Susan P. Carr v. Carolyn W. Colvin, No. 5:2013cv01046 - Document 23 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS by Magistrate Judge Jean P. Rosenbluth. Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgmen t be entered REVERSING the decision of the Commissioner, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for Further Details) (kl)
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Susan P. Carr v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SUSAN P. CARR, 11 Plaintiff, 12 vs. 13 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 13-1046-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for Social Security disability insurance 21 benefits (“DIB”). The parties consented to the jurisdiction of 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties’ Joint 24 Stipulation, filed July 10, 2014, which the Court has taken under 25 submission without oral argument. For the reasons stated below, 26 the Commissioner’s decision is reversed and this action is 27 remanded for further proceedings. 28 1 Dockets.Justia.com 1 II. BACKGROUND 2 Plaintiff was born on March 19, 1958. 3 Record (“AR”) 153.) (Administrative She completed two years of college (AR 163), 4 and she worked in inventory and quality control in warehouses (AR 5 158). 6 On January 25, 2010, Plaintiff submitted an application for 7 DIB, alleging that she had been unable to work since April 22, 8 2008, because of “tremors, diabetes mellitus-insulin dependent, 9 irritable bowel syndrome, anxiety disorder, obesity, [h]igh blood 10 pressure, [h]igh cholesterol, depression, [h]ypothryoidism, 11 [n]europathy shakes-[h]ands, pancretitis [sic].” (AR 146, 149.) 12 After her application was denied initially and on 13 reconsideration, she requested a hearing before an Administrative 14 Law Judge. (AR 94-95.) A hearing was held on January 11, 2012, 15 at which Plaintiff, who had a nonattorney representative, 16 testified, as did both a medical and a vocational expert. 17 42-76.) In a written decision issued February 23, 2012, the ALJ 18 found Plaintiff not disabled. (AR 28-37.) On April 24, 2013, 19 the Appeals Council denied Plaintiff’s request for review. 20 1.) (AR (AR This action followed. 21 III. STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. The ALJ’s findings and 24 decision should be upheld if they are free of legal error and 25 supported by substantial evidence based on the record as a whole. 26 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 27 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 28 evidence means such evidence as a reasonable person might accept 2 1 as adequate to support a conclusion. Richardson, 402 U.S. at 2 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 3 It is more than a scintilla but less than a preponderance. 4 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 5 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 6 substantial evidence supports a finding, the reviewing court 7 “must review the administrative record as a whole, weighing both 8 the evidence that supports and the evidence that detracts from 9 the Commissioner’s conclusion.” 10 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 11 either affirming or reversing,” the reviewing court “may not 12 substitute its judgment” for that of the Commissioner. Id. at 13 720-21. 14 IV. THE EVALUATION OF DISABILITY 15 People are “disabled” for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted, or is expected 19 to last, for a continuous period of at least 12 months. 42 20 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 21 (9th Cir. 1992). 22 A. 23 An ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 24 assess whether someone is disabled. 20 C.F.R. § 404.1520(a)(4); 25 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 26 amended Apr. 9, 1996). In the first step, the Commissioner must 27 determine whether the claimant is currently engaged in 28 substantial gainful activity; if so, the claimant is not disabled 3 1 and the claim must be denied. § 404.1520(a)(4)(i). If the 2 claimant is not engaged in substantial gainful activity, the 3 second step requires the Commissioner to determine whether the 4 claimant has a “severe” impairment or combination of impairments 5 significantly limiting her ability to do basic work activities; 6 if not, a finding of not disabled is made and the claim must be 7 denied. § 404.1520(a)(4)(ii). If the claimant has a “severe” 8 impairment or combination of impairments, the third step requires 9 the Commissioner to determine whether the impairment or 10 combination of impairments meets or equals an impairment in the 11 Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 12 404, Subpart P, Appendix 1; if so, disability is conclusively 13 presumed and benefits are awarded. 