Hilsendager v. Commissioner Social Security Administration

Filing 25

Opinion and Order reversing and remanding the Commissioner's decision for an award of benefits. Signed on 2/10/16 by Magistrate Judge Janice M. Stewart. (ST)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION

JEFFREY A. HILSENDAGER,
Plaintiff,
Civil No. 6:14-cv-01955-ST
v.
OPINION AND ORDER
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

STEWART, Magistrate Judge:
INTRODUCTION
Plaintiff, Jeffrey A. Hilsendager (“Hilsendager”), seeks judicial review of the final
decision by the Social Security Commissioner (“Commissioner”) denying his applications
for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“SSA”),
42 USC §§ 401-433, and Supplemental Security Income (“SSI”) under Title XVI of the
SSA, 42 USC §§ 1381-1383f. This court has jurisdiction to review the Commissioner’s
decision pursuant to 42 USC § 405(g) and § 1383(c)(3). All parties have consented to allow
a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP
73 and 28 USC § 636(c). For the reasons set forth below, that decision is REVERSED and
REMANDED for award of benefits.
1 – OPINION AND ORDER

ADMINISTRATIVE HISTORY
Hilsendager protectively filed for DIB and SSI on Friday, May 21, 2010, alleging a
disability onset date of January 1, 2007, which was later amended to September 15, 2007.
Tr. 10, 38, 218–26. 1 His applications were denied initially and on reconsideration. Tr. 129–
46. On June 27, 2013, a hearing was held before Administrative Law Judge (“ALJ”)
Michael Kopicki. Tr. 31–74. The ALJ issued a decision on July 22, 2013, finding
Hilsendager not disabled. Tr. 7–30. The Appeals Council denied a request for review on
October 3, 2014. Tr. 1–4. Therefore, the ALJ’s decision is the Commissioner’s final
decision subject to review by this court. 20 CFR §§ 404.981, 416.1481, 422.210.
BACKGROUND
Born in 1968, Hilsendager was 45 years old at the time of the hearing before the
ALJ. Tr. 41, 218. He has a high-school education and past relevant work experience as a
saw mill worker, construction worker, and auto-body repair helper. Tr. 41, 65. Hilsendager
alleges that he is unable to work due to the combined impairments of degenerative disc
disease, depression, anxiety, bulging discs, hand fungus, and Barrett’s esophagitis. Tr. 75.
DISABILITY ANALYSIS
Disability is the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential

1

Citations are to the page(s) indicated in the official transcript of the record filed on May 20, 2015 (docket
#14).

2 – OPINION AND ORDER

inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 CFR
§§ 404.1520, 416.920; Tackett v. Apfel, 180 F3d 1094, 1098–99 (9th Cir 1999).
At step one, the ALJ determines if the claimant is performing substantial gainful
activity. If so, the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i) & (b),
416.920(a)(4)(i) & (b).
At step two, the ALJ determines if the claimant has “a severe medically determinable
physical or mental impairment” that meets the 12-month durational requirement. 20 CFR
§§ 404.1520(a)(4)(ii) & (c), 416.909, 416.920(a)(4)(ii) & (c). Absent a severe impairment,
the claimant is not disabled. Id.
At step three, the ALJ determines whether the severe impairment meets or equals an
impairment “listed” in the regulations. 20 CFR §§ 404.1520(a)(4)(iii) & (d),
416.920(a)(4)(iii) & (d); 20 CFR Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If the
impairment is determined to meet or equal a listed impairment, then 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 the limitations imposed by his or her
impairments. 20 CFR §§ 404.1520(e), 416.920(e); Social Security Ruling (“SSR”) 96-8p,
1996 WL 374184 (July 2, 1996).
At step four, the ALJ uses the RFC to determine if the claimant can perform past
relevant work. 20 CFR §§ 404.1520(a)(4)(iv) & (e), 416.920(a)(4)(iv) & (e). If the
claimant cannot perform past relevant work, then at step five, the ALJ must determine if the
3 – OPINION AND ORDER

