1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 GYPSY B., 9 Plaintiff, Case No. C19-935-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her applications for Supplemental Security Income 15 and Disability Insurance Benefits. Plaintiff contends the administrative law judge (“ALJ”) erred 16 by rejecting her testimony and her treating medical sources’ opinions. (Dkt. #10 at 1.) As 17 discussed below, the Court REVERSES the Commissioner’s final decision and REMANDS the 18 matter for an award of benefits under sentence four of 42 U.S.C. § 405(g). 19 II. BACKGROUND 20 Plaintiff was born in 1961, has at least a high school education, and has worked as a 21 credit clerk, cashier checker, sales clerk, truck driver, flagger, and security supervisor. AR at 43- 22 44, 30, 74-75. Plaintiff was last gainfully employed in August 2015. Id. at 45. 23 1 On November 10, 2015, Plaintiff applied for benefits, alleging disability as of August 6, 2 2015. AR at 91. Plaintiff’s applications were denied initially and on reconsideration, and Plaintiff 3 requested a hearing. Id. at 89, 90, 139, 140, 168-69. After the ALJ conducted a hearing on 4 October 12, 2017, the ALJ issued a decision finding Plaintiff not disabled. Id. at 39-88, 15-31. 5 Utilizing the five-step disability evaluation process,1 the ALJ found:
6 Step one: Plaintiff has not engaged in substantial gainful activity since the August 6, 2015, alleged onset date. 7 Step two: Plaintiff has the following severe impairments: fibromyalgia, headaches, 8 degenerative changes of the cervical and lumbar spine, mild osteoarthritis of the hands, sleep apnea, and chronic obstructive pulmonary disease. 9 Step three: These impairments do not meet or equal the requirements of a listed 10 impairment.2
11 Residual Functional Capacity: Plaintiff can lift/carry 10 pounds occasionally and less than 10 pounds frequently, stand and/or walk 6 hours per day, and sit 6 hours per day. 12 She must alternate sitting and standing briefly every hour. She can frequently handle, finger, and reach. She can frequently climb ramps and stairs, but never climb ladders, 13 ropes, or scaffolds. She can frequently stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to extreme cold or heat, vibration, pulmonary irritants, and 14 hazards.
15 Step four: Plaintiff can perform past relevant work as a credit clerk, and thus is not disabled. 16 Step five: The ALJ did not reach step five. 17 AR at 17-31. 18 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the 19 Commissioner’s final decision. AR at 1-3. Plaintiff appealed the final decision of the 20 Commissioner to this Court. (Dkt. # 4.) 21 22 23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P, Appendix 1. 1 III. LEGAL STANDARDS 2 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 3 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 4 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 5 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the
6 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 7 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 8 alters the outcome of the case.” Id. 9 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 10 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 11 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 12 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 13 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 14 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may
15 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 16 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 17 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 18 IV. DISCUSSION 19 There is no dispute that Plaintiff suffers from fibromyalgia. As the Ninth Circuit has 20 recognized, fibromyalgia is “unusual,” and difficult to analyze in Social Security disability cases, 21 because objective clinical findings are typically normal and the “condition is diagnosed ‘entirely 22 on the basis of the patients’ reports of pain and other symptoms.’” Revels v. Berryhill, 874 F.3d 23 648, 656 (9th Cir. 2017) (quoting Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004)). 1 Typical symptoms include chronic pain throughout the body. Id. There is also no dispute that 2 Plaintiff suffers from hand osteoarthritis. The ALJ restricted Plaintiff to handling and fingering 3 “frequently,” i.e., up to two-thirds of the day. AR at 21. 4 Plaintiff challenges the ALJ’s rejection of her testimony and two medical opinions 5 regarding her ability to use her hands. If Plaintiff were limited to less than frequent handling and
