Kimble v. Commissioner Social Security Administration

Filing 27

OPINION AND ORDER The Commissioner's decision is REVERSED and REMANDED for additional administrative proceedings consistent with this Opinion and Order. See Opinion and Order for details. Signed on 8/4/2017 by Magistrate Judge John Jelderks. (JC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JESSICA LINN KIMBLE,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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Civil No.: 3:15-cv-01641-JE
OPINION & ORDER

Nancy J. Meserow
7540 S.W. 51st Ave.
Portland, OR 97219
Attorney for Plaintiff
Billy J. Williams, U.S. Attorney
Janice E. Hébert, Asst. U.S. Attorney
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204-2902
Lars J. Nelson
Special Assistant U.S. Attorney
Office of the General Counsel
Social Security Administration
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security on January 20, 2017, and
is therefore substituted as the Defendant in this action pursuant to Fed. R. Civ. Pro. 25(d).

OPINION & ORDER - 1

JELDERKS, Magistrate Judge:

Jessica Linn Kimble (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and
1381a seeking judicial review of a final decision of the Commissioner of Social Security (“the
Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act
(“the Act”). For the reasons that follow, the Commissioner’s decision is reversed and this
case is remanded for further proceedings.
Procedural Background
Plaintiff filed her application for DIB and SSI on April 18, 2012, alleging disability
beginning September 30, 2007. Tr. 13, 180. After Plaintiff’s claim was denied initially and
on reconsideration, a hearing was convened on February 27, 2014, before Administrative
Law Judge (“ALJ”) Paul Robeck. Tr. 29–63. The ALJ issued a decision on March 21, 2014,
finding Plaintiff not disabled. Tr. 8–24. The decision became the final decision of the
Commissioner on July 21, 2015, when the Appeals Council denied Plaintiff’s subsequent
request for review. Tr. 1–6.

Plaintiff now appeals to this Court for review of the

Commissioner’s final decision.
Background
Born July 31, 1982, Plaintiff was 25 years old on the initial alleged onset date. Tr. 22,
180. Plaintiff has an 8th grade education and has not completed her GED. Tr. 3 8 , 202. She has
past relevant work as a fast food cashier, a machine operator, a security guard, and doing
“production” at a thrift store. Tr. 202. Plaintiff alleges disability due to scoliosis, chronic back
pain, anxiety, posttraumatic stress disorder (“PTSD”), and depression. Tr. 16, 44, 66.
OPINION & ORDER - 2

Disability Analysis
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is
disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. The five step sequential
inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir.
1999).
Step One. The Commissioner determines whether the claimant is engaged in substantial
gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not
engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s
case under step two. 20 C.F.R. §§ 404.1520(b), 416.920(b).
Step Two. The Commissioner determines whether the claimant has one or more severe
impairments. A claimant who does not have any such impairment is not disabled. If the claimant
has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant’s
case under step three. 20 C.F.R. §§ 404.1520(c), 416.920(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the
Commissioner next determines whether the claimant’s impairment “meets or equals” one of the
presumptively disabling impairments listed in the Social Security Administration (“SSA”)
regulations. 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that
meets a listing is presumed disabled under the Act. If the claimant’s impairment does not meet or
equal an impairment listed in the listings, the Commissioner’s evaluation of the claimant’s case
proceeds under step four. 20 C.F.R. §§ 404.1520(d), 416.920(d).
Step Four. The Commissioner determines whether the claimant is able to perform work
he or she has done in the past. A claimant who can perform past relevant work is not disabled. If

OPINION & ORDER - 3

the claimant demonstrates he or she cannot do past relevant work, the Commissioner’s
evaluation of claimant’s case proceeds under step five. 20 C.F.R. §§ 404.1520(f), 416.920(f).
Step Five. The Commissioner determines whether the claimant is able to do any other
work. A claimant who cannot perform other work is disabled. If the Commissioner finds
claimant is able to do other work, the Commissioner must show that a significant number of jobs
exist in the national economy that claimant is able to do. The Commissioner may satisfy this
burden through the testimony of a vocational expert (“VE”), or by reference to the MedicalVocational Guidelines. 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner
demonstrates that a significant number of jobs exist in the national economy that the claimant is
able to do, the claimant is not disabled. If the Commissioner does not meet the burden, the
claimant is disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
At steps one through four of the sequential inquiry, the burden of proof is on the
claimant. Tackett, 180 F.3d at 1098. At step five, the burden shifts to the Commissioner to show
the claimant can perform jobs that exist in significant numbers in the national economy. Id.
The ALJ’s Decision
At the first step of the disability analysis, the ALJ found Plaintiff met the insured status
requirements through December 31, 2009, and had not engaged in substantial gainful activity
since the alleged onset date, September 30, 2007. Tr. 13.
At the second step, the ALJ found Plaintiff had the following severe impairments:
scoliosis, anxiety, PTSD, and depression. Tr. 13.
At the third step, the ALJ found Plaintiff did not have an impairment or combination of
impairments that met or equaled a presumptively disabling impairment set out in the Listings. 20
C.F.R. Part 404, Subpart P, App. 1; Tr. 13–14.

OPINION & ORDER - 4

Before proceeding to the fourth step, the ALJ assessed Plaintiff’s residual functional
capacity (“RFC”). He found Plaintiff retained the capacity to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a). She can lift and carry up to 10 pounds. When seated,
she should be allowed to stand for 30 minutes with no interruption
in the work process. She is limited to simple, repetitive tasks
consistent with unskilled work.
Tr. 15.
At the fourth step of the disability analysis, the ALJ found Plaintiff was unable to
perform any past relevant work. Tr. 22.
At the fifth step, the ALJ found that Plaintiff retained functional capacity required to
perform jobs that existed in significant numbers in the national economy. Tr. 23. Relying on the
VE’s testimony, the ALJ cited semiconductor wafer breaker, addresser, and document sorter as
examples of work Plaintiff could perform. Tr. 23. Based upon the conclusion that Plaintiff could
perform such work, the ALJ found that Plaintiff was not disabled within the meaning of the Act,
from September 30, 2007, through the date of this decision. Tr. 23.
Standard of Review
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). Claimants bear the initial burden of establishing disability. Roberts v.
Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The
Commissioner bears the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841,
849 (9th Cir. 1991), and bears the burden of establishing that a claimant can perform “other
work” at step five of the disability analysis process. Tackett, 180 F.3d at 1098.
The district court must affirm the Commissioner’s decision if it is based on proper legal
OPINION & ORDER - 5

