Sanderson v. Colvin
MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED: Plaintiff's Petition for Review (Dkt. 1 ) is GRANTED. This action shall be REMANDED to the Commissioner for further proceedings. This Remand shall be considered a sentence four remand, consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Signed by Judge Candy W. Dale. (Attachments: # 1 Exhibit)((klw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MARCELLA J. SANDERSON,
Case No. 1:16-cv-00242-CWD
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Currently pending before the Court is Marcella Sanderson’s Petition for Review of
the Respondent’s denial of social security benefits, filed on June 17, 2016. (Dkt. 1.) The
Court has reviewed the Petition for Review and the Answer, the parties’ memoranda, and
the administrative record (AR), and for the reasons that follow, will remand the decision
of the Commissioner.
MEMORANDUM DECISION AND ORDER - 1
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on September 18, 2012. This application was denied initially and on
reconsideration, and a hearing was held on February 19, 2014, before Administrative
Law Judge (ALJ) MaryAnn Lunderman. After hearing testimony from Petitioner and a
vocational expert, ALJ Lunderman issued a decision on May 27, 2014, finding Petitioner
not disabled. Petitioner timely requested review by the Appeals Council, which denied
her request for review on April 13, 2016.
Petitioner appealed this final decision to the Court. The Court has jurisdiction to
review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the alleged disability onset date of January 3, 2012, Petitioner was
forty-five years of age. Petitioner has a high school education, and her prior work
experience includes work as a personnel clerk, a bookkeeper, and a coffee house worker.
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantial gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since her alleged onset
date of January 3, 2012. At step two, it must be determined whether the claimant suffers
from a severe impairment. The ALJ found Petitioner’s discogenic and degenerative
disorder of the back, mild degenerative changes of the right shoulder, fibromyalgia, and
MEMORANDUM DECISION AND ORDER - 2
obesity severe within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found Petitioner’s impairments did not meet or equal the criteria
for the listed impairments, specifically considering Petitioner’s fibromyalgia and obesity
under Section 1.04 (disorders of the spine). The ALJ determined none of Petitioner’s
impairments met or equaled the criteria for the listed impairment considered.
If a claimant’s impairments do not meet or equal a listing, the Commissioner must
assess the claimant’s residual functional capacity (RFC) and determine, at step four,
whether the claimant has demonstrated an inability to perform past relevant work. In
assessing Petitioner’s functional capacity, the ALJ determines whether Petitioner’s
complaints about the intensity, persistence and limiting effects of her pain are credible.
Here, the ALJ found Petitioner’s complaints not entirely credible. Based upon the
adverse credibility finding, the ALJ next rejected the opinions of Petitioner’s treating
physician, Dr. Hicks, and the third party statements of Petitioner’s husband, a co-worker,
and a neighbor, on the grounds that these witnesses simply “parroted the subjective
complaints already testified to and reported by the claimant.” (AR 27.) After so doing,
the ALJ determined Petitioner retained the RFC to perform light work, including her past
work as a personnel clerk, bookkeeper, and coffee house worker, with limitations on
climbing, overhead reaching with her right upper extremity, and no direct exposure to
If a claimant demonstrates an inability to perform past relevant work, the burden
MEMORANDUM DECISION AND ORDER - 3
shifts to the Commissioner to demonstrate, at step five, that the claimant retains the
capacity to make an adjustment to other work that exists in significant levels in the
national economy, after considering the claimant’s residual functional capacity, age,
education and work experience. Here, the ALJ found also that Petitioner retained the
ability to perform the requirements of representative occupations such as office helper,
mail clerk, and counter clerk, all classified as light work. Consequently, the ALJ
determined Petitioner was not disabled.
STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “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); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
MEMORANDUM DECISION AND ORDER - 4
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). 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). It is more than a scintilla but less than a
preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the Petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
When reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard a claimant’s
self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where
MEMORANDUM DECISION AND ORDER - 5
the ALJ makes a careful consideration of subjective complaints but provides adequate
reasons for rejecting them, the ALJ’s well-settled role as the judge of credibility will be
upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th
Petitioner believes the ALJ erred at step four. Specifically, Petitioner argues the
ALJ erred in rejecting Petitioner’s subjective complaints, failed to provide germane
reasons for rejecting lay witnesses’ statements, and erred in rejecting the opinion of
treating physician Laurence V. Hicks, D.O. The Court will discuss each assignment of
error in turn.
The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). The ALJ’s findings must be supported by specific, cogent reasons. Reddick, 157
F.3d at 722. If a claimant produces objective medical evidence of an underlying
impairment, an ALJ may not reject a claimant’s subjective complaints of pain based
solely on lack of medical evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).
See also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (holding that an
ALJ may not discredit a claimant’s subjective testimony on the basis that there is no
objective medical evidence that supports the testimony).
When assessing the credibility of a claimant's testimony regarding subjective pain
MEMORANDUM DECISION AND ORDER - 6
or the intensity of symptoms, the ALJ engages in a two-step analysis. Vasquez v. Astrue,
572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must determine whether there is
“objective medical evidence of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms alleged.” Id. If the claimant has
presented such evidence, and there is no evidence of malingering, the ALJ must give
“specific, clear and convincing reasons” to reject the claimant's testimony about the
severity of the symptoms. Id. At the same time, the ALJ is not “required to believe every
allegation of disabling pain, or else disability benefits would be available for the asking, a
result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989).
When evaluating the claimant’s testimony, the ALJ may use “ordinary techniques
of credibility evaluation.” Turner v. Comm’r of Soc. 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, id.; “unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course of
treatment,” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); and “whether the
claimant engages in daily activities inconsistent with the alleged symptoms,” Lingenfelter
v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). While a claimant need not “vegetate in a
dark room” to be eligible for benefits, Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir.
1987), the ALJ may discredit a claimant's testimony when the claimant reports
participation in everyday activities indicating capacities that are transferable to a work
MEMORANDUM DECISION AND ORDER - 7
setting, see Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Even
where those activities suggest some difficulty functioning, they may be grounds for
discrediting the claimant's testimony to the extent they contradict claims of a totally
debilitating impairment. See Turner, 613 F.3d at 1225.
The reasons an ALJ gives for rejecting a claimant’s testimony must be supported
by substantial evidence in the record. Regennitter v. Comm’r of Soc. Sec. Admin., 166
F.3d 1294, 1296 (9th Cir. 1999). If there is substantial evidence in the record to support
the ALJ’s credibility finding, the Court will not engage in second-guessing. Thomas v.
Barnhart, 278 F.3d 957, 959 (9th Cir. 2002). When the evidence can support either
outcome, the court may not substitute its judgment for that of the ALJ. Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999).
The ALJ found Petitioner’s impairments could reasonably be expected to cause
some of her alleged symptoms, but that her statements about the intensity, persistence,
and limiting effects of the symptoms were not entirely credible. (AR 16.) The ALJ
provided two reasons for discrediting Petitioner: (1) lack of support by objective medical
evidence; and (2) inconsistency of Petitioner’s allegations with her activities of daily
living. The Court will discuss each reason in turn.
Objective Medical Evidence
The Court finds the explanation given in Anderson v. Apfel, 100 F.Supp.2d 1278
(D. Kan. 2000), helpful for understanding fibromyalgia, against which this Court viewed
the objective medical evidence of record.
MEMORANDUM DECISION AND ORDER - 8
“Fibromyalgia is defined as a syndrome of pain in the fibrous tissues,
muscles, tendons, ligaments, etc.” Duncan v. Apfel, 156 F.3d 1243, 1998
WL 544353, at *2 (10th Cir. Aug. 26, 1998) (Table) (citing The Merck
Manual of Diagnosis & Therapy, at 1369 (Robert Berkow & Andrew J.
