Bair v. Commissioner Social Security Administration

Filing 18

Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate calculation and award of benefits. IT IS SO ORDERED. Signed on 5/8/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RAYMOND BAIR,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

NANCY J. MESEROW
7540 SW 51st Ave.
Portland, OR 97219
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
MICHAEL W. PILE
Acting Regional Director
DIANA ANDSAGER
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

1 - OPINION AND ORDER

3:17-CV-00622-BR
OPINION AND ORDER

BROWN, Senior Judge.
Plaintiff Raymond Bair seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act.

This Court has jurisdiction to review the

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

ADMINISTRATIVE HISTORY
Plaintiff filed applications for DIB on July 10, 2012,
alleging a disability onset date of March 5, 2011.

Tr. 255.1

The application was denied initially and on reconsideration.
Tr. 109–33.

An Administrative Law Judge (ALJ) held a hearing on

June 30, 2014.
hearing.

Tr. 69–108.

Plaintiff was represented at the

Plaintiff and a vocational expert (VE) testified.

The ALJ issued a decision on July 18, 2014, in which he found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.

Tr. 138-154.

second hearing.

The Appeals Council remanded for a

Tr. 159–62.

1

Citations to the official transcript of record filed by
the Commissioner on June 13, 2017, are referred to as "Tr."
2 - OPINION AND ORDER

An ALJ held a subsequent hearing on December 16, 2015.
Tr. 40-68.

The ALJ issued a decision on January 27, 2016, in

which he again found Plaintiff is not disabled.

Tr. 17–32.

Pursuant to 20 C.F.R. § 404.984(d), that decision became the
final decision of the Commissioner on March 8, 2017, when the
Appeals Council denied Plaintiff's request for review.

Tr. 1–4.

See also Sims v. Apfel, 530 U.S. 103, 106–07 (2000).

BACKGROUND
Plaintiff was born in 1963 and was 51 years old at the time
of the hearing.

Tr. 17, 47.

Plaintiff completed high school and

has an Associate's Degree in electrical engineering.

Tr. 31, 48.

Plaintiff has past relevant work experience as a research
engineering technician, manufacturing technician, and fieldservice engineer.

Tr. 30.

Plaintiff alleges disability due to fibromyalgia, migraines,
depression, and grand mal seizures.

Tr. 122.

Plaintiff took

some time off in March 2011 because of his back pain.

Tr. 846.

When he tried to go back to work, the pain got worse.

Tr. 528,

603.

Plaintiff stopped working due to his back pain, and he

continued to have chronic lower-back pain from that point.
Tr. 19, 489, 519, 847.

Brett Stacey, M.D., treating physician,

concluded Plaintiff meets the American College of Rheumatology
criteria for fibromyalgia.

3 - OPINION AND ORDER

Tr. 484.

In addition to his back pain, Plaintiff states he
experiences pain in his feet, legs, arms, hands, and shoulders.
Tr. 485, 489, 499, 510, 514, 659.

Plaintiff reported his pain is

constant and persistent and became so severe at one point that he
was bedridden for days.

Tr. 513, 676, 847, 1322, 1376.

Plaintiff also reported difficulties with memory and stated he
suffers at times from frequent memory lapses that last as long as
an entire day.

Tr. 90, 293, 411, 413, 416, 847, 1337.

In

addition, he reported he suffers from PTSD due to an incident
when he was 12 years old in which his stepfather attacked his
mother and Plaintiff shot and killed his stepfather.

Tr. 489,

848.

Plaintiff also suffers from chronic depression.

484.

Dr. Stacey observed Plaintiff "has longstanding depression

with prior suicidal attempts and ideation."

Tr. 484.

Tr. 476,

Treating

psychologist Beth Darnall, Ph.D., concluded Plaintiff is severely
depressed and another treating provider determined Plaintiff was
at risk for suicide.

Tr. 491, 1309.

His depression is

exacerbated by the stress of his son's terminal brain cancer,
which has resulted in his son's blindness.

Tr. 492, 569, 848.

Plaintiff also suffers from excruciating migraines that have
caused him to go to the emergency room on dozens of occasions.
Tr. 411, 423, 431, 460, 465, 469, 472, 476, 479, 628, 672, 681,
684, 687, 700, 705, 721, 804, 807, 810, 812, 815, 821, 823,

4 - OPINION AND ORDER

833–34, 868, 871, 963, 1002, 1050, 1230, 1357, 1368.

To provide

relief from the migraines Plaintiff generally has to be treated
with a cocktail of intravenous drugs.

Tr. 460, 628, 672, 823.

At multiple appointments, treating physician Michelle Mears,
M.D., observed Plaintiff lying on the floor in the fetal position
due to migraine pain.

Tr. 628, 632.

Despite trying a wide

variety of treatment options, Plaintiff's migraines have
persisted.

See, e.g., Tr. 25, 1357, 1368, 1370.

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

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

To meet this burden, a claimant must demonstrate his

inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

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

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
5 - OPINION AND ORDER

supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g).

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

Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial

evidence is "relevant evidence that a reasonable mind might
accept as adequate to support a conclusion."

Molina, 674 F.3d.

at 1110–11 (quoting Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009)).

"It is more than a mere

scintilla [of evidence] but less than a preponderance."

Id.

(citing Valentine, 574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

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

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

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

Even

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

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

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

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

2006).

6 - OPINION AND ORDER

DISABILITY ANALYSIS
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

See also 20 C.F.R. § 404.1520 (2016).

Each step is

potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 404.1520(a)(4)(I).

See also Keyser v.

Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii).

20 C.F.R. §§ 404.1509,

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

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

20 C.F.R.

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

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant's residual functional capacity (RFC).
7 - OPINION AND ORDER

The

claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 404.1520(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

"A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm'r of Soc. Sec. Admin.,

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

20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 404.1520(a)(4)(v).

Keyser, 648 F.3d at 724–25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in 20 C.F.R. part 404, subpart P, appendix 2.

8 - OPINION AND ORDER

If the

Commissioner meets this burden, the claimant is not disabled.

20

C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff had not engaged in
substantial gainful activity since March 5, 2011, the alleged
onset date.

