Winn v. Commissioner, Social Security Administration

Filing 22

OPINION & ORDER: The Court concludes that the ALJ failed to offer clear and convincing reasons for discounting Plaintiff's credibility, failed to credit the opinions of treating physician Dr. Gage, and failed to give legally sufficient re asons for rejecting lay witnesses' testimony. The Commissioner's decision is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for an immediate award of benefits. See 18-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ANGELICA C. WINN,
Plaintiff,
v.
CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.
Drew L. Johnson
DREW L. JOHNSON, P.C.
1700 Valley River Drive
Eugene, OR 97405
Kathryn Tassinari
HARDER, WELLS, BARON & MANNING, P.C.
474 Willamette, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff
///

1 - OPINION & ORDER

No. 6:14-cv-00564-HZ
OPINION & ORDER

S. Amanda Marshall
United States Attorney, District of Oregon
Ronald K. Silver
Assistant United States Attorney
U.S. ATTORNEY’S OFFICE, DISTRICT OF OREGON
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Erin F. Highland
SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 98104
Seattle, WA 98104
Attorneys for Defendants
HERNÁNDEZ, District Judge:
Plaintiff Angelica Winn brings this action for judicial review of the Commissioner’s final
decision denying her application for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42
U.S.C. § 1382(c)(3)). For the reasons that follow, the Commissioner’s decision is reversed and
remanded for an award of benefits.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB on November 4, 2010, alleging an onset date of September 5,
2009. Tr. 12. Her application was denied initially and on reconsideration. Tr. 101-107. On
September 25, 2012, Plaintiff appeared, with counsel, for a hearing before an Administrative
Law Judge (ALJ). Tr. 36-78. On December 27, 2012, the ALJ found Plaintiff not disabled. Tr.
12-23. The Appeals Council denied review. Tr. 1-4.
FACTUAL BACKGROUND
Plaintiff alleges disability based on dizziness, blackouts (also referred to as “syncope
episodes”), diabetes, depression, short-term memory loss, sleep apnea, and emotional fears of

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blackouts happening in public. Tr. 184. Plaintiff testified that the main thing keeping her from
working is her blackouts. Tr. 45. Sometimes she knows a blackout is coming on but most of the
time she does not and so she “hit[s] the floor.” Tr. 45. She also testified that she has some
blackouts where she wakes up in a different place and is not sure how she got there. Tr. 52.
Plaintiff testified that she gets dizzy eight to ten times a day and has to lie down and rest three
times a day, on average. Tr. 63-64. Plaintiff believes that her syncope episodes and spells of
dizziness are related to injuries she incurred in a serious motorcycle accident. Tr. 252, 276.
Plaintiff was forty-four years old at the time of the administrative hearing. Tr. 22. She
graduated from high school. Tr. 22. She has past work experience as a mixer-blender, cashierchecker, and supervisor at a food business. Tr. 22. Because the parties are familiar with the
medical and other evidence in the record, the Court refers to any additional relevant facts in the
discussion section below.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if 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).
Disability claims are evaluated according to a five-step procedure. See e.g., Valentine v.
Comm’r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving
disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a “medically severe impairment or combination of

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impairments.” Yuckert, 482 U.S. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not,
the claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals “one
of a number of listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d),
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§
404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the Commissioner. In step five, the
Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date. Tr. 14. Next, at steps two and three, the ALJ determined that
Plaintiff has severe impairments of episodic syncope of uncertain etiology but possibly resulting
from diabetes and/or a sleep disorder, Type II diabetes mellitus, and sleep disorder with restless
leg syndrome, but that the impairments did not meet or equal, either singly or in combination, a
listed impairment. Tr. 14-20. At step four, the ALJ concluded that Plaintiff has the residual
functional capacity to perform light exertional work as defined in the regulations except for

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standing, walking, and sitting each for six hours a day out of an eight-hour work setting. Tr. 20.
In addition, the ALJ concluded that Plaintiff should have no exposure at work to hazards or
unprotected heights. Tr. 20. With this residual functional capacity, the ALJ determined that
Plaintiff is unable to perform any of her past relevant work. Tr. 21. However, at step five, the
ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the
economy, such as photocopying machine operator, office helper, and mail clerk. Tr. 23. Thus the
ALJ determined that Plaintiff is not disabled. Tr. 23.
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. Comm’r of Soc. Sec. Admin., 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 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.” Id.
The court must weigh the evidence that supports and detracts from the ALJ’s conclusion.
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d
715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the
Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the
evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also
Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not

