REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Plaintiff filed a complaint on September 22, 2011, seeking review of the Commissioner's denial of disability benefits. Plaintiff filed a motion for summary judgment and/or remand on April 17, 2012. Defendant filed a cross-motion for summary judgment on May 31, 2012. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed September 23, 2011.

BACKGROUND

Plaintiff asserts disability since December 27, 2004, based on alleged cervical and lumbar problems and depression (Administrative record ("A.R.") 29-46, 116-17, 162, 164, 168). Plaintiff testified that he suffers from depression and intense physical pain, and that he lacks the exertional capacity to work (A.R. 33-46).

During 2008-2009, Plaintiff's treating orthopedists (Drs. Jarminski and Capen) directed Plaintiff not to work (A.R. 201-61). Dr. Jarminski prepared a supplemental report dated August 13, 2010, in which Dr. Jarminski expressed his continuing belief that Plaintiff should receive surgery, notwithstanding an opinion from Dr. Pashman, an orthopedic surgeon, that the prospects for successful surgery "may be no better than a coin flip" (A.R. 292, 316). Plaintiff has expressed a desire for the surgery, despite having been advised of the uncertain prospects of success (A.R. 201, 224-25, 236, 248, 259, 261, 292). An insurance carrier reportedly has refused to authorize the surgery (A.R. 296). Dr. Kauss, a psychologist, administered extensive psychological tests to Plaintiff in March of 2010, diagnosed major depressive disorder, and rated Plaintiff's Global Assessment of Functioning ("GAF") at 50 (A.R. 294-303).

The ALJ found Plaintiff has no severe mental impairment, has severe degenerative disc disease of the cervical spine and lumbar spine, but retains the residual functional capacity to perform light work (A.R. 12-13). The ALJ criticized the alleged lack of record evidence of medical treatment, and deemed Plaintiff's testimony not credible (A.R. 13-18). The Appeals Council denied review (A.R. 1-4).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). The reviewing court may consider issues not raised before the Appeals Council. See Sims v. Apfel, 530 U.S. 103 (2000); Womack v. Astrue, 2008 WL 2486524, at *5 (W.D. Okla. June 19, 2008).

DISCUSSION

For the reasons discussed below, the matter should be remanded for further administrative proceedings pursuant to sentence four of 42 U.S.C. section 405(g).

I. The ALJ Erred in Finding Non-Severe Plaintiff's Alleged Psychological Impairment.

Social Security Ruling ("SSR") 85-281 governs the evaluation of whether an alleged impairment is "severe":

See also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (the severity concept is "a de minimis screening device to dispose of groundless claims").

In the present case, the medical evidence does not "clearly establish [ ]" the non-severity of Plaintiff's alleged psychological impairment. Dr. Kauss, an examining psychologist, appeared to deem Plaintiff's alleged psychological impairment not only severe but disabling (A.R. 301-303). Dr. Kauss rated Plaintiff's GAF at 50, which "indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Morgan v. Commissioner, 169 F.3d 595, 598 n.1 (9th Cir. 1999); accord Tagger v. Astrue, 536 F.Supp.2d 1170, 1173 n.4 (C.D. Cal. 2008) (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. 2000)) (A.R. 301). At the hearing before the ALJ, Plaintiff testified that he had been seeing Dr. Levy, a psychiatrist, for three months, although the administrative record did not include any treatment notes from a Dr. Levy (A.R. 32-33). Plaintiff reportedly also has been taking psychiatric medication (A.R. 39-40, 175). The only expert opinion of record concerning Plaintiff's alleged psychological impairment is that of Dr. Kauss.

The ALJ's decision to reject the only expert psychological opinion of record and to find Plaintiff's alleged psychological impairment non-severe violated SSR 85-28 and the Ninth Circuit authorities cited above.2 The evidence fails to establish "clearly" that the effect of Plaintiff's alleged psychological impairment on his ability to work is "no more than minimal."

II. The ALJ Erred in the Evaluation of Evidence from Plaintiff's Treating Physicians.

A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion. . . This is especially true when the opinion is that of a treating physician") (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to treating physician opinions). Even where the treating physician's opinions are contradicted,3 "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted).

In the present case, the ALJ appears to have rejected the treating physicians' opinions without articulating "specific, legitimate" reasons for doing so. The ALJ cited the contrary opinions of non-treating physicians Dr. Sourehnissani (who opined Plaintiff is not disabled) and Dr. Pashman (who opined Plaintiff should not have surgery)4 (A.R. 15). However, the contradiction of a treating physician's opinion by another physician's opinion triggers rather than satisfies the requirement of stating "specific, legitimate reasons." See, e.g., Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2009); Orn v. Astrue, 495 F.3d at 631-33; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).

III. The ALJ Erred in the Evaluation of Plaintiff's Credibility.

When the ALJ determines that a claimant's testimony regarding pain severity is not credible, the ALJ must make "specific, cogent" findings, supported in the record, to justify the ALJ's determination. Lester v. Chater, 81 F.3d at 834; see Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988).5

Read liberally, the ALJ's decision in the present case appears to suggest four bases for rejecting Plaintiff's credibility: (1) the objective medical evidence; (2) there assertedly is "very little evidence of treatment . . ., there are no treating records whatsoever from Dr. Capen in the file . . . [Plaintiff] has never undergone any surgery . . ."; (3) Plaintiff admitted he can do "some light housework"; and (4) Plaintiff uses a cane although a consultative examiner indicated Plaintiff could ambulate "across the room" without a cane (A.R. 16-17). As discussed below, these bases are legally insufficient to support the ALJ's credibility determination on the present record.

