Joel E Duenas v. Nancy A. Berryhill, No. 5:2017cv00193 - Document 18 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated, the decision of the Social Security Commissioner is REVERSED and the matter is REMANDED for further proceedings. (nbo)
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Joel E Duenas v. Nancy A. Berryhill Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 JOEL E. DUENAS, Plaintiff, 12 v. 13 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 ) Case No. ED CV 17-00193-DFM ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) 17 18 Joel E. Duenas (“Plaintiff”) appeals for the second time from the Social 19 Security Commissioner’s final decision denying his applications for Social 20 Security Disability Insurance Benefits (“DIB”) and Supplemental Security 21 Income (“SSI”). For the reasons discussed below, the Commissioner’s decision 22 is reversed and this matter is remanded for further proceedings. 23 I. 24 BACKGROUND 25 26 27 28 Plaintiff filed applications for DIB and SSI alleging disability beginning on March 25, 2011. See Administrative Record (“AR”) 174-82, 612.1 After a 1 The Court previously noted an ambiguity in the record because the Dockets.Justia.com 1 hearing, an administrative law judge (“ALJ”) denied the applications. See AR 2 23-39. After the Appeals Council denied review, see AR 1-8, Plaintiff sought 3 judicial review in this Court. 4 In September 2015, the Court reversed the Commissioner’s decision and 5 remanded the matter for further proceedings. Duenas v. Colvin, Case No. 6 5:14-cv-01399-DFM, Dkt. 20; AR 686-98. The Court reversed because the ALJ 7 failed to give specific and legitimate reasons for giving little weight to the 8 treating physician’s opinion and failed to give clear and convincing reasons for 9 discrediting Plaintiff’s testimony. Id. 10 On remand, the ALJ held another hearing, at which Plaintiff appeared 11 with counsel. See AR 633-50. The ALJ heard testimony from an impartial 12 medical expert and a vocational expert. See AR 636-50. Also during the 13 hearing, Plaintiff’s counsel informed the ALJ that Plaintiff had returned to 14 work in October 2015 and therefore was seeking a closed period of disability. 15 See AR 644-45. 16 On October 4, 2016, the ALJ issued a decision denying Plaintiff’s 17 applications for the closed period of March 25, 2011, to September 30, 2015, 18 based on the following five-step sequential evaluation process. See AR 612-25. 19 First, Plaintiff had not engaged in substantial gainful activity during the period 20 at issue. See AR 615. Second, Plaintiff had severe impairments consisting of 21 compression fracture of C6, compression fracture of T8, degenerative disc 22 disease of the lumbar spine, left patellofemoral syndrome, left knee 23 derangement, left ankle sprain, and right shoulder impingement syndrome. See 24 id. Third, Plaintiff did not have an impairment or combination of impairments 25 that met or equaled the requirements of a listed impairment. See AR 617. 26 27 28 alleged onset date did not appear to match the date of Plaintiff’s accident that caused his allegedly disabling injuries, which was April 25, 2011. See AR 687. 2 1 Fourth, based on Plaintiff’s residual functional capacity (“RFC”) for light work 2 with several additional exertional limitations, he could not return to his past 3 relevant work as a security guard, door-to-door salesman, or construction 4 worker. See AR 618, 623. Fifth, based on the RFC and the testimony of the 5 vocational expert, Plaintiff could perform other work in the national economy: 6 gate guard, call-out operator, and surveillance systems monitor. See AR 624. 7 In sum, the ALJ concluded that Plaintiff was not disabled for the closed 8 period. See id. In February 2017, Plaintiff again sought judicial review in this Court. 9 10 See Dkt. 1. 11 II. 12 DISCUSSION The parties raise the same disputed issues from the prior appeal: whether 13 14 the ALJ properly considered the treating physician’s opinion and Plaintiff’s 15 symptom testimony. See Joint Submission (Dkt. 17) (“JS”) at 6. 16 A. Treating Physician’s Opinion 17 1. Applicable Law 18 Three types of physicians may offer opinions in Social Security cases: 19 those who treated the plaintiff, those who examined but did not treat the 20 plaintiff, and those who did neither. See 20 C.F.R. §§ 404.1527(c), 416.927(c);2 21 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996). 