Hirshon v. Commissioner Social Security Administration

Filing 17

Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate calculation and award of benefits. IT IS SO ORDERED. Signed on 2/28/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

HEATHER ANN HIRSHON,
Plaintiff,
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

BRENT WELLS
KATHERINE EITENMILLER
Harder Wells Baron & Manning, PC
474 Willamette St., Suite 200
Eugene, OR 97401
[phone]
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]

1 - OPINION AND ORDER

6:16-cv-02265-BR
OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
THOMAS M. ELSBERRY
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Heather Ann Hirshon seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter for the immediate
calculation and award of benefits.

ADMINISTRATIVE HISTORY
Plaintiff protectively filed her application for SSI
benefits1 on April 24, 2013.

Tr. 18.2

Plaintiff alleges a

1

Plaintiff initially filed for both SSI and Disability
Insurance Benefits (DIB), but withdrew her DIB application on
May 1, 2015. Tr. 244.
2

Citations to the official transcript of record filed by
the Commissioner on May 23, 2017, are referred to as "Tr."
2 - OPINION AND ORDER

disability onset date of April 24, 2013.3

Tr. 19.

Plaintiff’s

application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on July 8, 2015.
Tr. 18, 33-57.

Plaintiff and a vocational expert (VE) testified.

Plaintiff was represented by an attorney at the hearing.
On July 31, 2015, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 18-27.

On August 12, 2015, Plaintiff requested

review by the Appeals Council.

Tr. 13.

On September 28, 2016,

the Appeals Council denied Plaintiff’s request to review the
ALJ’s decision, and the ALJ’s decision became the final decision
of the Commissioner.

Tr. 1-4.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).
On December 2, 2016, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on January 27, 1982.

Tr. 26.

was thirty-three years old at the time of the hearing.
has limited education.

Tr. 26.

Plaintiff
Plaintiff

The ALJ found Plaintiff does not

have any past relevant work experience.

Tr. 26.

Plaintiff alleges disability due to mastocytosis mast cell

3

On May 1, 2015, Plaintiff amended her disability onset
date to April 24, 2013.
3 - OPINION AND ORDER

disorder, swelling of throat, weakness, food intolerance,
depression, bone and joint pain, stomach pain, rashes all over
her body, low immune system, numbness in face and body, and
memory problems.

Tr. 76.

Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 21-26.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate her

inability “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.”
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
4 - OPINION AND ORDER

supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.

Id. (citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

5 - OPINION AND ORDER

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful
activity (SGA).

20 C.F.R. § 416.920(a)(4)(I).

See also Keyser

v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
§ 416.920(a)(4)(ii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 416.920(a)(4)(iii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 416.920(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

6 - OPINION AND ORDER

“A

‘regular and continuing basis’ means 8 hours a day, for 5 days a
week, or an equivalent schedule.”

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines (or the
grids) set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

If the Commissioner meets this burden,

the claimant is not disabled.

7 - OPINION AND ORDER

20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since April 24, 2013, Plaintiff’s
application date.

Tr. 20.

At Step Two the ALJ found Plaintiff has the severe
impairments of obesity and mast cell disorder (mastocytosismastocytoma).

Tr. 21.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 22.

The ALJ found Plaintiff has the RFC to

perform the full range of medium work.

Tr. 23.

At Step Four the ALJ concluded transferability of job skills
is not an issue because Plaintiff does not have past relevant
work experience.

Tr. 26.

Based on Plaintiff’s age, education, work experience, and
RFC, the ALJ found at Step Five that Plaintiff can perform other
work in the national economy.

Tr. 26-27.

Thus, the ALJ

concluded Plaintiff is not disabled and, therefore, is not
entitled to benefits.

