McIntire v. Colvin, No. 3:2015cv05070 - Document 21 (W.D. Wash. 2015)
Court Description: ORDER REVERSING AND REMANDING DECISION DENYING BENEFITS FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Judge James L. Robart. (RS)
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McIntire v. Colvin Doc. 21 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 KENNETH MCINTIRE, Plaintiff, 11 v. 12 13 CASE NO. C15-5070JLR CAROLYN COLVIN, ORDER REVERSING AND REMANDING DECISION DENYING BENEFITS FOR FURTHER ADMINISTRATIVE PROCEEDINGS Defendant. 14 15 I. INTRODUCTION 16 Plaintiff Kenneth McIntire appeals the final decision of the Commissioner of the 17 Social Security Administration (“Commissioner”) denying his application for disability 18 insurance benefits and Supplemental Security Income (“SSI”) under Title II and Title 19 XVI of the Social Security Act, following a hearing before an Administrative Law Judge 20 (“ALJ”). The court has considered the ALJ’s decision, the administrative record, and the 21 parties’ memoranda. Being fully advised, the court REVERSES the Commissioner’s 22 ORDER- 1 Dockets.Justia.com 1 final decision and REMANDS this action to the Commissioner for further administrative 2 proceedings and rehearing consistent with this order. 3 4 II. BACKGROUND The facts of the case are set forth in the ALJ’s decision (Dkt. # 11-2 at 20-29) 1, the 5 administrative hearing transcript (Dkt. # 11-2 at 35-62), and the briefs of the parties (Op. 6 Mem. (Dkt. # 18); Resp. (Dkt. # 20); Reply (Dkt. # 19)). They are only briefly 7 summarized here. 8 Mr. McIntire filed an application for disability insurance benefits and SSI on May 9 14, 2012, alleging disability beginning November 1, 2010. (Dkt #11-5 at 2, 4.) Mr. 10 McIntire’s claims were denied initially on July 26, 2012, and on reconsideration on 11 October 10, 2012. (Dkt. # 11-4 at 1, 7.) After a hearing held before an ALJ on April 10, 12 2013 (Dkt. # 11-2 at 35-62) , the ALJ found that Mr. McIntire was not disabled and once 13 again denied his claims for disability insurance benefits and SSI (id. at 20-29). The 14 Appeals Council of the Social Security Administration (“SSA”) denied Mr. McIntire’s 15 request for review on December 8, 2014, rendering the decision of the ALJ the final 16 decision of the Commissioner. (Dkt. #11-2 at 1-7.) 17 In his appeal, Mr. McIntire contends that the ALJ erred in three ways. (Op. Mem. 18 at 1, 3.) First, Mr. McIntire contends that the ALJ erred by failing to give germane 19 reasons for rejecting the opinion of Alan Itkin, Physician’s Assistant, Certified (“PAC”). 20 21 1 All of the court’s citations to the Administrative Record will be limited to the specific docket number and page number(s) where the item or citation can found on the court’s electronic 22 docketing system commonly referred to as CM/ECF. ORDER- 2 1 (Id.) Indeed, the ALJ did not discuss PAC Itkin’s opinions or treatment notes at all. 2 Second, Mr. McIntire contends that the ALJ erred when weighing the opinion evidence 3 of examining psychologist, Dr. Russell Bragg, Ph.D. (Id.) Third, Mr. McIntire argues 4 that the ALJ erred by failing to provide legally sufficient reasons for finding Mr. McIntire 5 himself not fully credible. (Id.) Finally, Mr. McIntire contends that, as a result of these 6 errors, the court should remand this action to the SSA for an award of benefits. (Id. at 2.) 7 The court now considers each of these arguments. 8 III. 9 10 ANALYSIS A. Standard of Review Under 42 U.S.C. § 405(g), the court reviews the Commissioner’s decision to 11 determine whether it is free from legal error and supported by substantial evidence in the 12 record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). “‘Substantial 13 evidence’ means more than a mere scintilla, but less than a preponderance; it is such 14 relevant evidence as a reasonable person might accept as adequate to support a 15 conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The court 16 must consider the record as a whole, weighing both the evidence that supports and the 17 evidence that detracts from the Commissioner’s conclusion, but the court must not 18 substitute its judgment for that of the Commissioner. Lingenfelter v. Astrue, 504 F.3d 19 1028, 1035 (9th Cir. 2007). “The ALJ is responsible for determining credibility, 20 resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. 