22 A treating physician’s opinion is generally entitled to more weight than an 23 examining physician’s opinion, which is generally entitled to more weight than 24 a nonexamining physician’s. Lester, 81 F.3d at 830. When a treating or 25 examining physician’s opinion is uncontroverted by another doctor, it may be 26 27 28 2 The Court applies the regulations that were in effect at the time of the ALJ’s decision. Rose v. Berryhill, 256 F. Supp. 3d 1079, 1083 n.3 (C.D. Cal. 2017). 3 1 rejected only for “clear and convincing reasons.” See Carmickle v. Comm’r, 2 Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d 3 at 830-31). Where such an opinion is contradicted, the ALJ must provide only 4 “specific and legitimate reasons” for discounting it. Id.; see also Garrison v. 5 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Moreover, “[t]he ALJ need not 6 accept the opinion of any physician, including a treating physician, if that 7 opinion is brief, conclusory, and inadequately supported by clinical findings.” 8 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. 9 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The weight accorded to a 10 physician’s opinion depends on whether it is consistent with the record and 11 accompanied by adequate explanation, the nature and extent of the treatment 12 relationship, and the doctor’s specialty, among other things. 20 C.F.R. §§ 13 404.1527(c), 416.927(c). 14 2. Background 15 On April 25, 2011, Plaintiff was injured in an accident when a truck hit 16 him on the side of the freeway while he was helping a friend fix a blown tire. 17 AR 686-87. Dr. Naresh Sharma, an orthopedist, treated Plaintiff beginning in 18 May 2011, shortly after the accident. Dr. Sharma diagnosed lumbar sprain and 19 strain with possible lumbar radiculopathy, right shoulder impingement with 20 possible rotator cuff pathology, and cervical sprain and strain. AR 317. Dr. 21 Sharma ordered MRIs and prescribed pain medications and physical therapy. 22 AR 318-19. A month later, Dr. Sharma re-evaluated Plaintiff after viewing the 23 MRI results and concluded that “I do not think he is a surgical candidate.” AR 24 325. Dr. Sharma prescribed continued pain medications and physical therapy. 25 Id. Dr. Sharma continued to evaluate and treat Plaintiff on a near-monthly 26 basis throughout the rest of 2011, 2012, and into 2013. AR 326-48, 483-502, 27 576-88. 28 /// 4 1 In February 2013, Dr. Sharma completed a one-page “Physical 2 Capacities Evaluation.” AR 504. As the ALJ noted in his first decision, Dr. 3 Sharma’s evaluation stated limitations “that would preclude [Plaintiff] from 4 working at the level of substantial gainful activity.” AR 36. Dr. Sharma’s 5 treatment reports also frequently included the assessment that Plaintiff was not 6 able to work. See AR 495, 566, 582, 585. Dr. Sharma’s final treatment note 7 was written in June 2013. AR 865. During that visit, Dr. Sharma commented 8 that Plaintiff’s “condition is not changing” and that his “prognosis is poor.” 9 AR 866. 10 During the latest hearing, the ALJ heard the testimony of Dr. Eric 11 Schmitter, an impartial medical expert. AR 636-44. Dr. Schmitter found that 12 Dr. Sharma’s opinions were “substantially different” from the other doctors 13 who examined Plaintiff. See AR 637-38. Plaintiff’s injuries, according to Dr. 14 Schmitter, were “pretty solidly healed” six months after the accident. See AR 15 639, 640-41. As support, Dr. Schmitter cited an examining physician’s 16 opinion, written eight months after the accident, that “was as close to saying 17 he’s as normal as you can get.” See AR 640; see also AR 280-84. 18 3. Analysis 19 In the latest decision, the ALJ continued to give “little weight” to Dr. 20 Sharma’s opinions with a one-paragraph explanation containing multiple 21 reasons. AR 622. Because Dr. Sharma’s opinions were contradicted, the ALJ 22 was required to state “specific and legitimate reasons” to give little weight to 23 the opinions. As discussed below, the ALJ’s reasoning does not satisfy the 24 Ninth Circuit’s requirements for the rejection of a treating physician’s opinion. 