Marian Butler v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, No. 5:2015cv02049 - Document 25 (C.D. Cal. 2016)

Court Description: DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner's decision and REMANDING this action for further proceedings, and it is further ORDERED that The Clerk of the Court shall file this Decision and Order and serve copies upon counsel for the parties. (wr) Modified on 11/8/2016 (wr).

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Marian Butler v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration Doc. 25 O 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 Case No. 5:15-CV-02049 (VEB) MARIAN BUTLER, 9 DECISION AND ORDER Plaintiff, 10 vs. 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 Defendant. 13 14 I. INTRODUCTION 15 In March of 2012, Plaintiff Marian Butler applied for Disability Insurance 16 Benefits under the Social Security Act. The Commissioner of Social Security denied 17 the application. 18 Plaintiff, by and through her attorneys, California Lawyers Group, LLP, 19 Michael Stuart Brown, Esq. of counsel, commenced this action seeking judicial 20 1 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB Dockets.Justia.com 1 review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) 2 and 1383 (c)(3). 3 The parties consented to the jurisdiction of a United States Magistrate Judge. 4 (Docket No. 3, 13, 23, 24). On August 2, 2016, this case was referred to the 5 undersigned pursuant to General Order 05-07. (Docket No. 22). 6 II. BACKGROUND 7 8 Plaintiff applied for benefits on March 12, 2012, alleging disability beginning 9 November 22, 2007 (later amended to December 3, 2008), due to several 10 impairments. (T at 13).1 The application was denied initially and on reconsideration. 11 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). 12 On October 16, 2013, a hearing was held before ALJ Duane D. Young. (T at 13 25). Plaintiff appeared with her attorney and testified. (T at 31-47). The ALJ also 14 received testimony from Sandra Fioretti, a vocational expert (T at 59-62), and Tom 15 Butler, Plaintiff’s husband. (T at 49-58). 16 On March 25, 2014, the ALJ issued a written decision denying the application 17 for benefits. (T at 10-24). The ALJ’s decision became the Commissioner’s final 18 19 20 1 Citations to (“T”) refer to the administrative record at Docket No. 16. 2 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 decision on August 6, 2015, when the Appeals Council denied Plaintiff’s request for 2 review. (T at 1-7). 3 On October 5, 2015, Plaintiff, acting by and through her counsel, filed this 4 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 5 1). The Commissioner interposed an Answer on March 8, 2016. (Docket No. 15). 6 The parties filed a Joint Stipulation on July 26, 2016. (Docket No. 21). 7 After reviewing the pleadings, Joint Stipulation, and administrative record, 8 this Court finds that the Commissioner’s decision must be reversed and remanded 9 for further proceedings. III. DISCUSSION 10 11 A. Sequential Evaluation Process 12 The Social Security Act (“the Act”) defines disability as the “inability to 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which has 15 lasted or can be expected to last for a continuous period of not less than twelve 16 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 17 claimant shall be determined to be under a disability only if any impairments are of 18 such severity that he or she is not only unable to do previous work but cannot, 19 considering his or her age, education and work experiences, engage in any other 20 3 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 2 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 3 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 6 one determines if the person is engaged in substantial gainful activities. If so, 7 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 8 decision maker proceeds to step two, which determines whether the claimant has a 9 medically severe impairment or combination of impairments. 20 C.F.R. §§ 10 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 11 If the claimant does not have a severe impairment or combination of 12 impairments, the disability claim is denied. If the impairment is severe, the 13 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 14 with a number of listed impairments acknowledged by the Commissioner to be so 15 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 16 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 17 equals one of the listed impairments, the claimant is conclusively presumed to be 18 disabled. If the impairment is not one conclusively presumed to be disabling, the 19 evaluation proceeds to the fourth step, which determines whether the impairment 20 4 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 prevents the claimant from performing work which was performed in the past. If the 2 claimant is able to perform previous work, he or she is deemed not disabled. 