Williams v. Commissioner Social Security Administration

Filing 26

OPINION AND ORDER: The Commissioner's ultimate decision was not based on substantial evidence and free of harmful legal error. Accordingly, the Commissioner's decision is REVERSED and this case REMANDED for immediate calculation and payment benefits. Signed on 10/23/2017 by Magistrate Judge John Jelderks. (jtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SARA J. WILLIAMS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Richard F. McGinty
McGinty & Belcher, Attorneys
P.O. Box 12806
Salem, OR 97301
Attorney for Plaintiff
Billy J. Williams, U.S. Attorney
Janice E. Hébert, Asst. U.S. Attorney
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204-2902
Kathryn A. Miller
Special Assistant U.S. Attorney
Office of the General Counsel
Social Security Administration
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant

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Civil No.: 6:16-cv-00439-JE
OPINION & ORDER

JELDERKS, Magistrate Judge:
Sara Jane Williams (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and
1381a seeking judicial review of a final decision of the Commissioner of Social Security (“the
Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act
(“the Act”). For the reasons that follow, the Commissioner’s decision is reversed and this
case is remanded for immediate calculation and payment of benefits.
Procedural Background
Plaintiff filed her application for DIB and SSI on June 24, 2011, alleging disability
beginning September 23, 2010. Tr. 233, 240. Plaintiff’s claims were initially denied on October
11, 2011, and those denials were not appealed. Tr. 137, 141. On May 7, 2012, Plaintiff filed new
claims for SSI and DIB, again alleging an onset date of March 23, 2010. Tr. 244, 248. After
Plaintiff’s new claims were denied initially and on reconsideration, a hearing was convened
on October 25, 2013, before Administrative Law Judge (“ALJ”) Andrew Grace. Tr. 33–75,
145, 149. On Plaintiff’s request, a supplemental hearing was held on April 16, 2014.
Tr. 76–85. The ALJ issued a decision on May 2, 2014, finding Plaintiff not disabled. Tr. 17–
32. The decision became the final decision of the Commissioner on January 13, 2016, when the
Appeals Council denied Plaintiff’s subsequent request for review. Tr. 1–3. Plaintiff now
appeals to this Court for review of the Commissioner’s final decision.
Background
Born February 19, 1979, Plaintiff was 31 years old on the initial alleged onset date. Tr.
90, 244. Plaintiff has a 12th grade education and has completed some community college
coursework. Tr. 38– 4 3 . She has past relevant work as a caregiver, sales attendant, and cashier.
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Tr. 24. Plaintiff alleges disability due to fibromyalgia, chronic pain, anxiety, posttraumatic stress
disorder (“PTSD”), and obesity. Tr. 90, 100, 113, 125.
Disability Analysis
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is
disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. The five step sequential
inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir.
1999).
Step One. The Commissioner determines whether the claimant is engaged in substantial
gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not
engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s
case under step two. 20 C.F.R. §§ 404.1520(b), 416.920(b).
Step Two. The Commissioner determines whether the claimant has one or more severe
impairments. A claimant who does not have any such impairment is not disabled. If the claimant
has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant’s
case under step three. 20 C.F.R. §§ 404.1520(c), 416.920(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the
Commissioner next determines whether the claimant’s impairment “meets or equals” one of the
presumptively disabling impairments listed in the Social Security Administration (“SSA”)
regulations. 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that
meets a listing is presumed disabled under the Act. If the claimant’s impairment does not meet or
equal an impairment in the listings, the Commissioner’s evaluation of the claimant’s case
proceeds under step four. 20 C.F.R. §§ 404.1520(d), 416.920(d).
Step Four. The Commissioner determines whether the claimant is able to perform work
he or she has done in the past. A claimant who can perform past relevant work is not disabled. If
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the claimant demonstrates he or she cannot do past relevant work, the Commissioner’s
evaluation of claimant’s case proceeds under step five. 20 C.F.R. §§ 404.1520(f), 416.920(f).
Step Five. The Commissioner determines whether the claimant is able to do any other
work. A claimant who cannot perform other work is disabled. If the Commissioner finds
claimant is able to do other work, the Commissioner must show that a significant number of jobs
exist in the national economy that claimant is able to do. The Commissioner may satisfy this
burden through the testimony of a vocational expert (“VE”), or by reference to the MedicalVocational Guidelines. 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner
demonstrates that a significant number of jobs exist in the national economy that the claimant is
able to do, the claimant is not disabled. If the Commissioner does not meet the burden, the
claimant is disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
At steps one through four of the sequential inquiry, the burden of proof is on the
claimant. Tackett, 180 F.3d at 1098. At step five, the burden shifts to the Commissioner to show
the claimant can perform jobs that exist in significant numbers in the national economy. Id.
The ALJ’s Decision
At the first step of the disability analysis, the ALJ found Plaintiff met the insured status
requirements through September 30, 2015, and had not engaged in substantial gainful activity
since the alleged onset date, March 23, 2010. Tr. 19.
At the second step, the ALJ found Plaintiff had the following severe impairments:
degenerative disc disease, fibromyalgia, obesity, migraines, asthma, PTSD, anxiety, panic
disorder, probable sleep apnea, and right knee degenerative joint disease. Tr. 19.
At the third step, the ALJ found Plaintiff did not have an impairment or combination of
impairments that met or equaled a presumptively disabling impairment set out in the Listings. 20
C.F.R. Part 404, Subpart P, App. 1; Tr. 19–20.
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Before proceeding to the fourth step, the ALJ assessed Plaintiff’s residual functional
capacity (“RFC”). He found Plaintiff retained the capacity to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except she can never climb ladders, ropes or scaffolds;
occasionally climb ramps or stairs, stoop, kneel, crouch and crawl;
frequently balance; frequently reach, handle, and feel bilaterally; should
avoid concentrated exposure to hazards; should have no public contact,
occasional superficial contact with coworkers and occasional contact
with supervisors; and is limited to moderate noise level, defined as the
noise level of a department store or grocery store.
Tr. 21.
At the fourth step of the disability analysis, the ALJ found Plaintiff was unable to
perform any past relevant work. Tr. 24.
At the fifth step, the ALJ found that Plaintiff retained the functional capacity required to
perform jobs that existed in significant numbers in the national economy. Tr. 24. Relying on the
VE’s testimony, the ALJ cited addresser and document preparer as examples of work Plaintiff
could perform. Tr. 25. Based upon the conclusion that Plaintiff could perform such work, the
ALJ found that Plaintiff was not disabled within the meaning of the Act, from March 23, 2010,
through the date of his decision. Tr. 25.
Standard of Review
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). Claimants bear the initial burden of establishing disability. Roberts v.
Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The
Commissioner bears the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841,
849 (9th Cir. 1991), and bears the burden of establishing that a claimant can perform “other
work” at step five of the disability analysis process. Tackett, 180 F.3d at 1099.
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The district court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews,
53 F.3d at 1039. The court must weigh all of the evidence, whether it supports or detracts
from the Commissioner’s decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The
Commissioner’s decision must be upheld, however, even if “the evidence is susceptible to more
than one rational interpretation.” Andrews, 53 F.3d at 1039–40.
Discussion
Plaintiff contends that the ALJ: (1) failed to provide clear and convincing reasons to reject
Plaintiff’s symptom testimony; (2) improperly rejected the medical opinion of Dr. Wang;
(3) improperly credited examining physician Dr. Markus’ opinion over treating physician Dr.
Wang’s opinion; (4) failed to provide germane reasons for rejecting Ms. Madina Williams’ lay
testimony; and (5) improperly evaluated Plaintiff’s obesity.
I. Plaintiff’s Credibility
Plaintiff alleges that the ALJ improperly discounted her testimony. When a claimant has
medically documented impairments that could reasonably be expected to produce some degree of
the symptoms complained of, and the record contains no affirmative evidence of malingering, “the
ALJ can reject the claimant’s testimony about the severity of [her] symptoms only by offering
specific, clear and convincing reasons for doing so.” Garrison v. Colvin, 759 F.3d 995, 1014–15
(9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). Pursuant to SSR
16-3p, 2016 WL 1119029 (Mar. 16, 2016) (superseding SSR 96-7p), the ALJ is no longer tasked
with making an overarching credibility determination, and must assess instead whether a
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claimant’s subjective symptom statements are consistent with the record as a whole. The ALJ’s
decision in this case was issued well before SSR 16-3p became effective and there is an absence
of binding precedent interpreting this new ruling or addressing whether it applies retroactively.
Compare Ashlock v. Colvin, 2016 WL 3438490, *4 n.1 (W.D. Wash. June 22, 2016) (declining to
apply SSR 16-3p to an ALJ 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 retrospectively to a 2013
ALJ decision).
However, SSR 16-3p is a clarification of sub-regulatory policy, rather than a new policy.
SSR 16-3p; also compare SSR 16-3p with SSR 96-7p (both policies set forth a two-step process to
be followed in evaluating a claimant’s testimony and contain the same factors to be considered in
determining the intensity and persistence of a claimant's symptoms). In Kimble v. Berryhill, No.
3:15-cv-01641-JE, 2017 WL 3332256, at *7–8 (D. Or. Aug. 4, 2017), I recently held that, for this
reason, retroactive application of the new SSR is appropriate. See Smolen, 80 F.3d at 1281 n.1
(“We need not decide the issue of retroactivity [as to revised regulations] because the new
regulations are consistent with the Commissioner’s prior policies and with prior Ninth Circuit case
law”) (citing Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993)) (because regulations were
intended to incorporate prior Social Security Administration policy, they should be applied
retroactively). The new SSR clarifies that “subjective symptom evaluation is not an examination
of an individual’s character.”  SSR 16-3p. In other words, “[t]he focus of the evaluation of an
individual’s symptoms should not be to determine whether he or she is a truthful person.” SSR 163p. Rather, “[a]djudicators must limit their evaluation to the individual’s statements about his or
her symptoms and the evidence in the record that is relevant to the individual’s impairments.”
SSR 16-3p. Thus, “it is not sufficient for our adjudicators to make a single, conclusory statement
that ‘the individual’s statements about his or her symptoms have been considered . . . .’” SSR 16  OPINION & ORDER - 7

