Long v. Commissioner Social Security Administration

Filing 21

OPINION AND ORDER. For the reasons set forth above, the Commissioner's final decision denying benefits to plaintiff is REVERSED, and this case is REMANDED, for further proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 05/14/2012 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
TAMMY RENEE LONG,
Plaintiff,

v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
JOHN E. HAAPALA, JR.
401 E. Tenth Avenue, Suite 240
Eugene, Oregon 97401
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
JEFFREY R. MCCLAIN
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MiS 221A
Seattle, Washington 98104
Attorneys for Defendant

1 - OPINION AND ORDER

Case No. 3:11-cv-06109-MA
OPINION AND ORDER

MARSH, Judge:
Plaintiff Tammy Long brings this action for judicial review of
a final decision of the Commissioner of Social Security denying her
applications for supplemental security income (SSI) and disability
insurance benefits
Security Act

(DIB)

under Titles XVI and II of the Social

(the Act).

See 42 U.S.C.

§§

401-403,

This Court has jurisdiction pursuant to 42 U.S.C.
u.S.C.

§

1383(c)(3).

§

1381-1383f.

405(g) and 42

For the reasons set forth below, I REVERSE

the final decision of the Commissioner and REMAND this case for
further proceedings.
PROCEDURAL BACKGROUND

Plaintiff filed applications for SSI and DIB on October 18,
2007, alleging disability due to a left thumb injury, acid reflux,
and migraines as of September 12,

2007.

Her applications were

denied initially and upon reconsideration.
before

Administrative

Law

Judge

(ALJ)

Gary

A hearing was held
L.

Vanderhoof

on

November 9, 2009, at which plaintiff was represented by counsel and
testified,
George

as did Medical Expert

Decherd,

M. D.,

plaintiff's husband,

(ME)

Vocational Expert
James Long.

Gayle Monnig,
(VE)

Ph.D.,

Mark McGowan,

On December 14,

2009,

ME
and

the ALJ

issued a decision finding plaintiff not disabled within the meaning
of the Act.

After the Appeals Council declined review of the ALJ's

decision, plaintiff timely filed a complaint in this Court.

2 - OPINION AND ORDER

FACTUAL BACKGROUND

Born on January 1, 1969; plaintiff was 38 years old on the
alleged onset date of disability and 40 years old at the time of
the hearing.

Plaintiff has a high school diploma and attended one

year of college.

She has past relevant work as an assembly worker,

shipper, caregiver, and restaurant worker.
In June 2006, plaintiff sustained a thumb injury on her left
hand.

Over the

next

two months,

she

engaged in a

number of

physical therapy sessions, which were ultimately unsuccessful in
alleviating her painful symptoms.
plaintiff

underwent

surgery

to

Consequently, in September 2007,
correct

this

injury;

despite

enduring a substantial number of physical therapy sessions postsurgery, plaintiff alleges that she has never been able to regain
use of her left hand.
THE ALJ'S DISABILITY ANALYSIS

The

Commissioner

has

established

a

five-step

process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.

burden of proof at Steps One through Four.
1098

(9th Cir.

1999).

Bowen v.

404.1520, 416.920.

The claimant bears the

Each step is potentially disposi ti ve.

180 F.3d 1094,

§§

sequential

See Tackett v. Apfel,

The burden shifts to the

Commissioner at Step Five to show that a significant number of jobs
exist

in

the

national

economy that

Yuckert, 482 U.S. at 141-42.
3 - OPINION AND ORDER

the

claimant

can perform.

At Step One, the ALJ found that plaintiff has not engaged in
substantial

gainful

activity.

See

20

C.F.R.

404.1520(b),

§§

404.1571 et seq., 416.920(b), 416.971 et seq.
At Step Two, the ALJ found that plaintiff has the following
severe

impairments:

thumb,

depression,

status

post

and anxiety.

severe

hyperextension

See 20 C.F.R.

§§

of

left

404.1520(c),

416.920 (c) .
At Step Three,

the ALJ found that plaintiff's impairments,

either singly or in combination, did not meet or medically equal a
listed

impairment.

See

20

C.F.R.

§§

404.1520(d),

404.1525,

404.1526, 416.920(d), 416.925, 416.926.
The ALJ determined that plaintiff has the residual functional
capacity

(RFC)

to

perform light

work,

but

with

the

following

limitations:
lift/carry up to 20 pounds occasionally and 10 pounds
bilaterally but only 10 pounds occasionally with the left
upper extremity; occasiona[l] use of the left hand for
handling/fingering; stand/walk up to 6 hours in an 8 hour
workday; sit up to 8 hours in an 8 hour workday; no
climbing ladders, ropes, or scaffolds; and no work around
unprotected heights or dangerous, moving machinery . . .
work [that] primarily [involves contact] with things
rather than people, although one on one or one on two
contacts [are] sufficient . . . [and work that is limited
to] simple, routine, repetitive, or non-difficult tasks.
(Tr. 21.)
See 20 C.F.R.

§§

404.1527, 404.1529, 416.927, 416.929.

4 - OPINION AND ORDER

At Step Four,

the ALJ found plaintiff was not capable of
See 20 C.F.R.

performing her past relevant work.

§§

404.1565,

416.965.
At

Step

Five,

the

ALJ

found

that

considering

her

age,

education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that plaintiff can
perform.

See 20 C.F.R.

416.960(c),416.966.