6 fingering, vocational expert testimony established that Plaintiff would be unable to perform past 7 relevant work as a credit clerk. AR at 79. The vocational expert further testified that no other 8 jobs that existed in significant numbers in the national economy would be available. Id. at 80; see 9 also 20 C.F.R. Pt. 404, Subpt. P, App’x 2 § 201.14 (Medical-Vocational Guidelines would 10 mandate a finding of disability). 11 A. The ALJ Erred in Evaluating the Medical Opinion Evidence 12 1. Standards for Reviewing Medical Opinions 13 As a matter of law, more weight is given to a treating physician’s opinion than to that of a 14 non-treating physician because a treating physician “is employed to cure and has a greater
15 opportunity to know and observe the patient as an individual.” Magallanes, 881 F.2d at 751; see 16 also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). If an ALJ rejects the opinion of a treating 17 physician, the ALJ must give clear and convincing reasons for doing so if the opinion is not 18 contradicted by other evidence, and specific and legitimate reasons if it is. Reddick v. Chater, 19 157 F.3d 715, 725 (9th Cir. 1988). “This can be done by setting out a detailed and thorough 20 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and 21 making findings.” Id. (citing Magallanes, 881 F.2d at 751). The ALJ must do more than merely 22 state his/her conclusions. “He must set forth his own interpretations and explain why they, rather 23 than the doctors’, are correct.” Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1 1988)). Such conclusions must at all times be supported by substantial evidence. Reddick, 157 2 F.3d at 725. 3 As an initial matter, Plaintiff argues that her treating providers’ opinions of significant 4 reaching and handling limitations were uncontradicted because the ALJ rejected the conflicting 5 opinion of Guillermo Rubio, M.D., that Plaintiff had no reaching or handling limitations. See AR
6 28, 138. Plaintiff’s analysis is flawed. The existence of conflicting opinions lowers the standard 7 for the reasons the ALJ must provide to discount one—or both—of the opinions from “clear and 8 convincing” to “specific and legitimate.” Revels, 874 F.3d at 654. The ALJ discounted Dr. 9 Rubio’s opinion as insufficiently restrictive and discounted the treating providers’ opinions as 10 overly restrictive. Under Plaintiff’s approach, two opinions that conflict would both be 11 considered “uncontradicted” because they were both rejected. Such an outcome is nonsensical. 12 Plaintiff also argues that the ALJ improperly relied on her own lay opinion, because she 13 rejected both Dr. Rubio’s opinion and the treating providers’ opinions and imposed intermediate 14 restrictions, limiting Plaintiff to only “frequent handling, fingering, and reaching.” AR at 28. But
15 the fact that no medical opinion precisely matched the restriction in the RFC does not indicate 16 that the ALJ relied on her own lay opinion. An ALJ must consider all medical evidence in the 17 record, not just medical sources’ opinions. See SSR 96-8p, 1996 WL 374184, at *5 (July 2, 18 1996) (“RFC assessment must be based on all of the relevant evidence in the case record, such 19 as: [m]edical history, [m]edical signs and laboratory findings, . . . [r]eports of daily activities, 20 [l]ay evidence, [r]ecorded observations, [and] [m]edical source statements”). The ALJ was 21 permitted to rely on the medical evidence in the record, and translate that medical evidence into 22 concrete restrictions in the RFC. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 23 1 2008) (ALJ is permitted to translate medical evidence into an RFC formulation “where the 2 assessment is consistent with restrictions identified in the medical testimony.”). 3 2. Michael A. Fleming, PA-C 4 Mr. Fleming opined that Plaintiff’s hand dexterity was markedly impaired. AR at 751. He 5 estimated the limitations would last more than twelve months. AR at 752. The ALJ gave Mr.
