Lewis v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 1/19/2017 by Judge Anna J. Brown. (rrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LISA LEWIS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

NANCY J. MERSEROW
7540 S.W. 51st Avenue
Portland, OR 97219
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
GERALD J. HILL
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
1 - OPINION AND ORDER

3:15-CV-02307-BR
OPINION AND ORDER

BROWN, Judge.
Plaintiff Lisa Lewis seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act and Supplemental Security Income (SSI) under
Title XVI of the Social Security Act.

This Court has juris-

diction to review the Commissioner's final decision pursuant to
42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter.

ADMINISTRATIVE HISTORY
Plaintiff protectively filed her application for DIB and
application for SSI on November 23, 2011.

Tr. 21.1

Plaintiff

alleged a disability onset date of February 7, 2010.

Tr. 21.

Plaintiff’s applications were denied initially and on
reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on April 2, 2014.

Tr. 46-92.

Plaintiff; James Gentile,

a third-party witness; and a vocational expert (VE) testified.
Plaintiff was represented by an attorney at the hearing.

1

Citations to the official transcript of record filed by
the Commissioner on January 20, 2016, are referred to as "Tr."
2 - OPINION AND ORDER

On May 16, 2014, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 21-37.

On July 7, 2014, Plaintiff requested

review by the Appeals Council and submitted new evidence to the
Appeals Council, including medical records from March 31, 2014,
through August 5, 2014.

Tr. 312-15, 744-71.

On November 18,

2015, the Appeals Council denied Plaintiff’s request to review
the ALJ’s decision, and the ALJ’s decision became the final
decision of the Commissioner.

Tr. 1-6.

See Sims v. Apfel, 530

U.S. 103, 106-07 (2000).
On December 10, 2015, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on August 18, 1962.
was 52 years old at the time of the hearing.

Tr. 51.

Plaintiff

Plaintiff has a

two-year degree in early-childhood education and a bachelor’s
degree in human development.

Tr. 28.

The ALJ found Plaintiff

has past relevant work experience as “a child welfare/family case
worker, social services worker, interviewer/eligibility worker,
and community college teacher/parent trainer/teacher for home
therapy.”

Tr. 35.

Plaintiff alleges disability due to fibromyalgia, migraine
headaches, aneurysm, general anxiety disorder, and personality

3 - OPINION AND ORDER

disorder with borderline and histrionic traits.

Tr. 23, 98.

Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 23-26.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate her

inability “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.”
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district 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 as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).
4 - OPINION AND ORDER

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.

Id. (citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-

sioner determines the claimant is engaged in substantial
5 - OPINION AND ORDER

gainful activity (SGA).
416.920(a)(4)(I).

20 C.F.R. §§ 404.1520(a)(4)(I),

See also Keyser v. Comm’r of Soc. Sec., 648

F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii), 416.920(a)(4)(ii).

20 C.F.R. §§ 404.1509,

See also Keyser, 648 F.3d

at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

20 C.F.R.

See also Social Security Ruling

“A ‘regular and continuing basis’ means 8 hours a

day, for 5 days a week, or an equivalent schedule.”

6 - OPINION AND ORDER

SSR 96-8p,

at *1.

In other words, the Social Security Act does not require

complete incapacity to be disabled.

Taylor v. Comm’r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).

20 C.F.R. §§ 404.1520(a)(4)(iv),

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

See also Keyser, 648 F.3d at 724-25.

Here the

burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).

The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

If the Commissioner meets this burden,

the claimant is not disabled.

20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
7 - OPINION AND ORDER

substantial gainful activity since her February 7, 2010, alleged
onset date.

Tr. 23.

At Step Two the ALJ found Plaintiff has the severe
impairments of fibromyalgia, migraine headaches, aneurysm,
general anxiety disorder, and personality disorder with
borderline and histrionic traits.

Tr. 23.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 26.

