Tackett v. Commissioner Social Security, No. 6:2012cv00959 - Document 15 (D. Or. 2013)

Court Description: OPINION AND ORDER. The decision of the Commissioner is REVERSED. This action is REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion. IT IS SO ORDERED. Signed on 05/14/2013 by Judge Malcolm F. Marsh. (pvh)

Download PDF

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MICHELLE TACKETT, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ROBYN M. REBERS P.O. Box 3530 Wilsonville, OR 97070 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 JEFFREY R. McCLAIN Special Assistant United States Attorney Social Security Administration 701 5th Avenue, Suite 2900, M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Case No. 6:12-cv-00959-MA OPINION AND ORDER MARSH, Judge Plaintiff Michelle Tackett seeks judicial review of the final decision of the Commissioner of Social Security denying her applications for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C jurisdiction pursuant to 42 U.S.C. follow, this court reverses § and §§ 401-403. 405(g). remands This Court has For the reasons that the decision of the filed an Commissioner for further administrative proceedings. FACTUAL AND PROCEDURAL BACKGROUND On August 14, 2007, plaintiff protectively application for a period of disability and disability insurance benefits. The claim was denied initially on February 20, 2008, and on reconsideration on June 20, 2008. Plaintiff filed a request for a hearing before an administrative law judge appeared at a hearing on June continuance to obtain an attorney. 27, 2010, (ALJ). and was Plaintiff granted a The ALJ held another hearing on February 11, 2011, at which plaintiff appeared with her attorney and testified. An impartial medical expert, Arthur Lorber, M.D., and vocational expert, Mark McGowan, also appeared and testified. On March 25, 2011, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review on May 8, 2012. The ALJ's decision therefore became the final decision of the Commissioner for purposes of review. 2 - OPINION AND ORDER Plaintiff was 51 years old at the time of the hearing, has a high school diploma, attended trade school, work as a phlebotomist. and is certified to Plaintiff alleges disability beginning March 10, 2010, as amended orally at the hearing, due to chronic obstructive pulmonary disease (COPD), and degenerative disc disease of the obesity. lumbar and cervical spine, which is exacerbated by her Plaintiff has past relevant work as a phlebotomist and resident care aid. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. Bowen v. 404.1520. § Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, F. 3d 1094, 1098 (9th Cir. 1999). 180 At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2012. A claimant seeking DIB benefits under Title disability on or prior to the II must last date insured. establish 42 u.s.c. 416(I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 3 - OPINION AND ORDER § At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since her amended alleged onset of disability. See 20 C.F.R. At step two, the ALJ found that plaintiff had the following severe impairments: cervical and 404.1520(b), 404.1571 et seq. §§ mild COPD, degenerative disk disease of the lumbar spine, and obesity. See 20 C.F.R. § 404.1520 (c). At step three, the ALJ found that plaintiff's impairments, or combination of impairments did not meet or medically equal a listed impairment. See 20 C.F.R. 404.1520(d), 404.1525, 404.1526. §§ The ALJ assessed plaintiff with a residual functional capacity (RFC) with the following limitations: plaintiff can perform a range of light work, except due to chronic neck and back pain, perform tasks that involve no more than four she can hours of standing/walking, and about six hours of sitting in an eight-hour workday (with normal breaks); plaintiff must be permitted to change positions as necessary to relieve discomfort; plaintiff may occasionally stoop, kneel, crouch, or climb ramps or stairs; she must avoid balancing, crawling, or climbing ladders, ropes or scaffolds; due to plaintiff's combination of pain medication side effects and respiratory symptoms, she must avoid workplace hazards, such as excessive unprotected vibration heights and or moving concentrated machinery, exposure to as well as respiratory irritants; plaintiff's overhead reaching bilaterally is limited to 4 - OPINION AND ORDER no greater than frequently to account for her subjective complaints and mild range of motion deficit. See 20 C.F.R. §§ 404.1527, 404.1529. At step four, the ALJ found plaintiff unable to perform any past relevant work. See 20 C.F.R. § 404.1565. At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that the claimant can perform. 