claimant can perform other work in the national economy. 20 CFR §§ 404.1520(a)(4)(v) &
(g), 416.920(a)(4)(v) & (g); Bowen v. Yuckert, 482 US 137, 142 (1987); Tackett, 180 F3d at
1099.
The initial burden of establishing disability rests upon the claimant. Tackett, 180
F3d at 1098. If the process reaches step five, the burden shifts to the Commissioner to show
that jobs exist in the national economy within the claimant’s RFC. Id. If the Commissioner
meets this burden, then the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(v) & (g),
416.920(a)(4)(v) & (g), 416.960(c).
ALJ’S FINDINGS
At step one, the ALJ concluded that Hilsendager has not engaged in substantial
gainful activity since September 15, 2007, the amended alleged onset date. Tr. 12.
Hilsendager worked after that date, but his reported earnings did not rise to the level of
substantial gainful activity. Id.
At step two, the ALJ determined that Hilsendager has the severe impairments of
degenerative disc disease and spondylosis of the cervical spine; kyphoscoliosis of the
thoracic spine with multilevel, small disc protrusions; hypertension; Barrett’s esophagitis;
pain disorder due to psychological factors (depression); and general medical condition; and
alcohol abuse with possible dependence. Tr. 13.
At step three, the ALJ concluded that Hilsendager does not have an impairment or
combination of impairments that meets or equals any of the listed impairments. Tr. 14. The
ALJ found that Hilsendager has the RFC to perform light work, “except he is able to lift
and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for about
six hours in an eight-hour workday with normal breaks.” Tr. 15. He “can occasionally
4 – OPINION AND ORDER

push/pull with the upper extremities, should no more than occasionally climb ladders, ropes,
and scaffolds, stoop, crouch, and crawl,” “can frequently climb ramps and stairs, balance,
and kneel” and “can perform occasional overhead reaching bilaterally. Id. But he “should
avoid concentrated exposure to hazards, such as unprotected heights and dangerous
machinery.” Id. He is further limited to “understanding, remembering, and carrying out
simple instructions,” “making judgments on simple work-related decisions” but “otherwise
has a moderate limitation with understanding, remembering, and carrying out complex
instructions and making judgments on complex work-related decisions (moderate meaning
will frequently be unable to understand and implement these tasks).” Id.
Based upon the testimony of a vocational expert (“VE”), the ALJ determined at step
four that Hilsendager’s RFC precluded him from returning to his past relevant work. Tr. 23.
At step five, the ALJ found that considering Hilsendager’s age, education, and RFC,
he was capable of performing the unskilled, light occupations of cashier, small parts
assembler, and parking lot attendant. Tr. 24.
Accordingly, the ALJ determined that Hilsendager was not disabled at any time
through the date of the decision. Tr. 25.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on proper
legal standards and the findings are supported by substantial evidence in the record. 42
USC § 405(g); Lewis v. Astrue, 498 F3d 909, 911 (9th Cir 2007). This court must weigh the
evidence that supports and detracts from the ALJ’s conclusion. Lingenfelter v. Astrue, 504
F3d 1028, 1035 (9th Cir 2007), citing Reddick v. Chater, 157 F3d 715, 720 (9th Cir 1998).
The reviewing court may not substitute its judgment for that of the Commissioner. Ryan v.
5 – OPINION AND ORDER

Comm’r of Soc. Sec. Admin., 528 F3d 1194, 1205 (9th Cir 2008), citing Parra v. Astrue, 481
F3d 742, 746 (9th Cir 2007); see also Edlund v. Massanari, 253 F3d 1152, 1156 (9th Cir
2001). Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s decision must be upheld if it is “supported by inferences reasonably drawn
from the record.” Tommasetti v. Astrue, 533 F3d 1035, 1038 (9th Cir 2008), quoting Batson
v. Comm’r of Soc. Sec. Admin., 359 F3d 1190, 1193 (9th Cir 2004); see also Lingenfelter,
504 F3d at 1035.
DISCUSSION
Hilsendager argues the ALJ erred in three respects by: (1) rejecting the opinion of
his treating physician, Timothy A. Hill, M.D.; (2) rejecting his subjective pain testimony;
and (3) finding that he retains the ability to perform other work in the national economy.
I.

