United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Patricia Sullivan, United States Magistrate Judge.
Lloyd P. brings this action pursuant to the Social
Security Act (the "Act"), 42 U.S.C. § 405(g),
to obtain judicial review of a final decision of the
Commissioner of Social Security (the
"Commissioner") denying him Supplemental Security
Income ("SSI") under Title XVI of the Act. 42
U.S.C. § 1381 et seq. The Commissioner agrees
that the Administrative Law Judge ("ALJ") committed
legal error in his decision, and argues that this case should
be reversed and remanded for further administrative
proceedings. Def Br. & Mot. Remand, at 1-2 (Docket No.
18). Plaintiff argues the proper remedy is remand for
immediate calculation of benefits. (Docket Nos. 15, 19). For
the following reasons, the Court REVERSES the
Commissioner's decision and REMANDS this action for
further administrative proceedings.
October 22, 2014, plaintiff filed an application for SSI,
alleging a disability onset of July 14, 1992. Tr.
His claim was denied initially on May 4, 2015, and upon
reconsideration on October 5, 2015. Tr. 113, 125. On October
30, 2015, plaintiff requested a hearing, Tr. 139, which was
held May 3, 2017, before ALJ Rudolph M. Murgo. Tr. 32-52.
Plaintiff appeared and testified, represented by counsel; a
vocational expert also testified. Id. On August 2,
2017, the ALJ issued a decision finding plaintiff not
disabled under the Act and denying benefits. Tr. 12-31. On
October 6, 2017, plaintiff requested Appeals Council review,
which was denied June 27, 2018. Tr. 1, 199. Plaintiff then
sought review before this Court.
was born in 1967. Tr. 114. He has a ninth-grade education and has
completed no specialized job training. Tr. 235. He has past
work experience as a fast food cashier and as a landscaper.
Tr. 235. He has been incarcerated six or seven times, the
last time ending in 2011. Tr. 240, 309. He suffers from
personality disorders, conduct disorders, posttraumatic
stress disorder ("PTSD"), anxiety, depression, and
Saigonensis disorder. Tr. 240. He has also been assessed as
having schizoaffective order, bipolar type, and unspecified
psychosis with auditory and occasional visual hallucinations.
Tr. 410-11. Plaintiff has a history of suicidal ideation and
in 1990 was institutionalized for three months at a state
hospital. Tr. 309. He has a history of alcohol,
methamphetamine, and cannabis abuse, and the record is
unclear on how long he has been sober and when he may have
relapsed. Tr. 422, 686, 744.
court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are
supported by substantial evidence in the record. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is "more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotation omitted).
The court must weigh "both the evidence that supports
and detracts from the [Commissioner's] conclusion."
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986). "Where the evidence as a whole can support either
a grant or a denial, [the court] may not substitute [its]
judgment for the ALJ's." Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted); see also Burch v. Barnhart, 400 F.3d 676,
680-81 (9th Cir. 2005) (holding that the court "must
uphold the ALJ's decision where the evidence is
susceptible to more than one rational interpretation").
"[A] reviewing court must consider the entire record as
a whole and may not affirm simply by isolating a specific
quantum of supporting evidence." Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the claimant must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to
last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five-step process for
determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
§§ 404.1520, 416.920. First, the Commissioner
determines whether a claimant is engaged in "substantial
gainful activity"; if so, the claimant is not disabled.
Yuckert, 482 U.S. at 140; 20 C.F.R. §§
404.1520(b), 416.920(b). At step two, the Commissioner
determines whether the claimant has a "medically severe
impairment or combination of impairments."
Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§
404.1520(c), 416.920(c). A severe impairment is one
"which significantly limits [the claimant's]
physical or mental ability to do basic work
activities[.]" 20 C.F.R. §§ 404.1520(c) &
416.920(c). If not, the claimant is not disabled.
Yuckert, 482 U.S. at 141. At step three, the
Commissioner determines whether the impairments meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Id; 20 C.F.R.
§§ 404.1520(d), 416.920(d). If so, the claimant is
conclusively presumed disabled; if not, the analysis
proceeds. Yuckert, 482 U.S. at 141.
point, the Commissioner must evaluate medical and other
relevant evidence to determine the claimant's
"residual functional capacity" ("RFC"),
an assessment of work-related activities that the claimant
may still perform on a regular and continuing basis, despite
any limitations his impairments impose. 20 C.F.R.
§§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). At the fourth step, the Commissioner
determines whether the claimant can perform "past
relevant work." Yuckert, 482 U.S. at 141; 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can work, he is not disabled; if he cannot perform past
relevant work, the burden shifts to the Commissioner.
Yuckert, 482 U.S. at 146 n.5. At step five, the
Commissioner must establish that the claimant can perform
other work that exists in significant numbers in the national
economy. Id. at 142; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets this burden, the claimant is not disabled.
20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the application date. Tr.
