Soteros v. Commissioner Social Security Administration

Filing 22

OPINION & ORDER: The Commissioner's decision is reversed and remanded for a determination of benefits. See 22-page opinion & order attached. Signed on 5/16/2016 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

FELICIA SOTEROS,

No. 3:15-cv-00871-HZ
Plaintiff,

v.
COMMISSIONER SOCIAL
SECURITY ADMINISTRATION,
Defendant.
Merrill Schneider
Schneider Kerr Law Offices
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff
Janice E. Hebert
Assistant United States Attorney
U.S. Attorney’s Office, District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204

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OPINION & ORDER

David J. Burdett
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant

HERNÁNDEZ, District Judge:
Plaintiff Felicia Soteros brings this action for judicial review of the Commissioner’s final
decision denying her application for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42
U.S.C. § 1382(c) (3)). The Commissioner’s decision is reversed and remanded for a
determination of benefits.
PROCEDURAL BACKGROUND
Plaintiff applied for SSI on September 9, 2011, alleging an onset date of July 19, 2007.
Tr. 176.1 Her application was denied initially and on reconsideration. Tr. 89, 110. On August 2,
2013, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ).
Tr. 36-58. On August 21, 2013, the ALJ found Plaintiff not disabled. Tr. 30. The Appeals
Council denied review. Tr. 1.
FACTUAL BACKGROUND
Plaintiff alleges disability based on severe systemic lupus erythematosus (SLE); severe
chronic pain syndrome; depression; hearing and speech impairment; restless leg syndrome; loss
of feeling in legs, arms, and head; and lung damage due to blood clots. Tr. 196. She has not

Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record,
filed herein as Docket No. 14.
1

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worked since 2007. Tr. 186. She has limited past experience as a housekeeper in a hotel and as a
sign waver for a tax service. Tr. 210.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if 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).
Disability claims are evaluated according to a five-step procedure. See, e.g., Valentine v.
Comm’r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving
disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a “medically severe impairment or combination of
impairments.” Yuckert, 482 U.S. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not,
the claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals “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 141; 20 C.F.R. §§ 404.1520(d),
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§
404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot

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perform past relevant work, the burden shifts to the Commissioner. In step five, the
Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since August 29, 2011, the application date. Tr. 21. Next, at steps two and three, the ALJ
determined that Plaintiff has the following severe impairments: systemic lupus erythematous
(SLE), hearing impediment, and fibromyalgia. However, the ALJ determined that Plaintiff’s
impairments did not meet or medically equal the severity of a listed impairment. Tr. 22. At step
four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work
as defined in 20 C.F.R. § 416.967(b), except that Plaintiff cannot climb ladders, ropes, or
scaffolds. Id. She can frequently climb ramps and stairs, balance, stoop, crouch, and crawl. Id.
She cannot perform work that requires excellent hearing. Id. at 22-23. She must avoid even
moderate exposure to loud noises. Id. at 23. She should have no exposure to sunlight. Id. She
requires a sit-stand option every 30 minutes, without an interruption of the work process. Id. She
must avoid concentrated exposure to respiratory irritants (such as fumes, odors, dusts, and
gases), and workplace hazards (such as machinery and heights). Id.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if the Commissioner
applied proper legal standards and the findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th

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Cir. 2004). “Substantial evidence” means “more than a mere scintilla, but less than a
preponderance.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Id.
The court must weigh the evidence that supports and detracts from the ALJ’s conclusion.
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d
715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the
Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the
evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also
Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not
assert in affirming the ALJ’s findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947)).
DISCUSSION
Plaintiff contends that the ALJ erred by: (1) rejecting the opinion of Plaintiff’s medical
sources; (2) rejecting Plaintiff’s impairments as non-severe at step two; (3) failing to find that
Plaintiff’s impairments meet a “listed impairment”; (4) improperly analyzing lay witness
statements; (5) conducting an improper credibility evaluation; and (6) failing to conduct an
adequate analysis at step five. Plaintiff asks this Court to remand the case for an award of
benefits.
Defendant concedes that the ALJ did not properly evaluate the severity of Plaintiff’s
mental impairments. Accordingly, Defendant concedes that this case should be remanded.
However, Defendant contends that remand for further proceedings, not for payment of benefits,

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is the appropriate remedy. Defendant argues that “[t]he record does not clearly warrant a finding
of disability and leaves issues unresolved.” Def.’s Br. 10, ECF 20.
I.