Tr. 19.

At Step Two the ALJ found Plaintiff has the severe
impairments of migraines, myofascial pain syndrome of the back,
and fibromyalgia.

Tr. 19.

The ALJ found Plaintiff's depression,

diabetes mellitus, hypertension, Vitamin D deficiency, and
hyperlipidemia are nonsevere.

Tr. 20–22.

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

Tr. 22.

The ALJ then found

Plaintiff has the RFC to perform light work with the following
limitations:

Plaintiff can sit, stand, and walk about six hours

each in an eight-hour workday; frequently climb ramps and stairs;
never climb ladders, ropes, or scaffolds; occasionally stoop,
kneel, crouch, and crawl; and do no more than simple routine
work.

He also must avoid concentrated exposure to hazards such

as machinery and heights.

9 - OPINION AND ORDER

Tr. 22.

At Step Four the ALJ found Plaintiff is unable to perform
any of his past relevant work.

Tr. 30.

At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy such as
laundry folder, storage-facility rental clerk, and office helper.
Tr. 31.

Accordingly, the ALJ found Plaintiff is not disabled

and, therefore, is not entitled to benefits.

Tr. 32.

DISCUSSION
Plaintiff contends the ALJ erred by (1) improperly
discounting Plaintiff's subjective symptom testimony;
(2) erroneously rejecting the medical opinions of treating
physician Dr. Mears and examining physician Thomas Anderson,
M.D.; (3) improperly crediting the opinion of nonexamining
physician Neal Berner, M.D., over the opinions of Dr. Mears and
Dr. Anderson; (4) erroneously rejecting the lay-witness testimony
of Sheryll Bair, Plaintiff's mother; (5) improperly failing to
analyze Listing 11.03; and (6) improperly determining Plaintiff's
chronic pain syndrome was not a severe impairment.
I.

The ALJ erred when he discounted Plaintiff's subjective
symptom testimony.
Plaintiff contends the ALJ did not provide clear and

convincing reasons for discounting Plaintiff's testimony.

10 - OPINION AND ORDER

In Cotton v. Bowen ,the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments and show the impairment or
combination of impairments could reasonably be expected to
produce some degree of symptom.
1986).

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

The claimant, however, need not produce objective medical

evidence of the actual symptoms or their severity.

Smolen v.

Chater, 80 F.3d 1273, 1284 (1996).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's testimony only if he provides clear and convincing
reasons for doing so.

Parra, 481 F.3d at 750 (citing Lester v.

Chater, 81 F.3d 821, 834 (9th Cir. 1995)).

General assertions

that the claimant's testimony is not credible are insufficient.
Id.  The ALJ must identify "what testimony is not credible and
what evidence undermines the claimant's complaints."

Id.

(quoting Lester, 81 F.3d at 834).
Plaintiff testified at the hearing that his fibromyalgia
causes a burning pain primarily in his arms and back.

Tr. 51.

He explained the more active he is, the worse his pain becomes.
Tr. 52.

Plaintiff testified he cannot stand or sit for very long

due to back pain.

Tr. 58.

Plaintiff is unable to help around

the house and no longer engages in any of his hobbies.
11 - OPINION AND ORDER

Tr. 60,

62.

He explained he would be able to perform two hours of

sedentary work per day, but he stated even that amount would be
challenging for him because his pain builds up over time.
Tr. 58.

Plaintiff indicated having a less stressful job would

probably not make a difference because he enjoyed his previous
jobs, but he became unable to perform them due to pain.

Tr. 61.

Plaintiff reported he has headaches 90 percent of the time and
that the headaches become migraines three or four times per
month.
Tr. 54.

Tr. 54.

After a migraine starts, it can last for days.

If he does not take his anti-nausea pills fast enough,

he cannot keep his pain medications down and has to go to the
emergency room.

Tr. 55.

Plaintiff explained he misses out on

spending time with his family because he spends most of his time
in his room lying down in bed due to his migraines and back pain.
Tr. 63.
The ALJ found Plaintiff's allegations were not fully
credible because his providers recommended exercise and he
attended school during part of the relevant period, which
suggests his "pain may not have been as debilitating as alleged."
Tr. 24.

A physician's recommendation that a claimant perform

therapeutic exercises, however, is not evidence that the claimant
is able to perform or to sustain such activity in a work setting.
See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).
Moreover, the fact that Plaintiff could attend classes for four
12 - OPINION AND ORDER

hours per day in 2013 is not inconsistent with his 2015 testimony
that he is not able to sustain work activities for more than two
hours per day because such a decline is supported by the
contemporaneous assessments by Dr. Mears.

Compare Tr. 844

(Dr. Mears's 2013 opinion that Plaintiff was capable of four
hours of sedentary work per day) with Tr. 1393 (Dr. Mears's 2015
opinion that Plaintiff was capable of two hours of sedentary work
per day).
In support of the ALJ's findings the Commissioner relies on
Plaintiff’s statements that purportedly indicate he can drive,
shop in stores, and use a computer.

Plaintiff testified,

however, that he can only drive short distances on an infrequent
basis and that computer screens make his migraines worse.
Tr. 61, 849.
A claimant's activities of daily living can be used to
discredit a claimant in two ways:

Either the activities can

contradict the claimant's other testimony or the activities can
meet the threshold for transferable work skills.
495 F.3d 625, 639 (9th Cir. 2007).

Orn v. Astrue,

"[D]aily activities may be

grounds for an adverse credibility finding 'if a claimant is able
to spend a substantial part of his day engaged in pursuits
involving the performance of physical functions that are
transferable to a work setting.'"
F.2d at 603).

Id. at 639 (quoting Fair, 885

Because the Commissioner failed to identify how

13 - OPINION AND ORDER

Plaintiff's ability to perform any of the activities in question
contradicted Plaintiff’s testimony, the only issue remaining for
the Court to determine is whether Plaintiff's activities meet the
threshold for transferable work skills.

See id.

Even if

driving, shopping, and using a computer could be considered
skills "transferable to a work setting," the record does not
reflect Plaintiff spends a "substantial part of his day engaged"
in such activities.

