Wagner v. Commissioner Social Security Administration

Filing 23

Opinion and Order: Based on the foregoing, the Commissioner's decision is REVERSED. This action is remanded for further proceedings consistent with this Opinion. IT IS SO ORDERED.. Signed on 4/8/2015 by Magistrate Judge Mark D. Clarke. (jkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

Civil No. 6: 13-cv-0 1851-CL

SHERRY L. WAGNER,
Plaintiff,

OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

CLARKE, Magistrate Judge:
Plaintiff Sherry L. Wagner ("Wagner") seeks judicial review of the Social Security
Commissioner's final decision denying her application for Disability Insurance Benefits ("DIB")
and Supplemental Security Income Benefits ("SSI") under Titles II and XVI of the Social
Security Act. This court has jurisdiction under 42 U.S.C. § 405(g). The Commissioner's
decision is reversed and remanded for further proceedings consistent with this·Opinion and
Order.
BACKGROUND
Born on February 26, 1957, Wagner applied for benefits on June 25, 2008. Tr. 226,233.
She alleges disability since February 8, 2007, due to back pain. Tr. 226, 233. The Commissioner
denied her application initially and upon reconsideration. Tr. 143-60. An Administrative Law
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Judge ("ALJ") held two hearings; the first occurred on March 18,2011, and the second occurred
on July 7, 2011. Tr. 122-36, 45-119. The ALJ subsequently found Wagner not disabled on
August 5, 2011. Tr. 21-30. The Appeals Council then declined review on August 12, 2013.
Wagner now appeals to this court.
DISABILITY ANALYSIS
The Commissioner engages in a sequential process encompassing between one and five
steps in determining disability under the meaning of the Act. 20 C.P.R. § 404.1520; Bowen v.

Yuckert, 482 U.S. 137, 140 (1987).
At step one, the ALJ determines if the claimant is performing substantial gainful activity.
If she is, the claimant is not disabled. 20 C.P.R.§ 404. 1520(a)(4)(i). At step two, the ALJ
determines if the claimant has "a severe medically determinable physical or mental impairment"
that meets the twelve-month durationalrequirement. 20 C.P.R.§§ 404.1509; 404. 1520(a)(4)(ii).
If the claimant does not have such a severe impairment, she is not disabled. !d.
At step three, the ALJ determines whether the severe impairment meets or equals a
"listed" impairment in the regulations. 20 C.P.R.§ 404. 1520(a)(4)(iii). Ifthe impairment is
determined to equal a listed impairment, the claimant is disabled.
If adjudication proceeds beyond step three the ALJ must first evaluate medical and other
relevant evidence in assessing the claimant's residual functional capacity ("RFC"). The
claimant's RFC is an assessment of work-related activities the claimant may still perform on a
regular and continuing basis, despite limitations imposed by her impairments. 20 C.P.R. §
404.1520( e); Social Security Ruling

("~SR")

96-8p.

The ALJ uses this information to determine if the claimant can perform his past relevant
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work at step four. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can perform her past relevant
work, she is not disabled. If the ALJ finds that the claimant's RFC precludes performance of her
past relevant work the ALJ proceeds to step five.
At step five the Commissioner must determine if the claimant is capable of performing
work existing in the national economy. 20 .C.F.R. §§ 404.1520(a)(4)(v); 404. 1520(f); Yuckert,
482 U.S. at 142; Tackettv. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). Ifthe claimant cannot
perform such work, she is disabled. ld.
The initial burden of establishing disability rests upon the claimant. Tackett, 180 F.3d at
1098. If the process reaches the fifth step, the burden shifts to the Commissioner to show that
"the claimant can perform some other work that exists in the national economy, taking into
consideration the claimant's residual functional capacity, age, education, and work experience."

!d. at 1100. If the Commissioner meets this burden the claimant is not disabled. 20 C.F.R. §§
404.1520(g); 404.1566.

THE ALJ'S FINDINGS
The ALJ found that Wagner had severe impairments of lumbar spondylosis and lumbar
spine facet arthropathy, but found that neither impairment met a Listing. Tr. 23-24. The ALJ
concluded that she retained the RFC to perform light work except that she:
can never climb ladders, ropes, or scaffolds, can occasionally stoop and crouch,
and can have no greater than occasional exposure to excess vibration, and cannot
withstand any exposure to workplace hazards such as unprotected heights and
involving moving machinery. [Wagner] must be given a sit/stand option to be
performed while remaining on task.
Tr. 24. Considering this RFC, the Vocational Expert ("VE") indicated Wagner could
perform her past relevant work as a sales cashier. Tr. 29. The VE also indicated Wagner

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was capable of performing the following occupations: counter clerk, electronics worker,
and routing clerk. Tr. 30. Accordingly, the ALJ found Wagner not disabled. !d.
STANDARD OF REVIEW

The reviewing court must affirm the Commissioner's decision if the
Commissioner applied proper legal standards and the findings are supported by
substantial evidence in the record.· 42 U.S.C. § 405(g); Batson v. Commissioner for

Social Security Administration, 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial
evidence" means "more than a mere scintilla, but less than a preponderance." Bray v.

