Stauffer v. Commissioner Social Security Administration
OPINION AND ORDER: The commissioner's decision that plaintiff is not disabled is REVERSED and the case is REMANDED for an immediate award of benefits. Signed on 3/31/2021 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:18-cv-01267-AA
OPINION AND ORDER
Commissioner of Social Security,
AIKEN, District Judge:
Stephanie S. (“plaintiff”) brings this action pursuant to the Social Security Act
(“Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”), who denied plaintiff’s application
for Supplemental Security Income (“SSI”) on June 1, 2017. For the reasons set forth
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.
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below, the Court REVERSES the decision of the Comissioner and REMANDS this
case for an immediate award of benefits.
Plaintiff protectively filed an application for SSI on November 15, 2013. Her
application was denied initially and upon reconsideration. Plaintiff then requested a
hearing before an administrative law judge (“ALJ”). The ALJ held two hearings on
this matter and issued an unfavorable decision finding that defendant was not
disabled under the Act on February 29, 2016. After the Appeals Council denied
plaintiff’s request for review, plaintiff timely filed a complaint in this Court seeking
review of thee ALJ’s decision.
STANDARD OF REVIEW
The district court must affirm the ALJ’s decision if it is based upon proper legal
standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). Harmless legal
errors are not grounds for reversal. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
“Substantial evidence is more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d
519, 522 (9th Cir. 2014) (citation and internal quotation marks omitted). The court
must evaluate the complete record and weigh “both the evidence that supports and
the evidence that detracts from the ALJ's conclusion.” Mayes v. Massanari, 276 F.3d
453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation
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but the Commissioner’s decision is rational, the Commissioner must be affirmed,
Commissioner.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
THE COMMISSIONER’S DECISION
The initial burden of proof rests upon the claimant to establish disability.
Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the
claimant must demonstrate an “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected . . . to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
The Commissioner has established a five-step sequential process for
determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140
(1987). Accordingly, an ALJ must determine “(1) whether the claimant is ‘doing
substantial gainful activity;’ (2) whether the claimant has a ‘severe medically
determinable physical or mental impairment’ or combination of impairments that has
lasted for more than 12 months; (3) whether the impairment ‘meets or equals’ one of
the listings in the regulations; (4) whether, given the claimant’s ‘residual functional
capacity,’ the claimant can still do his or her ‘past relevant work’ and (5) whether the
claimant ‘can make an adjustment to other work.’” Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012) (quoting 20 C.F.R. §§ 404.1520(a), 416.920(a)).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful
activity since the application date of November 13, 2013. Tr. 20. At step two, the
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ALJ found that plaintiff had the following severe impairments: “morbid obesity,
chronic low back pain, osteoarthritis of the knees, migraines/headaches and
anxiety/posttraumatic stress disorder.”
Id. At step three, the ALJ determined
plaintiff’s impairments, whether considered separately or in combination, did not
meet or equal “one of the listed impairments” that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity. Id. at 21; see also 20 C.F.R.
§ 404.1520(d), 404.1525, and 404.1526. The ALJ then assessed plaintiff’’s residual
functional capacity (“RFC”). 20 C.F.R. § 404.1520(e); § 416.920(e). The ALJ found
has the [RFC] to perform light work as defined in 20 CFR 416.967(b)
with exceptions. She can lift and carry up to ten pounds frequently and
20 pounds occasionally. She can stand or walk for approximately two
hours total in an eight hour workday. She can sit up to eight hours in
an eight hour workday with normal breaks. She can only occasionally
climb ramps or stairs, and never climb ladders, ropes or scaffolds. She
can occasionally stoop, kneel, crouch and crawl. She should work in a
work environment that has no more than a moderate noise level, such
as a business office or department store. She can remember, understand
and carry out tasks or instructions consistent with occupations with a
specific vocational preparation rating of 1 or 2. She should not perform
work that requires interaction with the general public. She can work in
proximity to coworkers, but should not perform tasks that require
She also should not work around hazards such as
unprotected heights and dangerous machinery.
Id. at 23. At step four, the ALJ found that plaintiff could not perform any past
relevant work. At step five, the ALJ considered plaintiff’s age, education, work
experience, and RFC and found that there were other jobs existing in significant
numbers in the national economy that plaintiff could perform, including electrical
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accessories assembler, router, and document preparer. Id. at 30-31. Accordingly, the
ALJ found that plaintiff was not disabled under the Act.
