Davis v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER: Based on this Opinion and Order, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED and the matter is REMANDED for immediate payment of benefits. Ordered by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

JUDY L. DAVIS,
Plaintiff,

Civ. No. 6:16-cv-01465-CL

v.

OPINION & ORDER

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MARK D. CLARKE, Magistrate Judge.
Plaintiff Judy L. Davis seeks judicial review under 42 U.S.C. § 405(g) of the final
decision of the Commissioner of the Social Security Administration denying her application for
Disability Insurance Benefits pursuant to the Social Security Act. For the reasons below, the
Commissioner's decision is REVERSED and REMANDED for immediate award ofbenefits. 1

BACKGROUND
Plaintiff was born November 1, 1954, and is currently 62 years old. Tr. 135. Plaintiff is
married, has an eleventh-grade education, and previously worked as a cook. Tr. 32, 33, 136.
In February 2013, Plaintiff filed for a period of disability and disability benefits; she
alleged disability onset as of March 1, 2008. Tr. 135-38. In October 2014, Plaintiff had a hearing
before an administrative law judge ("ALJ"). Tr. 23-73. At the end of the hearing, and after
1

The parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636(c)(l).

Page 1 - OPINION & ORDER

conferring with her attorney, Plaintiff amended the alleged onset date to July 1, 2013, which was
accepted by the ALJ. Tr. 72.
On November 27, 2013, Plaintiffs daughter brought Plaintiff to Samaritan Albany
General Hospital in Albany, Oregon; her daughter had found Plaintiff "nearly unresponsive,
lying in vomit in bed." Tr. 16, 521. Dr. Stephanie Emery, M.D., the treating physician, admitted
Plaintiff into the intensive care unit, and Plaintiff remained in the hospital for a month. Tr. 520,
531. Dr. Emory diagnosed Plaintiff with a neck abscess and sepsis, which had been caused by a
lice infection and/or spider bite; Dr. Emory described Plaintiff as being "acutely ill." Tr. 521,
527. Moreover, Dr. Emory's notes from the November 27 admission indicate Plaintiff was
lethargic, responded unintelligibly, and "[h]er fine motor skills were lacking on the left bilateral
lower extremities as she did not move on command." Tr. 16. She noted that Plaintiffs daughter
pointed out that Plaintiffs left arm had not worked well for about two years and wondered
whether her mother may have had "a stroke at some point." Tr. 521.
After observing Plaintiff for a month, on December 31, 2013, Dr. Emory determined that
Plaintiff had suffered from a cardiovascular accident "6 month[ s] ago. " 2 Tr. 531. And, indeed,
when Plaintiff was subsequently admitted to Albany General in May 2014 for a stroke, Dr.
Emory stated Plaintiff was previously "hospitalized in November [2013] ... due to neck abscess
due to lice infection. Summer that year she had a [right side basal ganglia] [cardiovascular
accident]" that led to "residual [left upper extremity/lower extremity] weakness." Tr. 237.
As stated, Plaintiff originally applied for disability in February 2013, prior to her monthlong hospitalization and May 2014 stroke. At the time, Plaintiff alleged disability due to
diabetes, heart problems, and high blood pressure. Tr. 13. Importantly, for matters of this case,
2

As the Commissioner notes, a cardiovascular accident is "'an imprecise term for a cerebral stroke."' Def.' s
Brief, at 7 (quoting Stedman's Medical Dictionary, http://www.medilexicon.com/dictionary/446). The Court uses
both terms interchangeably throughout the remainder of this Opinion and Order.