In fact, the record reflects Plaintiff

spends very little time engaged in these activities.

Tr. 61

(Plaintiff cannot tolerate using a computer because it makes his
migraines worse); Tr. 291 (when Plaintiff goes shopping with his
wife, he stays in the car because he cannot go in and walk
around); Tr. 849 (Plaintiff drives infrequently).

Accordingly,

Plaintiff's daily activities do not constitute a clear and
convincing reason for the ALJ to reject Plaintiff's subjective
symptom testimony.
The ALJ also noted a purported lack of objective evidence in
the medical record to support Plaintiff’s alleged symptoms on the
ground that imaging of Plaintiff's back showed no more than mild
findings and imaging of his brain was unremarkable.

Tr. 23–24.

The ALJ also found the results of neurological examinations were
unremarkable.

Tr. 24.

Imaging evidence, surgery, and

neurological findings, however, are not required to establish the
existence of fibromyalgia under SSR 12-2p.
14 - OPINION AND ORDER

In fact, the Ninth

Circuit has made clear that diagnosing fibromyalgia "does not
rely on X-rays or MRIs."
657 (9th Cir. 2017).

See Revels v. Berryhill, 874 F.3d 648,

Fibromyalgia "is diagnosed entirely on the

basis of patients reports of pain and other symptoms," and there
"are no laboratory tests to confirm the diagnosis."

Id. at 663

(citing Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir.
2004)(quotations omitted)).

When evaluating whether a claimant's

RFC renders him disabled because of fibromyalgia, the medical
evidence must be construed in light of fibromyalgia's unique
symptoms and diagnostic methods as described in SSR 12-2p and
Benecke.

Id. at 662.

Under SSR 12-2p there are a number of symptoms that are
considered to be clinical "signs" of fibromyalgia including
muscle pain, fatigue or tiredness, muscle weakness, headache,
numbness or tingling, dizziness, insomnia, depression, nausea,
vomiting, or nervousness.

Here the record is replete with

clinical signs of Plaintiff's fibromyalgia (Tr. 74, 287, 408,
431, 439, 468, 472, 484, 489, 491, 506, 512–14, 537, 558, 632,
642, 657, 667, 675–76, 684, 700, 738, 782–83, 811, 826, 847,
1050–51, 1313, 1319, 1360, 1364, 1376).

The SSA bases its

evaluation of fibromyalgia on the American College of
Rheumatology criteria (see SSR 12-2p, at *2), and Dr. Stacey
found Plaintiff met the American College of Rheumatology criteria
for fibromyalgia.

Tr. 484.

15 - OPINION AND ORDER

The ALJ also found Plaintiff's leg-raise tests were negative
for radicular pain, that he does not have any sensory deficits,
and that he has a normal gait.

Tr. 24.

None of these findings,

however, are inconsistent with fibromyalgia.

See SSR 12-2p.

Here the ALJ failed to evaluate Plaintiff's fibromyalgia as
required under SSR 12-2p or the American College of Rheumatology
standards.

The Commissioner, however, contends the ALJ accounted

for Plaintiff's fibromyalgia in his evaluation of Plaintiff's RFC
when the ALJ limited Plaintiff to unskilled work due to his
depression and pain.

The Commissioner further argues Plaintiff

did not identify any evidence that compelled a finding that he
had limitations beyond those in the ALJ's assessment of
Plaintiff's RFC.

The record reflects, however, that Dr. Anderson

concluded Plaintiff would only be able to perform a maximum of
two hours of sedentary work in a normal workday due to his
fibromyalgia and other impairments.

Tr. 855.

The Commissioner contends the opinions of the nonexamining
physicians that Plaintiff can work contradict Plaintiff's claims
that he cannot work.

Def.'s Br. at 16-17.

The Commissioner also

asserts the "objective evidence does not establish that
[Plaintiff's] impairments prevent him from all work."
at 15.

Def.'s Br.

The Commissioner’s assertion is not a sufficiently

specific basis for rejecting Plaintiff's symptom testimony.
Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(The ALJ must
16 - OPINION AND ORDER

"state which . . . testimony is not credible and what evidence
suggests the complaints are not credible.").
did not testify he was incapable of all work.

Moreover, Plaintiff
Tr. 58.

In addition, the ALJ relied on a theory of conservative
treatment to discount Plaintiff's testimony based on the ALJ's
finding that Plaintiff was not compliant with his stretching
regimen.

Tr. 24.

The Commissioner argues it is reasonable for

an ALJ to "make an adverse credibility finding where the claimant
failed to comply with treatment and there is no evidence
suggesting such failure was caused by the claimant's
impairments."

Def.'s Br. at 16 (citing Molina, 674 F.3d at

1114)(emphasis added).

Here, however, there was direct evidence

that Plaintiff's failure to comply with the stretching routine
was caused by his impairments; for example, Dr. Mears opined
Plaintiff would be unable to perform his stretching routine,
and the record reflects exercise made Plaintiff's pain worse.
Tr. 499, 640.
The ALJ also relied on the fact that Plaintiff "was told he
was not a good candidate for injections or surgery until his
condition deteriorated further."

Tr. 26.

This discussion,

however, occurred in the context of Plaintiff's lumbago and
tethered spinal cord, and, in any event, the record does not
indicate that injections or surgery would be appropriate remedies
for migraines and/or fibromyalgia.
17 - OPINION AND ORDER

The ALJ also noted in July

2015 Plaintiff was managing his migraines at home with "ice, cool
showers, quiet rooms, and pain medicine."

Tr. 27.

The fact that

there was a one-month period during which Plaintiff was able to
manage his migraines at home, however, is not sufficient evidence
to reject Plaintiff's symptom testimony.

The ALJ may not merely

cherry-pick isolated inconsistencies with the objective medical
record to discount a plaintiff's entire symptom testimony.

See

Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014)(citing
Holohan v. Massanari, 246 F. 3d 1195, 1205 (9th Cir. 2001))
("Cycles of improvement and debilitating symptoms are a common
occurrence, and in such circumstances it is error for an ALJ to
pick out a few isolated instances of improvement over a period of
months or years and to treat them as a basis for concluding a
claimant is capable of working.").

