Held v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KURT H.,1, Case No. 6:19-cv-1987-SI

Plaintiff, OPINION AND ORDER

v.

ANDREW M. SAUL, Commissioner

of Social Security,

Defendant.

Laurie B. Mapes, P.O. Box 1241, Scappoose, OR 97056. Of Attorneys for Plaintiff.

Scott Erik Asphaug, Acting United States Attorney, and Renata Gowie, Assistant United States

Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland,

OR 97204; Stephen Dmetruk, Special Assistant United States Attorney, OFFICE OF GENERAL

COUNSEL, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA

98104. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Kurt H. (Plaintiff) seeks judicial review of the final decision of the Commissioner of the

Social Security Administration (Commissioner) denying his application for disability insurance

1 In the interest of privacy, this opinion uses only the first name and the initial of the last

name of the non-governmental party in this case. Where applicable, this opinion uses the same

designation for a non-governmental party’s immediate family member.

benefits (DIB). In response, the Commissioner conceded error and moved for an order

remanding for further administrative proceedings. Plaintiff replied, arguing that the Court should

remand this case for a finding of disability and the payment of benefits. For the reasons stated

below, the Court REVERSES the Commissioner’s finding that Plaintiff is not disabled and

REMANDS for further proceedings consistent with this Opinion and Order.

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

When the evidence is susceptible to more than one rational interpretation, the

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th

Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s

interpretation is a rational reading of the record, and this Court may not substitute its judgment

for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,

1196 (9th Cir. 2004). “[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) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th

Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554

F.3d at 1226.

BACKGROUND

A. Plaintiff’s Application

Plaintiff applied for DIB on February 24, 2015 alleging disability beginning April 7,

2009. AR 67-68. Plaintiff was born on June 18, 1950, and was 58 years old as of the alleged

disability onset. AR 67. The Commissioner originally found that Plaintiff was disabled as of

April 7, 2009. AR 80. After two doctors modified their opinions of Plaintiff’s impairments,

AR 88, 92, however, the Commissioner found that the disability onset date was December 1,

2015, AR 97. Plaintiff sought reconsideration of that decision. See AR 15, 98-111. Upon

reconsideration, the Commissioner found that Plaintiff was not disabled. AR 109.

Plaintiff requested a hearing before an Administrative Law Judge (ALJ) on January 5,

2017. AR 15. The ALJ held a hearing on April 5, 2018. At the hearing, Plaintiff amended his

alleged disability onset date from April 7, 2009 to June 17, 2010, the day before his sixtieth

birthday. AR 15. On September 6, 2018, the ALJ issued a decision denying Plaintiff’s claim for

benefits. AR 15-23. Plaintiff requested review of the hearing decision, which the Appeals

Council denied in October 2019. AR 6-8. Accordingly, the ALJ’s decision became the final

decision of the agency. Plaintiff seeks judicial review of the agency’s final decision.

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . has lasted or

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is

potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential

process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving

significant mental or physical duties done or intended to be done for pay

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing

such work, she is not disabled within the meaning of the Act. 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An

impairment or combination of impairments is “severe” if it significantly

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,

this impairment must have lasted or be expected to last for a continuous

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the

claimant does not have a severe impairment, the analysis ends. 20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

the listed impairments, the analysis continues. At that point, the ALJ must

evaluate medical and other relevant evidence to assess and determine the

claimant’s “residual functional capacity” (RFC). This is an assessment of

work-related activities that the claimant may still perform on a regular and

continuing basis, despite any limitations imposed by his or her

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis

proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC

assessment? If so, then the claimant is not disabled. 20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience,

is the claimant able to make an adjustment to other work that exists in

significant numbers in the national economy? If so, then the claimant is

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or

she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the

Commissioner must show that the claimant can perform other work that exists in significant

numbers in the national economy, “taking into consideration the claimant’s residual functional

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966

(describing “work which exists in the national economy”). If the Commissioner fails to meet this

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,

the Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ found that Plaintiff met the insured status requirements of the Social Security

Act (Act) through March 31, 2016, and proceeded to the sequential analysis. AR 17. At step one,

the ALJ found that, although Plaintiff had briefly attempted to work in 2011, Plaintiff had not

engaged in substantial gainful activity “from his alleged onset date of April 7, 2009 through his

date last insured of March 31, 2016. Id.2 At step two, the ALJ determined that Plaintiff suffered

2 Although the ALJ referenced Plaintiff’s alleged onset date as April 7, 2009, as

explained earlier, Plaintiff amended his alleged onset date to June 17, 2010 at the hearing.

medically determinable impairments of diabetes, status post total right hip replacement, and

status post bilateral carpal tunnel release. AR 18. The ALJ, however, found that Plaintiff had no

severe impairments. Id.

