Ekola v. Colvin

Filing 27

ORDER The decision of the Commissioner is reversed, and this matter is remanded for an award of benefits. Signed by Judge H Russel Holland on 9/9/2014. (KMG)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

RENEE A. EKOLA,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, acting Commissioner )
of Social Security Administration,
)
)
Defendant.
)
__________________________________________)

No. 2:13-cv-1812-HRH

ORDER
This is an action for judicial review of the denial of disability benefits under Title II of
the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff has timely filed her opening brief,1 to
which defendant has responded.2 Oral argument was requested but is not deemed necessary.
Procedural Background
Plaintiff is Renee A. Ekola. Defendant is Carolyn W. Colvin, acting Commissioner of
Social Security.

1

Docket No. 21.

2

Docket No. 22.
-1-

On June 30, 2010, plaintiff filed an application for disability benefits under Title II of
the Social Security Act, alleging that she became disabled on March 15, 2008, but plaintiff later
amended her alleged onset date to April 5, 2009. Plaintiff alleged that she was disabled
because of depression, corneal dystrophy, fibromyalgia, migraine headaches, insomnia, and
anxiety. Plaintiff’s application was denied initially and upon reconsideration. After a hearing
on May 24, 2012, an administrative law judge (ALJ) denied plaintiff’s claim. On July 9, 2013,
the Appeals Council denied plaintiff’s request for review, thereby making the ALJ’s June 22,
2012 decision the final decision of the Commissioner. On September 4, 2013, plaintiff
commenced this action in which she asks the court to find that she is entitled to disability
benefits.
General Background
Plaintiff was born on April 5, 1959. She was 53 years old at the time of the hearing.
Plaintiff has a G.E.D., has taken some college courses, and has attended vocational school.
Plaintiff’s past relevant work includes work as a dental assistant and a lead dental assistant.
The ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the
Social Security Act through December 31, 2013.”3

3

Admin. Rec. at 19.
-2-

The ALJ then applied the five-step sequential analysis used to determine whether an
individual is disabled.4
At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since April 5, 2009, the alleged onset date....”5
At step two, the ALJ found that plaintiff had “the following severe impairments:
fibromyalgia; migraine headaches; irritable bowel syndrome; dysthymic disorder; and

4

The five steps are as follows:
Step one: Is the claimant presently engaged in substantial gainful
activity? If so, the claimant is not disabled. If not, proceed to step
two.
Step two: Is the claimant’s alleged impairment sufficiently severe
to limit ... her ability to work? If so, proceed to step three. If not,
the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R., pt.
404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform ... her past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow ... her to
adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not, the
claimant is disabled.

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
5

Admin. Rec. at 19.
-3-

generalized anxiety disorder....”6 The ALJ found plaintiff’s anterior basement dystrophy to
be non-severe because the majority of treatment for this condition was performed prior to the
alleged onset date; and plaintiff “denied worsening or blurred vision, or eye problems”
during the relevant period.7
At step three, the ALJ found that plaintiff did “not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1....”8 In particular, the ALJ considered Section 5.00
for digestive disorders, Section 11.00 for neurological disorders, and Section 12.00 for mental
disorders.9 The ALJ considered the “paragraph B” criteria and found that plaintiff had mild
restrictions of daily living; mild difficulties in social functioning; moderate difficulties with
regard to concentration, persistence, or pace; and had had no episodes of decompensation.10
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009).
The ALJ found that plaintiff retained

6

Admin. Rec. at 19.

7

Admin. Rec. at 19-20.

8

Admin. Rec. at 20.

9

Admin. Rec. at 20.

10

Admin. Rec. at 20-21.
-4-

the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except the claimant should never climb
ladders, ropes, or scaffolds. She retains the ability to occasionally
climb ramps and stairs, as well as kneel, crouch, and crawl. She
can frequently balance and stoop. In addition, the claimant can
occasionally engage in bilateral overhead reaching. She should
avoid concentrated exposure to extreme cold and hazards.
Furthermore, the claimant can understand, remember, and carry
out simple instructions and make simple work related
decisions.[11]
The ALJ found plaintiff’s pain and symptom statements less than credible because
plaintiff “has not generally received the type of medical treatment one would expect for a
totally disabled individual and the medical evidence of record is quite minimal.”12 More
specifically, the ALJ found that plaintiff’s treatment had been routine and conservative.13 The
ALJ also found that plaintiff “refused medication typically prescribed for fibromyalgia
without reason....”14 The ALJ noted that “the limited treatment is, in part, resulting from lack
of finances and/or insurance,” but still found that “the evidence of record does not support
[plaintiff’s] allegations.”15 The ALJ further noted that the fact that plaintiff’s symptoms were

11

Admin. Rec. at 21.

