Angel E. Guillen v. Carolyn W. Colvin, No. 2:2013cv08170 - Document 22 (C.D. Cal. 2014)

Court Description: ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Robert N. Block. (twdb)

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1 O 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 ANGEL E. GUILLEN, ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ) ) _____________________________ Case No. CV 13-8170 RNB ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 18 19 Plaintiff filed a Complaint herein on November 18, 2013, seeking review of the 20 Commissioner s denial of his application for Supplemental Security Income ( SSI ) 21 benefits. In accordance with the Court s Case Management Order, the parties filed 22 a Joint Stipulation on July 25, 2014. However, plaintiff then filed a Supplemental 23 Brief ( Supp. Br. ) on July 31, 2014, seeking remand pursuant to Sentence Six of 42 24 U.S.C. § 405(g) for consideration of newly discovered evidence: a subsequent 25 award of SSI benefits by the Commissioner. 26 In a Minute Order issued August 1, 2014, the Court identified the additional 27 issues raised by plaintiff s Supplemental Brief as to which further briefing would be 28 necessary unless the parties stipulated to a remand for further administrative 1 1 proceedings. The Commissioner then filed a Response to the Supplemental Brief on 2 August 19, 2014, and plaintiff filed a Reply thereto on September 9, 2014. Thus, this 3 matter now is ready for decision.1 4 5 6 DISPUTED ISSUES The disputed issues that plaintiff originally raised in the Joint Stipulation as 7 grounds for reversal under Sentence Four of 42 U.S.C. § 405(g) are as follows: 8 9 1. proper step three determination. 10 11 Whether the Administrative Law Judge ( ALJ ) made a 2. Whether the ALJ properly determined plaintiff s past relevant work and residual functional capacity ( RFC ). 12 3. Whether the ALJ made a proper adverse credibility 13 determination. 14 15 The additional disputed issues that the Court construed plaintiff s 16 Supplemental Brief as raising (hereinafter the Sentence Six issues ) are as follows: 17 4. Whether the Court even has the authority to remand for 18 payment of benefits based on plaintiff s newly discovered evidence of 19 the subsequent award of benefits. 20 5. Whether plaintiff s newly discovered evidence of the 21 subsequent award of benefits may even be considered by the Court for 22 purposes of its determination whether the ALJ erred in any of the 23 respects alleged by plaintiff in the Joint Stipulation. 24 6. Whether plaintiff s newly discovered evidence of the 25 26 1 In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set 28 forth in 42 U.S.C. § 405(g). 27 2 1 subsequent award of benefits satisfies the standard for Sentence Six 2 remand for further administrative proceedings under the Ninth Circuit s 3 rationale in Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010) and this 4 Court s rationale in West v. Colvin, 2014 WL 2511296 (C.D. Cal. June 5 3, 2014). 6 7. Whether, even if plaintiff s newly discovered evidence 7 of the subsequent award does not satisfy the standard for a Sentence Six 8 remand for further administrative proceedings, it still triggers the 9 Commissioner s duty to further develop the record here, as contended 10 11 by plaintiff. 8. Whether, if the case is remanded, the Court should affirm 12 the grant of benefits in plaintiff s subsequent application and limit the 13 scope of the remand to only the time leading up to the favorable 14 determination in the Second Claim, as requested by plaintiff. 15 16 17 DISCUSSION As discussed hereafter, the Court finds that reversal is warranted only with 18 respect to the second part of Disputed Issue Two concerning whether the ALJ 19 properly considered the treating physician s opinion. 20 21 I. The Sentence Six issues (Disputed Issues Four to Eight). 22 Pursuant to Sentence Six of 42 U.S.C. § 405(g), the Court has jurisdiction to 23 remand the case to the Commissioner for the consideration of new evidence, but 24 only upon a showing that there is new evidence which is material and that there is 25 good cause for the failure to incorporate such evidence into the record in a prior 26 proceeding. See also, e.g., Allen v. Secretary of Health & Human Servs., 726 F.2d 27 1470, 1473 (9th Cir. 1984). 