Peterson v. Commissioner, Social Security, No. 6:2014cv01024 - Document 24 (D. Or. 2015)
Court Description: Opinion and Order. The Commissioner's final decision partially denying benefits to plaintiff from March 24, 2008 to September 24, 2012 is REVERSED and this proceeding is REMANDED for an immediate calculation and award of benefits from March 24, 2008 through September 24, 2008. Signed on 8/17/2015 by Judge Malcolm F. Marsh. (sm)
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Peterson v. Commissioner, Social Security Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KATHLEEN J. PETERSON Plaintiff, Case No. 6:14-cv-01024-MA OPINION AND ORDER v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. DREW L. JOHNSON 1700 Valley River Drive Eugene, OR 97405 Attorney for Plaintiff JANICE E. HEBERT Assistant United States Attorney District of Oregon 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 SARAH L. MARTIN Social Security Administration Office of the General Counsel 701 Fifth Ave., Suite 2900, M/S 22la Seattle., WA 98104 Attorneys for Defendant 1 - OPINION AND ORDER Dockets.Justia.com MARSH, Judge Plaintiff Kathleen J. final decision of the Peterson seeks judicial review of the Commissioner of Social Security that partially denied her applications for. Disabled Widow's Benefits (OWE) under Title II of the Social Security Act, 42 U.S.C. 403, and Supplemental Security Income (SSI) 42 U.S.C. This Court has jurisdiction pursuant to 42 U.S.C. and 1383 (c) (3). 401- disability benefits under Title XVI of the Social Security Act, 1383f. §§ 1381- §§ §§ 405(g) For the reasons that follow, I reverse and remand that portion of the Commissioner's decision denying benefits from March 24, 2008 through September 24, 2012, for an immediate calculation and award of benefits. PROCEDURAL AND FACTUAL BACKGROUND Plaintiff protectively filed applications for DWB and SSI on March 17, 2010, alleging disability beginning March 24, 2008 1 , to post-traumatic stress disorder, panic attacks, due depression, intestinal problems, fibromyalgia, arthritis in her back, and arch problems creating leg pain. Plaintiff's initially and upon reconsideration. claims An ALJ held a 2012, at which plaintiff appeared with her attorney and testified. 1 denied Plaintiff filed a request for a hearing before an administrative law judge (ALJ). hearing on August 23, were A vocational expert, Mark Mann, also Plaintiff amended her alleged onset date at the August 23, 2012 hearing. 2 - OPINION AND ORDER appeared at the hearing and testified. ALJ issued a partially favorable On October 15, 2012, the decision finding plaintiff disabled as of September 24, 2012, but not before that date. The Appeals and Council therefore, denied plaintiff's request for review, the ALJ' s decision became the final decision of the Commissioner for purposes of review. Plaintiff was born on March 24, 1958, and was 50 years old on her amended alleged onset of disability date, and 54 years old on the date of the ALJ's adverse decision. Plaintiff has completed her GED and previously worked as a custodian in 1997. Plaintiff has a very limited work history and has no earnings since 1997. Tr. 193. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520; 416.920. Each step is potentially disposi ti ve. burden of proof at steps The claimant bears one through four. the See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 five, burden shifts the to the (9th Cir. 1999). Commissioner to 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). 3 - OPINION AND ORDER The ALJ concluded that plaintiff is the unmarried widow of a deceased insured worker and has attained the age of 50, and that plaintiff meets the widow's benefits. non-disability requirements for disabled Plaintiff must establish that her disability began on or before October 31, 2012 in order to be entitled to DWB. 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: post-traumatic stress disorder ( PTSD) with panic attacks, chronic pain secondary to degenerative disc disease of the thoracic bilateral spine, shoulders, hyperlipidemia, the ALJ scoliosis, found degenerative restless leg joint syndrome, abdominal substance abuse, and depression. that plaintiff's impairments, disease or of the pain, At step three, combination of impairments, did not meet or medically equal a listed impairment. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform a range of light work, except that plaintiff can perform tasks that involve about six hours of standing/walking, and about six hours of sitting in an eight-hour workday (with normal breaks); she is capable of frequent, but not continuous, exposure to industrial hazards or unprotected heights due to marijuana use, she remains able to use commonsense understanding to carry out detailed but uninvolved oral or written instructions, or deal with problems involving a few concrete variables in or from standardized 4 - OPINION AND ORDER situations, and she is able to work with things rather than people or data. At step four, relevant work. the ALJ found that plaintiff has no past The ALJ found that prior to plaintiff's disability onset date, she was an individual closely approaching advanced age, and that applying September 24, the 2012, age categories plaintiff's individual of advanced age. as of category age non-mechanically, to an changed At Step Five, the ALJ concluded that prior to the date plaintiff's age category changed, plaintiff's age, education, functional capacity, national economy work experience, considering and residual jobs existed in significant numbers in the that plaintiff could perform, such as cleaner/housekeeper, small parts assembler, and warehouse worker. However, beginning the date plaintiff's age category changed, there are no jobs that exist in significant numbers economy that plaintiff can perform, in the national and therefore, she has been under a disability under the Social Security Act from September 24, 2012, through the date of the decision. ISSUES ON REVIEW On appeal to this errors were committed: court, plaintiff contends the following (1) the ALJ failed to properly evaluate the medical evidence of treating physician Shelly Spiller, D. O.; the ALJ failed to properly evaluate plaintiff's testimony; ALJ failed to incorporate 5 - OPINION AND ORDER all the limitations ( 2) (3) the identified by examining physician Gale Smolen, M. D.; ( 4) the ALJ failed to properly evaluate the lay testimony of plaintiff's daughter-in-law Sara Bagg and neighbor Brenda Lee Pope; and (5) the ALJ erred at Step Five. of Dr. Because plaintiff's challenges to the ALJ's evaluation Spiller's opinions and plaintiff's credibility are dispositive, the court declines to address plaintiff's remaining arguments as moot. 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. Astrue, 622 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. 807 F.2d 771, 772 (9th Cir. 1986). supports or Martinez v. Heckler, The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Admin., 359 F.3d 1190, 1193 Batson v. (9th Cir. Commissioner Soc. 2004). Sec. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of 6 - OPINION AND ORDER the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). I. Medical Evidence 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); Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); 495 F.3d 625, Orn v. Astrue, treating physician's opinion is 632 (9th Cir. 2007). well-supported by "If a medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the record, 631 [it will be given] controlling weight." (internal C.F.R. other substantial evidence in § quotations 416.927(c). treating physician, omitted) (alterations [the] case Orn, 4 95 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, the nature and supportability of the opinion, and its consistency 7 - OPINION AND ORDER with other evidence in the record as a whole. 20 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, legitimate reasons. F.3d 1228, 1232 it may be rejected by specific and Taylor v. Commissioner Soc. Sec. Admin., 659 (9th Cir. 2011). "An ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion." Spiller's opinions Garrison, were 7 59 F. 3d contradicted at by 1013. the Because agency Dr. reviewing physicians, the ALJ was required to provide specific and legitimate reasons backed by substantial evidence to discount them. See Garrison, 759 F.3d at 1012. B. Analysis - Dr. Spiller Plaintiff contends that the ALJ erred by failing to discuss and properly weigh the opinions of her treating physician, Shelly Spiller, D.O. Dr. Spiller was plaintiff's treating physician from 2008 through 2012. opinions Plaintiff argues the ALJ ignored four separate indicating that plaintiff is disabled. Plaintiff is correct. In the decision, the ALJ discussed some treatment notes from 2008 to 2010. 