McNair v. Commissioner Social Security Administration

Filing 23

OPINION and ORDER - The Commissioner's decision denying Plaintiff's application for SSI is REVERSED and REMANDED for further proceedings consistent with this opinion. DATED this 10th day of April, 2018, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

SHANNA MCNAIR,

Case No.: 3: 17-cv-00280-AC
Plaintiff,

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

D. JAMES TREE
Tree Law Offices
3711 Englewood Avenue
Yakima, WA 98902
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
District of Oregon
1000 S.W. Third Ave., Suite 600
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OPINION AND ORDER

Portland, OR 97204-1011
BENJAMIN GROEBNER
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MIS/ 221A
Seattle, WA 98104-7075
Attorneys for Defendant
ACOSTA, Magistrate Judge:
Introduction
Shanna McNair ("Plaintiff') seeks judicial review of a final decision by the Commissioner
of Social Security ("Commissioner") denying her application for Title XVI Supplemental Security
Income ("SSI") under the Social Security Act ("Act"). All parties have consented to allow a
Magistrate Judge to enter final orders and judgment in this case in accordance with Fed. R. Civ. P.
73 and28 U.S.C. § 636(c). Forthereasonsthatfollow, the Commissioner's decision is REVERSED
and REMANDED for additional proceedings.
Procedural Background
Plaintiff protectively filed for SSI on July 19, 2011, alleging disability beginning August 28,
2010. (Tr. 94.) After the Commissioner denied her application initially and upon reconsideration,
Plaintiff requested a hearing before an Administrative Law Judge ("ALJ''). (Tr. 104, 116-17, 149.)
A hearing was held via video teleconference on January 24, 2013. Plaintiff, represented by counsel,
testified. (Tr. 149.) Paul Prachyl, a vocational expert ("VE") and Stephanie Boyce ("Ms. Boyce"),
Plaintiffs daughter, also testified. (Tr. 35-93 .) On March 19, 2013, the ALJ issued an unfavorable
decision, finding Plaintiff not disabled. (Tr. 17-30.) The Appeals Council denied Plaintiffs request
for review, making the ALJ's decision final. (Tr. 1.) Plaintiff filed a complaint for review of the
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Commissioner's final decision in the United States District Court for the Eastern District of
Washington, resulting in a remand for additional proceedings pursuant to sentence four of 42 U.S. C.
§ 405(g). (Tr. 584-99.) On May 3, 2016, a second hearing before the ALJ was convened, but not
completed, due to the late receipt of additional medical records. (Tr. 538-48.) On August 16, 2016,
the ALJ held a full hearing via video teleconference. (Tr. 482.) Plaintiff, Ms. Boyce, and VE, Ann
Jones, testified. (Tr. 506-35.) On November 22, 2016, the ALJ issued another unfavorable opinion
finding Plaintiff not disabled, making it the final decision of the Commissioner. (Tr. 4 79-96); 20
C.F.R. §§ 416.1483-416.1484. Plaintiff filed this complaint for review of the Commissioner's final
decision on Februaiy 17, 2017.
Factual Background
Born on February 15, 1964, Plaintiff was 4 7 years old when she filed her SSI application and
52 years old atthe second administrative hearing. (Tr. 94, 488.) Plaintiff completed her GED and
has past work as an in-home health care provider and convenience store cashier. (Tr. 214-15, 218.)
She alleges disability due to low back pain, depression, anxiety, irritable bowel disease, memory
loss, extreme fatigue, joint pain, muscle weakness, and loss of concentration. (Tr. 95.)
Standard of Review
The comi must affirm the Commissioner's decision if it is based on proper legal standards
and the findings are supported by substantial evidence in the record. Hammockv. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh
"both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez
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v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "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." Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not less
than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First, the
Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert,
482 U.S. at 140; 20 C.F.R. § 416.920(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe
impairment or combination ofimpairments." Yuckert, 482 U.S. at 140--41; 20 C.F.R. § 416.920(c).
If the claimant does not have a medically determinable, severe impairment, he is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either
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 140--41; 20 C.F.R. § 416.920(d). If so, the claimant is presumptively disabled; if not,
the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissionerresolves whether the claimant can still perform "past relevant
work." 20 C.F.R. § 416.920(±). If the claimant can work, she is not disabled; if she cannot perfmm
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past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must
establish that the claimant can perform other work existing in significant numbers in the national or
local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 416.920(g). If the Commissioner meets
this burden, the claimant is not disabled. 20 C.F.R. § 416.966.

The ALJ's Findings
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
since her application date. (Tr. 485.)
At step two, the ALJ found that Plaintiff had the following severe impairments: disorder of
the gastrointestinal systems; disorders of muscle, ligament, and fascia; osteoarthritis and allied
disorders; degenerative disc disease; other unspecified arthropathies; chronic obstructive pulmonaiy
disorder (COPD); affective disorders; and obesity. (Tr. 485.)
The ALJ found anxiety to be non-severe, noting "evidence fails to establish the claimant's
anxiety would have more than minimal limitations on her ability to perform basic work activities."
(Id.) Further, the ALJ determined that fibromyalgia was not a medically-determinable impairment.
(Id.) Noting that Plaintiff.s primaiy symptom allegations with regards to fibromyalgia are fatigue