§§

404.1512(g), 404.1560(c), 404.1560(g),

Accordingly, the ALJconcluded that plaintiff

is not disabled within the meaning of the Act.
ISSUES ON REVIEW

Plaintiff asserts that the ALJ erred by: 1) not determining
that her knee pain, neck pain, shoulder pain, obesity, and righthanded carpal tunnel syndrome were severe impairments at Step Two;
2)

improperly

Kathleen
legally

evaluating

Finley and Heidi
a

sufficient

the

opinions

Bloom,

reason

to

of
3)

M. D.;
reject

nurse
failing

her

practitioner
to provide

sUbjective

symptom

testimony; 4) erroneously assessing the lay testimony of Mr. Long;
5) finding that plaintiff's mental impairments did not meet listing
12.06

at

Step

limitations

Three;

into

the

6)
RFC

failing

to

assessment;

incorporate
and

7)

all

posing

of

her

invalid

hypothetical questions to the VE at Step Five.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
5 - OPINION AND ORDER

are supported by substantial evidence in the record.
§

42 U.S.C.

405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

"Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."

Id.

The

court must weigh all the evidence, whether it supports or detracts
from the Commissioner's decision.
771,

772

upheld,

(9th Cir.
even

if

1986).
the

807 F.2d

The Commissioner's decision must be

evidence

one rational interpretation.

Martinez v. Heckler,

is

susceptible

to

more

Andrews, 53 F.3d at 1039-40.

than
If the

evidence supports the Commissioner's conclusion, the Commissioner
must be affirmed;

"the court may not substitute its judgment for

that of the Commissioner."

Edlund v. Massanari,

253 F. 3d 1152,

1156 (9th Cir. 2001).

DISCUSSION
I.

Step Two Findings
Plaintiff alleges that the ALJ failed to include her knee,

neck,

and shoulder pain, as well as her obesity and right-handed

carpal tunnel syndrome, as severe impairments at Step Two.

In the

alternative, plaintiff argues that the ALJ failed to fully develop
the record in regard to these impairments.

A.

Severe Impairments

At Step Two,
medically

the ALJ determines whether the claimant has a

determinable

6 - OPINION AND ORDER

severe

impairment

or

combination

of

impairments.

20 C.F.R. §§ 404.1520,

416.920.

An impairment is

"not severe U if it does not significantly limit the plaintiff's
ability to do basic work activities.

20 C.F.R. §§ 404.l52l(a),

4l6.92l(a); see also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir.
·2005) .
Only "acceptable medical sources,u can diagnose and establish
that a medical impairment exists at Step Two.
420 F.3d 1002,

1006

(9th Cir.

2005);

Ukolov v. Barnhart,

20 C.F.R.

§§

404.l513(a),

4l6.9l3(a); see also SSR 06-03p, available at 2006 WL 2329939, *12.

Step

evidence,

Two
such

accordingly,

findings
as

must

"signs,

"under

no

be

based

symptoms,

upon

and

circumstances

may

acceptable

laboratory
the

medical

findings

existence

of

U
;

an

impairment be established on the basis of symptoms alone. uSSR 964p, available at 1996 WL 374187, *1.
The Step Two threshold is low.

The Ninth Circuit describes

Step Two as a "de minimus screening device to dispose of groundless
claims. u

Smolen v. Chater,

80 F.3d 1273,

1290

(9th Cir.

1996).

Moreover, "[o]missions at [S]tep [T]wo are harmless if the ALJ's
subsequent

evaluation

considered the

omitted at [S]tep [T]wo. u
(D.Or.

July 1,

2011)

(9th Cir. 2007».

7 - OPINION AND ORDER

effect

of

the

impairment

Harrison v. Astrue, 2011 WL 2619504, *7

(citing Lewis v. Astrue,

498 F.3d 909,

911

i.

Knee, Neck, and Shoulder Pain

Plaintiff asserts that the ALJ erred by not finding that her
knee, neck, and shoulder pain were severe at Step Two.

The only

mention in the record of these impairments are from Ms.
(Tr. 266-85, 439-76.)

Finley.

Because Ms. Finley is a nurse practitioner,

and there is no evidence in the record that Ms. Finley is working
under

the

supervision of a

licensed physician,

she

is

not

an

"acceptable medical source" within the meaning of the regulations.
20

C.F.R.

404.l5l3(a),

§§

available

at

2006

WL

416.913(a);

2329939,

*2.

see

Thus,

also
Ms.

SSR

06-03p,

Finley

cannot

establish the existence of an impairment at Step Two.
Even if Ms. Finley were an acceptable medical source, there is
no acceptable medical evidence in the record, such as clinical or
laboratory findings, regarding plaintiff's knee, neck, and shoulder
pain other than her self-reports.
Ms.

(Tr. 266-85, 439-76.)

As such,

Finley's notes reflecting plaintiff's subjective statements

regarding

these

impairments

cannot

medically determinable impairment.

serve

as

Therefore,

the

basis

for

a

the ALJ properly

concluded that plaintiff's alleged knee, neck, and shoulder pain
were not severe at Step Two.
ii.

Obesity

Plaintiff next contends that the ALJ improperly omitted her
obesity

as

a

severe

impairment

at

Step

Two.

Specifically,

plaintiff asserts that "obesity combined with [her] knee impairment
8 - OPINION AND ORDER

to worsen the impairment."

(Plaintiff's Opening Brief (#16) p. 8.)

Plaintiff's argument is rejected for two reasons.
First, the only evidence in the record regarding plaintiff's
obesity is from Ms. Finley, who "worked with plaintiff to address
her

weight

impairment."

