Vaughn v. Commissioner Social Security Administration
OPINION AND ORDER. Signed on 3/29/2017 by Magistrate Judge Youlee Yim You. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANDREA NICOLE VAUGHN,
Case No. 3:15-cv-02151-YY
OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
YOU, Magistrate Judge:
Plaintiff, Andrea Nicole Vaughn (“Vaughn”), seeks judicial review of the final decision by
the Social Security Commissioner (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 401–
33. This court has jurisdiction to review the Commissioner’s decision pursuant to 42 U.S.C.
§ 405(g) and § 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final
orders and judgment in this case in accordance with Fed R. Civ. P. 73 and 28 U.S.C. § 636(c).
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ECF #12. For the reasons set forth below, the Commissioner’s decision is reversed and this
matter is remanded pursuant to sentence four, 42 U.S.C. § 405(g), for further administrative
Vaughn protectively filed for DIB on April 12, 2012, alleging a disability onset date of
March 15, 2007. Tr. 12. 1 Her application was denied initially and on reconsideration. Tr. 51–
69. Vaughn requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 74–75. On
April 21, 2014, ALJ Riley Atkins conducted a hearing at which Vaughn, her husband, and her
mother testified. Tr. 25–49. A vocational expert (“VE”), Robert Gaffney, also appeared at the
hearing, but did not testify. Tr. 25, 28. The ALJ issued a decision on May 12, 2014, finding
Vaughn not disabled. Tr. 9–24. The Appeals Council denied Vaughn’s request for review.
Tr. 1–4. Because the Appeals Council denied Vaughn’s request for review, the ALJ’s decision is
the Commissioner’s final decision subject to review by this court. 20 C.F.R. §§ 404.981,
Born in 1971, Vaughn was 42 at the time of the hearing before the ALJ. Tr. 120. She has
an eleventh grade education and past relevant work experience as a cosmetologist. Tr. 135, 138.
Vaughn alleges that she is unable to work due to the combined impairments of interstitial cystitis,
overactive bladder, bladder spasms, anxiety, and migraine headaches. Tr. 137.
Citations are to the page(s) indicated in the official transcript of the record filed on April 11,
2016 (ECF #15).
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The time period at issue in this case is from the alleged onset date, March 15, 2007, through
Vaughn’s date last insured, December 31, 2011. Tr. 21, 46–47. On March 16, 2007, Vaughn
was seen in the emergency room. Tr. 267–69. The chart note reads in relevant part:
Chief Complaint - ANXIETY. It has been constant. This started
1 week ago. Is still present. Has been upset (tearful). The
patient has had insomnia (difficulty falling asleep). She has had
moderate anxiety. No anger or suicidal thoughts. Did not attempt
suicide. Did not overdose. She has experienced situational
problems related to significant other. The symptoms are described
as moderate. Pt c/o anxiety and headache for one week secondary
to relationship problems with her ex-husband and current husband.
Pt in ED with her ex-husband. One year ago pt left her husband
and got remarried. Now she is having problems with her current
husband and says he uses drugs, is unemployed, etc. For the last
month and a half she has been back with her ex-husband and now
feels very stressed out because her current husband says he wants
her back. For the last week and a half she has been extremely
stressed out, crying constantly, she quit her job this morning. She
denies suicidal ideation but c/o severe headache
that started today. Not eating or sleeping well.
Vaughn reported a past history of migraine headaches, carpal tunnel syndrome, anxiety,
attention deficit disorder, and interstitial cystitis. Tr. 267. She was taking Adderall (for years),
Ativan, and Premarin. Tr. 268. The doctor diagnosed an anxiety reaction and headache, and
prescribed Ativan and Morphine.
About six weeks later, on May 6, 2007, Vaughn returned to the emergency room with
constant dysuria and bladder pain of two days duration. Tr. 265. She described her symptoms as
moderate and worse with urination. Vaughn was described as anxious and in moderate distress,
and was prescribed Pyridium and Norco and instructed to follow up with her urologist that week.
