Margaret A Downey v. Michael J Astrue, No. 2:2011cv02378 - Document 20 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym: (see document image for further details). 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. (ad)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARGARET A. DOWNEY, 12 13 14 Plaintiff, v. MICHAEL J. ASTRUE, 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-02378-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On March 21, 2011, plaintiff Margaret A. Downey filed a complaint against 22 defendant Michael J. Astrue, seeking a review of a denial of disability insurance 23 benefits ( DIB ). Both plaintiff and defendant have consented to proceed for all 24 purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). 25 The court deems the matter suitable for adjudication without oral argument. 26 Plaintiff presents two disputed issues for decision: (1) whether the 27 Administrative Law Judge ( ALJ ) properly considered the opinions of a treating 28 1 1 physician and two consultative examiners; and (2) whether the ALJ properly 2 considered plaintiff s credibility. Plaintiff s Notice of Motion and Motion for 3 Summary Judgment or Remand ( Pl. Mem. ) at 8-13. 4 Having carefully studied, inter alia, the parties s moving papers, the 5 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 6 that, as detailed herein, the ALJ improperly rejected the opinions of plaintiff s 7 treating physician and two consultative examiners without providing specific and 8 legitimate reasons supported by substantial evidence for doing so. The ALJ also 9 inappropriately discounted plaintiff s credibility, as the reasons he gave for doing 10 so were not clear and convincing reasons supported by substantial evidence. 11 Therefore, the court remands this matter to the Commissioner of the Social 12 Security Administration ( Commissioner ) in accordance with the principles and 13 instructions enunciated in this Memorandum Opinion and Order. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was forty-four years old on the date of her December 17, 17 2008, administrative hearing, is a high school graduate and has vocational 18 training. See AR at 33-34. Her past relevant work includes employment as a 19 massage therapist, network implementation coordinator, and administrative clerk. 20 AR at 45, 97. 21 On September 17, 2007, plaintiff filed an application for DIB, alleging a 22 period of disability from April 29, 2005 through December 31, 2009, the date last 23 insured, due to costochondritis, which causes pain in her chest, neck, back, and 24 shoulder. AR at 18; Pl. Mem. at 1-2. Plaintiff developed costochondritis after 25 falling at work. Pl. Mem. at 2. The Commissioner denied plaintiff s application 26 initially and upon reconsideration, after which she filed a request for a hearing. 27 AR at 58-62, 65-69, 71. 28 2 1 On December 17, 2008, plaintiff, represented by counsel, appeared and 2 testified at a hearing before the ALJ. AR at 27-53. The ALJ also heard testimony 3 from Aida Worthington, a vocational expert. AR at 41-50. On July 9, 2009, the 4 ALJ denied plaintiff s claim for benefits. AR at 18-26. 5 Applying the well-known five-step sequential evaluation process, the ALJ 6 found, at step one, that plaintiff did not engage in substantial gainful activity since 7 her alleged onset date of disability, April 29, 2005.1 AR at 20. 8 At step two, the ALJ found that plaintiff suffered from the following severe 9 combination of impairments : costochondritis, left shoulder impingement 10 syndrome, left acromioclavicular arthritis, obesity, sleep apnea, asthma, and 11 depression. AR at 20. 12 At step three, the ALJ found that plaintiff s impairments, whether 13 individually or in combination, did not meet or medically equal one of the listed 14 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 15 Listings ). AR at 20-21. The ALJ then assessed plaintiff s residual functional capacity ( RFC )2 and 16 17 determined that she had the RFC to perform sedentary work with the following 18 limitations: lifting and carry ten pounds occasionally and less than 10 pounds 19 frequently; standing and/or walking for six hours of an eight hour workday; sitting 20 for six hours of an eight hour workday; avoiding all exposure to moving 21 1 Although the ALJ s determinations are from the alleged date of disability through the date of the decision, plaintiff filed a claim of disability from April 29, 23 2005 through December 31, 2009, the date last insured. AR at 18. 