In reaching the step two decision, the ALJ discounted Plaintiff’s subjective symptom

testimony. AR 19-20. The ALJ rejected some of Plaintiff’s symptom testimony because “[t]here

are no [mental health] treatment records during the relevant period.” AR 20. The ALJ also

discounted Plaintiff’s symptom testimony because the ALJ found that Plaintiff’s testimony was

not consistent with objective medical evidence and that Plaintiff had made statements that

conflicted with his testimony. Id.

The ALJ also gave little weight to the opinions of both a reviewing state-agency

physician and an examining physician who opined that Plaintiff was “limited to less than the full

range of light exertional work.” AR 21. Similarly, the ALJ gave little weight to the opinion of a

reviewing state-agency psychologist who opined that Plaintiff had “severe mental impairments.”

AR 22. The ALJ assigned slightly more weight to the opinions of two state-agency medical

experts who reviewed Plaintiff’s records on reconsideration and, while not stating that Plaintiff

did not have a severe impairment, found the medical evidence insufficient to find that Plaintiff

was disabled. AR 21-22. Ultimately, the ALJ, disagreeing with most of the medical experts and

Plaintiff, concluded that “the evidence received at the hearing . . . including [Plaintiff’s] sworn

testimony, is sufficient to rate [Plaintiff’s] function and this level of functioning does not arise to

the level of any ‘severe’ impairment.” AR 21. Accordingly, based on the step two findings, the

ALJ found that Plaintiff was not disabled. AR 23.

DISCUSSION

Plaintiff argues that the ALJ failed to develop the record, improperly evaluated the

opinion testimony, and improperly discounted Plaintiff’s subjective symptom testimony. Plaintiff

requests that the Court credit as true the allegedly improperly discounted testimony and remand

for an immediate award of benefits. The Commissioner concedes that the ALJ erred in

evaluating Plaintiff’s impairments at step two, weighing the opinion evidence, and evaluating

Plaintiff’s symptom testimony. Commissioner does not agree, however, that the ALJ failed to

develop the record. Similarly, the Commissioner argues that remand for benefits is inappropriate

and that the Court should instead remand for further proceedings. Thus, the only issues before

the Court are (1) whether the ALJ failed to develop the record; and (2) whether to remand for

benefits or further proceedings. The Court addresses each in turn.

A. Development of the Record

Plaintiff argues that the ALJ failed to develop the record because the ALJ did not obtain

all of Plaintiff’s medical records. Plaintiff reported to the Commissioner that Plaintiff was treated

by Nurse Practitioner Kelly Bell from March 2003 through November 2014 for pain and post-

traumatic stress disorder (PTSD). AR 213. Plaintiff provided an address for Nurse Bell’s office

in Vancouver, Washington. Id. During Plaintiff’s hearing, Plaintiff testified—and Plaintiff’s

counsel reported to the ALJ—that he was unable to obtain records from Nurse Bell because her

office had permanently closed. AR 43. The Commissioner also made an unsuccessful attempt to

procure the records from Nurse Bell using the contact information provided by Plaintiff. AR 289.

The ALJ’s opinion does not mention Nurse Bell. Plaintiff’s opening brief cites a local newspaper

article reporting that Nurse Bell closed her clinic and surrendered her advanced registered nurse

practitioner license in April 2015.

An ALJ has “a special duty to fully and fairly develop the record and to assure that the

claimant’s interests are considered . . . even when the claimant is represented by counsel.”

Celeya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441,

443 (9th Cir. 1983)); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).

“An ALJ’s duty to develop the record further is triggered . . . when there is ambiguous evidence

or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes v.

Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citing Tonapetyan v. Halter, 242

F.3d 1144, 1150 (9th Cir. 2001)).

“The ALJ’s duty to supplement a claimant’s record is triggered by ambiguous evidence,

the ALJ’s own finding that the record is inadequate or the ALJ’s reliance on an expert’s

conclusion that the evidence is ambiguous.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir.

2005). That occurred in this case, and, therefore, further development of the record was required.

The Commissioner, after previously finding Plaintiff disabled, found on reconsideration that

there was insufficient evidence on which to conclude Plaintiff was disabled. AR 107-08. The

ALJ noted, “[t]here are no treatment records during the relevant period” for Plaintiff’s PTSD.

AR 20. Moreover, the medical expert opinion testimony that the ALJ afforded the most weight

was testimony finding that “longitudinal evidence is insufficient to rate the claimant’s

functioning prior to the claimant’s remote date last insured.” AR 21 (emphasis added).

Although further development of the record was needed, the ALJ did not err by failing to

request the records from Nurse Bell. Any request for Nurse Bell’s records by the ALJ would

have been futile. Neither Plaintiff nor Plaintiff’s counsel knew an address or contact information

for Nurse Bell aside from Nurse Bell’s invalid address. The Commissioner had already

unsuccessfully sought to obtain the records. The ALJ did not err by failing to send yet another

certain-to-be-unanswered request for Nurse Bell’s records. See Edwards v. Comm’r of Social

Sec., 2018 WL 3319128, at *3 (E.D. Mich. June 19, 2018) (ALJ did not err in failing to request

medical records when the plaintiff’s counsel had made unsuccessful efforts to obtain records and

no address or other contact information for the records’ custodian could be located); see also

Greenway v. Astrue, 353 F. App’x 88, 89 (9th Cir. 2009) (ALJ fulfilled his duty to develop the

record where “ALJ made independent (if unsuccessful) efforts to locate additional medical

records”); Hill Ogletree v. Saul, 2020 WL 3171354, at *11 (S.D.N.Y. June 15, 2020) (same).

Because the ALJ could not obtain Nurse Bell’s records, the ALJ should have further

developed the record with testimony from a reviewing medical expert. When “the medical

evidence is not definite concerning the onset date and medical inferences need to be made,

SSR 83-20 requires the [ALJ] to call upon the services of a medical advisor.” DeLorme v.

Sullivan, 913 F.2d 841, 848 (9th Cir. 1991). Here, there are no treating records from Plaintiff’s

alleged onset date of June 17, 2010 through early 2015 and the ALJ even credited expert medical

opinion describing evidence of Plaintiff’s functioning during the alleged disability period as

“insufficient.” AR 21. Moreover, the Commissioner concedes that a longitudinal overview of

“the nature, severity and limiting effects of the claimant’s medically determinable physical

impairments throughout the period at issue” by a medical expert is necessary. ECF 14 at 2.

Accordingly, on remand, the ALJ should call upon the services of a reviewing medical expert to

further develop the record concerning Plaintiff’s limitations throughout the alleged period of

disability.3

3 Plaintiff argues that additional medical expert testimony is unnecessary and further

development of the record in this manner is unwarranted. Plaintiff contends that crediting

existing medical expert opinions as true compels the conclusion that Plaintiff is disabled, and the

Court should remand to the ALJ with instructions to award Plaintiff DIB. As explained below,

however, the Court disagrees with Plaintiff that a remand for award of benefits is appropriate in

this case. Accordingly, the Court agrees with the Commissioner that further development of the

record with additional medical expert opinion is necessary.

B. Type of Remand

1. Standards

Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to

remand for further proceedings or for an award of benefits.” Holohan v. Massarini, 246 F.3d

1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to the

agency for additional investigation or explanation, a court has discretion to remand for

immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-

1100 (9th Cir. 2014). The issue turns on the utility of further proceedings. A court may not award

benefits punitively and must conduct a “credit-as-true” analysis on evidence that the ALJ

improperly rejected to determine whether a claimant is disabled under the Social Security

Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this

Court. Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The Court first determines whether

the ALJ made a legal error and then reviews the record as a whole to determine whether the

record is fully developed, the record is free from conflicts and ambiguities, and there is any

useful purpose in further proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015).