21 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 22 ORDER- 3 1 The court will uphold the Commissioner’s decision when the evidence is 2 susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 3 679 (9th Cir. 2005). The court may review only the reasons stated by the ALJ “and may 4 not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630; see 5 also Connett, 340 F.3d at 874. The court, however, will not reverse the Commissioner’s 6 decision for harmless error, which exists when it is “clear from the record that an ALJ’s 7 error was ‘inconsequential to the ultimate nondisability determination.’” Robbins v. Soc. 8 Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm’r, Soc. Sec. 9 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679. 10 11 B. Opinion of the Physician’s Assistant PAC Itkin treated Mr. McIntire for more than a year for his lower back pain, from 12 about January 2011 through at least February 2012. (See Dkt. ## 11-12 at 35; Dkt. #1113 14 at 41.) On September 7, 2011, PAC Itkin concluded that Mr. McIntire had 14 “significant impingement of the left L5 nerve root.” (Dkt. # 11-13 at 56.) PAC Itkin also 15 stated that “whether or not [Mr. McIntire] will be able to return to any form of gainful 16 employment does not seem likely at this time.” (Id.) He opined that Mr. McIntire could 17 not perform any work, citing Mr. McIntire’s positive CT scan and positive myelogram. 18 (Id. at 67, 79.) He noted that applying for disability was “a reasonable avenue for [Mr. 19 McIntire] to pursue at this time given that he cannot sit or stand for prolonged periods,” 20 “cannot lift heavy objects, and . . . has significant pain and disability from the findings on 21 his lumbar spine MRI and physical exam.” (Dkt. # 11-11 at 7.) Following treatment on 22 ORDER- 4 1 February 27, 2012, PAC Itkin again opined that Mr. McIntire could not return to work. 2 (Dkt. # 11-14 at 43.) 3 ALJs are required to articulate “specific and legitimate reasons supported by 4 substantial evidence” before discounting or rejecting the opinion of a medically 5 acceptable treating source. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014); see 6 also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). But not all healthcare 7 providers qualify as “acceptable medical sources.” See 20 C.F.R. § 404.1513(a) (stating 8 that only “[l]icensed physicians,” “[l]icensed or certified psychologists,” “[l]icensed 9 optometrists,” “[l]icensed podiatrists,” and “[q]ualified speech-language pathologists” 10 qualify as “acceptable medical sources”). Medical care providers who do not qualify as 11 “acceptable medical sources” are deemed “other sources” by the regulations. 20 C.F.R. 12 § 404.1513(d). 13 Both parties agree that PAC Itkin qualifies as an “other source” under the SSA’s 14 regulations. (See Op. Mem. at 7; Resp. at 2); see also 20 C.F.R. § 404.1513(d)(1) 15 (“Other sources include . . . physicians’ assistants . . . .”). Such “other source” testimony 16 concerning a claimant’s symptoms or how an impairment affects a claimant’s ability to 17 work “is competent evidence” and “cannot be disregarded without comment.” Stout, 454 18 F.3d at 1053 (italics in original). “The ALJ may discount testimony from these ‘other 19 sources’ if the ALJ ‘gives reasons germane to each witness for doing so.’” Molina, 674 20 F.3d at 1111 (quoting Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 21 2010). An ALJ may even completely reject “other source” or lay witness testimony “as 22 long as ‘arguably germane reasons’ for dismissing the testimony are noted.” Woodsum v. ORDER- 5 1 Astrue, 711 F. Supp. 2d 1239, 1262 (W.D. Wash. 2010) (quoting Lewis v. Apfel, 236 F.3d 2 503, 512 (9th Cir. 2001)). Mr. McIntre contends that the ALJ erred, not only by failing to 3 provide “arguably germane reasons” for rejecting PAC Itkin’s opinions, but by failing to 4 discuss PAC Itkin’s treatment notes and opinions at all. (Op. Mem. at 7-8.) 5 The Commissioner does not dispute that the ALJ failed to discuss PAC Itkin’s 6 treatment notes and opinions and that this was error. (Resp. at 2 (“The ALJ did not 7 discuss these forms. . . . Usually, an ALJ must consider the observations of an ‘other 8 source’ medical provider, such as a physician assistant.”).) Instead, the Commissioner 9 argues that the error was harmless because the ALJ relied on the opinion of Dr. Dennis 10 Koukol, M.D., a State agency medical consultant and non-examining medical expert, 11 who reviewed the record and concluded that Mr. McIntire’s physical limitations did not 12 preclude him from doing light work. (Id. at 2-4 (citing Dkt. # 11-2 at 26).) Dr. Koukol in 13 turned relied upon the opinions of Dr. David Bauer, M.D., an orthopedic surgeon, and Dr. 14 Karl Goler, M.D., a neurosurgeon, who conducted an independent medical examination 15 of Mr. McIntire. (See Dkt. ## 11-3 at 39; 11-14 at 67-79.) Those doctors concluded that 16 Mr. McIntire had only “mild degenerative changes” in his spine, that there were “no 17 objective factors that support[ed Mr. McIntire’s] removal from work,” and that Mr. 18 McIntire exhibited “several signs of symptom magnification on examination.” (Dkt. 19 # 11-14 at 78-79.) Thus, the Commissioner argues that despite the ALJ’s failure to 20 discuss PAC Itkin’s opinions, the ALJ’s decision is nevertheless supported by substantial 21 evidence and any error by the ALJ was therefore harmless. (Resp. at 3-4.) 