Capistrano v. Commissioner Social Security Administration

Filing 29

OPINION & ORDER: The Commissioner's final decision denying Capistrano's application for supplemental security income is Reversed and Remanded for further proceedings. Signed on 5/3/18 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

HEATHER C. CAPISTRANO,
Plaintiff,
6:16-CV-02295-PK
OPINION AND ORDER

v.
COMMISSIONER,
Social Security,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff Heather Capistrano protectively filed this action on December 9, 2016, seeking
judicial review of the Commissioner of Social Security's final decision denying her applications
for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles
II and XVI of the Social Security Act (the "Act"). 1 This court has jurisdiction over Capistrano's

'Citations to "Tr." refer to the page(s) indicated in the official transcript of the
administrative record filed herein as Docket No. 14.
Page 1 - OPINION AND ORDER

action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). The patties have consented to jurisdiction
by U.S. Magistrate Judge in this matter. Docket No. 11.
Capistrano argues that the ALJ erred in ( 1) assessing the credibility of her symptom
allegations; and (2) evaluating the medical opinions of two treating physicians. I have considered
the parties' briefs and all of the evidence in the administrative record. For the reasons set fotth
below, the Commissioner's final decision is reversed, and this case is remanded for futther
proceedings.
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step
sequential process for determining whether a claimant has made the requisite demonstration. See

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). 2 At the first four steps of the process, the burden of proof is on the claimant; only
at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v.

Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ considers the claimant's work activity, if any. See Bowen, 482
U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the ALJ finds that the
claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See

2

Effective March 27, 2017, updates were made to the regulations. Some C.F.R. sections
referenced have been renumbered and the citations listed here are the versions of the C.F .R. that
were in effect at the time Capistrano requested judicial review.
Page 2 - OPINION AND ORDER

Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i),
416.920(b). Otherwise, the evaluation will proceed to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impairments.

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment is "severe" ifit significantly limits the claimant's ability to perform basic work
activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S.
at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work
activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§
404.1521(b), 416.92l(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's
impairments are not severe or do not meet the duration requirement, the claimant will be found
not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c),
416.920(a)(4)(iii), 416.920(c). Nevertheless, it is well established that "the step-two inquity is a
de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273,
1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-54. "An impairment or combination of
impairments can be found 'not severe' only ifthe evidence establishes a slight abnormality that
has 'no more than a minimal effect on an individual[']s ability to work."' Id., quoting Social
Security Ruling ("SSR") 85-28, 1985 SSR LEXIS 19 (1985).

If the claimant's impairments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impairments meet or equal "one of a number
of listed impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one

Page 3 - OPINION AND ORDER

of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will
conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d).

If the claimant's impairments are not equivalent to one of the enumerated impairments,
between the third and the fourth steps the ALJ is required to assess the claimant's residual
functional capacity ("RFC"), based on all the relevant medical and other evidence in the
claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of the
claimant's capacity to perform sustained, work-related physical and/or mental activities on a
regular and continuing basis,3 despite the limitations imposed by the claimant's impairments.

See 20 C.F.R. §§ 404.1545(a), 416.945(a); see also SSR 96-8p, 1996 SSR LEXIS 5 (July 2,
1996).
At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iv), 416.9520(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines
that the claimant can still perform his or her past relevant work, the claimant will be found not
disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or
her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden
of proof shifts, for the first time, to the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the

3

"A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an
equivalent work schedule." SSR 96-8p, 1996 SSRLEXIS 5 (July2, 1996).
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claimant's age, education, and work experience to determine whether a person with those
characteristics and RFC could perform any jobs that exist in significant numbers in the national
economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
416.920(a)(4)(v), 416.920(g). If the Commissioner meets her burden to demonstrate the
existence in significant numbers in the national economy of jobs capable of being performed by a
person with the RFC assessed by the ALJ between the third and fourth steps of the five-step
process, the claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R.
§§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 4!6.920(a)(4)(v), 416.920(g),
416.960(c), 416.966. A claimant will be found entitled to benefits ifthe Conunissioner fails to
meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

LEGAL STANDARD
A reviewing coutt must affirm an Administrative Law Judge's decision ifthe ALJ applied
proper legal standards and his or her findings are supported by substantial evidence in the record.

See 42 U.S.C. § 405(g); see also Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193
(9th Cir. 2004). "'Substantial evidence' means more than a mere scintilla, but less than a
preponderance; it is such relevant evidence as a reasonable person might accept as adequate to
support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The coutt must review the record as a whole, "weighing both the evidence that suppotts
and the evidence that detracts from the Conunissioner' s conclusion." Id, quoting Reddick v.

Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of

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the Commissioner. See id, citing Robbins, 466 F.3d at 882; see also Edlundv. Massanari, 253
F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent
findings of fact in determining whether the ALJ's findings are supported by substantial evidence
ofrecord. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is
immaterial that the evidence may be "susceptible [of! more than one rational interpretation.''