Only if the record has been fully developed and there are no outstanding issues left to be

resolved does the district court consider whether the ALJ would be required to find the claimant

disabled on remand if the improperly discredited evidence were credited as true. Id. If so, the

district court can exercise its discretion to remand for an award of benefits. Id. The district court

retains flexibility, however, and is not required to credit statements as true just because the ALJ

made a legal error. Id. at 408.

2. Application

The Commissioner concedes harmful legal error, so the first element in the credit-as-true

test is met in this case. In considering the remaining elements, the Court first considers the ALJ’s

conceded error at step two and then considers whether ambiguities and gaps remain beyond step

two, particularly with the onset date of Plaintiff’s alleged disability.

a. Severe, Medically Determinable Impairments

The Court finds that the record is free of conflicts and ambiguities that at step two of the

sequential analysis Plaintiff has several severe, medically determinable impairments. An

impairment is medially determinable when it is diagnosed by an acceptable medical source and

confirmed by “medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R.

§ 404.1521. A medically determinable impairment is severe if it impairs a plaintiff’s ability to do

basic work activities, including “walking, standing, sitting, lifting, pushing, pulling, reaching,

carrying, or handling”; “[u]nderstanding, carrying out, and remembering simple instructions”;

“[u]se of judgment”; “[r]esponding appropriately to supervision, co-workers and usually work

situations”; and “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 404.1522.

The step-two analysis is merely “a de minimis screening device to dispose of groundless

claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An impairment is usually found

to be severe unless “the evidence establishes [that the impairment is nothing more than] a slight

abnormality that has no more than a minimal effect on an individual’s ability to work.”

Webb, 433 F.3d at 686 (quoting Smolen, 80 F.3d at 1290). Conversely, the Ninth Circuit has held

that a plaintiff has no severe impairments where “none of the medical opinions included a

finding of impairment, a diagnosis, or objective test results.” Ukolov v. Barnhart, 420 F.3d 1002,

1006 (9th Cir. 2005).

Given that step two represents a de minimis screening standard, the Court has no trouble

concluding that the record is free of conflicts and ambiguities that Plaintiff has severe

impairments. Thus, the improperly discounted testimony by the medical experts that Plaintiff has

severe impairments should be credited as true.

Medical records reveal that Plaintiff was first diagnosed with chronic lumbosacral strain

in 1985. AR 475. Dr. Nolan, an examining physician, found that Plaintiff had chronic back, hip,

should and knee pain; a right elbow injury; and peripheral neuropathy. AR 1168. Indeed,

Dr. Nolan’s notes document that Plaintiff’s right hip joint was “destroyed.” Id. Dr. Brown, a

reviewing state-agency physician, gave great weight to Dr. Nolan’s findings and found that

Plaintiff was limited to light exertion. AR 95. Dr. Brown found that Plaintiff could occasionally

lift 20 pounds, frequently lift 10 pounds, and stand or sit for about six hours. AR 91. Plaintiff,

Dr. Brown found, had limited ability to push and pull and had occasional limitations climbing

ramps and stairs, climbing lappers, ropes, and scaffolds, stooping, kneeling, crouching, and

crawling. AR 91-92. These limitations resemble the physical limitations the Commissioner’s

regulations classify as severe. See 20 C.F.R. § 404.1522.

Similarly, Dr. Cole, an examining psychologist, diagnosed Plaintiff with PTSD with

dissociative symptoms, persistent somatic symptom disorder with predominant pain, and severe

major depressive disorder. AR 1154. Dr. Lewy, a reviewing state-agency psychologist, found

that Plaintiff had “severe” mental health impairments, causing moderate limitations in

concentration, persistence, and pace and social functioning. AR 93-94. These limitations

resemble the mental limitations that the Commissioner’s regulations classify as severe. See 20

C.F.R. § 404.1522.