3p. Instead, the finding “must contain specific reasons for the weight given to the individual’s
symptoms, be consistent with and supported by the evidence, and be clearly articulated so the
individual and any subsequent reviewer can assess how the adjudicator evaluated the individual’s
symptoms.” SSR 16-3p.
In evaluating a claimant’s subjective symptom testimony, an ALJ must consider the entire
record and consider several factors, including the claimant’s daily activities; the location,
duration, frequency, and intensity of the claimant’s pain or other symptoms; medications taken
and their effectiveness; treatment other than medication; measures other than treatment used to
relieve pain or other symptoms; and “[o]ther factors concerning [the individual’s] functional
limitations and restrictions due to pain or other symptoms.” 20 C.F.R. §§ 404.1529(c)(3)(vii),
416.929(c)(3)(vii). If substantial evidence supports the ALJ’s determination, it must be upheld,
even if some of the reasons cited by the ALJ are not correct. Carmickle v. Comm’r of Soc. Sec.,
533 F.3d 1155, 1162 (9th Cir. 2008).
Plaintiff testified that she has pain from her neck into her back, in her arms and hands, as
well as from her hips down her legs. Tr. 44. Plaintiff also reported that she experiences numbness
in her hands and feet. Id. The pain in her hands makes it difficult for Plaintiff to hold things, and
she testified that she often drops things. Tr. 62. Additionally, Plaintiff’s hands get too tired while
reading a book so she uses a computer program that reads to her. Tr. 64. She usually wears flipflops so that she does not have to tie her shoes. Tr. 329. Plaintiff reported that her ability to
concentrate and follow instructions is inhibited by her anxiety. Tr. 332. Plaintiff explained that she
suffers from panic attacks and does not sleep well, which causes fatigue. Tr. 52. Plaintiff also
noted that she can only sit in one position for 5-20 minutes. Tr. 61. Plaintiff testified that on good
days she spends 4-6 hours lying down and on bad days she spends 8-10 hours lying down. Tr. 58.
Furthermore, there are days when Plaintiff is in so much pain that she has to lie down the entire
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day and is unable to get anything done due to her impairments. Tr. 46. She indicated that she
needs a rest after 30 minutes to an hour of activity and she has to take lots of breaks. Tr. 311.
Plaintiff reported that she misses her classes a couple of times per month. Tr. 66. She also
explained that she is late to class three-quarters of the time because it takes her so long to walk
from the parking lot to her class. Tr. 67.
A. Lack of Medical Evidence
The ALJ found that there was a lack of medical evidence supporting Plaintiff’s claims,
concluding that “[e]vidence supports a finding that the claimant has some limitations related to
pain and other symptoms.” Tr. 22 (emphasis added). The ALJ relied on the following medical
evidence in discrediting plaintiff’s subjective symptom testimony: October 2010 x-rays showed
only slight narrowing of the medial compartment; “MRI of the lumbar spine showed very mild
disc desiccation at L4-5 and L5-S1 with very minimal facet hypertrophy at L5-S1”; no “stenosis
or neural impingement was identified”; and she was once informed that “due to obesity, she was
likely to have chronic low back pain and that in the long term her pain would be decreased with
weight loss.” Tr. 22, 441, 678, 693.
Plaintiff argues that although the ALJ listed the above findings, the ALJ never explained
why those findings supported “some limitations” and not other limitations. A general assertion
that the claimant is not credible is insufficient; the ALJ must specify which of Plaintiff’s claims
are not credible and what evidence supports the finding that Plaintiff lacks credibility. See Dodrill
v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The Commissioner argues that the ALJ does not need
to cite “magic words” as long as the “reviewing court can draw specific and legitimate inferences
from his findings.” Def.’s Br. at 9 (citing Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.
1989)). The Commissioner also asserts that the ALJ was sufficiently specific because the ALJ
stated the evidence supported a finding that claimant had “some limitations” and then set “out in
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detail the generally mild unremarkable findings that supported only some limitation.” Def.’s Br. at
9; Tr. 22. Nevertheless, an assertion that the evidence supports a finding of “some limitations”
followed by a list of clinical findings is not sufficiently specific. Dodrill, 12 F.3d at 918 (The ALJ
must “state which . . . testimony is not credible and what evidence suggests the complaints are not
credible.”). Here, the ALJ failed to explain which testimony was not credible.
The ALJ also relied on Dr. Markus’ findings that Plaintiff had normal motor strength in
the upper and lower extremities and  no sensory deficits. Again, it is unclear how these findings
contradict any of Plaintiff’s claims. Plaintiff did not allege sensory deficits and although Plaintiff
claimed that pain in her arms inhibited her ability to hold and carry objects, she never claimed that
she had less than normal motor strength. The ALJ also noted that Dr. Markus reported all 18
classical trigger points for fibromyalgia were positive, but 5 out of 7 control points were also
positive. Tr. 22, 714. The ALJ’s interpretation of these findings is unclear. It appears that the ALJ
was implying that the positive control points undermine Plaintiff’s claims of fibromyalgia;
however, such an assertion is not supported by the record because—despite the positive control
points—Dr. Markus still diagnosed Plaintiff with fibromyalgia. Tr. 714.
The ALJ also noted that Plaintiff is prescribed an inhaler but there was no evidence of
asthma exacerbations. Tr. 668. Plaintiff testified that she was diagnosed with asthma as a child but
currently she is not bothered by it; therefore, the fact that there is no evidence of asthma
exacerbations is consistent with Plaintiff’s testimony. Tr. 55.
Finally, the ALJ relied on Plaintiff’s March 5, 2012, report to her doctor that “she was
feeling well with regard to her fibromyalgia. Tr. 22, 481. The ALJ cited to only one instance in
which Plaintiff stated her fibromyalgia was doing well, and failed to address Plaintiff’s long
history of suffering from fibromyalgia. Tr. 396, 446, 448, 458, 467–68, 602–03, 631, 667, 670–
71, 674–75, 682, 714. In fact, two weeks after Plaintiff stated that she was doing well with
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fibromyalgia, she returned to her doctor complaining of pain due to fibromyalgia and Dr. Wang
referred her to a pain management clinic. Tr. 448. The ALJ may not merely cherry-pick isolated
inconsistencies with the objective medical record to discount a plaintiff’s entire symptom
testimony. Garrison, 759 F.3d at 1017 (citing Holohan v. Massanari, 246 F. 3d 1195, 1205 (9th
Cir. 2001)) (“Cycles of improvement and debilitating symptoms are a common occurrence, and in
such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over
a period of months or years and to treat them as a basis for concluding a claimant is capable of
working.”). Thus, the single instance in which Plaintiff reported her fibromyalgia was doing well
is not a clear and convincing reason to discredit the entirety of her testimony.
To support the ALJ’s finding that Plaintiff’s subjective symptom testimony was not
credible due to a lack of medical evidence, the Commissioner argues that “[a]n EMG study
likewise revealed L5 radiculopathy without evidence of active denervation.” Def’s Br. at 8; Tr.
608. The Commissioner’s argument fails for two reasons. First, the Commissioner’s assertion
constitutes an impermissible post hoc rationalization, as the ALJ did not rely on the EMG study.
See Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (A
reviewing court “cannot affirm the decision of an agency on a ground that the agency did not
invoke in making its decision.”) (internal citations omitted). Second, the results of the study do not
undermine Plaintiff’s claims because the EMG revealed “the left lower extremity demonstrated
significantly increased polyphasia in the L5 related muscles distally consistent with L5
radiculopathy,” and Plaintiff was referred to a neurosurgeon to treat the L5 radiculopathy. Tr. 608,
666. Rather than undermine Plaintiff’s testimony, the EMG study appears to support Plaintiff’s
claims. Therefore, the purported lack of medical evidence is not a clear and convincing reason to
discount Plaintiff’s subjective symptom testimony.