14 § 404.1520(a)(4)(iii). If the claimant’s impairment or combination of impairments 15 does not meet or equal one in the Listing, the fourth step 16 requires the Commissioner to determine whether the claimant has 17 sufficient residual functional capacity (“RFC”)1 to perform her 18 past work; if so, she is not disabled and the claim must be 19 denied. § 404.1520(a)(4)(iv). The claimant has the burden of 20 proving she is unable to perform past relevant work. 21 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 22 case of disability is established. Id. If that happens or if 23 the claimant has no past relevant work, the Commissioner bears 24 the burden of establishing that the claimant is not disabled 25 because she can perform other substantial gainful work available 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 in the national economy. § 404.1520(a)(4)(v). That 2 determination comprises the fifth and final step in the 3 sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; 4 Drouin, 966 F.2d at 1257. 5 B. 6 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 7 substantial gainful activity since April 22, 2008, the alleged 8 onset date. (AR 30.) At step two, she concluded that Plaintiff 9 had the severe impairments of “morbid obesity, poorly controlled 10 type 2 diabetes mellitus, stage 1 chronic kidney disease, 11 possible diabetic peripheral neuropathy, irritable bowel 12 syndrome, and essential tremor.” (Id.) At step three, the ALJ 13 determined that Plaintiff’s impairments did not meet or equal any 14 of the impairments in the Listing. (AR 31.) At step four, she 15 found that Plaintiff had the RFC to perform light work except as 16 follows: “stand or walk two hours out of an eight-hour day,” sit 17 with no restrictions given normal breaks, “lift 20 pounds 18 occasionally and 10 pounds frequently,” “occasionally stoop and 19 bend,” frequently perform fine and gross manipulation, never do 20 “very fine fingering,” and climb stairs but not climb ladders, 21 work at heights, or balance. (Id.) She also found that 22 Plaintiff required “ready access to restroom facilities” and a 23 temperature-controlled work environment. (Id.) Based on the 24 VE’s testimony, the ALJ concluded that Plaintiff could not 25 perform her past work in inventory and quality control. (AR 35.) 26 At step five, the ALJ found that Plaintiff could perform other 27 jobs that existed in significant numbers in the national economy. 28 (Id.) Accordingly, she found Plaintiff not disabled. 5 (AR 36.) 1 V. DISCUSSION 2 Plaintiff contends that the ALJ erred in assessing her 3 credibility and the opinions of her treating physicians. 4 Stip. at 3.) (J. Remand is warranted because the ALJ failed to 5 provide clear and convincing reasons for discounting Plaintiff’s 6 credibility. Any errors in assessing the opinions of Plaintiff’s 7 treating sources were harmless, however, for the reasons 8 discussed below. 9 A. 10 The ALJ Did Not Properly Assess Plaintiff’s Credibility 11 1. Relevant background Plaintiff testified that she stopped working in April 2008 12 because she “got sick” and became blind for a few weeks from her 13 diabetes. (AR 56.) At the time of the hearing, she claimed to 14 be unable to work for many reasons. 15 prevented her from holding things. Tremors in her hands (AR 57.) She could not type 16 because her fingers would “fall off the keyboard” when she tried. 17 (Id.) She became tired easily and needed to take naps. (Id.) 18 She could not stand because of pain in her feet, and she could 19 not sit because of pain in her back, legs, and feet. 20 (Id.) Plaintiff had seizures three or four times a day despite 21 taking Mysoline, an antiseizure medication. (AR 58.) 22 driver’s license but did not drive to the hearing. (AR 55.) 23 drove “maybe once every two weeks,” to get medication. 24 57.) She had a She (AR 56- No doctors had told her to stop driving because of her 25 seizures, although nurses did. 26 “handicap sticker.” (Id.) (AR 57.) Her car did not have a She did not know how many seizures 27 she would have if she did not take medication. (AR 58.) 