Plaintiff argues that the ALJ committed following harmful legal errors: (1)
improperly rejecting the medical opinions of two treating physicians; (2) improperly
discrediting plaintiff’s symptom testimony; (3) failing to present the vocational expert
(“VE”) with hypotheticals that accurately represented the severity of plaintiff’s
limitations at step five. The Court shall address each issue in turn.
Medical Opinion Evidence
First, plaintiff argues that the ALJ erred by improperly discounting the
opinions of treating medical sources Dr. Thomas Schwartz, M.D. and Dr. Bethany
There are three types of medical opinions in Social Security disability cases:
those of treating, examining, and reviewing physicians. Holohan v. Massanari, 246
F.3d 1195, 1201-02 (9th Cir. 2001). “Generally, a treating physician's opinion carries
more weight than an examining physician's, and an examining physician's opinion
carries more weight than a reviewing physician’s.” Id. at 1202; accord 20 C.F.R. §
404.1527(d). A treating source’s opinion regarding the “nature and severity” of
impairments is given controlling weight when “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2). Unless a
treating source is given controlling weight, the commissioner will consider several
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factors in weighing medical opinions: (1) examining relationship; (2) treatment
relationship, including length of treatment relationship, frequency of examination,
and nature and extent of the treatment relationship; (3) supportability; (4)
consistency; (5) specialization; and (6) other factors. Id. at § (c)(1)-(2).
Accordingly, “the Commissioner must provide clear and convincing reasons for
rejecting the uncontradicted opinion of an examining physician.” Lester v. Chafer, 81
F.3d 821, 830 (9th Cir. 1995). Moreover, “the opinion of an examining doctor, even if
contradicted by another doctor, can only be rejected for specific and legitimate
reasons.” Id. at 830-831. “The ALJ is responsible for resolving conflicts in the medical
record.” Carmickle, 533 F.3d at 1164. “Where the evidence is susceptible to more
than one rational interpretation, it is the ALJ's conclusion that must be upheld.” See
lvlorgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). “[T]he
consistency of the medical opinion with the record as a whole” is a relevant
consideration in weighing competing evidence. Orn, 495 F.3d at 631.
The ALJ gave limited weight to three medical opinions, one signed by both Dr.
Schwartz and Dr. Higa on December 30, 2016 and two others by Dr. Higa from
February 21, 2017 and March 10, 2017. The ALJ specifically opined that:
[Dr. Schwartz’s and Dr. Higa’s] limitations are not supported by the
medical record described in more detail above, which shows although
the claimant does have some mental health issues, they are not to the
severity they have described. For instance, the claimant generally has
normal concentration and memory and often presents as only mildly
anxious. Additionally, the record does not support such severely limited
physical limitations, and instead, as noted previously, she often presents
with minimal sensory and motor deficits and normal coordination and
gait. Also, there is no support that she is limited by severe headaches,
as they are rarely mentioned in the medical record.
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Tr. 29. The ALJ’s discussion points to variation in the record. For example, the ALJ
In May 2016, [plaintiff’s] low back pain was stable with little change
clinically. She reported her low back pain radiated to her right hip and
down the back of her right leg to her knee. She was advised to maintain
regular activity. It also was noted she had stopped chronic opiates. Then
in June 2016, she reported having a lot of body pain and she could not
walk around the grocery store due to leg pain. Yet, in December 2016,
on examination, she had no tenderness to palpation midline of her back.
She had no motor deficits or sensory deficits and her coordination and
gait were normal.
Id. at 25.
The ALJ interpreted such fluctuation and variation of symptoms as
inconsistent with the severity of limitations in the treating physicians’ opinions and
subjective symptom testimony. Id. at 29-30.
In the December 2016 opinion, Dr. Schwartz and Dr. Higa indicated that
plaintiff’s medical conditions included “morbid obesity, degenerative arthritis of both
knees, chronic low back pain, panic disorder with agoraphobia, PTSD, paranoia,
Id. at 589.