Tr. 27.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed to
provide clear and convincing reasons for discrediting Plaintiff’s
8 - OPINION AND ORDER

testimony; (2) improperly discounted the medical opinion of one
of Plaintiff’s treating physicians; (3) failed to consider the
side-effects of Plaintiff’s medication when assessing her RFC;
and (4) improperly rejected the lay-witness testimony of Sharon
Cook, Plaintiff’s mother.
The Commissioner, however, contends (1) the ALJ reasonably
assessed Plaintiff’s subjective symptom testimony, (2) Plaintiff
failed to provide any objective evidence of limitations based on
the side-effects of her medication, (3) the ALJ reasonably
rejected the treating physician’s opinion, and (4) the ALJ
reasonably assessed the lay-witness’s statements.
I.

The ALJ erred when he found Plaintiff’s testimony was not
fully credible.
Plaintiff contends the ALJ erred when he failed to provide

clear and convincing reasons for discrediting Plaintiff’s
subjective symptom testimony.

Plaintiff argues her testimony

should be fully credited as true.
The Commissioner, in turn, contends the ALJ’s analysis of
Plaintiff’s symptom testimony is supported by substantial
evidence in the record, and the Court should uphold the ALJ’s
opinion as to Plaintiff’s testimony.
A.

Standards
In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

9 - OPINION AND ORDER

of an impairment and must show the impairment or combination of
impairments could reasonably be expected to produce some degree
of symptom.

Cotton, 799 F.2d 1403, 1407 (9th Cir. 1986).

The

claimant, however, need not produce objective medical evidence of
the actual symptoms or their severity.

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is
not any affirmative evidence of malingering, the ALJ can reject
the claimant's testimony only if he provides clear and convincing
reasons for doing so.

Parra v. Astrue, 481 F.3d 742, 750 (9th

Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
1995)).

General assertions that the claimant's testimony is not

credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

Id. (quoting Lester, 81 F.3d at 834).

If the ALJ’s credibility finding is specific, clear,
and convincing, and supported by substantial evidence in the
record, the court may not engage in second-guessing.

See Thomas

v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
B.

Analysis
The ALJ concluded:

“[W]hile [Plaintiff’s] allegations

regarding her symptoms is [sic] generally credible, it is evident
that her symptoms are not nearly as debilitating as she has
alleged.”

Tr. 25.

The ALJ noted Plaintiff’s medications

improved her symptoms, her activities of daily living do not
10 - OPINION AND ORDER

support a finding of disability, and her work history and poor
earnings record raise questions about her limitations.
1.

Symptoms and Medication Side-Effects

At the hearing Plaintiff stated when she was diagnosed
with mast cell activation syndrome in April 2013, she “could not
do anything except sleep on a couch” as a result of the
medications she took.

Tr. 40.

She described her symptoms as

“headaches,” her “body feels like it’s on fire,” “flushing,”
“joints start aching,” “tiredness,” “throat swells,” “can’t
function,” and “major pain.”

Tr. 40-41.

experiences dizziness and forgetfulness.

She also testified she
Tr. 50.

Plaintiff

testified these symptoms (“attacks”) can last “a day to weeks.”
Tr. 47.

When she experiences these symptoms, she takes

medications.

Tr. 50.

Plaintiff stated, however, she “never

feel[s] normal” and has never been completely symptom-free.
Tr. 48.

Plaintiff also testified the medications make her

“loopy” and “very tired,” and she usually lies down or sits down,
but she “can’t do anything” after taking the medications.
Tr. 50-51.
The ALJ noted Plaintiff’s physicians prescribed several
medications to treat her mast cell disorder symptoms, and those
medications appeared to be effective.

Tr. 24.

A month after

Plaintiff was prescribed Gastrocrom she reported her abdominal
pain was “much better,” she went from having diarrhea daily to

11 - OPINION AND ORDER

only having an episode every two weeks, and her flushing episodes
were reduced to just once a week.

Tr. 24, 548.

On October 7,

2013, Sarah Kehl, M.D., one of Plaintiff’s treating physicians,
noted Plaintiff had “huge improvement” clinically.

Tr. 552.

On

August 7, 2014, Adam Williams, M.D., another one of Plaintiffs’
treating physicians, noted Ketotifen, a new medication, made a
“huge difference” in Plaintiff’s symptoms and she had fewer
episodes that required the use of Prednisone and Benadryl.
24, 635.