28 Plaintiff started seeing a new doctor in June 2011, about seven 6 1 months before the hearing. (AR 59.) Although she told the 2 doctor that she still had seizures while taking medication, the 3 doctor did not change her treatment plan. (Id.) 4 recommended that Plaintiff see a neurologist. The doctor (Id.) Although 5 Plaintiff’s medical record indicated that the seizures could be 6 psychogenically2 related, her doctor did not recommend that she 7 see a psychologist or psychotherapist. 8 Up to three times a day, Plaintiff took tramadol3 for her 9 back and foot pain. 10 64.) She also took gabapentin.4 (AR 60-61.) (AR The pain was a result of peripheral neuropathy and her 11 kidneys “going bad.” 12 (AR 61.) (AR 60.) During a normal day, Plaintiff would wake up, eat breakfast, 13 watch TV, take a two-hour nap, eat dinner, and watch more TV. 14 (AR 62.) The longest amount of time she could sit before needing 15 to get up and walk was 15 or 20 minutes. (Id.) 16 only 10 minutes before needing to take a break. She could walk (AR 62-63.) She 17 could do some household chores, like vacuuming and cleaning the 18 bathroom. (AR 63.) Plaintiff had trouble sleeping and would 19 usually wake up about five or six times a night because of pain 20 in her feet or legs. (AR 63-64.) She used to be able to shop 21 22 2 “Psychogenic” means “of mental origin or causation.” Stedman’s Medical Dictionary 1476 (27th ed. 2000). 23 3 Tramadol is prescribed to treat moderate to moderately 24 severe pain. See Tramadol, MedlinePlus, http://www.nlm.nih.gov/ 25 medlineplus/druginfo/meds/a695011.html (last updated Oct. 15, 2013). 26 4 Gabapentin is used to help control certain types of See Gabapentin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a694007.html (last updated July 15, 2011). 27 seizures in people who have epilepsy. 28 7 1 for groceries but stopped because of the hand tremors and 2 inability to lift more than five pounds. 3 4 2. (AR 67-68.) Applicable law An ALJ’s assessment of symptom severity and claimant 5 credibility is entitled to “great weight.” See Weetman v. 6 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 7 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not required to 8 believe every allegation of disabling pain, or else disability 9 benefits would be available for the asking, a result plainly 10 contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 11 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks 12 omitted). 13 In evaluating a claimant’s subjective symptom testimony, the 14 ALJ engages in a two-step analysis. 15 at 1035-36. See Lingenfelter, 504 F.3d “First, the ALJ must determine whether the claimant 16 has presented objective medical evidence of an underlying 17 impairment [that] could reasonably be expected to produce the 18 pain or other symptoms alleged.” 19 marks omitted). Id. at 1036 (internal quotation If such objective medical evidence exists, the 20 ALJ may not reject a claimant’s testimony “simply because there 21 is no showing that the impairment can reasonably produce the 22 degree of symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 23 (9th Cir. 1996) (emphasis in original). When the ALJ finds a 24 claimant’s subjective complaints not credible, the ALJ must make 25 specific findings that support the conclusion. 26 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Absent a finding or 27 affirmative evidence of malingering, the ALJ must provide “clear 28 and convincing” reasons for rejecting the claimant’s testimony. 8 1 Lester, 81 F.3d at 834; Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 2 (9th Cir. 2014). 3 4 3. Analysis After laying out a detailed chronology of Plaintiff’s 5 medical records, the ALJ found that her medically determinable 6 impairments could reasonably be expected to cause the alleged 7 symptoms but that her “statements concerning the intensity, 8 persistence and limiting effects of these symptoms are not 9 credible to the extent they are inconsistent with” her RFC. 10 33.) (AR Apart from this brief boilerplate statement, however, the 11 ALJ’s only reference to Plaintiff’s credibility was neither clear 12 nor convincing. The ALJ stated that “[t]he [Plaintiff’s] 13 testimony regarding her daily functioning is reasonable given her 14 medical condition, but the severity of the alleged limitations 15 are [sic] inconsistent with the objective medical findings.” 