Page 2 - OPINION & ORDER

Plaintiffs Social Security insured status ended on September 30, 2013, her "date last insured."
Tr. 11. Accordingly, to be eligible for disability benefits, Plaintiff must have established a
disability on or before this date. 42 U.S.C. § 416(i)(3); 20 C.F.R. §§ 404.131, 404.315. At
Plaintiffs October 2014 hearing, she argued she suffered a stroke in summer 2013, before her
date last insured, an argument seemingly corroborated by Dr. Emory's above-mentioned
treatment notes. Tr. 22. The ALJ, however, held that Plaintiff suffered her first stroke on
November 27, 2013, the date she was first admitted into Albany General. Tr. 13. Hence, because
Plaintiffs date last insured was September 30, 2013, the ALJ ruled that her stroke was "not a
medically determinable impairment for the time period at issue," Tr. 13, a critical finding
because the Social Security Administration's hired vocational expert testified that if Plaintiff had
indeed suffered a stroke before her date last insured, "it would be fair to say that that would
preclude her past work and preclude any jobs to which she might have transferable skills," a
determination that would have resulted in a finding of disability. Tr. 66-70.
In finding that the stroke was not a medically determinable impairment, however, the
ALJ concluded that the severe impairments he did find she suffered from-diabetes mellitus,
hypertension, and obesity-did not preclude Plaintiff from being capable of performing her past
relevant work as a cook; indeed, he found she could "perform a full range of work at all
exertional levels." Tr. 13, 14, 17. Accordingly, on February 2, 2015, the ALJ determined
Plaintiff was not disabled as defined by the Social Security Act.3 On May 24, 2016, the Appeals
Council denied Plaintiffs request for review, making the ALJ's denial the Commissioner's final
decision. Tr. 1. This timely appeal followed.
II I

3

Plaintiffs claim had been initially denied on May 8, 2013, and upon reconsideration on August 30, 2013.

Tr. 11.

Page 3 - OPINION & ORDER

DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which ... has lasted or
can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C.
§ 423(d)(l)(A). "Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act."
Keyser v. Comm 'r. Soc. Sec. Adm in., 648 F .3d 721, 724 (9th Cir. 2011 ). Each step is potentially

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1.

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

2.

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

3.

Does the claimant's severe impairment "meet or equal" one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds to the "residual functional
capacity" ("RFC") assessment.

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a. The ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant's RFC. This is an assessment of workrelated activities that the claimant may still perform on a regular and
continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant's RFC, the
analysis proceeds to step four.
4.

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

5.

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

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 954. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work
which exists in the national economy"). If the Commissioner fails to meet this burden, the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v).

If, however, the

Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55;

Tackett, 180 F.3d at 1099.

II I
Page 5 - OPINION & ORDER

THE ALJ'S FINDINGS
Applying the five-step analysis, the ALJ found:
1. Plaintiff did not engage in substantial gainful activity during the period from
her amended alleged onset date of July 1, 2013, through her date last insured,
September 30, 2013. (20 CFR § 404.1571 et seq.). Tr. 13.
2. Plaintiff has the following severe medically determinable impairments:
diabetes mellitus, hypertension, and obesity. (20 CFR § 404.1520(c)). Tr. 13.
3. Plaintiff does not have an impairment or a combination of impairments that
meet or medically equal the severity of one of the listed impairments in 20
CFR Pt. 404, Subpt. P, App. 1. (20 CFR §§ 404.1520(d), 404.1525 &
404.1526). Tr. 14.
a. Plaintiff has the RFC to perform a full range of work at all exertional
levels but with the following nonexertional limitations: she should have no
exposure to hazards such as machinery, moving mechanical parts, and
unprotected heights. Tr. 14.
4. Plaintiff is capable of performing past relevant work as a cook. (20 CFR §
404.1565). Tr. 17.
Consequently, the ALJ concluded Plaintiff was not disabled as defined by the Social Security
Act. Tr. 18.

STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Batson v. Comm'r. Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "'Substantial evidence"' means
"'more than a mere scintilla but less than a preponderance,"' or more clearly stated, "'such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."' Bray

v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shala/a,
53 F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court

Page 6 - OPINION & ORDER

must weigh "both the evidence that supports and detracts from the [Commissioner's]
conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of
the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005).
Where the evidence before the ALJ is subject to more than one rational interpretation, the
Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d
at 1041). "However, a reviewing court must consider the entire record as a whole and may not
affirm simply by isolating a 'specific quantum of supporting evidence."' Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a
reviewing court "cannot affirm the [Commissioner's] decision on a ground that the
[Administration] did not invoke in making its decision." Stout v. Comm 'r. Soc. Sec. Admin., 454
F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ's
decision on account of an error that is harmless. Id at 1055-56. "[T]he burden of showing that an
error is harmful normally falls upon the party attacking the agency's determination." Shinseki v.