They opined that she has “profoundly limited
mobility” from knee and back pain, “severe, disabling agoraphobia and paranoia,”
“severe headaches,” and “numbness and weakness in her legs.” Id. They estimated
that plaintiff could frequently lift or carry less than ten pounds for one third of a
workday, stand or walk for ten minutes at a time, sit for more than six hours with
normal breaks, and that she could never climb, balance, stoop, bend, kneel, crouch,
or crawl. Tr. 589-90. They also noted that plaintiff “has not tolerated antidepressant
or antipsychotic medications.” Tr. 591. Both doctors estimated that plaintiff would
be unable to complete even simple work tasks for forty percent of the workweek and
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would miss sixteen or more hours per month. Dr. Schwartz and Dr. Higa explained
that plaintiff’s absenteeism would result from “severe agoraphobia and paranoia
combined with” knee and back pain and headaches that “would prevent her from
leaving her home.”
In February 2017, Dr. Higa filled out a disability form for plaintiff’s housing
provider in which she mentioned her opinion that plaintiff was disabled, which was
defined as having
[a] physical, mental or emotional impairment that is expected to be of
long, continued and indefinite duration; substantially impedes his or her
ability to live independently; and is of such a nature that ability to live
independently could be improved by more suitable housing conditions.
Tr. 595. On March 10, 2017, Dr. Higa noted that she filled out a JOBs program form
in which she concluded that plaintiff is likely to be permanently disabled.
Plaintiff identified instances throughout the record consistent with the
treating physicians’ opinions. For example:
(1) [Plaintiff] routinely presented with moderate to high anxiety, as well
as daily panic attacks, agoraphobia and isolation, derealization,
irritation and anger, night mares, recurrent memories of abuse, and
chronic stress and paranoia (Tr. 365, 379-80, 396, 657, 674, 689-90); (2)
[plaintiff] exhibited chronic bilateral knee pain due to osteoarthritis, low
back pain radiating down her lower extremities, bilateral hip pain,
unsteadiness, lower extremity numbness, some lower extremity
weakness and antalgic gait, and the inability too walk around the
grocery store (Tr. 309, 347-348, 413, 587); and (3) medical notes
throughout the record indicate sever headaches, particularly menstrual
migraines (Tr. 284, 413, 447, 492, 658, 746).
Pl’s. Op. Br., 11. The ALJ likewise noted many of these examples in her decision.
Plaintiff argues that the December 30, 2016 opinion of Dr. Schwartz and Dr.
Higa should have been controlling for three reasons. First, the ALJ erred by using
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conclusory and boilerplate language to reject it. Second, the ALJ misrepresented the
record by selectively focusing on aspects of the record that suggest non-disability.
Third, the ALJ mischaracterized the evidence of disability by failing to address the
specific reasons that Dr. Schwartz and Dr. Higa believed plaintiff to be disabled. In
so doing, plaintiff contends that the ALJ failed to provide either clear and convincing
or specific and legitimate reasons for the rejection.
Plaintiff mistakenly argues that the ALJ failed entirely to address Dr. Higa’s
February and March 2017 opinions: in fact, the ALJ did address the February 2017
opinion but did not mention the March 2017 opinion. Tr. 29. However, plaintiff’s
assignment of error is of no effect: the arguments regarding the December 2016
opinion apply with equal force to all of Dr. Higa’s and Dr. Schwartz’s opinions because
the ALJ rejected all of them together with the same reasoning. Tr. 29.
In response, the Commissioner argues that the ALJ provided specific and
legitimate reasons supported by substantial evidence by pointing to parts of the
medical record that do not support limitations as severe as those described by Dr.
Schwartz and Dr. Higa. Further, the Commissioner argues that the evidence may be
rationally interpreted in more than one way and that the Court must defer to the
The Court finds that the ALJ failed to provide specific and legitimate reasons
supported by substantial evidence when rejecting the opinions of Dr. Schwartz and
Dr. Higa. Because the opinions of Dr. Schwartz and Dr. Higa were contradicted by
other medical opinions, the ALJ was required to provide specific and legitimate
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reasons for rejecting them. Plaintiff’s argument is persuasive for three reasons: (1)
the ALJ did not apply all of the factors required for weighting medical opinions; (2)
the ALJ did not provide an explanation for why the opinions of consulting and
reviewing physicians were given more weight than Dr. Schwartz’s and Dr. Higa’s;
and (3) the inconsistencies pointed to in the medical record constituted impermissible
cherry-picking of the record.
The ALJ erred by neglecting to discuss the length and nature of plaintiff’s
treating relationship with Dr. Schwartz and Dr. Higa. Dr. Schwartz’s eighteen years
as plaintiff’s primary care provider and Dr. Higa’s regular behavioral health
treatment of plaintiff since 2012 were unacknowledged by the ALJ. And the ALJ did
not explain why she gave less weight to the longitudinal perspective afforded by these
relationships than her own assessment of the medical record or the opinions of state
consulting and reviewing physicians.2
Given the nature and length of these
relationships and frequency of exams, the ALJ’s exclusion was legal error.
