Coles v. Commissioner Social Security Administration
OPINION AND ORDER: Based on this Opinion and Order, the decision of the Commissioner is REVERSED and REMANDED for further proceedings. On remand, the ALJ shall reconsider the medical opinions, including from Mr. Ian Penner and the state agency consu ltants, and the subjective symptom testimony, and appropriately determine Plaintiffs precise visual limitations for purposes of the RFC. Please access entire text by document number hyperlink. Signed on 04/26/2021 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARY ANN C.,1
Civ. No 3:20−cv−00296−CL
OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
MARK D. CLARKE, Magistrate Judge.
Plaintiff Mary Ann C. seeks judicial review of the final decision of the Commissioner of
the Social Security Administration denying her claim for disability insurance and widow’s
insurance benefits. Full consent to magistrate jurisdiction was entered on March 9, 2020 (#5).
For the reasons below, the Commissioner’s decision is REVERSED and REMANDED for
further proceedings to evaluate Plaintiff’s visual acuities and resulting limitations.
Plaintiff was born on June 17, 1965 and was 51 years old, which is defined as an
individual closely approaching advanced age, on the alleged disability onset date. She alleges
she became unable to work in 2015 due to macular degeneration of the left eye, vision problems
In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name
of the non-governmental party or parties, and any relations, in this case.
The following recitation constitutes a summary of the pertinent evidence within the Administrative
Record and does not reflect any independent finding of fact by the Court. Citations to “Tr.” refer to the
page(s) indicated in the official transcript of the administrative record filed herein as Docket No. 17.
Page 1 of 15 – OPINION and ORDER
of the right eye, sleep apnea, asthma, Graves Disease/thyroid problems, arthritis of the lower
back, and restless leg syndrome.
On January 12, 2018, Plaintiff protectively filed a Title II application for a period of
disability and disability insurance benefits. Plaintiff also protectively filed a Title II application
for disabled widow's benefits on January 12, 2018. In both applications, Plaintiff alleged
disability beginning January 1, 2015. The claim was denied initially on June 5, 2018, and upon
reconsideration on July 23, 2018. Thereafter, Plaintiff filed a written request for hearing on
August 21, 2018. She appeared and testified at a hearing held on August 16, 2019, in Portland,
Oregon. During her hearing, Plaintiff amended her alleged onset date to August 15, 2016. Tr.
140-41. The ALJ issued a decision finding Plaintiff not disabled on September 5, 2019. Plaintiff
requested review, and on December 18, 2019, the Appeals Council denied Plaintiff’s request.
Accordingly, the ALJ’s decision became the final decision of the agency from which Plaintiff
A claimant is disabled if he or she is unable 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[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially
dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
Is the claimant performing “substantial gainful activity”? 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
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significant mental or physical duties done or intended to be done for pay or
profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such
work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or
must be expected to last for a continuous period of at least 12 months. 20
C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then
the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds to the “residual functional
capacity” (“RFC”) assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant’s RFC. This is an assessment of workrelated activities that the claimant may still perform on a regular and
continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the
analysis proceeds to step four.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his
or her past relevant work, the analysis proceeds to step five.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);
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416.960(c). If the claimant cannot perform such work, he or she is disabled.
See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 954. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work
which exists in the national economy”). If the Commissioner fails to meet this burden, the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55;
Tackett, 180 F.3d at 1099.
THE ALJ’S FINDINGS
Applying the above analysis, the ALJ made the following findings:
1. Plaintiff meets the insured status requirements of the Social Security Act through
December 31, 2021.
2. Plaintiff is the unmarried widow of the deceased insured worker and has attained the
age of 50. She met the non-disability requirements for disabled widow’s benefits set
forth in section 202(e) of the Social Security Act.
3. The prescribed period ends on February 28, 2021.
4. Plaintiff has not engaged in substantial gainful activity since August 15, 2016, the
alleged onset date.
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5. Plaintiff has the following severe impairments: degenerative disc disease, obesity,
bilateral macular degeneration / central serous with recent intraocular implant on the
right for cataract.
6. Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments.
