Chism v. Commissioner Social Security Administration
For the reasons stated, the decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner pursuant to Sentence Four, 42 U.S.C. § 405(g) for further proceedings as directed in this Opinion and Order. IT IS SO ORDERED. DATED this 7th day of December, 2017, by United States Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
LEAH SUE CHISM,
Case No. 6:16-cv-01106-AC
OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
ACOSTA, Magistrate Judge:
Leah Sue Chism ("plaintiff') seeks judicial review of the final decision of the Commissioner
of the Social Security Administration ("Commissioner") denying her application for Disability
Insurance Benefits ("DIB"). Because the Commissioner's decision is not supported by substantial
evidence, her decision is REVERSED and REMANDED for further proceedings.
Page 1 - OPINION AND ORDER
Plaintiff filed her application for DIB on May 16, 2012, alleging disability beginning
December 22, 2011. (Tr. 86-87.) The Commissioner denied her application initially and upon
reconsideration. (Tr. 112-14, 121-25.) Plaintiff requested a hem'ing before an Administrative Law
Judge ("ALJ"), and an administrative hem'ing was held on September 17, 2014. (Tr. 38-85,
126-27.) After the hearing, the ALJ issued a decision finding plaintiff not disabled dated October
31, 2014. (Tr. 20-37.) The Appeals Council denied plaintiffs subsequent request for review on
April 20, 2016, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-7.) This
Born in Janumy, 1977, plaintiff was 37 years old at the time of the administrative hem'ing.
(Tr. 38, 100, 203.) She graduated high school and has past relevant work experience as a laser
technician, central supply worker, and health club manager. (Tr. 31, 65, 99, 239, 243-45.) Plaintiff
alleges disability due to multiple chemical sensitivity, mixed connective tissue disease, and a head
injury resulting in traumatic brain injury. (Tr. 87, 100.)
The 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. Hammockv. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to suppott a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NL.R.B., 305 U.S. 197, 229
The comt must weigh "both the evidence that suppotts and detracts from the
Page 2 - OPINION AND ORDER
[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where
the evidence as a whole can support either a grant or a denial, [a court] may not substitute [its]
judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
The initial burden of proofrests upon the claimant to establish disability. Howardv. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not less
than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five step sequential process for determining whether a
person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the
Commissioner determines whether the claimant is engaged in "substantial gainful activity." Yuckert,
482 U.S. at 140; 20 C.F.R. § 404.1520(b). Ifso, she is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe
impairment or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F .R. § 404.1520(c).
If the claimant does not have a severe impairment, she is not disabled.
At step tlu·ee, the Commissioner determines whether the claimant's impairments, either
individually or in combination, meet or equal "one of a number of listed impairments that the
[Commissioner] aclmowledges are so severe as to preclude substantial gainful activity." Yuckert,
482 U.S. at 141; 20 C.F.R. § 404.1520( d). If so, she is presumptively disabled; if not, the
Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
Page 3 - OPINION AND ORDER
At step four, the Commissioner dete1mines whether the claimant can still perform "past
relevant work." 20 C.F.R. § 404.1520(f). If the claimant can perform past relevant work, she is not
disabled; if she cannot, the burden shifts to the Commissioner.
At step five, the Commissioner must establish the claimant can perform other work existing
in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §
404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §
The ALJ's Findings
The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found plaintiff had
not engaged in substantial gainful activity since her alleged onset date. (Tr. 25.) At step two, the
ALJ concluded plaintiff had the severe impairment of a respiratory disorder. (Id) At step three, the
ALJ determined plaintiff did not have an impairment or combination of impairments that met or
medically equaled a listed impairment. (Tr. 26.)
The ALJ dete1mined plaintiff had the residual functional capacity ("RFC") to perfo1m "a full range
of work at all exertional levels," but with the following limitations:
She should not climb ladders, ropes or scaffolds. She should avoid
concentrated exposure to extreme heat, humidity, and hazards. She
should avoid even moderate exposure to pollutants.
(Id.) At step four, the ALJ found plaintiff was able to perform her past relevant work as a laser
technician, central supply worker, and health club manager. (Tr. 31.) By finding plaintiff was able
to do past relevant work, the ALJ determined plaintiff was not disabled; therefore, the ALJ did not
proceed to step five. 20 C.F.R. §§ 404.1520(a)(4); 404.1520(f).
Page 4 - OPINION AND ORDER
Plaintiff alleges the ALJ erred by: (1) failing to provide a clear and convincing reason to
reject her subjective symptom testimony; (2) improperly rejecting the medical opinions in the record;
(3) improperly rejecting the lay testimony of Thomas Chism; (4) failing to find plaintiffs obesity
and multiple chemical sensitivity to be medically determinable impairments; and (5) failing to find
plaintiffs mixed connective tissue disease and traumatic brain injury to be severe impairments.
Plaintiffs Subjective Svmptom Testimony.
Plaintiff argues that this case must be remanded because the ALJ discredited plaintiff without
providing a specific, clear and convincing reason for doing so. Plaintiffs Motion for Summary
Judgment 16-20 (ECF No. 16) ("Pl.'s Br.").
If "there is 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.' " Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)
(quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that
the claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible
and what evidence suggests the complaints are not credible." Dodrill v. Sha/ala, 12 F.3d 915, 918
(9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court
to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a,
50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
Examples of clear and convincing reasons include conflicting medical evidence, effective
medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or
between his testimony and his conduct, daily activities inconsistent with the alleged symptoms, a
Page 5 - OPINION AND ORDER
sparse work history, testimony that is vague or less than candid, and testimony from physicians and
third parties about the nature, severity and effect of the symptoms complained of. Tommasetti, 533
F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997).