28 // 3 1 Disputed Issue Four is whether the Court even has the authority to remand for 2 payment of benefits based on plaintiff s newly discovered evidence of the 3 subsequent award of benefits. (See Supp. Br. at 1.) For the reasons stated by the 4 Commissioner (see Response at 3), the Court concurs with the Commissioner that it 5 does not. See also Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S. Ct. 2157, 115 L. 6 Ed. 2d 78 (1991) (noting that, under Sentence Six, the Court does not affirm, 7 modify, or reverse the [Commissioner s] decision; it does not rule in any way as to 8 the correctness of the administrative determination ); Faucher v. Secretary of Health 9 and Human Services, 17 F.3d 171, 173 (6th Cir. 1994) (district court erred in 10 awarding benefits after purporting to apply the requirements of Sentence Six). The 11 Court further notes that the only legal authority cited by plaintiff to support his 12 position are cases that addressed the issue of remand for payment of benefits under 13 Sentence Four. (See Reply at 1-2.)2 14 Disputed Issue Five is whether plaintiff s newly discovered evidence of the 15 subsequent award of benefits may even be considered by the Court for purposes of 16 its determination whether the ALJ erred in any of the respects alleged by plaintiff in 17 the Joint Stipulation. (See Supp. Br. at 3.) For the reasons stated by the 18 Commissioner (see Response at 7), the Court concurs with the Commissioner that it 19 may not. See also Melkonyan, 501 U.S. at 98; Allen v. Commissioner of Social Sec., 20 561 F.3d 656, 653 (6th Cir. 2009) (noting that to the extent a subsequent favorable 21 decision could constitute new evidence under Sentence Six, it is not meant to 22 address the correctness of the administrative determination made on the evidence 23 already before the initial ALJ ). 24 25 2 Although plaintiff cites Luna in support of his position that the Court has 26 authority to remand for payment of benefits under Sentence Six (see Reply at 1-2), the Court notes that Luna involved issues under both Sentence Six and Sentence 27 Four, and that the issue of whether remand for payment of benefits was warranted 28 arose in that case only under Sentence Four. See Luna, 623 F.3d at 1035. 4 1 Disputed Issue Six is whether plaintiff s newly discovered evidence of the 2 subsequent award of benefits satisfies the standard for Sentence Six remand for 3 further administrative proceedings under the Ninth Circuit s rationale in Luna, 623 4 F.3d 1032, and this Court s rationale in West, 2014 WL 2511296. (See Supp. Br. at 5 4-5.) For the reasons stated by the Commissioner (see Response at 6-7), the Court 6 concurs with the Commissioner that it does not. Here, in contrast to Luna and West, 7 the subsequent award of benefits was based on different medical evidence and a 8 different time period. See Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) 9 (Sentence Six remand was not warranted where subsequent favorable decision 10 involved different medical evidence, a different time period, and a different age 11 classification ). 12 Disputed Issue Seven is whether, even if plaintiff s newly discovered 13 evidence of the subsequent award does not satisfy the standard for a Sentence Six 14 remand for further administrative proceedings, it still triggers the Commissioner s 15 duty to further develop the record here, as contended by plaintiff. (See Supp. Br. at 16 5-6.) For the reasons stated by the Commissioner (see Response at 9), the Court 17 concurs with the Commissioner that it does not. See also Allen, 561 F.3d at 653 ( To 18 the extent that Allen argues that remand is appropriate based on the possibility of new 19 and material evidence, this contradicts the clear language of § 405(g). ) (Emphasis 20 in original); Travis v. Sulllivan, 985 F.2d 919, 924-25 (7th Cir. 1993) (district court 21 erred in ordering brand new administrative proceeding on the basis of new and 22 material evidence ). 23 Disputed Issue Eight is whether, if the case is remanded, the Court should 24 affirm the grant of benefits in plaintiff s subsequent application and limit the scope 25 of the remand to only the time leading up to the favorable determination in the 26 Second Claim, as requested by plaintiff. (See Supp. Br. at 6.) For the reasons stated 27 by the Commissioner (see Response at 3-4), the Court concurs with the 28 Commissioner that it may not affirm the subsequent grant of benefits because the 5 1 correctness of that award is not before the Court. See also Baker on Behalf of Baker 2 v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989) ( [T]he district court had no 3 jurisdiction over the 1985 award when it remanded the case for reconsideration of the 4 1979 claim. No appeal from that claim had been taken to the district court. ); 5 Encarnacion v. Astrue, 724 F. Supp. 2d 243, 245 (D. P.R.) ( The court lacks 6 jurisdiction over the subsequent award of benefits because no appeal from that claim 7 has been taken to the district court. ). However, in view of the Commissioner s 8 position that the relevant time period for purposes of the Court s review is from 9 March 15, 2011 (the filing date of plaintiff s first SSI application) to September 26, 10 2012 (the date of the ALJ s decision) (see Response at 3-4), the scope of the remand 11 hereafter ordered shall be confined to that closed period. 