Sherri Ann Marlette-McGrew v. Carolyn W Colvin, No. 8:2014cv01711 - Document 23 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) 1 (bem)
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Sherri Ann Marlette-McGrew v. Carolyn W Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHERRI ANN MARLETTE-McGREW, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. SACV 14-1711-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 The matter is before the Court on the parties’ Joint Stipulation, 24 filed September 21, 2015, which the Court has taken under 25 submission without oral argument. 26 the Commissioner’s decision is reversed and this action is 27 remanded for further administrative proceedings. The parties consented to the jurisdiction of For the reasons stated below, 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1958. (Administrative Record (“AR”) 3 210.) 4 associate, office clerk, receptionist, and mail carrier. 5 53, 234, 237.) 6 She obtained a GED and worked as a sales service (AR 52- On February 23, 2012, Plaintiff filed an application for DIB 7 (AR 210), alleging that she had been unable to work since March 8 24, 2009, because of migraines, irritable bowel syndrome (“IBS”), 9 and depression (AR 233). After her application was denied 10 initially and on reconsideration, she requested a hearing before 11 an Administrative Law Judge. 12 disability reports on appeal, indicating that she also suffered 13 from osteoarthritis and had received treatment for several other 14 conditions, including fibromyalgia, seizures, anxiety, high blood 15 pressure, sleep difficulties, panic attacks, and a right-knee 16 problem. 17 March 25, 2014, at which Plaintiff, who was represented by 18 counsel, testified, as did a medical expert and a vocational 19 expert (“VE”). 20 17, 2014, the ALJ found Plaintiff not disabled. 21 August 22, 2014, the Appeals Council denied Plaintiff’s request 22 for review. 23 III. STANDARD OF REVIEW 24 (AR 160.) (AR 297-98, 300-01, 304-07.) (AR 38-66.) (AR 1.) Plaintiff completed A hearing was held on In a written decision issued April (AR 19-30.) On This action followed. Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner’s decision to deny benefits. 26 decision should be upheld if they are free of legal error and 27 supported by substantial evidence based on the record as a whole. 28 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 2 The ALJ’s findings and 1 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 2 evidence means such evidence as a reasonable person might accept 3 as adequate to support a conclusion. 4 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 It is more than a scintilla but less than a preponderance. 6 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 7 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 8 substantial evidence supports a finding, the reviewing court 9 “must review the administrative record as a whole, weighing both Richardson, 402 U.S. at To determine whether 10 the evidence that supports and the evidence that detracts from 11 the Commissioner’s conclusion.” 12 720 (9th Cir. 1996). 13 either affirming or reversing,” the reviewing court “may not 14 substitute its judgment” for the Commissioner’s. 15 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 16 People are “disabled” for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or has lasted, or is expected to 20 last, for a continuous period of at least 12 months. 21 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 22 1992). 42 U.S.C. 23 A. The Five-Step Evaluation Process 24 The ALJ follows a five-step sequential evaluation process to 25 assess whether a claimant is disabled. 26 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 27 Cir. 1995) (as amended Apr. 9, 1996). 28 Commissioner must determine whether the claimant is currently 3 20 C.F.R. In the first step, the 1 engaged in substantial gainful activity; if so, the claimant is 2 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 3 If the claimant is not engaged in substantial gainful 4 activity, the second step requires the Commissioner to determine 5 whether the claimant has a “severe” impairment or combination of 6 impairments significantly limiting her ability to do basic work 7 activities; if not, the claimant is not disabled and her claim 8 must be denied. 