6 Fleming’s opinion little weight because it was inconsistent with Plaintiff’s work history and the 7 medical evidence, and relied heavily on Plaintiff’s unreliable reports of pain. AR at 28-29. 8 The ALJ also noted that Mr. Fleming is a non-acceptable medical source, but this is not 9 by itself a reason to discount his opinion. AR at 28. An ALJ must consider all medical opinions. 10 See 20 C.F.R. §§ 404.1527(f), 416.927(f). An ALJ may reject the opinion of a non-acceptable 11 medical source by giving reasons germane to the opinion. Ghanim v. Colvin, 763 F.3d 1154, 12 1161 (9th Cir. 2014). 13 a. Work History 14 The ALJ found that Mr. Fleming’s opinion was inconsistent with Plaintiff’s ability to
15 work for many years after her fibromyalgia was diagnosed in 1998. AR at 28. In the absence of 16 any medically significant change, the ability to work with the same impairments that are at issue 17 in a disability determination can undermine a claimant’s claims of disability. Here, however, the 18 record shows that Plaintiff’s symptoms worsened over time. In a July 2016 office visit, Plaintiff 19 told her provider that she believed a 2013 work injury “kicked her fibro back into gear again,” 20 when she had been “doing good for 10 years.” AR at 715. Plaintiff’s attorney brought the issue 21 of worsening symptoms to the ALJ’s attention at the October 2017 hearing. AR at 42. The ALJ 22 found that clinical findings of normal gait, “good” range of motion, full motor strength, normal 23 reflexes, intact sensation, and no edema showed that Plaintiff’s fibromyalgia had not deteriorated 1 since she last worked. AR at 28. However, as the Ninth Circuit has noted, people suffering from 2 fibromyalgia have normal muscle strength, sensory functions, reflexes, and joints, with no 3 swelling. Revels, 874 F.3d at 656. Indeed, there is an “absence of symptoms that a lay person 4 may ordinarily associate with joint and muscle pain.” Id. (quoting Rollins v. Massanari, 261 F.3d 5 853, 863 (9th Cir. 2001)). There are “no laboratory tests to confirm the diagnosis” of
6 fibromyalgia. Id. (quoting Benecke, 379 F.3d at 590). The clinical findings cited by the ALJ do 7 not undermine evidence that Plaintiff’s symptoms from fibromyalgia worsened. 8 Plaintiff’s work history was not a germane reason to discount Mr. Fleming’s opinion. 9 b. Medical Evidence 10 An ALJ may reject a medical source opinion based on conflict with the medical evidence. 11 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999) (affirming 12 rejection of doctor’s opinion that was contradicted by her own and other medical examiners’ 13 reports). An ALJ may also reject the opinion of a treating physician who prescribed only 14 conservative treatment yet opines that a claimant suffers disabling conditions. See Rollins, 261
15 F.3d at 856 (affirming ALJ’s rejection of doctor’s opinion of total disability where doctor 16 “prescribed a conservative course of treatment”). 17 The ALJ acknowledged “degenerative changes in the spine” but found that Plaintiff had 18 “only benign” neck and low back examination findings, and had only received conservative care 19 for her spine. AR at 28. But the clinical findings the ALJ cited are not helpful in assessing 20 fibromyalgia. The ALJ does not identify any more aggressive care that Plaintiff could have 21 received for fibromyalgia. She tried various medications that she reacted badly to or that did not 22 help. AR at 508 (side effects with fibromyalgia drugs), 510-11 (tramadol and flexeril caused pain 23 and headache), 709 (“poor tolerance” of pain medications). She was unable to afford to continue 1 treatments that did help. Id. at 710 (could not afford to continue acupuncture or naturopathy). 2 Benign spine findings and conservative care were not germane reasons to discount Mr. 3 Fleming’s opinion. 4 Regarding hand problems, the ALJ found that Plaintiff’s “sporadic” complaints, limited 5 to January 2016 and September 2016, contradicted Mr. Fleming’s opinion. AR at 28 (citing AR