Medical Opinions
a) Treating physician Andre Barkhuizen, MD
Dr. Barkhuizen is a rheumatologist who has treated Plaintiff since December of 2007. Tr.

624. In July 2013, he provided a medical opinion to Plaintiff’s counsel, affirming the
representation that Plaintiff has the following medical conditions: severe SLE, severe chronic
pain syndrome, depression, hearing/speech impairment, restless leg syndrome, loss of feeling in
legs, arms and head, and lung damage due to blood clots. Tr. 624. In addition, Dr. Barkhuizen
opined that Plaintiff also suffers from hypercoagulable state with chronic pulmonary emboli. Id.
He listed her primary symptoms as pain, fatigue, photosensitivity, skin rash, headaches, and
dizziness. Id.
Dr. Barkhuizen opined that Plaintiff faces many limitations in her ability to perform
functions on an ongoing basis during an eight-hour workday and five-day workweek.
Specifically, due to chronic pain and a lack of energy, Dr. Barkhuizen stated that Plaintiff can
never engage in any of the following: climbing, balancing, stooping/bending, kneeling,
crouching, crawling, reaching, handling, fingering, and feeling. Tr. 626. Plaintiff can stand
and/or walk for 30 minutes at a time and for one hour in an eight-hour workday. Id. She can sit
for two to three hours at a time and for three hours in an eight-hour workday. Id. In an eight-hour
day, she would need to sleep, rest, and move around, in addition to sitting, standing, and
walking. Id.
Dr. Barkhuizen found that Plaintiff experiences photosensitivity to light due to SLE and
suffers from fibromyalgia. Tr. 625. Furthermore, her medications cause fatigue, weight gain,

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frequent infections, and muscle weakness. Tr. 627. Dr. Barkhuizen opined that Plaintiff would
not be able to perform 20% of a standard workweek and that she would miss the equivalent of
two days of work per month due to her impairments, symptoms, medications, and side effects.
Id.
Social security law recognizes three types of physicians: (1) treating, (2) examining, and
(3) nonexamining. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1996). Generally, more weight is given to the opinion of a
treating physician than to the opinion of those who do not actually treat the claimant. Id.; 20
C.F.R. §§ 1527(c)(1)-(2), 416.927(c)(1)-(2).
If the treating physician's medical opinion is supported by medically acceptable
diagnostic techniques and is not inconsistent with other substantial evidence in the record, the
treating physician's opinion is given controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th
Cir. 2007); Holohan, 246 F.3d at 1202. If a treating physician's opinion is not given “controlling
weight” because it is not “well-supported” or because it is inconsistent with other substantial
evidence in the record, the ALJ must still articulate the relevant weight to be given to the opinion
under the factors provided for in 20 C.F.R. §§ 1527(d)(2), 416.927(d)(2); Orn, 495 F.3d at 631.
“To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state clear
and convincing reasons that are supported by substantial evidence. If a treating or examining
doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by
providing specific and legitimate reasons that are supported by substantial evidence.” Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted).
In his opinion, the ALJ gave “very limited weight” to Dr. Barkhuizen’s opinion. Tr. 27.
The ALJ found that the longitudinal record, including Dr. Barkhuizen’s own progress notes, “did