Sanders, 556 U.S. 396, 409 (2009).
Even where findings are supported by substantial evidence, "the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript
record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or
without remanding the case for a rehearing.
Ill
Ill

Page 7 - OPINION & ORDER

DISCUSSION

Plaintiff argues the ALJ erred by (1) failing to assign weight to Dr. Emery's opinion that
Plaintiff suffered from a stroke in summer 2013; (2) analyzing the evidence at step two of the
sequential analysis improperly by failing to consider Plaintiffs impairments resulting from her
first stroke; and (3) improperly affording little weight to Plaintiffs husband's testimony.
SUMMARY

The ALJ held the medical evidence found in the record indicated Plaintiff was discharged
from Albany General in December 2013, and her diagnoses "was a staph infection with sepsis
with colitis and post cardiovascular cognitive impairment." Tr. 16. He noted that while "her
treatment records indicated that she had a history of a [cardiovascular accident] about six months
prior, this is history only, and there are no medical records confirming such incident." Tr. 16.
Accordingly, the ALJ did not give these treatment records, logged by Dr. Emory, any weight. Tr.
16-17. As discussed below, this was error. Additionally, the ALJ erred at step two of the
sequential analysis because he improperly failed to consider Plaintiffs impairments resulting
from her first stroke. Finally, the ALJ improperly rejected Plaintiffs husband's testimony. The
ALJ' s decision is therefore vacated, and the case is remanded for immediate award of benefits.
I.

The ALJ failed to provide specific and legitimate reasons to discount Dr.
Emory's opinion that Plaintiff suffered from a stroke in summer 2013.
As stated, the ALJ determined that while Plaintiffs "treatment records" did indeed

indicate a cardiovascular accident about six months prior, "this is history only, and there are no
medical records confirming such incident." Tr. 16. The treatment records, which were completed
by Dr. Emory, Plaintiffs treating physician, were therefore given no weight in the ALJ's
analysis. For the reasons below, the Court finds this to be erroneous.

Page 8 - OPINION & ORDER

An ALJ may properly reject a treating or examining physician's uncontradicted medical

opinion only for "'clear and convincing' reasons." Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1995) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). When the treating or
examining physician's opinion has been contradicted, however, it may be rejected for "'specific
and legitimate reasons that are supported by substantial evidence in the record."' Carmickle v.
Comm 'r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-

31). This can be done by setting out a detailed and thorough summary of the facts, providing an
appropriate interpretation thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989). An ALJ "need not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings."
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

Here, the ALJ found Plaintiff suffered from a stroke on November 27, 2013, the very day
she was admitted to Albany General. Tr. 13. Because the stroke occurred in November, the ALJ
further held that her stroke was "not a medically determinable impairment" because her date last
insured was September 30, 2013. Tr. 13. There is absolutely no evidence in the record to indicate
Plaintiff suffered a stroke on November 27, 2013; instead, the uncontroverted medical evidence
plainly demonstrates that Plaintiff was admitted to Albany General with a neck abscess and
sepsis resulting from a lice infection and/or a spider bite.
First, as Dr. Emory stated on November 27, 2013, I "am admitting the patient for
inpatient ICU services for treatment of sepsis." Tr. 527. Two weeks later, Dr. Emory again noted
Plaintiff "was admitted 2 weeks ago with a neck abscess and sepsis," and, in fact, a CT scan of
Plaintiffs head analyzed by Dr. Frederic Bahnson, M.D., revealed "no new [cardiovascular
accident]." Tr. 527. Finally, in her discharge diagnosis, Dr. Emory stated Plaintiff "was admitted

Page 9 - OPINION & ORDER

[and] treated for staph bacteremia and neck abscess." Tr. 531. Hence, there is nothing that would
even remotely suggest Plaintiff suffered a stroke on November 27, 2013. Nevertheless, the ALJ
determined, seemingly on his own volition, that Plaintiffs stroke occurred on this date, after her
date last insured. Tellingly, the ALJ fails to cite to anything in the record that suggests this was
the case.
Moreover, Dr. Emory's notes indicate Plaintiff suffered a stroke six months prior to her
December 2013 discharge. In her discharge diagnosis on December 31, 2013, Dr. Emory
determined that Plaintiff had suffered from a cardiovascular accident, or stroke, "6 month[ s]
ago." Tr. 531. And when Plaintiff was subsequently admitted to Albany General in May 2014 for
a second stroke, Dr. Emory again stated Plaintiff was previously "hospitalized in November
[2013] ... due to neck abscess due to lice infection. Summer that year she had a [right side basal
ganglia] [cardiovascular accident]" that led to "residual [left upper extremity/lower extremity]
weakness." Tr. 237 (emphasis added). Hence, the only medical evidence documented on or about
November 27, 2013, the date the ALJ found Plaintiff suffered her first stroke, indicates the stroke
occurred during the summer of that year. Yet the ALJ ignores this evidence, stating "this is by
history only." Tr. 16. But as discussed, an ALJ is entitled to reject the uncontradicted medical
opinion of a treating physician such as Dr. Emory only for "'clear and convincing' reasons."
Lester, 81 F.3d at 830 (9th Cir. 1995) (quoting Baxter, 923 F.2d at 1396). And even when the