Comm'r of the Soc. Sec. Admin, 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." !d.
This court must weigh the evidence that supports and detracts from the ALl's
conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick

v. Chafer, 157 F.3d 715,720 (9th Cir. 1998)). The reviewing court may not substitute its
judgment for that of the Commissioner. !d. (citing Robbins v. Social Security

Administration, 466 F.3d 880, 882 (9th Cir. 2006)), see also Edlund v. Massanari, 253
F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations ofthe evidence are insignificant
if the Commissioner's interpretation is a rational reading. !d., see also Batson, 359 F.3d at
1193. However, this court cannot now rely upon reasoning the ALJ did not assert in
affirming the ALJ's findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp.,
332 u.s. 194, 196 (1947)) ..
I. Credibility

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Wagner argues the ALJ improperly rejected her pain and other subjective
symptom testimony without making "specific findings stating clear and convincing
reasons for doing so." Pl.'s Opening Br. 23.
A. Credibility Standard

When a claimant has medically documented impairments that could reasonably be
expected to produce some degree of the symptoms complained of, and the record contains
no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony
about the severity of ... symptoms only by offering specific, clear and convincing
reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation
omitted). A general assertion that claimant is not credible is insufficient; the ALJ must
"state which ... testimony is not credible and what evidence suggests the complaints are
not credible.~' Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons
proffered must be "sufficiently specific to permit the reviewing court to conclude that the
ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d
748,750 (9th Cir. 1995) (citation omitted). If, however, the "ALJ's credibility finding is
supported by substantial evidence in the record, [this court] may not engage in secondguessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
B. Credibility Analysis

The ALJ found that Wagner's "statements concerning the intensity, persistence,
and limiting effects of [her] symptoms were not credible." Tr. 28. Further, the ALJ
noted "claimant's various exaggerations and inconsistent findings are evidence of
malingering given the symptom exaggeration noted in the record and lack of findings."
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Tr. 27. The Commissioner argues that based on evidence of malingering, a lower
evidentiary standard applies. Def.'s Br. 12 fn.2. Wagner counters that the Commissioner
failed to show "actual" evidence of malingering, and therefore the "clear and convincing"
standard should apply to her credibility test. Pl.'s Reply Br. 12, 18.
The ALJ' s asserted there was "evidence of malingering," while also noting "there
[was] no diagnosis of malingering per se ... [although] there are frequent notes that one
may infer malingering, at worse, and symptom exaggeration at least .... " Tr. 27. The
ALJ subsequently asserted his credibility findings, "even assuming no malingering" were
clear and convincing. I d. Later, the ALJ listed "ample evidence ofsecondary gain [and]
no motivation to return to work" as reasons to discount Wagner's testimony, presumably
in the stead of affirmative malingering. Tr. 28. To the extent there is a difference, it
appears the ALJ did not base his credibility determination on evidence of malingering,
but rather, at least in part, he based it on "secondary gain" motives. !d. In any case,
neither the ALJ' s decision nor the Commissioner's brief included references to any
specific, affirmative evidence of malingering. The court finds, therefore, that the clear
and convincing standard applies.
The Commissioner also argues the clear and convincing standard does not apply
to Wagner's credibility assessment becaus~ "the agency rules do not require 'clear and
convincing' reasons ... [but rather] specify that courts must apply the extremely
deferential 'substantial evidence' standard ofreview." Def.'s Br. 8. The Commissioner
cites Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003) in support of its creative
argument. Def.'s Br. 8.
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In Monjaraz-Munoz, the Ninth Circuit reviewed a Board oflmmigration Appeals
("BIA'') case, and stated "we review the BIA findings of fact, including credibility
findings, for substantial evidence and must uphold the BIA finding unless the evidence
compels a contrary result." !d. at 895 (citation omitted). However, the Commissioner
fails to point to any authority that suggests the substantial evidence afforded an
immigration judge somehow negates decades of Ninth Circuit Social Security
Administration case law. The standards are simply different. BIA requires immigration
judges to make credibility findings based merely on substantial justice, with the caveat
that the judge must offer a specific, cogent reason for rejecting a witness's testimony.
Turcios v. INS., 821 F.2d 1396, 1399 (9th Cir. 1987) (citations omitted). The longestablished standard for a Social Security ALJ to discount a claimant's testimony is the
more rigorous clear and convincing standard, absent affirmative evidence of malingering.
See, e.g. Smolen, 80 F.3d at 1284. Further, even when "the findings [are] supported by
substantial evidence, the decision should be set aside if proper legal standards were not
applied in weighing the evidence .... " Flake

v:

Gardner, 399 F.2d 532, 540 (9th Cir.