416.960 (c), 416.966. See 20 C.F.R. 404.1560(c), §§ 404.1566, Accordingly, the ALJ concluded that Plaintiff is not disabled under the meaning of the Act. ISSUES ON REVIEW On appeal to this court, errors were committed: credibility; plaintiff contends the following (1) the ALJ improperly assessed plaintiff's (2) the ALJ failed to give controlling weight to the opinion of Martin Johnson, f'l. D., her treating physician; ALJ erroneously permitted Arthur Lorber, testify; fails and (4) the ALJ's RFC to a medical account ( 3) the expert, for all to of plaintiff's limitations, including her obesity. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. § 405(g); Andrews, 53 F.3d at 1039. 5 - OPINION AND ORDER 42 u.s.c. "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable adequate to support a conclusion." 690. mind might Id.; Valentine, accept as 57 4 F. 3d at The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). Martinez v. Heckler, The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Comm'r of Soc. Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193. DISCUSSION I. Plaintiff's Testimony To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. 20 C.F.R. § 404.1529. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that expected to produce the symptoms alleged. 533 F.3d 1035, 1039 (9th Cir. 1273, 1282 (9th Cir. 1996). 2008); could reasonably be Tommasetti v. Astrue, Smolen v. Chater, 80 F.3d At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must 6 - OPINION AND ORDER provide clear claimant's and convincing testimony reasons regarding the for severity discrediting of the the symptoms. Carmickle v. Comm'r Soc. Security Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1036. The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the Thomas v. F.3d at 1039; 2002) ; Orteza v. the ALJ Factors determinations claimant's Barnhart, Shalala, may F. 3d consider include treatment 50 the 278 F.3d 947, 748, when objective history, the not Tommasetti, arbitrarily discredit the claimant's testimony. ALJ did 533 958 750 (9th making such medical claimant's (9th Cir. Cir. 1995). credibility evidence, the daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain and medication, relevant character evidence. Tommasetti, 533 F.3d at 1039. In a November 2007 Function Report, plaintiff described that she suffers constant, chronic low back pain and pain in her right leg. Plaintiff stated that she can only lift five to eight pounds due to shortness of breath and fatigue. Plaintiff stated that she sometimes support uses a cane or walker for when ambulating. Plaintiff described that she has difficulty sleeping, every two hours due to back pain and discomfort. and wakes Plaintiff is able to make herself simple meals and assists in caring for her young grandson. Plaintiff is able to vacuum, dust, wash dishes by hand, 7 - OPINION AND ORDER and sort laundry, but she must take breaks. drive for assistance short distances, lifting and and shop carrying for grocery Plaintiff is able to groceries, bags. but needs Plaintiff also described that her medications make her drowsy and feel sedated. At the February 11, 2011 hearing, plaintiff described that she worked full time as a staff coordinator at a resident care facility for autistic children. Plaintiff stated that she was terminated in March of 2010 after failing to timely report an incident where a child bit her, and she fell down some stairs. Plaintiff testified that towards the end of her staff coordinator position, she was not working a full eight hours each day, but would leave an hour or two early, and make up that time later in the week. Plaintiff testified that her biggest obstacle to returning to work is pain in her back and shoulders. takes Percocet and Soma at night, Plaintiff stated that she and anti-inflammatories during the day, and that on a ten-point scale, with all her medications, she rates herself at a seven and a half to eight. Plaintiff testified that she continues to smoke three to four cigarettes a day, and uses her inhalers three to four times per day. Plaintiff testified that she could be on her feet