Evidence

of

weight

gain

and

recommendations to lose weight are insufficient to establish an
impairment due to obesity at Step Two or Step Three.

See, e.g.,

Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005); see also SSR
02-01, available at 2000 WL 628049, *6.
Ms.

And, as discussed above,

Finley's opinion alone cannot establish the existence of an

impairment.
Second, plaintiff does not detail what restrictions flow from
her obesity.

There was no evidence before the ALJ, and none in the

record, providing that plaintiff's obesity limits her ability to
work or exacerbated her other alleged impairments.

Because there

is no evidence in the record relating to plaintiff's obesity other
than Ms. Finley's recommendation to lose weight, plaintiff failed
to show that this impairment significantly limits her ability to do
basic work activities.

Therefore, the ALJ did not err in finding

that plaintiff's obesity was not severe at Step Two.

iii.

Right-Handed Carpal Tunnel Syndrome

Plaintiff also argues that the ALJ should have construed her
carpal tunnel syndrome in her right hand as a severe impairment.
In October 2006,

Daniel A.

9 - OPINION AND ORDER

Saviers,

M.D.,

performed a series of

electrodiagnostic studies on plaintiff.

(Tr. 287-88.)

Based on

these test results, Dr. Saviers diagnosed plaintiff with "chronic,
mild" carpal tunnel in her left wrist.

(Tr.288.)

However, during the examination, plaintiff told Dr. Saviers
that, despite being diagnosed with carpal tunnel syndrome in her
teenage

years,

"she

has

approximately 20 years."

had

no

(Tr.

carpal

287.)

tunnel

[symptoms]

for

Plaintiff stated further

that, because she was no longer "doing the activities that used to
she is not concerned with

bother it,
syndrome] at all."

(Id. )

[her carpal tunnel

The only other evidence in the record

relating to plaintiff's carpal tunnel syndrome is a chart note from
Dr. Bloom from April 2007.
notes

Dr.

Saviers'

(Tr. 235.)

Dr. Bloom's report merely

diagnosis of "mild carpal tunnel

syndrome."

(Id. )

Thus, besides her subjective reports, there is no evidence in
the record which suggests that plaintiff suffers from carpal tunnel
in

her

right

hand.

(Tr.

61. )

Because

the

existence

of

an

impairment cannot be established on the basis of symptom testimony
alone, plaintiff's subjective reports were inadequate to establish
right-handed carpal tunnel as a medically determinable impairment.
Moreover,

because plaintiff

stated that

she had not

been

experiencing any carpal tunnel symptoms "for 20 years," and because
she never complained of or discussed any functional limitations as
a result of her right wrist pain with her treating source, there is
10 - OPINION AND ORDER

no evidence that plaintiff's carpal tunnel significantly limits her
ability to do basic work activities.

(Tr. 266-85, 287,

439-76.)

Therefore, the ALJ properly determined that this impairment was not
severe at Step Two.
B.

Failure to Fully Develop the Record

Al ternati vely,

plaintiff asserts that

the ALJ should have

further developed the record in regard to these allegedly severe
impairments instead of "flat[ly] rejecti[ng]" them.
Opening Brief (#16) p. 8.)

It is the claimant's burden to prove

the existence of an impairment at Step Two.

Marci v. Chater, 93

F.3d 540, 543-45 (9th Cir. 1996); see also 42 U.S.C.
Yet,

in

certain

limited

circumstances,

F.2d 558, 561 (9th Cir. 1992).
the

record

is

evidence or when the

the

§

423 (d) (5).
has

an

Higbee v. Sullivan,

independent duty to develop the record.

develop

(Plaintiff's

ALJ

975

However, the ALJ's "duty to further

triggered

only when

there

is

ambiguous

record is inadequate to allow for proper

evaluation of the evidence."

Mayes v. Massanari, 276 F.3d 453, 460

(9th Cir. 2001); see also Webb, 433 F.3d at 687.

Further, the ALJ

is

if

required

to

seek additional

evidence

only

already present consistently favors the claimant.
236

F.3d

503,

514-15

(9th Cir.

2001)

the

Lewis

(discussing

20

evidence
V.

Apfel,

C.F.R.

§

404.1527 (c) (3)) .
Here, neither the ALJ nor any medical source found the record
to be ambiguous or insufficient for proper evaluation.
11 - OPINION AND ORDER

Rather,

plaintiff

merely

failed

to

introduce

any

her

burden

inadequacy or
evidence

is

of

proof,

ambiguity
neither

in

however,
the

ambiguous

does

record.
or

medical

Plaintiff's failure

evidence of these alleged impairments.
carry

acceptable

not

Because

insufficient,

equate
the
and

to

to
an

existing
does

not

consistently favor plaintiff, the ALJ's duty to more fully develop
the record was not triggered.

Thus, I find no error in the ALJ's

Step Two findings.
II.

Medical Opinion Evidence
Plaintiff

argues that

insufficient reasons for

the ALJ erred by providing

legally

rejecting the opinions of Ms.

Finley,

plaintiff's treating nurse practitioner, and Dr. Bloom, plaintiff's
surgeon.
A.

Ms. Finley

"Other" medical sources, such as nurse practitioners, can be
used to determine the severity and functional limitations stemming
from

an

impairment

sufficient duration.
5.

where,

as

here,

the

relationship

is

of

SSR 06-03p, available at 2006 WL 2329939, *4-

Plaintiff argues that Ms.

Finley constitutes an "acceptable

medical source" because she "was working closely with, and under
the supervision of" a doctor, citing Taylor v. Comm'r of Soc. Sec.
Admin., 659 F.3d 1228, 1234 (9th Cir. 2011).

