Chaz A Stewart v. Carolyn W Colvin, No. 5:2014cv01573 - Document 17 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner isreversed, and the matter is remanded for further proceedings pursuant toSentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)
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Chaz A Stewart v. Carolyn W Colvin Doc. 17 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 CHAZ A. STEWART, Case No. ED CV 14-01573-AS 13 MEMORANDUM OPINION AND 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) 19 ORDER OF REMAND Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED 20 that this matter is remanded for further administrative action 21 consistent with this Opinion. 22 23 PROCEEDINGS 24 25 26 27 28 On July 30, 2014, Plaintiff filed a Complaint seeking review of the denial of his applications Disability Insurance Benefits. for Supplemental Security (Docket Entry No. 1). Income and The parties have consented to proceed before the undersigned United States Magistrate Judge. (Docket Entry Nos. 6, 15). On December 4, 2014, Defendant filed Dockets.Justia.com 1 an Answer along with the Administrative Record (“AR”). (Docket Entry 2 Nos. 8-9). The parties filed a Joint Position Statement (“Joint Stip.”) 3 on March 4, 2015, setting forth their respective positions regarding 4 Plaintiff’s claims. (Docket Entry No. 13). 5 6 The Court has taken this matter under submission without oral 7 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social 8 Security Case,” filed August 5, 2014 (Docket Entry No. 5). 9 10 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 11 12 On January 18, 2011, Plaintiff, formerly employed as a merchandiser 13 and mechanic (see AR 47-49, 204, 228-30), filed applications for 14 Supplemental Security Income and Disability Insurance Benefits, both 15 alleging an inability to work since July 13, 2008. (AR 185-93). On 16 December 14, 2012, Administrative Law Judge (“ALJ”), Jesse Pease, heard 17 testimony from Plaintiff and vocational expert David Rinehart. (See AR 18 45-69). On December 20, 2012, the ALJ issued a decision denying 19 Plaintiff’s applications. (See AR 26-38). After determining that 20 Plaintiff had severe impairments –- “post traumatic stress disorder 21 (PTSD); complaints of chronic back and right knee pain; and complaints 22 of headaches” (AR 28-29) --, the ALJ found that Plaintiff had the 23 residual functional capacity (“RFC”)1 to perform medium work2 with the 24 following exceptions: no working around crowds; limited to a non-public 25 1 A Residual Functional can 26 still do despite existing exertional andCapacity is what a claimant See nonexertional limitations. 27 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 2 “Medium work involves lifting no more than 50 pounds 28 with frequent lifting or carrying of objects weighing up to 25 at a time pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c). 2 1 environment; and precluded from complex work. 2 that Plaintiff was unable to perform (AR 31). past After finding relevant work as a 3 merchandiser and auto mechanic (AR 35-36), the ALJ found that jobs 4 existed in significant numbers in the national economy that Plaintiff 5 could perform, and therefore found that Plaintiff was not disabled 6 within the meaning of the Social Security Act. (AR 36-37). 7 8 Plaintiff requested that the Appeals Council review the ALJ’s 9 decision. 10 6-10). (AR 20). The request was denied on February 20, 2014. (AR The ALJ’s decision then became the final decision of the 11 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 12 §§ 405(g), 1383(c). 13 14 PLAINTIFF’S CONTENTIONS 15 16 Plaintiff alleges that the ALJ erred in (1) failing to properly 17 determine Plaintiff’s RFC by giving little weight to the opinion of 18 Plaintiff’s treating physician, Dr. Guo, and the disability 19 determination made by the Department of Veteran’s Affairs, and in 20 determining an RFC that was not supported by the medical evidence; (2) 21 determining that Plaintiff was not fully credible; and (3) determining 22 that Plaintiff could perform other jobs. (See Joint Stip. at 4-16, 2423 36, 39-44). 24 25 DISCUSSION 26 27 After consideration of the record as a whole, the Court finds that: 28 (1) Plaintiff’s second claim of error challenging the ALJ’s credibility 3 1 determination has no merit; (2) Plaintiff’s first claim of error 2 regarding the ALJ’s RFC determination, specifically, the little weight 3 given to the Plaintiff’s treating physician has no merit, but 4 Plaintiff’s claim that the ALJ erred in giving little weight to the 5 partial disability determination of the Department of Veteran’s Affairs 6 has merit and warrants a remand for further consideration. 7 8 Since the Court is remanding the matter based, in part, on 9 Plaintiff’s first claim of error, the Court will not address Plaintiff’s 10 claim that the ALJ’s RFC determination (that Plaintiff could perform 11 medium work) was untraceable and unsupported by medical evidence, or 12 Plaintiff’s third claim of error, namely, that the ALJ erred by finding 13 that Plaintiff could perform other jobs. 14 15 A. The ALJ Properly Assessed Plaintiff’s Credibility 16 17 Plaintiff asserts that the ALJ failed to properly assess 18 Plaintiff’s credibility. (See Joint Stip. at 29-36, 39-42). Defendant 19 asserts that the ALJ provided proper reasons for finding Plaintiff not 20 fully credible. (See Joint Stip. at 36-39). 21 22 At the administrative hearing, Plaintiff testified as follows: 23 24 He lives by himself in an apartment. After working for 25 four years as a stocker of magazines, Plaintiff quit the 26 Friday before the hearing, because his back and knee problems 27 are getting worse. 28 6 hours a day. He worked about 4 hours day, and at most (See AR 47-48, 57, 59). 4 1 He has physical issues with his right knee and lower 2 back. 3 lateral bulge on his lower back. 4 over the years. 5 his toe (he has a tingly sensation in his toe when he walks). 6 The average pain level in his back and right knee is about a 7 7, and the average pain level in his ankle is about a 6 (his 8 ankle is getting a little better). Although there had been 9 discussion about back surgery, he was told he was too young. 10 He gets migraine headaches every day; he takes Vicodin to go 11 to sleep (on rare occasions he still has a migraine headache 12 when he wakes up). He gets migraines because of stress or the 13 weather (heat). 