hour, then would need to put her feet up. she could sit for 45 minutes. for an Plaintiff stated that Plaintiff testified that she can walk one to two blocks before needing a rest of 15 to 20 minutes. Plaintiff described that on a good day, she can take her grandson 8 - OPINION AND ORDER Plaintiff stated that on a to the park or go grocery shopping. bad day, she needs to sit with ice or heat on her back. Plaintiff testified that she has an equal number of good and bad days. In the March 25, 2011 plaintiff has medically reasonably be expected decision, the determinable to produce ALJ concluded impairments some that symptoms, that could but that plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms are not entirely credible. The ALJ provided several reasons for discounting plaintiff's testimony. First, the ALJ found that concerning her on-going job searches was severity of her alleged disability. plaintiff's testimony inconsistent with the At the hearing, plaintiff testified that she was actively seeking work as a phlebotomist and noted that hospital shifts are typically 12 hours in length. When asked by her attorney whether she could perform an eight hour shift, plaintiff difficult. codes, said she would try, but stated it would be Plaintiff also testified that she could not respond to or work for 40 hours a week. In the decision, the ALJ determined that plaintiff's somewhat equivocal testimony indicated plaintiff is not as disabled as she alleges, and discredited her on that basis. Plaintiff argues that the ALJ should not have discredited plaintiff for seeking work, even if it might prove unsuccessful. See 20 C.F.R. § 404.1574(a) & (c) (unsuccessful work attempts do not 9 - OPINION AND ORDER count toward claimant's ability to perform substantial gainful activity). Having carefully reviewed plaintiff's hearing testimony, it is clear that plaintiff desires to return to work as a phlebotomist and is actively seeking such employment, ALJ's interpretation is supported by substantial and the evidence. Although plaintiff's has posed a reasonable interpretation of her testimony, I may not second-guess the ALJ' s interpretation. equally reasonable See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Second, the ALJ discredited plaintiff because she lost her job as a staff coordinator because she failed to file report, not due to her impairments. an incident The ALJ noted that plaintiff lost her job around the time of her amended onset of disability date. When a claimant stops working for reasons other than disability, it supports an adverse inference as to the credibility of her claim that she could not continue working due to disability. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (adverse credibility determination based claimant losing job due to lay off, not impairments). While the ALJ did correctly find that plaintiff was terminated for reasons unrelated to her disability, there was conflicting evidence concerning plaintiff's ability to work a full eight-hour shift. Plaintiff testified that toward the end of her employment, she was fatigued, and left work an hour early most days. The ALJ 10 - OPINION AND ORDER specifically noted this accommodation permitted plaintiff to work, despite her limitations. On balance, I conclude that the ALJ's findings in this respect are not entirely supported by substantial evidence. The ALJ' s third reason for discrediting plaintiff is not The ALJ discredited claimant supported by substantial evidence. for an alleged discrepancy in the record concerning two falls on the stairs which aggravated her back and shoulder pain. hearing, the ALJ inquired about the two incidents, At the and was not satisfied with the documentation in plaintiff's medical records, suggesting that testified that the falls first fall were one occurred in in the same. February Plaintiff of 2010, and involved plaintiff being bitten by an autistic child at the group facility, causing plaintiff to lose her balance and fall down a few stairs. Plaintiff testified that August of 2010, stairs by her the second fall occurred in and involved plaintiff being shoved down a then-boyfriend. Plaintiff testified that few the boyfriend was arrested for assault, and that she had a restraining order against the boyfriend. A review of plaintiff's medical records substantiates that the falls were indeed two separate incidents, and that plaintiff reported increased pain in