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d
1450, 1453 (9th Cir. 1984).
SUMMARY OF ADMINISTRATIVE RECORD
Capistrano was born on May 26, 1974. Tr. 67. Capistrano graduated from high school
and attended college for one year. Tr. 216. Prior to her amended alleged disability onset date of
September 14, 2012 (Tr. 44), Capistrano worked at a daycare and as a cosmetics representative,
although neither job constituted past relevant work (Tr. 32, 61 ).
Capistrano was refened to the Oregon Health Sciences University Rheumatology
depatiment, where she was seen by Ajay Wanchu, M.D., on April 11, 2011. Dr. Wanchu
diagnosed fibromyalgia based on 14 positive tender points. Tr. 261-62.
On May 13, 2011, Capistrano's treating physician, John Ward, M.D., interpreted a recent
CT scan which showed right-sided sacroiliitis. Tr. 319. The doctor felt it was "more the source
of her pain." Id. Other diagnoses included fibromyalgia, abnormal liver function, depression,
hypothyroidism, anxiety disorder, attention deficit disorder, sleep apnea, gestational diabetes,
GERD, and external otitis. Tr. 319-20.
Capistrano was evaluated by rheumatologist Michelle M. Ryan, M.D., in December 2011.

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Tr. 482. The doctor noted that Capistrano's pain had worsened 14 months prior, to the extent
Capistrano had difficulty walking. Dr. Ryan confirmed the sacroiliitis diagnosis, and indicated it
was possible that Capistrano also had psoriatic arthritis. Tr. 485-86.
On March 15, 2013, Capistrano was treated by Patricia O'Hare, M.D. She assessed
chronic plaque-like psoriasis with psoriatic mthritis, based on observing 12% of Capistrano's
body surface area covered in psoriatic plaques, and feet with fissures. Tr. 457.
Consultative physician, Brandon Markus, D.O., examined Capistrano and produced a
repo1t on March 23, 2013. Tr. 452. Dr. Markus diagnosed fibromyalgia based on 14 tender
points, and he included psoriatic arthritis as a diagnosis, although there were no objective
findings. Tr. 456. Dr. Markus opined that Capistrano could stand/walk for six hours in a
workday with frequent position changes, she could lift 50 pounds occasionally and 25 pounds
frequently. Id
By February 2014, Capistrano had increased pain and anxiety symptoms, in coajunction
with the death of her mother and, shortly thereafter, a divorce from her husband. Tr. 495.
In March 2014, Dr. Ryan repo1ted that Humira was not helpful in treating Capistrano's
psoriatic arthritis, but the medication Enbrel seemed to help somewhat. Tr. 470. Capistrano was
observed to have "very deep cracking" over the plantar area of her feet. Tr. 469. Dr. Ryan
additionally noted Capistrano was getting two Enbrel injections per month to treat her sacroiliitis
until her health insurance ran out. Tr. 467.
Capistrano began treatment at Corvallis Pain Management in December 2014. Tr. 522.
She received a steroid injection to treat sacroiliiac joint pain in Februaiy 16, 2015, which was
repo1ted to be 50% helpful in relieving pain. Tr. 516-17. In March 2015, Capistrano was

Page 7 - OPINION AND ORDER

discharged from the clinic for aberrant behaviors including taking non-prescribed medication,
discontinued prescriptions, and not attending a pill count meeting. Tr. 513.
Dr. Ward, in May 2015, noted that Capistrano had stopped taking her pain medications in
favor of taking hemp oil. Tr. 541. Significant improved pain control was noted. Id.
Dr. Ryan completed a functional capacity questionnaire in June 2015. Tr. 551-55. The
doctor noted the diagnoses of psoriatic arthritis and fibromyalgia, for which she had been seeing
Capistrano three to four times per year for three years. Tr. 551. The doctor opined that
Capistrano's significant pain and fatigue symptoms could not be explained by psoriatic arthritis
alone, attributing the excess pain to fibromyalgia. Tr. 552. The doctor indicated that Capistrano
must lie down and rest periodically for one to two hours. Id. Dr. Ryan fu1iher indicated
Capistrano could sit for 60 minutes at a time for six hours per day, but she could only stand/walk
for five minutes at a time for a total of one hour per day. Tr. 553. She futiher felt Capistrano
would require unscheduled breaks throughout the day, and could only occasionally lift ten
pounds. Tr. 554. Dr. Ryan also opined that Capistrano would likely miss more than four
workdays per month due to her impairments. Tr. 555.
Dr. Ward completed an identical functional capacity questionnaire in June 2015. Tr. 557561. The doctor indicated he had seen Capistrano for 11 years, four times per year. His
diagnoses were psoriatic arthropathy and fibromyalgia. Tr. 557. Dr. Ward opined that
Capistrano needed to rest one hour, twice per day. Tr. 558. The doctor assessed that Capistrano
could sit for 60 minutes at a time, four hours per day, and that she could stand/walk for 30
minutes at a time, for one hour per day. Tr. 559. Dr. Ward indicated Capistrano would require
unscheduled breaks every hour, and that she could occasionally lift ten pounds. Tr. 560. He too