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B. Conservative Treatment
The ALJ further supported his adverse credibility finding with his determination that
Plaintiff received merely conservative treatment. Tr. 22. The ALJ relied in part on Plaintiff never
having sought treatment for sleep apnea. Tr. 22. Notably, Dr. Wang merely reported that Plaintiff
probably had sleep apnea, and there is no evidence anywhere in the record of a medical provider
ever diagnosing Plaintiff with sleep apnea. Tr. 722. Furthermore, Dr. Wang first noted that
Plaintiff probably had sleep apnea in November of 2013, and  the administrative record only
contains Plaintiff’s medical records through 2013; as such, it is not clear whether Plaintiff
subsequently sought treatment. Tr. 722. Thus, Plaintiff’s alleged failure to seek treatment for sleep
apnea does not undermine her subjective symptom testimony.
The ALJ also found that Plaintiff was prescribed Topiragen for migraines in July, 2012,
but in October of that same year, she reported that she was not taking the medication and “[t]here
is no evidence the claimant ever took the prescription medication and recent treatment records do
not reflect any complaints of migraines.” Tr. 22, 602, 667. Plaintiff did not take the prescribed
Topiragen for her migraines, however, she was already taking, and continued to take, other
prescription pain medication. Tr. 454, 603, 667. Although conservative treatment can undermine
allegations of debilitating pain, it “is not a proper basis for rejecting the claimant’s credibility
where the claimant has a good reason for not seeking more aggressive treatment.” Carmickle, 533
F.3d at 1162. Here, Plaintiff suffered adverse side effects from a number of medications, and she
had allergic reactions to several other medications including: Psuedoephrine, Codeine, Sulfa
Drugs, Vicodin, Oxycodone, Cymbalta, and Gabapentin. Tr. 45, 668, 672, 682, 689, 717. The
record also reflects that Plaintiff was experiencing financial hardships and was not able to afford
some of her prescriptions. Tr. 667. Inability to afford treatment is a good reason for not seeking
more aggressive treatment. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Accordingly,
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Plaintiff’s purported conservative treatment is not a clear and convincing reason to discount her
subjective symptom testimony.
Even assuming arguendo that Plaintiff’s conservative treatment regarding migraines and
sleep apnea did constitute a clear and convincing reason to discredit Plaintiff, such would only
impugn Plaintiff’s testimony regarding those particular impairments. As discussed above, SSR 163p makes clear that the “subjective symptom evaluation is not an examination of an individual’s
character.” SSR 16-3p. The ALJ’s credibility determination is limited to the “evidence in the
record that is relevant to the individual’s impairments” and the “focus of the evaluation of an
individual’s symptoms should not be to determine whether he or she is a truthful person.” SSR 163p. Plaintiff alleged disability due to fibromyalgia, chronic pain, anxiety, PTSD, and obesity;
Plaintiff did not claim that her disability was caused by migraines or sleep apnea. Tr. 90. Under
SSR 16-3p, it would be impermissible to find that Plaintiff’s conservative treatment of her
migraines or sleep apnea reduced her credibility regarding fibromyalgia, chronic pain, anxiety,
PTSD, and obesity, because such a finding would be based on a determination of Plaintiff’s
character for truthfulness. Therefore, Plaintiff’s conservative treatment, at most, reduces her
credibility only as to her migraines and sleep apnea, but not her other impairments.
C. Effective Treatment
The Commissioner argues that Plaintiff’s anxiety was treated effectively. Def.’s Br. at 8.
The effectiveness of treatment is a relevant factor in determining the severity of Plaintiff’s
symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The Commissioner also argues that
“Plaintiff did not challenge this finding; thus, any subsequent challenge is waived.” Def.’s Br. at 8
(citing Bray v. Commissioner, 554 F.3d 1219, 1226 n.7 (9th Cir. 2009)). It is not clear, however,
whether the ALJ actually made such a finding. The ALJ did not explicitly find that Plaintiff’s
anxiety treatment was effective. Instead, he merely noted that in July, 2013, Plaintiff had
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undergone therapy to address triggers of anxiety as well as panic and she had been able to use
coping tools to deal with stressors. Tr. 23, 621–22. Those assertions only serve as evidence that
Plaintiff was undergoing treatment, not necessarily that it was effective. Furthermore, even if the
ALJ was implying that Plaintiff had received effective treatment for her anxiety, such an assertion
is not supported by the record. Although Plaintiff’s counselor observed that she had been using
coping tools to deal with stressors, this was not an indication that Plaintiff’s anxiety was totally
under control. In fact, at that point in time, Plaintiff had just experienced a double miscarriage of
twins and her counselor noted that Plaintiff still had high levels of anxiety from “PTSD triggers
and her distress over miscarriages.” Tr. 622. Additionally, Plaintiff had a long history of chronic
anxiety, dating back to at least 2005; her doctors noted that her anxiety was severe, she suffered
from panic attacks, and she had been prescribed several medications over the years. Tr. 393, 395,
449, 458, 460, 551, 594, 603, 625. Moreover, Plaintiff continued to report high levels of anxiety
after July, 2013—the point in time the Commissioner alleges Plaintiff had received effective
treatment. Tr. 621, 722. Therefore, the supposed effective treatment is not a clear and convincing
reason for rejecting Plaintiff’s subjective symptom testimony.
D. Activities of Daily Living
A claimant’s activities of daily living can be used to discredit a claimant in two ways:
either the activities can contradict the claimant’s other testimony, or the activities can meet the
threshold for transferable work skills. Orn, 495 F.3d at 639. Here, the ALJ found Plaintiff not
credible for the first reason, alleging Plaintiff’s activities contradict her other testimony. Tr. 23.
The ALJ found that the treatment record reflects “a more active lifestyle than [Plaintiff] alleges”
and “[h]er allegations that she must lie down most of the day are not consistent with her daily
activities.” Tr. 23. The ALJ’s contention is not supported by the record. Although Plaintiff stated
that she lies down “for the majority of the day if [she] can,” she clarified that on bad days she lies
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down for 8-10 hours and on good days she lies down for 4-6 hours. Tr. 58. Plaintiff’s activities are
not inconsistent with her claim. The ALJ relied on the fact that in January, 2013, Plaintiff was
“seeing her children regularly, was president of her [group home], and was going to school parttime.” Tr. 23. The fact that Plaintiff was “seeing her children regularly” is not incompatible with
Plaintiff lying down much of the day. Additionally, Plaintiff explained that being president of her
group home was actually an easy job that only required her to preside over one weekly meeting
that lasted 45 minutes to an hour. Tr. 59–60. With regard to the community college classes,
Plaintiff was enrolled in only two classes, one of which only met once per week. Tr. 57. Plaintiff’s
small course load and minimal activities are not necessarily inconsistent with her need to lie down
4-6 hours a day, or even 8-10 hours a day.
The ALJ also noted that Plaintiff helped her cousin by driving her around and helping with
a new baby. Tr. 23, 579, 581. The information in the record regarding Plaintiff’s assistance to her
cousin is limited to a few casual remarks made to her counselor. Tr. 579, 581. The extent to which
Plaintiff was assisting her cousin on a day-to-day basis is unclear, and it appears from the record
that such assistance was a temporary arrangement. Indeed, there is no evidence that it lasted for
more than a few weeks. A vague reference to Plaintiff’s ability to “help” her cousin during a short
timeframe is insufficient to discredit Plaintiff’s subjective symptom testimony because
fibromyalgia must be considered on a “longitudinal record,” given that fibromyalgia symptoms
“can wax and wane.” SSR 12-2p; see Garrison, 759 F.3d at 1017 (citing Holohan, 246 F. 3d at
1205) (“Cycles of improvement and debilitating symptoms are a common occurrence, and in such
circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a
period of months or years and to treat them as a basis for concluding a claimant is capable of
working.”).
In addition, the ALJ relied on a comment made by Plaintiff’s counselor that Plaintiff led an
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“active life.” Tr. 23. The Commissioner argues that leading “an active lifestyle, including
cleaning, cooking, walking her dogs, and driving to appointments” undermines credibility. Bray,
554 F.3d at 1227. In Bray, the claimant’s credibility was undermined because she claimed she
suffered from debilitating shortness of breath, but she was able to walk her dogs, worked for two
years as a caregiver, and continued to smoke cigarettes. Id. at 1221, 1227. Here, none of Plaintiff’s
claims are contradicted by her activities. Furthermore, “[t]he mere fact that a plaintiff has carried
on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise,
does not in any way detract from [her] credibility as to [her] overall disability. One does not need
to be ‘utterly incapacitated’ in order to be disabled.” Webb v. Barnhart, 433 F.3d 683, 688 (9th
Cir. 2005) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). Moreover, although
Plaintiff’s counselor stated that Plaintiff “seems to have an active life,” this observation was
primarily based on Plaintiff “helping her cousin.” Tr. 581. As discussed above, Plaintiff’s
assistance to her cousin appears to have been quite short-lived and even during that period, the
extent of Plaintiff’s involvement and activity level is unclear. Thus, Plaintiff’s supposed “active
lifestyle” is not a clear and convincing reason to discredit her testimony.
The ALJ also found that Plaintiff’s ability to attend classes, live with a friend, and serve as
president of her group home, was inconsistent with her claimed “social limitations.” Tr. 23.
However, the fact that Plaintiff was able to go to class, have a roommate, and preside over a 45
minute meeting, is not inconsistent with claims of having some social limitations.
Finally, the Commissioner argues that “if evidence exists to support more than one rational
interpretation, [the court] must defer to the Commissioner’s decision.” Batson v. Comm’r of Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The ALJ pointed to activities that amount to a
few hours per week and alleged that such activities were inconsistent with Plaintiff’s claims about
lying down. Plaintiff testified that she lies down 4-10 hours per day, depending on how she is
  OPINION & ORDER - 16

