Simington v. Commissioner Social Security Administration
ORDER AND OPINION. The Commissioner's decision is REVERSED and REMANDED for an immediate calculation and award of benefits. IT IS SO ORDERED. Signed on 7/25/2017 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ASHLEY NICOLE SIMINGTON,
Case No. 6:16-cv-01381-AA
OPINION AND ORDER
Social Security Administration,
AIKEN, District Judge:
Plaintiff, Ashley Nicole Simington, brings this action pursuant to the Social Security Act
("Act"), 42 U.S.C. § 405(g), to obtain judicial review ofa final decision of the Commissioner of
Social Security ("Commissioner"). The Commissioner denied plaintiffs application for a Period
of Disability and Disability Insurance Benefits ("DIB"). For the reasons set forth below, the
Commissioner's decision is reversed and remanded for an immediate award of benefits.
On January 7, 2013, plaintiff first filed for Social Security DIB.
disability beginning February 16, 2010. Tr. 17. Plaintiffs application was initially denied, and
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denied again upon reconsideration. Id. Plaintiff then filed a request for a hearing before an
Adminstrative Law Judge ("ALJ") on October 16, 2013.
September 26, 2014.
The hearing was held on
At the hearing, plaintiff amended the alleged onset date of her
disability to June 22, 2010. Id.
On December 8, 2014, the Commissioner denied plaintiffs
application. Tr. 27. Plaintiff sought review of the ALJ's decision, which was denied by the
Appeal Council on May 5, 2016. Tr. 1-3. Plaintiff filed the present complaint against the
Commissioner in this Court on July 7, 2016.
Plaintiff has a history of cervical neuralgia, recuning migraine headaches, depression,
anxiety, insomnia, bulimia nervosa, and post-traumatic stress disorder ("PTSD"). Tr. 19-20,
258, 261, 263, 266. On February 16, 2010, plaintiff was in a car crash, which resulted in neck
and back pain. Tr. 285-87. On March 1, 2010, plaintiff was diagnosed with cervical strain. Tr.
544-45. Her pain became more significant by March 11, 2010. Tr. 543. Plaintiff reported "lots
of pain" sitting at a desk, and an inability to drive without pain. Id. Plaintiffs primary care
doctor, Dr. Diana Bolduc, reported a limited range of motion and tenderness in the afflicted
areas. Tr. 543-44. By the end of the month, the pain improved. Tr. 541. But in April, upon
returning to work, the intense pain returned. Plaintiff began to miss work on account of the pain.
Tr. 539-40. On August 4, 2010, Dr. Bolduc spoke via telephone with Eugene neurosurgeon Dr.
Cannina Angeles, who acknowledged the possibility of a cervical spine fracture. Tr. 538.
Dr. Angeles recommended plaintiff wear a hard neck collar, and undergo an x-ray.
Plaintiff was pregnant at this point in time and unable to undergo an x-ray at such an early stage
in the pregnancy. Dr. Angeles also recommended an MRI as soon as her obstetrician felt
comfortable with the procedure. Id.
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Plaintiff underwent the MRI in September of 2010. Dr. Angeles dete1mined she did not
have a fracture. Tr. 689. However, plaintiff continued to report pain, and even difficulty "laying
down on the pillow." Tr. 679. Dr. Angeles diagnosed plaintiff with a C2 radiculopathy. Tr.
680. She recommended that plaintiff do an occipital nerve block, but noted that plaintiff would
have to wait until after she had given bhth. Dr. Angeles also identified occipital nerve ligation
as a last resmt option. Id. Plaintiff was referred to Dr. Gregory Moore. Tr. 673.