1968); Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978); see also Bottom v.
Commissioner Social Sec. Admin., 2014 WL 3805576, *3 (D.Or. July 30, 2014) As
elaborated in a Social Security Rule:
The finding on the credibility of the individual's statements cannot be
based on an intangible or intuitive notion about an individual's credibility.
The reasons for the credibility finding must be grounded in the evidence
and articulated in the determination or decision. It is not sufficient to make
a conclusory statement that "the individual's allegations have been
considered" or that "the allegations are (or are not) credible." It is also not
enough for the adjudicator simply to recite the factors that are described in
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the regulations for evaluating symptoms. The determination or decision
must contain specific reasons for the finding on credibility, supported by
the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual's statements and the reasons for that
weight. This documentation is necessary in order to give the individual a
full and fair review of his or her claim, and in order to ensure a wellreasoned determination or decision.
SSR 96-7P *4, available at 1996 WL 374186. While it is true that an ALJ may consider
"ordinary techniques of credibility evaluation," the ALJ must nonetheless state clear and
convincing reasons for finding a claimant not credible. Robbins, 466 F.3d at 883.
Accordingly, the court will evaluate whether the ALJ's reasons for discrediting Wagner's
testimony were clear and convincing.
The ALJ first found that Wagner's "subjective reports of virtual immobility" were
unsupported in the record and belied by her testimony regarding activities of daily living
("ADL's"). Tr. 25; 28. In her Disability Appeal, Wagner alleged she was severely
limited in her ability to shower by herself, could not stand for more than a few minutes at
a time, and had difficulty dressing herself. Tr. 302-03. Wagner's disability application
noted she could cook, clean and do laundry in only small increments, and grocery
shopped using an electric cart. Tr. 264-65. At the hearing, Wagner stated that her
primary activities include crocheting, reading, and assisting with paperwork. Tr. 85.
The court does not find these minimal household activities inconsistent with her reports
of severe limitations in activities of daily living.
Wagner also indicated that it was typical for her to walk her dog. !d. The ALJ
noted that the ability to walk a dog around a high desert campground was "hardly

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consistent" with her reports. Tr. 27-28. While the ability to walk a dog is arguably
inconsistent with Wagner's reports of difficulty walking more than ten yards without
resting (Tr. 267), the ALJ did not establish whether Wagner walks her dog without the
assistance of her wheelchair or walker, or the duration or length of her walks. The fact
that Wagner may be able to take her dog on brief walks with or without an assistive
device does not necessarily mean that she is not disabled. Vertigan v. Halter, 260 F.3d
1044 (9th Cir. 2007) (" ... the mere fact that a plaintiffhas carried on certain daily
activities, such as grocery shopping, driving a car, or limited walking for exercise, does
not in any way detract from her credibility as to her overall disability."). The Ninth
Circuit has repeatedly held that one need not be "utterly incapacitated" in order to be
disabled. Fair v. Bowen, 885 F .2d 597, 603 (9th Cir. 1989).
Further, the ALJ found "no evidence of a need for a walker or prescription for
such" in the record. Tr. 28. In support, the Commissioner argues the finding was
appropriate, noting "scant" evidence of a necessity for a walker. De f.'s Br. 10. Wagner
testified at the hearing that Dr. Belza prescribed the walker, which she eventually
acquired at the Veterans of Foreign Wars organization. Tr. 89. Whether or not the
walker was prescribed, Wagner's treating and consulting physicians were certainly aware
ofher use ofassistive devices: on November 12, 2007, Dr. Belza noted Wagner was
"most comfortable riding in a wheelchair rather than walking." Tr. 1013. Dr. Swift noted
that on June 16, 2008, Wagner was "fairly debilitated and use[d] a wheelchair for
·mobility." Tr. 1002. On October 22,2008, Dr. Swift reported Wagner was "using her
wheelchair much less and is going to ambulate as much as she can with a cane or
Page 9 - Opinion & Order

walker." Tr. 1098. Although there is no clear evidence that a walker or wheelchairwas
prescribed as Wagner attested, the absence of such a prescription does not mean she is not
impaired or disabled. Wagner's doctors noted in 2008 and 2009 that she had poor posture
and often had trouble standing fully erect. See Tr. 993, 1000-1001, 1089. Based the
record, the court does not find Wagner's use of a walker and/or wheelchair without a
prescription as an affirmative example of Wagner's attempt to exaggerate her
impairments. Therefore, the ALJ's firstand second rationales are not "clear and
convincing" without further development.
The ALJ's third reason for discrediting Wagner's testimony was that "[t]he
claimant said her medical records are in storage but she has not made an effort to get
. them, and she said that she has recently been seen at a clinic that 'does not keep
records."' Tr. 28. The ALJ was presumably referring to an exchange during the hearing
when he asked why Wagner had not procured medical records from Volunteers in
Medicine. Tr. 103-104. Wagner replied that she had all of her medical records at a
storage unit. Tr. 104. The ALJ then asked why she had not retrieved the records from the
unit, to which Wagner replied she didn't have space in her RV. Tr. 105. She then stated
"she really didn't know if there was something missing." Tr. 106. When questioned
about the location of records from Volunteers in Medicine, Wagner answered, "I just
don't think they have records or keep records. That's the impression I got." Tr. 105.
Towards the end of the hearing, the ALJ and Wagner's counsel discussed that counsel
had previously requested records and only received documents up until 2009. Tr. 117118.