(Plaintiff's Opening

Brief (#16) p. 11-12 n. 2); see also Gomez V. Chater, 74 F.3d 967,
971 (9th Cir.), cert. denied, 519 U.S. 881 (1996).
12 - OPINION AND ORDER

However, there

is no evidence in the record that Ms. Finley was in fact working in
conjunction with a

doctor.

Thus,

on the

record before me,

I

conclude that Ms. Finley is an "other U source, and therefore, the
ALJ need only offer a germane reason to reject her opinion.

Turner

v. Astrue, 613 F. 3d 1217, 1223-24 (9th Cir. 2010).
On November 5,

2007, Ms.

Finley wrote a letter pursuant to

plaintiff's applications for DIB and 881.

(Tr. 264-65.)

In that

letter, Ms. Finley opined that plaintiff "cannot use her left hand
or wrist to lift or carry or handle objects [but can] use her right
hand without restriction.

u

(Tr. 265.)

As such, Ms. Finley stated

that plaintiff could lift "5-10 pounds [with her right hand] and
carry it for a short distance, up to 10 feet.

U

(Id.)

In addition,

Ms. Finley remarked that plaintiff could sit for at least six hours
in an eight hour period, stand for 20-30 minutes, and walk for 2030 minutes.
associated
Accordingly,

(Id.)
with
Ms.

Ms.

Finley also assessed minimal limitations

plaintiff's

mental

Finley concluded that

position that this lady could do.

u

impairments.
"there

is

(Id. )

some type

of

(Id.)

The ALJ did not expressly indicate which portions of Ms.
Finley's reports he rejected or accepted.
address

each

of

Ms.

Finley's

Regardless, the ALJ did

functional

narrative discussion of the evidence.

limitations

(Tr. 20-23.)

in

his

Regarding Ms.

Finley's statement that plaintiff was limited to lifting five to
ten pounds with her right hand, the ALJ noted that "there [are] no
13 - OPINION AND ORDER

objective clinical findings to substantiate such a limitation.

n

(Tr. 22.)
The ALJ is correct; plaintiff failed to introduce any evidence
Further, Ms. Finley's

of impairment in her right hand or wrist.

lifting limitation is belied by her own remark that plaintiff was
"able to use her right hand without restriction. n

(Tr. 22, 265.)

Thus,

rejecting

the

ALJ

provided

limitations that Ms.

a

germane

reason

for

the

Finley assessed regarding plaintiff's right

hand and wrist.
In

addition,

the

ALJ

found

that

Ms.

Finley's

statements

relating to plaintiff's ability to sit, stand, and walk were not
supported by the record.

(Tr. 22.)

The ALJ noted that neither

plaintiff nor her husband reported any difficulty in these areas in
their reports.

(Tr. 22, 156, 169, 197.)

Moreover, the ALJ found

that plaintiff's alleged impairments of knee, shoulder, and neck
pain were not medically determinable because "no clinical data has
[been submitted reflecting that plaintiff)
walking, standing, or sitting.
partially accept Ms.

n

(Tr. 22.)

would be limited in
The ALJ did, however,

Finley's report to the extent that it was

consistent with the ME's testimony,

as he limited plaintiff to

standing and walking no more than six hours in an eight hour day
and

instructed

her

to

avoid

unprotected

heights,

machinery, and climbing ladders, ropes, and scaffolds.
22. )
14 - OPINION AND ORDER

dangerous
(Tr. 21-

Finally,

the ALJ did not reject Ms.

plaintiff's mental limitations.

Finley's assessment of

(Tr. 22-23.)

Rather, consistent

with Ms. Finley's assessment, the ALJ's RFC restricted plaintiff to
work that involves primarily things instead of people, and simple,
repetitive,

routine,

non-difficult

plaintiff's moderate

limitations

tasks,

in

social

concentration, persistence, and pace.

to

for

account

functioning

and

in

(Tr. 23.)

Therefore, to the extent that the ALJ rejected Ms.

Finley's

opinion, he provided germane reasons for doing so, and I find no
error.
B.

Dr. Bloom

To

reject

the

uncontroverted

opinion

of

a

treating

or

examining doctor, the ALJ must present clear and convincing reasons
for doing so.
2005).

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.

If a treating or examining doctor's opinion is contradicted

by another doctor's opinion,
legitimate reasons.

it may be rejected by specific and

However,

when evaluating conflicting

opinions, an ALJ is not required to accept an opinion that is not
supported by clinical findings, or is brief or conclusory.

Id.

Dr. Bloom treated plaintiff for her left hand injury pre- and
post-surgery.

(Tr.

plaintiff's surgery,

234-38,
Dr.

241-46,

402-03.)

Bloom opined that plaintiff will have

"very limited use of [her left) thumb,
limited job opportunities in the future."
15 - OPINION AND ORDER

Five months after

[and) therefore have very
(Tr. 403.)

Accordingly,

Dr.

Bloom stated

that

"I

believe

candidate for disability benefits./I

that

[plaintiff)

is

a

good

(Id.)

In his decision, the ALJ did not discuss Dr. Bloom's opinion.
The Commissioner concedes that it was legal error for the ALJ to
fail

to provide any reasons

(Defendant's

Response

Brief

to rej ect
(#20)

p.

Dr.

Bloom's statements.
The

15.)