her back and leg which resolved with her regular regiment of Percocet and Soma. 11 - OPINION AND ORDER Tr. 535, 555. Accordingly, I conclude that the ALJ's credibility finding on this basis is not supported by substantial evidence in the record. Lastly, the ALJ discredited plaintiff for her failure to stop smoking, despite her allegations of debilitating COPD. demonstrates The record that plaintiff has been repeatedly advised by her treating physician to stop smoking, yet continues to smoke three or four cigarettes per day. However, the Ninth Circuit has suggested that smoking is an addiction, and that it may not be an appropriate basis upon which to discredit a claimant. of Soc. Sec. Admin., 554 F.3d See Bray v. Commissioner 1219, 1227 (9th Cir. 2009) (discrediting claimant for failing to stop smoking despite COPD was harmless error) . Therefore, I conclude the ALJ erred in discrediting plaintiff on this basis. I error in discrediting claimant for failing to quit smoking was harmless. In short, disagree I provided with the Commissioner that have determined for discrediting ~ubstantial evidence. that several of plaintiff the ALJ' s the are reasons not the ALJ supported by Because of these errors, I conclude that the remaining reason does not amount to a clear and convincing support for the adverse credibility determination. credibility finding cannot be sustained. Accordingly, the ALJ's Robbins v. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006). Ill/ Ill/ 12 - OPINION AND ORDER Soc. Sec. II. Physicians' Opinions Plaintiff argues that the ALJ erred in rejecting the opinion of Dr. Lorber. to Johnson in favor of the testifying medical expert, Dr. According to plaintiff, Dr. Johnson's opinion is entitled ALJ The weight. controlling gave weight" "great to the assessment of Dr. Lorber. An ALJ may reject a treating physician's opinion when it is inconsistent if physicians with the opinions the ALJ makes legitimate reasons of other treating or examining for doing so that evidence in the record." setting "findings forth specific, are based on substantial Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007) (quoting Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007)). When the medical opinion of a treating physician is uncontroverted, however, the ALJ must give "clear and convincing reasons" for rejecting it. Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir. 1995). A non examining physician treats the claimant. nonexamining Lester, physician cannot is one who neither 81 F. 3d at 830. by itself examines nor "The opinion of a constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." A. Id. at 831. Dr. Johnson Dr. Johnson is a an internist 1vi th a specialty in pulmonary issues. Dr. Johnson has been plaintiff's treating physician for 13 - OPINION AND ORDER many years, and is responsible for coordinating plaintiff's care, including referrals for plaintiff's back surgery in 2007. Dr. Johnson prescribes all of plaintiff's medications. On December 2010, 20, in questions to response posed by plaintiff's attorney, Dr. Johnson provided an opinion stating that plaintiff suffers from chronic pain and weakness in her right lower extremity due to sciatica/radiculopathy from her lumbar spinal degenerative disease, with preceding surgeries. that impingement. COPD, Dr. nerve root Johnson also noted plaintiff's "significant" with dyspnea on exertion, bronchospastic exacerbation. plaintiff' s· COPD plaintiff has show that which are MRis there Dr. Johnson noted is recurrent cough, and occasional Johnson noted the severity of Dr. by demonstrated spirometry. Dr. Johnson additionally noted plaintiff's morbid obesity. In his December 20 opinion, Dr. Johnson indicated that plaintiff's degenerative disc disease with chronic pain limits her ability to stand, walk, or sit for extended periods, and that she cannot stoop, crouch, crawl or use her legs in a physical manner for extended periods. Dr. Johnson indicated that plaintiff must avoid exposure to temperature extremes, dust, and fumes due to her COPD. Dr. Johnson further noted that plaintiff's endurance in all tasks is limited by her obesity. plaintiff would require frequent exacerbations of her conditions. 