Malsi v. Commissioner Social Security Administration

Filing 14

Opinion and Order: Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is Reversed and Remanded for immediate calculation and award of benefits. Signed on 7/11/2019 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DOUGLAS M.,1
Plaintiff,

Civ. No. 1:18-cv-00704-MC

v.

OPINION & ORDER

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________________
McSHANE, District Judge:
Plaintiff Douglas M. seeks judicial review of the final decision of the Commissioner of
Social Security (“Commissioner”).

The decision of the Commissioner is REVERSED and

REMANDED for immediate calculation and award of benefits.
BACKGROUND
On May 5, 2014, Plaintiff filed a Title II application for a period of disability and
disability insurance benefits and a Title XVI application for supplemental security income
alleging disability beginning August 15, 2010. Tr. 18. The claims were denied initially and
upon reconsideration. Id. At Plaintiff’s request, a hearing was held before an administrative law
judge (“ALJ”) on November 10, 2016. Id. On December 9, 2016, the ALJ issued a decision
finding Plaintiff not disabled. Tr. 28. The Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision the final decision of the Commissioner. Tr. 1. This appeal followed.

1

In the interest of privacy, this opinion uses only first name and the initial of the last name of the non-governmental
party or parties in this case. Where applicable, this opinion uses the same designation for a non-governmental
party’s immediate family member.

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DISABILITY ANALYSIS
A claimant is disabled if he or she is unable 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). “Social Security Regulations set out a five-step sequential process for determining
whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm’r,
648 F.3d 721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant’s impairment severe? (3) Does the impairment meet or
equal one of a list of specific impairments described in the regulations? (4) Is the
claimant able to perform any work that he or she has done in the past? and (5) Are
there significant numbers of jobs in the national economy that the claimant can
perform?
Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d at
953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
is able to perform other work existing in significant numbers in the national economy, the claimant
is not disabled. Bustamante, 262 F.3d at 953-54.
THE ALJ’S FINDINGS
The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had not
engaged in substantial gainful activity since the alleged onset date, August 15, 2010. Tr. 20. The

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ALJ determined Plaintiff had the following severe impairments: degenerative disc and joint
disease of the lumbar spine; lumbago; history of cervical nerve root impingement status post disc
fusion; tremor; post-traumatic stress disorder (“PTSD”); major depression; panic disorder;
cognitive disorder NOS; and psychoactive substance abuse disorder. Id. The ALJ determined
Plaintiff’s impairments did not meet or equal a listed impairment. Tr. 21.
The ALJ determined Plaintiff had the RFC to perform a range of light work with the
following additional restrictions: he is limited to lifting and/or carrying 20 pounds occasionally
and 10 pounds frequently; he is limited to sitting, standing, and/or walking about six hours in an
eight-hour work day, with normal breaks; he is limited to no more than frequent climbing of ramps
or stairs and no climbing of ladders, ropes, or scaffolds; he is limited to no more than frequent
balancing, stooping, kneeling, and crouching, and no more than occasional crawling; his is limited
to no more than occasional bilateral overhead reaching; he must avoid concentrated exposure to
temperature extremes; he must avoid concentrated exposure to excessive vibration; he must avoid
concentrated exposure to fumes, odors, dust, gases, and poorly ventilated areas; he must avoid
concentrated exposure to workplace hazards; he is limited to understanding and carrying out
simple instructions in a work environment with few changes; he is limited to no interaction with
the general public and no more than occasional, brief interaction coworkers and supervisors. Tr.
23.
The ALJ noted Plaintiff was 45 years old on the alleged onset date and has at least a high
school education and is able to communicate in English. Tr. 27. The ALJ found Plaintiff is unable
to perform past relevant work. Id. Based on his RFC, the ALJ determined Plaintiff was able to
perform work as a marking clerk, electrical accessories assembler, or garment sorter. Tr. 28. As
a consequence, the ALJ determined Plaintiff was not disabled. Id.