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not support the extreme limitations” that Dr. Barkhuizen proposed. Id. According to the ALJ, Dr.
Barkhuizen’s notes “repeatedly describe [Plaintiff] as exhibiting normal physical functioning.”
Id. “They also include his assessments that her SLE has been well controlled with medications.”
Id.
Defendant concedes that the ALJ failed to properly consider Dr. Barkhuizen’s opinion as
to the severity of Plaintiff’s mental impairments, such as impairments of Plaintiff’s attention and
concentration due to various medications. However, Defendant contends that the ALJ correctly
weighed Dr. Barkhuizen’s opinion regarding Plaintiff’s physical impairments.
The Court finds that the ALJ’s recitation of boilerplate language finding that “the
longitudinal record . . . [does] not support the extreme limitations” proposed by Dr. Barkhuizen
does not form a substantive basis for his decision to afford little weight to the doctor’s opinion.
See Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (finding error when an ALJ
assigns a medical opinion little weight while doing nothing more than “criticizing it with
boilerplate language that fails to offer a substantive basis for his conclusion”). Other than this
boilerplate statement, the only reason the ALJ gives to discount Dr. Barkhuizen’s opinion is that
the opinion is contradicted by Dr. Barkhuizen’s own notes. However, a close look at the record
reveals that the ALJ selected portions of Dr. Barkhuizen’s progress notes that were not
representative of Dr. Barkhuizen’s records, taken as a whole. While the ALJ found that Dr.
Barkhuizen’s notes “repeatedly describe the claimant as exhibiting normal physical functioning,”
Tr. 27, he only cited to two specific progress notes in his opinion.
First, the ALJ highlighted Dr. Barkhuizen’s notes from July 2011, where he stated that
her lab results from the previous March were “entirely normal,” her joints were feeling better in
the warmer weather, she denied side effects from current medications, and she was only having

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photosensitive rashes on her extremities, not on her ear canals or face. Tr. 23 (citing Tr. 364-65).
Dr. Barkhuizen wrote that Plaintiff’s SLE was “stable other than photosensitivity and edema
from heat exposure with reassuringly normal labs on Imuran and Plaquenil and off prednisone.”
Tr. 365. Second, the ALJ cited a progress note from May 2013. Tr. 24 (citing Tr. 628-29). Dr.
Barkhuizen wrote that Plaintiff’s SLE remained stable on her current medication regime and that
she had some blotchy redness on her cheeks from sun exposure, but it had resolved upon
returning home. Id. Because the ALJ only referred specifically to Dr. Barkhuizen’s progress
notes from July 2011 and May 2013, there is no indication that he considered the extensive
record of notes in the time frame between those two dates.
The additional notes not cited by the ALJ notes present a different portrayal of Plaintiff’s
recurring symptomology from SLE, fibromyalgia, and chronic pain. In April of 2012, Dr.
Barkhuizen noted that the “sunnier weather” had caused increased photosensitivity and that
Plaintiff’s mother had taken measures such as installing blackout curtains in the home and
removing the skylight in the kitchen. Tr. 641. Plaintiff wore high SPF sun creams and clothes
with UV protection. Id. As to pain, while Dr. Barkhuizen wrote that Plaintiff’s SLE was stable,
he also noted that Plaintiff had chronic fibromyalgia and neck pain. Tr. 641-42.
In July of 2012, Dr. Barkhuizen’s notes describe persistent photosensitivity, lupus rashes,
marked livedo reticularis of her extremities, numbness, buzzing sensations, stabbing pains, and
ongoing bruising. Tr. 638. In September of 2012, Dr. Barkhuizen described the July visit as a
“very prominent and systemic flareup with all over pain, electric shocklike sensations and lupus
rashes all over her face and extremities.” Tr. 636.
In November of 2012, Dr. Barkhuizen noted that Plaintiff’s pain had increased with the
cold weather. He wrote that Plaintiff’s SLE was chronic and that her photosensitivity indoors had

