Goodnough v. Commissioner Social Security Administration

Filing 17

Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to Sentence Four of 28 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. IT IS SO ORDERED. Signed on 1/31/19 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KEVIN WAYNE G. , 1
Plaintiff,

3:18-cv-00365-BR
OPINION AND ORDER

v.

COMM:ISSIONER OF SOCIAL
SECURITY,
Defendant.
LISA R.J. PORTER
JP Law P.C.
5200 S.W. Meadows Rd., Ste 150
Lake Oswego, OR 97035
[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]

In the interest of privacy this Opinion uses only the
first name and the initial of the last name of the nongovernmental party. Where applicable, this Opinion uses the
same designation for the nongovernmental party's immediate
family member.
1

1 - OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
ERIN F. HIGHLAND
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Senior Judge.
Plaintiff Kevin Wayne G. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA)

in which the Commissioner denied

Plaintiff's applications for Disability Insurance Benefits (DIB)
under Title II of the Social Security Act and Supplemental
Security Income (SSI) under Title XVI 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 pursuant to
sentence four of 42 U.S.C. § 405(g)

for further administrative

proceedings.

ADMINISTRATIVE HISTORY
On October 31, 2013, Plaintiff protectively filed his

2 - OPINION AND ORDER

application for DIB and SSI benefits.

Tr. 18. 2

Plaintiff

originally alleged a disability onset date of October 1, 2009.
Tr. 18.

On March 28, 2016, Plaintiff amended the disability

onset date to March 1, 2014.

Tr. 18, 232.

Plaintiff's

application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on April 6, 2016.
Tr. 18, 36-84.
at the hearing.

Plaintiff and a vocational expert (VE) testified
Plaintiff was represented by an attorney at the

hearing.
On November 29, 2016, the ALJ issued an opinion in which
she found Plaintiff is not disabled and, therefore, is not
entitled to benefits.
the Appeals Council.

Tr. 30.

Plaintiff requested review by

On January 5, 2018, the Appeals Council

denied Plaintiff's request to review the AL~s decision, and the
ALJ's decision became the final decision of the Commissioner.
Tr. 1-3.

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

On March 1, 2018, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's decision.

Citations to the official transcript of record (#10)
filed by the Commissioner on July 18, 2018, are referred to as
"Tr."
2

3 - OPINION AND ORDER

BACKGROUND
Plaintiff was born on May 21, 1970.

Tr. 28.

Plaintiff was

44 years old on his amended alleged disability onset date.
Plaintiff has a high-school education.

Tr. 29.

Plaintiff has

past relevant work experience as a residential counselor,
caseworker supervisor, and caseworker.

Tr. 28.

Plaintiff alleges disability due to schizoaffective
disorder and a crippled left forearm and hand.

Tr. 89, 242.

Except as noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the
medical evidence.

See Tr. 24-27.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110

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."
U.S.C. § 423(d) (1) (A).

4 - OPINION AND ORDER

42

The ALJ must develop the record when

there is ambiguous evidence or when the record is inadequate to

McLeod v. Astrue,

allow for proper evaluation of the evidence.

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

42

See also Brewes v. Commr 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. Commr 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 evaluating a claimant's
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
(9th Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591

The court must weigh all of the evidence

whether it supports or detracts from the Commissioner's
decision.
Cir. 2008).

Ryan v. Commr of Soc. Sec., 528 F.3d 1194, 1198 (9th
Even when the evidence is susceptible to more than

5 - OPINION AND ORDER

one rational interpretation, the court must uphold the
Commissioner's findings if they are supported by inferences
reasonably drawn from the record.
1047, 1051 (9th Cir. 2012).

Ludwig v. Astrue, 681 F.3d

The court may not substitute its

judgment for that of the Commissioner.

Widmark v. Barnhart,

454

F.3d 1063, 1070 (9th Cir. 2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gain f u 1 activity ( S GA) .
416. 920 (a) (4) (i).
F.3d 721, 724

2 0 C . F . R . § § 4 0 4 . 15 2 0 ( a ) ( 4 ) ( i ) ,

See also Keyser v. Comm'r of Soc. Sec.,

648

(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.
§§

20 C.F.R.

404.1509, 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

Keyser,

See also

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

6 - OPINION AND ORDER

severe as to preclude substantial gainful activity.
§§

See also Keyser,

404.1520(a) (4) (iii), 416.920(a) (4) (iii).

648 F.3d at 724.

20 C.F.R.

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, she must
assess the claimant's residual functional capacity (RFC).

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), 416.920(e).

(SSR)

96-8p.

See also Social Security Ruling

"A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *l.

20 C.F.R.

SSR 96-8p,

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.
416.920(a) (4) (iv).

20 C.F.R.

§§

404.1520(a) (4) (iv),

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

If the Commissioner reaches Step Five, she must determine

7 - OPINION AND ORDER

whether the claimant is able to do any other work that exists in
the national economy.
416.920(a) (4) (v).

20 C.F.R.

§§

See also Keyser,

404.1520(a) (4) (v),
648 F.3d at 724-25.

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. CommY 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 MedicalVocational Guidelines (or the grids) set forth in the
regulations at 20 C.F.R. part 404, subpart P, appendix 2.

If

the Commissioner meets this burden, the claimant is not
disabled.

20 C.F.R.

§§

404.1520(g)(l), 416.920(g)(l).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since March 1, 2014, Plaintiff's
amended alleged disability onset date.

Tr. 20.

At Step Two the ALJ found Plaintiff has the severe
impairments of "compartment syndrome left forearm, bicuspid
aortic valve without aortic stenosis."

Tr. 20.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of

8 - OPINION AND ORDER

the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 23.

The ALJ found Plaintiff has the RFC to

perform sedentary work, is able to lift and/or to carry up to
ten pounds occasionally and less than ten pounds frequently, to
stand and/or to walk up to six hours in an eight-hour work day,
and to sit approximately six hours in an eight-hour work day.
The ALJ found Plaintiff cannot push or pull with his left arm;
cannot climb ladders, ropes, or scaffolds; and cannot crawl.
The ALJ also found Plaintiff cannot finger, handle, or feel with
his left forearm, but has unlimited use of his right forearm.
Tr. 23, 24, 28.
At Step Four the ALJ concluded Plaintiff is able to perform
his past relevant work.

Tr. 28.

In the alternative, at Step Five the ALJ found Plaintiff
can perform other jobs that exist in the national economy such
as parking-lot cashier, telemarketer, and semiconductor loader.
Tr. 29.

Accordingly, the ALJ found Plaintiff is not disabled.

Tr. 30.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) failed to
provide clear and convincing reasons for discounting Plaintiff's

9 - OPINION AND ORDER

testimony,

(2) failed to provide clear and convincing evidence

for rejecting the medical opinions of Plaintiff's treating and
examining physicians,
testimony properly,

(3) failed to evaluate lay-witness

(4) failed to include all of Plaintiff's

impairments at Step Two, and (5) failed to incorporate all of
Plaintiff's limitations in her assessment of Plaintiff's RFC.
I.

The ALJ did not err when she found Plaintiff's testimony
was not fully credible.

Plaintiff contends the ALJ erred when she failed to provide
clear and convincing reasons for discounting Plaintiff's
testimony regarding his psychological symptoms.
A.

Standards

The ALJ engages in a two-step analysis to determine
whether a claimant's testimony regarding subjective pain or
symptoms is credible.

"First, the ALJ must determine whether

the claimant has presented objective medical evidence of an
underlying impairment 'which could reasonably be expected to
produce the pain or other symptoms alleged.'"

Garrison v.

Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).

The

claimant is not required to show that his "impairment could
reasonably be expected to cause the severity of the symptom [he]
has alleged;

[he] need only show that it could reasonably have

10 - OPINION AND ORDER

caused some degree of the symptom."

Garrison, 759 F.3d at 1014

(quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
A claimant is not required to produce "objective medical
evidence of the pain or fatigue itself, or the severity
thereof."

Id.

If the claimant satisfies the first step of this
analysis and there is not any affirmative evidence of
malingering, "the ALJ can reject the claimant's testimony about
the severity of [his] symptoms only by offering specific, clear
and convincing reasons for doing so."
1014-15.

Garrison, 759 F.3d at

See also Robbins v. Soc. Sec. Admin., 466 F.3d 880,

883 (9th Cir. 2006) ("[U]nless an ALJ makes a finding of
malingering based on affirmative evidence thereof, he or she may
only find an applicant not credible by making specific findings
as to credibility and stating clear and convincing reasons for
each.").

General assertions that the claimant's testimony is

not credible are insufficient.
750 (9th Cir. 2007).

Parra v. Astruer 481 F.3d 742,

The ALJ must identify "what testimony is

not credible and what evidence undermines the claimant's
complaints."

Id.

(quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)).

11 - OPINION AND ORDER

B.

Analysis

Plaintiff contends the ALJ erred when she concluded
Plaintiff did not suffer from post-traumatic stress syndrome
(PTSD).

Plaintiff asserts his prison records support his

statements that he suffered from PTSD and was receiving
medications for that condition.
The ALJ, however, discounted Plaintiff's testimony
regarding his symptoms on the ground that Plaintiff's testimony
was "not entirely consistent with the medical evidence and other
evidence in the record."

Tr. 24.

The ALJ noted prison records,

which predated Plaintiff's disability onset date, reflect only
two references to PTSD and screenings in July and August 2013
were negative for PTSD.

Tr. 24-25, 359.

Moreover, although

Plaintiff was diagnosed with PTSD during an evaluation on
March 27, 2014, related to Plaintiff's claim for veteran's
benefits, the ALJ noted the Veteran's Administration records on
April 24, 2014, indicate Plaintiff was "doing well" and that
Plaintiff reported he was not looking for work "due to back and
hand problems."

Tr. 25, 412, 422.

When Plaintiff was seen for

a possible stroke at Oregon Health and Science University (OHSU)
on January 29, 2015, the ALJ noted Plaintiff denied any
psychological symptoms, including hallucinations or depression.

12 - OPINION AND ORDER

Tr. 1219.

In addition, Plaintiff's caseworker reported in

February 2015 that Plaintiff had "a variety of intellectual
interests and remains politically active, participating in a
variety of causes."

Tr. 860.

On this record the Court concludes the ALJ did not err
when he discounted Plaintiff's symptom testimony regarding PTSD
and found Plaintiff was not fully credible because the ALJ
provided clear and convincing reasons supported by substantial
evidence in the record for doing so.

II.

The
Dr.
did
Dr.

ALJ erred when he discounted the medical opinion of
Liewi, Plaintiff's treating physician, but the ALJ
not err when he discounted the medical opinion of
Sashkin, examining psychologist.

Plaintiff contends the ALJ erred when he discounted the
medical opinions of Jean Liewi, M.D., Plaintiff's treating
physician, and Gregg Sashkin, Ph.D., an examining psychologist
with the Veteran's Administration.
A.

Standards

"In disability benefits cases .

. physicians may

render medical, clinical opinions, or they may render opinions
on the ultimate issue of disability
perform work."
2014)
have

the claimant's ability to

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

"In conjunction with the relevant regulations,

[courts]

. developed standards that guide [the] analysis of an

13 - OPINION AND ORDER

ALJ's weighing of medical evidence."

Ryan v. Comm'r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Specifically, the

court must "distinguish among the opinions of three types of
physicians:

(1) those who treat the claimant (treating

physicians);

(2) those who examine but do not treat the claimant

(examining physicians); and (3) those who neither examine nor

Garrison, 759

treat the claimant (nonexamining physicians)."
F.3d at 1012.

"As a general rule, more weight should be given

to the opinion of a treating source than to the opinion of
doctors who do not treat the claimant."

Colvin, 763

Id.

See also Ghanim v.

F.3d 1154, 1160 (9th Cir. 2014).

Although the

opinion of a treating physician is entitled to greater weight
than that of an examining physician, the opinion of an examining
physician is entitled to greater weight than that of a
nonexamining physician.

Ryan, 528 F.3d at 1198.

"The weight

afforded a nonexamining physician's testimony depends 'on the
degree to which [he] provide[s] supporting explanations for
[his] opinions."'

Id.

(quoting 20 C.F.R.

§

404.1527(d) (3)).

"If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only reject
it by providing specific and legitimate reasons that are
supported by substantial evidence."

14 - OPINION AND ORDER

Id.

See also Valentine v.

Comm'r of Soc. Sec. Admin., 574 F.3d 685, 692

(9th Cir. 2009).

Even when contradicted, a treating or examining physician's
opinion is still owed deference and will often be "entitled to
the greatest weight .
controlling weight."
2007).

even if it does not meet the test for
Orn v. Astrue, 495 F.3d 625, 633 (9th Cir.

An ALJ can satisfy the "substantial evidence"

requirement by "setting out a detailed and thorough summary of
the facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings."
at 725.

Reddick, 157 F.3d

"The ALJ must do more than state conclusions.

He must

set forth his own interpretations and explain why they, rather
than the doctors', are correct."
B.

Id.

(citation omitted).

Analysis

As noted, Plaintiff contends the ALJ erred when she
gave limited weight to the opinions of Drs. Liewi and Sashkin,
but instead relied primarily on the opinions of Neal E. Berner,
M.D.; Lloyd H. Wiggins, M.D.; Bill Hennings, Ph.D.; and Joshua
J. Boyd, Psy.D., state-agency consultants, who concluded
Plaintiff is not disabled even though they found Plaintiff can
perform less than the full range of sedentary work with limited
use of his left arm.

These consultants also generally opined

Plaintiff, as a result of his schizoaffective disorder, has only

15 - OPINION AND ORDER

mild restriction of activities of daily living, no difficulties
in social functioning, and only mild difficulties maintaining
concentration, persistence, or pace.
1.

Tr. 25.

Dr. Liewi

Dr. Liewi was Plaintiff's primary-care physician and
treated Plaintiff every three or four months beginning on
May 19, 2015.

Tr. 1231.

On March 22, 2016, Dr. Liewi diagnosed

Plaintiff with, among other things, schizoaffective disorder,
chronic migraines, and chronic nonmalignant pain.

She opined

Plaintiff would experience substantial difficulty with stamina,
pain, or fatigue if employed full-time and that chronic pain
would be a limiting factor in Plaintiff's ability to work.
Tr. 1231.

Dr. Liewi also noted Plaintiff would likely need to

work at a reduced work pace, Plaintiff could "tolerate" only
light exertion, and Plaintiff's schizoaffective disorder would
contribute to his functional limitations.

Tr. 1231-32.

She

also indicated Plaintiff could stand, walk, and sit about four
hours in a normal workday, but he would need to change positions
often due to chronic pain.

Tr. 1233.

Dr. Liewi also opined

Plaintiff would be absent from work four or more times per month
due to his migraines.

Tr. 1235.

The ALJ gave "limited weight" to Dr. Liewi's

16 - OPINION AND ORDER

assessment on the grounds that it was not supported by the
treatment records or examination findings and did not reference
left-arm limitations.

Tr. 26.

As noted, the opinion of a treating physician is
generally accorded great weight.

Ghanim, 763 F.3d at 1160.

To

reject a contradicted medical opinion of a treating physician,
the ALJ must articulate "specific, legitimate reasons" that are
based on substantial evidence in the record.
F.3d at 692.

Valentine,

57 4

Although an ALJ may properly discount a medical

opinion when it is "inconsistent with the medical records"
(Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)), the

records in this case support Dr. Liewi's assessment.

For

example, the records reflect Plaintiff experiences "migraine
after migraine" (Tr. 415); he has increased duration of
headaches lasting four to five days with increased vertigo,
nausea, and vision changes (Tr. 780); his medications do not
relieve his migraines, and he still experiences nausea,
dizziness, photophobia, and phonophobia (Tr. 652, 897, 903); and
he has severe headaches occurring two to four times a week
(Tr. 842, 903).

The record also reflects Plaintiff continues to

experience "intermittent" sciatica pain and is unable to extend
his leg despite receiving physical therapy.

17 - OPINION AND ORDER

Tr. 652,

668.

In

addition, Plaintiff consistently rates his pain at five or
higher on a scale of zero to ten (Tr. 521, 668, 899, 780), which
supports Dr. Liewi's assessment that Plaintiff is only
occasionally capable of stooping, twisting, and crouching.
Tr. 1234.
On this record the Court concludes Dr. Liewi's opinion
is consistent with the medical record and the ALJ erred when she
failed to provide legally sufficient reasons based on
substantial evidence in the record for rejecting the opinion of
Dr. Liewi, Plaintiff's treating physician.
2.

Dr. Sashkin

On March 27, 2014, Plaintiff was evaluated by
Dr. Sashkin, an examining physician, in connection with
Plaintiff's veteran disability claim. 3

Tr. 419.

Dr. Sashkin

diagnosed Plaintiff with PTSD, persistent depression, and
schizoaffective disorder (Tr. 420) and noted Plaintiff's mentalhealth symptoms "would cause some difficulty with concentration
and memory but [Plaintiff] would be able to work in a setting

Plaintiff only asserts the ALJ erred in the evaluation of
Dr. Sashkin's medical opinion and does not assert any error
regarding application of the VA's ultimate disability
assessment.
3

18 - OPINION AND ORDER

with little contact with other people or supervision."

Tr. 425.

As noted, sufficient reasons for rejecting an
examining physician's opinion may include the physician's
reliance on a claimant's discredited subjective complaints,
inconsistency with the medical records, and inconsistency with a
claimant's testimony.

Tommasetti v. Astrue, 533 F.3d 1035, 1040

(9th Cir. 2008).
Here the Commissioner contends the ALJ's opinion is
supported by the record, which reflects Plaintiff was frequently
cooperative with a good attitude, actively participated in
group-therapy sessions, and had reported strengths of a
"positive attitude" and "being helpful to others."
Br. at 8.

Tr. 404.

Def.'s

Moreover, at the hearing Plaintiff

testified he did not have any problems socially and could "get
along with almost anybody."

Tr. 66.

The ALJ gave Dr. Sashkin's assessment "partial weight"
on the ground that "there is nothing in the record to suggest
that the [Plaintiff] has difficulty getting along with others,
and Dr. Sashkin's statement regarding social limitations appears
to be largely based on the [Plaintiff's] self-report of
symptoms, which is not entirely consistent with the record as a
whole."

Tr. 26-27.

Accordingly, the ALJ did not provide any

19 - OPINION AND ORDER

limitation in his assessment of Plaintiff's RFC regarding
interactions with others.
On this record the Court concludes the ALJ did not err
when she rejected the opinion of Dr. Shaskin because the ALJ
provided legally sufficient reasons based on substantial
evidence in the record for doing so.
III. The ALJ gave germane reasons for discounting lay-witness
testimony.

Plaintiff contends the ALJ erred when she failed to provide
reasons that are germane to the lay-witness statements of
Johannah Keeley and Katherine Mercurio, Plaintiff's friends,
regarding Plaintiff's limitations.
A.

Standards

Lay-witness testimony regarding a claimant's symptoms
is competent evidence that the ALJ must consider unless she
"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 also 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-witness-basis."

20 - OPINION AND ORDER

Germane reasons for discrediting a lay-witness's
testimony include inconsistency with the medical evidence and
the fact that the testimony "generally repeat[s]" the properly
discredited testimony of a claimant.
F.3d 1211, 1218 (9th Cir. 2005).

Bayliss v. Barnhart, 427

See also Williams v. Astrue,

493 F. App'x 866 (9th Cir. 2012).
B.

Analysis

Keeley sees Plaintiff once a week.

She states

Plaintiff has severe anxiety that makes it difficult to leave
the house, auditory hallucinations that make it difficult to
concentrate or to learn new tasks, depression that interferes
with activities, and a fear of crowds.

Tr. 271-78.

Mercurio also recounts her observations of Plaintiff's
deteriorating mental and physical health.

She opined Plaintiff

cannot be on his feet for more than an hour, cannot lift heavy
objects, and is "unqualified and physically unable" to work.
Tr. 326
The ALJ concluded the statements of both witnesses had
"little probative value" on the grounds that neither witness
"is medically trained to make exacting observations as to dates,
frequencies, types and degrees of medical signs and symptoms, or
of the frequency or intensity of unusual moods or mannerisms,"

21 - OPINION AND ORDER

and the accuracy of their testimony was "questionable" due to
their relationship with the Plaintiff and in light of the
medical evidence that conflicts with their testimony.

Tr. 27-

28.
On this record the Court concludes the ALJ gave
"germane" reasons for discounting the lay-witness statements of
both Keeley and Mercurio.
IV.

The ALJ erred at Step Two in her evaluation of Plaintiff's
impairments.

Plaintiff contends the ALJ erred at Step Two by not
accounting for all of Plaintiff's conditions in her assessment
of Plaintiff's RFC.
A.

Standards

The inquiry for Step Two is a de minimis screening
device to dispose of groundless claims.

Bowen v. Yuckert,

482

U.S. 137, 153-54 (1987) (Step Two inquiry intended to identify
claimants whose medical impairments are so slight that it is
unlikely they would be found disabled).

See also Webb v.

Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (Step Two impairment

"may be found not severe only i f the evidence establishes a
slight abnormality that has no more than a minimal effect on an
individual's ability to work.").

22 - OPINION AND ORDER

Emphasis in original.

The claimant bears the burden to provide medical
evidence to establish at Step Two that he has a severe
impairment.

20 C.F.R. § 404.1512.

An impairment or combination

of impairments is "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."

Webb,

433 F.3d at 686.

At Step

Two the ALJ must consider the combined effect of all the
claimant's impairments on his ability to function without regard
to whether each alone is sufficiently severe.

Howard ex rel.

Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.2003).

See also

Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir.1996); 42
U.S.C. § 423(d) (2) (B); 20 C.F.R. § 416.923.
If the ALJ determines a claimant is severely impaired
at Step Two, the ALJ continues with the sequential analysis and
considers all of the claimant's limitations.
available at 1996 WL 374184

(July 2, 1996).

SSR 96-9p,
Step Two is "merely

a threshold determination of whether the claimant is able to
perform his past work."
(9th Cir. 2007).

Hoopai v. Astrue, 499 F.3d 1071, 1076

If an ALJ fails to consider limitations

imposed by an impairment at Step Two but considers them at a
later step in the sequential analysis, any error at Step Two is

23 - OPINION AND ORDER

Lewis v. Astrue, 498 F.3d 909, 911

(9th Cir. 2007)

See also Burch v. Barnhart, 400 F.3d 676, 682

(9th Cir. 2005)

harmless.

B.

Analysis

The ALJ found Plaintiff has severe impairments of
compartment syndrome of his left forearm and bicuspid aortic
valve without aortic stenosis.

Tr. 20.

Based on these

impairments, the ALJ assessed Plaintiff's RFC as limited to
sedentary work with some exertional limitations.

Tr. 23.

The ALJ, however, found there was not any objective
medical evidence to support Plaintiff's complaint that back pain
and migraines were more than transient or caused any significant
limitations.

Tr. 21.

The ALJ also found Plaintiff's "medically

determinable mental impairments" of schizoaffective disorder and
PTSD do not cause more than "minimal limitations" in Plaintiff's
ability to perform basic mental activities.

Tr. 22.

As noted, however, the medical evidence supports
Dr. Liewi's assessment that Plaintiff would experience
substantial difficulty with stamina, pain, or fatigue if
employed full-time and that chronic pain would be a limiting
factor in Plaintiff's ability to work.

Tr. 1231.

The medical

evidence also supports Dr. Liewi's assessment that Plaintiff
would likely need to work at a reduced work pace, he would

24 - OPINION AND ORDER

~tolerate" only light exertion, and his schizoaffective disorder
would contribute to his functional limitations.

Tr. 1231-32.

In addition, the medical evidence supports Dr. Liewi's
assessment that Plaintiff could stand, walk, and sit for
approximately four hours in a normal workday, but he would need
to change positions often due to chronic pain and would be
absent from work four or more times per month due to his
migraines.

Tr. 1233, 1235.
Because the ALJ failed to consider at Step Two any

limitations noted by Dr. Liewi and did not consider them at a
later step in the sequential analysis, the Court concludes the
ALJ's error was not harmless.
V.

The ALJ erred in her assessment of Plaintiff's RFC.

Plaintiff contends the ALJ failed to incorporate all
medical findings into Plaintiff's RFC and failed to comply with
SSR 96-Bp.
As noted, the Court has concluded the ALJ erred when she
improperly discounted Dr. Liewi's medical opinion; failed to
consider at Step Two or in her subsequent analysis the
limitations that Dr. Liewi found based on Plaintiff's other
conditions; and, therefore, the Court concludes the ALJ erred in
her assessment of Plaintiff's RFC.

25 - OPINION AND ORDER

REMAND

The Court must determine whether to remand this matter for
further proceedings or to remand for the calculation of
benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.

Id. at 1179.

The court may

"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."

Smolen,

80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

The court should grant an immediate award

of benefits when
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are no
outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required
to find the claimant disabled were such evidence
credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits

26 - OPINION AND ORDER

if the case were remanded for further proceedings.

Id. at 1178

n.2.
Here the ALJ erred when he failed to consider the opinion
of Dr. Liewi as to Plaintiff's limitations in light of
Plaintiff's schizoaffective disorder, PTSD, and migraines and
how those limitations would impact Plaintiff's RFC.

The Court,

therefore, remands this matter to the ALJ for further
administrative proceedings for the purpose of considering
Dr. Liewi's opinion as to Plaintiff's limitations and
reevaluating Plaintiff's RFC.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to Sentence Four
of 28 U.S.C. § 405(g) for further proceedings consistent with
this Opinion and Order.
IT IS SO ORDERED.
DATED this

3 [ ,rtday

of

2019.

ANNA J. BROWN
United States Senior District Judge

27 - OPINION AND ORDER