17. At step two, the ALJ found that plaintiff had these
severe impairments: antisocial personality disorder,
secondary posttraumatic stress disorder, and schizoaffective
disorder. Id. At step three, the ALJ found that
plaintiff did not have an impairment or combination thereof
that met or equaled a listed impairment. Tr. 18. In
particular, the ALJ considered Listing 12.03,
"Schizophrenia spectrum and other psychotic
disorders." The ALJ found that plaintiff did not meet
the Paragraph B criteria of Listing 12.03, nor the Paragraph
C criteria. The ALJ called Rita Clark, M.D., a psychiatrist,
to review plaintiffs records as an impartial medical expert
and to testify at the hearing, and the ALJ adopted her
opinions "in part, " giving some "significant
weight" and others "limited weight." Tr. 15,
22-23. The ALJ found that plaintiff had the RFC to perform
work at all exertional levels, with these non-exertional
limitations: he was limited to simple, routine, repetitive
tasks; could have no public contact; could have only
superficial contact with coworkers regarding trivial matters;
was limited to low stress work; and should not work in
physical proximity to coworkers. Tr. 20. At step four, the
ALJ found that plaintiff could not perform past relevant
work. Tr. 24. At step five, the ALJ found that plaintiff
could successfully adjust to other jobs that exist in
significant numbers in the national economy, including
janitor, construction laborer, and lab helper. Tr. 25. The
ALJ thus found plaintiff not under a disability since the
application date, and not entitled to benefits. Id.
Opening Brief, plaintiff asserted two errors: (1) that the
ALJ improperly rejected Dr. Clark's opinions, who
testified that plaintiff met Listing 12.03; and (2) that the
ALJ improperly rejected plaintiffs subjective symptom
testimony. (Docket No. 15). Plaintiff argues that the Court
should apply the "credit as true" doctrine, see
Treichler v. Comm'r, 775 F.3d 1090, 1100-01 (9th
Cir. 2014), credit Dr. Clark's opinions and plaintiffs
testimony as true, and remand this action for immediate award
of benefits. In her Response Brief, the Commissioner agrees
that the ALJ erred in discounting Dr. Clark's opinions,
but argues that the Court should remand for further
administrative proceedings. (Docket No. 18).
the parties' dispute concerns the appropriate remedy and
not the existence of reversible error, the Court first lays
out the standards for application of the "credit as
true" doctrine. It then applies that doctrine to
plaintiffs asserted errors.
The "Credit-as-True" Doctrine and Potential
within the district court's discretion whether to remand
for further proceedings or to order an immediate award of
benefits. Harmon v. Apfel, 211 F.3d 1172, 1178 (9th
Cir. 2000). "Remand for further administrative
proceedings is appropriate if enhancement of the record would
be useful. Conversely, where the record has been developed
fully and further administrative proceedings would serve no
useful purpose, the district court should remand for an
immediate award of benefits." Benecke v.
Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citation
and italics omitted). This "credit-as-true" rule
has three steps: first, the court "ask[s] whether the
ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion"; second, if the ALJ has erred, the court
"determine[s] whether the record has been fully
developed, whether there are outstanding issues that must be
resolved before a determination of disability can be made,
and whether further administrative proceedings would be
useful"; and third, if the court "conclude[s] that
no outstanding issues remain and further proceedings would
not be useful, " it may "find the relevant
testimony credible as a matter of law . . . and then
determine whether the record, taken as a whole, leaves not
the slightest uncertainty as to the outcome of the
proceeding." Treichler, 775 F.3d at 1100-01
(quotations, citations, and alterations omitted). The court
may then "remand to an ALJ with instructions to
calculate and award benefits." Garrison v.
Colvin, 759 F.3d 995, 1020 (9th Cir. 2014. If,
"even though all conditions of the credit-as-true rule
are satisfied, an evaluation of the record as a whole creates
serious doubt that a claimant is, in fact, disabled, "
the court should remand for further proceedings.
Garrison, 759 F.3d at 1021.
Court now applies these principles specifically to Dr.
Clark's opinions and plaintiffs subjective testimony.
Medical Opinions of Reviewing Physician Dr.
called Dr. Clark to review plaintiffs medical record and
testify at the hearing. Tr. 36-38. Dr. Clark testified that
plaintiff had schizoaffective disorder, PTSD, and a history
of alcohol and substance abuse disorder. Id. She
testified that plaintiff had moderate limitations in
understanding, remembering, or applying information; marked
social difficulties; moderate limitations in concentration,
persistence, and pace; and moderate limitations in self-care.
Id. She testified that plaintiff met the Paragraph C
criteria of Listing 12.03. Id. She also testified
that it was unclear from the record when plaintiff stopped
using drugs and alcohol heavily because his statements at the
hearing were inconsistent with the record. Id.
gave significant weight to Dr. Clark's opinions regarding
plaintiffs Paragraph B limitations, and "adopted them
into this decision." Id. However, the ALJ gave
"little weight" to Dr. Clark's opinions that
plaintiff met Paragraph C, for several reasons, citing
plaintiffs ability to "independently perform a wide
variety of daily activities"; the lack of clarity
regarding cessation of drug and alcohol use; and the fact
that she "did not take into account the claimant's
abilities if he maintained long-term sobriety, . . . followed
up with consistent treatment for his impairments, and took
his medication as prescribed." Tr. 23.
argues that the ALJ erred in discounting Dr. Clark's
opinions for multiple reasons. First, plaintiff argues that
his daily activities are minimal and "already part of
his daily life, " but do not demonstrate an ability to
adapt to changes and are not inconsistent with Listing 12.03
Paragraph C. Second, plaintiff argues that ...