20 3 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 4 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 5 work, the fifth and final step in the process determines whether he or she is able to 6 perform other work in the national economy in view of his or her residual functional 7 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 8 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 9 The initial burden of proof rests upon the claimant to establish a prima facie 10 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 11 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 12 is met once the claimant establishes that a mental or physical impairment prevents 13 the performance of previous work. The burden then shifts, at step five, to the 14 Commissioner to show that (1) plaintiff can perform other substantial gainful 15 activity and (2) a “significant number of jobs exist in the national economy” that the 16 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 17 B. Standard of Review 18 Congress has provided a limited scope of judicial review of a Commissioner’s 19 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 20 5 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 made through an ALJ, when the determination is not based on legal error and is 2 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 3 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 4 “The [Commissioner’s] determination that a plaintiff is not disabled will be 5 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 6 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 7 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 8 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 9 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 10 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 11 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 12 conclusions as the [Commissioner] may reasonably draw from the evidence” will 13 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 14 the Court considers the record as a whole, not just the evidence supporting the 15 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 16 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 17 of the Commissioner, not this Court, to resolve conflicts in evidence. Richardson, 18 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court 19 may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 20 6 It is the role DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision 2 supported by substantial evidence will still be set aside if the proper legal standards 3 were not applied in weighing the evidence and making the decision. Brawner v. 4 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987). Thus, if 5 there is substantial evidence to support the administrative findings, or if there is 6 conflicting evidence that will support a finding of either disability or non-disability, 7 the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 8 1229-30 (9th Cir. 1987). 9 C. Commissioner’s Decision 10 The ALJ determined that Plaintiff last met the insured status requirement of 11 the Social Security Act on September 30, 2011 (the “date last insured”) and did not 12 engage in substantial gainful activity between December 3, 2008 (the amended 13 alleged onset date) and the date last insured. (T at 15). The ALJ found that, as of the 14 date last insured, Plaintiff’s obesity, coronary artery disease with recurrent chest 15 pain, and history of myocardial infarction were “severe” impairments under the Act. 16 (Tr. 15). 17 However, the ALJ concluded that, as of the date last insured, Plaintiff did not 18 have an impairment or combination of impairments that met or medically equaled 19 one of the impairments set forth in the Listings. (T at 16). 20 7 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 The ALJ determined that, as of the date last insured, Plaintiff retained the 2 residual functional capacity (“RFC”) to perform light work as defined in 20 CFR § 3 416.967 (b), provided the work did not involve climbing ladders, ropes, or scaffolds; 4 more than occasional stooping and climbing or using ramps and stairs; and provided 5 Plaintiff could avoid exposure to extreme heat. (T at 16). The ALJ found that, as of the date last insured, Plaintiff could perform her 6 7 past relevant work as an “informal waitress.” (T at 20). Accordingly, the ALJ 8 determined that Plaintiff was not disabled within the meaning of the Social Security 9 Act between December 3, 2008 (the amended alleged onset date) and the date last 10 insured and was therefore not entitled to benefits. (T at 21). As noted above, the 11 ALJ’s decision became the Commissioner’s final decision when the Appeals 12 Council denied Plaintiff’s request for review. (T at 1-7). 13 D. Disputed Issues 14 As set forth in the Joint Stipulation (Docket No. 21, at p. 5), Plaintiff offers 15 three (3) main arguments in support of her claim that the Commissioner’s decision 16 should be reversed. First, she argues that the ALJ erred by failing to address a 17 treating physician opinion. 18 analysis of her mental health issues was flawed. Third, she challenges the ALJ’s 19 credibility determination. 