6 at 726, 829).3 Plaintiff has reported pain throughout her body since her alleged onset date. See id. 7 at 822-23. As the ALJ noted, in January 2016, Plaintiff sought care for pain in her right hand 8 over the previous four to five days. Id. at 829. Ibuprofen improved the hand symptoms. Id. While 9 Plaintiff did not complain of hand pain specifically over the next several months, she continued 10 to report more generalized pain. In February 2016, treatment notes documented “pain at multiple 11 points of the body consistent with fibromyalgia.” Id. at 833. In March 2016, Plaintiff reported 12 “generalize[d] pain” but “[n]o active arthritis.” Id. at 842. In June 2016, Plaintiff sought care for 13 “all over body pain.” Id. at 709. In July 2016, Plaintiff was seen in an emergency room for pain 14 “everywhere.” Id. at 720. As the ALJ noted, in September 2016, Plaintiff again sought treatment
15 specifically for her hands. Treatment notes documented bilateral hand pain that had “worsened” 16 two to three weeks earlier. Id. at 726. In other words, Plaintiff’s hands were not pain-free even 17 before she sought treatment specifically for her hands. In May 2017, Plaintiff’s mental healthcare 18 provider noted “chronic pain symptoms worsening in her hands.” Id. at 993. On this record, the 19 20
3 Preliminarily, Plaintiff’s argument that this could only be a reason to discount a claimant’s testimony, 21 not a medical source’s opinion, fails. Evidence that hand problems were rarely addressed in the treatment record could contradict opinions that her hand problems cause marked, ongoing limitations. Conflict with 22 the medical evidence is a sufficient reason to discount a medical source’s opinion. Morgan, 169 F.3d at 601-02; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (that opinions were 23 “contradicted by other statements and assessments of [claimant’s] medical conditions” and “conflict[ed] with the results of a consultative medical evaluation” were specific and legitimate reasons to discount the opinions). 1 ALJ’s finding that a lack of complaints undermined Dr. Fleming’s opinion on Plaintiff’s hand 2 impairments was not supported by substantial evidence. 3 The ALJ also cited “mild” hand X-ray findings. AR at 28. On Mr. Fleming’s referral, 4 radiologist Kenneth D. Carpenter, M.D., took hand and wrist X-rays in September 2016 and 5 assessed “[b]ilateral hand and wrist osteoarthritis” based on findings of “[m]ild” osteophyte
6 formation in several distinct regions of the hands. Id. at 745. The ALJ, as a lay person, may rely 7 on Dr. Carpenter’s assessment but should not attempt to interpret the raw medical findings. “[A]s 8 a lay person, an ALJ is ‘simply not qualified to interpret raw medical data in functional terms.’” 9 Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) (quoting Nguyen v. Chater, 172 10 F.3d 31, 35 (1st Cir. 1999) (per curiam)); see also Day v. Weinberger, 522 F.2d 1154, 1156 (9th 11 Cir. 1975) (An ALJ, “who was not qualified as a medical expert, should not have gone outside 12 the record to medical textbooks for the purpose of making his own exploration and assessment as 13 to claimant’s physical condition.”). Mr. Fleming, as a trained medical professional, applied his 14 expertise to interpret Dr. Carpenter’s X-ray results and other clinical findings, and translate them
15 into hand dexterity limitations. Picking the word “mild” out from the raw medical findings does 16 not undermine Mr. Fleming’s opinion. 17 Conflict with medical evidence on hand impairments was not a germane reason to 18 discount Mr. Fleming’s opinion. 19 c. Reliance on Plaintiff’s Self-Reports 20 The ALJ discounted Mr. Fleming’s opinion because she found that it “rel[ied] heavily on 21 the claimant’s subjective pain complaints and limitations,” which the ALJ found non-reliable. 22 AR at 29. An ALJ cannot reject a treating doctor’s opinion by questioning the credibility of the 23 patient’s complaints where the doctor does not discredit those complaints and supports the 1 ultimate opinion with her own observations. Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 2 1194, 1199–1200 (9th Cir. 2008). Mr. Fleming did not find Plaintiff’s pain complaints 3 unreliable, and his opinion was supported by observations of diminished range of motion, hand 4 tenderness, and decreased grip strength. AR at 753-54, 728. The ALJ cited treatment notes that 5 Plaintiff was in “no acute distress” during appointments. AR at 29. “Acute” means “of recent or