In October, Dr. Moore noted that plaintiff repo1ted her pain levels at 1Oil0, and she
scored a Pain Disability Index score of 66. Id. Dr. Moore recorded "[t]enderness to palpation
over the suboccipital region with referred pain and paresthesia across the occipital nerve", as
well as limited cervical range of motion. Tr. 674. Dr. Moore reviewed plaintiffs September
MRI, and noted small ossifications "in the midbody of the dens." Id. Dr. Moore ultimately
diagnosed plaintiff with: ( 1) possible remote history of dens fracture; (2) occipital neuralgia; (3)
mysfascial pain; and (4) cervical spondylosis, possible DRG-mediated pain. Tr. 675. Dr. Moore
performed an occipital nerve block on plaintiff. Tr. 672.
Dr. Angeles saw plaintiff again in January, 2011. Dr. Angeles reported that plaintiff had
not felt any relief from the occipital nerve block procedure. Tr. 670. Plaintiff gave birth to her
child in mid-February, 2011. Tr. 273. As she was no longer pregnant, more treatment options
became available, and, on March 1, 2011, plaintiff sought more aggressive treatment to address
her pain. Tr. 670. The next week, plaintiff again visited Dr. Angeles. Dr. Angeles repo1ted
plaintiff had head pain, which radiated to her shoulders when she lay on the back of her head.
She also reported a continued limited range of cervical motion. Id.
recommended a suboccipital pain stimulator for pain relief. Id. On March 25, 2011, plaintiff
underwent an occipital nerve ligation and a cranioplasty procedure. Tr. 667. At the end of April,
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2011, Dr. Angeles reported that plaintiffs migraine headaches and pain had improved .. Tr. 666.
But by June 1, 2011, plaintiff was again suffering from persistent headaches and neck pain. Tr.
665. Dr. Angeles directed plaintiff to take Tylenol with codeine to address the pain. Id.
In mid-July 2012, plaintiff began seeing a new primary care provider, Paul Leppert,
Plaintiff repo1ted to Mr. Leppett that she still had recurring headaches, as well as
increased feelings of depression. Tr. 360. On July 18, 2012, plaintiff began counseling sessions
with Gladys Shade, LCSW, per a refenal by Mr. Leppe1t. Tr. 347. Ms. Shade noted plaintiff
had symptoms of PTSD "related to ongoing childhood ... sexual abuse".
Ms. Shade fmther
described plaintiffs symptoms as: "[d]epressed/sad mood, anhedonia, poor functioning level,
extreme lack of energy, intrusive memories, nightmares, poor sleep, extreme hypervigilance
(dead bolts her bedroom door at night), paranoid feelings/thoughts, angry outbursts, extreme fear
for her 2 year old daughter ... " Tr. 347--48. Additionally, plaintiff felt "panic symptoms
often," a fear of people and leaving her home, and feelings of anger upon physical contact with
her husband. Tr. 348. Plaintiff had few people to talk with about her problems and was no
longer employed. Id.
Ms. Shade diagnosed plaintiff with depressive disorder, PTSD, panic
disorder with agoraphobia, and bereavement. Tr. 349. Ms. Shade ordered fu1ther counseling
and psychiatric medication. Id.
On December 13, 2012, plaintiff visited her original primary care provider, Dr. Bolduc.
Plaintiff complained of continued pain from chronic headaches, mood disorder, and neck pain.
The neck pain was reported to be not as severe as it once was, but still present. Her headaches
had worsened. Tr. 531-32. Plaintiff reported that taking Imitrex alleviated her headaches for a
day, but that her nine pills per month prescription was insufficient. Dr. Bolduc declined to
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increase her prescription. Id. Plaintiff continued to take Topamax, but asserted that it did little
to alleviate her headaches. Tr. 532.
In early January 2013, plaintiff again met with Dr. Bolduc regarding her chronic
headaches and mood disorder. Tr. 530. Plaintiff reported frustration that she had not been able
to keep any employment since 20 I 0 on account of her symptoms.
