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Nesbit v. Colvin

United States District Court, Ninth Circuit

December 6, 2013

ARLENE A.Z. NESBIT, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MARY ALICE THEILER, Chief Magistrate Judge.

Plaintiff Arlene A.Z. Nesbit proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda, the Court recommends this matter be REMANDED for further proceedings.


Plaintiff was born on XXXX, 1972.[1] She completed high school and attended some community college and technical college classes. (AR 48-49.) Plaintiff previously worked as a receptionist, dispatcher, waitress, and human resources assistant. (AR 32, 49-52, 187.)

Plaintiff filed an application for DIB on January 28, 2010 and protectively filed an application for SSI on December 21, 2009, alleging in both applications disability since June 15, 2007. (AR 159-66.) Her applications were denied initially and on reconsideration, and she timely requested a hearing. ALJ Mattie Harvin-Woode held a hearing on October 19, 2011, taking testimony from plaintiff and a vocational expert. (AR 41-86.) On January 26, 2012, the ALJ rendered a decision finding plaintiff not disabled. (AR 21-34.)

Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on March 7, 2013 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.


The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).


The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found the following impairments severe: major depressive disorder, generalized anxiety disorder, borderline personality disorder, thoracic and lumbar degenerative disc disease, osteoarthritis status post bilateral knee arthroscopy, asthma, IBS, GERD, obesity, and chronic pain syndrome. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.

If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found the following RFC: she can lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and/or walk two hours and sit at least six hours in an eight-hour day; she can perform all postural activities frequently, but climb only occasionally; she must avoid concentrated exposure to extreme cold temperatures, pulmonary irritants, and workplace hazards; she can perform simple and some complex tasks, as long as no more than occasional contact with the public and superficial contact with coworkers is required. With that RFC, and with the assistance of a vocational expert, the ALJ found plaintiff unable to perform her past relevant work.

If a claimant demonstrates an inability to perform past relevant work or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With consideration of the Medical-Vocational Guidelines and the testimony of the vocational expert, the ALJ alternatively found jobs existed in significant numbers in the national economy plaintiff could perform, such as circuit board screener, table worker, and office clerk. The ALJ, therefore, concluded plaintiff was not under a disability at any time from the alleged onset date through the date of the decision.

This Court's review of the final decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the final decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

Plaintiff argues the ALJ failed to fully and fairly develop the record, failed to properly evaluate the medical evidence or her testimony, and improperly determined her RFC and the conclusion at step five. She requests remand for payment of benefits or, in the alternative, for further proceedings. The Commissioner maintains the ALJ's decision has the support of substantial evidence and should be affirmed.

Developing the Record

Plaintiff notes that, while she filed a prior application for disability benefits that was initially denied on March 13, 2009 (AR 185), that application and any associated documents are missing from the record. She further notes that, while she is currently alleging disability since June 15, 2007, the Social Security Administration apparently failed to request any medical records prior to October 2008. ( See AR 576.) Plaintiff points to the ALJ's statement that "the medical evidence of record does not begin prior to 2008." (AR 28.)

"Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000) (cited source omitted). Also, the Commissioner may reopen a determination in a DIB or SSI case within twelve months of the date of the initial determination for any reason. 20 C.F.R. §§ 404.988, 416.1488. Plaintiff argues the ALJ here failed to fulfill her duty to develop the record by including the prior disability file and obtaining all of her medical records from 2007 and 2008.

The Commissioner denies that the duty to develop the record extends to "culling evidence from other final determinations made by the Agency[, ]" and maintains the possibility of reopening a prior application "is immaterial without persuasive evidence that plaintiff sought to do so." (Dkt. 21 at 5.) The Commissioner notes that plaintiff bears the burden of proving disability, Valentine v. Comm'r SSA, 574 F.3d 685, 689 (9th Cir. 2009), and must provide medical evidence about her impairments and their severity, 20 C.F.R. §§ 404.1512(c), 416.912(c). She maintains it is "significant" that plaintiff was not found disabled under her previous claim, and that "the medical records could hardly be material[.]" (Dkt. 21 at 5.)

The Court finds the Commissioner's response to this issue unsatisfactory. Plaintiff filed her current applications for SSI and DIB in December 2009 and January 2010 respectively. The fact that she filed a new claim for disability benefits within a year of the prior, March 13, 2009 denial of benefits (AR 185) appears to support an implicit request to reopen. See SSA Program Operations Manual System (POMS) DI 27501.005 ("How Reopening Issues May Arise": "A party to the determination or decision requests (including implied requests) reopening by... filing a new claim (e.g., a denied claimant files a subsequent claim and alleges an onset of disability in the period adjudicated by the prior denial determination or decision).") See also Warre v. Commissioner of the Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006) ("The POMS does not have the force of law, but it is persuasive authority.")