6 sudden onset; contrasted with chronic.” Oxford English Dictionary, acute (3d ed. December 7 2011). Plaintiff’s impairments are chronic, not acute. Reliance on Plaintiff’s self-reports was not 8 a germane reason to discount Mr. Fleming’s opinion. 9 The ALJ erred by discounting Mr. Fleming’s opinion without a germane reason. 10 3. Adelaide H. Chute, ARNP, and Barbara Clure, M.D. 11 Plaintiff contends that the ALJ erred by rejecting the December 2015 medical opinion of 12 Ms. Chute and Dr. Clure. On December 15, 2015, Plaintiff’s treating provider, Ms. Chute, 13 examined Plaintiff and filled out a Physical Functional Evaluation. AR at 462-64. She opined 14 that Plaintiff’s chronic pain from a 2013 work injury and fibromyalgia caused marked to severe
15 interference with all exertional and postural activities, including handling and reaching. Id. at 16 463. She opined that Plaintiff was unable to perform even sedentary work. Id. at 464. Ms. Chute 17 signed the opinions on December 15 as the examining professional, and treating physician Dr. 18 Clure, signed them on December 16 as the reviewing and adopting professional. Id. 19 The ALJ gave little weight to the December 2015 opinion for the same reasons discussed 20 above. Because those reasons were not germane, they did not meet the higher “specific and 21 legitimate” standard.4 The ALJ also discounted Ms. Chute’s and Dr. Clure’s opinion because it 22
23 4 The ALJ also gave little weight to the December 2015 opinion because Ms. Chute was not an acceptable medical source, a reason the Commissioner concedes was erroneous because Dr. Clure was an acceptable medical source. AR at 28. 1 was inconsistent with Ms. Chute’s own examination findings. AR at 29. In addition, the ALJ 2 noted that the “opinion is a temporary opinion, intended to apply for only 6 months.” AR at 29. 3 a. Durational Requirement 4 Social Security disability can only be based on inability to work due to impairments that 5 have “lasted or can be expected to last for a continuous period of not less than 12 months” or
6 result in death. 20 C.F.R. §§ 404.1505(a), 416.905(a). Asked to “estimate [how long] the current 7 limitation on work activities will persist with available medical treatment,” Ms. Chute and Dr. 8 Clure opined “6 months.” AR at 464. The form did not solicit, and Ms. Chute and Dr. Clure did 9 not offer, an estimate of how long the limitation had already persisted. Thus, the limitations 10 opined by Ms. Chute and Dr. Clure did not meet the durational requirement for Social Security 11 disability. This was a specific and legitimate reason to reject those limitations. Plaintiff argues 12 that there is no requirement that an opinion state a 12-month duration. That is true; the ALJ could 13 have chosen to accept Ms. Chute’s and Dr. Clure’s opinion. However, the ALJ decided not to, 14 and the fact that the opinion estimated only six months of limitation was a specific and legitimate
15 basis for the ALJ’s decision. Plaintiff also argues that the “objective findings” of reduced neck 16 and thumb range of motion persisted into 2017 when another treating provider, Michael A. 17 Fleming, PA-C, opined handling limitations. (Dkt. 10 at 11 (citing AR at 751).) However, it is 18 beyond the lay expertise of Plaintiff’s counsel to determine that the two opinions are essentially 19 interchangeable except for the date. Mr. Fleming attributed handling limitations to hand 20 osteoarthritis, while Ms. Chute and Dr. Clure attributed them to chronic pain and fibromyalgia. 21 AR at 751, 463. Their clinical range of motion findings also differed. Id. at 753-54, 465-66. The 22 ALJ was not required to treat the opinions as one seamless opinion. 23 1 The ALJ did not err by discounting Ms. Chute’s and Dr. Clure’s opinion as reflecting 2 short-term or temporary limitations. 3 b. Ms. Chute’s Clinical Findings 4 Incongruity between a treating physician’s opinions and her own medical records is a 5 “specific and legitimate reason for rejecting” the opinions. Tommasetti v. Astrue, 533 F.3d 1035,
