Gonzales v. Commissioner Social Security Administration

Filing 34

OPINION & ORDER: The Commissioner's final decision denying Gonzales' application for disability insurance benefits and supplemental security income is Reversed and Remanded for the immediate payment of benefits. Signed on 6/5/17 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KATIE GONZALES,
Plaintiff,
3: 16-CV-00432-PK

OPINION AND
ORDER

v.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff Katie Gonzales ("Gonzales") filed this action June 25, 2009, seeking judicial
review of the Commissioner of Social Security's final decision denying her application for
disability insurance benefits ("DIB") and Supplemental Security Income ("SS!") under Titles II

Page I - OPINION AND ORDER

and XVI of the Social Security Act (the "Act"). This comi has jurisdiction over Gonzales' action
pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). I have considered all of the parties' briefs and all
of the evidence in the administrative record. For the reasons set forth below, the Commissioner's
final decision should be REVERSED and REMANDED for the immediate payment of benefits.
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step
sequential process for determining whether a claimant has made the requisite demonstration. See

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only
at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v.

Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work
activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the
claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§
404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will
proceed to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impairments.

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
Page 2 - OPINION AND ORDER

impairment is "severe" ifit significantly limits the claimant's ability to perform basic work
activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S.
at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work
activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§
404.1521(b), 416.921(b) 1; see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's
impairments are not severe or do not meet the duration requirement, the claimant will be found
not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c),
416.920(a)(4)(ii), 416.920(c). Neve1theless, it is well established that "the step-two inquiry is a
de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273,
1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impairment or combination of
impairments can be found 'not severe' only ifthe evidence establishes a slight abnormality that
has 'no more than a minimal effect on an individual[']s ability to work."' Id., quoting S.S.R. 8528, 1985 SSR LEXIS 19 (1985).

If the claimant's impairments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impairments meet or equal "one of a number
oflisted impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one
of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will
conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§

1

Effective March 27, 2017, updates were made to the regulations. The C.F.R. sections
referenced here have been renumbered and the citations listed here are the versions of the C.F.R.
that were in effect at the time Gonzales requested judicial review.
Page 3 - OPINION AND ORDER

404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d).

If the claimant's impairments are not equivalent to one of the enumerated impairments,
between the third and the fourth steps the ALJ is required to assess the claimant's residual
functional capacity ("RFC"), based on all the relevant medical and other evidence in the
claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of
the claimant's capacity to perform sustained, work-related physical and/or mental activities on a
regular and continuing basis, 2 despite the limitations imposed by the claimant's impairments.

See 20 C.F.R. §§ 404.1545(a), 416.945(a); see also S.S.R. No. 96-8p, 1996 SSRLEXIS 5 (July
2, 1996).
At the foutih step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that
the claimant can still perform his or her past relevant work, the claimant will be found not
disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or
her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden
of proof shifts, for the first time, to the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to determine whether a person with those
characteristics and RFC could perfotm any jobs that exist in significant numbers in the national

2

"A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an
equivalent work schedule." S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).
Page 4 - OPINION AND ORDER

economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner
meets her burden to demonstrate the existence in significant numbers in the national economy of
jobs capable of being performed by a person with the RFC assessed by the ALJ between the third
and fomih steps of the five-step process, the claimant is found not to be disabled. See Bowen,
482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566,
416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits
ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see

also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

LEGAL STANDARD
A reviewing court must affirm an Administrative Law Judge's decision ifthe ALJ applied
proper legal standards and his or her findings are supp01ied by substantial evidence in the record.

See 42 U.S.C. § 405(g); see also Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193
(9th Cir. 2004). "'Substantial evidence' means more than a mere scintilla, but less than a
preponderance; it is such relevant evidence as a reasonable person might accept as adequate to
suppoti a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The court must review the record as a whole, "weighing both the evidence that supp01is
and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddick v.

Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The comi may not substitute its judgment for that of
the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253
F.3d 1152, 1156 (9th Cir. 2001). Moreover, the comi may not rely upon its own independent

Page 5 - OPINION AND ORDER

findings of fact in determining whether the ALJ' s findings are supported by substantial evidence
ofrecord. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chene1y
Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is
immaterial that the evidence may be "susceptible [of] more than one rational interpretation."
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d
1450, 1453 (9th Cir. 1984).
SUMMARY OF ADMINISTRATIVE RECORD'

Gonzales was born on February 18, 1982. Tr. 41, 169, 176.4 On June 25, 2009, Gonzales
filed applications for DIB and SSI benefits based on bipolar disorder, depression, migraines, and
asthma. Tr. 169-79, 199. Both applications alleged a disability onset date of October 30, 2008.
Tr. 169, 176. Both claims were denied initially on November 19, 2009, and upon reconsideration
on April 13, 2010. Tr. 91, 96. Gonzales is a high school graduate, and has completed some
college credits. Tr. 45-46, 206. She worked as a waitress, cab dispatcher, telemarketer, and
customer service representative. Tr. 50-53, 77-78, 200.
On May 26, 2011, Gonzales appeared and testified before ALJ Rudy Murgo, and on
August 17, 2011, the ALJ issued a decision finding Gonzales was not disabled at any time from
October 30, 2008 through the date of the decision. Tr. 30. Gonzales appealed her decision to the
United States District Court, which reversed the ALJ's decision on July 18, 2014, and remanded
the case for further administrative proceedings. Tr. 1496-1512. In the interim, Gonzales filed a

3

The following recitation constitutes a summa1y of the evidence contained within the
Administrative Record, and does not reflect any independent finding of fact by the comi.
4

Citations to "Tr." refer to the page(s) indicated in the official transcript of the
Administrative Record filed herein as docket no. 15, 16, 17, and 18.
Page 6 - OPINION AND ORDER

subsequent claim for SSI on June 5, 2013, and the State Agency determined she was disabled as
of that date. Tr. 1489.
On December 17, 2015, a second ALJ hearing was held before ALJ Murga. Tr. 1369-88.
On January 6, 2016, the ALJ issued his decision finding Gonzales has not been disabled from
October 30, 2008 tluough the date of the decision. Tr. 1404. Gonzales timely appealed the
ALJ' s decision.

I.

The Medical and Administrative Record
The medical and administrative record is extensive and the parties are familiar with it.

Accordingly, it will be set out below only as relevant.

II.

The Hearing Testimony - May 26, 2011
On May 26, 2011, Gonzales appeared for a hearing conducted before an ALJ in

connection with her DIB and SSI applications. Tr. 37-86. Gonzales, her father, her counsel, and
a VE were present and testified. Id. Gonzales testified that she cared for her two children, an
eleven year old son, and a six year old daughter and had completed high school and some
college, but did not have a college degree. Tr. 43, 45. She described her past employment as a
taxi cab dispatcher, waitress, telemarketer, and customer service representative. Tr. 50-53. She
explained she could not maintain employment because she cannot stay focused and is pain,
noting that she gets "out of whack" because of her medical conditions, which she described as
pseudotumor cerebri, significant headaches, and vision problems. Tr. 53, 55, 60. Gonzales
described her daily activities include caring for her children, doing laund1y, and cooking, but that
she relies on her parents for reminders to complete tasks and to help if her headaches become
debilitating. Tr. 65-69, 71.

