Burnstad v. Commissioner Social Security Administration

Filing 21

Opinion and Order - The Commissioner's decision that Plaintiff is not disabled is REVERSED and REMANDED for further proceedings as set forth herein. Signed on 8/2/2016 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

FREEMAN AARN BURNSTAD,
Plaintiff,

Case No. 6:15-cv-00921-SI
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
Kathryn Tassinari and Mark A. Manning, HARDER, WELLS, BARON, & MANNING, P.C., 474
Willamette, Suite 200, Eugene, OR 97401. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States
Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland,
OR 97204-2902; Jordan D. Goddard, Special Assistant United States Attorney, and Joseph John
Langkamer, OFFICE OF THE GENERAL COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth
Avenue, Suite 2900 M/S 221A, Seattle, WA 98104-7075. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Freeman Aarn Burnstad (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying his application
for a Period of Disability, Disability Insurance Benefits (“DIB”), and Supplemental Security

PAGE 1 – OPINION AND ORDER

Income (“SSI”). For the following reasons, the Commissioner’s decision is REVERSED and this
case is REMANDED for further proceedings.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” 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 means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.

PAGE 2 – OPINION AND ORDER

BACKGROUND
A. Plaintiff’s Application
Plaintiff protectively filed applications for DIB and SSI on July 11, 2011, alleging
disability beginning January 1, 2008. AR 177, 181. Plaintiff was 36 years old at the alleged
disability onset date. AR 28. He alleges disability due to mild obesity, osteoarthritis, somatoform
disorder, hypertension, myocardial infarction, coronary artery disease, Hashimoto thyroiditis,
right side facial pain, and depression. AR 20-22. The Commissioner denied Plaintiff’s
applications initially and on reconsideration. AR 115, 120, 127, 131. Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”), and the hearing took place on December 16, 2013.
AR 134, 35. The ALJ issued a decision on January 9, 2014, finding that Plaintiff was not
disabled from January 1, 2008. AR 29. The Appeals Council denied Plaintiff’s request for
review, making the ALJ’s decision the final decision of the Commissioner. AR 1-4. Plaintiff now
seeks judicial review of that decision.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:

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1.

Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.

2.

Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.

3.

Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.

4.

Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.

5.

Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.

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See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ found that the Plaintiff met the insured status requirements of the Social
Security Act through September 30, 2014. AR 20. The ALJ then applied the sequential process.
AR 20-24. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since the alleged onset date, January 1, 2008. AR 20. At step two, the ALJ found that
Plaintiff has the following severe impairments: mild obesity, osteoarthritis, and a somatoform
disorder. Id. The ALJ noted the existence of other impairments in the record that he categorized
as non-severe.1 AR 21-22.
At step three, the ALJ found that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the impairments listed in the
1

The ALJ considered Plaintiff’s history of hypertension, myocardial infarction, history of
coronary artery disease, Hashimoto thyroiditis, right side facial pain, depressive disorder, and
history of methamphetamine abuse. These were determined to be non-severe. AR 21-22.
PAGE 5 – OPINION AND ORDER

regulations. AR 22. In determining whether Plaintiff met the requirements of Listing 12.07,
somatoform disorder, the ALJ found that Plaintiff’s mental impairment did not satisfy the
paragraph B criteria. AR 23.
Continuing step three, the ALJ determined that Plaintiff has the RFC to perform light
work, with the following additional limitations: “the claimant is limited to no more than frequent
balancing. The claimant would also need to avoid concentrated exposure to moving machinery,
heights, and similar hazards.” AR 24. In reaching this conclusion, the ALJ found Plaintiff’s
testimony concerning his pain and other symptoms “not entirely credible” in light of objective
medical evidence and Plaintiff’s own report of his daily activities. AR 24-25. The ALJ also
considered written opinion evidence from five medical sources and one non-medical source.
AR 26-27. The ALJ gave “significant weight” to reviewing state agency physician Dr. Mary Ann
Iyer and examining consultative physical examiner Dr. DeWayde C. Perry. AR 26. The ALJ also
gave significant weight to portions of the opinion evidence of Plaintiff’s treating physician,
Dr. John R. Ford. Id. Little weight was given to examining consultative psychological examiner
Dr. Paula Belcher, and “no weight” was given to examining physician Dr. David Truhn. AR 2627. The ALJ found that the non-medical opinion evidence of Plaintiff’s wife, Maria Berggren,
supported the RFC finding. AR 27.
At step four, the ALJ determined that Plaintiff is capable of performing past relevant
work as a fast food restaurant manager and book sales person. AR 27. This conclusion compels a
finding of not disabled. Nonetheless, the ALJ went on to step five, consulting a vocational expert
who testified about other jobs existing in significant numbers in the national economy, which

