Whitman v. Commissioner Social Security Administration

Filing 17

Opinion an Order - The Commissioner's decision that Ms. Whitman was not disabled prior to June 25, 2011 is not based on proper legal standards, and the findings are not supported by substantial evidence. The Commissioner's decision is REVERSED and this case is REMANDED for further proceedings. Signed on 6/2/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MYCAH DAWN WHITMAN,
Plaintiff,

Case No. 3:16-cv-919-SI
OPINION AND ORDER

v.
NANCY A. BERRYHILL,
Commissioner of Social Security,
Defendant.
Lisa R.J. Porter, JP Law PC, 5200 SW Meadows Road, Suite 150, Lake Oswego, OR 97035.
Attorney for Plaintiff.
Billy J. Williams, Interim United States Attorney, and Janice E. Hébert, Assistant United States
Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, Suite
600, Portland, OR 97204-2902; Ryan Lu, Special Assistant United States Attorney, Office of the
General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A,
Seattle, WA 98104-2240. Attorneys for Defendant.
Michael H. Simon, District Judge.
Mycah D. Whitman seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying her applications for Supplemental
Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). Because the
Commissioner’s decision is not based on the proper legal standards and the findings are not
supported by substantial evidence, the decision is REVERSED and REMANDED for further
proceedings.
PAGE 1 – OPINION AND ORDER

STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Ms. Whitman filed applications for DIB and SSI on October 10, 2012, alleging disability
as of January 1, 2008. AR 19, 110-11. Born in April 1987, Ms. Whitman was 20 years old on the
alleged disability onset date and 26 at the time of the hearing. AR 19, 112. She speaks English
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and graduated from high school. AR 23, 66. She alleges disability due to obsessive-compulsive
disorder (“OCD”), depression, and anxiety. AR 86. The Commissioner denied her application
initially and upon reconsideration, and she requested a hearing before an Administrative Law
Judge (“ALJ”). AR 104-05, 110-11. After an administrative hearing held on September 14, 2014,
the ALJ found Ms. Whitman not disabled in a decision dated November 24, 2014. AR 19-43.
The Appeals Council denied Ms. Whitman’s subsequent request for review on April 4, 2016. AR
1-3. The ALJ’s decision thus became the final decision of the Commissioner, and Ms. Whitman
sought review in this Court.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.

Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.

2.

Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An

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impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.

Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.

4.

Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.

5.

Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
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numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ performed the sequential analysis. AR 21-43. At step one, the ALJ found
Ms. Whitman had not engaged in substantial gainful activity since January 1, 2008, the alleged
onset date. AR 21. At step two, the ALJ concluded that Ms. Whitman had the following severe
impairments: asthma, depression, anxiety, OCD, and obesity. AR 21. At step three, the ALJ
determined that Ms. Whitman did not have an impairment or combination of impairments that
met or equaled a listed impairment. AR 22.
The ALJ next assessed Ms. Whitman’s RFC and found that she could perform medium
work except that she must avoid all exposure to hazards and must avoid concentrated exposure to
fumes, odors, dusts, and gases; and she is limited to unskilled work with only incidental contact
with the public and co-workers. AR 25. At step four, the ALJ found that Ms. Whitman could not
perform her past relevant work. AR 41. At step five, based on the testimony of a vocational
expert (“VE”), the ALJ concluded that Ms. Whitman could perform jobs that exist in significant
numbers in the national economy, including linen supply room worker and laundry worker.
AR 42. Accordingly, the ALJ found Ms. Whitman not disabled. Id.

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DISCUSSION
Ms. Whitman contends the ALJ made the following errors in evaluating her case:
(1) improperly assessing her symptom testimony; (2) improperly assessing the medical opinion
evidence; (3) failing properly to credit lay testimony; (4) finding she did not meet a listing at step
two; and (5) formulating an inaccurate RFC, which led to further error at step five.
A. Plaintiff’s Symptom Testimony
There is a two-step process for evaluating the credibility of a claimant’s testimony about
the severity and limiting effect of the claimant’s symptoms. Vazquez 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 v. Astrue, 504 F.3d 1029, 1036 (9th Cir.
2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 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).
Second, “if the claimant meets this 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, 503 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.” Ortez v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
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Effective March 16, 2016, the Commissioner superseded Social Security Ruling
(“SSR”) 96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with
SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. 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
Commissioner recommends that the ALJ examine “the entire case record, including the objective
medical evidence and 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. The
Commissioner recommends assessing: (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, 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 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. See id. at *6-7.
The ALJ’s credibility decision 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, make a negative credibility finding “solely because” the claimant’s symptom