24 2 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 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 27 assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 22 3 1 machinery and unprotected heights and performing only occasional overhead 2 work. AR at 21-22. 3 The ALJ found, at step four, that plaintiff was not capable of performing her 4 past relevant work. AR at 25. 5 At step five, the ALJ determined that, based upon plaintiff s age, education, 6 work experience, and RFC, plaintiff could perform a significant number of jobs 7 in the national economy, including telephone solicitor, addressor, and call out 8 operator. Id. Consequently, the ALJ concluded that plaintiff did not suffer from a 9 disability as defined by the Social Security Act. Id. 10 Plaintiff filed a timely request for review of the ALJ s decision, which was 11 denied by the Appeals Council. AR at 1-3. The ALJ s decision stands as the final 12 decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 19 (as amended). But if the court determines that the ALJ s findings are based on 20 legal error or are not supported by substantial evidence in the record, the court 21 may reject the findings and set aside the decision to deny benefits. Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 23 1144, 1147 (9th Cir. 2001). 24 Substantial evidence is more than a mere scintilla, but less than a 25 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 26 relevant evidence which a reasonable person might accept as adequate to support 27 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 28 4 1 F.3d at 459. To determine whether substantial evidence supports the ALJ s 2 finding, the reviewing court must review the administrative record as a whole, 3 weighing both the evidence that supports and the evidence that detracts from the 4 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 5 affirmed simply by isolating a specific quantum of supporting evidence. 6 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 7 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 8 the ALJ s decision, the reviewing court may not substitute its judgment for that 9 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 10 1992)). 11 IV. 12 DISCUSSION 13 A. The ALJ Failed to Provide Specific and Legitimate Reasons for 14 Rejecting the Opinions of the Treating and Examining Physicians 15 Plaintiff argues that the ALJ improperly rejected the opinions of her treating 16 physician, Dr. Samuel Chan, and two consultative examining physicians, Dr. 17 James Styner and Dr. Allen I. Salick. Pl. Mem. at 8-11. Specifically, plaintiff 18 contends that the reasons the ALJ cites in rejecting the opinions are not specific 19 and legitimate. Pl. Mem. at 8. The court agrees. 20 In determining whether a claimant has a medically determinable 21 impairment, among the evidence the ALJ considers is medical evidence. 20 22 C.F.R.§§ 404.1527(b), 416.927(b). In evaluating medical opinions, the 23 regulations distinguish among three types of physicians: (1) treating physicians; 24 (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. 25 §§ 404.1527(d), (f), 416.927(d), (f); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 26 1995) (as amended). Generally, a treating physician s opinion carries more 27 weight than an examining physician s, and an examining physician s opinion 28 5 1 carries more weight than a reviewing physician s. Holohan v. Massanari, 246 2 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)3 (2). The opinion of the treating physician is generally given the greatest weight 4 because the treating physician is employed to cure and has a greater opportunity to 5 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th 6 Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 7 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 8 Smolen, 80 F.3d at 1285. If a treating physician s opinion is uncontradicted, the 9 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 10 81 F.3d at 830. If the treating physician s opinion is contradicted by other 11 opinions, the ALJ must provide specific and legitimate reasons supported by 12 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 13 specific and legitimate reasons supported by substantial evidence in rejecting the 14 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 15 non-examining physician, standing alone, cannot constitute substantial evidence. 16 Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. 17 Comm r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 18 813, 818 n.7 (9th Cir. 1993). 