12 13 II. The ALJ s adverse credibility determination (Disputed Issue Three). 14 Disputed Issue Three is directed to the ALJ s adverse credibility determination 15 with respect to plaintiff s subjective symptom testimony. (See Jt Stip at 20-23.) 16 An ALJ s assessment of pain severity and claimant credibility is entitled to 17 great weight. See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman 18 v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the Cotton standard, where 19 the claimant has produced objective medical evidence of an impairment which could 20 reasonably be expected to produce some degree of pain and/or other symptoms, and 21 the record is devoid of any affirmative evidence of malingering, the ALJ may reject 22 the claimant s testimony regarding the severity of the claimant s pain and/or other 23 symptoms only if the ALJ makes specific findings stating clear and convincing 24 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see 25 also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 26 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). 27 Here, plaintiff testified that he is unable to work because of vision problems 28 caused by cataracts and hand problems caused by rheumatoid arthritis. (See AR 46.) 6 1 Plaintiff also testified that he becomes tired quickly, that he has sleeping problems, 2 and that he sometimes needs his wife s help to get around in public. (See AR 48-49.) 3 The ALJ determined that, although plaintiff s medically determinable impairments 4 could reasonably be expected to cause the alleged symptoms, plaintiff s statements 5 concerning the intensity, persistence, and limiting effects of these symptoms were not 6 credible to the extent they were inconsistent with the ALJ s RFC determination. (See 7 AR 26.) 8 In support of this adverse credibility determination, the sole reason proffered 9 by the ALJ was that plaintiff s daily activities have, at least at times, been somewhat 10 greater than [plaintiff] has generally reported. (See AR 26.) The ALJ specifically 11 explained that plaintiff had admitted to working between one and three days per week 12 for eight hours at a time, work that did not constitute substantial gainful activity but 13 nonetheless reflected adversely on plaintiff s credibility. (See AR 25-26; see also AR 14 42.) The Court finds that this was a legally sufficient reason on which the ALJ could 15 properly rely in support of his adverse credibility determination. Evidence that 16 plaintiff engaged in some part-time work belied his testimony about the severity of 17 his symptoms, even if that work did not constitute substantial gainful activity. See 18 20 C.F.R. § 416.971 ( Even if the work you have done was not substantial gainful 19 activity, it may show that you are able to do more work than you actually did. ); Bray 20 v. Commissioner of Social Security Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) 21 (claimant s part-time work as personal caregiver belied claimant s claim of 22 debilitating respiratory illness). Moreover, as a general matter, it is well-settled that 23 an ALJ may rely on inconsistencies between the level of a claimant s self-reported 24 daily activities and the severity of his symptoms portrayed by his subjective symptom 25 testimony. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012); Berry v. 26 Astrue, 622 F.3d 1228, 1234-35 (9th Cir. 2010); Valentine v. Commissioner Social 27 Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009); Orn v. Astrue, 495 F.3d 625, 639 28 (9th Cir. 2007). 7 1 III. The ALJ s step three determination (Disputed Issue One). 2 Disputed Issue One is directed to the ALJ s determination at step three of the 3 Commissioner s sequential evaluation process that plaintiff did not have an 4 impairment that met or equaled the requirements of a listed impairment. (See Jt Stip 5 at 3.) 6 At step three of the Commissioner s sequential evaluation process, the ALJ 7 must determine whether a claimant s impairment or combination of impairments 8 meets or equals a listed impairment set out in 20 C.F.R. Part 404, Subpart P, 9 Appendix 1. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). To meet 10 a listed impairment, the claimant must establish that he satisfies each element of the 11 listed impairment in question. See Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 12 885, 107 L. Ed. 2d 967 (1990); Tackett, 180 F.3d at 1099. To equal a listed 13 impairment, a plaintiff must establish symptoms, signs, and laboratory findings at 14 least equal in severity and duration to the characteristics of a relevant listed 15 impairment, or, if a claimant s impairment is not listed, then to the listed impairment 16 most like the claimant s impairment. Tackett, 180 F.3d at 1099 (quoting 20 C.F.R. 17 § 404.1526). 