14 - OPINION AND ORDER Lastly, Dr. Johnson opined that days of absence due to Dr. Johnson also completed a check-the-box form provided by plaintiff's In attorney. that form, Dr. Johnson opined that plaintiff could sit for only one to two hours, could stand and walk for only two hours, and can lift only 10 pounds. The ALJ indicated that if all of Dr. Johnson's limitations are credited, plaintiff would be precluded from full-time work. The ALJ gave three reasons for giving Dr. Johnson's opinion less weight. First, the ALJ noted that Dr. Johnson's opinion was not supported by his own treatment notes. that Dr. Second, the ALJ noted Johnson's opinion was contradicted by other objective medical evidence, namely the opinion of examining physician Steven Truong, M.D. Third, the ALJ noted that Dr. Johnson's opinion was contradicted by the opinion of Dr. Lorber. The ALJ detailed inconsistencies between Dr. Johnson's opinion and the limitations he described in his treatment notes. The ALJ noted that Dr. Johnson's notes consistently described plaintiff's COPD as mild, yet in his December plainti"ff' s COPD as significant. 2010 opinion, he describes The ALJ noted that Dr. Johnson's spirometry testing in July 2010 indicated that plaintiff was back to baseline after a within normal recent exacerbation, limits. Tr. 555-56. and that her FEV1 was The ALJ's supported by substantial evidence in the record. conclusion that findings are Thus, the ALJ's Dr. Johnson's characterization of plaintiff's COPD as significant is contrary to his treatment notes is a reasonable 15 - OPINION AND ORDER one, and the ALJ could discount Dr. Johnson's opinion on this basis. The ALJ also correctly noted that contrary to Dr. Johnson's December 2010 opinion, plaintiff's evidence of nerve root impingement. Dr. lumbar spine MRis show no Other inconsistencies between Johnson's opinion and his treatment notes are evident. For example, a November 6, 2009 treatment note reflects that plaintiff "states her back pain overall is better and she is more active without significant Additionally, a disability." functional 31, July 2009 treatment plaintiff's back pain was better, note Tr. 537. indicates and that she was "much that more ambulatory" working as a staff coordinator, and that she "recently came back from summer camp with lots of hiking and was able to keep up fairly well." Tr. 538. These 2009 notes are inconsistent with Dr. Johnson's opinion concerning plaintiff's diminished functional capacity and endurance. Therefore, I conclude that the ALJ' s determination that Dr. Johnson's opinion was inconsistent with his treatment notes is supported by substantial evidence in the record. B. Dr. Truong The ALJ also gave Dr. Johnson's opinion less weight because it was contradicted by the opinion of Steve Truong, opinion was consistent with a subset of light work. i"l. D., whose Dr. Truong performed a disability occupational evaluation on April 5, 2010, and reviewed plaintiff's 16 - OPINION AND ORDER medical records, which indicated a significant history of degenerative disc Dr. disease. Truong discussed that plaintiff's primary medical issue affecting her functional capacity is her severe degenerative disc disease, for which plaintiff has undergone several surgeries. Dr. Tr. 522. Truong discussed that plaintiff suffers from COPD, and is morbidly obese and that plaintiff is fairly deconditioned. Dr. Truong noted that plaintiff has decreased air movement in both lungs. The ALJ thoroughly discussed Dr. Truong's evaluation. discussed Dr. Truong's findings that plaintiff The ALJ exhibited mild tenderness in the mid sacral spine and some tenderness in the left and right perivertebral lumbar muscles. The ALJ noted that Dr. Truong's findings indicated that plaintiff had full motor strength in all extremities except the lower right, which was "a bit suboptimal secondary to some guarding. ¢ The ALJ discussed that based on the examination of plaintiff, and review of her records, Dr. Truong opined that plaintiff could lift and carry five to 10 pounds frequently, more than 15 pounds. and should not lift Dr. Truong opined that plaintiff could sit uninterrupted for two hours, could stand and walk for 45 minutes to one hour. Dr. Troung determined plaintiff could sit for six hours in an eight hour day with normal rest breaks, and could stand for three hours and walk for three hours with rest breaks. The ALJ noted that Dr. Truong found some postural limitations, as well as recommending avoiding environmental 17 - OPINION AND ORDER hazards due to plaintiff's Dr. Truong found that plaintiff could ambulate without an COPD. assistive device. The