Moreover, despite managing

his migraines at home for most of July 2015, Plaintiff went to
the emergency room with a migraine on July 31, 2015.

Tr. 1368.

The ALJ also relied on a comment that Plaintiff made in 2015
that his fibromyalgia pain was not as bad during the summer.
Tr. 1330.

A vague reference to improvement in Plaintiff's

fibromyalgia pain during a small portion of the relevant period
is insufficient to discredit Plaintiff's subjective symptom
testimony because fibromyalgia must be considered on a
"longitudinal record" in light of the fact that symptoms "can wax
and wane."

SSR 12-2p.

18 - OPINION AND ORDER

See also Garrison, 759 F.3d at 1017

(citing Holohan, 246 F. 3d at 1205).

In fact, less than a month

after making that comment, Plaintiff's pain returned to such a
degree that he was unable to get out of bed for two days.
Tr. 1322.
The Commissioner also argues Plaintiff ignored advice to
pursue cognitive therapy and refused recommendations to reduce
his narcotic use.

The record reflects, however, that Plaintiff

was receiving counseling for his depression.

Tr. 57, 488, 491.

Moreover, the Ninth Circuit has found it is "a questionable
practice to chastise one with a mental impairment for the
exercise of poor judgment in seeking rehabilitation."
Chater, 100 F.3d 1462, 1465 (9th Cir. 1996).

Nguyen v.

Treating physician

Simon Weaver, M.D., observed Plaintiff "typically improves with
narcotics only," and treating physician Hani Darwich, M.D., noted
there were not any "easy answers" for the problem of Plaintiff's
increasing resistance to narcotic medications.

Tr. 687, 874.

In addition, treating physician Wan-Jui Chen, M.D., noted
Plaintiff had tried "almost all known prophylactic treatments and
indicated that [Plaintiff's] headaches may be intractable."
Tr. 25.

Dr. Darwich observed it was "undoubtedly difficult to

imagine that anything other than some narcotic will abate his
headache."

Tr. 1370.

Despite concerns about narcotics,

Plaintiff's primary care provider continued to prescribe them
because none of his providers found an effective alternative.
19 - OPINION AND ORDER

The ALJ also found the medical record showed Plaintiff's
symptoms improved with medication.

Tr. 24.

Specifically, the

ALJ relied on the fact that in 2011 Plaintiff reported Lyrica and
Oxycontin helped his pain.

Tr. 24.

As noted, isolated reports

of improvement are insufficient to undermine Plaintiff's
subjective symptom testimony.

See Garrison, 759 F.3d at 1017

(citing Holohan, 246 F. 3d at 1205).

Plaintiff's purported

conservative treatment, therefore, is not a sufficient basis for
discounting his symptom testimony.
Finally, the ALJ discounted Plaintiff's symptom testimony
based on his alleged drug-seeking behavior.

The ALJ found there

was "consistent evidence of likely overuse of narcotic
medication."

Tr. 24.

The ALJ determined the "record includes

persuasive evidence that [Plaintiff's] overuse of his prescribed
medications actually exacerbate[d] his allegedly disabling
headaches."

Tr. 25.

The ALJ found the record showed Plaintiff

had engaged in "drug-seeking behavior."

Tr. 25.

The ALJ also

relied on a treatment note from Dr. Mears that indicated Dilaudid
helped Plaintiff the most, but Plaintiff became addicted to it.
Tr. 25.

Treating physician David Craig, M.D., concluded

Plaintiff's headaches were worsened by his chronic use of
narcotics.

Tr. 26.

The ALJ also identified evidence in the

medical record that indicated Plaintiff had become "resistant" to
the pain-relieving effects of Dilaudid.
20 - OPINION AND ORDER

Tr. 26.

Nevertheless,

as noted, Dr. Chen indicated other medications had not been
effective in treating Plaintiff's migraines, and Dr. Darwich
observed narcotic medications appeared to be the only viable
remedy for Plaintiff. Tr. 25, 1370.

Although Dilaudid became

less effective over time, Dr. Mears increased Plaintiff's dosage.
Tr. 676, 683, 687, 1357.

The overwhelming evidence in the

record, however, indicates the increasing usage of Dilaudid was
not due to any drug-seeking behavior but rather to the fact that
it was the only way Plaintiff could get relief from his
debilitating migraines, and Dr. Mears continued to prescribe
Dilaudid due to a lack of alternatives.

Tr. 1099-1102, 1325-26.

Plaintiff tried numerous pain medications and a wide variety of
alternative treatments including biofeedback, relaxation
exercises, and acupuncture.

Tr. 53, 411, 640.

Plaintiff also

looked into a new type of therapy in which electrodes would be
embedded into his head, but his insurance did not cover that
therapy.

Tr. 54.

In addition, Plaintiff explored treatment

options with naturopaths, neurologists, and dentists.

Tr. 53.

Ultimately none of the other treatment options proved to be
effective.
When a claimant falsely reports or exaggerates symptoms to
obtain unneeded medications, such behavior undermines the
claimant's symptom testimony.

On the other hand, when, as in

this case, a claimant takes more of his medication than
21 - OPINION AND ORDER

prescribed due to desperation in seeking relief from high levels
of pain, it supports his credibility.

Although some concern was

expressed by Plaintiff’s medical providers that Plaintiff's
increasing use of narcotics could lead to rebound headaches, the
record does not indicate Plaintiff was engaging in drug-seeking
behaviors.

In fact, Dr. Mears, Plaintiff's treating physician,

explicitly concluded Plaintiff's migraines were not the result of
abusing his medications and that he was not engaged in drugseeking behavior, Dr. Anderson "did not detect signs of symptom
magnification or secondary gain," and Dr. Craig acknowledged
Plaintiff's migraines were "certainly severe and troublesome"
despite his concerns that narcotics may not be the best treatment
option for Plaintiff.

Tr. 823, 954, 1313.

To support his conclusion that Plaintiff was drug-seeking,
the ALJ cited an emergency-room visit in which the cocktail of IV
medications consisting of Toradol, Zofran, and Decadron failed to
relieve Plaintiff's migraine pain.

Tr. 27.

The doctor refused

to provide Plaintiff with further narcotics, and Plaintiff became
angry and ripped out the IV.

Tr. 27.

The ALJ, however,

mischaracterized the record; i.e., although Dr. Weaver
acknowledged Plaintiff's migraines typically improved only with
narcotics, he refused to medicate Plaintiff with narcotics.
Tr. 874.

This isolated event, when viewed in the context of

Plaintiff’s repeated difficulty in getting relief from his
22 - OPINION AND ORDER

migraines, is insufficient to infer that Plaintiff was drugseeking.
Moreover, at the hearing the ALJ actually found Plaintiff
does not "abuse his medication."

Tr. 46.

In fact, the ALJ made

a point of stating on the record that he was not making such a
finding.

Tr. 46 ("I do have to consider that issue, but I'm

going to just say on the record that I'm not—that's not going to
be my finding.").

The Commissioner, however, asserts in a

footnote that the ALJ's conclusion as to Plaintiff not abusing
his medications was in the context of determining that the ALJ
did not need to engage in a drug abuse or alcoholism (DAA)
analysis.

Regardless of the context, the fact that the ALJ made

an unequivocal finding that Plaintiff did not abuse his
medications certainly undermines the ALJ’s later conclusion that
Plaintiff was drug-seeking.
In addition, the record does not reflect Plaintiff
exaggerated his symptoms.

To the contrary, it is evident that

the increased dosage of Dilaudid was due to the unfortunate
confluence of circumstances consisting of his unbearable migraine
pain, the gradual decrease in Dilaudid's effectiveness, and the
lack of a viable alternative treatment.
On this record the Court concludes the ALJ erred when he
improperly discounted Plaintiff’s subjective symptom testimony
without providing legally sufficient reasons for doing so.
23 - OPINION AND ORDER

II.

The ALJ erroneously rejected the medical opinions of Dr.
Mears, Plaintiff's treating physician, and Dr. Anderson,
Plaintiff's examining physician, and improperly credited the
opinion of Dr. Berner, Plaintiff's nonexamining physician.
Plaintiff alleges the ALJ erred when he gave little weight

to the opinions of Drs. Mears and Anderson and credited the
opinion of Dr. Berner's opinion over those of Drs. Mears and
Anderson.
A.

Standards
An ALJ may reject an examining or treating physician's

opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record.
1232.

Taylor, 659 F.3d at

When the medical opinion of an examining or treating

physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.

Turner v. Comm’r of

Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010)(quoting Lester, 81
F.3d at 830–31).
A nonexamining physician is one who neither examines nor
treats the claimant.
759 F.3d at 1012.

Lester, 81 F.3d at 830.

See also Garrison,

"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

24 - OPINION AND ORDER

a treating physician."
81 F.3d at 831).

Taylor, 659 F.3d at 1234 (quoting Lester,

When a nonexamining physician's opinion

contradicts an examining physician's opinion and the ALJ gives
greater weight to the nonexamining physician's opinion, the ALJ
must articulate his reasons for doing so with specific and
legitimate reasons supported by substantial evidence.

See, e.g.,

Ryan, 528 F.3d at 1198.
B.

Opinion of Dr. Mears, Plaintiff's Treating Physician
Dr. Mears was Plaintiff's treating physician for over

11 years.

Tr. 59.

During the period from March 20, 2010,

through December 10, 2015, she saw him over fifty times.

At

multiple appointments Dr. Mears observed Plaintiff lying on the
floor in the fetal position due to the overwhelming pain of his
migraines.

Tr. 628, 632.

Dr. Mears diagnosed Plaintiff with

fibromyalgia and migraines.

Tr. 640.

In June 2013 Dr. Mears

opined Plaintiff was capable of performing four hours of
sedentary work in an eight-hour workday.

Tr. 844.

In January

2015 as Plaintiff's ailments progressed, Dr. Mears determined
Plaintiff was capable of performing only two hours of sedentary
work in an eight-hour workday.

Tr. 1393.

The ALJ gave Dr. Mears's opinion little weight on the
ground that it was "based largely on [Plaintiff's] subjective
complaints."

Tr. 28.

The ALJ relied on a March 2015 treatment

note in which Plaintiff commented he could complete only two
25 - OPINION AND ORDER

hours of sedentary work per day.

Tr. 28.

The Commissioner

argues Dr. Mears's form could have been influenced by Plaintiff's
statement because the January form was resubmitted in March.
Nevertheless, the form was filled out, signed, dated, and
submitted on January 19, 2015.

Tr. 1393.

The fact that the form

was resubmitted in March with the same functional limitations is
irrelevant because Dr. Mears reached her medical conclusions
before Plaintiff made his comment.

Thus, the ALJ's inference

that Dr. Mears's January 2015 opinion was based on Plaintiff's
March 2015 statement is unreasonable on its face.
The ALJ also found Dr. Mears's opinion was not
supported by the medical record.

To support his finding, the ALJ

cited the mild imaging of Plaintiff's back, unremarkable imaging
of Plaintiff's brain, and unremarkable neurological examinations.
Tr. 28.

The mild imaging is not an adequate reason for rejecting

Dr. Mears's opinion, however, because Dr. Mears's opinion was
based on diagnoses of migraines and fibromyalgia, which are not
measurable through imaging.

See SSR 12-2p.

See also Revels, 874

F.3d at 657; Needham v. Comm'r Soc. Sec., No. 3:16-cv-1380-YY,
2017 WL 4052184, at *10 (D. Or. Aug. 8, 2017)(citing Mehrnoosh v.
Astrue, No. cv-10-52-HZ, 2011 WL 2173809, at *7 (D. Or. Jun. 2,
2011))("[M]igraines are not susceptible to detection and
quantification by laboratory testing and/or medical imaging.").

26 - OPINION AND ORDER

The ALJ also found Plaintiff's treatment was routine
and conservative because he never had surgery on his back.
Tr. 29.

As noted, however, there is nothing in the record to

suggest that surgery is an appropriate course of treatment for
fibromyalgia or migraines.

The ALJ also found Dr. Mears's

opinion was inconsistent with "some medical evidence" showing
"some symptomatic improvement with medication."

Tr. 29.

The

ALJ, however, did not explain which medical evidence showed
improvement with which symptoms or to what degree the symptoms
improved, which is not a sufficiently specific reason for
rejecting Dr. Mears' opinion.

See Revels, 874 F.3d at 654.

See

also Lester, 81 F.3d at 830–31.
The ALJ also found Dr. Mears's opinion was not
consistent with her own recommendation that Plaintiff increase
his exercise.

Tr. 29.

As noted, a physician's recommendation

that a claimant perform therapeutic exercises is not evidence
that the claimant is capable of full-time employment.

Vertigan,

260 F.3d at 1050.
The ALJ also found Dr. Mears's opinion was inconsistent
with Plaintiff's ability to go to class and his noncompliance
with a stretching regimen.

Tr. 29.

In 2013 Plaintiff began

taking classes at Portland Community College, but he only
completed two terms because he was experiencing memory problems,
was "very stressed," and sitting in class exacerbated his back
27 - OPINION AND ORDER

pain.

Tr. 90–91, 664–65, 847.

Moreover, he only spent four

hours per day in class, which was consistent with Dr. Mears's
contemporaneous opinion from June 2013 in which he indicated
Plaintiff was only capable of four hours of sedentary work per
day.

Tr. 844.

Ultimately Dr. Mears advised Plaintiff to

discontinue the classes.

Tr. 847.

Moreover, the fact that Plaintiff was noncompliant with
his stretching routine is also consistent with Dr. Mears's
opinion that Plaintiff would be unable to perform the stretching
exercises as well as other evidence that exercise worsened
Plaintiff’s pain.

Tr. 499, 640.

On this record the Court concludes the ALJ erred when
he failed to provide legally sufficient reasons supported by
substantial evidence in the record for rejecting Dr. Mears’s
opinion.
C.

Opinion of Dr. Anderson, Plaintiff's Examining
Physician
On November 23, 2013, Dr. Anderson examined Plaintiff

and also reviewed Plaintiff's medical records.

Tr. 857, 861–63.

Dr. Anderson observed Plaintiff appeared uncomfortable during the
examination, rubbed his arms frequently, moved his feet
frequently, and changed positions from sitting to standing
frequently.

Tr. 849.

He noted the medical records reflected

Dr. Stacy had previously determined Plaintiff met the American
28 - OPINION AND ORDER

College of Rheumatology criteria for fibromyalgia.

Tr. 851.

Dr. Anderson opined Plaintiff would be incapacitated during his
severe migraine episodes.

Tr. 854.

He also concluded Plaintiff

was unable to maintain employment in any occupation as he was
only capable of a maximum two hours of sedentary work per day
due to his migraine headaches, chronic pain syndrome,
fibromyalgia, and chronic back pain.

Tr. 855.

The ALJ gave Dr. Anderson's opinion little weight in
part because Dr. Anderson only examined Plaintiff once.

Tr. 28.

The fact that Dr. Anderson performed a one-time examination,
however, is not in and of itself a sufficient reason to reject
Dr. Anderson's opinion.

It is particularly unreasonable in this

case for the ALJ to reject Dr. Anderson's opinion on that basis
because the ALJ gave "great weight" to the opinion of Dr. Berner,
a nonexamining physician, on the ground that he "had the benefit
of reviewing medical records from several treating sources" even
though Dr. Anderson reviewed more records from Plaintiff's
treating sources and Dr. Berner never examined Plaintiff.
Moreover, Dr. Anderson performed his review of Plaintiff's
records nearly one year after Dr. Berner, which gave Anderson a
more comprehensive review of Plaintiff's longitudinal record.
The Commissioner, nevertheless, argues the regulations
allow an ALJ to give less weight to an examining opinion than an
opinion based on more continuous treatment.
29 - OPINION AND ORDER

Here, as noted

however, the ALJ gave Dr. Anderson's opinion less weight than Dr.
Berner's despite the fact that Dr. Berner's opinion was not based
on more continuous treatment nor on any treatment or
examination.
The Commissioner also argues Dr. Anderson's opinion was
contradicted by the opinions of Drs. Berner and Arnold.
Nevertheless, the nonexamining opinions alone are insufficient to
reject Dr. Anderson’s examining opinion because "[t]he opinion of
a non-examining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."

Lester, 81 F.3d at

831.
The ALJ also found Dr. Anderson's opinion was not
supported by the medical record and cited the mild imaging of
Plaintiff's back, unremarkable imaging of Plaintiff's brain, and
unremarkable neurological examinations.

Tr. 28.

As noted,

migraines and fibromyalgia are not measureable through imaging.
Accordingly, the ALJ erred when he based his opinion on the lack
of imaging.

See Benecke, 379 F.3d at 594 (ALJ erred by

"effectively requiring objective evidence for a disease that
eludes such measurement.")(citation and bracketing omitted).
The ALJ also found Plaintiff's treatment was routine
and conservative because he never had surgery.

Tr. 28.

Plaintiff's severe migraines, however, necessitated dozens of
30 - OPINION AND ORDER

trips to the emergency room where his treatment generally
consisted of a combination of several intravenous medications.
Even at home he was heavily medicated with narcotics and a bevy
of additional medications for his migraines, depression, and
fibromyalgia, including Triazalom, Trazadone, Baclofen,
Escitalopram, Promethazine, and Methylprednisolone.
Tr. 1099–1104.

Thus, Plaintiff's treatment was far from routine.

As noted, the ALJ also found Dr. Anderson's opinion was
inconsistent with "some medical evidence" showing "some
symptomatic improvement with medication."

Tr. 28.

This

rationale, however, is not a proper basis for rejecting a
doctor's opinion because it is not sufficiently specific.
The ALJ also found Dr. Anderson's opinion was
inconsistent with Plaintiff's overuse of narcotic medications.
Tr. 28.

As noted, the ALJ expressly found during the hearing

that Plaintiff does not "abuse his medication."

Tr. 46.

Moreover, Dr. Mears specifically noted Plaintiff was not
"exaggerating his pain symptoms in order to obtain medications."
Tr. 1313.

Drs. Berner and Arnold also indicated there was not

any evidence of substance abuse.

Tr. 120, 133.

The ALJ also found Dr. Anderson's opinion was
inconsistent with Plaintiff's ability to go to class.

Tr. 28.

The Commissioner concedes Plaintiff had to quit going to school,
but the Commissioner alleges Plaintiff quit for "reasons
31 - OPINION AND ORDER

unrelated to his physical impairments."

Def.'s Br. at 11.

The

Commissioner, however, does not identify any of those purported
reasons, and the record reflects Plaintiff quit going to school
because of mental, emotional, and physical impediments including
back pain caused by sitting in class.

Tr. 90–91, 664–65, 847.

The Commissioner also argues Plaintiff ignored
recommendations to curtail his narcotic use.

Even though there

were suggestions that Plaintiff reduce his narcotic use,
Dr. Mears continued to prescribe Dilaudid because a viable
alternative for Plaintiff was never discovered.
In addition, the Commissioner argues Dr. Anderson's
opinion was based on Plaintiff's back pain rather than on his
migraines or fibromyalgia, and, therefore, Dr. Anderson's
conclusions regarding Plaintiff's migraines and fibromyalgia were
either not specific or were not clearly inconsistent with the
ALJ'S evaluation of Plaintiff's RFC.
not bear this out.

The record, however, does

Dr. Anderson concluded Plaintiff would be

unable to work in any occupation because he was only capable of
performing a maximum of two hours of sedentary work in a normal
workday due to his fibromyalgia, migraines, and other
impairments.

Tr. 855.

On this record the Court concludes the ALJ erred when
he failed to provide legally sufficient reasons supported by
substantial evidence in the record for rejecting Dr. Anderson’s
32 - OPINION AND ORDER

opinion.

D.

Opinion of Dr. Berner, Plaintiff's Nonexamining
Physician
The ALJ gave "great weight" to Dr. Berner's opinion

because "he had the benefit of reviewing medical records from
several treating sources and had a longitudinal picture of the
claimant's health."

Tr. 29.

As noted, an ALJ may "set forth specific, legitimate
reasons for crediting one medical opinion over another."
Garrison, 759 F.3d at 1012.

The ALJ credited Dr. Berner's

opinion over the opinions of both Dr. Anderson and Dr. Mears even
though the "longitudinal picture" that Dr. Berner reviewed
extended less than two years into the relevant period and, as
conceded by the ALJ, Dr. Berner did not review the medical
opinions of either Dr. Mears or Dr. Anderson.

Tr. 29.

Moreover,

the Court notes both Dr. Mears and Dr. Anderson reviewed
Plaintiff's medical records and both had access to a greater
longitudinal picture.
The ALJ also relied on the fact that Dr. Berner was "an
expert and has experience in the vocational issues involved in
the disability program under the Social Security Act."

Tr. 29.

This is an improper basis for crediting the opinion of a
nonexamining physician over the opinions of examining and
33 - OPINION AND ORDER

treating physicians that would result in a per se rule allowing
an ALJ to credit a nonexamining physician over examining and
treating physicians in every Social Security case and completely
upend the established precedent for evaluating a physician's
opinions.

See Lester, 81 F.3d at 830 (The opinions of treating

physicians and examining physicians are generally accorded
greater weight than the opinions of nonexamining physicians).
See also 20 C.F.R. §§ 404.1527(c)(1), 404.1527(c)(2).
The ALJ also found Dr. Berner's opinion was consistent
with the mild imaging, Plaintiff's conservative treatment, the
medical evidence showing "some improvement," Dr. Mears's
recommendation that Plaintiff increase his exercise, and
Plaintiff's ability to go to school.

Tr. 29.

As noted, the mild

imaging was not inconsistent with migraines and fibromyalgia and,
therefore, was not a proper basis for crediting Dr. Berner over
Drs. Mears and Anderson.

Moreover, assertions that Plaintiff

showed "some improvement" in some of his symptoms when using
medication was not a valid reason for crediting Dr. Berner over
of Dr. Mears and Dr. Anderson.

Finally, the fact that Plaintiff,

with great difficulty, could attend classes for four hours a day
was consistent with Dr. Mears's determination that Plaintiff was
capable of four hours of sedentary work per day, and Plaintiff's
ability to sit in class for four hours a day does not support Dr.
Berner's conclusion that Plaintiff could stand or walk for up to
34 - OPINION AND ORDER

six hours per day.
Accordingly, on this record the Court concludes the ALJ
erred when he credited Dr. Berner’s opinion over the opinions of
Drs. Mears and Anderson because the ALJ failed to provide legally
sufficient reasons supported by substantial evidence in the
record for doing so.
III. The ALJ improperly rejected Sheryll Bair’s lay-witness
testimony.
Plaintiff asserts the ALJ erred when he gave little weight
to the lay-witness testimony of Sheryll Bair, Plaintiff's mother.
Lay-witness testimony regarding a claimant's symptoms is
competent evidence that the ALJ must consider unless he
"expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so."
236 F.3d 503, 511 (9th Cir. 2001).

Lewis v. Apfel,

The ALJ's reasons for

rejecting lay-witness testimony must be "specific."

Stout v.

Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
Nevertheless, an ALJ is not required to address each lay-witness
statement or testimony on an "individualized, witness-by-witnessbasis.

If the ALJ gives germane reasons for rejecting testimony

by one witness, the ALJ need only point to those reasons when
rejecting similar testimony by a different witness."

Molina v.

Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)(quotation omitted).

35 - OPINION AND ORDER

Germane reasons for discrediting lay-witness testimony
include inconsistency with the medical evidence and the fact that
the testimony "generally repeat[s]" the properly discredited
testimony of a claimant.
1218 (9th Cir. 2005).

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

See also  Williams v. Astrue, 493 F. App'x

866 (9th Cir. 2012).
The ALJ gave "moderate weight" to Sheryll Bair's statements
regarding Plaintiff's daily activities, but the ALJ gave "little
weight" to Sheryll Bair's statements regarding Plaintiff's
limitations and capabilities on the ground that her testimony was
based on Plaintiff's subjective testimony that was not supported
by the medical record.

Tr. 30.

The ALJ, however, erred when she

rejected Sheryll Bair's testimony on the basis that her
observations of claimant's symptoms were not supported by medical
evidence such as the mild imaging.
1113, 1116 (9th Cir. 2009).

Bruce v. Astrue, 557 F.3d

As noted Plaintiff's migraines and

fibromyalgia are not measurable through imaging.
The ALJ also found "as a family member perhaps concerned
about her responsibilities to support [Plaintiff], [Sheryll Bair]
may have an underlying financial incentive in seeing the claimant
obtain federal disability benefits."

Tr. 30.

A close family

member, however, is not disqualified from rendering a competent
opinion of how a claimant's impairment affects his ability to
perform basic work activities.
36 - OPINION AND ORDER

Bruce, 557 F.3d at 1116.

See

also Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th
Cir. 2009)(ALJ may not reject lay-witness testimony on the basis
that the witness is an "interested party" in the "abstract").
Thus, the Court finds the ALJ erred when he rejected the laywitness testimony of Sheryll Bair because the ALJ did not provide
legally sufficient reasons for doing so.
The Commissioner, however, argues when a lay witness does
not describe limitations beyond those described by Plaintiff and
the ALJ properly rejected the Plaintiff's subjective symptom
testimony, any error in rejecting the lay-witness testimony would
be harmless.

Molina, 674 F.3d at 1117.

Here, however, the ALJ's

error was not harmless because, as noted, the Court has concluded
the ALJ erred when he failed to provide legally sufficient
reasons for rejecting Plaintiff’s subjective symptom testimony.

REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.

Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).

issue turns on the utility of further proceedings.

The

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.
37 - OPINION AND ORDER

Strauss v. Comm'r, 635

F.3d 1135, 1138–39 (9th Cir. 2011)(quoting Benecke, 379 F.3d at
593).

The court may not award benefits punitively and must

conduct a "credit-as-true" analysis to determine whether 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 when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such evidence,
(2) there are not any 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 if such evidence were credited.
Id.  The reviewing court should decline to credit testimony when
"outstanding issues" remain.
(9th Cir. 2010).

Luna v. Astrue, 623 F.3d 1032, 1035

When the court finds the elements of the

"credit-as-true" rule have been satisfied, however, the court may
only remand for further proceedings if "an evaluation of the
record as a whole creates serious doubt that the claimant is, in
fact, disabled."

Garrison, 759 F.3d at 1021.

When "the

Commissioner fails to provide adequate reasons for rejecting the
treating physician's opinion, we credit that opinion as a matter
of law."

Lester, 81 F.3d at 834.

See also Reddick v. Chater,

157 F.3d 715, 729 (9th Cir. 1998)("We do not remand this case for
further proceedings because it is clear from the administrative
record that Claimant is entitled to benefits."); Rodriguez v.
Bowen, 876 F.2d 759, 763 (9th Cir. 1989)(if remand for further
38 - OPINION AND ORDER

proceedings would only delay the receipt of benefits, judgment
for the claimant is appropriate).
Here the Court has concluded the ALJ erred when he failed to
provide legally sufficient reasons supported by substantial
evidence in the record for rejecting the opinions of Drs. Mears
and Anderson, Plaintiff's testimony, and the lay-witness
testimony of Sheryll Bair.
To determine whether there are any outstanding issues, the
court looks at whether there are "significant factual conflicts
in the record."

Treichler v. Comm’r of Soc. Sec. Admin., 775

F.3d 1090, 1104 (9th Cir. 2014).

Here the Commissioner asserts

the opinions of the nonexamining state-agency physicians create a
significant conflict.

Although Drs. Arnold and Berner both

concluded Plaintiff was capable of sitting, standing, and walking
for six hours in an eight-hour day, the medical record is devoid
of any evidence that supports such a conclusion.

Moreover, the

opinions of Drs. Mears and Anderson that Plaintiff could only
perform two hours of sedentary work in an eight-hour workday were
consistent with Plaintiff's testimony and the lay-witness
testimony.

In addition, the opinions of the nonexamining doctors

were based entirely on their review of the incomplete medical
records that covered only a portion of the longitudinal record.
Tr. 29, 115–19, 129–31.

Moreover, the Court has concluded the

ALJ improperly credited Dr. Berner’s opinion over the opinions
39 - OPINION AND ORDER

of Drs. Mears and Anderson.

Accordingly, the opinions of

Drs. Arnold and Berner do not give rise to "significant factual
conflicts."

See Treichler, 775 F.3d at 1104.

Thus, there are

any outstanding issues.
After crediting as true the opinions of Drs. Anderson and
Mears as well as the testimony of Plaintiff and Sheryll Bair, the
ALJ would be required to find on remand that Plaintiff is
disabled because their opinions and testimony show Plaintiff
would only be able to perform two hours of sedentary work per
day.

Tr. 58, 331, 855, 1393.

As a result, Plaintiff would be

unable to perform work on a regular and continuing basis.

SSR

96-8p ("A 'regular and continuing basis' means 8 hours a day, for
5 days a week, or an equivalent work schedule.").
When each of the credit-as-true factors is satisfied, only
in "rare instances" does the record as a whole leave "serious
doubt as to whether the claimant is actually disabled."
874 F.3d at 668 n.8 (citing Garrison, 759 F.3d at 1021).

Revels,
The

Court does not find this case to be one of those "rare
instances."

Thus, "it is clear from the administrative record

that [Plaintiff] is entitled to benefits," and, therefore, no
useful purpose would be served by further administrative
proceedings.

See Reddick, 157 F.3d at 729.

Because the Court’s conclusions are dispositive of this
matter, the Court "decline[s] to reach [Plaintiff's] alternative
40 - OPINION AND ORDER

ground[s] for remand."

Hiler v. Astrue, 687 F.3d 1208, 1212 (9th

Cir. 2012).

CONCLUSION
For these reasons, the Court REVERSES  the decision of the
Commissioner and REMANDS  this matter to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate
calculation and award of benefits.
IT IS SO ORDERED.
DATED this 8th day of May, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

41 - OPINION AND ORDER