Fletcher eds., 16th ed.1992)). “The symptoms of fibromyalgia are entirely
subjective, and there are no laboratory tests to identify its presence or
severity.” Ward v. Apfel, 65 F.Supp.2d 1208, 1213 (D. Kan. 1999) (citing
Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). “Because
fibromyalgia, ..., is diagnosed by ruling out other diseases through medical
testing, ..., negative test results or the absence of an objective medical test
to diagnose the condition cannot support a conclusion that claimant does
not suffer from a potentially disabling condition.” Lantow v. Chater, 98
F.3d 1349, 1996 WL 576012, at *1 (10th Cir. Oct.8, 1996) (Table). “Courts
have recognized that the pain suffered by those diagnosed with
fibromyalgia can be disabling.” Ward v. Apfel, 65 F.Supp.2d at 1213 (citing
Sarchet v. Chater, 78 F.3d at 309; Cline v. Sullivan, 939 F.2d 560 (8th Cir.
1991); Biri v. Apfel, 4 F.Supp.2d 1276 (D. Kan. 1998)).
Anderson, 100 F.Supp.2d at 1286.
Here, the ALJ discussed Petitioner’s ability to move extremities upon
examination, conservative treatment modalities such as electro-acupuncture and massage,
and the lack of diagnostic imaging results as support for her conclusion Petitioner’s
complaints were not credible. For instance, the ALJ cited the negative EMG and NCV
testing; lack of objective findings upon MRI; and a lack of evidence that Petitioner’s use
of crutches and leg braces was medically necessary. (AR 26 – 27.) However, the lack of
objective findings is precisely what characterizes fibromyalgia, and cannot be used as a
basis to reject Petitioner’s subjective complaints. The ALJ erred by “effectively
requir[ing] ‘objective’ evidence for a disease that eludes such measurement.” Benecke v.
Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (quoting Green–Younger v. Barnhart, 335
F.3d 99, 108 (2d Cir. 2003) (reversing and remanding for an award of benefits where the
MEMORANDUM DECISION AND ORDER - 9
claimant was disabled by fibromyalgia)).
Further, the record is replete with consistent findings supporting Petitioner’s
diagnosis of fibromyalgia and her chronic pain. Dr. Hicks was Petitioner’s primary
provider since January of 2009, up through May of 2014. (AR 377 – 614; 684.) Records
from Dr. Hicks indicate Petitioner sought care in intervals of 1 to 2 weeks, consistently
complaining of bilateral lower extremity pain, neck pain, and left upper extremity pain.
Dr. Hicks utilized several treatment modalities, including a TENS unit, electroacupuncture, drug therapy, injections, and others. Additionally, Dr. Hicks referred
Petitioner to several specialists, discussed below.
Petitioner complained of chronic pain “in multiple sites,” together with weakness,
in May of 2009, to Dr. Clinton Dille, and her complaints of pain were consistent
throughout June and July of 2009. (AR 317 - 322.) She was seen in August of 2009, by
Dr. James Herrold, a neurologist, complaining of bilateral leg pain, left arm pain, and
weakness. (AR 323 – 324.) Although Dr. Herrold was of the opinion Petitioner’s
presentation was peculiar for fibromyalgia, he believed Petitioner suffered from
“idiopathic three extremity chronic pain syndrome,” and recommended follow up with a
pain specialist. (AR 324.) Petitioner was next referred to Dr. Reddy, a rheumatologist, on
August 28, 2009, who diagnosed chronic bilateral lower leg pain. (AR 326.) Dr. Reddy
noted on September 9, 2009, Petitioner experienced painful range of motion in her left
shoulder, tenderness over the subacromial area, and tenderness present over the anterior
aspect of the tibia in both lower extremities. (AR 338-39.)
MEMORANDUM DECISION AND ORDER - 10
Petitioner was referred to Dr. Kenneth Brait, a neurologist, on November 3, 2010.