14 about 4 hours a night. 15 tries to take a nap once in a while. 16 61-62; see also AR 240 [In a Disability Report - Field Office 17 submitted on the internet on September 8, 2011, Plaintiff 18 reported drowsiness from Vicodin]). His right knee tends to grind when he walks. He had a His back has gotten worse The pain in his back radiates down his leg to He has trouble sleeping at night; he sleeps He feels tired during the day, and (See AR 51-52, 56-59, 19 20 If he had to work as a cashier or as a hand packer for 8 21 hours one day, he probably would not be able to walk the next 22 day. 23 a comfortable place for his back. 24 can sit for about 10 to 15 minutes. 25 to 15 minutes. 26 hour day. 27 back one time this year). He has trouble sitting and has to adjust a lot or find At the start of the day, he He can stand for about 10 He can sit and stand about 2 hours in an 8- He can lift about 5 to 10 pounds (he threw out his With difficulty, he can go on his 28 5 1 knees and get back up. 2 stairs, but it is painful. He can walk up and down a flight of (See AR 53-54, 57). 3 4 He sees a psychiatrist once every two months for his 5 post-traumatic 6 medicine, but the medicine does not work (his nightmares are 7 ten times worse). 8 in the back corner. 9 of people. stress disorder. He has been prescribed He avoids crowds; in a classroom, he sits He cannot handle a job dealing with a lot (See AR 54-55, 58). 10 11 He attends community college full time (studying 12 business), and he is presently in his fourth year. (While he 13 has 93 credits –- substantially more than the 60 credits 14 necessary to get an AA degree -- they were not in specific 15 areas.) 16 his grades, the result of his not being able to focus and not 17 having the energy (he has missed about six classes this 18 semester). This semester was his worst semester with respect to (See AR 50-51, 53). 19 20 He cooks, cleans, and shops at the grocery store. He has 21 a driver’s license and drives. 22 a week, for twenty-five minutes (which he says is past his 23 limit). 24 (leopard geckos and ball pythons). He drives to school two times He spends time on his computer. He breeds reptiles (See AR 59, 62-63). 25 26 He used to go hiking, ride bikes and go swimming. 27 also used to go to clubs and hang out with friends (he no 28 longer feels comfortable there). 6 (See AR 60). He 1 He receives $560 a month from the Department of Veterans 2 Affairs based on 40 percent of disability related to physical 3 issues with his right ankle and migraine headaches. 4 48-49, 52). (See AR 5 6 After summarizing Plaintiff’s testimony (see AR 31-32), the ALJ 7 made the following assessment of Plaintiff’s credibility: 8 9 The claimant’s testimony and statements of record are 10 credible to the extent those statements are consistent with 11 the conclusion the claimant can do the work described herein. 12 . . . After careful consideration of the evidence, the 13 undersigned finds that the claimant’s medically determinable 14 impairments 15 symptoms; however, the claimant’s statements concerning the 16 intensity, persistence and limiting effects of these symptoms 17 are not entirely credible for the reasons explained in this 18 decision. could reasonably be expected to cause some 19 20 In terms of the claimant’s alleged physical impairments, 21 a review of the record demonstrates the claimant has received 22 fairly routine, conservative treatment. 23 claimant was evaluated by Sidney Jones, M.D. for purposes of 24 a veteran compensation and pension examination related to the 25 right knee and ankle (Exhibit 1F, pp. 27-28). 26 claimant did report subjective complaints of pain, he denied 27 any incapacitating episodes, functional limitations or any 28 effect on his daily activities (Exhibit 1F, p. 27). 7 In January 2009, the Although the Range of 1 motion in both the right knee and ankle were not limited by 2 pain or weakness. 3 limits (Exhibit 1F, p. 28). 4 knee and a July 2009 x-ray of the right ankle were normal 5 (Exhibit 1F, pp. 80-81). X-rays of the joints were within normal A March 2009 x-ray of the right 6 7 In February 2011, the claimant sought treatment from the 8 pain clinic for his back and was last seen there in September 9 2010 (Exhibit 1F, p.39). A physical examination showed good 10 range of motion, but was limited by pain, straight leg raise 11 test was positive on the right side, and he was tender to 12 palpation in the paraspinous area bilaterally (Exhibit 1F, p. 13 40). 14 otherwise showed no acute bone change or significant arthritic 15 chance. 16 lumbar radiculopathy, and spina bifida occulta. 17 was recommended to continue home exercises, use of the TENS 18 unit, and to consider other conservative options such as 19 chiropractic 20 Although the claimant underwent lumbar epidural injections and 21 lumbar face injections, he found them to be ineffective in 22 alleviating his pain (Exhibit 1F, pp. 65, 67-68). 23 2011, the claimant’ [sic] obtained an MRI of the lumbar spine, 24 which revealed minor degenerative change with desiccation of 25 the L5-S1 disc, unremarkable neuroforamina, a 3-millimeter 26 bulging annulus at L5-S1, and no herniation of the disc or 27 spinal stenosis (Exhibit 2F, p. 4). 28 warrant any recommendations for more aggressive treatment. An x-ray showed spina bifida occulta of S1, but The claimant was assessed with lumbar spondylosis, care or acupuncture 8 (Exhibit The claimant 1F, p. 41). In April These findings did not 1 In January 2012, the claimant returned to the pain clinic 2 (Exhibit 5F, pp. 34-37). 3 full range of motion in extension, lateral bending, and 4 rotation, but limited range of motion in flexion. 5 exhibited tenderness on palpation in the lower lumbar area. 6 The straight leg tests were negative bilaterally. 7 the claimant had normal strength through his extremities and 8 his gait was observed to be within normal limits (Exhibit 5F, 9 p. 36). On examination, the claimant had He also Notably, Based on the clinical findings and a review of the 10 MRI, the claimant was prescribed a new TENS unit, physical 11 therapy, and medication (Exhibit 5F, p. 37). 12 alleged severity of the low back pain, the claimant had only 13 attended three physical therapy sessions by May 2012 because 14 he was not receiving reminders on his phone and he had 15 forgotten about some of his appointments (Exhibit 6F, p. 3). 16 Moreover, he had not been performing his home exercises on a 17 regular basis (Exhibit 6F, p. 14). 