The ALJ found plaintiffs subjective symptom testimony "not fully credible" because:(!)
plaintiff had a history of conservative treatment; (2) there was a lack of medical evidence to suppo1i
plaintiffs allegations; (3) plaintiff exaggerated her symptoms and limitations; (4) plaintiffs
activities of daily living were inconsistent with her alleged symptoms; and (5) plaintiff used a nonprescribed respiratory aide.
First, the ALJ discredited plaintiffs symptom testimony because he found that plaintiff had
a history of conservative treatment. (Tr. 29.) Evidence of conservative treatment "is sufficient to
discount a claimant's testimony regarding the severity of an impairment." Parra v. Astrue, 481 F .3d
742, 751 (9th Cir. 2007). The ALJ noted that "despite her alleged impairments, plaintiff testified
that "[n]ot one doctor has prescribed [her] with anything for anything." (Tr. 29, 56.) The ALJ also
found that despite claiming multiple chemical sensitivity, plaintiff "has not seen an immunologist
or allergy specialist to do an allergy test." (Tr. 29.) Plaintiff argues that she could not take
medications because ofher multiple chemical sensitivity. However, other than plaintiffs claim that
she avoids medications because she has "some allergic reactions" to "high doses" and her claim that
she has had allergic reactions to dyes, there is no evidence in the record that she cannot take
medications. (Tr. 438, 443.) Indeed, the record reveals that plaintiff has no documented allergies
Page 6 - OPINION AND ORDER
to medications. (Tr. 329.) (Treatment notes reflect that plaintiff has no known drug allergies.); (Tr.
435.) (same); (Tr. 631.) ("No reported drug allergies.")
Plaintiff further argues that she had been prescribed medications in the past. Although
plaintiff once was prescribed Meclizine for dizziness and Hydroxyzine for itching, this revelation
hardly serves to bolster plaintiffs credibility, considering it was plaintiff who testified she had never
been prescribed "anything for anything." (Tr. 56, 333, 473.) Furthermore, conservative treatment
can be demonstrated through a failure to seek aggressive treatment. Tommasetti, 533 F.3d at 1039.
Such common, minimally invasive medications for dizziness and itching are not indicative of
aggressive treatment for allegedly disabling multiple chemical sensitivity.
Plaintiff finally argues that she was receiving sufficiently aggressive treatment from
Naturopathic Doctor ("N.D.") Robel.
Plaintiff explained that her daily supplements, dietary
restrictions, and unprescribed air filter device are sufficient for treating her symptoms. Pl.'s Br.
17-19. However, a favorable response to such minimal treatment is consistent with conservative
treatment. Tommasetti, 533 F.3d at 1040. Moreover, plaintiff contends that nothing can be gained
from seeing an allergist because her multiple chemical sensitivity merely results in allergy-like
reactions and she has gotten relief from her air filter. Pl.' s Br. 18-19.
For these reasons, the ALJ appropriately identified plaintiffs conservative treatment as a
valid reason to discredit plaintiffs symptom testimony.
Lack of Medical Evidence.
Next, the ALJ found there was a lack of objective medical evidence to suppmt plaintiffs
alleged impairments. The ALJ noted that plaintiff alleged back pain, severe arthritis, and the need
to lie down for the remainder of the day after standing two hours. The ALJ found plaintiffs
Page 7 - OPINION AND ORDER
allegations were not well suppmted because Dr. Ho observed normal gait, full muscle strength, and
no evidence of muscle spasms; Dr. Wei observed normal strength and reflexes; and Dr. Ito observed
intact coordination and full power in the upper and lower limbs. (Tr. 28-29.) However, a normal
gait, full muscle strength, and normal reflexes are not necessarily inconsistent with plaintiffs alleged
back pain, aithritis, and fatigue. Furthermore, plaintiffs claims of fatigue were supported by Dr.
Ho's finding that plaintiffs ability to stand and walk was limited by fatigue. (Tr. 406.)
The ALJ also found plaintiff alleged difficulty concentrating and poor memmy, but her
cognitive testing indicated she had average intellectual functioning and good verbal and non-verbal
skills. (Tr. 29, 266, 270-71, 412.) The ALJ further noted that the consultative psychological
examiner found plaintiff had no memory deficits or impairments. (Tr. 29, 411-12.) However,
plaintiffs average intellectual functioning and good verbal skills do not meaningfully address her
concentration or memory. Fmthermore, the ALJ ignored both of plaintiffs Trails scores, which fell
outside the normal range to a significant degree. (Tr. 413.) The ALJ also failed to note Dr. Toews's
findings that plaintiffs working memory was in the "Low Average range" and that her thinking is
"scattered and loose." (Tr. 410-11.) The ALJ also failed to address Dr. Ho's determination that
plaintiff has "memory loss and concentration problems." (Tr. 406.) Therefore, medical evidence
in the record supports plaintiffs claims that she has difficulty concentrating and poor memory.
The ALJ additionally found that plaintiff alleged constant swelling in her hands, but treating
Family Nurse Practitioner ("FNP") Galey reported plaintiffs hands had normal range of motion,
normal sensation, and no swelling. (Tr. 28-29, 462.) Indeed, despite plaintiffs repmt that her hands
were constantly swollen, it appears that none of her medical providers ever observed swelling in her
Page 8 - OPINION AND ORDER
Plaintiff urges that it is improper for the ALJ to reject subjective symptom testimony solely
because it is not fully supported by the objective evidence. Pl.' s Br. 19 (citing Rollins v. Massanari,
261F.3d853, 856 (9th Cir. 2001)). Although, a lack of medical evidence cannot serve as the sole
reason for discrediting plaintiffs testimony, "it is a factor that the ALJ can consider in his credibility
analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Furthermore, here, the ALJ did
not reject plaintiffs symptom testimony solely based on lack of support, because plaintiffs claims
of swollen hands, in addition to lacking support, were directly contradicted by the medical record.