19 1. 20 Medical Opinions a. 21 Treating Physician Dr. Samuel Chan Dr. Samuel Chan, a family practitioner, of the Coast City Medical Group 22 Inc. treated plaintiff from November 22, 2005, through June 29, 2007.3 AR at 439. 23 The objective findings identified by Dr. Chan include: bilateral tenderness over 24 the steroclavicular joint; tenderness over the left costochondral joints 2nd, 3rd, and 25 4th; joint pain and tenderness with positive impingement; limited range of motion; 26 27 3 The Administrative Record only contains Dr. Chan s examination reports 28 through April 17, 2007. AR at 339. 6 1 and tender sternum and thoracic spine T1-8. See, e.g., AR 280, 308, 324. Dr. 2 Chan also ordered a functional capacity evaluation performed on plaintiff, which 3 showed plaintiff had spine and upper extremity impairment. AR at 231-53. Dr. 4 Chan diagnosed plaintiff with thoracic sprain/strain and sternal costochondritis. 5 See, e.g., AR at 324. 6 In a Multiple Impairment Questionnaire, Dr. Chan opined that plaintiff 7 could sit for two hours in an eight-hour day; could stand/walk for one hour in an 8 eight-hour day; occasionally lift/carry ten pounds; had marked limitations in her 9 upper left extremity in her ability to grasp and reach; had marked limitations in her 10 upper right extremity in her ability to reach; and had moderate limitations in both 11 upper extremities in her ability to use her hands for fine manipulations. AR at 12 441-43. Dr. Chan further opined that plaintiff could not sit, stand, or walk 13 continuously in a work setting, must get up and move around every ten to fifteen 14 minutes when sitting, and would required three to four unscheduled thirty-minute 15 breaks in an eight-hour day. AR at 441-42, 444. Dr. Chan opined these functional 16 limitations existed since April 27, 2005. AR at 445. 17 b. Examining Physicians 18 Dr. James S. Hamada 19 Dr. James S. Hamada, an orthopedic surgeon, examined plaintiff on July 31, 20 2006 and April 2, 2007, on a referral by Dr. Chan. AR at 188-97, 258-59. At the 21 July 31, 2006 examination, Dr. Hamada observed that plaintiff had trigger points 22 from T6 to T10 and at sternocostal junction of T5 to T10, as well as tenderness of 23 the left acromiovacular joint. AR at 191. Dr. Hamada opined that plaintiff had 24 costochondritis, left acromioclavicular arthritis, impingement syndrome in the left 25 shoulder, and trigger points involving the thoracic spine. AR at 194. Based on a 26 review of plaintiff s medical history and the examination, Dr. Hamada opined that 27 28 7 1 plaintiff s injury showed overall improvement from the alleged onset date and 2 recommended trigger point injections to relieve her residual pain. AR at 194-95. 3 On April 2, 2007, Dr. Hamada noted that the trigger point injections to 4 plaintiff s left sternochondral articulation did not provide significant relief, 5 plaintiff had recurrent left shoulder pain, and she had a positive impingement sign, 6 pain with terminal flexion abduction and external rotation. AR at 258. Dr. 7 Hamada opined that plaintiff likely had at least a partial tear of the left rotator cuff 8 and impingement syndrome, and recommended arthroscopic decompression and 9 possible rotator cuff repair of the left shoulder. AR at 259. Dr. Hamada also 10 opined that plaintiff had seemingly cutoff of circulation to the left hand and wrist 11 with abduction, external rotation, and elevation of the left upper extremity, but 12 that it was transient. Id. As such, Dr. Hamada did not recommend operative 13 treatment for the mild thoracic outlet syndrome at the time. Id. 14 Dr. Allen I. Salick 15 Dr. Allen I. Salick, a rheumatologist, examined plaintiff on January 5, 2007 16 on a referral by Dr. Chan. AR at 204-13. Dr. Salick observed that there was 17 exquisite tenderness on the left costosternal junctions; second, third, fourth and 18 fifth but much less on the right side. AR at 210. Dr. Salick also observed that 19 the Adson s maneuver on the left was markedly positive. Id. Dr. Salick 20 diagnosed plaintiff with posttraumatic costochondritis on the left and thoracic 21 outlet syndrome on the left. AR at 211. Dr. Salick recommended physical therapy 22 and to continue local measures like cold and heat to the anterior chest wall. AR 23 at 212. In the event that such measures did not work, Dr. Salick recommended 24 considering a scalene nerve block. Id. Dr. Salick opined that plaintiff was 25 Temporary Totally Disabled on an industrial