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On October 24, 2007, Robert J. Hehn, M.D., performed a bladder cystoscopy for
symptomatic interstitial cystitis with pelvic pain and frequency. Tr. 208–23. Dr. Hehn noted
Vaughn saw Dr. Steven Lee for pain control and she took Endocet every five hours, as well as
Adderall, Premarin, and Xanax. At that time, Vaughn’s “bad days” occurred more often than her
“good days.” Tr. 208. Her last bladder dilation was more than a year prior, and Vaughn thought
it was time to redilate.
Dr. Hehn repeated the surgery one year later, on October 29, 2008. Tr. 228. Vaughn
again had worsening symptoms and stated that the bladder dilations help her “for a period of time.”
Id. Vaughn was taking Percocet 7.5 milligrams four times a day and wearing a fentanyl patch.
On May 24, 2009, Vaughn established care with Thomas Hickerson, M.D. Tr. 401–03.
Dr. Hickerson noted Vaughn was on chronic pain management for interstitial cystitis with chronic
hematuria. She was on a Duragesic (fentanyl) patch “which only lasts 48 hours on her,” and
Endocet, six daily, as well as Xanax for anxiety and Adderall for hyperactivity. Tr. 402. Dr.
Hickerson stated Vaughn would be seen every two weeks for pain management. The following
month Vaughn reported increased pain. Tr. 398–99. In July 2009 Dr. Hickerson noted
Vaughn’s pain medication “has done well,” and in August 2009 Dr. Hickerson reported Vaughn’s
pain medication “seems to be working well.” Tr. 396, 394.
By September, however, Dr.
Hickerson recorded increasing pain and Vaughn was scheduled for another cystoscopy which
occurred in October 2009. Tr. 389, 226. Vaughn continued to have increased pain through
October and reported on November 23, 2009 that surgery “gave her a lot of relief.” Tr. 384.
In January 2010 Dr. Hickerson changed Vaughn’s Endocet to Vicodin. Tr. 381. The
following month Vaughn reported increased migraine headaches, and in March 2010 Vaughn had
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increased stress and pain. Tr. 376. On June 25, 2010, Vaughn reported hematuria of four day
duration. Tr. 368. In September 2010 Vaughn was taking eight hydrocodone per day and
changing her fentanyl patch every 48 hours, and by October reported increased pain. Tr. 365,
On November 1, 2010, Vaughn established care with Kent C. Toland, M.D., a urologist.
Cheri Springer, Ph.D., P.A.-C., worked in Dr. Toland’s practice. Dr. Springer examined Vaughn
who reported daytime urgency and frequency of every 30 minutes and nocturia times four. Tr.
248. The Pelvic Pain and Urinary Urgency Frequency (“PUF”) Patient Symptom Scale is a
diagnostic tool to screen patients with chronic pelvic pain. The PUF questionnaire combines a
symptom score and bother score for a total PUF score. Scores range between 0 and 35, and a
score greater than 12 is indicative of significant symptoms. Dr. Springer noted Vaughn’s PUF
score was severe at 26. Vaughn reported bladder pain, spasm, bloating, dysuria and pain through
her pelvis. Dr. Springer noted Vaughn was tired from lack of sleep and thin, prescribed Enablex,
Pyridium, and Lidocaine, and scheduled a cystoscopy and hydrodistention for November 15,
2010. Tr. 250.
On November 5, 2010, Dr. Hickerson administered a chronic pain inventory in which
Vaughn reported a pain level of 5/10 continuously and 8/10 at the worst. Tr. 360. Vaughn stated
her pain interfered with her general activities 60% of the time, her mood 40% of the time, her
normal work (including outside the home and housework) 40% of the time, her relations with other
people 40% of the time, her ability to concentrate 50% of the time, and her appetite 50% of the
By mid-January 2011 Vaughn reported increased pain. In March 2011 Vaughn told Dr.
