United States District Court, D. Oregon
FINDINGS & RECOMMENDATION
A. RUSSO UNITED STATES MAGISTRATE JUDGE.
filed an application for disability benefits on August 19,
2010, which was denied by an Administrative Law Judge (ALJ)
on August 9, 2011. Plaintiff did not appeal that decision to
the district court. Plaintiff filed a second application on
November 9, 2011, asserting disability beginning January 22,
2010, due to fibromyalgia, myofascial pain syndrome,
autoimmune issues, and anxiety. Tr. 244. Plaintiff brings
this proceeding to obtain judicial review of the
Commissioner's final decision denying plaintiff's
November 9, 2011 application for disability insurance
hearing on that application, an ALJ determined plaintiff was
not disabled. Plaintiff argues the ALJ erred in: (1) failing
to indicate the weight given to consultative examiner Dr.
Stephen Thomas; (2) rejecting the opinion of plaintiff's
treating naturopath Valerie Netherland; (3) discrediting
plaintiff's subjective complaints; (4) rejecting the
statements of plaintiff's husband; and (5) failing to
apply res judicata to a prior decision regarding
plaintiff's past work.
Commissioner concedes the ALJ erred in his consideration of
Dr. Thomas's opinion. The Commissioner asserts a remand
is necessary to reassess the medical evidence,
plaintiff's subjective complaints, and plaintiff's
residual functional capacity (RFC). The Commissioner,
accordingly, moves to remand for further proceedings rather
than for payment of benefits. Plaintiff asserts
Netherland's opinion as well as her own testimony
establish disability requiring a remand for an award of
benefits. However, the record is uncertain and ambiguous.
Therefore, the Commissioner's motion should be granted.
decision whether to remand a case for additional evidence, or
simply to award benefits is within the court's
discretion. Sprague v. Bowen, 812 F.2d 1226, 1232
(9th Cir. 1987). Remand is appropriate when further
proceedings would likely clear up defects in the
administrative proceedings. Remand is not appropriate if the
new proceedings would serve only to delay the receipt of
benefits and would be unlikely to add to the existing
findings. McAllister v. Sullivan, 888 F.2d 599, 603
(9th Cir. 1989). Evidence should be credited
that was rejected during the administrative process and
remand for an immediate award of benefits if (1) the ALJ
failed to provide legally sufficient reasons for rejecting
the 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
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.
2004). As noted, the record is uncertain as to disability and
thus there are further issues to be resolved before a
determination of disability can be made.
states her condition has worsened since her first disability
application because she has been diagnosed with arthritis in
both knees and "seem[s] to have even less energy [and]
physical abilities." Tr. 43. Plaintiff testified she
can't work because she is unable to "keep a regular
schedule." Tr. 61. She stated she has good days and bad
days regarding her pain level and there is no "rhyme or
reason" as to which will occur. Plaintiff did indicate
as her stress increases, her pain worsens. Tr. 44-45.
Plaintiff maintains if she "pushes" herself one day
and tries to do so again the next day, she ends up in bed.
rejected the extent of plaintiff's symptom testimony
primarily due to plaintiff's lack of treatment with an
acceptable medical source. Tr. 26-28. Despite a diagnosis of
fibromyalgia, plaintiff has never seen a rheumatologist.
Despite her knee issues, plaintiff has never seen an
orthopedic specialist. Plaintiff's primary treatment was
by her naturopath, Valerie Netherland, from July 6, 2010
through October 2012. Tr. 322-37. However, plaintiff asserts
she cannot afford any further treatment. The ALJ noted
plaintiff said, "she and her husband decided they would
not apply for the Oregon Health Plan because they could not
afford the combined premium, which would be $400.00 for the
two of them ... [plaintiff's] husband is employed and has
his own insurance, which he can apparently afford." Tr.
26. The ALJ further noted, "there is no evidence
[plaintiff] tried to obtain treatment at a low cost clinic,
or tried any emergency rooms or free clinics."
Id. at 27.
unexplained, or inadequately explained, failure to seek
treatment is sufficient to discredit symptom testimony.
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
Plaintiff explains the lack of treatment due to cost, but the
record does not show referral to any specialist by
plaintiff's naturopath. Thus, it is unclear whether high
cost or lack of need was the reason for the failure to seek
treatment. A remand for further proceedings can address this
Consultative Examiner Stephen Thomas, M.D.
noted above, the Commissioner concedes the ALJ erred with
respect to the evaluation of Dr. Thomas's opinion and
plaintiff agrees a remand for further proceeding is
appropriate for this issue. Plaintiff's Opening Brief
(doc. 19) at p. 5.
C.Treating Naturopath Valerie ...