treating physician's opinion has been contradicted, it may only be rejected for "'specific and
legitimate reasons that are supported by substantial evidence in the record."' Carmickle, 533
F.3d at 1164 (quoting Lester, 81 F.3d at 830-31).
In an attempt to meet this burden, and in arguing Dr. Emory's opinion should be given no
weight, the ALJ cited to (1) state agency medical evaluator Llyod Wiggins's, M.D, findings; (2)

Page 10 - OPINION & ORDER

Plaintiffs March 2013 function report; (3) Plaintiffs uncontested lack of credibility; (4) and a
handwritten report from a clinician at a free health care clinic in Albany in June 2013. The Court
addresses each in turn.
A. Dr. Wiggins
First, in rejecting Dr. Emory's medical opinion that Plaintiff suffered from a stroke, or
cardiovascular accident, in the summer of 2013, the ALJ pointed to state agency medical
evaluator Dr. Wiggins. Tr. 17. Dr. Wiggins reviewed Plaintiffs medical record in late August
2013 and stated Plaintiff "had no limitations other than avoiding moderate exposure to hazards
(such as machinery, heights, etc.)." Tr. 17. The ALJ gave Dr. Wiggins's report "great weight,"
arguing he reviewed the "longitudinal medical evidence of record." Tr. 17. In August 2013,
however, Plaintiff had not yet been admitted to Albany General, nor had she been treated by Dr.
Emory. Accordingly, Dr. Wiggins's "review" of Plaintiffs "longitudinal medical evidence of
record" did not include Plaintiffs treating physician's opinion that she suffered from a stroke in
summer 2013. Had Dr. Wiggins been privy to this information, his evaluation of Plaintiffs
medical history may very well have been in line with Dr. Emory's.
"The opinion of a nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an examining physician or a treating
physician." Lester, 81 F.3d at 831 (internal citations omitted) (emphasis in original). This is
especially true where, as here, the nonexamining physician did not even have access to the
treating physician's opinion when making his findings. Hence, Dr. Wiggins's opinion does not
justify the rejection of Dr. Emory's opinion.
I II
I II

Page 11 - OPINION & ORDER

B. March 2013 function report

Second, the ALJ found that Plaintiffs alleged symptoms "prior to the date last insured
are not consistent with her daily activities. In her function report from March 2013, she reported
she made breakfast and full meals for her husband, did dishes and laundry and watched
television. She also indicated she spent time planting flowers and pulling weeds." Tr. 16. The
Court fails to see how this function report is relevant in any way. Plaintiffs amended onset date
is July 1, 2013. Tr. 72. Dr. Emory's opinion was that Plaintiff suffered from a cardiovascular
accident six months prior to December 31, 2013-sometime in the summer of 2013.
Accordingly, a March 2013 function report is entirely irrelevant and certainly does not constitute
substantial evidence worthy ofrejecting Dr. Emory's medical opinion.
C. Plaintiff's lack of credibility

Third, Plaintiffs "uncontested lack of credibility," Def.'s Brief, at 10, was not a
sufficient reason to reject Dr. Emory's medical opinion. The ALJ noted Plaintiff testified she had
a stroke in summer 2013. Tr. 14. She also testified "she could not move her hands a certain
way." Tr. 14. Seeming to contradict this testimony, however, at least according to the ALJ,
Plaintiff also "stated she was still able to play cards such as Gin Rummy"; "was still able to walk
after the incident in the summer of 2013, but she tired easily"; "still went to the grocery store
after that time, but[] her husband did all the grocery shopping"; and "stood and did dishes for 20
minutes in the summer of 2013." Tr. 14.
This is not substantial evidence justifying the ALJ's decision to reject Dr. Emory's
medical opinion. Simply because Plaintiff stated she had a stroke in summer 2013 and the ALJ
does not find her testimony credible is not, alone, a reason to reject Dr. Emory's finding. While
"[a] physician's opinion of disability 'premised to a large extent upon the claimant's own