(Tr. 462.) Therefore, the ALJ appropriately considered plaintiffs unsupported allegations about
hand swelling in making his credibility determination.
Next, the ALJ discredited plaintiffs symptom testimony because he found the "record
includes evidence suggesting the claimant exaggerated symptoms and limitations." (Tr. 30.)
Plaintiffs exaggerated statements constitute a clear and convincing reason for rejecting her
subjective symptom testimony, because in making a credibility determination the ALJ may consider
inconsistent statements and other testimony that appears less than candid. Smolen, 80 F.3d at 1284.
The consultative psychological examiner determined that plaintiffs answers on the MMPI-2 exam
suggested, "she may have ve1y deliberately sought out and endorsed the most highly wmsual
psychopathological items purposely."
Dr. Toews concluded the "profile is not
interpretable" and "[i]t may be suggestive of malingering." (Id.). Dr. Toews even added a note in
his report, stating "it raises questions of her credibility." (Id.)
Plaintiff correctly notes that unless an ALJ makes a finding of malingering, the ALJ can
discredit plaintiffs testimony only for clear and convincing reasons. Garrison v. Colvin, 759 F.3d
Page 9 - OPINION AND ORDER
995, 1014-15 (9th Cir. 2014). However, the fact thatthe ALJ did not make afinding of malingering
does not mean plaintiffs documented symptom exaggeration is not a clear and convincing reason
for rejecting plaintiffs symptom testimony. An ALJ may discredit for testimony "that appears less
than candid," and here, Dr. Toews determined that plaintiffs responses appeared less than candid.
Smolen, 80 F .3d at 1284 (Tr. 413.) Thus, the ALJ' s rationale is valid.
Activities ofDaily Living.
Next, the ALJ found that plaintiffs "daily activities are not limited to the extent one would
given the complaints of disabling symptoms and limitations."
Activities of daily living that conflict with a claimant's testimony can provide a clear and convincing
reason for rejecting the claimant's credibility. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir.
2012). After reciting a general finding that plaintiffs activities are not as limited as would be
expected, the ALJ merely listed plaintiffs activities, including: travelling on foot, shopping in stores
once a month, preparing meals, knitting, occasionally going door-to-door to discuss the Bible, and
independently performing basic self-care. (Tr. 29, 268-70, 410.) In order to properly discredit a
claimant, "[t]he ALJ must state specifically which symptom testimony is not credible and what facts
in the record lead to that conclusion." Smolen, 80 F.3d at 1284 (citing Dodrill, 12 F.3d at 918).
Here, the ALJ never indicated which symptom testimony was contradicted by plaintiffs activities.
Therefore, the ALJ's finding was insufficient as a matter oflaw.
Use of a Non-Prescribed Aide.
Finally, the ALJ considered plaintiffs use of a motorized environmental air filter device
which was not prescribed. Plaintiff wore the device at her hearing and at every appointment with
her doctors. (Tr. 50-52, 329, 338, 402, 408, 435, 439, 443, 462, 632.) In discrediting a plaintiffs
Page 10 - OPINION AND ORDER
testimony, an ALJ may consider the use of a non-prescribed aide, such as a wheelchair or a cane.
See Chaudhry v. Astrue, 688 F.3d 661, 671-72 (9th Cir. 2012). Plaintiff argues that the use of the
respirato1y device should not be a reason to discredit her symptom allegations because she was
diagnosed with multiple chemical sensitivity. Plaintiffs Reply Brief 10 (ECF No. 25) ("Pl.' s Reply
Br."); Tr. 406.) Although plaintiff was diagnosed with multiple chemical sensitivity, the doctor who
diagnosed her neither prescribed nor recommended the use of the air filter. The plaintiff further
argues that because the ALJ included in the RFC a limitation to avoid "even moderate exposure to
pollutants" the ALJ should not discredit plaintiff for using the air filter. Pl. 's Reply Br. 10; (Tr. 26.).
The fact that the ALJ indicated plaintiff should avoid moderate exposure to pollutants, does not
mean the ALJ accepted that plaintiffs air filtration device was necessmy. Notably, the ALJ did not
include a limitation requiring accommodation of such a device. Therefore, the ALJ did not e11' by
considering plaintiffs use of a non-prescribed aide in making the credibility dete1mination.
Although the court does not find plaintiffs activities of daily living to be a clear and
convincing reason for rejecting plaintiffs symptom testimony, this error is hannless because
plaintiffs conservative treatment, exaggerations about symptoms, use of an unprescribed aide, and
the lack of medical evidence, constitute clear and convincing reasons to discredit
plaintiffs symptom testimony. See Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1197 (9th
Cir. 2004) (the ALJ's overall credibility decision may be upheld even if not all of the ALJ's reasons
for rejecting the claimant's testimony are upheld.) In sum, the ALJ provided clear and convincing
reasons for discrediting plaintiffs symptom testimony.
Page 11 - OPINION AND ORDER
Medical Opinion Evidence.
Plaintiff argues the ALJ erred in rejecting the medical opinion evidence of Dr. Marie Ho,
Dr. Jay Toews, and Heidi Robel. Pl.'s Br. 06-12.
Acceptable Medical Opinions.
An ALJ may reject the uncontradicted medical opinion of a treating or examining physician
only for "clear and convincing" reasons supported by substantial evidence in the record. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th
Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or examining doctor by
providing "specific and legitimate reasons that are supported by substantial evidence." Id.