PAGE 6 – OPINION AND ORDER

Plaintiff is able to perform.2 AR 28-29. The ALJ concluded that Plaintiff has not been under a
disability, as defined in the Social Security Act, from January 1, 2008 through the date of the
decision, January 9, 2014. AR 29.
DISCUSSION
Plaintiff seeks review of the ALJ’s determination that Plaintiff has not been under a
disability after January 1, 2008. Plaintiff argues that the ALJ erred by: (A) discrediting the
opinion of Dr. Truhn; (B) failing to find that Plaintiff meets the criteria of Listing 12.07 and
12.08; (C) failing to credit Plaintiff’s testimony; (D) failing to credit the lay witness testimony of
Plaintiff’s wife, Maria Berggren; and (E) finding that Plaintiff retains the ability to perform his
past work.
A. Failure to Credit the Opinion of Dr. Truhn.
Plaintiff offered the written opinion of Dr. Truhn, an examining physician, as to the
limiting effects of Plaintiff’s mental impairments. AR 677-696. Dr. Truhn’s assessment was
based on an examination of Plaintiff, a battery of tests,3 records provided by Plaintiff’s attorney,
and an interview with Plaintiff’s wife. AR 678. It is Plaintiff’s most recent and most thorough
psychological examination. Dr. Truhn diagnosed Plaintiff with Undifferentiated Somatoform
Disorder, Personality Disorder Not Otherwise Specified (“NOS”), and Major Depressive
Disorder. AR 690. Dr. Truhn opined that Plaintiff’s somatic symptoms and severe depression
impaired Plaintiff’s ability to seek and maintain employment, AR 690, and that Plaintiff
experienced markedly limited abilities in areas of understanding and memory, sustained
concentration, social interaction, and adaption. AR 693-696.
2

These include photocopy machine operator, officer helper, and telephone solicitor.

AR 29.
3

Dr. Truhn administered the Wide Range Achievment Test-4, the Comprehensive Trail
Making Test, the Wechsler Adult Intelligence Scale, Fourth Edition, the Minnesota Multiphasic
Personality Inventory-2-RF, and the Millon Clinical Multiaxial Inventory-III.
PAGE 7 – OPINION AND ORDER

The ALJ gave Dr. Truhn’s opinion no weight because: (1) there is no history of any
treatment for a personality disorder or major depression; (2) there is no evidence in the record
that Plaintiff experienced loss of appetite and sleep disturbances pertaining to depression
(3) Plaintiff’s activities of daily living do not show any mental limitations or restrictions;
(4) Plaintiff’s somatoform disorder pertains only to the pain in his face; and (5) Plaintiff’s work
history contradicts Dr. Truhn’s opinion that Plaintiff became disabled in 2008.4 AR 27.
Plaintiff contends that the ALJ failed to provide clear and convincing reasons for
rejecting the opinion of Dr. Truhn, an examining physician. The Commissioner asserts that the
ALJ need only provide specific and legitimate reasons for rejecting the testimony of Dr. Truhn,
but adds that the ALJ also satisfied the clear and convincing standard.
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle, 533 F.3d at 1164. The Ninth Circuit distinguishes
between the opinions of three types of physicians: treating physicians, examining physicians, and
non-examining physicians. Generally, “a treating physician’s opinion carries more weight than
an examining physician’s, and an examining physician’s opinion carries more weight than a
reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). 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. Id.; see also 20 C.F.R. § 404.1527(d)(2). A treating doctor’s opinion that is not
4

Dr. Truhn found that Plaintiff’s condition became disabling in 2007. This appears to be
an erroneous date, triggered from Plaintiff’s emergency room visit when he had what he refers to
as his “physical breakdown.” AR 680. There was an error in the medical records of that visit,
which lists the visit date sometimes as January 1, 2008, and sometimes as January 1, 2007. AR
295. Plaintiff had reported to Dr. Truhn that his breakdown was in “about 2007.” AR 680. The
correct date of the emergency room visit is January 1, 2008, which is Plaintiff’s alleged disability
date. Because Plaintiff also worked after January 1, 2008, however, this reason provided by the
ALJ for rejecting Dr. Truhn’s opinion is addressed.
PAGE 8 – OPINION AND ORDER

contradicted by the opinion of another physician can be rejected only for “clear and convincing”
reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor’s
opinion is contradicted by the opinion of another physician, the ALJ must provide “specific and
legitimate reasons” for discrediting the treating doctor’s opinion. Id.
In addition, the ALJ generally must accord greater weight to the opinion of an examining
physician than that of a non-examining physician. Orn, 495 F.3d at 631. As is the case with the
opinion of a treating physician, the ALJ must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502,
506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another
physician’s opinion, the ALJ must provide “specific, legitimate reasons” for discrediting the
examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may
reject an examining, non-treating physician’s opinion “in favor of a nonexamining, nontreating
physician when he gives specific, legitimate reasons for doing so, and those reasons are
supported by substantial record evidence.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995),
as amended (Oct. 23, 1995).
Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance
on a claimant’s discredited subjective complaints, inconsistency with medical records,
inconsistency with a claimant’s testimony, and inconsistency with a claimant’s daily activities.
Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1042-43. An
ALJ effectively rejects an opinion when he or she ignores it. Smolen, 80 F.3d at 1286.
Dr. Truhn’s opinion is contradicted by other medical opinions. Psychological examiner
Dr. Belcher diagnosed Plaintiff with a somatoform disorder in 2011 but did not diagnose
Plaintiff with depression or a personality disorder. AR 481. Reviewing psychologist Dr. Joshua