Page 12 - OPINION & ORDER

accounts of his symptoms and limitations' may be disregarded where those complaints have been
'properly discounted,"' Morgan v. Comm 'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)
(citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)), Dr. Emory's opinion that Plaintiff
suffered from a cardiovascular accident six months prior to her stay at Albany General was
based, not on Plaintiffs subjective complaints, but on Dr. Emory's own objective findings, made
after evaluating and treating Plaintiff for a month. For instance, she noted during Plaintiffs
November 27 admission that Plaintiff was lethargic, responded unintelligibly, and "[h]er fine
motor skills were lacking on the left bilateral lower extremities as she did not move on
command," symptoms consistent with a stroke. Tr. 16. Similarly, Dr. Emory later observed that
Plaintiff experienced residual left hemiparesis during her stay, Tr. 531, consistent with Dr.
Emory's later finding that Plaintiff suffered a cardiovascular accident in summer 2013 that led to
"residual [left upper extremity/lower extremity] weakness." Tr. 237. Indeed, there is nothing in
Dr. Emory's medical notes to indicate her findings were based on Plaintiffs subjective
complaints, or, for that matter, that Plaintiff ever informed Dr. Emory that she thought she may
have had a stroke six months prior to her hospitalization.
D. Handwritten health care provider report

Fourth, the Court finds nothing in the handwritten report that contradicts Dr. Emory's
opinion. Plaintiffs husband, Dean Davis, testified that Plaintiff was suffering from significant
health problems in summer 2013; he stated he routinely had to help her in and out of bed, in and
out of chairs, and "[s]ometimes she couldn't even make it to the bathroom without doing it on
the floor." Tr. 60. The couple, however, did not have medical insurance at the time, so Mr. Davis
took Plaintiff to a free health care clinic. Tr. 60-61. The handwritten report from the health care
provider, who is not identified, states that Plaintiffs blood pressure was high; that she was taking

Page 13 - OPINION & ORDER

a prescription drug, Metoprolol; and that she should avoid candy and focus on vegetables and
low-glycemic fruits. 4 Tr. 510. The report also provides lab work, which, as the ALJ points out,
"reflect[s] uncontrolled diabetes." Tr. 16.
The ALJ fails to set out in any type of detail how this report contradicts Dr. Emory's.
Presumably, because the report does not "record [] a 'mini stroke' in the summer of 2013," Tr.
16, the ALJ finds the handwritten report at odds with Dr. Emory's. But even if this were true, a
dubious assumption given the report does nothing to rule out a stroke, this brief and conclusory
handwritten report is hardly the type of substantial evidence worthy of discrediting a treating
physician's opinion. The Commissioner is to consider specific factors in determining the weight
to be given to a treating physician's opinion; one of those factors is "the length of the treatment
relationship and the frequency of examination by the treating physician." Orn v. Astrue, 495 F .3d
625, 631 (9th Cir. 2007) (internal quotations and citations omitted). Here, Dr. Emory's treatment
relationship consisted of a month-long hospital stay where Dr. Emory had access and the ability
to observe Plaintiffs symptoms every day. By contrast, this unnamed health care provider
treated Plaintiff once, and there is nothing to suggest the provider had any prior treatment
relationship with Plaintiff. Accordingly, the handwritten report is not substantial evidence.
E. Whether Dr. Emory's treatment notes are considered medical opinions

Finally, in a last-ditch effort to justify the ALJ's findings, the Commissioner argues Dr.
Emory's "treatment notes" were not medical opinions and thus are not entitled to the type of
weight ordinarily afforded to a treating physician's opinions. First, in putting forth this argument,
the Commissioner points to 20 C.F.R. § 404.1527(a)(l), which states that "[m]edical opinions
are statements from acceptable medical sources that reflect judgments about the nature and
severity of [the claimant's] impairment(s), including [her] symptoms, diagnosis and prognosis,
4

The remainder of the report is either irrelevant or entirely illegible. Tr. 511-13.