18 diagnostic study of the claimant’s lumbar spine performed in 19 September 2012 was normal (Exhibit 7F, p. 14). 20 claimant complained of increased symptoms in October 2012, the 21 claimant was merely advised on the importance of wearing shoes 22 with good support and to alternate cold pack and warm moist 23 heat (Exhibit 7F, pp. 52-53). 24 treatment is inconsistent with an alleged disabling condition. Despite the Tellingly, a recent Although the The conservative nature of the 25 26 With regard to the right knee, the claimant was provided 27 a brace, which he found to be effective with controlling his 28 knee pain (Exhibits 1F, p. 66 and 5F, p. 39). 9 In December 1 2011, when he sought treatment for right knee pain, he 2 indicated 3 receiving steroid injection for pain relief. 4 examination revealed he had full range of motion on flexion 5 and extension and normal strength in the lower extremities. 6 However, he did have a positive Valgus stress test in the 7 right lower extremity and antalgic gait. 8 treated, he was instructed to return in three months for a 9 follow-up examination (Exhibit 5F, pp. 39-41). physical therapy helped and was interested in A physical After he was Although the 10 claimant continued to complaint [sic] of pain, the frequency 11 of 12 impairment was not as severe as alleged. 13 diagnostic study of the claimant’s knee performed in September 14 2012 was normal (Exhibit 7F, p. 14). the follow-up visit suggests the claimant’s alleged Tellingly, a recent 15 16 With regard to the migraine headaches, a February 2010 17 magnetic resonance imaging (MRI) scan of the claimant’s brain 18 was unremarkable (Exhibit 5F, p. 25). 19 claimant’s symptoms were assessed as tolerable and he was 20 prescribed a trial of Vicodin (Exhibit 1F, p. 60). 21 2012, the claimant’s migraines were considered stable (Exhibit 22 6F, pp. 4-6). 23 stable through September 2012 (Exhibit 7F, p. 63). By May The claimant’s migraines continued to remain 24 25 26 In October 2010, the * * * * * 27 28 10 1 Turning to the alleged mental impairments, though the 2 claimant has received consistent treatment, they have been 3 routine counseling treatments (Exhibit 1F, 2F, and 5F-7F). At 4 times, 5 overall, his mental status examinations were generally within 6 normal limits (Exhibits 2F, p. 8; 5F, pp. 45, 55, 63-645, 69- 7 70l; 6F, pp. 16, 23, 30, 38-39, 54-55, 60; and 7F, pp. 42, 44- 8 45, 55, 69, 80-81). 9 functioning the claimant (GAF) did report increased symptoms, but In addition, his global assessment of score has ranged between 55 to 70, 10 indicating mild to moderate impairment. 11 recent GAF score of 70 was assessed in July 2012, which 12 demonstrates that conservative treatment is effective in 13 controlling his symptoms (Exhibit 7F, p. 82). In fact, the 14 claimant had not expressed interest in psychiatric medication 15 until 16 claimant’s 17 Moreover, his symptoms have not worsened to the point where he 18 required hospitalization. Finally, the claimant has been able 19 to attend and perform fairly well in college courses, which is 20 contrary to what would reasonably be expected for a disabling 21 mental health condition. that time, mental which will health likely symptoms Significantly, a further (Exhibit improve 7F, p. the 82). 22 23 (AR 32-34, bracketed footnote added). 24 25 A claimant initially must produce objective medical evidence 26 establishing a medical impairment reasonably likely to be the cause of 27 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 28 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). 11 Once a 1 claimant produces objective medical evidence of an underlying impairment 2 that could reasonably be expected to produce the pain or other symptoms 3 alleged, and there is no evidence of malingering, the ALJ may reject the 4 claimant’s testimony regarding the severity of his pain and symptoms 5 only by articulating clear and convincing reasons for doing so. Smolen 6 v. Chater, supra; see also Reddick v. Chater, 157 F.3d 715, 722 (9th 7 Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 8 1997). 9 10 Here, substantial evidence supports the ALJ’s finding that 11 Plaintiff’s testimony about the intensity, persistence and limiting 12 effects of the symptoms was not fully credible. 13 14 First, the ALJ’s finding that Plaintiff’s abilities to perform 15 certain daily activities, such as living on his own, cooking, cleaning, 16 grocery shopping, driving to college, attending college, taking 17 business-related courses at college, spending time on the computer, 18 breeding reptiles, and working part-time (see AR 31, 34) was a clear and 19 convincing reason for discrediting Plaintiff’s testimony. See Molina v. 20 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)(“Even where those [daily 21 activities] suggest some difficulty functioning, they may be grounds for 22 discrediting the claimant’s testimony to the extent that they contradict 23 claims of a totally debilitating impairment.”); Reddick v. Chater, 157 24 F.3d 715, 722 (9th Cir. 1998)(“Only if the level of activity were 25 inconsistent with the Claimant’s claimed limitations would these 26 activities have any bearing on Claimant’s credibility.”); Light v. 27 Social Security Admin., 119 F.3d 789, 792 (9th Cir. 1997)(“In weighing 28 a claimant’s credibility, the ALJ may consider his reputation for 12 1 truthfulness, inconsistencies either in his testimony or between his 2 testimony and his conduct, his daily activities, his work history, and 3 testimony from physicians and third parties concerning the nature, 4 severity, and effect on the symptoms of which he complains.”); see also 5 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) 6 (ALJ properly discounted claimant’s testimony based, in part, on the 7 claimant’s ability to recently work). 8 9 Second, the ALJ’s finding that there was a lack of objective 10 medical evidence supporting Plaintiff’s alleged limitations (see AR 3211 34) was a clear and convincing reason for partially discrediting 12 Plaintiff’s testimony.3 See Burch v. Barnhart, 400 F.3d 676, 681 (9th 13 Cir. 2005)(“Although lack of medical evidence cannot form the sole basis 14 for discounting pain testimony, it is a factor that the ALJ can consider 15 in his credibility analysis.”); Rollins v. Massanari, 261 F.3d 853, 857 16 (9th Cir. 2001)(“While subjective pain testimony cannot be rejected on 17 the sole ground that it is not fully corroborated by objective medical 18 evidence, the medical evidence is still a relevant factor in determining 19 the severity of the claimant’s pain and its disabling effects.”); Morgan 20 v. Commissioner, 169 F.3d 595, 599-60 (9th Cir. 1999). 