Commissioner,

however, argues that this error was harmless because Dr. Bloom's
reports
regarding

never

provided

plaintiff's

Accordingly,

any

specific

physical

functional

capabilities.

limitations

(Id.

at

16.)

the Commissioner asserts that the ALJ was free to

disregard Dr. Bloom's opinion regarding plaintiff's use of her left
hand and job prospects.

(Id. )

Contrary to the Commissioner's assertion,

I

find that the

ALJ's failure to address Dr. Bloom's opinion was not harmless.

As

plaintiff's treating doctor, Dr. Bloom's opinion was entitled to
controlling weight if it was consistent with the other evidence and
well-supported by medically acceptable
diagnostic techniques.
(9th Cir. 2011)

clinical

and laboratory

See McLeod v. Astrue, 640 F.3d 881, 884-85

(citing 20 C.F.R.

§

404.1527).

There is ample evidence in the record regarding plaintiff's
inability to use her left hand and wrist that is consistent with
Dr. Bloom's opinion.
Dr.

(Tr. 55-56, 264-65, 423, 435-36.)

Bloom's assessment

evidence;

Dr.

Bloom

16 - OPINION AND ORDER

Further,

is well-supported by acceptable medical
noted

the

failure

of

"all

efforts

at

conservative treatment," including extensive physical therapy, at
remedying plaintiff's left hand pain.

(Tr. 235, 238.)

Dr. Bloom

attempted to address plaintiff's symptoms with injections to the
joint.

(Tr.237.)

Dr. Bloom also ordered electrodiagnostic studies and an MRI,
which

revealed

"subluxation

mild

at

the

carpal
thumb

tunnel

in

the

carpometacarpal

left
joint[,)

wrist

and

abnormal

positioning of the proximal phalanx[, and) disruption of the volar
metacarpophalangeal joint plate" in the left hand.
a

result,

Dr.

Bloom performed

surgery,

after

underwent additional physical therapy sessions.
Despite

400. )

these

best

efforts,

Dr.

(Tr. 235.)
which

As

plaintiff

(Tr. 242-43, 372-

Bloom

reported

that

"[c)learly this operation has not improved [plaintiff's) painful
symptoms."

(Tr.

403.)

Accordingly,

Dr.

Bloom concluded that

plaintiff would be unable to use her left hand.
As such, while the ALJ need not accept Dr. Bloom's statements
regarding plaintiff's job prospects, he was required to consider
and address Dr. Bloom's opinion regarding plaintiff's ability to
use her left hand and wrist.

The ALJ's

failure to do so was

error.
III.

Plaintiff's Credibility

Plaintiff

contends

that

the

ALJ

improperly

assessed

the

credibility of her testimony regarding the severity of her symptoms
and the degree to which they incapacitate her.
17 - OPINION AND ORDER

In deciding whether to accept subjective symptom testimony,
such as pain or depression,
analysis.

20 C.F.R.

§§

an ALJ must perform two stages of

404.1529, 416.929.

The first stage is a

threshold test in which the claimant must produce objective medical
evidence of an underlying

impairment

that

expected to produce the symptoms alleged.
Here,

there

medical

is

no

evidence

dispute

in

that

support

anxiety, and depression.

of

Smolen, 80 F.3d at 1282.

plaintiff
her

could reasonably be

presented

claims

of

left

objective
arm pain,

(Tr.23.)

At the second stage of the credibility analysis,
there

is no affirmative evidence of malingering,

provide

clear

claimant's

and

convincing

testimony

regarding

reasons
the

for

assuming

the ALJ must

discrediting

severity

of

the

the

symptoms.

Smolen, 80 F.3d at 1284; see also Lingenfelter v. Astrue, 504 F.3d
1028, 1036 (9th Cir. 2007).
If an ALJ finds that the claimant's testimony regarding her
subjective symptoms is unreliable, the "ALJ must make a credibility
the

reasons

why

the

testimony

is

determination

citing

unpersuasive."

Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999).

In doing so, the ALJ must identify what testimony is credible and
what

testimony

undermines

the

claimant's

complaints

and

make

"findings sufficiently specific to permit the court to conclude
that the ALJ did not arbitrarily discredit the claimant."
v. Barnhart, 278 F.3d 947,

18 - OPINION AND ORDER

958 (9th Cir. 2002).

Thomas

Here,

the

plaintiff's

ALJ

discussed

testimony

acti vi ties

of

daily

evidence.

regarding
living

(Tr. 24.)

and

two

reasons

for

her

physical

impairments:

the

lack

of

discrediting

obj ecti ve

her

medical

In addition, the ALJ found that plaintiff's

testimony regarding her mental impairments was not credible due her
failure to seek medical treatment.
The
living

ALJ determined

are

inconsistent

unremi tting

(Id. )

that

plaintiff's

with

an

"activities

individual

and wholly unresponsive

to

whose

of

daily

symptoms
(Tr.

treatment."

are
23.)

Specifically, the ALJ found that plaintiff's ability to clean her
house, help her children with homework, help her husband prepare
dinner, feed and water her pets, take care of her personal needs,
drive,

walk,

and

grocery

shop

with

her

husband

belied

her

subjective symptom testimony regarding her physical limitations.
(Tr. 23-24.)
At the hearing, plaintiff testified that she has constant pain
in her left hand and "no pinch [or) grip strength in that hand .
[and)

I don't have full motion of my wrist."

(Tr.

55.)

As a

result, plaintiff explained that she wears a brace on her left hand
at all times, which was prescribed by her doctor,
thumb from hurting as much from gravitational pull."

"[t)o keep my
(Tr. 56.)