Page 14 - OPINION & ORDER

what [she] can still do despite impairment(s), and [her] physical or mental restrictions." The
plain language of this regulation demonstrates that Dr. Emory's treatment notes, which contain
statements reflecting her judgments about Plaintiffs symptoms after observing Plaintiff and
treating her daily for a month, are medical opinions. Nevertheless, the Commissioner seems to
believe the notes are not worthy of being credited as medical opinions because they detail
medical events that took place before Dr. Emory treated Plaintiff. It is "possible," however,
"based on the medical evidence," for a treating physician "to reasonably infer that the onset of a
disabling impairment(s) occurred some time prior to the date of the first recorded medical
examination." Armstrong v. Comm 'r Soc. Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998).
The Commissioner argues, however, that the "'history' that appeared in Plaintiffs
medical records was provided by Plaintiff and her family." Def. Brief, at 14. There is nothing in
the record to support this argument. Dr. Emory's relevant treatment notes state, at the time of
Plaintiffs admission, that Plaintiff was lethargic, responded unintelligibly, and "[h]er fine motor
skills were lacking on the left bilateral lower extremities as she did not move on command," Tr.
16, objectively observed symptoms consistent with a cardiovascular accident. Next, after
observing Plaintiff for a month, on December 31, 2013, Dr. Emory determined that Plaintiff had
suffered from a cardiovascular accident "6 month[s] ago." Tr. 531. Last, when Plaintiff was
subsequently admitted to Albany General in May 2014 for a second stroke, Dr. Emory stated
Plaintiff was previously "hospitalized in November [2013] ... due to neck abscess due to lice
infection. Summer that year she had a [right side basal ganglia] [cardiovascular accident]" that
led to "residual [left upper extremity/lower extremity] weakness." Tr. 237. Nothing in these
notes indicates in any way that these statements were derived from anything but Dr. Emory's
own observations and judgments. Dr. Emory did note, on the day of Plaintiffs admission, that

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Plaintiff's daughter wondered whether her mother may have had "a stroke at some point," Tr.
521, but, again, the record is replete of evidence showing Dr. Emory's medical opinions were
gleaned from this statement alone and not from her month-long treatment of Plaintiff, whereby
she observed, for instance, that Plaintiff experienced residual left hemiparesis, consistent with a
cardiovascular accident that, as Dr. Emory stated, led to "residual [left upper extremity/lower
extremity] weakness." Tr. 237, 531. Hence, Dr. Emory's "treatment notes" were medical
opinions, and as the treating physician, her opinion that Plaintiff suffered from a stroke in the
summer of 2013 was entitled to be rejected only upon a showing of substantial evidence to the
contrary. 5 As demonstrated, no such evidence exists. Accordingly, the ALJ erred in rejecting Dr.
Emory's medical opinion.
II.

The ALJ erred in step two of the sequential analysis by failing to consider the
impairments she suffered after enduring her first stroke
Plaintiff contends the ALJ erred by failing to consider the residual impairments she

suffered from her summer 2013 cardiovascular accident at step two of the sequential analysis. At
step two of the five-step analysis, "the ALJ assesses whether the claimant has a medically severe
impairment or combination of impairments that significantly limits his ability to do basic work
activities." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (internal citations omitted).
Here, the ALJ determined that Plaintiff suffered from diabetes mellitus, hypertension, and
obesity; that these "medically determinable impairments [were] supported by the medical
evidence of record"; and that they were "severe because they pose[d] more than a minimal
limitation on [Plaintiff's] ability to perform basic work activities." Tr. 13. Importantly, the ALJ
found that Plaintiff's first stroke was "not a medically determinable impairment for the time
5

The Court notes it does not appear Dr. Emory's opinion that Plaintiff suffered from a stroke in the summer
of 2013 is controverted by other medical evidence; however, for the sake of argument, it assumes such evidence
existed and that the ALJ only needed to provide specific and legitimate reasons, supported by substantial evidence in
the record, to reject her opinion.