and body pain, the ALJ found that even if the condition was medically determinable, it would not
cause any additional limitations beyond those already accounted for in the residual functional
capacity ("RFC") determination. (Id.)
At step three, the ALJ determined that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled a listed impairment. (Tr. 486-87.)
Next, the ALJ assessed Plaintiffs RFC and found that she could perform unskilled, light
work as defined in 20 C.F.R § 416.967(b), except that she "is not able to perform at a production rate
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pace (e.g., assembly line work, i.e., where pace is mechanically controlled) but can perform goaloriented work (e.g., office cleaner or those tasks where pace is more controlled by the worker)." (Tr.
487.) Plaintiff is expected to be "off-task" about ten percent of the time in an eight-hour work day
and her "work tasks should not cany her more than five minutes from a restroom, such as having to
travel from one job site to another." (Tr. 487-88.)
At step four, the ALJ found that Plaintiff is unable to perform past relevant work as a home
attendant. At step five, based on the testimony of the VE, the ALJ determined that Plaintiff could
perform work as a cashier II, fast food worker, and cleaner/housekeeper, all of which exist in
significant numbers in the national economy. (Tr. 495.) The ALJ therefore concluded that Plaintiff
was not disabled. (Id.)
Discussion
Plaintiff alleges the ALJ et1"ed by: (1) improperly discrediting Plaintiffs subjective symptom
allegations; (2) improperly assessing medical opinion evidence; (3) improperly discrediting lay
witness testimony; (4) failing to recognize fibromyalgia as a medically determinable impairment ·at
step two; and (5) failing to appoint a medical expert .

.L.

Plaintiffs Subjective Symptom Testimony
If "there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's

testimony about the severity of her symptoms only by offering specific, clear and convincing reasons
for doing so."' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v.
Chafer, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not
credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence
suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The
PAGE 6 - OPINION AND ORDER

reasons proffered must be "sufficiently specific to permit the reviewing comi to conclude that the
ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th
Cir. 1995) (internal citation omitted).
Examples of clear and convincing reasons include conflicting medical evidence, effective
medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or
between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, a
sparse work history, testimony that is vague or less than candid, and testimony about the nature,
severity and effect of the symptoms complained of from physicians and third parties. Tommasetti,
533 F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec.

Admin., 119 F.3d 789, 792 (9th Cir. 1997).
A.

Pain Symptoms

Plaintiff argues the ALJ erred by discrediting her subjective pain allegations based solely on
a lack of objective medical evidence. An ALJ may not discredit a claimant's subjective symptom
allegations based solely on a lack of medical evidence; however, it may be considered among other
factors. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
In her disability application, Plaintiff stated that she needed to lie down frequently and use
a heating pad for pain. (Tr. 227.) She indicated that her pain prevented her from doing things that
required bending, such as getting laundry out of the dryer, putting the dog food bowl on the floor,
and shaving her legs; she also stated that she needed a raised toilet seat. (Tr. 227-28.) Likewise, at
the January 2013 hearing, Plaintiff testified that she was unable to physically life her four-year-old
granddaughter due to back pain. (Tr. 61.) She fmiher testified that her pain symptoms began in her
low back but that she now had pain in her joints, primarily on her left side. (Tr. 57.) Plaintiff also
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testified that she had to lie down a dozen times a day and used a heating pad so frequently that she
had "fried" the skin on her back. (Tr. 58-59.) Although she was able to stand and do the dishes for
up to fifteen minutes, Plaintiff endorsed the need to lie down for twenty minutes to an hour due to
pain afterwards. (Id.) Plaintiff testified that she had tried, unsuccessfully, alternating ice with heat,
physical therapy, exercises given to her by emergency room ("ER") staff, and Icy Hot to alleviate her
back pain. (Tr. 59.)
At the August 2016 hearing, Plaintiff testified that, "my skin, my bones, everything hurts"
and that her pain was a ten-out-of-ten without medication, and somewhere between and five- and
seven-out-of-ten with pain medication. (Tr. 517.) Plaintiff testified that she exercised by walking
up and down the stairs at her daughter's house two to three times, but when she is not at her
daughter's house she did not exercise. (Tr. 523-24.)
The ALJ found that the objective medical record did not support the intensity, persistence,
and limiting effects of Plaintiffs pain allegations, noting that imaging had revealed only mild
abnormalities or degenerative changes. (Tr. 488-89.) In February 2015, a pelvic x-ray revealed an
osteoarticular abnormality, mild evidence of osteoatihritis in both hips, and a displaced symphysis
pubis. (Tr. 800.) Bilateral knee x-rays revealed evidence of osteoaiiicular abn01malities, narrowing
medial joint spaces, and moderate osteoarthritis in the left knee with mild to moderate osteoarthritis
in the right knee. (Id.) In March 2015, an MRI of the lumbar spine revealed some discogenic
changes and mild facet atihritis without significant central canal stenosis or neural foraminal
narrowings. (Tr. 863.) MRI and CPT scan imaging in 2011 also revealed mild findings in the
lumbar spine, shoulders, and knees, and an EMG nerve conduction study showed normal findings.
(Tr. 417-23.)
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In addition to the lack of objective evidence, the ALJ found that generally benign treatment
notes throughout the record were inconsistent with Plaintiffs pain allegations. (Tr. 489, 491); see

Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Treatment records reflect that even when
Plaintiff presented with complaints of back or joint pain, she generally had a normal range of motion
(tr. 368, 381, 429, 435, 470-71, 476, 804), ambulated normally (tr. 468, 779, 785, 792, 796-97), and
although she exhibited tenderness to palpation (tr. 429,435, 460, 470-71,785, 789), she did not
appear to be in distress. (Tr. 779,785, 792, 796-97, 800, 804.) Furthermore, despite Plaintiffs
claims of spending considerable time lying down, there were no signs of diminished strength or
wasting; rather, she exhibited normal muscle tone and motor strength. (Tr. 471, 779,785, 792, 79697, 800, 804.)
Pointing to instances where Plaintiff had an irregular gait (tr. 435, 789, 800, 1048) or limited
range of motion, (tr. 415-16, 460, 466-67, 789, 800), Plaintiff argues that the treatment record
suppmis her pain testimony. Similarly, Plaintiff argues, imaging results showing degenerative
·changes support her pain allegations. While this evidence "may also admit of an interpretation more
favorable" to Plaintiff, the comi "must uphold the ALJ' s decision where the evidence is susceptible
to more than one rational interpretation." Burch, 400 F.3d at 680-81 (quoting Magallanes v. Bowen,
881 F.2d 747, 750 (9th Cir. 1989). That is the case here. Accordingly, the ALJ provided specific,
clear and convincing reasons to discredit Plaintiffs pain symptom allegations.