No medical expert opinion conflicts with these findings. The agency reviewing doctors

on reconsideration did not conclude that Plaintiff did not have any severe impairments. Those

doctors instead concluded that the records were insufficient to determine disability. The ALJ

found that Plaintiff’s own testimony conflicted with his reports of severe impairments. The ALJ

noted that in 2011 Plaintiff briefly worked a job that required him to lift toilets, undermining

Plaintiff’s complaints of back pain. AR 20. Plaintiff testified, however, that he was let go from

that job because his impairments rendered him unable to do the required lifting. AR 40. Far from

undermining Plaintiff’s pain testimony, then, Plaintiff’s testimony confirms that he had physical

limitations related to his back pain.

Moreover, the Commissioner’s own brief implies that Plaintiff has severe impairments.

The Commissioner argues that determining Plaintiff’s “functional capacity” and “functional

limitations” is fraught with ambiguities and conflicts. Id. at 7-8. In the sequential analysis,

however, a determination of the plaintiff’s residual functioning capacity is necessary only after

finding that the plaintiff has severe impairments.

Thus, the Court finds that the record is clear that Plaintiff has severe impairments relating

to his back pain, hip pain, PTSD, and severe major depressive disorder. On remand, the ALJ

should credit as true Dr. Nolan’s, Dr. Brown’s, Dr. Cole’s, and Dr. Lewy’s opinions, at least to

determine Plaintiff’s severe impairments. The Court expects that crediting these medical experts’

opinions will result in a finding that Plaintiff has severe impairments related to his back pain, hip

pain, PTSD, and severe major depressive disorder. The ALJ may find additional impairments.

b. The Record Contains Gaps, Inconsistencies, and Ambiguities

The Court finds that gaps, conflicts, and ambiguities exist in the record as to what

limitations are caused by Plaintiff’s severe impairments and, most importantly, the onset date of

those limitations. The Court cannot remand for an award of benefits when the record as a whole

contains gaps, conflicts, or ambiguities or that further proceedings would serve a useful purpose.

Dominguez, 808 F.3d at 407. Inconsistencies between the opinions of different medical experts

can preclude a finding that the record is fully developed. Id. at 409 (finding that further

proceedings were necessary when the treating physician’s opinions were inconsistent with the

reports of other physicians). Similarly, the record is not fully developed if it contains significant

evidentiary gaps. See Schroeder v. Colvin, 2016 WL 4157205, at *3 (D. Or. Aug. 2, 2016)

(finding that the record was not fully developed when the record contained limited medical

evidence about the plaintiff’s ability to ambulate).

Here, the record teems with gaps, inconsistencies, and ambiguities. The record contains

several conflicts, most notably about the onset date of Plaintiff’s disability. For example,

Dr. Brown first opined that Plaintiff had been limited to sedentary work since at least April 7,

2009. AR 79-80. Dr. Brown later changed his opinion, finding instead that there was insufficient

evidence to determine Plaintiff’s limitation through November 30, 2015, and that Plaintiff was

limited to light work from December 1, 2015. AR 95, 97. Similarly, Dr. Lewy first opined that

Plaintiff had moderate limitations that render him capable only of “completion of basic and

familiar detailed tasks with occasional need to coordinate with others,” and “routine contacts

with the public, coworkers, and supervisors,” as of April 7, 2009. AR 77-78. Dr. Lewy, however,

also amended his opinion, instead concluding that there was insufficient evidence of Plaintiff’s

mental limitations before February 1, 2015. AR 88. Meanwhile, Plaintiff claims an onset date of

June 17, 2010. AR 15. Thus, there is significant conflict about the onset date of Plaintiff’s

potential disability.

Gaps in the record exacerbate that conflict. The few medical records available for review

are from either the mid-1980s, when Plaintiff was treated for a back injury he sustained during a

robbery at his workplace, See AR 328-1075 (records of Plaintiff’s 1980s workers compensation

claim), or from 2015, when Plaintiff filed his application, see, e.g., AR 1119-48 (July 2015

records from Tillamook Medical Group); AR 1149-56 (October 2015 report from Dr. Cole);

AR 1157-1164 (December 2015 through January 2016 progress notes); AR 1165-69 (January

2015 records from Dr. Nolan); AR 1170-81 (June 2016 through September 2016 treatment

records from The Orthopedic and Sports Medicine Center of Oregon). This is a significant gap in

evidence relating to a time where Plaintiff claims to have been disabled. If nothing else, as

discussed above, the lack of records during the relevant time require remand to the ALJ to

further develop the record regarding the onset date of Plaintiff’s disability. Plaintiff argues that

the record is nevertheless complete because the evidence that could fill this gap—Nurse Bell’s

records—are unavailable. That Nurse Bell’s records are unavailable, however, does not eliminate

the gap created by the records’ absence.