feeling. Tr. 58. It is unclear how the minimal activities cited by the ALJ would preclude Plaintiff’s
claims. The ALJ’s findings must be supported by substantial evidence in the record. 42 U.S.C. §
405(g); see also Andrews, 53 F.3d at 1039. Here, the ALJ’s finding that Plaintiff’s claims are
contradicted by her activities is not supported by substantial evidence. Accordingly, Plaintiff’s
activities of daily living are not a clear and convincing reason to discount Plaintiff’s subjective
symptom testimony.
E. Unemployment Claim
The ALJ found that Plaintiff claimed unemployment, “indicating she felt able to work.”
Tr. 23. The Commissioner argues that the “[c]ontinued receipt of unemployment benefits does
cast doubt on a claim of disability, as it shows that an applicant holds himself out as capable of
working.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). Although the continued receipt
of unemployment benefits can undermine a claimant’s credibility, here, Plaintiff was merely
applying for benefits. Tr. 578. There is no evidence in the record that Plaintiff ever received
unemployment benefits, in fact, although Plaintiff told her counselor that she was working on
getting unemployment, there is no evidence in the record that Plaintiff ever actually applied.
Furthermore, contrary to the ALJ’s finding, it is clear from the record that Plaintiff did not feel
able to work. Tr. 578 (“[Plaintiff] said she is still working on getting on TANF and has to sign up
for the JOBS program. She has some concern about managing her pain, but did have her doctor
limit her to 10 hours a week.”) Therefore, Plaintiff’s attempt to obtain unemployment benefits is
not a clear and convincing reason to reject her subjective symptom testimony.
F. Attempting to Find Employment
The ALJ found that in October, 2012, Plaintiff reported she was trying to find a job. Tr.
23, 649. However, the mere fact that Plaintiff attempted to find a job is insufficient to discredit
her. Webb, 433 F.3d at 688 (“That [the claimant] sought employment suggests no more than that
  OPINION & ORDER - 17