22 ORDER- 6 1 “[T]he harmless error analysis applies in the social security context. . . .” Marsh v. 2 Colvin, --- F.3d ----, 2015 WL 4153858, at *2 (9th Cir. 2015). Indeed, the court “may not 3 reverse an ALJ’s decision on account of an error that is harmless.” Molina v. Astrue, 674 4 F.3d 1104, 1111 (9th Cir. 2012). However, “where an ALJ’s error lies in a failure to 5 properly discuss competent lay testimony favorable to the claimant, a reviewing court 6 cannot consider the error harmless unless it can confidently conclude that no reasonable 7 ALJ, when fully crediting the testimony, could have reached a different disability 8 determination.” Stout, 454 F.3d at 1056. The opinions of PAC Itkin are favorable to Mr. 9 McIntire and in direct contravention to the opinions of Dr. Koukol. Further, as Mr. 10 McIntire points out, there is no indication that Dr. Koukol had the opportunity to review 11 PAC Itkin’s treatment records or assessments of Mr. McIntire’s functional limitations. 12 (See Reply at 2 (citing Dkt. # 11-3 at 34-51).) Thus, the court cannot “confidently 13 conclude” on this record that no reasonable ALJ when fully crediting the opinions of 14 PAC Itkin could have reached a different disability determination. Accordingly, the court 15 cannot find the ALJ’s error in failing to provide germane reasons for rejecting PAC 16 Itkins’ opinions is harmless. 17 18 C. Opinion of the Examining Psychologist Dr. Russell Bragg, Ph.D., performed a psychological evaluation of Mr. McIntire 19 on March 23, 2012, for the Washington State Department of Social and Health Services. 20 (Dkt. # 11-14 at 60.) During Dr. Bragg’s evaluation, Mr. McIntire described his family 21 and became “so agitated and distressed . . . that he cried uncontrollably and also 22 development chest pains,” and “was essentially unable to respond to other questions in ORDER- 7 1 the interview for at least the next 15 minutes.” (Dkt. #11-14 at 61.) Dr. Bragg found 2 Mr. McIntire’s presentation to be consistent with severe anxiety and depression. (Id.) He 3 concluded that Mr. McIntire’s “mental/emotional state is so labile at the present time that 4 it does not appear that he can maintain enough stability to perform any type of work 5 reliably.” (Id. at 62.) 6 The ALJ noted that Dr. Bragg “report[ed] that he was unable to obtain necessary 7 details due to [Mr. McIntire’s] state of distress in the interview . . . .” (Dkt.. # 11-2 at 8 27.) The ALJ further stated that, although Dr. Bragg gave Mr. McIntire a “Global 9 Assessment of Functioning (GAF) of 40,” “due to [Mr. McIntire’s] agitation, such scores 10 have questionable validity.” 2 (Id.) Overall, the ALJ found that “Dr. Bragg’s evaluation 11 ha[d] questionable validity,” and afforded “little weight to Dr. Bragg’s assessment of the 12 claimant’s psychological condition.” (Id.) Mr. McIntire argues that the ALJ erred by not 13 supporting his decision to give Dr. Bragg’s opinion “little weight” with substantial 14 evidence and by supplanting Dr. Bragg’s opinion with his own lay assessment. (Op. 15 Mem. at 9-10.) 16 17 2 A GAF score of 40 may be associated with serious impairment. See Cox v. Astrue, 495 18 F.3d 614, 620 n.5 (8th Cir. 2007) (stating that a GAF score in the forties may be associated with 19 20 21 22 serious impairment in occupational functioning); see also Pisciotta v. Astrue, 500 F.3d 1074, 1076 n.1 (10th Cir. 2007) (“A GAF score of 41-50 indicates ‘[s]erious symptoms . . . [or] serious impairment in social, occupational, or school functioning,’ such as an inability to keep a job.”) (quoting Diagnostic and Statistical Manual of Mental Disorders (Text Revision 4th ed. 2000) (“DSM–IVTR”) at 34). The Ninth Circuit, however, has stated that although GAF scores “may be a useful measurement,” they are “typically assessed in controlled, clinical settings that may differ from work environments in important respects,” and “standing alone,” they “do not control determinations of whether a person’s mental impairments rise to the level of a disability.” Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th Cir. 2014). ORDER- 8 1 “[T]he opinion of an examining doctor . . . can only be rejected for specific and 2 legitimate reasons that are supported by substantial evidence in the record.” Andrews v. 3 Shalala, 53 F.3d 1035, 1043 (9th Cir.1995). The ALJ can meet this burden by setting out 4 a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 5 interpretation thereof, and making findings. See Thomas v. Barnhart, 278 F.3d 947, 957 6 (9th Cir. 2002). An ALJ need not specifically recite that she rejected a doctor’s opinion 7 for enumerated reasons. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) 8 (holding that an ALJ need not cite the magic words, “I reject the physician’s opinion 9 because . . .”). Rather, a reviewing court may read the findings and opinion and draw 10 specific and legitimate inferences. See id. (finding that courts are “not deprived of their 11 faculties for drawing specific and legitimate inferences from the ALJ’s opinion”); see 12 also Molina, 674 F.3d at 1121 (“Even when an agency explains its decision with less than 13 ideal clarity, we must uphold it if the agency’s path may reasonably be discerned.”) 14 (citation and internal quotation marks omitted). 15 An ALJ may consider the “supportability” of a medical opinion. 20 C.F.R. 16 § 404.1527(c)(3); see also 20 C.F.R. 416.927(c)(3). In other words, “[t]he more a 17 medical source presents relevant evidence to support an opinion, particularly medical 18 signs and laboratory findings, the more weight [the Commissioner] will give that 19 opinion.” 20 C.F.R. § 404.1527(c)(3); see also 20 C.F.R. 416.927(c)(3). Consequently, 20 an ALJ may discount a medical opinion that is not adequately supported by objective 21 medical findings. See Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 22 Cir. 2004). This is a specific and legitimate reason to reject a physician’s opinion. See ORDER- 9 1 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not accept the 2 opinion of any physician . . . if that opinion is brief, conclusory, and inadequately 3 supported by clinical findings.”) (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 4 1992)). 5 Here, during Dr. Bragg’s examination, Mr. McIntire “became so agitated and 6 distressed when relaying the details of his dilemma [concerning his wife and child] that 7 he cried uncontrollably and also developed chest pains.” (Dkt # 11-14 at 62.) He “was 8 essentially unable to respond to other questions in the interview for at least the next 15 9 minutes.” (Id.) As a result, Dr. Bragg was unable to complete the psychological testing 10 or get “as much detailed information” as he would have liked. (Id. at 62, see also id. at 11 65 (noting insufficient time to complete certain tests due to Mr. McIntire’s level of 12 distress).) In addition, Dr. Bragg acknowledged that he was unable to get a “clear sense 13 of Axis I mental disorders” even though he diagnosed Mr. McIntire with various 14 impairments. (Id. at 62.) Mr. McIntire argues that the ALJ did not adequately explain 15 why, “due to claimant’s agitation,” Dr. Bragg’s opinion had questionable validity. (Op. 16 Mem. at 9.) 17 When reviewing the ALJ’s decision, the court is not “deprived of [its] faculties for 18 drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes, 881 19 F.2d at 751. Here, the ALJ thought that Dr. Bragg’s opinion should be given “little 20 weight” because Mr. McIntire was so upset during the examination that Dr. Bragg was 21 unable to complete his objective testing. (Dkt. # 11-2 at 27.) The court agrees with the 22 Commissioner that this is a legitimate and specific reason supported by substantial ORDER- 10 1 evidence in the record for affording less weight to Dr. Bragg’s opinion. Further 2 explanation by the ALJ is not required. Although the ALJ’s findings concerning Dr. 3 Bragg may not have been the model of clarity, the court concludes that the ALJ did not 4 err in this portion of his decision. 