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“somewhat improved” by changing out the light sources at home to reduce UV exposure. Tr.
634-35. In January of 2013, Dr. Barkhuizen noted that Plaintiff was “hurting all the time.” Tr.
633. Her SLE was stable, although Dr. Barkhuizen noted low-grade inflammation. Id. Plaintiff’s
chronic pain continued and Plaintiff had “multiple somatic complaints.” Id. In March of 2013,
Dr. Barkhuizen noted Plaintiff’s “widespread pain and tenderness.” Tr. 630.
In sum, the ALJ’s finding that Dr. Barkhuizen’s opinion was contradicted by his own
treatment notes is not supported by substantial evidence. Furthermore, the ALJ failed to
acknowledge that no other treating or examining physician disagreed with Dr. Barkhuizen. The
only physician who offered a different opinion regarding Plaintiff’s ability to work was Dr. Neal
Berner, a non-examining physician. The opinion of an examining physician is entitled to greater
weight than that of a non-examining physician, Garrison, 759 F.3d at 1012, and the opinion of a
nonexamining physician cannot by itself constitute substantial evidence that justifies the
rejection of the opinion of an examining physician, Lester, 81 F.3d at 831. Furthermore, because
Dr. Barkhuizen is a specialist, his opinion is owed greater weight as a matter of regulation. 20
C.F.R. § 404.1527 (“We generally give more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is not a
specialist.”). In sum, the ALJ erred in failing to credit Dr. Barkhuizen’s opinion.
b) Treating nurse practitioner Darcy Butcher, FNP, and treating physician Timothy
Gray, D.O.
Darcy Butcher, FNP, treated Plaintiff for primary care for three years as of July of 2013.
Timothy Gray, D.O., was Plaintiff’s treating physician. In July of 2013, Ms. Butcher and Mr.
Gray provided a medical opinion, using the same form that Plaintiff’s counsel provided to Dr.

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Barkhuizen, opining that Plaintiff was “unable to work due to multiple conditions and
medications needed for those conditions.” Tr. 970.
Nurse Butcher and Dr. Gray stated that Plaintiff has the following medical conditions:
severe systemic lupus erythematous, severe chronic pain syndrome, depression, hearing/speech
impairment, restless leg syndrome, loss of feeling in legs, arms and head. Tr. 967. In addition,
they opined that Plaintiff suffers from anxiety, depression, asthma, diabetes, and a clotting
disorder. Id. They listed her primary symptoms as chronic pain, paresthesia, fatigue, skin rash,
and depression. Id.
Nurse Butcher and Dr. Gray opined that Plaintiff faces many limitations in her ability to
perform functions on an ongoing basis during an eight-hour workday and five-day workweek.
Specifically, due to sensory deficits and pain, they stated that Plaintiff can never engage in any of
the following: climbing, balancing, kneeling, crouching, crawling, reaching overhead, fingering,
and feeling. Tr. 969. Plaintiff can only occasionally engage in stooping/bending, reaching at
shoulder height, and handling. Id. Plaintiff can stand and/or walk for 30 minutes at a time and for
three hours in an eight-hour workday. Id. She can sit for thirty minutes at a time and for three
hours in an eight-hour workday. Id. Due to pain, in an eight-hour day, she would need to lay
down, in addition to sitting, standing, and walking. Id. They opined that, in a standard workweek,
Plaintiff would not be able to perform even simple tasks because of impairments to her attention
and concentration. Tr. 970.
In his opinion, the ALJ gave “very limited weight” to Nurse Butcher’s and Dr. Gray’s
opinion. Tr. 27. As with Dr. Barkhuizen, the ALJ used boilerplate language to find that the
longitudinal record did not support their assessment. Id. In addition, the ALJ stated that recent
notes from Nurse Butcher include Plaintiff’s “report that her pain was well controlled on her

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current medication regime, and that the doses of the individual drugs had not been changed in
three years.” Id.
As to Dr. Gray, the ALJ provides a short summary of some of Dr. Gray’s progress notes
and then writes: “For reasons discussed throughout this decision, including the brief summary
directly above, I find that the longitudinal record does not support Dr. Gray’s assessment and his
opinion receives very limited weight.” Tr. 28.
Once again, the ALJ must do more than state conclusions. “He must set forth his own
interpretations and explain why they, rather than the doctors’, are correct.” Garrison, 759 F.3d at
1012. He cannot simply criticize a medical opinion with boilerplate language that fails to offer a
substantive basis for his conclusion. Id. at 1013. Simply describing Nurse Butcher’s note,
without explaining why it forms the basis to disregard her opinion, is not enough; nor is a general
statement that Dr. Gray’s assessment is not supported by the record.
II.