he was doing his utmost, in spite of his health, to support himself.”) Here, like in Webb, Plaintiff
was just trying to do her best to support herself. In fact, it appears that at the time in question,
Plaintiff was struggling to pay rent. Tr. 649. Thus, Plaintiff’s attempt to find employment is not a
clear and convincing reason to discount her credibility.
II. Evaluation of Medical Opinion Evidence
As noted above, Plaintiff contends that the ALJ improperly rejected the opinion of Dr.
Wang and erroneously credited Dr. Markus’ opinion over Dr. Wang’s. The ALJ is required to
consider all medical opinion evidence and is responsible for resolving conflicts and ambiguities in
the medical testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). In reviewing
the ALJ’s decision, the court does not assume the role of fact-finder, but instead determines
whether the decision is supported by substantial evidence in light of the record as a whole. Matney
v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
The opinions of treating physicians are generally accorded greater weight than the
opinions of non-treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A
treating physician’s opinion that is not contradicted by the opinion of another physician can be
rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.
1991). If, however, a treating physician’s opinion is contradicted by the opinion of
another physician, the ALJ must provide “specific, legitimate reasons” for discrediting the
treating physician's opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Specific,
legitimate reasons for rejecting a physician’s opinion may include its reliance on a claimant’s
discredited subjective complaints, inconsistency with the medical records, inconsistency with a
claimant’s testimony, or inconsistency with a claimant’s activities of daily living. Tommasetti,
533 F.3d at 1040. An ALJ may also “set forth specific, legitimate reasons for crediting one
medical opinion over another.” Garrison, 759 F.3d at 1012.
  OPINION & ORDER - 18

A. Dr. Jeffrey Wang
The ALJ only gave “some” weight to Dr. Wang’s opinion, finding that the “degree of
limitations described is not entirely supported by the medical record, including his treatment
notes.” Tr. 24. The ALJ supported his conclusion, in part, based on his finding that there was no
evidence of complaints of edema and no evidence Dr. Wang recommended that Plaintiff elevate
her legs. Tr. 24. However, the ALJ mischaracterized the record, and the Commissioner concedes
that the “ALJ erroneously concluded there was ‘no evidence of edema’ in Dr. Wang’s treatment
notes and ‘no evidence he recommended elevating the legs in his treatment notes.’ ” Def.’s Br. at
12 (quoting Tr. 24.).
Nevertheless, the Commissioner contends that such error was harmless because the edema
was related to a twisted ankle and resolved shortly thereafter. Def.’s Br. at 12; Tr. 396–97, 458,
460, 483. The Commissioner also mischaracterizes the record. Plaintiff’s edema was not related
to a twisted ankle because the swelling was not contemporaneous. Tr. 398–401 (In October of
2010, Plaintiff fell and twisted her right knee—rather than her ankle. At the time, the doctor noted
that there was “[n]o obvious increased swelling” and Plaintiff did not report swelling until five
months later.). Furthermore, Plaintiff reported edema in both legs. Tr. 289, 394, 396–97, 458. In
addition, the edema did not resolve shortly thereafter, in October, 2011—one year after the injury
to her right knee—Plaintiff reported edema in both legs. Tr. 458. Additionally, in September of
2013, nearly three years after the injury, Dr. Thompson observed edema and joint swelling upon
his examination of Plaintiff. Tr. 718. Dr. Wang has repeatedly recommended that Plaintiff elevate
her legs to reduce her edema. Tr. 396, 458, 702. As recently as October, 2013, Dr. Wang reported
that “elevation helps her edema.” Tr. 702.
The Commissioner further argues that the error was harmless because Plaintiff alleged no
limitation in connection with the edema. However, in crafting the RFC, the ALJ failed to include
  OPINION & ORDER - 19