12

Admin. Rec. at 22.

13

Admin. Rec. at 22.

14

Admin. Rec. at 23.

15

Admin. Rec. at 22.
-5-

relatively well controlled with medication and injections lessened her credibility.16 The ALJ
also noted that in April 2010, plaintiff’s fibromyalgia was deemed stable.17 And, the ALJ
noted that plaintiff had had no actual mental health treatment and rarely took prescribed
medication for her mental impairments.18
The ALJ found it “[f]urther damaging to the claimant” that “treating physicians
consistently observed that she appeared healthy and in no acute distress.”19 The ALJ
explained that such findings were “in sharp contrast” to plaintiff’s allegations of pain and
disabling symptoms.20
The ALJ also found plaintiff’s pain and symptom statements less than credible based
on plaintiff’s daily activities.21 The ALJ noted that plaintiff “reported being able to prepare
meals, perform household chores, play with her grandchildren, care for her sick-in-laws,
drive a vehicle, use public transportation, shop outside the home, pay bills, attend church

16

Admin. Rec. at 23.

17

Admin. Rec. at 23.

18

Admin. Rec. at 24.

19

Admin. Rec. at 23.

20

Admin. Rec. at 23.

21

Admin. Rec. at 23-24.
-6-

services, and spend time with friend[s] and family.”22 The ALJ also emphasized that since
October 2011, plaintiff, with her husband’s help, has been caring for three of her grandchildren.23 The ALJ expressly found that the mental and physical capabilities necessary to
perform many of the activities of daily living that plaintiff described “replicate those
necessary for obtaining and maintaining employment.”24
The ALJ also found that plaintiff had made inconsistent statements.25 The ALJ noted
that plaintiff had once reported having 4-5 migraines per week but testified at the hearing
that she only had 2-3 per month.26 The ALJ also noted that plaintiff told her treating
physicians that she had no adverse side effects from her medications, but then testified that
her medications make her feel groggy.27 And, the ALJ also found it inconsistent that plaintiff
claimed her fibromyalgia was diagnosed in the 1990s but continued to work until 2008
because there was no evidence that plaintiff’s fibromyalgia had worsened over time.28

22

Admin. Rec. at 23.

23

Admin. Rec. at 24.

24

Admin. Rec. at 24.

25

Admin. Rec. at 24.

26

Admin. Rec. at 24.

27

Admin. Rec. at 24.

28

Admin. Rec. at 24.
-7-

The ALJ gave no weight to Dr. Prieve’s29 opinion because at the time he did his
consultative exam, he “was not properly licensed” and thus was not an acceptable medical
source.30 The ALJ only gave partial weight to Dr. Peetoom’s31 opinion because he opined that
plaintiff would have restrictions with social interaction but there was no evidence in the
record to support such a restriction and plaintiff did not report any deficiencies in this area.32
The ALJ stated that she was giving great weight to the opinions of Dr. Goerss33 and Dr.
29

John Prieve, D.O., examined plaintiff on September 25, 2010 and opined that plaintiff
could stand/walk for 4 hours; sit for 4-6 hours; could lift/carry 20 pounds occasionally and 10
pounds frequently; could occasionally climb, stoop, kneel, crouch and crawl; was unlimited
as to reaching; could frequently handle, finger, and feel; and should avoid working around
heights. Admin. Rec. at 341-342.
30

Admin. Rec. at 25.

31

On September 25, 2010, Greg Peetoom, Ph.D., evaluated plaintiff and opined that
plaintiff “is capable of understanding and remembering most work related instructions and
procedures”, “is capable of completing at least simple tasks, but she may struggle at times to
complete those tasks efficiently,” that “[s]ymptoms of depression, anxiety, and pain disorder
will likely interfere with her ability to sustain appropriate social interaction”, that “[s]he had
no difficulty accepting and following instructions[,] but [i]t may be difficult for her, ... to
accept perceived criticism from supervisors”, that “[s]ymptoms of depression and anxiety,
including limitations in attention and concentration, may interfere with her ability to
efficiently adapt to changes in routine”, and that “it may be difficult for her to adjust to
changes in routine and changes in work complexity[, but i]t does not appear that she is
precluded from this , but she may find it difficult at times.” Admin. Rec. at 334-335.
32

Admin. Rec. at 25.