Springer that Enablex helped to moderate urgency, but she had urinary hesitation, dysuria, pelvic
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floor spasm, and pain with bladder filling. Tr. 240. Dr. Springer prescribed vaginal valium and
Rapaflo. On April 1, 2011, Vaughn reported her pain medications gave her 80-90% relief, with
her average pain at 5/10 and most severe pain at 7/10. Tr. 354. By late May Vaughn reported
increased bladder pain and increased sleep disruption. Tr. 351.
Vaughn saw Dr. Springer in October 2011 with increasing bladder pain, urgency,
frequency and spasm. Tr. 238. Dr. Springer increased Vaughn’s Enablex prescription and
scheduled another hydrodistention. Tr. 238–39. Vaughn was taking Enablex, Norco every three
to four hours, a fentanyl patch every 48 hours, Adderall, Xanax, Fioricet, lidocaine, Pyridium, and
valium. On December 2, 2011, Vaughn reported pain at 4/10 aggravated by activity. Tr. 339.
On December 5 Dr. Toland performed a urethral dilation and cystoscopy. Tr. 235.
Vaughn saw Dr. Hickerson regularly through 2012, reporting increased low back pain in
July and increased bladder pain and frequency in October. Tr. 330, 325. In January 2013
Vaughn told Dr. Hickerson she could not afford another surgery, and reported to Dr. Springer
increased nocturia up to ten times per night with a flare and normally five to six times per night.
Tr. 322, 283. Dr. Springer prescribed Bladder ease.
On February 28, 2013, Dr. Springer noted Vaughn “receives significant improvement”
from periodic hydrodistention and wanted another surgery. Tr. 294. Dr. Springer said Vaughn
received a reduction in bladder symptoms for several months after the procedure that allowed her
to function at “a bit higher level but even this leaves her with significant baseline symptoms.” Id.
Vaughn’s symptoms had increased for several months, she was unable to concentrate and required
help with cooking and cleaning. Her sleep was disrupted with pain greater than 7/10 daily. She
spent hours a day on the toilet. Vaughn had been unable to afford Enablex for several months and
had urinary frequency of every ten minutes. Dr. Springer noted Vaughn previously worked as a
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cosmetologist but had to retire early due to her medical condition. Vaughn had another urethral
dilation surgery on March 18, 2013. The following month Vaughn reported hourly urinary
urgency and frequency, with baseline pain of 5/10 “but she is able to function at this level.” Tr.
286. Dr. Hickerson saw Vaughn through 2013, with increased pain in December. Tr. 303.
On January 14, 2014, Vaughn returned to Dr. Springer requesting another surgery. Tr.
279. Dr. Springer noted Vaughn’s deteriorating symptoms, and that Vaughn typically wore sweat
pants to avoid putting pressure on her lower abdomen. Vaughn had trouble eating due to severe
pain, and Vaughn’s mother brought her meals. She had constant urgency despite Enablex and
was unable to make social plans because she could not predict how she would feel. Vaughn was
unable to complete any household chores even on a good day, and during a flare her urinary
frequency was 25–30 times with hourly nocturia. Her pain level ranged from seven to ten. Dr.
Springer wrote that Vaughn was “suffering with end state IC,” assessed her prognosis as “poor,”
and explained that, patients at this stage “experience daily elevated pain levels, have poor quality
of life and low levels of functioning. The pain at this stage has been compared to that of cancer
pain in the literature and the quality of life comparable to that of kidney dialysis.” Tr. 281. Dr.
Springer noted there is no cure for the condition, and Vaughn had financial barriers to additional
treatments, including the implantation of an Interstim device to stimulate the sacral nerves with
mild electrical pulses. Vaughn reported increased pain to Dr. Hickerson in February, and had
another surgery on March 20, 2014. Tr. 298.
In April 2014, Dr. Springer wrote to the ALJ stating Vaughn had been a patient at the
practice since November 2010 for treatment of interstitial cystitis. Tr. 768–69. Dr. Springer
stated interstitial cystitis flares and recedes over time, and with progression patients experience
baseline symptoms that feel similar to a urinary tract infection. She opined that Vaughn had
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severe and constant daily pain affecting her ability to concentrate, and took medication with
cognitive effects. Tr. 769. Dr. Springer stated Vaughn would “certainly” average more than two
days per month in which she would be absent from work, and that this had been the case since she
was first seen by Dr. Springer in November 2010.