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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)).
DISCUSSION
Plaintiff contends that the ALJ erred by: (1) failing to give clear and convincing reasons
for rejecting Plaintiff’s testimony; (2) failing to credit the opinion of Plaintiff’s treating
physician; (3) failing to credit the opinions of Plaintiff’s treating mental health providers; (4)
failing to credit lay witness evidence; and (5) failing to include depression and PTSD as “severe”
impairments at step two or, in the alternative, to obtain neuropsychological testing.
I.

Plaintiff’s Credibility
Plaintiff contends that the ALJ failed to provide legally sufficient reasons for rejecting

her testimony. In assessing the credibility of a claimant's testimony regarding subjective pain or
the intensity of symptoms, the ALJ engages in a two-step analysis. 20 C.F.R. § 404.1529. First,
the ALJ determines whether there is objective medical evidence of an underlying impairment
that could reasonably be expected to produce some degree of symptoms. Smolen v. Chater, 80
F.3d 1273, 1282 (9th Cir. 1996). If such evidence exists, and barring affirmative evidence of
malingering, the ALJ must give clear and convincing reasons for discrediting the claimant's
testimony regarding the severity of the symptoms. Id. at 1284; see also Lingenfelter, 504 F.3d at
1036.
The ALJ may consider many factors in weighing a claimant's credibility, including: (1)
ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior
inconsistent statements concerning the symptoms, and other testimony by the claimant 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.

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Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Where the ALJ's credibility findings are supported
by substantial evidence in the record, the reviewing court “may not engage in second-guessing.”
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). However, a general assertion that
plaintiff 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); see also Morgan, 169 F.3d at 599.
Here, the ALJ found Plaintiff “not fully credible.” Tr. 21. He concluded that Plaintiff’s
inconsistent statements and daily activities undermined her credibility. Tr. 18. He found that,
while Plaintiff has syncopal episodes, the record did not support the frequency alleged or the
allegation that she needs to lie down two times during the day for 30-60 minutes. Tr. 19.
The ALJ afforded “great weight” to the assessment of consulting neurologist Dr. Hamby,
who met with Plaintiff on October 12, 2011 and reviewed her entire medical record. Tr. 16.
Plaintiff told Dr. Hamby that she passes out twice per week and that these syncopal episodes
have occurred at this frequency since they began in 2008. Tr. 18, 357. However, Dr. Hamby
noted that Plaintiff’s report conflicted with the following:
In August 2009, Plaintiff reported to neurologist Dr. Balm that she had eight syncopal
spells in the past year. Tr. 355.
In November 2010, Plaintiff reported a two-year history of weekly to monthly blackouts
since her accident. Tr. 356.
In April 2011, Plaintiff reported that, with medication, blackouts occurred three or four
times a month. Without medication, Plaintiff reported that blackouts occurred up to eight
times per month. Tr. 489.
The ALJ also found an inconsistency in Plaintiff’s Disability Report, Form SSA-3368,
where she stated that she stopped working because her employer moved to another state, not
because of a disability. Tr. 18.

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In addition, the ALJ found that Plaintiff’s activities of daily living undermined her
credibility. Tr. 22. The ALJ characterized Plaintiff’s daily activities as “inconsistent with
disability due to any mental impairment.” Tr. 18. A medical chart note from January 5, 2009,
indicated that Plaintiff injured herself by “scrubbing her bedroom for the last week, doing a lot of
repetitive activities.” Tr. 331. In addition, Plaintiff said she was doing well and was much less
stressed after her company closed and laid her off, yet elsewhere Plaintiff stated that she stopped
working because of her conditions and because she was having a hard time. Tr. 18-19. Finally,
the ALJ noted that Plaintiff cared for her ill father and two grandchildren. Tr. 19.
The Court does not consider the ALJ’s reasons to be clear and convincing reasons to
discredit Plaintiff’s testimony. As to the frequency of Plaintiff’s syncopal episodes, Plaintiff
reported that they occurred more or less frequently over a period of three to four years. Taken
together, Plaintiff’s reports to her medical providers support her testimony that she has blackout
episodes that cause her to fall, on average, one to two times a week, and that she has episodes
where she forgets where she is about one to two times a month. Tr. 55. The fact that Plaintiff’s
episodes varied in frequency over a period of years does not undermine her credibility. See
Garrison v. Colvin, 759 F.3d 995 1017 (9th Cir. 2014) (cycles of improvement and debilitating
symptoms occur commonly); see also Social Security Ruling 96-7p, July 2, 1996 (“[T] he lack of
consistency between an individual's statements and other statements that he or she has made at
other times does not necessarily mean that the individual's statements are not credible.
Symptoms may vary in their intensity, persistence, 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.”).

