1 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON May 01, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ROLLIE M.,1 No. 1:19-cv-03241-MKD Plaintiff, 8 ORDER GRANTING PLAINTIFF’S vs. MOTION FOR SUMMARY 9 JUDGMENT AND DENYING ANDREW M. SAUL, DEFENDANT’S MOTION FOR 10 COMMISSIONER OF SOCIAL SUMMARY JUDGMENT SECURITY, 11 Defendant. ECF Nos. 14, 16 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 16. The parties consented to proceed before a magistrate judge. ECF No. 15 7. The Court, having reviewed the administrative record and the parties’ briefing, 16
17 1 To protect the privacy of plaintiffs in social security cases, the undersigned 18 identifies them by only their first names and the initial of their last names. See 19 LCivR 5.2(c). 20
2 1 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 2 motion, ECF No. 14, and denies Defendant’s motion, ECF No. 16.
3 JURISDICTION 4 The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 5 1383(c)(3).
6 STANDARD OF REVIEW 7 A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported
10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159
13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching
17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152,
20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674
3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.”
6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 FIVE-STEP EVALUATION PROCESS
10 A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable
13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous
17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” 19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
20 2 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§
3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the
6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the
10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work
13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 16 §§ 404.1520(c), 416.920(c).
17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. §§
20 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 2 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d).
3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC),
6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis.
10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five.
17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination,
20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the
3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is
6 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is
10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012).
13 ALJ’S FINDINGS 14 On January 27, 2012, Plaintiff applied both for Title II disability insurance 15 benefits and Title XVI supplemental security income benefits alleging a disability 16 onset date of April 1, 2007.2 Tr. 81, 221-33. The applications were denied initially
18 2 Plaintiff previously filed for benefits on April 21, 2009; the applications were 19 denied at the initial level and Plaintiff did not appeal the denials. Tr. 1331. The 20 ALJ found Plaintiff’s alleged onset date was an implied request to reopen the prior 2 1 and on reconsideration. Tr. 142-48, 154-71. Plaintiff appeared before an 2 administrative law judge (ALJ) on February 3, 2014. Tr. 38-78. On April 23,
3 2014, the ALJ denied Plaintiff’s claim. Tr. 18-37. Plaintiff appealed the denial, 4 which resulted in a remand hearing that took place December 5, 2017. Tr. 1367- 5 1409. On July 5, 2018, the ALJ issued a partially favorable decision, in which he
6 found Plaintiff became disabled on May 1, 2011. Tr. 1327-58. 7 At step one of the sequential evaluation process, the ALJ found Plaintiff, 8 who met the insured status requirements through March 31, 2008, has not engaged 9 in substantial gainful activity since April 1, 2007. Tr. 1334. At step two, the ALJ
10 found that Plaintiff has the following severe impairments: Hepatitis C/chronic liver 11 disease, spine disorders, knee disorder, chronic obstructive pulmonary disease 12 (COPD), chronic venous insufficiency, osteomyelitis, stasis dermatitis, chronic leg
13 ulcers, affective disorder, post-traumatic stress disorder (PTSD), and anxiety 14 disorders. Id. 15 16
17 applications but found there was a lack of evidence related to the period at issue 18 and therefore there was not good cause to reopen the prior applications. Tr. 1331- 19 32. As such, the ALJ found the period at issue for the current application begins
20 November 4, 2009, the day after the prior determination. Tr. 1332. 2 1 At step three, the ALJ found Plaintiff did not have an impairment or 2 combination of impairments that meets or medically equals the severity of a listed
3 impairment prior to May 1, 2011. Tr. 1335. The ALJ then concluded that prior to 4 May 1, 2011, Plaintiff had the RFC to perform light work with the following 5 limitations:
6 [Plaintiff] could stand and/or walk (with normal breaks) for a total of 4 hours in an 8-hour workday or work duties permit a sit stand/option 7 [sic] for work tasks; sit for 6 hours in an 8-hour workday; frequently climb ramps and stairs, stoop, kneel, crouch, and crawl; occasionally 8 climb ladders, ropes, and scaffolds; frequently reach laterally, in front, and overhead with the right upper extremity; must avoid concentrated 9 exposure to extreme heat, cold, wetness, humidity, and vibration; must avoid concentrated exposure to fumes, odors, dusts, gasses and 10 poor ventilation; must avoid moderate exposure to dangerous machinery and unprotected heights; can perform simple, routine tasks; 11 can concentrate, persist, and maintain pace while performing simple work for an 8-hour workday with customary breaks and lunch; no 12 contact with the general public for primary work tasks, but incidental contact is not precluded; occasional contact with coworkers but no 13 collaborative work tasks; and can accept instructions from a supervisor and can work independently. 14 Tr. 1338. 15 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 1344. 16 At step five, the ALJ found that, considering Plaintiff’s age, education, work 17 experience, RFC, and testimony from the vocational expert, there were jobs that 18 existed in significant numbers in the national economy that Plaintiff could perform, 19 such as coin machine collector, outside deliverer, and document preparer. Tr. 20 1345. Therefore, the ALJ concluded Plaintiff was not under a disability, as defined 2 1 in the Social Security Act, from the alleged onset date of April 1, 2007, through 2 April 30, 2011. Tr. 1345. Beginning May 1, 2011, the ALJ found Plaintiff’s
3 chronic venous insufficiency meets Listing 4.11. Id. Per 20 C.F.R. §§ 404.984 4 and 416.1484, the ALJ’s decision following this Court’s prior remand became the 5 Commissioner’s final decision for purposes of judicial review.
6 ISSUES 7 Plaintiff seeks judicial review of the Commissioner’s final decision denying 8 him disability insurance benefits under Title II and supplemental security income 9 benefits under Title XVI of the Social Security Act prior to May 1, 2011. Plaintiff
10 raises the following issues for review: 11 1. Whether the ALJ properly evaluated the medical opinion evidence; 12 2. Whether the ALJ properly inferred the onset date; and
13 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims. 14 ECF No. 14 at 2. 15 DISCUSSION 16 A. Medical Opinion Evidence
17 Plaintiff contends the ALJ improperly weighed the opinions of treating 18 physician Mark Sauerwein, M.D. ECF No. 14 at 6-16. 19 There are three types of physicians: “(1) those who treat the claimant
20 (treating physicians); (2) those who examine but do not treat the claimant 2 1 (examining physicians); and (3) those who neither examine nor treat the claimant 2 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).”
3 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 4 Generally, a treating physician’s opinion carries more weight than an examining 5 physician’s, and an examining physician’s opinion carries more weight than a
6 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 7 to opinions that are explained than to those that are not, and to the opinions of 8 specialists concerning matters relating to their specialty over that of 9 nonspecialists.” Id. (citations omitted).
10 If a treating or examining physician’s opinion is uncontradicted, the ALJ 11 may reject it only by offering “clear and convincing reasons that are supported by 12 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
13 “However, the ALJ need not accept the opinion of any physician, including a 14 treating physician, if that opinion is brief, conclusory and inadequately supported 15 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 16 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or
17 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 18 may only reject it by providing specific and legitimate reasons that are supported 19 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81
20 F.3d 821, 830-831 (9th Cir. 1995)). The opinion of a nonexamining physician may 2 1 serve as substantial evidence if it is supported by other independent evidence in the 2 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
3 Dr. Sauerwein gave multiple opinions regarding Plaintiff’s functioning and 4 limitations. In June 2008, Dr. Sauerwein opined Plaintiff was limited to lifting up 5 to 15 pounds, he could perform activities 11 to 20 hours per week, and he opined
6 Plaintiff had a temporary disability. Tr. 358, 406, 745-46. In June 2009, Dr. 7 Sauerwein opined Plaintiff was unable to engage in work activities and he could 8 handle only 10 hours per week of light exertion activities. Tr. 384-85. In 9 September 2009, Dr. Sauerwein opined Plaintiff was an appropriate referral for
10 Social Security but he doubted Plaintiff qualified for benefits, and he opined 11 Plaintiff was limited to performing sedentary work, cannot engage in repetitive use 12 of his lower extremities, cannot frequently stoop or bend, and could participate in
13 job search activities for 10 to 15 hours per week. Tr. 391-93. In October 2010, Dr. 14 Sauerwein opined Plaintiff might have a “partial permanent disability but not 15 complete disability.” Tr. 432, 829. In December 2010, Dr. Sauerwein opined 16 Plaintiff could not perform job search activities full-time. Tr. 760. In June and
17 July 2011, Dr. Sauerwein opined Plaintiff could not perform even sedentary work. 18 Tr. 761-62, 766-67. In March 2013, Dr. Sauerwein opined Plaintiff must lie down 19 for 30 minutes every few hours, he would miss four or more days of work per
20 month if he worked on a regular and continuing basis, he can only perform light 2 1 work for four hours per day, and the limitations had existed since March 2008. Tr. 2 868-70.