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It appears that Wagner and/or her attorney had attempted to procure additional
records, but were unsuccessful, at least up until the time of the hearing. !d. Whether
Wagner had the records in storage at her home might impact her ability to prove
disability, but the mere fact that she had not submitted the records (if in fact she had
them), without further extrapolation by the ALJ, is an insufficient reason to impugn her
credibility. Further, it appears the chart notes in question were eventually located, and
added to the medical record after hearing as Exhibit 32F. Tr. 25, 1205-24. Assuming
Exhibit 32F comprises the "missing records," it is unclear why the ALJ found her failure
to have them at hearing impugned her credibility, particularly considering the records
were submitted in time for the ALJ to draft his opinion. If the ALJ suspected ulterior
motives, or that Wagner was not being forthright, he should have indicated as much and
presented clear and convincing reasons for his opinion. The ALJ' s conclusory statements
do not meet the legal standard set forth by the Ninth Circuit. Reddick v. Chafer, 157 F.3d
715, 722 (9th Cir. 1998) ([T]he ALJ is responsible for determining credibility, resolving
conflicts in the medicaltestimony, and for resolving ambiguities ... [t]he ALJ's findings,
however, must be supported by specific, cogent reasons." (internal citations omitted)).
The ALJ next discounts Wagner's credibility because "she denied past issues with
her back related to shotgun in workers comp litigation 28F/8 [Tr. 1115]; compare with
32F [Tr. 1205-1224], lower back pain was related to shotgun wound." Tr. 28 (emphasis
in the original). Exhibit 28F is a deposition by the workers' compensation attorney
representing the claims administrator, Sedgwick, who in tum was employed by the
insurer/employer. During the August 14, 2008 deposition, Dr. Thomas Rosenbaum,
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an"independent" medical examiner, indicated he examined Wagner on behalf of
Sedgwick, and reported that Wagner told him she had never experienced low back pain
from her gunshot wound. Tr. 1115. Dr. Rosenbaum's testimony is supported elsewhere,
as shortly after his October 31, 2007 examination of Wagner, the doctor produced a
report in which he mentioned Wagner "did not note low back pain" associated with her
1994 gunshot wound. Tr. 371.
However, upon careful review of Exhibit 32F, it is unclear whether Wagner was
associating low back pain with her gunshot wound. For example, while the ALJ
contrasted Wagner's report that her back pain was secondary to standing all day at work
with another report that Wagner injured her back on February 8, 2007 while stacking
cases of soda (tr. 25), the ALJ failed to realize Wagner's standing pain complaint was
made on February 1, 2007, a week before the alleged February 8, 2007 low back injury.
Compare Tr. 1205 with Tr. 367. The ALJ then states that "later in the same month ...

she denied any injury in the past year." Tr. 25. However, review of the chart note reveals
Wagner denied "being hit or hurt in the last year ... [s]he feels safe in her home," offered
in response to a question about domestic violence. Tr. 1207. The ALJ further references
an April 16, 2007 chart note "referring to chronic back pain but the issue was a 10 year
old [sic] incident regarding gunshot." Tr. 25. Rather than an unequivocal association
between the gunshot wound and her pain, the note indicates Wagner had a gunshot wound
ten years before, but reported "her back pain is different." Tr. 1213. Based on the
foregoing, the ALJ's analysis of the "inconsistencies" between Exhibits 28F/8 and 32F do
not withstand scrutiny, and are not valid reasons to discount her credibility.
Page 12 - Opinion & Order

The Commissioner also argues that because Wagner presented with mily chronic
low back pain on February 19, 2008 and did not mention any work incident less than two
weeks after her alleged back injury, the ALJ properly discredited her testimony. Def. 's
Br. 9; Tr. 1207. While the court acknowledges confusion by Wagner's failure to report
her work injury during her February 19, 2008 visit, the import of her non-reporting is
unclear. First, it is not as if Wagner reported being pain-free at the time; she presented
with "pelvic pain and back pain" and was experiencing "chronic pain." Tr. 1207.
Further, there does not appear to be any doubt about whether Wagner was in fact injured
on February 8, 2007 while stacking soda at work. See, e.g. Tr. 391, 1114, 1222. That
Wagner did not immediately and explicitly associate her back pain with a work injury is
not unusual given the stigma often associated with reporting work injuries. Regardless,
the record does not represent clear and convincing evidence of inconsistency. At most,
any discrepancy in reporting gives rise to the possibility Wagner had preexisting back
pain prior to the work injury, which is relevant to Oregon Workers' Compensation law,
but not to the DIB/SSI inquiry at hand. The ALJ's conclusions are not, therefore, legally
sufficient.
Finally, the ALJ provided diminished weight to Wagner's testimony because there
was "ample evidence of secondary gain, no motivation to return to work, and the
objective evidence supports a limited light exertional capacity." Tr. 28. Discussion of
secondary gain is not prevalent in the record. In November 2008, Wagner was admitted
to a hospital for "intractable pain" and "unexplained" episodes of falling. Tr. 85. The
Commissioner argues that Dr. Mary Manfredi, on November 25, 2008, indicated she had
Page 13 - Opinion & Order