ALJ gave Dr. Truong's opinion some weight, finding they were consistent with the medical evidence as whole. the However, ALJ Dr. that determined limitations Truong's to handle, finger and feel were not supported by other evidence in the record, and were inconsistent with the opinion of Dr. Lorber, and thus did not credit that portion of his opinion. The ALJ' s Truong's opinion is supported by summary of Dr. Thus, Dr. Johnson's opinion is substantial evidence in the record. contradicted by other evidence substantial record, in the and therefore, the ALJ could appropriately give Dr. Johnson's opinion than less Additionally, Orn, F.3d 495 conflicting Truong's Dr. based See weight. controlling 631. at opinion, in combination with the multiple inconsistencies between Dr. Johnson's treatment notes and his opinion, legitimate reasons I conclude that the ALJ cited for specific and opinion. discounting Dr. Johnson's Tommasetti, 533 F.3d at 1041. Dr. Lorber C. The ALJ also gave Dr. Johnson's opinion less weight by relying on the testimony Dr. with respect to Dr. Lorber: Lorber to plaintiff; without testify Plaintiff makes several arguments Lorber. (1) the ALJ erred in permitting Dr. telephonically without advance notice to (2) the ALJ erred in permitting Dr. Lorber to testify verifying whether 18 - OPINION AND ORDER Dr. Lorber had all relevant record materials; and (3) the ALJ erred in crediting Dr. Lorber's opinion over that of Dr. Johnson. The ALJ's reliance on Dr. Lorber's opinion is problematic. 1. telephonic testimony Plaintiff submits that under the regulations, medical experts must testify in person or by video teleconference only, citing 20 C.F.R. § 404.938(b). Plaintiff submits that she was not informed in advance of the hearing that telephonically, Dr. Lorber would be testifying as opposed to appearing in person or via video- Plaintiff argues that by permitting Dr. conference. Lorber to testify, the ALJ has committed harmful legal error. The Commissioner responds that plaintiff has waived this argument because plaintiff's counsel did not object to Dr. Lorber's testifying telephonically at the hearing, nor to the lack of notice concerning telephonic appearance at the hearing. 1 Plaintiff contends that even if this argument is waived, I should review it because it is question purely of law. that remand is necessary specifically address this on issue, other Because I have determined grounds, except to I state decline 20 C. F. R. to § 404.938(b) suggests that the hearing notice will include whether an 1 I note that plaintiff's counsel objected to Dr. Lorber's testimony on the basis that Dr. Lorber is not on the list of medical experts who is maintained on the regional office's roster, citing HALLEX I-2-5-36, and to a line of questioning by Dr. Lorber of plaintiff that counsel believed was irrelevant. The ALJ overruled these objections. 19 - OPINION AND ORDER appearance of a "witness is scheduled to be made by video teleconferencing rather than in person." 2. complete record Plaintiff also complains that the ALJ did not adequately resolve plaintiff's counsel's concerns about whether Dr. Lorber had all of the relevant medical records. counsel inquired whether Dr. medical records. At the hearing, plaintiff's Lorber had plaintiff's most recent Dr. Lorber did not have Exhibit 23F, a cervical spine MRI dated November 23, 2010. The ALJ then proceeded to read Exhibit 23F to Dr. Lorber over the telephone. completed his testimony and was excused, After Dr. Lorber it was learned that Dr. Lorber also did not have Exhibit 24F, which contained a treatment note from Dr. Johnson dated August 26, 2010. In the decision, the ALJ determined that Exhibit 24F was not different in kind from other treatment notes from Dr. impacted Dr. Lorber's Johnson, testimony. and thus would not have Plaintiff also submits that during the hearing that there were multiple instances of difficulty with the audio connection with Dr. Lorber, and that the ALJ erred in relying upon Dr. Lorber's testimony. I agree. I am not satisfied with the ALJ's resolution of Dr. Lorber's opinion. The ALJ clearly premised his rejection of Dr. Johnson's opinion on the testimony as provided by Dr. Lorber. I am not convinced as to the completeness of the information provided to Dr. Lorber. Having carefully reviewed the hearing transcript, it is 20 - OPINION AND ORDER clear that Dr. Lorber did not have all of the exhibited copies