Mahmood v. Commissioner, Social Security Administration, No. 3:2013cv01598 - Document 27 (D. Or. 2014)
Court Description: OPINION AND ORDER. Signed on 10/14/2014 by Judge Malcolm F. Marsh. (pvh)
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Mahmood v. Commissioner, Social Security Administration Doc. 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KUESTAN JALAL MAHMOOD Plaintiff, Case No. 3:13-cv-01598-MA OPINION AND ORDER v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. PHYLLIS J. BURKE 3800 NE Sandy Blvd. Ste. 226 Portland, OR 97232 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204 GERALD J. HILL Social Security Administration Off ice of the General Counsel 701 Fifth Ave., Suite 2900, M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Dockets.Justia.com MARSH, Judge Plaintiff Kuestan Jalal Mahmood seeks judicial review of the final decision of the Commissioner of Social Security denying her application for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 1381-1383f. disability 42 U.S.C. §§ This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (3). For the reasons that follow, I reverse and remand for an immediate calculation and award of benefits. PROCEDURAL AND FACTUAL BACKGROUND Plaintiff protectively filed an application for SSI on October 30, 2009, alleging disability beginning April 19, weakness, cough, and depression. initially and upon reconsideration. 2009, due to Plaintiff's claims were denied Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on December 21, 2011, at which plaintiff appeared with her attorney and testified. A vocational expert, Amberly Ruck, also appeared at the hearing and testified. issued an unfavorable decision. On January 5, 2012, the ALJ The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Born in 1968, plaintiff was 41 years old on the date of the ALJ's adverse decision. Plaintiff is an Iraqi-Kurdish woman who immigrated to the United States in 1997. 2 - OPINION AND ORDER Plaintiff speaks English as a Plaintiff received a second language. civil engineering degree in Iraq and an associate's degree in computer technology in the United States. Plaintiff has past relevant work as a caregiver, cashier, and grocery bagger. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. Each step is potentially dispositive. burden of proof at steps one through §§ Bowen v. 404.1520; 416.920. The claimant bears four. ·See Valentine the v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. 180 F. 3d 1094, 1098 shifts Commissioner five, Apfel, the burden to the (9th Cir. to 1999). At step show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2011. At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since her alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: a chronic cough, depression, gait ataxia, and anemia. At step three, the ALJ found that combination of impairments, listed impairment. 3 - OPINION AND ORDER plaintiff's impairments, or did not meet or medically equal a The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform a limited range of medium work in that plaintiff can lift 50 pounds occasionally and 25 pounds frequently; she can stand, walk, and sit for at least six hours in an eight hour day; she should not work at unprotected heights or around hazardous machinery; she should not be required to balance on narrow beams; she should avoid concentrated exposure to noxious fumes and odors; she is limited to occasional interaction with coworkers and the public; and she should not perform any work requiring verbal reports because of her limited English skills. At step four, the ALJ found plaintiff is unable to perform any past relevant considering At work. plaintiff's step age, five, the education, ALJ work concluded that experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform, cleaner and dishwasher /kitchen helper. such as a night Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from October 20, 2009 through the date of the decision. ISSUES ON REVIEW On appeal to this court, plaintiff contends the ALJ committed the following errors: (1) failed to properly evaluate the opinions of treating physician J. Mark Kinzie, M.D., physician Jill Glazewski, 4 - OPINION AND ORDER M. D.; (2) Ph.D., and examining failed to properly evaluate plaintiff's testimony; environmental limitations Martin Kehrli, Ph.D.; and M. D., (4) the failed ( 3) described Richard Alley, ALJ failed to to by include in nonexamining M. D., and properly Paul the RFC physicians Rethinger, evaluate the lay testimony of plaintiff's brother Aram Mahmood. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Berry v. 622 Astrue, F.3d 1228, 1231 42 U.S.C. (9th Cir. § 2010). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it detracts from the Commissioner's decision. Ryan v. supports or Commissioner Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008); Martinez v. Heckler, 807 F.2d 771, 772 decision must be upheld, (9th Cir. 1986). The Commissioner's even if 'the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of 5 - OPINION AND ORDER the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. The ALJ Did Not Properly Evaluate the Treating and Examining Physicians' Medical Opinions A. Standards In general, the opinion of a treating physician is given more weight than the opinion of an examining physician, and the opinion of an examining physician is afforded more weight than the opinion of a nonexamining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence record, 631 [it will be given] controlling weight." (internal C. F.R. § quotations 416. 927 (c). treating physician, omitted) (alterations in [the] case Orn, 495 F.3d at in original); 20 To reject the uncontradicted opinion of a the ALJ must provide "clear and convincing reasons that are supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If the treating physician's opinion is contradicted, the ALJ must consider how much weight it is entitled to considering the factors in 20 C.F.R. § 416.927(c)(2-6). The factors include the length of the treatment relationship, the frequency of examination, 6 - OPINION AND ORDER the nature and supportability of the opinion, and its consistency with other evidence in the record as a 20 whole. C.F.R. § 416. 927 (d) (2-6); Ghanim, 763 F.3d at 1161. If a treating or examining doctor's opinion is contradicted by another doctor's opinion, F.3d 1228, 1232 specific and Taylor v. Commissioner Soc. Sec. Admin., legitimate reasons. it 659 (9th Cir. may be 2011). rejected by When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or conclusory. B. Id. J. Mark Kinzie, M.D., Ph.D. Plaintiff argues that the ALJ failed to provide sufficient reasons for discounting the opinion of .J, Mark Kinzie, M.D., Ph.D. Dr. Kinzie is Intercultural plaintiff's Psychiatric University (OHSU). treating Program at psychiatrist Oregon through Health the & Science Dr. Kinzie treated plaintiff from 2006 through 2011, diagnosing her with Major Depressive Disorder, severe, nonpsychotic. Dr. Kinzie has treated plaintiff with a variety of anti-depressant medications treatment notes frequently with little describe success. plaintiff Dr. as Kinzie' s depressed, tearful, without hope, noting that she suffers from insomnia and occasional suicidal ideation, and consistently assigned a GAF of 50. 1 1 The GAF scale is used to report a clinician's judgment of the patient's overall level of functioning on a scale of 1 to 100. A GAF of 41-50 indicates serious symptoms (suicidal 7 - OPINION AND ORDER Dr. Kinzie submitted two opinions connection with In a December 8, 2011 letter, Dr. Kinzie opined that plaintiff is unable to work. Tr. plaintiff's social security application. 350. In a December 15, 2011 letter, in Dr. Kinzie opined that plaintiff meets the criteria of Listing 12.04, indicating that she has moderate restrictions of activities of daily living, marked difficulties in maintaining social functioning, and marked difficulties maintaining concentration, persistence and pace. Tr. 351-52. Dr. Kinzie explained that plaintiff is isolated socially, and is withdrawn even within her family, and that she avoids going out in public, and when she does, Tr. Kinzie 351. Dr. is accompanied by her mother. also noted that plaintiff has difficulty controlling her emotions, is overly sensitive to criticism, and would have considerable difficulty interacting appropriately with co-workers and supervisors. Tr. 351. Dr. Kinzie explained that plaintiff has remarkably slowed speech, movement, and cognition, has difficulty persisting, and because she is easily overwhelmed. her concentration is impaired Tr. 352. Dr. Kinzie also opined that plaintiff would have difficulty maintaining regular attendance, that any increase in mental demands would cause plaintiff to decompensate, and that she would likely be ideation, severe obsessional rituals frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., few friends, unable to keep a job). Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV) p. 31-34 (4th ed. 2000). 