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felt Capistrano would miss more than four workdays each month. Tr. 561.
The last chart notes of record are from a treatment visits with Dr. Ward in August and
October of2015. Capistrano repotted she was not taking narcotic pain medications in favor of
hemp oil, and was having "more intense pain, really uncomfottable for 4 or 5 days." Tr. 563.
Capistrano reported that her anxiety was improved. Tr. 565. In October 2015, Capistrano
reported to Dr. Ward that she had increased low back pain, which was significantly limiting her
functional abilities. Id.
SUMMARY OF ALJ FINDINGS

At the first step of the five-step sequential evaluation process, the ALJ found that
Capistrano had not engaged in substantial gainful activity since September 14, 2012, the alleged
onset date. Tr. 23. The ALJ therefore proceeded to the second step of the analysis.
At the second step, the ALJ found that Capistrano's medical impairments of"obesity,
fibromyalgia, and psoriatic arthritis were "severe" for purposes of the Act. Id. Because the
impairments caused by Capistrano's conditions were deemed severe, the ALJ properly proceeded
to the third step of the analysis.
At the third step, the ALJ found that none of Capistrano's impairments were the
equivalent of any of the impairments enumerated in 20 C.F .R. § 404, subpt. P, app. 1. Id. The
ALJ therefore determined that Capistrano retained the following RFC:
[C]laimant has the [RFC] to perform light work ... she can lift 20
pounds occasionally and 10 pounds frequently ... can stand/walk for
six hours in an eight-hour workday and can sit for six hours in an
eight-hour workday ... can occasionally climb ramps and stairs ...
can never climb ladders, ropes, or scaffolds . . . can occasionally
balance, stoop, crouch, crawl, and kneel . . . can perform simple
routine tasks ... must alternate positions from sitting to standing
every thirty to fotty minutes."
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Tr. 25-26.
At the fomth step, the ALJ found Capistrano did not have any past relevant work. Tr. 32.
The ALJ therefore proceeded to step five.
At the fifth step, the ALJ found that, considering Capistrano's age, education, work
experience, and RFC, she could perform jobs that existed in significant numbers in the national
economy, such as: assembler, printed products; garment folder; and clerical sorter. Tr. 33.
Accordingly, the ALJ concluded that Capistrano had not been under a disability from the
alleged onset date, September 14, 2012, through the date of the ALJ's decision, August 27, 2015.
Tr. 33-34.
Capistrano timely requested review of the ALJ' s decision, and the Appeals Council
denied her request on Janumy 12, 2017. Tr. 1-3. The ALJ's decision of August 27, 2015 thus
became the Administration's final order for purposes of judicial review. See 20 C.F .R. §
422.210(a); see also, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000). This action followed.

ANALYSIS
Capistrano argues that the ALJ: (1) failed to provide legally-sufficient rationales to
discredit her symptom testimony; and (2) failed to provide legally-sufficient rationales to reject
the opinions of two treating medical sources.

I.

Symptom Allegation Credibility
The Ninth Circuit established two requirements for a claimant to present credible

symptom testimony: the claimant must produce objective medical evidence of an impairment or
impairments; and must show the impairment or combination of impairments could reasonably be
expected to produce some degree of symptom. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.
Page 10 - OPINION AND ORDER

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 ifthe ALJ provides clear and
convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). 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. (citing Lester, 81 F.3d at 834). The reasons proffered must be "sufficiently
specific to pennit the reviewing comt to conclude that the ALJ did not arbitrarily discredit the
claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir, 1995) (internal citation omitted).
However, even if not all of the ALJ's findings for discrediting symptom allegations are upheld,
the overall decision may still be upheld, assuming the ALJ provided other valid rationales.

Batson, 359 F.3d at 1197.
Capistrano alleged that she was unable to work due to pain in her lower back. She explained
that her pain severely limits her ability to stand or walk for extended periods of time. She also
endorsed the need to lie down and rest several times each day due to pain and fatigue. Tr. 47-48. She
indicated she ingested cannabis oil eve1y three hours for pain. Tr. 49. Although Capistrano
previously saw a counselor for anxiety, she explained that she no longer goes because she ')ust felt
like [she] had resolved some of the issues." Id. Capistrano explained that she is a single mother of
five children, and that her children assist her with household chores such as cooking and cleaning, as
well as groce1y shopping. Tr. 50-52. She indicated that she takes breaks throughout these activities.
Tr. 52. Capistrano testified that on bad days, she has difficulty putting any weight on her legs because