7. Plaintiff has the residual functional capacity to perform light work, except she is
further limited to no more than frequent stooping, crouching, crawling, kneeling, or
climbing. Due to her vision loss, the Plaintiff would need to avoid unprotected
heights, moving machinery, and similar hazards. She is unable to drive.
8. Plaintiff is unable to perform any past relevant work.
9. Plaintiff was born on June 17, 1965 and was 51 years old, which is defined as an
individual closely approaching advanced age, on the alleged disability onset date.
10. Plaintiff has a limited education and is able to communicate in English.
11. Transferability of job skills is not material to the determination of disability because
Plaintiff is “not disabled” whether or not she has transferable job skills.
12. Considering Plaintiff’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
the Plaintiff can perform.
Consequently, the ALJ concluded that Plaintiff is not disabled as defined by the Social
Security Act from August 15, 2016 through the date of the decision, September 5, 2019. Tr. 27.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). ‘“Substantial evidence’ means
‘more than a mere scintilla but less than a preponderance,’ or more clearly stated, ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Bray v.
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Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner’s alleged errors, this Court
must weigh “both the evidence that supports and detracts from the [Commissioner’s]
conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations
of the evidence are insignificant if the Commissioner’s interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Where the evidence before the ALJ is subject to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d
at 1041). “However, a reviewing court must consider the entire record as a whole and may not
affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a
reviewing court “cannot affirm the [Commissioner’s] decision on a ground that the
[Administration] did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454
F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ’s
decision on account of an error that is harmless. Id. at 1055-56. “[T]he burden of showing that
an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki
v. Sanders, 556 U.S. 396, 409 (2009).
Plaintiff presents the following issues:
1. Did the ALJ properly evaluate the medical opinion evidence?
2. Did the ALJ properly evaluate Plaintiff’s subjective symptom testimony as to the
progression of her vision impairment?
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The Court finds that the ALJ did not properly evaluate the evidence regarding Plaintiff’s
vision impairment, including the medical opinion evidence and Plaintiff’s subjective symptom
testimony. The decision is reversed and remanded for further proceedings.
The ALJ failed to properly evaluate the medical opinions.
The ALJ is responsible for resolving conflicts in the medical record. 20 C.F.R. §
404.1527; Batson v. Comm’ r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). For
claims filed on or after March 27, 2017, the ALJ must evaluate medical source opinions or prior
administrative medical findings using five factors: (1) supportability, (2) consistency, (3)
relationship with the claimant, (4) specialization, and (5) “other factors,” including familiarity
with other evidence in the claim or understanding of disability program policies and
requirements. 20 C.F.R. § 404.1520c(a), (c). Of these five factors, the “most important” factors”
are supportability and consistency.
a. The ALJ did not properly evaluate the opinion of Ian Penner, P.A.
For claims filed on or after March 27, 2017, a licensed Physician Assistant is considered
an “acceptable medical source” within his or her licensed scope of practice. 20 C.F.R. §
Physician Assistant Ian Penner, acting as Plaintiff’s primary care provider, offered an
opinion on Plaintiff’s functioning in August 2019. Tr. 711–14. Mr. Penner indicated that Plaintiff
suffered moderate impairment in her ability to concentrate, persist, or maintain pace, which he
attributed primarily to her vision loss. Tr. 713. He indicated marked impairment in her ability to
adapt or manage herself, in that she has to rely on others for many of her everyday needs as a
result of vision issues. Id. With specific reference to a vocational context, Mr. Penner indicated
that Plaintiff’s concentration would be impaired to a degree that would preclude even simple
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work for an estimated 20% of a 40-hour work week; and that Plaintiff would be expected to miss
16 hours (the equivalent of two full workdays) or more per month from even a simple, routine
job as a result of her symptoms. Tr. 714. Mr. Penner explained that these limitations were due to
Plaintiff’s inability to focus, “primarily” due to vision problems, with contribution from pain
from her right elbow. Tr. 714.