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STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
evidence “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
quotation marks omitted). In reviewing the Commissioner’s alleged errors, this Court must
weigh “both the evidence that supports and detracts from the [Commissioner’s] conclusion.”
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
When the evidence before the ALJ is subject to more than one rational interpretation,
courts must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala,
53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the
Commissioner’s decision on a ground that the agency did not invoke in making its decision.
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ’s
decision on account of an error that is harmless. Id. at 1055–56. “[T]he burden of showing that
an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki
v. Sanders, 556 U.S. 396, 409 (2009).
DISCUSSION
Plaintiff alleges the ALJ erred by (1) improperly rejecting the medical opinions of treating
and examining sources; (2) improperly rejecting Plaintiff’s subjective symptom testimony; (3)
improperly rejecting lay witness testimony; and (4) failing to account for all of Plaintiff’s
limitations in the hypothetical question to the Vocational Expert (“VE”).

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I.

Medical Opinion Evidence
Plaintiff asserts that the ALJ erred by rejecting the opinions of examining psychologist

William Trueblood, Ph.D., examining physician Daniel S. Selinger, M.D., and treating physician’s
assistant Jonathan Neal. The ALJ is responsible for resolving conflicts in the medical record.
Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). “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[.]” Turner v. Comm’r, 613 F.3d 1217, 1222 (9th Cir. 2010) (internal quotation marks
and citation omitted). An ALJ may reject the uncontradicted medical opinion of a treating or
examining physician only for “clear and convincing” reasons supported by substantial evidence in
the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may reject the
contradicted opinion of a treating or examining doctor by providing “specific and legitimate
reasons that are supported by substantial evidence.” Id.
A. Dr. Trueblood
Dr. Trueblood examined Plaintiff on June 7, 2013. Tr. 687. In his report, Dr. Trueblood
noted that Plaintiff’s affect was appropriate, with no apparent anxiety or irritability. Tr. 692.
During testing, Plaintiff performed one of the tests incorrectly and, after being told that he was not
performing the test properly, continued to perform incorrectly. Id. Dr. Trueblood opined:
“Possibly this reflects some frustration or the manner in which this gentleman might sometimes
react when he encounters difficulty on a task.” Id. Despite this, Dr. Trueblood rated Plaintiff’s
cooperation and effort as good. Id.
Dr. Trueblood also filled out a Mental Residual Function Capacity Report. Tr. 699. In that
report, Dr. Trueblood opined that Plaintiff is moderately limited in a number of areas of sustained
concentration and persistence; social interaction; and adaptation. Tr. 699-700. Of particular note,

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Dr. Trueblood assessed marked limitations in Plaintiff’s “ability to accept instructions and respond
appropriately to criticism from supervisors.” Tr. 700. The form defines a marked limitation as “A
limitation which precludes the ability to perform the designated activity on a regular and sustained
basis, i.e., 8 hours a day, 5 days a week or an equivalent work schedule.” Tr. 699. Dr. Trueblood
also completed a Rating of Impairment Severity for Plaintiff, in which he again assessed moderate
impairments to activities of daily living and concentration, persistence, or pace, as well as
“marked” impairments in social functioning.2 Tr. 701. With respect to social functioning, Dr.
Trueblood noted a “pattern of interpersonal problems on jobs. [Plaintiff] appears to have limited
insight into any contribution he may make to these problems.” Id.

Dr. Trueblood indicated that

Plaintiff had had one or two episodes of decompensation within the preceding year. Tr. 701-02.
The ALJ gave “significant weight” to Dr. Trueblood’s opinion, noting that it was
“reasonably consistent with [Plaintiff’s] own work history.” Tr. 25. “On the other hand, the
claimant demonstrated ‘good’ cooperation with Dr. Trueblood during their interview—and there
was no sign of anxiety or irritability. Such evidence suggests that the claimant can tolerate
occasional, brief interaction with coworkers and supervisors.” Id. “His history of anxiety and
irritability, however, reasonably precludes jobs involving interaction with the general public.” Id.
This conclusion is not, however, consistent with Dr. Trueblood’s actual findings. As
discussed above, Dr. Trueblood specifically noted Plaintiff’s “marked” limitation with respect to
accepting instruction and responding appropriately to criticism from supervisors. Dr. Trueblood
similarly noted Plaintiff’s pattern of interpersonal conflicts at work, which the ALJ agreed was