Also, given that she considered plaintiff's allegation of disability as of June 15, 2007, the ALJ appears to have considered the time period relevant to the prior application. ( See AR 200 (plaintiff stopped working as of June 5, 2007, when she was fired for reasons other than her medical conditions); accord AR 49-50, 173, 187.)) See also Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir. 2001) ("When an ALJ de facto reopens [a] prior adjudication..., the Commissioner's decision as to the prior period is subject to judicial review."; treating the ALJ's actions as a de facto reopening of an earlier application and assuming the onset date accepted by the ALJ, where the ALJ knew of denial of earlier application, but considered evidence of disability from the time period relevant to that application and accepted without comment an onset date within that time period). Yet, the ALJ's decision does not acknowledge the existence of the prior application and appears to reflect the ALJ's belief as to an absence of any medical records dated prior to 2008. (AR 28.) The Commissioner, while placing the burden of providing relevant medical records entirely on plaintiff, does not address the question of whether the Social Security Administration already has in its possession records associated with plaintiff's prior application, but not included in the current record. Further, given the absence of any such explanation or records, it remains unclear whether, in fact, the prior denial of benefits could reasonably be deemed significant and any omitted medical records non-material.

The Court, in sum, finds insufficient information provided by the Commissioner in relation to this issue. The Court concludes that the ALJ should, on remand, address the issue of plaintiff's prior application and the existence of any additional medical records associated with the time period under consideration in this matter.

Medical Evidence

"The ALJ must consider all medical opinion evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). See also 20 C.F.R. §§ 404.1457(c), 416.927(c) ("Regardless of its source, we will evaluate every medical opinion we receive.") In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Uncontradicted opinions may be rejected only for "clear and convincing'" reasons, and contradicted opinions may not be rejected without "specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. at 830-31 (quoted sources omitted). Less weight may be assigned to the opinions of "other sources[, ]" Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996), such as physical therapists, but the ALJ's decision should reflect consideration of such opinions, Social Security Ruling (SSR) 06-3p, and may discount the evidence by providing reasons germane to each source. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (cited sources omitted). See also SSR 06-03p (ALJ should explain weight given to other source opinions or otherwise ensure that discussion of the evidence allows for following the ALJ's reasoning "when such opinions may have an effect on the outcome of the case.")

The ALJ need not discuss each piece of evidence in the record. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Instead, "she must explain why significant probative evidence has been rejected.'" Id. (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)).

In this case, plaintiff accurately identifies omissions in the ALJ's assessment of the medical record. Not all of those omissions reflect error. For example, the ALJ sufficiently addressed an August 2009 evaluation by Dr. Cynthia Greer (AR 25, 498-500), and was not required to discuss records from other physicians containing nothing more than diagnoses or reports of symptoms. See Coleman v. Colvin, No. 12-35207, 2013 U.S.App. LEXIS 7874 at *3 (9th Cir. Apr. 19, 2013) ("mere diagnoses" did not meet standard of significant probative evidence requiring reasons for rejection). Nor does plaintiff establish reversible error in the ALJ's failure to describe each treatment record from Dr. Mark Wentworth, where the ALJ sufficiently addressed evidence of findings of tenderness on examination as a general matter and Dr. Wentworth's treatment of plaintiff in particular. (AR 28-29.)

However, the Court does find other omissions problematic. For example, the ALJ failed to discuss a May 2009 evaluation by examining physician Dr. Alysa Ruddell (AR 345-49), or to explain why the opinions contained in that evaluation were rejected. Dr. Ruddell assessed plaintiff as severely impaired in her ability to learn new tasks and markedly impaired in her ability to exercise judgment and in several social categories. (AR 347-48.) The ALJ did refer to and discuss reports of "DSHS providers" and cited to an exhibit containing the report from Dr. Ruddell. (AR 25 (citing exhibit 4F).) However, the exhibit cited contained evaluations from three different physicians and the ALJ went on to provide reasoning associated with only two of those physicians - Dr. Shawn Kenderdine and Dr. Robert Warwick. (AR 26, 32.)

The Court finds unpersuasive the Commissioner's contention that the failure to address the evidence from Dr. Ruddell was harmless because her findings were merely "cumulative" and the ALJ did discuss and declined to adopt opinions "containing much of the same findings as Dr. Ruddell's." (Dkt. 21 at 10.) Instead, the Court finds the ALJ's failure to provide any reasoning in relation to the opinions of Dr. Ruddell to constitute reversible error. Hill v. Astrue, 698 F.3d 1153, 1159-60 (9th Cir. 2012) (error not harmless where ALJ failed to provide opinion of physician " any degree of review at all, and gave no reasons for doing so") (emphasis in original). Cf. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (while failing to discuss medical record, ALJ did discuss report on which record was based).