standards and the findings are supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); see also 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 of the evidence, whether it supports or detracts from the Commissioner’s
decision. Martinez v. Heckler, 807 F.2d 771, 771 (9th Cir. 1986). The Commissioner’s decision
must be upheld, however, even if “the evidence is susceptible to more than one rational
interpretation.” Andrews, 53 F.3d at 1039–40.
Discussion
Plaintiff contends that the ALJ (1) improperly rejected the opinions of Dr. Nicoloff and
P.A. Garfias resulting in an RFC that failed to include all of Plaintiff’s limitations; (2) failed to
articulate an unambiguous RFC; (3) failed to present a hypothetical to the VE that fully reflected
Plaintiff’s limitations; and (4) failed to provide clear and convincing reasons to reject Plaintiff’s
symptom testimony.
I. Evaluating Medical Evidence
As noted above, Plaintiff contends that the ALJ improperly rejected the opinions of Dr.
Nicoloff and P.A. Garfias resulting in an RFC that fails to include all of Plaintiff’s limitations. The
ALJ is required to consider all medical opinion evidence and is responsible for resolving conflicts
and ambiguities in the medical testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008). In reviewing the ALJ’s decision, the court does not assume the role of fact-finder, but
instead determines whether the decision is supported by substantial evidence in light of the record
as a whole. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
An ALJ must provide clear and convincing reasons for rejecting a treating physician’s
uncontroverted opinions. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may “reject
OPINION & ORDER - 6

the opinion of a non-examining physician by reference to specific evidence in the record.” Sousa
v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). Care providers who are not “acceptable medical
sources,” such as physicians’ assistants and counselors are still considered sources under the
regulations that the ALJ can use in determining the “severity of the individuals impairment(s) and
how it affects the individuals ability to function.” SSR 06-03p at *2. An “other” source cannot
“establish the existence of a medically determinable impairment,” Id.; and an ALJ may discount
the opinion of an “other source” by providing germane reasons for doing so. Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012).
A. Dr. Megan Nicoloff, PsyD
Plaintiff contends that the ALJ improperly rejected the opinion of the non-examining
medical expert, Dr. Nicoloff. As the consulting expert for the SSA, Dr. Nicoloff reviewed the
Plaintiff’s medical records pertaining to mental health and offered her opinion. Tr. 111–13.
1. Limitation to 1-2 Step Tasks
After reviewing the file, Dr. Nicoloff determined that the medical evidence and Plaintiff’s
ADLs “support limiting [her] to simple 1-2 step tasks with no public contact.” Tr. 99, 112. Dr.
Nicoloff further explained that Plaintiff “is able to understand and carry out simple 1-2 step tasks
on a consistent basis. [Plaintiff] can do detailed[,] complex [] tasks but not on a consistent basis.”
Tr. 117.
The ALJ gave “great weight” to Dr. Nicoloff’s opinion, “because it [was] supported by the
medical record.” Tr. 21. Yet, despite giving “great weight” to Dr. Nicoloff’s opinion, which
limited Plaintiff to “1-2 step tasks,” the ALJ stated: “Accordingly, the claimant is limited to
simple, repetitive tasks consistent with unskilled work.” Tr. 21 (emphasis added).
In professing to accept Dr. Nicoloff’s opinion, but failing to include Dr. Nicoloff’s precise
limitation in the RFC, the ALJ effectively rejected the doctor’s opinion. See Bobbitt v. Colvin,
OPINION & ORDER - 7

No. 3:13-cv-01320-HZ, 2014 WL 2993738, at *9 (D. Or. Jul. 1, 2014) (ALJ erred by accepting a
doctor’s opinion without expressly including the doctor’s proposed limitation in the RFC). To
reject the opinion of a non-examining physician, the Commissioner must make “reference to
specific evidence in the medical record.” Sousa, 143 F.3d at 1244.
The Commissioner argues that the ALJ was not required to “provide reasons to discount an
opinion, where the ALJ did not actually reject conclusions and instead incorporated them into the
RFC assessment.” Def.’s Br. at 11 (citing Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222–
23 (9th Cir. 2010)). However, unlike in Turner, here, the ALJ did not incorporate the doctor’s
conclusion in the RFC. By stating Plaintiff was limited to simple, repetitive tasks, the ALJ
essentially rejected Dr. Nicoloff’s opinion, because a limitation to “1-2 step tasks” is more
restrictive than a limitation to “simple, repetitive tasks.” Dschaak v. Colvin, No. 3:13-cv-02127MA, 2015 WL 181803 at *5 (D. Or. Jan. 14, 2015) (“Several recent cases from this court have
held that a limitation to one to two step instructions is a more restrictive limitation than the
limitation of simple, routine tasks.”); Bobbitt, 2014 WL 2993738, at *9 (same).
Alternatively, the Commissioner argues that 1-2 step tasks is the least Plaintiff could do,
rather than the most that Plaintiff could do. Dr. Nicoloff clearly indicated that 1-2 step tasks is the
most that Plaintiff can do, opining that Plaintiff “can do detailed complex [] tasks but not on a
consistent basis” and that Plaintiff would have “difficulty with detailed tasks.” Tr. 116–17. The
regulations unequivocally provide that the RFC is the most a claimant can do on a “regular and
continuing basis.” 20 C.F.R. §404.1545(b)-(c); SSR 96-8p at *2 (“A ‘regular and continuing
basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.”). Dr. Nicoloff
made clear that Plaintiff could not do detailed or complex tasks on a “regular and continuing
basis.” Dr. Nicoloff indicated that the most that Plaintiff could do “consistently” was 1-2 step
tasks. Accordingly, the Commissioner’s argument lacks merit.
OPINION & ORDER - 8