The ALJ’s arguments were also conclusory, absent, or used boilerplate
language. The Ninth Circuit has held that,
an ALJ errs when he rejects a medical opinion or assigns it little weight
while doing nothing more than ignoring it, asserting without
explanation that another medical opinion is more persuasive, or
criticizing it with boilerplate language that fails to offer a substantive
basis for his conclusion.
20 C.F.R. 404.1527(c)(2) (“Generally, we give more weight to opinions from
your treating sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.”).
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Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (citing Nguyen v. Carter,
100 F.3d 1462, 1464 (9th Cir. 1996). First, the ALJ impermissibly ignored Dr. Higa’s
March 2017 opinion which clarified that she believed plaintiff’s disability to be
permanent. Tr. 29. Second, the ALJ gave some weight to the opinions of consulting
examiner (“CE”), Dr. Ellison, and reviewing physician, Dr. Westfall without providing
reasons why these opinions were more persuasive.
More than one
reviewing physician concluded that there was insufficient evidence to properly assess
plaintiff’s functional limitations, raising questions as to why the CE and reviewing
physicians’ opinions were given more weight than the treating ones.
However, the ALJ weighted each of these opinions without explanation. Id.
Third, the ALJ gave limited weight to the opinions of Dr. Schwartz and Dr.
Higa without providing substantive explanations. Tr. 29. The ALJ’s unstated but
implicit reason for weighting the opinions as she did seems to be that inconsistencies
in the record as a whole indicated limitations less severe than those described by the
treating sources. Id. If inconsistency and inconclusiveness of the evidence is the
reason for rejecting the treating opinions, as the Commissioner argues, the ALJ must
explain why that same evidence better supports the other opinions and does not also
render them unreliable. However, the Court is left to infer, without explanation, that
the record must be more consistent with the opinions of Dr. Ellison and Dr. Westfall.
The ALJ also erred impermissibly cherry-picking the record. An ALJ may not
“’selectively focus” on parts of the medical record “which tend to suggest nondisability.”
Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001); Accord,
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Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (“[T]he ALJ selectively
relied on some entries in Holohan’s records . . .and ignored the many others that
indicated continued severe impairment.”).
In Ghanim v. Colvin, an ALJ cited
treatment notes which recorded the plaintiff’s “good eye contact, organized and logical
thought content, . . . focused attention,” and other similar observations. 763 F.3d
1154, 1164 (9th Cir. 2014). The Ninth Circuit rejected this reasoning:
[T]he treatment records must be viewed in light of the overall diagnostic
record. When read as a whole, the treatment notes do not undermine
[plaintiff’s] testimony. Rather, they consistently reveal that, despite
some occasional signs of improvement, [plaintiff] continued to suffer
frequent nightmares, hallucinations, social anxiety, difficulty sleeping,
and feelings of hopelessness.
Id. Here, the ALJ relied heavily on treatment notes indicating that, for example,
plaintiff was “alert and oriented,” euthymic to upbeat,” “in no apparent distress,” or
that she “had grossly intact memory and conversational understanding,” normal
motor function,” no motor deficits or sensory deficits,” and was an “adequate
historian.” Tr. 26. Like in Ghanim, however, the overall diagnostic record reveals
persistent severe limitations consistent with the concurring treating opinions. The
ALJ also noted many of these instances and did not explain why they were given less
weight than instances that suggested less severe impairment.
Although the Court must defer to the ALJ’s findings when the record is
inconclusive, variation does not, standing along, constitute inconsistency and,
inconsistency does not constitute inconclusiveness. C.F.R. 404.1527(c)-(d) requires
the ALJ to at least give reasons that instances throughout the record consistent with
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the treating opinions were less persuasive than the apparent discrepancies,
especially in light of the presumptive weight given to treating physicians’ opinions.
Plaintiff’s final contention is that the ALJ did not specifically address the
reasons why the treating physicians believed plaintiff to be disabled. An ALJ may
not base findings on a mischaracterization of the evidence. Regennitter v. Comm’r of
Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999). Here, for example, Dr. Schwartz
and Dr. Higa’s assessment of plaintiff’s disabling limitations was based on the
combination of severe agoraphobia, paranoia, knee and back pain, and headaches
that would prevent her from leaving her home. The several instances in the record
of plaintiff socializing are not, without explanations specific to the medical conditions,
inconsistent with limitations of agoraphobia, paranoia, and the other conditions. For
the foregoing reasons, the ALJ’s rejection of the treating opinions was harmful error.