33

On October 19, 2010, Jean Goerss, M.D., opined that plaintiff could occasionally
lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for 5 hours; sit for 6 hours;
was unlimited as to pushing and pulling; had limited near and far acuity in her left eye; and
should avoid concentrated exposure to extreme cold, fumes, odors, dusts, gases, and poor
(continued...)
-8-

Tomak34 but little weight35 to the opinions of Dr. Quinones36 and Dr. Pereyra.37 The ALJ gave
33

(...continued)
ventilation. Admin. Rec. at 77-79.
34

On September 28, 2010, Sheri Tomak, Psy.D, opined that plaintiff “is able to carry out
simple instructions, follow simple work-like procedures, and make simple-work related
decisions. [Claimant] appears to have a fair ability to sustain attention throughout extended
periods of time. [Claimant] appears to have a fair ability to perform at a consistent pace and
maintain a regular 40 hour work schedule.” Admin. Rec. at 80-81. Dr. Tomak opined that
plaintiff “has the ability to interact appropriately with the general public and co-workers.
[Claimant] appears to have an adequate ability to respond to supervisors [and] is able to
maintain personal hygiene/standards of dress.” Admin. Rec. at 81. Dr. Tomak further opined
that plaintiff “has a fair ability to respond appropriately to basic work setting changes.
[Claimant] appears capable of taking the appropriate precautions in hazardous situations and
utilizing transportation. [Claimant] likely has the ability to organize herself and independently set goals.” Admin. Rec. at 81.
35

Admin. Rec. at 25.

36

On February 10, 2011, Robert Quinones, D.O., opined that plaintiff could occasionally
lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for 6 hours; sit for 6 hours;
was unlimited as to push/pull; could occasionally climb ramps/stairs, kneel, crouch, and
crawl; could never climb ladders/ropes/scaffolds; could frequently balance and stoop; was
limited in reaching overhead; was unlimited as to handling, fingering, and feeling; and
should avoid concentrated exposure to extreme cold and hazards. Admin. Rec. at 95-97.
37

On January 31, 2011, Rosalia Pereyra, Psy.D., opined that plaintiff “has the ability to
remember and understand simple instructions as well as work place procedures. [Claimant]
likely has a fair ability to remember more detailed instructions.” Admin. Rec. at 97. She also
opined that plaintiff “is able to carry out simple instructions, follow simple work-like
procedures, and make simple work-related decisions. [Claimant] appears to have a fair
ability to sustain attention throughout extended periods of time. [Claimant] appears to have
a fair ability to perform at a consistent pace and maintain a regular 40 hour work schedule.”
Admin. Rec. at 98. She opined that plaintiff “has the ability to interact appropriately with the
general public and co-workers. The [claimant] appears to have an adequate ability to respond
to supervisors [and] is able to maintain personal hygiene/standards of dress.” Admin. Rec.
at 98. Dr. Pereyra further opined that plaintiff “has a fair ability to respond appropriately
(continued...)
-9-

great weight38 to Dr. Liszewski’s39 opinion. And, the ALJ gave little weight40 to Dr. Bhalla’s41
opinion.
The ALJ gave little weight to the lay testimony of plaintiff’s husband42 because he was
not “trained to make exacting observations as to dates, frequencies, types and degrees of
medical signs and symptoms, or of the frequency or intensity of unusual moods or
mannerisms[.]”43 The ALJ also gave this testimony little weight because plaintiff’s husband

37

(...continued)
to basic work setting changes. [Claimant] appears capable of taking the appropriate
precautions in hazardous situations and utilizing transportation. [Claimant] likely has the
ability to organize herself and independently set goals.” Admin. Rec. at 99.
38

Admin. Rec. at 25.

39

On April 10, 2012, Dr. Liszewski, plaintiff’s primary care physician, noted that
plaintiff’s fibromyalgia was stable, that her general physical health was “stable, no acute
medical issues” and that her general emotional health was “stable, affect appropriate.”
Admin. Rec. at 376 & 379.
40

Admin. Rec. at 26.

41

On May 17, 2012, Dr. Ravi Bhalla, plaintiff’s rheumatologist, opined that plaintiff
would be limited as to simple grasping with hands, lifting and carrying weights, sitting for
prolonged periods, walking, reaching, bending, and kneeling” and that “[l]ooking at the
overall picture I do feel that the patient is disabled for all competitive work requirements.”
Admin. Rec. at 413.
42

Plaintiff’s husband, Bill Ekola, completed two third-party function reports. Admin.
Rec. at 213-220 & 237-244.
43

Admin. Rec. at 26.
-10-

was not a disinterested third party and because his opinion was not consistent with “the
preponderance of the opinions and observations by medical doctors in this case.”44
At step four, the ALJ found that plaintiff was unable to perform any of her past
relevant work.45
At step five, the ALJ found that “there are jobs that exist in significant numbers in the
national economy that [plaintiff] could perform....”46 The ALJ, based on the testimony of the
vocational expert, found that plaintiff could work as a cashier, usher, or routing clerk.47
The ALJ concluded that “[t]he claimant has not been under a disability, as defined in
the Social Security Act, from April 5, 2009, through the date of this decision....”48
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner....” The court “properly affirms the Commissioner’s decision denying benefits
if it is supported by substantial evidence and based on the application of correct legal
standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is
44

Admin. Rec. at 26.

