Stubbs Pruitt v. Commissioner Social Security Administration

Filing 22

OPINION AND ORDER. Signed on 5/5/2016 by Magistrate Judge Youlee Yim You. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

HEATHER RAE STUBBS-PRUITT,

Case No. 6: 15-cv-00309-YY
OPINION AND ORDER

Plaintiff,

v.
CAROLYN W. COLVIN,
Commissioner of Social Security
Administration,
Defendant
YOU, Magistrate Judge:
Heather Rae Stubbs-Pruitt ("plaintiff') seeks judicial review of the final decision by the
Social Security Commissioner ("Commissioner") denying her applications for Disability
Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI
of the Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the Commissioner's
decision is reversed and remanded for fi.niher proceedings.
Administrative Hist01y

On November 17, 2011, plaintiff protectively applied for DIB and SSI, alleging a
disability onset date of October 2, 2010. Tr. 13, 190-200. She later amended her onset date to
Janumy 1, 2006. Tr. 192. Her applications were denied initially and on reconsideration. Tr. 1311 - OPINION AND ORDER

47. Plaintiff thereafter timely requested a hearing before an Administrative Law Judge ("ALJ").
Tr. 149-50. On October 9, 2013, ALJ John Michaelsen held a hearing, at which plaintiff was
represented by counsel and testified, as did a vocational expert ("VE"). Tr. 37-71. On October
31, 2013, ALJ Michaelsen issued a decision finding plaintiff not disabled within the meaning of
the Act from January 1, 2006, through the date of the decision. Tr. 13-23. After the Appeals
Council declined her request for review, plaintiff filed a complaint in this Court. Tr. 1-3.
Background

Born in 1974, plaintiff was 32 years old on the alleged onset date. Tr. 219. She graduated
from high school and attended college for three years. Tr. 225. She has past relevant work
experience as a caregiver in an adult foster home. Tr. 22, 63. Plaintiff alleges that she is unable to
work due to fibromyalgia, post-traumatic stress disorder ("PTSD"), anxiety, and depression. Tr.
224.

Standard ofReview

The court must affom the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bm11en, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations
omitted). The court must weigh "both the evidence that suppo1is and detracts from the
[Commissioner's] conclusions." lvfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

2 - OPINION AND ORDER

The initial burden of proof rests upon the claimant to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must
demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impaitment which can be expected ... to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1502 and
404.920. First, the Commissioner considers whether a claimant is engaged in "substantial gainful
activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b) and 416.920(b). If so, the claimant
is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe
impaitment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§
404.1520(c) and 416.920(c). If the claimant does not have a severe impairment, she is not
disabled.
At step three, the Commissioner determines whether the claimant's impairments, either
singly or in combination, meet or equal "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 140-41; 20 C.F.R. §§ 404.1520(d) and 416.920(d). If so, the claimant is
presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perfo1m "past
relevant work." 20 C.F.R. §§ 404.1520(f) and 404.920(f). If the claimant can work, she is not
disabled; if she camtot perform past relevant work, the burden shifts to the Commissioner.
At step five, the Commissioner must demonstrate that the claimant can perform other
work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 1413 - OPINION AND ORDER

42; 20 C.F.R. §§ 404. l 520(g) and 416.920(g). If the Commissioner meets this burden, the
claimant is not disabled. 20 C.F.R. §§ 404.1566 and 416.966.
The ALJ's Findings

At step one of the sequential evaluation process outlined above, the ALJ found that
plaintiff had not engaged in substantial gainful activity since the alleged onset date, January 1,
2006. Tr. 15.
At step two, the ALJ determined plaintiff has the following severe impahments:
fibromyalgia, obesity, anxiety disorder/PTSD, depressive disorder, and learning disorder (NOS).
Id.