3 The ALJ gave “less weight” to all of Dr. Sauerwein’s opinions prior to May 4 1, 2011 than he gave to the opinion of Dr. Staley. Tr. 1342-43. The ALJ gave “the 5 most weight” to Dr. Sauerwein’s 2011 opinions that Plaintiff was unable to work.
6 Tr. 1346. The ALJ gave “some weight” to Dr. Sauerwein’s June 2013 opinion 7 because he did not adopt the opinion Plaintiff had been disabled since 2008. Id. 8 As Dr. Sauerwein’s opinions are contradicted by the opinion of Dr. Staley, Tr. 115- 9 18, the ALJ was required to give specific and legitimate reasons, supported by
10 substantial evidence, to reject Dr. Sauerwein’s opinions. See Bayliss, 427 F.3d at 11 1216. 12 The ALJ gave more weight to the opinion of Dr. Staley, a State agency
13 consultant, than he did to Dr. Sauerwein’s opinions. Tr. 1342-43. When an ALJ 14 rejects contradicted opinions of physician, the ALJ must not only identify specific 15 and legitimate reasons for rejecting those opinions, but the decision must also be 16 “supported by substantial evidence in the record.” Lester, 81 F.3d at 830. The
17 Court held in Tonapetyan held that a “contrary opinion of a non-examining 18 medical expert may constitute substantial evidence when it is consistent with other 19 independent evidence in the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149
20 (9th Cir. 2001); Lester, 81 F.3d at 830-31. 2 1 Dr. Staley opined in July 2012 that Plaintiff was capable of light exertion 2 work, with standing/walking six hours in a day, frequent climbing ramps/stairs,
3 stooping, kneeling, crouching, crawling, and reaching in front/laterally and 4 overhead on the right, occasionally climbing ladders/ropes/scaffolds, and he should 5 avoid concentrated exposure to environmental irritants. Tr. 130. Dr. Staley opined
6 Plaintiff did not meet Listing 4.11 because his skin ulcers were self-induced, as 7 they were related to Plaintiff injecting heroin. Id. In determining Plaintiff was not 8 disabled prior to May 1, 2011, the ALJ gave “the most weight” to Dr. Staley’s 9 opinion, as the ALJ found the opinion was consistent with the objective evidence
10 prior to May 1, 2011. Tr. 1342. However, the ALJ found Plaintiff more limited 11 than Dr. Staley, for example, the ALJ limited Plaintiff to standing/walking only 12 four hours in a day. Tr. 1338. The ALJ does not provide an explanation as to why
13 he rejected Dr. Staley’s opinion that Plaintiff could stand/walk six hours in a day. 14 Tr. 1342. 15 Further, the ALJ found Plaintiff meets Listing 4.11 beginning May 1, 2011. 16 Tr. 1345-46. In making this determination, the ALJ gave the most weight to Dr.
17 Sauerwein’s opinions that Plaintiff was unable to work due to his ulcers and 18 venous disease. Tr. 1346. However, the ALJ did not address Dr. Staley’s opinion 19 that Plaintiff did not meet Listing 4.11 through the date of his opinion in July 2012,
20 nor did he address Dr. Staley’s opinion that Plaintiff was capable of limited light 2 1 work through July 2012. Because the ALJ relied on Dr. Staley’s opinion to reject 2 Dr. Sauerwein’s opinion as it related to the time period prior to May 1, 2011, while
3 the ALJ rejected multiple portions of Dr. Staley’s opinion without explanation, and 4 the ALJ did not address Dr. Staley’s opinion as it relates to the time period after 5 May 1, 2011, the ALJ’s rejection of Dr. Sauerwein’s opinion in favor of Dr.