The ALJ found Plaintiff has the RFC to

perform light work; cannot climb ladders, ropes, or scaffolds;
can occasionally climb ramps and stairs; can occasionally
balance, stoop, kneel, crouch, or crawl; must avoid concentrated
exposures to hazards; is limited to the performance of simple,
routine, repetitive tasks consistent with unskilled work; cannot
have contact with the public; can have superficial contact with
coworkers; is limited to low-stress work, which is defined as
requiring few decisions and few changes; and can work at a
standard or ordinary pace but cannot work at a strict
“production-rate” pace.

Tr. 28.

At Step Four the ALJ concluded Plaintiff is incapable of
performing her past relevant work.

Tr. 35.

At Step Five the ALJ found Plaintiff could perform other
jobs that exist in the national economy.

8 - OPINION AND ORDER

Tr. 35-36.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION
Plaintiff contends (1) the ALJ erred when he improperly
rejected the opinions of examining and treating physicians,
(2) the ALJ erred when he failed to properly evaluate Plaintiff’s
fibromyalgia, (3) the Appeals Council erred when it failed to
remand this matter for the ALJ’s consideration of new evidence,
(4) the ALJ failed to evaluate properly Plaintiff’s RFC at Step
Three, (5) the ALJ improperly rejected Plaintiff’s subjective
symptom testimony, and (6) the ALJ improperly relied on the VE’s
testimony.
I.

The ALJ erred in part in his evaluation of the medical
opinion evidence.
Plaintiff contends the ALJ erred when he failed to properly

evaluate the opinions of Jane Starbird, Ph.D.; Neal Musselman,
D.O.; and Suzanne Castro, Psy.D., and “de facto” rejected their
opinions without providing legally sufficient reasons supported
by substantial evidence in the record for doing so.
A.

Standards.
The opinion of a treating physician is generally

accorded greater weight than the opinion of an examining
physician, and the opinion of an examining physician is accorded
greater weight than the opinion of a reviewing physician.

9 - OPINION AND ORDER

Ghanim

v. Colvin, 763

F.3d 1154, 1160 (9th Cir. 2014).

To reject an

uncontradicted opinion of a treating physician, the ALJ must
provide “clear and convincing reasons that are supported by
substantial evidence.”
(9th Cir. 2005).

Bayliss v. Barnhart, 427 F.3d 1211, 1216

Sufficient reasons for rejecting an examining

physician's opinion may include the physician’s reliance on a
claimant's discredited subjective complaints, inconsistency with
the medical records, inconsistency with a claimant's testimony,
and inconsistency with a claimant's daily activities.

Tommasetti

v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
Medical sources are divided into two categories:
"acceptable" and "not acceptable."

20 C.F.R. § 416.902.

Acceptable medical sources include licensed physicians and
psychologists.

20 C.F.R. § 416.902.

Medical sources classified

as "not acceptable" include, but are not limited to, nurse
practitioners, therapists, licensed clinical social workers, and
chiropractors.

SSR 06-03p, at *2.

Factors the ALJ should

consider when determining the weight to give an opinion from
those "important" sources include the length of time the source
has known the claimant and the number of times and frequency that
the source has seen the claimant, the consistency of the source's
opinion with other evidence in the record, the relevance of the
source's opinion, the quality of the source's explanation of his
opinion, and the source's training and expertise.

10 - OPINION AND ORDER

SSR 06-03p, at

*4.

On the basis of the particular facts and the above factors,

the ALJ may assign a “not acceptable” medical source opinion
either greater or lesser weight than that of an acceptable
medical source.

SSR 06-03p, at *5-6.

The ALJ, however, must

explain the weight assigned to such sources to allow the claimant
or subsequent reviewer to follow the ALJ's reasoning.

SSR 06-

03p, at *6.
B.

Dr. Starbird.
Plaintiff contends the ALJ failed to give clear and

convincing reasons supported by substantial medical evidence in
the record for “de facto” rejecting the opinion of Dr. Starbird,
an examining psychologist, that Plaintiff is moderately limited
in her ability to interact with supervisors.
On December 23, 2013, Dr. Starbird examined Plaintiff
at the request of the Commissioner.

Tr. 590-98.