20 Second, Plaintiff contends that the ALJ’s step two This Court will address each argument in turn. 8 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB IV. ANALYSIS 1 2 A. Treating Physician Opinion 3 In disability proceedings, a treating physician’s opinion carries more weight 4 than an examining physician’s opinion, and an examining physician’s opinion is 5 given more weight than that of a non:-examining physician. Benecke v. Barnhart, 6 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 7 1995). If the treating or examining physician’s opinions are not contradicted, they 8 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 9 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 10 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 11 1035, 1043 (9th Cir. 1995). 12 The courts have recognized several types of evidence that may constitute a 13 specific, legitimate reason for discounting a treating or examining physician’s 14 medical opinion. For example, an opinion may be discounted if it is contradicted by 15 the medical evidence, inconsistent with a conservative treatment history, and/or is 16 based primarily upon the claimant’s subjective complaints, as opposed to clinical 17 findings and objective observations. See Flaten v. Secretary of Health and Human 18 Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 19 20 9 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 An ALJ satisfies the “substantial evidence” requirement by “setting out a 2 detailed and thorough summary of the facts and conflicting clinical evidence, stating 3 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 4 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 5 “The ALJ must do more than state conclusions. He must set forth his own 6 interpretations and explain why they, rather than the doctors’, are correct.” Id. 7 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. Ariz. 2014) 8 In this case, on March 11, 2014, after the administrative hearing but before the 9 ALJ’s decision, Dr. F. Chu, Plaintiff’s treating physician, completed a medical 10 statement. Dr. Chu opined that Plaintiff was limited to working 2 hours per day due 11 to extreme pain. According to Dr. Chu, Plaintiff could stand/sit for 30 minutes at a 12 time and could sit for 2 hours in a workday. Dr. Chu opined that Plaintiff could 13 occasionally lift 5 pounds, could not lift any weight frequently, and was limited to 14 occasional bending and stopping. (T at 962). 15 suffered from “severe arthritis of the thoracic/lumbar spine.” (T at 962). 16 Dr. Chu explained that Plaintiff The ALJ did not discuss Dr. Chu’s opinion at all in his decision. This Court 17 finds that the ALJ’s decision must be reversed because of this error. 18 Commissioner essentially acknowledges that the ALJ erred, but argues that the 19 omission is not dispositive because Dr. Chu’s opinion post-dates the date last 20 10 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB The 1 insured (September 30, 2011) by several years. However, medical reports 2 “containing observations made after the period for disability are relevant to assess 3 the claimant's disability.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) 4 (citing Kemp v. Weinberger, 522 F.2d 967, 969 (9th Cir. 1975)); see also 5 Lingenfelter v. Astrue, 504 F.3d 1028, 1034 n.3 (9th Cir. 2007) (noting that “reports 6 containing observations made after the period for disability are relevant to assess the 7 claimant’s disability”). Medical opinions “are inevitably rendered retrospectively,” 8 and thus “should not be disregarded solely on that basis.” Smith, 849 F.2d at 1225; 9 see also Lesmeister v. Barnhart, 439 F. Supp.2d 1023, 1030-31 (C.D. Cal. 2006). 10 Thus, the mere fact that Dr. Chu’s assessment was rendered after the date last 11 insured does not render it irrelevant. 12 In addition, the Commissioner argues that Dr. Chu’s opinion was contradicted 13 by contemporaneous treatment notes and other evidence of record. As discussed 14 further below, there is some arguable support for this argument. However, “[l]ong- 15 standing principles of administrative law require us to review the ALJ's decision 16 based on the reasoning and factual findings offered by the ALJ — not post hoc 17 rationalizations that attempt to intuit what the adjudicator may have been thinking.” 18 Bray v. Comm'r, 554 F.3d 1219, 1226 (9th Cir. 2009). 19 20 11 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 Lastly, the Commissioner contends that there is sufficient evidence in the 2 record to support a finding that Plaintiff is not disabled and, thus, the error was 3 harmless. However, Dr. Chu had a lengthy treating relationship with Plaintiff, 4 which began in November of 2007 (T at 397) and included treatment before and 5 after the date last insured. (T at 254, 262, 397-98, 408-409, 439-40, 626-67, 901, 6 924-27, 934). 7 An ALJ's error may be deemed harmless if, in light of the other reasons 8 supporting the overall finding, it can be concluded that the error did not “affect[ ] the 9 ALJ's conclusion.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th 10 Cir. 2004); see also Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054-55 (9th 11 Cir. 2006) (describing the harmless error test as whether “the ALJ's error did not 12 materially impact his decision”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 13 (9th Cir.2006) (holding that an error is harmless if it was “inconsequential to the 14 ultimate nondisability determination”). 