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J. Boyd diagnosed Plaintiff with somatoform disorder but found that Plaintiff experienced only
mild limitations as a result of his impairment. AR 98. Accordingly, the ALJ must provide
specific, legitimate reasons for rejecting Dr. Truhn’s contradicted opinion concerning Plaintiff’s
mental impairments.
1. History of treatment for personality disorder or depression
The ALJ found no history of treatment for personality disorder or major depression to
support Dr. Truhn’s diagnosis. The record supports this finding. There is also, however, no
previously diagnosed personality disorder in the record, and it is therefore unreasonable to
expect Plaintiff to seek treatment for a mental disorder during a period in which he remained
unaware of it. Accordingly, the ALJ erred in relying on Plaintiff’s lack of treatment for a
personality disorder to discredit Dr. Truhn.
Unlike with his personality disorder, Plaintiff’s medical treatment providers notate his
depression throughout the record, starting in 2008. AR 303, 356, 339, 458, 454, 453, 450, 481,
493, 628, 692. Plaintiff took Cymbalta to “help with his pain and mood,” (AR 339) and saw a
counselor for depression in 2011 (AR 453). Although Dr. Belcher found that Plaintiff’s
symptoms did not meet the criteria for depressive disorder (AR 481) Plaintiff told her that “as his
health deteriorates, he wonders if he should broach the subject of assisted suicide with his
physician,” (AR 478). Contrary to the ALJ’s assertion, the record shows that Plaintiff
experienced symptoms of depression for which he intermittently sought treatment.
Furthermore, the Ninth Circuit has recognized that “the fact that a claimant may be one of
millions of people who did not seek treatment for a mental disorder until late in the day is not a
substantial basis on which to conclude [a physician’s] assessment of claimant’s condition is
inaccurate.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (stating “it is a questionable

PAGE 10 – OPINION AND ORDER

practice to chastise one with a mental impairment for the exercise of poor judgment in seeking
rehabilitation”) (quotation marks and citation omitted).
As noted by Dr. Beth Blumenstein, Plaintiff “is not really amenable to acknowledging
that much of his symptoms are psychological.” AR 450. Additionally, Plaintiff reported to Dr.
Truhn that Plaintiff “believes that the physical problems are causing the depression and that the
depression would not be treatable until after the medical problems are treated,” when in fact
Plaintiff’s mental disorder is the likely source of his physical problems. AR 682; See Reed v.
Massanari, 25 F. App’x 535, 536 (stating that “somatoform disorder means that he experiences
physical symptoms for which there are no demonstrable organic findings and for which there is a
strong presumption that the symptoms are linked to psychological factors) (citing STEDMAN’S
MEDICAL DICTIONARY 510 (26th ed. 1995)).
Further, Plaintiff’s wife reported that Plaintiff “does not attend any counseling because
they cannot afford it.” AR 688. The Ninth Circuit has explained that “disability benefits may not
be denied because of the claimant’s failure to obtain treatment he cannot obtain for lack of
funds.” Orn, 495 F.3d at 638 (citation omitted). Considered together, these factors provide an
adequate explanation for why Plaintiff did not seek treatment for his depression. Accordingly,
Plaintiff’s lack of treatment for depression was not a legitimate basis on which to discredit Dr.
Truhn’s diagnosis and opinion.
2. Symptoms of Depression
The ALJ found no evidence that Plaintiff experienced loss of appetite and sleep
disturbances due to depression. AR 27. The record shows multiple reports of decreased appetite.
AR 310, 315, 334, 346, 349, 355, 441, 480, 611, 650.
As for sleep disturbances, Plaintiff testified at the hearing that he sleeps heavily but is
always exhausted, and has considered doing a sleep study. AR 56. He also reported in his
PAGE 11 – OPINION AND ORDER

Function Report that his sleep is not restful and he wakes up exhausted. AR 253. As discussed
above, Plaintiff experienced symptoms of depression, beginning at least in 2008, some of which
include changes in sleep habits. AR 303, 339, 356, 362, 458, 454, 453, 450, 481, 493, 628, 692.
Additionally, his medical records also indicate specific reports of sleeping problems. See, e.g.,
AR 476 (December 13, 2010, Plaintiff completed a medical questionnaire form and reported that
he had trouble falling asleep, staying asleep, or sleeping too much “nearly every day” and that he
felt tired or had little energy “nearly every day”); AR 459 (November 29, 2010, Plaintiff reported
sleeping 10 to 11 hours per night, but feeling fatigued in the afternoons and so napping for three
to four hours and that without naps he is tired all day); AR 315 (July 24, 2009, Plaintiff reported
that his pain was waking him and affecting his sleep); 341-42 (June 15, 2009, Plaintiff reported
concern that he may have sleep apnea based in part on daily fatigue; examining physician
assistant diagnosed possible sleep apnea and recommended a sleep study); AR 334 (February 10,
2009, Plaintiff reported that he did not feel rested even after getting eight to nine hours of sleep
and wondered if had sleep apnea); AR 441 (February 5, 2008, Plaintiff reported that his fatigue
has become “increasingly severe” despite sleeping 10 to 14 hours per day) . Moreover, Plaintiff’s
wife reported that he sleeps heavily, is hard to wake up, takes naps, and yet still does not feel
rested. AR 229.
“Where the purported existence of an inconsistency is squarely contradicted by the
record, it may not serve as the basis for the rejection of an examining physician’s conclusions.”
Nguyen, 100 F.3d at 1465. The ALJ’s assertion that no evidence exists to show Plaintiff
experiences loss of appetite and sleep disturbances due to depression is contradicted by the
record, and therefore is not a legitimate reason to discredit Dr. Truhn’s opinion.