At step three, the ALJ found that plaintiffs impairments, either singly or in combination,
did not meet or equal the requirements of a listed impai1ment. Tr. 16. Because plaintiff did not
establish disability at step three, the ALJ continued to evaluate how her impairments affected her
ability to work during the relevant period. The ALJ found that plaintiff had the following
residual functional capacity ("RFC"):
[L]ight work ... [i]n addition, the claimant is limited to occasional stooping,
crouching, crawling, and kneeling. She is also limited to understanding,
remembering, and carrying out simple, repetitive tasks requiring no more than
occasional interaction with the general public.
Tr. 18.
At step four, the ALJ found that plaintiff was unable to perfotm her past relevant work.
Tr. 22.
At step five, based on the testimony of the VE, the ALJ determined that plaintiff could
perfotm other work existing in significant numbers in the national and local economy despite her
impairments, such as office helper, library helper, and clerical helper. Tr. 23. Accordingly, the
ALJ concluded that plaintiff was not disabled under the Act. Id.
4 - OPINION AND ORDER

Discussion
Plaintiff alleges that the ALJ erred by: (I) finding her not fully credible; (2) improperly
assessing the medical opinions of John Ward, M.D. and Connie Hume-Rodman, M.D.; and (3)
failing to establish plaintiff retains the ability to perform work in the national economy.
I.

Plaintiffs Credibility
Plaintiff asse1is that the ALJ failed to atiiculate a clear and convincing reason, supported

by substantial evidence, for rejecting her subjective symptom statements concerning the extent
and severity of her impairments.
The Ninth Circuit relies on a two-step process for evaluating the credibility of a
claimant's testimony about the severity and limiting effect of the stated symptoms. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingerifelter v. Astrue, 503 F.3d 1028, 1035-36
(9th Cir. 2007)). "First, the ALJ must dete1mine whether the claimant has presented objective
medical evidence of an underlying impairment which could reasonably be expected to produce
the pain or other symptoms alleged." Lingenfelter, 503 F.3d at 1036 (citation and quotation
marks omitted). Second, absent evidence of malingering, "the ALJ can reject the claimant's
testimony about the severity of her symptoms only by offering specific, clear and convincing
reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Fmther, an ALJ
"may consider ... ordinary techniques of credibility evaluation, such as the claimant's reputation
for lying, prior inconsistent statements concerning the symptoms, ... [or] other testimony that
appears less than candid ... ."Id. at 1284. However, a negative credibility finding made solely
because the claimant's symptom testimony "is not substantiated affirmatively by objective
medical evidence" is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006). Neve1theless, the ALJ's credibility finding may be upheld even if not all of the ALJ's
rationales for rejecting claimant testimony are upheld. See Batson, 359 F.3d at 1197.
5 - OPINION AND ORDER

Plaintiff first argues the ALJ erred in evaluating her physical impairments related to her
fibromyalgia. Pl.' s Br. 14-15. The ALJ found, "it appears from the record that the claimant is not
as limited as she has alleged[,]" and proceeded to identify instances where plaintiffs
examination findings were "unremarkable," aside from positive tender point testing and reports
of muscle spasms. Tr. 19; see tr. 337, 364, 366, 422, 426, 438, 470, 477. Indeed, "[w]hile
subjective pain testimony cannot be rejected on the sole ground that it is not fully c01rnborated
by the objective medical evidence, the medical evidence is still a relevant factor in dete1mining
the severity of the claimant's pain and its disabling effects." Rollins v. i\fassanari, 261 F.3d 853,
857 (9th Cir. 2001). Here, the ALJ noted plaintiff had n01mal findings regarding muscle strength,
reflexes, tone and symmetry, and normal imaging of her lumbar spine and hips. Tr. 19. Further,
the ALJ observed that treating physician Yon Zhu, M.D. rep01ied mild fibromyalgia symptoms.

Id.
Plaintiff contends the ALJ erred to highlight "intact reflexes and full strength[,]" because
the findings are not relevant to her fibromyalgia claim. Pl.' s Reply 1. Plaintiff explains, "normal
neurological findings or minimal disc degeneration do not conflict with her testimony that she is
impaired by fibromyalgia pain." Pl.'s Br. 14. The court agrees the findings do not necessarily
conflict with plaintiffs testimony, but it is unclear why the ALJ's mention of them benefits
plaintiffs position. The ALJ simply observed that despite plaintiffs positive tender point testing
evincing the presence of fibromyalgia, the other examination findings were essentially n01mal
from a functional standpoint. See tr. 19. Plaintiffs argument would be helpful if it was
determined plaintiff did not have fibromyalgia based on the findings cited by the ALJ, but this
was not the case - the ALJ recognized fibromyalgia as a severe impairment at step two, thereby
acknowledging it "significantly limits [her] ability to perform basic work activities." Id.; 20
C.F.R. §§ 404.1520(c) and 416.920(c). Even so, by definition, "severe impairment" does not
6 - OPINION AND ORDER

