Wilcox v. Commissioner Social Security Administration

Filing 29

OPINION and ORDER - The Commissioner's decision denying Wilcox's application forDIB is REVERSED and REMANDED for further proceedings. DATED this 16th day of April, 2018, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

LORI C. WILCOX,

Case No. 1:17-cv-00312-AC
Plaintiff,

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
ALANS. GRAF
208 Pine St.
Floyd, VA 24091
Of Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
District of Oregon
1000 SW Third Ave., Suite 600
P01iland, OR 97204-1011
MARTHA A. BODEN
Special Assistant United States Attorney
Office of the General Counsel
701 Fifth Ave., Suite 2900 MIS 221A
Seattle, WA 98104-7075
Of Attorneys for Defendant
1 - OPINION AND ORDER

OPINION AND ORDER

Opinion and Order

ACOSTA, Magistrate Judge:
Lori C. Wilcox ("Wilcox") seeks judicial review of the final decision by the Social
Security Commissioner ("Commissioner") denying her application for Disability Insurance
Benefits ("DIB") under Title II of the Social Security Act ("SSA"). This Court has jurisdiction
to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful
review of the record, the Commissioner's decision is REVERSED and REMANDED for further
proceedings.
Procedural Background

Wilcox filed for DIB on May 19, 2013, alleging disability as of March 15, 2011, due to
peripheral motor neuropathy; chronic myofascial pain syndrome of the neck and shoulders;
chronic parascapular myofascial pain syndrome; upper extremity pain syndrome; upper
extremity paresthesia; vascular/neurogenic thoracic outlet syndrome; shoulder impingement
syndrome; degenerative lumbrosacral spondylosis; cervical myalgia; degenerative arthritis of the
sacroiliac joints. Tr. 200. Wilcox achieved sufficient quarters of coverage to remain insured
through December 31, 2016.

Tr. 16.

Her application was denied initially and upon

reconsideration. Tr. 16. A hearing was held on August 25, 2015, before an Administrative Law
Judge ("ALJ''); Wilcox was represented by counsel and testified, as did a vocational expe1i
("VE"). Tr. 16. On November 30, 2015, ALJ Alex Karlin issued a decision finding Wilcox not
disabled.

Tr. 16-30.

Wilcox requested timely review of the ALJ's decision and, after the

Appeals Council denied her request for review, filed a complaint in this Court. Tr. 1-5.
\ \ \\ \

\\\\\
\\\\\

2 - OPINION AND ORDER

Factual Background
Born in 1958, Wilcox was 52 years old on the disability onset date.

Tr. 196. She

completed high school. Tr. 41. She previously worked in orthodontic offices as an orthodontic
assistant, appointment coordinator, and financial coordinator. Tr. 225.
Standard ofReview
The court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla.
It means 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 internal quotations
omitted).

The court must weigh "both the evidence that supports and detracts from the

[Commissioner's] conclusions."

Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, the claimant must

demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected ... to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1502 and
404.920.

First, the Commissioner considers whether a claimant is engaged in "substantial

gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, the claimant is not
disabled.
3 - OPINION AND ORDER

At step two, the Commissioner evaluates whether the claimant has a "medically severe
impairment or combination of impairments."

Yuckert, 482 U.S. at 140-41; 20 C.F.R. §

404.1520(c). If the claimant does not have a severe impahment, he is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either
singly or in combination, meet or equal "one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert,
482 U.S. at 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform "past
relevant work." 20 C.F.R. §§ 404.1520(±) and 404.920(±). If the claimant can work, he is not
disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner.
At step five, the Commissioner must demonstrate that the claimant can perfmm other
work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 14142; 20 C.F.R. § 404.1520(g).

