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Garrison v. Colvin

United States Court of Appeals, Ninth Circuit

July 14, 2014

KAREN S. GARRISON, Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant-Appellee

Argued and Submitted, San Francisco, California: March 10, 2014,

As Amended August 5, 2014.

Page 996

[Copyrighted Material Omitted]

Page 997

Appeal from the United States District Court, for the District of Arizona. D.C. No. 2:10-cv-02484-JWS. John W. Sedwick, District Judge, Presiding.

REVERSED AND REMANDED.

Social Security

The panel reversed the district court's order remanding the case to the Commissioner of Social Security Administration for further proceedings, and instead remanded with instructions to the administrative law judge to calculate and award Social Security disability benefits to the claimant.

The panel held that the administrative law judge (" ALJ" ) erred in assessing the medical opinion evidence. The panel also held that the ALJ erred by failing to offer specific, clear, and convincing reasons for discrediting the claimant's symptom testimony concerning her physical and mental impairments.

The panel outlined the three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. The panel held that the district court abused its discretion by remanding for further proceedings where the credit-as-true rule was satisfied and the record afforded no reason to believe that the claimant was not, in fact, disabled. The panel held that a remand for a calculation and award of benefits was required.

Mark Caldwell, Caldwell & Ober, Phoenix, Arizona, for Plaintiff-Appellant.

Laura H. Holland (argued), Special Assistant United States Attorney, Social Security Administration, Office of the General Counsel, Denver, Colorado; John S. Leonardo, United States Attorney, Michael A. Johns, Assistant United States Attorney, United States Attorneys' Office, Phoenix, Arizona; John Jay Lee (of counsel), Regional Chief Counsel, Region VIII, Social Security Administration, Office of the General Counsel, Denver, Colorado, for Defendant-Appellee.

Before: Jerome Farris, Stephen Reinhardt, and A. Wallace Tashima, Circuit Judges. Opinion by Judge Reinhardt.

OPINION

Page 998

REINHARDT, Circuit Judge.

Karen Garrison appeals from a denial of Social Security benefits, arguing that the

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Administrative Law Judge (" ALJ" ) erred in rejecting her symptom testimony and in assigning little weight to the opinions of her treating medical caretakers. In a decision that the Commissioner does not contest, the district court determined that the ALJ erred in assessing the medical opinion evidence and remanded the case for further proceedings. We conclude that the ALJ also erred in discrediting Garrison's symptom testimony, and that the district court abused its discretion in remanding for further proceedings. Applying our settled " credit-as-true" rule, we reverse the judgment below with instructions to remand this case to the ALJ for the calculation and award of benefits.

BACKGROUND

I

Karen Garrison was born in 1970. In an application for disability insurance benefits filed on September 7, 2007, she stated that she has been disabled since April 17, 2007 due to a combination of physical and mental impairments. Before her stated disability onset date, she worked as a bus driver, bus monitor, cashier, pizza cook, convenience store clerk, and customer service manager.

After Garrison's application for benefits was denied on January 4, 2008, and after her request for reconsideration was denied on March 12, 2008, she requested a hearing before an ALJ. At the hearing, which was held on July 14, 2009, Garrison presented extensive medical records to support her claim of disability and testified at length about how her impairments affect her daily life. The ALJ also heard testimony from a vocational expert (" VE" ). The evidence presented at the hearing covered the period from April 2007 to June 2009, and comprehensively addressed Garrison's physical and mental health.

A. Physical Impairments

Since 2006, as shown by the records of Dr. Christopher Labban, her primary care provider, Garrison has suffered from a variety of physical ailments--including chronic neck and back pain, degenerative joint disease, sciatica, obesity, asthma, and herniated discs. Labban's notes from late 2006 and early-to-mid 2007 reveal that, despite a variety of attempted treatments, many of these medical conditions persisted or worsened.[1] Garrison's chronic neck and back pain was an especially serious problem: nothing seemed to help, it began interfering with her daily life, and the pain started slowly creeping into her shoulders, arms, and legs. In response, Labban referred Garrison to Dr. George Wang, a neurologist. Wang started treating Garrison in September 2007 and continued treating her through June 2009, the date of the last medical record in this case.[2]

When Wang first evaluated Garrison, he noted that she reported severe neck and back pain that radiated outward and caused other symptoms; the neck pain radiated into her upper arms and caused numbness and tingling, and the lower back pain caused a burning sensation that radiated into her legs. He observed that prolonged

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standing aggravated her pain, as did turning her head. In his assessment, Wang noted that MRI results confirmed that Garrison suffered from spinal disc protrusions and determined that her pain symptoms involved " radicular features." He also remarked that Garrison had decreased muscle strength of the left triceps and decreased strength of the lower extremities more distally, symptoms that he viewed as " suggestive of cervical and lumbar radiculopathy." Follow-up tests performed on October 1, 2007 supported his initial diagnosis of cervical and lumbar radiculopathy.