necessarily preclude gainful work. Id. Thus, it was not inappropriate for the ALJ to note that
although plaintiffs "primary alleged limitations" are due to fibromyalgia symptoms, her
examinations are otherwise relatively benign. Tr. 19.
The ALJ addressed plaintiffs allegations of pain caused by her fibromyalgia condition by
referencing a May 2013 examination by Dr. Zhu, a rheumatologist. Dr. Zhu found plaintiff had
"[p]ositive fibromyalgia tender points, 16118, mild." Tr. 477. The ALJ interpreted the finding to
mean Dr. Zhu reported "'mild' fibromyalgia symptoms." Tr. 19. Plaintiff contends the ALJ's
interpretation is enoneous, arguing Dr. Zhu "did not say that [plaintiffs] condition was mild or
dispute her pain reports, but only found, on that day, she had mild response to the tender points."
Pl.'s Br. 14. In support, plaintiff asserts she need not show her impaiiment could reasonably be
expected to cause the severity of the symptoms alleged, but only that it could reasonably have
caused symptomatology to some degree. Id. (citing Lingenfelter, 504 F.3d at 1036. Indeed, an
ALJ "may not reject subjective symptom testimony ... simply because there is no showing that
the impairment can reasonably produce the degree of symptom alleged." Id. (citing Smolen, 80
F.3d at 1282).
Here, however, the ALJ did not reject the symptom allegations simply because there was
no showing that plaintiffs fibromyalgia could reasonably produce the degree of her symptoms as
alleged; rather, the ALJ merely indicated Dr. Zhu found her symptoms were mild. Tr. 19. As the
Commissioner notes, it is appropriate for the ALJ to consider medical opinions when evaluating
a claimant's credibility - particularly the opinion of a rheumatologist evaluating fibromyalgia.
Def.'s Br. 5-6; '11!0/ina v. Astrue, 533 F.3d 1155, 1161 (9th Cir. 2012); Benecke v. Barnhart, 379
F.3d 587, 594 n.4 (9th Cir. 2004).

Ill

7 - OPINION AND ORDER

The thrust of plaintiffs argument is the ALJ's interpretation of Dr. Zhu's "mild" notation
is inconect. However, so long as the ALJ's finding is "supported by inferences reasonably drawn
from the record[,]" the comt must uphold the findings. Batson, 359 F.3d at 1193. In the relevant
chart note, Dr. Zhu clearly indicated plaintiffs tender point testing was "mild." Tr. 477. As such,
the court finds it was at least rational for the ALJ to interpret the chmt note to mean plaintiffs
fibromyalgia symptoms were mild. Moreover, although plaintiff contends the ALJ's
interpretation is wrong, plaintiff does not provide any alternative explanation or evidence in
suppott of her position. See Pl.'s Br. 14; Pl.'s Reply 3. Even if plaintiff presented an equally
viable interpretation, the comt would nonetheless be obliged to defer to the ALJ's finding. Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is susceptible to more than one

rational interpretation, it is the ALJ's conclusion that must be upheld."). Accordingly, the ALJ's
interpretation of Dr. Zhu's chart note is free of legal en·or.
Plaintiff also disputes the import of Dr. Zhu's comment, "she does have improvement
with marijuana[,]" regarding pain from fibromyalgia. Plaintiff contends that despite using
marijuana, she continues to have "muscle aches, cramping, joint pain, and swelling." Pl.' s Reply
3-4. However, as plaintiff concedes, she repotted to Dr. Zhu that marijuana use resulted in
"significant pain relie[fj and improved sleep .... " Tr. 476. Although plaintiff argues medical
marijuana did not fully alleviate her symptoms, the ALJ was within his authority to impugn
plaintiffs credibility based on her reported pain relief. Warre v. Comm 'r of SSA, 439 F.3d 1001,
1006 (9th Cir. 2006) (impaitments that are adequately controlled with treatment are not
disabling). Again, while plaintiff proffers an alternative explanation, the ALJ's finding is not
inational, as the apparent efficacy of marijuana use reasonably contradicts her cunent claims of
nearly incapacitating pain. See tr. 19, 58-59, 253. Thus, the ALJ provided a valid interpretation
of Dr. Zhu's findings and observations: plaintiffs fibromyalgia is mild, improves with treatment,
8 - OPINION AND ORDER