If the Commissioner meets this burden, the claimant is not

disabled. 20 C.F.R. § 404.1566.
The ALJ's Findings
At step one of the sequential evaluation process outlined above, the ALJ found that
Wilcox had not engaged in substantial gainful activity since the alleged onset date, March 15,
2011. Tr. 18.
At step two, the ALJ determined Wilcox had the following severe impairments:
peripheral demyelinating polyneuropathy; minimal cervical and lumbar degenerative disc and
joint disease with a compression deformity at the LI vertebra; right thoracic outlet syndrome;
and fibromyalgia. Tr. 18, 19. The ALJ found that Wilcox's bilateral carpal tunnel syndrome;

4 - OPINION AND ORDER

atrial fibrillation; insomnia; fatigue; sleep apnea; bursitis of the left foot; osteoporosis;
depression; and anxiety were non-severe impairments. Tr. 19, 20.
At step three, the ALJ found that Wilcox's impairments, either singly or in combination,
did not meet or equal the requirements of a listed impairment. Tr. 21, 22. Because Wilcox did
not establish disability at step three, the ALJ continued to evaluate how Wilcox's impairments
affected her ability to work during the relevant period. The ALJ found Wilcox had the residual
functional capacity ("RFC") to perform modified sedentary work as defined by 20 C.F.R. §
404.1567(b), except that she was restricted to:
lifting, carrying, pushing, and pulling of 10 pounds occasionally and less than 10
pounds frequently, standing two hours of an eight hour workday, walking two
hours of an eight hour workday, and sitting six hours of an eight hour workday.
She can use the left foot occasionally for foot controls. The claimant can
frequently reach overhead and finger bilaterally. She can frequently climb ramps
and stairs, and occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes,
and scaffolds. The claimant is to never have exposure to unprotected heights,
moving mechanical parts, or operation of a motor vehicle.
Tr. 22.
At step four, the ALJ found that Wilcox could perform her past relevant work of
accounting clerk or appointment clerk. Tr. 28.
Alternatively, at step five, based on the testimony of the VE and other evidence, the ALJ
determined Wilcox could perform other work existing in significant numbers in the national and
local economy despite her impairments, including insurance clerk, cost clerk, or front desk
receptionist. Tr. 29. Accordingly, the ALJ concluded Wilcox was not disabled under the Act.
Id.
\ \\ \ \

\\ \\ \
\\ \\ \
5 - OPINION AND ORDER

Discussion
Wilcox argues the ALJ failed to give sufficient reasons for rejecting: (1) treating
physician Ruth Lowengart's medical opinion; (2) Wilcox's subjective symptom testimony; and
(3) the testimony oflay witness Ronald Norris.

1

Dr. Ruth Lowengart' s Medical Opinion
The ALJ must provide clear and convincing reasons for rejecting the uncontradicted

medical opinion of a treating or examining physician, or specific and legitimate reasons for
rejecting contradicted opinions, so long as they are supported by substantial evidence. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Nonetheless, treating or examining physicians
are owed deference and will often be entitled to the greatest, if not controlling, weight. Orn v.
Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (citation and internal quotation omitted). An ALJ can
satisfy the substantial evidence requirement by setting out a detailed summary of the facts and
conflicting evidence, stating his interpretation, and making findings. Morgan v. Comm 'r Soc.
Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999). However, "the ALJ must do more than offer
his conclusions. He must set forth his own interpretations and explain why they, rather than the
doctors', are correct." Reddick v. Chafer, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).
Accordingly, the ALJ's reasons for rejecting the treating and examining physicians must be
specific and legitimate, and supported by substantial evidence. See Garrison v. Colvin, 759 F.3d
995, 1012 (9th Cir. 2014).
Dr. Lowengart, M.D., M.S.O.M. 1, completed a functional capacity evaluation on
February 2, 2014, in which she diagnosed Wilcox with idiopathic peripheral demyelinating
polyneuropathy; chronic myofascial pain and superficial neuritis of the neck and arms; carpal