Dr. Marie Ho, Examining Physician.
Dr. Ho issued a medical opinion on September 22, 2012, based on her clinical examination
of plaintiff and her review of plaintiffs medical records. (Tr. 401-07.) In her repmi, Dr. Ho opined
plaintiff had the following limitations: (1) she could only stand or walk for a maximum of three to
four hours of an eight-hour workday; (2) could only sit for a maximum of four hours of an eight-hour
workday; (3) was limited to lifting a maximum of 10 pounds; (4) and was precluded from working
around chemicals, dust, fumes, and gases. (Id.) Dr. Ho additionally noted plaintiff had a history of
traumatic brain injury which caused memmy loss and concentration problems and could "limit her
ability to function in the workplace." (Tr. 406.)
The ALJ gave Dr. Ho's opinion little weight based on his finding that it was "inconsistent
with the doctor's clinical findings" and his determination that it "appear[ ed] the doctor relied heavily
on the claimant's subjective repmi of symptoms and limitations, which are not fully credible for the
reasons stated in this decision." (Tr. 30.)
Page 12 - OPINION AND ORDER
In her clinical findings, Dr. Ho noted there was no evidence oflumbar parave1tebral muscle
spasms or tenderness, joint deformities, crepitus, effusion or trigger points. (Tr. 30, 405.) Dr. Ho
also noted plaintiff had full muscle strength, intact sensation, and normal reflexes. (Tr. 30, 405.)
The opinion of an examining doctor, "even if contradicted by another doctor, can only be rejected
for specific and legitimate reasons that are supported by substantial evidence in the record." Lester,
81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). Here, the ALJ
merely summarized Dr. Ho's opinion, listed some of the clinical findings, and asserted there were
inconsistencies; however, he failed to specify what was inconsistent. (Tr. 30.) Furthermore, none
of the clinical findings cited by the ALJ contradict Dr. Ho's opinion. Dr. Ho noted that plaintiffs
standing, walking, and sitting limitations were "due to fatigue." (Tr. 406.) As plaintiff points out,
Dr. Ho's opinion was "not based on [plaintiffs] strength, reflexes, or the presence or absence of
muscle spasms or tenderness, which is what the ALJ recites as reasons to disregard her findings."
Pl's Br. 07; (Tr. 30.) Thus, the purported inconsistency with her clinical findings was not a
legitimate reason for rejecting Dr. Ho's opinion.
When doctors' "opinions are based to a large extent on an applicant's self-repmts and not
on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating
provider's opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (internal quotations
omitted). Although the ALJ asserted that Dr. Ho relied heavily on plaintiffs subjective symptom
reports, the ALJ did so without explaining any basis for that conclusion. (Tr. 30.) An ALJ must
"ensure that the discussion of the evidence ... allows a claimant or subsequent reviewer to follow
the adjudicator's reasoning[.]" SSR 06-03p at *6; See Treichler v. Commissioner of Social Sec.
Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). Here, the ALJ did not provide sufficient reasoning.
Page 13 - OPINION AND ORDER
Moreover, even if Dr. Ho did rely to a limited extent on plaintiffs subjective repo1is, Dr. Ho also
performed her own examination of plaintiff and reviewed plaintiffs medical records as well as test
results. (Tr. 401-07.) "[W]hen an opinion is not more heavily based on a patient's self-rep01is than
on clinical observations, there is no evidentiary basis for rejecting the opinions." Ghanim, 763 F.3d
at 1162. The ALJ failed to identify any evidence indicating Dr. Ho relied more heavily on plaintiffs
self-rep01is than on her own clinical observations, therefore, this was not a legitimate reason to reject
Dr. Ho's opinion.
The Commissioner additionally argues the ALJ properly rejected Dr. Ho's opinion by
crediting Dr. Staley's opinion over hers. Garrison, 759 F.3d at 1012 (An ALJ may "explicitly reject
a medical opinion or set f01ih specific, legitimate reasons for crediting one medical opinion over
another."). The Commissioner's argument is unavailing for several reasons. First, the ALJ never
made this argument. The ALJ never indicated he was relying on Dr. Staley's opinion to reject Dr.
Ho's opinion. Thus, the Commissioner's contention is post hoc, which the Comi may not consider
in affirming an adverse decision. Bray v. Commissioner, 554 F.3d 1219, 1225 (9th Cir. 2009)
("Long-standing principles of administrative law require us to review the ALJ's decision based on
the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt
to intuit what the adjudicator may have been thinking."). Second, although the Commissioner noted
the ALJ gave great weight to Dr. Staley's opinion because it was consistent with tlie clinical findings
of Dr. Wei and Dr. Ito, the Commissioner failed to acknowledge that the ALJ also found Dr. Staley's
opinion to be consistent with Dr. Ho's clinical findings. (Tr. 31.) Third and finally, Dr. Staley's
non-examining opinion, alone, is insufficient to reject Dr. Ho's examining opinion because "[t]he
opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies
Page 14 - OPINION AND ORDER
the rejection of the opinion of either an examining physician or a treating physician." Lester, 81
F.3d at 831. Therefore, the ALJ failed to provide specific, legitimate reasons to reject Dr. Ho's
Dr. Jay Toews, Examining Psychologist.