In this context, “Social functioning refers to the capacity to interact appropriately, independently, and effectively
with other individuals on a sustained basis. Impaired social functioning may be demonstrated by a history of
altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, etc. Social
functioning in work situations may involve interacting with the public, responding appropriately to persons in
authority, or cooperating with co-workers. A marked limitation in social functioning is not the total number of areas
impaired, but the nature and overall degree of interference with function.” Tr. 701.
2

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reasonably consistent with Plaintiff’s work history. The fact that Plaintiff was cooperative and
gave good effort during a single consultative examination is not substantial evidence to reject Dr.
Trueblood’s opinion concerning Plaintiff’s limitations in sustained social functioning.
Accordingly, the Court concludes that the ALJ erred by failing to credit Dr. Trueblood’s opinion
with respect to Plaintiff’s ability to interact with coworkers and supervisors.
Social Security Ruling (“SSR”) 85-15 addresses the necessity of appropriate interaction
with supervisors and coworkers in the disability context:
The basic mental demands of competitive, remunerative, unskilled work include
the abilities (on a sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting. A substantial loss of
ability to meet any of these basic work-related activities would severely limit the
potential occupational base. This, in turn, would justify a finding of disability
because even favorable age, education, or work experience will not offset such a
severely limited occupational base.
SSR 85-15, available at 1985 WL 56857, at *4 (emphasis added).
In light of SSR 85-15, the Court cannot conclude that the ALJ’s failure to address the
marked limitations assessed by Dr. Trueblood was harmless.
B. Dr. Selinger
Dr. Selinger examined Plaintiff on July 1, 2015. Tr. 703. He diagnosed Plaintiff with
lower back pain, neck pain, and tremors, “especially in the left upper extremity.” Tr. 706. In
functional terms, Dr. Selinger limited Plaintiff to frequent manipulation and a maximum lifting
and carrying capacity of 20 pounds occasionally and 10 pounds frequently due to back and neck
pain. Id. Likewise, Dr. Selinger opined that Plaintiff could climb stairs if there are rails, but could
never climb ladders, ropes, and scaffolds. Id. Plaintiff could kneel or crawl without limitation,
but could only stoop or crouch occasionally because of back and neck pain. Id. Dr. Selinger

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opined that Plaintiff could sit up to six hours in an eight-hour workday, but limited Plaintiff’s
standing and walking capacity to four hours due to back pain. Id.
The ALJ “generally adopted the exertional and postural limits recommended by Dr.
Selinger,” but with additional environmental restrictions to account for Plaintiff’s asthma. Tr. 26.
Despite this general adoption, the ALJ limited Plaintiff to sitting, standing, or walking “about six
hours in an eight hour workday, with normal breaks.” Tr. 23. The ALJ did not directly address
either Dr. Selinger’s opinion limiting Plaintiff to no more than four hours of standing or walking,
or the limitation to frequent manipulation.
The Commissioner argues that the ALJ implicitly rejected Dr. Selinger’s opinion by relying
on the opinions of the reviewing physicians, who opined that Plaintiff could stand or walk up to
six hours and had unlimited fine/gross manipulation. Tr. 66-67, 79-80, 96-97, 111-12. The
Commissioner’s argument is, however, contrary to the ALJ’s findings, which expressly credited
the postural and exertional limitations identified by Dr. Selinger. If the ALJ intended to reject Dr.
Selinger’s opinion, the ALJ was required to identify specific and legitimate reasons for doing so,
supported by substantial evidence. The failure to offer such reasoning was error. Consistent with
the RFC assessed in the present case, Tr. 23, light work “requires standing or walking, off and on,
for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10, available at 1983 WL
31251, at *6. Dr. Selinger found Plaintiff limited to four hours of standing or walking. As such,
the Court cannot conclude that the error was harmless.
C. PA Jonathan Neal
Under the then-operative regulations, the opinion of a physician’s assistant was considered
an “other medical source,” rather than an “acceptable medical source.” See Kimberly S. v. Comm’r,
No. 3:17-cv-01956-HZ, 2018 WL 6198275, at *4 (D. Or. Nov. 28, 2018) (summarizing regulatory