8 - OPINION AND ORDER absent from work more than two days per month due to her condition. Tr. 352-54. Because Dr. Kinzie's opinion was contradicted, 2 the ALJ was required to provide specific and legitimate reasons, substantial evidence, to reject his opinion. backed by Bayliss, 427 F.3d at In the decision, ·the ALJ gave Dr. Kenzie's opinion "little 1216. weight" because: (1) it is inconsistent with plaintiff's activities of daily living (ADLs); (2) the limitations described by Dr. Kinzie are inconsistent with plaintiff's ability to work as her father's caregiver until limitations Dr. his death in 2009; and (3) the severity of Kinzie describes are inconsistent with treatment notes from OHSU showing that plaintiff has been searching for work and that her depression stems from her inability to find work. Having carefully reviewed the record, I conclude that the ALJ's reasoning falls short. 2 Joshua J. Boyd, Psy.D., a nonexamining psychologist, completed a Psychiatric Review Technique form on July 16, 2010, opining that plaintiff's major depressive disorder causes only mild restrictions in her activities of daily living, maintaining social functioning, and maintaining concentration, persistence and pace. Tr. 279-91. Dr. Boyd also noted that plaintiff was grieving her father's death, and that the severity of her symptoms was not expected to persist. Tr. 291. Dr. Boyd's opinion was affirmed on reconsideration. Tr. 85-89. Plaintiff contends that the ALJ should have applied the clear and convincing standard to reject Dr. Kinzie's opinion because Dr. Boyd's opinion is not supported by substantial evidence. Because the ALJ's reasoning fails to reach even the less rigorous specific and legitimate standard, resolution of this issue is unnecessary. 9 - OPINION AND ORDER A claimant's ability to engage in daily activities that are incompatible with the severity of symptoms described by a treating physician is an appropriate basis upon which to discredit that opinion. Sec. Ghanim, Admin., between a 763 F.3d at 1162; see Morgan v. 169 F.3d 595, 600-02 treating physician's activities a specific and (9th Cir. opinion and legitimate Comm'r of Soc. 1999) (inconsistency a reason claimant's to daily discount treating physician's opinion); Batson, 359 F.3d at 1196. the However, none of the ADLs performed by plaintiff exceed the limitations described by Dr. Kinzie. indicated that In his December 2011 opinion, Dr. Kinzie plaintiff has moderate difficulties with ADLs, explaining that plaintiff is able to perform some simple household chores, but plaintiff relies upon her mother for assistance because plaintiff spends a great deal of time in bed due to depression, fatigue, and insomnia. Id. Dr. Kinzie's opinion is wholly supported by the record. plaintiff reported performing simple household chores While such as limited cooking, cleaning, laundry, she consistently reported that completing such tasks takes a long time, and that she performs them infrequently. Tr. 178, 193. Additionally, plaintiff consistently reported grocery shopping and attending her doctors' appointments with her mother's assistance. Kinzie' s treatment notes Tr. 178, repeatedly reflect difficulty sleeping and frequent fatigue. 10 - OP.INION AND ORDER 259-60, 268. And, Dr. that plaintiff had Tr. 248, 252, 255, 320, 32 6, 327, 330-31, 329' determination that Dr. 335, 337. Kinzie's I conclude opinion is the ALJ's inconsistent plaintiff's ADLs is not supported by substantial evidence, therefore, does not provide a reject his opinion. Molina v. specific or Astrue, with and legitimate basis to 674 F. 3d 1104, 1113 (9th Cir. 2012). Plaintiff's ability to act as her father's caregiver is not a specific or legitimate reason to reject Dr. Kinzie's opinion when viewed in the context of the entire record. Here, plaintiff reported acting as her father's caregiver for only three hours per day, five days a week. Tr. 170. And, plaintiff consistently described that she performed these activities with assistance from her mother, and that she was responsible for reading the English on her father's paperwork and medication instructions while her mother was responsible for the physical tasks. Tr. 57-58. Plaintiff's ability to serve as her father's caregiver for 15 hours a week with assistance from her mother is not inconsistent with the moderate limitations in ADLs described by Dr. Kenzie. Thus, the ALJ erred in rejecting Dr. Kinzie's opinion on this basis. A conflict between treatment notes and a treating provider's opinions may opinion. Ghanim, 763 F.3d at 1161. Kinzie' s opinion plaintiff was constitute finding looking 11 - OPINION AND ORDER an adequate that for OHSU reason to discredit that Here, the ALJ discounted Dr. treatment employment and notes that show that plaintiff's depression sterruned from her inability to find employment, citing Exhibit lOF. Sedighi, Exhibit lOF consists of treatment notes from Behjat QMHP, a Kurdish/English speaking counselor at the Intercultural Psychiatric Program at OHSU who counseled