18 Here, plaintiff highlights the following four listed impairments: 2.02 (Loss of 19 central visual acuity), 2.03 (Contraction of the visual field in the better eye), 5.05 20 (Chronic liver disease), and 14.06 (Inflammatory arthritis). (See Jt Stip at 3.) As 21 discussed below, the Court rejects all of plaintiff s arguments directed to the ALJ s 22 step three determination. 23 24 25 26 A. Whether the ALJ properly determined that plaintiff did not meet the requirements of a listed impairment. The only listed impairment whose requirements that plaintiff argues are met is 27 Listing 2.02 (Loss of central visual acuity). (See Jt Stip at 3.) Listing 2.02 requires 28 evidence that remaining vision in the better eye after best correction is 20/200 or 8 1 less. 2 Here, the ALJ expressly found that plaintiff did not meet the requirements of 3 Listing 2.02 and referenced evidence that plaintiff s corrected vision was 20/100 4 bilaterally. (See AR 24, 29.) Plaintiff points to other evidence that his vision also 5 was measured at 20/200 bilaterally. (See Jt Stip at 3; see also AR 294, 295.) 6 However, the evidence cited by plaintiff described his vision without glasses. (See 7 AR 295.) This evidence fails to satisfy the requirements of Listing 2.02, which 8 requires evidence of vision after best correction. 3 9 10 B. 11 12 Whether the ALJ properly determined that plaintiff did not equal the requirements of a listed impairment. Plaintiff does not attempt to show how he equals the requirements of any of the 13 four listed impairments that he specified, but plaintiff merely contends that the ALJ 14 erred under SSR 96-6p by failing to call a medical expert during the administrative 15 hearing to testify regarding the equivalency standard. (See Jt Stip at 3, 9.) 16 As a threshold matter, the Court rejects plaintiff s challenge to the ALJ s 17 equivalency determination in light of plaintiff s utter failure to present any evidence 18 or plausible theory of equivalency. See Burch v. Barnhart, 400 F.3d 676, 683 (9th 19 Cir. 2005) ( An ALJ is not required to discuss the combined effects of a claimant s 20 impairments or compare them to any listing in an equivalency determination, unless 21 the claimant presents evidence in an effort to establish equivalence. ); Lewis v. 22 Apfel, 236 F.3d 503, 514 (9th Cir. 2005) (ALJ s failure to consider equivalence was 23 24 3 The Court notes that the evidence cited by plaintiff also reflected that 25 plaintiff s vision in his better (left) eye after pinhole correction was measured at 26 20/200. (See AR 295.) However, this evidence also fails to satisfy the requirements of Listing 2.02 because the Commissioner s regulations do not count pinhole testing 27 as a measure of central visual acuity after best correction. See 20 C.F.R., Pt. 404, 28 Subpt. P, App. 1, § 2.00(A)(5)(a)(iii). 9 1 not reversible error because the claimant did not offer any theory, plausible or 2 otherwise, as to how his impairments combined to equal a listed impairment). 3 Moreover, the Court rejects plaintiff s contention that SSR 96-6p required the 4 ALJ to call a medical expert at the administrative hearing to testify as to equivalency. 5 SSR 96-6p does not contain such a specific requirement, but only provides that an 6 ALJ may rely on the expert opinion of a State agency medical consultant on 7 equivalence. See SSR 96-6p, 1996 WL 374180, at *3. Here, the ALJ relied on the 8 opinions of two State agency medical consultants who both opined that plaintiff was 9 not disabled but capable of performing work at a medium exertional level. (See AR 10 29; see also AR 297-305, 334-41.) Although SSR 96-6p does require an opinion 11 from a medical expert in limited circumstances when the ALJ opines that an 12 existing case record suggests that a judgment of equivalence may be reasonable or 13 that an updated case record may change the findings of the State agency medical 14 consultants such circumstances do not exist here. 15 Finally, as a general matter, the Court rejects plaintiff s argument that the ALJ 16 should have collected additional medical evidence before making his equivalency 17 determination. In Lewis, 236 F.3d at 514-15, the Ninth Circuit rejected the argument 18 that an ALJ had a duty to gather additional medical evidence before making an 19 equivalency determination where (1) the ALJ did not indicate that he found the record 20 insufficient to properly evaluate the evidence; and (2) the evidence did not 21 consistently favor a finding of disability under a listing. Here, likewise, the ALJ did 22 not indicate that he found the record insufficient to properly evaluate the evidence; 23 nor did the evidence consistently favor a finding of disability under any of the listed 24 impairments specified by plaintiff. 25 26 IV. The ALJ s step four determination (Disputed Issue Two). 