15 Given the significant treating relationship between Plaintiff and Dr. Chu, this 16 Court cannot conclude that the ALJ’s failure to discuss Dr. Chu’s very restrictive 17 opinion was “inconsequential” to the disability determination. It is at least possible 18 that the ALJ either neglected to consider the opinion, which was provided after the 19 hearing (but prior to the decision), or that the ALJ erroneously believed that the 20 12 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 opinion was ipso facto irrelevant because it post-dated the date last insured. Under 2 either circumstance, this Court cannot say with confidence that the ALJ’s failure to 3 address this opinion from a long-standing treating physician did not materially 4 impact the decision. As such, this Court finds that a remand is required. 5 B. Step Two Analysis 6 At step two of the sequential evaluation process, the ALJ must determine 7 whether the claimant has a “severe” impairment. See 20 C.F.R. §§ 404.1520(c), 8 416.920(c). The fact that a claimant has been diagnosed with and treated for a 9 medically determinable impairment does not necessarily mean the impairment is 10 “severe,” as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 11 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 12 1985). To establish severity, the evidence must show the diagnosed impairment 13 significantly limits a claimant's physical or mental ability to do basic work activities 14 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 15 The step two analysis is a screening device designed to dispose of de minimis 16 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “[A]n impairment 17 is found not severe . . . when medical evidence establishes only a slight abnormality 18 or a combination of slight abnormalities which would have no more than a minimal 19 effect on an individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 20 13 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 1988) (quoting SSR 85-28). The claimant bears the burden of proof at this stage and 2 the “severity requirement cannot be satisfied when medical evidence shows that the 3 person has the ability to perform basic work activities, as required in most jobs.” 4 SSR 85-28. Basic work activities include: “walking, standing, sitting, lifting, 5 pushing, pulling, reaching, carrying, or handling; seeing, hearing, speaking; 6 understanding, carrying out and remembering simple instructions; responding 7 appropriately to supervision, coworkers, and usual work situations.” Id. 8 Here, the ALJ concluded that, as of the date last insured, Plaintiff had the 9 following severe impairments: obesity, coronary artery disease with recurrent chest 10 pain, and history of myocardical infarction. (T at 15). The ALJ did not, however, 11 accept Plaintiff’s contention that her depression was a severe impairment. (T at 16). 12 This Court finds the ALJ’s conclusion as to this issue supported by substantial 13 evidence. 14 Progress notes from January of 2010 indicated that Plaintiff’s depression had 15 resolved, she was asymptomatic, and did not require medication. (T at 16, 510). 16 Prior to that, treatment notes showed some symptoms, but mental status 17 examinations were generally unremarkable, with effective treatment with 18 medication. (T at 439, 465-66, 479, 480, 487-89). 19 20 14 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 The ALJ also reasonably relied on the assessments of two State Agency 2 review consultants, Dr. Rivera-Miya (a psychiatrist) and Dr. Morris (a psychologist), 3 who reviewed the record and found insufficient evidence of a mental impairment 4 prior to the date last insured. (T at 72, 80). State Agency review physicians are 5 highly qualified experts and their opinions, if supported by other record evidence, 6 may constitute substantial evidence sufficient to support a decision to discount a 7 treating physician’s opinion. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996); 8 see also 20 CFR § 404.1527 (f)(2)(i)(“State agency medical and psychological 9 consultants and other program physicians, psychologists, and other medical 10 specialists are highly qualified physicians, psychologists, and other medical 11 specialists who are also experts in Social Security disability evaluation.”). 12 Plaintiff cites O’Bosky v. Astrue. 651 F. Supp. 2d 1147, 1157 (E.D. Ca. 2009) 13 for the proposition that a “conclusory form opinion” by a State Agency psychiatrist 14 does not justify a non-severe finding at step two. However, in that case, there was 15 an issue as to whether the State Agency psychiatrist had reviewed all of the pertinent 16 records. Id. There is no such issue here. The State Agency assessments, combined 17 with the clinical evidence referenced above, was sufficient to sustain this aspect of 18 the ALJ’s decision. 19 20 15 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 Plaintiff argues that the ALJ should have weighed the evidence differently and 2 resolved the conflict in favor of finding a severe mental impairment. However, it is 3 the role of the Commissioner, not this Court, to resolve conflicts in evidence. 