Page 11 · OPINION AND ORDER

her sacroiliiac joint becomes too painful, and that she has utilized a wheelchair in the past to deal with
such flare-ups. Tr. 58-59. The ALJ determined that Capistrano's pain allegations were not fully
credible for several reasons. Tr. 29.
First, the ALJ found that Capistrano's discharge from her pain clinic for "abenant
behaviors" undennined her credibility. Specifically, the pain clinic indicated that on one occasion,
Capistrano was called in for a pill count and a drng screening, but failed to show up. Tr. 28-29, 503.
The pain clinic fmther indicated that Capistrano had violated other clinic policies in the past,
including failing to follow her prescribed medication regimen on at least three other occasions. Tr.
29, 513. The ALJ found that Capistrano was not fmthcoming about the circumstances of her
discharge from the pain clinic, telling Dr. Ward that she had been discharged due to "a
misunderstanding," and telling Dr. Ryan she "did not have a very good experience," and the pain
clinic "was not helpful." Tr. 29, 540, 547. The ALJ concluded that contra1y to Capistrano's
representations to her doctors which po1trayed the pain clinic in a negative light, it was "clear that the
claimant was dismissed because of misusing medications and refusing a urine test.'' Tr. 29. The ALJ
therefore concluded that Capistrano's overall credibility was "greatly undennined." Tr. 30.
The Ninth Circuit has held that making inconsistent statements about drug use is a clear and
convincing reason to impugn a claimant's credibility. Thomas v. Barnhart, 278 F.3d 947, 959 (9th
Cir. 2002) (citation omitted). Capistrano contends that the ALJ's finding was not appropriate because
her violation of the pain clinic's protocols evinced poor judgment and ongoing pain. Be that as it
may, the ALJ's finding was specific, and based on substantial evidence of record; although Capistrano
has a different interpretation of the record, the Court is compelled to affirm the ALJ's reasonable
detennination in this circumstance. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)

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(variable interpretations of the evidence are insignificant if the ALJ's is reasonable). Capistrano
futther contends that drug-seeking behavior alone is not sufficient to justify an adverse credibility
determination.4 The argument is inapposite, however, because the ALJ provided additional
justifications, as discussed below.
Second, the ALJ impugned Capistrano's credibility based on her work histoty, finding it did
"not suggest the claimant [wa]s motivated to work consistently." Tr. 29. The ALJ noted, for
example, that Capistrano had not worked regularly since 2000, twelve years before her alleged onset
date. Id The ALJ fmther found that Capistrano's only job searching efforts were related to TANF5
benefits requirements. Id An ALJ's determination that "an exh·emely poor work history" showing
"little propensity to work" over time is a clear and convincing factor which may undermine symptom
allegations. 20 C.F.R. § 416.929; Thomas, 278 F.3d at 959.
Capistrano argues the finding was etrnneous because she should not be penalized for years
spent raising her children at home, and also because she was unable to work due to her impairments.
The ALJ, however, acknowledged that Capistrano had five children; indeed, the ALJ noted that
Capistrano was vety involved in her children's lives, including attending parent-teacher conferences,
spotts events, and household activities and care. Tr. 29-30. When the ALJ asked Capistrano about
her limited work histoty, however, she did not identify caring for her children as a factor, explaining
instead that after 2000, she was too weak to perform her prior job. Tr. 46-47. Accordingly, the

4

Capistrano cites SSR 16-3p, 2016 SSR LEXIS 4 (March 16, 2016) in suppott. Although
the argument fails because the ALJ provided other reasons to accord diminished weight to
Capistrano's symptom testimony, the Coutt also notes that SSR 16-3p was not in effect at the
time of the ALJ' s decision.
5

Temporaty Assistance for Needy Families, Title IV of the Act.

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instant facts are distinguishable from those of the case cited by Capistrano, Aichele v. Astrue, 2010
WL 1849009, at *6 (E.D. Wash. 2010 April 30, 2010) (ALJ erred in finding limited work history
where plaintiff explained she did not work in order to care for her young children). Fmther, contraty
to the dete1mination in Barron v. Benyhiill, 2017 WL 1054185, at * 7 (C.D. Cal Mar. 20, 2017), the
ALJ here did not make a "vague reference" to spotty work history, but found that Capistrano only
ever applied for other work in order to receive TANF benefits. Tr. 29, 47. Again, although
Capistrano offers a different inte1pretation of the record, the ALJ's finding is affirmed because it was
specific, clear, and convincing. Burch, 400 F.3d at 679.
Third, the ALJ found Capistrano's credibility was undetmined by the medical record, which
suggested she was not as limited as alleged. Tr. 30. The ALJ explained that although Capistrano
testified that she needed to use a wheelchair for extended periods in the past, there is no evidence in
the record of a wheelchair being used, prescribed or recommended by a provider. Tr. 30. The record
demonstrates, however, that contraty to the ALJ's finding, Capistrano previously repmted using a
wheelchair. Tr. 332, 452, 482. Although the ALJ was nevertheless accurate in finding that no
wheelchair was ever prescribed or recommended, it is uncleat· why the finding is probative of
Capistrano's veracity. There does not appeat· to be any dispute that Capistrano has pain, or that her
pain is subject to flares; indeed, the ALJ chose not to give full weight to exantining and reviewing
sources because they did not account for her pain flares. Tr. 31-32. Further, Capistrano never
testified that the wheelchair was prescribed to her, or that she always required a wheelchair. Tr. 59.
Rather, she stated that she has used a wheelchair in the past when experiencing significant pain flai·es.
Id The ALJ also implied that wheelchair use was inconsistent with Capistrano's doctors' suggestions

that she exercise, but the point is weak, as her doctors recommended no more than low-impact