25 a. Unsupported by Objective Medical Findings 26 The ALJ’s first reason for rejecting Dr. Sharma’s opinions was that his 27 February 2013 evaluation was unsupported. The ALJ noted that the opinion 28 was given on a “check-the-box” form and that Dr. Sharma “did not provide 5 1 any objective clinical or diagnostic medical findings to support the limitations 2 in this evaluation.” AR 622; see also AR 504. The fact that an opinion is 3 provided on a check-the-box form, however, is not itself a basis for rejecting it. 4 See Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017) (“[T]he ALJ 5 was not entitled to reject the responses of a treating physician without specific 6 and legitimate reasons for doing so, even where those responses were provided 7 on a ‘check-the-box’ form, were not accompanied by comments, and did not 8 indicate to the ALJ the basis for the physician’s answers. . . . [T]here is no 9 authority that a ‘check-the-box’ form is any less reliable than any other type of 10 form; indeed, agency physicians routinely use these types of forms to assess the 11 intensity, persistence, or limiting effects of impairments.”). 12 More significantly, because the record contains an extensive treatment 13 record from Dr. Sharma, it was not accurate for the ALJ to characterize Dr. 14 Sharma’s February 2013 evaluation as an isolated evaluation without objective 15 clinical or diagnostic medical findings. As the Court previously found, the 16 record “does not support the ALJ’s finding that Dr. Sharma’s opinion was not 17 adequately supported by objective medical findings.” AR 690. As the Court 18 noted, the record showed positive straight-leg raising tests, a compression 19 fracture of the T8 vertebrae, and a 4-5 mm disk bulge in Plaintiff’s lower back. 20 Id. (citing AR 315, 328, 351, 400, 495, 578). Although Dr. Schmitter later 21 testified that the updated record showed the disk bulge was insufficient to 22 qualify Plaintiff as a surgical candidate and the compression fracture had 23 healed, see AR 637, this testimony did not account for the entire record. More 24 than one year after the accident, the disc bulge in Plaintiff’s lower back did 25 barely meet the threshold for surgery, but conservative measures were 26 recommended first, see AR 461, which was entirely consistent with Dr. 27 Sharma’s recommendation of aggressive physical therapy, see AR 495-96. And 28 the compression fracture of the T8 vertebrae was diagnosed by two examining 6 1 physicians as a still-existing impairment, with the possibility of an additional 2 compression, in May 2012 and August 2012, more than one year after the 3 accident. See AR 405, 460. Moreover, as Dr. Schmitter acknowledged, Dr. Sharma also reported 4 5 several other clinical and diagnostic findings. See AR 638. For example, near 6 the time he gave his February 2013 opinion, Dr. Sharma recorded numbness in 7 the left leg; paresthesia on the L5 nerve root; weakness of the lower left 8 extremity; muscle spasms along the cervical, lumbar, and thoracic spines; and 9 intercostal neuralgia (chest pain). See AR 874-75. In light of these findings, 10 which were based on numerous treatment records, Dr. Sharma’s February 11 2013 opinion was not an isolated opinion that lacked medical record support. 12 See Garrison, 759 F.3d at 1013 (finding error when an ALJ “failed to 13 recognize that the opinions expressed in check-box form in the February 2008 14 PFC Questionnaire were based on significant experience with Garrison and 15 supported by numerous records, and were therefore entitled to weight that an 16 otherwise unsupported and unexplained check-box form would not merit”). 17 Thus, this reason was not a specific and legitimate one for giving little weight 18 to Dr. Sharma’s opinions. 