3 5 6 D. Mr. McIntire’s Credibility The ALJ found that Mr. McIntire had established the existence of a medically 7 determinable impairment that reasonably could have caused his reported symptoms. (See 8 id. at 25.) Thus, the ALJ was required to consider Mr. McIntire’s statements concerning 9 “the intensity and persistence” of his symptoms and “the extent to which [his] symptoms 10 limit [his] capacity for work.” See 20 C.F.R. §§ 404.1529, 416.929. The ALJ, 11 nevertheless, found that Mr. McIntire was not fully credible in his statements concerning 12 his symptoms and their effects for a variety of reasons. (Dkt. # 11-2 at 25-26.) In finding 13 that Mr. McIntire was not “entirely credible,” the ALJ was required to give “specific, 14 clear and convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) 15 (“Where, as here, Claimant has presented evidence of an underlying impairment and the 16 3 Mr. McIntire also asserts that the ALJ improperly substituted his own lay understanding 17 for the opinion of Dr. Bragg. (Op. Mem. at 10.) The ALJ, however, may consider whether a medical opinion is adequately supported by objective medical evidence. See 20 C.F.R. 18 §§404.1527(c)(3); 416.927(c)(3). The court finds no error in the ALJ doing so here. 19 20 21 22 Mr. McIntire also argues that the ALJ failed to consider “descriptions noted elsewhere in the record” that were arguably consistent with Dr. Bragg’s opinion. (Op. Mem. at 10-11.) As the Commissioner points out, however, a claimant’s alternative interpretation of the evidence does not invalidate an ALJ’s findings. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Batson, 359 F.3d at 1193 (“[I]f evidence exists to support more than one rational interpretation, [the court] must defer to the Commissioner’s decision.”); see also Arkansas v. Oklahoma, 503 U.S. 91, 1060 (1992) (“The court should not supplant the agency’s findings merely by identifying alternative findings that could be supported by substantial evidence.”). Again, the court finds no error on this basis. ORDER- 11 1 government does not argue that there is no evidence of malingering, [the court] review[s] 2 the ALJ’s rejection of her testimony for ‘specific, clear and convincing reasons.”) 3 (internal footnote omitted). Mr. McIntire contends that the reasons stated by the ALJ 4 failed to meet this standard. (Op. Mem. at 11-16.) 5 The Commissioner concedes that some of the reasons the ALJ provided for 6 finding Mr. McIntire not entirely credible “may not have been legally adequate or 7 supported by substantial evidence in the record.” (Resp. at 8 (citing Dkt. # 11-2 at 258 26).) Nevertheless, the Commissioner asserts that not every reason provided for 9 disregarding a claimant’s credibility must be upheld so long as the ALJ’s remaining 10 reasons are valid. In Carmickle v. Commissioner, Social Security Administration, the 11 Ninth Circuit stated: 12 13 14 15 16 17 18 Because we conclude that two of the ALJ’s reasons supporting his adverse credibility finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless error. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 2004) (applying harmless error standard where one of the ALJ’s several reasons supporting an adverse credibility finding was held invalid). Our decision in Batson makes clear that reviewing the ALJ’s credibility determination where the ALJ provides specific reasons supporting such is a substantive analysis. So long as there remains “substantial evidence supporting the ALJ’s conclusions on . . . credibility” and the error “does not negate the validity of the ALJ’s ultimate [credibility] conclusion,” such is deemed harmless and does not warrant reversal. Id. at 1197; see also Stout, 454 F.3d at 1055 (defining harmless error as such error that is “inconsequential to the ultimate nondisability determination”). 19 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (italics in 20 original). Thus, the court must determine whether—despite any legally inadequate 21 22 ORDER- 12 1 reasons—the ALJ’s error was harmless and his credibly finding concerning Mr. McIntire 2 remains supported by substantial evidence. 3 The Commissioner defends only two bases for the ALJ’s adverse credibility 4 findings, and thus the court will consider only those two for substantial evidence. First, 5 the Commissioner argues that the ALJ properly found Mr. McIntire to be less than fully 6 credible due to evidence that he tended to magnify his symptoms. (Resp. at 8 (citing Dkt. 7 # 11-2 at 25).) Specifically, the ALJ stated: 8 9 10 11 The claimant magnifies his limitations and is not wholly credible. He said that he is unable to sit or stand for long periods and that he lies down daily. Yet, he enjoys activities like reading and playing chess, both of which require considerable sitting and concentration to be enjoyable. . . . [T]he claimant’s activities of daily living include cleaning his motor home weekly, preparing his own meals daily, and doing his laundry . . . . He regularly leaves his motor home to do weekly shopping for food and basic necessities . . . . 