1

Member of the Society of Orthopedic Medicine

6 - OPINION AND ORDER

tunnel syndrome; bilateral moderate with atrophy of abductor pollicis brevis; cervical and lumbar
spondylosis; SI joint arthritis; cardiac arrhythmia, atrial fibrillation, cardiac enlargement; and
major depression. Tr. 560-66. Dr. Lowengart found that these conditions caused a progressive
loss of strength, increasing pain, and loss of function, as well as profound weakness in all muscle
groups of the upper extremities, muscle atrophy in the fingers and forearms, and moderately
weak lower extremities. Tr. 560-61. Furthermore, Dr. Lowengart assessed nausea, dizziness,
and drowsiness as side effects of Wilcox's medications, which gave "only palliative relief, at
best" and kept Wilcox from operating a vehicle. Tr. 562. Functionally, Dr. Lowengart assessed
significant workplace restrictions, including standing or walking for less than two hours, sitting
for about four hours, constant interference with attention and concentration, the ability to walk
one block before resting, and absences of more than four days per month due to Wilcox's
conditions. Tr. 564-66.
The ALJ gave little weight to Dr. Lowengart's opm10n.

The ALJ noted that Dr.

Lowengart assessed a disability onset date of March 2011, matching Wilcox's alleged disability
onset date. Tr. 26. However, Dr. Lowengart did not observe Wilcox from June 2010 until April
2013, leading the ALJ to conclude that the doctor primarily utilized Wilcox's testimony to assess
the disability onset date. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th
Cir. 2004) (an ALJ permissibly rejected a treating physician's opinion when it was based
primarily on properly discredited subjective symptom testimony).

The ALJ did not etT, as

treatment notes from Dr. Albert Newton in March 2011 document anxiety stemming from
Wilcox's job, but lack any indication of back, shoulder, or finger pain. Tr. 702. A separate
treatment note from Dr. Newton in May 2011 also lacks any mention of pain, and an
examination of Wilcox's back demonstrated no tenderness of the spine. Tr. 700. Similarly, the
ALJ observed that the record did not show Wilcox's impairments worsened at the March 2011
7 - OPINION AND ORDER

onset date, and Wilcox worked for a number of years with her impairments before March 2011.
Tr. 26. The ALJ did not err in granting little weight to Dr. Lowengart's opinion that Wilcox's
impaired functioning began in March 2011.
The ALJ also granted little weight to Dr. Lowengart's opinion due to inconsistencies with
the record. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Specifically, the
ALJ stated Dr. Lowengart's sitting, standing, and walking restrictions were inconsistent with the
record, which contained no evidence of Wilcox lying down to accommodate her pain. Tr. 26.
Additionally, the ALJ stated Dr. Lowengaii's manipulative restrictions were inconsistent with
the record because Wilcox performed duties of self-care independently and did not use
"modified utensils." Tr. 26. The ALJ's reasoning is inapposite. First, Wilcox typically got out
of bed "at noon or later," demonstrating she spent a significant of time lying down, in contrast to
the ALJ's interpretation of the record. Tr. 820. Second, Dr. Lowengart opined Wilcox could
handle or finger objects about 10 percent of the workday, which is consistent with Wilcox's daily
activities. Tr. 566. The record reflects Wilcox struggled to blow-dry or wash her hair due to
shoulder pain, rarely cleaned her house or drove, and gave up nearly all of her hobbies due to
pam.

Tr. 820.

The ALJ erred in assessing inconsistencies in the record to discredit Dr.