and is not as limiting as alleged. Tr. 19. The findings impugn plaintiffs credibility to the degree
she alleges her symptoms are nearly incapacitating, immune to treatment, and completely
preclude her from work.
The ALJ fm1her discredited plaintiff for using a cane that was not prescribed to her. An
ALJ may find that a claimant's use of non-prescribed assistive device detracts from her
credibility. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Plaintiff presumably
concedes the cane was not prescribed at the time of the administrative heming, but explains her
use of a cane was legitimate because Dr. Ward prescribed a cane two weeks thereafter. Pl.' s Br.
15; see tr. 506. The Commissioner notes the "interesting timing" of the prescription, infen'ing the
cane prescription was procured in response to the adverse disability decision. Def.' s Br. 7-8.
Fmther, the Commissioner contends plaintiff did not develop an abnormal gait until after the
October 31, 2013 decision. Id.; tr. 523-5. The record supports the Commissioner's position.

Compare tr. 530-32 (Oct. 3, 2013) to 523-35 (Nov. 8, 2013). Moreover, although he prescribed
the cane, Dr. Ward noted plaintiff was more symptomatic on the left side, which did not correlate
to her known conditions because her MRI showed a disc protrusion only on the right side. Tr.
524. Nevertheless, while the sudden appearance of the abnomml gait diagnosis may suggest an
ulterior motive, the cou11 also notes plaintiff reported decreased sensation in her left leg prior to
the receiving the decision. Tr. 495, 531.
On balance, and considering the record as a whole, the court finds the ALJ did not legally
el1' regarding the cane issue for the following related reasons. First, the ALJ utilized an
acceptable method of credibility evaluation pursuant to Chaudh1y and other Ninth Circuit
precedent, which recognizes the ALJ's rationale as clear-and-convincing. See Chaudh1y, 688
F.3d at 671 n.9 ("cane was prescribed only at Chaudhry's request"); see also Thomas v.

Barnhart, 278 F.3d 947, 959 (9th Cir. 2001) ("record contains conclusory statements that Ms.
9 - OPINION AND ORDER

Thomas needed a cane"). Next, the ALJ's decision only addressed plaintiffs disability status
tln·ough the date of the decision, and there was nothing to suggest a medical necessity for the
cane prior to the post-decision development of abnonnal gait. Tr. 23, 523.
Fmiher, as mentioned above, Dr. Ward did not identify any medically dete1minable
condition which necessitated the cane; the only associated diagnosis was "abnormality of gait."

See tr. 506 ("Cane .... Dx 781.2 [abno1mality of gait]"); tr. 524 ("the MRI findings do not
specifically correlate to her cun·ent symptoms"); see also Social Security Ruling ("SSR") 96-9p

available at 1996 WL 374185 at *7 ("To find that a hand-held assistive device is medically
required, there must be medical documentation establishing the need . . . and describing the
circumstances for which it is needed."). The court also notes plaintiffs treating and examining
physicians regularly recommended plaintiff increase her activity level, which suggests that
plaintiffs gait abno1mality is not severe enough to cause disability and/or be expected to persist
for the statutory duration requirement. See, e.g., tr. 471 ("increase your activity level"), 478
("encouraged her to exercise regularly"), 498 ("reiterated imp011ance of trying to be as
physically active as possible").
Additionally, plaintiff never alleged having the condition of, or disability due to
"abno1mality of gait." See Pl.'s Br. 1 ("[plaintiff] is disabled by fibromyalgia pain, anxiety,
depression, PTSD, a learning disorder and obesity"); Pl.'s Reply 1 ("[p]laintiff does not have a
neurological condition"); tr. 224. Plaintiff has the initial burden to establish disability that can be
expected to last at least twelve months, and the prescription of an assistive device, without more,
does not meet this tln·eshold. Howard, 782 F.2d at 1486; 42 U.S.C. § 423(d)(l)(A). Based on all