Listing 14.02
Plaintiff also contends that the ALJ erred in concluding, at step three, that her SLE did

not meet or medically equal a listed impairment, 20 C.F.R. 404, Subpt. P, App. 1, 14.02. At step
three of the sequential evaluation process, the ALJ must evaluate the claimant's impairments to
see if they meet or medically equal those in the Listings. See § 404.1520(d); Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir.1999). The List describes the characteristics of each impairment.
The description includes the “symptoms, signs and laboratory findings” that make up the
characteristics of each listed impairment. 20 C.F.R. § 404.1525. To meet a listed impairment, a
claimant must establish that he or she meets each characteristic of a listed impairment relevant to
his or her claim. Tackett, 180 F.3d at 1099. Listed impairments are those that are “so severe that

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they are irrebuttably presumed disabling, without any specific finding as to the claimant's ability
to perform his past relevant work or any other jobs.” Lester, 81 F.3d at 828.
The claimant has the initial burden of proving that an impairment meets or equals a
Listing. See Sullivan v. Zebley, 493 U.S. 521, 530–33 (1990). “To meet a listed impairment, a
claimant must establish that he or she meets each characteristic of a listed impairment relevant to
his or her claim.” Tackett, 180 F.3d at 1099.
An ALJ “must evaluate the relevant evidence before concluding that a claimant's
impairments do not meet or equal a listed impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th
Cir.2001). “A boilerplate finding is insufficient to support a conclusion that a claimant's
impairment does not do so.” Id. The ALJ need not, however, “state why a claimant failed to
satisfy every different section of the listing of impairments.” Gonzalez v. Sullivan, 914 F.2d
1197, 1201 (9th Cir. 1990) (finding that ALJ did not err in failing to state what evidence
supported conclusion that claimant's impairments did not satisfy Listing). An ALJ's decision that
a plaintiff did not meet a Listing must be upheld if it was supported by “substantial evidence.”
See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).
Systemic lupus erythematosus (SLE) is a listed impairment. To meet Listing 14.02, a
claimant must produce objective medical evidence of a diagnosis of SLE, with:
A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or
involuntary weight loss).
or
B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or
signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following
at the marked level:

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1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration,
persistence, or pace.
20 C.F.R. § 404, Subpart P, App. 1, 14.02.
Here, in concluding that Plaintiff does not have an impairment that meets a listing
requirement, the ALJ wrote:
I reviewed 20 CFR Part 404, Subpart P, Appendix 1 (Listing of Impairments) and find
that the claimant’s impairments, when considered singly, and in combination, do not
meet or medically equal the criteria for any impairment in the Listing of Impairments.
For reasons discussed in this decision, the objective medical evidence does not support a
finding of disability under the Immune System and Special Senses and Speech Listing.
Tr. 22. The ALJ does not explain why he found that Plaintiff’s impairment did not meet the
Listing 14.02 requirements.
Dr. Barkhuizen, Nurse Butcher, and Dr. Gray all opined that Plaintiff met both Listing
14.02(A) and 14.02(B). Tr. 625, 968. In particular, for 14.02(B), Dr. Barkhuizen found that
Plaintiff had repeated manifestations of SLE with limitation of activities of daily living and
limitation in completing tasks in a timely manner due to deficiencies in concentration,
persistence, and pace. Tr. 625. As discussed above, the ALJ erred in not crediting these medical
opinions. When credited, they establish that Plaintiff meets the Listing requirements and, thus, is
disabled.
III.

Lay Witness Statement
Plaintiff’s mother, Jennifer Sena, provided a written Third Party Function Report dated

September 29, 2011. Tr. 218-225. Plaintiff lives with her mother and thus, Ms. Sena has
firsthand knowledge of Plaintiff’s daily activities. Ms. Sena described Plaintiff as needing to
sleep or stay in the dark all day due to her lupus. Tr. 219. She is constantly in pain. Id. She does