45

Admin. Rec. at 26.

46

Admin. Rec. at 27.

47

Admin. Rec. at 27.

48

Admin. Rec. at 28.
-11-

‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence
supports the ALJ’s decision, [the court] review[s] the administrative record as a whole,
weighing both the evidence that supports and that which detracts from the ALJ’s conclusion.’” Id. If the evidence is susceptible to more than one reasonable interpretation, the court
must uphold the Commissioner’s decision. Id. But, the Commissioner’s decision cannot be
affirmed “‘simply by isolating a specific quantum of supporting evidence.’” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ erred in finding her pain and symptom testimony less
than credible. “An ALJ engages in a two-step analysis to determine whether a claimant’s
testimony regarding subjective pain or symptoms is credible.” Garrison v. Colvin, --- F.3d
---, 2014 WL 3397218, at *15 (9th Cir. 2014). “‘First, the ALJ must determine whether the
claimant has presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged.’“ Id. (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “In this analysis, the claimant
is not required to show ‘that her impairment could reasonably be expected to cause the

-12-

severity of the symptom she has alleged; she need only show that it could reasonably have
caused some degree of the symptom.’” Id. (quoting Smolen v. Chater, 80 F.3d 1275, 1282 (9th
Cir. 1996)). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue
itself, or the severity thereof.’” Id. (quoting Smolen, 80 F.3d at 1282). “If the claimant satisfies
the first step of this analysis, and there is no evidence of malingering, ‘the ALJ can reject the
claimant’s testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.’” Id. at *16 (quoting Smolen, 80 F.3d at 1281). “This is not
an easy requirement to meet: ‘The clear and convincing standard is the most demanding
required in Social Security cases.’” Id. (quoting Moore v. Comm’r of Soc. Sec. Admin., 278
F.3d 920, 924 (9th Cir. 2002)). “In evaluating the claimant’s testimony, the ALJ may use
‘ordinary techniques of credibility evaluation.’” Molina v. Astrue, 674 F.3d 1104, 1112 (9th
Cir. 2012) (quoting Turner v. Comm’r of Social Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)).
“For instance, the ALJ may consider inconsistencies either in the claimant’s testimony or
between the testimony and the claimant’s conduct, unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of treatment, and whether the
claimant engages in daily activities inconsistent with the alleged symptoms[.]” Id. (internal
citations omitted). “While a claimant need not vegetate in a dark room in order to be eligible
for benefits, the ALJ may discredit a claimant’s testimony when the claimant reports
participation in everyday activities indicating capacities that are transferable to a work

-13-

setting[.]” Id. at 1112-13 (internal citations omitted). “Even where those activities suggest
some difficulty [in] functioning, they may be grounds for discrediting the claimant’s
testimony to the extent that they contradict claims of a totally debilitating impairment.” Id.
at 1113.
First, the ALJ found plaintiff’s pain and symptom statements less than credible because
plaintiff “has not generally received the type of medical treatment one would expect for a
totally disabled individual and the medical evidence of record is quite minimal.”49 Although
the ALJ noted that “the limited treatment is, in part, resulting from lack of finances and/or
insurance,” the ALJ still found that “the evidence of record does not support [plaintiff’s]
allegations.”50 But, it is not proper for an ALJ to discount pain and symptom statements on
the basis of lack of treatment when the evidence demonstrates an inability to afford
treatment. See Smolen, 80 F.3d at 1284 (Because claimant could not maintain a job, she had
no insurance and could not afford treatment. “Thus, the fact that [she] was not taking
medication is not a clear and convincing reason for discrediting her symptom testimony.”).
There was evidence in the record that plaintiff could not afford treatment.51 Thus, to the

49

Admin. Rec. at 22.

50

Admin. Rec. at 22.