The ALJ found that Mr. Penner’s opinion was not persuasive. Tr. 25. First, the ALJ noted
that there were no records referencing nerve damage or COPD. Second, the ALJ noted that the
right upper extremity problem was “recent, and [it] has not met the duration requirement.” Third,
the ALJ noted that Mr. Penner did not complete the physical portion of the questionnaire, but did
fill out the paragraph B criteria, “relying on the claimant’s physical symptoms to find mental
limitations.” Fourth, the ALJ noted that the record did not document persistent problems with
fatigue, muscle spasm, dizziness, headaches, or shortness of breath. Fifth, the ALJ stated that “no
explanation” was provided for the opinion that Plaintiff would be off task or miss work. Finally,
the ALJ noted that the opinion was inconsistent with that of state agency consultants. Id.
These reasons are not adequate to discount Mr. Penner’s opinion as to Plaintiff’s
concentration and missed time at work. The first, second, and fourth reasons given above are not
rationally related to Plaintiff’s vision impairment and therefore are not adequate reasons to
discount Mr. Penner’s opinion regarding that impairment.
The third reason given by the ALJ, that Mr. Penner improperly relied on Plaintiff’s
physical symptoms to find mental limitations is inadequate as well. While the ALJ reasonably
found Plaintiff’s mental impairments non-severe, there is no basis in the record or in logic for
determining that physical impairments cannot cause mental limitations. SSA regulations
specifically indicate that some medically determinable impairments “such as impairment(s) of
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vision,… may cause limitations and restrictions which affect other work-related abilities.” 20
C.F.R. § 404.1545(d); see also SSR 96-8p (symptoms such as pain may “cause a limitation that
affects the individual’s ability to meet the demands of occupations other than their strength
demands (e.g., manipulation or concentration)”). Thus, the regulations allow for the possibility
that an impairment in vision may affect a person’s ability to perform activities normally
associated with mental functioning, such as concentration and ability to adapt and manage
oneself. By rejecting Mr. Penner’s opinion on this basis, the ALJ imposed a requirement that is
unsupported by the regulations.
The ALJ’s fifth concern was that “[n]o explanation” was provided for the opinion that
Plaintiff would be off-task or miss work, and that her problems were “longstanding and did not
interfere with her ability to work in the past.” Tr. 25. However, Mr. Penner did explain his
opinion as to Plaintiff’s concentration and absence from work, citing Plaintiff’s “inability to
focus due to low vision primarily, with contribution of constant pain from R elbow nerve issues.”
Tr 714. He also noted moderate impairment in the ability to concentrate, persist, or maintain
pace, identifying “vision loss” as the “primary driver” of this concern. Tr. 713. As far as her
ability to work in the past, the record supports the notion that Plaintiff’s vision problems
worsened after she stopped working. Tr. 499, 501, 520.
Finally, the ALJ determined that Mr. Penner’s opinion was not consistent with that of the
state agency consultants; this is not an adequate reason to discount the opinion. The state agency
consultants’ opinions were given in June and July 2018, mere months after Plaintiff’s right eye
surgery. Tr. 173, 186, 201, 213; see Tr. 591 (operative report from right eye lens implant, April
2018). The state agency consultants were not privy to the reports of worsening visual acuity in
2019, nor the recommendation that Plaintiff undergo cataract surgery “when patient is ready.”
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Tr. 737, 745, 753, 759, 766. In particular, the record shows that the disease in Plaintiff’s left eye
was “reactivated” in December 2018, after her Avastin injection was withheld on the previous
visit. Tr. 737. Thus, Mr. Penner’s opinion was predicated on a greater volume of available data
as to the progression of Plaintiff’s eye disease. The ALJ’s improper evaluation of Mr. Penner’s
opinion was an error.
b. The ALJ failed to properly evaluate the state agency opinions and
translate their opinions of Plaintiff’s visual impairment into concrete
Both state agency consultants, Dr. Bernardo in June 2018 (Tr. 172, 185–86), and Dr.
Johnson in July 2018 (Tr. 200, 212), indicated that Plaintiff’s vision problems limited both her
near and far acuity, and both noted that Plaintiff would be “unable to perform work that requires
excellent vision.” Tr. 172, 186, 200, 212. However, neither consultant offered any further
specification on the degree of impairment to Plaintiff’s near acuity, far acuity, or depth
perception. Despite this lack of precision as to Plaintiff’s limitations, the ALJ found these
opinions persuasive. Tr. 25. Additionally, the ALJ failed to translate even the generalized
impairment of “unable to perform work that requires excellent vision” into a specific
occupational limitation reflected in the RFC. In fact, the ALJ failed to include any express
limitation on near acuity, far acuity, or depth perception in the RFC.3 This was an error.