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few chores because everything either hurts too much or triggers one of her conditions. Tr. 220.
Ms. Sena contrasted Plaintiff’s current abilities with what she could do in the past. For example,
she used to draw but she does not anymore because it hurts her hands. Tr. 222. She used to shop
for food and cook, but not she cannot be in the kitchen for long because the skylight lets light
enter that bothers her. Tr. 220. She used to have several friends but her social world has
narrowed to the “few people who can deal with her weird schedule,” as well as people Plaintiff
meets online. Tr. 222.
Ms. Sena opined that Plaintiff is trying to “sleep away her pain.” Tr. 224. Although
Plaintiff can drive, she prefers that her mother accompany her out because she is hearing
impaired. Tr. 221. It hurts Plaintiff to stand in the shower long enough to get clean, and so she
will go up to a week without showering. Tr. 219. Her medications cause her drowsiness and
bowel imbalance. Tr. 224. Plaintiff’s blood gets thin. Id. Her medication also affects her memory
and comprehension. Id.
Ms. Sena concludes by stating: “Felicia cannot live alone because her lungs can fill with
clots overnight if her meds get off. When she wakes up she moves like an 80 yr. old woman
because she is so hunched and tight against the pain. If you could only spend a day in the life of
Felicia, you would see that she has such a low quality of life. She wants to be able to function,
but she just can’t.” Tr. 225.
The ALJ found that Ms. Sena’s statement alleged that Plaintiff had limitations that were
greater than described in Plaintiff’s own statement and that such limitations were not supported
by the objective medical evidence. Tr. 28. However, the ALJ also wrote that “Ms. Sena’s
statement is generally consistent with the claimant’s allegations.” Id. The ALJ noted that even if
he accepted Ms. Sena’s statements as true, Plaintiff’s limitations would not preclude her from

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working jobs consistent with the RFC. Id. In sum, the ALJ wrote: “I find Ms. Sena’s statement to
be of limited value in arriving at a determination of the claimant’s overall residual functional
capacity.” Tr. 28.
Plaintiff argues that the ALJ ignored substantial amounts of relevant medical information
and, further, rejected Ms. Sena’s opinion through a “blanket assertion that the record does not
support [her] testimony.” Pl. Brief 15, ECF 15. Defendant counters that the ALJ provided
germane reasons for discounting Plaintiff’s testimony; specifically, that the limitations described
were greater than Plaintiff’s own statements and were inconsistent with the medical evidence.
The Court compared Ms. Sena’s statement with that of Plaintiff and fails to see a degree
of inconsistency that would comprise substantial evidence for disregarding Ms. Sena’s statement.
The ALJ did not cite to any particular inconsistency, nor does Defendant.
As to the alleged inconsistencies with the medical evidence, as addressed above, the
Court finds that the ALJ failed to consider large portions of the medical evidence. Taken as a
whole, the medical evidence does not contradict Ms. Sena’s statement. Accordingly, the ALJ
erred in assigning Ms. Sena’s statement little weight.
IV.

Plaintiff’s Credibility Evaluation
The ALJ is responsible for determining credibility. Vasquez v. Astrue, 572 F.3d 586, 591

(9th Cir. 2009). Once a claimant shows an underlying impairment and a causal relationship
between the impairment and some level of symptoms, clear and convincing reasons are needed
to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533
F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering,
“where the record includes objective medical evidence establishing that the claimant suffers from
an impairment that could reasonably produce the symptoms of which he complains, an adverse

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credibility finding must be based on ‘clear and convincing reasons’”); see also Molina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility:
First, the ALJ determines whether there is “objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other symptoms alleged”;
and second, if the claimant has presented such evidence, and there is no evidence of malingering,
the ALJ must then give “specific, clear and convincing reasons in order to reject the claimant's
testimony about the severity of the symptoms.”) (internal quotation marks omitted).
The ALJ found Plaintiff “not entirely credible for the reasons explained in this decision.”
Tr. 23. The Court finds only two such reasons cited by the ALJ in the decision: (1) “[t]he record
generated since June 23, 2010, the date of the prior ALJ decision, does not support the claimant’s
allegations of disability”; and (2) the alleged inconsistency between Plaintiff’s testimony and her
reported activities of daily living. Tr. 23, 26.
The ALJ cites two chart notes from the record that supposedly conflict with Plaintiff’s
allegations of disability. The Court has already explained how the first note, Dr. Barkhuizen’s
chart note from July 2011, cannot be taken in isolation as an accurate representation of the
medical record as a whole. The second note, from May 2011, states that Plaintiff alleged “fairly
significant paresthesia in her hands and feet, and concentration problems caused by her
medications.” Tr. 24, 511. The ALJ contends that this note is inconsistent with Plaintiff’s
“current objective presentation and self-reports.” Tr. 24. However, a chart note from March of
2013 (just a few months before the administrative hearing) indicates that Plaintiff reported
“random numbness,” paresthesia, and vibration, Tr. 922, and Defendant concedes that several
medical sources noted that Plaintiff’s attention and concentration were impaired because of