basis. Id. 26 27 28 8 1 Dr. Soheila Benrazavi 2 On November 23, 2007, Dr. Soheila Benrazavi conducted an internal 3 medicine examination of plaintiff. AR at 343-47. Dr. Benrazavi took plaintiff s 4 medical history and examined her, but did not review any of plaintiff s medical 5 records or conduct any diagnostic tests. AR at 343-44, 347. Dr. Benrazavi 6 observed that plaintiff had chest pain that occurs with arm movements, taking of a 7 deep breath, and movement of the left shoulder, as well as left shoulder pain. AR 8 at 347. Dr. Benrazavi opined that plaintiff: could lift/carry fifty pounds 9 occasionally and twenty-five pounds frequently; could stand/walk for six hours 10 out of an eight-hour workday; could sit for six hours out of an eight-hour day; and 11 could lift heavy objects above the head with the left upper extremity occasionally. 12 Id. 13 Dr. James K. Styner 14 Dr. James K. Styner, an orthopedic surgeon, examined plaintiff on October 15 14, 2008 in connection with plaintiff s application for DIB. AR at 375-83. Dr. 16 Styner reviewed plaintiff s history and medical records, and conducted a physical 17 examination. Id. Dr. Styner noted that plaintiff had tenderness of the left 18 trapezius musculature, thoracic spine, left extensor mass, right erector spinae 19 mass, musculature, and the midline thoracic spine, 2-8, as well as a positive 20 impingement sign on the left shoulder. AR at 378-81. Dr. Styner diagnosed 21 plaintiff with thoracic spine pain, myoligamentous strain of the left trapezius 22 musculature, myoligamentous strain of the cervical spine by history, 23 myoligamentous strain of the lumbar spine, TC syndrome chest, T4 bilaterally, 24 obesity, and sleep apnea. AR at 381. Dr. Styner ruled out compression 25 neuropathies at the wrist, canal of Guyon and the ulnar nerve bilaterally. Id. Dr. 26 Styner noted that plaintiff has not had significant long-lasting improvement with 27 28 9 1 conservative treatment and opined that her impairments would last at least twelve 2 months into the future. Id. 3 Dr. Styner also provided an opinion of plaintiff s functional limitations in 4 the evaluation and a Cervical Spine Impairment Questionnaire, in which he opined 5 that plaintiff: could sit three to fours hours out of an eight-hour day, with the 6 ability to get up and move around for ten minutes every half-hour; stand/walk for a 7 total of two hours, with the ability to get off her feet for ten minutes after every 8 fifteen minutes; and lift/carry fifteen pounds occasionally. AR at 370, 382. 9 c. State Agency Physicians 10 Dr. Earl Cooper 11 Dr. Cooper, a state agency physician, issued an RFC assessment on 12 November 30, 2007. AR at 350-54. Based on the medical history, Dr. Cooper 13 opined that plaintiff: could lift/carry fifty pounds occasionally and twenty-five 14 pounds frequently; could stand/walk/sit six hours in an eight-hour day; and had 15 limitations for overhead reaching. AR at 351-52. 16 Dr. P. Spitzer 17 Dr. P. Spitzer, a state agency physician, issued a case analysis on April 25, 18 2008. AR at 359-60. Dr. Spitzer reviewed plaintiff s medical records and the 19 internal medicine evaluation, and affirmed Dr. Cooper s findings. AR at 359. 20 2. 21 Here, the ALJ concluded that plaintiff: could lift/carry ten pounds The ALJ s Findings 22 occasionally and less than ten pounds frequently; stand/walk for six hours out of 23 an eight-hour day; sit for six hours out of an eight-hour day; must avoid exposure 24 to moving machinery and unprotected heights; and could only perform occasional 25 overhead work.4 AR at 22. In reaching that determination, the ALJ gave no 26 27 4 The ALJ stated that plaintiff could perform sedentary work as defined by 20 28 C.F.R. § 404.1567(b). AR at 21-22. But 20 C.F.R. § 404.1567(b) defines light 10 1 weight to the opinion of treating physician Dr. Chan and little weight to the 2 opinions of examining physicians Dr. Styner and Dr. Salick. AR at 24. The ALJ 3 made only brief (and misleadingly incomplete) mention Dr. Hamada s opinion 4 (AR at 23), and did not discuss Dr. Benrazavi s opinion. Instead, the ALJ 5 accord[ed] significant weight to the state agency physicians and credited their 6 opinions over the treating and examining physicians. AR at 23-24. In doing so, 7 the ALJ noted that the state agency physicians were well-versed in the 8 assessment of functionality as it pertains to the disability provisions of the Social 9 Security Act. Id. The ALJ erred because he failed to provide specific and 10 legitimate reasons supported by substantial evidence for rejecting the treating and 11 examining physicians opinions. See Lester, 81 F.3d at 830-31. 