Lowengart' s opinion.
The ALJ also gave little weight to Dr. Lowengart's opinion because she repeatedly stated
that Wilcox was "totally disabled" in treatment notes. Although the ALJ was not required to
grant controlling weight on an issue reserved for the Commissioner, the mere fact that a
physician opines on a claimant's disability status is not a sufficient reason to discount the
findings underlying that opinion. See Marsh v. Berryhill, 698 Fed. Appx. 904, 905 (9th Cir.
2017) (the doctor's chart notes informed his opinion that the plaintiff "appear[ed] to be
disabled," and the ALJ was required to give clear and convincing reasons for rejecting the
8 - OPINION AND ORDER

doctor's opinion). Therefore, the ALJ erred in granting the doctor's opinion little weight because
she opined on Wilcox's disability.
Indeed, Dr. Lowengart's treatment notes beginning in April 2013 demonstrate Wilcox
would miss more than four workdays per month, a rate of absenteeism that generally renders a
claimant disabled under the Act. Tr. 564-66, 584; see Brewes v. Comm 'r of Soc. Sec. Admin.,
682 F.3d 1157, 1163-65 (9th Cir. 2012) (the VE testified that the plaintiff would be generally
unemployable if she missed more than two work days per month). Dr. Lowengart noted that
superficial perineural dextrose injections, which only cause an anesthetic effect on unmyelinated
nerve fibers, gave Wilcox significant pain relief; if Wilcox did not experience the effects of
demyelinating polyneuropathy, these injections would have been wholly ineffective. Tr. 568.
Objective examinations of Wilcox's hands showed atrophied muscle tissue, and a Nerve
Conduction Study demonstrated carpal tunnel syndrome. Tr. 572, 574. Dr. Lowengart also
noted Wilcox endorsed difficulty standing for longer than 20 minutes and experienced tingling
and numbness in her lower legs. Tr. 577. An Electromyography confirmed the presence of
motor and sensory neuropathy. Tr. 579. Dr. Theerapol Prasertsuntarasai, Wilcox's treating
rheumatologist, also observed 16/18 fibromyalgia tender points consistent with a diagnosis of
fibromyalgia. Tr. 786. Wilcox reported pain levels ranging from 6/10 to 10/10 and neither Dr.
Lowengart nor Dr. Prasertsuntarasal voiced concerns that Wilcox relayed false pain symptoms.
Tr. 572, 574, 579, 784. These objective findings, combined with Wilcox's repotied pain levels,
support Dr. Lowengaii's assessment that Wilcox would be absent from work at least four
workdays per month.
A number of additional factors point toward granting Dr. Lowengart' s opinion greater
weight.

The length of treatment relationship, frequency of examinations, specialty of the

physician, and familiarity with the medical record are factors to be considered when weighing a
9 - OPINION AND ORDER

treating physician's opinion. Garrison, 759 F.3d at 1012 n.11. Dr. Lowengaii began treating
Wilcox on a regular basis in 1999 and continued providing care through the date of the decision,
excepting a treatment gap between 2010 and 2013. Tr. 568, 637. Dr. Lowengart is a Member of
the Society of 01ihopedic Medicine, attesting to his professional competence in the
specialization of treatment of musculoskeletal maladies such as those suffered by Wilcox.
Additionally, after resuming treatment in 2013, Dr. Lowengart collaborated with a number of
other specialists to diagnose and treat Wilcox's impairments, indicating a familiarity with the
medical record.

Tr. 570, 574, 578, 579, 582.

These factors tend to support granting Dr.

Lowengmi's opinion greater weight.
While the ALJ did not err by granting little weight to Dr. Lowengart's assessment that
Wilcox became disabled in March 2011, the ALJ erred in his overall assessment of Dr.
Lowengart's opinion because it was consistent with the record and supported by objective
medical evidence.
II.