B.

Gastrointestinal Symptoms

Plaintiff argues that the ALJ improperly discredited her subjective gastrointestinal ("GI")
symptom allegations based on amischaracterization of Plaintiffs testimony regarding the frequency
of her vomiting. The ALJ found that Plaintiffs testimony that she "vomited multiple times per day"
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was unsupported by her treatment records. (Tr. 490.)
At the January 2013 hearing, Plaintiff testified that she had bouts of GI distress
approximately three to four times a month, characterized by stabbing abdominal pain, vomiting, and
diarrhea. (Tr. 62.) During these episodes, she spent half an hour to 45 minutes in the bathroom,
multiple times a day. (Tr. 63.) At the August 2016 hearing, she testified that she still had GI
problems and had suffered an episode of vomiting and diarrhea the night before the hearing due to
nervousness. (Tr. 521.) Thus, the Court agrees thatthe ALJ mischaracterized Plaintiff's testimony.
While Plaintiff testified that vomiting is one of the symptoms she suffers during GI episodes, she
never claimed to vomit multiple times a day, every day. Accordingly, this was not a specific, clear
and convincing reason to discredit her GI symptom allegations.
The ALJ also discredited Plaintiff's GI symptom allegations because, while Plaintiff reported
no GI or abdominal issues to her primary care provider, Qilin Lu, M.D., she contemporaneously
sought treatment from specialists for alternating constipation and diaffhea. The ALJ found that there
was "no explanation for her vastly conflicting allegations to two different providers at the same
time." (Tr. 490.) Plaintiff argues this was effor, and the court agrees.
The ALJ coffectly noted that treatment records spanning from January 2015 through March
2016 indicate Plaintiff reported no abdominal pain or other GI symptoms to Dr. Lu. (Tr. 779, 782,
785, 788-89, 792, 796, 800, 803-04.) However, the ALJ failed to note that Dr. Lu referred Plaintiff
to the gastroenterology specialists, which clearly indicates an undocumented discussion of Plaintiff's
GI complaints. (Tr. 792.) Further, the ALJ declined to make any finding that Plaintiff was
malingering, and there is no indication from the record that any providers suspected malingering.
On the contrary, Plaintiff's gastroenterologist ordered extensive testing which revealed poor
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gallbladder functioning and ultimately resulted in surgical removal ofher gallbladder. (Tr. 923, 925,
927-28, 932.) Thus, the purported conflict was not a specific, clear and convincing reason to
discredit Plaintiffs GI symptom complaints.
Plaintiff argues the ALJ improperly discredited Plaintiffs GI symptom allegations based on
a lack of objective medical evidence. The ALJ noted that findings from Plaintiffs April 2015
colonoscopy were "generally unremarkable." (Tr. 490.) The April 2015 colonoscopy revealed
"scaning suggestive of healed colitis," small hemmrhoids, and a hyperplastic polyp while an
esophagogastroduodenoscopy revealed normal findings (tr. 923, 925, 927), but, hepatobiliary
imaging with fatty meal stimulation revealed a gallbladder injection fraction of only 27 percent and,
as noted, prompted the surgical removal of Plaintiffs gallbladder. (Tr. 914, 928.) Thus, contra1y
to the ALJ' s contention, the objective medical evidence revealed abnormal findings. But even if the
court were to accept the ALJ's interpretation of the evidence as rational, an ALJ may not reject a
Plaintiffs subjective symptom claims "solely because [they are] not substantiated affamatively by
objective medical evidence." Robbins v. Social Sec. Adm in, 466 F.3d 880, 883 (9th Cir. 2006). Here,
the ALJ failed to offer another specific, clear and convincing reason to discredit Plaintiffs GI
symptom testimony. Thus, the ALJ ened.
C.

Mental Impairment Symptoms

Plaintiff argues the ALJ ened by discrediting her mental impairment allegations based on a
failure to seek treatment Plaintiff could not afford. The ALJ purported to discredit Plaintiffs mental
impairment allegations because she sought "minimal mental health treatment." (Tr. 492.)
An ALJ may impugn credibility "based on an unexplained or inadequately explained failure
to seek treatment or to follow a prescribed course of treatment." Molina v. Astrue, 674 F.3d 1104,
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1112 (9th Cir. 2012) (quoting Tommasetti, 533 F.3d at 1039). However, disability benefits may not
be denied based on a claimant's failure to obtain treatment she cannot afford. Gamble v. Chater, 68
F.3d 319, 321 (9th Cir. 1995). Moreover, courts are reluctant to "chastise one with a mental
impailment for the exercise of poor judgment in seeking rehabilitation." Nguyen v. Colvin, 100 F .3 d
1462, 1465 (9th Cir. l996)(quotingBlankenshipv. Bowen, 874 F.2d 116, 1124 (6th Cir. 1989)); see

Garrison v. Colvin, 759 F.3d 995, 1018, n.24 (9th Cir. 2014).
At the first hearing, Plaintiff testified that she did not have health insurance and went to the
ER for treatment. (Tr. 615, 629.) Plaintiff also testified that she went to a "free clinic," but that the
clinic was limited in the type of treatment it could provide, noting that any prescription medications
had to be on the "$4 Walmart list" because that was all Plaintiff could afford. 1 (Tr. 635.)
By November 2014, Plaintiff had health insurance and sought mental health treatment in
form of psychiatric care and cognitive processing therapy sessions through August 2015. 2 (Tr. 1049,
1072, 1076, 1079, 1078, 1081, 1085, 1087.) AttheMay2016andAugust2016hearings,Plaintiff
testified that she stopped going to counseling after her therapist left the clinic because she did not
want to retell her traumatic history to yet another person. (Tr. 516, 542.) Plaintiff also testified that
her mental health counseling did not help her, remarking that "I was getting passed to this person,
that person and nobody was helping." (Tr. 515.) Plaintiff added that she thought she could have
"gone somewhere" with her first therapist because they had a good rapport. (Tr. 515, 542.)
The Commissioner argues that even though Plaintiff had no insurance, her access to the "free
clinic" does not excuse her failure to seek mental health treatment. There is no evidence in the
record that the "free clinic" provided mental health services. Moreover, the ALJ did not rely on
that rationale in making his finding, and the court cannot affirm on ground the ALJ did not
invoke. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
1