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Similarly, nothing in Plaintiff’s reports regarding the reasons she stopped working is
inconsistent. The full text of Plaintiff statement that the ALJ references is as follows: “I was
trying to work but was having hard time, then I had a bad spell at work and left in Ambulance to
sacred heart hospital. The company closed 9 5 2009 but I was about to loose [sic] my job anyway
due to being a liability to myself and others in the work place.” Tr. 184. Plaintiff’s statement
makes clear that she stopped working because her employer moved, but that she would have had
to stop anyway due to her alleged disability. Plaintiff’s coworker Kenneth Eldridge, corroborates
Plaintiff’s account of her final year of work, stating that Plaintiff passed out at work, was prone
to dizzy spells, and reduced her work hours. Tr. 239. While the Court “must uphold the ALJ's
decision where the evidence is susceptible to more than one rational interpretation”, see
Andrews, 53 F.3d at1039-40, the Court does not find it rational to interpret Plaintiff’s testimony
as inconsistent and therefore a negative indicator of Plaintiff’s credibility.
As to Plaintiff’s activities of daily living, the fact that Plaintiff exerted herself once by
scrubbing her bedroom has no bearing on her allegations of blackouts and dizziness. Nor does
the fact that she felt less stressed after she was laid off. Engaging in daily activities that are
incompatible with the severity of symptoms alleged can support an adverse credibility
determination. Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). However, the Court finds
it difficult to see how a single incident of housework, in which Plaintiff injured herself, can be
the basis for discrediting her testimony about blackouts and dizziness. The two are not mutually
exclusive. As to Plaintiff feeling better after she was laid off, that does not constitute substantial
evidence of daily activities in conflict with her testimony. Finally, the fact that she cared for her
father and grandchildren does not, by itself, contradict any of Plaintiff’s reports of her alleged
disability. The medical chart note cited by the ALJ that indicates Plaintiff cared for her father

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and grandchildren also indicates that she continued to have syncopal episodes. Tr. 482, 486. As
the Ninth Circuit has made clear, “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 Vertifan v. Halter, 260 F.3d1044, 1050 (9th
Cir. 2001). Therefore, the Court finds that the ALJ did not provide clear and convincing reasons
to discount Plaintiff’s testimony.
II.

Treating Physician Dr. Gage
Plaintiff contends that the ALJ erred in failing to credit the opinion of Dr. Gage,

Plaintiff’s treating physician since 2005. In a March 2012 letter, Dr. Gage stated that Plaintiff
had a problem with syncope since 2009 and that “at this point she is unable to drive and unable
to work due to the unpredictability of these episodes.” Tr. 390. Dr. Gage also stated that Plaintiff
had post-traumatic stress disorder, severe depression, dysthymia, sleep disturbance, diabetes, and
restless leg syndrome. Tr. 390.
If a treating physician's opinion is supported by medically acceptable techniques and is
not inconsistent with other substantial evidence in the record, the treating physician's opinion is
given controlling weight. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also
20 C.F.R. § 404.1527(d)(2). The ALJ may only reject an uncontradicted medical opinion by
providing “clear and convincing” reasons supported by substantial evidence in the record.
Holohan, 246 F.3d at 1202. On the other hand, if a treating physician's opinion is contradicted,
the ALJ can rely on the contrary opinion of a non-treating physician only if the ALJ provides
“specific and legitimate” reasons. Id. The ALJ can meet that burden “by setting out a detailed
and thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). The