27 Although Disputed Issue Two is framed as a challenge to the ALJ s RFC 28 determination for purposes of his step four determination, it also encompasses a 10 1 challenge to the ALJ s determination as to plaintiff s past relevant work. (See Jt Stip 2 at 11-20.) As discussed below, the Court concurs with plaintiff only with respect to 3 the ALJ s RFC determination. 4 5 A. 6 7 Whether the ALJ properly determined that plaintiff had past relevant work. Past relevant work is work that a claimant has done in the past 15 years, that 8 was substantial gainful activity, and that lasted long enough for a claimant to learn 9 to do it. See 20 C.F.R. § 416.960(b). Substantial gainful activity is work activity 10 that involves doing significant physical or mental activities on a full or part-time 11 basis and is the kind of work usually done for pay or profit, whether or not a profit 12 is realized. See 20 C.F.R. § 416.972(a) and (b). 13 Here, the ALJ determined that plaintiff had engaged in substantial gainful 14 activity within the past 15 years: the jobs of kitchen steward, laundry sorter, and shoe 15 repairer. (See AR 30.)4 Plaintiff points out that he earned almost no money in the 16 past 15 years because he performed these jobs while he was incarcerated. (See Jt Stip 17 at 11.) However, the Commissioner may point to substantial evidence, aside from 18 earnings, that a claimant has engaged in substantial gainful activity. See Lewis, 236 19 F.3d at 515. Factors to consider include the time spent working, the quality of a 20 person s performance, special conditions, and the possibility of self-employment. See 21 Katz v. Secretary of Health & Human Services, 972 F.2d 290, 293 (9th Cir. 1992). 22 Here, the record reflects that plaintiff s jobs while he was in prison involved working 23 five to eight hours per day and supervising other inmates while working in the 24 kitchen. (See AR 30; see also 45-46.) The Court finds this is substantial evidence 25 26 4 The ALJ also determined that plaintiff s past relevant work included the job of brick laborer, but this job is not at issue because the ALJ eventually determined 28 that plaintiff could not perform it. (See AR 30.) 27 11 1 supporting the ALJ s determination that plaintiff had engaged in substantial gainful 2 activity. See Keyes v. Sullivan, 894 F.2d 1053, 1056-57 (9th Cir. 1990) (work that 3 was performed at church for 5.5 hours per day and that included supervision of other 4 employees constituted substantial gainful activity). 5 Plaintiff further argues that the ALJ should have considered whether his 6 incarceration was a special condition that precluded substantial gainful activity. 7 (See Jt Stip at 11.) The Commissioner s regulations provide that if work is done 8 under special conditions, the Commissioner may find that the work does not show a 9 claimant is able to do substantial gainful activity. See 20 C.F.R. § 416.973(c). The 10 special conditions are the following: (1) the claimant required and received special 11 assistance from other employees in performing his work; (2) the claimant was 12 allowed to work irregular hours or take frequent rest periods; (3) the claimant was 13 provided with special equipment or was assigned work especially suited to his 14 impairment; (4) the claimant was able to work only because of specially arranged 15 circumstances, for example, other persons helped him prepare for or get to and from 16 work; (5) the claimant was permitted to work at a lower standard of productivity or 17 efficiency than other employees; and (6) the claimant was given the opportunity to 18 work, despite his impairment, because of family relationship, past association with 19 his employer, or his employer s concern for his welfare. See id. Here, the Court finds 20 that plaintiff has failed to specify, much less show, how any of these conditions 21 applied to him. Indeed, the record is devoid of any evidence that any special 22 conditions were imposed on plaintiff s work while in prison. The Court also rejects 23 plaintiff s unsupported implication that incarceration per se constitutes a special 24 condition. See Struck v. Astrue, 2010 WL 1734855, at *6 (W.D. Wash. Apr. 28, 25 2010) (declining to consider unsupported allegation that jobs done while incarcerated 26 do not qualify as past relevant work). 27 // 28 // 12 1 B. 2 3 Whether the ALJ properly determined plaintiff s residual functional capacity. The ALJ determined that plaintiff had an RFC for medium work with certain 4 limitations for plaintiff s vision problem. (See AR 24-25.)5 Plaintiff contends that 5 the ALJ s RFC determination is erroneous because it failed to account for (1) 6 evidence of additional impairments and (2) the opinion of Dr. Boutros, plaintiff s 7 treating physician. (See Jt Stip at 12.) As discussed below, the Court concurs with 8 plaintiff only with respect to Dr. Boutros s opinion. 