The Commissioner additionally argues that the “Court can reasonably construe the ALJ’s
decision as a whole to provide a proper basis for restriction to unskilled work and by extension
discounting one-to-two step tasks.” Def.’s Br. at 12. However, as discussed above, it is erroneous
to discount the limitation to 1-2 step tasks. Bobbitt, 2014 WL 2993738, at *9. Moreover, the
Commissioner’s proposed rationale constitutes an impermissible post hoc rationalization. Stout v.
Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (A reviewing court
“cannot affirm the decision of an agency on a ground that the agency did not invoke in making its
decision.” (internal citations omitted)).
The Commissioner finally argues that if the ALJ erred, any such error was harmless.
However, had the ALJ included Dr. Nicoloff’s “1-2 step task” limitation in the RFC, it would
have restricted Plaintiff to “Level One Reasoning” jobs. “Level One Reasoning is defined as
having the reasoning ability to apply commonsense understanding to carry out simple one-or-two
step instructions[.]” King v. Colvin, No. 3:13-cv-01457-ST, 2014 WL 5092216, at *12 (D. Or.
Oct. 8, 2014) (citing Chase v. Colvin, No. 06:12-cv-01857-HZ, 2013 WL 5567082, at *5 (D. Or.
Oct. 9, 2013); Whitlock v. Astrue, No. 3:10-cv-357-AC, 2011 WL 3793347, at *5 (D Or Aug. 24,
2011)) (internal quotations omitted). Because the Ninth Circuit has held that a limitation to 1-2
step tasks is not consistent with Level Two Reasoning, the error was not harmless. Rounds v.
Commissioner Social Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015) (“There was an apparent
conflict between Rounds’ RFC, which limits her to performing one- and two- step tasks and the
demands of Level Two reasoning . . . The Commissioner resists the obvious similarity between
Rounds’ RFC and Level One reasoning…[.]”). Because the ALJ’s erroneous RFC led the VE to
identify jobs that required Level Two and Level Three Reasoning, the ALJ’s error was not
inconsequential to the ultimate non-disability decision. 2 Stout, 454 F.3d at 1054; See DICTIONARY
2

Notwithstanding the failure to include the 1-2 step tasks limitation, the RFC as stated created a conflict with the

OPINION & ORDER - 9

OF OCCUPATIONAL TITLES,

(4th ed. 1991) 209.587-010, 249.587-018, 726.687-046.

2. Moderate Difficulties in Concentration, Persistence, and Pace
Dr. Nicoloff also determined that Plaintiff had moderate difficulties in maintaining
concentration, persistence or pace, which the ALJ accepted at step two. Tr. 14, 113. Plaintiff
argues that the ALJ failed to account for moderate difficulties with concentration, persistence or
pace in the RFC.
The Commissioner asserts that there is no requirement that moderate limitations result in
specific RFC limitations and that by including a limitation to “simple, repetitive tasks,” the ALJ
reasonably accounted for moderate difficulties with concentration, persistence or pace. The
Commissioner relies on Stubbs-Danielson, 539 F.3d 1169, 1174 (9th Cir. 2008), which holds that
a limitation to “simple, repetitive tasks” can encompass moderate difficulties with concentration,
persistence or pace if the limitation is “consistent with restrictions identified in the medical
testimony.” Id. Here, unlike in Stubbs-Danielson, the limitation to “simple, repetitive tasks” is not
consistent with the restrictions in the medical testimony because Dr. Nicoloff’s testimony
included a restriction to “1-2 step tasks.” Tr. 99, 112.
Citing an Eighth Circuit case, the Commissioner argues that “by consider[ing] Dr.
Nicoloff’s opinion, the ALJ accounted for moderate limitations in concentration, persistence, and
pace.” Def.’s Br. at 17; see Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001). In Howard, a
doctor opined that the claimant had deficiencies with concentration, persistence and pace; and that
same doctor also provided the limitation to simple, repetitive tasks which was included in the

Document Sorter job. The RFC limited Plaintiff to “simple, repetitive tasks,” which are consistent with Reasoning
Level Two, but Document Sorter requires Reasoning Level Three. Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir.
2015); Dictionary of Occupational Titles, (4th ed. 1991) 249.587-018. The Commissioner argued that there was no
apparent conflict because the Specific Vocational Preparation (“SVP”) for Document Sorter was consistent with
Plaintiff’s abilities. The Commissioner did not cite to any case law for the proposition that consistency with the SVP
obviates what would be an apparent conflict between Reasoning Levels. To the contrary, case law indicates that “there
is an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of
Level 3 Reasoning.” Id.

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RFC. Id. The case is clearly distinguishable because here, Dr. Nicoloff’s limitation was not
included in the RFC, therefore, Howard is inapposite.
The Commissioner also argues that the limitation to “simple, repetitive tasks” was
sufficient, citing “objective findings” that Plaintiff’s “[a]ttention and concentration were normal
on testing.” Def.’s Br. at 16 (emphasis added). Although the medical providers and social workers
noted that Plaintiff’s attention and concentration were normal; a close review of the record reveals
that those observations were not based on objective medical testing. Tr. 19, 399, 426, 453. While
the so-called “objective findings” may be relevant as lay-witness observations, they do not
warrant deference sufficient to supplant Dr. Nicoloff’s medical opinion. Tr. 399, 426, 453.
Further, the ALJ never made the finding that the lay witness observations conflicted with those of
Dr. Nicoloff's. To the contrary, the ALJ stated “[t]hese objective findings support functional
limitations caused by mental health impairment,” and that Dr. Nicoloff’s opinion was “supported
by the medical record.” Tr. 19, 21 (emphasis added). As such, the Commissioner’s argument
amounts to a post hoc rationalization, which the Court must reject. Bray v. Commissioner, 554
F.3d 1219, 1225 (9th Cir. 2009). (“Long-standing principles of administrative law require us to
review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not
post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”)
B. Larissa Whalen-Garfias, PA
Plaintiff contends that the ALJ improperly rejected the opinion of the treating provider,
Larissa Whalen-Garfias, P.A.3 In treating Plaintiff, P.A. Garfias opined that Plaintiff could work
in a jobs program “especially if only 3 hours a day”—but Plaintiff should “be allowed to stand as

3

The Plaintiff, citing several district court decisions and unpublished Ninth Circuit opinions, argued that there was an
apparent conflict between the DOT and the limitation in the hypothetical question to the VE because the DOT does not
address whether the identified jobs would allow for standing every 30 minutes. The regulations indicate that in a
situation where there is an unusual limitation as to the ability to sit or stand, a VE should be consulted. SSR 83-12.
Here, a VE was consulted, and she identified jobs that could accommodate the limitation of standing every 30 minutes.