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testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d
at 883.
At the hearing, Ms. Whitman endorsed significant limitations arising from anxiety and
OCD. She described experiencing extreme anxiety, including fears related to driving, leaving the
house, workplace interactions with co-workers and the public, testifying at the hearing, and even
entering certain rooms in her own home. AR 63, 65-68, 74-75. Ms. Whitman testified that she
needed assistance raising her three-year-old son, as she is unable to do the laundry, prepare
proper meals, or clean the dishes because of thoughts of imminent catastrophe. AR 70-71. She
felt she would not be able to work due to frequent disruptions of “bad thoughts” and panic
attacks. AR 72-73. For example, she told the ALJ she would not be able to assemble pens
because they would have been touched by so many other people that the thought of germs would
be a disruptive concern for her; additionally, she would be panicked about the thought of her
work being reviewed by a supervisor. AR 76. Ms. Whitman related an incident where she flew
by herself to California to meet her current boyfriend, which she found extremely stressful, but
was able to endure by taking medication (Lorazepam) and performing breathing exercises. She
testified that although Lorazepam is helpful for relaxing her, it makes her drowsy and “loopy,”
and she would not be able to use it while working. AR 74-75.
The ALJ found Ms. Whitman’s symptom allegations were not credible because they were
“almost completely inconsistent with the evidence of record.” AR 35. In support, the ALJ noted
that Ms. Whitman had worked as a cashier for two months in 2011. The ALJ further explained
that her ability to fly to California on her own in 2012 belies her symptom testimony, as
inconsistencies involving her therapist’s chart notes did not reflect the level of trauma that
Ms. Whitman described at the hearing when recounting the trip. AR 35.

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Ms. Whitman argues the ALJ’s findings regarding her ability to work in 2011 and travel
in 2012 are examples of inappropriately selecting isolated examples of psychological
improvement over a period of years, even though the record as a whole reflects longstanding and
severe psychological symptoms. Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014); see
also Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). For the reasons that follow, the
Court agrees.
First, the ALJ’s finding regarding the 2011 cashier job is not clear-and-convincing. Ms.
Whitman explained that she had great difficulty with the job; further, she was employed by a
family member who was sensitive to her psychological needs, and moreover, she benefited by
working with her then-husband. AR 29-30; see Garrison, 759 F.3d at 1017 (improved
functioning in the context of limited environmental stressors does not necessarily mean a
claimant can perform adequately in a typical workplace).
The ALJ also appears to have impugned Ms. Whitman’s credibility in general for
indicating in her disability report that she stopped working the cashier job because “she became
pregnant,” concluding that because Ms. Whitman gave birth three days after her job ended on
May 15, 2011, that she did not quit “because she became pregnant.” AR 30 n.2. The ALJ’s
statement, however, is inaccurate. Ms. Whitman indicated she stopped working because “I was
pregnant.” AR 235. In fact, Ms. Whitman was hours away from giving birth, which is not only a
true statement about why she left the job, but a valid reason. Given that the job uniquely
provided family support, that it lasted only two months, and that Ms. Whitman was forthcoming
about her reason for leaving, the ALJ’s findings are not clear and convincing.
Next, the ALJ impugned Ms. Whitman’s symptom allegations because in November
2012, Ms. Whitman flew to California to meet her future boyfriend. AR 35. The ALJ found that

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her ability to go on the trip evinced a higher functional ability than she alleged. Ms. Whitman,
however, described being extremely anxious in the weeks leading up to the trip and during and
after the flight. AR 68-69. In order to avoid a panic attack, Ms. Whitman took two Lorazepam
pills and practiced breathing exercises. Id. She further described vomiting after landing due to
stress, and expressing dread at the thought of having to take a return flight. Id. The ALJ found
that contemporaneous therapy notes contradicted Ms. Whitman’s testimony that the trip was an
ordeal. AR 35. The ALJ’s finding, however, is unsupported because the record reflects that she
was “afraid” to take the trip and that she was proud of herself for going despite her anxiety.
AR 409, 411.
The Commissioner argues that the ability to take a flight is sufficient to impugn symptom
testimony, citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 n.3 (9th Cir. 2008). The instant case
is distinguishable from Tommasetti. Ms. Whitman took a relatively short flight from Oregon to
California. AR 23. She indicated she was panicked throughout the flight and required medication
in order to keep her composure. AR 68-69. In contrast, the claimant in Tommassetti flew from
the United States to Venezuela. Tommassetti, 533 F.3d at 1040 n.3. He then proceeded to stay in
Venezuela for an extended time to care for a sick family member. Id. Further, the ALJ in
Tommassetti found the claimant’s ability take a long flight and then provide extended care to his
sister inconsistent with his allegations that back pain prevented him from sitting for more than
ten minutes due to disabling back pain. See id. at 1037, 1040. Thus, aside from the fact that air
travel was involved, the cases share little in common.
Further, although Ms. Whitman showed improvement shortly before and after the trip,
the therapy notes indicate her progress was once again in decline by December. AR 400, 402,
404, 408. Accordingly, her plane trip is not clear and convincing evidence that her symptom