12 As an initial matter, the ALJ correctly noted that it was within his purview, 13 and not the physician s, to make the ultimate disability determination. AR at 24; 14 20 C.F.R. §§ 404.1527(e), 416.927(e). But the ALJ still must provide specific and 15 legitimate reasons when rejecting a physician s opinion. See Smith v. Astrue, No. 16 10-4463, 2011 WL 5294848, *4 (N.D. Cal. Nov. 3, 2011) ( Although the treating 17 physician s opinion is not necessarily conclusive as to either a physical condition 18 or the ultimate issue of disability, an ALJ must provide specific and legitimate 19 reasons for rejecting the opinion of the treating physician. ) (quoting Murray v. 20 Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 21 22 a. Dr. Chan The ALJ rejected Dr. Chan s opinion on the bases that: (1) it was 23 inconsistent with the medical record; (2) it was inconsistent with the doctor s own 24 25 work and 20 C.F.R. § 404.1567(a) defines sedentary work. Assuming that this 26 was a typographical error, the ALJ s specific findings still do not correspond with the definition of sedentary work, which allows for a certain amount of walking and 27 standing but only if walking and standing are required occasionally and other 28 sedentary criteria are met. 20 C.F.R. § 404.1567(a). 11 1 examination and treatment notes; (3) it was inconsistent with plaintiff s report of 2 improvement; and (4) Dr. Chan appears to have accepted [plaintiff s] subjective 3 complaints. AR at 24. None of these reasons are supported by the substantial 4 evidence in the record. 5 Contrary to the ALJ s contentions, Dr. Chan s opinion is not inconsistent 6 with the medical record or his treatment notes. See Tonapetyan, 242 F.3d at 1149 7 (9th Cir. 2001) (finding that it may be a sufficient reason to reject a treating 8 physician s opinion when it is unsupported by clinical findings). Although Dr. 9 Chan s treatment notes are not detailed, he identifies plaintiff s subjective 10 complaints, notes his objective findings, and provides a diagnosis at each 11 examination. See, e.g., AR at 319-22, 331-34. As discussed supra, the objective 12 findings include tenderness, muscle spasms, and positive Adson s test. See, e.g., 13 AR at 264, 272, 276, 292. Dr. Chan also had a Functional Capacity Evaluation 14 performed on plaintiff, which indicated upper extremity impairments, pain, and a 15 need for further treatment. AR at 231-53. 16 Further, reports from other examining physicians support Dr. Chan s 17 opinion and objective findings. After reviewing plaintiff s medical history and 18 examining plaintiff, Dr. Styner opined that in an eight-hour day, plaintiff could sit 19 for three to four hours but needed to get up and move around for ten minutes every 20 half hour. AR at 382. Dr. Styner also opined that plaintiff could stand or walk for 21 two hours but again needed to sit for ten minutes after every fifteen minutes. Id. 22 Dr. Salick diagnosed plaintiff with costochondritis and thoracic outlet syndrome. 23 AR at 211. Dr. Hamada, who initially noted improvement in plaintiff s condition, 24 later observed that his treatment recommendation did not yield significant relief 25 and plaintiff continued to have pain and a positive impingement sign. AR at 195, 26 258. These diagnoses and opinions are all consistent with Dr. Chan s opinions. 27 As for the ALJ s assertion that Dr. Chan s opinion was inconsistent with 28 plaintiff s report of improvement, it is unclear what report of improvement the 12 1 ALJ is referring to unless it is that in Dr. Hamada s initial report. At Dr. 2 Hamada s 2006 examination of plaintiff, using the treatment notes from Dr. 3 Chan s first visit with plaintiff as a baseline, Dr. Hamada noted improvement in 4 plaintiff. AR at 195. But as just discussed, at the subsequent 2007 examination, 5 Dr. Hamada found that his recommended treatment had not yielded significant 6 relief in plaintiff s left sternochondral articulation or lasting relief on her left 7 shoulder. AR at 258. Indeed, Dr. Hamada found plaintiff s condition is 8 worsening. AR at 259. 9 The ALJ also asserts that Dr. Chan accepted plaintiff s subjective 10 complaints, implying that Dr. Chan accepted such complaints without any 11 objective evidence. AR at 24. As discussed supra, Dr. Chan s notes indicate 12 objective findings that supported plaintiff s subjective complaints, as did the 13 objective findings of the other physicians. 