9 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments 13 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 14 1; if so, disability is conclusively presumed. 15 § 404.1520(a)(4)(iii). 16 If the claimant’s impairment or combination of impairments 17 does not meet or equal an impairment in the Listing, the fourth 18 step requires the Commissioner to determine whether the claimant 19 has sufficient residual functional capacity (“RFC”)1 to perform 20 her past work; if so, she is not disabled and the claim must be 21 denied. 22 proving she is unable to perform past relevant work. 23 F.2d at 1257. 24 case of disability is established. 25 § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if the claimant has no past relevant 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 work, the Commissioner then bears the burden of establishing that 2 the claimant is not disabled because she can perform other 3 substantial gainful work available in the national economy. 4 § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. 5 determination comprises the fifth and final step in the 6 sequential analysis. 7 n.5; Drouin, 966 F.2d at 1257. That § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 8 B. The ALJ’s Application of the Five-Step Process 9 At step one, the ALJ found that Plaintiff had not engaged in 10 substantial gainful activity since March 24, 2009, the alleged 11 onset date. 12 had the severe impairments of “status post bilateral carpal 13 tunnel syndrome, morbid obesity, migraines, Valium withdrawal, 14 hypertension, fibromyalgia, left frontal encephalopathy malacia, 15 a few small old lacunar infarcts in the cerebellum, cervical 16 degenerative disc disease, status post right medial meniscus 17 tear, major depressive disorder, and generalized anxiety 18 disorder.” 19 Plaintiff’s impairments did not meet or equal any impairment in 20 the Listing. 21 had the RFC to perform light work with additional restrictions. 22 (AR 24.) 23 occasionally and 10 pounds frequently, stand or walk for six 24 hours in an eight-hour workday with normal breaks, sit for six 25 hours in an eight-hour workday, occasionally use her lower right 26 extremity for foot pedals, and occasionally climb stairs, bend, 27 balance, kneel, and crouch, but she could not perform above-the- 28 shoulder work with either upper extremity, work at unprotected (AR 21.) (Id.) At step two, she concluded that Plaintiff At step three, the ALJ determined that (AR 22.) At step four, she found that Plaintiff Specifically, Plaintiff could lift 20 pounds 5 1 heights, stoop, crawl, or climb ladders, ropes, or scaffolds. 2 (Id.) 3 moderately complex tasks with a specific-vocational-preparation 4 (“SVP”) level of 3 to 4 if they involved no hypervigilance, but 5 she should not be in charge of safety operations for others and 6 could not “be subjected to intrusive supervision or intense 7 personal interactions such as taking complaints or the encounters 8 similar to those experienced by law enforcement or emergency 9 personnel.” The ALJ further found that Plaintiff could perform (Id.) Based on Plaintiff’s RFC and the VE’s 10 testimony, the ALJ concluded that Plaintiff could perform her 11 past relevant work as a receptionist. 12 the ALJ further found that Plaintiff could perform jobs existing 13 in significant numbers in the national economy. 14 Accordingly, the ALJ found Plaintiff not disabled through her 15 date last insured, March 31, 2013. 16 V. 17 (AR 28.) At step five, (AR 29.) (Id.) DISCUSSION Plaintiff contends that the ALJ erred in (1) assessing her 18 physical RFC, (2) assessing her mental RFC, and (3) rejecting her 19 credibility. 20 provide specific and legitimate reasons for discounting medical- 21 opinion evidence regarding Plaintiff’s physical RFC, remand is 22 warranted. (J. Stip. at 3–4.) Because the ALJ failed to 23 A. The ALJ Erred in Assessing Plaintiff’s Physical RFC 24 Plaintiff contends that the ALJ’s physical RFC assessment 25 was not supported by substantial evidence because the ALJ failed 26 to set forth legally sufficient reasons for rejecting the 27 opinions of Plaintiff’s treating doctors, Daniel Kim and Gerald 28 Ho. (J. Stip. at 6-9, 19-20.) 