51

Admin. Rec. at 44 & 376.
-14-

extent that the ALJ discounted plaintiff’s pain and symptom testimony based on a lack of
treatment, the ALJ erred.
A second reason given by the ALJ for discounting plaintiff’s pain and symptom
testimony was that the objective medical evidence did not support plaintiff’s statements. But
this “is exactly the type” of justification that the Ninth Circuit has “recognized the regulations
prohibit.” Robbins v. Social Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006). “‘To find the
claimant not credible, the ALJ must rely either on reasons unrelated to the subjective
testimony (e.g., reputation for dishonesty), on conflicts between his testimony and his own
conduct, or on internal contradictions in that testimony.’” Id. (quoting Light v. Social Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997)). Moreover, because Dr. Bhalla found multiple
trigger points on each examination,52 there is objective medical evidence to support plaintiff’s
statements.
The ALJ also discounted plaintiff’s pain and symptom testimony because plaintiff’s
treatment had been routine and conservative.53 The ALJ pointed out that “there is no
evidence of hospitalizations, pain clinic treatment, physical therapy, surgery or other similar
treatment for claimant’s alleged pain and fatigue associated with fibromyalgia, irritable bowel

52

Admin. Rec. at 351, 354-355, 397, 399, 402, 405, 408 & 412.

53

Admin. Rec. at 22.
-15-

syndrome, and migraine headaches.”54 The ALJ stated that “[i]t would seem that someone
with a condition as severe as is alleged by the claimant would seek more frequent and
aggressive medical care.”55 “‘[E]vidence of conservative treatment is sufficient to discount
a claimant’s testimony regarding severity of an impairment.’” Parra v. Astrue, 481 F.3d 742,
751 (9th Cir.2007) (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). And, while
plaintiff’s treatment for her headaches and her depression and anxiety may have been
conservative, there is nothing in the record that indicates that plaintiff’s treatment for her
fibromyalgia was conservative. Rather, the evidence shows that plaintiff was on pain
medication56 and often received injections57 when she went to see Dr. Bhalla. Thus, this was
not a clear and convincing reason to find plaintiff’s statements less than credible.
The ALJ also noted58 that the medical records indicate that plaintiff was tolerating her
medication for her fibromyalgia well without any significant side effects59 and that plaintiff

54

Admin. Rec. at 23.

55

Admin. Rec. at 23.

56

Admin. Rec. at 351, 395, 400, 403, 406 & 409.

57

Admin. Rec. at 355, 403, 406 & 409.

58

Admin. Rec. at 23.

59

Admin. Rec. at 349.
-16-

told Dr. Peetoom that she only takes her medication when she was having a bad night.60
“Impairments that can be controlled effectively with medication are not disabling for the
purpose of determining eligibility for SSI benefits.” Warre v. Comm’r of Social Sec. Admin.,
439 F.3d 1001, 1006 (9th Cir. 2006). However, the fact that plaintiff could tolerate various
medications without side effects does not necessarily mean that her fibromyalgia was well
controlled by medication.
The ALJ also noted that plaintiff “refused medication typically prescribed for
fibromyalgia without reason....”61 An unexplained failure to follow a prescribed course of
treatment can be a reason to find a claimant’s statements less than credible. Molina v. Astrue,
674 F.3d 1104, 1113 (9th Cir. 2012). However, although the ALJ correctly noted that plaintiff
refused a trial of Savella in November 2010,62 the ALJ failed to note that plaintiff then agreed
to begin taking Savella in March 2011.63 Thus, this was not a clear and convincing reason to
find plaintiff’s plaintiff’s statements less than credible.

60

Admin. Rec. at 328-29.

61

Admin. Rec. at 23.

62

Admin. Rec. at 355.

63

Admin. Rec. at 412.
-17-

The ALJ also made reference to Dr. Liszewski’s comment in April 2012 that plaintiff’s
fibromyalgia was stable.64 But, stability does not mean that plaintiff was symptom free. See
Petty v. Astrue, 550 F. Supp. 2d 1089, 1099 (D. Ariz. 2008) (“The Court initially notes that a
condition can be stable but disabling”). In addition, the fact that plaintiff may have been
“responding to treatment ... does not provide a clear and convincing reason for disregarding”
her testimony because “[n]o physician opined that any improvement would allow [her] to
return to work.” Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989).
The ALJ also found plaintiff’s credibility damaged by the fact that “treating physicians
consistently observed that she appeared healthy and in no acute distress.”65 This observation
was made on occasion,66 but in a medical context “acute” means “having a rapid onset, severe
symptoms, and a short course; not chronic”67 Plaintiff’s conditions were chronic, not acute.
Thus, the fact that physicians noted that she was not in acute distress is somewhat
meaningless.

The observation that plaintiff appeared healthy is similar to an ALJ’s

observation that a claimant did not appear to be in pain during a hearing, which the Ninth
Circuit has found to be an insufficient justification for finding a claimant less than credible.

64

Admin. Rec. at 23.