Plaintiff said she had
headaches three days per week. Id She also reported severe insomnia and anxiety while using
Topamax. Dr. Bolduc prescribed Cymbalta instead. Id. Following up with plaintiff at the end
of the month, Dr. Bolduc noted plaintiff had an adverse reaction to Cymbalta.
plaintiff only used Imitrex to treat her headaches. Tr. 529. Plaintiff also began to take Zoloft to
regulate her mood. She had taken Zoloft in the past, but stopped because of its negative side
effects. Plaintiff stated that she was "rather tired of not having her mood control". Id.
On January 30, 2013, plaintiff again visited Dr. Angeles regarding her pain. Plaintiff
reported to Dr. Angeles "tremendous" pain when combing her hair on the left side of her head,
and upon turning her head 45 degrees to the side. Tr. 663. She claimed to be "unable to tolerate
steroid injections of pain medications. She is feeling desperate and ... can no longer live with
her pain." Id Dr. Angeles recommended an x-ray and an MRI. Plaintiff indicated interest in
pursing surgical treatment. Tr. 664. Dr. Angeles perfo1med a bilateral C2 nerve ligation on
plaintiff on March 3, 2013. Tr. 652. By mid-May, plaintiff repo1ted abatement of sharp cervical
pain. Tr. 708. However, she complained her neck was "tight" and "heavy" and that she had
trouble sleeping as a result.
In June 2013, plaintiff reported she had "hand and feet
numbness since her last neck surgery." Tr. 706.
In mid-June 2013, plaintiff returned to Dr. Bolduc for exasperated mental health issues.
Dr. Bolduc increased plaintiffs Zoloft prescription, prescribed clonidine, and
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recommended further therapy.
The next week, Plaintiff saw Dr. Mark Ramirez, a
neurologist. Tr. 701. Based on her headache symptoms, Dr. Ramirez prescribed Gabapentin,
Fioricet, and pe1mitted her to continue taking Sumatriptan, which she had been prescribed
That same day, Plaintiff followed through with Dr. Bolduc's
recommendation to seek therapy, and saw Janis Petrie, CNS. Plaintiff repmied panic attacks
twice a week and suicidal thoughts. Tr. 692. Ms. Petrie took plaintiff off Zoloft, and in place,
prescribed Lexapro, Trazadone, Prazosin, and Buspar. Tr. 693.
On June 27, 2013, plaintiff returned to Dr. Angeles.
She repo1ied diminished sharp
cervical pain, but instead a burning pain. Tr. 647. Dr. Angeles increased her Gabapentin dosage,
and noted that the burning "can be explained by retrograde denigration of the C2 nerve." Tr.
Over the next couple of months, plaintiff was unable to attend multiple therapy
appointments because of the status of her mental health. Tr. 941-63. Plaintiff was able to make
an August 2, 2013, fol!ow-up visit with Dr. Ramirez. Tr. 697-701. Dr. Ramirez took note that
her ongoing headaches, which occur at least once per week, typically last two to three days each.
The headaches carried symptoms of nausea, vomiting, photophobia, and phonophobia. Tr. 697.
Additionally, plaintiff had "tension type headaches" about three times per week which last the
whole day. Tr. 697-98. Dr. Ramirez prescribed plaintiffMaxalt to alleviate headache pain.
On August 9, 2013 plaintiff repmied to a therapist that she attempted suicide two weeks
prior by overdosing on prescription medications.
Plaintiff also repmied manic
episodes, lasting up to two days, in which her husband had to take off work, her child had to go
to her grandparents' house, and ultimately her husband and father had to physically restrain her.
Tr. 839. Plaintiff also stated that she could not work due to her severe neck pain. Id.
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In September 2013, plaintiff began seeing Mary Frode1mann, FNP. Ms. Frodermann saw
plaintiff on a regular basis, and she reiterated the presence of plaintiffs ongoing symptoms. Tr.
876-892. In October 2013, plaintiff reported to psychiatric nurse practitioner Toni Damewood
that she had hallucinations for two weeks.
In December 2013, Ms. Frodermann
recorded that plaintiff is still depressed, and stopped taking most of her medications. Tr. 883.
