April Dominguez v. Carolyn Colvin ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APRIL M. DOMINGUEZ, No. 13-17380
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-01589-BSB
CAROLYN W. COLVIN,
Commissioner of Social Security, ORDER AND
Defendant-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the District of Arizona
Bridget S. Bade, Magistrate Judge, Presiding
Argued and Submitted
November 20, 2015—San Francisco, California
Filed December 14, 2015
Amended February 5, 2016
Before: Michael J. Melloy,* Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Order;
Opinion by Judge Ikuta
*
The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
2 DOMINGUEZ V. COLVIN
SUMMARY**
Social Security
The panel affirmed the district court’s order remanding
the case to the Social Security Administrative Law Judge
(“ALJ”) for further proceedings after the government
conceded that the ALJ made a legal error in deciding
claimant’s application for disability benefits under the Social
Security Act.
The panel held that the district court did not err in
remanding the case to the ALJ for further factual proceedings
rather than for payment of benefits. The panel held that in
light of inconsistencies, conflicts, and gaps in the record that
require further administrative proceedings, the panel would
not proceed to the question of whether the ALJ would be
required to find claimant disabled if the treating physician’s
inconsistent reports were credited as true.
COUNSEL
Eric G. Slepian, Phoenix, Arizona, for Plaintiff-Appellant.
John S. Leonardo, United States Attorney and Michael Johns,
Assistant United States Attorney, Phoenix, Arizona; Laura
Ridgell-Boltz (argued), Special Assistant United States
Attorney, and John Jay Lee, Regional Chief Counsel, Region
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOMINGUEZ V. COLVIN 3
VIII, Social Security Administration, Denver Colorado, for
Defendant-Appellee.
ORDER
The opinion filed December 14, 2015, and appearing at
808 F.3d 403, is hereby amended as follows:
On page 408, the last sentence of the last
paragraph before Section III on that page
should be deleted.
Petitions for rehearing or rehearing en banc will not be
entertained from this amendment.
OPINION
IKUTA, Circuit Judge:
April Dominguez’s second application for disability
benefits was denied after an administrative law judge (ALJ)
determined that she was not disabled.1 After the government
conceded that the ALJ made a legal error when it rejected the
1
Dominguez has filed three applications for disability benefits. An ALJ
denied her first application on March 6, 2009; the record is unclear as to
the claimed disability onset date. An ALJ denied her second application
(the one before us on appeal) on February 2, 2011, an application which
claimed an amended disability onset date of March 1, 2006. An ALJ
granted her third application for benefits, which claimed a disability onset
date of February 2, 2011, on April 25, 2014. Neither the first nor third
application for benefits is before us here.
4 DOMINGUEZ V. COLVIN
opinions of Dominguez’s treating physician without giving
sufficient reasons, the district court exercised its discretion to
remand the case to the ALJ for further proceedings. On
appeal, Dominguez argues that the district court abused its
discretion in not remanding with instructions to award
benefits. We reject Dominguez’s argument and therefore
affirm.
I
On June 15, 2009, Dominguez submitted a claim under
Title XVI of the Social Security Act, 42 U.S.C.
§§ 1381–1383f, which provides for the payment of benefits
to individuals who are disabled, as defined in the Act. See
42 U.S.C. § 1382c(a)(3). Dominguez claimed that she was
disabled as a result of a number of illnesses, including panic
disorder with agoraphobia, morbid obesity, gastroparesis,
back pain, carpal tunnel syndrome, and dementia.
In order to determine whether an applicant is disabled, an
ALJ must follow a five-step process. See 20 C.F.R.
§ 416.920. First, the ALJ must determine: (1) whether the
claimant did not perform substantial gainful activity during
the period of claimed disability, id. § 416.920(a)(4)(i);
(2) whether the claimant had an impairment, or a combination
of impairments that is “severe,” id. § 416.920(a)(4)(ii),
meaning that it significantly limits the claimant’s “physical
or mental ability to do basic work activities,” id.
§ 416.920(c); and (3) whether any severe impairment meets
or equals the severity of one of the impairments listed in an
appendix to the regulations, as well as meeting the duration
requirement, id. § 416.920(d)–(e); 20 C.F.R. pt. 404, subpt.
P, App. 1. If the claimant satisfies these three steps, then the
claimant is disabled and entitled to benefits. If the claimant
DOMINGUEZ V. COLVIN 5
has a severe impairment that does not meet or equal the
severity of one of the ailments listed in the appendix, the ALJ
then proceeds to step four, which requires the ALJ to
determine the claimant’s residual functioning capacity
(RFC) based on all the relevant evidence in the record,
including impairments not classified as “severe.” Id.