4 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 U.S. at 5 400. If the evidence supports more than one rational interpretation, this Court may 6 not substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 7 577, 579 (9th 1984). If there is substantial evidence to support the administrative 8 findings, or if there is conflicting evidence that will support a finding of either 9 disability or nondisability, the Commissioner’s finding is conclusive. Sprague v. 10 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ’s decision was 11 supported by substantial evidence (including a reasonable reading of the treatment 12 history and State Agency review physician opinions) and must therefore be 13 sustained. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if 14 evidence reasonably supports the Commissioner’s decision, the reviewing court 15 must uphold the decision and may not substitute its own judgment). 16 C. Credibility 17 A claimant’s subjective complaints concerning his or her limitations are an 18 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 19 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 20 16 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 2 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 3 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 4 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 5 findings are insufficient: rather the ALJ must identify what testimony is not credible 6 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 7 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 8 However, subjective symptomatology by itself cannot be the basis for a 9 finding of disability. A claimant must present medical evidence or findings that the 10 existence of an underlying condition could reasonably be expected to produce the 11 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 12 § 404.1529(b), 416.929; SSR 96-7p. 13 In this case, the ALJ concluded that Plaintiff’s medically determinable 14 impairments could reasonably be expected to cause the alleged symptoms, but that 15 her statements regarding the intensity, persistence, and limiting effects of the 16 symptoms were not fully credible. (T at 17). 17 The ALJ offered several valid reasons for discounting Plaintiff’s claims of 18 disabling pain and limitations, including inconsistencies between those claims and 19 her reported activities of daily living, including an extensive exercise regimen prior 20 17 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 to the date last insured. (T at 17-18). However, a material portion of the ALJ’s 2 credibility determination was based on the conclusion that the medical record 3 contradicted Plaintiff’s subjective complaints. (T at 17-18). That determination was 4 impacted by the ALJ’s failure to address Dr. Chu’s opinion, which was an error for 5 the reasons outlined above. 6 determination must be revisited on remand. 7 D. As such, this Court finds that the credibility Remand 8 In a case where the ALJ's determination is not supported by substantial 9 evidence or is tainted by legal error, the court may remand the matter for additional 10 proceedings or an immediate award of benefits. Remand for additional proceedings 11 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 12 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 13 F.3d 587, 593 (9th Cir. 2004). 14 Here, this Court finds that remand for further proceedings is the appropriate 15 remedy. The ALJ did not address the treating physician’s opinion, which is an 16 outstanding issue that must be resolved. However, it is not clear from the record that 17 Plaintiff was disabled prior to the date last insured. Dr. Chu’s opinion was rendered 18 after the date last insured and it is not clear whether the physician intended to apply 19 the noted limitations to the time period at issue here. A physical examination 20 18 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB 1 conducted by Dr. Chu shortly before the date last insured appears to be generally 2 unremarkable. (T at 627). Dr. Sean To, a consultative examiner, opined in January 3 of 2014 that Plaintiff could perform at least a range of medium work. (T at 946-52, 4 955-60). While the ALJ was obliged to address Dr. Chu’s opinion and should have 5 considered whether it expressed an assessment as to Plaintiff’s condition prior to the 6 date last insured, there is ambiguity in the record as to whether Plaintiff was disabled 7 and this Court thus finds that a remand for further proceedings is the appropriate 8 remedy. V. ORDERS 9 10 11 12 13 14 15 16 17 IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner’s decision and REMANDING this action for further proceedings, and it is further ORDERED that The Clerk of the Court shall file this Decision and Order and serve copies upon counsel for the parties. DATED this 7th day of November, 2016. /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 18 19 20 19 DECISION AND ORDER – BUTLER v COLVIN 5:15-CV-02049-VEB

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