12 (Dkt. # 11-2 at 25.) Mr. McIntire asserts that there is no evidence in record about how 13 frequently or how long he played chess or spent time reading or in what body positions 14 he performed these activities. (Op. Mem. at 12.) Mr. McIntire argues that the ALJ’s 15 presumption or speculation concerning the manner in which he performed these activities 16 was error. (See id. at 12-13 (citing SSR 86-8 (“Reasonable inferences may be drawn, but 17 presumptions, speculations and suppositions should not be substituted for evidence.”)).) 18 Mr. McIntire also argues that it was improper for the ALJ to rely on his ability to perform 19 daily activities like cleaning, cooking, and shopping, because performing these activities 20 is not consistent with the ability to work on a regular and continuing basis. (Id. at 13.) 21 22 ORDER- 13 1 The court agrees that the ALJ erred in relying on the above described evidence and 2 activities in making his adverse credibility finding. The court takes judicial notice of the 3 fact that reading can be performed laying down and chess can be played standing up. 4 The Commissioner points to no evidence in the record that Mr. McIntire performed these 5 activities in a sitting position or that these activities “require considerable sitting . . . to be 6 enjoyable.” (See Dkt. # 11-2 at 25.) This conclusion was based on the ALJ’s 7 presumptions and speculations—not evidence in the record. 8 In finding Mr. McIntire “not wholly credible,” the ALJ also relied upon Mr. 9 McIntire’s testimony concerning his ability to clean his motor home, cook, shop for 10 groceries, and do his laundry. (Id.) The Ninth Circuit, however, has repeatedly stated 11 “that the mere fact that a plaintiff has carried on certain daily activities . . . does not in 12 any way detract from her credibility as to her overall disability.” Orn v. Astrue, 495 F.3d 13 625, 639 (9th Cir. 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 14 2001)). Nevertheless, daily activities may be grounds for an adverse credibility finding 15 “if a claimant is able to spend a substantial part of his day engaged in pursuits involving 16 the performance of physical functions that are transferrable to a work setting.” Id. 17 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); see also Burch, 400 F.3d at 18 681 (stating that an adverse credibility finding based on activities may be proper “if a 19 claimant engages in numerous daily activities involving skills that could be transferred to 20 the workplace”). Here, the ALJ made neither required finding concerning Mr. McIntire’s 21 daily activities—that the skills described were “transferrable” to a work setting or that 22 Mr. McIntire spent a “substantial” part of his day engaged in such activities. (See Dkt. ORDER- 14 1 # 11-2 at 25.) Accordingly, the court concludes that this basis for discounting Mr. 2 McIntire’s credibility is not supported by “substantial evidence.” 3 Next, the Commissioner asserts that, despite other errors, the ALJ’s credibility 4 determination is supported by the ALJ’s consideration of the medical evidence. (Resp. at 5 9-10.) The Commissioner argues that the ALJ may consider objective medical evidence 6 as an indicator to assist in making reasonable conclusions about the intensity and 7 persistence of Mr. McIntire’s symptoms. (Id. at 9 (citing 20 C.F.R. §§ 404.1529(c)(2)8 (c)(4)).) However, the Commissioner admits that the ALJ’s analysis of Mr. McIntire’s 9 pain score was in error because the score related to his shoulder and not his back. (Id.) 10 The Commissioner nevertheless argues that the ALJ’s adverse credibility finding is 11 sufficiently supported by ALJ’s conclusion that the diagnostic imaging of Mr. McIntire’s 12 musculoskeletal system is generally benign. (Id.) Mr. McIntire disputes the validity of 13 the ALJ’s conclusions concerning his diagnostic imaging (Op. Mem. at 16), but 14 ultimately it does not matter whether the ALJ is correct in his analysis here or not. Even 15 assuming the ALJ’s analysis of Mr. McInitre’s medical imaging is appropriately 16 supported by the evidence, the ALJ may not discount Mr. McIntire’s subjective pain 17 testimony solely on this ground. “[O]nce a claimant produces objective medical evidence 18 of an underlying impairment, an [ALJ] may not reject a claimant’s subjective complaints 19 based solely on a lack of objective medical evidence to fully corroborate the alleged 20 severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). Yet, 21 because the Commissioner has either conceded that the ALJ’s other grounds for 22 discounting Mr. McIntire’s credibility were not valid (see Resp. at 