Treating Physician
A.

Legal Standard

Disability opinions are reserved for the Commissioner. 20 CFR §§ 404.1527(e)(1),
416.927(e)(1). If no conflict arises between medical source opinions, the ALJ generally
must accord greater weight to the opinion of a treating physician than that of an examining
physician. Lester v. Chater, 81 F3d 821, 830 (9th Cir 1995). The ALJ should also give
greater weight to the opinion of an examining physician over that of a reviewing physician.
Orn v. Astrue, 495 F3d 625, 632 (9th Cir 2007). If a treating or examining physician’s
opinion is not contradicted by another physician, the ALJ may reject it only for clear and
convincing reasons. Id (treating physician); Widmark v. Barnhart, 454 F3d 1063, 1067 (9th
Cir 2006) (examining physician). Even if one physician is contradicted by another
physician, the ALJ may not reject the opinion without providing specific and legitimate
6 – OPINION AND ORDER

reasons supported by substantial evidence in the record. Orn, 495 F3d at 632; Widmark,
454 F3d at 1066. An ALJ may not substitute his opinion for that of a physician. Day v.
Weinberger, 522 F2d 1154, 1156 (9th Cir 1975).
B.

Pertinent Treatment Records

On October 9, 2007, Hilsendager’s treating physician at the time, Kent Yundt, M.D.,
ordered a cervical spine MRI that revealed “a moderate degree of bilateral foraminal
stenosis from C5 to C7 where there is degenerative disc disease and broad-based protrusions
of the discs at both levels.” Tr. 320. A thoracic spine MRI two days later showed
kyphoscoliosis with multilevel small disc protrusions “most prominent at T9-10 . . . where
a slight cord displacement occurs.” Tr. 319. A disc protrusion was also seen at C6-7,
displacing the lower cervical cord, and smaller ones at T2-3 and T5-6. Id.
In June 2010, Hilsendager returned to Dr. Yundt for increasing cervical pain with
headaches, numbness, and paresthesisas in the upper and lower extremities. Tr. 431.
Dr. Yundt observed that Hilsendager appeared “quite uncomfortable,” was “weak globally”
and “markedly hyperreflexive globally.” Id.
On July 2, 2010, another cervical MRI showed “spondylosis with chronic bulging or
protruding discs throughout the cervical spine,” “mild to moderate spinal canal stenoses,
most pronounced at C5-6 and C6-7 secondary to chronic disc protrusions at these levels,”
“chronic protrusion at T2-3 eccentric toward the right” and “multifocal foraminal stenosis
. . . most prominently affecting C5-6 and C6-7 on the left and C3-4 through C6-5 on the
right.” Tr. 433. Comparison to the 2007 MRI showed “mild interval progression of
degenerative changes.” Id. Dr. Yundt diagnosed hyperflexia, numbness/paresthesia,

7 – OPINION AND ORDER

cervical and lumbar radiculopathy, cervicalgia, and low back pain, and administered facet
injections. Tr. 427–29.
Hilsendager felt 30-40% better the next month. Tr. 426. Dr. Yundt advised another
injection at a higher level that relieved Hilsendager’s pain and recommended pursuing
rhizotomies 2 at C4-5 and discussing long-term pain management with David Kane, M.D.
Tr. 423-25.
In November 2010, Hilsendager reported that a rhizotomy at C4-5 was very helpful,
but now his pain was lower in the cervical spine. Tr. 444. Dr. Yundt diagnosed cervical
osteoarthritis and stated that “neurosurgery has little to offer” him. Tr. 445. He ordered a
cervical SPECT exam and recommended further injections and treatment with Dr. Kane. Id.
Hilsendager continued to receive facet injections from Dr. Kane through December
2011, but also continued to report pain, numbness and tingling in his left arm, and anxiety.
Tr. 446, 448, 459, 461-62, 465, 469, 475. In December 2011, he was prescribed Cymbalta
to relieve his pain. Tr. 467. He also received regular chiropractic treatments from August
2010 through June 2012 to relieve his severe back and neck pain. Tr. 487-500.
In October 2012, Hilsendager was examined by Mike Henderson, M.D., at the
request of the state agency. Tr. 554. He noted that Hilsendager seemed to lack insight into
the medical history but had a tremor, seemed anxious, had pain in his paraspinal
musculature from the T10 level to the lumbar area and into the sacrum, but his muscle
strength was intact and sensation was normal. Tr. 556. Dr. Henderson concluded that
Hilsendager had no functional limitations. Id.