9 10 11 1. Evidence of additional impairments Plaintiff contends that the ALJ failed to properly consider evidence that he has 12 cataracts and rheumatoid arthritis. (See Jt Stip at 12.) However, plaintiff has failed 13 to cite any evidence that these impairments imposed any functional limitations that 14 the ALJ failed to properly consider in making his RFC determination. Indeed, 15 plaintiff has not even specified what these functional limitations are. Accordingly, 16 the Court rejects plaintiff s contention that the ALJ s RFC determination was 17 erroneous simply because the record reflects that he has these conditions. See 18 Houghton v. Commissioner Social Sec. Admin., 493 Fed. Appx. 843, 845-46 (9th Cir. 19 2012) (now citable for its persuasive value per Ninth Circuit Rule 36-3) (ALJ was not 20 required to discuss conditions in the absence of significant probative evidence that 21 22 23 24 25 26 27 28 5 Specifically, the ALJ determined that plaintiff can lift and/or carry 50 pounds occasionally and 25 frequently; he can stand and/or walk for six hours out of an eight-hour workday with regular breaks; he can sit for six hours out of an eighthour workday with regular breaks; he is unable to read very small print; unable to read ordinary news print or book print; unable to read a computer screen; restricted from hazards such as unprotected heights and dangerous machinery, but is capable of avoiding ordinary hazards in the workplace; the claimant may occasionally be exposed to extreme cold and vibrations; the claimant s near acuity would be frequent. (See AR 24-25.) 13 1 they had some functional impact on Houghton s ability to work ); see also Morgan 2 v. Comm r of Soc. Sec., 169 F.3d 595, 601 (9th Cir. 1999) (ALJ properly discounted 3 medical evidence of symptoms and characteristics where the record failed to show 4 how Morgan s symptoms translate into specific functional deficits which preclude 5 work activity and physician did not explain how these characteristics precluded 6 work activity in Morgan s case ) (emphasis in original). 7 8 9 2. Dr. Boutros s opinion Dr. Boutros, plaintiff s treating physician, submitted an opinion describing 10 plaintiff s ability to work in light of his untreated hepatitis C and kidney stones. (See 11 AR 356-60.) 12 The law is well established in this Circuit that a treating physician s opinions 13 are entitled to special weight because a treating physician is employed to cure and has 14 a greater opportunity to know and observe the patient as an individual. See 15 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating physician s 16 opinion is not, however, necessarily conclusive as to either a physical condition or the 17 ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 18 1989). The weight given a treating physician s opinion depends on whether it is 19 supported by sufficient medical data and is consistent with other evidence in the 20 record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician s 21 opinion is uncontroverted by another doctor, it may be rejected only for clear and 22 convincing reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Baxter 23 v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where, as here, the treating 24 physician s opinion is controverted, it may be rejected only if the ALJ makes findings 25 setting forth specific and legitimate reasons that are based on the substantial evidence 26 of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ( A 27 treating physician s opinion on disability, even if controverted, can be rejected only 28 with specific and legitimate reasons supported by substantial evidence in the 14 1 record. ); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th 2 Cir. 1987). 3 Here, Dr. Boutros opined, inter alia, that plaintiff would be incapable of even 4 low stress jobs, would be limited to two hours of standing or walking in an eight5 hour workday, would sometimes need to take two to three unscheduled fifteen minute 6 breaks, and would be limited to lifting less than ten pounds. (See AR 357, 358.) 7 The ALJ stated that he accorded some weight to Dr. Boutros s opinion but 8 effectively rejected it after citing what appear to be two reasons. (See AR 28-29.) 9 First, the ALJ commented, While Dr. Boutros does have a treating relationship with 10 the claimant, the treatment history is quite brief. (See AR 29.) The record here 11 reflects that at the time Dr. Boutros rendered his opinion, he had been treating 12 plaintiff for six months. (See AR 356, 360.) Assuming that the ALJ intended his 13 comment that the treatment history was quite brief to serve as a reason to reject Dr. 14 Boutros s opinion, the Court finds that it was not legally sufficient. Although an ALJ 15 may properly consider the length of treatment as a factor in weighing medical opinion 16 evidence, see 20 C.F.R.§ 416.927(c)(2)(i), the ALJ failed to specify how the factor 17 applied here. See Regenitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 18 1299 (9th Cir. 1999) ( [C]onclusory reasons will not justify an ALJ s rejection of a 19 medical opinion. ). 