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allegations are not credible. Further, the ability to take a single short flight, with the benefit of
medication and while still experiencing strong symptoms, is insufficient to establish a threshold
for transferable work skills. Orn, 495 F.3d at 639.
The ALJ further noted that Ms. Whitman’s symptom allegations as to her ability to care
for her child were inconsistent. For example, Ms. Whitman testified that she is unable to care for
her son properly without assistance. AR 70-71. Ms. Whitman also explained that she feared
entering her kitchen, and the thought of doing the dishes “terrifies” her, apparently because she is
worried that food is contaminated with germs, and also that she has “terrible memories that have
caused her to be resistant to certain tasks, like doing laundry, eating at other people’s homes, and
keeping her body clean.” AR 70, 321, 405.
In May 2012, however, Ms. Whitman told one-time examining psychologist Molly C.
McKenna, Ph.D., that on a typical day, she takes care of her son. AR 320. In October 2012, she
reported improvement with her symptoms, reported playing with her son more often, and she felt
as if she was a good mother. AR 413, 417. In January 2014, Ms. Whitman told her therapist that
she was taking care of her son on her own during the day, and was feeling more confident as a
mother, and was proud of her progress. AR 646-47. In March 2014, Ms. Whitman reported
progress in some areas of her life, including her ability to make meals for her son. AR 637. By
June 2014, Ms. Whitman reported being motivated to take full custody of her son following her
divorce, and indicated she was “able to successfully care for her son, despite her obsessivecompulsive issues.” AR 624. She also indicated that she still had “difficulty being in her kitchen
at times.” Id.
In addition, Ms. Whitman provided equivocal testimony about her ability to enter her
laundry room. 417, 427. Dr. McKenna noted in May 2012 that Ms. Whitman “did her own

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laundry.” A few months later, Ms. Whitman told her therapist that she was able to enter the
laundry room, despite some trepidation, and load and unload the washer and dryer. AR 423. By
2014, Ms. Whitman stated she was feeling more comfortable in her kitchen, but was still having
“trouble” going into her laundry room. AR 770. The ALJ impugned Ms. Whitman’s credibility
for her apparently equivocal statements about her anxiety surrounding her laundry room, and
further invoked the laundry room issue as a basis for finding that Ms. Whitman was malingering.
Although the ALJ’s findings regarding Ms. Whitman’s ability to care for her son, enter
her laundry room, and prepare meals up to four times per week for her son are supported by the
record, those activities are nonetheless extremely limited. Indeed, despite her improved ability to
use her kitchen and laundry room, there is no dispute that Ms. Whitman continues to be
hampered by “innumerable” OCD rituals. AR 320. In July 2013, Ms. Whitman reported her
repetitive behaviors and OCD symptoms were worsening. AR 666. By July 2014,
Ms. Whitman’s therapist noted that it was unlikely Ms. Whitman could complete a full workday
successfully without being interrupted by OCD symptoms because she lacked coping skills to
deal with normal stressors. AR 751. The therapist described her “extreme, debilitating symptoms
of [OCD],” which “prevent her from engaging with others.” AR 629. In July 2014, Ms. Whitman
reported “increased frustration with others and trouble engaging in self-care and activities
outside her home.” AR 743. These reports are consistent with the earlier assessment by
Dr. McKenna, which noted “almost complete withdrawal and severe anxiety,” as well as
“variable mood, extreme sensitivity to circumstantial stress . . . compulsive behaviors, obsessive
concerns about contamination . . . and social isolation. AR 324, 329. Accordingly, the ALJ’s
findings that “her OCD symptoms had been reduced” and “she had success in preparing food and
being around germs” were perhaps accurate for a several weeks in January 2014, but the record