Plaintiff argues that although the ALJ properly gave great weight to Dr. Toews' GAF score
of 50-64, the ALJ failed to account for this finding in the RFC. Pl.'s Br. 11. Citing to an online
summaiy of GAF scores, plaintiff asse1is that a GAF score of 50 defines a level of functioning
incompatible with keeping a job, or at least it would be unlikely that she could work on a regular and
continuing basis of 8 hours per day, 5 days per week. Pl.'s Br. 11-12. Despite plaintiffs asse1iion,
the language she cited indicates inability to keep a job is just one of a number of impahments that
could be found in a person with a GAF score at that level. Pl.'s Br. 11 ("Serious symptoms (e.g.,
suicidal ideations, severe obsessional rituals, frequent shoplifting) OR serious impahment in social,
occupational or school functioning (e.g., no friends, unable to keep a job)").
Plaintiff next argues that the ranged GAF score is not a matter of interpretation, but a matter
of fact. Pl.'s Reply Br. 04. Plaintiff urges that in accepting the GAF score, the ALJ was required
to take into account the fluctuating nature of plaintiffs functioning, accounting for the low end as
well as the high end. (Id.) Taking into account the fluctuations of plaintiffs GAF score, even at the
lowest end, an inability to maintain employment is just one of several possible manifestations. The
fact that plaintiffs low GAF score could indicate a functioning level that might manifest itself
through an inability to maintain employment, does not constitute a finding by the doctor that
plaintiffs impairment would interfere with her ability to maintain employment. Furthermore, the
reliability of GAF scores, in evaluating a person's ability to function, is in doubt. The GAF score
Page 15 - OPINION AND ORDER
was omitted from the fifth edition of the Diagnostic & Statistical Manual of Mental Disorders "for
several reasons, including its conceptual lack of clarity ... and questionable psychometrics in routine
practice." AMERICAN PSYCffiATRIC Ass'N, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL
DISORDERS ("DSM-V") 16 (5th ed. 2013). The ALJ was not required to account for every potential
functional limitation that could accompany a particular GAF score.
Finally, plaintiff argues that the "ALJ improperly found Dr. Toews only gave rule-out
diagnoses." Plaintiff urges that the ALJ failed to address Dr. Toews's finding that plaintiff had "odd
personality traits" under Axis II and that her personality was "one of the strangest profiles I have
seen in the course of my practice." Pl.'s Br. at 12; (Tr. 413.) The ALJ c01rnctly noted that Dr.
Toews did not diagnose plaintiff with any mental impairment. Although Dr. Toews did indicate
plaintiff had "odd personality traits," such a determination does not constitute a clinical diagnosis
of a mental impairment. In fact, Dr. Toews reported that plaintiffs "profile was not interpretable[.]"
Therefore, the ALJ did not en- in his analysis of Dr. Toews's opinion.
Non-Acceptable Medical Sources.
Dr. Heidi Robel, Treating Naturopath.
Plaintiff alleges that the ALJ improperly rejected the opinion of N.D. Robel, an "other
source." Pl.'s Br. 08-10.
Evidence from an acceptable medical source is used to establish whether a claimant has a
medically determinable impairment. 20 C.F.R. § 404.1521. Acceptable medical sources include
licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists,
and qualified speech-language pathologists. 20 C.F.R. § 404.1502. Evidence from "other sources,"
including, but not limited to, "nurse practitioners, physician assistants, licensed clinical social
Page 16- OPINION AND ORDER
workers, naturopaths, chiropractors, audiologists, [and] therapists," may also be used to show the
severity of a claimant's impairments and how they affect his ability to work. SSR 06-03p at *2. In
order to reject evidence from "other sources," the ALJ must give germane reasons for doing so.
Molina, 674 F.3d at 1111.
On November 29, 2012, N.D. Robel opined that plaintiff had a difficult time being in public
places and would strnggle in most work environments. (Tr. 577.) Then, on Janumy 17, 2013, N .D.
Robel noted that even "a small mnount of exposure" to pollutants could cause "debilitating
headaches, muscle pains[,] and confusion." (Tr. 444.)
The ALJ gave N.D. Robel's opinion "little weight," finding that she was not an
acceptable medical source. (Tr. 30.) Although N.D. Robel is not an acceptable medical source, this
is not, in and of itself, a germane reason for rejecting her medical opinion. See SSR 06-03p.
Next, the ALJ noted that he included environmental restrictions in the RFC to account for
plaintiffs chemical sensitivity. (Tr. 30.) However, the ALJ's limitation in the RFC stated only that
plaintiff"should avoid even moderate exposure to pollutants." (Tr. 26.) Such a limitation failed to
address N.D. Robel's findings that "even a small mnount of exposure" could cause "debilitating
headaches, muscle pains[,] and confusion." (Tr. 444.)
Finally, the ALJ found N.D. Robel relied heavily on plaintiffs subjective repmi of
symptoms. (Tr. 30.) However, as plaintiff correctly points out, the ALJ failed to supply any
reasoning to suppoti his conclusion. Pl.'s Reply Br. 05. The Commissioner m·gues the ALJ's
opinion is supported by substantial evidence because N.D. Robel's letter and treatment notes
essentially repeated plaintiffs claims. Defendant's Brief 09-10 (ECF No. 20) ("Def.'s Br."). A
thorough review of N.D. Robel's treatment notes reveals that she never documented objective
Page 17 - OPINION AND ORDER
evidence of plaintiffs purported symptoms, therefore, N.D. Robel must have relied "to a large
extent" on plaintiffs self-repmis and "not on clinical evidence." Ghanim, 763, F.3d at 1162.
Nevertheless, plaintiff urges that N.D. Robel relied on her observations that plaintiff used an air
purifier mask and refused to sit on an office chair. (Tr. 439, 577.) This reasoning is unpersuasive.