2

A rhizotomy is a surgical section of the spinal nerve roots for the relief of pain. Stedman’s Medical
Dictionary for the Health Professions and Nursing (7th Ed., 2012), p. 1468.

8 – OPINION AND ORDER

In May 2013, Hilsendager asked Timothy A. Hill, M.D., to take over his future pain
management. Tr. 561. He reported that he was struggling with worsening neck pain and
more severe numbness radiating down his left arm and hand. Id. His arm numbness
occurred with left neck rotation or left bending. Id. He also was struggling with
considerable low back pain in a band-like pattern, radiating down the right leg. Id. On
physical examination, Hilsendager’s strength and sensation was intact except for slight
numbness in the left hand with a positive Hoffman’s reflex. Tr. 562. An electrodiagnostic
examination of the left arm and right leg revealed a very mild carpal tunnel syndrome. Id.
Dr. Hill assessed cervical spondylosis with multilevel foraminal narrowing with “a possible
myelophathy related to stenosis” based on diffuse hyperreflexia. Tr. 563. Due to
“significant, legitimate pain generators,” Dr. Hill recommended ongoing hydrocodone
therapy. Tr. 564.
A cervical MRI dated May 29, 2013, revealed cervical spondylosis with bulging
protruding discs from C2-3 through C6-7 and mild spinal canal stenosis at C5-6 and C6-7.
Tr. 601. The foraminal narrowing appeared to have progressed since the July 2010 MRI.
Id.
On June 13, 2013, Dr. Hill observed decreased cervical and lumbar motion by
approximately 50% with bilateral facet loading and an equivocal Spurling’s test. Tr. 604.
Phelan’s test was mildly positive on the left and Tinel’s signs over the cubital tunnel was
positive. Id. Hilsendager’s strength and sensation were intact except for slight numbness in
the left hand. Tr. 605.
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9 – OPINION AND ORDER

C.

Analysis

On June 13, 2013, Dr. Hill stated that Hilsendager has intractable pain and
“significant, legitimate pain generators.” Tr. 564. He opined that “due to [Hilsendager’s]
considerable spine arthritis he will be living with waxing and waning pain.” Tr. 605. As a
result, Dr. Hill concluded:
The patient is felt to be quite limited from a physical standpoint
due to severe cervical spondylosis and foraminal stenosis, with
radiculitis. He also has underlying lumbar spondylosis and
mild carpal tunnel syndrome. . . . He is limited to sedentary
activities only due to all the above problems. Even in a
sedentary capacity, I think he is at very high risk of time loss.
He typically needs to lie down a couple times a day. He is
[prone to] flares, which would probably keep him out of work
for at least 3-4 days per month. I think he would have a very
difficult time maintaining fulltime employment even in a
sedentary capacity.
Tr. 605–06.
The ALJ gave Dr. Hill’s opinion “less than substantial weight.” Tr. 22-23. Because
the record contains contradictory medical opinions, the ALJ was required to provide specific
and legitimate reasons for rejecting Dr. Hill’s ultimate conclusions.
As reasons for his conclusion, the ALJ first pointed to Dr. Hill’s short treating
relationship with Hilsendager. Tr. 22. Dr. Hill examined and treated Hilsendager three
times from January to June 2013. Tr. 561–608. The frequency and nature of contact
between a doctor and patient are relevant factors in weighing a doctor’s medical opinion.
20 CFR §§ 404.1527(c)(2)(i), 416.927(c)(2)(i) (“treating sources . . . are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of your medical
impairment”). Regardless of the number of visits, Dr. Hill conducted thorough
examinations, wrote detailed treatment notes based on objective testing, and observed
10 – OPINION AND ORDER