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3. Activities of Daily Living
Dr. Truhn opined that Plaintiff experienced marked limitations in eleven different areas
on the mental RFC questionnaire.5 AR 693. The ALJ, however, found that Plaintiff’s activities of
daily living “clearly do not show any mental limitations or restrictions.” AR 27. The ALJ noted
earlier in his decision Plaintiff can help with chores, cook, grocery shop, read, use the internet,
help with childcare, and drive when necessary. AR 25.
Inconsistency with Plaintiff’s daily activities is a proper basis on which to reject a
medical opinion. Andrews, 53 F.3d at 1043. However, “disability claimants should not be
penalized for attempting to lead normal lives in the face of their limitations.” Reddick v. Chater,
157 F.3d 715, 722 (9th Cir. 1998). Furthermore, a plaintiff need not be “utterly incapacitated to
be eligible for benefits” and not all activities of daily living are transferable to the workplace
“where it might be impossible to periodically rest or take medication.” Fair v. Bowen, 885 F.2d
597, 603 (9th Cir. 1989).
Plaintiff testified that he can hold his newborn and walk back and forth for 15 to 20
minutes at most. AR 50. He is afraid to drive unless it is absolutely necessary because his
dizziness and pain affect his ability to focus on driving. AR 50, 58. Plaintiff can vacuum, do
laundry, and clean, although he may need one or more days to recover after doing some cleaning
5

These areas are as follows: ability to carry out detailed instructions; ability to perform
activities within a schedule, maintain regular attendance and be punctual within customary
tolerances; ability to sustain an ordinary routine without special supervision; ability to work in
coordination with or proximity to others without being distracted by them; ability to complete a
normal workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and length of rest periods;
ability to interact appropriately with the general public; ability to accept instructions and respond
appropriately to criticisms from supervisors; ability to get along with co-workers or peers
without distracting them or exhibiting behavioral extremes; ability to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness; ability to be
aware of normal hazards and take appropriate precautions; and ability to travel in unfamiliar
places or to use public transportation. AR 694-96.
PAGE 13 – OPINION AND ORDER

tasks. AR 255. He can grocery shop once a week for one to two hours. AR 255. He can walk five
blocks before needing to rest for 10 to 15 minutes. AR 257. Plaintiff reported that he takes his
daughter on errands but his wife bathes her, brushes her teeth, and takes her to doctor
appointments. AR 253. Plaintiff’s “entire daily schedule is built around [his] pills.” AR 254.
Plaintiff’s wife reported that Plaintiff must have a three to four hour nap in the afternoon to
function the rest of the day. AR 228.
These sporadic activities punctuated by long periods of rest and an extensive medication
schedule support Dr. Truhn’s opinion that Plaintiff is markedly limited in his ability to complete
a normal workday and workweek without interruptions from psychologically-based symptoms
and need for a significant number and length of rest periods. There is also evidence in the record
that Plaintiff experiences difficulty adhering to basic standards of neatness and cleanliness, and
would be unable to sustain his medication schedule while completing other tasks. AR 229
(Plaintiff showers once a week to once every ten days, and will wear the same clothes for several
days); AR 53 (Plaintiff must watch the clock in order to remember to take his pills according to
his pill schedule). Further, the Court has considered Dr. Truhn’s other limitation findings, and
concludes they are not contradicted by Plaintiff’s daily activities and the overall picture they
create. Therefore, the ALJ did not legitimately rely on Plaintiff’s activities of daily living to
discount Dr. Truhn’s assessment because Plaintiff’s limited activities are not transferable to
completing an eight-hour workday and are therefore not inconsistent with Dr. Truhn’s opinion
that Plaintiff could not work a regular workday.6

6

To the extent the ALJ was relying on the standard for discounting a claimant’s
testimony based on the claimant’s daily living activities, where activities are not considered as
transferable to a work setting but instead as contradicting the alleged severity of the claimant’s
symptoms, the daily living activities must be inconsistent with claimed limitations to be relevant
PAGE 14 – OPINION AND ORDER

4. Somatoform Disorder
The ALJ limited consideration of Dr. Truhn’s diagnosis of somatoform disorder to
Plaintiff’s facial symptoms. AR 27. The record does not support such a limitation. While
Plaintiff did report pain in his jaw during Dr. Truhn’s evaluation, Plaintiff also reported
exhaustion, mobility issues, and shoulder pain. AR 682. Aside from these self-reported
subjective symptoms, Dr. Truhn observed “numerous pain behaviors” such as “kneeling on the
floor to complete a true/false questionnaire.” AR 678. Dr. Truhn also independently reviewed
Plaintiff’s medical records. AR 678. Even if Dr. Truhn’s diagnosis was limited to Plaintiff’s jaw
pain, this limitation is not a sufficient reason to disregard Dr. Truhn’s opinion as to the mental
effects and limitations of Plaintiff’s somatoform disorder.
5. Work History
The ALJ also rejected Dr. Truhn’s opinion regarding when Plaintiff’s symptoms became
disabling in part because Plaintiff continued to work after that time. Plaintiff testified that for
eight months in 2008 and four months in 2009 he worked at KTJK Enterprises as a jeweler three
days a week for four or five hours a day because no one else could do his job. AR 41-43, 245.
Plaintiff stopped working in April of 2009 because his physical condition deteriorated, the
Eugene branch of the business closed, and he could not relocate or commute to the Portland
branch of the business. AR 43.
Disability is defined as the inability to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment.” Harmon v. Finch, 460
F.2d 1229, (9th Cir. 1972) (quoting 42 U.S.C. § 423 (d)(1)(A)). Part time work after the alleged
disability onset date may constitute a legitimate reason for discounting a physician’s opinion that