Tr.

The ALJ also noted Plaintiff admitted at the hearing on

July 8, 2015, that her current medications “helped with some
symptoms” and kept her from having “major pain.”

Tr. 41.

The ALJ relied on only part of Dr. Williams’s treatment
record of August 7, 2014.

The record in full context states:

[Plaintiff] has been treated with a number of
medications which have been unsuccessful at
controlling her symptoms.
As of her last visit, she was started on ketotifen
. . . that has made a huge difference. . . . She
also takes Gastrocrom . . . and has had good
success but not complete relief of GI or cutaneous
symptoms.
She returns today stating the ketotifen has helped
her. She has had fewer episodes requiring
prednisone and Benadryl. She does continue to
have frequent attacks of flushing, intense
itching, and hives. She also continues to have
episodes of diarrhea, abdominal cramping, and even
throat swelling.
Overall, she is better but she continues to
struggle with frequent episodes. This had has a
major negative impact on her quality of life.

12 - OPINION AND ORDER

Tr. 635.

Thus, although Plaintiff received some relief of her

symptoms from the use of medications, the record reflects the
medications have been “unsuccessful at controlling her symptoms.”
The record indicates Plaintiff continues to have “frequent”
attacks of flushing, intense itching, hives, episodes of
diarrhea, abdominal cramping, and throat swelling.

Tr. 635.

Although Dr. Williams stated Plaintiff is better “overall,” he
also indicated she “struggles with frequent episodes” that have
had a negative impact on her quality of life.

Tr. 635.

On this record the Court concludes the ALJ’s
credibility finding based on Plaintiff’s symptoms and medication
side-effects is not supported by substantial evidence in the
record.
2.

Activities of Daily Living

The ALJ found Plaintiff’s activities of daily living
“belie her assertions that she is incapacitated by her impairment
most of the time.”

Tr. 24.

At the hearing Plaintiff testified she often cannot
tell what triggers her “attacks,” and they can happen at any
time.

Tr. 52.

in a bubble.”

She described her life as “basically . . . I live
Tr. 52.

Plaintiff also testified her mother moved

from Veneta to La Pine, Oregon, to help Plaintiff care for her
children, and she spends one to three hours per day at
Plaintiff’s home helping with chores and caring for the children.

13 - OPINION AND ORDER

Tr. 53.

Plaintiff also testified she drives “maybe twice a

week,” but she often accompanies others who drive.
Plaintiff testified

Tr. 43.

her children take the bus to school in the

morning and she picks them up after school except on days when
she can’t drive and then either her mother or husband pick them
up.

Tr. 43-44.

days.”

Plaintiff testified she has “good days and bad

On good days she tries to do things, and on bad days she

is “usually on the couch just doing nothing.”

Tr. 45-46, 48.

The ALJ, however, relied on the fact that Plaintiff is
able to prepare simple meals, to do laundry and light household
chores, and to manage her finances independently.

Tr. 24.

The

ALJ noted Plaintiff cares for her four children, “which can be
quite demanding both physically and emotionally.”

Tr. 24.

The

ALJ also found Plaintiff spends time with others, drives to pick
up her children from school, attends teacher-parent conferences,
occasionally goes on field trips, and takes her dog to the dog
park.

Tr. 24.

The ALJ concluded these activities “are

inconsistent with a finding of disability.”

Tr. 24.

The Ninth

Circuit, however, has found “the mere fact that a plaintiff has
carried on certain daily activities . . . does not in any way
detract from [the] credibility as to her overall disability.”
Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).
On this record the Court concludes the ALJ’s
credibility finding based on Plaintiff’s activities of daily

14 - OPINION AND ORDER

living is not supported by substantial evidence in the record.
3.

Work History

The ALJ noted Plaintiff worked only sporadically before
the alleged disability onset date of April 24, 2013, and “has
never earned at substantial gainful activity levels since
beginning work in 1999.”

Tr. 24-25, 168.