Dr. Wang’s functional limitation that Plaintiff would need to elevate her legs. Thus, the error was
not harmless.
Next, the ALJ found that the “degree of [Dr. Wang’s] limitations [was] not entirely
supported by the medical record, including his treatment notes.” Tr. 24. However, the ALJ
subsequently contradicted himself, finding that the “exertional limitations [Dr. Wang] describes
are generally supported by the treatment record and are consistent with the residual functional
capacity.” Tr. 24 (emphasis added). The ALJ only specifically addressed one limitation, asserting
that “the record does not support a need for frequent absences or breaks.” Id. The ALJ did not
explain his reasoning or cite to the record, and merely concluded that the record does not support
Plaintiff’s need for frequent absences or breaks. However, the record does support a need for
frequent absences and breaks. On the day that Plaintiff has two classes, she has to go home and lie
down in between classes and Plaintiff has to stop and take breaks when she walks from her car to
the classroom, which often results in her being late to class. Tr. 57, 67–68, 718, 722 (Dr. Wang
determined that Plaintiff was suffering from “debilitating fatigue” and Dr. Thompson observed
that Plaintiff was experiencing joint swelling and extremity weakness.) Plaintiff also testified that
on bad days she needs to lie down for 8-10 hours and she would miss class twice per month due to
her chronic pain and anxiety. Tr. 46, 58, 66, 621, 718 (Dr. Thompson reported that Plaintiff was
suffering from back pain, joint pain, and neck pain. Licensed Professional Counselor (“LPC”)
Bednarz observed that Plaintiff has had problems with “extreme pain” and “a lot of anxiety.”).
Thus, the record does support Plaintiff’s need for frequent absences or breaks.
The ALJ also asserts that Dr. Wang “provide[d] little supporting explanation for the
described limitations.” Tr. 24. Dr. Wang provided some supporting explanations in his initial
response, and he elaborated in his second response. Tr. 701–03, 722–23. Dr. Wang clarified that
Plaintiff’s chronic pain causes “debilitating fatigue” and that Plaintiff’s morbid obesity
  OPINION & ORDER - 20

exacerbates her chronic pain. Tr. 722. Furthermore, Dr. Wang noted that Plaintiff is “easily
overwhelmed with [the] stressors in her life” and she suffers from “chronic anxiety with panic
attacks.” Tr. 722. Additionally, as discussed above, there is ample evidence in the treatment record
supporting Dr. Wang’s limitations. Therefore, the purported lack of support from the medical
record was not a legitimate reason for rejecting Dr. Wang’s opinion.
Finally, the Commissioner asserts that the RFC limitations are “consistent with Dr. Wang’s
opinion that Plaintiff had physical and mental limitations, even though the ALJ did not accept
every aspect of Dr. Wang’s opinions.” Def.’s Br. at 11. However, in professing to adopt an RFC
consistent with Dr. Wang’s opinion, but failing to include Dr. Wang’s precise limitations, the ALJ
effectively rejected the doctor’s opinion. See Kimble, 2017 WL 3332256, at *4 (ALJ erred by
purporting to accept a doctor’s opinion without expressly including the doctor’s proposed
limitation in the RFC);  Bobbitt v. Colvin, No. 3:13-cv-01320-HZ, 2014 WL 2993738, at *9 (D.
Or. Jul. 1, 2014) (same). The Commissioner further argues that the ALJ does not err when he does
not reject evidence, but reasonably interprets it as not supporting a disability finding. Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995). In Orteza, the Court held that the ALJ reasonably
interpreted a doctor’s ambiguous statement. Id. (Holding that the ALJ properly concluded the
doctor’s statement that the claimant could “adapt to a ‘sedentary type job’ ” did not mean that
claimant could only perform “sedentary work.”). Here, however, Dr. Wang left nothing to
interpretation in finding that Plaintiff’s symptoms would cause her to miss four days of work per
month. Tr. 702. Dr. Wang also concluded that on most days, Plaintiff’s symptoms would worsen
over the course of a work day and she would be unable to complete her work. Tr. 702. Dr. Wang
unambiguously concluded that Plaintiff could not perform any work on a regular and continuing
basis. SSR 96-8p (“A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an
equivalent work schedule.”). In order to reject Dr. Wang’s opinion, the ALJ needed to provide
  OPINION & ORDER - 21

specific, legitimate reasons and he failed to do so. Accordingly, the ALJ improperly rejected Dr.
Wang’s medical opinion.
B. Dr. Markus
The ALJ gave great weight to Dr. Markus’ opinion because Dr. Markus had the
opportunity to examine Plaintiff, he noted concerns regarding control point tenderness, his opinion
was consistent with other evidence including the medical records and Plaintiff’s activity level, and
he provided extensive supporting explanations for his assessment. Tr. 23. An ALJ may “set forth
specific, legitimate reasons for crediting one medical opinion over another.” Garrison, 759 F.3d at
1012.
The first reason the ALJ cited for giving great weight to Dr. Markus was that Dr. Markus
had the opportunity to examine the Plaintiff. Tr. 23. This is a confusing reason for giving Dr.
Markus more weight than Dr. Wang, considering Dr. Markus only examined Plaintiff once for
twenty-five minutes, whereas Dr. Wang examined Plaintiff numerous times over the course of at
least five years. Tr. 393–94, 396–97, 445–47, 454–70, 475–77, 602–04. Therefore, the fact that
Dr. Markus had one opportunity to examine Plaintiff, is not a specific, legitimate reason for
crediting Dr. Markus’ opinion over Dr. Wang’s.
The ALJ also gave great weight to Dr. Markus’ opinion because Dr. Markus “noted
concerns regarding control point tenderness.” Tr. 23. This rationale, suggests that Dr. Markus’
opinion received great weight in part because it raised concerns about Plaintiff’s alleged symptom
testimony. Such is not a valid reason for giving great weight to a doctor’s opinion.
The ALJ also noted that Dr. Markus provided “extensive supporting explanations” for his
assessment. However, a review of the record reveals that Dr. Markus merely filled out the
standard Social Security Administration Medical Source Statement check-box form and included
the standard examination report. In the check-box portion of the report Dr. Markus included an
  OPINION & ORDER - 22