14 15 b. Dr. Styner The ALJ gave little weight to the opinion of Dr. Styner because his opinion 16 did not reflect a longitudinal history with plaintiff. This is not a legitimate reason. 17 If a longitudinal history were required, then the only opinions an ALJ would be 18 required to consider would be those of treating physicians. But the regulations 19 require the ALJ to consider the opinions of all physicians. See 20 C.F.R. 20 §§ 404.1527(d), 416.927(d). While an ALJ must give more weight to treating 21 physicians because, inter alia, of the longitudinal history with the patient, it cannot 22 simply reject the opinions of examining and state agency physicians for the lack of 23 a treatment history. See Lester, 81 F.3d at 830 (requiring an ALJ to consider the 24 opinion of examining physicians). Indeed, the ALJ s stated reason for rejecting 25 Dr. Styner s opinion is even more glaringly deficient in light of the great weight 26 the ALJ gave to the state agency physicians (AR at 23-24), who not only do not 27 have a longitudinal history with plaintiff but also did not examine her. 28 13 1 2 c. Dr. Salick The ALJ gave little weight to Dr. Salick s opinion because it was 3 inconsistent with the medical evidence. AR at 24. As discussed supra, there were 4 objective findings to support Dr. Salick s diagnosis. 5 Accordingly, the ALJ failed to provide specific and legitimate reasons, 6 supported by substantial evidence, for rejecting the opinions of Dr. Chan, Dr. 7 Styner, and Dr. Salick. 8 B. The ALJ Failed to Provide Clear and Convincing Reasons for 9 Discounting Plaintiff s Subjective Complaints 10 Plaintiff argues that the ALJ failed to make a proper credibility 11 determination. Pl. Mem. at 12-13. Specifically, plaintiff contends that the ALJ 12 did not provide clear and convincing reasons that are supported by substantial 13 evidence for discounting plaintiff s credibility. Id. The court agrees. 14 An ALJ must make specific credibility findings, supported by the record. 15 SSR 96-7p. To determine whether testimony concerning symptoms is credible, an 16 ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 103517 36 (9th Cir. 2007). First, an ALJ must determine whether a claimant produced 18 objective medical evidence of an underlying impairment which could reasonably 19 be expected to produce the pain or other symptoms alleged. Id. at 1036 (quoting 20 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there 21 is no evidence of malingering, an ALJ can reject the claimant s testimony about 22 the severity of her symptoms only by offering specific, clear and convincing 23 reasons for doing so. Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 24 1030, 1040 (9th Cir. 2003). An ALJ may consider several factors in weighing a 25 claimant s credibility, including: (1) ordinary techniques of credibility evaluation 26 such as a claimant s reputation for lying; (2) the failure to seek treatment or follow 27 a prescribed course of treatment; and (3) a claimant s daily activities. Tommasetti 28 v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 14 1 At the first step, the ALJ found that plaintiff s medically determinable 2 impairments could reasonably be expected to cause the alleged symptoms. AR at 3 20. 4 At the second step, because the ALJ did not find any evidence of 5 malingering, the ALJ was required to provide clear and convincing reasons for 6 discounting plaintiff s credibility. Here, the ALJ found that plaintiff s statements 7 concerning the intensity, persistence and limiting effects of [her] symptoms are 8 not credible to the extent that they are inconsistent with the [RFC] assessment. 9 AR at 22. The ALJ provided three reasons for discounting plaintiff s credibility: 10 (1) plaintiff s daily activities were inconsistent with her alleged symptoms; (2) 11 plaintiff only had conservative treatment; and (3) her impairments are stable. AR 12 at 22-24. The ALJ s reasons were not clear and convincing reasons supported by 13 substantial evidence. 