6 1 2 1. Applicable law A district court must uphold an ALJ’s RFC assessment when 3 the ALJ has applied the proper legal standard and substantial 4 evidence in the record as a whole supports the decision. 5 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 6 consider all the medical evidence in the record and “explain in 7 [her] decision the weight given to . . . [the] opinions from 8 treating sources, nontreating sources, and other nonexamining 9 sources.” Bayliss The ALJ must 20 C.F.R. § 404.1527(e)(2)(ii); see also 10 § 404.1545(a)(1) (“We will assess your residual functional 11 capacity based on all the relevant evidence in your case 12 record.”); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (RFC 13 must be “based on all of the relevant evidence in the case 14 record”). 15 those limitations for which there is support in the record and 16 need not consider properly rejected evidence or subjective 17 complaints. 18 determination because “the ALJ took into account those 19 limitations for which there was record support that did not 20 depend on [claimant’s] subjective complaints”); Batson v. Comm’r 21 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not 22 required to incorporate into RFC those findings from treating- 23 physician opinions that were “permissibly discounted”). 24 In making an RFC determination, the ALJ may consider See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC Three types of physicians may offer opinions in Social 25 Security cases: those who directly treated the plaintiff, those 26 who examined but did not treat the plaintiff, and those who did 27 neither. 28 is generally entitled to more weight than an examining Lester, 81 F.3d at 830. 7 A treating physician’s opinion 1 physician’s, and an examining physician’s opinion is generally 2 entitled to more weight than a nonexamining physician’s. 3 Id. When a treating or examining doctor’s opinion is not 4 contradicted by other evidence in the record, it may be rejected 5 only for “clear and convincing” reasons. 6 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 7 (citing Lester, 81 F.3d at 830–31). 8 ALJ must provide only “specific and legitimate reasons” for 9 discounting it. 10 2. 12 When it is contradicted, the Id. Relevant background a. 11 See Carmickle v. Treating physician Daniel Kim On March 11, 2014, Dr. Kim completed a “Physical Residual 13 Functional Capacity Questionnaire.” (AR 1108-12.) He diagnosed 14 Plaintiff with fibromyalgia and seizure disorder “per patient 15 report” and identified depression, anxiety, and “PTSD” as 16 psychological conditions affecting Plaintiff’s physical 17 conditions. (AR 1108-09.) He reported that Plaintiff’s symptoms 18 included fatigue and pain in her joints, upper arms, knees, and 19 neck. (AR 1108.) He opined that Plaintiff could lift less than 20 10 pounds, sit continuously for 15 minutes at a time, stand 21 continuously for five minutes at a time, and sit, stand, and walk 22 less than two hours in an eight-hour day. (AR 1110-11.) He also 23 found that Plaintiff would need to walk one minute every 15 24 minutes, shift at will between sitting, standing, and walking, 25 take unscheduled breaks, and use a cane. (Id.) Plaintiff could 26 use her hands, fingers, or arms for repetitive activities only 27 five percent of the time and bend and twist at the waist five 28 percent of the time. (Id.) Dr. Kim opined that Plaintiff would 8 1 miss work more than three times a month due to her impairments or 2 treatment. (AR 1109-10, 1112.) He stated that the asserted 3 “symptoms and limitations” had existed since 2009. 