Ms. Frode1mann "encouraged her to continue counseling."
In January, 2014, plaintiff
reported to Ms. Frodermann that she was going to see a neurosurgeon at UC Davis.
anticipation of the trip, some of her medications were restaited, and some dosages were
increased. Tr. 881. Additionally, plaintiff was prescribed Rizatriptan and Mataxalone. Tr. 882.
In March 2014, plaintiff again saw Dr. Angeles. Plaintiff complained that her pain was
the same as it was prior to the nerve ligation surgery. Tr. 867. Dr. Angeles noted that there was
nothing surgical she could do to alleviate the symptoms at this point. Tr. 869. In April 2014,
plaintiff visited Toni Damewood, a psychiatric nurse practitioner. Ms. Damewood noted that
plaintiff suffered from ongoing depression, anxiety, panic attacks 3-4 times per week, chronic
pain, forgetfolness, an inability to drive, an inability to sleep, an inability to cook and do laundry,
and a preference to stay in bed all day. Tr. 852. By this point, Ms. Damewood had diagnosed
plaintiff with Bipolar Disorder. Tr. 853. Ms. Damewood prescribed Divalproex, in addition to
plaintiffs other medications. Id. On May 7, plaintiffrepo1ted to psychiatric nurse practitioner
Janus Maybee that she had again attempted suicide the previous week by overdosing on some of
her medications. Tr. 850. Three days after her suicide attempt, plaintiff checked into the ER and
told doctors she was sick, but did not repo1t that it was due to a suicide attempt. Id.
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On May 21, 2014, Ms. Frodennann described plaintiff as "profoundly dysthymic and
suicidal." Tr. 876. In a September letter, Ms. Frodermann stated:
[Plaintiffs] cunent medication allow her to function at home. She has no stamina
and long drivers are not possible with her changing daily mental and physical
status. Her every day functioning is made possible with great assistance from her
husband and mother. Both of these individuals work full time. I do not believe
this lady is mentally capable of working outside the home.
STAND ARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is 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." Gutierrez v. Comm'r of Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (quotation marks omitted). The court must weigh "both the evidence
that supp01is and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari,
276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but
the Commissioner's decision is rational, the Commissioner must be affirmed, because "the comi
may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001).
The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986).
To meet this burden, plaintiff must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
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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(a)(4);
id. § 416.920(a)(4). At step one, the ALJ determines if the claimant is perfotming substantial
gainful activity. Ifso, the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i), (b). Here, the
ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged disability
onset date. Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§ 416.920(a)(4)(i), (b).
At step two, the ALJ determines if the claimant has "a severe medically determinable
physical or mental impairment" that meets the 12-month durational requirement. 20 CFR §§
404.1520(a)(4)(ii), (c). Absent a severe impairment, the claimant is not disabled. Id. Here, the
ALJ found plaintiff had the following severe impaitments: "cervical neuralgia with recurring
headaches; depressive disorder; and ... PTSD ... " Tr. 28; see 20 C.F.R. §§ 404.1520(a)(4)(ii),
(c); id. §§ 416.920(a)(4)(ii), (c). The ALJ acknowledged medical evidence of: (1) intermittent
headaches since plaintiff was 12 years old; (2) a skull fracture arising from a car accident in
February 2010; (3) traumatic nerve neuralgia leading to an occipital nerve ligation and
cranioplasty (these procedures did not alleviate claimant's symptoms of headache pain), and a
bilateral C2 nerve ligation in 2013 (which partially alleviated symptoms of headache pain); (4)
persistent, severe pain and allodynia; (5) migraine headaches with nausea, vomiting,
photophobia, and phonophobia at least once per week since 2010; and (6) mental impairment
symptoms of depression and PTSD, including an attempted suicide. Tr. 19-20.