It appears, however, that Plaintiff still faced financial barriers to following through with
recommended care. See Tr. 1076 (Plaintiff was unable to afford prescription costing $94.00).
2

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Thus, the record clearly indicates Plaintiff could not afford mental health treatment for a
substantial period of time, but sought treatment once she had insurance. Plaintiff subsequently felt
the treatment was unhelpful, and corresponding counseling and psychiatric treatment records do not
contradict Plaintiffs asse1iion. (Tr. 1046-92.) Thus, to the extent the ALJ discredited Plaintiffs
mental impairment allegations based on her failure to seek treatment, he erred. Further, the court
declines to find Plaintiffs decision to cease unhelpful mental health treatment a specific, clear and
convincing reason to discredit her mental impaitment testimony.
Plaintiff also argues that the ALJ erred by discrediting her mental impairment testimony for
discussing her mental health issues primarily with mental health ~roviders. The ALJ found that the
extent of Plaintiffs mental impairments were unsuppmied by the record because Plaintiffs "primary
care records show little indication of psychological problems," while she endorsed "significant
mental health impairments during evaluations conducted for the purpose of establishing benefits and
throughout brief counseling notes." (Tr. 491.) The ALJ did not make an affirmative finding of
malingering, however.
Plaintiffs counseling and psychiatric appointments overlapped with her treatment with Dr.
Lu, where she frequently repmied insomnia (tr. 782, 785, 800, 803-04) and occasionally repmied
depression. (Tr. 779, 800.) Notably, Dr. Lu prescribed amitriptyline and trazodone. 3 (Tr. 777, 781,
790, 802.) In March 2016, Plaintiff reported anxiety; consequently, Dr. Lu diagnosed a generalized
anxiety disorder and prescribed Lexapro. (Tr. 779-80.) That same month, Plaintiff also underwent
an evaluation by Juan Ruiz Hurtarte, M.D., at Waters Edge Memorial Pain Relieflnstitution. (Tr.
3

Amitriptyline is used to treat symptoms of depression and some pain symptoms and Trazodone
is primarily used to treat depression, but may be used to treat anxiety and insomnia. MedlinePlus,
https://medlineplus.gov (last visited Mar. 20, 2018). See Tr. 1049 (discussion of Plaintiffs
medications).
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780, 934-38.) The one-hour exam consisted of an interview, a review of medical history and
treatment, and a physical exam. (Id.) Dr. Hurtarte assessed Plaintiff with myofascial muscle pain,
depression with anxiety, and chronic low back pain; he recommended physical therapy, therapy with
a pain psychologist, and cognitive behavioral therapy. (Tr. 934.)
Although treatment notes from Plaintiffs counseling and psychiatric appointments provide
greater detail of her mental impairment allegations, they are not incongruous with her reports of
insomnia, depression, and anxiety to Dr. Lu. Moreover, counseling and treatment notes include
affect and mood observations by providers that are consistent with Plaintiffs mental impairment
allegations. (Tr. 1062, 1072, 1078, 1088, 1087, 1085.) Therefore, it is not evident that Plaintiff
presented conflicting mental impairment claims to different providers and, accordingly, the ALJ' s
rationale was not a specific, clear and convincing reason to discredit her subjective mental
impairment allegations.
Plaintiff further argues the ALJ improperly discredited her mental impairment allegations
based on the 2011 opinion of examining consultative psychologist, Jay Toews, Ed.D ., who indicated
Plaintiff demonstrated "poor effort" during memory testing. The ALJ relied heavily on Dr. Toews'
report to discredit Plaintiffs mental impairment allegations, highlighting her successful performance
in portions of the exam, and noting that Plaintiffs "mood and affect were not consistent with her
cognitive or affect complaints." (Tr. 400, 491.)
Plaintiffs performance during Dr. Toews' exam is particularly relevant to her allegations of
memory impairment. At the January 2013 hearing, Plaintiff testified that she was unable to "keep
in my head what I'm supposed to do," and admitted that she had flooded her kitchen twice after
forgetting she had water running to thaw frozen food. (Tr. 46, 53.) She also testified that she was
PAGE 14- OPINION AND ORDER

unable to watch half-hour television programs without pausing to take a break due to her inability
to concentrate. (Tr. 52.) At the August 2016 hearing, Plaintiff testified that she tried to read, but "I
don't understand what I've read. I go back and read the same chapters over and over, and it's very
frustrating because I love to read." (Tr. 520.)
Following the 2011 exam, Dr. Toews concluded that Plaintiffs verbal memory fell in the
"borderline range" and was slightly inferior to her visual memory, while her "working memory" was
in the low-average range. (Tr. 400.) Dr. Toews opined that Plaintiffs "interest and motivation
seemed fair," while her "attention and concentration were variable during testing," resulting in a
possible underestimation of two levels of memory functioning. (Id.) Plaintiffs "Single Trial
Learning" and "Retention" scores fell in the "extremely low" range, while her "Learning Slope"
score fell in the high-average range. (Tr. 401.) Dr. Toews opined that Plaintiff "may not have put
forth a good effort when presented with verbal learning tasks," and he felt the lower scores were
attributable to "functional and volitional issues," rather than memmy problems. (Id.)
Subsequent records contain minimal reference to Plaintiffs alleged memory impahment.
The ALJ, therefore, could reasonably conclude that Dr. Toews' report conflicted with Plaintiffs
allegations.
The ALJ also relied on Dr. Toews' observations of Plaintiffs affect and mood to discredit
her depression and anxiety allegations. Significantly, however, treatment records from Plaintiffs
counseling and psychiatric appointments indicate Plaintiff frequently exhibited a mood and affect
consistent with her anxiety and depression complaints, making Dr. Toews' observation an outlier
inthatregard. (Tr.1048, 1074, 1062, 1067, 1072, 1078, 1081, 1085, 1087-88.) TheALJfailedto
reconcile these conflicting observations or explain why Dr. Toews' single encounter provided a
PAGE 15 - OPINION AND ORDER