19 b. Inconsistent with Daily Activities 20 The ALJ also rejected Dr. Sharma’s opinions because they were “not 21 consistent with [Plaintiff’s] activities of daily living such as running, bicycle 22 riding, and hiking.” AR 622; see also AR 272. But as this Court previously 23 noted, when Plaintiff reported these activities to an examining psychiatrist, he 24 also “denied any significant activities.” AR 696. “It is thus unclear from the 25 psychiatrist’s report whether Plaintiff was indicating that he engaged in 26 running, biking, and hiking after the accident or that he used to engage in those 27 activities before he was injured.” Id. 28 /// 7 1 Evidence of a claimant’s daily activities cannot be used to discredit a 2 treating physician’s opinion when the nature of those activities is unclear. See 3 Trevizo, 871 F.3d at 676 (concluding that evidence of claimant’s daily 4 activities of caring for young children could not be properly used to reject 5 treating physician’s opinion when record provided no details as to what those 6 childcare activities involved). It is incumbent upon an ALJ in that 7 circumstance to develop the record about the daily activities that the ALJ 8 suspects may undermine the treating physician’s opinion. See id. (“The ALJ 9 did not develop a record regarding the extent to which and the frequency with 10 which Trevizo picked up the children, played with them, bathed them, ran 11 after them, or did any other tasks that might undermine her claimed 12 limitations. . . .”). Because the record was not developed in this regard, the 13 unclear evidence of Plaintiff’s daily activities was not a specific and legitimate 14 reason to reject Dr. Sharma’s opinions. 15 16 c. Inconsistent with the Record as a Whole The ALJ also rejected Dr. Sharma’s opinions because they were 17 “inconsistent with the record as whole.” See AR 622. First, the ALJ found that 18 “the evidence reflects that [Plaintiff’s] neurological deficits waxed and waned 19 during the period at issue,” citing normal neurological findings by examining 20 physicians in November 2011 and March 2016. AR 622 (citing AR 283, 849). 21 But these findings had such little probative value that they do not provide a 22 specific and legitimate reason for discounting Dr. Sharma’s opinions. As an 23 initial matter, the March 2016 finding has little relevance to Plaintiff’s claim 24 because the closed period had ended five months earlier in October 2015, when 25 Plaintiff had returned to work. See Moore v. Commissioner of Social Sec. 26 Admin., 278 F.3d 920, 924 (9th Cir. 2002) (stating that Commissioner may not 27 use evidence arising after closed period ended to discredit medical evidence 28 about claimant’s ability to work during that period). And the earlier finding in 8 1 November 2011 was inconsistent with abnormal findings during the same 2 period. See AR 339 (trapezius spasm of the cervical spine in November 2011); 3 AR 343 (“severe low back pain radiating to the leg and numbness on the left” 4 in December 2011). Thus, the normal neurological finding from November 5 2011 represented at best an isolated scintilla of evidence, not substantial 6 evidence from the record as a whole. See Holohan v. Massanari, 246 F.3d 7 1195, 1201 (9th Cir. 2001) (“[W]e cannot affirm the Commissioner’s decision 8 ‘simply by isolating a specific quantum of supporting evidence.’” (citation 9 omitted)). In particular, that single finding did not show relief from symptoms 10 that could be considered significant and lasting. See Lester, 81 F.3d at 833 11 (“Occasional symptom-free periods . . . are not inconsistent with disability.”). 12 The ALJ also found that Plaintiff “was not described as a surgical 13 candidate, which suggests that his symptoms were not as severe as alleged by 14 Dr. Sharma.” AR 622. But this basis has been rejected by the Ninth Circuit 15 because a recommendation for back surgery is not a prerequisite for disability. 16 See Trevizo, 871 F.3d at 677 (commenting, in the specific context of a back 17 impairment, that “the failure of a treating physician to recommend a more 18 aggressive course of treatment, absent more, is not a legitimate reason to 19 discount the physician’s subsequent medical opinion about the extent of 20 disability”). As a result, this was also not a specific and legitimate reason for 21 discounting Dr. Sharma’s opinions. 22 23 d. Inconsistent with Other Medical Opinions Finally, the ALJ rejected Dr. Sharma’s opinions because of contrary 24 medical opinions, namely, “the findings from Dr. Sharma’s examinations and 25 his opinions are not consistent with other medical evidence of record including 26 the opinions of Dr. Flanagan, Dr. Steiger, Dr. Schoene, and the State agency 27 physical medical consultants.” AR 622. Dr. Schmitter similarly testified that 28 Dr. Sharma’s findings were undermined by “majority rule.” AR 638. 