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various medications, Def.’s Br. 5, ECF 20. Therefore, the ALJ’s conclusion that the medical
record conflicted with Plaintiff’s allegations is not supported by substantial evidence.
As to Plaintiff’s reported activities of daily living, the ALJ notes that, in a written
statement, Plaintiff said she could do the following: prepare meals daily; perform household
chores such as laundry, watering plants, and feeding pets; walk; drive; and shop. Tr. 26. Plaintiff
stated that her hobbies were reading, drawing, word puzzles, spending time with friends, and
watching television. Id. She attended parties at friends’ houses and would occasionally “DJ” for
them. Id. She occasionally went to a local tavern and sang karaoke, and occasionally visited a
friend’s lake house. Id. The ALJ also cited Plaintiff’s testimony, in which she stated that she
sleeps most of the day. Id. At night, Plaintiff cooks, does “light exercise,” plays with her dog,
spends time on the computer, and gets together with family or friends. Id. The ALJ concluded
that, “[w]hen viewed in the aggregate, the claimant’s reported activities do not appear to be
limited to the degree one would expect, given her allegations of total disability.” Id.
The ALJ failed to identify any specific part of Plaintiff’s testimony that is contradicted by
her reported activities of daily living. In addition, the ALJ mischaracterized Plaintiff’s testimony.
Throughout Plaintiff’s written function report, she repeatedly emphasized that her ability to do
chores and activities was dependent on her level of pain and fatigue. For example, Plaintiff stated
that in the evenings she spends time with her friends if she can and if she feels up for it; she takes
care of pets but her parents help if she is sick; she cooks but it hurts her back to stand and so she
requires breaks; she likes to read, draw, and knit but those activities have become more difficult
because her hands cramp with pain; and, generally, she limits her activities and does not get out
of the house a lot. Tr. 232-35. At the hearing, she testified that the “light exercise” she performs
is in response to pain and a tingling sensation in her face and extremities. Tr. 41.

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The ALJ erred in finding that these activities, if performed in the manner that Plaintiff
described, are inconsistent with the pain-related impairments that Plaintiff described in her
testimony. The Court agrees with Plaintiff that the Ninth Circuit’s explanation in Garrison, 759
F.3d at 1015-16, is applicable here:
We have repeatedly warned that ALJs must be especially cautious in concluding that
daily activities are inconsistent with testimony about pain, because impairments that
would unquestionably preclude work and all the pressures of a workplace environment
will often be consistent with doing more than merely resting in bed all day. See, e.g.,
Smolen, 80 F.3d at 1287 n. 7 (“The Social Security Act does not require that claimants be
utterly incapacitated to be eligible for benefits, and many home activities may not be
easily transferable to a work environment where it might be impossible to rest
periodically or take medication.” (citation omitted)); Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989) (“[M]any home activities are not easily transferable to what may be the
more grueling environment of the workplace, where it might be impossible to
periodically rest or take medication.”). Recognizing that “disability claimants should not
be penalized for attempting to lead normal lives in the face of their limitations,” we have
held that “[o]nly if [her] level of activity were inconsistent with [a claimant's] claimed
limitations would these activities have any bearing on [her] credibility.” Reddick v.
Chater, 157 F.3d at 722 (citations omitted); see also Bjornson v. Astrue, 671 F.3d 640,
647 (7th Cir. 2012) (“The critical differences between activities of daily living and
activities in a full-time job are that a person has more flexibility in scheduling the former
than the latter, can get help from other persons ..., and is not held to a minimum standard
of performance, as she would be by an employer. The failure to recognize these
differences is a recurrent, and deplorable, feature of opinions by administrative law
judges in social security disability cases.” (citations omitted)).
As in Garrison, Plaintiff’s daily activities, as she described them in her testimony, were
consistent with her statements about the impairments caused by her pain. The ability to perform
basic household chores, have simple hobbies, and spend time with friends and on the internet, all
mainly in the evenings and when she is not in pain or fatigued, is consistent with the pain that
Plaintiff described in her testimony. It is also consistent with an inability to function in a
workplace environment. Accordingly, as in Garrison, the supposed inconsistencies between
Plaintiff’s daily activities and her testimony do not satisfy the requirement of a clear, convincing,
and specific reason to discredit Plaintiff's testimony regarding her pain-related impairments.