21 22 With respect to Plaintiff’s lower back and right knee impairments, 23 the evidence in the record, as discussed by the ALJ, did not support 24 3 Contrary to Plaintiff’s assertion (see Joint Stip. at 32), the 25 ALJ did not rely only on Plaintiff’s ability to perform certain daily activities as a basis for finding Plaintiff partially not credible. 26 Moreover, although Plaintiff claims that the ALJ improperly relied on on Plaintiff’s conservative treatment to partially discredit Plaintiff 27 (see Joint Stip. at 32-36, 40-42), it appears that the ALJ was actually relying on the lack of objective medical evidence supporting Plaintiff’s 28 alleged limitations to partially discredit Plaintiff. 13 1 Plaintiff’s testimony concerning the limiting effects of his symptoms. 2 Such evidence included the following records from Loma Linda VA Medical 3 Center (“Loma Linda”): 4 5 2009 6 7 (1) a March 27, 2009 imaging report of Plaintiff’s right knee (see 8 AR 560-61 [containing the following findings: “There is no bony or joint 9 space abnormality. No evidence of fracture[.]”]); (2) a July 15, 2009 10 evaluation of the right knee and ankle for purposes of a veteran 11 compensation and pension examination4 (see AR 281-82 [noting that he did 12 not take any medications, denied any incapacitating episodes, functional 13 limitations or flares, or any effect on his daily activities; finding 14 that the range of motion in his right knee and right ankle was not 15 limited by pain or weakness, the knee was stable to varus and valgus 16 stress and to anterior and posterior stress, and that radiographs of the 17 right knee and X-rays of the right ankle were within normal limits; and 18 diagnosing a “[r]ight ankle sprain secondary to (blank) ankle sprain” 19 and “[r]ight knee pain secondary to inflammation of the patella and 20 quadriceps tendon”]); (3) a March 27, 2009 x-ray report of the right 21 knee (see AR 334-35 [finding “no bony or joint space abnormality”])5; and 22 23 24 4 The ALJ and Respondent state that this evaluation took place in January 2009. (See AR 32; Joint Stip. at 17-18). However, the only date on the report of the evaluation is July 15, 2009. The Court notes that Plaintiff does not even discuss this evaluation. 25 5 The ALJ incorrectly stated that the x-ray of the right knee 26 took place in September 2012, rather than March 2009 (see AR 33). However, that x-ray took place after the alleged onset of disability 27 date (July 13, 2008), and did not support Plaintiff’s testimony about 28 the disabling effect of his symptoms 14 related to his right knee (continued...) 1 (4) a July 13, 2009 x-ray report of the right ankle (see AR 334 [finding 2 no “fractures or soft tissue abnormalities”]). 3 4 2010 5 6 (1) a January 8, 2010 report concerning imaging of Plaintiff’s 7 lumbrasacral spine (see AR 333-34 8 destruction is noted. [“No fracture, dislocation or bone There is spina bifida occulta of S1.”]); (2) a 9 June 1, 2010 physical medicine rehab note (see AR 327-29 [noting 10 evidence of S1 spina bifida occulta and right ankle extensor 11 tendinitis]); (3) a July 28, 2010 pain consult note (see AR 322-26 [good 12 range of motion in the back, limited by pain (which was worse with 13 extension and bilateral oblique extension and axial loading), a mild 14 positive straight leg raise test on the right side, and tenderness to 15 palpation of the paraspinous area bilaterally; diagnosing lumbar 16 spondylosis, lumbar radiculpathy, and spina bifida occulta; and 17 recommending injections, continued home exercises and a TENS unit]); (4) 18 August 26, 2010 and September 10, 2010 reports of fluoroscopies for 19 injections (see AR 330-31); and (5) a September 8, 2010 physical 20 medicine rehab note (see AR 320 [ordering a patella tracking brace]). 21 /// 22 /// 23 /// 24 25 26 27 5 (...continued) 28 impairment. 15 1 2011 2 3 (1) a January 27, 2011 report of imaging of the right ankle (see AR 4 330 [“7 mm ovoid density is seen, which may represent an accessory 5 ossicle versus an old fracture fragment. Mild surrounding soft tissue 6 swelling is seen, particularly lateral aspect.”]); (2) January 28, 2011 7 nursing notes (see AR 303-05 [suffered right ankle swelling after 8 rolling his ankle, and complained of an increased amount of right knee 9 pain]); (3) a February 18, 2011 occupational consult record (see AR 29710 300 [noting complaints of pain in the center of his lower back and 11 intermittent shooting pain down the back of his right thigh, had a TENS 12 unit and took Vicodin (both of which alleviated some of the pain), had 13 two sessions of epidural injections which did not significantly 14 alleviate the pain, and complained of pain in the right ankle; finding 15 a decreased range of motion on right ankle flexion and tenderness in his 16 right ankle; and with respect to Plaintiff’s back, had tenderness to 17 palpation “on the bilateral side of L4,” and “the paraspinal muscles of 18 L4,” “[n]o tenderness to the vertebral bodies of the lumbar spine,” a 19 full range of motion “on flexion/extension with exacerbation of 20 tenderness in the lower lumbar spine,” a full range of motion “on 21 bilateral bending,” “[t]enderness in the right lumbar parspinal muscles 22 on standing on right foot”, and a straight leg raise test showed 23 “localized tenderness in the lumbar spine”; and diagnosing chronic low 24 back pain, arthralgia of the knee and foot pain]); (4) a February 24, 25 2011 pain clinic note (see AR 293–95 (noting that he was last seen in 26 the pain clinic in September 2010, at which time he had two injections, 27 i.e., lumbar epidural and lumbar facet, see AR 319-20, which did not 28 provide pain relief, complained of back pain radiating down the right 16 1 leg which increased with prolonged standing and bending over and 2 temporarily decreased with the TENS unit and laying down; finding his 3 back had a good range of motion (limited by pain, which was worse with 4 extension), his straight leg raise test was positive on his right side, 5 and there was tenderness to palpation in the paraspinous area 6 bilaterally, the verterbral height and disc spaces were