The vision requirements of work in the national economy are reported in Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO),
which is a “primary resource” for vocational data. SSR 00-4p. In particular, the SCO measures
the requirements for near acuity, far acuity, and depth perception on a scale of how often these
The ALJ did include limitations on hazards and driving in the RFC. Tr. 22. Although these were
intended to capture Plaintiff’s visual limitations, the ALJ does not explain why these limitations are
sufficient, and based on the record, the Court finds they are not.
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activities are required – ranging from never (“N”) to constantly (“C”). The SCO does not
measure or define what “excellent vision” would mean.
The ALJ’s error is harmful, because the occupations identified at step five all bear
significant visual components. The ALJ based his step five finding on vocational testimony that
a person with Plaintiff’s RFC could work as a collator (DOT #653.687-010), marker (DOT
#209.587-034), or garment sorter (DOT #222.687-014). Tr. 27; see Tr. 157. But all three of
these occupations require frequent (“F”) near acuity. SCO at 05.09.03 (marker), 06.03.02
(garment sorter), 07.07.03 (collator). Thus, a person who could only perform these activities on
an occasional basis would be precluded from these occupations.
Although the state agency consultants did not state the degree of limitation, they did
indicate that Plaintiff’s near acuity was limited, and the ALJ stated that this was consistent with
the record, including Plaintiff’s treatment for visual impairment. Tr. 25. Having agreed that
Plaintiff’s near acuity was impaired, the ALJ had an obligation to determine the degree of
impairment, as part of his independent duty to “fully and fairly develop the record and to assure
that the claimant’s interests are considered.” Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.
1996); see generally 42 U.S.C. § 423(d)(5)(B), 20 C.F.R. § 404.1512(b).
The ALJ erred by improperly discounting the opinion of Mr. Penner, but even if the ALJ
adequately discounted his opinion and relied only on the state agency consultants, he had an
obligation to consider Plaintiff’s well documented vision impairments and determine her specific
degree of limitation.
The ALJ did not properly evaluate Plaintiff’s subjective symptom testimony.
When deciding whether to accept the subjective symptom testimony of a claimant, the
ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective
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medical evidence of one or more impairments which could reasonably be expected to produce
some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The
claimant is not required to show that the impairment could reasonably be expected to cause the
severity of the symptom, but only to show that it could reasonably have caused some degree of
the symptom. Id.
In the second stage of the analysis, the ALJ must consider the intensity, persistence, and
limiting effects of the alleged symptoms based on the entire record. SSR 16-3p at *7-8. The ALJ
will consider the “[l]ocation, duration, frequency, and intensity of pain or other symptoms”
reported by the claimant, any medical sources, and any non-medical sources. Id. The ALJ’s
decision must contain “specific reasons for the weight given to the individual’s symptoms, be
consistent with and support by the evidence, and be clearly articulated so the individual and any
subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Id.
Additionally, the evidence upon which the ALJ relies must be substantial. See Reddick, 157 F.3d
at 724; Holohan v. Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001); Sullivan, 947 F.2d 341, 34546 (9th Cir. 1991). In rejecting claimant’s testimony about the severity of her symptoms, the ALJ
must give “specific, clear and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806
F.3d 487, 493 (9th Cir. 2015).
Plaintiff testified that her vision problems grew worse after her prior work ended for
unrelated reasons. Tr. 145. She testified that her right eye improved after surgery, and she was
able to resume reading. Tr. 148. However, she testified that she could see very little out of her
left eye. Tr. 149. She specifically stated that reading too long caused eye fatigue and double
vision. Tr. 150.