sufficient reason to discredit Plaintiffs mental impairment allegations. See Osenbrock v. Apfel, 240
F.3d 1157, 1165 (9th Cir. 2001) (a treating physician's most recent medical reports are highly
probative).

Accordingly, the ALJ's rationale for discrediting Plaintiffs mental impairment

allegations based on Dr. Toews' mood and affect observations was not specific, clear and
convmcmg.
In sum, the ALJ properly discredited Plaintiffs poor memory allegations but erred in
discrediting her remaining mental impairment allegations.
II.

Medical Opinion Evidence

A.

Qilin Lu, MD.

Medical opinions are "distinguished by three types of physicians: (1) those who treat the
claimant (treating physicians); (2) those who examine but do not treat the claimant (examining
physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)."
Lester v. Chafer, 81F.3d821, 830 (9th Cir. 1995). Generally, a treating physician's opinion is owed

controlling weight. To reject the uncontradicted opinion of a treating physician, the ALJ must
provide clear and convincing reasons; to reject a treating physician's contradicted opinion, the ALJ
must provide specific and legitimate reasons supported by substantial evidence. Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ can satisfy the substantial evidence requirement by
setting out a detailed summary of the facts and conflicting evidence, stating his interpretation, and
making findings. Morgan v. Comm 'r Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999).
However, "the ALJ must do more than offer his conclusions.

He must set forth his own

interpretations and explain why they, rather than the doctors', are con-ect." Reddick v. Chafer, 157
F.3d 715, 725 (9th Cir. 1998) (citation omitted). Notably, "even when contradicted, a treating or
PAGE 16 - OPINION AND ORDER

examining physician's opinion is still owed deference and will often be 'entitled to the greatest
weight ... even if it does not meet the test for controlling weight."' Garrison, 759 F. 3d at 1012
(quoting Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007)).
Plaintiff argues that the ALJ erred by failing to apply the appropriate factors to determine
what weight to assign Dr. Lu's opinion and gave legally insufficient reasons for giving "little weight"
to portions or Dr. Lu's opinion.
The record reflects that Plaintiff was examined by Dr. Lu six times between January 2015,
when she first established care with Dr. Lu as her primary care provider, and October 2015, when
Dr. Lu completed a three-page medical opinion questionnaire. (Tr. 774-76, 785, 789, 792, 796, 800,
803.)
On a medical opinion questionnaire, Dr. Lu stated that Plaintiff had been diagnosed with
COPD, fibromyalgia, insomnia, and menopause. (Tr. 774.) Dr. Lu described Plaintiff's symptoms
as "shortness of breath, muscle pain/myalgia" and indicated that clinical findings had been relatively
normal except for "reduced lung air entry due to COPD." (Id.) Dr. Lu indicated Plaintiff would
need to lie down during the day, but failed to explain why and for how long. (Id.) Dr. Lu stated that
fibromyalgia was reasonably likely to cause Plaintiff pain, but that work on a continuous basis was
not likely to cause Plaintiff's condition to deteriorate; Dr. Lu added that physical activity was
encouraged for treatment purposes, but that Plaintiff may not be able to participate in full-time
work. 4 (Tr. 774-75.) When asked to select the exertional level of work Plaintiff could perform, Dr.
Lu partially circled "light work." (Tr. 775.) Additionally, Dr. Lu wrote, "[n]ot sure but as much as
tolerated," below the list of exertional levels. (Id.)
There appears to a scrivener's error in this note. Given the context, the court has presumed Dr.
Lu meant Plaintiff may not be able to participate in full-time work.
4

PAGE 17 - OPINION AND ORDER

The ALJ gave "great weight" to the portion of Dr. Lu's opinion finding Plaintiff could
perform light work, noting that the opinion was "generally consistent with the imaging results and
physical evaluations throughout the records." (Tr. 492.) The ALJ gave "little weight" to Dr. Lu's
opinion that Plaintiff needed to lie down during the day because Dr. Lu did not provide an
explanation for the assessment, and the medical records indicated Plaintiff was able to ambulate well
without apparent distress. (Id.)
Although, the ability to ambulate well 5 does not necessarily conflict with the need to lie down
during the day, the ALJ properly rejected Dr. Lu's opinion based on a lack of support. Bayliss, 427
F.3d at 1217 (9th Cir. 2005) (an ALJ is not required to accept the opinion of any physician, if the
opinion is brief, conclusory, and inadequately supported by clinical findings). Here, Dr. Lu failed
to provide any support for his opinion. Indeed, Dr. Lu noted that Plaintiffs clinical findings had
been relatively normal. (Tr. 774.) Moreover, upon a careful review of the treatment record, the comi
found no objective evidence suppmiing the contention that Plaintiff needs to lie down during the day.
Accordingly, the ALJ did not err in giving little weight to that portion of the opinion.
Plaintiff points out that the ALJ failed to address Dr. Lu's annotation,"[n ]ot sure but as much
as tolerated," and argues this was error because the annotation suggests Dr. Lu was unsure if Plaintiff
could perform light work. However, insofar as the annotation created ambiguity, the ALJ is
responsible for resolving ambiguities and conflicts in the medical testimony. Magallanes v. Bowen,
881 F.2d 747, 750 (9th Cir. 1989). Here, the ALJ resolved the ambiguity by finding Dr. Lu's
statement indicated Plaintiff could perform light work.