Hilsendager over a five-month period. Therefore, Dr. Hill’s opinion is entitled to greater
weight than those of the consulting physicians and even Dr. Yundt, who treated Hilsendager
shortly after the symptoms started. See Benton v. Barnhart, 331 F3d 1030, 1037-39 (9th Cir
2003), quoting Ratto v. Sec’y, Dep’t of Health & Human Servs., 839 F Supp 1415, 1425 (D Or
1993) (“[t]he opinion of a physician who has treated the patient for an extended period of time is
usually entitled to greater weight than a physician who has only examined the patient for SSA
purposes, because the treating physician is employed to cure, and also has a greater opportunity
to know and observe the patient over the course of time.”). Dr. Hill’s opinion is especially
valuable because he had the benefit of reviewing three cervical MRIs and Hilsendager’s entire
treatment history. Therefore, the length of his treating relationship does not undermine his
opinion.
Second, the ALJ found that that Dr. Hill’s opinion was inconsistent with objective
evidence and his own observations of mild symptoms. Tr. 23. A discrepancy between a
treating source’s medical opinions and the source’s own treatment notes is a clear and
convincing reason for not relying on the doctor’s opinion regarding the claimant’s
functional limitations. Bayliss v. Barnhart, 427 F3d 1211, 1216 (9th Cir 2005). Among his
diagnoses, Dr. Hill concluded that Hilsendager suffered from mild lumbar spondylosis and
carpal tunnel syndrome. Tr. 605. However, the ALJ failed to note that Dr. Hill also
assessed “severe cervical spondylosis foraminal stenosis with radiculitis” that had
progressed since the 2010 MRI, and lumbar spondylosis with probable disc degeneration.
Tr. 600, 605 (emphasis added).
The ALJ also pointed to the electrodiagnostic test which was negative for signs of
radiculopathy. Tr. 23, citing 605. However, Dr. Hill qualified that conclusion by stating
11 – OPINION AND ORDER

that “EMG testing cannot exclude a pure sensory radiculopathy.” Tr. 562. Dr. Hill’s
examination revealed numbness, positive Hoffman’s test, and a mildly positive Phalen’s
sign in Hilsendager’s left hand. Id.
Third, the ALJ refused to “accept an argument of worsening symptoms given the
lack of any consistent clinical findings to support it, the lack of persuasive, objective
medical evidence to support it, the lack of more aggressive treatment, and . . . evidence of
symptom exaggeration.” Tr. 23. To the contrary, the 2013 MRI, interpreted by Jim
Johnson, M.D., showed that the left-sided foraminal narrowing at C5-6 has progressed since
the 2010 MRI. Tr. 600–01.
Fourth, the ALJ reasoned that Dr. Hill’s conclusions were contradicted by his
prescribed treatment of medications, a home stretching program, and a follow-up
appointment four months later. Tr. 23. The record does not support that reason. Consistent
with Dr. Yundt’s earlier conclusion in 2007, Dr. Hill opined that surgery would be unhelpful
due to the absence of a surgical lesion. Tr. 445, 605. Dr. Hill also suggested FRA
(radiofrequency ablation rhizotomy) that had provided short-term relief in the past (Tr. 316,
318, 424-25, 427–28, 444, 448–49), but Hilsendager chose to delay that treatment until he
had insurance coverage. Tr. 574-75.
As his fifth reason, the ALJ stated that “even a limitation to sedentary work would
not at this point be disabling given the claimant’s young age and vocational factors.”
Tr. 23. Although true as a general rule, other factors may preclude a claimant of
Hilsendager’s age from performing even sedentary work.
Sixth, the ALJ relied on contradictory opinions from other physicians. Tr. 23.
Dr. Henderson examined Hilsendager once, and the ALJ rejected his opinion that
12 – OPINION AND ORDER