20 Second, the ALJ noted that the possibility always exists that a doctor may 21 express an opinion in an effort to assist a patient with whom he or she sympathizes 22 for one reason or another and that claimants can be quite insistent and demanding 23 in seeking supportive notes or reports from their physicians. (See AR 29.) The ALJ 24 further noted that [w]hile it is difficult to confirm the presence of such motives, they 25 are more likely in situations where the opinion in question departs substantially from 26 27 28 15 1 the rest of the evidence in the record, as in the current case. (See AR 29.)6 But an 2 ALJ may not presume that a claimant s physician has been improperly influenced in 3 the absence of evidence of actual improprieties that undermine the credibility of the 4 physician s opinion. See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996); 5 Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996) (per curiam). Here, the ALJ 6 proffered no supporting evidence of actual improprieties in Dr. Boutros s opinion, a 7 point which the Commissioner concedes. (See Jt Stip at 16.) Moreover, the ALJ s 8 implication that Dr. Boutros was improperly influenced merely because of the 9 difference between his opinion and other evidence is purely speculative. 10 Accordingly, the Court finds that this was not a legally sufficient reason on which the 11 ALJ could properly rely to reject Dr. Boutros s opinion. See Taylor v. Commissioner 12 of Social Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (ALJ failed to provide 13 legally sufficient reasons to reject physicians opinions when he merely rejected them 14 as pro-disability reporting and focused on being a disability advocate ). 15 16 17 CONCLUSION AND ORDER The law is well established that the decision whether to remand for further 18 proceedings or simply to award benefits is within the discretion of the Court. See, 19 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister, 888 F.2d at 20 21 22 23 24 25 26 27 28 6 The Commissioner contends that what the ALJ actually meant was that the treatment record was sparse and that [Dr. Boutros s] opinion departs substantially from the rest of the evidence of record (see Jt Stip at 16), an interpretation which the Court finds unpersuasive because it fails to account for the full context of the ALJ s reasoning. But even if the Commissioner s interpretation of the ALJ s reasoning were correct, such a conclusory reason still would not be a legally sufficient reason on which the ALJ could properly rely to reject Dr. Boutros s opinion. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) ( To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required. ) 16 1 603; Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted 2 where additional administrative proceedings could remedy defects in the decision. 3 See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 4 635. Remand for the payment of benefits is appropriate where no useful purpose 5 would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 6 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. 7 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily 8 delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 9 The Court is mindful that, in Garrison v. Colvin, - F.3d -, 2014 WL 3397218, 10 at *19-21 (9th Cir. Jul. 14, 2014), a Ninth Circuit panel held that where an ALJ failed 11 to properly a reject treating medical opinion (and other evidence), it was appropriate 12 to credit the evidence as true and remand the case for calculation and award of 13 benefits. However, the Court also notes that after Garrison was decided, another 14 Ninth Circuit panel did not apply or even acknowledge this credit as true rule where 15 substantial evidence did not support an ALJ s rejection of treating medical opinions 16 and his adverse credibility determination; instead, the panel simply remanded the case 17 for further administrative proceedings. See Ghanim v. Colvin, - F.3d -, 2014 WL 18 4056530, at *10 (9th Cir. Aug. 18, 2014). In any event, to the extent that Garrison 19 governs the Court s analysis, the Court finds it distinguishable, as discussed below. 20 In Garrison, the Ninth Circuit held that the district court should remand to the 21 Commissioner for an award of benefits if the following three conditions are met: (1) 22 the record has been fully developed and further administrative proceedings would 23 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 24 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 25 improperly discredited evidence were credited as true, the ALJ would be required to 26 find the claimant disabled on remand. See Garrison, 2014 WL 3397218, at *20. 