8 - OPINION AND ORDER of Dr. Spiller' s For example, the ALJ noted that Dr. Spiller' s complained treatment of ongoing notes reflect abdominal that pain, in 2008, beginning plaintiff three years earlier, and that plaintiff's shoulder arthritis and bursitis were aggravated by plaintiff's care of her elderly mother. The ALJ observed that Dr. objective support pain. findings to Spiller' s plaintiff's persistent 299. showed no abdominal The ALJ discussed that plaintiff was using medical marijuana and prescription opioids, pain. treatment notes Tr. including Dilaudid and Methadone for As the ALJ correctly indicated, imaging of plaintiff's spine indicated "mild" degenerative changes and scoliosis in her thoracic Tr. region. 367. The ALJ also noted that plaintiff was a passenger in a motor vehicle accident in April 2010 which increased her neck, improved. back and chest pain, and that plaintiff gradually Tr. 529. Concerning plaintiff's mental health, the ALJ noted that plaintiff experienced marked grief when her mother passed away in 2008, and that despite plaintiff's depressed affect, she interacted appropriately and denied suicidal ideation. The ALJ discussed that plaintiff's situational stressors, such as financial and housing difficulties through affected plaintiff 2008, but that Dr. Spiller's treatment notes showed improvement with medication. Yet, discuss as plaintiff correctly highlights, several including: probative pieces of Dr. the ALJ failed to Spiller's opinions, (1) a June 18, 2008 affordable housing authorization in 9 - OPINION AND ORDER which Dr. Spiller indicated that plaintiff was disabled, and that plaintiff "physically & mentally suffers severely and is not able to work or hold steady employment;" (2) an April 4, 2010 treatment note in which disability Dr. Spiller application "as indicates she lives support in for chronic plaintiff's pain that is exacerbated by activities of daily living;" (3) a January 26, 2011 housing form in which Dr. Spiller indicated that plaintiff is disabled as defined in the Social Security Act; and (4) a June 26, 2012 treatment note indicating that plaintiff suffers from "arthritic pain, abdominal pain and has anxiety and PTSD" and that plaintiff is unable to perform a "regular job," including custodial work. Tr. 286, 510, 511, 516. Moreover, the ALJ failed to discuss Dr. Spiller's treatment notes from 2011-2012 showing that plaintiff continues to suffer from chronic pain and bouts of PTSD and anxiety that are not fully controlled with medication. the ALJ's limited discussion of Dr. Tr. 416-18. Thus, Spiller's treatment notes is not fully supported by substantial evidence. The ALJ's silent rejection of the treating physician's opinion that plaintiff is disabled clearly is error. No. 12-17014, F. 3d 2015) (finding ALJ discounting accord Garrison, 759 failing physician's F.3d at to provide opinion 1012 and ("Where any reasons progress an explicitly reject a medical opinion ... he errs."). 10 - OPINION AND ORDER Colvin , 2015 WL 4153858, *2 (9th Cir. July 10, erred by treating See Marsh v. ALJ for notes); does not Additionally, the ALJ's failure to articulate specific and legitimate reasons for implicitly discounting Dr. Spiller's opinions in favor of the nonexamining agency physicians' opinions is error. Hill, 698 F.3d at 1160. The Commissioner contends that any error by the ALJ is harmless because Dr. Spiller's opinion that plaintiff is disabled is an ultimate issue reserved to the Commissioner, and because Dr. Spiller's notes fail to describe specific functional limitations that the ALJ was required to consider. 416. 927 (d) (1) ("A statement by a See, medical e.g., source 20 C.F.R. that you § are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled."); Security Admin., 775 Treichler F.3d 1090, v. 1099 Commissioner (9th Cir. of Social 2014) (noting an error may be harmless if it is "inconsequential to the ultimate nondisability determination" or if "the agency's path may be reasonably discerned, even if the agency explains its decision with less than ideal clarity") . I disagree. The Commissioner correctly maintains that whether a claimant is "disabled" under the Act is a determination reserved to the Commissioner. Thus, Dr. Spiller's check-the-box opinion that plaintiff satisfies the criteria for disability under the Act is beyond the treating physician's expertise. However, in this case, Tr. 511-12. Dr. Spiller's opinions contained far greater detail that required the ALJ's analysis. 