6 Staley’s opinion was not based on substantial evidence. 7 For the purposes of remand, the Court notes that the opinion the ALJ 8 rejected only because it was rendered by Dr. Sauerwein in 2005 was actually 9 rendered in 2009. Tr. 385, 1343; ECF No. 14 at 11; ECF No. 16 at 11. The ALJ
10 also did not explicitly address Dr. Sauerwein’s December 2010 opinion. Tr. 760, 11 1343. On remand, the ALJ is directed to address each individual opinion’s 12 limitations and duration.
13 B. Onset Date 14 Plaintiff contends the ALJ erred in failing to call a medical expert to 15 establish Plaintiff’s onset date. ECF No. 14 at 16-19. When a claimant’s 16 impairment does not have a sudden or traumatic origin, the ALJ’s analysis of the
17 disability onset date should include a consideration of the claimant’s allegations, 18 including the alleged onset date, work history, and the medical and other evidence. 19
20 2 1 SSR 83-20.3 While claimants have the burden of proof to establish disability, the 2 ALJ has a duty to assist in developing the record. Armstrong v. Comm’r, Soc. Sec.
3 Admin., 160 F.3d 587, 589 (9th Cir. 1998). If the medical evidence is not definite 4 concerning the onset date and medical inferences need to be made, SSR 83-20 5 requires the ALJ call a medical expert to determine the onset date. DeLorme v.
6 Sullivan, 924 F.2d 841, 848 (9th Cir. 1992); Armstrong, 160 F.3d at 590. “If 7 reasonable inferences about the progression of the impairment cannot be made on 8 the basis of the evidence in the file and the additional relevant medical evidence is 9 not available, it may be necessary to explore other sources of documentation,” such
10 as lay witness statements. SSR 83-20. If there is no legitimate medical basis for 11 an ALJ’s disability onset date determination, the finding cannot stand. Id.; Morgan 12 v. Sullivan, 945 F.2d 1079, 1083 (9th Cir. 1991)(reversing in part an ALJ’s
13 determination of the onset date of mental disorders without the assistance of a 14 medical expert). 15 The ALJ found Plaintiff became disabled on May 1, 2011. Tr. 1336. The 16 ALJ found Plaintiff’s chronic venous insufficiency met Listing 4.11 beginning
18 3 SSR 83-20 was rescinded and replaced by SSR 18-1p and SSR 18-2p in October 19 2018. The Court applies the regulation in place at the time of the ALJ’s July 2018 20 decision. 2 1 May 1, 2011 but did not satisfy the requirements of the Listing prior to that date. 2 Id. The ALJ noted Plaintiff had ulcerations prior to May 2011, but the ulcerations
3 were suspected or diagnosed as Methicillin-resistant Staphylococcus aureus 4 (MRSA) infections, not chronic venous insufficiency, and they were treated 5 successfully. Id. (citing Tr. 420-21, 430, 51). The ALJ found that Plaintiff’s
6 providers did not identify a potential venous disease until July 2011, when Plaintiff 7 presented with a non-healing ulcer that first appeared May 2011. Tr. 1336 (citing 8 Tr. 434, 437). 9 While the ALJ found the non-healing ulcer first presented May 2011, the
10 ALJ cited to a follow-up appointment for the wound, in late May 2011. Tr. 1341 11 (citing Tr. 437). On May 16, 2011, Plaintiff was seen at an emergency department 12 for the same right leg wound, described as being located in the right “lower leg.”