On January 6,

2014, Dr. Starbird completed a Medical Source Statement of
Ability to do Work-Related Activities (Mental) on which she
checked the box that indicated Plaintiff was “moderately” limited
in her ability to work with co-workers and supervisors.
98.

Dr. Starbird stated:

confusion or stress.

Tr. 596-

“[Plaintiff] has poor tolerance to

Her intellectual function is normal but her

tolerance for interactions with other people is limited.
based on characterological features.”

This is

Tr. 597.

The ALJ gave “significant weight” to Dr. Starbird’s

11 - OPINION AND ORDER

opinions “because they are consistent with the objective medical
evidence.”

Tr. 31.

The ALJ subsequently determined Plaintiff

had the RFC to perform light work subject to the limitation that
she have “superficial contact with co-workers.”

Tr. 28.

The ALJ

specifically noted Dr. Starbird’s Medical Source Statement “is
consistent with moderate limitations in social functioning.”
Tr. 27.
In Rounds v. Commissioner of Social Security
Administration the court found the ALJ did not reject a
physician’s opinion that the plaintiff had moderate limitations
in her ability to accept instructions and to respond
appropriately to criticism when the physician’s opinion was part
of a checkbox form in the physician’s summary report and the ALJ
specifically referred to it in evaluating the plaintiff’s RFC.
807 F.3d 996, 1005 (9th Cir. 2015).

See also Smith v. Colvin,

No. 3:15-cv-00267-MC, 2016 WL 1065816, at *3 (D. Or. March 15,
2016)(“Moreover, an ALJ’s RFC findings are not required to
address a physician’s checked-box opinion regarding a moderate
limitation, where the ALJ notes this opinion and gives it great
weight as a whole.”)(citing Rounds, 807 F.3d at 1005)).
When an ALJ’s findings are consistent with but not
identical to a physician's assessed limitations of the claimant,
those findings do not constitute a rejection of the physician’s
opinion.

Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217,

12 - OPINION AND ORDER

1222-23 (9th Cir. 2010).

See also Thomas v. Colvin, No.

3:14-cv-00667-CL, 2015 WL 4603376, at *5 (D. Or. July 29, 2015).
In other words, when the ALJ evaluates a claimant's RFC, his
findings must merely be consistent with the physician’s
conclusions rather than a carbon copy of the physician’s opinion.
Smith, 2016 WL 1065816, at *3.

Otherwise the ALJ is required to

provide legally sufficient reasons for rejecting part of the
physician's opinion.
Here, as noted, the ALJ did not reject Dr. Starbird’s
opinion.

In fact, the ALJ generally agreed with Dr. Starbird

regarding Plaintiff's inability to interact in the workplace with
co-workers and supervisors.

Tr. 27.

Although the ALJ did not

expressly incorporate a supervisory limitation in his evaluation
of Plaintiff’s RFC, the ALJ’s opinion, nonetheless, is consistent
with Dr. Starbird’s opinion that Plaintiff is still able to
“function satisfactorily” in the workplace with limited
interaction with other employees, including supervisors.
Tr. 596.
On this record the Court concludes the ALJ did not
reject Dr. Starbird’s opinion because the limitations included
in the ALJ’s evaluation of Plaintiff’s RFC were consistent with
Dr. Starbird’s opinion.
C.

Dr. Musselman.
Plaintiff next contends the ALJ erred when he failed to

13 - OPINION AND ORDER

address the opinion of Neal Musselman, D.O., Plaintiff’s treating
psychiatrist, that Plaintiff is disabled as a result of her
combined anxiety disorders.
On January 9, 2012, Dr. Musselman submitted a form to
the New Mexico Department of Human Services indicating Plaintiff
had been unable to work for the previous six months due to
post-traumatic stress (PTSD) and chronic anxiety symptoms.
Dr. Musselman stated the duration of Plaintiff’s inability to
work was “not known” at that time.

Tr. 227.