maintained, 7 there was no fracture, dislocation or bone destruction, and there was 8 no acute bone change or significant arthritic change; and diagnosing 9 lumbar spondylosis, lumbar radiculopathy, and spina bifida occulta; and 10 recommending an MRI, continued home exercises, the TENS unit, and 11 consideration of other options (i.e., chiropractor, acupuncture]); (5) 12 an April 8, 2011 MRI report of the lumbar spine [see AR 342-43 [finding 13 mild degenerative change with desiccation of L5-S1, a 3 mm bulging 14 annulus of L5-S1, no herniation of disc or spinal stenosis, no 15 intradural abnormal signal intensity, and unremarkable bilateral 16 neuroforamina, conus medullaris and paraspinal regions; and diagnosing 17 “[m]ild degenerative change with dessication of L5-S1 disc” and 3 mm 18 bulging annulus of L5-S1]); (6) a July 15, 2011 orthotics prothetics 19 consult note stating that adjustments were made to his custom knee 20 brace, and he would be given a new brace to try out (see AR 445-46); (7) 21 an October 17, 2011 internal medicine note (see AR 431-33 [he stated his 22 knee brace helped with his daily out of home activities (although it 23 caused secondary pain due to rubbing) and his foot/ankle pain did not 24 limit his activity; finding, with respect to the back, “symmetric, 25 verterbral and parapverterbral [tenderness to palpation] lumbar and 26 sacral regions”; and finding, with respect to the right knee, 27 “[Tenderness to palpation] medial femoral condyle, and lateral fibular 28 17 1 head, referred numbness with palpation of popliteal fossa”]); and (8) a 2 December 27, 2011 physical medicine rehab consult note (see AR 411-14 3 [complained of right knee pain, and stated the knee brace helped with 4 knee pain (although the metal bar pushing on the knee caused a different 5 pain), physical therapy had helped a little, and he was interested in 6 steroid injections for pain relief; finding “[s]ymmetric, no erythema 7 along the knee joint,” “[n]o effusion palpable, [tenderness to 8 palpation] along the lateral joint lines, a full range of motion on 9 flexion and extension, and normal strength in the lower extremities, but 10 a positive Vaglus stress test in the right lower extremity and an 11 antalgic gait; indicating that he received a steroid injection on the 12 right knee; and recommending a physical therapy refresher course for 2 13 to 4 sessions and return for a follow up examination after 3 months]). 14 15 2012 16 17 (1) a January 25, 2012 pain clinic note (see AR 406-09 [home 18 exercises helped somewhat with the back pain and he was interested in 19 getting a new TENS unit because it helped with pain; finding a full 20 range of motion in extension, lateral bending, and rotation but limited 21 in flexion due to pain, tenderness on palpation in the lower lumbar 22 area, and that his straight leg raise tests were negative bilaterally, 23 he had normal strength throughout his extremities, and his gait was 24 within normal limits; and prescribing a new TENS unit, physical therapy, 25 and medication]); (2) a March 13, 2012 physical therapy note, following 26 an initial evaluation the day before (see AR 488-91 [noting that he had 27 an “achy pain with radiating numbness and tingling down his [right lower 28 extremity]” which “[c]entralizes with extension,” his range of motion 18 1 with respect to his lumbar spine was minimally/moderately limited, and 2 there was pain with flexion, right rotation and right sideband, there is 3 tenderness to palpation on the right aspect of the low back, and his 4 straight leg raise test was positive on the right side]6); (3) an April 5 2, 2012 physical therapy note (see AR 481-82 [no reported change in pain 6 level since initial physical therapy evaluation]); (4) an April 24, 2012 7 physical therapy note (see AR 475-77 [stated that pain decreased for 8 approximately 2 days following traction, he had not been performing his 9 home exercises on a regular basis, and he had a “flare up” of pain that 10 morning]); (5) a May 14, 2012 physical medicine rehab note (see AR 465 11 [he had attended only three physical therapy sessions and stated he did 12 not get telephone reminders and forgot about some appointments]); (6) 13 May 30, 2012 and June 7, 2012 physical therapy notes (see AR 644-47 14 [noting that he complained of low back pain and had a “flare up” because 15 of the car ride, and that treatment was a hot pack/cold pack, 16 therapeutic exercise, and traction]; (7) a September 19, 2012 report 17 concerning the imaging of the lumbrosacral spine (see AR 559 [“The 18 sagittal and coronal alignment is normal. Bony ossification is normal. 19 No loss of verterbral body height or intervertebral disc space is 20 demonstrated. There is no soft tissue abnormality.”]); (8) a May 24, 21 2012 physical therapy note (see AR 649 [complained of low back pain, 22 stated he has not been doing his home exercises, and pain decreased 23 6 As Defendant contends (see Joint Stip. at 38), the ALJ 24 arguably was not allowed to use the physical therapist’s March 13, 2012 notation about Plaintiff’s positive straight leg raise test as evidence 25 to establish the existence of his lower back impairment. See 20 C.F.R. §§ 404.1513(a), 416.913(a). In any event, evidence of the March 13, 26 2012 positive straight leg raise test (the second of his positive straight leg raise tests, see AR 294 [February 24, 2011]) does not 27 affect the validity of the ALJ’s determination about the credibility of Plaintiff’s testimony concerning the disabling effects of his lower back 28 symptoms. 19 1 following treatment]; and (9) an October 1, 2012 nursing note (see AR 2 597-98 [during an unscheduled visit, he complained of low back pain, and 3 that he was advised to wear shoes with good support and not wear 4 flip/flops or thongs and to alternate a cold pack with warm moist 5 heat]7). 6 7 Thus, the ALJ properly found that Plaintiff’s testimony about 8 totally disabling symptoms was not supported by the medical evidence. 9 10 With respect to Plaintiff’s migraine headache impairment, the 11 evidence in the record, as discussed by the ALJ, did not support 12 Plaintiff’s testimony concerning the limiting effects of his symptoms. 13 Such evidence included the following from Loma Linda: (1) a February 23, 14 2010 note (see AR 280 [reported suffering migraine headaches]); (2) an 15 October 29, 2010 clinical psychology note (see AR 310-11 [he reported a 16 recent increase in his migraine headaches]); (3) a February 18, 2010 MRI 17 report of the brain (see AR 395-97 [“Brain and ventricles unremarkable. 