OPINION & ORDER - 11

needed” and “avoid prolonged sitting.” Tr. 336.
The ALJ purported to give the opinion “great weight because it is consistent with the record
as a whole, although the evidence indicates she can work for more than three hours per day.” Tr.
21. The ALJ did not comment on the actual limitations set forth by P.A. Garfias. Tr. 21. The
Commissioner argues that the ALJ discounted those limitations in light of other evidence in the
record. Def.’s Br. at 14. However, contrary to the Commissioner’s contention, the ALJ did not
explain why he did not adopt the postural limitation. Failure to comment on the limitation was
error, because the ALJ did not provide a reason to reject the limitation.
The Commissioner argues that the ALJ properly evaluated the opinion of P.A. Garfias
because she is not an “acceptable medical source,” but rather an “other source.” 20 C.F.R. §§
404.1502(a), 416.902(a); SSR 06-03p at *2.The ALJ can discount testimony from “other sources”
by providing “germane reasons” for doing so. Molina, 674 F.3d at 1111. Here, however, the ALJ
failed to provide any reasons for rejecting P.A. Garfias’ testimony, unlike in Molina, where the
“ALJ rejected [the physicians assistant’s] views on the grounds that [the physicians assistant’s]
opinions were ‘quite conclusory,’ provided very little explanation of the evidence relied on, were
not supported by Molina’s objective medical condition, and were inconsistent with the opinion of
Dr. Yost, the examining psychiatrist.” Id.
The Commissioner further posits that despite the ALJ’s failure to explicitly address the
postural limitations, his path can reasonably be discerned because the ALJ stated that the “residual
functional capacity is supported by the evidence of record.” The Commissioner argues that
statement “by extension undermines Ms. []Garfias’s opinion.” Def.’s Br. at 15; Tr. 22. The
Commissioner cites Mr. Ortiz’s description of Plaintiff’s daily activities, as well as an MRI that
“revealed only mild to moderate narrowing of the disk space,” and contends that the “ALJ could
reasonably construe these objective findings as consistent [with] the limitations in the RFC.”
OPINION & ORDER - 12

Def.’s Br. at 15 (emphasis added). The Commissioner urges the Court to “construe this evidence
as undermining Ms. []Garfias’ opinion.” Def.’s Br. at 16. In so requesting, the Commissioner
invites the court to speculate as to the ALJ’s reasoning. I decline to do so. SSR 06-03p at *6 (ALJ
must “ensure that the discussion of the evidence . . . allows a claimant or subsequent reviewer to
follow the adjudicator’s reasoning[.]”); Treichler v. Commissioner of Social Sec. Admin., 775
F.3d 1090, 1103 (9th Cir. 2014) (the Court “cannot substitute [its] conclusions for the ALJ’s, or
speculate as to the grounds for the ALJ’s conclusions.”). Therefore, the ALJ failed to provide
germane reasons for rejecting the opinion of P.A. Garfias.
II. Scrivener’s Error in the RFC
As Plaintiff points out, the RFC’s language is unclear. The RFC states that: “When seated,
[Plaintiff] should be allowed to stand for 30 minutes with no interruption to the work process.” Tr.
15. The confusing sentence is repeated several times throughout the ALJ’s opinion. Tr. 19, 21, 22.
The Commissioner concedes that the wording constitutes error, describing the RFC, as crafted,
“nonsensical” and attributes the strange phrasing of the RFC to a scrivener’s error. Such an error
is potentially harmful.4
While Plaintiff argues that the RFC is subject to multiple interpretations, the alternate
readings proposed by Plaintiff are implausible. Pl.’s Br. at 15 (“stand for 30 minutes ‘when
seated’ [only] upon arrival at work” or “stand for 30 minutes every time she is seated[.]”). On the
other hand, the interpretation set forth by the ALJ is plausible: the ALJ used the word “for” when

4

The case law in this area is sparse, the rule emerging in our sister courts indicates that unclear language or a
typographical error in the RFC is harmful if it creates an actual ambiguity. Martinez v. Astrue, 2014 WL 310387, at
*16 (N.D.Cal. Jan. 28, 2014) (holding that “the ALJ committed legal error by articulating an ambiguous RFC…” but
the error was harmless because “read in its proper context, it is clear” what the ALJ meant.); Peters v. Colvin, 2015
WL 12670518, at *6 (E.D. Wa. Dec. 14, 2015) (remanding for clarification where a typographical error created an
ambiguity in the RFC.); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 237–38 (2012) (laying out the guiding principles for applying the absurdity doctrine to correct typos:
“(1)The absurdity must consist of a disposition that no reasonable person could intend… (2) The absurdity must be
reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical
or ministerial error….”).