16 35.) (AR The statement is ambiguous because the ALJ appears to 17 discredit Plaintiff’s testimony yet also finds it “reasonable.” 18 (Id.) Furthermore, the statement is located in the section of 19 the ALJ’s opinion addressing Plaintiff’s treating physicians’ 20 opinions, not her credibility. (See AR 34-35 (paragraph begins, 21 “As for the opinion evidence, . . . .” and ends, “The undersigned 22 gives little weight to Dr. Erickson’s opinion because . . . .”).) 23 Nowhere does the ALJ actually analyze Plaintiff’s credibility. 24 Thus, the ALJ erred by failing to give clear and convincing 25 reasons for discounting Plaintiff’s testimony. See Robbins, 466 26 F.3d at 884-85 (reversing Commissioner when ALJ did not provide 27 “narrative discussion” with sufficiently specific reasons for 28 discounting claimant’s statements); Coronado v. Astrue, No. 1:109 1 cv-00594-AWI-SKO, 2011 WL 3348066, at *8 (E.D. Cal. Aug. 2, 2011) 2 (finding ALJ’s reasons for discrediting claimant “ambiguous” and 3 not clear and convincing because they “overlap[ped] and 4 blend[ed]” with discussion of physician opinions); SSR 96-7P, 5 1996 WL 374186, at *2 (July 2, 1996) (“It is not sufficient for 6 the adjudicator to make a single, conclusory statement that the 7 individual’s allegations have been considered or that the 8 allegations are (or are not) credible.” (internal quotation marks 9 omitted)). 10 Furthermore, the error was not harmless. The ALJ ultimately 11 concluded that Plaintiff was not disabled (AR 36) and had the RFC 12 to perform light work with some restrictions (AR 31). Although 13 some evidence in the record undermined Plaintiff’s testimony — 14 for example, clinical tests showed no physiological basis for her 15 seizures (AR 301 (CT scan and EEG), 379 (no somatoform5 disorder 16 diagnosis), 412 (same), 483-84 (48-hour ambulatory EEG)) — the 17 Court cannot say that the ALJ’s error was “inconsequential to the 18 ultimate disability determination.” See Molina, 674 F.3d at 1115 19 (internal quotation marks omitted). The nature and degree of 20 Plaintiff’s seizures and tremors were central to the ALJ’s RFC 21 assessment and ultimate conclusion that Plaintiff was not 22 disabled. 23 Plaintiff is entitled to remand on this ground. 24 25 26 5 A somatoform disorder is characterized by physical 27 symptoms suggesting physical disorders but for which there “are no demonstrable organic findings or known physiologic Stedman’s Medical Dictionary 528 (27th ed. 2000). 28 mechanisms.” 10 1 B. 2 The ALJ Properly Assessed the Medical Opinion Evidence 1. 3 Relevant background Plaintiff was hospitalized at Arrowhead Regional Medical 4 Center in September 2009. (AR 299.) Dr. Yen Lai was one of 5 several physicians who saw her for follow-up care after she was 6 discharged. (See AR 286, 292.) On December 12, 2009, Dr. Lai 7 completed a form entitled “Claim for Disability Insurance 8 Benefits - Doctor’s Certificate.” (AR 284.) She diagnosed 9 tremors and insulin-dependent diabetes mellitus and stated that 10 Plaintiff had “been incapable of performing [her] regular or 11 customary work” since May 1, 2008. (Id.) Dr. Lai noted that 12 Plaintiff suffered a “severe” “resting tremor” in both hands, 13 which made her “unable to hold, lift, . . . write legibly” or 14 “type.” 15 (Id.) On December 28, 2011, “Dr. Erickson”6 completed forms 16 entitled “Diabetes Mellitus - 9.08” (AR 543-46) and “Exertional 17 Limitation Questionnaire” (AR 547). 18 his office was on August 6, 2011. Plaintiff’s first visit to (AR 546.) Erickson diagnosed 19 type 2 diabetes mellitus, anemia, hypothyroidism, hypertension, 20 hyperlipidemia, hypertriglyceridism, and essential tremors. 21 543.) (AR He noted evidence of diabetic neuropathy affecting 22 Plaintiff’s lower extremities and that she “has or presents 23 [with] tremors” in her “upper ext[remities] (Hands),” which 24 significantly interfered with her “[u]se of the fingers, hands, 25 26 27 28 6 The record does not identify Erickson’s first name or sex. For ease of discussion, male pronouns are used. Further, as discussed below, Erickson does not appear to be a doctor but rather a nurse practitioner. (See, e.g., AR 546-47 (showing “NPC” next to signatures).) 