additional four sentences of explanation. Tr. 704–09. A close reading of Dr. Markus’ examination
report reveals that it consists almost entirely of a summary of the facts, followed by Dr. Markus’
conclusions. Tr. 710–15. In the entire report, there is only one brief paragraph that could be
characterized as “explanations.” The paragraph explains the fibromyalgia diagnosis, but is
internally inconsistent. Although Dr. Markus diagnosed Plaintiff with fibromyalgia, he then
explained that “today’s exam would not be consistent with classic fibromyalgia.” Tr. 714.
Accordingly, Dr. Markus’ purported “extensive supporting explanations” do not constitute a
specific, legitimate reason for crediting Dr. Markus over Dr. Wang.
Moreover, Plaintiff argues that the ALJ’s reliance on Dr. Markus’ opinion is further called
into question by the fact that Dr. Markus failed to address any of Plaintiff’s impairments aside
from fibromyalgia. Most notably, Dr. Markus failed to diagnose Plaintiff with osteoarthritis in her
knee or with morbid obesity. Pl.’s Br. at 13. Plaintiff had a well-documented history of
osteoarthritis in her right knee, including MRI imaging. Tr. 93, 393, 396, 439–40, 446, 609, 682.
Dr. Markus noted that plaintiff was 5 feet tall and weighed 336 pounds, but failed to diagnose her
morbid obesity. Tr. 712. A BMI of 30.0 or above is considered obese and based on Plaintiff’s
height and weight she had a BMI of 65.61. SSR 02-1p; 20 C.F.R. Part 404, Subpart P, Appendix
1, § 5.G.2.b.
Additionally, Plaintiff alleges that Dr. Markus’ clinical findings do not support his
conclusion with regard to Plaintiff’s handling and fingering limitations. Dr. Markus observed that
“several minutes” of repetitive activities with her hands resulted in increased pain, a “significant
slowing” of Plaintiff’s activities, and increased weakness. Tr. 713. Therefore, Plaintiff argues, Dr.
Markus’ conclusion that Plaintiff could frequently handle and finger, which would require 20-40
minutes per hour of bilateral hand activity, was not supported by his clinical findings. See
DICTIONARY

OF

OCCUPATIONAL TITLES, (4th ed. 1991) Appendix C. The VE did indicate that a

  OPINION & ORDER - 23

“frequent” limitation regarding handling and fingering would allow for gainful employment,
however, an “occasional” limitation would preclude gainful employment. Tr. 82. Although, Dr.
Markus’ conclusion that Plaintiff can frequently handle and finger does appear to be inconsistent
with the doctor’s clinical findings, the Commissioner is correct that the reviewing court may not
reweigh the evidence and rewrite the limitation as “occasional” instead of “frequent.” See Batson,
359 F.3d at 1193. Nevertheless, the inconsistency in Dr. Markus’ opinion undermines the ALJ’s
decision to credit Dr. Markus’ opinion over Dr. Wang’s.
The ALJ also gave Dr. Markus’ opinion great weight because it was consistent with the
medical evidence in the record and Plaintiff’s activities. Tr. 24. Dr. Markus concluded that
Plaintiff could sit eight hours, stand four hours, and walk four hours of an eight-hour day. Tr. 22–
23, 714. Nothing in the medical record indicates that Plaintiff was capable of such sustained
activities. With regard to standing and walking, Plaintiff experiences pain in her right knee due to
osteoarthritis, that pain is worsened by walking, and she struggles to walk for even short distances.
Tr. 67–68, 682. Furthermore, Plaintiff suffers from “debilitating fatigue” and has been diagnosed
as morbidly obese. Tr. 397–98, 458, 468–69, 470, 672, 682, 722. There is no evidence in the
record that Plaintiff engages in any activities that would require her to be on her feet for four
hours in a day. With regard to sitting, Plaintiff’s uncontradicted testimony is that she struggles to
sit even for the duration of one class period. She is only able to get through it because it is broken
up by 1-2 breaks that are 10-15 minutes long, the students get up and move around sometimes
during class, she has a special ergonomic chair prescribed by her doctor, and she is able to put her
feet up. Tr. 56–57, 65–66, 665. Plaintiff could not even get through the hearing without needing to
stand up for a while. Tr. 55. Additionally, Plaintiff is not able to sit in the same position for more
than 15-20 minutes. Tr. 61, 320. On days that Plaintiff has two classes, she has to go home and lie
down in between classes. Tr. 57. The ALJ’s assertion that Dr. Markus’ opinion is consistent with
  OPINION & ORDER - 24

the medical evidence and Plaintiff’s activities is not supported by the record, and therefore, is not
a specific, legitimate reason for crediting Dr. Markus’ opinion over Dr. Wang’s. Thus, the ALJ
improperly credited Dr. Markus’ opinion over Dr. Wang’s.
III. Lay Testimony
Plaintiff assigns error to the ALJ’s evaluation of the lay testimony of Ms. Madina
Williams, Plaintiff’s aunt. Lay witness testimony regarding the severity of a claimant’s symptoms
or how an impairment affects a claimant’s ability to work is competent evidence that an ALJ must
take into account. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill, 12 F.3d
at 918–19). In order to reject such testimony, the ALJ must provide “reasons germane to each
witness.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). “Further, the reasons ‘germane to
each witness’ must be specific.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (citation
omitted).
The ALJ found that Ms. Madina Williams’ testimony was “partially credible” and gave it
“some weight,” but the ALJ determined that the “severity described was not fully supported by the
record.” Tr. 23. The ALJ also found that her statements appeared to be primarily based on
Plaintiff’s self-report of symptoms which were not fully credible. Tr. 23. The ALJ never
articulated which parts of Ms. Madina Williams’ testimony were credible and which were not.
The Commissioner asserts that the ALJ need only provide “arguably germane reasons” to reject
lay testimony and that the ALJ does not need to “clearly link his determinations to those reasons.”
Lewis, 236 F.3d at 512. In Lewis, the ALJ specifically cited to several instances where the
witness’s testimony was inconsistent with the claimant’s testimony, whereas here, the ALJ failed
to specify in what way the record did not support Ms. Madina Williams’ testimony. Id.
Furthermore, rejecting lay witness testimony about symptom severity merely because it is not
supported by the medical record “violates SSR 88-13, which directs the ALJ to consider the
  OPINION & ORDER - 25