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developments in the consideration of the opinions of “other medical sources,” such as physician
assistants and nurse practitioners).
With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not “acceptable medical
sources,” such as nurse practitioners, physician assistants, and licensed clinical
social workers, have increasingly assumed a greater percentage of the treatment and
evaluation functions previously handled primarily by physicians and psychologists.
SSR 06-03p, available at 2006 WL 2329939, at *3.
While opinions from non-acceptable medical sources may not be given controlling weight,
their opinions may be used in determining the severity of the claimant’s impairments and how it
affects the claimant’s ability to work. Id. The ALJ may reject the competent testimony of “other
medical sources” for reasons “germane to the witness.” Molina v. Astrue, 674 F.3d 1104, 1111
(9th Cir. 2012). Germane reasons may include a finding that the testimony contradicts the
witness’s own earlier testimony or that of other medical specialists, or that the witness was biased.
Dale v. Colvin, 823 F.3d 941, 944-45 (9th Cir. 2016).
In considering “other medical source” opinions, ALJ should weigh the length of
relationship and frequency of contact; the level of consistency with other evidence of record; the
degree to which the source presents relevant evidence to support an opinion; the quality of opinion
explanation; specialty area expertise, if applicable; and any other factors that tend to refute the
opinion. SSR 06-03p, 2006 WL 2329939, at *4-5. Depending on the facts of the case and the
application of the factors, an opinion offered by a medical source who is not an “acceptable
medical source” may outweigh the opinion of an “acceptable medical source,” potentially
including the medical opinion of a treating source. Id. at *5.
In this case, Mr. Neal submitted a brief letter on February 2, 2015, asking that Plaintiff be
excused from work. Tr. 599. Mr. Neal opined that Plaintiff was “restricted from any competitive

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work environment due to chronic nerve damage in cervical region with syrinx.” Id. Mr. Neal
indicated that Plaintiff’s condition had persisted for five years. Id. The ALJ gave little weight to
Mr. Neal’s opinion, noting that it was cursory, contradicted by “relatively benign findings,” and
that Mr. Neal’s conclusion that Plaintiff was unable to work was “outside the medical realm and
is reserved solely to the Commissioner.” Tr. 26. The ALJ also noted that Mr. Neal’s conclusions
were contradicted by the opinions of Dr. Nancy Maloney and Dr. Selinger. Id.
Plaintiff acknowledges that Mr. Neal’s letter is brief, but contends that the letter is not
offered in isolation and is supported by Mr. Neal’s treatment notes. On April 5, 2012, Mr. Neal
observed left side pain, bilateral tremors in Plaintiff’s arms, and weakness in Plaintiff’s left hand.
Tr. 422-23. On December 11, 2012, Mr. Neal made similar observations. Tr. 416. On March 14,
2013, Mr. Neal again observed radicular pain on Plaintiff’s left side, bilateral tremors, and reduced
strength in Plaintiff’s left hand, although he noted that Plaintiff “does appear to be in less pain than
before.” Tr. 411. On August 14, 2013, Mr. Neal observed antalgic gait, with painful and reduced
range of motion on Plaintiff’s left side, as well as pain and tremors on Plaintiff’s right side. Tr.
408.
The ALJ acknowledged and discussed Mr. Neal’s treatment notes, particularly those from
2015. Tr. 26. On July 27, 2015, Mr. Neal noted reduced range of motion, but “no real change in
pain or mobility ranges—reduced tremors noted today on his UE and arms.” Tr. 603. Identical
notes were entered on September 4, 2015, June 25, 2015, April 10, 2015, March 2, 2015, February
2, 2015, and November 24, 2014. Tr. 634, 606, 612, 615, 618-19, 622. Mr. Neal’s note from July
9, 2014, similarly indicates reduced range of motion and “no real change in pain or mobility
ranges.” Tr. 627.