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treating physician's opinion, however, is still entitled to deference and must be weighed using the
factors provided in 20 C.F.R. § 404.1527. Id.; see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.
2007). The same standards apply “for rejecting a treating doctor's credible opinion on [the
ultimate issue of] disability.” Reddick, 157 F.3d at 725.
Here, the ALJ improperly discounted Dr. Gage’s opinion regarding Plaintiff’s syncopal
episodes. Contrary to the ALJ’s conclusions, Dr. Gage’s documentation of Plaintiff’s syncopal
episodes is consistent with the medical record. According to the ALJ, “[t]he test results and
assessments of the consulting specialists raise substantial doubts regarding the cause and
frequency of reported blackout symptoms.” Tr. 17. Notably, neither the ALJ nor any of the
medical examiners consulted in this case question that Plaintiff has syncopal episodes. Therefore,
the fact that test results have not determined the cause of these episodes does not diminish Dr.
Gage’s findings that the episodes occurred. Furthermore, because Dr. Gage’s findings as to
frequency were based on Plaintiff’s credible reporting, the ALJ erred in discounting them.
The ALJ found that Dr. Gage’s opinion that Plaintiff was unable to work was
contradicted by the opinion of consulting neurologist Dr. Hamby. The ALJ noted that Dr. Hamby
reviewed the entire record and provided a detailed, well-supported evaluation. Tr. 16. Dr. Hamby
found that Plaintiff could work without limitation, except that she should avoid working at
heights and around heavy machinery or other hazardous environments. Tr. 360, 390. While Dr.
Gage and Dr. Hamby disagree about the impact of Plaintiff’s syncopal episodes on her ability to
work, there is no conflict as to the existence of her symptoms.
Similarly, the ALJ noted “negative test results obtained during extensive clinical testing,
and contrary opinions reported by neurological and physiological evaluators.” Tr. 17. Once
again, these test results and opinions do not provide a basis for discounting Dr. Gage’s findings

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of the existence of Plaintiff’s syncope, even though they underscore the lack of consensus
regarding the cause of Plaintiff’s episodes.
As to Plaintiff’s mental impairments, the ALJ provided specific and legitimate reasons to
discount Dr. Gage’s opinion regarding “any medically determinable neurological or
psychological impairment,” including PTSD or depression. Tr. 16. The ALJ noted that Plaintiff
underwent extensive clinical testing, including EKGs, Cardiac Stress Echocardiogram, three or
four awake and/or asleep ECGs, and a MRI brain head scan; yet the neurological and
physiological evaluators failed to recognize Plaintiff’s alleged mental limitations or mentally
induced syncopal/blackout events. Tr. 18 (emphasis added). The ALJ gave weight to reviewing
and evaluation physicians Dorothy Anderson, Ph.D.; Paul Rethinger, Ph.D.; Michael R. Balm,
M.D.; Nahara Jakumar, M.D.; Paul Motika, N.D.; and Dr. Hamby. Tr. 17.
“An ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and
inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005); see generally Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (a physician's
opinion “with respect to the existence of an impairment or the ultimate determination of
disability” is not binding on an ALJ). Taken as a whole, the ALJ provided substantial evidence
for discounting Dr. Gage’s opinion that Plaintiff suffers from mental impairments. However, the
ALJ did not provide substantial evidence for discounting the portion of Dr. Gage’s opinion that
stated that Plaintiff had problems with syncope.
III.

Treating Mental Health Providers
Plaintiff argues that the ALJ erred in his consideration of treating mental health providers

Charyl A. Haun, MA QMHP; Elizabeth Perrine, MA QMHP; and Ruthann Duncan, LMFT. The
ALJ did not accept any of their residual functional capacity assessments because they were based

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entirely on the subjective reports of Plaintiff and her husband. Tr. 17. The ALJ also noted that
they “provided no plausible explanation as to how they arrived at their functional assessments.”
Tr. 17. In addition, because they are not medically acceptable sources as defined by the
regulations, they are unable to make a diagnosis. Tr. 17. While Plaintiff points to a few objective
findings by Ms. Duncan and Ms. Perrine, their assessments overall are inconsistent with the
medical source opinions that are entitled to greater weight.
The ALJ may discount testimony from these “other sources” if the ALJ “gives reasons
germane to each witness for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)
(internal quotations and citations omitted). Ms. Haun, Ms. Perrine, and Ms. Duncan are “other
sources.” See SSR 06-03P, available at 2006 WL 2329939 (defining “other sources”). The ALJ
provided the germane reasons listed above to discount the mental health providers’ testimony. In
addition, the ALJ provided Plaintiff an opportunity after the hearing to supplement the record as
to her mental health providers, but Plaintiff did not do so. Tr. 18. The Court finds that the ALJ’s
decision to discount the mental health therapists’ opinions is supported by substantial evidence.
IV.