Plaintiffs use of the air purifier mask and refusal to sit in the office chair were based on plaintiffs
subjective beliefs about her symptoms, rather than objective medical evidence. N.D. Robel's
reliance on her observations of such behavior is the functional equivalent of relying on plaintiffs
subjective symptom testimony. Therefore, the ALJ provided a germane reason for rejecting N.D.
Plaintiff alleges the ALJ improperly rejected the lay testimony ofplaintiffs husband, Thomas
Chism. Pl.'s Br. 10-11. The ALJ must provide "germane reasons" for rejecting lay witness
testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
Mr. Chism testified that as a result of plaintiffs concussion, she has the same conversations
over and over because of her memory problems; has difficulty finding places that she has been to
before; is unable to follow instructions; has problems concentrating; gets confused with handling
money; and has difficulty completing even basic tasks. (Tr. 71-73, 258, 262, 265.)
The ALJ found that Mr. Chism's "statements may reflect his personal observations of the
claimant" but "the medical evidence of record does not support finding greater limitations than those
set forth in the above residual functional capacity." (Tr. 31.) The ALJ did not provide any reasons
for rejecting Mr. Chism's testimony, he merely stated his conclusion. Although the ALJ needed only
provide a germane reason to reject the lay testimony, he failed to provide any reason. The
Page 18 - OPINION AND ORDER
Commissioner argues the ALJ did provide a germane reason to discount Mr. Chism because the ALJ
reasonably relied on the medical evidence. Def.'s Br. 20. ("in light of [the ALJ's] careful analysis
of the medical record, [p]laintifffails to identify any en-or.") Reliance on the medical record may
supp01i a reason for rejecting lay testimony, but it is not itself a separate reason. Moreover, although
an ALJ may discredit lay testimony if it conflicts with medical evidence, it cannot be rejected merely
based on a lack of support. See Lewis, 236 F.3d at 51 l(noting an ALJ may discount lay testimony
that "conflicts with medical evidence") (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.
1984)). Accordingly, the ALJ improperly rejected Mr. Chism's lay testimony.
Medically Determinable Impairments.
Plaintiff argues the ALJ erred in failing to find plaintiffs obesity and multiple chemical
sensitivity were medically determinable impairments. Pl.'s Br. 13-14. To establish the existence
of a medically determinable impairment, the claimant must provide medical evidence consisting
of "signs - the results of 'medically acceptable clinical diagnostic techniques,' such as tests - as
well as symptoms." Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). A claimant's own
statement of symptoms, a diagnosis, or a medical opinion is not enough to establish
a medically dete1minable impairment. See 20 C.F.R. § 404.1521; SSR 96-4p.
Plaintiff first alleges the ALJ en-ed in failing to find her obesity to be a medically
determinable impairment. Pl.'s Br. 13-14. Dr. Wei noted that plaintiff was dealing with obesity.
(Tr. 563.) A BMI of 30.0 - 34.9 qualifies as obese. SSR 02-lp at *2. The medical record
establishes that plaintiffs obesity is a medically determinable impairment because plaintiff
consistently presented with a BMI over 30.0. (Tr. 562, 564, 567, 629.) The ALJ en-ed because he
Page 19 - OPINION AND ORDER
never addressed plaintiffs obesity. (Tr. 23-32.); Ghanim, 763 F.3d at 1166 ("In determining a
claimant's residual functional capacity, the ALJ must consider all of a claimant's medically
determinable impairments, including those that are not severe."). Plaintiff argues this e1rnr was
harmful because the ALJ dete1mined in the RFC that plaintiff was capable of work at all exe1iional
levels, including ve1y heavy work. (Tr. 26.) The Commissioner contends that the e1Tor was
harmless because it was "inconsequential to the ultimate nondisability decision." Molina, 674 F.3d
at 1115 (citing Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). In
the RFC, the ALJ determined plaintiff was capable of work at all exertional levels, but the
Commissioner argues, even if this was an error, it was harmless because the ALJ specifically found
that plaintiff could perform past relevant work that was only light or medium. (Tr. 31.)
Neve1iheless, the Social Security Regulations provide that "[ o]besity in combination with
another impairment may or may not increase the severity or functional limitations of the other
impairment. We will evaluate each case based on the information in the case record." SSR 02-1 p
at *6. The ALJ failed to make such an evaluation in this case. Had the ALJ properly conducted such
evaluation, he may have found that plaintiffs obesity would have increased the severity of her other
impairments. Thus, the enor was not harmless because it cannot be said that the error was
"inconsequential to the ultimate nondisability decision." Molina, 674 F.3d at 1115.
Multiple Chemical Sensitivity.
Plaintiff asse1is the ALJ e1rnd in failing to find plaintiffs multiple chemical sensitivity to be
a medically determinable impairment. Pl.'s Br. 14. Dr. Ho and Dr. Wei both diagnosed plaintiff
with multiple chemical sensitivity and plaintiff cites to a number of her purpo1ied symptoms. Pl. 's
Br. 14; Pl. 's Reply Br. 07-08; (Tr. 406, 436, 443-44, 459.) However, plaintiff fails to demonstrate
Page 20 - OPINION AND ORDER
that her multiple chemical sensitivity is a medically determinable impainnent because she relies
completely on medical diagnoses and her own symptom testimony, rather than objective medical
evidence derived from "medically acceptable clinical and laboratory diagnostic techniques. 20
C.F.R. § 404.1521 (The Commissioner "will not use [a claimant's] statement of symptoms, a
diagnosis, or a medical opinion to establish the existence of an impairment(s).").