Page 14- OPINION AND ORDER

therapies that are not inconsistent with Capistrano's own allegations regarding her physical
limitations. Id Finally, the ALJ did not identify what testimony her non-prescribed wheelchair use
purpmtedly unde1mined. As such, the finding was not clear and convincing. See Dodrill, 12 F.3d at
918 (ALJ must state which pain testimony is not credible and what evidence suggests it is not
credible).
Fomth, the ALJ impugned Capistrano's symptom allegations of pain, fatigue, and anxiety
based on her activities of daily living ("ADLs"). An ALJ may consider ADLs in order to illustrate a
contradiction in symptom testimony or to show that the activities meet the threshold for transferable
work skills. Orn v. As/rue, 625, 639 (9th Cir. 2007). The ALJ found that despite testimony that
Capistrano receives extensive help from her older children and their father in household activities, her
function repmt and treatment providers indicated that she was "ve1y active." Tr. 30. Capistrano
explained in her function repmt that in a typical day, she wakes, readies her children for school, cares
for the home when they are gone, assists with homework when they return, prepares dinner, then puts
the children in bed. Tr. 225. Capistrano also indicated in the function repo1t that when her pain
flares, she requires assistance in personal care, that she must prepare meals ahead of time and freeze
them in anticipation of flares, and she requires help changing loads oflaund1y and vacuuming. Tr.
226-27. At the hearing, Capistrano's testimony was substantially similar-she explained that her
oldest daughter helps her prepare meals, that she rarely goes shopping because her son can assist with
that task, and that she can pe1fo1m some housekeeping, but also gets help. Tr. 51-52. Accordingly,
the ALJ en-ed to the extent he found Capistrano's hearing testimony regarding ADLs contradicted the
level of impairment due to pain repo1ted in her function report. The finding cannot be upheld.
Fifth, the ALJ found that Capistrano's pain complaints exceeded her psoriatic aithritis

Page 15- OPINION AND ORDER

symptoms, which illustrated her "high motivation to seek disability benefits." Tr. 30. The finding
was en-oneous for two reasons. First, eve1y applicant that seeks disability benefits under the Act is
motivated by an award; because of the length of the process, an applicant that has repeatedly appealed
denials over a period of years is assuredly highly motivated to receive benefits. That a claimant
wished to receive benefits is not, in and of itself, a clear and convincing reason to discredit symptom
allegations. See, e.g., Ratto v. Sec'y, Dept. OfHealth and Human Servs., 839 F. Supp. 1415, 1428-29
(D. Or. Aug. 13, 1993). Moreover, the observation cited by the ALJ does not suggest that Capistrano

was exaggerating her symptoms, when read in context. Dr. Ryan was clearly stating that because
Capistrano's pain and fatigue complaints were out of proportion to her psoriatic aithritis diagnosis
alone, the doctor felt that the residual pain was "fibromyalgia related." Tr. 552. Contraiy to the
ALJ's finding, however, it is apparent that Dr. Ryan was not suggesting that Capistrano's sacroiliitis
was not as severe as alleged. Id The ALJ also noted that Dr. Ryan did little testing for fibromyalgia
and "appears to have simply adopted [Capistrano's] reports of a fibromyalgia diagnosis." Tr. 30. It is
unclear what the probative value of this finding is, however, because Dr. Ryan was not alone in
diagnosing fibromyalgia: in fact, every medical source of record listed fibromyalgia as a contribut01y
diagnosis, and the ALJ determined fibromyalgia was a severe impahment at step two. Tr. 71, 82,
262, 273, 452, 551, 557. The ALJ's reasoning was erroneous.
In determining whether to uphold an ALJ's overall credibility assessment, the "key question is

not whether there is substantial evidence that could support a finding of disability, but whether there is
substantial evidence to support the Commissioner's actual finding that claimant is not disabled."

Jamerson v. Chafer, 112 F.3d 1064, 1067 (9th Cir. 1997). Here, although several of the the ALJ's
rationales did not meet the rigorous cleai·-and-convincing standai·d, the ALJ's overall finding must be

Page 16- OPINION AND ORDER

upheld based on the legally-valid rationales set foith by the ALJ. Batson, 359 F.3d at 1197.

II.

Medical Source Opinions
Capistrano assigns eirnr to the ALJ's rejection of the medical opinion of two treating