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he meant to say “every,” such that the RFC should read as: “When seated, she should be allowed
to stand [every] 30 minutes with no interruption in the work process.” This interpretation is well
supported because it matches the phrasing used by the ALJ in his hypothetical question to the VE.
See Tr. 57. Because this is the only reasonable interpretation of the RFC, the RFC is not
ambiguous and the ALJ’s scrivener’s error was harmless.
III. Error in Relying on the VE Testimony
The Plaintiff alleges that the ALJ erred in relying on the VE testimony. As noted above, the
ALJ erred in failing to include in the RFC Dr. Nicoloff’s limitation to 1-2 step tasks, and P.A.
Garfias’ postural limitations.5 The ALJ was required to include those limitations in the
hypothetical questions to the VE. Valentine v. Commissioner, 574 F.3d 685, 690 (9th Cir. 2009)
(“The hypothetical an ALJ poses to a vocational expert, which derives from the RFC, must set out
all the limitations and restrictions of the particular claimant.” (internal quotations omitted)).
Because, the ALJ failed to include those limitations in the hypothetical questions to the VE, the
VE’s testimony had no evidentiary value and it was error for the ALJ to rely on it. Embrey v.
Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (“If the assumptions in the hypothetical are not
supported by the record, the opinion of the vocational expert that claimant has a residual working
capacity has no evidentiary value.” (quoting Gallant v. Heckler, 753 F.2d 1450, 1456 (9th
Cir.1984)).
IV. Error in Rejecting Plaintiff’s Testimony
Plaintiff alleges that the ALJ improperly discounted her testimony. When a claimant has
5

Plaintiff additionally argued at length that Plaintiff had less than a limited education and that the ALJ erred in finding
that Plaintiff had a limited education. An education level from 7th grade to 11th grade is generally considered to be a
limited education. C.F.R. § 404.1564(b)(3). Plaintiff has an 8th grade education, but she contends that the record
contains evidence contradicting the finding that she has a limited education. Tr. 38. Plaintiff relies on the fact that she
was held back in second grade, had learning problems, does not have a driver’s license, and has failed to obtain a GED.
However, none of that evidence contradicts a finding that Plaintiff had a limited education. Furthermore, the mere
existence of evidence contradicting an ALJ finding is insufficient to overturn it, the ALJ’s finding need only be
supported by substantial evidence. Matney, 981 F.2d at 1019. The fact that Plaintiff had an 8th grade education is
substantial evidence that Plaintiff had a limited education.

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medically documented impairments that could reasonably be expected to produce some degree of
the symptoms complained of, and the record contains no affirmative evidence of malingering, “the
ALJ can reject the claimant's testimony about the severity of [his or her] symptoms only by
offering specific, clear and convincing reasons for doing so.” Garrison v. Colvin, 759 F.3d 995,
1014–15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).
Pursuant to SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016) (superseding SSR 96-7p), the ALJ is
no longer tasked with making an overarching credibility determination, and must assess instead
whether a claimant's subjective symptom statements are consistent with the record as a whole. The
ALJ’s decision in this case was issued well before SSR 16-3p became effective and there is an
absence of binding precedent interpreting this new ruling or addressing whether it applies
retroactively. Compare Ashlock v. Colvin, 2016 WL 3438490, *5 n.1 (W.D. Wash. June 22,
2016) (declining to apply SSR 16-3p to an ALJ decision issued prior to the effective date), with
Lockwood v. Colvin, 2016 WL 2622325, *3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p
retrospectively to a 2013 ALJ decision).
However, SSR 16-3p is a clarification of sub-regulatory policy, rather than a new policy.
SSR 16-3p, at *1; also compare SSR 16-3p with SSR 96-7p (both policies set forth a two-step
process to be followed in evaluating a claimant’s testimony and contain the same factors to be
considered in determining the intensity and persistence of a claimant's symptoms). In Andre v.
Colvin, 6:14-cv-02009-JE (D. Or. Oct. 13, 2016), I recently concluded that, for this reason,
retroactive application of the new SSR is appropriate. See Smolen, 80 F.3d at 1281 n.1 (“We need
not decide the issue of retroactivity [as to revised regulations] because the new regulations are
consistent with the Commissioner’s prior policies and with prior Ninth Circuit case law”) (citing
Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993)) (because regulations were intended to
incorporate prior Social Security Administration policy, they should be applied retroactively). The
OPINION & ORDER - 15

new SSR clarifies that “subjective symptom evaluation is not an examination of an individual's
character.” SSR 16-3p, at *1. In other words, “[t]he focus of the evaluation of an individual’s
symptoms should not be to determine whether he or she is a truthful person.” SSR 16-3p, at *10.
Rather, “[a]djudicators must limit their evaluation to the individual’s statements about his or her
symptoms and the evidence in the record that is relevant to the individual’s impairments.” SSR
16-3p, at *10. Thus, “it is not sufficient for our adjudicators to make a single, conclusory
statement that ‘the individual’s statements about his or her symptoms have been considered . . . .’”
SSR 16-3p, at *9. Instead, the finding “must contain specific reasons for the weight given to the
individual’s symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent review can assess how the adjudicator evaluated
the individual’s symptoms.” SSR 16-3p, at *9.
In evaluating a claimant’s subjective symptom testimony, an ALJ must consider the entire
record and consider several factors, including the claimant’s daily activities; the location,
duration, frequency, and intensity of the claimant’s pain or other symptoms; medications taken
and their effectiveness; treatment other than medication; measures other than treatment used to
relieve pain or other symptoms; and “[o]ther factors concerning [the individual’s] functional
limitations and restrictions due to pain or other symptoms.” 20 C.F.R. §§ 404.1529(c)(3)(vii),
416.929(c)(3)(vii). If substantial evidence supports the ALJ’s determination, it must be upheld,
even if some of the reasons cited by the ALJ are not correct. Carmickle v. Comm’r of Soc. Sec.,
533 F.3d 1155, 1162 (9th Cir. 2008).
A. Physical Symptoms
Plaintiff testified that she suffers from scoliosis, chronic back pain, and a leg length
discrepancy. Tr. 16, 37. She also asserted that she had problems with short term memory due to
PTSD. Tr. 38. She further attested that she gets weak and needs to lie down or sit down. Tr. 38.
OPINION & ORDER - 16