10- OPINION AND ORDER

of the foregoing, the ALJ's stated rationale was valid, notwithstanding the post-decision
evidence. 1
The ALJ also found plaintiff provided inconsistent statements regarding her activities of
daily living ("ADLs"). The ALJ noted that in her 2012 functional report, plaintiff indicated she
was predominantly independent in self-care, able to prepare simple meals, go shopping, and
drive a car; which he found contrary to her testimony during the hearing. Tr. 20, 254-55. During
the hearing, however, plaintiff testified she required help getting out of bed, that her daughter
prepares most meals, that she can shop but is exhausted for days afterward, and normally doesn't
drive, but is able to do so when required. Tr. 46, 48-49, 52.
Independent review of the records cited by the ALJ reveal they are generally consistent
with plaintiffs hearing testimony. For example, in 2012, plaintiff indicated she was not fully
independent in personal care or meal preparation. Tr. 254-55. Additionally, it is unclear why the
ALJ inferred plaintiff is no longer able to drive, as she testified to she driving herself to the
hearing. Tr. 45-46. While her ability to drive may suggest greater functionality than alleged, it
was nonetheless erroneous for the ALJ to find she provided inconsistent statements about her
ability to do so. However, even assuming the ALJ's ADLs analysis did not meet the appropriate
legal standard, other rationales provided were clear-and-convincing, and therefore the error is
harmless. Carmickle, 533 F.3d at 1163.
The ALJ discredited plaintiffs testimony regarding her alleged limitations due to her
mental impairments, including memory, completing tasks, concentration, understanding,
following instructions, and getting along with others. Tr. 257. The ALJ found that her allegations
were "inconsistent with the longitudinal medical evidence." Tr. 20. In support, the ALJ noted
1
Even if the court \Vere to find the ALJ erred in light of the post-decision prescription of the cane, the error \vould be harmless,
as the ALJ identified other valid reasons to discredit plaintiff's testimony. Cannickle v. Conun 'r, Soc. Sec. Ad1nin., 533 F.3d

1155, 1162-63 n.4 (9lh Cir. 2008).

11 - OPINION AND ORDER

plaintiff performed intellectual testing in the average to high average range. Id., 303-04. Testing
also indicated plaintiff had mild depression symptoms and moderate anxiety symptoms. Tr. 30203. The ALJ further noted plaintiff was able to attend school full time while working and
parenting, she interacted appropriately with her treatment providers, and that she frequently uses
online social media. Tr. 20.
Plaintiff argues that despite her average scores, she also was assessed in the low-average
range for reading fluency, and assessed a GAF score of 55. Pl. 's Br. 15. Plaintiff fmiher contends
the testing is not completely relevant because she is not alleging an intelligence deficit. Pl.'s
Reply 2; tr. 308-09. However, plaintiff alleges she has difficulty understanding, concentrating,
and following directions, but her overall reading scores in reading, math, written language, and
academic skills, applications, and fluency are all within the average range. Tr. 303-04. As such,
the ALJ's reasoning is specific, clear and convincing, even if the test results could be
alternatively interpreted. Batson, 359 F.3d at 1198. (ALJ's reasonable findings must be upheld,
even where the evidence is capable of more than one rational interpretation).
Plaintiff also asserts that "[a]lthough [she] has been observed to be pleasant, her
providers have noted obvious signs of mental and physical distress that affect her social
functioning." Pl.'s Br. 16. She alleges this would also "make it difficult to respond appropriately
to supervision and co-workers." Pl.'s Reply 3. While some of her providers noticed symptoms of
depression and/or anxiety at times, the ALJ noted none of the providers indicated her behaviors
would preclude her from social interaction. Tr. 20. The ALJ also noted plaintiff regularly used
online social media, which impugns the veracity of her claims of very limited social
functionality. Id. Again, while plaintiff has an alternative interpretation of the evidence, the ALJ
provided a legally sufficient reason to discredit allegations of severely diminished ability to
socially function and interact with individuals at work.
12 - OPINION AND ORDER

In addition, although the ALJ did not specifically invoke the opinions of the mental
health providers who administered her intellectual testing, the comi notes their opinion that her
"communication skills should serve her well in the career of her choice." Tr. 306. Plaintiffs
argument that her strong interpersonal communication skills are not inconsistent with having
difficulty responding appropriately to supervision and co-workers is not persuasive. Pl. 's Reply
3. Thus, although the comi may not rely on grounds the ALJ did not address in his opinion,
plaintiff has nonetheless failed to rebut the ALJ's reasonable interpretation of her mental
limitations. Rollins v. lvfassanari, 261 F.3d 853, 857 (9th Cir. 2001) (citation omitted). The
ALJ' s credibility finding is therefore affirmed.
II.