At step three, the ALJ determines whether the severe impahment meets or equals an
impaitment "listed" in the regulations. 20 CFR §§ 404.1520(a)(4)(iii), (d); 20 CFR Pt. 404,
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Subpt. P, App. 1 (Listing of Impairments). If the impahment is determined to meet or equal a
listed impairment, then the claimant is disabled.
In this case, the ALJ determined plaintiffs impairments, whether considered singly or in
combination, did not meet or equal "one of the listed impaim1ents" that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity. Tr. 20-21; 20 C.F .R. §§
404.1520(a)(4)(iii), (d); id §§ 416.920(a)(4)(iii), (d).
If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other
relevant evidence in assessing the claimant's residual functional capacity ("RFC").
claimant's RFC is an assessment of work-related activities the claimant may still perfo1m on a
regular and continuing basis, despite the limitations imposed by his or her impahments. 20 CFR
§§ 404.1520(e), 416.920(e); Social Security Ruling ("SSR") 96-Sp, 1996 WL 374184 (July 2,
1996). Here, the ALJ found plaintiff retained the residual functional capacity to perfo1m light
work as defined in 20 C.F.R. § 404.1567(b),
except that the claimant is limited to no more than frequent overhead reaching.
The claimant would need to avoid concentrated exposure to vibrations, moving
machinery, unprotected heights, and similar hazards. The claimant is further
limited to simple, repetitive, and routine tasks that require no exposure to the
At step four, the ALJ uses the RFC to determine if the claimant can perform past relevant
work. 20 CFR § 404.1520(a)(4)(iv) & (e). If the claimant cannot perform past relevant work,
then at step five, the ALJ must determine if the claimant can perform other work in the national
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economy. 20 CFR § 404.1520(a)(4)(v) & (g); Bowen, 482 US at 142. Here, the ALJ concluded
plaintiff would be unable to perform any past relevant work. 1 Tr. 25; 20 C.F.R. § 404.1565.
If the process reaches step five, the burden shifts to the Commissioner to show that jobs
exist in the national economy within the claimant's RFC. Tackett v. Apfel, 180 F.3d 1094, 1099
(9th Cir. 1999). If the Commissioner meets this burden, then the claimant is not disabled. 20
CFR §§ 404.1520(a)(4)(v), (g).
At step five, the ALJ found, based on plaintiffs residual
functional capacity, plaintiff could perform several jobs existing in significant numbers in the
These jobs include: photocopy machine operator, mail clerk, and office
Tr. 25-26; 20 C.F.R. §§ 404.1520, (a).
Accordingly, the ALJ found plaintiff not
disabled and denied her application for benefits. Tr. 26.
Plaintiff asserts that this case should be reversed and remanded for an immediate
calculation and payment of benefits. Plaintiff claims the ALJ erred by: (1) rejecting the opinion
of Ms. Frodermann, a treating nurse practitioner; and (2) not awarding benefits despite plaintiffs
prima facie case of disability. Defendant concedes that the ALJ etTed, but asserts that because
the ALJ' s factual findings were inconsistent, the case should be remanded for further
proceedings instead of an immediate calculation and payment of benefits. Thus, the only
question before me is whether this case should be remanded to the ALJ for fmiher proceedings
or for immediate payment of benefits.
When the only legal question is whether to remand for futiher proceedings or an
immediate award of benefits, the Ninth Circuit provides a four-step analysis called the "credit as
true" doctrine. See Garrison v. Colvin, 759 F.3d 995, 1020-21 (9th Cir. 2014); Dominguez v.
Plaintiff's past relevant work included employment as an emergency medical
technician, hospital admitting clerk, and file clerk. Tr. 25.