In June 2014 Dr. Springer reviewed the ALJ’s decision denying Vaughn’s application for
disability benefits, and wrote a second letter to the ALJ repeating her opinion as to Vaughn’s
condition, citing her own doctoral dissertation research on the effect of anxiety on a patient’s PUF
score, pain levels and other indictors of severity of disease. Tr. 770–71. Dr. Springer completed
and submitted to the ALJ a Medical Source Statement in which she assessed multiple severe and
disabling limitations. Tr. 772–75.
Disability is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
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). 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;
Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999).
At step one, the ALJ determines if the claimant is performing substantial gainful activity.
If so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i) & (b).
At step two, the ALJ determines if the claimant has “a severe medically determinable
physical or mental impairment” that meets the 12-month durational requirement. 20 C.F.R.
§ 404.1520(a)(4)(ii)&(c). Absent a severe impairment, the claimant is not disabled. Id.
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At step three, the ALJ determines whether the severe impairment meets or equals an
impairment “listed” in the regulations. 20 C.F.R. § 404.1520(a)(4)(iii) & (d); 20 C.F.R. Pt. 404
Subpt. P, App. 1 (Listing of Impairments). If the impairment is determined to meet or equal a
listed impairment, the claimant is disabled.
If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other
relevant evidence in assessing the claimant’s residual functional capacity (“RFC”).
claimant’s RFC is an assessment of work-related activities the claimant may still perform on a
regular and continuing basis, despite the limitations imposed by his or her impairments.
C.F.R. § 404.1520(e); Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996).
At step four, the ALJ uses the RFC to determine if the claimant can perform past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv) & (e). If the claimant cannot perform past relevant work,
then at step five, the ALJ must determine if the claimant can perform other work in the national
economy. Bowen v. Yuckert, 482 U.S. 137, 142 (1987); Tackett, 180 F.3d at 1099; 20 C.F.R.
§ 404.1520(a)(4)(v) & (g).
The initial burden of establishing disability rests upon the claimant. Tackett, 180 F.3d at
1098. If the process reaches step five, the burden shifts to the Commissioner to show that jobs
exist in the national economy within the claimant’s RFC. Id. If the Commissioner meets this
burden, then the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v) & (g).
At step one, the ALJ concluded that Vaughn had not engaged in substantial gainful activity
since her alleged onset date of March 15, 2007, through her date last insured of December 31,
2011. Tr. 14.
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At step two, the ALJ determined that Vaughn has the severe impairments of interstitial
cystitis. Id. The ALJ also determined that Vaughn’s mental impairments of anxiety and
attention deficit hyperactivity disorder did not cause more than minimal limitations in Vaughn’s
ability to perform basic work activities and were therefore non-severe. Id.
At step three, the ALJ concluded that Vaughn does not have an impairment or combination
of impairments that meets or equals any of the listed impairments. Tr. 15. The ALJ found that
Vaughn retained the RFC to perform the full range of sedentary work. Tr. 16.
At step four, the ALJ determined that Vaughn had been unable to perform her onset date of
March 15, 2007, to her date last insured of December 31, 2001, because the demands of working as
a cosmetologist exceeded work at the sedentary level. Tr. 18.
At step five, the ALJ found that considering Vaughn’s age, education, and RFC, a finding
of not disabled is directed by Medical-Vocational Rule 201.25. Tr. 19.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. See 42 U.S.C. §
405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This 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. Ryan v. Comm’r of Soc. Sec.
Admin., 528 F.3d 1194, 1205 (9th Cir. 2008) (citing Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
2007)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Where the evidence
is susceptible to more than one rational interpretation, the Commissioner’s decision must be
upheld if it is “supported by inferences reasonably drawn from the record.’” Tommasetti v.