Wilcox's Subjective Symptom Testimony
The Ninth Circuit relies on a two-step process for evaluating the credibility of a

claimant's testimony about the severity and limiting effect of the stated symptoms. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 503 F.3d 1028, 1035-36

(9th Cir. 2007)). "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." Lingenfelter, 503 F.3d at 1036 (citation and quotation
marks omitted). Second, absent 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." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Further, an ALJ
"may consider ... ordinary techniques of credibility evaluation, such as the claimant's reputation
10 - OPINION AND ORDER

treating physician's opinion. Garrison, 759 F.3d at 1012 n.11. Dr. Lowengart began treating
Wilcox on a regular basis in 1999 and continued providing care through the date of the decision,
excepting a treatment gap between 2010 and 2013. Tr. 568, 637. Dr. Lowengart is a Member of
the Society of Orthopedic Medicine, attesting to his professional competence in the
specialization of treatment of musculoskeletal maladies such as those suffered by Wilcox.
Additionally, after resuming treatment in 2013, Dr. Lowengart collaborated with a number of
other specialists to diagnose and treat Wilcox's impairments, indicating a familiarity with the
medical record.

Tr. 570, 574, 578, 579, 582.

These factors tend to support granting Dr.

Lowengart's opinion greater weight.
While the ALJ did not err by granting little weight to Dr. Lowengart's assessment that
Wilcox became disabled in March 2011, the ALJ erred in his overall assessment of Dr.
Lowengart's opinion because it was consistent with the record and supported by objective
medical evidence.
II.

Wilcox's Subjective Symptom Testimony
The Ninth Circuit relies on a two-step process for evaluating the credibility of a

claimant's testimony about the severity and limiting effect of the stated symptoms. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 503 F.3d 1028, 1035-36

(9th Cir. 2007)). "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." Lingenfelter, 503 F.3d at 1036 (citation and quotation
marks omitted). Second, absent 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." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Further, an ALJ
"may consider ... ordinary techniques of credibility evaluation, such as the claimant's reputation
10 - OPINION AND ORDER

for lying, prior inconsistent statements concerning the symptoms . . . [or] other testimony that
appears less than candid." Id. at 1284. However, a negative credibility finding made solely
because the claimant's symptom testimony "is not substantiated affirmatively by objective
medical evidence" is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006). Nevertheless, the ALJ's credibility finding may be upheld even if not all of the ALJ's
rationales for rejecting claimant testimony are upheld. See Batson, 359 F.3d at 1197.
The ALJ discounted Wilcox's subjective symptom testimony, arguing that Wilcox failed
to follow prescribed courses of treatment. See Tommasetti, 533 F.3d at 1039. As noted by the
ALJ, Wilcox did not attend therapy sessions to minimize her depression, declined a referral to a
pain specialist, failed to consistently use her CPAP machine to reduce sleep apnea, failed to
obtain 01ihotics to reduce her foot pain, and waited six months after a physician prescribed the
drng Lexapro to begin her treatment regimen. Tr. 643, 650, 702, 750. Therefore, the ALJ did
not err in impugning Wilcox's subjective symptom testimony for failure to follow prescribed
courses of treatment.
The ALJ also discredited Wilcox's testimony because she ceased work for reasons other
than a disability. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). Wilcox ceased
working because her boss was a "bully" and contributed to a stressful work environment that
aggravated her anxiety. Tr. 583. Dr. Newton opined that, because Wilcox's anxiety decreased
after she left her job, Wilcox's anxiety originated from an external source- her supervisor. Tr.
700, 702. Subsequently, Wilcox did not seek out employment at a less stressful workplace, but
described herself as "retired," or stated that she stopped working for reasons "not due to health."
Tr. 24. While Wilcox argues that she left her job because her pain became unbearable, the ALJ's
interpretation of the record was reasonable and must be upheld. Batson 359 F.3d at 1193.

11 - OPINION AND ORDER

The ALJ also rejected Wilcox's subjective testimony due to prior inconsistent statements.
See Tommasetti, 533 F.3d at 1040. As noted above, Wilcox provided inconsistent explanations

for leaving her job, including that she left due to stress, pain, the inability to conform to the
physical requirements of the job, or that she "retired." Tr. 43-47. Wilcox also stated that she
could only travel up to 90 miles in a motorhome, but travelled to Hawaii without any reported
difficulty. Tr. 55-56, 725. Additionally, Wilcox provided vague testimony about the extent and
frequency of her exercise routine, and provided contradictory testimony about her shopping
habits. Tr. 49-53. Wilcox initially stated that her husband performed the shopping but later
stated that she shopped once per month.