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Colvin, 808 F.3d 403, 407 (2015). Each step of the analysis must be answered in the affomative
for a court to remand to an ALJ with instructions to calculate and award benefits. Garrison, 759
F.3d at 1020. The first step asks whether the ALJ erred by failing to provide legally sufficient
reasons for rejecting evidence-whether claimant testimony or medical opinion. Dominguez,
808 F.3d at 407. Second, ifthe ALJ committed a legal error, whether the record has been fully
developed and further administrative proceedings would serve no useful purpose. Id Third, if
the improperly discredited evidence were credited as true, would the ALJ be required to find the
claimant disabled on remand. Id. Last, the record as a whole must create no serious doubt as to
whether the claimant is disabled within the meaning of the Act-even ifthe other three elements
of the credit as true analysis are met. Id at 408. Defendant conectly notes that the Ninth Circuit
has cautioned that a plaintiff "is not entitled to benefits under the statute unless [she] is, in fact,
disabled, no matter how egregious the ALJ's errors may be." Straus v. Comm 'r of Soc. Sec.
Admin., 635 F.3d 1135, 1138 (2011).
First, I examine whether the ALJ made a legal error such as failing to provide legally
sufficient reasons for rejecting evidence-whether the evidence is claimant testimony or medical
opinion. Dominguez, 808 F.3d at 407. Here, both the plaintiff and defendant agree that the ALJ
committed legal error. Defendant concedes that the ALJ relied on "problematic reasoning" in
rejecting Ms. Frodermann's testimony.
Comm'r Mot. for Remand at 4.
acknowledges that the ALJ's credibility finding regarding plaintiffs testimony was internally
inconsistent. Id at 6.
Specifically, regarding plaintiffs testimony, the ALJ ened because he stated that plaintiff
"provided credible reports" about her limitations, yet he also stated that her repmts "are not
considered disabling from all work activity." Tr. 23. However, according to the Vocational
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Expert ("VE"), plaintiffs reports of her migraine headache symptoms indicate a disability
ba!Ting competitive employment. Tr. 68-69. The VE testified that plaintiffs ongoing need for
30 (or more) minute breaks once per week to deal with migraine symptoms would preclude her
from competitive employment. Tr. 68. Plaintiff ave!Ted, with support from the medical record,
that she suffers from migraine headaches at least once per week that last two to three days each,
and additional "tension" headaches at least three times per week that last all day. Tr. 697-98.
The ALJ also e!1'ed by failing to provide legally sufficient reasons for rejecting Ms.
Frodermann's testimony. In support of finding Ms. Frodermann's testimony unpersuasive, the
ALJ stated that there was no evidence of plaintiffs mental impainnents worsening since the
alleged onset of disability in 2010. Tr. 25. The record, however, demonstrates the opposite to be
For example, plaintiff twice attempted suicide by overdosing on her prescription
medications, first in late July 2013, and again in late April or early May 2014. Tr. 839, 850. In
October 2013, plaintiff for the first time began suffering from hallucinations. Tr. 858. Thus,
there was clear evidence of plaintiffs mental impaitments worsening.
Second, I examine whether the record has been fully developed and fmther
administrative proceedings would serve no useful purpose.
In conducting this review, the district cou1t must consider whether there are
'inconsistencies between [the claimant's] testimony and the medical evidence in
the record,' or whether the government has pointed to evidence in the record 'that
the ALJ overlooked' and explained 'how that evidence casts into serious doubt'
the claimant's claim to be disabled.
Dominguez, 808 F.3d at 407 (quoting Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090,
1101 (9th Cir. 2014); Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014)). Defendant asserts
that because the ALJ' s credibility finding regarding plaintiffs testimony is internally
inconsistent, the record requires further development. Defendant also argues that the record
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requires fmiher development because Ms. Frodetmann's opinion: (1) is internally inconsistent;
(2) is inconsistent with the opinions of medical sources; and (3) expresses an opinion on an issue
that is reserved for the commissioner. Neither of defendant's arguments is persuasive.