discussed Wagner with Dr. Jon Swift, who remarked he was "worried about some
secondary gains as far as her workmen's compensation." Tr. 826. However, Dr. Swift
did not mention secondary gain motives ·in his chart note from November 2008. Tr. 82023.
Additionally, despite the Commissioner's inference that Wagner might be
motivated to procure opioids based on her history, Dr. Swift noted it was not "[Wagner's]
wish" to restart any long-acting opioids. Tr. 822. Further, Dr. Swift did not mention any
secondary gain motivation when he saw Wagner again the following month, nor did he
mention that issue when he treated Wagner on October 22, 2008 and June 16, 2008. Tr.
1000, 1091, 1098.
The ALJ also provided deference Dr. Rosenbaum's functional overlay diagnosis
\

in assessing Wagner's credibility. Tr. 1122. However, as explained above, Dr.
Rosenbaum's opinion was framed by Wagner's workers' compensation case, so it is
unclear whether his assessment of functional overlay was limited to the unexplained
persistence of Wagner's "work-related" lumbar strain symptoms, or rather to her overall
back condition. Tr. 1116. Thus, though the ALJ explained that "Dr. Haynes agrees with
Dr. Rosenbaum's conclusion," Dr. Rosenbaum's conclusion appears to have been that
Wagner's complaints at the time of the deposition were caused by factors other than her
February 2007 work injury, which does not have a significant bearing on the present
inquiry. Tr. 26, 138-1140. The ALJ further noted that Wagner's straight-leg raising was
inconsistent based on Dr. Rosenbaum's assessment, which Dr. Haynes opined damaged
her credibility. Tr. 26, 61. However, although Dr. Rosenbaum opined that Wagner's
Page 14 - Opinion & Order

~traight-leg

testing was inconsistent based on a one-time evaluation, her treating

physicians noted positive straight-leg testing on several other occasions over the course of
her treatment, and did not indicate any suspicion of malingering, secondary gain
motivation, or symptom exaggeration. Compare Tr. 369 with Tr. 452, 1059, 1068, 1096.
Thus, the court finds less than "ample" evidence of secondary gain.
The ALJ also discounted Wagner's credibility because Dr. Belza's treatment was
conservative. Tr. 28. In support of his conclusion, the ALJ cited a single chart note. Tr.
1174. Review of the November 10, 2010 note reveals that Dr. Belza did not detect "signs
or symptoms of severe nerve impingement," and recommended oral steroids and muscle
relaxants. Id. He did not feel Wagner was a surgical candidate at the time. !d. Although
a conservative course of treatment can undermine allegations of debilitating pain, it is not
a proper basis for rejecting a plaintiffs credibility where the plaintiff has a good reason
for not seeking more aggressive treatment. Carmickle v. Commissioner, Social Sec.
Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (quoting Orn v. Astrue, 495 F.3d 625, 638
(9th Cir.2007). Wagner provided more than one reason not to take medications. First,
she was aware of her previous opioid dependency and was attempting to wean herself
from them. Tr. 1222. Second, she was having difficulty procuring medication because
was not insured and unable to get a primary care physician with a pending workers'
compensation case. Tr. 301, 1222. As such, this rationale for impugning Wagner's
credibility is not clear and convincing.
Finally, the ALJ found Wagner's credibility questionable based on inconsistencies
about her medication use, particularly in Exhibit 32F. Tr. 27. Wagner testified that she
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took medication for back pain "on occasion," but immediately thereafter stated she took it
"pretty much daily." Tr. 81. The ALJ found Wagner's assertion that her pain was 8/10
when taking Tramadol was not credible given the periods when she was not taking
medication at all. Tr. 27, 82. For example, on February 9, 2009, Wagner was treated by
Dr. James Ritzenthaler for low back and leg pain. Tr. 1219. The doctor reported Wagner
was not taking medications. !d. Dr. Ritzenthaler's report is consistent with Wagner's
written disability appeal report, also submitted on February 9, 2009, indicating she had
not been using medication since January 27, 2009, less than two weeks prior. Tr. 298.
Thus, the period when Wagner was off medications appears to have been a relatively
short duration. Further, the majority of chart notes from Exhibit 32F reference the use of
pain medication, including February 19, 2007, February 23, 2007, April 9, 2007, April
16,2007, June 7, 2007, and March 12,2009. Tr. 1208, 1210, 1212, 1214, 1216, 1222.
Although the ALJ asked questions at the hearing regarding the intensity of Wagner's
pain, the questions predominantly referred to the time of the hearing, July 7, 2011. Tr.
81-82. Although the ALJ asked Wagner if she had ever not been taking medication in
2007, he did not ask about any other time period aside from her the present. !d.
Wagner was treated by Dr. Robert Hakala, on November 17, 2010 for back pain,
and it was noted she was not taking medications. Tr. 1223. Dr. Hakala reported Wagner
was in no apparent distress and had good back range of motion ("ROM"). !d. Wagner's
lack of severe symptoms, despite allegedly being medication free, seems to belie her
hearing testimony regarding pain. However, Wagner was in fact seeking treatment for
pain at the time. !d. Further, as SSR 96-7p explains: "Symptoms may vary in intensity,
Page 16 - Opinion & Order ·

presence, and functional effects, or may worsen or improve with time, and this may
explain why the individual does not always allege the same intensity, persistence, or
functional effects of his or her symptoms." Id. at *5. Twelve days after her visit to Dr.
Hakala, Wagner treated with Dr. Belza, who noted increased low back pain, and
recommended oral steroids and muscle relaxants to address a likely combination of facet
arthrosis and degenerrative disc disease. Tr. 1174. Thus, given the record as a whole,
Wagner's failure to consistently take pain medication is not sufficient evidence to
discount her testimony.