The ALJ noted

Plaintiff quit working in 2005 because she was pregnant, and she
stated she did not look for work after she gave birth because her
husband had a good job and she did not need to work.

Tr. 25.

Based on this evidence the ALJ found Plaintiff’s work history and
poor earnings records “raises credibility concerns” regarding
Plaintiff’s symptom testimony.

Tr. 24-25.

Plaintiff testified at the hearing that she last worked
as a care-giver in 2006.

Tr. 41.

As noted, Plaintiff testified

she did not work after that time because her husband “got a good
job,” she “didn’t have to work,” and she became a stay-at-home
mom.

Tr. 41-42.
The record indicates Plaintiff became ill in October

2009 and experienced significant, persistent symptoms that were
not diagnosed until 2013.

Tr. 364-69.

See, e.g., Tr. 339 (June

2010 note documenting symptoms of chest pressure; diarrhea and
abdominal pain; generalized body flushing, burning, and feeling
“icy hot” with reduced pain in a “slouched position”; worsened
symptoms with certain foods); Tr. 337-38 (setting out symptoms

15 - OPINION AND ORDER

presented two weeks after Plaintiff’s October 2009
hospitalization); Tr. 333-34 (documenting gastroenterology
consultation for recurrent facial swelling, abdominal pain, whole
body pain, diarrhea, hematochezia, heartburn, liver lesion,
enlarged mesenteric nodes); Tr. 330 (assessing chronic
rhinosinusitis versus possible headache disorder); Tr. 328
(evaluating a possible thyroiditis diagnosis); Tr. 316-17
(rheumatology consultation concluding Plaintiff presented with
“an interesting case” and would need to rule out Sjogren’s
syndrome or the lgG IV related syndrome); Tr. 315
(gastroenterology follow-up in December 2011 noting there was not
any improvement in persistent symptoms); Tr. 311 (opining
Plaintiff’s throat swelling was likely secondary to thyroiditis);
Tr. 397 (noting a questionable diagnosis of Hishimoto’s disease);
Tr. 587-91 (November 2012 note expressing concern that Plaintiff
may have mast cell disorder); Tr. 376 (May 2013 gastroenterology
consultation summarizing Plaintiff’s course of treatment and
numerous diagnostic studies since the 2009 onset of symptoms and
recommending a colonoscopy with biopsies of the colon to evaluate
mast cell disorder even if it appears normal); Tr. 381-84
(pathology results positive for increased mast cells in the
colon); Tr. 637 (assessing “very severe and frequent”
mastocytosis symptoms in May 2014).
On this record the ALJ’s credibility finding based on

16 - OPINION AND ORDER

Plaintiff’s work history is not supported by substantial evidence
in the record.
In summary, the Court concludes the ALJ erred when he
discredited Plaintiff’s testimony based on her symptoms and
medication side-effects, daily activities of living, and work
history because the ALJ did not provide legally sufficient
reasons for doing so and there is substantial evidence in the
record to support Plaintiff’s testimony.
II.

The ALJ erred when he discounted Dr. Williams’s opinion.
Plaintiff contends the ALJ erred when he discounted the

medical opinion of Dr. Williams, one of Plaintiff’s treating
physicians.
The Commissioner asserts Dr. Williams did not provide any
credible assessment of Plaintiff’s abilities, and, in any event,
the ALJ reasonably rejected the “extreme limitations” found by
Dr. Williams.

The Commissioner, therefore, contends th ALJ’s

interpretation of the record is entitled to judicial deference.
A.

Standards
The opinion of a treating physician is generally

accorded greater weight than the opinion of an examining
physician, and the opinion of an examining physician is accorded
greater weight than the opinion of a reviewing physician.
v. Colvin, 763

F.3d 1154, 1160 (9th Cir. 2014).

Ghanim

To reject an

uncontradicted opinion of a treating physician, the ALJ must
17 - OPINION AND ORDER

provide “clear and convincing reasons that are supported by
substantial evidence.”
(9th Cir. 2005).