65

Admin. Rec. at 23.

66

Admin. Rec. at 324, 325, 360, 361, & 393.

67

Taber’s Cyclopedic Medical Dictionary A-32 (13 ed. 1977).
-18-

Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984). This was not a clear and convincing
reason to find plaintiff’s statements less than credible.
The ALJ also discounted plaintiff’s pain and symptom statements because plaintiff had
made inconsistent statements. First, the ALJ noted that plaintiff stated in January 2010, that
she had 4-5 headaches per week68 but at the administrative hearing in May 2012, plaintiff
testified that she had migraines only 2-3 times per month.69 These are not necessarily
inconsistent statements as one referred to headaches in general, and one referred to migraines
in particular. Moreover, it is plausible that the frequency of plaintiff’s headaches changed
over time. Second, the ALJ noted that plaintiff denied any side effects associated with her
fibromyalgia medication when seeing Dr. Bhalla70 but at the hearing she testified that her
medications made her feel groggy.71 Given that plaintiff was taking medication besides her
fibromyalgia medication,72 these statements are not necessarily inconsistent. Third, the ALJ
noted that plaintiff claimed she had been diagnosed with fibromyalgia in the 1990s, yet
plaintiff continued to work until 2008. Because the record did not indicate that plaintiff’s
fibromyalgia had gotten worse over time, the ALJ concluded that plaintiff had a “tendency
68

Admin. Rec. at 189.

69

Admin. Rec. at 45.

70

See, e.g., Admin. Rec. at 410.

71

Admin. Rec. at 55.

72

Admin. Rec. at 207.
-19-

to exaggerate, or misrepresent, integral information.”73 However, because the record does
not contain treatment notes from when plaintiff was first diagnosed with fibromyalgia, the
ALJ had little basis for comparing plaintiff’s current functioning with her functioning when
she was first diagnosed. This was not a clear and convincing reason to find plaintiff’s
statements less than credible.
The ALJ also found plaintiff’s pain and symptom statements less than credible based
on plaintiff’s daily activities.74 The ALJ noted that plaintiff cared for her grandchildren,75 who
lived with her and her husband, and that plaintiff prepared meals, did household chores,
played with her grandchildren, cared for her sick in-laws, drove a vehicle, shopped outside
the home, paid bills, attended church, and spent time with friends and family.76 The ALJ
expressly found that the mental and physical capabilities necessary to perform many of these
activities of daily living “replicate those necessary for obtaining and maintaining employment.”77
Nothing in the record indicates that plaintiff was performing any of these daily
activities a substantial amount of time each day, except perhaps for her taking care of the
73

Admin. Rec. at 24.

74

Admin. Rec. at 23-24.

75

The children were 2, 4, and 7 years old at the time of the hearing. Admin. Rec. at 52.

76

Admin. Rec. at 23-24.

77

Admin. Rec. at 24.
-20-

three grandchildren. This is the type of daily activity that could translate into the ability to
perform work on an ongoing and daily basis. But, the evidence does not suggest that plaintiff
was caring for three small children by herself. Rather, plaintiff testified that the two oldest
children go to school during the day so she is still able to take naps during the day and she
testified that her husband and another older granddaughter help take care of the children.78
Thus, this was not a clear and convincing reason to find plaintiff’s pain and symptom
statements less than credible.
In sum, although the ALJ gave numerous reasons for discounting plaintiff’s pain and
symptom statements, none of these reasons were clear and convincing Thus, the ALJ erred
in finding plaintiff’s pain and symptom statements less than credible.
Plaintiff next argues that the ALJ’s RFC was not supported by substantial evidence
because the ALJ gave great weight to the opinion of Dr. Goerss but little weight to the opinion
of Dr. Quinones.79 The ALJ gave Dr. Goerss’ opinion great weight because she “had the
opportunity to review the medical evidence in the record, up to” the point she gave her
opinion in October 2010. But, the ALJ gave little weight to the opinion of Dr. Quinones
because he “did not have the opportunity to review the medical record in its entirety[,]”80

78

Admin. Rec. at 52-53.

79

Admin. Rec. at 25.