physicians, Drs. Ryan and Ward. To reject the uncontrove1ted opinion of a treating or examining
physician, an ALJ must mticulate "elem· and convincing reasons" for doing so. Bayliss v. Barnhart,
427 FJd 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at 830-31). If a treating or examining
physician's opinion is in conflict with substantial evidence or with another physician's opinion,
however, it may be rejected for merely "specific and legitinlate reasons." Id
In June 2015, Drs. Ryan and Ward completed functional assessment worksheets that were
prepared by Capistrano's attorneys. Both doctors opined that Capistrano had psoriatic mthritis and
fibromyalgia. Tr. 551, 557. Both doctors opined that she would need to lie down for at least one hour
each day to address pain and fatigue. Tr. 552, 558. Both doctors also opined that Capistrano would
be expected to miss more than four workdays per month due to herimpairments. Tr. 555, 561.
Additionally, the doctors opined that Capistrano was severely limited in the use of her hands and arms
in terms of reaching, handling, and fingering, and would require breaks after such use. Tr. 554, 560.
The ALJ accorded the opinions little weight. Tr. 31.
Instead, the ALJ accorded weight to Brandon Markus, D.0., who exaniined Capistrano in
Mm·ch 2013. Dr. Markus identified 14 positive trigger points, consistent with the diagnosis of
fibromyalgia, but he noted no objective findings for psoriatic mthritis. Tr. 456. Contrmy to the
opinions ofDrs. Ryan and Ward, Dr. Mm·kus observed normal functioning in his exaniination of
gross and fine motor skills, as well as full motor strength and muscle bulk and tone in the upper and
lower extremities, as well as full grip strength bilaterally. Tr. 455. Dr. Mm·kus observed Capistrano

Page 17 - OPINION AND ORDER

could walk and squat without difficulty, and had a n01mal gait. Tr. 454. Also in contrast to the
treating physicians, Dr. Markus opined that Capistrano could sit for up to six hours with frequent
position changes, could life and cany 50 pounds occasionally and 25 pounds frequently, and could
reach frequently, but had no limitations in handling, fingering, or feeling. Tr. 456. The ALJ noted
that Capistrano may have greater pain at times than she did when she was assessed by Dr. Markus, so
he fashioned an RFC for light work. Tr. 30-31. The ALJ also gave weight to the agency reviewing
physicians, although he further limited Capistrano to light, rather than medium, work. Tr. 31-32.
Citing Orn, Capistrano argues that Dr. Markus' opinion does not conflict with the treating
physicians'. In Orn, however, the Ninth Circuit detennined that an examining doctor's opinion,
which was based on the same medical findings as two other doctors but differed in its conclusion, did
not alone constitute substantial evidence. Orn, 495 F.3d at 633. The case is inapposite because here
Dr. Markus perfotmed his own exantination, and relied on different findings from those of the
treating physicians in presenting his opinion. Accordingly, because there was a conflict in the medical
opinion evidence, the specific-and-legitimate legal standard applies.
A. Dr. Ryan

The ALJ provided several reasons for giving little weight to Dr. Ryan's opinion. The ALJ
found that the level of dysfunction endorsed by Dr. Ryan was inconsistent with her examination
findings, in which she rep01ied nonnal range of motion and "only" tenderness to palpation. Tr. 31.
Accordingly, the ALJ asse1ied that the doctor's opinion must have been based on Capistrano's
subjective complaints. Id Capistrano argues that although Dr. Ryan noted some improvement with
Enbrel injections to treat Capistrano's psoriatic mihritis with associated sacroiliitis in Februmy 2014,
she continued to have "out of control" pain in May 2014, even though she had no objective joint

Page 18 - OPINION AND ORDER

synovitis (inflammation). Tr. 462. The Commissioner argues that Capistrano's examination were
generally benign, and despite the fact that Dr. Ryan regularly made note of Capistrano's pain
complaints, her opinion was properly rejected because it was unsupp01ted by objective medical
findings.
However, the ALJ' s analysis was inadequate. As the Ninth Circuit recently reiterated:
"[fJibromyalgia is diagnosed entirely on the basis of patients' rep01ts of
pain and other symptoms, and there are no laboratory tests to confirm the
diagnosis. Pursuantto SSR 12-2p, tender-point examinations themselves
constitute objective medical evidence of fibromyalgia. Moreover, the
symptoms of fibromyalgia wax and wane, and a person may have good
days and bad days.

Revels v. Benyhill, 874 F.3d 648, 663 (9th Cir. 2017), citing Benecke v. Barnhart, 379 F.3d 587, 590
(9th Cir. 2004); SSR 12-2p, 2012 SSR LEXIS 1 (July 25, 2012) (internal citations and quotation
marks omitted). The Revels comt admonished that the ALJ in that case "failed to properly analyze
Revels' fibromyalgia-related symptoms pursuant to SSR 12-2p ... and our court's opinion in Benecke

v. Barnhart. This appears to be a recunent problem." Revels, 847 F.3d at 662. As is the case here,
the ALJ in Revels e11'0neously rejected the opinion of a treating rheumatologist because his opinion
did not provide an adequate discussion of how the doctor determined Revels' functional limitations.
The Ninth Circuit, considering the applicable case law and SSR 12-2p, reversed, noting the doctor's
accounts of Revels' pain complaints, his own examination findings of tender points, and a
longitudinal histo1y of medical evidence of fibromyalgia. Id At 663. There are ce1tainly silnilarities
to the facts and ALJ's findings in the instant matter: for example, Revels' doctor's opinion was
rejected, in pmt, because at some appointments, he observed a no1mal range of motion with no
synovitis. Id at 658, 663. The ALJ in the instant case rejected Dr. Ryan, in pmt, for that ve1y reason.
Tr. 28, 30. However, the Revels comt found error with the finding because "a person with
Page 19 - OPINION AND ORDER

