Opinion
Case No. ED CV 13-0437 JCG
11-12-2013
YOSEF ZACCHAEUS BARBER, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND
ORDER
Yosef Zacchaeus Barber ("Plaintiff") challenges the Social Security Commissioner's ("Defendant") decision denying his application for disability benefits. Specifically, Plaintiff contends that the Administrative Law Judge ("ALJ") improperly rejected his credibility. (Joint Stip. at 19-22.) The Court agrees with Plaintiff for the reasons discussed below.
A. The ALJ Failed to Provide Clear and Convincing Reasons for Rejecting Plaintiff's Credibility
An ALJ may reject a claimant's credibility "only upon (1) finding evidence of malingering, or (2) expressing clear and convincing reasons for doing so." Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).
Here, the ALJ provided two reasons in support of his credibility determination. The Court discusses, and rejects, each in turn.
First, the ALJ found that the severity of Plaintiff's symptoms is "greater than expected in light of the medical evidence." (Administrative Record ("AR") at 16.) However, an ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987); Summers v. Bowen, 813 F.2d 241, 242 (9th Cir. 1987) (per curiam). Thus, as to this ground, the ALJ's credibility determination is inadequate.
Second, the ALJ found that "the lack of more aggressive treatment, referral to a specialist, or even further diagnostic testing suggests that the claimant's symptoms and limitations were not as severe as he alleged." (AR at 17.) Typically, an ALJ properly considers evidence of conservative treatment in his credibility analysis. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). Here, however, the ALJ also found that there was inadequate testing in light of Plaintiff's severe symptoms. (See AR at 43.) When an ALJ finds the medical evidence to be inadequate, he has an affirmative "duty to fully and fairly develop the record." Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). The ALJ's duty to supplement a claimant's record is triggered by ambiguous evidence [or] the ALJ's own finding that the record is inadequate." Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The ALJ may discharge this duty in several ways, including: (1) subpoenaing the claimant's physicians; (2) submitting questions to the claimant's physicians; (3) continuing the hearing; or (4) keeping the record open after the hearing to allow supplementation of the record. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
Because the ALJ found the medical evidence to be inadequate, he failed in his "duty to [then] fully and fairly develop the record." Celaya, 332 F.3d at 1183. In particular, at Plaintiff's hearing, the ALJ stated, "I can't understand why they're not trying to find out what's wrong with you . . . I mean somebody walks in and they're complaining of that degree of pain and they're not doing an MRI test, not doing an EMG, not doing something to try to find out what's causing it. And just loading him up with medication. Sounds pretty irresponsible to me. Sounds like malpractice is what it sounds like." (AR at 43.) The ALJ had a duty to resolve the ambiguity in Plaintiff's treatment. For example, he may have subpoenaed Plaintiff's physicians or left the record open while Plaintiff underwent further testing. See Tonapetyan, 242 F.3d at 1150. The ALJ's failure to do so was in error. See id. As such, the lack of testing is not a sufficient reason to reject Plaintiff's credibility.
Accordingly, for the reasons stated above, the Court determines that the ALJ improperly rejected Plaintiff's credibility.
B. Remand is Warranted
With error established, this Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). But where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See id. at 594.
Here, there are outstanding issues which must be resolved before a final determination can be made. On remand, the ALJ shall reconsider Plaintiff's subjective complaints and the resulting functional limitations, and either credit Plaintiff's testimony or provide clear and convincing reasons supported by substantial evidence for rejecting them. He shall also resolve all ambiguity in the record.
Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision.
In light of the Court's remand instructions, it is unnecessary to address Plaintiff's remaining contention. (See Joint Stip. at 4-6, 8-9.)
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Hon. Jay C. Gandhi
United States Magistrate Judge