Wang further noted in September 2007 that Garrison reported experiencing what she described as " seizures," in which her mind went blank, her body seized up, she started shaking uncontrollably, and she heard voices yelling at her. Wang theorized that she was suffering from panic attacks.

Garrison's symptoms grew worse between September and December 2007. Wang's treatment notes indicate that Garrison reported having experienced another " seizure" while at the grocery store, causing her to seize up, feel like most of her body was burning, slur her speech, and collapse. Garrison also stated that, at night, she felt sustained twitching in her body, " like electronic current zaps through her head." More significant, her burning and aching neck pain continued to radiate into her shoulders at a 10/10 level of intensity; Garrison stated that " she has electric jolts going up to her head when she moves her neck" and that her arms kept falling asleep. Garrison's lower back pain, too, rated 10/10 in intensity, and Wang observed that it was made worse by prolonged standing. Noting that Garrison was very drowsy from all of the pain medication she was taking--medication that did not effectively control her pain--Wang cleared Garrison for epidural shots. He also modified the medications she was taking, which at the time included Tegretol, Neurontin, and Baclofen.

In November 2007, Dr. Ernest Griffth, a state agency consulting physician who never examined Garrison, completed a physical residual functional capacity assessment. His report consists of answers to a series of check-box questions and a few lines of explanation that do not reference most of Garrison's treatment records or any of her statements. Griffith noted in his report that he did not consider any statements by Garrison's treating and examining physicians. Griffith opined that Garrison could occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand and/or walk for about 6 hours in an 8-hour workday, and push or pull without limitation. He added that she could occasionally climb ramps and stairs, kneel, crouch, and crawl, and could frequently stoop. He opined that she had no limitations with respect to cold, heat, wetness, humidity, noise, and vibration, but should avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards.

In January 2008, consistent with his treatment records and those of Labban over the prior months, Wang noted that Garrison's symptoms of " seizures" and unbearable pain persisted unabated. Her neck and back pain still rated at 10/10 in intensity, still radiated into her arms, shoulders, and legs, and still caused a mix of burning, numbness, and tingling. Garrison also reported intense fatigue due to insomnia and frequent twitching at night, as well as ongoing " seizures" that disrupted her daily activities. One such " seizure," in late January 2008, caused her to shake on the left side of her body and was accompanied by a spell of confusion and stuttering. These symptoms, in turn, were exacerbated by drowsiness from her medications, episodes of weakness, and a persistence

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in decreased muscle strength in her left arm and lower extremities.

As of February 2008, Garrison's pain symptoms were only marginally less severe: she reported that her neck pain remained at 8/10 in intensity, with jerking, numbness, and tingling in her arms that frequently caused her to drop things, and stated that her back pain was at 7/10 in intensity, with a burning sensation that radiated into her legs. These and other symptoms often caused her to lose her balance and to lean to one side.[3]

Summarizing his assessment of Garrison's symptoms on February 20, 2008, Wang stated as follows in a " Pain Functional Capacity (PFC) Questionnaire" that posed a series of questions followed by check-boxes: Garrison did have pain; this pain was " moderately severe (pain seriously affects ability to function)" ; and this pain was reasonably expected to result from objective clinical or diagnostic findings documented in Garrison's medical records. Wang noted that Garrison's pain was precipitated by changing weather, movement, overuse, stress, and cold, and was " frequently" severe enough to interfere with Garrison's attention and concentration. Wang added that, due to her pain symptoms, Garrison " frequently" experienced deficiencies of concentration, persistence or pace that resulted in a failure to complete tasks in a timely manner.

In March 2008, Dr. Eric Feldman, to whom Garrison had been sent for a consultation, remarked that Garrison had been experiencing neck and back pain " for the past year," and that she had suffered " a fairly severe pain throughout the neck, scapular area, thoracic and lumbar spine." Feldman observed that neither physical therapy nor a cervical epidural steroid injection had afforded Garrison much relief, that her burning pain remained constant, and that she was still experiencing tingling in both hands and leg pain. His physical examination revealed tenderness over the cervical paraspinal musculature and facet joints, as well as over the suprascapular and periscapular musculature. Noting limited cervical range of motion, a variety of spinal issues, and limited rotation bilaterally, Feldman stated that his impressions included fibromyalgia, central hyperalgesia, and disc protrusions and disc space narrowing.

Over the next two months, Garrison's pain improved somewhat. She had a hysterectomy, some of her other symptoms abated, and a transforaminal epidural steroid injection temporarily reduced her back and leg pain. However, she continued to experience symptoms of radiculopathy, including sharp pain in her neck, arms, and shoulders.