to a credibility analysis. Reddick, 157 F.3d at 722. The Court finds that Plaintiff’s daily living
activities are not inconsistent with Dr. Truhn’s findings.
PAGE 15 – OPINION AND ORDER

a claimant’s impairments became disabling as of that date. See Wilson v. Astrue, 435 F. App’x
636, 639 (9th Cir. 2011) (finding that the ALJ properly discredited a physician’s assessment of a
plaintiff’s functional ability when physician also noted that the plaintiff was capable of part time
work). The determinative issue is whether the plaintiff’s part-time work is inconsistent with the
limitations asserted. See Sweeney v. Barnhart, 163 F. App’x 580, 581 (9th Cir. 2006) (upholding
an ALJ’s adverse credibility finding when the plaintiff’s alleged limitations were inconsistent
with her part time work for several months after surgery for her carpal tunnel syndrome);
Forester v. Colvin, 22 F. Supp. 3d 1117, (D. Or. 2014) (finding that an ALJ erred in discrediting
the plaintiff when her part time work from home with flexible hours was consistent with her
assertion that she could only engage in sporadic activity).
The ALJ partially supported his decision to give no weight to Dr. Truhn’s opinion
because Plaintiff worked as a jeweler from October 2006 through April 2009. AR 64. Plaintiff
testified that after his alleged disability onset date of January 1, 2008, he only worked part time.7
The ALJ found at step two of his analysis that this part time work tended to show “that the
claimant’s impairments are not as debilitating as alleged.” AR 20. The ALJ did not explain how
Plaintiff’s part time work activities are inconsistent with Plaintiff’s alleged disability onset date,
despite acknowledging that Plaintiff’s work in 2008 and 2009 was not substantial gainful
activity. Id.
The ALJ noted, however, that the fact that Plaintiff ultimately stopped working because
the Eugene branch of the jewelry store he worked at closed and that Plaintiff continued to look

7

At the hearing, Plaintiff was confused regarding what years he worked part time.
AR 41-44. Plaintiff reported for purposes of completing his Work Activity Report, however, that
in January 2008 he reduced his hours to part time work. AR 214. Additionally, Plaintiff’s
earnings summaries and reports to medical providers show that he worked part time in 2008 and
2009. See AR 200, 203, 356, 359, 479.
PAGE 16 – OPINION AND ORDER

for work after that time was “compelling evidence” that Plaintiff had the capacity to work.
AR 25; see also 42-44 (Plaintiff’s testimony regarding his work history). Furthermore, Plaintiff’s
part time work continued for a period of more than 12 months after the alleged onset date.
Although Plaintiff disagrees with the ALJ’s interpretation of the record, “[w]hen the evidence
before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's
conclusion.” Batson, 359 F.3d at 1198. Based on the above facts, it was a rational conclusion by
the ALJ that Plaintiff’s ability to work for a long period of time and continued search for work
after the alleged disability onset date found by Dr. Truhn contradicted Dr. Truhn’s opinion
regarding the onset date.
6. Conclusion
In summary, ALJ legitimately relied upon Plaintiff’s work history but erred in relying on
Plaintiff’s history of lack of treatment for depression and a psychological disorder, lack of
symptoms of depression, contradictory activities of daily living, and somatoform disorder in
discrediting Dr. Truhn. Although Plaintiff’s contradictory work history may indicate that
Dr. Truhn’s opinion is not entitled to controlling weight, this alone is insufficient to give no
weight to the most recent and thorough psychological evaluation on the record, made by a
specialist, pertaining to his specialty, and providing the only assessment of the limiting effects of
Plaintiff’s mental disorders.8 See Stewart v. Colvin, 16 F.Supp. 3d 1209, 1216 (D. Or. 2014)
(finding that inconsistency with daily activities, inconsistent treatment, and limited work during
the period at issue were “insufficient reasons for discrediting the opinion of [the physician] who
is the only treating or examining physician on this record who provided an opinion as to the
8