13 Tr. 526-30. Plaintiff reported the wound appeared two weeks prior. Tr. 526. 14 However, in February 2011, Plaintiff was seen for wounds on his right hand and 15 right lower extremity. Tr. 533. The wounds were noted as “non-healing” and were 16 the same wounds Plaintiff was seen for two weeks prior. Id. At that time, Plaintiff
17 was noted as being a chronic heroin user, who reported he did not intend to 18 discontinue intramuscular injection of heroin. Tr. 535, 549. At the earlier visit in 19 February 2011, Plaintiff was seen for a right hand wound and right lower leg
20 wound, both of which were described as ulcers and “IV drug use sites,” and 2 1 Plaintiff reported injecting three times per day. Tr. 542, 548. Plaintiff reported his 2 symptoms had begun February 1, 2011. Tr. 548. Plaintiff’s providers later stated
3 his ulcers were due to venous stasis, not his drug use. Tr. 1347 (citing, e.g., Tr. 4 491-92). 5 Listing 4.11 requires, in part, recurrent ulceration or persistent ulceration
6 that has not healed following at least three months of prescribed treatment, which 7 the ALJ found was not met until May 2011. Tr. 1345. While the ALJ found 8 Plaintiff met the Listing beginning in May 2011 because that is the month the 9 ulcers began, the medical records demonstrate Plaintiff’s lower right leg ulcers
10 began in February 2011. Tr. 542, 1345. Although the records indicate the 11 February 2011 wound was located at the same site as the May 2011 ulcer, the ALJ 12 did not discuss why the ulcer in May 2011 meets the Listing when it did not in
13 February 2011. Plaintiff argued at the hearing that he had recurrent ulcers 14 beginning in 2008. Tr. 1408. The medical records note multiple ulcers that 15 occurred prior to May 2011. Tr. 400, 423, 533, 535, 542. Further, the ALJ does 16 not address Dr. Staley’s July 2012 opinion that Plaintiff does not meet Listing 4.11
17 because his ulcers were self-induced. Tr. 118. 18 Defendant argues the ALJ properly determined Plaintiff’s onset date by 19 relying on the medical evidence and opinions of Dr. Sauerwein. ECF No. 16 at 12-
20 13. Dr. Sauerwein gave disabling opinions in June and July 2011 but did not opine 2 1 as to the onset of the disabling limitations. Tr. 761-63, 766-68. As the ALJ 2 inaccurately stated the non-healing ulcers began in May 2011, did not provide an
3 explanation as to why May 2011 was the appropriate onset date beyond the 4 inaccurate statement that it is the month the ulcers began, and the opinions relied 5 upon did not give an onset date, there is inadequate evidence to support the ALJ’s
6 determination of the onset date of disability. 7 On remand, the ALJ’s decision regarding Plaintiff’s eligibility for benefits 8 from May 1, 2011 forward shall remain undisturbed. The ALJ is directed to call a 9 medical expert and a psychological expert to assist in determining whether Plaintiff
10 met or equaled a listing prior to May 1, 2011, and to assist in determining 11 Plaintiff’s RFC prior to May 1, 2011, should such determination be necessary. 12 Further, if one or both experts opines Plaintiff became disabled prior to May 1,
13 2011, the ALJ shall take testimony on when Plaintiff became disabled, and if his 14 substance use was a material factor. If necessary, the ALJ will reconsider if there 15 is good cause to reopen the prior application. 16 C. Plaintiff’s Symptom Claims
17 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 18 convincing in discrediting his symptom claims. ECF No. 14 at 19-21. An ALJ 19 engages in a two-step analysis to determine whether to discount a claimant’s
20 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 2 1 “First, the ALJ must determine whether there is objective medical evidence of an 2 underlying impairment which could reasonably be expected to produce the pain or
3 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 4 “The claimant is not required to show that [the claimant’s] impairment could 5 reasonably be expected to cause the severity of the symptom [the claimant] has
6 alleged; [the claimant] need only show that it could reasonably have caused some 7 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 8 Second, “[i]f the claimant meets the first test and there is no evidence of 9 malingering, the ALJ can only reject the claimant’s testimony about the severity of
10 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 11 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 12 omitted). General findings are insufficient; rather, the ALJ must identify what
13 symptom claims are being discounted and what evidence undermines these claims. 14 Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 15 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 16 symptom claims)). “The clear and convincing [evidence] standard is the most
17 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 18 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 19 924 (9th Cir. 2002)).