§ 416.920(a)(4)(iv); id. § 416.920(e); id. § 416.945(a). The
RFC is defined as “the most” the claimant can do, despite any
limitations. Id. § 416.945(a). After developing the RFC, the
ALJ must determine whether the claimant can perform past
relevant work. Id. § 416.920(a)(4)(iv). If not, then at step
five, the government has the burden of showing that the
claimant could perform other work existing in significant
numbers in the national economy given the claimant’s RFC,
age, education, and work experience. Id. § 416.920(a)(4)(v);
Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989); see
also Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).
Following these steps, the ALJ first determined that
Dominguez had not engaged in substantial gainful activity
since June 15, 2009. He next determined that Dominguez’s
carpal tunnel syndrome and obesity constituted severe
impairments for purposes of 20 C.F.R. § 416.920(c), but that
they did not, singly or in combination, meet a listing.
Reviewing all the evidence in the record, the ALJ determined
that Dominguez had the RFC to perform light work, as
defined in 20 C.F.R. § 416.967(b), but could only
occasionally “handle, finger and feel.” In developing this
RFC, the ALJ held that Dominguez’s medically determinable
impairments could cause the symptoms she alleged, but her
statements regarding the “intensity, persistence and limiting
effects” of the symptoms were not credible to the extent they
were inconsistent with the RFC.
6 DOMINGUEZ V. COLVIN
The ALJ explained his adverse credibility determination
and his assessment of Dominguez’s RFC in some detail.
With respect to the carpal tunnel syndrome, the ALJ noted
that in 2007, Dominguez received injections, which,
according to the doctors’ reports, alleviated her symptoms.
In June 2009, she was referred to a hand surgeon for a carpal
tunnel evaluation, but she did not follow up on the
appointment. Nor did she obtain physical therapy for the
syndrome. An examining physician, Dr. Stephanie
Jenkinson, stated that any numbness could be easily fixed
with surgery.
Next, the ALJ noted there was little evidence related to
the claimant’s treatment for obesity. The ALJ also
discounted the claims of gastroparesis, noting (among other
things) that a recent MRI showed no abnormalities.
Turning to her claims of panic disorder and agoraphobia,
the ALJ noted that Dominguez had never been hospitalized
for these conditions, medical reports showed that she had a
good mental status, she got along socially, and psychological
tests “suggest[ed] some over-reporting of symptoms.” The
ALJ also noted that her activities of daily living, including
taking care of two children adopted in 2009, showed she was
able to function.
With respect to her musculoskeletal disorders, the ALJ
assigned little weight to the opinions of her treating
physician, Dr. Rajesh Bhakta, stating only that they “are
inconsistent with the overall medical evidence.” The ALJ
noted the opinion of Dr. Stephanie Jenkinson, an examining
physician, that the claimant’s impairment would not impose
any limitations for the relevant duration period. But the ALJ
gave this opinion little weight because the “medical evidence
DOMINGUEZ V. COLVIN 7
indicates that the claimant has some severe impairments.”
The ALJ assigned substantial weight to the opinion of another
examining physician, Dr. John Prieve, who stated that
Dominguez was capable of a reduced range of light work.
In light of his determination of Dominguez’s RFC, the
ALJ concluded that Dominguez could not perform her past
relevant work as a certified nursing assistant. Moving to the
fifth step in the sequence, the ALJ considered testimony of a
vocational expert regarding work available for a person with
Dominguez’s RFC. The ALJ determined that Dominguez
could perform jobs that exist in significant numbers in the
national economy, 20 C.F.R. § 416.969, including a “full
array of unskilled light or sedentary jobs” such as first aid
attendant, light office helper, order caller, or marker.
Accordingly, the ALJ denied Dominguez’s application for
disability benefits.
Dominguez appealed, and in the district court, the
government conceded that the ALJ had erred in discounting
the opinion of Dr. Bhakta, who was Dominguez’s treating
physician, without articulating sufficient reasons for doing so.
Under our precedent, if a treating doctor's opinion is
contradicted by other medical evidence in the record, the ALJ
may reject this opinion only by “providing specific and
legitimate reasons supported by substantial evidence.”
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Here the ALJ did not provide such reasons, and so committed
a legal error.
In light of this error, Dominguez moved for the district
court to remand for an immediate computation and award of
benefits. The court rejected this motion, and instead
remanded the case to the ALJ for further proceedings to
8 DOMINGUEZ V. COLVIN
determine whether Dominguez was entitled to benefits.
Dominguez timely appealed the court’s order.
II
The only issue on appeal is whether the district court
abused its discretion in remanding for further proceedings
instead of remanding for benefits. We briefly review the
legal framework for analyzing this issue.