11 - OPINION AND ORDER Here, Dr. Spiller opined that plaintiff suffered from chronic pain, exacerbated by activity, and that her arthritis, anxiety, and PTSD prevented her from returning to her past work - an opinion based upon a medical assessment of a Rayford v. longstanding patient. Colvin, Case No. Hill, 698 F.3d at 1160; 13-cv-05839-JCS, 2015 WL 1534119, *5 (N. D. Cal. Apr. 1, 2015) (remanding for further proceedings where ALJ failed to discuss treating physician opinion) . Therefore, I reject the Commissioner's first contention that the ALJ's failure to weigh Dr. Spiller's opinions was harmless. The Commissioner's second argument similarly fails. Ninth Circuit has recently made clear, articulate his or her reasoning, where an ALJ As the fails to a reviewing court is unable to meaningfully review the Commissioner's rationale without engaging in speculation. Marsh, 2015 WL 4153858 at *2; see Brown-Hunter v. Colvin, No. 13-15213, Aug. 4, F.3d , 2015 WL 4620123, *5-6 (9th Cir. 2015) (concluding that where ALJ committed legal error by failing to connect adverse credibility determination with specific reasons, error could not be harmless). "Al though the ALJ' s analysis need not be extensive, the ALJ must provide some reasoning in order for [the court] to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence." Hunter, Brown- 2015 F.3d at *7. Here, rather than providing specific reasons for discounting Dr. Spiller's opinions 12 - OPINION AND ORDER in favor of the non-examining agency physicians, the ALJ simply ignored Dr. Spiller's opinions. Consequently, I cannot reasonably discern the ALJ's rationale for rejecting Dr. Spiller's April 2010 opinion that plaintiff lives in chronic pain exacerbated by activity or the June 2012 opinion that plaintiff suffers from arthritic pain, abdominal pain, anxiety and PTSD that prevents plaintiff from holding down a regular job. 516. Tr. This court may not speculate about the ALJ's reasons, substitute its own conclusion. 2015 WL 4153858, Marsh, *2 district court may not find harmless error by "affirm[ing] agency on a ground not invoked by the ALJ") . The or (a the court is "constrained to review the reasons the ALJ asserts." Connett v. Barnhart, 340 F.3d 871, conclude that the ALJ' s 874 (9th Cir. failure to 2003). identify Accordingly, any specific I and legitimate reasons for discounting Dr. Spiller's opinions was not harmless. Colvin, Marsh, No. EDCV 2015 WL 4153858 at *2; 14-1672-MAN, 2015 WL see also Camarena v. 4512269, *4 (July 24, 2015) (ALJ erred by failing to discuss treating physician's opinions of claimant's functional limitations). In short, I conclude the ALJ erred in evaluating and weighing Dr. Spiller's opinions, treating physician's and the ALJ's implicit rejection of the opinion is not evidence; the error is not harmless. /Ill Ill/ 13 - OPINION AND ORDER supported by substantial II. Plaintiff's Credibility A. Standards To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. stage is a 20 C.F.R. threshold test 404.1529, §§ in which the 416.929. The first claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 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. Carmickle v. Sec. Admin., Commissioner Soc. 533 F.3d 1155, 1166 (9th Cir. 2008); 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 arbitrarily discredit the claimant's testimony. the ALJ did not Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the determinations claimant's ALJ may consider include treatment the history, when objective the making such medical claimant's credibility evidence, daily the activities, inconsistencies in testimony, effectiveness or adverse side effects 14 - OPINION AND ORDER of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. B. Analysis At the hearing, plaintiff testified that in 2005, her husband died, and that due to depression, she could no longer work. Plaintiff testified that she has arthritis in her thoracic back and suffers from arthritis, tendoni tis, and bursitis in her left shoulder. Plaintiff also has intestinal difficulties with chronic pain, has but declined further testing because