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V.

Residual Functional Capacity
Plaintiff argues that the ALJ erred in failing to conduct an adequate analysis at step five

because the hypothetical posed to the vocational expert (VE) did not reflect all of Plaintiff’s
limitations. As discussed above, the ALJ erred by failing to credit the testimony of Dr.
Barkhuizen, Nurse Butcher, and Dr. Gray; accordingly, the ALJ erred by failing to include the
limitations assessed by those medical professionals in the hypothetical posed to the VE. If their
testimony is properly credited, then Plaintiff’s limitations include an inability to perform even
simple work tasks at least 20% of the time and a likelihood of missing at least two full workdays
per month. Tr. 625, 968.
VI.

Remand for an Award of Benefits
The Court has found that the ALJ improperly rejected medical testimony as to Plaintiff's

physical symptoms and Plaintiff's own testimony and lay witness testimony as to the severity of
those symptoms. Furthermore, Defendant concedes that the ALJ did not properly evaluate the
severity of Plaintiff’s mental impairments, thereby rendering the RFC and subsequent steps of
the sequential evaluation incomplete. The Court therefore vacates the ALJ’s decision.
The question remains, however, whether to remand the case either for further proceedings
or for an award of benefits. See Reddick, 157 F.3d at 728 (decision is within the discretion of the
Court). The Ninth Circuit has “devised a three-part credit-as-true standard, each part of which
must be satisfied in order for a court to remand to an ALJ with instructions to calculate and
award benefits: (1) the record has been fully developed and further administrative proceedings
would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be required to find the claimant

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disabled on remand.” Garrison, 759 F.3d at 1020. Even if the “credit-as-true” criteria are met, the
court retains the “flexibility” to remand for further proceedings where “an evaluation of the
record as a whole creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021.
Here, there are two reasons why this Court determines that the case should be remanded
for an award of benefits. The ALJ failed to provide legally sufficient reasons for rejecting the
medical evidence regarding Plaintiff's physical impairments. Lester, 81 F.3d at 834 (“Where the
Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or
examining physician, we credit that opinion ‘as a matter of law.’”). As discussed above, if the
testimony of Dr. Barkhuizen, Nurse Butcher, and Dr. Gray was properly credited, the ALJ would
be compelled to find that Plaintiff meets Listing 14.02 and, thus, is disabled. See Reddick, 157
F.3d at 721 (claimant is “conclusively presumed disabled” when an impairment meets a “listed”
impairment); 20 CFR § 404.1520(d).
Even if Plaintiff did not demonstrate that she meets the requirements of a listed
impairment, the Court would still find her disabled. At the hearing, Plaintiff's attorney asked the
VE if a hypothetical individual subject to the limitations noted in Dr. Barkhuizen’s, Nurse
Butcher’s, and Dr. Gray’s evaluations would be able to sustain competitive employment. Tr. 5657. The VE testified that a person with such limitations would not be able to sustain competitive
employment. Tr. 56-57. Therefore, if the improperly discounted testimony was credited, the ALJ
would be compelled to find that Plaintiff could not perform work available in significant
numbers in the national economy. Thus, it is “clear from the record that the ALJ would be
required to find the claimant disabled,” and there remain no “outstanding issues that must be
resolved before a determination of disability can be made.” Smolen v. Chater, 80 F.3d 1273,
1292 (9th Cir. 1996). Under these circumstances, the Court will remand for a computation of

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benefits. Garrison, 759 F.3d at 1023 (remand for award of benefits required where claimant
satisfies all three conditions of the credit-as-true rule and careful review of the record discloses
no reason to seriously doubt that she is, in fact, disabled).
CONCLUSION
The Commissioner's decision is reversed and remanded for a determination of benefits.
IT IS SO ORDERED.

Dated this ________ day of __________________________, 2016

_______________________________________________
MARCO A. HERNÁNDEZ
United States District Judge

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