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Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1193 (9th Cir. 2004)); see also Lingenfelter, 504 F.3d at 1035.
Vaughn contends the ALJ erred by: (1) improperly finding her testimony less than fully
credible; and (3) failing to credit the opinion of Dr. Springer.
On November 5, 2002, the Commissioner issued SSR 02-2P, providing a framework for
evaluation of interstitial cystitis (“IC”). According to the Commissioner, “IC is a complex,
chronic bladder disorder characterized by urinary frequency, urinary urgency, and pelvic pain.”
SSR 02-2P, 2002 WL 32063799 (Nov. 5, 2002) (“Titles II and XVI: Evaluation of Interstitial
Cystitis”). Additionally, “response to treatment is variable, and some individuals may have
symptoms that are intractable to the current treatments available. Treatment may include bladder
distention; bladder instillation; oral drugs, . . . antidepressants, antihistamines, and narcotic
analgesics; and the use of transcutaneous electrical nerve stimulation. Id at *1.
I. Rejection of Claimant’s Testimony
A. Legal Standard
The Ninth Circuit has developed a two-step process for evaluating the claimant’s
testimony about the severity and limiting effect of his or her symptoms. Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented
objective medical evidence of an underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged.” Lingenfelter, 504 F.3d at 1036. When doing so,
the claimant “need not show that her impairment could reasonably be expected to cause the
severity of the symptom she has alleged; she need only show that it could reasonably have caused
some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
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Second, “if the claimant meets the first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala,12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991)(en banc)).
For the past year, a new SSR has governed assessment of a claimant’s subjective symptom
testimony. See SSR 16-3p, 2016 WL 1119029 (March 16, 2016). SSR 16-3p eliminates the
reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination of
an individual’s character,” and requires the ALJ to consider all of the evidence in an individual’s
record when evaluating the intensity and persistence of symptoms. Id. at *1–2. The ALJ is
directed to examine “the entire case record, including the objective medical evidence; an
individual’s statements about the intensity, persistence, and limiting effects of symptoms;
statements and other information provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.” Id. at *4. Considerations include: (1) the
claimant’s statements made to the Commissioner, medical providers, and others regarding the
claimant’s location, frequency, and duration of symptoms, the impact of the symptoms on daily
living activities, factors that precipitate and aggravate symptoms, medications and treatments
used, and other methods used to alleviate symptoms; (2) medical source opinions, statements, and
medical reports regarding the claimant’s history, treatment, responses to treatment, prior work
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record, efforts to work, daily activities, and other information concerning the intensity,
persistence, and limiting effects of an individual’s symptoms; and (3) non-medical source
statements, considering how consistent those statements are with the claimant’s statements about
his or her symptoms and other evidence in the file. Id. at *6–7.
The ALJ’s assessment of a claimant’s subjective symptoms may be upheld overall even if
not all of the ALJ’s reasons for rejecting the claimant’s testimony are upheld. See Batson, 359
F.3d at 1197. The ALJ may not, however, discount a claimant’s subjective testimony “solely
because” it “is not substantiated affirmatively by objective medical evidence.” Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citations omitted).
B. Vaughn’s Testimony
Vaughn testified that her symptoms progressively worsened, with her interstitial cystitis
“flares” becoming more frequent and debilitating between 2007 and 2011. In 2007, she had
“isolated flares” two or three times per week and still managed to keep her job. Tr. 31.
However, by 2011, she was experiencing 10–15 “bad days” per month, meaning she would have
the urge to urinate and a sense of urgency 15–20 times during the day. Tr. 32–33. On “good
days” she would have to urinate seven or eight times during the day. Tr. 32. When her bladder
was bothering her on “bad days,” she would have to take “all the medicines,” lie down, and put a
heating pad between her legs. Tr. 35. At that time, her prescribed medications included a
Duragesic patch (narcotic pain medication), Adderall (for ADHD), Xanax (anti-anxiety
medication), Fioricet (for migraines), a suprapubically applied Lidoderm patch (local anesthetic),
and pyridium (pain reliever affecting lower part of urinary tract). Tr. 36, 655. She was having
“significant pelvic floor issues” that were “contributing to [a] voiding disfunction,” prompting Dr.