Hilsendager had no physical limitations. Tr. 22. In 2007, Dr. Yundt allowed Hilsendager to
return to light duty after the early onset of his symptoms. Tr. 315. But when Hilsendager
returned for treatment in 2010, Dr. Yundt observed that he was “weak globally” and
“markedly hyperreflexic.” Tr. 429. An MRI taken in 2010 showed mild to moderate canal
stenosis at C5-6 and C6-7. Id. Although Dr. Yundt opined that the MRI did not explain
Hilsendager’s presenting symptoms, it is unclear whether Dr. Yundt thought Hilsendager
lacked credibility. More likely, Dr. Yundt felt more objective testing was needed, given
that he ordered a bilateral C6-7 FJB (facet joint block) and CESI (cervical epidural steroid
injection) and recommended a reevaluation. Id. Most importantly, neither Dr. Yundt nor
Dr. Henderson had the chance to review the 2013 MRI and SPECT exam when forming
their opinions. Therefore, the ALJ’s improperly relied on these other physicians’ opinions.
Finally, the ALJ rejected Dr. Hill’s opinion that Hilsendager needed to lie down to
rest if active during the day as speculative and entirely based on Hilsendager’s less than
credible reports. Tr. 23. As outlined above, Dr. Hill’s conclusions were based on several
clinical examinations and objective testing. He is also the only pain specialist to assess
Hilsendager’s functional status based on his diagnosis. Although his conclusions were
partially based on Hilsendager’s subjective complaints, Dr. Hill’s specialty gives him the
unique ability to assess the legitimacy of Hilsendager’s tolerance for activity given his
conditions.
Thus, the ALJ erred by failing to give legitimate reasons to reject Dr. Hill’s opinion.
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13 – OPINION AND ORDER

II.

Claimant’s Credibility
A.

Testimony

Hilsendager testified that he has chronic pain in his neck and lower back radiating
through his spine. Tr. 45–46. The neck pain is constant and feels like a needle stabbing his
vertebra when he stands up to walk. Tr. 46. He has associated numbness in his left arm,
dizzy spells, and headaches shooting from the base of his skull to his eyes. Tr. 46, 48. The
lower back pain is intermittent, but prevents him from lifting heavy objects and results in
numbness in his left leg if he walks far. Tr. 47–48. The pain increases with daily activity,
but is relieved by hot showers and lying flat on his back for 20-30 minutes a couple of times
a day. Tr. 46. If he is active at all, he cannot get through the day without lying down.
Tr. 61. Epidural injections did not decrease the pain, but nerve treatments (presumably
referring to the rhizotomies) reduced his dizzy spells for a year and a half until the nerve
grew back. Tr. 49.
He tries to walk a block or “scramble” 200 yards a couple of times to get his heart
rate up. Tr. 58-59. After standing 20 minutes, his body shakes and quivers for 30 minutes
afterwards. Tr. 59. His ability to stand depends on his pain levels and he can sit 20-30
minutes at a time. Id. After 40 minutes at the hearing he was hurting “like crazy.” Id. He
cannot lift heavy objects but will help unload the groceries. Id.
During the day while his wife works he tries to do some household chores. Tr. 56.
His sons mow the lawn and do all the hard housework. Id. Hilsendager starts loads of
laundry and can microwave meals. Id. But even reaching down in the dryer to get clothes
out makes his whole body shake and pain shoot through his spine. Tr. 61. Because of
numbness in his left hand, he uses his right hand for everything. Tr. 63.
14 – OPINION AND ORDER

B.