Subjective Symptom Testimony
The ALJ makes a credibility determination to assess the subjective symptom
testimony of a claimant amidst a two-step process that, first, evaluates the existence
of an underlying medically determinable physical or mental impairment that could
reasonably be expected to produce the symptoms and, second, addresses the intensity,
persistence, and limiting effects of the alleged symptoms based on an examination of
the entire record. 20 C.F.R §§ 404.1529(a), (c)(l); 416.929(a), (c)(l); see Tommasetti v.
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
When a claimant’s medically determined impairments reasonably could be
expected to produce some degree of the symptoms complained of, and the record
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contains no affirmative evidence of malingering, the ALJ must provide “specific, clear
and convincing reasons” for rejecting the claimant’s testimony regarding the severity
of her symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). A
general assertion 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 ALJ must
make findings that are sufficiently specific to permit the reviewing court to conclude
that the ALJ did not arbitrarily discredit the claimant’s testimony. Ghanim v. Colvin,
763 F.3d at 1163 (9th Cir. 2014). If the “ALJ’s credibility finding is supported by
substantial evidence in the record, [the court] may not engage in second-guessing.”
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
In weighing a plaintiff’s credibility, the ALJ may consider many factors,
including: “(1) ordinary techniques of credibility evaluation, such as the claimant’s
reputation for lying, prior inconsistent statements concerning the symptoms, and
other testimony . . . that appears less than candid; (2) unexplained or inadequately
explained failure to seek treatment or to follow a prescribed course of treatment; and
(3) the claimant’s daily activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th
Cir. 2008). However, “subjective pain testimony cannot be rejected on the sole ground
that it is not fully corroborated by objective medical evidence.” Rollins v. Massanari,
261 F.3d 853, 857 (9th Cir. 2001) (emphasis added) (citation omitted).
Here, the ALJ found that plaintiff’s medically determined impairments could
be expected to cause the claimed symptoms, however “the claimant’s statements
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concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record. Tr.
Here, there was no affirmative evidence of malingering, and so the ALJ needed
to provide clear and convincing reasons for discrediting plaintiff’s symptom
The ALJ failed to meet that standard when discrediting plaintiff’s
subjective symptom testimony on her physical and mental conditions, headaches,
disability, dependence on daughter, limited social functioning, and activities of daily
living. The Court shall address each argument in turn.
It is well established that “[c]ycles of improvement and debilitating symptoms
are a common occurrence” and an ALJ cannot “pick out a few isolated instances” to
discredit a plaintiff’s testimony and must view the record as a whole. Garrison v.
Colvin, 759 F.3d 995, 1017 (9th Cir. 2014); Holohan v. Massanari, 246 F.3d 1195,
1205 (9th Cir. 2001).
Objective Medical Record
Here, the Court finds that the ALJ’s treatment of the objective medical record
was legally insufficient. In addition to the discussion above, the ALJ implied, without
expressly stating, that several of plaintiff’s conditions may be improved or alleviated
with medication or behavioral changes. For example, the ALJ noted that plaintiff
reported some improvement in her mental conditions when using lorazepam and
other prescription medications. Tr. 26. One note in the record also indicates the
Imitrex helps her symptoms, but the note lacks any additional detail as to how much
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or how long it provides relief. Tr. 413. The ALJ also mentioned that plaintiff “has
been advised” that her limitations stemming from morbid obesity would improve with
weight loss, a healthy diet, and activity. Tr. 25.
However, the ALJ neglected to acknowledge the treating physicians’ opinions
throughout the record indicating plaintiff’s resistance and intolerance of treatment.
For example, in 2014 Dr. Higa noted,
Patient’s functioning appears to be compromised by seeming
anxiety/trauma and major depression. Patient is in need of significant
intervention for her myriad psychiatric needs, but is likely to be
resistant to efforts at getting patient engage in treatment at all, let alone
Tr. 269. In 2016, Dr. Higa observed that plaintiff’s “chronic stress and paranoia lead
her to struggling to function in ways that would help her better manage her pain and
other health conditions.” Tr. 365. And Dr. Schwartz noted later in 2016 that plaintiff
“has not tolerated antidepressant or antipsychotic medications.” Tr. 591. Again, the
ALJ erred by selectively focusing on aspects of the record that suggest non-disability.