80

Admin. Rec. at 25.
-21-

when he gave his opinion in February 2011. This explanation makes little sense because the
ALJ discounted the latter opinion based on the fact that the doctor had not reviewed a
sufficient portion of the medical record but credited the earlier opinion when there
necessarily would have been even less medical evidence to review.
More importantly, the ALJ’s RFC appears to have been primarily based on Dr.
Quinones’ opinion, an opinion to which the ALJ gave little weight. Dr. Quinones opined that
plaintiff could occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk
for 6 hours; sit for 6 hours; was unlimited as to push/pull; could occasionally climb
ramps/stairs, kneel, crouch, and crawl; could never climb ladders/ropes/scaffolds; could
frequently balance and stoop; was limited in reaching overhead; was unlimited as to
handling, fingering, and feeling; and should avoid concentrated exposure to extreme cold,
and hazards.81 In short, Dr. Quinones found that plaintiff could perform a limited range of
light work.
The ALJ found that plaintiff retained
the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except the claimant should never climb
ladders, ropes, or scaffolds. She retains the ability to occasionally
climb ramps and stairs, as well as kneel, crouch, and crawl. She
can frequently balance and stoop. In addition, the claimant can
occasionally engage in bilateral overhead reaching. She should
avoid concentrated exposure to extreme cold and hazards.
Furthermore, the claimant can understand, remember, and carry
81

Admin. Rec. at 95-97.
-22-

out simple instructions and make simple work related
decisions.[82]
Except for the last sentence in the ALJ’s RFC, the RFC is identical to Dr. Quinones’ opinion.
But because the ALJ rejected Dr. Quinones’ opinion, plaintiff argues that it necessarily follows
that the ALJ’s RFC is unsupported.
It is possible, as defendant suggests, that the ALJ confused the opinions of Dr. Goerss
and Dr. Quinones and that the ALJ intended to give more weight to Dr. Quinones’ opinion.
But, the court cannot speculate as to what the ALJ intended to do, but must review what the
ALJ actually did. Here, the ALJ stated she was giving great weight to Dr. Goerss’ opinion.
Dr. Goerss opined that plaintiff could occasionally lift/carry 20 pounds; frequently lift/carry
10 pounds; stand/walk for 5 hours; sit for 6 hours; was unlimited as to pushing and pulling;
had limited near and far acuity in her left eye; and should avoid concentrated exposure to
extreme cold, fumes, odors, dusts, gases, and poor ventilation.83 The ALJ apparently rejected
Dr. Goerss’ opinion that plaintiff was limited to sedentary work,84 but the ALJ did not explain
why she rejected this portion of Dr. Goerss’ opinion. While an ALJ may reject a portion of a
physician’s opinion that is contradicted by other physicians’ opinions, the ALJ must give

82

Admin. Rec. at 21.

83

Admin. Rec. at 77-79.

84

The vocational expert testified that someone with the limitations as found by Dr.
Goerss would be able to perform only sedentary jobs. Admin. Rec. at 63.
-23-

specific and legitimate reasons for doing so. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005). Because the ALJ failed to provide any reason for rejecting a portion of Dr. Goerss’
opinion, the ALJ erred.
This error was not harmless. An error is harmless if it is “inconsequential to the
ultimate nondisability determination in the context of the record as a whole.” Molina, 674
F.3d at 1122 (internal citation omitted). If the ALJ had actually given great weight to the
entirety of Dr. Goerss’ opinion, as the ALJ stated she was doing, then plaintiff would have
been disabled under the Medical-Vocational Guidelines. Under Medical-Vocational Grid
Rule 201.14, which applies to sedentary work, plaintiff would be disabled because she is
approaching advanced age, she has the equivalent of a high school education, and her past
work was skilled or semi-skilled but the skills are not transferable.
Finally, plaintiff argues that the ALJ erred in rejecting Dr. Bhalla’s opinion. Dr. Bhalla
opined that plaintiff would be limited as to simple grasping with hands, lifting and carrying
weights, sitting for prolonged periods, walking, reaching, bending, and kneeling and that
“[l]ooking at the overall picture I do feel that the patient is disabled for all competitive work
requirements.”85 “As a general rule, more weight should be given to the opinion of a treating
source than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995). But, “if the treating doctor’s opinion is contradicted by another

85

Admin. Rec. at 413.
-24-

doctor, the Commissioner may not reject this opinion without providing ‘specific and
legitimate reasons’ supported by substantial evidence in the record for so doing.” Id.
(quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Dr. Bhalla’s opinion was
contradicted by the opinion of Dr. Quinones and thus the ALJ was required to give specific
and legitimate reasons for rejecting Dr. Bhalla’s opinion.
The ALJ gave four specific reasons for rejecting Dr. Bhalla’s opinion. The ALJ rejected
Dr. Bhalla’s opinion because it addressed an issue reserved to defendant, it was inconsistent
with Dr. Bhalla’s treatment notes, it was inconsistent with plaintiff’s reported activities of
daily living, and it was based on plaintiff’s subjective complaints. Plaintiff argues that none
of these were legitimate reasons.
Dr. Bhalla’s opinion that plaintiff “is disabled for all competitive work requirements”86
does address an issue that is reserved to defendant, namely whether plaintiff is disabled.
However, “[a] treating physician’s opinion on disability, even if controverted, can be rejected
only with specific and legitimate reasons supported by substantial evidence in the record.”
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “[R]easons for rejecting a treating
doctor’s credible opinion on disability are comparable to those required for rejecting a
treating doctor’s medical opinion.” Id. Thus, the fact that Dr. Bhalla opined about the
ultimate issue of disability is not a legitimate reason in and of itself for rejecting his opinion.