Page 7 - OPINION AND ORDER

Mr. Daniel Raymond Gonzales ("Mr. Gonzales") testified on behalf of his daughter. Tr.
73-75. He explained that she does not "get it" when supervisors try to explain rules and policies
to her. Tr. 75.
Next, the ALJ questioned VE Hanoch Livneh. Tr. 78. The ALJ asked the VE to consider
an individual of the claimant's
age, education, and work experience who has the following RFC: no limits
on lifting, walking, standing, sitting; no postural limits, no manipulative
limitations, no visual limits but must avoid concentrated exposure to
noise, concentrated exposure to fumes, [odors], due, gases, and poor
ventilation, and must expose [sic] concentrated exposure to hazards and
heights. Could such a hypothetical perform any of the claimant's past
work? Tr. 78.
Based on this RFC, the VE testified that a hypothetical person could perform all of claimant's
past relevant work. Id.
Next, the ALJ asked the VE to consider an individual with the added limitations that they
can remember and cany out simple one or two step instructions, but would
have difficulty or may have difficulty remembering and canying out
complex three plus step instructions; may have difficulty concentrating for
extended periods of time; but with normal work breaks is able to sustain a
normal work day, work week; occaional public contact and occasional coworker contact. Tr. 79.
For this hypothetical, the VE testified that a person with this RFC could not perform any of
Gonzales' patt relevant work, but other jobs existed in the national economy that could be
performed, which included photocopying machine operator, assembler of small products, and
produce sorter. Tr. 79-80.
Next, the ALJ asked the VE to consider an individual with the same RFC, but who has no
vision in the right eye. Tr. 81. The VE testified that this would reduce the number of jobs

Page 8 - OPINION AND ORDER

available, but that there are "really no restrictions in the DOT." Tr. 81. Then, the ALJ asked if a
person who is absent two or more days a month was employable in the national economy, to
which the VE testified that they could not maintain employment. Tr. 82. Finally, the ALJ asked
the VE whether an individual who was unavailable to work or off task "10 percent or more of the
time in a work day, work week, work month, over time" was employable. Tr. 82. The VE
testified that he did not think an employer would tolerate that. Tr. 82. Based on this testimony,
the ALJ concluded that Gonzales was capable of performing work in the national economy, and
was therefore not disabled. Tr. 30.

III.

The Hearing Testimony- December 17, 2015
On December 17, 2015, a second hearing was conducted before ALJ Murgo in

connection with Gonzales' DIB and SSI application. Tr. 1369-1388. Gonzales, her counsel, a
VE, and a medical expe1i ("ME") were present and testified. Tr. 1369. Dr. Quincy Gordy ("Dr.
Gordy"), the medical expe1i testified that Gonzales had "diagnostic categories" that would fall
under attention deficit disorder, major depressive disorder, bipolar disorder, depressive disorder
not otherwise specified, and personality disorder not otherwise specified, but it was her opinion
that none of these "independently or in combination equal or meet a listing." Tr. 1373. Dr. Gordy
also testified that with respect to the paragraph B criteria, Gonzales would have mild limitations
in activities of daily living, moderate difficulties in social functioning, moderate difficulties in
concentration and pace, and no episodes of decompensation. Tr. 1374. Dr. Gordy opined
Gonzales could perform simple, routine tasks, but would need "limited contact with coworkers
and the general public." Id. Finally, Dr. Gordy commented that she would recommend Gonzales
be evaluated and receive psychiatric treatment. Tr. 1377-78.

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Next, Gonzales testified that she was living with her three children, after giving birth to a
third child, and had no additional schooling since the previous ALJ hearing on May 26, 2011.
Tr. 1380. She also testified that she was taking the medications Tramadol, Percocet, Seroquel,
Trazadone, ibuprofen, and ventilin. Tr. 1380-81. Gonzales testified that she is not in any
counseling, has no upcoming surgeries, and has no illegal drug use. Tr. 13 81-82. Gonzales
futiher testified that she continued to have headaches a couple times a week that vary in duration
from a couple hours to a couple days or weeks. Tr. 1382. She explained that in the past she had
a shunt placed, but it was eventually replaced, and then removed in 2010 after the tubing failed.
Tr. 1383.
Finally, the ALJ asked VE Gary Jesky to consider an individual who "doesn't have
lifting, walking, standing limitations but must avoid concentrated exposure to noise ... fumes,
dust, gases, pulmonary irritants, poor ventilation, smoke, dust, odors. Must avoid concentrated
exposure to heights, hazards, and heavy equipment," can "perform simple routine tasks, SVP-1
or 2 type tasks," and "[i]s limited to occasional public and coworker contact." Tr. 1385. The ALJ
asked whether "such a hypothetical person [could] perform any of the claimant's past [work]?,"
to which the VE replied "no." Id. Next, the ALJ asked whether there were any "medium work
such a hypothetical person could perform in the national economy?" Id. The VE testified that
the hypothetical person could perform the jobs of laundry worker and cleaning jobs. Tr. 1386.
Next, the ALJ posed a third hypothetical where he asked the VE to consider an individual with a
"light level" restriction, but all other limitations the same. Id. At the light level, the VE testified
that a person with those limitations could perform small products assembly jobs, and packaging
and sotiing jobs. Id. Finally, the ALJ asked whether a person who is "absent two or more days a