Bayliss v. Barnhart, 427 F.3d 1211, 1216

To reject a contradicted medical opinion of a

treating physician, the ALJ must articulate “specific, legitimate
reasons” that are based on substantial evidence in the record.
Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692 (9th
Cir. 2009).

Sufficient reasons for rejecting an examining

physician's opinion may include the physician’s reliance on a
claimant's discredited subjective complaints, inconsistency with
the medical records, inconsistency with a claimant's testimony,
and inconsistency with a claimant's daily activities.

Tommasetti

v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
B.

Analysis
On June 7, 2015, Dr. Williams completed a Medical

Evaluation of Plaintiff.

Tr. 651-55.

Dr. Williams stated he had

treated Plaintiff every one or two months since March 11, 2014.
Dr. Williams diagnosed Plaintiff with mast cell activation
syndrome and indicated it is “a life-long chronic debilitation
condition with poor prognosis for improvement.

Tr. 651.

He

described Plaintiff’s symptoms as including “[f]lushing,
dizziness, headache, throat swelling, fatigue, acute abdominal
attacks of terrible burning pain/cramping, shaking/tremulousness,
lightheadedness, memory impairment.”

Tr. 652.

Dr. Williams

noted Plaintiff needed to lie down or to rest for at least one
18 - OPINION AND ORDER

hour each day due to a combination of her condition and the sideeffects of her medications.

Tr. 652.

Dr. Williams noted Plaintiff’s functional impairment is
“highly variable,” but he indicated Plaintiff experiences “bad
days more often than good.”

Tr. 653.

Dr. Williams indicated

Plaintiff cannot walk even a city block without rest or
significant pain, is able to sit for only sixty minutes at one
time and three hours total in an eight-hour day, and can walk for
only five minutes at one time.

Tr. 653. Dr. Williams also noted

Plaintiff is unable to work, and, therefore, whether she could
perform a job that allowed her to change positions at will,
whether she requires unscheduled breaks, and whether she needed
to periodically elevate her legs in a physical eight-hour period
were not issues.

Tr. 653-54.

He indicated Plaintiff should not

lift or carry any amount of weight and would require breaks after
handling/fingering tasks,

Tr. 654.

Dr. Williams also stated

Plaintiff would miss more than four workdays per month due to her
condition.

Tr. 655.
The ALJ gave “little weight” to Dr. Williams’s opinion

regarding Plaintiff’s limitations and found Dr. Williams's
opinion was not credible on the ground that it was “so extreme.”
Tr. 25-26.

The ALJ found the treatment records do not support

Dr. Williams’s assessment of Plaintiff’s limitations.

Tr. 25.

For example, in November 2014 Dr. Williams noted Plaintiff’s

19 - OPINION AND ORDER

condition had improved and that her symptoms consisted primarily
of flushing.

The ALJ, however, concluded flushing was not the

cause of Plaintiff’s limitations.

Tr. 26.

The ALJ also

concluded even though Plaintiff’s impairments impacted her
quality of life, her symptoms are not a credible basis for
a finding of disability or for the limitations noted in
Dr. Williams’s report.

Tr. 26.

The ALJ, however, gave “great weight” to the opinion of
Neal Berner, M.D., a state-agency reviewing physician, who opined
Plaintiff could perform medium-level work.

Tr. 25.

As noted,

however, the opinion of a treating physician generally must be
accorded greater weight than the opinion of an examining or
reviewing physician.

Ghanim, 763 F.3d at 1160.

To reject a

contradicted medical opinion of a treating physician, the ALJ
must articulate “specific, legitimate reasons” that are based on
substantial evidence in the record.

Valentine, 574 F.3d at 692.

On this record the Court concludes the ALJ erred when
he failed to provide legally sufficient reasons based on
substantial evidence in the record for rejecting the opinion of
Dr. Williams, Plaintiff’s treating physician.
III. The ALJ erred by failing to consider the side-effects of
Plaintiff’s medications when he assessed Plaintiff’s RFC.
Plaintiff contends the ALJ erred when he failed to consider
the side-effects of Plaintiff’s medications when he assessed
Plaintiff’s RFC.
20 - OPINION AND ORDER

The Commissioner asserts the only evidence of limitations
was Plaintiff’s own testimony, which the ALJ found was not
credible.