of plaintiff's recent medical records, indicates, there difficulty Therefore, were multiple hearing due to and as plaintiff correctly instances an where inadequate Dr. audio Lorber had connection. I conclude that the ALJ's reliance upon Dr. opinion was erroneous. Lorber's Because I have identified other errors in the ALJ's analysis, I rejected the commissioner's suggestion that reliance on Dr. Lorber's testimony was harmless error. In the decision, the ALJ rejected part of Dr. Truong's opinion based on the limitations described by Dr. Lorber: The undersigned gives some weight to Dr. Truong's findings and assessment, which are generally consistent with the record as a whole, but not to all of his limits because the record as a whole supports the found limits. Specifically, as addressed by Dr. Lorber, the evidence does not support Dr. Truong's found limits in handle, finger and feel. Tr. 27. Because the ALJ relied upon Dr. Lorber's opinion to reconcile the conflicting evidence provided by Dr. Truong, the ALJ's evaluation of the medical evidence is problematic with respect to any alleged limitations plaintiff's hands. See Carmickle, 533 F. 3d at 1164 (ALJ is responsible for resolving conflicts in the medical record) . Thus, without Dr. Lorber's opinion, resolve those specific limitations. 21 - OPINION AND ORDER the court cannot Thus, I conclude that, on this record, the ALJ erred in evaluating the medical opinions with respect to plaintiff's functional limitations. III. RFC Assessment and VE Testimony. I have concluded that the ALJ erred in evaluating plaintiff's credibility, and has not reconciled medical evidence concerning any alleged handling, impact the ALJ' s determinations fingering and feeling limitations which could assessment of plaintiff's RFC. were flawed, the Because those hypothetical vocational expert was legally inadequate. posed Therefore, to the the ALJ's Step Four and Step Five findings are not supported by substantial evidence. Robbins, I decline to address any 466 F.3d at 886. additional specific arguments raised by plaintiff. IV. Remand The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court and generally turns on the likely utility of further proceedings. Harman v. Apfel, 211 F. 3d 1172, 1178 Brewes v. Comm'r Soc. Sec. Admin., (9th Cir. 2000). See also 682 F.3d 1157, 1164 (9th Cir. 2012). The Ninth determining Circuit when evidence immediately awarded. F. 3d 1135, 1138 has (9th established a should credited and test Cir. 2011). The court for benefits Strauss v. Comm'r of Soc. Sec. Admin., immediate award of benefits when: 22 - OPINION AND ORDER be three-part should grant 635 an (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. Id. The "crediting as true" doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award Commissioner's decision. of benefits upon reversing the Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). On this necessary. record, I conclude that further proceedings are I have determined that the ALJ failed to provide clear and convincing reasons for discrediting plaintiff's subjective complaints about the limiting effect of her impairments. have determined that the ALJ provided specific and I also legitimate reasons for crediting the opinion of Dr. Truong, who opined that plaintiff could perform a subset of light work, which would preclude a finding of disability. The ALJ also erroneously relied upon the testimony of Dr. Lorber. As noted above, however, there are conflicts in the alleged functional medical limitations, evidence concerning plaintiff's especially with respect to any alleged limitations with handling, fingering, and feeling. Thus, based on the foregoing, further proceedings reconsider is plaintiff's required I conclude that a remand for to credibility, permit ( 2) the to ALJ: ( 1) reconsider to the evaluation of the medical evidence and resolve any conflicts as 23 - OPINION AND ORDER necessary, and (3) to reconsider whether any new findings with respect to plaintiff's credibility and the medical evidence affect plaintiff's RFC, and/or the remaining steps in the sequential evaluation. CONCLUSION The decision of the Commissioner is REVERSED. This action is REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion. IT IS SO ORDERED. DATED this ~ day of MAY, 2013. !x'~ ~2lt'~ Malcolm F. Marsh United States District Judge 24 - OPINION AND ORDER

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.