11 1 and arms.” (AR 543-44.) He also noted that Plaintiff had 2 symptoms of polyuria,7 recurrent hyperglycemic reactions, 3 fatigue, numbness and tingling in the lower extremities, and 4 depression. 5 (AR 545.) On the “Exertional Limitation Questionnaire,” Erickson 6 opined that Plaintiff was “incapable of sedentary work on a 7 sustained and full-time basis.” (AR 547.) When asked whether 8 Plaintiff’s symptoms and limitations had existed at the same or 9 similar degree of severity since April 22, 2008, the alleged 10 onset date of disability, Erickson circled “No” and wrote August 11 6, 2011, as the applicable date, which was the “first time our 12 office [had] seen [Plaintiff].” 13 (AR 546.) Dr. Samuel Landau, the agency’s medical expert, testified 14 that Plaintiff had the following functional restrictions: 15 Standing and walking limited to two hours out of 16 eight. 17 breaks, such as every two hours. 18 are 19 occasionally. 20 can climb stairs, but she can’t climb ladders, work at 21 heights or balance. 22 There’s no limitation to sitting with normal limited to 10 pounds Lifting and carrying frequently, 20 pounds She can occasionally stoop and bend. She She can do gross manipulation, such as opening 23 drawers and carrying files. 24 manipulation, such as keyboarding, but not very fine 25 manipulation, such as precise dial adjustment. She can do coarse to fine 26 27 7 Polyuria is the “excessive excretion of urine.” 28 Medical Dictionary 1426 (27th ed. 2000). 12 Stedman’s 1 . . . . 2 . . . Her work environment should be air conditioned for 3 temperature control, and she should have ready access to 4 a rest room facility. 5 (AR 53.) 6 7 2. Applicable law Three types of physicians may offer opinions in Social 8 Security cases: (1) those who directly treated the plaintiff, (2) 9 those who examined but did not treat the plaintiff, and (3) those 10 who did not treat or examine the plaintiff. 11 830. Lester, 81 F.3d at A treating physician’s opinion is generally entitled to 12 more weight than that of an examining physician, and an examining 13 physician’s opinion is generally entitled to more weight than 14 that of a nonexamining physician. 15 Id. This is true because treating physicians are employed to 16 cure and have a greater opportunity to know and observe the 17 claimant. Smolen, 80 F.3d at 1285. If a treating physician’s 18 opinion is well supported by medically acceptable clinical and 19 laboratory diagnostic techniques and is not inconsistent with the 20 other substantial evidence in the record, it should be given 21 controlling weight. § 404.1527(c)(2). If a treating physician’s 22 opinion is not given controlling weight, its weight is determined 23 by length of the treatment relationship, frequency of 24 examination, nature and extent of the treatment relationship, 25 amount of evidence supporting the opinion, consistency with the 26 record as a whole, the doctor’s area of specialization, and other 27 factors. 28 § 404.1527(c)(2)-(6). When a treating or examining physician’s opinion is not 13 1 contradicted by other evidence in the record, it may be rejected 2 only for “clear and convincing” reasons. See Carmickle v. 3 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 4 (quoting Lester, 81 F.3d at 830-31). When a treating or 5 examining physician’s opinion is contradicted, the ALJ must 6 provide only “specific and legitimate reasons” for discounting 7 it. Id. The weight given an examining physician’s opinion, 8 moreover, depends on whether it is consistent with the record and 9 accompanied by adequate explanation, among other things. 10 § 404.1527(c)(3)-(6). 11 When an ALJ discounts an opinion provided by a nonacceptable 12 medical source, he need only provide “germane” reasons. 13 674 F.3d at 1111. Molina, Furthermore, “[t]he ALJ need not accept the 14 opinion of any physician, including a treating physician, if that 15 opinion is brief, conclusory, and inadequately supported by 16 clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th 17 Cir. 2002); accord Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 18 1190, 1195 (9th Cir. 2004). 19 20 3. Analysis In determining Plaintiff’s RFC, the ALJ gave “great weight” 21 to Dr. Landau’s assessment but “little weight” to Erickson’s 22 opinion because the latter was “based on a short treatment 23 period” and was “not supported by the evidence as a whole.” 24 35.) 