Finally, the record contains ambiguities. Although the Court believes the record contains

strong evidence that Plaintiff was disabled at least from December 1, 2015, and has accordingly

focused on conflicts and gaps in the records about the onset date of Plaintiff’s disability, the

Court notes that state-agency reviewers found insufficient evidence of any disability.

AR 106, 108. This represents a significant ambiguity in the record as to the limitations caused by

Plaintiff’s severe impairments.

Plaintiff argues that these gaps, ambiguities, and inconsistencies are irrelevant because

crediting even the least restrictive limitations assessed to Plaintiff compels the conclusion that

Plaintiff is disabled. Plaintiff’s argument relies on the Commissioner’s Medical-Vocational

Guidelines (the Grids), which the ALJ must consult at step five to determine whether the

Plaintiff is disabled. Lounsburry v. Barnhart, 468 F.3d 1111,1114-15 (9th Cir. 2006). As relevant

here, the Grids provide that a plaintiff of advanced age with a high school education whose

previous work experience was skilled or semiskilled but does not provide for transferable skills

is presumably disabled. 20 C.F.R. Part 404, Subpart P, App’x 2, § 202.06. The Grids also explain

that, when a plaintiff is “approaching retirement age (age 60 or older), there must be very little, if

any, vocational adjustment required in terms of tools, work processes, work settings, or the

industry.” Id. § 202.00(f). Thus, Plaintiff argues, because Plaintiff was of advanced age and had

no transferable skills, crediting Dr. Brown’s opinion that Plaintiff can perform light work and

Dr. Lewy’s opinion that Plaintiff has severe mental impairments, as well Plaintiff’s pain

testimony results in the conclusion that Plaintiff is disabled under the Grids.

Plaintiff’s argument fails for at least two reasons. First, crediting the opinions of

Dr. Brown and Dr. Lewy does not establish that Plaintiff was disabled as of his alleged disability

date of June 18, 2010. Dr. Brown’s least restrictive opinion is that Plaintiff was limited to light

work as of December 1, 2015. AR 95, 97. Dr. Lewy’s least restrictive opinion is that Plaintiff

had severe mental impairments as of February 1, 2015. AR 88. Even if uncontroverted—and,

again, on reconsideration, two state-agency experts found insufficient evidence to support a

finding of any disability, AR 106, 108—those opinions cannot establish that Plaintiff was

disabled in 2010.

Plaintiff asks the Court to credit his own testimony to establish disability as of June 18,

2010. That request, however, reveals the second problem with Plaintiff’s argument: it ignores the

Ninth Circuit’s instruction that a district court “assess whether there are outstanding issues

requiring resolution before considering whether” to credit testimony as true. See Treichler, 775

F.3d at 1105 (emphasis in original). There are gaps, conflicts, and ambiguities about the onset

date of Plaintiff’s disability, the Court cannot override those conflicts by crediting Plaintiff’s

testimony. See Schroeder, 2016 WL 4157205 at *4 (declining to credit as true a medical expert

opinion that, if credited, compelled the conclusion that Plaintiff was disabled because of

inconsistencies between various medical expert opinions and gaps in the record).

Because the Court finds that the record contains gaps, inconsistencies, and ambiguities,

especially as to the onset date of Plaintiff’s disability, the Court need not determine whether, if

the improperly rejected testimony were credited as true, the ALJ would be required to find that

Plaintiff is disabled. The Court declines to remand for award of benefits and instead remands for

further proceedings.

CONCLUSION

The Court REVERSES the Commissioner’s decision that Plaintiff was not disabled and

REMANDS for further proceedings consistent with this opinion.

IT IS SO ORDERED.

DATED this 29th day of March, 2021.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge