Muccigrosso v. Commissioner Social Security Administration

Filing 29

OPINION AND ORDER - The Commissioner's decision is REVERSED and REMANDED for an immediate award of benefits. Signed on 11/13/2017 by Judge Marco A. Hernandez. (pg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DONALD PETER MUCCIGROSSO JR,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security Administration,
Defendant.

Merrill Schneider
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, Oregon 97293
Attorney for Plaintiff
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1 - OPINION & ORDER

No. 3:16-cv-01624-HZ
OPINION & ORDER

Billy Williams
United States Attorney
Janice Hebert
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Thomas Elsberry
Special Assistant United States Attorney
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant

HERNÁNDEZ, District Judge:
Plaintiff Donald Peter Muccigrosso, Jr. brings this action for judicial review of the
Commissioner’s final decision denying his application for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act and for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g)
(incorporated by 42 U.S.C. § 1382(c)(3)). The issues before the court are whether the
Administrative Law Judge (“ALJ”) erred by: (1) discounting Plaintiff’s symptom testimony; (2)
discounting the opinions of medical providers; (3) discounting lay witness testimony; and (4) by
relying on the Vocational Expert’s (“VE”) testimony that Plaintiff could perform certain jobs in
the national economy. Because the ALJ improperly discredited testimony that, when credited as
true, would warrant awarding benefits, the Court reverses the Commissioner’s final decision and
remands this case for an immediate award of benefits.
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2 - OPINION & ORDER

BACKGROUND
Plaintiff applied for DIB and SSI on August 3, 2010, alleging a disability onset date of
December 31, 2005. Tr. 607, 685. 1 Plaintiff’s application was denied initially and upon
reconsideration. Tr. 685. Plaintiff’s first administrative hearing was held before ALJ Riley Atkins
on December 12, 2012. Tr. 34. ALJ Atkins denied Plaintiff’s claims in a written decision issued
on December 21, 2012. Tr. 13. The Appeals Council denied review, rendering ALJ Atkins’s
decision final. Tr. 1–3. United States District Court Judge Michael McShane reversed the
Commissioner’s decision and remanded the case for further administrative proceedings on June
30, 2015. Tr. 684. Judge McShane ordered that upon remand:
1.

The ALJ shall revise [P]laintiff’s RFC to reflect functional
limitations on repetitive lifting, bending and stooping, and
sitting in a stationary position.

2.

The ALJ shall make new findings under step five of the
sequential evaluation and obtain supplemental VE
evidence.

Tr. 699. On March 22, 2016, Plaintiff appeared for his second administrative hearing before ALJ
Paul Robeck. ALJ Robeck issued a partially favorable decision, finding that Plaintiff was
disabled as of his fifty-fifth birthday, November 23, 2014. Tr. 617. ALJ Robeck also determined,
however, that Plaintiff was not disabled from December 31, 2010, through November 23, 2014.
Tr. 618–20. Plaintiff now seeks judicial review of that decision.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v.
1

“Tr.” refers to the administrative record transcript, filed here as ECF 13.

3 - OPINION & ORDER

Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
At the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines
whether the claimant has a “medically severe impairment or combination of impairments.”
Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not
disabled.
At step three, the Commissioner determines whether claimant’s impairments, singly or in
combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
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4 - OPINION & ORDER

THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since December 31, 2010. Tr. 607.
At step two, the ALJ determined that Plaintiff had the following severe impairments:
“status post ankle fusion/arthrodesis; right shoulder AC joint arthrosis; and degenerative disc
disease with a history of laminectomy in 2006[.]” Id.
At step three, the ALJ found that Plaintiff’s impairments or combinations of impairments
did not meet or equal the severity of one of the listed impairments. Tr. 609. Specifically, the ALJ
concluded that Plaintiff’s “physical impairment of degenerative disc disease does not meet or
medically equal the criteria of listing 1.04 (Disorders of the spine), or any listing in the Listing of
Impairments[.]” Id. The ALJ also concluded that Plaintiff’s ankle and shoulder conditions did
not meet or equal listing 1.02. Id.
Before step four, the ALJ determined that Plaintiff had the RFC to perform modified light
work with the following limitations:
[P]laintiff can lift and carry 20 pounds occasionally and 10 pounds
frequently. He can stand and walk with normal breaks
approximately 2 out of 8 workday hours and sit for approximately
6 out of 8 workday hours. The claimant cannot climb anything
other than stairs and ramps. The claimant can no more than
occasionally stoop and bend. The claimant cannot engage in work
at shoulder level or above. The claimant is unable to stand or sit in
any stationary position for more than two consecutive hours.
Tr. 609–10.
At step four, the ALJ determined that Plaintiff has been unable to perform any past
relevant work as a registered nurse since December 31, 2005. Tr. 617.
At step five, the ALJ determined that on November 23, 2009, Plaintiff’s age category
changed to an individual closely approaching advanced age and on November 23, 2014,

5 - OPINION & ORDER

Plaintiff’s age category changed again to an individual of advanced age. Id. Accordingly, the
ALJ found that prior to November 23, 2014, transferability of Plaintiff’s job skills was not
material to determining disability. Id. Beginning on November 23, 2014, however, the ALJ
found that Plaintiff had not been able to transfer job skills to other occupations. Therefore, the
ALJ concluded prior to November 23, 2014, given Plaintiff’s age, education, work experience,
and RFC, there were jobs that existed in the national economy in significant numbers that
Plaintiff could have performed Those jobs included: mail sorter; price marker; and packing line
worker. Tr. 617–18. The ALJ found that beginning on November 23, 2014, there were no jobs
that Plaintiff could perform and that he was disabled within the meaning of the Act. Tr. 619.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings are based on legal error or are not supported by substantial evidence in
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal
quotation marks omitted). Courts consider the record as a whole, including both the evidence that
supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational
interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal
quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
(“Where the evidence as a whole can support either a grant or a denial, [the court] may not
substitute [its] judgment for the ALJ’s.”) (internal quotation marks omitted).
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6 - OPINION & ORDER

DISCUSSION
Plaintiff contends that the ALJ’s decision was not supported by substantial evidence and
contains legal errors. Specifically, Plaintiff argues that the ALJ made the following four errors.
First, the ALJ improperly rejected Plaintiff’s subjective symptom testimony. Second, the ALJ
improperly discredited the medical opinions treating neurological surgeon Dr. Darrell Brett,
reviewing physician Dr. Mark Shoag, and examining physician Dr. Paolo Punsalan. Third, the
ALJ improperly discredited the lay testimony of Plaintiff’s friend, Lisa Cheeley. Lastly, the ALJ
improperly relied on VE testimony that did not incorporate all of Plaintiff’s limitations.
I.

Plaintiff’s Subjective Symptom Testimony
Plaintiff contends that the ALJ improperly rejected his testimony regarding the severity

and extent of his limitations. The ALJ is responsible for determining credibility. Vasquez, 572
F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between
the impairment and some level of symptoms, clear and convincing reasons are needed to reject a
claimant’s testimony if there is no evidence of malingering. Carmickle v. Comm. Soc. Sec.
Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is
malingering, “where the record includes objective medical evidence establishing that the
claimant suffers from an impairment that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on ‘clear and convincing reasons’”); see
also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (holding that if the claimant has
presented such evidence, and there is no evidence of malingering, then the ALJ must give
“specific, clear and convincing reasons in order to reject the claimant’s testimony about the
severity of the symptoms”) (internal quotation marks omitted).

7 - OPINION & ORDER

When determining the credibility of a plaintiff’s complaints of pain or other limitations,
the ALJ may properly consider several factors, including the plaintiff’s daily activities,
inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and
relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider the ability to perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of treatment for excessive pain. Id.
The ALJ may consider many factors in weighing a claimant’s
credibility, including (1) ordinary techniques of credibility
evaluation, such as the claimant’s reputation for lying, prior
inconsistent statements concerning the symptoms, and other
testimony by the claimant that appears less than candid; (2)
unexplained or inadequately explained failure to seek treatment or
to follow a prescribed course of treatment; and (3) the claimant’s
daily activities.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (internal quotation marks omitted).
As the Ninth Circuit further explained in Molina;
While a claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant’s testimony
when the claimant reports participation in everyday activities
indicating capacities that are transferable to a work setting[.] Even
where those activities suggest some difficulty functioning, they
may be grounds for discrediting the claimant’s testimony to the
extent that they contradict claims of a totally debilitating
impairment.
674 F.3d at 1112–13 (internal citations and quotation marks omitted).
The ALJ found that Plaintiff’s activities of daily living, record of conservative medical
treatment, and sporadic work history were inconsistent with Plaintiff’s subjective complaints.
An ALJ may use a claimant’s activities of daily living to find that the claimant may have
a greater level of activity than she claims. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).

8 - OPINION & ORDER

The ALJ found that Plaintiff’s “functional limitations are not as significant and limiting as
alleged.” Tr. 613. The ALJ explained:
For example, his daily activities are quite involved. The claimant
told his treating provider in December 2007 he was exercising in
an effort to lose weight. He testified he plays guitar in public for
tips. He carries his guitar. He lives independently. He performs
household chores. He shops in stores for groceries. He prepares
meals daily. He manages finances. He watches television. He
commutes by driving, receiving rides from others, and using public
transportation. He welcomes friends into his home. He visits coffee
shops regularly. These activities are consistent with the above
[RFC] and are inconsistent with the claimant’s allegations. They
suggest greater functioning than alleged in his application and
testimony.
Id. (internal citations omitted). Plaintiff testified that he is in an absolute state of “abject misery,”
suffering from pain that he described as 10 out of 10. Tr. 60, 610. He claimed that he was unable
to stand or sit for more than few minutes without pain. Tr. 10, 59, 237. He also stated that he
could not reach overhead, had a very limited range of motion with his arms, and that he could
hardly lift a gallon of milk. Tr. 61–62.
The ALJ rationally interpreted the evidence to conclude that Plaintiff’s activities of daily
living contradicted Plaintiff’s testimony about his symptoms. For example, Plaintiff’s testimony
that he could play guitar, drive a car, and go grocery shopping belied his claims that he could not
sit or stand for more than a few minutes and that he experienced severe weakness and numbness
in his arms and hands. Accordingly, this was a legitimate basis for the ALJ to discount
Plaintiff’s allegations.
Second, the ALJ found that Plaintiff’s subjective complaints were not completely
consistent with his medical treatment record. Evidence of conservative treatment can support an
ALJ’s adverse credibility determination. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). The
ALJ explained:

9 - OPINION & ORDER

While the claimant asserts numerous subjective complaints, the
record reveals he has received only conservative and routine
treatment in recent years. He has taken Tylenol, Ibuprofen, and
marijuana to treat pain more recently, but claims he cannot afford
cannabis now. There is no medical marijuana card in evidence.
Despite chronic marijuana use, the claimant testified he
“absolute[ly] live[s] in abject misery with his pain.” He continued,
“I know what living in pain is, and it’s . . . it’s my life.” His
testimony indicates he has continued to use marijuana without a
medical marijuana card even though it has no effect on his level of
pain. The medication in this case is therefore not consistent with
the alleged severity of his impairments. He testified he does not
use prescribed pain medication because the side effects are worse
than the underlying condition. His conservative treatment does not
reveal the need for a functional limitation greater than indicated in
the residual functional capacity.
Tr. 613–614. Plaintiff argues that the medical record supports his claimed functional limitations.
The Court recognizes that the ALJ’s analysis of Plaintiff’s course of treatment focuses solely on
Plaintiff’s pain allegations. The ALJ did not discuss how Plaintiff’s testimony regarding his
functional limitations was contradicted by conservative treatment. Furthermore, Plaintiff testified
that he did not take pain medication because he could not afford it and because it “ruined” his
digestive system. Tr. 59–60. In Carmickle, the Ninth Circuit determined that the ALJ had erred
in concluding that the plaintiff’s use of Ibuprofen belied his pain testimony where the plaintiff
testified that he did not take other pain medication because of the adverse side effects.
Carmickle, 533 F.3d at 1162. Plaintiff suffered from gastroesophageal reflux disease and irritable
bowel syndrome. Tr. 870. A review of the medical record shows that on multiple occasions
Plaintiff expressed to medical providers that he did not want to use narcotics for pain even
though he was in severe pain. Tr. 866, 949. The ALJ failed to address Plaintiff’s reasons for not
using prescribed pain medication. Otherwise, the ALJ did not provide substantial evidence
supporting the determination that Plaintiff’s testimony regarding his functional limitations was

10 - OPINION & ORDER

contradicted by a conservative course of treatment. Accordingly, the ALJ erred in relying on a
conservative course of treatment as a basis for discounting Plaintiff’s testimony.
Third, the ALJ found that Plaintiff had a “sporadic work history” that suggests that
Plaintiff is not “motivated to work consistently.” Tr. 614. Evidence of an “extremely poor work
history” can show that the plaintiff has “little propensity to work in her lifetime.” Thomas, 278
F.3d at 959. The ALJ recited Plaintiff’s “limited earnings even before the alleged onset of
disability.”
He earned $1,874 in 1992, $111 in 1993[,] $2,484 in 1994, $5,203
in 1999, $14 in 2000, $4,877 in 2001, $12,641 in 2002, $13,311 in
2003, $29,066 in 2004, and $10,842 in 2005. He had no earnings
in 1995 through 1998.
Tr. 614. The Court notes that between 1996 and 1999, Plaintiff attended nursing school and on
May 18, 1998, Plaintiff injured his right shoulder in a motorcycle accident. Tr. 695. While some
of the gaps in Plaintiff’s earning history are explained by his time spent in school and
recuperating from injuries, it was rational for the ALJ to conclude based on Plaintiff’s overall
earning history that “factors other than his alleged impairments affect his ability to maintain full
time employment.” Tr. 614. Plaintiff’s earning history was consistently poor and there were
unexplained periods when he had no earnings. Tr. 199–200, 695–96.
On balance, the ALJ’s reasons for rejecting Plaintiff’s testimony are sound and supported
by substantial evidence in the record. The Court, therefore, affirms the ALJ’s overall adverse
credibility determination even though it does not accept all of the ALJ’s proffered reasons for
rejecting Plaintiff’s complaints. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197–
98 (9th Cir. 2004) (upholding the ALJ’s credibility determination while not accepting all of the
ALJ’s reasons for rejecting the claimant’s testimony); Carmickle, 533 F.3d at 1168 (holding that
the “relevant inquiry” in the credibility context is “not whether the ALJ would have made a

11 - OPINION & ORDER

different decision absent any error, it is whether the ALJ’s decision remains legally valid, despite
such error”).
II.

Medical Opinions
Plaintiff argues that the ALJ erred by according less than full weight to the medical

opinions of Drs. Brett, Shoag, and Punsalan. Social security law recognizes three types of
physicians: (1) treating; (2) examining; and (3) nonexamining. Garrison v. Colvin, 759 F.3d 995,
1012 (9th Cir. 2014). Generally, more weight is given to the opinion of a treating physician than
to the opinion of those who do not actually treat the claimant. Id.; 20 C.F.R. §§ 404.1527(c)(1)–
(2), 416.927(c)(1)–(2). And, more weight is given to an examining physician than to a
nonexamining physician. Garrison, 759 F.3d at 1012.
If the treating physician’s medical opinion is supported by medically acceptable
diagnostic techniques and is not inconsistent with other substantial evidence in the record, the
treating physician’s opinion is given controlling weight. Ghanim v. Colvin, 763 F.3d 1154, 1160
(9th Cir. 2014); Orn, 495 F.3d at 631. If the treating physician’s opinion is not contradicted by
another doctor, the ALJ may reject it only for “clear and convincing” reasons supported by
substantial evidence in the record. Ghanim, 763 F.3d at 1160–61.
Even if the treating physician’s opinion is contradicted by another doctor, the ALJ may
not reject the treating physician's opinion without providing “specific and legitimate reasons”
which are supported by substantial evidence in the record. Id. at 1161; Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005). And, when a treating physician's opinion is not given
“controlling weight” because it is not “well-supported” or because it is inconsistent with other
substantial evidence in the record, the ALJ must still articulate the relevant weight to be given to

12 - OPINION & ORDER

the opinion under the factors provided for in 20 C.F.R. §§ 404.1527(c)(2)–(6), 416.927(c)(2)–
(6); Id. at 1161; Orn, 495 F.3d at 632–33.
“‘The opinion of a nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an examining physician or a treating
physician.’” Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir.2012) (quoting Lester v. Chater, 81
F.3d 821, 831 (9th Cir. 1996)).
A.

Dr. Brett
Dr. Brett, a neurological surgeon, was Plaintiff’s treating provider. Plaintiff met with Dr.

Brett between May and October of 2006 to treat back and leg pain resulting from a December 8,
2005 car accident. Tr. 295–307. On June 14, 2006, Dr. Brett performed an extensive lumbar
laminectomy on Plaintiff. Tr. 305. On June 22, 2006, after a follow-up appointment, Dr. Brett
wrote:
[Plaintiff] returns today doing very nicely with resolution of all
radicular pain, and he is very pleased with the results of surgery.
He has no objective neurological deficit. His wounds are healing
well. . . . He should remain off work and can gradually increase his
activities at home, and he was given instructions regarding
abdominal and back strengthening exercises and the principles of
back mechanics.
Tr. 294. Dr. Brett reassessed Plaintiff on August 29, 2006. Id. After that meeting, Dr. Brett wrote
that Plaintiff could return to modified light work “provided he not lift or carry more than 25 lbs.,
perform any repetitive lifting, bending, or stooping, or be required to sit or stand in a stationary
position for more than two consecutive hours. I expect these will be permanent restrictions.” Id.
Dr. Brett later increased Plaintiff’s lifting restriction to 35 pounds. Tr. 313.
The ALJ accorded Dr. Brett’s opinion “little weight,” explaining that:
Other than Dr. Brett’s assessment that the claimant could not
return to a nursing position, being limited to essentially an overall

13 - OPINION & ORDER

light exertional level, and being unable to stand or sit in any
stationary position for more than two consecutive hours, I give this
opinion little weight. Dr. Brett’s assessment of the claimant being
unable to perform any repetitive bending, lifting, or stopping [sic]
is inconsistent with the claimant’s sporadic work history or robust
activities of daily living described above. It is also inconsistent
with the claimant the overall medical evidence record concerning
the claimant’s back, including the fact that surgery was noted to
have resolved the claimant’s radicular pain, no subsequent
objective neurological deficits and the fact that the claimant’s pain
was controlled except after an exacerbation caused by heavy
lifting, and with respect to the claimant’s shoulder, the absence of
surgery, a physical examination revealed only marginal weakness,
and the claimant’s pain being controlled with marijuana.
Tr. 615 (internal citations omitted).
The Court finds that Dr. Brett’s opinion was supported by medically acceptable
diagnostic techniques, consistent with substantial evidence in the medical record, and therefore
entitled to controlling weight. Dr. Brett met with Plaintiff at least eight times within a several
month period in 2006 and was the physician with the most knowledge about Plaintiff’s
conditions. Dr. Brett’s opinion was consistent with the myelogram of Plaintiff’s spine, a CT scan
that he conducted, and a review of a prior MRI. Tr. 298. Dr. Brett’s opinion was also consistent
with the opinions of other medical providers in the record. For example, Dr. Shoag, a nonexamining physician, adopted Dr. Brett’s limitation that Plaintiff could not perform any
repetitive lifting, bending, and stooping. Tr. 294, 296, 1171. Dr. Punsalan, an examining
physician, also confirmed Dr. Brett’s assessment of Plaintiff’s limitations. Tr. 1174–75, 1180.
Indeed, the previous ALJ who reviewed the same medical opinion and supporting diagnostic
evidence wrote: “I give this opinion great weight because it is consistent with the record as a
whole. As the claimant’s treating provider, who has observed the claimant’s impairments over
time, Dr. Brett is in an advantageous position from which to assess functional capacity.” Tr. 25.

14 - OPINION & ORDER

While Plaintiff’s activities of daily living and sporadic work activity were sufficient to
support the ALJ’s decision to discredit Plaintiff’s subjective complaints, those same reasons
were not sufficiently clear and convincing enough to warrant discrediting the uncontradicted
opinion of the treating surgeon whose assessment was consistent with the overall medical record.
The activities that the ALJ identified, such as playing guitar, driving, and grocery shopping, were
not inconsistent with Dr. Brett’s assessment of Plaintiff’s limitations. Furthermore, Plaintiff’s
prior work history, while relevant to Plaintiff’s motivation, has no bearing on Dr. Brett’s
assessment of Plaintiff’s functional limitations and did not therefore form a legitimate basis for
the ALJ to reject Dr. Brett’s medical opinion. Accordingly, the Court concludes that the ALJ
erred by according Dr. Brett’s opinion “little weight.”
B.

Dr. Shoag
Next, Plaintiff argues that the ALJ improperly accorded little weight to the opinion of

non-examining physician Dr. Shoag. Dr. Shoag reviewed Plaintiff’s medical records, including
Dr. Brett’s treatment notes and opinion, and concluded that Plaintiff met Listing 1.04 as of May
15, 2006. Tr. 1170. Dr. Shoag opined, in part, that Plaintiff had the following functional
limitations as of December 31, 2010:
He would have at that time been limited to standing and walking
for a total of two hours in an eight hour work day, lifting and
carrying less than 10 lbs occasionally and frequently, and never
performing any repetitive lifting, bending, and stooping. The
restriction as to standing and walking only two hours in an eight
hour day is based on both his back and right ankle pain. The lifting
and carrying limit is based on my opinion that she should have
lifted little weight (1-2 lbs) with the right arm and no more than 10
lbs total should have been lifted with both arms because that would
have exacerbated his back pain. He was limited to only
occasionally . . . reaching in all directions on the right side
(overhead and at right shoulder height). He also would have been
precluded from sitting for more than two consecutive hours. He

15 - OPINION & ORDER

should not have stood or walked for more than 20 minutes at a
time.
Tr. 1171 (emphasis added).
The ALJ accorded Dr. Shoag’s opinion “little weight” because Dr. Shoag “never
examined the claimant, and the restrictions he proposes, included limitations to unskilled work,
exceed those of even the claimant’s treating providers.” Tr. 615. The ALJ also argued that Dr.
Shoag’s opinion was inconsistent with Plaintiff’s “robust” activities of daily living and sporadic
work history discussed above. Id. The ALJ elaborated:
It also does not square with the overall medical evidence record
concerning the claimant’s back, including the fact that surgery was
noted to have resolved the claimant’s radicular pain, no subsequent
objective neurological deficits and the fact that the claimant’s pain
was controlled except after an exacerbation caused by heavy
lifting, and with respect to the claimant’s shoulder, the absence of
surgery, a physical examination revealing only marginal weakness,
and the claimant’s pain being controlled with marijuana.
Id.
It was legitimate for the ALJ to accord Dr. Shoag’s opinion little weight to the extent that
it included lifting limitations that were inconsistent with what other medical sources claimed.
Morgan, 169 F.3d 602; 20 C.F.R. §§ 404.1527(c)(4). Dr. Shoag, a non-examining medical
source, opined that Plaintiff as limited to lifting no more than ten pounds occasionally or
frequently, whereas Dr. Brett, the treating surgeon, opined that Plaintiff could lift thirty-five
pounds. Tr. 313, 1171. While the ALJ accorded Dr. Brett’s opinion little weight as well, he did
not specifically reject Dr. Brett’s opinion regarding Plaintiff’s lifting limitations and it was
permissible for the ALJ to give Dr. Brett’s opinion greater weight than Dr. Shoag’s opinion in
this instance.

16 - OPINION & ORDER

Dr. Shoag’s opinion was consistent with Dr. Brett’s opinion regarding Plaintiff’s
limitations in: standing; sitting; and repetitive lifting, bending, and stooping. Tr. 294, 1171. For
the same reasons discussed above regarding Dr. Brett, it was not legitimate for the ALJ to rely on
Plaintiff’s activities of daily living and work history to reject Dr. Shoag’s opinion about these
limitations. See supra Part I.A. The ALJ did not specifically explain how Plaintiff’s activities of
daily living or work history were inconsistent with Dr. Shoag’s opinion about Plaintiff’s postural
and repetitive lifting, bending, and stooping limitations.
Lastly, the ALJ accorded Dr. Shoag’s opinion little weight on the ground that it did “not
square with the overall medical evidence record concerning [Plaintiff’s] back.” Tr. 615. The ALJ
noted that the medical record showed that surgery resolved Plaintiff’s radicular pain and that
there were no subsequent objective neurological deficits. Id. Dr. Shoag’s opinion regarding
Plaintiff’s postural and repetitive lifting, bending, and stooping limitations was consistent with
the medical record and the opinions of Drs. Brett and Punsalam. Dr. Shoag’s opinion was based
on a review of nearly all of the medical evidence contained in the administrative record. Tr. 1170
(stating that he “had the opportunity to review [Plaintiff’s] medical records, including Exhibits
1F–23F”). Regarding radicular pain, on March 3, 2015, Dr. Punsalan wrote that for more than
half of his hour-long meeting with Plaintiff, “the time was spent counseling the patient regarding
chronic remittent radicular low back pain” among other back and spinal issues. Tr. 1115–16.
While Dr. Brett did note in late June of 2006 that surgery resolved Plaintiff’s radicular pain, on
October 12, 2006, Dr. Brett wrote that Plaintiff returned “still having low back discomfort, worse
on the left.” Tr. 296. Given that Dr. Shoag’s opinion was consistent with rather than inconsistent
with the medical record as a whole, the Court finds that the ALJ’s did not give specific or

17 - OPINION & ORDER

legitimate reasons supported by substantial evidence in the record to accord his opinion little
weight.
C.

Dr. Punsalan
Dr. Punsalan, an examining provider who works at the OHSU Spine Center, first met

with Plaintiff in March 2015. Dr. Punsalan wrote his opinion on March 7, 2016, in response to
Plaintiff’s attorney-generate questionnaire. Tr. 1174–78. The ALJ gave Dr. Punsalan’s opinion
“some weight.” Tr. 615–16. When Prompted to asses Plaintiff’s limitations as of December 12,
2006, Dr. Punsalan wrote that he agreed with Dr. Brett’s assessment of Plaintiff’s thirty-five
pound lifting limitation as well as Plaintiff’s repetitive lifting, bending, and stooping limitations.
Tr. 1174–75. Further, Dr. Punsalan agreed with Dr. Brett that Plaintiff could not sit or stand for
more than two consecutive hours. Id. When prompted to evaluate Plaintiff’s limitations based on
his right upper extremity, Dr. Punsalan declined and wrote that the assessment was not within his
specialty. Tr. 1176. He also wrote: “Regarding patient function before I personally evaluated
patient, difficult to give opinion as patient had multiple issues during this period, orthop[]edic
and otherwise that could have affected his function to greatly varying degrees.” Tr. 1178. The
ALJ gave Dr. Punsalan’s opinion “some weight.” The ALJ explained:
The opinion was rendered after the established onset date,
however, and Dr. Punsalan stated he had not even commenced
treating the claimant until after the established onset date. While
Dr. Punsalan stated initially that he agreed with Dr. Brett’s
opinion, later he appears to equivocate and even recant such
assessment.
Tr. 616. An ALJ is “not required to incorporate limitations phrased equivocally into the RFC.”
Collum v. Colvin, No. 6:13-cv-01173-AA, 2014 WL 3778312, *4 (D. Or. July 30, 2014) (citing
Valentine, 574 F.3d at 691–92). For example, an ALJ may reject functional limitations prefaced
with language such as “might,” “may,” or “would also likely require.” Id. (citing Glosenger v.

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Comm’r Soc. Sec. Admin, No. 3:12-cv-1773-ST, 2014 WL 1513995, *6 (Apr. 16, 2014)).
Statements including such language may be excluded by an ALJ because they are not diagnoses
or descriptions of a plaintiff’s functional capacity. See Valentine, 574 F.3d at 691–92 (upholding
the ALJ’s rejection of an equivocal medical observation because it was “neither a diagnosis nor a
statement of [the plaintiff’s] functional capacity” and finding that it was “rather a recommended
way for [the plaintiff] to cope with his PTSD symptoms”).
Here, Dr. Punsalan did not make any equivocal statements about Plaintiff’s limitations.
He said from the outset, based on the medical record and his own treatment of Plaintiff, that
Plaintiff was limited to lifting no more than thirty-five pounds; could not do any repetitive
lifting, bending, or stooping; and could not sit or stand for more than two consecutive hours. Tr.
1175. Dr. Punsalan then refused to opine about any further limitations as of December 31, 2010,
based on Plaintiff’s right upper extremity because such an assessment was not within his
specialty at the OHSU Spine Center. Tr. 1176. There are no equivocal statements from Dr.
Punsalan in the record, such as any “possible” limitations that Plaintiff’ “might” have. See
Burrell v. Colvin, 775 F.3d 1133, 114 (9th Cir. 2014). Rather, Dr. Punsalan explained that he
would not opine about limitations outside of his area of expertise and merely suggested that other
issues “could have” affected Plaintiff’s functioning. Tr. 1178. It was not, therefore, a rational
interpretation of the record to conclude that Dr. Punsalan made equivocal statements about
Plaintiff’s limitations. Accordingly, the ALJ did not provide specific and legitimate reasons for
discrediting Dr. Punsalan’s opinion.
III.

Lay Witness Testimony
Lastly, Plaintiff challenges the ALJ’s treatment of the lay testimony of Ms. Cheeley,

Plaintiff’s friend. “In determining whether a claimant is disabled, an ALJ must consider lay

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witness testimony concerning a claimant’s ability to work.” Stout v. Comm’r of Soc. Sec. Admin.,
454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)).
Lay witness testimony cannot be disregarded without comment and the ALJ must give germane
reasons for discounting such testimony. Molina, 674 F.3d at 1114. Germane reasons must be
specific. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (citing Stout, 454 F.3d at 1053).
Germane reasons for discounting lay witness testimony include: conflicts with medical evidence
and inconsistency with the plaintiff’s daily activities. Lewis v. Apfel, 236 F.3d 503, 511–12 (9th
Cir. 2001). Another germane reason to discredit lay testimony is that it is substantially similar to
the claimant’s validly discredited allegations. Valentine, 574 F.3d at 694.
Ms. Cheeley completed her third-party function report on October 27, 2010. Tr. 234. She
stated that she had known Plaintiff for eighteen months. During that time she: visited Plaintiff
several times a week; watched TV with him; and helped him with chores and groceries. Tr. 227.
With respect to Plaintiff’s functioning, Ms. Cheeley wrote that Plaintiff “lives with severe
chronic pain that limits his mobility and ability to walk, stand, and sit to a few minutes at a time.
His right shoulder injury is so severe he can barely lift his right arm and these injuries make it so
he can not [sic] work.” Id. Regarding Plaintiff’s mobility, Cheeley stated that after walking 100
yards Plaintiff would need to rest for five to ten minutes and that he would often wear an ankle
brace. Tr. 232–33. In addition, she stated that Plaintiff would go shopping for light household
supplies and groceries two to three times a week for an hour or two. Tr. 230. Ms. Cheeley also
indicated that Plaintiff’s conditions affected his abilities to lift, squat, bend, stand, reach, walk,
sit, kneel, climb stairs, concentrate, and complete tasks. Tr. 232.
The ALJ gave Cheeley’s testimony “some weight” finding that it was “generally
consistent with the record.” Tr. 616. The ALJ elaborated:

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However, the evidence shows the claimant is able to walk. For
example, he does not own a car. He is able to carry his guitar to
coffee shops and public markets, where he performs for tips. He
shops in stores for groceries. There is no indication that he uses a
motorized carts [sic] when spending two hours shopping for food.
It is unclear how he spends two to three hours a day playing guitar
in public if he cannot stand or sit for more than a few minutes at a
time.
Tr. 616. The Court finds that the ALJ did not give germane reasons sufficient to discount
Cheeley’s testimony. First, Cheeley’s testimony was not inconsistent with the ALJ’s conclusion
that Plaintiff could walk. Rather, Cheeley merely stated that Plaintiff often wore an ankle brace
and had to take frequent breaks after walking short distances. Tr. 232–33. Cheeley did not state
that Plaintiff was unable to walk as the ALJ implies. Tr. 515. Second, the ALJ’s statement that
Plaintiff did not use a motorized cart to shop is outside the scope of the record and unrelated to
Cheeley’s testimony.
Moreover, the Court does finds that the ALJ gave a germane reason for discounting
Cheeley’s testimony regarding Plaintiff’s ability to sit. Cheeley stated that Plaintiff could only sit
for a few minutes at a time; however, she also testified that he would watch TV for hours and
play guitar at a coffee shop four to five times a week for two to three hours. Tr. 227, 231. Ms.
Cheeley did explain that Plaintiff suffered pain while playing guitar and could not do it for as
long as he used to be able to. The ALJ rationally interpreted the evidence to conclude that
Plaintiff’s activities of daily living involving sitting contradicted Cheeley’s testimony that
Plaintiff could only sit for a few minutes at a time.
On balance, while the ALJ gave a germane reason for discounting Cheeley’s testimony
regarding Plaintiff’s sitting functionality; his other reasons described above were not germane to
Cheeley and when considered together, provided an insufficient basis for discounting Cheeley’s
testimony regarding Plaintiff’s other functional limitations.

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IV.

Remand
Because the Court concludes that the ALJ’s decision contained harmful legal errors and

was not supported by substantial evidence in the record, the remaining question is whether this
case should be remanded for further administrative proceedings or an immediate award of
benefits. Harman v. Apfel, 211 F.3d 1172, 1177–78 (9th Cir. 2000). The Ninth Circuit applies the
“credit-as-true” rule for determining whether remand for an immediate award of benefits is
proper. Garrison, 759 F.3d at 1020. Each of the following must be satisfied to justify an
immediate award of benefits:
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed
to provide legally sufficient reasons for rejecting evidence,
whether claimant testimony or medical opinion; and (3) if the
improperly discredited evidence were credited as true, the ALJ
would be required to find the claimant disabled on remand.
Id. Even if those requirements have been met, the district court retains the flexibility to remand
the case for further proceedings, particularly where the record as a whole creates serious doubts
that the claimant is disabled. Burrell, 775 F.3d at 1141. Regarding the first factor, the Court finds
that the record in this case—after reaching the District of Oregon for the second time—has been
fully developed. On first remand, Judge McShane directed the ALJ to revise Plaintiff’s RFC
regarding his limitations in repetitive lifting, bending, stooping, and sitting in a stationary
position. Tr. 6. The record regarding those limitations has been developed. All three of the
medical providers discussed above opined that Plaintiff could not perform any repetitive lifting,
bending, or stooping. Regarding the second factor, the Court finds that the ALJ provided legally
insufficient reasons for rejecting medical opinions and lay testimony. Furthermore, there are no
outstanding issues requiring resolution.

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Regarding the third factor, had the ALJ incorporated the limitations described in the
improperly rejected testimony, the ALJ would be required to find Plaintiff disabled. The VE
testified at Plaintiff’s second administrative hearing that all three of the jobs that Plaintiff could
perform required frequent lifting, reaching, handling, fingering, and feeling. Tr. 647–48. Dr.
Brett, Shoag, and Punsalan’s improperly rejected testimony could not perform any repetitive
lifting, bending, or stooping. Considering this testimony and a record as a whole, substantial
evidence supports Plaintiff’s entitlement to benefits.
Furthermore, a second remand for additional administrative proceedings would allow
“the Commissioner to decide the issue again and create an unfair ‘heads we win; tails, let’s play
again’ system of disability benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th
Cir. 2012) (citing Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004)). “Remanding a
disability claim for further proceedings can delay much needed income for claimants who are
unable to work and are entitled to benefits, often subjecting them to ‘tremendous financial
difficulties while awaiting the outcome of their appeals and proceedings on remand.’” Id.
(quoting Varney v. Sec’y of Health & Human Servs., 859 F.2d. 1396, 1398 (9th Cir. 1998)).
Because Plaintiff is already of an advanced age and has experienced a seven-year delay in his
application, any further remand of this case would unfairly delay effectuating the purpose of the
Act and cause Plaintiff financial hardship.
//
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//
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CONCLUSION
The Commissioner’s decision is reversed and remanded for an immediate award of
benefits.
IT IS SO ORDERED.

Dated this

day of ________________, 2017

MARCO A. HERNÁNDEZ
United States District Judge

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