Plaintiff contends Dr. Musselman’s report was
consistent with the June 9, 2010, report of David Durham, M.D.,
an examining physician, in which Dr. Durham noted “evidence to
indicate a chronic psychiatric illness that may be rendering
[Plaintiff] disabled.”

Tr. 348.

Although the Commissioner concedes the ALJ did not
specifically address Dr. Musselman’s report, the Commissioner
contends the ALJ did not err because Dr. Musselman’s opinion does
not satisfy the 12-month duration requirement to establish a
disability, the ALJ credited more reliable medical evidence that
covered the entire period of Plaintiff’s alleged disability
beginning in February 2010, and Plaintiff has not been prejudiced
by the ALJ’s failure to consider specifically Dr. Musselman’s
opinion.
1.

Standards

14 - OPINION AND ORDER

For a claimant to be “disabled” for purposes of
receiving benefits, the claimant’s inability to engage in
substantial gainful employment must last or be expected to last
at least 12 months.

Barnhart v. Wilson, 535 U.S. 212 (2012).

The ultimate determination of “disability” is reserved
to the Commissioner.

20 C.F.R. § 404.1527(d)(1), (3).

A

physician may render opinions limited to the issue of the
claimant’s ability to perform work.
995, 1012 (9th Cir. 2012).

Garrison v. Colvin, 759 F.3d

Although “[t]he administrative law

judge is not bound by the uncontroverted opinions of the
claimant’s physicians on the ultimate issue of disability . . .,
he cannot reject [those opinions] without presenting clear and
convincing reasons for doing so.”

Reddick v. Chater, 157 F.3d

715, 725 (9th Cir. 1998).
2.

Dr. Musselman’s opinion.

Dr. Musselman, Plaintiff’s treating physician,
concluded Plaintiff was temporarily unable to work.
Dr. Musselman opined as of February 2012 Plaintiff suffered from
PTSD and other chronic anxiety symptoms that prevented her from
working for the previous six months, and she was “not able to
pursue competent employment” for an unknown duration.

Tr. 227.

The ALJ failed to address Dr. Musselman’s opinion.
As noted, if the ALJ disregards a treating physician’s
medical opinion, the ALJ must set forth specific and legitimate

15 - OPINION AND ORDER

reasons that are supported by substantial evidence in the record
for doing so even if that opinion is controverted.
F.3d at 1012.

Garrison, 759

Although the ALJ failed to address

Dr. Musselman’s report, the Commissioner, nevertheless, maintains
the ALJ’s failure is harmless error on the grounds that Plaintiff
has not shown any prejudice and that Dr. Musselman’s report is
not entitled to any special significance.
In Hill v. Astrue the Commissioner, as in this case,
conceded the ALJ did not address the treating physician’s
opinion.

The Hill court noted the conclusion of the plaintiff’s

treating physician that the plaintiff’s “combination of mental
and medical problems makes the likelihood of sustained full time
competitive employment unlikely.”
2102).

698 F.3d 1153, 1160 (9th Cir.

The Commissioner asserted such a disability opinion was

an issue reserved to the Commissioner and, therefore, not
binding.

See 20 C.F.R. § 404.1527(d)(1).

The court stated the

treating physician’s statement that the plaintiff would be
“unlikely” to work full-time was not a conclusory statement that
the plaintiff was disabled as described in the regulation, but
instead was an assessment based on objective medical evidence of
the plaintiff’s likelihood of being able to sustain full-time
employment.

Thus, the court concluded the ALJ’s disregard for

the treating physician’s medical opinion was not harmless error.
Id. at 1160.

16 - OPINION AND ORDER

Here the ALJ relied on and gave greater weight to the
opinions of Drs. Starbird, Castro, and Anderson, who were all
examining psychiatrists or psychologists.

Thus, the ALJ was

required to provide specific and legitimate reasons for
disregarding the opinion of Dr. Musselman, Plaintiff’s treating
physician, and for giving greater weight to the opinions of the
examining psychiatrists and psychologists.