18 Diffusion shows no acute infarction. No bleed or mass seen. Visible 19 portions of paranasal sinuses clear.”]); (4) an October 17, 2011 note 20 (see AR 431-33 [he stated he had daily migraine headaches last week in 21 the afternoon and evening, and finding that his headaches were 22 controlled with Vicodin and rest]); (5) an October 26, 2010 note (see AR 23 24 25 26 27 28 7 Although Plaintiff challenges the ALJ’s reliance on such advice on the grounds that it was not given by his primary care physician (see Joint Stip. at 35), the ALJ nonetheless was entitled to rely on it. In any event, the results of the September 19, 2012 imaging of Plaintiff’s lumbrosacral spine (see AR 559), which took place less than two weeks before such advice was given (October 1, 2012), clearly was more critical to the ALJ’s determination about Plaintiff’s credibility. (See AR 33 [“Tellingly, a recent diagnostic study of the claimant’s lumbar spine performed in September 2012 was normal (Exhibit 7F, p. 14).”(emphasis added)]). 20 1 312-14 [finding that migraine headaches were tolerable, and he was 2 prescribed a trial of Vicodin]); (6) a May 9, 2012 note (see AR 466-68 3 [finding migraine headaches were stable]); and (7) a September 10, 2012 4 internal medicine note (see AR 606-08 [migraine headaches were “on and 5 off” and were triggered by stress and/or lack of sleep; and finding his 6 migraine headaches were stable]). Such evidence was inconsistent with 7 Plaintiff’s testimony of totally disabling symptoms. 8 9 With respect to Plaintiff’s post-traumatic stress disorder 10 impairment, the evidence in the record, as discussed by the ALJ, did not 11 support Plaintiff’s testimony concerning the limiting effects of his 12 symptoms. Evidence of Plaintiff’s mental health treatment consisted of 13 the following records: 14 15 Counseling 16 17 Notes from Loma Linda regarding Plaintiff’s visits to psychotherapy 18 or other counseling on several occasions from July 10, 2009 and June 3, 19 2011, based on his diagnosis of post-traumatic stress disorder 20 (originally diagnosed in January 2009). These records - (see AR 256-66, 21 268-70, 309-11, 317-18, 346, 346-48) consistently note that Plaintiff 22 denied any problems with his emotional well-being, and report that 23 Plaintiff was appropriately dressed and well-groomed, generally 24 cooperative and polite, used appropriate eye contact, spoke clearly and 25 normally, had linear flow of thought, normal and logical content of 26 thought, normal perception, was in a good mood and did not show any 27 indication of depression or anxiety, had a full range of affect, was 28 alert and oriented, had good attention and insight, and had intact 21 1 judgment. In addition, mental health notes dated April 25, 2011 and 2 March 13, 2012 noted that Plaintiff was not currently taking any 3 psychotropic medication, but was planning on talking to his primary care 4 doctor about being prescribed psychotropic medication, and stated he had 5 never been psychiatrically hospitalized. (see AR 355-57, 361-64, 374- 6 92, 419-20, 422-23, 426-27, 435-37, 441-43, 447-48, 450-51, 477-78, 4847 88, 491-93, 497-501, 508-10, 515-18, and 520-22, 621-29. See also AR 546 8 [note indicating that on July 25, 2012 he was prescribed Sertraline HCL 9 for depression], 599-601, 613-15 [mental health note dated August 29, 10 2012, noting that he stated “I’m doing good”]; 631, and 637 [psychiatry 11 note dated June 14, 2012, noting that he had not previously been 12 prescribed any psychotropic medications for his mental health issues]. 13 The ALJ properly found that the medical records reflected routine 14 counseling and mental status examinations generally within normal 15 limits. 16 17 Evaluation 18 19 A July 14, 2011 report of a psychiatric evaluation performed by 20 Estelle Tobgy Goldstein, M.D. (a psychiatrist), found inter alia that 21 Plaintiff was neatly and casually groomed, was able to volunteer 22 information spontaneously, his thought process was coherent and 23 organized, his thought content was relevant and non-delusional and he 24 did not have suicidal, homicidal or paranoid ideation (although he said 25 he sometimes saw shadows out of the corner of his eye and sometimes 26 heard voices), his mood was euthymic and his affect was euthymic and 27 congruent with thought content (he stated that he had some, but not a 28 great deal of, depressed moments, that his combat memories were 22 1 intrusive, and that he was hypersensitive to loud noises), his speech 2 was normal and clear, he was alert and oriented and was of at least 3 average intelligence, he was able to concentrate and calculate, and he 4 had fair insight and judgment. (see AR 365-70). 5 6 Global Assessment Functioning 7 8 The ALJ properly found that Plaintiff’s Global Assessment of 9 Functioning (“GAF”) scores indicated mild to moderate symptoms (see AR 10 517 [70, February 11, 2009], 510 [70, May 8, 2009], 504 [70, July 10, 11 2009], 362 [55, March 8, 2011], 347 [55, May 31, 2011], 442 [55, August 12 29, 2011], 436 [55, September 26, 2011], 423 [55, November 29, 2011], 13 498 [55, February 29, 2012], 492 [55, March 12, 2012], 478 [55, April 14 18, 2012], 627 [55, 70, July 25, 2012], 614 [55, August 29, 2012], and 15 600 [55, September 26, 2012]).8 As the ALJ pointed out, Plaintiff’s GAF 16 was as high as 70 in July 2012 (at least three years after he began to 17 seek mental health care treatment, and prior to being prescribed any 18 19 20 21 22 23 24 25 8 A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and has some meaningful relationships. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (“DSM-IV-TR”), 34 (2000). A GAF score of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” See id. “[T]he [GAF] score is used for treatment purposes and not for 26 rating a person’s ability to work.” Deck v. Colvin, 2014 WL 7388792, *1 (9th Cir.). 27 28 23 1 psychotropic medication). Moreover, as the ALJ noted, there is no 2 indication in the record that Plaintiff was ever hospitalized for 3 symptoms related to his post-traumatic stress disorder. Thus, the ALJ 4 properly found that such evidence (or lack thereof) simply did not 5 support Plaintiff’s testimony of totally disabling symptoms. 