Additionally, she stated that she cannot sit for more than an hour and she cannot stand for more
than an hour at a time. Tr. 43–44. Plaintiff explained that she would not be capable of performing
an eight hour job, even if it had a sit and stand as needed option, because she would need to lie
down to rest and readjust her back. Tr. 47. She also asserted that she requires four naps or rests a
day, each time for a couple of hours. Tr. 256.
The Plaintiff first alleges error as to the ALJ’s findings regarding the credibility of her
physical symptoms. The ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.” Tr. 17. In order to discredit subjective
symptom testimony, the ALJ “must state specifically what symptom testimony is not credible and
what facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284 (citing Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993)). The Commissioner argues that the ALJ was not
required to use “magic words” to reject Plaintiff’s testimony. Magallanes v. Bowen, 881 F.2d 747,
755 (9th Cir. 1989). Although the ALJ did not need to use magic words, he was required to
specifically identify the testimony he was rejecting. Treichler, 775 F.3d at 1102. The ALJ failed to
do so. As in Treichler, the ALJ here merely quoted boilerplate language, but failed to identify any
specific parts of the claimant’s testimony that he found not credible. This is clear error. Id. at
1103. (“ALJs routinely include this statement in their written findings as an introduction to the
ALJ's credibility determination. After making this boilerplate statement, the ALJs typically
identify what parts of the claimant's testimony were not credible and why.”) (internal citations
omitted).
In a similar vein, the Commissioner further contends that it was enough that the ALJ
summarized the symptom testimony and provided reasons for discounting that testimony. Here,
OPINION & ORDER - 17

however, the ALJ did not provide reasons for discounting the testimony, but merely summarized
evidence supporting his determination.6 Tr. 17–18. The Commissioner urges that it is “well within
the court’s faculties to infer which reasons speak generally, which reasons speak to specific
complaints, and which complaints may have been incorporated into the RFC.” Def.’s Br. at 18.
The argument is spurious: as the Ninth Circuit made abundantly clear, the Court may not make
such inferences. Treichler, 775 F.3d at 1103. (“Because the ALJ set out his RFC and summarized
the evidence supporting his determination, the government argues that we can reasonably infer
that the ALJ rejected Treichler's testimony to the extent it conflicted with that medical evidence.
But we cannot substitute our conclusions for the ALJ’s, or speculate as to the grounds for the
ALJ’s conclusions.” (internal citations omitted)). By failing to specifically identify the testimony
that he found not credible, the ALJ failed to provide clear and convincing reasons to reject
claimant’s testimony regarding her physical symptoms.
B. Mental Health Symptoms
Plaintiff testified that she suffers from depression, anxiety, and PTSD. 16, 44. Plaintiff
reported having difficulties with memory, concentration, following instructions, and staying
focused. Tr. 38, 253, 396–97. She complained of mood swings and social anxiety. Tr. 254, 411–
12. She explained that her PTSD is triggered by older men because it reminds her of the sexual
abuse that she suffered as a child. Tr. 40. Plaintiff asserted that she suffered from flashbacks and
nightmares as a result of her PTSD. Tr. 411–12. Her anxiety causes dizziness and she occasionally
experiences panic attacks when she goes shopping. Tr. 414. The ALJ provided various reasons for
discrediting Plaintiff’s testimony regarding mental health symptoms.

6

The Commissioner repeatedly asserted that the ALJ provided reasons for discounting Plaintiff’s physical symptoms;
however the Commissioner’s argument is unsupported by citations or specific examples. Def’s Br. at 6–7. The
Commissioner further argues that Plaintiff waived any challenges to the ALJ’s reasons for discounting her physical
limitations “by failing to raise them in her brief with any specificity.” Def.’s Br. at 7. However, Plaintiff clearly
challenged the absence of reasons for discounting the physical symptoms. See Pl.’s Br. at 16–17.

OPINION & ORDER - 18

The ALJ cited Plaintiff’s “limited and sporadic work history” as evidence that “factors
other than her alleged impairments affect her ability to maintain fulltime employment.” Tr. 20.
The Commissioner relies on Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002), in which the
claimant had an “extremely poor work history” and “years of unemployment between jobs[.]” In
support, the ALJ notes that Plaintiff turned 18 in 2000, and had no income from 2001-2004. Tr.
20. While that may be true, Plaintiff began working steadily in January 2005 and her lack of
income from 2001-2004 is almost certainly due to the fact that she gave birth to three children
from 1999-2003. Tr. 261. Further, the ALJ mischaracterized the record by focusing exclusively on
Plaintiff’s earnings, rather than her hours worked. Tr. 20. (“earnings record indicates limited
earnings even before the alleged onset of disability.”) (emphasis added). The ALJ pointed out that
Plaintiff made only “$5,556 in 2005, $13,792 in 2006, and $6,932 in 2007,” but he failed to note
she worked full-time over most of that period, up until the onset date in September, 2007. Tr. 20,
202. Because Plaintiff earned only $6.50 per hour, her overall income figures are misleading. Tr.
202. By focusing on Plaintiff’s earnings, rather than hours worked, the ALJ’s finding that Plaintiff
had little propensity to work is not supported by substantial evidence.
The ALJ also argued that Plaintiff’s “job search activity suggests the claimant is quite
aware of her limitations and believes she can work despite them.” Tr. 20. The Commissioner
relies on Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996), where the claimant “completed an
electronics course in 1984 and unsuccessfully sought work in the field[.]” In Macri, the court
reasoned that the claimant “could not find work in 1985 and 1986 because of a slowdown in the
electronics industry[.]” Id. Here, in contrast, Plaintiff did not complete any such training courses
and her inability to find work was never attributed to a slowdown in any industry. Furthermore,
Plaintiff testified that she did not believe she could work. Tr. 47. The Court acknowledges that
Plaintiff was receiving TANF (Temporary Assistance for Needy Families) benefits which require
OPINION & ORDER - 19