Further review of the ALJ's decision reveals other shortcomings in the discussion of the medical evidence. The ALJ, for example, failed to mention an October 2010 physical therapy status report from Susan McKenna, DPT COMT, assessing plaintiff as, inter alia, unable to stand for longer than ten minutes. (AR 948.) As with the evidence from Dr. Ruddell, the Court declines to find this omission harmless based solely on the fact that the ALJ rejected a similar limitation assessed by treating physician Dr. Warwick. See Hill, 968 F.3d at 1159-60. Nor does it appear that the ALJ considered a June 2011 intake update form from Valley Cities Counseling containing a Global Assessment of Functioning (GAF) score of 45. ( See AR 25, 878-81.) Also, while describing a May 2008 evaluation by examining physician Dr. Kenderdine in detail, the ALJ failed to directly acknowledge the second evaluation completed by Dr. Kenderdine in October 2009, instead referring generally to that and other reports by reference to "DSHS providers, " as discussed above. (AR 25, 309-23, 328-36.)

Finally, while the Court finds no clear error established in the ALJ's consideration of other medical opinion evidence, it concludes that the above-described omissions potentially implicate the ALJ's consideration of that evidence. The Court further observes that the ALJ's decision is somewhat difficult to follow as a general matter. An ALJ may reject physicians' opinions "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes, 881 F.2d at 751). The ALJ should, therefore, take the opportunity on remand to clearly address and weigh all medical opinion evidence of record, including evidence from Dr. Ruddell, McKenna, Valley Cities Counseling, Dr. William R. Wilkinson, Dr. Warwick, Dr. Wentworth, and Dr. Kyong H. Kim, as well as evidence submitted to the Appeals Council after the ALJ's decision.


Absent evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). See also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834. "In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains." Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

Plaintiff argues the ALJ failed to provide legally sufficient reasons for finding her less than fully credible. However, a review of the ALJ's decision reveals the provision of several clear and convincing reasons for finding plaintiff less than fully credible.

The ALJ properly considered and reasonably construed evidence of plaintiff's drug-seeking behavior. (AR 31; see also AR 29.) See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001), amended opinion at 2001 U.S.App. LEXIS 17960 (Aug. 9, 2001) (ALJ properly considered evidence of exaggeration of pain to receive pain medication in credibility assessment). Accord Massey v. Comm'r SSA, No. 10-35004, 2010 U.S.App. LEXIS 21508 at * 2 (9th Cir. Oct. 19, 2010) (ALJ's interpretation of record that claimant engaged in drug-seeking behavior is a clear and convincing reason for disregarding his testimony). She properly and reasonably considered evidence of "significant pain behaviors, as well as a predominantly exaggerated presentation as demonstrated by positive Waddell signs and virtually no objective findings." (AR 31.) See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (ALJ appropriately considers a tendency to exaggerate); Thomas, 278 F.3d at 959 (claimants "efforts to impede accurate testing of her limitations supports the ALJ's determinations as to her lack of credibility.") The ALJ also reasonably considered evidence of inconsistency in plaintiff's reporting and in relation to her behavior and activities of daily living. (AR 31-32.) See Tonapetyan, 242 F.3d at 1148 (inconsistencies or contradictions appropriately considered); Thomas, 278 F.3d at 958-59 (same); and SSR 96-7p ("One strong indication of the credibility of an individual's statements is their consistency, both internally and with other information in the case record.")

The ALJ also, elsewhere in the decision, considered evidence of normal or minimal objective findings. ( See AR 28-32.) As the Commissioner observes, "[w]hile subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 96-7p. This reasoning could, therefore, also constitute a clear and convincing reason for finding plaintiff less than fully credible.

The Court, on the other hand, finds unclear the ALJ's statement that the "transient nature" of plaintiff's "pains" suggested inconsistency in reporting. (AR 32.) The Court further concludes that errors in the assessment of the medical evidence, and the possibility of an incomplete record, could implicate the ALJ's assessment of plaintiff's credibility. The ALJ should, therefore, reconsider plaintiff's credibility as necessary on remand. The ALJ should clearly identify all of the reasons offered in support of the credibility assessment and provide detailed explanations for her decision.

RFC and Step Five

Plaintiff avers improper determination of her RFC based on the failure to include limitations assessed by Drs. Ruddell, Kenderdine, Wilkinson, and Warwick, and Ms. McKenna, as well as the limitations she described in her testimony. She also avers error at step five given the failure to include these limitations in the hypothetical proffered to the vocational expert. Given that the Court does find further consideration of the medical evidence and plaintiff's testimony warranted, the ALJ should also consider plaintiff's claims at steps four and five as necessary on remand.


The Court has discretion to remand for further proceedings or to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).

Such a circumstance arises when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting the claimant's 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 if he considered the claimant's evidence.

Id. at 1076-77.

The Court, in this case, finds an insufficient basis for plaintiff's requested remand for an award of benefits. Instead, the Court concludes that there appear to be outstanding issues that must be resolved prior to a determination of disability and that it is not clear from the record the ALJ would be required to find plaintiff disabled if she considered the evidence. This case should, therefore, be remanded for further proceedings.


For the reasons set forth above, this matter should be REMANDED for further administrative proceedings.

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