Wang's records show that, by June 2008, Garrison, who had stopped a few of her medications, was again experiencing numbness, tingling, and sharp pain in her hands, arms, and neck. She had also experienced a " seizure" on June 15, 2008. Wang instructed Garrison to resume some of her medications and ordered her not to drive for at least three months. A few weeks later, Garrison once again experienced a " seizure," and reported to Wang that, despite the Percocet that she was taking every six hours, she was still in pain. By August 2008, Garrison was again experiencing intense pain in her neck and right shoulder--and received only partial, short-lived relief from the Percocet.

In September 2008, Feldman performed another epidural steroid shot, but this time the shot led to only a few days of relief from the again-chronic burning back pain, which soon started shooting down from

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Garrison's lower back into her thighs and legs. This and other symptoms led Garrison to have trouble keeping her balance. Wang prescribed more Percocet and also told Garrison to start using a rolling walker for her gait instability. Garrison saw little improvement in the months that followed. In October 2008, even with Percocet three times a day for pain, she reported feeling a lot of pain radiating from the right side of her lower back into her right leg, causing numbness and tingling. Then, in November 2008, Wang noted a mild limp, tension headaches escalating to migraines, and ongoing cervical and lumbar radiculopathy.

After a short-lived respite from the back pain (though not other symptoms) in December 2008--the result of another epidural shot--Garrison again reported severe back pain in January 2009. Feldman's records reveal that, by this point, Percocet had become less effective, providing partial relief for only a few hours per dose. Garrison's neck continued " bothering her significantly," and the pain from her neck started radiating into her occipital region. Garrison was started on new pain medications, including MS Contin, but continued to feel numbness and tingling in her arms and legs. These symptoms, as well as severe headaches, persisted into February 2009.

In April 2009, Wang noted that Garrison's headaches had finally ceased, but also observed that she had experienced an increase in her back pain and that this pain was still radiating down her legs. Garrison told Wang that it felt like her feet " are on fire," adding that she could not walk or stand for a long time and that her feet were tender to the touch. Wang opined that Garrison's " pain is affecting her ability to function."

Garrison's last medical record is from June 2009. In it, Wang states as follows: " The patient states she [continues] to have constant pain to her lower back and neck rated as 6 on 0-10 pain scale. She continues to have numbness and tingling to her bilateral lower extremities, greater on the right. The patient states she continues to have some lower extremity weakness. She states her pain is aggravated by sitting and standing for long periods." Wang once again recorded his impression that Garrison's pain " is affecting her ability to function," noting that her drugs were not providing adequate relief.

B. Mental Health Issues

Throughout the relevant time period, Garrison struggled with a variety of diagnosed mental impairments, including bipolar disorder, anxiety, bouts of insomnia, auditory and visual hallucinations, and paranoia. Her treating medical caretakers also came to view her " seizures" (sometimes called " pseudo-seizures" in her treatment records) as the result of psychiatric issues.

In September 2007, Garrison visited Nurse Practitioner Susan Anderson for the first time. Anderson, who would become Garrison's primary psychiatric care giver, noted that Garrison suffered from insomnia, anxiety, depressive symptoms, nightmares, and flashbacks. Anderson diagnosed post-traumatic stress disorder and possible bipolar disorder. She also recorded a Global Assessment of Function (GAF) score of 50.[4] Later that month, Anderson

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noted that Garrison had recently suffered another " seizure" and, more important, that Garrison was having trouble with her medication. Garrison stated that she felt electric shocks going through her body, and added that she alternated between feeling very depressed and feeling like she had superpowers that would let her lift piles of wood in the heat.

Two months later, in November 2007, Dr. Wayne General examined Garrison at the behest of a state agency. He concluded that her full scale IQ was 77, placing her in the 6th percentile, and observed that " Karen is currently functioning in the range of borderline intelligence." General then noted that Garrison's " overall short-term memory is in the borderline range" and that her " concentration is in the low average range." When subjected to further tests, Garrison performed in " the lower average range" on simple tasks and " very poorly" on more complex tasks requiring concentration.

Assessing Garrison's overall mental well-being, General made a number of diagnoses:

Axis I: 296.52 Bipolar I Disorder, Most Recent Episode Depressed, Moderate
995.50 Victim of Physical or Sexual Abuse as a Child
995.81 Victim of Physical or Sexual Abuse as an Adult
309.81 Posttraumatic Stress Disorder, Acute, Chronic, Delayed Onset
304.80 Polysubstance Dependence, Alcohol, Amphetamines, Cannabis and Cocaine in Full, Sustained Remission by self-report
Axis II: V62.89 Borderline Intellectual Functioning, by examination
Axis III: Overweight, joint disease (neck and back) and arthritis, by referral history; migraine cephalgia by self-report

General concluded that Garrison's " prognosis for returning to work is currently poor, as she had difficulty maintaining concentration and manifested a borderline short-term memory. She did not have sufficient emotional control, and broke into tears three times during test administration. Her ability to perform work-related tasks is currently inadequate based on ...


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