(AR 527 – 28.) At that visit, Dr. Brait noted Petitioner complained of pain that had
become progressively worse, in her left shoulder and arm, and in both lower extremities.
Dr. Brait noted “some hyperesthesia over the medial aspect of the leg,” which was
uncommon, and left arm weakness. (AR 528.) Petitioner again saw Dr. Brait on
November 30, 2011, after a thirteen-month absence, continuing to complain of chronic
pain, pain while walking, and pain in her right shoulder. (AR 355.) Dr. Brait
recommended continued treatment for her pain syndrome, and follow up with Dr. Hicks.
(AR 356 -58.)
Notably, in office records from October 20, 2010, Dr. Hicks documented a tender
left shoulder and bilateral lower extremity tenderness from knees down in a non-radicular
pattern, and 11/18 tender points. (AR 480.) Although Dr. Hicks frequently noted good
mobility upon examination, mobility is not inconsistent with pain. (AR 26, 28.) One can
be mobile, but still experience pain. The ALJ’s reliance upon “good mobility” as one of
the only factors to discredit Petitioner constitutes error in light of Petitioner’s consistent
reports of pain over a greater than 5-year period to various medical providers.
By focusing solely upon the objective medical evidence, the ALJ failed to discuss
other evidence, which included Petitioner’s constant complaints of pain and other
symptoms recorded by Dr. Hicks and others. The failure to do so constitutes error.
Laborin v. Berryhill, Slip Op. No. 15-15776 (9th Cir. Aug. 16, 2017) (RFC assessment
must “[c]ontain a thorough discussion and analysis of the objective medical and other
MEMORANDUM DECISION AND ORDER - 11
evidence, including the individual’s complaints of pain and other symptoms….”). “In
other words, the ALJ must take ‘the claimant’s subjective experiences of pain’ into
Activities of Daily Living
The second reason the ALJ provided for discrediting Petitioner was her “extensive
activities,” such as sitting in church for up to three hours; shopping for two hour periods;
volunteer painting; vacationing in Challis; canning; fishing; picking apples; mopping;
having yard sales; and mowing the lawn. (AR 26.) The ALJ found these activities
inconsistent with Petitioner’s reports of disabling pain, citing Exhibits 21F/1-15; 20F;
19F; and 13F/6. Upon review of the records cited, the ALJ selectively picked from the
entire record, and failed to discuss the aftermath of those activities, which Petitioner
reported caused increased pain, fatigue, and disabling symptoms.
Exhibit 21F encompassed the period from March 26, through October 3, 2013.
During this period, Petitioner did travel to Challis, and she canned, picked apples,
mopped, went shopping, had a yard sale, and mowed the lawn. But, the ALJ left out
important parts of the record and failed to discuss Petitioner’s reports of increased pain
and fatigue after each activity. For instance, on March 26, 2013, Petitioner reported
feeling unenergetic, and after having mopped the bathroom, she was “hurting. I have
widespread pain = 7-8/10. I am having trouble with …XS drowsiness DT fatigue. I am
unable to do my ADL’s.” (AR 680.) Dr. Hicks noted Petitioner moved slowly and had
tenderness in her trunk and extremities. She was instructed to rest. On April 2, 2013,
MEMORANDUM DECISION AND ORDER - 12
Petitioner reported her pain was less than on March 26, 2013, but she still felt “drained
for energy.” (AR 679.) On April 16, 2013, Petitioner reported sleeping 10-12 hours per
day. (AR 678.) Dr. Hicks’ review of lab test results indicated the “fatigue likely due to
FMS…After shopping for 2 hours on Saturday I was tired and then in pain next day.” On
April 22, 2013, Petitioner reported pain “6/10….when I over do it, as I did this week,
then I hurt a lot.” (AR 677.)
Petitioner reported on May 7, 2013, having gone to Challis “to get away and rest.”