Page 10- OPINION AND ORDER

month," or is "off-task 20 percent or more in a workday, work week, [or] work month" is
employable in the national economy, to which the VE answered no. Id. Based on the VE's
testimony, the ALJ found Gonzales could perform other work in the national economy and was
therefore not disabled. Tr. 1404-05.

SUMMARY OF ALJ FINDINGS4
At the first step of the five-step sequential evaluation process, the ALJ found Gonzales
did not engage in substantial gainful activity since October 30, 2008, the alleged onset date. Tr.
1394.
At the second step, the ALJ found that Gonzales' impairments of pseudotumor cerebri,
migraines, anemia, an affective mood disorder, a personality disorder, depression, obesity, and an
organic mental disorder were "severe" for purposes of the Act. Tr. 1394-96. Because an
impairment was deemed severe, the ALJ proceeded to the third step of the analysis.
At the third step, the ALJ found that none of Gonzales' impairments were the equivalent
of any of the impairments enumerated in 20 C.F.R. § 404, subpt P, app. 1. Tr. 1396-98. The
ALJ therefore conducted an assessment of Gonzales' residual functional capacity. Specifically,
the ALJ found that Gonzales has the RFC to
perform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant must avoid concentrated exposure to
noise, fumes, dust, gases, poor ventilation and other pulmonary irritants as well
as hazards, heights and heavy equipment. The claimant is limited to simple,
routine SVP 1-2 step tasks. The claimant can have no more than occasional
contact with the general public and coworkers. Tr. 1398-1403.
At the foutth step of the five-step process, the ALJ found Gonzales was unable to perform any

4

The Summaty of ALJ Findings describes the ALJ's findings issued on January 6, 2016
after the second ALJ hearing held on December 17, 2015.
Page 11 - OPINION AND ORDER

past relevant work as a customer service representative, dispatcher, telemarketer, and waitress.
Tr. 1403. The ALJ relied on the testimony of a VE that an individual with the RFC set out above
could perform other work, including laundry worker, cleaner, small product assembly, and
packaging and sorting. Tr. 1403-04. On that basis, the ALJ concluded that Gonzales was not
disabled as defined in the Act at any time from October 30, 2008, through January 6, 2016, the
date of his decision. Tr. 1404.

ANALYSIS
Gonzales argues the ALJ ened by (1) reopening her award for benefits for less than good
cause; (2) improperly rejecting the medical opinions of Dr. Keli Dean ("Dr. Dean"), and Dr.
James Bryan ("Dr. Bryan"); (3) improperly rejecting the medical opinion of treating nurse
practitioner, Vera Vos ("FNP Vos"); and (4) improperly rejecting her subjective symptom
testimony. Pl.'s Opening Br. 7-20.
The Commissioner concedes that reversal of the ALJ's decision is warranted. Def.'s Br.
6-7. Specifically, the Commissioner acknowledges that the ALJ etTed by improperly reopening
the subsequent June 5, 2013, favorable determination that Gonzales was disabled without
providing any explanation. Id Thus, the sole issue on review is whether this case should be
remanded for further proceedings or for the payment of benefits.
The decision whether to remand for fmiher proceedings or for immediate payment of
benefits is within the discretion of the court. Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985.)
The issue turns on the utility of fmiher proceedings. A remand for an award of benefits is
appropriate when no useful purpose would be served by further administrative proceedings or
when the record has been fully developed and the evidence is insufficient to suppo1i the

Page 12 - OPINION AND ORDER

Commissioner's decision. Strauss v. Comm'r, 635 F.3d 1135, 1138-39 (9th Cir. 2011)(citing

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The court may not award benefits
punitively and must conduct a "credit-as-true" analysis to determine if a claimant is disabled
under the Act. Id. at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award
of benefits directed where: (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 "credit-as-true"
doctrine is not a mandatoty rule in the Ninth Circuit, but leaves the court flexibility in
determining whether to enter an award of benefits upon reversing the Commissioner's decision.