6 7 Third, the ALJ’s finding that Plaintiff’s migraine headaches were 8 controlled with pain medication and rest (see AR 33) was a clear and 9 convincing reason for finding Plaintiff partially not credible. 10 Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th See Cir. 11 2006)(“Impairments that can be controlled effectively with medication 12 are not disabling for purposes of determining eligibility for SSI 13 benefits.”); 20 C.F.R. §§ 1529(c)(3)(iv), 416.929(c)(3)(iv) (an ALJ may 14 consider, among other things, the type, dosage, effectiveness and side 15 effects of any medication a claimant takes or has taken in evaluating 16 the intensity and persistence of symptoms, such as pain, and in 17 determining the extent to which symptoms limit a claimant’s capacity for 18 work). As noted by the ALJ, on October 17, 2011, the pain for 19 Plaintiff’s migraine headaches was “controlled with vicaden [sic] and 20 rest” (see AR 433), and he reported only mild side effects from taking 21 Vicodin for his migraine headaches (see AR 52-53 [he testified he sleeps 22 after taking Vicodin], AR 240 [he reported drowsiness from Vicodin]). 23 24 Accordingly, the ALJ did not 25 credibility. 26 /// 27 /// 28 /// 24 err in assessing Plaintiff’s 1 B. The ALJ Did Not Err in Assessing the Treating Physician’s Opinion 2 3 Plaintiff asserts that the ALJ erred in giving little weight to the 4 opinion of Plaintiff’s treating physician, Dr. Guo. (See Joint Stip. at 5 13-15, 27). Defendant asserts that the ALJ properly gave little weight 6 to Dr. Guo’s opinion. (See Joint Stip. at 20). 7 8 Andrew H. Guo, M.D., Chief of Occupational Medicine at Loma Linda, 9 performed a “Functional Evaluation - Consult” on February 18, 2011, 10 examined Plaintiff, and made the following findings with respect to 11 Plaintiff’s lower extremity: “Decrease[d] [range of motion] on right 12 ankle flexion”; “Tenderness over the posterior and anterior borders of 13 the lateral malleolus”; and “Tenderness in this area on inverstion and 14 plantarflexion.” Dr. Guo made the following findings with respect to 15 Plaintiff’s back: “[Tenderness to palpation] over facet joints on the 16 bilateral side of L4"; “Tenderness over the paraspinal muscles of L4"; 17 “No tenderness to the verterbral bodies of the lumbar spine”; “Full 18 [range of motion] on flexion/extension with exacerbation of tenderness 19 in the lower lumbar spine”; “Full [range of motion] on bilateral 20 bending”; “Tenderness in the right lumbar paraspinal muscles on standing 21 on right foot”; and “[Straight leg raise test] ellicits [sic] localized 22 tenderness in the lumbar spine[.]” Dr. Guo diagnosed Plaintiff with 23 chronic low back pain, arthralgia in the knee, and foot pain. 24 297-300). (See AR Under the section on Plans, Dr. Guo made the following 25 comments: 26 27 28 The patient has pain in the lower lumbar spine and right ankle. The patien[t] had been receiving treatment from 25 1 podiatry for the ankle but appears to have been lost to follow 2 up last year. 3 treatment and was advised to return to follow up. The patient 4 has not had extensive workup for the lumbrasacral pain and may 5 benefit from a specialty referral. . . . Given his current 6 findings, I recommend the following physical restrictions: [¶] 7 No prolonged standing/walking over 30 minutes at a time (using 8 orthotics)[;] No lifting/pulling pushing over 20 pounds[;] No 9 Running or jumping[;] No repetative [sic] bending[;] [and] No 10 The patient would benefit from continued kneeling, squatting, crawling[.] 11 12 (AR 300). 13 14 The ALJ addressed Dr. Guo’s opinion as follows: 15 16 The opinion of Andrew Guo, M.D. is given little weight 17 (Exhibit 1F, p.46). . . . 18 restrictions 19 claimant had not had extensive work for the lumbrosacral pain 20 and had not followed-up with right ankle treatment. 21 this 22 claimant obtained treatment and was not an opinion on the 23 claimant’s 24 provides insight into the alleged severity of the claimant’s 25 impairments, it is not probative in determining the claimant’s 26 residual functional capacity. after appears to a be maximum Although Dr. Guo provided these physical examination, preventative physical 27 28 26 he restrictions capabilities. (AR 34). noted the Thus, until Although the it 1 Although a treating physician's opinion is generally afforded the 2 greatest weight in disability cases, it is not binding on an ALJ with 3 respect to the existence of an impairment or the ultimate determination 4 of disability. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 5 1195 (9th Cir. 2004); Magallanes v. Bowen, 812 F.2d 747, 751 (9th Cir. 6 1989). The weight given a treating physician’s opinion depends on 7 whether it is supported by sufficient medical data and is consistent 8 with other evidence in the record. 20 C.F.R. § 416.927(b)-(d). If the 9 treating physician’s opinion is not contradicted by another doctor, it 10 may be rejected only for “clear and convincing” reasons. Lester v. 11 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). If the treating 12 doctor's opinion is contradicted by another doctor, the ALJ must provide 13 “specific and legitimate reasons” for rejecting the treating physician’s 14 opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Reddick v. 15 Chater, supra, 157 F.3d at 725; Lester v. Chater, supra, 81 F.3d at 830; 16 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). 17 18 Contrary to Plaintiff’s assertion, it appears that Dr. Guo was not 19 Plaintiff’s treating physician. The Court has not been able to locate, 20 and Plaintiff has failed to cite, any record reflecting that Dr. Guo 21 treated Plaintiff prior to February 18, 2011. Thus, the standards set 22 forth above for evaluating the opinion of a treating physician do not 23 apply. In any event, the ALJ’s determination that Dr. Guo’s opinion was 24 entitled to little weight because it was not an opinion about 25 Plaintiff’s maximum physical capabilities was proper. See Thomas v. 26 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (An ALJ “need not accept the 27 opinion of any physician, including a treating physician, if that 28 27 1 opinion is brief, conclusory and inadequately supported by clinical 2 findings.”). 3 4 C. The ALJ Failed to Provide A Proper Reason for Giving Little Weight 5 to the Partial Disability Determination by the Department of 6 Veteran’s Affairs 7 8 Plaintiff asserts that the ALJ erred in giving little weight to the 9 opinion of the Department of Veteran’s Affairs (“VA”). (See Joint Stip. 10 at 15-16, 28). Defendant asserts that the ALJ properly gave little 11 weight to the VA’s opinion. (See Joint Stip. at 20). 