9 1 As Plaintiff points out, the ALJ’s evaluation of these opinions was 2 somewhat inconsistent: the ALJ relied on these medical opinions to reject the 3 treating physician’s opinions, yet the ALJ elsewhere in the decision afforded 4 “little weight” to most of these same opinions. See AR 622. But even setting 5 aside that apparent inconsistency, this basis for rejecting Dr. Sharma’s 6 opinions was not legally sufficient. As discussed below, the only examining 7 physician’s opinion that was genuinely inconsistent with Dr. Sharma’s 8 opinions was Dr. Flanagan’s, which was legally insufficient to support the 9 ALJ’s determination. 10 11 i. Dr. Steiger and Dr. Schoene The opinions of Dr. Steiger and Dr. Schoene, both examining 12 physicians, did not actually contradict Dr. Sharma’s opinions. Dr. Steiger, who 13 examined Plaintiff in May 2012, ordered a further MRI, suggested that 14 Plaintiff may benefit from epidural injections, ordered that Plaintiff continue 15 medications, and recommended the exhaustion of “conservative measures” 16 before surgery. See AR 461. Nothing about these recommendations was 17 inconsistent with Dr. Sharma’s treatment records for the same period; in May 18 2012, Dr. Sharma similarly commented that Plaintiff was not a surgical 19 candidate, recommended aggressive physical therapy, and prescribed pain 20 medications. See AR 495-96. And the opinion of Dr. Schoene, who examined 21 Plaintiff in March 2016, was chronologically irrelevant because Plaintiff had 22 returned to work five months earlier in October 2015 and was no longer 23 alleging disability. See Moore, 278 F.3d at 924. For these reasons, the opinions 24 of Dr. Steiger and Dr. Schoene did not constitute substantial evidence that 25 contradicted the treating physician’s opinion for the relevant period. 26 27 28 ii. Dr. Flanagan Dr. Flanagan, another examining physician, did give an opinion that directly contradicted Dr. Sharma’s during the relevant period. In November 10 1 2011, Dr. Flanagan examined Plaintiff and concluded that his impairments 2 caused “no specific limitations.” AR 284. 3 But Dr. Flanagan’s opinion was not substantial evidence because it was 4 not based on independent clinical findings. See Orn v. Astrue, 495 F.3d 625, 5 632 (9th Cir. 2007) (stating that examining physician’s opinion must rely on 6 independent clinical findings in order to amount to substantial evidence to 7 discount treating physician’s opinion). “Independent clinical findings can be 8 either (1) diagnoses that differ from those offered by another physician and that 9 are supported by substantial evidence or (2) findings based on objective 10 medical tests that the treating physician has not herself considered.” Id. 11 (citations omitted). Dr. Flanagan did not offer different diagnoses supported by 12 substantial evidence, nor did he rely on objective medical tests that Dr. Sharma 13 had not himself considered. To the contrary, Dr. Sharma conducted 14 orthopedic evaluations that were at least as thorough as Dr. Flanagan’s one- 15 time examination. See, e.g., AR 321-23, 326-28, 335-37, 577-79. 16 Even if the Court assumes that Dr. Flanagan made independent clinical 17 findings so that his opinion was substantial evidence, it would still not be a 18 basis on which to reject the treating physician’s opinion. Even when an 19 examining physician’s opinion is substantial evidence, the Commissioner’s 20 regulations still require deference to the treating physician’s opinions. See Orn, 21 495 F.3d at 633. In that circumstance, an ALJ must evaluate the factors set out 22 in the Commissioner’s regulations to determine the extent to which the 23 treating physician’s opinion should be credited. Id. (citing 20 C.F.R. 24 § 404.1527); see also 20 C.F.R. § 416.927. Because the ALJ did not evaluate 25 these factors here, this alone was reversible error. See Trevizo, 871 F.3d at 676 26 (holding that even when ALJ decides that treating physician’s opinion is not 27 entitled to dispositive weight because it is inconsistent with substantial 28 evidence, ALJ’s failure to evaluate factors “such as the length of the treating 11 1 relationship, the frequency of examination, the nature and extent of the 2 treatment relationship, or the supportability of the opinion” is itself reversible 3 error). 