The ALJ found plaintiff’s statements pertaining to her disability unreliable
due to inconsistencies.
The Commissioner argues that the ALJ’s findings were
reasonable and the Court must defer when evidence may be interpreted in more than
one way. Def.’s Br., 15 (citing Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005)).
Plaintiff argues any inconsistencies in her testimony are minor and unrelated to her
functioning. Pl’s Br., 14.
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Plaintiff testified that Dr. Schwartz told her to use marijuana “over anything
else” even though it makes her paranoia worse when, in fact, Dr. Schwartz said to
use it for pain and only if there were no adverse side effects. Tr. 28. The ALJ implies
that plaintiff’s statement is inconsistent and meant that she was using marijuana as
treatment for mental conditions. The Commissioner argues, without merit, that
inconsistent statements regarding drug use indicate “lack of candor the carries over”
to pain testimony.
Def.’s Br., 15 (quoting Thomas v. Barnhart, 278 F.3d 947, 959
(9th Cir. 2002)). The record is clear that plaintiff’s use of marijuana was part of a
strategy to wean off opiates used for her pain. Tr. 594. Plaintiff also correctly points
out that she continued to use prescription medications for her psychological
treatments and that this minor inconsistency in testimony has no bearing on
plaintiff’s functioning. Pl.’s Reply Br., 14.
The remaining inconsistencies are similarly minor and unavailing. The ALJ
noted the plaintiff stated she spends her days “only sitting and staring out the
window” but then said “she watches television, reads, and listens to music” when
questioned more. Tr. 28. Plaintiff also said that she likes to be alone and later
mentioned not minding that her daughter was leaving the house on weekends more
often for sleepovers because she is a “whirlwind.” Tr. 28. The Court finds that these
minor discrepancies do not indicate poor candor and have no bearing on plaintiff’s
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Activities of Daily Living
The Commissioner argues that the ALJ provided clear and convincing reasons
for discrediting plaintiff’s testimony where her statements were inconsistent with her
claimed inability to do substantial daily activities. Def.’s Br., 13 (citing Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Plaintiff argues that
the ALJ offered only “vague assertions” of inconsistency, overstated plaintiff’s
activities, and did not explain how the activities were inconsistent with plaintiff’s
limitations. Pl.s Reply Br., 7 (citing Garrison v. Colvin, 795 F.3d 995, 1016 (9th Cir.
Plaintiff testified that she relies on her daughter for many basic needs. For
example, she stated that her daughter does laundry, cleans, and attended a parent
teacher conference for her younger son. Plaintiff also testified to secluding herself
during the day, staying in her bedroom for most of the past two and a half years,
having panic attacks in public, feeling threatened by strangers, becoming paranoid
by people, and not going out alone. Tr. 24.
The ALJ found plaintiff to be more independent than she claimed.
example, plaintiff’s daughter was only ten years old when plaintiff filed her
application, and her son was not yet born. When plaintiff’s son went to preschool, she
said she was able to get more done around the house. In 2014, plaintiff drove to a
consultative exam, could dress and bathe on her own, and did a little laundry,
housework and cooking. In December 2015, the ALJ noted that plaintiff was able to
do her ADLs and shopping. Tr. 27. Based on several isolated examples of social
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interaction, the ALJ concluded that plaintiff has some capacity to be around people.
Specifically, plaintiff spent time in 2013 at the VOA supporting others struggling
with addition, became a minister in 2014 and performed some marriages, reported
being able to do shopping in December 2015. Tr. 27
The Court finds that the ALJ erred because the activities are minor and not
inconsistent with disability. Further, the ALJ did not indicate how they relate to the
claimed disabilities. “This court has repeatedly asserted that the mere fact that a
plaintiff has carried on certain daily activities . . . does not in any way detract from
her credibility as to her overall disability.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). Further,
when a plaintiff does not claim to be completely unable to do any daily activity,
evidence of some basic activity does not contradict the testimony. Ghanim v. Colvin,
763 F.3d at 1164 (9th Cir. 2014).
Here, plaintiff’s limitations result from the
combined effects of multiple conditions. It is not self-evident, as the ALJ indicates,
that minimal social activity is inconsistent with plaintiff’s diagnosed conditions of
agoraphobia, anxiety, depression, paranoia, and PTSD. Neither is it apparent that
minimal housework or driving to a doctor’s appointment undermines plaintiff’s
testimony that she relies heavily on her daughter.