testimony of lay witnesses [even] where the claimant’s alleged symptoms are unsupported by her
medical records.” Smolen, 80 F.3d at 1289; see SSR 88-13. Therefore, the ALJ erred in rejecting
Ms. Madina Williams’ lay testimony.
The Commissioner argues that the error was harmless because Ms. Madina Williams’
testimony was similar to Plaintiff’s. Where the ALJ has provided clear and convincing reasons for
rejecting the claimant’s symptom testimony, and the lay witness has not described limitations
beyond those alleged by the claimant, the failure to provide germane reasons for rejecting
the lay testimony may be harmless error. Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012).
Here, the ALJ failed to provide clear and convincing reasons to reject Plaintiff’s symptom
testimony, as such, the error in rejecting Ms. Madina Williams’ testimony was not harmless.
IV. Evaluation of Plaintiff’s Obesity
Plaintiff alleges that the ALJ erred in evaluating her obesity. To comply with SSR 02-1p
the ALJ must have “consider[ed] the effects of [the claimant’s] obesity not only under the listings
but also . . . at other steps of the sequential evaluation process, including when assessing an
individual’s residual functional capacity.” SSR 02-1p. Here, the ALJ did not address Plaintiff’s
obesity in the context of the RFC. The Commissioner asserts that the ALJ’s RFC finding took into
account Plaintiff’s obesity by limiting her to sedentary work; however, the ALJ did not articulate
such a rationale. The Commissioner next argues that any error was harmless because Plaintiff did
not point to any specific obesity-related functional limitations that the ALJ should have included
in the RFC. Nevertheless, the Social Security Regulations provide that the Commissioner must
“also consider the possibility of coexisting or related conditions, especially as the level of obesity
increases.” SSR 02-1p. Here, Plaintiff was morbidly obese, weighing upwards of 330 pounds with
a BMI ranging from 54-65, and Dr. Wang noted that Plaintiff’s obesity “exacerbates” her other
impairments. Tr. Tr. 397–98, 458, 468–69, 470, 672, 682, 712, 722. Had the ALJ properly
  OPINION & ORDER - 26

considered Plaintiff’s obesity, he may have found that it would have increased the severity of her
other impairments.
The Social Security Regulations additionally provide that “[O]ur RFC assessments must
consider an individual’s maximum remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a
day, for 5 days a week, or an equivalent work schedule. In cases involving obesity, fatigue may
affect the individual’s physical and mental ability to sustain work activity.” SSR 02-1p. Here, Dr.
Wang determined that Plaintiff’s combined impairments would impede her ability to do sustained
work activities; specifically, she would be absent four days per month and most days she would be
unable to work for a full eight hours. Tr. 702. The ALJ, in his RFC determination, failed to
consider how Plaintiff’s obesity could have impacted her ability to do sustained work activities.
Thus, the error was not harmless because it cannot be said that the error was “inconsequential to
the ultimate nondisability decision.” Molina, 674 F.3d at 1115.
V. Remand
A reviewing court has discretion to remand an action for further proceedings or for a
finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th
Cir. 1985). Whether an action is remanded for an award of benefits or for further proceedings
depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th
Cir. 2000).
In determining whether an award of benefits is warranted, the court follows the “three-part
credit-as-true standard.” Garrison, 759 F3d at 1020. Under this standard the court considers
whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2) the
record has been fully developed and further administrative proceedings would serve no useful
purpose, and (3) if the improperly discredited evidence were credited as true, the ALJ would be
  OPINION & ORDER - 27

required to find the claimant disabled on remand. Id. If a court concludes that a Plaintiff meets the
three criteria of the credit-as-true standard, then the improperly discredited evidence is credited as
true and remand for an award of benefits is appropriate unless “the record as a whole creates
serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social
Security Act.” Id. at 1021 (citations omitted).
Here, the first requisite is met. As discussed above, I conclude that the ALJ failed to
provide legally sufficient reasons for rejecting evidence and that his decision contained errors of
law. As to the second requisite, on this record, I find that the record is fully developed and further
administrative proceedings would serve no useful purpose. To determine whether the record is
fully developed, the court looks to whether there are “significant factual conflicts in the record
between [the claimant’s] testimony and objective medical evidence.” Treichler v. Commissioner
of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (emphasis added). Here, although the
ALJ relied on Dr. Markus’ opinion in finding that Plaintiff was capable of sedentary work, Dr.
Markus only considered Plaintiff’s fibromyalgia and did not assess the effects of Plaintiff’s other
impairments. Dr. Wang was Plaintiff’s treating physician for over five years and he provided a
comprehensive assessment of Plaintiff’s abilities based on the combined effects of all her
impairments, including: morbid obesity, chronic pain, right knee osteoarthritis, chronic anxiety,
PTSD, panic disorder, and fibromyalgia. Tr. 393–94, 396–97, 445–47, 475–77 454–70, 602–04,
702, 722.
Furthermore, Dr. Wang’s opinion is consistent with treating physician Dr. Thompson’s
opinion, which noted that Plaintiff was suffering from back pain, joint pain, joint swelling,
extremity weakness, and anxiety. Tr. 718. Dr. Wang’s opinion is also consistent with the
observations of treating Physician’s Assistant Erik Bates, who noted Plaintiff’s morbid obesity,
and treating counselor Bednarz who reported Plaintiff’s struggles with anxiety, panic attacks, and
  OPINION & ORDER - 28

PTSD. Tr. 400–01, 472, 622, 625. Additionally, Dr. Wang’s opinion is consistent with Plaintiff’s
testimony as well as Ms. Madina Williams’ lay testimony. Dr. Wang determined that Plaintiff
would miss four days of work per month due to her combined impairments; however, Dr. Markus
did not address whether Plaintiff’s impairments would cause her to be absent from work. Tr. 702,
704–15. The crucial question is the extent to which Plaintiff’s combined impairments would
interfere with her ability to sustain work activities on a “regular and continuing basis.” SSR 96-8p.
Accordingly, further administrative proceedings would not serve “a useful purpose” because the
“crucial questions” have been resolved. See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir.
2015); Treichler, 775 F.3d at 1101, 1105. Thus, there is no significant conflict between Plaintiff’s
testimony and the objective medical record. Treichler, 775 F.3d at 1105.
As to the third requisite, if the discredited evidence were credited as true, the ALJ would
be required to find Plaintiff disabled on remand because Dr. Wang determined that Plaintiff would
miss four days of work per month and the VE testified that “[a] person who would miss two or
more days per month on a consistent basis would be precluded from gainful activity.” Tr. 72, 702.
If a court concludes, as in this case, that a Plaintiff meets the three criteria of the credit-astrue standard, the improperly discredited evidence is credited as true and remand for an award of
benefits is appropriate unless “the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d at
1020–21 (citations omitted). Here, considering the record as a whole, I conclude that there is no
reason for serious doubt as to whether Plaintiff is disabled. See Id. at 1021. As such, I have no
reservation crediting the erroneously discredited testimony as true and remanding this case for
immediate calculation and payment of benefits.

  OPINION & ORDER - 29

Conclusion
For the reasons discussed above, the Commissioner’s ultimate decision was not based on
substantial evidence and free of harmful legal error. Accordingly, the Commissioner’s decision is
REVERSED and this case REMANDED for immediate calculation and payment benefits.
DATED this 23rd day of October, 2017
/s/ John Jelderks
John Jelderks
U.S. Magistrate Judge

  OPINION & ORDER - 30