Connett, 340 F.3d at 876 (citing Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en
bane)). The reviewing court should decline to credit testimony when "outstanding issues"
remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
Here, Gonzales contends that remand for the immediate payment of benefits is proper
because her statements and the medical opinions should be fully credited and suppott a disability
determination. Pl.' s Reply Br. 1-7. Conversely, the Commissioner asserts that remand for fmther
proceedings is required because the ALJ reasonably assessed the statements of Gonzales, Dr.
Dean, Dr. Btyan, and FNP Vos, such that the only umesolved issue is the ALJ's improper
reopening of Gonzales' award for benefits. Def.' s Br. 6-7.
Of the remaining four issues, I find only two determinative of disability: the rejection of
Gonzales' subjective symptom testimony and the medical opinion ofFNP Vos. Namely, I need

Page 13 - OPINION AND ORDER

not address whether the ALJ improperly rejected the medical opinions of consultative examiner,
Dr. Keli Dean, or Dr. James Bryan because, even if credited as true, it is not clear based on this
evidence that the ALJ would be required to find Gonzales disabled.
First, Dr. Dean wrote that Gonzales' overall intellectual score was within the "Average
range" and that her symptoms were "prominent enough to support a diagnosis of ADHD,
Combined Type." Tr. 355-56. Dr. Dean recommended Gonzales be referred to an individual
counselor to help her manager her depression and ADHD. Tr. 356. At the end of her
assessment, Dr. Dean included a list of Employment Recommendations and Employment
Accommodations, which I find suggest Gonzales has the ability to work despite her limitations.
Tr. 358.
Additionally, it is not clear based on the medical opinion of Dr. Btyan that Gonzales is
disabled. Although Dr. Btyan opined that Gonzales would have marked difficulties responding
appropriately to usual work situations and changes in routine work settings, he also found
Gonzales' "neuropsychological profile cannot be accurately interpreted." Tr. 1352, 1362. Dr.
Bryan found "[w]idely variable levels of performance between related cognitive tests" and
"[i]nconsistency between similar trials." Tr. 1362. Overall, Dr. Btyan diagnosed Gonzales with a
pain disorder associated with psychological factors and a general medical condition, and
malingering. Tr. 1364. Based on the inconsistent test results found by Dr. Btyan, it is not clear
whether Gonzales would be found disabled if Dr. Bryan's medical opinions were fully credited.
Accordingly, I tum to the two issues that are determinative of disability: Gonzales'
subjective symptom testimony and the medical opinion evidence ofFNP Vos.

A.

Gonzales' Subjective Symptom Testimony

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First, the ALJ erred by failing to provide a clear and convincing reason for rejecting
Gonzales' subjective symptom testimony.
If"there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's
testimony about the severity of her symptoms only be offering specific, clear and convincing
reasons for doing so."' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citing

Smolen, 80 F.3d at 1281, 1283-84). A general assertion that the claimant is not credible is
insufficient; the ALJ must "state which ... testimony is not credible and what evidence suggests
the complaints are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). The
reasons proffered 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) (internal citation omitted).
Here, the ALJ did not affirmatively accept Dr. Bryan's diagnosis of malingering, so he
was required to provide a clear and convincing reason for discrediting Gonzales' subjective
symptom testimony. In discrediting Gonzales' subjective symptom testimony the ALJ found the
"course of medical treatment and the use of medication in this case are not consistent with the
claimant's alleged conditions." Tr. 1399. Specifically, the ALJ found Gonzales did not follow
recommendations that she seek mental health treatment and psychological counseling. Id.
However, this is not a clear and convincing reason to discredit Gonzales' subjective symptom
testimony because her failure to seek treatment was related to minimizing her mental health
impairments. Tr. 1363. See Garrison v. Colvin, 759 F.3d 995, 1018, n. 24 (9th Cir. 2014) (citing