As noted, however,

the ALJ failed to even address Dr. Musselman’s opinion.
Following the reasoning of the Hill court, this Court concludes
the ALJ’s disregard for Dr. Musselman’s opinion is not harmless
error.
Accordingly, on this record the Court concludes the ALJ
erred when he did not address Dr. Musselman’s opinion and did not
provide specific legitimate reasons supported by substantial
evidence in the record for his “de facto” rejection of Dr.
Musselman’s opinion.
D.

Dr. Castro.
Plaintiff contends the ALJ erred when he “de facto”

rejected the opinion of Dr. Castro that Plaintiff was limited to
employment that did not require more than “intermittent
interaction with others.”
On March 20, 2012, Dr. Castro, an examining
psychologist, completed a Mental Residual Functional Capacity
Assessment in which she indicated “[Plaintiff] is capable of

17 - OPINION AND ORDER

understanding, remembering, and following simple, routine tasks
in a setting where interaction with others is superficial and
intermittent.”

Tr. 421.

Although the ALJ included in his

evaluation of Plaintiff’s RFC the limitation that Plaintiff “have
superficial contact with coworkers,” Tr. 28, Plaintiff contends
the ALJ’s failure to include the requirement that Plaintiff’s
interaction with others also must be “intermittent” as well as
superficial constitutes a “de facto” rejection of Dr. Castro’s
opinion.

In addition, Plaintiff asserts the ALJ’s error resulted

in the ALJ posing an inadequate hypothetical to the VE at Step
Five.
As noted, the ALJ’s assessment of Plaintiff’s RFC must
merely be consistent with the medical evidence rather than a
carbon copy.

See Smith, 2016 WL 1065816, at *3.

Turner, 613 F.3d at 1222-23.

See also

Here Dr. Castro included the term

“intermittent” in her narrative description of Plaintiff’s
limitations.

In the “social interaction” portion of her report,

however, she indicated Plaintiff’s ability to “interact with the
general public” was “moderately limited” and her ability to “get
along with coworkers or peers without distracting them or
exhibiting behavioral extremes” was “not significantly limited.”
Tr. 420.

In his assessment of Plaintiff’s RFC the ALJ included a

“no contact” limitation with the public and “superficial” contact
with coworkers.

Tr. 28.

18 - OPINION AND ORDER

Thus, the ALJ’s assessment of

Plaintiff’s RFC adequately reflected the limitations stated in
Dr. Castro’s report.
On this record the Court concludes the ALJ did not err in
his consideration of Dr. Castro’s opinion when he evaluated
Plaintiff’s RFC nor did the ALJ omit from his hypothetical posed
to the VE the conclusions of Dr. Castro as to Plaintiff’s
limitations.
II.

The ALJ did not fail to consider Plaintiff’s fibromyalgia.
Plaintiff contends the ALJ erred when he failed to account

for the repeated manifestations of Plaintiff’s fibromyalgia when
evaluating Plaintiff’s RFC.
The Commissioner, in turn, asserts the ALJ noted Plaintiff
had fibromyalgia and, accordingly, included in his assessment of
Plaintiff’s RFC a limitation to light-exertion work in
consideration of Plaintiff’s condition.
On December 6, 2012, Sharon B. Eder, M.D., a state agency
consultant, reviewed Plaintiff’s records and assessed Plaintiff
with “light exertional limitations” based on Plaintiff’s
fibromyalgia.

Tr. 31, 575.

The ALJ gave “great weight” to

Dr. Eder’s assessment and found it to be consistent with the
medical records.
On December 23, 2012, Kim Webster, M.D., an examining
physician, found “no objective evidence” that Plaintiff had any
work-related limitations.

19 - OPINION AND ORDER

Tr. 31, 577-83.

Nevertheless, the ALJ

gave “little weight” to Dr. Webster’s opinion because “some
limits are necessary to prevent exacerbation of the [Plaintiff’s]
headaches and in recognition of her diffuse fibromyalgia.”
Tr. 31.
The ALJ concluded Plaintiff’s fibromyalgia is a “severe”
impairment diagnosed by “an “acceptable medical source, . . .
lasted for a continuous period of 12 months, and . . . caused
more than a minimal effect” on Plaintiff’s ability to perform
work-related activities.
RFC, the ALJ noted:

Tr. 23-24.