4 (AR 1112.) On March 12, 2012, Dr. Kim completed a “Medical Source 5 Statement - Physical” form. (AR 660-61.) Dr. Kim indicated that 6 Plaintiff could lift and/or carry less than 10 pounds, stand 7 and/or walk less than two hours in an eight-hour workday, and sit 8 three hours in an eight-hour workday. (AR 660.) Dr. Kim cited 9 fibromyalgia and leg pains to support these findings. He (Id.) 10 opined that Plaintiff could occasionally stoop, reach, handle, 11 finger, and feel but could never climb, balance, kneel, crouch or 12 crawl. (AR 661.) He also noted environmental restrictions. 13 (Id.) 14 15 b. Treating rheumatologist Gerald Ho On March 13, 2014, Dr. Ho completed a “Physical Residual 16 Functional Capacity Questionnaire.” (AR 1113-17.) He diagnosed 17 Plaintiff with fibromyalgia and osteoarthritis of the neck and 18 back and identified depression and anxiety as psychological 19 conditions affecting Plaintiff’s physical conditions. 20 14.) (AR 1113- He indicated that Plaintiff’s symptoms included insomnia, 21 widespread myalgias, fatigue, dizziness, anxiety, stiffness, 22 nonrestorative sleep, headaches, fibromyalgia fog, and IBS. 23 1113, 1117.) (AR He also noted that Plaintiff’s fibromyalgia 24 medication may cause seizures. (AR 1117.) Dr. Ho opined that 25 Plaintiff could lift less than 10 pounds, sit continuously for 26 five minutes at a time, stand continuously for five minutes at a 27 time, and sit, stand, and walk less than two hours in an eight28 hour day. (AR 1110-11.) He found that Plaintiff could use her 9 1 hands, fingers, or arms for repetitive activities five percent of 2 the time and bend and twist at the waist one percent of the time. 3 (Id.) Plaintiff would also need to walk one minute every 10 4 minutes, shift at will between sitting, standing and walking, 5 take unscheduled breaks, use a cane, and avoid heavy machinery, 6 climbing, extreme temperatures, and noisy places. 7 1115-17.) (AR 1110-11, Dr. Ho opined that Plaintiff would miss work more than 8 three times a month due to her impairments or treatment. 9 1114-15, 1117.) He stated that these limitations had existed 10 since November 3, 2011. 11 (AR (AR 1117.) On March 12, 2012, Dr. Ho completed a “Medical Source 12 Statement - Physical.” (AR 663-64.) He indicated that Plaintiff 13 could lift and/or carry less than 10 pounds, stand and/or walk 14 less than two hours in an eight-hour workday, and sit for two to 15 three hours in an eight-hour workday. (AR 663.) He cited 16 fibromyalgia, pain, fatigue, insomnia, IBS, weakness, obesity, 17 and general stiffness to support these findings. (Id.) Dr. Ho 18 opined that Plaintiff could occasionally stoop, reach, handle, 19 finger, and feel but could never climb, balance, kneel, crouch, 20 or crawl. (AR 664.) He also noted environmental restrictions. Dr. Ho cited x-rays of Plaintiff’s feet, clinical 21 (Id.) 22 observations of tender points, and sedation caused by medication 23 to support his findings. 3. 24 25 (Id.) Analysis The ALJ gave “limited weight” to Dr. Kim’s and Dr. Ho’s 26 opinions. (AR 26.) The ALJ stated: 27 Daniel J. Kim, M.D., a treating physician, completed two 28 medical source statements. The doctor opined that the 10 1 claimant can perform less than sedentary work with a sit 2 or 3 manipulative, 4 addition, Gerald Ho, M.D., also a treating physician, 5 opined 6 statements. 7 limited weight because the medical evidence of record 8 does not support them and they are inconsistent with the 9 claimant’s activities of daily living. stand option and and similar exertional, environmental results The extreme in opinions limitations. multiple of the postural, medical doctors are In source given 10 (AR 26 (citations omitted).) 11 The ALJ’s conclusory reasoning does not provide a legally 12 sufficient basis for rejecting these treating-physician opinions. 13 See Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999) (“The 14 ALJ must set out in the record his reasoning and the evidentiary 15 support for his interpretation of the medical evidence.”); 16 Regennitter v. Comm’r of the Soc. Sec. Admin., 166 F.3d 1294, 17 1299 (9th Cir. 1999) (“[C]onclusory reasons will not justify an 18 ALJ’s rejection of a medical opinion”); Kinzer v. Colvin, 567 F. 19 App’x 529, 530 (9th Cir. 2014) (ALJ’s statements that treating 20 physicians’ opinions contrasted “sharply with the other evidence 21 of record” and were “not well supported by the . . . other 22 objective findings in the case record” were not sufficiently 23 specific and legitimate). 