To show that her allergic reactions were supported by medical evidence, plaintiff points to
evidence that she had to avoid certain chairs, had allergic reactions to fabric softener and the dye in
ibuprofen, and had a wide range of symptoms caused by exposure to chemicals. Pl.'s Br. 14; Pl.'s
Reply Br. 07. The claims about her allergic reactions are not suppmied by the objective record, but
instead appear to be based entirely on her own reports. Dr. Ho merely noted that plaintiff "was
careful to avoid sitting on a chair, covered with a material, which she considered toxic." (Tr. 402.)
(emphasis added). Plaintiff's allergic reaction to the fabric softener was merely an allegation
plaintiff made over the phone that the fabric softener on the nurse's scrubs was too strong. (Tr. 459.)
Finally, plaintiffs list of symptoms triggered by enviromnental exposure purportedly include
"migraines, myalgia with muscle weakness and spasm, mood swings with iJTitability, confusion,
coughing, slUJTed speech, fatigue, nausea, flatulence and swollen abdomen and hands." (Tr. 443.)
However, the existence of these symptoms are not suppmied by any medical signs or laboratmy
findings. (Tr. 443.) Plaintiff was never tested by an immunologist or allergy specialist. (Tr. 436,
563.) Thus, the ALJ properly determined plaintiffs multiple chemical sensitivity was not a
medically determinable impairment because the record was entirely devoid of signs or laboratmy
findings to substantiate the alleged impairment. Ukolov, 420 F.3d at 1005; SSR 96-4p at*!.
Page 21 - OPINION AND ORDER
Plaintiff also argues the ALJ erred because he did not find her mixed connective tissue
disease and traumatic brain injury to be "severe" impairments at step two of the sequential analysis.
Pl.'s Br. 15-16.
At step two, the Commissioner determines whether the claimant has a
"medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140--41; 20
C.F.R. § 404.1520( c). "An impairment or combination of impairments can be found 'not severe'
only if the evidence establishes a slight abnmmality that has 'no more than a minimal effect on an
individual's ability to work.'" Smolen, 80 F.3d at 1290 (quoting SSR 85-28).
Mixed Connective Tissue Disease.
Plaintiff alleges the ALJ e!Ted in failing to find her mixed connective tissue disease to be a
severe impairment. Pl.'s Br. 16. Plaintiff first argues the ALJ failed to account for plaintiffs
positive RNP autoantibody workups. (Tr. 356, 500.) The ALJ did, however, note that the two most
recent RNP autoantibody workups from 2013 and 2014 were negative. (Tr. 452.) Furthermore, the
positive workups contained the caveats that RNP autoantibodies "are also found in about 2% of the
"[a]utoimmune diseases cannot be diagnosed by serology alone," and
"[s]pecific clinical criteria must also be documented." (Tr. 353.) Plaintiff did not provide any
evidence that such clinical criteria was ever documented. Furthe1more, the ALJ additionally relied
on Dr. Ho's finding that there was "no evidence of lumbar paravertebral muscle spasms or
tenderness, joint deformities, crepitus, effusion, or trigger points." (Tr. 26, 405.) Therefore,
notwithstanding the two positive workups, the ALJ did not e!T in finding plaintiffs mixed
connective tissue disease to be non-severe.
Plaintiff also argues the ALJ failed to account for plaintiffs fatigue, weakness and tingling
Page 22 - OPINION AND ORDER
in hands, and swollen fingers. (Tr. 330, 343, 438.) Although plaintiff reported suffering from
fatigue, her doctors never attributed the fatigue to her mixed connective tissue disease. (Tr. 343,
406.) In fact, plaintiff reported she suffered from fatigue due to her multiple chemical sensitivity,
and the weakness and tingling in plaintiffs hands was reported as a symptom ofher concussion. (Tr.
330, 443.) Moreover, plaintiff claimed her fingers were swollen due to an allergic reaction to the
dye in ibuprofen. (Tr. 443.) As such, plaintiffs reported symptoms do not demonstrate that her
mixed connective tissue disease is a "severe" impairment.
Finally, plaintiff argues the ALJ erred because he concluded plaintiff could do a full range
of exe1iional work with "no proper accommodations for her condition, such as reduced exposure to
vibration." Pl.' s Br. 16. However, a review of the record reveals that none of plaintiffs doctors ever
indicated plaintiff needed to limit exposure to vibration and there is no evidence plaintiff ever
claimed exposure to vibration caused her any problems. None of plaintiffs doctors identified
limitations due to plaintiffs mixed connective tissue disease; therefore, her mixed connective tissue
disease would have "no more than a minimal effect on [her] ability to work." Smolen, 80 F.3d at
1290 (quotations omitted). Thus, the ALJ did not err in his finding that plaintiffs mixed connective
tissue disease was not a severe impainnent.
Traumatic Brain Injury.
Plaintiff also alleges the ALJ erred in failing to find that her traumatic brain injury was a
severe impairment. Pl. 's Br. 15-16. Plaintiff has had up to six concussions over the course of her
life. (Tr. 570, 631.) Plaintiff hit her head at a job site in August, 2010, and had to go to the
emergency room. (Tr. 338.) In December of2011, she hit her head again and was diagnosed with
a concussion. (Tr. 402.) The Commissioner argues plaintiffs traumatic brain injury was not severe
Page 23 - OPINION AND ORDER
because the diagnostic imaging was umemarkable. However, "[i]n most cases, damage to the brain
from a concussion cannot be seen in tests such as a CT or MRI scan." (Tr. 464.) The Commissioner
also argues the ALJ properly relied on the fact that plaintiffs neurological examinations were
"essentially umemarkable" and when plaintiff was originally diagnosed with a concussion, it was
refen-ed to as mild. (Tr. 25, 332, 336-37). Despite those initial findings, more than two years after
her concussion, plaintiff was still experiencing symptoms and she was diagnosed with chronic past
concussive encephalopathy and traumatic brain injury. (Tr. 462, 467.) Furthermore, after her
concussion, plaintiff struggled to complete even small tasks:
she would repeat the same
conversations over and over again; she would forget where she was or what she was doing; she
became unable to follow instructions, and she experienced dizziness, confusion; and problems
concentrating. (Tr. 73, 258, 263, 323-24.) Moreover, plaintiff did poorly on the Trails test with
scores that fell "outside the normal range to a significant degree,'' Dr. Toews noted plaintiff rambled
and exhibited a looseness of thought, and Dr. Ho determined that plaintiff had memory loss and
concentration problems. (Tr. 406, 413.) Dr. Ho found that plaintiffs traumatic brain injury "may
limit her ability to function in the workplace.'' (Tr. 406.) Plaintiffs traumatic brain injury is more
than just a "slight abno1mality" with "no more than a minimal effect" on her ability to work.
