April Dominguez v. Carolyn Colvin

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,

Defendant-Appellee. 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

Before: Michael J. Melloy,* Sandra S. Ikuta,

and Andrew D. Hurwitz, Circuit Judges.

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.

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

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

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

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

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,

DOMINGUEZ V. COLVIN 5

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.

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

6 DOMINGUEZ V. COLVIN

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

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

DOMINGUEZ V. COLVIN 7

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

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

8 DOMINGUEZ V. COLVIN

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

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

DOMINGUEZ V. COLVIN 9

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

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”). Only when

all factual issues in the record have been resolved,

overwhelming evidence establishes that the claimant is

disabled, and the government points to no evidence to the

contrary, have we held a district court abused its discretion in

failing to remand for benefits. See Garrison, 759 F.3d at

1022.

III

We now apply these principles to determine whether the

district court abused its discretion in remanding this case for

10 DOMINGUEZ V. COLVIN

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-

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.

DOMINGUEZ V. COLVIN 11

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

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

12 DOMINGUEZ V. COLVIN

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’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

DOMINGUEZ V. COLVIN 13

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.