During the administrative hearing, the ALJ posed hypotheticals to a VE
consistent with the ultimate RFC. The VE opined that plaintiff would be able to
perform the requirements of occupations consistent with the RFC, such as assembler
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of electrical accessories, router, and document preparer. Tr. 30-31. Those jobs exist
in sufficient numbers in the national economy and the ALJ found plaintiff to be nondisabled based on those hypotheticals. Tr. 30-31. However, the ALJ and plaintiff’s
attorney also posed hypotheticals to the VE that were consistent with the medical
opinions of plaintiff’s treating physicians. The VE determined that missing sixteen
hours a week or being unable to complete 75% of assigned tasks would preclude
plaintiff from any full-time, unskilled employment. Tr. 86-89. Plaintiff contends that
the ALJ erred by basing the non-disability finding only on the hypotheticals that
excluded the limitations described by the treating physicians.
Plaintiff’s argument that the ALJ relied on incomplete hypotheticals is
persuasive. The Ninth Circuit has held that expert testimony “has no evidentiary
value to support a finding that the claimant can perform jobs in the national
economy” when based on hypotheticals that do not include all of a plaintiff’s
limitations. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (citing Embrey v.
Bowen, 849 F.2d 418, 423 (9th Cir. 1988)). Erroneous rejection of the treating opinions
and plaintiff’s testimony undermined the ALJ’s RFC findings and the hypotheticals
posed to the VE.
Scope of Remand
The Court has discretion under 42 U.S.C. § 405(g) to decide "whether to
remand for further proceedings or for an award of benefits." Holohan v. Massanari,
246 F.3d 1195, 1210 (9th Cir. 2001) (internal citation omitted). The issue turns on
the utility of further proceedings. Id. A court may not award benefits punitively and
Page 20 – OPINION AND ORDER
must conduct a "credit-as-true" analysis on evidence that has been improperly
rejected by the ALJ to determine if a claimant is disabled under the Act. Strauss v.
Comm'r of the Soc. Sec., 635 F.3d 1135, 1138 (9th Cir. 2011).
The credit-as-true doctrine is settled in the Ninth Circuit and binding on this
Court. Garrison, 759 F.3d at 999. Under this doctrine, courts must utilize the
following sequential evaluation process: (i) determine whether the ALJ made a
harmful legal error, such as failing to provide legally sufficient reasons for rejecting
evidence, be it claimant testimony or medical opinions; (ii) review the whole record to
assess whether it is fully developed, free from conflicts and ambiguities, and that all
essential factual issues have been resolved; and (iii) determine whether the ALJ
would be required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Dominguez v. Colvin, 808 F.3d 403, 40708 (9th Cir. 2015) (internal quotation marks and citation omitted). Additionally, even
if all three of the foregoing primary elements are met, courts can still remand for
further proceedings if the record as a whole "creates serious doubt" about whether a
claimant is disabled as a matter of law. Id.
Here, the first prong of the credit-as-true analysis is met. The ALJ made
harmful legal errors by failing to provide legally sufficient reasons for rejecting
plaintiff’s subjective symptom testimony and the treating medical opinions.
Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Absent sufficient reasons to
discount the medical opinions and plaintiff’s testimony, both are given full weight.
Thus, the first prong is met.
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With respect to the second prong, the Court finds that the record is fully
developed. The Commissioner failed to establish ambiguities or factual issues that
need to be resolved. At the final step, the Court considers whether the ALJ would be
required to find plaintiff disabled if the treating opinions were credited as true. The
VE confirmed plaintiff’s disability beyond doubt when determining that missing
sixteen hours per month of work would preclude plaintiff from any full-time
employment which was consistent with opinion evidence offered by plaintiff’s treating
Thus, the Court finds that the record is fully developed and further
administrative proceedings would serve no useful purpose. Crediting the evidence in
the record as true, the ALJ would be required to find that plaintiff is disabled.
Therefore, the Court reverses the commissioner’s decision and remands for an
immediate award of benefits.
The commissioner’s decision that plaintiff is not disabled is REVERSED and
the case is REMANDED for an immediate award of benefits.
IT IS SO ORDERED.
Dated this _____ day of March 2021.
United States District Judge
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