beneficiaries to participate in a jobs program and apply for jobs. However, Plaintiff testified that
she only participated in the jobs program until 2009, and she repeatedly requested and was granted
waivers from the job seeking requirement. Tr. 49–56. Because Plaintiff’s job search activities
were required by TANF, the record as a whole suggests that her involvement in the program was
motivated by her financial need rather than a belief that she could sustain gainful employment.
Additionally, the ALJ alleged that Plaintiff’s marijuana use “weakens her credibility
because it shows a pattern of voluntary injurious behavior.” Tr. 20. The Commissioner limited the
scope of that argument to the allegation that Plaintiff made “inconsistent statements about
marijuana” conceding that “the Commissioner does not defend the remaining findings with
respect to marijuana.” Def.’s Br. at 10. The inconsistency alleged by the ALJ was that “[t]he
claimant continues to use marijuana even though she admits it does not relieve her alleged pain.”
Tr. 20. The Plaintiff’s medical records show that she reported that “[m]arijuana has helped” with
her pain but that it was “not providing pain control.” Tr. 326, 385. That marijuana helps relieve
Plaintiff’s pain but does not provide full relief, is not an inconsistent statement. Because the
Plaintiff’s statements were not inconsistent, this was not a clear and convincing reason to discount
her testimony.
The ALJ also argued that Plaintiff’s recent work activity is evidence that she is capable of a
higher level of functioning than she claims. Tr. 20. After her alleged onset date, Plaintiff worked
twice a week for five months as a security guard. Tr. 46, 202. The Ninth Circuit has held that a
trial period of work for less than nine months is not evidence that a person is not disabled.
Lingenfelter v. Astrue, 504 F.3d 1028, 1039 (9th Cir. 2007) (“By analogy, if working for
almost nine months is not evidence that a disability benefit recipient is no longer disabled, then
a nine week unsuccessful work attempt is surely not a clear and convincing reason for finding that
a claimant is not credible regarding the severity of his impairments.”). Furthermore, the trial work
OPINION & ORDER - 20

period does not indicate that Plaintiff is capable of a higher level of functioning than she claims,
because over the course of five months Plaintiff only worked about 16 full days. Tr. 193, 202
(Plaintiff made $960.50 in that time period, and she indicated that she was paid $7.50 per hour,
thus she worked 128 hours or 16 eight-hour days). Plaintiff had to quit the job because it was too
much walking and she could not lie down when she needed to. Tr. 46, 202. This is consistent with
Plaintiff’s testimony that she is not capable of working full-time and that she frequently needs to
lie down. Tr. 47. Accordingly, Plaintiff’s work history is not a clear and convincing reason to
discount her testimony.
The ALJ further supported his adverse credibility by finding Plaintiff received merely
conservative treatment. Tr. 19–20. Conservative treatment may be “sufficient to discount a
claimant’s testimony regarding [the] severity of an impairment.” Parra v. Astrue, 481 F.3d 742,
750-51 (9th Cir. 2007). The ALJ’s finding was based on the facts that Plaintiff (1) “has not been
hospitalized for psychiatric reasons,” (2) has only had a “limited use of counseling services and
medication,” (3) was not seeing a counselor as previously recommended, and (4) “did not take
prescribed mental health medication because she became pregnant.” Tr. 20.
The ALJ cites an unpublished Ninth Circuit case for the proposition that a lack of
hospitalization “is consistent with conservative treatment.” See Brumfield v. Astrue, 281 Fed.
Appx. 681, 682 (9th Cir. 2008). Although the one-page opinion in Brumfield is light on details, it
appears that the Brumfield court was referring to hospitalizations for physical symptoms rather
than psychiatric hospitalization. Id. at 682–83. Thus, the case is distinguishable because
hospitalization in the context of mental health is different because a person with mental health
problems may not recognize the importance of seeking treatment. Nguyen v. Chater, 100 F.3d
1462, 1465 (9th Cir. 1996); see also Bagdoyan v. Colvin, 2013 WL 941965, at *4 (C.D.Cal. Mar.
11, 2013) (“the lack of history of psychiatric hospitalization … did not constitute a clear and
OPINION & ORDER - 21

convincing reason” to discount the plaintiff’s testimony); Delgiudice v. Barnhart, 2006 WL
2830792, at *5 (C.D.Cal. Sep. 29, 2006) (“the ALJ’s citation to Plaintiff's lack of hospitalization
is not a clear and convincing reason for rejecting Plaintiff’s credibility regarding her alleged
mental limitations.”). Despite not having been hospitalized for psychiatric reasons, Plaintiff was
diagnosed and treated for PTSD and “[m]ajor depressive disorder.” Tr. 291, 410, 426.
The ALJ relies on a note in Plaintiff’s medical record that she was not seeing a counselor as
recommended, Tr. 20, 294, however, the fact that Plaintiff had failed to follow through on a
referral to a counselor, was noted a mere nine days after the referral was made. Tr. 294, 304.
Plaintiff was referred to a counselor in May and attended her first session in July. Tr. 294, 395. A
delay is not clear and convincing evidence that her use of counseling services was limited. As
Plaintiff correctly points out, the Ninth Circuit has criticized reliance on a lack of treatment as a
basis to reject mental complaints. Nguyen, 100 F.3d at 1465 (it is “a questionable practice to
chastise one with a mental impairment for the exercise of poor judgment in seeking
rehabilitation.”).
Furthermore, it does not appear that Plaintiff’s use of medication was “limited,” as the ALJ
found. Tr. 20. Plaintiff repeatedly returned to mental health care providers and counselors to
adjust her prescriptions and work on strategies to improve her mental health. Tr. 292–94, 305–06,
395, 407, 411, 426–27. (originally prescribed Cymbalta, but stopped taking it because it increased
her depression and anxiety and caused a loss of appetite. Subsequently prescribed Zoloft and
shortly thereafter the dosage was increased. Most recently, prescribed Celexa.) The ALJ’s finding
is not supported by substantial evidence.
The ALJ finally argues that Plaintiff did not “have a sincere interest in achieving medical
and functional improvement,” because she stopped taking her medications when “she became
pregnant.” Tr. 20. The ALJ’s argument is unconvincing. Plaintiff’s concern over the health of her
OPINION & ORDER - 22