5

The record shows that during two of six visits, Dr. Lu observed Plaintiff had impaired
ambulation. (Tr. 789, 800.)
PAGE 18 - OPINION AND ORDER

B.

Robert Hoskins, MD.

Plaintiff argues the ALJ erred by improperly crediting the 2011 opinion of state agency nonexamining physician, Robert Hoskins, M.D., who opined that Plaintiff was capable of performing
light work. The ALJ gave "great weight" to Dr. Hoskins' s findings, remarking that his 2011 opinion
"is consistent with the longitudinal history of the treatment notes," and that "subsequent records do
not show any significant deterioration" of Plaintiffs condition. (Tr. 492.)
Significantly, Dr. Haskins's opinion that Plaintiff was capable of performing light work is
consistent with that of Dr. Lu. As noted above, the ALJ did not err in his interpretation of Dr. Lu's
opinion, and therefore, any error in according great weight to Dr. Haskins's 2011 opinion was
harmless insofar as the opinions were consistent.

C.

Jay Toews, Ed.D.

Plaintiff argues the ALJ en·ed by giving "great weight" to Dr. Toews' opinion, alleging Dr.
Toews did not personally administer the consultative examination, and should not be credited as an
"acceptable medical source."
The court first notes a procedural issue regarding this asserted error, whether the court may
review this objection on appeal. Plaintiffs attorney apparently has lodged various complaints to the
state agency regarding Dr. Toews since 2001, and the state agency nonetheless has continued to use
Dr. Toews as a consultant. (Tr. 287-318.) The authority to monitor the consultative exam process
and the medical consultants approved to be examiners is designated to the state agencies that make
disability determinations for the Social Security Administration. 20 C.F.R. § 416.919s. This codegranted authority requires that state agencies adopt "procedures for handling complaints" and
procedures for annual onsite reviews of providers. 20 C.F.R. § 416.919s(f)(9),(11).
PAGE 19 - OPINION AND ORDER

Plaintiff does not appear to have raised this issue in her first request for district court review.
(Tr. 585-99.) Additionally, the Code of Federal Regulations provides that a claimant or her
representative may object for "good reason" to a medical source designated to perform a consultative
exam before the exam is conducted. 20 C.F.R. § 416.919j. Here, Plaintiff lodged no objection to
Dr. Toews conducting the consultative exam prior to the exam itself; rather, Plaintiff objected in
January 2012, several months after the exam and only after Dr. Toews issued his opinion. (Tr. 26970, 287-89.) Thus, assuming without deciding that the court has authority to review an objection
to a medical consultant, it appears Plaintiff untimely asserted the objection. Thus, the court cannot
review Plaintiff's objection at least this reason.
Further, at the January 2013 hearing, Plaintiffs attorney requested another consultative
psychological exam, but did not object to Dr. Toews's report as an exhibit. (Tr. 91.) Nonetheless,
in the ALJ's first opinion, he noted Plaintiffs objection to Dr. Toews's exam, but determined that
"the examiner is qualified to offer his medical opinion in this claim." (Tr. 559.) Only after the ALJ
rendered an unfavorable decision did Plaintiff submit to the Appeals Council an objection to Dr.
Toews's report. (Tr. 38, 285-86.) Again assuming without deciding that the court has authority to
review an objection to a medical consultant, the court finds Plaintiffs objections either are waived
or untimely and are, accordingly, overruled.
Plaintiff next argues that Dr. Toews's report contains unresolved internal inconsistencies specifically, that Plaintiff"related and interacted well" (tr. 399) and that her "motivation and interest
seemed fair" during testing (tr. 400) conflict with the observation that her"[m]otivation and effort
during memory testing appeared to be less than optimal." (Tr. 401.) The court disagrees. The
observation that Plaintiff"related and interacted well" was relevant to her social interaction abilities,
PAGE 20 - OPINION AND ORDER

rather than her testing efforts. While Dr. Toews noted that Plaintiff's "motivation and interest
seemed fair," he also noted that her "attention and concentration were variable." (Tr. 400.) The
observation that Plaintiffs "motivation and effort during memory testing was less than optimal" does
not conflict with the earlier observations; rather, it clarifies where her efforts appeared to vary. (Tr.
401.) Accordingly, these were not internal conflicts, and the ALJ did not err by failing to address
them.
D.

Alex Fisher, Ph.D.

Plaintiff argues the ALJ ened by improperly giving great weight to the 2011 opinion nonexamining agency consulting psychologist, Alex Fisher, Ph.D., which did not take into account
Plaintiff's subsequent mental health records. The court agrees.
The ALJ gave great weight to Dr. Fisher's opinion that Plaintiff has "no limitations in
activities of daily living, mild limitations in social functioning, and moderate limitations in
concentration, persistence, and pace." (Tr. 493.) In reaching his conclusion, Dr. Fisher credited Dr.
Toews's report, noting that Plaintiff had appeared "overly dramatic" and that her affect had been
inconsistent with her complaints. (Tr. 110.) Dr. Fisher also noted that Plaintiff's medical records
lacked sufficient documentation of her psychological complaints. (Tr. 110-11.) By 2016, however,
Plaintiff had undergone several months of counseling sessions, a psychiatric evaluation, and a pain
evaluation with psychological findings. Notably, no other provider found Plaintiff to be "overly
dramatic" or noted an affect inconsistent with her alleged symptoms. Regardless, the ALJ failed to
discuss why, in light of the recent additional mental health records, Dr. Fisher's opinion was still
relevant or due great weight. This was enor. See Osenbrock, 240 F.3d at 1165.
\\\\\

PAGE 21 - OPINION AND ORDER

III.

