DeGroot v. Commissioner of Social Security Administration
Filing
17
OPINION AND ORDER. The decision of the Commissioner is REVERSED and this matter is REMANDED for the immediate payment of benefits. Signed on 10/22/2018 by Magistrate Judge Youlee Yim You. (pvh)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
VALERIE D.,1
Plaintiff,
Case No. 3:17-cv-01774-YY
v.
OPINION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
YOU, Magistrate Judge:
Valerie D. (“plaintiff”), seeks judicial review of the final decision by the Commissioner
of Social Security (“Commissioner”) denying her application for Title II Disability Insurance
Benefits (“DIB”) under the Social Security Act (“Act”). This court has jurisdiction to review the
Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the
Commissioner’s decision is not supported by substantial evidence, it is REVERSED and
REMANDED for the immediate payment of benefits.
///
1
In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member(s).
1 – OPINION AND ORDER
BACKGROUND
Born in October 1952, plaintiff was 60 years old on the alleged onset date. Tr. 87. She
has master’s degrees in both finance and taxation. Tr. 52-53. Plaintiff has past relevant work
experience as an accountant and a controller. Tr. 31.
Plaintiff has been diagnosed with fibromyalgia, arthritis, migraines, severe fatigue,
chronic pain, celiac disease, bursitis, hypoglycemia, gastro-esophageal reflux disease, asthma,
IBS, alopecia, depression, ADHD, and anxiety. Tr. 319, 391, 394, 417, 444, 484, 522, 525.
Plaintiff’s depression and anxiety were treated with therapy and an ever-changing
cocktail of medications, including Klonopin, Lexapro, Pristiq, Topamax, Paxil, Effexor, Zoloft,
and Wellbutrin. Tr. 384, 440, 444, 535, 542. Notwithstanding treatment, plaintiff struggled with
stress and would often become overwhelmed. Tr. 165, 305, 551, 599. Plaintiff suffers from
alopecia, which resulted in a complete loss of all hair on her body. Tr. 414, 441. Dr. Puziss
concluded that the alopecia was probably caused by stress. Tr. 542. Dr. Parent determined
plaintiff was not capable of even a low-stress job. Tr. 165. Plaintiff explained that she structures
her life to avoid as much stress as possible, mostly by avoiding social interaction. Tr. 305.
Plaintiff consistently reported pain and fatigue to her treating providers. Tr. 448, 465,
468-69, 479, 495, 502, 518, 521, 537, 545, 550, 552, 564, 591, 595, 597, 603. Plaintiff’s fatigue
inhibited her ability to perform daily activities. She explained that she usually gives up on
household chores because she runs out of energy, and she sometimes goes to bed hungry because
she does not have the energy to prepare food. Tr. 298, 300. Dr. Parent opined that plaintiff’s
fatigue was caused by fibromyalgia. Tr. 521. Beginning in 2011, plaintiff began arriving later
and later to her job due to the fibromyalgia-related fatigue. Tr. 54, 311. By the time she stopped
working completely, plaintiff had been reduced to working only 10 hours per week. Tr. 54.
2 – OPINION AND ORDER
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on November 22, 2013, alleging disability
beginning August 23, 2013. Tr. 21. Plaintiff’s claim was initially denied on May 16, 2014, and
upon reconsideration on September 4, 2014. Id. On March 21, 2016, a hearing was held before
an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and
testified, as did a vocational expert (“VE”). Tr. 38-76. On September 6, 2016, the ALJ issued a
decision finding plaintiff not disabled within the meaning of the Act. Tr. 21-32. After the
Appeals Council denied her request for review, plaintiff filed a complaint in this court. Tr. 1-7.
The ALJ’s decision is therefore the Commissioner’s final decision subject to review by this
court. 20 C.F.R. § 422.210.
STANDARD OF REVIEW
The reviewing court 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. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the
evidence that supports and detracts from the ALJ’s conclusion and “‘may not affirm simply by
isolating a specific quantum of supporting evidence.’” Garrison v. Colvin, 759 F.3d 995, 100910 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The
reviewing court may not substitute its judgment for that of the Commissioner when the evidence
can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742,
746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational
interpretation, the Commissioner’s decision must be upheld if it is “supported by inferences
reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citation omitted); see also Lingenfelter, 504 F.3d at 1035.
3 – OPINION AND ORDER
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
Disability is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to
determine whether a claimant is disabled within the meaning of the Act. This sequential analysis
is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit
case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v.
Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ’s decision in this case, Tr. 22-23.
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
after the alleged onset date. Tr. 23.
At step two, the ALJ found that plaintiff has the following severe impairments: obesity
and fibromyalgia. Id.
At step three, the ALJ found plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. Tr. 27. The ALJ next assessed
plaintiff’s residual functional capacity (“RFC”) and determined that she could perform light
work with the following limitations: she cannot climb ladders, ropes or scaffolds; she can
frequently climb ramps and stairs; she can frequently stoop, kneel, crouch and crawl; and she
should avoid exposure to hazards, dusts, odors, fumes, and gasses. Tr. 28.
At step four, the ALJ found plaintiff could perform her past relevant work as an
accountant or controller. Tr. 31. By finding plaintiff was able to do past relevant work, the ALJ
determined plaintiff was not disabled; therefore, the ALJ did not proceed to step five. 20 C.F.R.
§§ 404.1520(a)(4); 404.1520(f).
4 – OPINION AND ORDER
DISCUSSION
Plaintiff argues that the ALJ: (1) improperly discounted her subjective symptom
testimony; (2) erroneously assessed the medical opinion of Dr. Parent; (3) and incorrectly
determined that plaintiff’s depression and anxiety were not severe.
I.
Subjective Symptom Testimony
Plaintiff alleges that the ALJ erroneously discounted her subjective symptom testimony.
When a claimant has medically documented impairments that could reasonably be expected to
produce some degree of the symptoms complained of, and the record contains no affirmative
evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity of . . .
symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v.
Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). 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 reasons proffered must be “sufficiently specific to permit the reviewing
court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the “ALJ’s credibility
finding is supported by substantial evidence in the record, [the court] may not engage in secondguessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
At the hearing, plaintiff testified that due to fatigue and stress she began working fewer
and fewer hours until she could no longer work at all. Tr. 54. She explained that on some
mornings she lies in bed for a couple of hours trying to summon the energy to get up. Tr. 70.
Sometimes she goes back to bed shortly after getting up because she is in so much pain. Tr. 71.
She testified that some nights she goes to bed hungry because she does not have the energy to
5 – OPINION AND ORDER
cook. Tr. 68-69. Plaintiff reported that even when she does cook, she usually makes packaged,
canned, or frozen foods. Tr. 299. She usually just eats crackers and nuts for breakfast and lunch.
Id. Plaintiff conveyed that she often has food rotting in her refrigerator day after day because she
never has the energy to prepare it. Tr. 298.
Plaintiff testified that she struggles to do laundry and has a hard time keeping her kitchen
clean. Tr. 65. She explained that she only does the dishes once per week. Tr. 69. She also
reported that when she does laundry she often leaves the clean clothes on the couch for up to a
month before she gets to folding them. Tr. 300. Plaintiff recounted that vacuuming is painful
and she only manages to do it every three to four weeks. Tr. 69. She explained that she
vacuums one room but then gets tired and leaves the vacuum there for weeks before attempting
to vacuum the next room. Tr. 301. She hires people to clean her house when she has the money
because she cannot stay on top of it herself. Tr. 70. Plaintiff noted that she is only able to spend
30 minutes to an hour on housework each day. Tr. 298. Even when she does manage to get the
house clean, it leaves her so exhausted for the next few days that it gets dirty again and she
cannot keep up. Tr. 301.
Plaintiff testified that she showers once per week. Tr. 67. She also reported that she
sometimes wears the same clothes day and night, two to five days in a row, though she will
change if she goes out. Tr. 299. Plaintiff noted that she does not leave home very often and
described her existence as pretty isolated and solitary. Tr. 302-03. She reported that she
structures her life to avoid as much stress as possible, mostly by avoiding social interaction. Tr.
305. Plaintiff further explained that she can function in the quiet solitude of her little house, but
if she tries to do anything beyond that, she starts to fall apart. Tr. 58-59.
6 – OPINION AND ORDER
A.
Conservative Treatment
The ALJ found that plaintiff “had fairly routine and conservative treatment for her
fibromyalgia[.]” Tr. 29. The ALJ also noted that plaintiff “rarely, if ever” complained of
extreme limitations in activities such as lifting, carrying, sitting, standing, or walking. Id.
While plaintiff may not have discussed those specific limitations, she regularly reported
fibromyalgia pain and joint pain. Tr. 395-97, 452, 455, 518-19, 521, 525, 545-56, 597, 603.
Moreover, plaintiff’s fibromyalgia caused fatigue, and plaintiff often reported fatigue that limited
her ability to persist in exertional activities. Tr. 387, 424, 448, 468, 479, 495, 521, 561, 573, 591,
595.
The ALJ noted that plaintiff had not been prescribed pain medication from January
through June of 2014 or at any point after 2014. Tr. 29. However, although plaintiff did not see
a doctor for pain management between January and June 2014, she continued to take her pain
medications, including Vicodin. Tr. 447. Further, plaintiff continued to take Vicodin in 2015
and 2016, in addition to Gabapentin, Tramadol, Neurontin, and Hydrocodone, as well as
Voltaran gel. Tr. 384, 518-19, 521, 537, 542.
The ALJ also relied on the fact that plaintiff sought treatment with her primary care
provider rather than a pain management specialist. Tr. 29. Although plaintiff’s psychiatry clinic
referred her to a pain management clinic, plaintiff opted to pursue fibromyalgia treatment
through her primary care provider. Tr. 451-53. That plaintiff chose to seek treatment from her
primary care provider rather than a pain management clinic is not a clear-and-convincing reason
to discredit her symptom testimony; the most important fact is that she sought treatment for her
pain. In fact, plaintiff made numerous efforts to manage her pain, including physical therapy,
massage therapy, acupuncture, yoga, exercise programs, muscle relaxers, topical remedies such
7 – OPINION AND ORDER
as Voltaran gel, and a variety of strong pain medications including Gabapentin, Tramadol,
Neurontin, Hydrocodone, Topamax, Vicodin, and Lyrica. Tr. 314, 384, 452, 455, 518-19, 521,
537, 542. Thus, contrary to the ALJ’s conclusion, plaintiff’s treatment was not conservative.
See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (the use of a variety of strong pain
medications, in conjunction with other forms of treatment, indicates that fibromyalgia treatment
is not conservative).
B.
Looking for Work
The ALJ discredited plaintiff for “looking into going back to work and exploring
freelance opportunities within the field of her previous occupations.” Tr. 30. However, the mere
fact that plaintiff attempted to find a job is insufficient to discredit her. Webb v. Barnhart, 433
F.3d 683, 688 (9th Cir. 2005) (“That [the claimant] sought employment suggests no more than
that he was doing his utmost, in spite of his health, to support himself.”). The record reflects that
plaintiff consistently struggled financially and had difficulty affording basic needs. Tr. 48, 68,
298, 593, 595, 597. Thus, as in Webb, plaintiff was merely doing her best to support herself.
Plaintiff’s attempt to find employment is not a clear-and-convincing reason to discount her
credibility.
Moreover, although plaintiff expressed an interest in exploring such freelance
opportunities, she did not succeed in renewing her CPA license. Tr. 603. Plaintiff was unable to
focus, and therefore was unable to study for the exam. Id. Additionally, plaintiff’s therapist
suggested that plaintiff could go to Worksource to see if there were “any part time jobs she could
handle,” thus indicating that plaintiff was incapable of returning to work full time. Tr. 595.
The Commissioner argues that plaintiff’s testimony that she had not made any attempts to
find work after November 2013 was contradicted by the fact she was “exploring freelance work
8 – OPINION AND ORDER
opportunities” and made “preliminary contact with Worksource Oregon to inquire about job
search help.” Defendant’s Brief ECF #15, 10. However, the ALJ did not rely on the alleged
inconsistency of plaintiff’s statements; therefore, the Commissioner’s argument is an
impermissible post hoc rationalization. Bray v. Commissioner, 554 F.3d 1219, 1225 (9th Cir.
2009). Moreover, despite the fact that plaintiff was looking into the possibility of freelance or
part time work, the record does not reflect that plaintiff took any concrete steps to find
employment, other than her failed attempt to renew her CPA license. Because there is no
evidence that plaintiff applied for any jobs or solicited any clients for possible freelance work,
her assertion that she did not attempt to find work after November 2013 is not contradicted by
the record. As such, the purportedly inconsistent statements are not a clear-and-convincing
reason for discounting plaintiff’s testimony.
C.
Activities of Daily Living
The ALJ found that plaintiff’s “activities of daily living [were] generally inconsistent
with the extent of her alleged symptoms and allegations.” Tr. 29. The ALJ cited plaintiff’s
ability to do yard work, garden, clean her kitchen, perform household projects, go to the zoo with
a friend, and babysit her grandchild. Tr. 29-30. The ALJ, however, failed to explain which
testimony was contradicted by such activities. To discredit subjective symptom testimony, the
ALJ “must state specifically what symptom testimony is not credible and what facts in the record
lead to that conclusion.” Smolen, 80 F.3d at 1284 (citing Dodrill, 12 F.3d at 918).
Moreover, the record reflects that plaintiff’s activities were minimal. With regard to
gardening, plaintiff had a small garden in which she planted vegetables in containers and never
bothered to harvest them. Tr. 301, 388. Plaintiff struggled to mow her lawn and did it as seldom
as possible. Tr. 69-70, 301. She paid people to mow the lawn for her when she had the money.
9 – OPINION AND ORDER
Id. Cleaning her house was a struggle, and her daughter sometimes paid a housekeeper to clean
it. Tr. 553. Even when she did manage to get the house clean, it left her so exhausted for the
next few days that it became dirty again and she could not keep up. Tr. 301. Notably, plaintiff
only attempted to clean the kitchen on good days and only washed dishes once a week. Tr. 69,
551. Although plaintiff did some cooking, she generally ate canned and prepared foods, and
sometimes went to bed hungry because she did not have the energy to cook. Tr. 67-69, 300. At
one point, plaintiff had to pack up her belongings in preparation for moving out of her house, but
the record reflects that she needed help to do it. Tr. 579. Plaintiff’s babysitting was limited to
watching her grandson once or twice per week for two to three hours. Tr. 46-47. The child’s
parents subsequently put him in daycare, which is some indication that plaintiff was not up to the
task of taking care of him. Tr. 47, 519.
Additionally, the fact that plaintiff was able to go to the zoo on one occasion is
insufficient to discredit plaintiff’s reported fibromyalgia pain. Fibromyalgia must be considered
on a “longitudinal record,” because the symptoms “can wax and wane.” SSR 12-2p; see
Garrison, 759 F.3d at 1017 (citing Holohan v. Massanari, 246 F. 3d 1195, 1205 (9th Cir. 2001)).
Furthermore, the mere fact that a claimant can carry out minimal activities, or that a claimant
attempts to lead a normal life, does not mean they are foreclosed from disability benefits. Orn v.
Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir.
2012) (holding a “claimant need not vegetate in a dark room in order to be eligible for benefits”)
(citation omitted).
The ALJ also noted that plaintiff once tried to climb a fence when she was locked out of
her home, and fell and injured her foot. Tr. 29. Plaintiff in fact broke her foot during that fall.
Tr. 540, 542. The fact that plaintiff unsuccessfully attempted to climb a fence, fell, and suffered
10 – OPINION AND ORDER
a broken foot is not indicative that plaintiff is less limited than she alleges; rather, it serves as
further indication that plaintiff is physically limited. The ALJ additionally cited the fact that,
after plaintiff broke her foot, a doctor gave her permission to go to the beach but instructed her to
walk on flat sand and not bumpy sand. Tr. 29 (citing Tr. 540). The ability to walk on flat sand
does little to demonstrate that plaintiff is not as limited as she alleged. Moreover, the record
reflects only that plaintiff wanted to go to the beach, not that she went to the beach or was
successfully able to walk on the beach. Tr. 540.
The Commissioner argues that plaintiff’s ability to take a ten-day trip to Texas indicates
she was capable of performing sedentary work. However, the fact that a claimant traveled on a
multi-day trip—without further evidence regarding the frequency and duration of rests stops, the
amount of time spent in transit, or the position in which the person traveled—is insufficient to
demonstrate that the claimant can perform sedentary work. See Tackett, 180 F.3d at 1103.
Notably, plaintiff reported that she could not remember when she took the trip to Texas; thus, it
is unclear from the record whether the trip took place during the relevant period. Tr. 52.
Furthermore, the Commissioner’s contention is post hoc; therefore, the court may not consider it
in affirming an adverse decision. Bray, 554 F.3d at 1225.
For all of these reasons, plaintiff’s activities of daily living do not constitute a clear-andconvincing reason for discounting her subjective symptom testimony.
II.
Medical Opinion Evidence
Plaintiff argues that the ALJ improperly assessed the medical opinion of Dr. Parent. The
ALJ is responsible for resolving ambiguities and conflicts in the medical testimony. Magallanes
v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must provide clear-and-convincing
reasons for rejecting the uncontradicted medical opinion of a treating or examining physician, or
11 – OPINION AND ORDER
specific and legitimate reasons for rejecting contradicted opinions, so long as they are supported
by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). However,
“[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that
opinion is brief, conclusory, and inadequately supported by clinical findings.” Chaudhry v.
Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Additionally, the ALJ may discount physicians’
opinions based on internal inconsistencies, inconsistencies between their opinions and other
evidence in the record, or other factors the ALJ deems material to resolving ambiguities. Morgan
v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999).
The ALJ gave “little weight” to Dr. Parent’s opinion because it was “inconsistent with
the evidence of record, including his own treatment notes and the course of treatment for the
claimant’s impairments.” Tr. 30. However, Dr. Parent’s opinion indeed was supported by his
own treatment notes as well as the treatment notes of plaintiff’s other providers. Dr. Parent first
diagnosed plaintiff with fibromyalgia in 2004, and his opinion was based on “observations of her
progressive developing problems” over 13 years. Tr. 387, 444. Plaintiff frequently reported
pain, body aches, and fatigue. Tr. 391, 395, 397, 405, 419, 424, 433, 448-49, 468-69, 479, 495,
518, 545, 550, 595, 597, 603. During physical examinations of plaintiff, Dr. Parent noted
fibromyalgia pressure points. Tr. 519, 521.
The ALJ additionally found that neither Dr. Parent’s own treatment notes nor the other
evidence of record showed significant or persistent objective signs that supported the extent of
Dr. Parent’s opined limitations. Tr. 30. The Ninth Circuit has made clear that diagnosing
fibromyalgia “does not rely on X-rays or MRIs.” Revels, 874 F.3d at 657. 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
12 – OPINION AND ORDER
587, 590 (9th Cir. 2004)) (quotations omitted). In evaluating whether a claimant’s residual
functional capacity renders them 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,” including muscle pain, fatigue or tiredness, muscle weakness, headache, IBS, numbness,
waking unrefreshed, or depression. SSR 12-2p. Here, the record is replete with clinical signs of
plaintiff’s fibromyalgia. Tr. 318, 391, 395, 397, 405, 419, 424, 433, 436, 440, 445, 448, 451,
455, 468-69, 479, 495, 518, 521, 524, 542, 545, 550, 573, 591, 595, 597, 603.
The ALJ found that plaintiff’s activities of daily living, including gardening, yard work,
housework, and household maintenance were inconsistent with Dr. Parent’s opinion that plaintiff
would need additional breaks or absences from work due to her impairments. Tr. 30. However,
as discussed above, plaintiff’s activities of daily living were quite limited, and nothing in the
record indicates that plaintiff could sustain such activities for eight hours per day, five days per
week. In fact, the record reflects that plaintiff could only perform such activities sporadically
and for short periods of time. Tr. 298, 301, 424, 551, 553, 603.
The ALJ also asserted that plaintiff’s routine and conservative treatment was inconsistent
with Dr. Parent’s findings. Tr. 30. However, as noted previously, the ALJ merely asserted that
plaintiff’s treatment was conservative without providing any further explanation, which is not a
sufficient basis for rejecting a treating physician’s opinion. See Revels, 874 F.3d at 667.
Moreover, the record reflects that plaintiff was consistently treated with nerve medications,
muscle relaxers, and pain medications, including opioids and narcotics. Tr. 452, 519-20, 524.
Plaintiff also attempted physical therapy, massage therapy, acupuncture, yoga, exercise
13 – OPINION AND ORDER
programs, and topical remedies such as Voltaran gel. Tr. 314, 384. Nothing in the record
suggests that a more aggressive form of treatment, such as surgery, would have been an
appropriate course of treatment. See Bair v. Comm’r of Soc. Sec. Admin., No. 3:17-cv-00622,
2018 WL 2120274, at *5 (D. Or. May 8, 2018).
The ALJ found that Dr. Parent’s conclusion that plaintiff would have difficulty with
handling and fingering was not supported by the record. Tr. 30. The ALJ noted that plaintiff
had not made significant reports of hand or finger pain to any of her healthcare providers. Id.
Because the medical record contains almost no mention of hand or finger pain, the ALJ’s finding
in this regard is supported by substantial evidence, and Dr. Parent’s handling and fingering
limitations were properly rejected.
The Commissioner argues that the ALJ properly rejected Dr. Parent’s opinion because
plaintiff had been seeing another doctor for several years and when Dr. Parent filled out the
function report, he had only seen plaintiff three times since re-establishing care in 2014.
However, the ALJ did not rely on this argument in her opinion. Thus, the Commissioner’s
contention is post hoc, and this court may not consider it in affirming an adverse decision. Bray,
554 F.3d at 1225.
In sum, except for the handling and fingering limitations that were properly rejected, the
ALJ erred in rejecting Dr. Parent’s opinion.
III.
Severe Impairments
Plaintiff argues the ALJ erred in finding that her depression and anxiety were not
“severe” impairments at step two of the sequential analysis. At step two, the Commissioner
determines whether the claimant has a “medically severe impairment or combination of
impairments.” Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987); 20 C.F.R. § 404.1520(c). “An
14 – OPINION AND ORDER
impairment or combination of impairments can be found ‘not severe’ only if the evidence
establishes a slight abnormality that has ‘no more than a minimal effect on an individual’s ability
to work.’” Smolen, 80 F.3d at 1290 (quoting SSR 85-28).
The ALJ found that plaintiff’s depression and anxiety were not severe. Tr. 25. The ALJ
explained that plaintiff’s reports of “mental difficulties with activities of daily living” were
inconsistent with her ability to babysit her grandchild twice per week, and perform yardwork,
housework, and gardening. Tr. 25. However, as discussed above, plaintiff’s activities were
minimal. Despite enjoying the opportunity to babysit her grandson, she was limited to watching
him for short periods of time, and there was some indication that plaintiff was not up to the task
of taking care of him. Tr. 46-47, 519. Although plaintiff planted vegetables in her small garden,
she never bothered to harvest them. Tr. 52, 301. Additionally, plaintiff became overwhelmed by
routine household chores and often left them half finished. Tr. 298, 300-01, 551, 599.
The ALJ additionally cited the fact that plaintiff at one point became better friends with a
neighbor, she visited the zoo with a friend on one occasion, and she enjoyed spending Christmas
with family in 2015. Tr. 26. An ALJ may not cherry-pick isolated instances of marginal
improvement to show that plaintiff’s impairments were not severe. See Garrison, 759 F.3d at
1017 (citing Holohan, 246 F. 3d at 1205) (“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.”).
The ALJ further noted that plaintiff “did not report significant mental difficulty with
leaving her home alone or shopping in stores.” Tr. 26. To the contrary, plaintiff reported that
she does not leave home very often, and that she is pretty isolated and solitary. Tr. 302-03. She
15 – OPINION AND ORDER
explained that she structures her life to avoid as much stress as possible, mostly by avoiding
social interaction. Tr. 305. Plaintiff further explained that she can function at home, but if she
tries to do anything beyond that, she starts to fall apart. Tr. 58-59. Moreover, the record reflects
that she only goes shopping once every two to three weeks. Tr. 300.
The ALJ also found that although plaintiff claimed she neglected her hygiene and
grooming, “the evidence does not show any significant or persistent observations of the claimant
appearing disheveled, or otherwise having deficits in hygiene, grooming, or dress.” Tr. 25. The
ALJ failed to acknowledge that due to plaintiff’s alopecia, she had no hair and no body odor. Tr.
314, 414, 441. Thus, it would be difficult for an observer to detect whether plaintiff had deficits
in grooming. Moreover, although plaintiff sometimes wears the same clothes for 2-5 days, she
puts on clean clothes when she leaves the house. Tr. 299. Accordingly, the fact that her doctors
did not make note of plaintiff’s poor hygiene is not necessarily inconsistent with plaintiff’s
description of her grooming and hygiene when she was home.
Even assuming arguendo that plaintiff did not neglect her hygiene and grooming, that by
itself would be insufficient to demonstrate that plaintiff’s depression and anxiety were not
severe. Although plaintiff’s providers did not note deficits in grooming and hygiene, they
frequently observed that plaintiff presented with a tearful, anxious, and depressed mood or affect.
Tr. 441, 445, 457, 465, 580, 582, 584, 586, 588, 590, 592, 594, 596, 598, 600, 602. Because of
her mental health issues, plaintiff avoids social interaction and struggles to leave her home. Tr.
58-59, 302-03, 305. She becomes overwhelmed by routine household chores. Tr. 551, 559. She
has difficulty concentrating, and was unable to renew her CPA license because she could not
concentrate on the study materials. Tr. 164, 452, 603. Her insight and judgment are noted to be
fair or poor. Tr. 452, 457. Plaintiff’s anxiety has physical manifestations—Dr. Puziss concluded
16 – OPINION AND ORDER
that plaintiff’s alopecia was “probably due to stress.” Tr. 542. Contrary to the ALJ’s assertion
that plaintiff could perform her previous occupation of an accountant, plaintiff failed to file even
her own taxes in a timely manner. Tr. 589. In her last job, plaintiff began working fewer and
fewer hours, until she stopped working completely, and the record reflects that this was, at least
in part, due to her mental impairments. Tr. 54, 312, 419. Plaintiff’s depression and anxiety are
more than just slight abnormalities with “no more than a minimal effect” on her ability to work.
Smolen, 80 F.3d at 1290 (internal quotations omitted). Accordingly, the ALJ erred in
determining that plaintiff’s depression and anxiety were not severe.
The Commissioner argues that any error was harmless because plaintiff’s mental
impairments predate her cessation from working. The Commissioner’s assertion is unavailing
for two reasons. First, the record reflects that plaintiff’s mental impairments were partially
responsible for the gradual decline in the number of hours that plaintiff was able to work on a
weekly basis. Tr. 54, 312, 419. Furthermore, it is well established that “the step-two inquiry is a
de minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290
(citing Bowen, 482 U.S. at 153–54). For an impairment to be severe, it need only have more
than a minimal effect on an individual’s ability to work. Id. (quoting SSR 85-28). As explained
above, plaintiff’s depression and anxiety had more than a minimal effect on her ability to work.
IV.
Remand
When a court determines the Commissioner erred in some respect in making a decision to
deny benefits, the court may affirm, modify, or reverse the Commissioner’s decision “with or
without remanding the cause for a rehearing.” Treichler v. Commissioner, 775 F.3d 1090, 1099
(9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In determining whether to remand for further
proceedings or immediate payment of benefits, the Ninth Circuit employs the “credit-as-true”
17 – OPINION AND ORDER
standard when the following requisites are met: (1) the ALJ has failed to provide legally
sufficient reasons for rejecting evidence, (2) the record has been fully developed and further
proceedings would serve no useful purpose, and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison,
759 F.3d at 1020. Even if all of the requisites are met, however, the court may still remand for
further proceedings, “when the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled[.]” Id. at 1021.
Here, the first requisite of the Garrison test is met, as the ALJ improperly discounted
plaintiff’s subjective testimony and erroneously assessed the medical opinion of Dr. Parent. As
to the second requisite, in determining whether the record is fully developed, the court looks to
whether there are “significant factual conflicts in the record between [the claimant’s] testimony
and objective medical evidence.” Treichler, 775 F.3d at 1104 (emphasis added).
The Commissioner asserts that plaintiff cannot meet the second requisite but fails to
articulate any significant conflicts in the record. Although the opinions of non-examining
physicians Dr. Dickey and Dr. Berner are inconsistent with the opinion of treating physician Dr.
Parent, the opinions of non-examining physicians are insufficient to establish a significant
factual conflict with the opinions of treating and examining physicians. See Wesman v.
Berryhill, No. 6:16-cv-01222-JR, 2018 WL 1249921, at *11 (D. Or. Feb. 21, 2018), report and
recommendation adopted, 2018 WL 1247866 (D. Or. Mar. 9, 2018) (finding the contradictory
opinions of the non-examining doctors to be insufficient to create a significant factual conflict
with the opinions of the treating physicians); see also Lester v. Chater, 81 F.3d 821, 831 (9th Cir.
1995) (“The 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
18 – OPINION AND ORDER
physician.”). Moreover, the ALJ rejected the opinion of non-examining physician Dr. Berner
and neither party has challenged that finding. Tr. 30. Accordingly, there are no significant
factual conflicts in the record.
As to the third factor, if the discredited evidence were credited as true, the ALJ would be
required to find plaintiff disabled. Dr. Parent determined that plaintiff’s impairments would
cause her to miss work three to four times per month and the VE testified that if plaintiff were to
miss two or more days of work per month she would not be able to sustain employment. Tr. 74,
168. Additionally, Dr. Parent concluded that plaintiff could stand and walk for less than two
hours per day, sit for less than two hours per day, and would need to lie down two or three times
per day. Tr. 165-66. As such, the record demonstrates that plaintiff is unable to sustain work
activities 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.”). Therefore, plaintiff
is disabled under the act.
Even when each of the credit as true factors is met, the record as a whole can leave
“serious doubt as to whether the claimant is actually disabled” in “rare instances.” Revels, 874
F.3d at 668 n.8 (citing Garrison, 759 F.3d at 1021). To establish the existence of serious doubt,
the Commissioner may not merely repeat “the arguments she has already made.” Garrison, 759
F.3d at 1022. The Commissioner argues that plaintiff’s activities of daily living and her failure
to seek treatment at a pain management clinic give rise to serious doubt. However, those
arguments have been considered and rejected, as discussed above. The Commissioner does raise
one new argument—that Dr. Parent opined plaintiff was disabled beginning in 2011, but plaintiff
continued to work until 2013. Notably, however, the record reflects that plaintiff’s decline in her
ability to complete a full work day began in 2011 and continued to progressively worsen
19 – OPINION AND ORDER
throughout 2012 and 2013. Tr. 54, 311. Therefore, Dr. Parent’s conclusion that plaintiff became
disabled in August 2011 does not raise serious doubt. Moreover, the question before the court is
whether plaintiff became disabled as of August 2013, and as discussed above, the record reflects
that she did indeed become disabled at that point. As such, this case is not one of those “rare
instances” where the court has serious doubt that plaintiff is disabled.
CONCLUSION
For the reasons discussed above, the decision of the Commissioner is REVERSED and
this matter is REMANDED for the immediate payment of benefits.
DATED October 22, 2018.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge
20 – OPINION AND ORDER
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