The Commissioner contends any error by the ALJ in

failing to consider the side-effects of Plaintiff’s medication
was harmless because Plaintiff did not offer any objective
evidence of functional limitations resulting from mental
limitations, fatigue, or drowsiness caused by the frequent use of
Benadryl or other medications.
A.

Standards
The side-effects of medication can affect an

individual's ability to work, and, therefore, the ALJ must
consider them when making a determination of disability.

Varney

v. Sec’y of Health & Human Svcs., 846 F.2d 581, 585 (9th Cir.
1988)(Varney I), modified on rehearing, 859 F.2d 1396 (9th Cir.
1988)(Varney II).
(9th Cir. 1991).

See also Bunnell v. Sullivan, 947 F.2d 341
“Side effects can be a ‘highly idiosyncratic

phenomenon’ and a claimant's testimony as to their limiting
effects should not be trivialized.”

Varney I, 846 F.2d at 585.

See also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Sullivan v.
Zebley, 493 U.S. 521, 535-36, 540 (1990).
B.

Analysis
The ALJ concluded Plaintiff could perform the full

range of medium work without any specified limitations.

Tr. 23.

Although the ALJ found Plaintiff’s medically determinable
21 - OPINION AND ORDER

impairments could reasonably be expected to cause some of her
alleged symptoms, he found the only evidence regarding
Plaintiff’s limitations resulting from her medications was her
own symptom testimony, which the ALJ concluded was not credible.
Tr. 23.

As a result, the ALJ did not include any limitations in

his assessment of Plaintiff’s RFC based on her medications sideeffects.
As noted, the Commissioner argues any error by the ALJ
was harmless because Plaintiff did not offer any objective
evidence of the side-effects of her medication.

The Commissioner

relies on Thomas v. Barnhart, 278 F.3d 948 (9th Cir. 2002), to
support her position.

In Thomas the court concluded the ALJ did

not err when he failed to consider the plaintiff’s testimony
regarding the side-effects of her medication because there was
not any objective medical evidence to support her testimony.
Here Plaintiff indicated in her Function Report that
she experienced sleepiness and drowsiness from taking her
medications, which included Benadryl and allergy medications.
Tr. 211.

At the hearing she testified she takes Prednisone and

Benadryl when she experiences an “attack,” takes Benadryl
sometimes two to three times a day, and experiences “a lot of
tiredness” from taking the medications.

Tr. 41.

Dr. Williams

also stated in his opinion that Plaintiff needs to lie down or to
rest for at least one hour each day in part due to the side

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effects of Benadryl and Ketotifen, which cause sedation.
Tr. 652-53.

The Court has already found the ALJ erred when he

did not provide specific, clear, and convincing reasons for
discounting Plaintiff’s testimony as to the limitations caused
by the side-effects of her medications and for discounting
Dr. Williams’s treatment notes that Plaintiff must rest
periodically due to the side-effects of those medications.
Tr. 652-53.
Accordingly, the Court concludes on this record that
the ALJ erred when he failed to provide legally sufficient
reasons supported by substantial evidence in the record for
failing to consider Plaintiff’s limitations caused by the sideeffects of her medications in his assessment of Plaintiff’s RFC.
IV.

The ALJ erred when he failed to provide germane reasons for
rejecting lay-witness testimony.
Plaintiff contends the ALJ erred when he failed to provide

germane reasons for discounting the lay-witness statements of
Sharon Cook, Plaintiff’s mother, regarding Plaintiff’s
limitations.
The Commissioner, however, contends the ALJ properly
considered Cook’s statements, and, in any event, any error by the
ALJ in failing to give germane reasons for rejecting her
statements was harmless.
A.

Standards
Lay-witness testimony regarding a claimant's symptoms

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is competent evidence that the ALJ must consider unless he
"expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so."
236 F.3d 503, 511 (9th Cir. 2001).

Lewis v. Apfel,

The ALJ's reasons for

rejecting lay-witness testimony must also be "specific."