Page 16 - OPINION & ORDER

period at issue" because she suffered the stroke on November 27, 2013, after her date last
insured. Tr. 13.
The ALJ' s finding is not supported by the evidence. As discussed, the record contains no
evidence to indicate Plaintiff suffered a stroke on November 27, 2013. Rather, the medical
evidence provided by Dr. Emory, Plaintiff's treating physician, plainly demonstrates Plaintiff
was admitted to Albany General with a neck abscess and sepsis resulting from a lice infection
and/or a spider bite on November 27, 2013, not a stroke, and that Plaintiff had in fact suffered
from a stroke in the summer of 2013. See, e.g., Tr. 237, 531.
In assessing the severity of a claimant's impairment, "an ALJ must consider all relevant
evidence in the record, including, inter alia, medical records, lay evidence, and the effects of
symptoms, including pain, that are reasonably attributed to a medically determinable
impairment." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal quotations
and citations omitted). In this case, the ALJ entirely disregarded the medical records provided by
Dr. Emory. As detailed in Section I, the ALJ's decision to disregard this evidence was improper.
As a result, the ALJ failed to consider all relevant evidence in the record in assessing the severity
of Plaintiff's alleged impairment. And while there may be cases in which the failure to consider
relevant evidence in assessing the severity of a claimant's impairment is harmless, Robbins, 466
F.3d at 885, the error here was not harmless.
The Ninth Circuit has "only found harmless error when it [is] clear from the record that
an ALJ's error was inconsequential to the ultimate nondisability determination." Robbins, 466
F.3d at 885 (internal quotations and citations omitted). Here, the fact that the medically
determinable limitations of Plaintiff's stroke, or cardiovascular accident, were excluded meant
they were not considered in the ALJ's RFC analysis, an analysis which found Plaintiff could

Page 17 - OPINION & ORDER

perform a full range of work at all exertional levels and that Plaintiff was capable of performing
past relevant work as a cook. The ALJ' s factually unsupported finding that Plaintiffs stroke
occurred after her date last insured, and thus was not a medically determinable impairment for
the time period at issue, was critical to this RFC finding; indeed, the Social Security
Administration's hired vocational expert testified that if Plaintiff had in fact suffered a stroke
before her date last insured, as Dr. Emory's medical opinion indicated, "it would be fair to say
that that would preclude her past work and preclude any jobs to which she might have
transferable skills," Tr. 66-70, a determination that differs markedly from the ALJ's RFC
analysis, and one that would have resulted in a finding of disability, as Plaintiff would have been
unable to engage in past relevant work or any other type of substantial gainful employment in the
national economy. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv); 404.1520(a)(4)(v);
416.920(a)(4)(v); 404.1560(c); 416.960(c). Consequently, as explained, the ALJ failed to
consider Dr. Emory's medical opinion that Plaintiff suffered a stroke in summer 2013 as part of
his step-two analysis, and this error was far from harmless.

III.

The ALJ improperly discredited Plaintiff's husband's testimony
Last, Plaintiff argues the ALJ erroneously discredited Plaintiffs husband's lay witness

testimony. Plaintiffs husband, Mr. Davis, testified that, based on his observations, he believed
Plaintiff had a stroke sometime in the summer of 2013. Tr. 59. He stated that around that time
Plaintiff "wasn't cooking as much, she wasn't doing anything, and I had to help her more ... she
just completely stopped all that and she just wasn't doing anything ... she just sat in her chair
and that was it." Tr. 59. Additionally, he stated he had to help her in and out of bed, in and out of
chairs, and, perhaps most strikingly, she "sometimes ... couldn't even make it to the bathroom
without doing it on the floor." Tr. 60.

Page 18 - OPINION & ORDER

The ALJ discredited Mr. Davis's testimony. According to the ALJ, "Mr. Davis'
statements are given little weight because he is not an acceptable medical source and there is no
corroborating evidence from the time period at issue to support debilitating limitations prior to
the date last insured." Tr. 17.
"Lay testimony as to a claimant's symptoms or how an impairment affects the claimant's
ability to work is competent evidence that the ALJ must take into account." Molina v. Astrue,
674 F.3d 1104, 1114 (9th Cir. 2012) (internal citations omitted). Lay witness testimony cannot
be discounted without providing germane reasons for doing so. Id. Here, the ALJ failed to
provide germane reasons for discounting Mr. Davis's testimony. As explained, the ALJ's first
stated reason for rejecting Mr. Davis's testimony was that he was not an acceptable medical
source. An ALJ may not reject or discredit lay testimony simply because they are not an
acceptable medical source; "friends and family members in a position to observe a claimant's
symptoms and daily activities are competent to testify as to her condition." Dodrill v. Shalala, 12
F.3d 915, 918-19 (9th Cir. 1993) (internal citations omitted). Hence, this reason was not
germane.
Next, in support of his assertion that the evidence does not corroborate Mr. Davis's
testimony, the ALJ points to Dr. Wiggins's review of Plaintiffs medical record, which the ALJ
describes as "longitudinal." Tr. 17. The ALJ notes that Dr. Wiggins's review made no mention
of the debilitating limitations Mr. Davis described of in his testimony. As previously pointed out,
however, Dr. Wiggins reviewed Plaintiffs "longitudinal" medical record in August 2013, before
Plaintiff had been admitted to Albany General and before she had been treated by Dr. Emory.
Accordingly, Dr. Wiggins's "review" of Plaintiffs "longitudinal medical evidence ofrecord" did
not include Plaintiffs treating physician's opinion that she suffered from a stroke in summer