25 26 (AR She did not directly address Dr. Lai’s opinion. a. “Dr. Erickson” Erickson opined that Plaintiff was incapable of sedentary 27 work on a sustained and full-time basis. (AR 547.) The record 28 contains notes from seven visits to Erickson’s office, from 14 1 August 2011 to January 2012, six of them predating his December 2 28, 2011 opinion. (See AR 530-36, 548.) Having seen Plaintiff 3 six times in five months and reviewed her laboratory test 4 results, Erickson qualifies as a treating source. See § 404.1502 5 (“We may consider an acceptable medical source who has treated or 6 evaluated you only a few times . . . to be your treating source 7 if the nature and frequency of the treatment or evaluation is 8 typical for your condition(s).”). The abbreviation “NP-C” next 9 to Erickson’s signature, however, suggests that he was a nurse 10 practitioner, not a physician. (AR 546-47.) It appears that 11 Plaintiff’s treating physician at the Primary Care Medical Group 12 of Inland Empire — where she saw Erickson — was Dr. Sanjay 13 Kudtarkar. (See AR 511 (discharge report naming “Sanjay S. 14 Kudtarkar, M.D.” as primary care provider).) Although a nurse 15 practitioner can be considered a medically acceptable source if 16 he worked under a physician’s close supervision, they generally 17 do not qualify as medically acceptable sources. See 18 § 404.1513(d)(1); Molina, 674 F.3d at 1111 & n.3. Because the 19 record does not show that Erickson worked under the close 20 supervision of Dr. Kudtarkar or another physician, he does not 21 qualify as a medically acceptable source. Thus, any failure of 22 the ALJ to give specific and legitimate reasons for rejecting the 23 opinion of Erickson, whom she apparently believed to be a medical 24 doctor, was necessarily harmless. See Carmickle, 533 F.3d at 25 1162 (error harmless when inconsequential to ultimate 26 nondisability determination). The ALJ was required to give only 27 “germane” reasons for rejecting Erickson’s opinion, see Molina, 28 674 F.3d at 1111, and she did so. 15 1 The ALJ first noted the short treatment period. (AR 35); 2 cf. § 404.1527(c)(2)(i) (“[l]ength of the treatment relationship” 3 is relevant factor in assessing opinion of treating source); 4 Edlund v. Massanari, 253 F.3d 1152, 1157 & n.6 (9th Cir.) (as 5 amended Aug. 9, 2001) (same). Although five months of treatment 6 may have been adequate to gauge the effect of Plaintiff’s 7 symptoms on her functioning, they amount to only a small portion 8 of her entire treatment period, given that she had begun 9 complaining of seizures and tremors over two years earlier (see 10 AR 299) and had complained of her other symptoms since 2008, the 11 alleged onset date (see AR 370-71 (emergency room visit on Apr. 12 16, 2008, for diabetes complications, hyperglycemia, and 13 hypothyroidism)). The short treatment period was a germane 14 reason to reject Erickson’s opinion. 15 The ALJ also properly noted that Erickson’s opinion was not 16 supported by the evidence as a whole. (AR 35.) The ALJ noted 17 that the function reports and consultative psychologists’ 18 evaluations showed that Plaintiff had “little difficulty with 19 activities of daily living.” (Id.; see AR 377 (able to do 20 household chores and errands, shop, cook, dress, and bathe), 409 21 (bathing and dressing “not impaired” and household chores 22 “somewhat impaired”).) She noted that there was “only a 23 psychogenic basis for the seizures and neither consultative 24 psychological examiner found the claimant had a somatoform 25 disorder.” (AR 34-35; see AR 301 (CT scan of head and EEG in 26 Sept. 2009 showed normal results), 379 (psychologist diagnosed 27 unspecified mood disorder but not somatoform disorder despite 28 Plaintiff’s two seizures during Mar. 2010 examination), 412 (same 16 1 diagnosis by different psychologist in Sept. 2010), 483-84 (482 hour ambulatory EEG recording in Aug. 2010 showed no epileptiform 3 discharges or electrographic seizures despite frequent tremors), 4 489 (emergency-room physician noted normal motor strength in June 5 2010).) Thus, inadequate evidentiary support was a germane 6 reason to reject Erickson’s opinion. Indeed, in finding 7 Plaintiff incapable of sedentary work on a sustained and full8 time basis, Erickson merely checked a box without providing 9 additional comments in the space designated for them at the 10 bottom of the questionnaire (AR 547), and the boxes he checked on 11 the “Diabetes Mellitus – 9.08” form indicated only that 12 Plaintiff’s tremors resulted in “significant interference” with 13 her “[u]se of the fingers, hands, and arms,” without explanation 14 in the designated “Please describe” section. (AR 543-44.) Thus, 15 the ALJ properly rejected Erickson’s opinion as conclusory and 16 inadequately supported. Thomas, 278 F.3d at 957; see also 17 Molina, 674 F.3d at 1111 (ALJ may “permissibly reject check-off 18 reports that do not contain any explanation of the bases of their 19 conclusions” (internal quotation marks and alterations omitted)). 