20 2 1 Factors to be considered in evaluating the intensity, persistence, and limiting 2 effects of a claimant’s symptoms include: 1) daily activities; 2) the location,
3 duration, frequency, and intensity of pain or other symptoms; 3) factors that 4 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 5 side effects of any medication an individual takes or has taken to alleviate pain or
6 other symptoms; 5) treatment, other than medication, an individual receives or has 7 received for relief of pain or other symptoms; 6) any measures other than treatment 8 an individual uses or has used to relieve pain or other symptoms; and 7) any other 9 factors concerning an individual’s functional limitations and restrictions due to
10 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 11 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 12 an individual’s record,” to “determine how symptoms limit ability to perform
13 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 14 The ALJ found that Plaintiff’s medically determinable impairments could 15 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 16 statements concerning the intensity, persistence, and limiting effects of his
17 symptoms were not entirely consistent with the evidence. Tr. 1340. Plaintiff 18 challenges only the ALJ’s conclusion that the objective medical evidence and 19 Plaintiff’s activities of daily living were inconsistent with Plaintiff’s symptom
20 complaints. ECF No. 14 at 15-16. Plaintiff failed to challenge the two other 2 1 reasons the ALJ cited in support of his finding that Plaintiff’s symptom complaints 2 were not entirely credible, thus, any challenges are waived and the Court may
3 decline to review them. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 4 1155, 1161 n.2 (9th Cir. 2008). However, upon review, the Court finds that the 5 ALJ provided specific, clear, and convincing reasons, supported by substantial
6 evidence, to support his finding. Tr. 1340-42. 7 1. Inconsistent with Objective Medical Evidence 8 The ALJ found Plaintiff’s symptom complaints were not supported by the 9 medical evidence. Tr. 1340-41. An ALJ may not discredit a claimant’s symptom
10 testimony and deny benefits solely because the degree of the symptoms alleged is 11 not supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 12 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991);
13 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch, 400 F.3d at 680. 14 However, the objective medical evidence is a relevant factor, along with the 15 medical source’s information about the claimant’s pain or other symptoms, in 16 determining the severity of a claimant’s symptoms and their disabling effects.
17 Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). 18 An April 2008 lumbar MRI demonstrated moderate degenerative disc 19 disease of the L5-S1 but also showed Plaintiff otherwise had well-maintained
20 discs, with no significant stenosis or nerve root compression. Tr. 372. Dr. 2 1 Sauerwein reviewed an MRI in October 2008 and stated the “MRI was negative.” 2 Tr. 361. Although the ALJ stated there was unremarkable imaging in October
3 2008, there is no MRI dated October 2008. Tr. 1340. However, the ALJ 4 reasonably found the imaging was inconsistent with Plaintiff’s complaints of 5 chronic back pain, given Dr. Sauerwein’s statement that the MRI was negative.
6 Further, the ALJ noted that while Plaintiff complained of significant limitations 7 due to his back impairment and skin ulcers, Plaintiff had some abnormal findings, 8 such as poor range of motion and tenderness, but Plaintiff also had numerous 9 normal physical exams throughout the relevant period. Tr. 1340-41 (citing, e.g.,
10 Tr. 424, 454, 516, 520, 535, 542, 548, 832). The ALJ also noted some of the 11 abnormal findings may have been related to Plaintiff’s exaggerated pain 12 complaints associated with drug-seeking behavior. Tr. 1340 (citing Tr. 355-81).
13 While Plaintiff reported knee symptoms and the need for a cane, the ALJ 14 noted Plaintiff reported improvement after surgery in December 2008. Tr. 1340 15 (citing Tr. 337). Plaintiff later sought treatment for right knee pain, during which 16 Plaintiff had slight swelling and acute tenderness of the posterolateral knee but the
17 exam was otherwise normal. Tr. 1340 (citing Tr. 429). Plaintiff had normal range 18 of motion even when he complained of knee pain. Tr. 1340 (citing Tr. 431). 19 Although Plaintiff reported the cane was prescribed, the ALJ found there was no
20 prescription or note indicating a need for a cane in the record. Tr. 1341. Medical 2 1 records demonstrate no noted need for a cane in multiple appointments and 2 assessments. Tr. 751, 1249, 2041.