unborn child was “a good reason” to stop taking her medication. See Carmickle, 533 F.3d at 1162.
Therefore, the ALJ’s findings regarding treatment did not constitute clear and convincing reasons
for discounting her testimony.
The ALJ further impugned Plaintiff’s testimony, citing evidence showing that “[a]ttention
and concentration were normal.” Tr. 19, 399, 426, 453. The Commissioner argues that “the ALJ
found that normal mental status examinations, supported the RFC assessment more than her
subjective complaints.” Def.’s Br. at 7. A thorough review of the record reveals that the “mental
health examinations” were actually observations of Plaintiff’s behavior during visits to medical
providers, not evaluations of her functional capacity. Tr. 399, 426, 453. As previously discussed,
the observations were not made by doctors, but rather a physician’s assistant, a midwife, and a
social worker. Tr. 399, 426, 453. Of the three “mental status examinations,” two were actually
“physical examinations.” Tr. 426, 453 (emphasis added). Furthermore, the third examination,
although labeled a “mental status examination,” does not include any evidence of testing and was
part of a social worker’s examination that included general observations regarding dress,
grooming, hygiene, and facial expressions. Tr. 399. There was, however, some testing done at that
appointment that indicates Plaintiff’s concentration was not normal. Plaintiff underwent two tests,
the PHQ9 for depression and the GAD7 for anxiety. Results from both tests indicated that she had
“moderately severe” symptoms. Tr. 397. Her depression symptoms included “difficulty
concentrating” and her anxiety symptoms included “decreased concentration.” Tr. 397. Therefore,
the ALJ did not provide clear and convincing reasons to discount Plaintiff’s subjective complaints
regarding concentration.
Finally, the ALJ asserts that Plaintiff’s activities of daily living “suggest greater functioning
than alleged in her application.” Tr. 19. The ALJ refers to Plaintiff’s ability to care for five
children, prepare meals, perform personal care, do household chores, use public transportation,
OPINION & ORDER - 23

use a computer, talk on the phone, read, draw, and watch television. Tr. 19. The Commissioner
argues that such activities are inconsistent with Plaintiff’s “problems remembering, completing
tasks, concentrating, understanding and following instructions.” Def.’s Br. at 8.
The Commissioner contends that Plaintiff’s activities are comparable to those in Rollins v.
Massanari, 261 F.3d 853, 857 (9th Cir. 2001). In Rollins, the claimant attended to all of her
children’s needs and she left the house daily to run errands and attend her children’s activities. Id.
In contrast, Plaintiff is not capable of attending to all of her children’s needs; her three oldest
children take care of themselves, the older children often help her with the younger children, her
oldest daughter has to help her clean the house and do the laundry, and she is unable to lift her
youngest child. Tr. 41–43, 228, 251, 261. The claimant in Rollins attended her children’s soccer
games and taekwondo lessons, but Plaintiff does not attend any of the activities of her children.
Tr. 41. Additionally, the ADLs in Rollins provided clear and convincing evidence to discount
claimant’s testimony that she had “totally disabling pain.” Id. (emphasis added). Here, Plaintiff
testified that she had difficulties with memory, concentration, following instructions, and staying
focused. Tr. 38, 253, 396–97. Therefore, Rollins is inapposite.
As the Ninth Circuit has repeatedly stated, the mere fact that a claimant can carry out
minimal activities, or that a claimant attempts to lead a normal life, does not mean they are
foreclosed from disability benefits. See, e.g., Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007);
Molina, 674 F.3d at 1112–13 (The “claimant need not vegetate in a dark room to be eligible for
benefits.”) (citation omitted). An ALJ may discount the testimony of a claimant if the daily
activities “are incompatible with the severity of symptoms alleged[.]” Ghanim v. Colvin, 763 F.3d
1154, 1165 (9th Cir. 2014) (citing Orn, 495 F.3d at 639). Plaintiff’s ability to care for her children,
do some chores, watch television, talk on the phone, etc. are not incompatible with Plaintiff’s
testimony that she had difficulties with memory, concentration, following instructions, and staying
OPINION & ORDER - 24

focused. As such, the ALJ’s general conclusions do not meet the rigorous specific, clear and
convincing standard. Dodrill, 12 F.3d at 918; see SSR 16-3p.
V. Remand
A reviewing court has discretion to remand an action for further proceedings or for a
finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th
Cir.1985). Whether an action is remanded for an award of benefits or for further proceedings
depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th
Cir. 2000).
In determining whether an award of benefits is warranted, the court follows the “three-part
credit-as-true standard.” Garrison, 759 F3d at 1020. Under this standard the court considers
whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2) the
record has been fully developed and further administrative proceedings would serve no useful
purpose, and (3) if the improperly discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand. Id. If a court concludes that a Plaintiff meets the
three criteria of the credit-as-true standard, then the improperly discredited evidence is credited as
true and remand for an award of benefits is appropriate unless “the record as a whole creates
serious doubt as to whether the claimant is, in fact, disabled with the meaning of the Social
Security Act.” Id. at 1021 (citations omitted).
Here, the first requisite is met. I conclude that the ALJ failed to provide legally sufficient
reasons for rejecting evidence and that his decision contained errors of law. However, the second
requisite is not met, as the record in this case is not fully developed. Even if the improperly
discounted testimony of Plaintiff and the improperly discredited opinions of Dr. Nicoloff and P.A.
Garfias were credited as true, the VE did not provide an opinion regarding the limitations Plaintiff
wishes the Court to credit. Accordingly, crediting the improperly discredited evidence requires reOPINION & ORDER - 25

formulation of the RFC and corresponding question to the VE. Therefore, the record is still not
fully developed and it is not clear that Plaintiff is, in fact, disabled. Remand for further
proceedings is the appropriate remedy. Treichler, 775 F3d at 1105. (“Where . . . an ALJ makes a
legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case
to the agency.”).
On remand, the ALJ shall (1) accept Dr. Nicoloff’s and P.A. Garfias’ opinions and
incorporate them into the RFC or provide legally sufficient reasons for their rejection, (2) draft an
RFC that includes all of Plaintiff’s limitations, (3) obtain additional VE testimony regarding what
work Plaintiff can do, if any, (4) resolve any remaining inconsistencies concerning Reasoning
levels that exist between the VE’s conclusions and the DOT, (5) accept Plaintiff’s testimony or
provide legally sufficient reasons for discounting it, and (6) conduct any additional proceedings as
indicated by the results of the foregoing instructions.
Conclusion
For the reasons discussed above, the Commissioner’s ultimate decision was not based on
substantial evidence and free of harmful legal error. Accordingly, the Commissioner’s decision is
REVERSED and this case REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for
additional administrative proceedings consistent with this Opinion and Order.
DATED this 4th day of August, 2017
_/s/ John Jelderks
John Jelderks
U.S. Magistrate Judge

OPINION & ORDER - 26