86

Admin. Rec. at 413.
-25-

The second reason given by the ALJ, that Dr. Bhalla’s opinion was not consistent with
his treatment notes, was not legitimate because plaintiff’s physical examinations consistently
revealed positive trigger points87 and her course of treatment included repeat injection
therapy.88 Contrary to defendant’s contention, it was not inconsistent for Dr. Bhalla to opine
that plaintiff would have some limitations in lifting, carrying, walking and standing, when
he commonly observed that plaintiff had normal motor strength and a normal gait89 because
a normal gait and normal motor strength do not necessarily mean that plaintiff would not
have functional limitations. Nor was the fact that PA Nelson encouraged plaintiff to increase
her physical activity90 inconsistent with Dr. Bhalla’s opinion that plaintiff would be limited
in many physical activities. A recommendation to increase physical activity does not mean
that plaintiff’s ability to engage in physical activities would be unlimited.
The third reason given by the ALJ, that Dr. Bhalla’s opinion was inconsistent with
plaintiff’s reported activities of daily living, was also not legitimate. As discussed above,
plaintiff’s activities of daily living do not suggest that she is capable of working.
Finally, it was not legitimate for the ALJ to reject Dr. Bhalla’s opinion because it was

87

Admin. Rec. at 351, 354-355, 397, 399, 402, 405, 408 & 412.

88

Admin. Rec. at 355, 403, 406 & 409.

89

Admin. Rec. at 351, 399, 402, 405-406, & 408.

90

Admin. Rec. at 355.
-26-

based on plaintiff’s subjective complaints. “A physician's opinion of disability [which is]
premised to a large extent upon the claimant's own accounts of his symptoms and limitations
may be disregarded where those complaints have been properly discounted.” Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal citations omitted). But,
because the ALJ erred in finding plaintiff’s subjective complaints less than credible, this was
not a proper reason for discounting Dr. Bhalla’s opinion. In addition, this was not a
legitimate reason because Dr. Bhalla did not question plaintiff’s credibility and because
fibromyalgia is diagnosed primarily based on subjective complaints.91
Because the ALJ erred as to plaintiff’s credibility, Dr. Bhalla’s opinion, and Dr. Goerss’
opinion, the court must determine whether to remand this matter for an award of benefits or
for further proceedings. “Remand for further administrative proceedings is appropriate if
enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.
2004) (emphasis omitted). “Conversely, where the record has been developed fully and
further administrative proceedings would serve no useful purpose, the district court should
remand for an immediate award of benefits.” Id.
More specifically, the district court should credit evidence that
91

Dr. Bhalla wrote that the “[p]rognosis of [plaintiff’s] diseases can be extremely
variable, and there are frequent flare ups with changes in the weather and stress. I must rely
on the patient’s self-evaluation of his/her symptoms as well as the reported effect of their
specific work tasks on the symptoms. The patient has been consistent and believable in the
patient’s reports of the patient’s level of pain, fatigue, and limitations on the patient’s daily
function due to these symptoms.” Admin. Rec. at 413.
-27-

was rejected during the administrative process and remand for
an immediate award of benefits if (1) the ALJ failed to provide
legally sufficient reasons for rejecting the 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.
Id. However, the court is required “to remand for further proceedings when, even though
all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole
creates serious doubt that a claimant is, in fact, disabled.” Garrison, 2014 WL 3397218, at *21.
Here, a remand for an award for benefits is appropriate. Plaintiff testified that she
needs to lay down for three hours during an 8-hour day due to pain and fatigue,92 and the
vocational expert testified that a person with such a limitation would not be able to perform
any work.93 In addition, if Dr. Bhalla’s opinion is credited as true, then plaintiff would be
disabled. There is no doubt, if the record is considered as a whole, that plaintiff is disabled.
Conclusion
The decision of the Commissioner is reversed, and this matter is remanded for an
award of benefits.
DATED at Anchorage, Alaska, this 9th day of September, 2014.
/s/ H. Russel Holland
United States District Judge

92

Admin. Rec. at 44.

93

Admin. Rec. at 64.
-28-