20 21 b. Dr. Lai Although the ALJ did not explicitly address Dr. Lai’s 22 December 2009 disability certificate, she relied significantly on 23 the opinion of Dr. Landau, who explicitly noted and considered 24 Dr. Lai’s opinion. (See AR 50.) By accepting Dr. Landau’s 25 opinion, the ALJ necessarily rejected Dr. Lai’s opinion, which 26 directly contradicted Dr. Landau on the issue of the limiting 27 effect of Plaintiff’s tremors and seizures. 28 AR 284.) (Compare AR 53 with Further, in stating that there was “only a psychogenic 17 1 basis for the seizures and neither consultative psychological 2 examiner found the claimant had a somatoform disorder” (AR 343 35), the ALJ implicitly reasoned that Dr. Lai’s opinion was not 4 supported by the evidence as a whole. 5 In any event, on remand the ALJ can expressly explain her 6 reasons for apparently rejecting Dr. Lai’s opinion. 7 C. 8 When, as here, an ALJ errs in denying benefits, the Court Remand for Further Proceedings Is Appropriate 9 generally has discretion to remand for further proceedings. 10 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). See When no 11 useful purpose would be served by further administrative 12 proceedings, however, or when the record has been fully 13 developed, it is appropriate under the “credit-as-true” rule to 14 direct an immediate award of benefits. Id. at 1179 (noting that 15 “the decision of whether to remand for further proceedings turns 16 upon the likely utility of such proceedings”); see also Garrison 17 v. Colvin, 759 F.3d 995, 1019-20 (9th Cir. 2014). 18 Under the credit-as-true framework, three circumstances must 19 be present before the Court may remand to the ALJ with 20 instructions to award benefits: “(1) the record has been fully 21 developed and further administrative proceedings would serve no 22 useful purpose; (2) the ALJ has failed to provide legally 23 sufficient reasons for rejecting evidence, whether claimant 24 testimony or medical opinion; and (3) if the improperly 25 discredited evidence were credited as true, the ALJ would be 26 required to find the claimant disabled on remand.” 27 F.3d at 1020. Garrison, 759 When, however, the ALJ’s findings are so 28 “insufficient” that the Court cannot determine whether the 18 1 rejected testimony should be credited as true, the Court has 2 “some flexibility” in applying the credit-as-true rule. Connett 3 v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also 4 Garrison, 759 F.3d at 1020 (noting that Connett established that 5 credit-as-true rule may not be dispositive in all cases). This 6 flexibility should be exercised “when the record as a whole 7 creates serious doubt as to whether the claimant is, in fact, 8 disabled within the meaning of the Social Security Act.” 9 Garrison, 759 F.3d at 1021. 10 Here, under Connett, remand for further proceedings is 11 appropriate because the ALJ’s findings concerning Plaintiff’s 12 credibility were so “insufficient” that the Court cannot 13 determine whether Plaintiff’s testimony should be credited as 14 true, and the Court has serious doubts as to whether she is in 15 fact disabled. Upon remand, the ALJ should also address the 16 characterization of “Dr. Erickson” as a medical source and make 17 findings concerning Dr. Lai’s medical opinion. 18 19 20 21 22 23 24 25 26 27 28 19 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered 4 REVERSING the decision of the Commissioner, GRANTING Plaintiff’s 5 request for remand, and REMANDING this action for further 6 proceedings consistent with this Memorandum Opinion. IT IS 7 FURTHER ORDERED that the Clerk serve copies of this Order and the 8 Judgment on counsel for both parties. 9 10 DATED: December 15, 2014 11 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 20
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