As

such, plaintiff explained that she tries to do "light housework,"
such as loading the dishwasher or placing laundry in the washer or
dryer, "[a)s long as I can do it with my one hand."
19 - OPINION AND ORDER

(Tr. 48.)

Plaintiff's

commensurate

with

the

activities that she described on her disability forms.

(Tr.

56,

164-70.)

hearing

For example,

testimony

is

on her Adult Function Report,

plaintiff

stated that she does light cleaning, helps her kids with homework,
and helps her husband with dinner by heating food items in the
microwave.

(Tr. 164-66.)

Plaintiff explained that chores can be

performed "only with [my] right hand," such that each task takes "2
to 3 times longer."

(Tr. 166.)

In addition, plaintiff remarked

that she could drive an automatic car,
difficult."

"but this is still more

(Tr. 167.)

She also stated that she could no longer dress herself because
she "can't button[,] fasten[,] or tie anything without help."
165. )

(Tr.

Plaintiff further explained that she is unable to cook a

meal from scratch because she "can't cut or chop, move pans, hold
a pan and stir at the same time
166. )

Finally,

plaintiff

[or]

remarked

open cans or jars."
that

she

always

(Tr.

takes

her

husband shopping because she can only manage "small items, a few
things that can be carried with one hand."

(Tr. 167.)

Thus, the ALJ did not fully consider the record in assessing
plaintiff's acti vi ties of daily living.

While inconsistencies

between a claimant's daily activities and the alleged impairments
can serve as a basis for discrediting subjective testimony,

the

ALJ's

not

adverse

credibility

determination

supported by substantial evidence.
20 - OPINION AND ORDER

on

this

point

is

See Reddick v. Chater, 157 F. 3d

715,

722-23

(9th

Cir.

1998)

(ALJ's

"paraphrasing

of

record

material" was "not entirely accurate regarding the content and tone
of the record").
When

viewed

in

its

entirety,

the

record

reveals

that

plaintiff's activities of daily living were very limited by her
inability to use her left hand and wrist.

Moreover, many of the

daily

vitiating

acti vi ties

that

the

ALJ

cited

as

plaintiff's

credibility, such as cooking by placing items in the microwave or
moving laundry into the washer or dryer with her right hand, are
not inherently inconsistent with plaintiff's allegations of pain
and do not necessarily indicate the ability to engage in sustained
work activity.

See Fair v.

Bowen,

885 F.2d 597,

1989); see also Reddick, 157 F.3d at 723-24.
for

the ALJ to fail

603

(9th Cir.

Thus, it was error

to consider plaintiff's entire

statements

regarding the extent of her daily activities when assessing her
credibility.
The ALJ also found that plaintiff's testimony regarding her
inability to use her left hand was not credible because it was not
supported by "objective testing."

(Tr.24.)

The ALJ then cited to

a post-surgery status report from Dr. Bloom; that report revealed
that plaintiff had a pinch strength of "4 pounds with pain" on her
left hand.

(Tr.

403.)

In that same report, and based on those

test results, Dr. Bloom opined that plaintiff's "operation has not

21 - OPINION AND ORDER

improved her painful symptoms,

therefore I expect that she will

have very limited use of this thumb."

(Id.)

Additional medical evidence supports plaintiff's subjective
reports that her left hand strength was severely limited.

Two

consulting medical sources, Linda Jensen, M.D., and Martin Lahr,
M. D., M. P. H., opined that" [plaintiff's] self reports regarding the
severity

of

her

impairments

are

mostly

consistent

[with

the]

totality of [the medical evidence], in as much as it relates to her
left hand."

(Tr. 423, 435-36.)

that "[plaintiff]

In addition, Ms. Finley reported

cannot use her left hand or wrist to lift or

carry or handle objects."

(Tr. 265.)

The only contrary evidence in the record is from Dr. Decherd,
the ME who testified about plaintiff's physical impairments at the
hearing.

Dr. Decherd stated that plaintiff was capable of lifting

ten pounds with her left hand, as well as occasional handling and
fingering.
evidence

(Tr. 43.)
in

this

Dr. Decherd's

instance

testimony is not

because

the

other

supports plaintiff's subjective symptom reports.
adverse

credibility

determination

on

this

substantial

medical

evidence

Thus, the ALJ's

point,

too,

is

not

supported by substantial evidence.
The ALJ next determined that plaintiff's subjective reports
regarding
credible

the

extent

because

of

her

plaintiff

22 - OPINION AND ORDER

depression

did

"not

and

maintain

anxiety
regular

were

not

clinical

treatment."

(Tr. 24.)

Lack of medical treatment is a valid reason

to discredit a claimant's testimony.
In this instance,
finding.

Burch, 400 F.3d at 681.

substantial evidence supports the ALJ's

Beyond visits to her nurse practitioner four times a year

to refill her medications,

plaintiff has not sought any mental

health treatment for her alleged psychological impairments.
50-51.)

Further, most of Ms.

Finley's progress notes relate to

problems with plaintiff's pain and weight-gain.
76.)

As

such,

there

is

(Tr.

no

evidence,

(Tr. 266-85, 439-

beyond

her

subjective

testimony, that plaintiff was suffering from debilitating anxiety.
Periodically, Ms. Finley did have plaintiff perform "checkthe-box"

mental

health

however,

rarely

surveys;

reflect

Ms.

discussion

plaintiff's mental health status.
456,

458,

464,

468,

Finley's

474.)

of

treatment

these

(Tr. 275, 279,

Moreover,

surveys
442,

or

448,

the letter that Ms.

submitted pursuant to plaintiff's applications for

notes,
of
453,

Finley

DIB and SSI

suggests that plaintiff's mental impairments are situational and
only minimally impair her ability to work.