(AR 675.) Dr. Hicks noted back and bilateral lower extremity tenderness, and “chronic
pain and fatigue, FMS.” On May 13, 2013, Petitioner reported pain “7/10” after having
mowed “part of the lawn. I have been doing all of my ADL’s and it has been making me
really hurt. I had a yard sale on Sunday.” (AR 674.) Dr. Hicks assessed widespread
chronic pain, and treated Petitioner with electro-acupuncture. On May 29, 2013,
Petitioner indicated her activity had decreased due to pain, “6/10. I have had trouble with
ADL’s this week….” (AR 673.) Dr. Hicks administered an intramuscular injection of
Toradol, 60 mg.
On July 19, 2013, Petitioner complained of pain “everywhere. Monday I couldn’t
even get out of bed due to pain.” (AR 672.) Dr. Hicks noted “back taut and tender and
both shoulders are tender…Acute aggravation of Chronic Pain.” Dr. Hicks administered
an intramuscular injection of Toradol 60 mg, and Phenergan 50 mg. On July 23, 2013,
Petitioner again reported pain 8/10, and Dr. Hicks noted “widespread areas of tenderness
above and below the waist, front and back. Multiple tender point in XS of 11/18
MEMORANDUM DECISION AND ORDER - 13
characteristic of FMS.” (AR 669.) The same complaints and notations were contained in
the previous progress note from July 11, 2013. (AR 670.) On July 30, 2013, Petitioner
reported pain “everywhere…8/10.” (AR 668.) Dr. Hicks noted bilateral upper extremity
and lower extremity tenderness, and “acute exacerbation of chronic widespread pain.” Dr.
Hicks administered an injection of Toradol 60 mg. subcutaneously.
On August 26, 2013, Petitioner reported having gone fishing and apple picking,
but then reported: “I am hurting all over. I couldn’t hardly move my arms after picking
apples. Pain = 8/10.” (AR 667.) Dr. Hicks noted “neck and shoulders are tender….Acute
exacerbation Chronic Pain.” Dr. Hicks prescribed a Prednisone 5 mg burst pack to treat
her pain. On September 5, 2013, Petitioner reported she had been fishing a few days
prior, but was experiencing a “burning sensation.” Dr. Hicks assessed chronic pain at that
office visit. (AR 666.) And finally, on October 3, 2013, Petitioner reported to Dr. Hicks
she had been busy canning, but office notes indicated “Pain = 8/10, I have been canning
and I am in sad shape. I have felt really tired and weak last few days. Yesterday I had to
sleep most all day.” (AR 665.) Dr. Hicks assessed “widespread arthralgias and myalgias.”
Exhibit 20F encompasses two office visits on January 7, 2013, and January 15,
2013. (AR 661 – 663.) At those two visits, Petitioner reported pain “=4/10.” Dr. Hicks
noted on January 15, 2013: “because of the ill effects of Sally’s health disorders, she
continues to be unable to be gainfully [employed].” On January 7, 2013, Petitioner had
reported both legs were swollen and painful, “Pain =8/10,” “drowsiness,” “arms and
hands have [been] more numb lately.” Dr. Hicks noted left shoulder blade and bilateral
MEMORANDUM DECISION AND ORDER - 14
lower extremity tenderness.
Exhibit 19F encompasses the period from October 2, 2012, to December 18, 2012.
(AR 649 - 660.) Again, Petitioner consistently reported increased pain and fatigue to Dr.
Hicks during this period any time she increased her activity level. For instance, on
October 2, 2012, Petitioner reported increased pain the prior Sunday because she had to
“do extra.” On October 3, 2012, she visited Dr. Hicks because she fell. Dr. Hicks noted
“acute exacerbation of Right upper extremity and both legs knee to ankle pain.” On
October 9, 2012, Petitioner reported both arms hurt, and her right leg was spasming. Dr.