A district court may “revers[e] the decision of the
Commissioner of Social Security, with or without remanding
the cause for a rehearing,” Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (citing
42 U.S.C. § 405(g)) (alteration in original), but “the proper
course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation,” id.(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985)). Our case law precludes a district court from
remanding a case for an award of benefits unless certain
prerequisites are met. Burrell v. Colvin, 775 F.3d 1133, 1141
(9th Cir. 2014) (discussing Garrison v. Colvin, 759 F.3d 995(9th Cir. 2014)). The district court must first determine that
the ALJ made a legal error, such as failing to provide legally
sufficient reasons for rejecting evidence. Id. If the court
finds such an error, it must next review the record as a whole
and determine whether it is fully developed, is free from
conflicts and ambiguities, and “all essential factual issues
have been resolved.” Treichler, 775 F.3d at 1101. In
conducting this review, the district court must consider
whether there are “inconsistencies between [the claimant’s]
testimony and the medical evidence in the record,” id. at
1105, or whether the government has pointed to evidence in
the record “that the ALJ overlooked” and explained “how that
DOMINGUEZ V. COLVIN 9
evidence casts into serious doubt” the claimant’s claim to be
disabled, Burrell, 775 F.3d at 1141. Unless the district court
concludes that further administrative proceedings would serve
no useful purpose, it may not remand with a direction to
provide benefits. Id.
If the district court does determine that the “record has
been fully developed,” id., and there are no outstanding issues
left to be resolved, the district court must next consider
whether “the ALJ would be required to find the claimant
disabled on remand” if the “improperly discredited evidence
were credited as true.” Id. (quoting Garrison, 759 F.3d at
1020). Said otherwise, the district court must consider the
testimony or opinion that the ALJ improperly rejected, in the
context of the otherwise undisputed record, and determine
whether the ALJ would necessarily have to conclude that the
claimant were disabled if that testimony or opinion were
deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. Id. A
district court is generally not required to exercise such
discretion, however. See Connett v. Barnhart, 340 F.3d 871,
874–76 (9th Cir. 2003); Harman v. Apfel, 211 F.3d 1172,
1178 (9th Cir. 2000). District courts “retain ‘flexibility’ in
determining the appropriate remedy,” Burrell, 775 F.3d at
1141 (quoting Garrison, 759 F.3d at 1021), and “a reviewing
court is not required to credit claimants’ allegations regarding
the extent of their impairments as true merely because the
ALJ made a legal error in discrediting their testimony.”
Treichler, 775 F.3d at 1106. “In particular, we may remand
on an open record for further proceedings ‘when the record as
a whole creates serious doubt as to whether the claimant is, in
fact, disabled within the meaning of the Social Security
Act.’” Burrell, 775 F.3d at 1141 (quoting Garrison, 759 F.3d
at 1021); see also Connett, 340 F.3d at 874–76 (finding that
10 DOMINGUEZ V. COLVIN
a reviewing court retains discretion to remand for further
proceedings even when the ALJ fails to “assert specific facts
or reasons to reject [the claimant]’s testimony”).
III
We now apply these principles to determine whether the
district court abused its discretion in remanding this case for
further proceedings. The threshold requirement, that the ALJ
made a legal error in failing to provide legally sufficient
reasons for rejecting evidence, is met, because it is
undisputed that the ALJ erred in rejecting Dr. Bhakta’s
opinions.
We next turn to the question whether the record has been
fully developed and further administrative proceedings would
serve no useful purpose. Burrell, 775 F.3d at 1141. We
begin by considering Dr. Bhakta’s medical reports, which the
ALJ erred in discrediting.
The record includes Dr. Bhakta’s treatment notes from
2009 and 2010. On April 17, 2009, Dr. Bhakta’s notes state
that Dominguez reported “[n]o joint pain, swelling, injury, or
limitation of motion. No muscle weakness, pain, cramps.”
The doctor’s observations in the notes state, “no joint
inflamation, good muscle tone.” A check-the-box form
prepared by Dr. Bhakta on the same date, April 17, 2009,
stated that Dominguez could not bend, crawl, climb, stoop, or
balance, and could only occasionally use her hands and feet.
On October 19, 2009, Dominguez reported that she had no
joint pain, swelling, injury, or limitation of motion, and Dr.