Tr. 54-55. The ALJ did not en in citing these

inconsistencies to impugn Wilcox's subjective symptom testimony.
III.

Lay Witness Ronald Norris
Lay witness testimony is competent evidence which an ALJ must take into account

unless the ALJ provides specific, germane reasons to disregard the testimony.

Dodrill v.

Shala/a, 12 F.3d 915, 919 (9th Cir. 1993); see also Molina v. Astrue, 674 F.3d 1104, 1114-15

(9th Cir. 2012).
Ronald Nonis, Wilcox's husband, submitted third-party adult function rep01is in July
2013 and August 2015. Tr. 242-49, 273-74. Mr. N01Tis stated that Wilcox spent most of her day
reading or watching television. Tr. 243. She regularly performed household chores, such as
cleaning the cat litter box, vacuuming, dusting, and laundry, but could not cook meals or work in
the yard. Tr. 243. Mr. Nonis stated that Wilcox's pain prevented her from sleeping, engaging in
physical and social activities, and thinking clearly. Tr. 243, 246, 273. Mr. N01Tis also stated that
medication helped Wilcox's conditions, but failed to eliminate her symptoms and caused side
effects, such as fatigue and cloudy thinking. Tr. 274. Mr. Nonis opined that Wilcox was

12 - OPINION AND ORDER

"unable to perform any manner of productive work" and would not be able to perform any job
where they lived. Tr. 249, 274.
The ALJ gave little weight to Mr. Norris's testimony. First, the ALJ stated that Mr.
Norris's testimony failed to provide any additional insight or limitations regarding Wilcox's
impairments. Tr. 23.

The majority of Mr. Nonis's testimony parallels the symptoms and

limitations described by Wilcox. Despite the ALJ's assertion, however, Mr. Nonis described
additional limitations omitted from Wilcox's adult function report, including anger, crying,
contentiousness, and forgetfulness, as well as an inability to conform to a schedule. Tr. 246, 27374. Mr. Nonis further noted that Wilcox's pain caused lapses in concentration and her ability to
converse with others.

Tr. 273.

Dr. Lowengart also noted Wilcox experienced difficulty

concentrating and irritability as a result of her symptoms. Tr. 561. Accordingly, Mr. Norris's
testimony provided further insight into the extent and severity of the functional effects of
Wilcox's severe impairments, which is precisely the type of competent evidence that the SSA
seeks to elicit in providing third-party function report forms. SSR 06-03p. The ALJ's finding
was erroneous.
The ALJ also gave little weight to Mr. Norris's testimony because it was inconsistent
with the record. While inconsistency with the record is generally a germane reason to discount
lay witness testimony, here the ALJ failed to identify any probative inconsistency. Rather, the
ALJ found that Wilcox and Norris provided slightly differing accounts of which of them cleaned
their cat's litterbox. Tr. 232, 243. It is not clear why the ALJ felt that this detail was material in
this case. Even assuming Wilcox occasionally cleans the litterbox, she has not alleged that the
task is beyond her capabilities. Wilcox and Mr. Norris provided generally consistent testimony
about her functional limitations. Such a minor inconsistency does not fulfill the "specific" and