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as a whole reflects serious anxiety, depression, and OCD that persisted throughout the relevant
time period, despite intervals of improvement. AR 36.
In Garrison, the Ninth Circuit admonished:
Reports of “improvement” in the context of mental health issues
must be interpreted with an understanding of the patient’s overall
well-being and the nature of her symptoms . . . [and also] with an
awareness that improved functioning while being treated and while
limiting environmental stressors does not always mean that a
claimant can function effectively in the workplace.
Garrison, 759 F.3d at 1017. Although Ms. Whitman exhibited some improvement in her
symptoms, the record consistently reflects that she continued to have some severe symptoms that
would be unlikely to allow her to function in a competitive workplace.
The ALJ further impugned Ms. Whitman’s symptom allegations by finding that her
symptoms were controlled by medications. For example, the ALJ noted that when Ms. Whitman
began to take Luvox, she “quickly improved.” AR 36. In context, Ms. Whitman began taking
Luvox following a suicide attempt in 2009, and even though her suicidal ideation decreased, she
continued to report “increased anxiety and increased irritable moods,” and she also reported
insomnia. AR 301. The ALJ also noted that in March 2013, Ms. Whitman reported that “her
medications were managing her anxiety and depression very well.” AR 34. At her session later
the same month, however, Ms. Whitman described that she was regressing, and expressed
difficulties with self-care, including feeding herself. AR 637. In May 2014, she continued to
report that she was not progressing adequately. AR 633, 631. As noted above, Ms. Whitman’s
therapist assessed severe limitations in July 2014 despite her medications. AR 746-52.
Accordingly, although the record includes discrete periods of improvement with medication,
medication has not alleviated Ms. Whitman’s symptoms completely, and the ALJ glossed over
instances where symptoms returned despite her medications. Ghanim, 763 F.3d at 1164 (ALJ
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may not cherry-pick instances of improved psychological symptoms when the record as a whole
reflects longstanding psychological disability).
The Commissioner, citing Tommasetti, 533 F.3d at 1040, argues that Ms. Whitman
merely offers an alternative interpretation of the evidence, and that because the ALJ’s
interpretation was rational, the court is bound to uphold it. Although the ALJ pointed out some
contradictions in Ms. Whitman’s testimony by highlighting isolated periods of improvement, the
contradictions the ALJ cited do not reasonably negate all of Ms. Whitman’s symptom testimony.
Even assuming that Ms. Whitman has made strides in her ability to independently care for her
son, perform household chores, and has experienced improvement at times with medication, the
record as a whole nevertheless reflects severe impairment, generally consistent with Ms.
Whitman’s allegations of persistent and disruptive mental impairment. Garrison, 759 F.3d
at 1018 (“While ALJs obviously must rely on examples to show why they do not believe that a
Ms. Whitman is credible, the data points they choose must in fact constitute examples of a
broader development to satisfy the applicable ‘clear and convincing’ standard.”).
As was the case in Garrison, the record as a whole reflects a tortuous path of waxing and
waning symptoms, but with persistent and severe impairment, rather than a clear pattern of
improvement. Ms. Whitman continues to experience longstanding severe anxiety, disruptive
OCD coping mechanisms, depression, isolation, and substantial difficulty dealing with day-today stresses. For these reasons, the ALJ’s credibility finding cannot be upheld.
B. Medical Opinion Evidence
Ms. Whitman argues the ALJ improperly rejected opinions provided by treating medical
sources. The ALJ is responsible for resolving conflicts in the medical record, including
conflicting physicians’ opinions. Carmickle, 533 F.3d at 1164. The Ninth Circuit distinguishes
between the opinions of three types of physicians: treating physicians, examining physicians, and
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non-examining physicians. The opinions of treating physicians are generally accorded greater
weight than the opinions of non-treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995). A treating doctor’s opinion that is not contradicted by the opinion of another
physician can be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923
F.2d 1391, 1396 (9th Cir. 1991).
If a treating doctor’s opinion is contradicted by the opinion of another physician, the ALJ
must provide “specific, legitimate reasons” for discrediting the treating doctor’s opinion. Murray
v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Additionally, the ALJ must accord greater weight
to the opinion of an examining physician than that of a non-examining physician. Lester, 81 F.3d
at 830. As is the case with a treating physician’s opinion, the ALJ must provide “clear and
convincing” reasons for rejecting the uncontradicted opinion of an examining physician. Pitzer v.
Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an examining physician is
contradicted by another physician’s opinion, the ALJ must provide “specific, legitimate reasons”
for discrediting the examining physician’s opinion. Lester, 81 F.3d at 830. Specific, legitimate
reasons for rejecting a physician’s opinion may include its reliance on a claimant’s discredited
subjective complaints, inconsistency with the medical records, inconsistency with a claimant’s
testimony, or inconsistency with a claimant’s ADLs. Tommasetti, 533 F.3d at 1040. It is error to
ignore an examining physician’s medical opinion without providing reasons for doing so; an ALJ
effectively rejects an opinion when he ignores it. Smolen, 80 F.3d at 1286.
As noted above, Dr. McKenna performed a one-time evaluation of Ms. Whitman in May
2012. After reviewing the medical record through January 2012, Dr. McKenna produced a
narrative history, clinical formulation/prognosis, and also completed a check-box functional
report. AR 317-29. Dr. McKenna indicated Ms. Whitman was markedly limited in numerous

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areas, including carrying out detailed instructions, maintaining attention and concentration for
long periods, working on a regular schedule, completing a normal workday or workweek without
symptom-related interruptions, interacting appropriately with the general public, and getting
along with co-workers without distraction. AR 327. The doctor further indicated that
Ms. Whitman had moderate to marked limitation in ADLs, marked limitation in social
functioning, and moderate to marked limitation in concentration, persistence, and pace. AR 328.
Overall, Dr. McKenna opined that Ms. Whitman would not be able to work in her current
condition, but could attempt part-time work or vocational rehabilitation in conjunction with
therapy and medication. AR 324-25.
The ALJ noted that Dr. McKenna’s functional assessments were incongruent with
Ms. Whitman’s “mild symptoms” during her evaluation. AR 40. Presumably, the ALJ was
referencing Dr. McKenna’s observations that Ms. Whitman’s behavior was “appropriate and
conservative,” her “eye contact was good,” she was a “good historian,” and her “attention and
concentration appear to be intact.” AR 321. In finding “mild symptoms,” however, the ALJ
disregarded Dr. McKenna’s observations that Ms. Whitman was “psychomotor agitated,” had an
“agitated and nervous” affect, and was “periodically tearful”; all behaviors consistent with Dr.
McKenna’s assessment. AR 321-22. Indeed, Dr. McKenna concluded that “the most notable
aspect of her presentation is severe anxiety.” AR 323. To the extent that the most notable aspect
of Ms. Whitman’s presentation was “severe anxiety,” the ALJ’s finding that Ms. Whitman
presented with only mild symptoms is directly contradicted, and therefore not supported by
substantial evidence; nor does it meet the “specific and legitimate reasons” threshold.
The Commissioner argues that the ALJ properly discounted Dr. McKenna’s opinion
because Ms. Whitman’s statements to the doctor were contradicted by later records. Specifically,

PAGE 16 – OPINION AND ORDER

the Commissioner contends that Ms. Whitman reported to Dr. McKenna that she could not cook
meals, but later reported to a therapist, Sheila Flanagan, LPC, that she “had cooked a meal” and
“was spending more time in the kitchen.” AR 36. The Commissioner, however, ignores the fact
that at the time of her evaluation with Dr. McKenna, the record consistently reflects Ms.
Whitman was very rarely entering her own kitchen due to anxiety, which was the topic of
numerous therapy sessions. Eventually, Ms. Whitman gained confidence and began using the
kitchen more often, but not until after Dr. McKenna’s evaluation. As such, the Commissioner’s
conclusion is unsound.
Ms. Whitman’s therapist, Adrienne Bush, M.A., QMHP, treated her for two years and
completed an attorney-generated “Mental Impairment Questionnaire” in July 2014. Ms. Bush
indicated Ms. Whitman would have difficulty maintaining her stamina at work, would require a
reduced work pace, would not get along with co-workers or the public, would be absent more
than four times per month on average, would be unlikely to complete a workday without
interruptions due to symptoms, and was “markedly” or “extremely” limited in several functional
areas. See AR 745-52. Her report was co-signed by Laura Taylor, Psy.D., and as such, the
Commissioner concedes that the opinion should be considered as that of an acceptable medical
source. See Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996).
The ALJ found that the opinions provided by Ms. Bush and Dr. Taylor warranted “only
moderate weight.” AR 40. The ALJ explained that Ms. Whitman’s “therapists have been taken in
by the claimant’s histrionic presentation and, in her therapist’s case, her manipulation of the
treatment process to suit her own ends.” AR 40. In support, the ALJ discussed that Ms. Whitman
provided statements to Ms. Bush that “served several useful purposes which furthered her
interests,” including:

PAGE 17 – OPINION AND ORDER

1.
2.
3.

4.

That she needed help in increasing her functionality;
That her therapy was beneficial in increasing her functionality;
Provided gratification for her therapists in reassuring them that their
efforts were successful and was thus likely to increase their affinity with
the claimant;
And most important, provided validation for the claimant that she was
competent and able to perform these and other tasks; validation that was
reflexively withheld from her by her mother.

AR 40.
In short, the ALJ determined that Ms. Whitman was feigning the severity of her
psychological symptoms for secondary gain; in other words, malingering. The ALJ explained
that because Ms. Bush provided “validation,” Ms. Whitman had “very good reasons for
exaggerating the extent of her limitations,” while she did not have a good reason to exaggerate
her abilities to Dr. McKenna, whom she only saw once. AR 40. The ALJ therefore surmised that
“inconsistencies” between Ms. Whitman’s statements to Dr. McKenna and Ms. Bush were
motivated by secondary gain. As discussed below, however,the ALJ’s theory runs afoul of Ninth
Circuit case law. Moreover, rationales the ALJ cites in support do not meet the requisite legal
threshold to reject the treating and examining medical sources in favor of the state agency
psychologist.
First, although the ALJ did not explicitly make a finding of malingering, there is little
question the finding is implicit in the decision. Typically, in order to make such a finding,
“affirmative evidence” of malingering must be identified by a medical or non-medical source.
Smolen, 80 F.3d at 1284; see Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir. 1989) (“The ALJ
found Swenson credible, and no doctor suggested that Swenson was malingering); Gallant v.
Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984) (“No witness, qualified expert or otherwise,
expressed the opinion that claimant was in any way malingering.”) (citation omitted); see also
Leitheiser v. Astrue, No. 6:10-cv-06243-SI, available at 2012 WL 967647, at *10 (Mar. 16,
PAGE 18 – OPINION AND ORDER

2012) (ALJ erred to interpret a Waddell Test for fibromyalgia as evidence of malingering
because the examining physician did not affirmatively find the result constituted malingering).
Neither Dr. McKenna, Ms. Bush, nor Dr. Taylor stated or implied that Ms. Whitman was
malingering. AR 317-25, 745-52.
Although an ALJ may weigh and resolve ambiguities in the medical record, the ALJ is
not a medical expert, and may not go outside the record to make medical assessments as to a
claimant’s condition. Donathan v. Astrue, 264 Fed.Appx. 556, 561 (9th Cir. 2008) (Graeber, J.,
dissenting) (quoting Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)). Further, on this
record, there are no objective test results suggesting malingering. Moreoever, no physicians of
record suspected malingering, including the state reviewing physician whom the ALJ accorded
“substantial weight.” AR 40. Indeed, Ms. Bush and Dr. Taylor affirmatively indicated
Ms. Whitman was not a malingerer. AR 747. Accordingly, by positing his own theory as to
Ms. Whitman’s alleged histrionic presentation and manipulation of qualified mental health
experts, the ALJ inappropriately substituted the medical expert opinion for his own.
Second, Ms. Whitman’s reports to Dr. McKenna and Ms. Bush were generally consistent.
Indeed, the reports the physicians completed both found that Ms. Whitman has negative thought
patterns, high anxiety, and OCD behaviors arising from her upbringing. AR 748. Both noted that
she has marked limitations in social functioning. Both indicated she would have marked
difficulty carrying out detailed instructions, maintaining concentration for extended periods,
adequately performing activities within a normal work schedule, and working in proximity to
others without becoming unduly distracted. AR 327-28, 750-1. Both reports noted at least
moderate impairments in concentration, persistence, and pace and restrictions in ADLs. AR 328,
751. The providers also noted that Ms. Whitman’s mental impairments likely began in

PAGE 19 – OPINION AND ORDER

childhood, resulting in periods of depression over many years, including a suicide attempt
in 2009. AR 323, 748. Ms. Bush, Dr. Taylor, and Dr. McKenna also noted extreme anxiety
resulting in panic attacks, as well as generalized anxiety, causing overreaction to minor stresses,
compulsive behaviors, irrational fears regarding contamination, and excessive hand-washing
(20-50 times per day). AR 320, 323, 735, 751. The medical sources further noted that her anxiety
causes fairly extreme social isolation and affects her ability to understand and remember
instructions, concentrate on tasks, and engage appropriately with others. AR 324, 746, 750-51.
Dr. McKenna opined that Ms. Whitman “cannot work in her current state,” and provided a
guarded prognosis that she might be able to pursue part-time vocational rehabilitation in
conjunction with treatment. AR 324-25. Similarly, Ms. Bush and Dr. Taylor opined that
Ms. Whitman would be unlikely to complete a regular workday without disruption from her
anxiety and OCD. AR 735, 751.
Indeed, the ALJ did not indicate precisely what statements Ms. Whitman exaggerated
when reporting to Ms. Bush as compared to Dr. McKenna. The ALJ, however, did indicate in a
footnote that Ms. Whitman apparently made inconsistent statements to Dr. McKenna and another
therapist, Sheila Flanagan, L.P.C. AR 30. Specifically, the ALJ noted that although she told
Dr. McKenna that “she did her own laundry, but was allergic to some detergent,” she later told
Ms. Flanagan that, in the context of being too anxious to enter the laundry room, she “would like
to work on the laundry room next.” AR 321. Therapy records from the time period shortly after
Ms. Whitman’s statement to Dr. McKenna imply Ms. Whitman claimed that her anxiety
essentially prevented her from entering her laundry room. As such, it was not unreasonable for
the ALJ to find an inconsistency. Nonetheless, Ms. Whitman’s equivocal reports regarding one

PAGE 20 – OPINION AND ORDER

detail of her life to Dr. McKenna and Ms. Flanagan in 2012 is not a specific and legitimate
reason to discredit the July 30, 2014 opinion provided by Ms. Bush and Dr. Taylor.1
Further, although the ALJ posits that Ms. Whitman did not exaggerate her symptoms to
Dr. McKenna, he nevertheless accorded the same diminished weight to her opinion as he did to
that of Ms. Bush and Dr. Taylor, although the opinions were substantially similar. AR 40. The
ALJ supported his finding using the same rationale he invoked for discrediting Ms. Bush and
Dr. Taylor, noting that Dr. McKenna had also been “taken in by the claimant’s histrionic
presentation[.]” Id. Thus, the ALJ reasoned, although Ms. Whitman did not exaggerate “her
abilities” to Dr. McKenna as she purportedly did to Ms. Bush and Ms. Flanagan, Dr. McKenna
nevertheless opined that Ms. Whitman was markedly impaired in a number of functional areas.
Id. This complex analysis allowed the ALJ to find that the functional limitations recognized by
Ms. Bush and Dr. Taylor were significantly more severe than, and therefore inconsistent with,
those recognized by Dr. McKenna; and, simultaneously, that both Ms. Bush and Dr. McKenna
had been fooled by Ms. Whitman’s alleged malingering, tainting both of their opinions. AR 40.
The ALJ’s conclusions are undermined by the failure to provide legally sufficient
rationales for finding that Dr. McKenna’s conclusions were inconsistent with Ms. Whitman’s
examination presentation. As discussed above, Dr. McKenna did not feel Ms. Whitman was
malingering, but stated instead that “the most notable aspect of her presentation is severe
anxiety,” and that her “complaints are credible and consistent with her presentation on interview
and available records.” AR 323-24. The ALJ’s conclusions are further undermined by the failure
to provide legally sufficient reasons for generally discrediting Ms. Whitman’s symptom
1

Ms. Whitman does not contest the ALJ’s accordance of little weight to Ms. Bush’s
January 21, 2014 opinion that “[h]er condition prevents her from being able to function in a work
or work-like environment at the current time.” See AR 38, 735.
PAGE 21 – OPINION AND ORDER

allegations, to the extent that erroneous finding supported the ALJ’s decision to accord more
weight to the state agency reviewing psychologist than treating and examining medical sources
Dr. McKenna, Ms. Bush, and Dr. Taylor. AR 40. Thus, the ALJ’s conclusions as to the
May 2012 opinion of Dr. McKenna and the July 2014 opinion of Ms. Bush and Dr. Taylor do not
satisfy the “specific and legitimate reasons” standard.
C. Lay Witness Testimony
Ms. Whitman assigns error to the ALJ’s evaluation of the lay witness testimony provided
by her boyfriend, Glenn R. Alfarosancho. Mr. Alfarosancho indicated Ms. Whitman has trouble
sleeping, that he helps her prepare meals, that she does not like spending time in the kitchen, that
he does the laundry and helps her fold the laundry, and takes care of paying the bills for the
couple. AR 274. The ALJ indicated “the claimant is unable to perform many of these activities
because of her impairments . . . these allegations are not consistent with the claimant’s
statements to her therapists . . . .” AR 41.
Lay testimony regarding a claimant’s symptoms or how an impairment affects claimant’s
ability to work is competent evidence that an ALJ must take into account. Nguyen v. Chater, 100
F.3d 1462, 1467 (9th Cir. 1996) (citations omitted). The ALJ must provide “reasons germane to
each witness” in order to reject such testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)
(citations omitted). Statements that are inconsistent with a claimant’s own allegations provide a
germane reason to discount a lay witness’s testimony. See Light v. Social Sec. Admin., 119 F.3d
789, 792 (9th Cir. 1997).
The ALJ misconstrued Mr. Alfaransancho’s testimony by overstating the lay witness’s
position. Contrary to the ALJ’s assertion, Mr. Alfaransancho did not state that Ms. Whitman was
wholly unable to perform the activities he discussed. Rather, he stated that he assists Ms.

PAGE 22 – OPINION AND ORDER

Whitman with many household activities. As such, the ALJ’s reasoning is not germane to the lay
witness and cannot be affirmed.
D. Step Three – Listing § 12.06
Ms. Whitman contends that the ALJ erred by finding she did not meet Listing § 12.06
(anxiety and obsessive-compulsive disorders) at step three of the sequential analysis. See 20
C.F.R. Part 404, Subpart P, Appendix 1, § 12.06. For the reasons explained infra, because further
proceedings are required, the Court cannot now decide the issue of whether Ms. Whitman’s
combination of impairments meets one of the listings. Although the Commissioner concedes the
“paragraph A” criteria are met, there is conflicting medical opinion as to whether Ms. Whitman
has established the requisites of “paragraph B” or, alternatively, “paragraph C.” See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.06; AR 22-25. Whether Ms. Whitman’s impairments meet or
equal a listing is largely contingent on which medical source opinions are accorded the greatest
weight. Tackett, 180 F.3d at 1100. On remand, the ALJ must reevaluate whether Ms. Whitman is
presumptively disabled at step three.
E. RFC Formulation
Ms. Whitman assigns error to the ALJ’s RFC formulation. In response, the
Commissioner, citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008),
contends that Ms. Whitman’s argument is foreclosed by the ALJ’s appropriate weighing of the
relevant evidence, including Ms. Whitman’s credibility, the contested opinions provided by
Dr. McKenna, Ms. Bush, and Dr. Taylor, and the lay witness. Because the ALJ’s rationales for
weighing testimonial and medical source evidence do not meet the requisite legal standard,
however, the Commissioner’s argument is inapposite. Similarly, because the ALJ did not
properly discredit evidence that suggested functional limitations greater than those set for the in
the RFC, it is not supported by substantial evidence. Remand is required to address this error.
PAGE 23 – OPINION AND ORDER

F. Remand for Further Proceedings
Ms. Whitman argues that the improperly rejected evidence should be credited as true, and
this case remanded for immediate payment of benefits. Within the Court’s discretion under 42
U.S.C. § 405(g) is the “decision whether to remand for further proceedings or for an award of
benefits.” Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001) (citation omitted).
Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
utility of further 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 support the Commissioner’s decision. Id. at 1100. A
court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence
that has been improperly rejected by the ALJ to determine if a claimant is disabled under the Act.
Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison, 759 F.3d at 999. The Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. If the court finds such an error, it must next
review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential
factual matters have been resolved. In conducting this review, the
district court must consider whether there are inconsistencies
between the claimant’s testimony and the medical evidence in the
record, or whether the government has pointed to evidence in the
record that the ALJ overlooked and explained how that evidence
casts into serious doubt the claimant’s claim to be disabled. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
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If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
appropriate remedy and a reviewing court is not required to credit
claimants' allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
their testimony.
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
marks omitted).
The Court finds that the ALJ erred in evaluating Ms. Whitman’s symptom testimony, lay
testimony, and medical source evaluations, which resulted in an erroneous RFC and a step five
finding that was therefore not based on substantial evidence. Several issues, however, remain
unresolved sufficient to preclude a remand for immediate payment of benefits. First, although the
ALJ did not provide clear and convincing reasons to discredit Ms. Whitman’s symptom
testimony, ambiguity remains as to her ability to perform normal ADLs.
Although the ALJ provided insufficient reasons to discredit Ms. Whitman’s testimony, it
is possible there are legally sufficient reasons to do so, just as there are plausible explanations
why Ms. Whitman’s ability to perform ADLs may not be consistent over time due to the nature
of her mental impairments, as the Ninth Circuit explained at length in Garrison. In any event,
soliciting further testimony from Ms. Whitman or Mr. Alfarosancho may be useful in resolving
some of the factual ambiguities surrounding the nature and extent of her impairments over time.

PAGE 25 – OPINION AND ORDER

Further investigation into the information provided by the medical sources of record may
also be helpful in resolving ambiguities. For example, Dr. McKenna opined that Ms. Whitman
might eventually be able to sustain regular work if she adhered to her treatment. Similarly,
although Ms. Bush opined that Ms. Whitman couldn’t work in January 2014, she did not
foreclose the possibility of work in the future, and noted Ms. Whitman had been “very
successful” in using coping methods. It may be appropriate to re-contact these medical sources
and determine whether their opinions are different after reviewing the entire record or if they can
provide further support for the functional limitations they assessed. It may also be appropriate to
solicit the opinion of another medical expert, who ideally would be able to administer
comprehensive psychological testing to provide a more concrete, objective basis for accepting or
rejecting the other medical source opinions of record. For these reasons, although the ALJ’s
decision cannot be affirmed due to legal error, serious doubt remains as to whether Ms. Whitman
is, in fact, disabled under the Act. Therefore, the appropriate remedy is to reverse the
Commissioner’s decision and remand the case with directions to reopen the record.
CONCLUSION
The Commissioner’s decision that Ms. Whitman was not disabled prior to June 25, 2011
is not based on proper legal standards, and the findings are not supported by substantial
evidence. The Commissioner’s decision is REVERSED and this case is REMANDED for further
proceedings.
IT IS SO ORDERED.
DATED this 2nd day of June, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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