(Tr.264-65.)

In addition, plaintiff stated, as the ALJ noted, that she gets
along

with

authority

instructions,

"fine.

figures,
(Tr.

/I

23,

and

follows

169.)

written

and

spoken

The ALJ also noted that

plaintiff reported that she goes to church twice a week and attends
her

son's

Accordingly,

sporting

events

once

per

week.

(Tr.

23,

168.)

plaintiff's own testimony is inconsistent with her

23 - OPINION AND ORDER

assertion that her anxiety was so severe that she was unable to
leave the house or work.
Thus, the foregoing discussion reveals that the ALJ did, in
fact,

identify specific evidence in the record that undermines

plaintiff's

subjective

depression.

reports

Therefore,

the

concerning plaintiff's alleged

regarding

ALJ's

her

credibility

anxiety

and

determination

mental impairments is supported by

substantial evidence.
Although the ALJ did not err with respect to plaintiff's
alleged mental impairments,
supported by the record.
provide

adequate

the other reasons provided were not
As discussed above,

reasons

to

discount

the ALJ did not

plaintiff's

testimony

concerning her left hand and wrist, nor did the ALJ discuss the
medical evidence from Dr. Bloom concerning the same.
cannot conclude that the error was harmless.

Therefore, I

Cf. Batson v. Comm'r

of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004).
IV.

Lay Testimony

Plaintiff

also

asserts

that

the ALJ

legally sufficient reason to reject Mr.
testimony regarding a

failed

to provide

Long's testimony.

a

Lay

claimant's symptoms or how an impairment

affects the ability to work is competent evidence that an ALJ must
take

into account.

Molina v.

Astrue,

674

F. 3d 1104,

2012 WL

1071637, *7 (9th Cir. Apr. 2, 2012).

The ALJ must provide reasons

germane

to

to

each

witness

24 - OPINION AND ORDER

in

order

discount

competent

lay

testimony.

Id.; Lewis, 236 F.3d at 511.

However, in rejecting lay

testimony, the ALJ need not "discuss every witness's testimony on
a individualized,

witness-by-witness basis.

Rather,

if. the ALJ

gives germane reasons for rejecting testimony by one witness, the
ALJ

need

only

point

to

those

reasons

testimony by a different witness.-

when

rejecting

similar

Molina, 2012 WL 1071637 at *7;

accord Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th
Cir.

2009)

(rej ecting lay testimony on same basis as claimant's

discredited subjective reports); Lewis, 236 F.3d at 512.
Mr. Long offered testimony relating to plaintiff's symptoms at
the hearing and completed a
(Tr. 63-66, 192-99.)

Third-Party Adult

Function Report.

In both instances, his testimony was nearly

identical to plaintiff's.

(Id. )

Yet the ALJ only devoted one

sentence to Mr. Long's statements: "[plaintiff's] and her husband's
allegations of disability are granted limited credibility to the
extent they are consistent with the [RFC].-

(Tr. 24.)

As such, it

appears that the ALJ discredited Mr. Long's testimony for the same
reasons that he discredited plaintiff's testimony.
As

discussed

above,

the

ALJ failed

to

provide

convincing reasons to reject plaintiff's testimony.

clear

and

Therefore, it

follows that the ALJ erred in discrediting Mr. Long's testimony.
V.

Listing 12.06

Plaintiff contends that the ALJ erred in determining that her
anxiety disorder did not meet listing 12.06 at Step Three.
25 - OPINION AND ORDER

In

order to meet "(t) he required level of severity" for listing 12.06,
the claimant must introduce evidence which establishes that the
criteria listed in sections A and B, or in sections A and C, are
satisfied.

20 C.F.R. Part 404, Subpart P, Appendix 1,

§

12.06; see

also Burch, 400 F.3d at 683.
Neither party discussed the A criteria in their briefs.

As

such, the Court presumes that it is undisputed that plaintiff meets
this criteria.

It is further undisputed that the C criteria are

not

in this

applicable

case.

Accordingly,

the

only

issue

is

whether plaintiff demonstrated that the B criteria were met.
The B criteria of
demonstrate

a

"marked

categories:

"acti vi ties

listing 12.06 requires
restriction"
of

daily

in

two

living,"

of

the claimant to
the

following

"maintaining

social

functioning," "maintaining concentration, persistence, or pace," or
"(r)epeated episodes of.
settings."

. decompensation in work or work-like

20 C.F.R. Part 404, Subpart P, Appendix 1,

§

12.06.

Here, the ALJ determined that plaintiff had mild restrictions
in the activities of daily living, moderate restrictions in social
functioning, and moderate restrictions in regard to concentration,
persistence,
20. )

or pace,

Plaintiff

episodes

of

does

with no episodes of decompensation.
not

dispute

decompensation,

but

the

ALJ's

rather

finding

contends

"restrictions in her activities of daily living
functioning) were 'marked.'"
26 - OPINION AND ORDER

(Tr.

regarding
that

her

(and in social

(Plaintiff's Opening Brief (#16) p.

17.)

Plaintiff relies on her own subjective symptom testimony and

on Ms. Finley's chart notes as support.

(Id. )

The only evidence relating to plaintiff's mental impairments
other

than

her

subjective

reports,

which

the

ALJ

properly

discredited, is from Drs. Monnig, Rethinger, and Ms. Finley.
acting as an ME at the 2009 hearing,

While

Dr. Monnig testified that
(Tr. 36-37.)

plaintiff did not meet or equal listing 12.06.