Stout

v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
Nevertheless, an ALJ is not required to address each lay-witness
statement or testimony on an "individualized, witness-by-witnessbasis.

If the ALJ gives germane reasons for rejecting testimony

by one witness, the ALJ need only point to those reasons when
rejecting similar testimony by a different witness."

Molina v.

Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)(quotation omitted).
Germane reasons for discrediting a witness's testimony
include inconsistency with the medical evidence and the fact that
the testimony "generally repeat[s]" the properly discredited
testimony of a claimant.
1218 (9th Cir. 2005).

Bayliss v. Barnhart, 427 F.3d 1211,

See also Williams v. Astrue, 493 F. App'x

866 (9th Cir. 2012).
B.

Analysis
Cook stated in her Third-Party Function Report that

Plaintiff cared for her family, cooked, cleaned, did laundry, and
helped her children with their homework, “but only if she is not
feeling bad.”

Tr. 214.

Cook also stated Plaintiff was “trying

to be a good wife and mother [but it] isn’t easy when [Plaintiff]
24 - OPINION AND ORDER

is sick most of the time.”

Tr. 220.

The ALJ found Cook’s statements were credible, but he
concluded they were not grounds for finding Plaintiff disabled.
The ALJ concluded: “[W]hile it is likely true that caring for 4
children and maintaining a household is challenging with
[Plaintiff’s] symptoms, it is not a basis for disability.”
Tr. 26.

The ALJ, however, did not give any specific reasons

germane to cook for rejecting her statements.
On this record the Court concludes the ALJ erred when
he failed to give “germane” reasons for rejecting Cook’s
testimony.

REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.

Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).

issue turns on the utility of further proceedings.

The

A remand for

an award of benefits is appropriate when no useful purpose would
be served by further administrative proceedings or when the
record has been fully developed and the evidence is insufficient
to support the Commissioner’s decision.

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 court may not award

benefits punitively and must conduct a “credit-as-true” analysis

25 - OPINION AND ORDER

to determine whether 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 when:
(1) the ALJ has failed to provide legally sufficient reasons
for rejecting such evidence, (2) there are not any
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 if such evidence were credited.
Id.

The reviewing court should decline to credit testimony when

“outstanding issues” remain.
(9th Cir. 2010).

Luna v. Astrue, 623 F.3d 1032, 1035

When the court finds the elements of the

“credit-as-true” rule have been satisfied, however, the court may
only remand for further proceedings if “an evaluation of the
record as a whole creates serious doubt that the claimant is, in
fact, disabled.”

Garrison, 759 F.3d at 1021.

When “the

Commissioner fails to provide adequate reasons for rejecting the
treating physician’s opinion, we credit that opinion as a matter
of law.”

Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).

See also Reddick v. Chater, 157 F.3d 715, 729 (9th Cir. 1998)(“We
do not remand this case for further proceedings because it is
clear from the administrative record that Claimant is entitled to
benefits.”); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.
1989)(if remand for further proceedings would only delay the
receipt of benefits, judgment for the claimant is appropriate).
Here the Court concludes the ALJ erred when he failed to
26 - OPINION AND ORDER

provide legally sufficient reasons supported by substantial
evidence in the record for rejecting Dr. Williams’s opinion, the
testimony of Plaintiff, and the lay-witness testimony of Sharon
Cook.

It is clear from the record that the ALJ would be required

to find the claimant disabled when this evidence is credited.

In

addition, there are not any outstanding issues that must be
resolved before a determination of disability can be made.

Thus,

the Court concludes “it is clear from the administrative record
that [Plaintiff] is entitled to benefits,” and, therefore, no
useful purpose would be served by further administrative
proceedings.

See Reddick, 157 F.3d at 729.

Accordingly, the Court remands this matter for the immediate
calculation and award of benefits.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter to the Commissioner pursuant
to sentence four of 42 U.S.C. § 405(g) for the immediate
calculation and award of benefits.
IT IS SO ORDERED.
DATED this 28th day of February, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
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