C. Credibility Conclusion
Based on the foregoing discussion, the ALJ failed to present sufficiently specific
evidence to discount Wagner's credibility concerning the extent of her pain. On remand,
the ALJ must re-weigh the evidence, and provide specific, clear and convincing reasons
for discounting Wagner's credibility. The ALJ should further develop the record with
specificity regarding whether Wagner's ADL's are consistent with her alleged impairment
level, the import of any missing medical records, whether there is specific evidence of
secondary gain motivation, and whether the record as a whole actually indicates
inconsistency, given the court's discussion above.
II. Medical Evidence
Wagner alleges the ALJ improperly rejected the opinions and conclusions of her
treating and examining physicians, including Drs. Belza, Swift, Holm Neumann, and
Family Nurse Practitioner ("FNP") Joannie Miller. In his decision, the ALJ gave
"significant weight" to the assessment of Dr. Rosenbaum and the non-examining state
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physicians. Tr. 28. The ALJ also endorsed the testimony of medical expert Dr. James
Haynes. Tr. 25-26. "Little weight" was given to the assessment of treating physician Dr.
Belza. Tr. 28.
A. Standard

The opinions of treating doctors should be given greater deference than the
opinions of non-treating doctors. Lester v. Chafer, 81 P.3d 821, 830 (9th Cir. 1995); see
also 20 C.P.R. § 404.1527. Where a treating doctor's opinion is not contradicted by

another doctor, it may be rejected only for "clear and convincing" reasons supported by
substantial evidence in the record. Lester, 81 P.3d at 830. Uncontradicted opinions of
treating physicians may be rejected for "specific and legitimate" reasons. !d. In order to
do so, the ALJ must set out a detailed and thorough summary of the facts and conflicting
evidence, state his interpretation, and make findings. Magallanes v. Bowen, 881 P.2d
747, 751 (9th Cir. 1989). The ALJ must do more than offer conclusory opinions.
Reddick, 157 P.3d at 725. Even when contradicted by an opinion of an examining

physician that constitutes substantial evidence, the treating doctor's opinion is still
entitled to deference. Orn v. Astrue, 495 P.3d 625, 632 (9th Cir. 2007) (internal
quotations omitted).
B. Analysis