3 Although Plaintiff alleges disability in part due to mental health symptoms, 4 the ALJ noted Plaintiff had multiple normal mental status exams. Tr. 1341 (citing 5 Tr. 340, 520, 528). Plaintiff was observed as having a decent mood and being
6 upbeat. Tr. 1342 (citing Tr. 412, 619). Plaintiff argues the objective evidence 7 supports his symptom complaints and argues the ALJ cited to irrelevant evidence, 8 such as findings of stable edema when Plaintiff’s primary complaint related to his 9 hepatitis C is fatigue. ECF No. 14 at 20. However, the ALJ reasonably found that
10 the objective evidence is inconsistent with Plaintiff’s symptoms complaints. On 11 this record, the ALJ reasonably concluded Plaintiff’s symptoms were not as 12 limiting as Plaintiff claimed. This finding is supported by substantial evidence and
13 was a clear and convincing reason, coupled with the other reasons offered, to 14 discount Plaintiff’s symptom complaints. 15 2. Improvement with Treatment 16 The ALJ found that Plaintiff’s symptoms appeared to improve with
17 treatment. Tr. 1340-42. The effectiveness of treatment is a relevant factor in 18 determining the severity of a claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 19 416.929(c)(3)(2011); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006
20 (9th Cir. 2006) (determining that conditions effectively controlled with medication 2 1 are not disabling for purposes of determining eligibility for benefits); Tommasetti 2 v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (recognizing that a favorable
3 response to treatment can undermine a claimant’s complaints of debilitating pain or 4 other severe limitations). 5 The ALJ noted that Plaintiff had a meniscal tear but reported feeling much
6 better after undergoing arthroscopic surgery in December 2008. Tr. 1340 (citing 7 Tr. 337, 406-07). The ALJ found that prior to May 2011, Plaintiff’s skin infections 8 were successfully treated with medication several times. Tr. 1341 (citing Tr. 420- 9 21, 430, 450). Plaintiff reported his mental health symptoms were stable with
10 medication. Tr. 1342 (citing Tr. 412, 619). While the medical records 11 demonstrate Plaintiff’s skin infections stopped responding to treatment prior to 12 May 2011, Tr. 533, any error would be harmless as the ALJ reasonably concluded
13 several of Plaintiff’s other conditions improved with treatment, and the ALJ gave 14 other clear and convincing reasons to discount Plaintiff’s symptom complaints. 15 See Molina v. Astrue, 674 F.3d at 1115. This finding is supported by substantial 16 evidence and was a clear and convincing reason to discount Plaintiff’s symptom
17 complaints. 18 3. Failure to Seek Treatment 19 The ALJ found Plaintiff did not seek any mental health treatment prior to
20 May 2011. Tr. 1341. An unexplained, or inadequately explained, failure to seek 2 1 treatment or follow a prescribed course of treatment may be considered when 2 evaluating the claimant’s subjective symptoms. Orn v. Astrue, 495 F.3d 625, 638
3 (9th Cir. 2007). And evidence of a claimant’s self-limitation and lack of 4 motivation to seek treatment are appropriate considerations in determining the 5 credibility of a claimant’s subjective symptom reports. Osenbrock v. Apfel, 240
6 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. App’x 45, *3 (9th 7 Cir. 2009) (unpublished opinion) (considering why plaintiff was not seeking 8 treatment). When there is no evidence suggesting that the failure to seek or 9 participate in treatment is attributable to a mental impairment rather than a
10 personal preference, it is reasonable for the ALJ to conclude that the level or 11 frequency of treatment is inconsistent with the alleged severity of complaints. 12 Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental
13 health treatment is partly due to a claimant’s mental health condition, it may be 14 inappropriate to consider a claimant’s lack of mental health treatment when 15 evaluating the claimant’s failure to participate in treatment. Nguyen v. Chater, 100 16 F.3d 1462, 1465 (9th Cir. 1996).