14 First, the ALJ asserted that plaintiff acknowledged that she performs 15 substantial daily activities at a level fundamentally inconsistent with her 16 symptoms. AR at 23-24. See Morgan, 169 F.3d at 599 (a plaintiff s ability to 17 spend a substantial part of [her] day engaged in pursuits involving the 18 performance of physical functions that are transferable to a work setting may be 19 sufficient to discredit her). The court disagrees with this characterization of 20 plaintiff s testimony. Plaintiff testified to an ability to bathe and dress herself, 21 prepare simple meals, and go grocery shopping. AR at 37. [T]he mere fact a 22 plaintiff has carried on certain daily activities, such as grocery shopping, driving a 23 car, or limited walking for exercise, does not in any way detract from her 24 credibility as to her overall disability. Vertigan v. Halter, 260 F.3d 1044, 1051 25 (9th Cir. 2001). Plaintiff does not need to be utterly capacitated. Fair v. Bowen, 26 885 F.2d 597, 603 (9th Cir. 1989). More to the point, the activities plaintiff 27 engages in are not inconsistent with the functional limitations in sitting, standing, 28 lifting, reaching, and manipulating her hands that she alleges. 15 1 Second, the ALJ notes that plaintiff received conservative treatment, did not 2 have any recent major treatment, and showed a lack of attempts to obtain relief 3 from pain and other symptoms. AR at 22-23. See Parra v. Astrue, 481 F.3d 742, 4 751 (9th Cir. 2007) ( [E]vidence of conservative treatment is sufficient to 5 discount a claimant s testimony regarding severity of an impairment. ). The ALJ 6 is correct that plaintiff s treatment is conservative. See Tommasetti, 533 F.3d at 7 1040 (describing physical therapy and anti-inflammatory medication as 8 conservative treatment). But the ALJ fails to note two important factors: (1) the 9 conservative treatment was not yielding significant improvement (AR 258, 381); 10 and (2) plaintiff could not take stronger medication due to the effects on her liver 11 (AR at 443). While plaintiff s conservative treatment may ultimately be a clear 12 and convincing reason for discounting her credibility, the ALJ must consider the 13 reasons for the conservative treatment. See Orn v. Astrue, 495 F.3d 625, 638 (9th 14 Cir. 2007) (stating that the failure to seek treatment may be a basis for an adverse 15 credibility finding unless there was a good reason for not doing so). 16 Finally, the fact that plaintiff s impairments are stable does not support an 17 adverse credibility finding. Being stable simply means that plaintiff s impairments 18 are not changing. It does not mean that plaintiff s impairments are not serious or 19 functionally limiting. 20 In short, the reasons the ALJ stated for his credibility finding are not clear 21 and convincing reasons supported by substantial evidence. 22 V. 23 REMAND IS APPROPRIATE 24 The decision whether to remand for further proceedings or reverse and 25 award benefits is within the discretion of the district court. McAllister v. Sullivan, 26 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 27 further proceedings, or where the record has been fully developed, it is appropriate 28 to exercise this discretion to direct an immediate award of benefits. See Benecke 16 1 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 2 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings 3 turns upon their likely utility). But where there are outstanding issues that must be 4 resolved before a determination can be made, and it is not clear from the record 5 that the ALJ would be required to find a plaintiff disabled if all the evidence were 6 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 7 Harman, 211 F.3d at 1179-80. 8 Here, as set out above, remand is required because the ALJ erred in failing 9 to properly evaluate both the physicians opinions and plaintiff s credibility. On 10 remand, the ALJ shall reconsider the opinions provided by the treating and 11 examining physicians regarding plaintiff s impairments and limitations, and either 12 credit their opinions or provide specific and legitimate reasons supported by 13 substantial evidence for rejecting them. The ALJ shall also reconsider plaintiff s 14 subjective complaints with respect to her physical impairments and the resulting 15 limitations, and either credit plaintiff s testimony or provide clear and convincing 16 reasons supported by substantial evidence for rejecting them. The ALJ shall then 17 proceed through steps four and five to determine what work, if any, plaintiff is 18 capable of performing. 19 VI. 20 CONCLUSION 21 IT IS THEREFORE ORDERED that Judgment shall be entered 22 REVERSING the decision of the Commissioner denying benefits, and 23 REMANDING the matter to the Commissioner for further administrative action 24 consistent with this decision. 25 26 DATED: November 22, 2011 27 28 HONORABLE SHERI PYM United States Magistrate Judge 17

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