4 These factors favored affording more weight to Dr. Sharma’s opinions. 5 For example, the length of the treating relationship and frequency of 6 examination gave Dr. Sharma a “unique perspective” on Plaintiff’s condition. 7 See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Dr. Sharma treated Plaintiff on 8 a near-monthly basis for more than two years, and each visit involved a 9 physical examination. Dr. Sharma supported his opinions with medical signs 10 and laboratory findings, as described above. See 20 C.F.R. §§ 404.1527(c)(3), 11 416.927(c)(3). Dr. Sharma, like Dr. Flanagan, was an orthopedic specialist. 12 See 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5). Dr. Sharma’s opinion was 13 consistent with other medical evidence in the record. See 20 C.F.R. 14 §§ 404.1527(c)(4), 416.927(c)(4). Most importantly, and contrary to the ALJ’s 15 implicit characterization, Dr. Sharma’s opinions were not outliers; Plaintiff 16 saw other specialists who made similar findings. See AR 406 (Dr. Gross’s 17 finding in August 2012 of “discogenic low back pain with left L5 18 radiculopathy, poorly responsive to injections”); 442 (Dr. Weiner’s finding in 19 September 2012 of degenerative disc disease of the lumbar spine with no pain 20 relief from injections). Given these factors, the record as a whole did not 21 support the reliance on Dr. Flanagan’s opinion to afford little weight to Dr. 22 Sharma’s opinions. 23 In sum, Dr. Flanagan’s opinion did not constitute substantial evidence, 24 but even if it did, reversal still would be warranted for failure to properly 25 evaluate the weight to afford to the treating physician’s opinion. 26 27 28 iii. State Agency Medical Consultants Two State agency medical consultants also contradicted Dr. Sharma’s opinions. The State agency physicians concluded that Plaintiff was capable of 12 1 light work during the relevant period. See AR 99-100, 112-13. However, the 2 opinions of non-examining physicians, without more, cannot constitute 3 substantial evidence to reject a treating physician’s opinion. Lester, 81 F.3d at 4 831. In order to constitute substantial evidence, the opinions of non-examining 5 physicians must be “consistent with independent clinical findings or other 6 evidence in the record.” Thomas, 278 F.3d at 957 (citations omitted). The required support is absent here. No physician made independent 7 8 clinical findings consistent with the State agency physicians’ opinions. Nor did 9 the “other evidence in the record” lend sufficient support to their opinions. See 10 Lester, 81 F.3d at 831 (describing the “abundance” of other evidence in the 11 record that generally would warrant reliance on a non-examining physician’s 12 opinion) (citing Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir. 1989), 13 and Andrews v. Shalala, 53 F.3d 1035, 1042-43 (9th Cir. 1995)). The record 14 does not contain abundant evidence that was consistent with the State agency 15 physicians’ conclusion that Plaintiff was capable of light work during the 16 relevant period. No physician who examined Plaintiff, other than Dr. 17 Flanagan, found Plaintiff capable of light work at any time during the relevant 18 period. Thus, the non-examining physicians’ opinions are insufficient to 19 support the rejection of the treating physician’s opinions. 20 4. Conclusion 21 The ALJ’s rejection of Dr. Sharma’s opinions was not accompanied by 22 specific and legitimate reasons based on substantial evidence in the record. 23 And even if substantial evidence reflected that Dr. Sharma’s opinions should 24 not have been afforded controlling weight, it was reversible error not to 25 evaluate what deference the opinions should receive in light of the factors set 26 out in the Commissioner’s regulations. Thus, reversal is warranted on this 27 basis. 