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The ALJ discounted Plaintiff’s testimony regarding the severity of her vision problems
because Plaintiff stopped working for reasons unrelated to the severity of her impairments, and
because the testimony was inconsistent with her activities of daily living, and he asserted that his
RFC finding adequately accounted for her vision impairment. In addressing Plaintiff’s visual
impairments, the ALJ discussed the medical record, noting some improvement in the right eye
after lens implant surgery, and noting that Plaintiff had not yet followed up on the advice to
consider cataract surgery on the left eye. Tr. 24. These were not adequate reasons to discount
First, while job loss unrelated to disability is a valid reason to discount a Plaintiff’s
symptom testimony, see Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010), here the ALJ did
not address Plaintiff’s specific testimony, supported by the medical evidence, that her visual
impairments worsened after her prior work ended. Similarly, while there is evidence that
Plaintiff’s activities on or around her alleged amended onset date, and shortly thereafter, were
inconsistent with the severity of her symptom testimony, this again fails to consider the
increasing severity of her symptoms over time. The ALJ acknowledged that by the time of her
hearing in August 2019 Plaintiff felt more limited, but he found that while her activities declined
over time, “this appears volitional as the medical record does not provide a basis for the
significant reduction she describes.” Tr. 23. This conclusion is contradicted by the opinion of Ian
Penner, and by the opinions of the state agency consultants, who found Plaintiff’s near and far
acuity were limited, as discussed above.
Second, as discussed in the section above, the ALJ did not adequately account for
Plaintiff’s vision impairment in the RFC, even without her subjective symptom testimony.
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Third, though the ALJ indicated that Plaintiff had not “followed through” on cataract
surgery, which alludes to a possible failure to pursue treatment, the record undermines this
assertion. Importantly, the recommendation that Plaintiff “consider cataract surgery on the left
eye” was in March 2019, just a few months prior to the ALJ’s hearing. Tr. 766; see Tr. 136. The
most recent medical records reviewed by the ALJ were from early August 2019, again mere
months after this recommendation. See Tr. 32 (listing medical evidence). Nothing in the record
suggest that Plaintiff was refusing to proceed with surgery.
Additionally, the specific recommendation was to “[c]onsider cataract surgery when
patient is ready.” Tr. 766. Primary care records from the next month indicate that Plaintiff was
“down to the wire on moving,” indicating that she was having housing instability. Tr. 774. The
ALJ noted in his decision that Plaintiff lost her house in June 2019 and moved in with a friend.
Tr. 23; see Tr. 144. This context further undermines the ALJ’s implied conclusion that Plaintiff
was refusing to follow through with recommended treatment.
This error is harmful, because the ALJ failed to include any limits in the RFC reflecting
Plaintiff’s double vision or inability to read for prolonged periods. As previously noted, the
occupations identified at step five require near acuity on a frequent basis. An ALJ that credited
Plaintiff’s testimony would likely have concluded that she could not persist in such occupations.
At minimum, an ALJ that properly credited Plaintiff’s testimony would have looked more
favorably on Mr. Penner’s opinion, which was also predication on vision limitations.
The standards for an immediate award of benefits have been repeatedly discussed by the
Ninth Circuit, laid out in detail in Brown-Hunter v. Colvin, 806 F. 3d 487 (9th Cir. 2015);
Garrison v. Colvin, 759 F. 3d 995, 1016 (9th Cir. 2014); Treichler v. Commissioner of Social
Page 14 of 15 – OPINION and ORDER
Sec. Admin., 775 F. 3d 1090 (9th Cir. 2014); and Varney v. Sec'y HHS, 859 F.2d 1396 (9th Cir.
1988). The “credit as true” rule for an award of benefits was succinctly set forth in Garrison as
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed
to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.
759 F.3d at 1020.
The Court finds that the credit as true rule has not been met in this case. First, the record
has not been fully developed because the ALJ failed to determine Plaintiff’s precise visual
acuities and translate them into concrete limitations in the RFC. Second, while the occupations
selected in Step Five are likely inappropriate for Plaintiff’s vision impairments, there may be
other occupations in the national economy that she is capable of performing even with her
limited visual acuities. Therefore, this case should be remanded back to the ALJ for further
Based on the foregoing, the decision of the Commissioner is REVERSED and
REMANDED for further proceedings. On remand, the ALJ shall reconsider the medical opinions,
including from Mr. Ian Penner and the state agency consultants, and the subjective symptom
testimony, and appropriately determine Plaintiff’s precise visual limitations for purposes of the
It is so ORDERED and DATED this ______day of April, 2021.
MARK D. CLARKE
United States Magistrate Judge
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