When evaluating Plaintiff’s

“Treatment records indicate [Plaintiff] has

diffuse pain and a fibromyalgia diagnosis, but this appears to be
less limiting than her headaches and anxiety.”

Tr. 29.

The ALJ concluded Plaintiff’s allegations that “she suffers
from dizziness, buzzing in her ears, fatigue, and heart
palpitations,” Tr. 25, did not meet the definitional requirements
of 20 C.F.R. § 416.905 to qualify as disabilities.

Nevertheless,

Plaintiff contends these conditions constitute “somatic symptoms”
of fibromyalgia that should have been considered by the ALJ.
Although the ALJ concluded there was not any “evidence from
an acceptable medical source to establish the existence of a
medically determinable impairment” as to these specific symptoms,
the ALJ, nonetheless, found Plaintiff has the severe impairment
of fibromyalgia and included limitations in his assessment of
Plaintiff’s RFC “in recognition of [Plaintiff’s] diffuse

20 - OPINION AND ORDER

fibromylagia pain.”

Tr. 31, 32.

On this record the Court concludes the ALJ properly assessed
Plaintiff’s fibromyalgia and included the appropriate limitations
in his evaluation of Plaintiff’s RFC.
III. Appeals Council.
Plaintiff contends the Appeals Council erred when it failed
to remand this case to the ALJ for consideration of the new
evidence submitted by Plaintiff to the Appeals Council after the
ALJ’s decision.
Plaintiff timely provided the Appeals Council with
additional evidence that included a questionnaire completed2 on
August 2, 2014, by Leslie Gellert, a licensed clinical social
worker (LCSW), who was Plaintiff’s mental-health provider since
November 2013.

Tr. 763-769.

The Appeals Council reviewed

LCSW Gellert's opinion but declined to review the ALJ’s decision
on the ground that the additional evidence “does not provide a
basis for changing the Administrative Law Judge’s decision.”
Tr. 2.
Plaintiff argues the new evidence demonstrates Plaintiff is
markedly limited in her ability to accept instructions and to

2

The questionnaire was sent by Plaintiff’s counsel to
LCSW Gellert on February 18, 2014, and Plaintiff requested
completion of the form prior to the scheduled hearing in April
2014. Gellert went into labor in March 2014 and, therefore, was
unable to complete the questionnaire until August 2, 2014, when
she returned from maternity leave. Tr. 770-71.
21 - OPINION AND ORDER

respond appropriately to criticism from supervisors, and,
therefore, she is more restricted than the ALJ’s finding of
“moderate” social function limitations that did not limit
Plaintiff’s interactions with supervisors.
The Commissioner contends the opinions in the record by
Drs. Starbird, Castro, and Anderson, examining psychiatrists or
psychologists, constitute substantial medical evidence sufficient
to support the RFC determined by the ALJ.
When a claimant “submits evidence for the first time to the
Appeals Council and the Appeals Council considers that evidence
in denying review of the ALJ’s decision, the new evidence is part
of the administrative record, which the district court must
consider in determining whether the Commissioner’s decision is
supported by substantial evidence.”

Brewes v. Comm’r. of Soc.

Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012).

New

evidence is material if it bears “directly and substantially on
the matter in dispute.”
Cir. 2010).

Luna v. Astrue, 623 F.3d 1378, 1380 (9th

Remand is necessary when the material evidence gives

rise to a “reasonable possibility” that the new evidence might
change the outcome of the administrative hearing.”

Booz v. Sec'y

of Health & Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1984).
See also Borrelli v. Comm’r. of Soc. Security, 570 F. App’x 651,
652 (9th Cir. 2014).

The Court, therefore, considers

LCSW Gellert’s opinion.

22 - OPINION AND ORDER

See Brewes, 682 F.3d at 1159-60, 1162-

63.
The ALJ concluded Plaintiff had “moderate” difficulties with
regard to concentration, persistence, or pace.

Tr. 27.

