United States District Court, W.D. Washington, Seattle
JOHN D. CURL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING THE COMMISSIONER AND REMANDING FOR
A. TSUCHIDA, UNITED STATES MAGISTRATE JUDGE.
Curl appeals the ALJ's decision finding him not disabled.
The ALJ found Hairy Cell Leukemia is a severe impairment; Mr.
Curl has the RFC to perform light work with additional
limitations; and that he can perform past relevant work as a
claims examiner. Tr. 22-32. Mr. Curl contends the ALJ erred
by misevaluating his testimony and the medical evidence, and
by failing to find at step two that his mental disorders are
severe impairments. Dkt. For the reasons below the Court
REVERSES the Commissioner's final
decision and REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
Mr. Curl's Testimony
Curl first contends the ALJ erred in rejecting his testimony
about the severity of his limitations. Dkt. 9 at 4. The ALJ
did not find Mr. Curl was malingering and was therefore
required to provide clear and convincing reasons to reject
his testimony. Smolen v. Chater, 80 F.3d 1273,
1283-84 (9th Cir. 1996). The ALJ rejected Mr. Curl's
testimony for several reasons, at least one of which is valid
and supported by substantial evidence. In specific, the ALJ
found that after Mr. Curl was laid off in 2013, he received
unemployment benefits, reporting he was ready, able, and
willing to perform full-time work during the period he
alleged he was disabled. The ALJ further found Mr. Curl
sought and applied for jobs during this time. Tr. 30. Mr.
Curl argues the ALJ erred because the ALJ “did not
indicate how this calls the claimant's credibility into
question, ” and the Supreme Court in Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), indicated
an individual's willingness to perform
“accommodated work” is not determinative of
whether an individual is disabled for SSDI purposes. Dkt. 9
and record do not support Mr. Curl's argument. The
Cleveland decision did not address whether the ALJ
may consider a claimant's application for unemployment
benefits in weighing the claimant's testimony. The Ninth
Circuit has held the ALJ may consider a claimant's
application for unemployment benefits during the alleged
disability period, in which the claimant certified an ongoing
search for full-time employment. Jorgensen v.
Berryhill, 680 Fed.Appx. 612, 613 (9th Cir. 2017) citing
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1161-62 (9th Cir. 2008). Here Mr. Curl testified he
received disability benefits representing he was applying for
full-time work, not part-time or “accommodated”
work. Tr. 50. Accordingly the Court finds the ALJ's
rationale is supported by substantial evidence.
gave other reasons to reject Mr. Curl's testimony which
need not be discussed. Even assuming the other reasons are
erroneous, the error would be harmless. This is because the
ALJ provided at least one valid reason supported by
substantial evidence. See Carmickle, 533 F.3d at
Curl contends the ALJ misevaluated the opinions of examining
doctor John Neer, Psy.D., and reviewing doctors Michael
Brown, Ph.D., and Cynthia Collingwood, Ph.D. Dkt. 9 at 12,
Neer opined Mr. Curl could perform simple and repetitive
tasks as well as detailed and complex tasks. Tr. 297. The ALJ
accepted this opinion but rejected Dr. Neer's
determination that “based on [Mr. Curl's] report,
his fatigue is likely to interfere with his ability to work a
full shift or long periods of a day.” Tr. 25. The ALJ
reasoned the doctor's determination was based upon Mr.
Curl's subjective reports and that Dr. Neer is not a
medical doctor and the opinion is thus outside the scope of
his evaluation. Id. The Commissioner contends the
ALJ properly rejected Dr. Neer's opinion because it was
based upon the discredited self-reports of Mr. Curl.
ALJ does not provide clear and convincing reasons for
rejecting an examining doctor's opinion by questioning
the credibility of the applicant's complaints when the
doctor does not discredit those complaints and supports her
ultimate opinion with her own observations. Edlund v.
Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). Here,
Dr. Neer did not question Mr. Curl's credibility. The
doctor stated Mr. Curl's report of fatigue would
interfere with his ability to work, but that is not the sole
basis for his opinions. Dr. Neer also stated “He does
appear to be somewhat depressed with low energy and
difficulties with concentration and attention.” Tr.
297. This is a clinical observation the doctor made of Mr.
Curl, and one which the ALJ failed to address. This failure
is harmful because the ALJ did not provide a reasoned basis
to conclude Dr. Neel's opinion is more heavily based on
Mr. Curl's self-reports than on clinical observations.
See e.g., Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th
also erred in rejecting Dr. Neer's opinion as outside the
scope of the psychological evaluation. Dr. Neer opined Mr.
Curl's current psychiatric issues appear to be secondary
to his medical condition. Because Mr. Curl's physical and
mental problems are intertwined, his limitations flow from
their combined impact, and were therefore within the scope of
the evaluation. The ALJ accordingly erred as matter of law.
See Farris v. Barnhart, 147 Fed.Appx. 638, 639 (9th
Cir. 2005) (ALJ erred in rejecting psychologist's opinion
based upon the combined impact of back pain and mental
impairment which the ALJ found was outside the doctor's
Drs. Brown ...