulltime work. See Tr. 53- ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 55. Therefore, this reason fails to meet the specific, clear and convincing standard. Even though Plaintiff’s briefing failed to address all the reasons the ALJ 2 3 provided for rejecting his symptom statements, the errors addressed above are 4 sufficient to justify that the case be remanded for the ALJ to make a new 5 determination in accord with S.S.R. 16-3p. 6 B. Plaintiff challenges the weight given to Dr. Crank’s opinion. ECF No. 16 at 7 8 Jeremiah Crank, M.D. 7-12. 9 In weighing medical source opinions, the ALJ should distinguish between 10 three different types of physicians: (1) treating physicians, who actually treat the 11 claimant; (2) examining physicians, who examine but do not treat the claimant; 12 and, (3) nonexamining physicians who neither treat nor examine the claimant. 13 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 14 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at, 15 631. Likewise, the ALJ should give more weight to the opinion of an examining 16 physician than to the opinion of a nonexamining physician. Id. 17 When a treating physician’s opinion is not contradicted by another 18 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 19 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 20 physician’s opinion is contradicted by another physician, the ALJ is only required 21 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 22 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 23 physician’s opinion is not contradicted by another physician, the ALJ may reject 24 the opinion only for “clear and convincing” reasons, and when an examining 25 physician’s opinion is contradicted by another physician, the ALJ is only required 26 to provide “specific and legitimate reasons” for rejecting the opinion. Lester, 81 27 F.2d at 830-831. 28 The specific and legitimate standard can be met by the ALJ setting out a ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 detailed and thorough summary of the facts and conflicting clinical evidence, 2 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 3 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 4 conclusions, she “must set forth [her] interpretations and explain why they, rather 5 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 6 1988). 7 Dr. Crank examined Plaintiff on February 12, 2013, and completed a 8 Physical Functional Evaluation form for the Washington State Department of 9 Social and Health Services. Tr. 412-420. Dr. Crank stated that Plaintiff’s chief 10 complaints and reported symptoms were diabetes with multiple hospitalizations 11 due to diabetic ketoacidosis (2-3 episodes of diabetic ketoacidosis per year for ten 12 years), arrhythmias in the hospital, intensive care unit stays, and that the hospitalist 13 recommended a nuclear stress test. Tr. 412. He diagnosed Plaintiff with labile, 14 uncontrolled diabetes with frequent hypoglycemic episodes and occasional 15 hypoglycemic induced seizures which can occur unpredictably. Tr. 413. Dr. 16 Crank opined that Plaintiff was severely limited due to the inability to predict 17 hypoglycemic episodes and seizures. Tr. 414. Severely limited is defined as 18 “[u]nable to meet the demands of sedentary work.” Id. Dr. Crank stated that he 19 estimated the severe limitation would persist with available treatment for twelve 20 months. Id. 21 The ALJ gave this opinion, “little weight” because it was not well supported, 22 finding that (1) Plaintiff had not developed peripheral neuropathy, (2) he was still 23 able to exercise regularly and go fishing, (3) Plaintiff would be able to care for his 24 condition during regular breaks, (4) Plaintiff’s statements to Dr. Crank regarding 25 the frequency of his hospitalizations was unsupported by the record, and (5) Dr. 26 Crank’s finding of frequent hypoglycemic episodes was also unsupported by the 27 record. Tr. 23. Plaintiff alleges that the clear and convincing standard applies as 28 Dr. Crank’s opinion is uncontradicted. ECF No. 16 at 10. ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 The ALJ’s first reason for rejecting Dr. Crank’s opinion, that Plaintiff had 2 not developed peripheral neuropathy, is not legally sufficient. Plaintiff did not 3 allege that neuropathy was an impairment that limited his ability to work at 4 application or at the hearing. Tr. 46, 236. In her decision, the ALJ implied that 5 Plaintiff’s diabetes could not be as severe as he alleged because there was no 6 evidence of neuropathy. Tr. 21, 23. However, neuropathy is not the only 7 complication stemming from diabetes. Listing 9.00 Endocrine Disorders addresses 8 diabetes and its complications including (1) diabetic ketoacidosis, which can result 9 in cardiac arrhythmias, cerebral edema, and seizures, (2) chronic hyperglycemia, 10 which can lead to peripheral neurovascular disease, diabetic retinopathy, coronary 11 arty disease, peripheral vascular disease, diabetic gastroparesis, diabetic 12 nephropathy, poorly healing bacterial and fungal skin infections, cognitive 13 impairments, depression, anxiety, and diabetic peripheral and sensory 14 neuropathies, and (3) hypoglycemia, which can result in seizures, loss of 15 consciousness, altered mental status, and cognitive deficits. See 20 C.F.R. Part 16 404, Subpart P, App. 1 § 9.00. By the ALJ relying on a single complication of 17 diabetes as an indicator of severity, she was substituting her medical judgement for 18 a doctor’s, which is impermissible. See Schmidt, 914 F.2d at 118. Therefore, this 19 reason falls short of either the clear and convincing or the specific and legitimate 20 standards. 