Hicks administered a Toradol injection for pain. On October 16, 2012, Petitioner reported
sleeping the day prior until 2:00 p.m., with pain 6/10, and that she “overdid it
crocheting.” On October 23, 2012, Petitioner reported having slept until 2 p.m. On
November 13, 2012, Petitioner reported increased pain in her left shoulder, and Dr. Hicks
noted left shoulder tenderness and trigger points. On November 20, 2012, Petitioner
reported pain 8/10 and fatigue. On November 27, 2012, Dr. Hicks noted Petitioner’s left
shoulder and both lower extremities were tender. On December 4, 2012, Petitioner
reported “hurting all over,” with pain 6/10, and that she was able to do only her ADL’s.
Dr. Hicks noted Petitioner’s shoulders, upper extremities, and lower extremities were
“tender to touch.”
And lastly, Exhibit 13F/6 documents Petitioner’s three-hour visit to church. (AR
379.) On September 25, 2012, Petitioner reported “difficulty with graduated compression
stocking and sitting in church for 3 hours affected the right lower extremity and it was
MEMORANDUM DECISION AND ORDER - 15
swollen.” Petitioner reported bilateral upper and lower extremity pain, “6/10. Impaired
ADL’s. XS sleepiness.” Dr. Hicks noted bilateral shoulder and knee pain upon
The ALJ cites also the lack of a prescription for Petitioner’s lower extremity brace
use as a reason to discredit her testimony. (AR 26.) However, the ALJ failed to note that,
on August 25, 2011, Petitioner visited OrthoPro in Twin Falls for evaluation of her feet
for extra-depth diabetic footwear, and that progress notes indicated Petitioner currently
wore “AZ AFO’s bilaterally as needed.” 1 Petitioner was referred to OrthoPro by Dr.
Hicks, according to the progress note. (AR 715.) The progress note from August 27,
2010, also indicates referral to OrthoPro by Dr. Hicks for a “left upper extremity brace.”
(AR 713.) A progress note from July 28, 2011, indicates Petitioner sought a replacement
pair of AZ AFO’s, which she had used “historically…with free motion hinges and tall
laced configuration with extra-depth shoes secondary to her ankle instability.” (AR 714.)
The ALJ failed to discuss these progress notes in her analysis, which contradict her
conclusion that the devices were not medically necessary and thereby undermined
Based upon the record as a whole, the Court finds the ALJ’s credibility assessment
to be in error. The ALJ failed to discuss Petitioner’s credible symptom testimony and
A search utilizing the Google search engine for “AZ AFO” revealed the following
website, www.arizonaafo.com, and the tab for “products” showcased the types of Arizona leg
and ankle braces manufactured by the company. The Court has attached as an exhibit the
webpage for AZ AFO products.
MEMORANDUM DECISION AND ORDER - 16
corresponding findings of trigger points and pain upon examination in the medical
records, and instead selectively chose portions of the record to substantiate her adverse
Lay witness testimony
An ALJ must consider evidence from sources other than the claimant, including
family members and friends, to show the severity of a claimant’s impairment. 20 C.F.R. §
404.1513(d)(4); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). Lay
testimony regarding a claimant’s symptoms constitutes competent evidence that an ALJ
must take into account, unless he or she expressly determines to disregard such testimony
and gives reasons germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 503,
511 (9th Cir. 2001) (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)
(internal citations omitted)); Regennitter v.Comm’r of Soc. Sec. Admin., 166 F.3d 1294
(9th Cir. 1999). Such reasons include conflicting medical evidence, prior inconsistent
statements, or a claimant’s daily activities. Lewis v. Apfel, 236 F.3d 503, 511–12 (9th
In rejecting lay testimony, “the ALJ need not cite the specific record as long as
‘arguably germane reasons’ for dismissing the testimony are noted, even though the ALJ
does ‘not clearly link his determination to those reasons,’ and substantial evidence
supports the ALJ’s decision.” Holzberg v. Astrue, No. C09-5029BHS, 2010 WL 128391
at *11 (W.D. Wash. Jan. 11, 2010) (citing Lewis, 236 F.3d at 512). However, “where the
ALJ’s error lies in failure to properly discuss competent lay testimony favorable to the
MEMORANDUM DECISION AND ORDER - 17
claimant, a reviewing court cannot consider the error harmless unless it can confidently
conclude that no reasonable ALJ, when fully crediting the testimony, could have reached
a different disability determination.” Stout v. Comm’r of Soc. Sec. Admin., 454 F3d 1050,
1056 (9th Cir. 2006).