she suffered a violent attack in 1996 in which she was raped rectally. Plaintiff testified that she has high cholesterol, high blood pressure, and restless leg syndrome for which she takes medication. Plaintiff further testified that she takes Dilaudid for pain, in addition to medical helps marijuana. with her Plaintiff testified that medical marijuana pain and nausea and that she no longer takes methadone. Plaintiff testified that she periodically babysits her two grandchildren. Plaintiff testified that her boyfriend does the cooking, and her son and daughter-in-law do the grocery shopping. Plaintiff testified that she does not drive. Plaintiff estimated she could lift and carry 10 pounds, walk one block, stand for 30 minutes, and sit for 30 to 45 minutes. Plaintiff testified that she has difficulty going up and down stairs and that she is in constant pain that she rates at a six or seven on a 10-point scale. 15 - OPINION AND ORDER Plaintiff testified that she can lift a gallon of milk with her right arm, but not her left. Plaintiff testified that she lies down with a heating pad on her shoulder for a couple of hours twice a day. Plaintiff testified that she has PTSD and suffers from panic attacks three to five times each week, and that her attacks last from one to three hours. for her mental health Tr. 36-38. Plaintiff is not in counseling issues, and takes prescription anti- depressant and anti-anxiety medication. In a July 15, 2010 Adult Function Report, plaintiff reported that she suffers severe intestinal pain and needs to rest after walking two blocks. Plaintiff reported that following her attack in 1996, she suffers from chronic severe depression, attacks, insomnia, and that she had a nine-month memory loss and continues to have difficulty remembering things. PTSD, panic Tr. 226. Plaintiff described that in a typical day, after waking, she makes coffee, watches television lying on the sofa, for pain and depression. and takes medicine Plaintiff described that later in the day, she may perform small household chores, resting in between, takes pain pills, makes dinner and again watches television. Plaintiff stated that she can make quick, easy meals and is capable of all self-care. health. Plaintiff also noted that she has poor dental Tr. 233. 16 - OPINION AND ORDER In a Pain and Fatigue Questionnaire, plaintiff reported experiencing stabbing, burning, and aching pains in her neck, back, legs, and intestines that is ongoing and severe, which is worsened with any activity. Tr. 234. Plaintiff also stated that she fatigues easily, and that she can only be active for two to three hours before needing to rest. Tr. 234. The ALJ identified two reasons for discrediting plaintiff: (1) plaintiff's allegations of pain and mental inconsistent with the medical evidence; and (2) impairments are her physical and mental limitations were adequately controlled with medications. Based upon my careful review of the record, I conclude that the ALJ's reasoning falls far short of clear and convincing. The ALJ's primary reason for discounting plaintiff's credibility relies upon an erroneous evaluation of the objective medical evidence from Dr. Spiller. As discussed above, the ALJ erred in failing to adequately discuss Dr. Spiller's opinions that plaintiff suffered debilitating physical and mental limitations. The ALJ's second reason, that her pain allegations and mental health allegations are controlled with medication also rests upon an inadequate evaluation discussed above. of the Because the medical ALJ' s opinion evidence as evaluation of the medical records was not supported by substantial evidence, the ALJ may not rely upon this reasoning to discount plaintiff's credibility. Rollins v. Massanari, 17 - OPINION AND ORDER 261 F.3d 853, 857 (9th Cir. See 2001) (inconsistency with medical evidence cannot be the sole ground to discount credibility). Contrary to the Commissioner's argument, the errors in the ALJ's credibility determination are not harmless because the ALJ did not identify any other negative credibility See Carmickle, 533 F.3d at 1162-63 & n.4. assessment. bases for the (even if ALJ erred in relying on credibility factor, where remaining credibility factors still provide clear and convincing support backed by substantial evidence, error is harmless). Because I find these errors by the ALJ to be dispositive, I decline to address plaintiff's remaining assigned errors. 