21 The ALJ’s second reason for rejecting Dr. Crank’s opinion, that he was still 22 able to exercise regularly and go fishing, is also not legally sufficient. A 23 claimant’s testimony about his daily activities may be seen as inconsistent with the 24 presence of a disabling condition. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th 25 Cir. 1990). In May of 2013, Plaintiff reported to Kirk D. Strosahl, Ph.D., that he 26 was exercising regularly and going fishing by himself on regular occasions. Tr. 27 604. In July of 2013, Plaintiff reported to Michael Aquilino, MHC, that he spent 28 his time walking the dog and fishing. Tr. 595. In January of 2014, Plaintiff ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 reported to Vicente Lopez, M.Ed., that he was leaving his house to exercise. Tr. 2 671. At the hearing, Plaintiff reported that he tried to exercise by going for walks 3 and he liked to go fishing at local lakes. Tr. 49. The ALJ found that going for 4 walks and going fishing was inconsistent with Dr. Crank’s opinion. Tr. 23. 5 However, she did not state how these activities were inconsistent with Dr. Crank’s 6 finding that Plaintiff was unable to meet the demands of sedentary work due to an 7 inability to predict hypoglycemic episodes and seizures. See Tr. 414. The ALJ is 8 required to do more than offer her conclusions, she “must set forth [her] 9 interpretations and explain why they, rather than the doctors’, are correct.” 10 Embrey, 849 F.2d at 421-422. Therefore, this reason fails to meet the lessor 11 standard of specific and legitimate. 12 The ALJ’s third reason for rejecting Dr. Crank’s opinion, that Plaintiff 13 would be able to take care of his condition during regular breaks, is not legally 14 sufficient. Again, a claimant’s testimony about his daily activities may be seen as 15 inconsistent with the presence of a disabling condition. See Curry, 925 F.2d at 16 1130. At the hearing, Plaintiff testified that his current testing regimen was as 17 follows: 18 19 20 21 22 23 I’ll test in the morning about 8:00, 9:00. I’ll take my insulin and my pills and all that, and I will eat. And then, about 11:00, noon, like that, I’ll do the same thing, I’ll test and do my pills and my insulin-dependent and all that, eat. And then I’ll -- dinner’s like about 5:00, 6:00, and that’s when I’ll do my pills and my insulin again. And then, before I go to bed, like before, like, 10:00, 11:00, I’ll test again. And then I’ll, like, at 2:00 I’ll test again. 24 Tr. 59. However, Dr. Crank’s opinion was not that Plaintiff’s testing regimen and 25 fatigue precluded work, but that Plaintiff’s unpredictable hypoglycemic episodes 26 and seizures precluded work. See Tr. 414. The ALJ actually found Plaintiff 27 compliant with his medications, but that these episodes would occur regardless of 28 treatment. Tr. 414, 418. Therefore, the ALJ failed to assert how Plaintiff’s ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 testimony was inconsistent with Dr. Crank’s opinion, which means this reason falls 2 short of the specific and legitimate standard. See Embrey, 849 F.2d at 421-422. 3 The ALJ’s forth reason for rejecting Dr. Crank’s opinion was that Plaintiff’s 4 statements to Dr. Crank regarding the frequency of his hospitalizations is 5 unsupported by the record. The ALJ may reject a medical opinion that is 6 inadequately supported by clinical findings, Thomas v. Barnhart, 278 F.3d 947, 7 957 (9th Cir. 2002), and she may reject an opinion that it relies heavily on a 8 claimant’s unreliable self-report, Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 9 2014). Plaintiff reported to Dr. Crank that he had required multiple 10 hospitalizations due to diabetic ketoacidosis at the rate of two to three times per 11 year for the last ten years. Tr. 412. However, the record only contained a single 12 hospitalization for diabetic ketoacidosis on December 28, 2013. Tr. 322-329. 13 Plaintiff reported to social security that he was seen “several” times at the 14 emergency room at Yakima Regional Medical Center in 2011 and 2012 for 15 seizures and diabetes and that these records were not gathered. Tr. 241-242. The 16 Case Development Sheet in the file shows that agency employees requested 17 records from Yakima Regional on March 19, 2013. Tr. 464. The request was for 18 all records from May of 2012 to March 19, 2013. Id. The request was returned to 19 the state agency on March 21, 2013, stating there were no medical records for the 20 requested time period. Tr. 464, 466-470. Considering the case is being remanded 21 for additional proceedings to address Plaintiff’s symptom statements, should 22 Plaintiff’s historical rate of hospitalization be a reason to support any of the ALJ’s 23 determinations, the outstanding records must be gathered and made a part of the 24 file before the evidence, or lack thereof, can be relied upon. 25 The ALJ’s fifth reason for rejecting Dr. Crank’s opinion, that Dr. Crank’s 26 finding of frequent, work-preclusive hypoglycemic episodes is also unsupported by 27 the record, is legally sufficient. Inconsistency with the majority of objective 28 evidence is a specific and legitimate reason for rejecting physician’s opinions. ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 Batson, 359 F.3d at 1195; see also Lester, 81 F.3d at 831 (the ALJ may give 2 weight to consulting opinions “only insofar as they are supported by evidence in 3 the case record.”). Dr. Crank stated that Plaintiff was unable to meet the demands 4 of sedentary work due to the inability to predict hypoglycemic episodes and 5 seizures and that this would last twelve months with available medical treatment. 6 Tr. 414. The record does not show a single seizure resulting from hypoglycemia. 7 The Court recognizes that in January of 2013, Plaintiff reported to Jhoe Dumlao, 8 M.D., that he experienced dizziness from hypoglycemia five times a week, but 9 described the hypoglycemic episodes as mild. Tr. 433. By March of 2013, 10 Plaintiff reported only two hypoglycemic episodes a week to Dr. Dumlao, but 11 again described them as mild. Tr. 519. The evidence failed to show how these 12 mild episodes would preclude work. Dr. Crank’s opinion of unpredictable 13 hypoglycemic episodes and seizures preventing work is not supported by the 14 record. Therefore, this meets the clear and convincing standard. Considering the case is being remanded for the ALJ to address Plaintiff’s 15 16 symptom statements, three of the ALJ’s reasons for rejecting Dr. Crank, and 17 evidence is missing supporting a fourth reason the ALJ provided for rejecting the 18 opinion, Dr. Crank’s opinion is to be readdressed on remand. 19 C. 20 S.S.R. 14-1p Plaintiff challenges the ALJ’s refusal to apply S.S.R. 14-1p to Plaintiff’s 21 fatigue. ECF No. 16 at 14-15; ECF No. 19 at 2-3. The ALJ stated “[t]he 22 claimant’s representative argued that the claimant’s fatigue should be evaluated 23 under SSR 14-1p. However, the claimant has never been diagnosed with chronic 24 fatigue syndrome by an acceptable medical source and therefore the provisions of 25 SSR 14-1p do not apply.” Tr. 21. While all the parties discuss the ALJ’s refusal to 26 apply S.S.R. 14-1p as part of the credibility determination, the Court views it as a 27 separate issue. While the ALJ addressed it in the context of his credibility 28 determination, it does not appear to be a reason the ALJ rejects Plaintiff’s ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 credibility. 2 Social Security issued S.S.R. 14-1p to provide guidance on how to develop 3 evidence to establish that a claimant has a medically determinable impairment of 4 chronic fatigue syndrome and how the agency will evaluate chronic fatigue 5 syndrome in disability claims. See S.S.R. 14-1p. This S.S.R. specifically applies 6 to the impairment of chronic fatigue syndrome. Id. While Plaintiff’s counsel was 7 free to request the ALJ consider Plaintiff’s fatigue in an analogous way to that set 8 forth in the ruling, the ALJ did not error by finding that the S.S.R. was not 9 applicable where the condition was not an issue in the case. That being said, the 10 ALJ must form the residual functional determination considering symptoms from 11 all of Plaintiff’s impairments. See S.S.R. 96-8p. Upon remand, if the ALJ finds 12 Plaintiff’s reported symptoms of fatigue as consistent with the overall record, those 13 symptoms would need to be associated into the residual functional determination. 14 See S.S.R. 16-3p. 15 REMEDY 16 The decision whether to remand for further proceedings or reverse and 17 award benefits is within the discretion of the district court. McAllister v. Sullivan, 18 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 19 where “no useful purpose would be served by further administrative proceedings, 20 or where the record has been thoroughly developed,” Varney v. Secretary of Health 21 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 22 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 23 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 24 (noting that a district court may abuse its discretion not to remand for benefits 25 when all of these conditions are met). This policy is based on the “need to 26 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 27 outstanding issues that must be resolved before a determination can be made, and it 28 is not clear from the record that the ALJ would be required to find a claimant ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 disabled if all the evidence were properly evaluated, remand is appropriate. See 2 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 3 F.3d 1172, 1179-80 (9th Cir. 2000). 4 In this case, it is not clear from the record that the ALJ would be required to 5 find Plaintiff disabled if all the evidence were properly evaluated. Further 6 proceedings are necessary for the ALJ to determine Plaintiff’s credibility regarding 7 his symptom reporting, address Dr. Crank’s opinion, and make a new residual 8 functional capacity determination considering all Plaintiff’s impairments. 9 Additionally, the ALJ will take testimony from a medical expert and vocational 10 expert upon remand. CONCLUSION 11 12 Accordingly, IT IS ORDERED: 13 1. 14 15 Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, GRANTED, 16 in part, and the matter is REMANDED to the Commissioner for additional 17 proceedings consistent with this Order. 18 3. Application for attorney fees may be filed by separate motion. 19 The District Court Executive is directed to file this Order and provide a copy 20 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 21 and the file shall be CLOSED. 22 DATED September 19, 2016. 23 24 25 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 15

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