Here, the ALJ considered the third party statements of Petitioner’s neighbors,
husband, and a former co-worker. The ALJ rejected Petitioner’s husband’s statement
because he “parroted [Petitioner’s] subjective complaints,” which the ALJ found not
credible; Petitioner’s husband was not a medical professional; and, Petitioner’s spouse
had a familial and financial interest in receiving benefits. Because the ALJ’s credibility
determination is not supported by substantial evidence in the record, it cannot be used as
a basis to discredit Petitioner's spouse's statements. 2 Second, neither lack of medical
training, an assumed financial interest in a favorable adjudication, nor a familial interest
constitutes a germane reason for rejecting lay testimony. Gutierrez v. Colvin, 208
F.Supp.3d 1117, 1124-25 (E.D. Cal. Sept. 26, 2016) (finding regulations specifically
require consideration of “non-medical” sources, and rejecting supposed financial interest
in a favorable adjudication and family bias as germane reasons for discrediting lay
The ALJ rejected also the third party statements of claimant’s neighbors and co-
The ALJ may rely upon her credibility assessment to discredit lay witness testimony,
provided the credibility assessment is free from legal error. See Molina v. Astrue, 674 F.3d 1104,
1122 (9th Cir. 2012) (finding ALJ did not commit error, because the ALJ validly rejected all the
limitations described by the lay witnesses in discussing the petitioner’s testimony).
MEMORANDUM DECISION AND ORDER - 18
worker, again because they relied upon subjective complaints reported by Petitioner that
the ALJ found not credible. Because the ALJ erred with respect to her credibility
determination of Petitioner, the ALJ may not rely upon the same for discrediting these
statements. Additionally, each of the lay witnesses discussed their observations and
interactions with Petitioner, not merely her subjective complaints to each of them.
The ALJ cited that the neighbors and coworkers had “limited, and mostly remote,
interaction” with Petitioner. The Court finds no support in the record for this conclusion.
Bryce Barfuss, a “good friend and neighbor,” has known Petitioner for six years, and
considers her “family.” He recounted in detail his observations of Petitioner, and
indicated he and his wife visited often to help her with activities. (AR 309.) Cheryl
Nevin, another neighbor and friend, has known Petitioner for two years, lived next door
to her, saw her a “couple times a week,” and observed her “having difficulties walking,
standing, and use[ing] her arms.” (AR 308.) Nevin often picked up prescriptions for
Petitioner, helped her with activities, and observed her crying “because of the frustration
she had from the pain.” And Karla Birkby, Petitioner’s former co-worker, has known
Petitioner since 2002, and had “daily contact” with her once Petitioner became the store
secretary. (AR 307.) Daily, and even weekly contact between co-workers and neighbors
who often visited Petitioner’s home to assist her, hardly constitutes remote or limited
interaction. These third party statements indicate frequent, intimate interaction with
Petitioner – the opposite of limited and remote.
And finally, the ALJ rejected the third party statements because they were
MEMORANDUM DECISION AND ORDER - 19
“colored by affection because of the personal relationships with the claimant.” (AR 27.)
For the same reason the AJL cannot discredit lay testimony based upon a familial
relationship, a personal friendship does not constitute a germane reason to discredit lay
The Court finds none of the reasons given by the ALJ constitute proper grounds
for rejecting the lay witness testimony.