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, or to calculate and award benefits. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014), Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2008); Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 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. 18 - OPINION AND ORDER Where, after evaluating the record as a whole, doubts that exercise the its claimant is, discretion in and administrative proceedings. fact, remand there are serious disabled, the the case court may for further Id. at 1021; Connett, 340 F.3d at 876. Plaintiff argues that when Dr. Spiller's opinion is credited, she is entitled to an award of benefits. that when her testimony that she Plaintiff also maintains suffers three to five panic attacks a week lasting one hour each is credited, combined with VE testimony employment, that her the panic record attacks is fully would preclude developed outstanding issues that require resolution. and competitive there are no agree. I All the conditions of the credit-as-true rule are satisfied. First, as discussed above, the ALJ committed legal error in failing to discuss Dr. Spiller's multiple opinions and failed to identify which testimony of plaintiff's was credible and why. Second, the record is fully developed. Plaintiff testified at the hearing that she was having panic attacks three to five days a week. Tr. 36-38. indi victual who other day At the hearing, the VE was asked whether an suffered from unpredictable panic attacks lasting for an hour each could maintain full every time employment, and the VE responded that competitive employment would be eliminated. Tr. 55-56. Therefore, the record is fully developed and further administrative proceedings are unnecessary. 19 - OPINION AND ORDER Third, if plaintiff's testimony about her panic attacks is credited as true, the ALJ would be required to find plaintiff disabled at Step Five. Garrison, 759 F.3d at 1022; Holohan v. 246 F.3d 1195, 1211 (9th Cir. 2001); see Lingenfelter, Massanari, 504 F.3d at 1041 (crediting plaintiff's testimony as true combined with VE testimony established disability and remand for immediate payment of benefits was proper). Lastly, considering Commissioner's arguments, the I record have no as basis a whole and the to doubt that when plaintiff's testimony is credited, that she is disabled under the Act. Indeed, plaintiff's testimony of frequent panic attacks is supported by the 2010 psychodiagnostic evaluation of Gale Smolen, M.D., whose evaluation the ALJ gave significant weight. evaluation, 0 Dr. Smolen indicated that plaintiff In that suffered from frequent" panic attacks, and that they were not controlled with medication. Tr. 393, 395. Dr. Smolen did not quantify the panic attacks, but did diagnose plaintiff with PTSD, with agoraphobia, noting that plaintiff and Panic Attacks has suffered from flashbacks, nightmares and heightened startle ability since 1996. Tr. 396. Moreover, Dr. Smolen's opinion is echoed by Dr. Spiller's treatment notes, Clonazepam for which her indicate PTSD with panic suffered from significant PTSD An April 9, that plaintiff was attacks, and that since her attack in 1996. 2012 treatment note from Dr. 20 - OPINION AND ORDER prescribed she has Tr. 293. Spiller reflects that plaintiff reported that she was having panic attacks daily, that and she wished to return to counseling because medication was ineffective. Tr. 416-18. In sum, plaintiff satisfies all three conditions of the credit as true rule, and a careful review of the record reveals no basis to doubt seriously that plaintiff has been unable to maintain full time employment Therefore, benefits. the since her alleged amended onset of disability. proper remedy is to remand for calculation of Garrison, 759 F.3d at 1022-23. CONCLUSION For the reasons stated above, the Commissioner's final decision partially denying benefits to plaintiff from March 24, 2008 to September 24, 2012 is REVERSED and this proceeding is REMANDED for an immediate calculation and award of benefits from March 24, 2008 through September 24, 2008. IT IS SO ORDERED. DATED this _L'2'_ day of AUGUST, 2015. Malcolm F. Marsh United States District Judge 21 - OPINION AND ORDER
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