Legal Standard

The ALJ must consider all symptoms and pain which “can be reasonably accepted as
consistent with the objective medical evidence and other evidence.” 20 CFR
§§ 404.1529(a), 416.929(a). Once a claimant shows an underlying impairment which may
“reasonably be expected to produce pain or other symptoms alleged,” absent affirmative
evidence of malingering, the ALJ must provide “clear and convincing” reasons for finding a
claimant not credible. Lingenfelter, 504 F3d at 1036, citing Smolen v. Chater, 80 F3d 1273,
1281 (9th Cir 1996). The ALJ’s credibility findings 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 F3d 748, 750 (9th Cir 1995), citing Bunnell v. Sullivan,
947 F2d 341, 345-46 (9th Cir 1991) (en banc). A general assertion that the plaintiff is not
credible is insufficient. The ALJ “must state which [subjective symptom] testimony is not
credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12
F3d 915, 918 (9th Cir 1993). The ALJ may additionally employ ordinary techniques of
credibility evaluation, such as weighing inconsistent statements regarding symptoms by the
claimant. Id.
Examples of clear and convincing reasons include conflicting medical evidence,
effective medical treatment, medical noncompliance, inconsistent statements, daily
activities inconsistent with the alleged symptoms, a sparse work history, or testimony that is
vague or less than candid. Tommasetti v. Astrue, 533 F3d 1035, 1040 (9th Cir 2008).
Inconsistencies in a claimant’s testimony, including those between the medical evidence and
the alleged symptoms, can serve as a clear and convincing reason for discrediting such
testimony. Burch v. Barnhart, 400 F3d 676, 680 (9th Cir 2005); Morgan v. Comm’r of Soc.
15 – OPINION AND ORDER

Sec. Admin., 169 F3d 595, 599 (9th Cir 1999). Failure to seek medical treatment is also a
clear and convincing reason to reject a claimant’s subjective statements. Burch, 400 F3d at
681; Fair v. Bowen, 885 F2d 597, 603-04 (9th Cir 1989); see also SSR 96-7p, 1996 WL
374186 (July 2, 1996).
Credibility determinations are within the province of the ALJ. Fair, 885 F2d at 604,
citing Russell v. Bowen, 856 F2d 81, 83 (9th Cir 1988). Where the ALJ has made specific
findings justifying a decision to disbelieve an allegation of excess pain, and those findings
are supported by substantial evidence in the record, the role of the reviewing court is not to
second-guess that decision. Id.
C.

Analysis

First, the ALJ discredited Hilsendager’s testimony because it was inconsistent with
the objective medical evidence and his treatment history. Tr. 16. He explained that:
Until quite recently, clinical findings regarding the neck and
extremities are relatively unremarkable. I am dubious about the
reliability of recent abnormal clinical findings based on effortdependent testing within [Hilsendager’s] control given the longitudinal
record, which includes symptom amplification, as well as the lack of
any muscle atrophy.
Tr. 20.
Hilsendager’s treatment history beginning in 2007 contains MRI evidence of
bilateral foraminal stenosis with disc protrusions in the cervical and thoracic spine. Tr. 31920. The ALJ improperly concluded that Hilsendager’s pain and numbness should result in
muscle atrophy and loss of strength. “[J]udges, including administrative law judges of the
Social Security Administration, must be careful not to succumb to the temptation to play
doctor.” Schmidt v. Sullivan, 914 F2d 117, 118 (7th Cir 1990) (citation omitted). In any