6 1041 (9th Cir. 2008). The ALJ discounted Ms. Chute’s and Dr. Clure’s opinion because Ms. 7 Chute’s examination showed “full range of motion” throughout the spine and extremities and no 8 edema. AR at 29. The ALJ’s finding was not supported by substantial evidence, because Ms. 9 Chute found reduced range of motion in neck extension and flexion; bilateral hip abduction, 10 adduction, and backward extension; and right thumb IP joint flexion. Id. at 466. Moreover, the 11 ALJ provided no explanation for how these findings would contradict Ms. Chute’s and Dr. 12 Clure’s opinion. “The ALJ must do more than offer his conclusions. He must set forth his own 13 interpretations and explain why they, rather than the doctors’, are correct.” Reddick, 157 F.3d at 14 725. The ALJ has not explained why the medical sources’ interpretation of their own results is
15 incorrect. 16 Inconsistency between Ms. Chute’s findings and her and Dr. Clure’s opinion was not a 17 specific and legitimate reason to discount the opinion. 18 c. Harmless Error Analysis 19 Although the ALJ provided erroneous reasons for rejecting Ms. Chute’s and Dr. Clure’s 20 opinion, the error was harmless because she provided the specific and legitimate reason that the 21 opinion only addressed a six-month period. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 22 2015) (applying harmless error analysis to review of a treating physician’s opinion); Molina, 674 23 F.3d at 1117 (error harmless if “inconsequential to the ultimate disability determination”). 1 The Court concludes the ALJ did not err by discounting Ms. Chute’s and Dr. Clure’s 2 December 2015 opinion. 3 B. The ALJ Erred by Discounting Plaintiff’s Testimony on Hand Impairments 4 1. Legal Standard for Evaluating the Plaintiff’s Testimony 5 It is the province of the ALJ to determine what weight should be afforded to a claimant’s
6 testimony, and this determination will not be disturbed unless it is not supported by substantial 7 evidence. A determination of whether to accept a claimant’s subjective symptom testimony 8 requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen v. Chater, 80 F.3d 1273, 9 1281 (9th Cir. 1996). First, the ALJ must determine whether there is a medically determinable 10 impairment that reasonably could be expected to cause the claimant’s symptoms. 20 C.F.R. 11 §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical 12 evidence of an underlying impairment, the ALJ may not discredit the claimant’s testimony as to 13 the severity of symptoms solely because they are unsupported by objective medical evidence. 14 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick, 157 F.3d at 722.
15 Absent affirmative evidence showing that the claimant is malingering, the ALJ must provide 16 “clear and convincing” reasons for rejecting the claimant’s testimony. Burrell v. Colvin, 775 17 F.3d 1133, 1136-37 (9th Cir. 2014) (citing Molina, 674 F.3d at 1112). See also Lingenfelter v. 18 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). 19 When evaluating a claimant’s subjective symptom testimony, the ALJ must specifically 20 identify what testimony is not credible and what evidence undermines the claimant’s complaints; 21 general findings are insufficient. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722. The ALJ 22 may consider “ordinary techniques of credibility evaluation,” including inconsistencies in 23 testimony or between testimony and conduct, daily activities, work record, and testimony from 1 physicians and third parties concerning the nature, severity, and effect of the alleged symptoms. 2 Thomas, 278 F.3d at 958-59 (citing Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 3 1997)). 4 2. The ALJ Erred by Discounting Plaintiff’s Testimony on Hand Impairments 5 Plaintiff challenges only the ALJ’s rejection of her testimony on hand impairments. In a
6 December 2015 Function Report, Plaintiff stated that her hands hurt and the pain worsens when 7 she picks up items, writes, or types. AR at 290. She drops things frequently because her hands 8 “give out.” Id. at 295. Plaintiff testified at the October 2017 hearing that she needs to use both 9 hands to drink from a glass. Id. at 60. Her fingers and wrists often lack dexterity. Id. It is difficult 10 to do dishes or prepare food. Id. Plaintiff testified that she would not be able to do her former 11 work as a credit clerk because she could not use her hands as required to count money and use a 12 keyboard for most of the day. AR at 60-62. 13 The ALJ discounted Plaintiff’s hand symptom testimony because the treatment record 14 revealed only sporadic complaints and because objective findings “fail to corroborate” Plaintiff’s