24 In her summary of the medical evidence, the ALJ noted that 25 Plaintiff’s physical examinations were “relatively within normal 26 limits” and that Plaintiff had a normal gait, good sensation, 27 full muscle strength, and slightly decreased range of motion in 28 some joints. (AR 25.) However, there are no laboratory tests or 11 1 objective findings that confirm the presence or severity of 2 fibromyalgia. 3 2004). Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. Indeed, “[o]ne of the most striking aspects of this 4 disease is the absence of symptoms that a lay person may 5 ordinarily associate with joint and muscle pain.” Rollins v. 6 Massanari, 261 F.3d 853, 863 (9th Cir. 2001) (Ferguson, J., 7 dissenting); see also Cota v. Comm’r of Soc. Sec., No. 8 1:08-CV-00842-SMS, 2009 WL 900315, at *9 (E.D. Cal. Mar. 31, 9 2009) (“Joints in fibromyalgia patients appear normal; 10 musculoskeletal examinations generally indicate no objective 11 joint swelling or abnormality in muscle strength, sensory 12 functions, or reflexes.”). In such cases, a treating doctor’s 13 diagnosis may be based purely on a patient’s reports of pain and 14 other symptoms. Benecke, 379 F.3d at 590. 15 not dispute that Plaintiff has fibromyalgia. The Commissioner does (J. Stip. at 15.) 16 The medical records also show Plaintiff’s complaints of 17 generalized muscle pain, tender points, fatigue, and sleep 18 problems, all of which are indicative of fibromyalgia. Benecke, 19 379 F.3d at 590 (explaining that common symptoms of fibromyalgia 20 “include chronic pain throughout the body, multiple tender 21 points, fatigue, stiffness, and a pattern of sleep disturbance 22 that can exacerbate the cycle of pain and fatigue associated with 23 this disease”); (see AR 741, 798, 800, 804, 812, 815, 848, 864, 24 866, 889, 892, 894, 905-07, 914, 961). Thus, the lack of 25 abnormal objective findings on examination was not a sufficient 26 basis for rejecting Dr. Kim’s and Dr. Ho’s opinions regarding the 27 severity of Plaintiff’s fibromyalgia. See Day v. Weinberger, 522 28 F.2d 1154, 1156 (9th Cir. 1975) (ALJ erred by relying upon “his 12 1 own exploration and assessment” of plaintiff’s medical condition 2 rather than medical evidence in the record). 3 Further, as discussed by the ALJ, there was objective 4 medical evidence supporting Dr. Kim’s and Dr. Ho’s opinions 5 regarding Plaintiff’s other physical impairments. (AR 25.) X- 6 rays and imaging studies showed osteoarthritis in Plaintiff’s 7 hands and feet, tendinosis of the common extensor tendon in her 8 right elbow, spondylosis with moderate neural foraminal narrowing 9 and mild stenosis in her cervical spine, and abnormalities in her 10 knees. (AR 25, 46, 718-20, 724, 800, 810, 870, 906, 914, 1145, 11 1183.) Plaintiff was also “status post bilateral carpal tunnel 12 surgery,” and the medical record documented restrictions in her 13 ability to lift, sit, stand, and walk. 14 798, 800, 894, 907.) (AR 25, 46, 406, 741, Consequently, it was improper for the ALJ 15 to reject Dr. Kim’s and Dr. Ho’s opinions based on a lack of 16 objective medical evidence. 17 The ALJ also erred in discounting their opinions as 18 inconsistent with Plaintiff’s activities of daily living. 19 22, 24, 26, 27.) (AR In a function report she filled out in March 20 2012, Plaintiff stated that she could not stand, walk, or sit 21 more than 10 minutes, could not squat, and had difficulty 22 bending, reaching, kneeling, climbing stairs, and using her 23 hands. (AR 274.) Her activities included taking care of her 24 personal needs, talking on the telephone, watching television, 25 reading, working on crossword puzzles, preparing simple meals, 26 and feeding her landlady’s cat. (AR 269-71). She could use 27 public transportation and go shopping for a few items on her own 28 but needed assistance for bigger shopping trips. 