Plaintiff’s treating physician refused to fill out a mental residual functional capacity
report (AR 634), and the ALJ gave little weight to Dr. Paula Belcher, a consultative
psychological examiner (AR 26). The ALJ only gave significant weight to doctors who did not
assess Plaintiff’s mental capacity. AR 27.
PAGE 17 – OPINION AND ORDER

limiting effects of Plaintiff’s alleged mental impairments.”); Lester, 81 F.3d at 833 (stating that
“the Commissioner must evaluate the claimants ‘ability to work on a sustained basis’” and that
“the sporadic ability to work[ is] not inconsistent with disability”); Cf. C.F.R. § 404.1527(c)(5)
(stating “[w]e generally give more weight to the opinion of a specialist about medical issues
related to his or her area of specialty…”). Accordingly, the ALJ’s decision to discredit
Dr. Truhn’s opinion is not supported by substantial evidence in the record.
B. Failure to Find that Plaintiff Meets the Requirements of Listing 12.07 and 12.08
1. Listing 12.07
Plaintiff contends that the ALJ erred in failing to find that Plaintiff meets the criteria of
Listing 12.07, Somatoform Disorder. 20 C.F.R. Part 404, Subpt. P, App.1. Somatoform disorder
is defined as “[p]hysical symptoms for which there are no demonstrable organic findings or
known physiological mechanisms.” Id.
If a claimant’s impairment matches an impairment on the Listing, the claimant is
automatically entitled to disability benefits. Celaya v. Halter, 332 F.3d 1177, 1181
(9th Cir. 2003). However, “[t]he mere diagnosis of an impairment [in a listing] is not sufficient
to sustain a finding of disability.” Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990).
Instead, the severity requirement of Listing 12.07 is met “when the requirements in both A and B
are satisfied.”
To satisfy the paragraph B criteria, a plaintiff’s mental impairments must result in at least
two of the following: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404,
Subpt. P, App.1.

PAGE 18 – OPINION AND ORDER

In evaluating the paragraph B criteria to determine the severity of Plaintiff’s mental
impairment, the ALJ found that the listing level severity had not been met because Plaintiff
experienced only mild difficulties in activities of daily living, social functioning, and maintaining
concentration, persistence, or pace, and no episodes of decompensation. AR 23.
Specifically, the ALJ found mild restriction in daily activities based on Plaintiff’s ability
to prepare simple meals on a daily basis, do household chores, drive, shop, and care for his
young daughters. AR 23. With regard to social functioning, the ALJ found mild difficulties
based on Plaintiff’s interaction with others online and occasionally by phone or in person, and
observations of Plaintiff’s appropriate social interaction made by examining physicians. Id. The
ALJ relied on Plaintiff’s mental status testing to determine that he has mild difficulties with
regard to concentration, persistence, or pace. The record did not show episodes of
decompensation. Id.
While, as discussed above, the ALJ may have overstated Plaintiff’s activities of daily
living, Plaintiff’s mental impairment must cause at least two marked limitations in order to
satisfy the paragraph B criteria. Accordingly, even considering the limitations to daily activities,
the ALJ did not err in determining that the severity of Plaintiff’s somatoform disorder does not
meet Listing 12.07.
2. Listing 12.08
Plaintiff also argues that the ALJ erred in finding that Plaintiff’s condition does not meet
Listing 12.08, pointing to Dr. Truhn’s diagnosis of Personality Disorder NOS. The Court has
found that the ALJ erred in giving this physician’s opinion no weight. However, Listing 12.08
requires Plaintiff to meet the same paragraph B criteria as Listing 12.07, which the ALJ
determined Plaintiff failed to meet. Accordingly, the ALJ’s determination that Plaintiff failed to
show his impairment met the requirements of Listing 12.08 was not in error.
PAGE 19 – OPINION AND ORDER

C. Failure to Credit Plaintiff’s Testimony
Plaintiff argues that the ALJ failed to give clear and convincing reasons for rejecting
Plaintiff’s testimony. After finding that Plaintiff’s medically determinable impairments could
cause the alleged symptoms, the ALJ rejected Plaintiff’s statements concerning the severity of
the symptoms. AR 24. The ALJ found Plaintiff’s testimony concerning the limiting effects of
Plaintiff’s impairment to be “not entirely credible” because of inconsistencies with objective
medical evidence, Plaintiff’s reported activities of daily living, and Plaintiff’s ability to work
past his alleged onset date. AR 24-25.
There is a two-step process for evaluating the credibility of a claimant’s own testimony
about the severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must determine 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 v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When
doing so, “the claimant need not show that her impairment could reasonably be expected to cause
the severity of the symptom she has alleged; she need only show that it could reasonably have
caused some degree of the symptom.” Smolen, 80 F.3d at 1282.
“Second, if the claimant meets this first test, and there is no 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.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
PAGE 20 – OPINION AND ORDER

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
The ALJ may consider objective medical evidence and the claimant’s treatment history,
as well as the claimant’s daily activities, work record, and observations of physicians and third
parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d
at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location,
duration, frequency, and intensity of the individual’s pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other
than medication the individual receives or has received for relief of pain or other symptoms; and
any measures other than treatment the individual uses or has used to relieve pain or other
symptoms. See SSR 16-3p, available at 2016 WL 1119029. The ALJ may not, however, make a
negative credibility finding “solely because” the claimant’s symptom testimony “is not
substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883.
Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary
techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent
statements concerning the symptoms, . . . other testimony by the claimant that appears less than
candid[,] [and] unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment . . . .”9 Smolen, 80 F.3d at 1284. The ALJ’s credibility decision