fibromyalgia may have muscle strength, sensmy functions, and reflexes that are nmmal." Id (citation
and internal quotation marks and brackets omitted). Moreover, in contrast to the plaintiff in Revels,
Capistrano demonstrated fibromyalgia tender points consistently: they were repeatedly recorded by
Drs. Ryan and Ward, and also by the examining physician, Dr. Markus. Accordingly, Ninth Circuit
precedent directs that the ALJ's first rationale for rejecting Dr. Ryan's opinion did not meet the
specific-and-legitimate threshold.
The ALJ also rejected Dr. Ryan's opinion because the doctor suggested that Capistrano
exercise more, and she only treated Capistrano three to four times per year. Tr. 31, 461. The ALl's
finding regarding exercise is not specific and legitimate: the mere fact that a doctor suggested or
prescribed low-impact exercise therapy in the context offibromyalgia symptoms does not, in and of
itself, preclude a finding that those symptoms are disabling. See, e.g., Benecke, 379 F.3d at 591, 594
(noting treating physician prescribed aquatic exercise therapy, and crediting the physician's opinion
that Benecke was disabled as true). The ALJ's finding that Dr. Ryan did not treat Capistrano
frequently enough "to know how she will function on a regular day or day to day basis," is not a
reasonable finding in light of according greater weight to examining physician Dr. Markus, who saw
Capistrano for a total of28 minutes, and the reviewing physicians, who never saw or examined her at
all. Moreover, Dr. Ryan treated Capistrano for more than three years, and as a rheumatologist, should
generally be accorded greater weight than non-specialist physicians. 20 C.F.R. § 416.927(c)(5).
Thus, both of the ALl's rationales for dismissing Dr. Ryan's opinion were e1wneous.
B. Dr. Ward

The ALJ provided similar reasons for rejecting Dr. Ward's opinion. For example, the ALJ
noted that Dr. Ward only treated Capistrano foill' times per year, so was not in a position to gauge her

Page 20 - OPINION AND ORDER

daily functioning. Tr. 32. The ALJ's finding is clearly en-oneous, however, because the ALJ simply
ignored the fact that Dr. Ward was Capistrano's primaiy treating physician for more than ten years at
the time he rendered his medical opinion. Tr. 557. Moreover, as noted above, it is unreasonable to
discredit a provider for the reason he treated a claimant "only" four times per year over the course of
many yeai·s in favor of one physician who provided a single examination and two other physicians
who merely reviewed a pottion of the medical record, without the benefit of an in-person meeting.
The ALJ also accorded little weight to Dr. Ward's assessment because "[m]uch of her [sic]
opinion appears to be based on the claimant's repotis of pain, which are found to be less than
credible." Tr. 32. As above, in the context offibromyalgia, it is not uncommon for there to be few
objective measures of a claimant's experience of pain. Supra. Necessai'ily, then, a treating medical
source must rely to a degree on their patient's subjective reports to detennine levels of treatment, and
in the context of a medical opinion offered in suppo11 of an application for benefits under the Act,
levels of functional impairment. Here, although the Comt finds that the ALJ's credibility evaluation
of Capistrano must be affirmed based on a nUlllber of valid fmdings by the ALJ, it does not
necessai·ily follow that Capistrano's symptom allegations are untrue, or that Dr. Ward's opinions was
based on allegations that are not credible.
For example, based on Ninth Circuit precedent, the ALJ did not en· to find Capistrano's pain
allegations were unde1mined to a degree because of her dischai·ge from the pain clinic, and her poor
work histo1y and testimony about only attempting to work because it was required of her in order to
receive TANF benefits. Supra. However, neither of those reasons appear to be sh'Ongly applicable to
the propriety of Dr. Ward's opinion. Rather, Dr. Ward indicated that his opinion was based on
ongoing symptoms of multiple joint pains, fatigue, muscle pain, and weakness. Tr. 558. He
Page 21 - OPINION AND ORDER

described the applicable signs: elevated inflammatory markers, and joint inflammation on imagery.
Id

Although the Commissioner argues that Capistrano did not demonstrate gross deformity in
her lumbar spine or significant pain with palpation in 2013, she does not allege disability based on
any spine condition, and as mentioned above, fibromyalgia symptoms may wax and wane. Revels,
874 F.3d at 663. Again, particularly in the context offibromyalgia, the occasional absence of
compelling objective findings on examination do not suggest that Capistrano's pain complaints are
exaggerated. See SSR 12-2p ("symptoms and signs offibromyalgia may vaiy in severity over time
and may even be absent on some days[.]"). In such circumstances, the ALJ is tasked with considering
other evidence, including ADLs and medications. Here, although the ALJ's overarching credibility
determination was valid, the AU failed to provide sufficient rationales regai·ding why Capistrano's
ADLs were inconsistent with her pain rep01ts. Supra. Fmther, although the ALJ properly impugned
Capistrano's credibility pursuant to SSR 96-7p based on her misuse of pain medications, there is little
doubt that her pain continued and was significant. In fact, the ALJ made that express finding in
limiting the weight he accorded to the examining and reviewing sources. See Tr. 31 ("[Capistrano]
appeared to be in pretty good shape during this examination, but has repo1ted more pain at other
times, so the undersigned limits her to light work"), 32 ("the more recent evidence indicates that the
claimant continues to have some pain from her psoriatic aithritis").
For these reasons, the rationales proffered by the ALJ to discredit the opinions of Capistrano's
treating physicians were not specific-and-legitimate. Remand is therefore appropriate.
III.