plaintiff from 2006 to 2011, opinion. Tr. indicates and concurred with Dr. Kinzie's December 2011 301-317, that 354. A December 11, plaintiff has been 2008 treatment note unsuccessful in finding employment, and that she resists "looking for less demanding jobs in lower level" because plaintiff finds it "degrading." And, a February 5, 2008 working in a lower job. note reflects Tr. 312. that Tr. 309. plaintiff resists Contrary to the ALJ's finding, there is no indication in either Bejhat Sedighi's or Dr. Kinzie's treatment notes showing that plaintiff continued job searching See Ghanim, 763 F.3d at 1164 (ALJ may not cherry-pick after 2008. statements in physician's evaluations, but must consider entire diagnosis and observations of impairment); Holohan v. Masanari, 246 F. 3d 1195, 1205 (9th Cir. 2001) (ALJ may not rely on selective statements pulled from physician's treatment notes; must examine "overall diagnostic picture"). instead ALJ Indeed, after plaintiff's alleged onset date, Behjat Sedighi's notes, like those of Dr. Kinzie, repeatedly reflect that plaintiff experienced severe symptoms, including tearfulness, unemployment profound hopelessness and financial 12 - OPINION AND ORDER and depression, ongoing situation. low stress Tr. 305, self-esteem, due to her 307-08. More importantly, Dr. Kinzie attributed plaintiff's poor motivation and lack of follow-through with seeking employment as secondary to her depression. Tr. 248-49, 340, 352. Because the ALJ's determination is not supported by substantial evidence, the ALJ has failed to provide sufficient, specific or legitimate reasons to reject Dr. Kinzie's opinion, I conclude the ALJ has erred. C. Jill Glazewski, M.D. Plaintiff contends that the ALJ erred in failing to credit the opinion of Jill Glazewski, M.D., an examining physician who performed a comprehensive psychiatric evaluation on May 31, 2010. Tr. 266-70. Dr. Glazewski observed that on a recall test, plaintiff only was able to recall one of three, her responses to serial 7s were slow, and her ability to spell "world" forward and backward was "slowed considerably given her level of education." Tr. 266. Dr. Glazewski diagnosed plaintiff with Major Depressive Disorder, without psychotic features. Dr. Glazewski offered the following opinion about plaintiff's ability to work: Based on mental heal th status there are barriers that interfere with her functional capacities to perform work activity. These barriers include her depressed mood, her psychomotoric slowing, her cognitive slowing, her lability and extreme tearfulness. These barriers are likely to impair her ability to complete detailed and complex tasks. They are also likely to impair her ability to interact with coworkers and the public, and impair her consistency in the workplace and her ability to complete tasks as well as a workday or workweek. The ALJ gave "some weight" to Dr. Glazewski' s opinion that plaintiff is limited in her ability to interact with coworkers and 13 - OPINION AND ORDER the public, but discounted Dr. Glazewski's opinion because: plaintiff was able to obtain an associate' s (1) degree in computer technology in 2005, and that her symptoms have not worsened since 2005; and (2) plaintiff was able to act as her father's caregiver until his death in 2009. While plaintiff did complete her two-year associate's degree in 2005, she did so some four years prior to her alleged onset date and it is unclear from the record whether plaintiff attended school full time or part time. And, contrary to the ALJ's conclusion, plaintiff's depression became more severe after 2005. To be sure, in November of 2006, plaintiff sought treatment for her depression at the OSHU clinic, where she reported to counselor Behjat Sedighi that her depression had worsened over the previous six to seven months, with increased feelings of anhedonia, appetite, very poor sleep, and insomnia. Tr. hopelessness, poor 343. Dr. Kinzie's initial November 22, 2006 psychiatric evaluation similarly reflects that plaintiff struggled with depression her entire adult life but she reported increased depression and hopelessness after being unsuccessful in finding employment following completion of school in 2005. Tr. 248. Dr. Kinzie's notes show that plaintiff went to the unemployment department "at times" for job interviews, but that plaintiff lacked motivation, had no friends, Tr. 248. and stayed at home. Thus, I conclude that discounting Dr. Glazewski's opinion because plaintiff completed school in 2005 and her symptoms had 14 - OPINION AND ORDER not increased, is not supported by substantial evidence in the record. And, as discussed above with respect to Dr. Kinzie, I conclude that