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While it seems dubious to characterize an observation of “no real change” in pain or
mobility ranges as “benign” in light of Mr. Neal’s consistent findings of pain and reduced range
of motion, the ALJ did find that Mr. Neal’s findings were contradicted by Drs. Maloney and
Selinger. On July 25, 2012, Dr. Maloney found negative straight leg raise tests bilaterally, and
“no impairment within bilateral upper or lower extremity movement not indication of tremor.” Tr.
684-85. Dr. Selinger similar found negative straight leg raise tests bilaterally, with 5/5 bilateral
motor strength, muscle bulk, and tone. Tr. 704-05. Like Mr. Neal, Dr. Selinger observed a tremor,
which he described as “mild,” in Plaintiff’s left upper extremity. Tr. 704. As discussed above,
Dr. Selinger assessed greater limitations than were ultimately incorporated into Plaintiff’s RFC,
but not so sweeping as those included in Mr. Neal’s letter. Tr. 706. The ALJ reasonably found
Mr. Neal’s opinion to be contradicted by the opinions of acceptable medical sources.
On this record, the Court concludes that the ALJ gave a sufficiently germane reason for
rejecting Mr. Neal’s opinion.
II.

Subjective Symptom Testimony
To determine whether a claimant’s testimony is credible, an ALJ must perform a two-stage

analysis. 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must
produce objective medical evidence of an underlying impairment that could reasonably be
expected to produce the symptoms alleged. Molina, 674 F.3d at 1112. At the second stage of the
credibility analysis, absent evidence of malingering, the ALJ must provide clear and convincing
reasons for discrediting the claimant’s testimony regarding the severity of symptoms. Carmickle,
533 F.3d at 1160.
The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant’s testimony. Ghanim v. Colvin,

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763 F.3d 1154, 1163 (9th Cir. 2014). An ALJ may use “ordinary techniques of credibility
evaluation” in assessing a claimant’s credibility, such as prior inconsistent statements concerning
the symptoms, testimony that appears less than candid, or a claimant’s daily activities. Id.
“General findings are insufficient; rather, the ALJ must identify what testimony is not credible and
what evidence undermines the claimant’s complaints.” Reddick v. Chater, 157 F.3d 715, 722 (9th
Cir. 1998) (internal quotation marks and citation omitted).
In this case, Plaintiff testified that he experiences tremors, which “cause different muscles
in different parts of [his] body to spontaneously start moving on their own.” Tr. 42-43. The
tremors interfere with his ability to use his hands. Tr. 45. Plaintiff estimated that he could use his
hands for between three and five minutes at a time “on a good day” due to his tremors. Id. Plaintiff
testified that he experiences back pain and that pain medication leaves him “fuzzy-headed.” Tr.
46. Plaintiff’s pain medication leaves him unable to drive and so he does not maintain a driver’s
license. Tr. 47. Plaintiff is also prescribed sleep medication, but it causes him to sleep for 12 to
14 hours at a time and so he does not like to take it. Tr. 51. With respect to daily activities,
Plaintiff testified that he is mostly unable to help with housework or chores, other than tending to
his daughter while his fiancée cleans the house. Tr. 46. If he attempts to vacuum or perform tasks
that require him to bend over, Plaintiff’s back will begin to twitch, which causes him to fall. Tr.
46-47.
In terms of social functioning, Plaintiff visits with a neighbor once or twice per week, but
does not otherwise participate in social activities. Tr. 48. Plaintiff left his previous work at a call
center due to a combination of lower back issues and conflict with his supervisors. Id. Plaintiff
similarly left his job at a pizza parlor after coming into conflict with a coworker. Tr. 48-49.