Springer to add vaginal valium and Rapaflo to Vaughn’s medication list. Tr. 655. During the
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night, Vaughn would get up eight or ten times due to spasms. Id. The lack of unbroken sleep
made her irritable and unable to focus during the day. Tr. 35–36.
Approximately annually since the mid-1990’s, Vaughn has undergone cystoscopy, bladder
dilation, and bladder instillation procedures. See Tr. 226–27 (November 4, 2009) and 243–44
(November 15, 2010). On December 5, 2011, Vaughn underwent those same procedures, as well
as urethral dilation apparently necessitated due to the formation of scar tissue from these repeat
surgeries. Tr. 235–36. These procedures are performed in a hospital under general anesthesia,
require several weeks of recovery, and in most cases are accompanied by several weeks of
elevated bladder pain and increased voiding symptoms. Tr. 770.
Vaughn testified that it would take her four or five days to recover from the bladder dilation
procedures and about a month before she would notice any effects. Tr. 36-37. Her flares would
then reduce somewhat, but over the next eight months her flares would again increase until they
were constant and she would need a repeat procedure. Tr. 37-38. Vaughn described her “pain
cycle” involving her interstitial cystitis, anxiety, and migraines as “feeling terrible,” leading to
anxiety, being “all tense” because her bladder hurt so badly, causing her “whole body” to be tense,
leading to a migraine. Tr. 39.
C. ALJ’s Findings
The ALJ found Vaughn “partially credible.” Tr. 18. The ALJ gave two reasons for
discrediting Vaughn’s testimony. First, he alluded to a discrepancy between testimony by
Vaughn and a medical chart note, finding an inconsistency as to the reason Vaughn quit her job.
Tr. 18. However, Vaughn did not testify in the manner the ALJ claims, nor does the medical chart
note provide the causal link that the ALJ implies. The ALJ states that Vaughn “testified that in
2007, she had isolated flares of pain two to four times per week, but her condition deteriorated
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requiring her to quit her job.” Tr. 18. However, Vaughn did not testify about the reasons she
quit her job. Tr. 25–49. Instead, Vaughn testified that in 2007, she would have an “isolated
flare, maybe [a] couple times a week, three, four times a week.” Tr. 31. Moreover, Vaughn
indicated in her DIB application that she quit working due to her conditions. Tr. 137.
The ALJ also cites a March 16, 2007, emergency room record at which Vaughn sought
treatment for anxiety and insomnia. Vaughn described stress arising from relationships with her
current and ex-husband, and the doctor noted “[f]or the last week and a half she has been extremely
stressed out, crying constantly, she quit her job this morning.” Tr. 267. That note, however,
does not say anything about why Vaughn quit her job. The focus of the emergency room
treatment was on the psychological crisis Vaughn was then experiencing and says nearly nothing
about her longstanding struggles with interstitial cystitis. Vaughn’s statements do not conflict,
and therefore the purported conflict is not a clear and convincing reason to discredit her testimony
about her symptoms and the limitations imposed by her impairments.
The ALJ also found Vaughn’s testimony less than fully credible because “the objective
medical evidence in the record does not support the claimant’s allegations of extreme impairment
from March of 2007 through the date last insured in December of 2011.” Tr. 18. The record, as
summarized above, indicates considerable treatment, including five surgical procedures and twice
monthly monitoring of a fentanyl patch and opioids. The ALJ’s determination that Vaughn’s
testimony is not supported by the objective medical evidence is not supported by substantial
evidence. Moreover, the ALJ’s general statement does not meet the Ninth Circuit’s “specificity”
requirement, which mandates that “‘[g]eneral findings are insufficient; rather the ALJ must
identify what testimony is not credible and what evidence undermines the claimant’s complaints.’”
Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834
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(9th Cir. 1995)). This court “may not . . . comb the administrative record to find specific
conflicts.” Id. In sum, neither of the reasons proffered by the ALJ for discrediting Vaughn’s
testimony pass muster. Accordingly, this court rejects the Commissioner’s decision to discount
II. Treating Provider’s Opinion
A. Legal Standard
Acceptable medical sources are medical or osteopathic doctors, licensed or certified
psychologists, licensed optometrists, licensed podiatrists and qualified speech-language
pathologists. 20 C.F.R. § 404.1513. As a physician’s assistant, Dr. Springer is an “other” source
who may provide observations to help determine a claimant’s limitations. 20 C.F.R.
§ 404.1513(d); SSR 06-3p, 2006 WL 2329939 (August 9, 2006). “Other source” evidence, such
as that from a physician’s assistant, may be rejected by offering a reason that is “germane” to the
opinion. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
B. Dr. Springer’s Opinion
Dr. Springer, who treated Vaughn beginning November 10, 2010, authored two letters to
the Commissioner, one just prior to the hearing before the ALJ (Tr. 768–69) and one a month after
the ALJ’s decision (Tr. 770–71). In the first of those letters, Dr. Springer notes Vaughn’s 1999
diagnosis and recounts the constellation of symptoms associated with interstitial cystitis:
IC is a condition characterized by painful urination, extreme urinary
urgency, frequency, bladder and pelvic pain, and painful intercourse
among other symptoms. There is no known cure for IC and the
condition is progressive. The pain associated with IC has been
compared to that of cancer pain in the literature and quality of life
among patients with end stage IC has been compared to that of
kidney dialysis patients. The nature of the condition is to flare and
recede over time.
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Dr. Springer then recounted the severity of Vaughn’s IC, and opined on her likely work
absences as a result of her symptoms:
[Vaughn] already had longstanding, severe IC when she established
with our office. Although she had a treatment regimen in place that
provided her with some temporary symptom reduction from her
most severe pain, this does not change the fact that she does have
severe and persistent IC resulting in significant effects.
C. ALJ’s Findings
The ALJ purported to give Dr. Springer’s opinion “some weight,” but then observed that
“the observations of Dr. Springer include [Vaughn’s] condition both before and after her date last
insured, and it is unclear what Dr. Springer’s opinion regarding the claimant’s functionality was
during the time frame prior to her date last insured in 2011.” Tr. 17. These observations provide
no basis to discount Dr. Springer’s opinion.
First, a lengthy treatment record is not a reason to reject the opinions of a treatment
provider. To the contrary, among other considerations, the length of a treatment relationship
strengthens rather than weakens the import of a treating provider’s opinion:
Generally, the longer a treating source has treated you and the more
times you have been seen by a treating source, the more weight we
will give the source’s medical opinion. When the treating source
has seen you a number of times and long enough to have obtained a
longitudinal picture of your impairment, we will give the source’s
opinion more weight than we would give it if it were from a
20 C.F.R. § 404.1527(c)(2)(i).
Second, Dr. Springer’s opinion regarding Vaughn’s functionality prior to December 31,
2011, was not “unclear” in the least. Dr. Springer stated:
Page 17 – OPINION AND ORDER
In terms of disability, I feel confident that over any period of several
months she would certainly average more than two days per month
in which she would be absent from work. I would say this has been
the case since she was first seen in November 2010 and her
condition has further deteriorated since that time.
Tr. 769; see also Tr. 770.