13 (AR 272.) She 1 could perform light household chores, such as washing dishes for 2 three to five minutes a day and sweeping and dusting for three 3 minutes every two or three weeks, but needed help with laundry 4 and heavier household cleaning. (AR 271-72.) The ALJ cited only 5 this function report and Plaintiff’s hearing testimony (AR 22, 6 24, 26, 27), in which Plaintiff did not really discuss her 7 activities, failing to consider the second disability report 8 Plaintiff filled out, in March 2013, in which she described much 9 more limited activities and greater restrictions as the result of 10 increased fibromyalgia pain and a slip-and-fall accident (AR 30411 05). In any event, the ALJ failed to adequately explain how 12 Plaintiff’s activities of daily living conflicted with Dr. Kim’s 13 or Dr. Ho’s opinions regarding her functional limitations, and “a 14 holistic review of the record” does not reveal any such 15 inconsistencies. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 16 2014). 17 The Commissioner argues that the ALJ’s physical RFC 18 assessment for a range of light work was supported by the 19 opinions of the testifying medical expert, Dr. Arnold Ostrow, and 20 the state-agency medical consultant, Dr. H. Han. 21 14; AR 26.) (J. Stip. 11- “[T]he findings of a nontreating, nonexamining 22 physician can amount to substantial evidence, so long as other 23 evidence in the record supports those findings.” 24 Chater, 94 F.3d 520, 522 (9th Cir. 1996). Saelee v. Further, greater 25 weight may be given to a nonexamining doctor who is subject to 26 cross-examination. 27 Cir. 1995). Andrews v. Shalala, 53 F.3d 1035, 1041 (9th But the opinion of a nonexamining physician standing 28 alone cannot constitute substantial evidence to support an ALJ’s 14 1 rejection of a treating physician’s opinion. See Morgan v. 2 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999); 3 Lester, 81 F.3d at 831–32. A contrary medical opinion may 4 constitute substantial evidence upon which the ALJ may rely in 5 evaluating the weight to afford a treating physician’s opinion 6 only when the contrary opinion is based on independent clinical 7 findings. Andrews, 53 F.3d at 1041; see also Saelee, 94 F.3d at 8 522 (upholding ALJ’s reliance on nonexamining medical 9 consultant’s opinion that was “corroborated by the opinions of 10 other examining and consulting physicians, which in turn were 11 based on independent clinical findings”); Stubbs-Danielson v. 12 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“an ALJ’s assessment 13 of a claimant adequately captures restrictions . . . where the 14 assessment is consistent with restrictions identified in the 15 medical testimony”). 16 Here, the nonexamining-physician assessments of Plaintiff’s 17 physical RFC were not supported by independent clinical findings 18 of another treating physician or consultative examiner. Although 19 Dr. Ostrow reviewed the medical record and was subject to cross20 examination, his testimony was based on the same clinical 21 findings in Plaintiff’s treatment history upon which Dr. Kim and 22 Dr. Ho based their opinions. (AR 45-51.) Dr. Han also relied on 23 Plaintiff’s treatment history but necessarily failed to consider 24 substantial portions of the medical record, as his opinion was 25 issued on April 2, 2012. (AR 83, 97.) As there is no examining 26 opinion or other independent medical opinion evidence in the 27 record consistent with the nonexamining physicians’ assessments 28 of Plaintiff’s physical RFC, their opinions did not constitute 15 1 substantial evidence justifying rejection of Dr. Kim’s and Dr. 2 Ho’s treating-physician opinions. See Murray v. Heckler, 722 3 F.2d 499, 501 (9th Cir. 1983) (ALJ improperly rejected treating 4 physician’s opinion based on opinion of nontreating physician 5 when “the findings of the non-treating physician were the same as 6 those of the treating physician” and only his conclusions 7 differed (emphasis omitted)). 8 In sum, because the ALJ failed to provide specific and 9 legitimate reasons for rejecting the opinions of Dr. Kim and Dr. 10 Ho in assessing Plaintiff’s physical RFC, reversal is warranted. 