Dr. Belza intermittently treated Wagner from September 2007 until November
2010. Tr. 386, 1174. The medical evidence reflects that Dr. Belza has the longest clinical
relationship with Wagner of the physicians of record, which is a factor which can lend
additional credence to a treating physician's opinion. See 20 C.P.R.§ 404.1527(d)(2);
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see also Orn, 495 F.3d at 633-34. The ALJ afforded his opinion "little weight" because
"it was unsupported by medically acceptable clinical and laboratory diagnostic techniques
and was inconsistent with other substantial evidence in the record," citing Exhibit 10F.
Tr. 28, 386-89. Exhibit lOF is a report authored by Wagner's workers' compensation
attorney, including check-boxes to indicate whether Dr. Belza agreed with the attorney's
summary of a phone conversation regarding Wagner's worke.rs' compensation claim. Tr.
386-89. Among other things, Dr. Belza indicated Wagner's February 8, 2007work injury
caused disc bulges at L4-5 and L5-S 1 which combined with her preexisting spondylosis
condition, as well as radiculopathy. Tr. 388-89. Previously, Dr. Belza had indicated he
did not believe Wagner's industrial injury caused a lumbar strain, but rather that she had
ongoing radiculopathy secondary to the injury. Tr. 375. The last record of Dr. Belza's
treatment opines Wagner had "sensory radiculitis," and her back pain was a combination
of"facet arthrosis and degenerative disc disease." Tr. 1174.
Thus, while Dr. Belza diagnosed Wagner's work injury as
radiculitis/radiculopathy rather than a lumbar strain, his additional diagnoses of
spondylosis and facet arthropathy were consistent with the "contrary" opinions of Dr.
Rosenbaum, Dr. Chae Ha, Dr. Haynes; and were adopted by the ALJ. Tr. 392-93, 65354, 58-59, 23. Presumably, then, the ALJ only gave "little weight" to Dr. Belza's opinion
regarding his diagnosis of radiculopathy/radiculitis. However, considering the ALJ
adopted two of three of Dr. Belza' s diagnoses, it remains unclear why his opinion was
unsupported by "medically acceptable" techniques and inconsistent with substantial
evidence in the record. T. 28. Moreover, Dr. Belza's history of treatment with Wagner
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included numerous clinical examinations and findings, as well as a variety of diagnostic
imaging studies. As such, the ALJ did not specifically address which medically
acceptable clinical and laboratory diagnostic techniques did not support Dr. Belza's
opinions, nor did the ALJ specify which subst!lltial evidence his assessments were
inconsistent with.
Further, Dr. Belza was not the only examining physician to diagnose
radiculopathy/radiculitis; treating physician Jon Swift, D.O., also diagnosed sensory
lumbar radiculitis. Tr. 1090-91. Dr. Swift treated Wagner a few times between April
2008 and December 2008 for pain management. Tr. 450-53, 995-1002, 1090-91. An
ALJ must "mention a treating physian's medical opinion that is relevant to the medical
evidence being discussed." Lingenfelter v. Astrue, 504 F.3d 1028, 1045 (9th Cir. 2007)
(internal citations and quotations omitted). Here, the ALJ did not appear to consider Dr.
Swift's diagnoses, despite the fact the doctor consistently diagnosed "sensory lumbar
radiculitis" as well as chronic lumbar and leg pain, and spondylosis. Tr. 450-53, 9951002, 1090-91. Further, the ALJ did not explain what weight, if any, he gave to Dr.
Swift's assessments. Tr. 27.
While the ALJ accurately reported Dr. Swift's statement that he "made [Wagner]
medically stationary," that conclusion is a term of art in Oregon Workers' Compensation
meaning "no further material improvement would reasonably be expected from medical
treatment, or the passage of time." Or. Rev. Stat. 656.005(17) (2013). It does not mean
that a plaintiff has recovered or is able to return to work. Furthermore, a plaintiff who is
deemed "medically stationary" in the context of Oregon workers' compensation law is
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typically only medically stationary relative to the compensible injury under the claim, and
may therefore still be disabled due to medical conditions and/or impairments not directly
arising from a work injury. See, e.g. Liberty Northwest Ins. Corp. v. Olvera-Chavez, 339
P.3d 928, 929-30 (2014) (claim may be closed when the worker's compensable condition
is medically stationary); see also Or. Rev. Stat. 656.268(1); Oregon Administrative Rule
(OAR) 436-030-0020(1)(a). Thus, regardless of whether Wagner was medically
stationary relative to her work injury, or even medically stationary overall, that status
does not demonstrate her overall level of impairment.
Wagner was treated by Dr. Ha on two occasions in 2007, and the doctor provided
a check-box assessment in June 2008. Tr. 341-48, 652-54. As the ALJ and
Commissioner noted, Dr. Ha did not diagnose radiculopathy. Tr. 341, 353-54. However,
he did indicate that Wagner's "residual restrictions" were "related to the preexisting
degenerative changes." Again, Dr. Ha's analysis was premised on Wagner's status
relative to her work injury, rather than her overall clinical picture. Tr. 343.
("[spondylosis] is something which is going to be very difficult to link to the injury back
in 02/2007 ... ").Rather, Dr. Ha's primary conclusion was that Wagner's preexisting
degenerative conditions had supplanted the February 8, 2007 work injury as the primary
cause of her need for medical treatment and disability. Tr. 353-54. ·While the ALJ
indicated Dr. Haynes agreed with Dr. Ha's conclusion "that the claimant had a lumbar
strain and there are no objective signs ofradiculopathy," there is no mention of Wagner's
severe impairments oflumbar spondylosis and facet arthropathy, which Dr. Ha also
found. Tr. 26, 354. Further, it is not clear what weight the ALJ provided Dr. Ha's
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assessment. Tr. 26.
The Commissioner argues the ALJ properly gave significant weight to the opinion
of medical expert Drs. Haynes as opposed to the minimal weight given to Dr. Belza.
Def.'s Br. 13. Dr. Haynes testified at both hearings based on his review of the medical
record. An ALJ is "entitled to adopt the opinion of the nonexamining medical advisor,
who was present at the hearing and testified, and to discount the opinion of the examining
physician, because the ALJ gave specific and legitimate reasons for doing so based on
substantial evidence .... " Andrews v. Shalala, 53 F.3d 1035, 1037 (9th Cir. 1995). As
discussed above, however, the ALJ did not provide specific and legitimate reasons for
discounting the opinions of the examining physicians.
The ALJ afforded Dr. Rosenbaum's opinion significant weight, although it did not
substantially differ from Dr. Belza's opinion aside from the radiculitis diagnosis.
Compare Tr. 386-89 with 390-93. Insofar as the doctors disagreed on the cause of

Wagner's symptoms/conditions, that inquiry is only significant under Oregon Workers'
Compensation law. By the time Dr. Rosenbaum examined Wagner, he felt the work
injury of February 8, 2007 had ceased to be the major contributing cause of her need for
treatment and/or disability, as the major cause had reverted back to her preexisting
conditions, including spondylosis and facet arthropathy. Tr. 392-93. He did not indicate
she was no longer disabled or requiring treatment relative to her preexisting spondylosis
and facet arthropathy. Id. Further, the ALJ incorrectly stated that Dr. Rosenbaum's
ultimate diagnosis was "lumbar strain by history with lack of objective findings." Tr. 26.
Dr. Rosenbaum made that diagnosis at the time of his medical examination, which was
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accomplished without the benefit of imagining studies. Tr. 3 71-72. After reviewing
imaging, Dr. Rosenbaum acknowledged the "existence of degenerative disc disease and
changes consistent with spondylosis." Tr. 392. Again, Dr. Rosenbaum's conclusions,
which the ALJ purported to weigh significantly, did not, for the most part, contemplate
her overall impairment level, as his inquiry was focused more narrowly on whether her
work injury had resolved. Tr. 390-93. It is therefore unclear whether Dr. Haynes'
agreement with Dr. Rosenbaum's assessment of the work injury represents substantial
evidence relative to her ability to maintain gainful activity. Thus, to the extent the ALJ
discredited Dr. Belza's opinion because it was contradicted by the opinions of Drs.
Rosenbaum and Haynes, the evidence must be reassessed using the proper legal
standards. Additionally, to the extent the non-examining state medical reviewers relied
on the conclusions of Dr. Rosenbaum, their opinions must also be reassessed.
The Commissioner also argues the ALJ' s interpretation of the medical evidence
must stand because the ALJ "is responsible for resolving conflicts in the medical record."