The ALJ rejected Dr. Springer’s opinion as unsupported “by the urology records prior to
the date last insured, and the treatment notes penned by Dr. Hickerson, the claimant’s treating
physician (Exh. 8F; 9F; 10F).” Tr. 17. Those three exhibits span almost 500 pages of the 776
page administrative record. As Vaughn points out, the ALJ’s reference to almost 500 pages of
medical records is not specific. Moreover, as set out above and as detailed by Dr. Springer
following her review of the ALJ’s decision (Tr. 770–71), those records support Dr. Springer’s
In sum, this court concludes that the ALJ erred in rejecting Dr. Springer’s opinion about the
functional limitations imposed as a result of Vaughn’s interstitial cystitis prior to her date last
The ALJ provided inadequate reasons for rejecting Vaughn’s testimony about her
symptoms and subjective pain and for rejecting the opinion of Dr. Springer. As noted earlier, the
ALJ relied on Medical-Vocational Rule 201.25 to find Vaughn not disabled. Tr. 19. “At step five
a vocational expert’s testimony is required when a non-exertional limitation is ‘“sufficiently
severe” so as to significantly limit the range of work permitted by the claimant’s exertional
limitation.’” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (quoting Burkhart v. Bowen,
856 F.2d 1335, 1340 (9th Cir. 1988)).
Page 18 – OPINION AND ORDER
When fully credited, Vaughn’s testimony and Dr. Springer’s opinion indicate that, well
prior to Vaughn’s date last insured of December 31, 2011, her interstitial cystitis and other
impairments imposed nonexertional limitations significantly impairing her ability to perform the
full range of sedentary work. Although a VE attended the April 21, 2014 hearing, he did not
testify, leaving a gap in the record as to whether the limitations identified in Vaughn’s testimony
and Dr. Springer’s opinion would preclude competitive employment.
The Commissioner must consider the claimant’s ability to perform work on a regular and
continuing basis, which “means 8 hours a day, for 5 days a week, or an equivalent work schedule.”
SSR 96-8P, 1996 WL 374184 at *1. The “adjudicator must discuss the individual’s ability to
perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e.
8 hours a day, for 5 days a week, or an equivalent work schedule).” Id. at *7. In cases involving
transitory or intermittent, but substantially incapacitating, impairments, the “ultimate question . . .
is whether [claimant’s] sporadic incapacity prevents [the claimant] from performing any
substantial gainful activity within the meaning of the Social Security Act.” Totten v. Califano,
624 F.2d 10, 12 (4th Cir. 1980). Additionally, “the capability to work only a few hours per day
does not constitute the ability to engage in substantial gainful activity[.]” Rodriguez v. Bowen,
876 F.2d 759, 763 (9th Cir. 1989) (citing Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980)).
In her testimony, Vaughn described the cycle of annual bladder dilations and associated
procedures she has been undergoing since the mid-1990’s. Shortly after those surgeries, her
symptoms increase and, within about eight months, she is suffering from unremitting flaring. Tr.
37-38. Vaughn’s testimony about her history of “good days” and “bad days” is fully consistent
with Dr. Springer’s description of the progressive and “severe” nature of Vaughn’s IC, and her
ongoing baseline symptoms predating her date last insured. Tr. 768-69. This court is
Page 19 – OPINION AND ORDER
hard-pressed to conclude that, when properly credited, Vaughn’s testimony and Dr. Springer’s
opinion would result in anything other than a finding that Vaughn was disabled prior to her date
last insured. In a case involving a claimant with symptoms mirroring those endured by Vaughn, a
federal judge in Arizona so found. Szarka v. Colvin, 2016 WL 393641 (D. Ariz. Feb. 2, 2016).
However, the conclusion in Szarka was supported by the testimony of a VE to the effect that the
claimant’s need for bathroom breaks would preclude competitive employment. Id at *3. This
court is not at liberty to step into the shoes of the VE and—perhaps recognizing the limitations of
the court’s role—Vaughn does not seek remand for an award of benefits. This court concludes
that the record lacks the necessary supportive testimony from a VE and, therefore, concludes that
remand for further proceedings is the proper course of action.
This matter is remanded pursuant to sentence four, 42 U.S.C. 405(g) for further
proceedings in accordance with this Opinion and Order. On remand, the Commissioner shall:
(1) reassess Vaughn’s RFC, giving due consideration to her testimony, the opinions of Dr.
Springer, and the guidance of SSR 02-2P; and (2) as necessary, obtain VE testimony to make an
appropriate step five finding.
IT IS SO ORDERED.
Dated this 29th day of March, 2017.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge
Page 20 – OPINION AND ORDER
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