plaintiff's ability to act as a caregiver for 15 hours a week in her home with the assistance of her mother is not a specific and legitimate reason to discount Dr. Glazewski's opinion. Therefore, I conclude that the ALJ has erred by failing to provide sufficient, specific and legitimate reasons backed by substantial evidence to reject Dr. Glazewski's opinion. In summary, I find it significant that the medical providers who have examined plaintiff consistently endorsed severe depressive symptoms that effect plaintiff's concentration, persistence and pace. social functioning and Rather than addressing the severity of plaintiff's symptoms in these areas of concern, the ALJ has focused on limited, weak evidence of plaintiff's activities of daily living. Indeed, the ALJ's focus on plaintiff's ability to handle a limited amount of daily chores inside her home and to leave her house with the assistance of her mother over the opinion of her treating evaluations, and psychiatrist (Dr. Kinzie) an examining physician similar limitations, is erroneous. with (Dr. five years Glazewski) of noting To be sure, the vast weight of the record, aside from the limited quantum of supporting evidence cited by the ALJ, demonstrates that plaintiff suffers from severe depression, with marked 15 - OPINION AND ORDER limitations in her ability to handle working at an acceptable pace for an entire workweek. In short, the ALJ failed to cite specific and legitimate reasons, supported by substantial evidence to .discount the opinions of Drs. Kinzie and Glazewski. II. Plaintiff's Testimony To determine whether .a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that Tommasetti v. As true, reasonably be Molina, expected to produce the symptoms alleged. 1112; could 674 F.3d at 533 F. 3d 1035, 1039 (9th Cir. 2008) . At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Admin., 533 F.3d 1155, Carmickle v. 1166 (9th Cir. Commissioner Soc. 2008); Sec. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's 16 - OPINION AND ORDER daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. Plaintiff testified at the hearing that she received a two year degree as an engineering technician and worked part time before being forced to leave Iraq in 1998. Once in the United States, plaintiff testified that she has worked few jobs for short periods of time, such as McDonald's, but was let go because she did not work fast enough. Tr. 55-56. Plaintiff also testified that she worked as her father's caregiver for about 18 months until her father died in April of 2009. Plaintiff stated that she received help from her mother to care for her father, did the physical parts of the job, and that her mother and that she assisted with taking her father to doctors' appointments and reading medication instructions. Tr. 57-58. Plaintiff testified that she is not as quick mentally or physically as she was before her father's death. Plaintiff described that she cannot afford medication for her asthma, she receives food stamps, and lives in public assistance housing. Plaintiff testified that she cries four or five times a day, and that she lies down alone in her room for several hours each day due to her depression. Tr. 61. Plaintiff stated that she has severe anemia, which also contributes to her fatigue. Plaintiff testified that she goes grocery shopping with her mother, who is 65 17 - OPINION AND ORDER years old, and that her mother must carry the groceries when they are heavy because she is too weak and tired. In the credible.. she has decision, the ALJ found Tr. 69. plaintiff only partially The ALJ discredited plaintiff's testimony because: not received any regular medical treatment; (2) ( 1) she traveled to Iraq in October 2009; and (3) plaintiff's unemployment is due to the poor underemployed. economy and her unwillingness to be The ALJ's reasons fail to reach the clear and convincing level. An "unexplained, or inadequately explained, failure to seek treatment" may be the basis for an adverse credibility finding. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). However, lack of medical treatment due to an inability to afford medical treatment does not support an adverse credibility determination. F. 3d at 638. Here, advantage low of testimony. Orn, 495 the ALJ noted that plaintiff had not taken cost or free clinics, and discounted her The ALJ's reasoning is flawed. Plaintiff's primary reason for seeking disability is for her mental impairment, not her physical impairments, and to that end plaintiff has regularly sought treatment for her depression through Dr. Kinzie and Behjat Sedighi at the OHSU available to her due to her immigrant status. clinic, which is Therefore, contrary to the ALJ'.s conclusion, plaintiff was taking advantage of low-cost clinics available to 18 - OPINION AND ORDER her for treatment of her most severe condition. Tr. 60. Thus, on the record before me, the ALJ's first reason is not supported by substantial evidence. I also conclude that plaintiff's ability to travel to Iraq in Here, plaintiff 2009 is not inconsistent with her limitations. alleges that she is limited physically by weakness, cough, fatigue and limited mentally by depression - none of which is inconsistent with long-distance air travel. Cf. Tommasetti, 533 F.3d at 1040 (discrediting claimant in part because his travel to Venezuela was inconsistent with restrictions) . his alleged low back pain and mobility The ALJ erred in discrediting plaintiff on this basis. Lastly, as detailed above, substantial evidence does not support the ALJ's finding that plaintiff's unemployment is due to plaintiff's unwillingness to be underemployed or the economy. Plaintiff testified that she was terminated for working to slowly when employed by McDonald's. Moreover, Dr. Kinzie opined that plaintiff's lack of motivation and follow through with seeking employment was secondary to her depression. Therefore, after carefully reviewing the record as a whole, I conclude that the ALJ has erred by failing to cite clear and convincing reasons, backed by substantial evidence, for discrediting plaintiff's testimony. Because the errors identified are outcome determinative, decline to address plaintiff's remaining errors. /Ill 19 - OPINION AND ORDER I III. Remand After finding the ALJ erred, this court applies a three part test to determine whether the case should be remanded for further proceedings, Colvin, or to calculate and award benefits. Garrison v. 759 F.3d 995, 1020 (9th Cir. 2014), Vasquez, 593; Harman v. Apfel, 2.11 F.3d 1172, 1178 (9th Cir. 572 F.3d at 2000). The court should grant an immediate award of benefits when these three conditions are met: ( 1) the record has been fully developed and further administrative proceedings would serve no useful purpose, (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison, 759 F.3d at 1020. Where, after evaluating the record as a whole, there are serious doubts that the claimant is, exercise its discretion administrative proceedings. and in fact, disabled, remand the case the court may for further Id. at 1021; Connett v. Barnhart, 340 F.3d 873, 876 (9th Cir. 2003). Here, satisfied. all the conditions of the credit-as-true failed to provide legally sufficient of are First, the record has been fully developed and there is no need for further administrative proceedings. opinion rule Dr. Kinzie Glazewski's opinion, and assigning reasons for only some Second, the ALJ rejecting the weight to Dr. and for discrediting plaintiff's testimony. Third, if Ors. Kinzie and Glazewski's opinions are credited as true 20 - OPINION AND ORDER the ALJ would be required to find plaintiff disabled at either Step Garrison, 759 F.3d at 1022; Holohan, Three or Step Five on remand. 246 F.3d at 1211. Indeed, Kinzie opined that ï½°ï½¬ï½¾ï½©ï½®ï½´ï½¦ï¼ Dr. has suffered from Major Depressive Disorder for at least two years, and that she has marked limitations ï½°ï½¥ï½²ï½³ï½©ï½´ï½®ï½£ï½¾ï¼ with social functioning and concentration, and pace, thus satisfying the "A" and "B" criteria of Listing 12.04. Also, Dr. Kinzie opined that plaintiff would miss two or more days each month due to her depressive symptoms. 354. Tr. Dr. Glazewski similarly opined that plaintiff's depressive symptoms would impair her ability to complete tasks in a regular workday or workweek. was absent from Tr. 270. work for The VE testified that if a person two employment would be precluded. or days Tr. 76. a month, competitive The VE also testified that a person who works at a 75 percent pace compared to that of an average employee, or needed extra rest breaks each day, would be precluded from competitive employment. Tr. 75. Therefore, there are no outstanding issues that require resolution. Lastly, considering the record as a whole and the Commissioner's arguments, I have no basis to doubt that plaintiff disabled under the Act. Therefore, the proper remedy is to remand for calculation of benefits. Ill/ Ill/ 21 - OPINION AND ORDER Garrison, 759 F.3d at 1022-23. CONCLUSION For decision the reasons denying stated benefits to above, the plaintiff Commissioner's is REVERSED and final this proceeding is REMANDED for an immediate calculation and award o-f benefits. IT IS SO ORDERED. DATED this __j_!f day of OCTOBER, 2014. Malcolm F. Marsh United States District Judge 22 - OPINION AND ORDER
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