Lay Witnesses
Plaintiff contends that the ALJ erred in failing to credit the opinions of seven lay

witnesses who submitted letters in support of Plaintiff. The ALJ determined that the statements
had “little probative value” as to Plaintiff’s work capabilities, even though they were descriptive
of their perceptions of Plaintiff. Tr. 19. The behavior reported by the lay witnesses was “not fully
consistent with the psychiatric, medical, work history, and other credible evidence of record.” Tr.
19. The ALJ considered the reports as a “plea for sympathy” rather than objective statements of
Plaintiff’s true limitations in a work setting. Tr. 19.

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Lay testimony as to a claimant's symptoms or how an impairment affects the claimant's
ability to work is competent evidence that the ALJ must take into account. Nguyen v. Chater,
100 F.3d 1462, 1467 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
Competent lay witness testimony cannot be disregarded without comment and in order to
discount competent lay witness testimony, the ALJ “must give reasons that are germane to each
witness.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (quoting Dodrill, 12 F.3d at
919). However the ALJ is not required to discuss every witness's testimony on an individualized,
witness-by-witness basis. Molina, 674 F.3d at 1114. Rather, if the ALJ gives germane reasons
for rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting
similar testimony by a different witness. Molina, 674, F. 3d at 1114. 1
One of the ALJ’s germane reasons is that Plaintiff’s lay witnesses recount several
syncopal episodes and other incidents that are not reflected anywhere in the medical record. For
example, Plaintiff’s daughter, Lisa Lamb, recounts an incident where she found Plaintiff
unconscious on the floor on September 27, 2011. Tr. 237. Plaintiff’s son-in-law Robert Lamb
confirmed the event. Tr. 244. Yet, the ALJ notes that before and after that alleged event, Plaintiff
made no report to her primary care physician. Similarly, her former coworkers recounted in
letters from September and October 2011 that Plaintiff had at least two blackouts, including one
at work, and that she was never again able to work an entire shift. Tr. 233, 239. Yet, there is no
such event in Plaintiff’s medical record. Tr. 19.

1

The Court in Molina notes that: “The applicable regulations are in accord; they require the ALJ
to consider testimony from family and friends submitted on behalf of the claimant, see 20 C.F.R.
§§ 404.1529(c)(3), 404.1545(a)(3), but do not require the ALJ to provide express reasons for
rejecting testimony from each lay witness, see id.; see also SSR 06–03p (recognizing that ‘there
is a distinction between what an adjudicator must consider and what the adjudicator must explain
in the disability determination or decision’)”.

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Plaintiff responds that “she did not report each specific episode to her doctor.” Tr. 19.
However, she did tell Dr. Gage in September of 2011 that she had been having one or two
episodes a month and that she “continues to pass out completely.” Tr. 482. In addition, Dr.
Hamby’s report notes a syncopal episode at work. Tr. 354. Therefore, the lay witness testimony
is actually consistent with medical evidence and it provides detail as to Plaintiff’s inability to
deal with the demands of work.
The ALJ also spends a substantial amount of time describing Plaintiff’s work history,
including time during which she alleges she suffered from syncopal episodes. Tr. 19. The ALJ
details her job duties, salary, and exertion level as support for the assertion that the lay witness
statements are not credible. However, none of this information contradicts the witnesses’
assertion that she had syncopal episodes at work and that there was concern about her getting
injured.
Furthermore, the ALJ does not address the statement of Plaintiff’s husband, who wrote
that Plaintiff had to be supervised in some activities such as showering 2 and that Plaintiff’s
memory had decreased. Tr. 235. He wrote that Plaintiff has blackout spells once a week which
cause her to have to rest for 1-3 hours. Tr. 235. He also stated that Plaintiff could no longer
drive. Tr. 235. The ALJ also does not address the statement of Plaintiff’s sister who wrote about
Plaintiff’s “fainting spells,” anxiety, and depression. Tr. 240. Nor does he address Mary Pace’s
statement that she had found Plaintiff on the floor after a blackout two or three times. Tr. 234.
In sum, the ALJ fails to provide legally sufficient reasons to discount the lay witnesses’
testimony.

2

Plaintiff’s husband’s anecdote about Plaintiff’s falls while showering is supported by the record
in Dr. Gamby’s report. Tr. 356.
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V.

Step Two Finding
Plaintiff makes a cursory argument that the ALJ erred by failing to include depression

and PTSD as “severe” impairments at step two, or in the alternative, to obtain
neuropsychological testing. However, the only sources Plaintiff cites are Dr. Gage and the
mental health therapists, whose mental impairments diagnoses were discredited for the reasons
listed above. Plaintiff does not set forth any other evidence which would support the diagnosis
and findings of a listed impairment.
The ALJ provided substantial evidence in a detailed explanation of his decision not to
consider any of Plaintiff’s mental impairments as “severe.” Tr. 14-20. As to the duty to obtain a
consultative examination, “[a] n ALJ's duty to develop the record further is triggered only when
there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of
the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Plaintiff does not
establish any ambiguity in the record as to her alleged depression and PTSD.
VI.

Remand for an award of benefits
Plaintiff argues that when crediting the evidence as true, she is entitled to an award of

benefits. The decision whether to remand for further proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.
2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is
appropriate when no useful purpose would be served by further administrative proceedings or
when the record has been fully developed and the evidence is insufficient to support the
Commissioner's decision. Strauss v. Comm'r of Soc. Sec. Admin., 635 F.3d 1135, 1138–39 (9th
Cir. 2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)).

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The Ninth Circuit Court of Appeals has devised a three-part credit-as-true standard, each
part of which must be satisfied in order for a court to remand to an ALJ with instructions to
calculate and award benefits:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion;
(2) the record has been fully developed and further administrative proceedings would
serve no useful purpose; and
(3) if the improperly discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.
Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1100-01 (9th Cir. 2014).
Here, the ALJ failed to provide legally sufficient reasons to reject Plaintiff’s testimony or
the testimony of the lay witnesses. Furthermore, the ALJ improperly rejected the opinion of Dr.
Gage as to the existence of Plaintiff’s syncopal episodes.
Notwithstanding the lack of a diagnosis of the cause of Plaintiff’s syncopal episodes, the
record has been fully developed and no useful purpose would be served by further administrative
proceedings. Defendant argues that further proceedings would allow the ALJ to appoint a
medical expert “to review the longitudinal record and give testimony on these issues.” Def.’s Br.
21. However, there is no conflict in the record regarding the existence of Plaintiff’s syncope.
Therefore, on that point, which is dispositive as to the question of Plaintiff’s disability, the record
has been fully developed.
Finally, if the improperly discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand. Specifically, this Court credits as true
Plaintiff’s testimony, the lay witness testimony, and Dr. Gage’s opinion as to Plaintiff’s syncopal
episodes. Taken together, the evidence supports Plaintiff’s testimony that, on average, she has
syncopal episodes two to four times a month. Tr. 55. The VE testified that a person who suffered

17 - OPINION & ORDER

from blackouts even twice a month during work hours could not work. Tr. 71. Accordingly,
Plaintiff satisfies the requirements of the credit-as-true standard.
Defendant argues that this Court should nonetheless decline to award benefits because the
record “as a whole creates serious doubt that [Plaintiff] is, in fact, disabled.” Def.’s Br. 21 (citing
Garrison, 759 F. 3d at 1021). The Court disagrees. The record as a whole demonstrates that
Plaintiff suffers from syncopal episodes at least twice a month. Because the VE unequivocally
stated that such a person could not work, the Court has no reason to seriously doubt that Plaintiff
is disabled.
CONCLUSION
The Court concludes that the ALJ failed to offer clear and convincing reasons for
discounting Plaintiff’s credibility, failed to credit the opinions of treating physician Dr. Gage,
and failed to give legally sufficient reasons for rejecting lay witnesses’ testimony. The
Commissioner’s decision is reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g) for an immediate award of benefits.
IT IS SO ORDERED.

Dated this ________ day of __________________, 2015

MARCO A. HERNÁNDEZ
United States District Judge

18 - OPINION & ORDER