13 -OPINION AND ORDER

"germane" evidentiary bar necessary to discount Mr. NoITis' testimony. See Molina, 674 F.3d at
1114-15.
The Commissioner argues that inconsistency with the medical evidence is a specific and
germane reason to discount lay witness testimony, citing Bayliss. Bayliss, 427 F.3d at 1211.
Bayliss is inapposite; in Bayliss, the ALJ identified specific portions of the lay witness testimony

contradicting the medical record. Id. Here, the ALJ merely stated that Mr. NoITis's testimony
contradicted "the medical and other evidence of record" without providing examples of such
contradictions. Therefore, the Commissioner's argument fails.
The ALJ also noted that Mr. NoITis's testimony was less credible because he and Wilcox
were maITied. Tr. 23. This reasoning runs afoul of the general precedent that "friends and
family members in a position to observe a claimant's symptoms and daily activities are
competent to testify as to [his or] her condition." Valentine v. Comm 'r of Soc. Sec. Admin., 574
F.3d 685, 694 (9th Cir. 2009) (quoting Dodrill, 12 F.3d at 918-19). But see Greger v. Barnhart,
464 F.3d 968, 972 (9th Cir. 2006) (the ALJ discredited the lay witness testimony due to the
witness's "close relationship" with the plaintiff). Although an ALJ is not required to accept the
testimony of a spouse, the ALJ must give specific reasons for discounting that spouse's opinion,
such as ignorance with the claimant's functional capacity. Valentine, 574 F.3d at 694. Here,
those reasons were not given, as Mr. NoITis testified that he spends the majority of his days with
his wife and is familiar with her functional capacity. Tr. 242.
The ALJ further discredited Mr. Norris' testimony because he opined that Wilcox was
completely disabled.

Tr. 23.

The ultimate decision on disability is reserved to the

Commissioner. See 20 C.F.R. § 404.1527(d)(l) (the Commissioner is "responsible for making
the determination or decision about whether you meet the statutory definition of disability").
Thus, the ALJ did not err in giving Mr. NoITis' statements about Wilcox's "complete disability"
14 - OPINION AND ORDER

no weight. Tr. 249. However, after eliminating Mr. Norris's statements regarding disability, his
observations of Wilcox's functioning are relevant and must be accepted or rejected for specific
and germane reasons.
Remand

The decision whether to remand for further proceedings or for immediate payment of
benefits is within the discretion of the court. Harmen v. Apfel, 211 F.3d 1172, 1178 (9th Cir.
2000), cert. denied, 53 l U.S. 1038 (2000). The issue turns on the utility of further proceedings.
A remand for an award of benefits is appropriate when no useful purpose would be served by
further administrative proceedings or when the record has been fully developed and the evidence
is insufficient to supp01i the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 113839 (9th Cir. 2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The comi
may not award benefits punitively and must conduct a "credit-as-true" analysis to determine if a
claimant is disabled under the Act. Id. at 1138.
Under the "credit-as-true" doctrine, 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. Id.

The "credit-as-true"

doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in
determining whether to enter an award of benefits upon reversing the Commissioner's decision.
Connett v, Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (citing Bunnell v. Sullivan, 947 F.2d 341,

348 (9th Cir. 1991) (en bane)). The reviewing court should decline to credit testimony when
"outstanding issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).

15 - OPINION AND ORDER

While the ALJ erred by failing to give sufficient reasons for rejecting the opinions of Dr.
Lowengart and Ronald Norris, outstanding issues remain that must be resolved.

The ALJ

correctly noted that Dr. Lowengart assessed a disability onset date based solely on Wilcox's
discredited subjective symptom testimony, and the record does not support Wilcox's alleged
disability onset date of March 2011. Dr. Lowengart's other findings, however, were consistent
with the record and highly probative.
On remand, and in light of Dr. Lowengart's extensive treatment history with Wilcox, the
ALJ must either accept or reject her medical opinion. Similarly, the ALJ must accept or reject
Ronald HatTis' lay witness testimony for germane and specific reasons. Because the record
contains outstanding issues that must be resolved the third prong of the credit-as-true rule is not
reviewed. The proper course is to remand this case for further proceedings.
Conclusion

Based on the foregoing, the Commissioner's decision denying Wilcox's application for
DIB is REVERSED and REMANDED for further proceedings
DATED this

/& ~y of April, 2018.
0

t tes Magistrate Judge

16 - OPINION AND ORDER