11 On remand, the ALJ should specify the bases upon which she has 12 weighed the medical-opinion evidence. As reconsideration of 13 these medical opinions requires that the ALJ reevaluate 14 Plaintiff’s mental impairments2 and credibility, the Court does 15 not reach the remaining issues raised in the Joint Stipulation. 16 B. Remand for Further Proceedings Is Appropriate 17 When, as here, an ALJ errs in denying benefits, the Court 18 generally has discretion to remand for further proceedings. 19 Harman v. Apfel, 211 F.3d 1172, 1175–78 (9th Cir. 2000). See When no 20 useful purpose would be served by further administrative 21 proceedings, however, or when the record has been fully 22 developed, it is appropriate under the “credit as true” rule to 23 direct an immediate award of benefits. See id. at 1179 (noting 24 that “the decision of whether to remand for further proceedings 25 26 27 28 2 Both Dr. Kim and Dr. Ho opined that psychological factors affected Plaintiff’s physical condition and that Plaintiff has significant limitations in handling work stress and maintaining attention and concentration. (AR 1109-10, 1112-15.) 16 1 turns upon the likely utility of such proceedings”); Garrison v. 2 Colvin, 759 F.3d 995, 1019–20 (9th Cir. 2014). 3 Under the credit-as-true framework, three circumstances must 4 be present before the Court may remand to the ALJ with 5 instructions to award benefits: 6 (1) the record has been fully developed and further 7 administrative proceedings would serve no useful purpose; 8 (2) the ALJ has failed to provide legally sufficient 9 reasons for rejecting evidence, whether claimant 10 testimony or medical opinion; and (3) if the improperly 11 discredited evidence were credited as true, the ALJ would 12 be required to find the claimant disabled on remand. 13 Garrison, 759 F.3d at 1020. When, however, the ALJ’s findings 14 are so “insufficient” that the Court cannot determine whether the 15 rejected testimony should be credited as true, the Court has 16 “some flexibility” in applying the credit-as-true rule. Connett 17 v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also 18 Garrison, 759 F.3d at 1020 (noting that Connett established that 19 credit-as-true rule may not be dispositive in all cases). This 20 flexibility should be exercised “when the record as a whole 21 creates serious doubt as to whether the claimant is, in fact, 22 disabled within the meaning of the Social Security Act.” 23 Garrison, 759 F.3d at 1021. 24 Here, under Connett, remand for further proceedings is 25 appropriate because the ALJ failed to provide specific and 26 legitimate reasons for discounting the medical-opinion evidence 27 in assessing Plaintiff’s physical RFC, yet the Court has serious 28 17 1 doubts as to whether she is in fact disabled.3 2 VI. CONCLUSION 3 Consistent with the foregoing, and pursuant to sentence four 4 of 42 U.S.C. § 405(g),4 IT IS ORDERED that judgment be entered 5 REVERSING the decision of the Commissioner, GRANTING Plaintiff’s 6 request for remand, and REMANDING this action for further 7 proceedings consistent with this Memorandum Opinion. IT IS 8 FURTHER ORDERED that the Clerk serve copies of this Order and the 9 Judgment on counsel for both parties. 10 11 DATED: February 25, 2016 12 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 These doubts spring from inconsistencies in the record suggesting that Plaintiff may not be credible. For example, Plaintiff appears to have made conflicting statements concerning memory problems. (See AR 270-71, 273-74, 276, 304, 731, 1151.) Plaintiff also reported that she stopped driving because she was experiencing seizures but admitted at the hearing that she had driven a couple of weeks earlier. (See AR 44, 272, 731.) And although Plaintiff claimed to suffer from debilitating migraines, the medical record suggests that medication helped to alleviate this problem. (See AR 233, 270, 276, 1151, 1117.) Because the record as a whole creates serious doubt as to whether Plaintiff is in fact disabled, remand for further proceedings is appropriate. See Burrell v. Colvin, 775 F.3d 1133, 1141-42 (9th Cir. 2014). 4 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 18
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