Page 19 - OPINION & ORDER

2013. It hardly seems a stretch to say that if Dr. Wiggins had access to this critically important
piece of information, his evaluation of Plaintiffs medical history may very well have been in
line with Mr. Davis's testimony. Moreover, aside from the cursory, handwritten report provided
by the free health care clinic Plaintiff visited in summer 2013, it is not clear what medical
evidence existed from summer 2013 and thus what Dr. Wiggins reviewed that would have made
him a reliable authority on Plaintiffs behavior during the time period Mr. Davis testified about.
But all of this aside, the ALJ's "rejection of the testimony of [Mr. Davis] because [Plaintiffs]
medical records d[o] not corroborate her [symptoms] violates SSR 88-13, which directs the ALJ
to consider the testimony of lay witnesses where the claimant's alleged symptoms are
unsupported by her medical records." Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)

(citing SSR 88-13) (emphasis in original). Accordingly, the ALJ's second proffered reason for
rejecting Mr. Davis's testimony, like the first, is not germane. Having failed to provide germane
reasons for rejecting Mr. Davis's testimony, the ALJ's decision to do so was erroneous.
REMAND
"The decision whether to remand a case for additional evidence, or simply to award

benefits is within the discretion of the court." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.
1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). Generally, when a court reverses
an administrative decision, "'the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation."' Benecke v. Barnhart, 379 F.3d 587, 595
(9th Cir. 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)). The issue turns on the utility of
further proceedings. A remand for an award of benefits is appropriate when no useful purpose
would be served by further administrative proceedings. Rodriguez v. Bowen, 876 F.2d 759, 763
(9th Cir. 1989); Smolen, 80 F.3d at 1292.

Page 20 - OPINION & ORDER

On this record, the Court believes no useful purpose would be served by remanding the
case for further proceedings. In this case, "the record has been fully developed and there is not
sufficient evidence to support the ALJ's conclusion." Bowen, 867 F.2d at 763 (citing Hoffman v.
Heckler, 785 F.2d 1423, 1425 (9th Cir. 1985)). The Court is properly convinced that the ALJ
failed to provide substantial evidence to support his decision rejecting Dr. Emory's largely
uncontradicted medical opinion. Moreover, despite the Commissioner's arguments to the
contrary, the record is fully developed and no meaningful purpose would be served by
remanding for additional proceedings. Indeed, as the Commissioner's own vocational expert
testified, accepting as true Dr. Emory's medical opinion that Plaintiff suffered a stroke in the
summer of 2013, "it would be fair to say that that would preclude her past work and preclude any
jobs to which she might have transferable skills." Tr. 66-70. A claimant who is unable to perform
past relevant work as well as any other work that exists in significant numbers in the national
economy, after taking into account the claimant's RFC and age, education, and work experience,
1s

disabled.

20

C.F.R.

§§ 404.1520(a)(4)(iv);

416.920(a)(4)(iv);

404.1520(a)(4)(v);

416.920(a)(4)(v); 404.1560(c); 416.960(c). Plaintiff meets these criteria, is therefore disabled,
and remanding this case for further administrative proceedings would serve no useful purpose;
"rather, it would merely delay the award of benefits." Bowen, 876 F.3d at 763. Thus, the
Commissioner's decision is reversed and remanded for the payment of benefits.

II I
Ill

II I
I II
I II

Page 21 - OPINION & ORDER

ORDER
Based on the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision
of the Commissioner is REVERSED and the matter is REMANDED for immediate payment of
benefits.
IT IS SO ORDERED.

Page 22 - OPINION & ORDER