I first address the inconsistent finding regarding plaintiffs credible testimony. The ALJ
found that plaintiffs testimony was credible yet inconsistent with disabling functional
The commissioner argues that finding plaintiffs statements on her
limitations were credible but not disabling is supported in the medical record.
selectively cites to findings of plaintiffs normal and cooperative behavior at certain exams. The
fact that plaintiff was able to communicate normally with medical professionals does not
necessarily belie her consistent diagnoses and treatment for cervical neuralgia, recurnng
migraine headaches, depression, anxiety, insomnia, bulimia nervosa, and PTSD. Tr. 19-20, 258,
261, 263, 266. The healthcare professionals also noted the severity of plaintiffs symptoms,
prescribing medications and making surgical and counseling referrals to treat those symptoms.
The medical record shows that plaintiff has suffered "migraine headaches with nausea, vomiting,
photophobia, and phonophobia at least once per week since 2010." Tr. 20. Each migraine
headache typically lasts two to three days each. Tr. 697. Additionally, plaintiff has "tension
type headaches" about three times per week that last the whole day. Tr. 697-98.
Also critically for this step in my analysis, the VE has ah-eady testified that an individual,
such as plaintiff, who must recline in a dark area once a week for a period of 30 minutes or more
would not be eligible for competitive employment in the work places identified as appropriate
for plaintiff. Tr. 66-69. Therefore, plaintiffs testimony is consistent with a disabling functional
limitation precluding her from competitive employment.
As the medical record is fully
established and consistent, further proceedings are not required on this issue.
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Defendant also argues that the ALJ made an adverse credibility finding due to the
plaintiffs' ability to act as the primary care giver for her child.
Defendant avers that this
inconsistency requires remand to resolve. The ALJ stated that plaintiffs "ability to be the
primary caregiver for a child requires significant energy and stamina" which would be
"consistent with the ability to sustain regular and continuous work activities." Tr. 23. However,
courts have been clear that "disability claimants should not be penalized for attempting to lead
normal lives in the face of their limitations." Reddick v Chafer, 157 F.3d 715, 722 (9th Cir.
1998). A disability claimant need not "vegetate in a dark room excluded from all forms of
human and social activity" in order to be deemed eligible for benefits. Cooper v. Bowen, 815
F.2d 557, 561 (9th Cir. 1987) (quotation and citation omitted).
Importantly, plaintiffs testimony indicated that she lacked the energy and stamina to be
the child's primary care giver. Id She testified that her stepson attends an online high school
program so that he can help care for her daughter. Tr. 53. Plaintiff also testified that her stepson
and her husband take care of household chores and e11"ands, and her husband attends to her
stepson's academic needs. Tr. 53-55. In fact, plaintiff spends most of her days lying down, and
does not read. Id. She only occasionally uses the internet because it gives her headaches. Tr.
55-56. Plaintiff further testified that her mother and sister often watch her daughter, and "take
her to do things that are fun that I can't take her to do." Id Once, plaintiffs parents claimed her
daughter as a dependent on their tax return because the daughter had spent the majority of the
year with them. Tr. 57.
Plaintiffs above testimony, which the ALJ credited as true, is developed to the extent
that it is clear plaintiff lacks the ability to be her child's primary caregiver. Her current daily
activities do not utilize significant energy or stamina. Indeed, plaintiff spends most of every day
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lying down in bed. Tr. 56-57. This testimony is consistent with her objective medical record.
See, e.g., Tr. 270, 844, 852.
Turning to the issue of Ms. Frode1mann's testimony, though it may be somewhat
conclusory, fmiher administrative proceedings to clarify her statements would not be useful. Her
testimony is consistent with plaintiffs medical record. 2
Importantly, the ALJ specifically
discounted Ms. Froderman's letter on the basis that there was "no real evidence of any worsening
mental impairments since the alleged the onset of disability date." Tr. 25. This was clear error
as discussed above.
However, even if Ms. Frodermann's letter was properly discredited,
plaintiffs credible testimony and the medical record are sufficient to establish a disabling
functional limitation based on the VE's testimony. Therefore, Ms. Frodermann's letter need not
be further evaluated on remand.