Petitioner contends the ALJ erroneously rejected the opinion of Petitioner’s
treating physician, Dr. Hicks, because the ALJ did not properly weigh the opinion against
those of the state agency physicians, and erroneously concluded Dr. Hick’s opinions were
not supported by or consistent with other medical evidence.
The Ninth Circuit Court of Appeals distinguishes among the opinions of three
types of physicians: (1) those who treat the claimant (treating physicians); (2) those who
examine but do not treat the claimant (examining physicians); and (3) those who neither
examine nor treat the claimant (nonexamining physicians). Lester v. Chatter, 81 F.3d
821, 830 (9th Cir. 1995). 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. Winans
v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).
Where the treating doctor's opinion is not contradicted by another doctor, it may
be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391,
1396 (9th Cir. 1991). Also, “clear and convincing” reasons are required to reject the
MEMORANDUM DECISION AND ORDER - 20
treating doctor's ultimate conclusions. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.
1988). Even if the treating doctor's opinion is contradicted by another doctor, the
Commissioner may not reject this opinion without providing “specific and legitimate
reasons” supported by substantial evidence in the record for so doing. Murray v. Heckler,
722 F.2d 499, 502 (9th Cir. 1983).
An ALJ is not required to accept an opinion of a treating physician if it is
conclusory and not supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992). Additionally, an ALJ is not bound to a physician’s
opinion of a claimant’s physical condition or the ultimate issue of disability. Magallanes
v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If the record as a whole does not support the
physician’s opinion, the ALJ may reject that opinion. Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in the record that may not support the
physician’s opinion include clinical findings from examinations, conflicting medical
opinions, conflicting physician’s treatment notes, and the claimant’s daily activities. Id.;
Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005); Connett v. Barnhart, 340 F.3d 871
(9th Cir. 2003); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999). An
ALJ also may reject a treating physician’s opinion if it is based “to a large extent” on a
claimant’s self -reports that have been property discounted as not credible. Tommasetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
Dr. Hicks signed a functional assessment which was not dated, but was faxed to
Petitioner’s counsel on February 13, 2014. (AR 681-82.) The ALJ rejected the opinions
MEMORANDUM DECISION AND ORDER - 21
because the form contained first party statements, and therefore “appeared to have been
completed by Petitioner.” However, Dr. Hicks signed the form and therefore endorsed the
statements made therein. Further, Dr. Hicks indicated, based upon his longstanding
treatment history, Petitioner’s condition would cause her to miss attendance at work. The
second reason given for rejecting Dr. Hicks’ statement was its reliance upon Petitioner’s
subjective complaints, which the ALJ previously discredited. The Court finds these are
not specific or legitimate reasons for discrediting Dr. Hicks’ opinion, as discussed above.
As explained above, the Court finds the ALJ’s credibility assessment is not
supported by substantial evidence in the record; the ALJ failed to articulate specific,
germane reasons for rejecting the opinion of the lay witnesses; and the ALJ improperly
relied upon a flawed credibility assessment as grounds for rejecting a treating source
Although Petitioner requests the decision be reversed and benefits awarded, the
Court finds remand is appropriate here. The state agency physicians came to different
conclusions regarding Petitioner’s abilities than did Dr. Hicks, and there may be other
portions of the record which are inconsistent with Petitioner’s testimony. See Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (“an ALJ's failure to
provide sufficiently specific reasons for rejecting the testimony of a claimant or other
witness does not, without more, require the reviewing court to credit the claimant's
testimony as true.”). While it is a close call, the Court finds it appropriate here to remand
MEMORANDUM DECISION AND ORDER - 22
to the agency for further proceedings consistent with this decision.
NOW THEREFORE IT IS HEREBY ORDERED:
Plaintiff’s Petition for Review (Dkt. 1) is GRANTED.
This action shall be REMANDED to the Commissioner for further
proceedings consistent with this opinion.
This Remand shall be considered a “sentence four remand,” consistent with
42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002).
DATED: September 8, 2017
Honorable Candy W. Dale
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 23
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