15 testimony. AR at 25-26. As discussed above, the ALJ’s finding of only sporadic complaints was 16 not supported by substantial evidence. And “subjective pain testimony cannot be rejected on the 17 sole ground that it is not fully corroborated by objective medical evidence….” Rollins, 261 F.3d 18 at 857 (citing 20 C.F.R. § 404.1529(c)(2)). The ALJ also noted “discrepancies” that she said 19 detracted from Plaintiff’s reliability in general. Id. at 27. Even if any of these purported 20 discrepancies were supported by substantial evidence, none related to Plaintiff’s hand 21 impairments. An ALJ must evaluate each symptom. See Social Security Ruling 16-3p, 2017 WL 22 5180304 at *8 (S.S.A. 2017) (“We will explain which of an individual’s symptoms we found 23 consistent or inconsistent with the evidence”). 1 The Court concludes the ALJ erred by discounting Plaintiff’s testimony on hand 2 impairments. 3 C. Scope of Remand 4 Plaintiff requests the Court remand for an award of benefits or, in the alternative, for 5 further administrative proceedings. (Dkt. # 10 at 1-2.) Remand for an award of benefits “is a rare
6 and prophylactic exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 7 F.3d 1041, 1044 (9th Cir. 2017). The Ninth Circuit has established a three-step framework for 8 deciding whether a case may be remanded for an award of benefits. Id. at 1045. First, the Court 9 must determine whether the ALJ has failed to provide legally sufficient reasons for rejecting 10 evidence. Id. (citing Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). Second, the Court 11 must determine “whether the record has been fully developed, whether there are outstanding 12 issues that must be resolved before a determination of disability can be made, and whether 13 further administrative proceedings would be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 14 775 F.3d 1090, 1101 (9th Cir. 2014) (internal citations and quotation marks omitted). If the first
15 two steps are satisfied, the Court must determine whether, “if the improperly discredited 16 evidence were credited as true, the ALJ would be required to find the claimant disabled on 17 remand.” Garrison, 759 F.3d at 1020. “Even if [the Court] reach[es] the third step and credits 18 [the improperly discredited evidence] as true, it is within the court’s discretion either to make a 19 direct award of benefits or to remand for further proceedings.” Leon, 880 F.3d at 1045 (citing 20 Treichler, 773 F.3d at 1101). 21 Here, the three-step framework favors remanding for benefits. First, the ALJ failed to 22 provide legally sufficient reasons to discount Mr. Fleming’s medical opinion and Plaintiff’s 23 testimony on hand impairments. Second, there are no outstanding issues to be resolved. The ALJ 1 rejected Dr. Rubio’s opinion, the only medical opinion that conflicted with Mr. Fleming’s. Third, 2 if Mr. Fleming’s opinion and Plaintiff’s testimony were credited, the ALJ would be required to 3 find Plaintiff disabled on remand. The vocational expert testified that frequent handling was 4 required to work as a credit clerk. Mr. Fleming’s opinion of “[m]arked,” i.e., “[v]ery significant,” 5 interference with hand dexterity, was incompatible with handling up to two-thirds of the day.
6 The vocational expert further testified that no other jobs that existed in significant numbers in the 7 national economy would be available to Plaintiff with these limitations. Plaintiff testified directly 8 that she could not sustain the handling required for her past work as a credit clerk. The only 9 remaining issue is whether the Court should exercise its discretion to remand for further 10 proceedings. The Court should remand for further proceedings “when the record as a whole 11 creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the 12 Social Security Act.” Garrison, 759 F.3d at 1021. The record here does not create any such 13 doubt. Accordingly, the Court remands for an award of benefits. 14 V. CONCLUSION
15 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 16 case is REMANDED for an award of benefits under sentence four of 42 U.S.C. § 405(g). 17 Dated this 6th day of December, 2019. 18 19 A 20 MICHELLE L. PETERSON United States Magistrate Judge 21
22 23