28 /// 13 1 B. Remand for Further Proceedings 2 The decision whether to remand a case for additional evidence, or 3 simply to award benefits, is within the discretion of the district court. See 4 Trevizo, 871 F.3d at 682. This decision usually requires three steps, in the 5 following order: (1) whether the ALJ committed legal error; (2) whether the 6 record “has been developed thoroughly and is free of conflicts, ambiguities, or 7 gaps”; and (3) whether disability is shown if the improperly rejected evidence 8 was credited as true. See Leon v. Berryhill, 880 F.3d 1041, 1046-47 (9th Cir. 9 2017). A district court usually does not reach the third step—crediting evidence 10 as true—if, at the second step, the record is not fully developed or suggests that 11 outstanding issues remain. See id. (“A district court cannot proceed directly to 12 credit a claimant’s testimony as true and then look to the record to determine 13 whether any issues are outstanding, as ‘this reverses the required order of 14 analysis.’” (citation omitted)). 15 Here, the first step has been satisfied due to legal error based on the 16 failure to properly consider the treating physician’s opinions. But the second 17 step has not been satisfied because, even assuming that the record establishes 18 disability during the closed period, outstanding issues remain. The record is 19 ambiguous about both the beginning and end dates of the closed period. It is 20 unclear whether the disability onset date was in March or April 2011; more 21 critically, it is unclear whether the closed period ended sometime before 22 Plaintiff returned to work in October 2015. As noted above, Dr. Sharma’s 23 treatment records do not continue after June 2013. Given these ambiguities, a 24 district court in the usual case would not reach the question of whether the 25 treating physician’s opinion should be credited as true. See Luna v. Astrue, 623 26 F.3d 1032, 1035 (9th Cir. 2010) (ambiguous evidence about the claimant’s 27 disability onset date precluded the application of the credit-as-true rule); see 28 also Howell v. Astrue, 248 F. App’x 797, 800-01 (9th Cir. 2007) (remand for 14 1 further proceedings was appropriate when the dates for a closed period of 2 disability were unclear). 3 However, in some cases “there are other factors which may justify 4 application of the credit-as-true rule, even where application of the rule would 5 not result in the immediate payment of benefits.” Vasquez v. Astrue, 572 F.3d 6 586, 593 (9th Cir. 2009). These factors exist here. The most important factor is 7 that the Commissioner has already had two opportunities to evaluate Dr. 8 Sharma’s opinions. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) 9 (“Allowing the Commissioner to decide the issue again would create an unfair 10 ‘heads we win; tails, let’s play again’ system of disability benefits 11 adjudication.”). Plaintiff’s applications have been pending for over six years, 12 since August 2011. See Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989) 13 (applying the credit-as-true rule, even when the claimant’s entitlement to 14 benefits was unclear, in part because the claimant had experienced severe 15 delay). Crediting Dr. Sharma’s opinions as true would “prevent unnecessary 16 duplication in the administrative process.” Vasquez, 572 F.3d at 594. 17 Application of the credit-as-true rule is therefore appropriate here. 18 On remand, the Commissioner is directed to accept Dr. Sharma’s 19 opinions as true. This would establish an unspecified closed period of disability 20 because the ALJ stated at the second hearing that a person with the described 21 limitations would be unemployable. See AR 648-49. Thus, the only remaining 22 issues to be determined are the beginning and end dates of Plaintiff’s closed 23 period of disability. 24 C. 25 Remaining Issue Given the Court’s conclusions about the treating physician’s opinions, it 26 is unnecessary to address Plaintiff’s remaining issue regarding the rejection of 27 his subjective symptom allegations. See Trevizo, 871 F.3d at 677 (concluding 28 that treating physician’s opinion alone can be sufficient to establish claimant’s 15 1 entitlement to benefits). 2 III. 3 CONCLUSION 4 For the reasons stated above, the decision of the Social Security 5 Commissioner is REVERSED and the matter is REMANDED for further 6 proceedings. 7 8 Dated: March 23, 2018 9 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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