9

The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making
an overarching credibility determination and instead must assess whether the claimant’s
subjective symptom statements are consistent with the record as a whole. See SSR 16-3p,
available at 2016 WL 1119029 (superseding SSR 96-7p). The ALJ’s January 2014 decision was
issued before SSR 16-3p became effective and there is no binding precedent interpreting this
new ruling including whether it applies retroactively. Compare Ashlock v. Colvin, 2016
WL 3438490, *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ
PAGE 21 – OPINION AND ORDER

may be upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s testimony
are upheld. See Batson,359 F.3d at 1197.
In considering Plaintiff’s testimony about his osteoarthritis symptoms, the ALJ looked at
a total body bone scan, results of a physical exam, and physicians’ observations of Plaintiff in the
medical records. AR 25. Specifically, the ALJ noted that, while Plaintiff had mild radiotracer
activity at the knees and shoulders, medical exams demonstrated Plaintiff retained muscle
strength in the upper and lower extremities bilaterally, and a full range of motion in his
shoulders. AR 25. Plaintiff also had non-tender back, bilateral knee and hip exams, and
physicians observed that Plaintiff had a normal gait, was able to cross his legs easily, and put on
his shoes. AR 25.
Plaintiff argues that the ALJ’s reliance on a lack of objective medical evidence to support
Plaintiff’s subjective pain testimony is misplaced because that is the very nature of Plaintiff’s
somatoform disorder. The ALJ recognized Plaintiff’s somatoform disorder as a severe
impairment, although one not meeting the requirements of Listing 12.07. AR 20, 23. When
somatoform disorder is recognized as a severe impairment, “the lack of objective medical
evidence in support of Plaintiff’s medical complaints does not constitute a clear and convincing
reason for finding Plaintiff’s testimony not credible.” Engelhardt v. Colvin, 2013 WL 3894950
at *4 (D. Or. July 26, 2013).
The ALJ furthered relied on Plaintiff’s activities of daily living and work history to
support a non-credibility finding. AR 25-26. When a claimant’s daily activities “are transferable
to a work setting” or “contradict claims of a totally debilitating impairment,” performance of

decision issued prior to the effective date), with Lockwood v. Colvin, 2016 WL 2622325, *3 n.1
(N.D. Ill. May 9, 2016) (applying SSR 16-3p retroactively to a 2013 ALJ decision). Because the
ALJ’s findings in regard to this issue pass muster irrespective of which standard governs, the
Court need not resolve this issue.
PAGE 22 – OPINION AND ORDER

those activities may serve as a basis for discrediting a claimant. Molina v. Astrue, 674 F.3d 1104,
1112-13 (9th Cir. 2012). Where daily living activities are found to contradict claims of a
disabling condition, the activities must be inconsistent with claimed limitations to be relevant to
a credibility analysis. Reddick, 157 F.3d at 722.
The ALJ noted that Plaintiff’s daily activities include driving, helping with chores,
cooking, shopping, reading, taking walks, and playing with his daughter. AR 25. Plaintiff argues
that the ALJ overstated these activities while ignoring his limitations. In the past two years,
Plaintiff alleges limited ability to do physical activities due to dizziness and weakness. AR 5051, 55. As discussed above, the ALJ’s summary of the record is not an accurate depiction of
Plaintiff’s sporadic activities requiring long periods of rest. These activities are not transferable
to a work setting requiring eight hours days, five days a week. Additionally they do not
contradict Plaintiff’s claimed limitations of only being able to engage in activities for a brief
period, requiring lots of rest. Plaintiff’s daily living activities are therefore not a clear and
convincing reason for discrediting Plaintiff. The ALJ further reasoned that Plaintiff’s
impairments were unlikely to prevent him from working because (1) the impairments did not
prevent Plaintiff from working after the alleged disability onset date, and (2) Plaintiff stopped
working due to the business closing and continued looking for work thereafter. AR 25.
Leaving work for reasons other than the alleged disability is a relevant factor in assessing
credibility. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (considering as a
relevant factor that Plaintiff left work because he was laid off and not because he was injured);
Tommasetti,533 F.3d at 1040 (finding Plaintiff’s claim that his diabetes was disabling was
undermined when it was not the reason Plaintiff stopped working). When a claimant’s work
history undercuts his assertions, the ALJ may rely on that contradiction to discredit the claimant.

PAGE 23 – OPINION AND ORDER

Bruton, 268 F.3d at 828. However, evidence that the plaintiff “tried to work for a short period of
time and, because of his impairments, failed,” without more, “is not sufficient basis for [an]
ALJ’s adverse credibility finding.” Lingenfelter, 504 F.3d at 1036 (emphasis omitted); See also
20 C.F.R. § 404.1592 (stating that a trial work period will not show “that your disability has
ended until you have performed services in at least 9 months.”).
In Lingenfelter, the court found that the plaintiff’s inability to continue part time work for
only nine weeks due to his impairment was not a clear and convincing reason to discount his
testimony. 504 F.3d 1028, 1037 (9th Cir. 2007). Unlike the plaintiff in Lingenfelter, however,
Plaintiff testified to working part time for a significant time after the alleged onset date, and
stopped working when the Eugene branch of the business closed. AR 43-44. Additionally,
Plaintiff continued to look for work after that closure. An ALJ may consider a plaintiff’s
continued search for employment after the alleged onset date in weighing plaintiff’s credibility.
See Bray, 554 F.3d at 1227 (upholding an adverse credibility finding that relied in part on the
plaintiff’s work history and subsequent seeking out of employment). On balance, the ALJ’s
negative credibility determination, which relied in part on Plaintiff’s ability to work part time for
more than a year after the alleged disability onset date, leaving his job due to reasons other than
his disability, and continued search for employment after the business closed is not an irrational
interpretation of the facts. Accordingly, the ALJ’s credibility interpretation must be upheld.
D. Failure to Credit Lay Evidence
The ALJ found that the lay witness testimony of Maria Berggren, Plaintiff’s wife,
supported the ALJ’s RFC determination. AR 27. Plaintiff argues that the ALJ erred by
disregarding portions of lay witness testimony that support Plaintiff’s claim.
“In determining whether a claimant is disabled, an ALJ must consider lay witness
testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454 F.3d 1050, 1053
PAGE 24 – OPINION AND ORDER