Lay Witness Evidence
Plaintiff alleges the ALJ improperly rejected Ms. Boyce's lay witness testimony. The ALJ

gave "some weight" to Ms. Boyce's testimony, noting that Ms. Boyce testified that she does not see
Plaintiff very often. (Tr. 494.) The ALJ credited Ms. Boyce's observation that Plaintiffs overall
health had deteriorated, but discredited her testimony regarding Plaintiffs physical impairments
because they were "not documented by the longitudinal histmy of the treatment records ... showing
generally umemarkable imaging results and mild findings on physical evaluations."

(Id.)

Additionally, the ALJ discredited Ms. Boyce's testimony regarding Plaintiffs memory impairment
because it was inconsistent with Dr. Toews's evaluation. (Id.)
At the first hearing, Ms. Boyce testified that she saw Plaintiff a couple of times a week and
that Plaintiff was usually in her room, either watching television or sleeping. (Tr. 641.) Ms. Boyce
described Plaintiff as moody, tearful, and introspective most of the time and testified that Plaintiff
would not leave her room without prompting. (Tr. 641-42.) Ms. Boyce added that that when she
was able to persuade Plaintiff to leave her room and do things around the house, Ms. Boyce had to
continuously remind her of the task at hand due to Plaintiffs distractibility. (Tr. 642-44.) For
example, Ms. Boyce related that if she asked Plaintiff to get laund1y from her room, Ms. Boyce
would find Plaintiff sitting and watching television instead, having forgotten that she was supposed
together laundry. (Tr. 643.) Ms. Boyce testified that Plaintiff was unable to leave her house, which
prevented Plaintiff from going to visit her granddaughter unless her granddaughter. (Tr. 645.)
At the second hearing, Ms. Boyce testified that she did not see her mother "very often,"
although her mother sometimes stayed with her. (Tr. 526-27.) During such visits, Ms. Boyce
observed that Plaintiff had a "hard time finding her words." (Tr. 527.) Ms. Boyce witnessed
PAGE 22 - OPINION AND ORDER

Plaintiff struggle to remember simple tasks, like opening her purse to retrieve eyeglass cleaner but
forgetting why she opened her purse. (Id.) Ms. Boyce testified that if Plaintiff attempted to help Ms.
Boyce prepare a meal, Plaintiff would need to sit down and relax for about ten minutes before being
able to help for another five- or ten-minute period. (Tr. 528.) Ms. Boyce also testified that Plaintiff
was usually exhausted and in pain by 11 :30 a.m. or noon and needed to lie down on her bed and nap
for hours with her heating pad. (Tr. 528-29.)
The ALJ must provide "germane reasons" for rejecting lay witness testimony. Lewis v. Apfel,
236 F.3d 503, 511 (9th Cir. 2001). While an ALJ may reject lay witness testimony that conflicts
with medical evidence, he may not reject it solely based on lack of support. See Lewis, 236 F.3d at
511 (noting an ALJ may discount lay testimony that "conflicts with medical evidence") (citing

Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)). Here, the ALJ discredited Ms. Boyce's
testimony based on a lack of support in the medical records as opposed to any conflict between her
testimony and the medical evidence. In fact, the record supports Ms. Boyce's testimony that Plaintiff
spends substantial amounts of time in bed with a heating pad, as physicians have noted low back skin
discoloration and damage from prolonged heating pad use. (Tr. 430, 460, 1081-82.)
In his first written opinion, the ALJ discredited Ms. Boyce's testimony altogether, finding
that it was likely based on Plaintiffs self-reporting. (Tr. 560.) The District Court for the Eastern
District of Washington found this to be harmful error, noting that Ms. Boyce testified as to her own
observations, and ordered the ALJ to reevaluate Ms. Boyce's testimony on remand. (Tr. 596.) On
remand, the ALJ ignored Ms. Boyce's prior testimony and discredited her testimony from the August
2016 hearing, in part, because Ms. Boyce did not see her mother "that often." Notably, however, Ms.
Boyce's testimony in the second hearing was consistent with her testimony in the first - which was

PAGE 23 - OPINION AND ORDER

based on her twice-weekly observations of her mother. Moreover, Ms. Boyce's second hearing
testimony that her mother had to lie down for hours to nap indicates that when she did see her
mother, it was for substantial periods of time. Thus, to the extent the ALJ discredited Ms. Boyce's
testimony based on this mischaracterization of her opportunity to observe, it was error. Sprague v.
Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) ("Descriptions by friends and family members in a

position to observe a claimant's symptoms and daily activities have routinely been treated as
competent evidence.").
Each time she testified, Ms. Boyce recounted different and specific incidents where she
observed Plaintiff forget what she was supposed to be doing. (Tr. 527, 642-44.) The ALJ
discredited these accounts, finding them inconsistent with the findings from Dr. Toews' evaluation.
(Tr. 494.) However, Dr. Toews' report noted that Plaintiffs test scores varied widely, and that
Plaintiffs retention score fell in the extremely low range. (Tr. 401.) Thus, there is not a clear
conflict between Dr. Toews's evaluation and Ms. Boyce's testimony. See Bruce v. Astrue, 557 F.3d
1113 (9th Cir. 2009).
In sum, the ALJ did not provide a specific, germane reason to discredit Ms. Boyce's
testimony.
IV.