8) or the court has ORDER- 15 1 rejected them (see supra at 12-14), this is the only basis that remains to underpin the 2 ALJ’s credibility finding. Ninth Circuit authority prohibits rejecting Mr. McIntire’s 3 subjective complaints on this basis alone. See Rollins v. Massanari, 261 F.3d 853, 8564 57 (9th Cir. 2001); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“[A] 5 finding that the claimant lacks credibility cannot be premised wholly on a lack of medical 6 support for the severity of his pain.”); Lester v. Chater, 81 f.3d 821, 834 (9th Cir. 1995) 7 (“Once the claimant produces medical evidence of an underlying impairment, the 8 Commissioner may not discredit the claimant’s testimony as to subjective symptoms 9 because they are unsupported by objective medical evidence.”); see also Cotton v. 10 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (“‘Excess pain’ is, by definition, pain that is 11 unsupported by objective medical findings.”). 12 There may well be valid grounds in the record to discount Mr. McIntire’s 13 credibility, but the ALJ failed to articulate them here. Neither may the court search for 14 these reasons in the record. Although the court must review the record as a whole, it may 15 review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on 16 a ground upon which he did not rely.” Orn, 495 F.3d at 630. Accordingly, the court 17 concludes that the ALJ’s conclusion (as he articulated it) that Mr. McIntire was not 18 “entirely credible” is not supported by clear, specific and convincing reasons. 19 20 E. Remand Mr. McIntire argues that the court should remand for an award of benefits under 21 42 U.S.C. § 405(g). (Op. Mem. at 17.) The court agrees with the Commissioner, 22 however, that a finding of disability is not an appropriate remedy here. (See Resp. at 10ORDER- 16 1 11.) Instead, the court will remand for further administrative proceedings consistent with 2 this order. 3 The choice whether to reverse and remand for further administrative proceedings, 4 or to reverse and simply award benefits, is within the discretion of the court. See Harman 5 v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (holding that the district court’s decision 6 whether to remand for further proceedings or payment of benefits is discretionary and is 7 subject to review for abuse of discretion). The Ninth Circuit counsels that the court 8 should grant an immediate award of benefits when these three conditions are met: 9 10 11 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 12 Id. at 1178 (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). If this test is 13 satisfied with respect to the evidence in question, “then remand for determination and 14 payment of benefits is warranted regardless of whether the ALJ might have articulated a 15 justification for rejecting” the improperly discredited evidence. Harman, 211 F.3d at 16 1179. After evaluating the record as a whole, however, if serious doubts remain 17 concerning whether the claimant is, in fact, disabled, the court may exercise its discretion 18 and remand the case for further administrative proceedings. Garrison v. Colvin, 759 F.3d 19 995, 1021 (9th Cir. 2014); Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). In 20 addition, further administrative proceedings are useful if the record is not free from 21 conflicts, all factual issues have not been resolved, or the claimant’s entitlement to 22 ORDER- 17 1 benefits is not clear. Treichler v. Comm’r, Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th 2 Cir. 2014.) 3 Based on the foregoing guidance, the court finds that remand for further 4 administrative proceedings is the appropriate remedy here. All factual issues have not 5 been resolved. Further, even after the ALJ corrects the errors referenced above on 6 remand, Mr. McIntire’s entitlement to benefits is not clear. Thus, the court remands for 7 further administrative proceedings consistent with this order and to resolve remaining 8 factual issues and conflicts in the record. 9 10 IV. CONCLUSION Based on the stated reasons and the relevant record, the court ORDERS that the 11 Commissioner’s decision finding that Mr. McIntire is not disabled is REVERSED and 12 the matter is REMANDED to the Commissioner for further consideration pursuant to 13 sentence four of 42 U.S.C. § 405(g). The court DIRECTS the clerk to enter JUDGMENT 14 for Mr. McIntire and to close this case. 15 Dated this 15th day of July, 2015. 16 18 A 19 JAMES L. ROBART United States District Judge 17 20 21 22 ORDER- 18
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