27 Here, these three conditions have been met: the record has been fully developed, the 28 ALJ failed to provide legally sufficient reasons for rejecting Dr. Boutros s opinion, 17 1 and a vocational expert testified that a person who required two unscheduled fifteen 2 minute breaks (as described in Dr. Boutros s opinion) would not be employable on 3 a full time basis. (See AR 57.) 4 However, this does not end the Court s inquiry. Even if the three conditions 5 set out in Garrison are met, the Court still retains the flexibility to remand for further 6 proceedings when the record as a whole creates serious doubt as to whether the 7 claimant is, in fact, disabled within the meaning of the Social Security Act. See 8 Garrison, 2014 WL 3397218, at *21 (citing Connett v. Barnhart, 340 F.3d 871 (9th 9 Cir. 2003)). Here, the Court finds based on the record as a whole that there is serious 10 doubt as to whether plaintiff was in fact disabled within the meaning of the Social 11 Security Act as of the date of the ALJ s decision, for the following reasons. 12 First, the probative value of Dr. Boutros s opinion was questionable because 13 it was premised in part on a condition, plaintiff s hepatitis C, which was untreated. 14 (See AR 408, 422, 423.) The record reflects that plaintiff had received treatment for 15 hepatitis C with good results while he was incarcerated. (See AR 213, 224, 225, 227, 16 229, 247.) The record also reflects that following his release from prison, plaintiff 17 obtained Medi-Cal coverage (see AR 50), which would presumably allow him to 18 receive more treatment. To the extent that Dr. Boutros s opinion was issued during 19 a brief period when plaintiff was untreated, the opinion would not present a true 20 picture of plaintiff s limitations. See Warre v. Commissioner of Social Sec. Admin., 21 439 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments that can be controlled effectively 22 with medication are not disabling for the purpose of determining eligibility for SSI 23 benefits. ). 24 Second, the record contains no other medical opinion consistent with Dr. 25 Boutros s opinion. Rather, all of the other physicians who treated or examined 26 plaintiff or reviewed his records issued findings consistent with the ALJ s conclusion 27 that plaintiff could work. Specifically, Dr. Cruz, an examining physician, opined that 28 plaintiff could perform medium work with no functional limitations. (See AR 28918 1 94.) Dr. Shearer, an examining opthalmologist, diagnosed bilateral cataracts and 2 measured plaintiff s corrected vision at 20/100 bilaterally, findings which were 3 incorporated in the ALJ s RFC determination. (See AR 181-82.) Dr. Kalmar and Dr. 4 Hartman, state agency review physicians, each opined that plaintiff could perform 5 medium work with some visual and environmental limitations. (See AR 297-305, 6 334-41.) Prison treatment records repeatedly stated that plaintiff was stable or 7 doing well with no complaints. (See AR 195, 225, 227, 229, 247.) 8 Third, the record reflects that plaintiff performed substantial gainful activity 9 during a period of his incarceration in which he alleged he was disabled. (See AR 10 30.) 11 Fourth, the factual differences between Garrison and this case also militate in 12 favor of the Court availing itself of its flexibility to remand the case for further 13 proceedings. In Garrison, the ALJ committed a variety of egregious and important 14 errors by failing to provide legally sufficient reasons for rejecting the claimant s 15 testimony and the opinions of her treating and examining physicians. See Garrison, 16 2014 WL 3397218, at *14-*19. Here, the ALJ s only error was his failure to 17 articulate legally sufficient reasons for rejecting a treating medical opinion that was 18 not well-supported by the record. In Garrison, a review of the record revealed 19 nothing that would create doubt as to Garrison s entitlement to the benefits she 20 seeks and only a bare handful of records showing slight improvement in Garrison s 21 condition. See id. at *22. Here, as detailed above, almost all of the medical 22 evidence was consistent with the ALJ s determination that plaintiff was not disabled. 23 Therefore, based on its review and consideration of the entire record, the Court 24 has concluded on balance that a remand for further administrative proceedings 25 pursuant to Sentence Four of 42 U.S.C. § 405(g) is warranted here. Accordingly, IT 26 // 27 // 28 // 19 1 IS HEREBY ORDERED that Judgment be entered reversing the decision of the 2 Commissioner of Social Security and remanding this matter for further administrative 3 proceedings.7 4 5 DATED: September 17, 2014 6 7 ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7 Other than the limitation imposed in Section I regarding the relevant time 28 period, it is not the Court s intent to limit the scope of the remand. 20

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