The

ALJ’s determination was based on Dr. Starbird’s opinion that
Plaintiff could not carry out complex instructions and lacked an
ability to make judgments on complex work-related decisions and
that Plaintiff’s concentration would be impaired under stress.
Tr. 27, 596-98.
LCSW Gellert reported Plaintiff has “marked” limitation as
to concentration, persistence, or pace because “physical and
mental health symptoms significantly impact her pace and
completion of tasks due to trouble concentrating.”

Tr. 764.

Thus, LCSW Gellert’s opinion is consistent with Dr. Starbird’s
assessment of Plaintiff.
Accordingly, the Court concludes the Appeals Council
properly declined to remand this matter to the ALJ on the basis
of LCSW Gellert’s report submitted after the ALJ’s decision.
IV.

The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff alleges the ALJ erred when he found Plaintiff’s

testimony was not entirely credible.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment and must show the impairment or combination of
23 - OPINION AND ORDER

impairments could reasonably be expected to produce some degree
of symptom.

Cotton, 799 F.2d 1403, 1407 (9th Cir. 1986).

The

claimant, however, need not produce objective medical evidence of
the actual symptoms or their severity.

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's testimony only if he provides clear and convincing
reasons for doing so.

Parra v. Astrue, 481 F.3d 742, 750 (9th

Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
1995)).

General assertions that the claimant's testimony is not

credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

Id. (quoting Lester, 81 F.3d at 834).

The ALJ concluded “[a]lthough some limitations are to be
expected, the record contradicts [Plaintiff’s] testimony with
regard to their nature and extent.”

Tr. 32.

The ALJ, however,

did “not reject[] [Plaintiff’s] statements about the intensity
and persistence of symptoms solely because the available
objective medical evidence does not substantiate the statements.”
Tr. 32.

Instead the ALJ considered “any medically determinable

impairment resulting in symptom-related functional limitations
. . . which [could] reasonably be accepted as consistent with the
objective medical evidence and other evidence.”

Tr. 32.

The ALJ

cited Plaintiff’s medical records when he determined the evidence
24 - OPINION AND ORDER

did not support Plaintiff’s allegations.

Tr. 33-34.

For

example, although Plaintiff reported limitations in her daily
activities, she told Dr. Starbird in December 2013 that she did
laundry, washed dishes, vacuumed, read, and watched movies.
Tr. 592.

Plaintiff also participated in activities at her

synagogue and joined the choir for a brief time.

Tr. 687.

Plaintiff noted her anxiety began as a child, and she experienced
symptoms, including headaches, “off and on.”

Tr. 702.

Her

mental status in 2012 was “relative[ly] stable” with counseling
treatment.

Tr. 533-37.

On this record the Court finds the ALJ did not err when he
found Plaintiff was not fully credible because the ALJ provided
clear and convincing reasons supported by substantial evidence in
the record for doing so.

REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for the calculation of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.

Id. at 1179.

The court may

"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."
25 - OPINION AND ORDER

Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

The court should grant an immediate award

of benefits when
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits if

the case were remanded for further proceedings.

Id. at 1178 n.2.

Here the ALJ specifically stated in his findings that “[t]he
record does not contain any opinion from a treating or examining
physician indicating that [Plaintiff] is disabled.”

Tr. 32.

The

ALJ, however, did not address the opinion of Dr. Musselman,
Plaintiff’s treating psychiatrist, that Plaintiff was not able to
pursue employment, and the ALJ failed to provide specific and
legitimate reasons for disregarding Dr. Musselman’s opinion in
favor of the opinions of examining psychiatrists and
psychologists.
The Court concludes on this record that a remand for further
proceedings consistent with this Opinion and Order is required to
permit the ALJ to consider and to address Dr. Musselman’s opinion
26 - OPINION AND ORDER

and, in light of Dr. Musselman's opinion, to reassess Plaintiff’s
RFC and the hypothetical posed to the VE if necessary.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 19th day of January, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

27 - OPINION AND ORDER