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In this case, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that Plaintiff’s testimony “concerning
the intensity, persistence and limiting effects of these symptoms are not entirely consistent with
the medical evidence and other evidence in the record for the reasons explained in this decision.”
Tr. 24.

In the following paragraphs, the ALJ summarizes the medical opinion evidence and

assigns weight to the opinions of medical and lay sources, but does not clearly relate those findings
back to specific portions of Plaintiff’s testimony or explain why that evidence contradicts
Plaintiff’s testimony. Tr. 24-27.
In similar circumstances, the Ninth Circuit has held that such reasoning is insufficient and
reviewing courts are not permitted to “comb the administrative record to find specific conflicts”
supporting the ALJ’s conclusion. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015).
Our review of the ALJ’s written decision reveals that she did not specifically
identify any such inconsistencies [between the plaintiff’s testimony and the record];
she simply stated her non-credibility conclusion and then summarized the medical
evidence supporting her RFC determination. This is not the sort of explanation or
the kind of “specific reasons” we must have in order to review the ALJ’s decision
meaningfully, so that we may ensure that the claimant’s testimony was not
arbitrarily discredited. . . . Because the ALJ failed to identify the testimony she
found not credible, she did not link that testimony to the particular parts of the
record supporting her non-credibility determination. This was legal error.
Id.
The Ninth Circuit further concluded that the ALJ’s error was not harmless. Id. “Although
the ALJ summarized a significant portion of the administrative record in support of her RFC
determination, providing a summary of medical evidence in support of a residual functional
capacity finding is not the same as providing clear and convincing reasons for finding the
claimant’s symptom testimony not credible.” Id. (emphasis in original). Courts cannot review
whether the ALJ provided specific, clear, and convincing reasons for rejecting a claimant’s

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testimony where “the ALJ never identified which testimony she found not credible, and never
explained which evidence contradicted that testimony.” Id. (emphasis in original).
The present case is squarely analogous to Brown-Hunter. A summary of the medical
evidence supporting an RFC determination is no substitute for specific, clear, and convincing
reasons for rejecting Plaintiff’s subjective symptom testimony and this Court cannot trawl the
record to make up the deficiency through its own findings. The ALJ erred by failing to provide
adequate support for the rejection of Plaintiff’s subjective symptom testimony and, consistent with
Brown-Hunter, that error was not harmless.
III.

Lay Witness Testimony
Plaintiff asserts the ALJ erred by rejecting the lay witness testimony of Plaintiff’s fiancée,

Kristine E. Lay witness testimony regarding a claimant’s symptoms is competent evidence that
the ALJ must consider 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). The ALJ’s reasons for rejecting a lay witness’s testimony must also be “specific.” Stout,
454 F.3d at 1054 . When “the ALJ’s error lies in a failure to properly discuss competent lay
witness testimony favorable to the 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.” Id. at 1056.
In this case, Kristine E. submitted a Third-Party Function Report as part of Plaintiff’s
application. Tr. 230-37. Kristine E. reported Plaintiff is unable to “stand, walk, write, and use
fine motor control of hands and body [due] to constant controllable [twitching] of mus[cles].” Tr.
230. He is unable to lift or carry heavy weight for any length of time due to “loss of strength and
motor control of limbs from the [twitching].” Id. She reported that he watches television and