On March 31, 2008, Paul Rethinger, Ph.D., a consulting source,
completed a Psychiatric Review Technique form.

(Tr. 404-16.)

Dr.

Rethinger did not find evidence relating to anxiety in plaintiff's
record and instead assessed her as having depression.

(Tr.407.)

Regardless, Dr. Rethinger found that plaintiff had no restrictions
in her activities of daily living, mild restrictions in maintaining
social

functioning,

and

no

restrictions

concentration, persistence, or pace.
On

November

5,

2007,

Ms.

in

maintaining

that

plaintiff's

(Tr.414.)

Finley

opined

anxiety and depression resulted from situational stressors rather
than

from

an

underlying mental

health

condition.

(Tr.

264.)

Accordingly, Ms. Finley assessed very few limitations as a result
of these impairments,

explaining that plaintiff's "only problem

with work-related mental activities is her frustration, anger, and
depression,
65. )

[which result from her inability to work).N

While Ms.

Technique form,

Finley did not

complete

a

(Tr. 264-

Psychiatric Review

she did state that plaintiff was "able to hear,

27 - OPINION AND ORDER

speak,

and travel."

plaintiff

"can

concentration,

Ms.

(Tr. 265.)

understand
except

and

when

she

Finley further stated that

remember
is

things

in pain

and

sustain

[and)

can

persist,

socially interact, and adapt some [but her) mental issues do cause
. as far as socially interacting and adapting."

some problems
(Id. )

As

such,

beyond plaintiff's

own

statements,

there

is

no

evidence in the record that she suffered from "marked" restrictions
in

her

activities

functioning.

of

daily

living

or

in

maintaining

social

Rather, all of the evidence in the record supports

the ALJ's Step Three finding.

Therefore, the ALJ did not err in

determining

mental

that

plaintiff's

impairments

did

not

meet

listing 12.06.
VI.

Plaintiff's RFC Determination and the ALJ's Step Five Finding

Lastly, plaintiff argues that the ALJ failed to incorporate
all of her impairments into the RFC assessment.

As a result,

plaintiff asserts that the hypothetical questions that the ALJ
posed to the VE were invalid.

I agree.

The RFC is the most a claimant can do despite her limitations.
20 C.F.R.

§§

404.1545(a) (1), 416.945(a) (1).

The ALJ must reach the

RFC assessment based on all the relevant evidence in the record,
including medical records and the effects of symptoms that are
reasonably

attributed

to

a

medially

determinable

impairment.

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
28 - OPINION AND ORDER

As discussed above, the ALJ did not provide legally sufficient
reasons

for

regarding

discrediting

plaintiff's

plaintiff's

left

arm.

and Mr.

Moreover,

Long's

the

testimony

ALJ failed

to

provide a clear and convincing reason to reject the uncontroverted
opinion of Dr. Bloom concerning plaintiff's use of her left arm.
Because the RFC does not account for this potential additional
limitation,

the

RFC

assessment

is

Likewise,

erroneous.

the

hypothetical posed to the VE was also erroneous.
After finding the ALJ erred, this Court has the discretion to
remand for further proceedings or for the immediate payment of
benefits.

Vasquez v. Astrue, 572 F.3d 586, 593

(9th Cir. 2009);

Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531
U.S.

1038

proceedings.
where

The issue turns on the

(2000).

there

utility of further

A remand for an award of benefits is appropriate
is

no

useful

purpose

to

be

served

by

further

proceedings or where the record is fully developed.
The

Ninth Circuit

has

established a

three-part

test

"for

determining when evidence should be credited and an immediate award
of benefits directed."

Harman, 211 F.3d at 1178.

The court should

grant an immediate award of benefits when:
(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.
29 - OPINION AND ORDER

Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
has

discretion

whether

to

credit

the

evidence.

Connett

v.

Barnhart, 340 F.3d 871, 876 (9th Cir. 2003).
While the ALJ failed to articulate legally sufficient reasons
for rejecting plaintiff's testimony, Mr. Long's testimony, and the
opinion of Dr. Bloom, it is unclear whether a finding of disability
would be required on the record before me.

Although plaintiff's

attorney asked the VE whether plaintiff's restrictions would be
different if limitations were included concerning the left upper
extremity,

the VE did not

preclude employment.

respond that such limitations would

(Tr. 74.)

The evidence, therefore, does not

"clearly indicate the proper outcomes of [Slteps [Flour and [Flive
of the disability determination evaluation."
597.

Vasquez, 572 F.3d at

Therefore, I cannot find plaintiff disabled and an award for

immediate payment of benefits is improper.

Id.; Harman, 211 F.3d

at ll80.
Accordingly, this case is remanded for further proceedings in
order to reassess plaintiff's credibility, Mr. Long's testimony,
and Dr.

Bloom's opinion relating to plaintiff's

left hand and

wrist; the ALJ should reconsider whether that evidence requires a
new RFC, and the ALJ must obtain additional VE testimony in light
of the new RFC evaluation.

30 - OPINION AND ORDER

CONCLUSION

For the reasons

set forth above,

the Commissioner's final

decision denying benefits to plaintiff is REVERSED, and this case
is REMANDED, for further proceedings consistent with this opinion.
IT IS SO ORDERED.
DATED this

('I-

day of May, 2012.

fl/(~42n~ .
Malcolm F. Marsh
United States District Judge

31 - OPINION AND ORDER