As to the first basis, the absence of fully corroborative medical evidence cannot form the sole basis for rejecting the credibility of a claimant's subjective complaints. See Varney v. Secretary, 846 F.2d at 584; Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ("Burch") ("lack of medical evidence" can be "a factor" in rejecting credibility, but cannot "form the sole basis"). Thus, if the other three bases are insufficient, this first basis cannot adequately support the credibility determination.

As to the second basis, the ALJ materially mischaracterized the record. The record reflects that Plaintiff has undergone significant treatment for his cervical and lumbar problems, including physical therapy, multiple epidural injections, acupuncture, and strong prescription pain medication (A.R. 170-71, 175, 279, 291, 316). Contrary to the ALJ's assertion, there are treating records for Dr. Capen within the administrative record (A.R. 201-02, 261-62). Plaintiff and his treating physicians reportedly have clamored for surgery, evidently regarding surgery as a gamble worth taking, nothwithstanding the distinct possibility that surgery will not significantly alleviate Plaintiff's pain (A.R. 316). Under these circumstances, the fact that Plaintiff has not actually received surgery does not undercut in any way Plaintiff's testimony regarding the alleged severity of his pain. The ALJ's mischaracterization of the record of Plaintiff's treatment fatally infects the credibility determination. See Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 1999) (ALJ's inaccurate characterization of the evidence of record rendered ALJ's credibility determination invalid).

As to the third basis, true inconsistency between daily activities and a disabling level of pain could support an adverse credibility determination. See generally Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). However, Plaintiff's admission that he can do "about 15 to 20 mins." of light housework each day (A.R. 163) is not truly inconsistent with a disabling level of pain. See Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) ("Vertigan") ("the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability."); Gallant, 753 F.2d at 1453-55 (fact that claimant could cook for himself and family members as well as wash dishes did not preclude a finding that claimant was disabled due to constant back and leg pain).6

As to the fourth basis, Plaintiff's use of a cane despite the consultative examiner's observation of unaided ambulation "across the room" is not particularly probative of Plaintiff's credibility, given Dr. Jarminski's expressed belief that Plaintiff needs the use of a "walking cane" (A.R. 224). Again, the ALJ failed to articulate sufficient reasons for rejecting the opinion of Plaintiff's treating physician and preferring the opinion of a non-treating physician. See Section II, supra.

IV. The ALJ Erred in Failing to Develop the Record More Fully.

"The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered. This duty exists even when the claimant is represented by counsel." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). "In cases of mental impairments, this duty is especially important." DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). Section 404.1512(e) of 20 C.F.R. provides that the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all of the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." See Smolen v. Chater, 80 F.3d at 1288 ("If the ALJ thought he needed to know the basis of Dr. Hoeflich's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record") (citations omitted).

In the present case, the ALJ criticized the administrative record's relative lack of orthopedic treatment records and total lack of psychiatric treatment records, but made no attempt to expand the administrative record. The ALJ did not attempt to re-contact Plaintiff's treating orthopedists for additional explanation or documentation. The ALJ did not attempt to contact Dr. Levy, reportedly Plaintiff's treating psychiatrist. Instead, the ALJ appears to have presumed the non-existence of any additional medical evidence (and perhaps the non-existence of Dr. Levy) (A.R. 16-17). The ALJ thereby erred. See id.

V. Remand is Appropriate.

The harmless error rule applies in the social security context. See Stout v. Commissioner, 454 F.3d 1050, 1054 (9th Cir. 2006). However, the potential harmfulness of the errors discussed above are "apparent from the circumstances," within the meaning of McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011).

When a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984).

Plaintiff contends that the Court should credit Plaintiff's testimony as true and direct the payment of disability benefits to Plaintiff. The "credit as true" rule Plaintiff seeks to invoke is not mandatory. See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ("Connett") (remand is an option where the ALJ fails to state sufficient reasons for rejecting a claimant's excess symptom testimony); but see Lingenfelter v. Astrue, 504 F.3d at 1041 n.12 (appearing to suggest that remand is not an option where the ALJ failed to state sufficient reasons for rejecting a claimant's excess symptom testimony); Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to cite Connett for the proposition that "[w]hen an ALJ's reasons for rejecting the claimant's testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant's testimony, we remand for a calculation of benefits") (quotations omitted); see also Vasquez v. Astrue, 572 F.3d 586, 599-601 (9th Cir. 2009) (court need not "credit as true" improperly rejected claimant testimony where there are outstanding issues that must be resolved before a proper disability determination can be made). The record requires additional development before a proper disability determination can be made. The Court declines to apply the non-mandatory "credit as true" rule under the circumstances of this case.

The Ninth Circuit's decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ("Harman") also does not compel a reversal directing the payment of benefits. In Harman, the Ninth Circuit stated that improperly rejected medical opinion evidence should be credited and an immediate award of benefits directed where "(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited." Harman, at 1178 (citations and quotations omitted). Assuming, arguendo, the Harman holding survives the Supreme Court's decision in INS v. Ventura, 537 U.S. at 16,7 the Harman holding does not direct reversal of the present case. Here, the Administration must recontact Plaintiff's treating physicians concerning "outstanding issues that must be resolved before a determination of disability can be made." Further, it is not clear from the record that the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability were the opinions of Plaintiff's treating orthopedists credited. See Luna v. Astrue, 623 F.3d at 1035 (remand appropriate where the improperly rejected treating physician opinion failed to identify a disability onset date).

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) denying Plaintiff's and Defendant's motions for summary judgment; and (3) directing that Judgment be entered reversing in part the decision of the Commissioner and remanding the matter for further administrative action consistent with this Report and Recommendation.