Smolen, 80 F .3d at 1290 (internal quotations omitted). Accordingly, the ALJ ened in his finding that
plaintiffs traumatic brain injury was not severe.
The Commissioner argues plaintiff failed to identify hmm. However, plaintiff correctly noted
the ALJ failed to include any accommodations for her traumatic brain injury in the RFC. Pl.'s Br.
15-16. The Commissioner asserts that in his consideration of the RFC limitations, the ALJ
"properly did not include discounted testimony or medical evidence." Def.'s Br. 14. As noted
Page 24 - OPINION AND ORDER
above, however, the ALJ erred in rejecting Dr. Ho's opinion and Mr. Chism's testimony. In light
of that evidence-which the ALJ erroneously rejected, and therefore did not consider in crafting the
plaintiff has deficits in memory, concentration, completing tasks, as well as difficulty
understanding and following instructions. Therefore, the ALJ's failure to find plaintiffs traumatic
brain injmy to be "severe" at step two was not harmless error.
The decision whether to remand for further proceedings or for immediate payment ofbenefits
is within the discretion of the comt. Harman v. Apfel, 211F.3d1172, 1178 (9th Cir. 2000), cert.
denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A remand for
an award ofbenefits is appropriate when no useful purpose would be served by further administrative
proceedings or when the record has been fully developed and the evidence is insufficient to support
the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-39 (9th Cir.
2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir 2004)). The comt may not award
benefits punitively and must conduct a "credit-as-true" analysis to determine if a claimant is disabled
under the Act. Id. at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of
benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such
evidence; (2) there are no outstanding issues that must be resolved before a determination of
disability can be made; and (3) it is clear from the record that the ALJ would be required to find the
claimant disabled were such evidence credited. Id. The "credit-as-true" doctrine is not amandato1y
rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award
of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F .3d 871, 87 6
Page 25 - OPINION AND ORDER
(9th Cir. 2003) (citing Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 191) (en bane)). The
reviewing court should decline to credit testimony when "outstanding issues" remain. Luna v.
Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
Here, the first requisite is met. The ALJ failed to provide legally sufficient reasons to reject
the opinion of Dr. Ho and the testimony of Mr. Chism. However, the second requisite is not met,
as there are still outstanding issues that must be resolved before a determination of disability can be
made. At the administrative hearing, the VE testified that "if sitting [is J at a maximum of folll' holll's
and standing and walking is a maximum of three hours, at the bottom of your range, that precludes
competitive full time work." (Tr. 83.) Here, when crediting Dr. Ho's opinion as true, plaintiff would
arguably be precluded from full time work because Dr. Ho found that plaintiff could sit for a
maximum of four hours and stand or walk for a maximum of three to four hours. (Tr. 406.)
However, the VE also testified that if plaintiff could stand or walk for four hours the "Office Helper"
job could still be "feasible." (Tr. 83.) As such, Dr. Ho's finding that plaintiff could stand or walk
for three to four hours leaves some ambiguity as to whether plaintiff would be precluded from full
time work. Furthennore, serious doubts remain with regard to Dr. Ho's ultimate conclusions
regarding the sitting, standing, and walking limitations. Dr. Ho based those limitations on plaintiffs
"fatigue," however, Dr. Ho never explained what caused plaintiffs fatigue. It is therefore not clear
how Dr. Ho came to her conclusion, and consequently, whether the conclusion is supported by the
record. Therefore, the record is still not fully developed and it is not clear that Plaintiff is, in fact,
disabled. Remand for further proceedings is the appropriate remedy. Treichler, 775 F3d at 1105.
("Where ... an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper
approach is to remand the case to the agency.").
Page 26 - OPINION AND ORDER
On remand, the ALJ shall: (1) accept Dr. Ho's opinion and incorporate it into the RFC or
provide legally sufficient reasons for its rejection; (2) accept Mr. Chism's testimony or provide
legally sufficient reasons for discounting it; (3) evaluate plaintiffs obesity as a medically
determinable impairment and dete1mine whether it would increase the severity of plaintiffs other
impairments; (4) evaluate plaintiffs traumatic brain injury as a severe impairment and incorporate
any resulting limitations into the RFC; (5) order an examination of plaintiff to evaluate her
impairments as well as determine the cause and assess the extent of her symptoms including, fatigue;
(6) order a mental examination of plaintiff to evaluate her mental health and diagnose any mental
health impairments; and (7) conduct any additional proceedings as indicated by the results of the
For these reasons, the decision of the Commissioner is REVERSED and this matter is
REMANDED to the Commissioner pursuant to Sentence Four, 42 U.S.C. § 405(g) for further
proceedings as directed in this Opinion and Order.
IT IS SO ORDERED
DATED this 7th day of December 2017.
Page 27 - OPINION & ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?