Nguyen v. Colvin, 100 F.3d 1462, 1465 (9th Cir. 1996) (It was error for the ALJ to discredit
claimant's subjective symptom testimony when her depaiture from prescribed treatment was

Page 15 - OPINION AND ORDER

related to her underlying mental impairments.)
Next, the ALJ discredited Gonzales' subjective symptom testimony because her alleged
limitations are not supported by the record. Tr. 1399. The ALJ noted that her intellectual
abilities fell within the average range, and that her pain symptoms decreased with medication,
noting her use ofTopamax, caffeine, Benadtyl, and Botox injections to relieve headache pain. Id.
Although her intellectual abilities fell within the average range, there is evidence in the record
that suggests she would not be able to maintain employment despite her average intellect,
specifically, with respect to her ability to maintain focus and complications with her headaches.
See Tr. 53, 73-75, 214-25, 226, 315, 334-37, 970, 1021. Additionally, although the ALJ
correctly notes that Gonzales' headache pain was controlled effectively with medication, an
independent review of the entire record shows these improvements eventually stopped. Indeed,
despite initial improvement, Gonzales continued to suffer from debilitating headaches and
complained to doctors that Botox treatments were no longer effective. See Tr. 2033, 2064, 2071,
2083, 2093, 2108, 3052, 3137. Therefore, I find these are not clear and convincing reason to
discredit Gonzales' subjective symptom testimony.
Next, the ALJ discredited Gonzales' subjective symptom testimony because her
functional limitations are not as significant or limiting as alleged, noting that Gonzales lives on a
second floor apartment, goes groce1y shopping, travels, gave bitih to a child, drives, and watches
television. Tr. 1399-1400. Although Gonzales did occasionally perform these activities they are
not inconsistent with her allegations that she could not spend a substantial part of her day
performing work activities. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (the mere fact
that a claimant can cany out certain minimal activities such as reading or watching television

Page 16- OPINION AND ORDER

does not detract from credibility as to overall disability.) Although Gonzales testified to being
able to complete these activities she explained that she needs constant reminders from her parents
to complete them, and receives help from them whenever she suffers from a disabling headache.

See Tr. 68, 70-71, 211, 226-28. Based on the entire record, the comi finds the ALJ's reliance on
Gonzales' ability to perform ce1iain activities of daily living is not a clear and convincing reason
for discrediting Gonzales' subjective symptom testimony.
Next, the ALJ discredited Gonzales' subjective symptom testimony based on her past
work history, noting that her work history "shows she has not put fmih a good faith effo1i to
support herself' and that "she lost her previous jobs for reasons not related to her conditions." Tr.
1400. I disagree. Gonzales attempted to work at multiple positions, but was fired because she
did not follow directions, arrived late, and broke company rules. Tr. 1400. However, none of
these reasons for losing her job are inconsistent with her impairments, which she described as an
inability to focus. Tr. 51-53. If anything, the fact that Gonzales continued to lose positions for
her inability to follow directions or company rules fmiher supports her claim for disability and
the presence of mental impairments that affect her ability to work. I find this was not a clear and
convincing reason to discredit Gonzales' subjective symptom testimony.
Finally, the ALJ discredited Gonzales' subjective symptom testimony because there were
inconsistencies in the medical record that the ALJ found reflected "unfavorably on the claimant's
credibility." Tr. 1400. Specifically, the ALJ noted the medical opinions of Dr. Dean who found
Gonzales exaggerated her symptoms on her MMPI test, the medical opinion of Dr. Ryan
Brevard, who wrote that Gonzales's allegations regarding her headaches was not entirely
credible, and the opinion of Dr. B1yan, who noted Gonzales' test results varied widely. Id.