I find that the record is fully developed. There are no inconsistencies between plaintiffs
testimony and the medical evidence which require fuiiher proceedings. Remanding for further
administrative proceedings would serve no useful purpose.
Third, I ask if improperly discredited evidence were credited as llue, would the ALJ be
required to find the claimant disabled on remand. Dominguez, 808 F.3d at 407. The answer to
this question is yes. The ALJ stated, "overall, the undersigned finds that the claimant provided
credible reports regarding her activities of daily living, and social interactions with others,
Ms. Froderman's letter concluded, "I do not believe this lady is mentally capable of
working outside the home." Tr. 964. Ms. Frode1mann based her testimony on plaintiffs
"multiple physical problems" and "changing daily mental and physical status." Id. The record
shows that Ms. Frodermann encouraged plaintiff to continue pursuing mental health counseling.
Tr. 883. Plaintiffs objective medical record, her own credible testimony, and the VE's
testimony indicate worsening mental and physical impairments that are a total bar from
competitive employment. Tr. 68-69, 839, 850, 858. Therefore, Ms. Frodermann's testimony
aligns with the objective medical record, plaintiffs credited testimony, and the VE's testimony.
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however, the limitations on those activities are not disabling." Tr. 23. But, as has been noted
previously, the VE stated that an ongoing weekly practice of needing at least 30 minute breaks in
a dark area, at work, outside of ordinary breaks, would "not work in terms of competitive
employment." Tr. 66-69.
During the hearing, plaintiff did not directly answer the ALJ's
question about how frequently she gets migraine headaches. Tr. 60. However, she testified that
she takes two Maxalt pills per 24 hour period when she has migraine symptoms. Tr. 59-60. She
receives 32 Maxalt pills per month, and typically uses all 32 pills in a three week period,
finishing them before the month is over. Id. This indicates plaintiff is afflicted with migraine
headaches at least 16 days per month. Further, the medical record shows that plaintiff has
migraine headaches at least once per week that last two to three days each, and additional
"tension" headaches at least three times per week that last all day. Tr. 697-98. Thus, crediting
plaintiffs testimony as true and considering the VE's improperly disregarded testimony that
plaintiff is unable to perform a significant number of jobs in the national economy, the ALJ
would be required to find the claimant disabled on remand. 3
Last, I must ensure that the record as a whole creates no serious doubt as to whether
plaintiff is disabled within the meaning of the Act-even if the other three elements of the credit
as true analysis are met. Dominguez, 808 F.3d at 408. Here, there is no serious doubt that
plaintiff is disabled. The ALJ found plaintiffs statements and repotis to be credible, and I agree.
Yet the ALJ ignored the VE's opinion that a plaintiff who needs to lie down and rest and on a
weekly basis would not be fit for competitive employment. Plaintiffs testimony regarding the
intensity and frequency of her migraines is consistent with the extensive medical record which is
Additionally, crediting Ms. Frodermann's testimony as true fmiher bolsters a finding of
Page 17 - OPINION AND ORDER
outlined above. When plaintiffs testimony is credited as true, and there is no reason why the
VE's opinion should be ignored, there remains no serious doubt that the plaintiff is disabled.
In sum, the plaintiff has established that she is disabled. Her testimony was credible and
consistent with the medical evidence.
The VE testimony shows that she is ineligible for
competitive employment. Remanding this case for further proceedings would serve no useful
purpose and is neither fair or expedient. It is not proper for me to give defendant a mulligan due
to the ALJ's legal enors despite a presentation of disability. Such a disposition would come too
close to the "unfair 'heads we win; tails, let's play again' system of disability benefits
adjudication" which the Ninth Circuit has cautioned against. See Garrision, 759 F.3d at 1021
(quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)). An umesolved question of
fact would wanant further proceedings, but no such question remains here.
The Commissioner's decision is REVERSED and REMANDED for an immediate
calculation and award of benefits.
IT IS SO ORDERED.
de) day of July 2017.
United States District Judge
Page 18- OPINION AND ORDER
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