16 – OPINION AND ORDER

event, Dr. Yundt in June 2010 observed that Hilsendager was weak globally and markedly
hyperreflexic. Tr. 431.
Second, the ALJ discredited Hilsendager based on his “good response to injections
and physical therapy.” Tr. 20. In 2007 and 2010, under Dr. Yundt’s care, Hilsendager
experienced some improvement in his range of motion and muscle tightness after receiving
cervical epidural steroid injections, facet blocks and physical therapy. Tr. 310-18, 423, 426.
However, he continued to experience numbness in his hands and pain. Tr. 312, 461. At one
point in August 2010, the facet blocks provided “total improvement,” but he returned three
months later complaining of pain in his cervical, thoracic, and lumbar spine. Tr. 423, 444.
This is consistent with Dr. Hill’s projection that “due to his considerable spine arthritis, he
will be living with waxing and waning pain.” Tr. 605.
Third, the ALJ pointed to Hilsendager’s lack of mental health treatment as support to
find that his testimony of severe anxiety was less than credible. Tr. 20. The consultative
psychologist did not find any disabling mental impairment (Tr. 536) and Hilsendager agrees
that his physical pain is his greatest limitation. However, his chronic pain has led to
depression and anxiety for which he has sought treatment and been prescribed anti-anxiety
medication. Tr. 574.
Fourth, the ALJ noted that Hilsendager’s claims of stomach pain from his
medications were inconsistent with his function report. Tr. 20. Hilsendager completed his
function report in 2010. Tr. 286. His stomach pain began several years later in 2013 after
he resumed taking his anxiety medication, Cymbalta, at Dr. Hill’s recommendation.
Tr. 574, 607. Because Hilsendager’s testimony is confirmed by the treatment notes and is
not inconsistent with his earlier function report, this reason is neither clear nor convincing.
17 – OPINION AND ORDER

Finally, the ALJ cited an inconsistency between Hilsendager’s “reported activities
and demonstrated abilities.” Tr. 21. Specifically, the ALJ cited Hilsendager’s work as a
fence installer up to the amended, alleged onset date that “portrayed him[] as ready, willing,
and able to work.” Id, citing 237, 243. However, his last job lasted only three weeks, and
the heavy lifting caused him to “come home in tears.” Tr. 43. Hilsendager also worked as a
laborer after the alleged onset date but not in substantial gainful activity. Tr. 233, 237. The
ALJ pointed out that Hilsendager had not tried light work and the disability claims
representative that conducted his telephone interview noted that he demonstrated no
difficulties over the phone. Tr. 21, citing 248. The absence of jobs requiring only light
work among Hilsendager’s past relevant work has no bearing on his credibility.
Furthermore, the claims representative could not assess Hilsendager’s physical comfort over
the telephone or tolerance for sitting or standing for long periods of time. Therefore, neither
of these reasons to discredit Hilsendager’s testimony is supported by the record.
The ALJ generally overstated Hilsendager’s activities and essentially characterized
him as uninhibited in his daily activities. Tr. 21. While Hilsendager does help around the
house as much as he can, any activity during the day requires him to rest as much as several
times a day. Otherwise, his day is interrupted by his need to take hot showers to relieve the
pain. Tr. 46.
Thus, the ALJ failed to give clear and convincing reasons to discredit Hilsendager.
III.

Remand
Remand for further proceedings is appropriate when “outstanding issues” remain.

Luna v. Astrue, 623 F3d 1032, 1035 (9th Cir 2010). The court may, but is not required to,
“credit as true” rejected evidence prior to remand. The “crediting as true” doctrine is not a
18 – OPINION AND ORDER

mandatory rule in the Ninth Circuit “when, even if the evidence at issue is credited, there
are ‘outstanding issues that must be resolved before a proper disability determination can be
made.’” Id, quoting Vasquez v. Astrue, 572 F3d 586, 593 (9th Cir 2009).
The VE testified that if Hilsendager was limited to sedentary work and missed work
three to four days per month, he could not retain employment on a sustained basis. Tr. 6869. The VE also testified that no alternate jobs exists that permit an employee to lie down
outside of normal break times. Tr. 69.
As discussed above, the ALJ erred in several respects. If Hilsendager’s testimony is
credited, as well as the opinion of Dr. Hill, substantial evidence in the record supports only
one conclusion, namely that Hilsendager cannot perform her past relevant work and, indeed,
can perform no work due to his condition. Hilsendager’s need to lie down and take hot
showers throughout the day to relieve his pain will continue on a waxing and waning basis.
Thus, it is clear that the ALJ would be required to find Hilsendager disabled if that evidence
is credited.
ORDER
For the reasons discussed above, the Commissioner’s decision is REVERSED and
REMANDED pursuant to sentence four of 42 USC § 405(g) for an award of benefits.
DATED February 10, 2016.

s/ Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge

19 – OPINION AND ORDER