12 13 Plaintiff received a 40 percent rating of disability (30 percent 14 for migraine headaches, l0 percent for tendon inflammation) under the 15 rubric of the VA. (See AR 571-73, 575-77, 580-82, 584; see also AR 4816 49, 297).9 17 18 The ALJ addressed the VA’s disability determination as follows: 19 20 Although the claimant currently receives veteran 21 disability benefits based on 40 percent disability due to 22 migraine headaches and tendon inflammation, this determination 23 was made using criteria based on rules of the Department of 24 Veterans Affairs and was not based on the laws or regulations 25 under the Social Security Act (Exhibit 7F, p. 26). 26 the percentage of disability is not indicative of any specific Moreover, 27 28 9 There is no indication in the record as to when the VA made its partial disability determination. 28 1 limitations on the claimant’s abilities to perform work- 2 related activity. 3 severity of the claimant’s physical impairments, the ultimate 4 determination of disability is an issue reserved for the 5 Commissioner (SSR 06-03p). 6 the disability rating. Although it may provide evidence of the Thus, little weight is given to (AR 34). 7 8 “[I]n an [Social Security Disability] case an ALJ must ordinarily 9 give great weight to a VA determination of disability.” McCartey v. 10 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)(“Both programs serve the 11 same governmental purpose–-providing benefits to those unable to work 12 because of a serious disability. Both programs evaluate a claimant’s 13 ability to perform full-time work in the national economy on a sustained 14 and continuing basis; both focus on analyzing a clamant’s functional 15 limitations; and both require claimants to present extensive medical 16 documentation in support of their claims. . . . Both programs have a 17 detailed regulatory scheme that promotes consistency in adjudication of 18 claims. Both are administered by the federal government, and they share 19 a common incentive to weed out meritless claims. The VA criteria for 20 evaluating disability and translate easily into SSA’s disability 21 framework.”). “Because the VA and SSA criteria for determining 22 disability are not identical, however, the ALJ may give less weight to 23 a VA disability rating if he gives persuasive, specific, valid reasons 24 for doing so that are supported by the record.”). Id. 25 26 Here, the 27 determination ALJ’s little reasons weight, for giving specifically, 28 29 the (1) VA’s the disability criteria for 1 determining disability under the VA program and the Social Security Act 2 are different, and (2) the percentage of disability is not indicative of 3 any specific limitations on Plaintiff’s abilities to perform work4 related activity and the ultimate determination of disability is an 5 issue reserved for the Commissioner, were improper. See id.; Allen v. 6 Astrue, 2012 WL 234629, *4 (“The ALJ stated simply she was not bound by 7 [the VA’s] disability finding. This is not a persuasive, specific and 8 valid reason for rejecting the VA’s finding of disability.”). 9 10 Therefore, the ALJ failed to provide a persuasive, specific and 11 valid reason for giving little weight to the VA’s partial disability 12 determination. Since there is nothing in the record concerning the 13 basis of and the reasons for the VA’s partial disability determination, 14 the Court is unable to find that the ALJ’s error was harmless. See 15 Tommassetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)(an ALJ’s 16 error is harmless “when it is clear from the record . . . that it was 17 ‘inconsequential to the ultimate nondisability determination.’”). 18 19 D. Remand Is Warranted 20 21 The decision whether to remand for further proceedings or order an 22 immediate award of benefits is within the district court’s discretion. 23 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 24 useful purpose would be served by further administrative proceedings, or 25 where the record has been fully developed, it is appropriate to exercise 26 this discretion to direct an immediate award of benefits. Id. at 1179 27 (“[T]he decision of whether to remand for further proceedings turns upon 28 30 1 the likely utility of such proceedings.”). However, where, as here, the 2 circumstances of the case suggest that further administrative review 3 could remedy the Commissioner’s errors, remand is appropriate. McLeod 4 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra, 5 211 F.3d at 1179-81. 6 7 Since the ALJ failed to provide a proper reason for giving little 8 weight to the Department of Veteran Affairs’ partial disability 9 determination, remand is appropriate. Because outstanding issues must 10 be resolved before a determination of disability can be made, and “when 11 the record as a whole creates serious doubt as to whether the 12 [Plaintiff] is, in fact, disabled within the meaning of Social Security 13 Act,” further administrative proceedings would serve a useful purpose 14 and remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 15 2014)(citations omitted).10 16 /// 17 /// 18 /// 19 20 21 10 Except for the issues concerning the ALJ’s assessment of credibility and the opinion of Plaintiff’s treating physician, the Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s claim that the ALJ’s finding that Plaintiff could perform medium work was untraceable and unsupported by medical evidence (see Joint Stip. at 8-13, 24-26), and that the ALJ erred in finding that Plaintiff could perform other jobs (see Joint Stip. at 42-44). Because this matter is being remanded for further consideration, these issues should also be considered on remand. 22 Plaintiff’s 23 24 25 26 27 28 31 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 reversed, and the matter is remanded for further proceedings pursuant to 5 Sentence 4 of 42 U.S.C. § 405(g). On remand, the ALJ should make sure 6 the record is fully developed with respect to all records relevant to 7 the VA’s partial disability determination. 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 DATED: November 2, 2015. 12 13 14 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32
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