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reads books or plays on the computer when he is able to do so. Tr. 231. Plaintiff will keep an eye
on their daughter when her mother is busy and will care for the family pets, if the tasks involved
do not require heavy lifting. Id. Kristine E. indicated that she does the bulk of the housework and
childcare, as well as looking after their pets. Id. She reported that Plaintiff needs help getting
dressed, bathing, and shaving due to a lack of fine motor control. Id. Plaintiff is able to help with
washing dishes or vacuuming on a very limited basis. Tr. 232 (Plaintiff vacuums twice per month,
for a total of two hours per month and “He can only do the above [vacuuming and dishes] for a
few min before he has to stop and rest.”). Approximately twice per month Plaintiff will shop for
groceries for thirty minutes at a time. Tr. 233.
Kristine E. reported that Plaintiff has trouble lifting, squatting, bending, standing, reaching,
walking, kneeling, stair climbing, completing tasks, and using his hands. Tr. 235. He can walk
for about five minutes before needing to rest. Id. She reported that he gets along with authority
figures “very well,” but that in stressful situations he “gets frustrated easily and has to take about
an hour to calm himself.” Tr. 235-36. He handles changes in routine “badly” and Kristine E.
indicates that she noticed unusual behaviors or fears, but did not provide further explanation. Tr.
236.
The ALJ gave “partial weight” to Kristine E.’s report, “to the extent they reasonably
support the conclusion the claimant could perform light unskilled tasks.” Tr. 27. The ALJ found
that “[w]hile the claimant’s severe impairments reasonably preclude the medium work he
performed in the past, he can still potentially sustain less demanding tasks.” Tr. 26. The ALJ
noted that Kristine E. “acknowledged the claimant’s symptoms still allowed him to prepare simple
meals, engage in light housework chores, go shopping in stores, and help his daughter complete
her homework.” Id.

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This is not an accurate recitation of what Kristine E. reported. As discussed above, Kristine
E. said that Plaintiff could not do most household chores and that he could only sustain activity
for a few minutes at time before needing to stop and rest. Kristine E.’s report clearly indicates that
she is responsible for almost all of the household chores and childcare. There is nothing in Kristine
E.’s report to support the conclusion that Plaintiff could sustain limited light work.

The

Commissioner argues that the report is internally inconsistent, but that is not a finding made by
the ALJ and, furthermore, the Court finds no internal inconsistency.3 Accordingly, the Court
concludes that the ALJ erred by failing to give sufficient germane reasons for rejecting the lay
witness testimony of Kristine E.
IV.

Remand
In this case, the Court has determined that the ALJ’s opinion contains non-harmless errors

and so must determine whether remand should be for further proceedings or for award of benefits.
The decision whether to remand for further proceedings or for the immediate payment of benefits
lies within the discretion of the court. Triechler v. Comm’r, 775 F.3d 1090, 1101-02 (9th Cir.
2014). A remand for award of benefits is generally appropriate when: (1) the ALJ failed to provide
legally sufficient reasons for rejecting evidence; (2) the record has been fully developed, there are
no outstanding issues that must be resolved, and further administrative proceedings would not be
useful; and (3) after crediting the relevant evidence, “the record, taken as a whole, leaves not the
slightest uncertainty” concerning disability. Id. at 1100-01 (internal quotation marks and citations
omitted); see also Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the
standard for determining the proper remedy). The second and third prongs of the test often merge

The Commissioner also argues that the ALJ rejected Kristine E.’s testimony on the same basis that Plaintiff’s
subjective symptom testimony was rejected. As previously discussed, however, the ALJ failed to provide specific,
clear, and convincing reasons for rejecting Plaintiff’s subjective symptom testimony.
3

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into a single question: Whether the ALJ would have to award benefits if the case were remanded
for further proceedings. Harman v. Apfel, 211 F.3d 1172, 1178 n.7 (9th Cir. 2000).
In the present case, the ALJ erred by rejecting the medical opinions of Dr. Trueblood
concerning Plaintiff’s mental limitations, and Dr. Selinger concerning Plaintiff’s exertional
limitations. The ALJ further erred by rejecting Plaintiff’s subjective symptom testimony and the
lay witness testimony of Plaintiff’s fiancée Kristine E. The Court concludes that the record is fully
developed and that further administrative proceedings would serve no useful purpose.
Consideration of the record leaves this Court in no doubt concerning disability. “Allowing the
Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let’s play
again’ system of disability benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th
Cir. 2004). Accordingly, this case shall be remanded for an immediate calculation and award of
benefits.
CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is
REVERSED and REMANDED for immediate calculation and award of benefits.
DATED this 11th day of July, 2019.

s/Michael J. McShane

MICHAEL McSHANE
United States District Judge

Page 17 – OPINION & ORDER