Carmickle, 533 F.3d at 1164; Def.'s Br. 15. While the Commissioner accurately recites
the guideline, the ALJ nonetheless failed to provide the legally sufficient rationales for
not providing deference to the treating doctors, which is a prerequisite for resolving
conflicts in the medical record.
The Commissioner further argues that the ALJ' s assessment of the medical
evidence was supported by the ALJ's credibility findings, which "factored significantly in
the ALJ's evaluation ofthe medical evidence." Def.'s Br. 15. However, as the court
finds error in the ALJ's analysis of Wagner's credibility, the argument is unavailing.
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Finally, as the Commissioner concedes, the ALJ did not address the opinion of
FNP Miller.' As a nurse practitioner, Ms. Miller is an "other source" under the Act. 20
C.F.R. §§ 404.1513(d)(l), 416.913(d)(l). In order to reject evidence from "other
sources," an ALJ must provide germane reasons. Turner v. Comm 'r of Soc. Sec., 613
F.3d 1217, 1224 (9th Cir. 2010). Here, despite the fact that Ms. Miller treated Wagner
regularly in 2007 and 2008 (Tr. 682-769), the ALJ does not appear to have considered her
opinion (Tr. 649-51). On remand, Ms. Miller's opinion should be addressed insofar as it
provides evidence of the severity of Wagner's impairments and/or functional effects. 20
C.F.R. § 404.1513(a), (d). Alternatively, a germane reason should be provided for
rejecting any such evidence. Turner, 613 F.3d at 1224.

C. Conclusion
The ALJ failed to provide specific and legitimate reasons for giving Dr. Belza's
opinion little weight. Lester, 81 F.3d at 830. Similarly, the ALJ failed to incorporate any
assessment of Dr. Swift's opinions, other than to indicate the inapposite fact that he
stopped treating her because she was not expected to substantially improve relative to her
work injury. Tr. 27, 1091. Further, it is unclear what weight was afforded the
assessments of Dr. Ha. Therefore, the ALJ committed errors of law in failing to provide
deference to the treating physicians absent specific and legitimate rationales. On remand,
the ALJ should reassess the opinions of the treating, examining, and non-examining

1

The Commissioner's argument that Wagner failed to raise the issue of Ms. Miller's
opinion evidence and therefore waived the issue is unavailing. Wagner discussed Ms. Miller's
opinion in her Opening Brief as well as in her Reply Brief. Pl.'s Opening Br. 16; Pl.'s Reply Br.
22-23. Moreover, this court must consider the record as a whole. Robbins, 466 F.3d at 882. ·
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physicians pursuant to 20 C.P.R.§ 404.1527. To the extent the opinions of Wagner's.
treating doctors are rejected, specific and legitimate reasons must be provided which are
based on substantial evidence in the record. Orn, 495 F.3d at 633.

III. RFC and Step Five Conclusions
Based on the ALJ's analysis of Wagner's credibility and his assessment ofthe
medical opinion evidence, the ALJ formulated an RFC. Tr. 24. Based on the RFC, the
ALJ then posed questions to the VE during the hearing. Tr. 108-11 7. The VE' s
responses indicated Wagner was capable of performing pas~ relevant work as a cashier.
Tr. 29. The VE further opined Wagner could perform other occupations such as counter
clerk, electronics worker, and routing clerk. Tr. 30. Thus, Wagner was found not
disabled. Id
Because the ALJ erred in assessing the credibility of Wagner's testimony, and
failed to properly evaluate the medical evidence, the RFC was inappropriately formulated.
Accordingly, the VE questions are also rendered erroneous.

IV. Remand
This court may remand this case for further proceedings or credit certain evidence as true
and award benefits. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). The Ninth
Circuit explained the credit-as-true doctrine "requir[es] courts to remand for further
proceedings when, even though all conditions of the credit-as-true rule are satisfied, an
evaluation of the record as a whole creates serious doubt that a claimant is, in fact,
disabled. Garrision v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). Here, even ifthe
evidence were credited as true, the court maintains doubts about whether Wagner is
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completely disabled. Further development of the record consistent with this opinion is
required in order to determine whether Wagner is able to return to her past relevant work
or other work in the economy. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).
Accordingly, this case is remanded for further proceedings.

IV. Conclusion
Based on the foregoing, the Commissioner's decision is REVERSED. This action is
remanded for further proceedings consistent with this Opinion.
IT IS SO ORDERED.

Dated this_!!__ day of April2015.

United States Magistrate Judge

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