17 Plaintiff did not participate in mental health treatment prior to the 18 established onset date, May 1, 2011. Tr. 1341. Plaintiff does not offer any 19 explanation as to why he did not seek mental health treatment. On this record, the
20 ALJ reasonably concluded Plaintiff’s mental health symptoms were not as limiting 2 1 as Plaintiff claimed. This finding is supported by substantial evidence and was a 2 clear and convincing reason to discount Plaintiff’s symptom complaints.
3 4. Activities of Daily Living 4 The ALJ found Plaintiff’s activities of daily living were inconsistent with his 5 symptom complaints. Tr. 1342. The ALJ may consider a claimant’s activities that
6 undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a 7 substantial part of the day engaged in pursuits involving the performance of 8 exertional or non-exertional functions, the ALJ may find these activities 9 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina,
10 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 11 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 12 the claimant reports participation in everyday activities indicating capacities that
13 are transferable to a work setting” or when activities “contradict claims of a totally 14 debilitating impairment.” Molina, 674 F.3d at 1112-13. 15 The ALJ noted Plaintiff engaged in multiple physical activities from 2008 16 through 2010, including construction work, painting, roofing, “side jobs,” moving
17 a lawn mower, and mowing the law. Tr. 1342 (citing Tr. 409-10, 427, 429). While 18 Plaintiff alleged difficulty being around people, the ALJ noted the records do not 19 indicate he had difficulties attending appointments or being around others, and
20 Plaintiff reported he uses public transportation. Tr. 1341 (citing Tr. 311). On this 2 1 record, the ALJ reasonably concluded Plaintiff’s activities of daily living were 2 inconsistent with Plaintiff’s claims of disabling limitations prior to May 2011.
3 This finding is supported by substantial evidence and was a clear and convincing 4 reason to discount Plaintiff’s symptom complaints. Plaintiff is not entitled to 5 remand on these grounds.
6 D. Remedy 7 Plaintiff urges this Court to credit Dr. Sauerwein’s opinions and Plaintiff’s 8 symptom testimony as true, and to remand for an immediate award of benefits. 9 ECF No. 14 at 16, 21; ECF No. 17 at 10-11.
10 “The decision whether to remand a case for additional evidence, or simply to 11 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 12 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)).
13 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 14 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 15 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 16 proper course, except in rare circumstances, is to remand to the agency for
17 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 18 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 19 cases, the Ninth Circuit has “stated or implied that it would be an abuse of
20 discretion for a district court not to remand for an award of benefits” when three 2 1 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 2 credit-as-true rule, where (1) the record has been fully developed and further
3 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 4 to provide legally sufficient reasons for rejecting evidence, whether claimant 5 testimony or medical opinion; and (3) if the improperly discredited evidence were
6 credited as true, the ALJ would be required to find the claimant disabled on 7 remand, the Court will remand for an award of benefits. Revels v. Berryhill, 874 8 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 9 the Court will not remand for immediate payment of benefits if “the record as a
10 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 11 F.3d at 1021. 12 Here, Plaintiff urges Dr. Sauerwein’s opinions and Plaintiff’s symptom
13 complaints be credited as true. However, Plaintiff’s statements were properly 14 rejected, as discussed supra. Further, Dr. Sauerwein gave multiple opinions with 15 differing opinions as to Plaintiff’s functioning during overlapping time periods. 16 Further proceedings are necessary to resolve conflicts in the evidence including the
17 conflicting medical opinions. As such, the case is remanded for further 18 proceedings. 19
20 2 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court concludes the
3 ALJ’s decision is not supported by substantial evidence and is not free of harmful 4 legal error. Accordingly, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED.
6 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 7 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 8 REVERSING and REMANDING the matter to the Commissioner of Social 9 Security for further proceedings consistent with this recommendation pursuant to
10 sentence four of 42 U.S.C. § 405(g). 11 The District Court Executive is directed to file this Order, provide copies to 12 counsel, and CLOSE THE FILE.
13 DATED May 1, 2020. 14 s/Mary K. Dimke MARY K. DIMKE 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19
20 2