Medical Opinion Evidence
Plaintiff argues the ALJ improperly rejected the medical opinions provided by treating

physicians Dr. Ward and Dr.Hume-Rodman. The ALJ is responsible for resolving ambiguities
and conflicts in the medical testimony. lvfaga/lanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
The ALJ must provide clear and convincing reasons for rejecting the uncontradicted medical
opinion of a treating or examining physician, or specific and legitimate reasons for rejecting
contradicted opinions, so long as they are suppotied by substantial evidence. Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005). Nonetheless, treating or examining physicians are owed
deference and will often by entitled to the greatest, if not controlling, weight. Orn, 495 F.3d at
633 (citation and internal quotation omitted). An ALJ can satisfy the substantial evidence
requirement by setting out a detailed summary of the facts and conflicting evidence, stating his
interpretation, and making findings.1'.Jorgan v. Comm 'r Soc. Sec. Adm in., 169 F.3d 595, 600-01
(9th Cir. 1999). However, "the ALJ must do more than offer his conclusions. He must set forth
his own inte1pretations and explain why they, rather than the doctors', are correct." Reddick v.
Chafer, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). On this record, Drs. Ward and

13 - OPINION AND ORDER

Hume-Rodman's opinions were contradicted by the non-examining state agency medical
examiners. 2 Accordingly, the ALJ's reasons for rejecting the treating physicians must be specific
and legitimate, and supp01ied by substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1012
(9th Cir. 2014); Lester, 81 F.3d at 830. Specific, legitimate reasons for rejecting a physician's
opinion may include its reliance on a claimant's discredited subjective complaints, inconsistency
with the medical record, prior inconsistent testimony, or inconsistency with a claimant's ADLs.
Tommasetti v. Astrue, 533 F.3d 1035, 1040-41 (9th Cir. 2008).

The ALJ accorded "little weight" to treating provider Dr. Ward's opinion that plaintiff
could not maintain full-time employment and would likely miss more than two days per month
due to pain issues. Tr. 20. In support, the ALJ noted Dr. Ward's opinion is "inconsistent with the
objective evidence, including the physical findings ... [and] claimant's own reported ability to
do household chores, such as laundry and mowing the lawn, as well as her reported ability to be
independent in self-care, to prepare simple meals, and to go shopping." Id.
The ALJ' s first rationale is eirnneous. The Commissioner concedes that a lack of
objective medical evidence is insufficient to discredit a medical opinion regarding fibromyalgia.
Def.'s Br. 12 n.6 (citing Benecke, 379 F.3d at 594). Even though the ALJ proffered other reasons
for discrediting Dr. Ward's opinion, the Commissioner declines to defend the ALJ's rationale,
which generally may be valid so long as other valid rationales are also provided. Id. The
Commissioner's choice to abandon the argument is presumably due to the ALJ's lack of
specificity. The general asse1iion that a treating physician's opinion is "inconsistent with the
objective evidence" is insufficient. The ALJ has a duty to provide more than a conclusion; "[h]e
must set f01ih his own interpretations and explain why they, rather than the doctor', are con·ect."
2

The parties dispute \vhether Dr. Zhu's opinion contradicts those of Drs. 'Vard and Hume-Rodman. See Def.'s Br. 11; Pl. 's
Reply 5. The ALJ's decision does not indicate \vhether Dr. Zhu's opinion is included in the weighing of medical opinion
evidence. Ho\vever, neither party's arguments hinge on the medical opinion or evidence produced by Dr. Zhu. Therefore, the
court declines to specifically determine \vhether Dr. Zhu's opinion contradicts those ofDrs. \Vard and Hu1ne-Rodman.