Step Two Determination
Plaintiff argues the ALJ eiTed by failing to recogmze fibromyalgia as a medically

determinable impairment at step two and by failing to incorporate accompanying limitations into the
RFC. The Commissioner argues that the ALJ' s determination complied with Social Security Ruling
(SSR) 12-2p but, even if the ALJ erred, the error was harmless because no additional limitations
would have been added to the RFC.
PAGE 24 - OPINION AND ORDER

A medically determinable impairment of fibromyalgia may be established by meeting one
of two sets of criteria, based on evidence from a licensed physician. SSR 12-2p at *2-*3. The first
set of criteria requires: 1) a history of widespread pain; 2) at least 11 positive bilateral tender points
on physical exam; and 3) evidence that other disorders that could have caused the symptoms were
ruled out. Id. at *3. The second set of criteria requires: 1) a history of widespread pain; 2) repeated
manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, especially
manifestations of fatigue, cognitive or memory problems, waking umefreshed, depression, anxiety
disorder, or iITitable bowel syndrome; and 3) evidence that other disorders that could cause these
repeated manifestations of symptoms, signs, or co-occuITing conditions were excluded. Id.
After a thorough review of the record, the Comi agrees that the available medical evidence
does not meet either set of criteria. Significantly, in January 2011, Jeffrey Merrill, M.D., conducted
a physical exam and concluded that Plaintiff did not appear to have classic fibromyalgia tender
points. (Tr. 367-68.) Moreover, other causes of Plaintiffs symptoms have not been ruled out. For
example, it is unclear whether Plaintiffs GI problems could have been caused by opiate use (tr. 923 ),
colitis (tr. 356-62, 923), or her poorly functioning gallbladder (tr. 914, 928, 932).
Regardless, the ALJ noted that Plaintiffs "complaints with regard to this impairment are
primarily fatigue and body pain" and that even if fibromyalgia was a medically determinable
impairment, it "would not cause any additional limitations than those that have already been
accommodated for" in the RFC. (Tr. 485.) Accordingly, because the ALJ considered fibromyalgia
at subsequent steps, any eITor in failing to include fibromyalgia as a medically determinable
impairment at step two was harmless. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

\\ \ \ \
PAGE 25 - OPINION AND ORDER

V.

Failure to Appoint a Medical Expert
Plaintiff argues that the ALJ erred by failing to appoint a medical expert to review Plaintiff's

GI complaints and opine as to associated functional limitations. The Commissioner argues the ALJ
properly considered the request for a consultative exam and concluded none was needed.
In its remand order, the District Court for the Eastern District of Washington recommended
that the ALJ appoint a medical expert to interpret Plaintiff's medical records concerning irritable
bowel syndrome ("IBS"). (Tr. 598.) The Court suggested that the medical expert could also
consider whether Plaintiff's IBS symptoms could effectively be controlled with medication, changes
in diet or lifestyle, or management of mental impairments. (Id.) At the August 2016 hearing,
Plaintiff's attorney requested that the ALJ send Plaintiff for a consultative physical examination,
arguing that it would be consistent with the Court's order. (Tr. 512, 534-35.) The ALJ declined the
request, noting that the record contained "significant physical examinations" spanning a period of
several years and that "no argument has been made to support a finding that a consultative evaluation
would be of any benefit in this case, or that it would provide any information that is not readily
available in the records." (Tr. 482.) The ALJ further noted that Plaintiff's "gastrointestinal issues
do not appear to have any clear diagnosis, " and concluded that a one-time consultative exam would
not contribute greater clarity to the issue, despite the clear record of extensive testing for GI
symptoms. (Tr. 482-83.)
The ALJ is tasked with "fully and fairly" developing the record. Tonapetyan v. Halter, 242
F.3d 1144, 1150 (9th Cir. 2001). "Ambiguous evidence, or the ALJ's own finding that the record
is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to 'conduct an
appropriate inquiry."' Id. (quoting Smolen, 80 F.3d at 1288). Here, the ALJ noted ambiguities in
PAGE 26 - OPINION AND ORDER

the record regarding Plaintiffs GI issues - a lack of clear diagnosis, and an absence of complaints
to Dr. Lu regarding GI distress symptoms while simultaneously seeking treatment from
gastroenterology specialists. Such ambiguities trigger the ALJ' s duty to supplement the record
which may be accomplished by ordering a consultative exam, or by re-contacting the claimant's
physician for clarification. 20 C.F.R. §§ 416.912(b), 416.919a-b. Here, the ALJ did neither, and
instead used the ambiguity as a basis to deny Plaintiff benefits. This was error.

Remand
The decision whether to remand for further proceedings or for immediate payment of benefits
is within the discretion of the court. Harmen v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) cert.

denied, 531 U.S. 1038 (2000). 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.

Strauss v. Comm'r, 635 F.3d 1135, 1138-39 (9th Cir.

2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The court may not award
benefits punitively and must conduct a "credit-as-true" analysis to determine if a claimant is disabled
under the Act. Id. at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of
benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons forrejecting such
evidence; (2) there are no outstanding issues that must be resolved before a determination of
disability can be made; and (3) it is clear from the record that the ALJ would be required to find the
claimant disabled were such evidence credited. Id. The "credit-as-true" doctrine is not amandat01y
rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award
PAGE 27 - OPINION AND ORDER

of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F.3d 871,
876 (9th Cir. 2003) (citing Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en bane)). The
reviewing court should decline to credit testimony when "outstanding issues" remain. Luna v.

Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
Here, the ALJ en-ed by: (1) improperly discrediting Plaintiff's subjective GI and mental
health symptom testimony; (2) improperly discrediting lay witness testimony; (3) improperly
crediting Dr. Fisher's opinion; and (4) failing to resolve conflicts and ambiguities in the medical
record, especially as they pertain to the limitations that could reasonably be expected to be caused
by Plaintiffs GI and mental health impairments. Because the record as it cun-ently stands is not free
of ambiguity, it is not complete for the purposes of the credit-as-true rule. Accordingly, the proper
course is to remand for further proceedings. Given the passage of time and accumulation of new
evidence since agency consulting examiners last issued opinions regarding Plaintiffs physical and
mental impairments, the ALJ on remand must, at a minimum, obtain additional medical and
psychological consultative examinations to properly evaluate the extent and severity of Plaintiffs
GI and mental impairment symptoms.

Conclusion
Based on the foregoing, the Commissioner's decision denying Plaintiffs application for SSI
is REVERSED and REMANDED for further proceedings consistent with this opinion.
Dated this

/0

+ft__
day of April, 2018.

States Magistrate Judge
PAGE 28 - OPINION AND ORDER