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Although these medical records were inconsistent, the majority of the medical evidence suggests
that Gonzales had suffered from debilitating headaches for years, and was limited by her mental
health impairments, given her inability to maintain employment, as discussed above. See Tr. 5153, 272-319, 363-84, 970, 1021, 1066,2033,2120,2142,2848,3023,3386,3392. The court
finds the ALJ failed to provide a clear and convincing reason to reject Gonzales' subjective
symptom testimony.

B.

Rejection of Opinion of Other Medical Source; FNP Vera Vos
Finally, with respect to the medical opinion of FNP Vos, the ALJ erred in giving it little

weight.
Evidence from "other sources," including "nurse practitioners, physicians' assistants,
naturopaths, chiropractors, audiologists, therapists," "[e]ducational personnel (for example,
school teachers, counselors, early intervention team members, developmental center workers, and
daycare workers)," "[p]ublic and private social welfare agency personnel," and other nonmedical sources, such as spouses, parents, caregivers, relatives, friends, neighbors, and clergy,
may be used to show the severity of a claimant's impairments and how they affect her ability to
work. 20 C.F.R. §§ 404.1513(d), 416.913(d). 5 In order to reject evidence from "other sources,"
the ALJ must give germane reasons for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012).
Here, the ALJ noted that FNP Vos completed a check-box questionnaire in May 2011
concerning Gonzales's impairments. Tr. 1402. The ALJ gave FNP Vos' medical opinion little
weight because she was not a medical source under the regulations and because the ALJ found

5

See Footnote 1.

Page 18- OPINION AND ORDER

FNP Vos' opinions were based on Gonzales' subjective complaints and not on objective medical
testing. Tr. 1402. First, although FNP Vos is not a "medical source under the regulations" this is
not a legally sufficient reason to reject her medical opinion. Second, the court disagrees with the
ALJ's finding that FNP Vos' opinions were based Gonzales' subjective complaints and not
objective medical images or testing. An independent review of the record shows FNP Vos
treated Gonzales over the years and wrote many of the medical rep01is after examining Gonzales.

See Tr. 875-76, 1057-72. This comi finds FNP Vos' medical opinions were based on objective
medical images or testing, and therefore rejects the ALJ's finding that FNP Vos' medical opinion
was based entirely on Gonzales' subjective complaints. Given the ALJ provided no other reason
for rejecting FNP Vos' medical opinion, the ALJ erred in failing to provide a legally sufficient
reason for rejecting FNP Vos' medical opinion.

C.

REMAND
The ALJ's failure to credit Gonzales' subjective symptom testimony and FNP Vos'

medical opinion is erroneous for the reasons set out above. The VE testified that if an individual
missed two or more days of work a month she would be unable to maintain employment. Tr.
1386. On this record, FNP Vos wrote that she expected Gonzales to miss two or more days of
work per month based on her long treatment of Gonzales for complications with her headaches.
Tr. 1349. If credited, that opinion establishes that Gonzales is disabled. Additionally, Gonzales
testified that she can't focus or stay on task, which the VE testified would prevent an individual
from being gainfully employed. Tr. 53, 70. Gonzales also testified that she has debilitating
headaches about four times a month. Tr. 71. When crediting Gonzales and FNP Vos' testimony
and medical opinion as trne, this court concludes Gonzales is disabled based on this medical

Page 19- OPINION AND ORDER

record and no useful purpose would be served by a remand of this matter for further proceedings.

See Harman v. Apfel, 211 F.3d 1172, 1178-79 (9th Cir. 2000).
CONCLUSION

For the reasons set fmih above, the Commissioner's final decision denying Gonzales'
application for disability insurance benefits and supplemental security income is reversed and
remanded for the immediate payment of benefits.
IT IS SO ORDERED.
Dated this

5th

day of June, 2017.
') )
,U (
~-

Honorable Paul Papak
United States Magistrate Judge

Page 20 - OPINION AND ORDER