(9th Cir. 2006). Lay witness testimony regarding a claimant’s symptoms or how an impairment
affects her ability to work is competent evidence. Id. Thus, an ALJ may not reject such testimony
without comment. Id. In rejecting lay testimony, the ALJ need not “discuss every witness’s
testimony on an individualized, witness-by-witness basis. 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.
An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,
either individually or in the aggregate.” Id. at 1115 (quoting Nguyen, 100 F.3d at 1467
(9th Cir. 1996)). This error may be harmless “where the testimony is similar to other testimony
that the ALJ validly discounted, or where the testimony is contradicted by more reliable medical
evidence that the ALJ credited.” See id. at 1118-19. Additionally, “an ALJ’s failure to comment
upon lay witness testimony is harmless where ‘the same evidence that the ALJ referred to in
discrediting [the claimant’s] claims also discredits [the lay witness’s] claims.’” Id. at 1122
(quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). Where an ALJ ignores
uncontradicted lay witness testimony that is highly probative of a claimant’s condition, “a
reviewing court cannot consider the error harmless unless it can confidently conclude that no
reasonable ALJ, when fully crediting the testimony, could have reached a different disability
determination.” Stout, 454 F.3d at 1056.
The ALJ appears to credit the lay evidence of Ms. Berggren that states that Plaintiff helps
care for their daughter, does household chores, and shops several times a week. AR 27. This
characterization is not entirely accurate. The ALJ appears to ignore Ms. Berggren’s testimony
that Plaintiff can only run an errand for two hours before exhausting himself, cannot focus
enough to read, and must be reminded to bathe and take medication. AR 228-31. Due to

PAGE 25 – OPINION AND ORDER

Plaintiff’s exhaustion, Ms. Berggren states she cannot “imagine that he could last one day at a
job site without fainting, falling, vomiting, or passing out from exhaustion and pain.” AR 228.
An ALJ must read opinion evidence in context. Holohan v. Massanari, 246 F.3d 1195,
1205 (9th Cir. 2001). Therefore, the ALJ’s selective reliance on this lay testimony was in error.
E. Finding that Plaintiff Retains the Ability to Perform Past Work
The ALJ determined that Plaintiff is capable of performing his past work as a fast food
manager or book sales person as it is generally performed. AR 28. Plaintiff argues that
Dr. Truhn’s findings of marked mental limitation show that Plaintiff does not retain the RFC to
perform past work. The previous determination that the ALJ erred in giving no weight to
Dr. Truhn’s opinion may change the outcome of Plaintiff’s RFC analysis, particularly in the
consideration of the limiting effects of Plaintiff’s mental impairments. Therefore, Plaintiff’s
ability to perform past work should be reconsidered in light of the Court’s findings.
F. Remand for Further Proceedings
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246
F.3d 1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to
the agency for additional investigation or explanation, a court has discretion to remand for
immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 10991100 (9th Cir. 2014). 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. Id. at 1100. A court may not award benefits
punitively and must conduct a “credit-as-true” analysis on evidence that has been improperly

PAGE 26 – OPINION AND ORDER

rejected by the ALJ to determine if a claimant is disabled under the Act. Strauss v. Comm’r of
the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The United States Court of Appeals for
the Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. If the court finds such an error, it must next
review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential
factual matters have been resolved. In conducting this review, the
district court must consider whether there are inconsistencies
between the claimant’s testimony and the medical evidence in the
record, or whether the government has pointed to evidence in the
record that the ALJ overlooked and explained how that evidence
casts into serious doubt the claimant’s claim to be disabled. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
appropriate remedy and a reviewing court is not required to credit
claimants' allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
their testimony.
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
marks omitted).
PAGE 27 – OPINION AND ORDER

As explained above, the ALJ failed to provide legally sufficient reasons for discrediting
Dr. Truhn’s opinion and Plaintiff’s wife’s testimony. Failing properly to consider this evidence
may affect Plaintiff’s RFC. The Court finds that outstanding issues remain regarding Plaintiff’s
appropriate RFC, and whether Plaintiff can perform past relevant work or other work that exists
in sufficient numbers in the national economy. Thus, remand for immediate award of benefits is
not appropriate. Upon remand, the ALJ shall appropriately consider Dr. Truhn’s testimony and
the testimony of Ms. Berggren, reevaluate the other credibility determinations if needed, and
formulate a new RFC. Accordingly, this matter is remanded for further proceedings.
CONCLUSION
The Commissioner’s decision that Plaintiff is not disabled is REVERSED and
REMANDED for further proceedings as set forth herein.
IT IS SO ORDERED.
DATED this 2nd day of August, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 28 – OPINION AND ORDER