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Snider v. Berryhill

United States District Court, D. Oregon

January 8, 2018




         Plaintiff 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 benefits.

         After a 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.

         The 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.

         The 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 credited.

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.

         A. Plaintiff's Testimony

         Plaintiff 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. Tr. 45.

         The ALJ 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.

         An 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 ambiguity.[1]

         B. Consultative Examiner Stephen Thomas, M.D.

         As 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 ...

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