RFC and Step Five
Capistrano separately assigns etTor to the RFC fotmulation, and the step five finding based

Page 22 - OPINION AND ORDER

thereon. However, Capistrano's arguments are merely cumulative of the prior discussion of her
credibility assessment and the evaluation of the medical opinions ofDrs. Ryan and Ward. Because
remand is required in order to reevaluate those sources, the Comt does not reach the issues of the
errors assigned to the RFC or step five findings.
IV.

Remand
For the reasons discussed herein, the ALl's decision did not provide legally sufficient reasons

to reject the opinions of two treating medical sources. Accordingly, the sole remaining issue is to
detennine whether to remand for fmther proceedings or for immediate payment of benefits. The
decision to remand for fmther proceedings tmns upon the likely utility of such proceedings. Harman

v. Apfel, 211 FJd 1172, 1179 (9th Cir. 2000). While the typical course is to remand for ftnther
proceedings, the Ninth Circuit has credited evidence as hue when the ALJ failed to provide clear and
convincing reasons for discounting the testimony of a plaintiff or a medical provider. See, e.g.,

Garrison, 759 F.3d at 1022-23; Orn, 495 FJd at 640; Benecke v. Barnhart, 379 FJd 587, 594 (9th
Cir. 2004). A court "should credit evidence that was rejected during the administrative process and
remand for an immediate award of benefits" when the follow conditions are met: "(1) the ALJ failed
to provide legally sufficient reasons for rejecting the evidence; (2) there are not outstanding issues that
must be resolved before a determination of disability can be made; and (3) it is clear from the record
that the AU would be required to find the [plaintiff! disabled were such evidence credited." Benecke,
379 FJd at 593.
The first prong of the credit-as-trne test is met by vhtue of the ALJ' s eirnrs in evaluating the
medical opinions ofDrs. Ryan and Ward. The second prong of the analysis is not met, however,
because outstanding issues remain. Critically, the ALJ provided legally sufficient reasoning to
Page 23 - OPINION AND ORDER

suppott his finding that plaintiffs allegations were not fully credible. Although the credibility finding
was not without en-or, Ninth Circuit case law and the operative guidance at the time of the decision
direct that the errors were han-nless. Supra. Nonetheless, the record reflects inconsistencies that
remain umesolved: for example, Capistrano appeared to improve after she stopped taking narcotic
pain medication in 2015, which appears inconsistent with her allegations of disabling pain despite
narcotic pain medication before. Tr. 562. On the other hand, the ALJ's en'Ol's in evaluating the
treating medical source opinions constitute reversible error, in pait because the ALJ did not properly
evaluate Capistrano's fibromyalgia under SSR 12-2p and precedential case law. Based on this glai'ing
inconsistency, the proper remedy is to remand for ftuther proceedings.
In a subsequent decision, the ALJ must provide a proper analysis of the treating medical

opinions, conside1'ing the implications of SSR 12-2p and the record as a whole. Following a proper
analysis of the medical source opinions--including, if necessary, seeking ftuther input from a
consultative examiner who has expe1tise in rheumatology and has reviewed the entire record-an
ALJ on remand will be in the proper position to craft a new RFC and proceed with the sequential
analysis. Thus, because further proceedings ai·e needed, the Comt does not reach the third prong of
the credit-as-hue inquiry. Treichler v. Colvin, 775 F.3d 1090, 1105 (9th Cir. 2014) (remand is
appropriate where ALJ eired in making adequate findings to support key conclusions, but it is
plausible that such conclusions could be supp01ted). Furthennore, remand for reconsideration is
appropriate where, as here, the ALJ's adverse credibility finding is upheld. Dominguez v. Colvin, 808
F.3d 403, 409 (9th Cir. 2017) (remanding for fu1ther proceedings rather than benefits based, in part,
on ALJ's affirmed credibility finding); see also Leon v. Berryhill, 880 F.3d 1041, 1048 (9th Cir.
2017) (remanding for further proceedings because although the ALJ's credibility finding was
Page 24 - OPINION AND ORDER

erroneous, the ALJ's other findings were upheld).
CONCLUSION
For the reasons set forth above, the Commissioner's final decision denying Capistrano's
application for supplemental secmity income6 is reversed and remanded for further proceedings.

Dated this 3rd day of May, 2018.

United States Magistrate Judge

6

At the hearing, Capistrano amended her onset date to December 14, 2012. Tr. 44.
Because Capistrano's date last insured was December 31, 2003, the amendment precluded her
application for DIB. See Tr. 20-21, 66.
Page 25 - OPINION AND ORDER