Bhakta’s notes confirmed that there was no joint
inflammation and good muscle tone, and that he encouraged
her to exercise 30 minutes five times a week. But the check-
DOMINGUEZ V. COLVIN 11
the-box form prepared on the same date stated that
Dominguez could not use either of her feet, although she
could occasionally bend, crawl, climb, balance, or crouch. A
year later, on October 21, 2010, the treatment notes stated
that Dominguez was experiencing no joint pain, swelling,
injury or limitation of motion, and no muscle weakness, pain,
or cramps, which was confirmed by the doctor’s observations,
which found no joint inflammation and good muscle tone.
But the final check-the-box form in the record, dated October
21, 2010, states that Dominguez can use her hands only
occasionally and use her feet frequently.
Dr. Bhakta’s opinions, however, conflict in some respects
with his treatment notes. While Dr. Bhakta’s treatment notes
consistently indicate that Dominguez had no (or minor)
limitations of motion or pain, his check-the-box forms show
variously that Dominguez could only occasionally use her
hands and feet (in April 2009), could not use either of her feet
at all (in October 2009), and could use her feet frequently but
her hands only occasionally (in October 2010). These
inconsistencies raise significant questions regarding the
extent of Dominguez’s impairments.
Further, to the extent Dr. Bhakta’s check-the-box
opinions described significant musculoskeletal limitations,
they are inconsistent with the reports of other physicians. In
June 2009, Tharesh Udupa, a doctor of podiatric medicine,
noted Dominguez’s self-report that she had “[n]o physical
disability and activities of daily living were normal,” and
diagnosed only ingrown nails and plantar fasciitis, to be
treated by removing the nails; Dr. Udupa recommended
treating the foot pain with stretching, ice, and pain
medication. In February 2010, Dr. Stephanie Jenkinson,
M.D., examined Dominguez for back pain, leg pain, and hand
12 DOMINGUEZ V. COLVIN
numbness, and found her range of motion within normal
limits. Although Dominguez displayed only a 40 degree
range of motion in the lumbar region during the exam, Dr.
Jenkinson observed Dominguez flexing in the lumbar region
“well over 90 degrees” to fix her jeans. Dr. Jenkinson
concluded that Dominguez had no limitations other than
working at any heights due to her obesity. The record also
contains reports from two non-examining physicians, Dr. Roy
Brown, M.D., and Dr. James Hopkins, M.D. Both concluded
that Dominguez could stand for six hours in an eight hour
workday, and had no significant limitations preventing her
from employment.
Dominguez argues that because the ALJ made a legal
error in rejecting Dr. Bhakta’s opinion, the district court
should credit Dr. Bhakta’s opinions regarding the extent of
her limitations as true. If these opinions were deemed true,
Dominguez claims, the ALJ would have been required to find
her disabled. But this reverses the required order of analysis.
As we have previously explained, the district court must
“assess whether there are outstanding issues requiring
resolution before considering whether to hold that the
claimant's testimony is credible as a matter of law.”
Treichler, 775 F.3d at 1105. If such outstanding issues do
exist, the district court cannot deem the erroneously
disregarded testimony to be true; rather, the court must
remand for further proceedings. Id. at 1105–06. Here, there
are multiple inconsistencies that preclude the district court
from moving on to the next step.
Finally, Dominguez contends that other physical and
mental impairments identified in the medical record establish
that she is disabled. But it is up to the ALJ, not the court, to
determine how these impairments affect the formulation of
DOMINGUEZ V. COLVIN 13
Dominguez’s RFC. See 20 C.F.R. § 416.927(d)(2) (providing
that the final responsibility for deciding RFC is reserved to
the Commissioner). Moreover, Dominguez’s claims are
undercut by the ALJ’s adverse credibility determination,
which was supported by evidence of skepticism on the part of
her physicians about her claims of limitations as well as by
inconsistent reports from Dominguez herself. The ALJ’s
well-supported credibility concerns raise additional factual
issues that require resolution.
There is yet another factual issue outstanding. The record
is unclear as to the disability onset date of Dominguez’s first
application. In her second application for benefits,
Dominguez claimed an amended disability onset date of
March 1, 2006, and asked the ALJ to reopen the first
application. Because the ALJ determined that Dominguez
was not disabled, he did not address this motion or determine
whether Dominguez had an earlier disability onset date.
When further proceedings are necessary to determine the
onset date, it is appropriate to remand for those proceedings.
See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
In light of the inconsistencies, conflicts, and gaps in the
record that require further administrative proceedings, we do
not proceed to the next question, whether the ALJ would be
required to find Dominguez disabled if Dr. Bhakta’s
inconsistent reports were credited as true. See Burrell,
775 F.3d at 1141 (discussing Garrison, 759 F.3d at 1020–21).
Instead, we conclude that the district court did not err in
remanding this case to the ALJ for further factual
proceedings, rather than for payment of benefits.
AFFIRMED.