14 - OPINION AND ORDER

Orn, 495 F.3d at 632 (quoting Reddick, 157 F.3d at 725). Moreover, Dr. Ward noted "multiple
areas of significant tenderness to palpitation, consistent with trigger points[,]" in other words,
objective evidence consistent with fibromyalgia. See tr. 497. Additionally, to the extent the
ALJ's rationale is premised on Dr. Ward's "abnormal gait" diagnosis, the ALJ's explanation is
too vague to uphold on review.
The ALJ' s second rationale for according limited weight to Dr. Ward's opinion is
inconsistency with plaintiffs repo1ied ADLs. Tr. 20. As noted above, inconsistency with AD Ls
may be a valid reason to accord a medical opinion limited weight. Tommasetti, 533 F.3d at 1040.
Although the ALJ notes plaintiff retains the ability to perfo1m household chores, prepare simple
meals, self-care, and go shopping, such activities are not particularly strenuous, pmiicularly in a
non-work setting where they can be perforn1ed at a slower pace, and presumably not eight hours
per day, five days per week. See, e.g., Fair, 885 F.3d at 603 (many home activities are not easily
transferable to the workplace environment, where it may not be possible to rest). Fmiher, Dr.
Ward specifically opined plaintiff would be unable to maintain a full-time job with "normal
break periods." Tr. 501. Thus, while plaintiffs ability to perform ce1iain ADLs may suggest nondisability, the ALJ failed to identify how and why the ADLs cited impugn Dr. Ward's
assessment. Accordingly, the ALJ en-ed in weighing Dr. Ward's opinion.
The ALJ also accorded "little weight" to the opinion of Dr. Hume-Rodman, citing
inconsistency with the medical record, and plaintiffs abilities to attend school full-time, care for
her children, and work. Tr. 20. For the reasons discussed above, the ALJ's rationale regarding
inconsistency with the medical record is erroneous. The activities cited by the ALJ, however, are
somewhat different than those invoked to reject Dr. Ward's opinion, and therefore wmrnnt
further consideration.

15 - OPINION AND ORDER

Dr. Hume-Rodman, identified as the associate director of clinical health services at
Oregon State University, opined plaintiff"suffers from a number of medical issues that make it
impossible for her to work 20 hours per week," in the context of a request the university waive a
work requirement in order to receive food stamps. Tr. 435. The Commissioner argues Dr. HumeRodman appears to be assetting plaintiff could not work 20 hours per week while also attending
classes. Def.' s Br. 11. However, as plaintiff accurately contends, the ALJ did not invoke this
reasoning in his decision, and therefore this coutt may not now rely upon it. See Bray v. Comm 'r
ofSoc. Sec. Admin, 554 F.3d 1219, 1225-26 (9th Cir. 2009); see also Pinto v. lvfassanari, 249
F.3d 840, 847 (9th Cir. 2007).
However, the ALJ's finding that plaintiffs ability to attend school full-time, work, and
care for children is inconsistent with a limitation to a less than 20-hour work week is valid. In
support, the ALJ cited Exhibit 6F, which consists of73 pages of chart notes completed by Dr.
Hume-Rodman between 2010 and 2012, when plaintiff was a full-time student. See Pl.'s Reply
6; tr. 314, 336, 386 Although plaintiff argues her activities are "very limited," the ALJ's
conclusion that plaintiffs ability to raise three children while attending school full-time and
working patt-time is supported in the record, and reasonably contradicts the doctor's assettion
that she is unable to work 20 hours per week. The ALJ is the appropriate arbiter of conflicts
and/or ambiguity in the medical record. Morgan, 169 F.3d at 603 (citations omitted). As such,
the ALJ's rational interpretation of the record must be upheld. Batson, 359 F.3d at 1198.
III. Step Five and Remand for Further Proceedings
Plaintiff alleges the ALJ incorporated erroneous step three findings into her RFC which
resulted in futther errors at step five. Essentially, plaintiff restates her earlier arguments
regarding the ALJ's evaluation of her credibility and the weight accorded to her treating
physicians. See Pl.'s Br. 18-19; Pl.'s Reply 7. However, as the comt finds the ALJ did not err in
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assessing plaintiffs credibility or the medical opinion of Dr. Hume-Rodman, plaintiffs step five
allegations are inapposite. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir.
2008).
Finally, plaintiff argues the court should reverse and remand this case for immediate
payment of benefits. Courts may affirm, modify, or reverse the decision by the Commissioner
"with or without remanding the case for a rehearing." 42 U.S.C. § 405(g); Treichler v. Comm 'r

or Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). Remand for the calculation of benefits
is one possible remedy. Benecke, 379 F.3d at 593. As discussed above, the ALJ did not provide
legally adequate reasons to accord Dr. Ward's medical opinion little weight. Although not all
ALJ eU"ors require remand, the comi can confidently conclude that no reasonable ALJ, when
fully crediting Dr. Ward's opinion that plaintiff would be expected to miss more than two days
per month due to her impairments, could have reached a different disability dete1mination. Stout

v. Comm 'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006) (citations omitted). Thus,
remand is required.
On remand, the Ninth Circuit employs the "credit-as-true" standard when the following
requisites are met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting
evidence, (2) the record has been fully developed and farther proceedings would serve no useful
purpose, and (3) ifthe improperly discredited evidence were credited as true, the ALJ would be
required to find the plaintiff disabled on remand. Garrison v. Colvin, 759 F.3d atl020. Even ifall
of the requisites are met, however, the court may still remand for fu1iher proceedings "when the
record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]" Id at
1021. "Serious doubt" can arise when there are "inconsistencies between the claimant's
testimony and the medical evidence," or if the Commissioner "has pointed to evidence in the
record the ALJ overlooked and explained how that evidence casts into serious doubt" whether
17 - OPINION AND ORDER

the claimant is disabled under the Act. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir 2015)
(citing Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (internal quotation marks omitted).
The first requisite is met based on the ALJ's inadequate rejection of Dr. Ward's opinion.
Next, the court must determine whether "the record has been fully developed and futiher
administrative proceedings would serve no useful purpose." Garrison, 759 F.3d at 1020.
Although the ALJ erred by providing inadequate reasons for according little weight to Dr.
Ward's opinion, the record nonetheless raises crucial questions about the extent to which
plaintiffs various symptoms and impaitments affect her ability to function in the workplace.
For example, despite plaintiffs testimony that her pain is incessant and severely limits
her ability to sleep, she also reported receiving significant pain relief and improved sleep using
medical marijuana. Tr. 259, 476. Next, as discussed above, plaintiffs providers did not report
any abnormality in plaintiffs gait until after the ALJ questioned her credibility because her cane
was not medically prescribed. Tr. 23, 258, 476, 506, 525. Further, as Dr. Ward noted, plaintiffs
MRI findings did not correlate to her left-sided symptoms, although her disc protrusion is rightsided. Tr. 524.
Other inconsistencies also give the comi pause. Although plaintiff alleges mental
impairments including limited reading fluency, she was nevertheless able to adequately navigate
two years of college courses, and even held a job tutoring other college students for a time. Tr.
42, 249. Fmiher, plaintiff testified that she spends up to three hours per day using online social
media, which clearly requires a certain level of reading fluency. Tr. 50-51, 256. While plaintiff
alleges having a limited ability to respond appropriately to supervision and co-workers due to
emotional distress, mental health evaluators indicated plaintiff demonstrated strong interpersonal
communication skills, "that would serve her well in the career of her choice." Tr. 306; Pl.'s Br.
16. Fmiher, despite allegations of significantly limited ability to perform basic AD Ls, plaintiff
18 - OPINION AND ORDER

was able to attend school full-time for approximately two years, while raising three children and
apparently working part-time. Finally, the comt reiterates that although the ALJ did not provide
legally sufficient reasons to discredit one treating physician's somewhat conclusory opinion that
plaintiff would miss at least two days per month, the ALJ's negative credibility finding and
rejection of the other treating physician's opinion were legally valid.
For all of the foregoing reasons, despite legal error in the ALJ's decision, serious doubt
remains whether plaintiff is disabled under the Act. Thus, remand for an award of benefits is not
appropriate. Treichler, 77 5 F .3d at 1101. Fmther proceedings are necessary.
Conclusion

Based on the foregoing, the Commissioner's decision is REVERSED and this case
REMANDED for fu1ther proceedings consistent with this Opinion.
DATED this 5th day of May, 2016.

I

//fl: ~\

(/1----

Youlee Yim You
United States Magistrate Judge

19- OPINION AND ORDER