Stephens v. Commissioner Social Security Administration

Filing 18

OPINION & ORDER. The Commissioners decision is reversed and this case is remanded for an immediate award of benefits. Signed on 3/11/2019 by Judge Marco A. Hernandez. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DENNIS S.,1
Plaintiff,
6:17-cv-01290-HZ
OPINION AND ORDER
v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
HERNANDEZ, J.:
Plaintiff Dennis S. seeks judicial review of the Social Security Commissioner’s final
decision denying his application for disability insurance benefits under Title II of the Social
Security Act. Plaintiff argues the Administrative Law Judge (ALJ) erred in (1) discounting the
medical opinion of Plaintiff’s treating physician Dr. Heidi Fletemier, M.D.; (2) not fully

1

In the interest of privacy, this Opinion and Order uses only the first name and initial of the last
name of the non-governmental party or parties in this case. Where applicable, this Opinion and Order
uses the same designation for a non-governmental party’s immediate family member.

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crediting Plaintiff’s allegations about his symptoms; and (3) finding that Plaintiff’s depression
was not severe. I reverse the Commissioner’s decision and remand for an immediate award of
benefits.
PROCEDURAL HISTORY
Plaintiff, who was born in 1952, applied for disability insurance benefits in March 2013,
alleging disability beginning in February 2013. Tr. 21. His applications were denied initially
and on reconsideration.
In January 2016, Plaintiff received a hearing before an ALJ. Tr. 36-70. In April 2016,
the ALJ issued his decision, finding Plaintiff not disabled. Tr. 21-30. The Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. Plaintiff now seeks judicial review.
THE ALJ’S DECISION
To establish disability, 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)(1)(A). The Commissioner uses the familiar five-step sequential
process to determine whether a claimant has established disability. See Bowen v. Yuckert, 482
U.S. 137, 140 (1987). In the first four steps of the process, the claimant has the burden of proof,
and at the fifth step the burden of production shifts to the Commissioner. See Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999).
Here, at the first step of the process, the ALJ found that Plaintiff had not engaged in
substantial gainful employment from his alleged onset date of February 1, 2013 through the date
he was last insured, December 31, 2015. Tr. 23. Although Plaintiff worked part-time in his
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family janitorial business after his alleged onset date, his income and earnings were below the
level of substantial gainful activity. Tr. 23.
At the second step, the ALJ considered the severity of Plaintiff’s physical and mental
impairments. See Yuckert, 482 U.S. at 140-41. An impairment is “severe” if it significantly
limits the claimant’s ability to perform basic work activities and is expected to persist for twelve
months or longer. See id., 482 U.S. at 141. Here, the ALJ found that Plaintiff had the severe
impairments of congestive heart failure and cardiomyopathy. Tr. 23. As to mental impairments,
the ALJ found that Plaintiff’s “medically determinable mental impairment of depressive disorder
not otherwise specified did not cause more than minimal limitation in [Plaintiff’s] ability to
perform basic mental work activities and was therefore nonsevere.” Tr. 24.
At the third step, the ALJ determined Plaintiff’s impairments did not meet or equal any
listed impairments that would preclude substantial gainful activity. Tr. 25. The ALJ then
assessed Plaintiff’s residual functional capacity (RFC). RFC is the Commissioner’s estimate of a
claimant’s ability to perform sustained, work-related physical and mental activities on a regular
and continuing basis, despite the limitations imposed by the claimant’s impairments. See 20
C.F.R. § 404.1545(a). The ALJ found that Plaintiff had the RFC to perform light work, with the
additional limitations that he could lift and carry up to ten pounds occasionally or frequently2;
could sit six hours of an eight-hour day, and stand or walk two hours of eight hours in a normal
workday3; could occasionally climb ramps or stairs, but should avoid climbing ladders, ropes, or

2

Light work involves “lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
3

A job is classified as light work “when it requires a good deal of walking or standing” even
though “the weight lifted may be very little.” 20 C.F.R. § 404.1567(b).

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scaffolds; could occasionally stoop, kneel, crouch, or crawl; and should avoid concentrated
exposure to extreme heat, fumes, dust, gases, and hazards such as unprotected heights and
moving machinery. Tr. 25.
At the fourth step, the ALJ considers whether a hypothetical person with the plaintiff’s
RFC could perform the plaintiff’s past relevant work. See Yuckert, 482 U.S. at 141. Here,
Plaintiff’s past relevant work included working as a janitorial supervisor, a skilled, medium-level
job, although Plaintiff performed it as a heavy-level job; program analyst, a skilled, sedentary
job; manager, a skilled, sedentary job; and route sales driver, a semi-skilled, medium job. Tr. 29.
A vocational expert testified at the hearing that a person with the proposed RFC could perform
Plaintiff’s past relevant work as a program analyst and manager. The ALJ found Plaintiff was
not disabled, and therefore did not address the fifth step, which asks whether the claimant could
perform any jobs that exist in significant numbers in the national economy. See Yuckert, 482
U.S. at 142.
STANDARD OF REVIEW
This court must affirm the Commissioner’s decision if the decision is based on proper
legal standards and the findings of fact are supported by substantial evidence in the record as a
whole. 42 U.S.C. § 405(g); Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” means “more than a mere scintilla but less than a preponderance.”
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. If the
evidence is susceptible of more than one rational interpretation, the court must uphold
Commissioner’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
DISCUSSION
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I. The ALJ’s Decision to Give Little Weight to Dr. Fletemier’s Opinion
Here, the ALJ gave little weight to the June 2015 opinion of Plaintiff’s treating physician
Dr. Heidi L. Fletemier, M.D., who had been Plaintiff’s primary care physician since at least
August 2012. Tr. 465. The ALJ found that Dr. Fletemier’s opinion was contradicted by
Plaintiff’s own allegations and by other medical opinions.
The ALJ resolves conflicts in the medical record. Carmickle v. Comm’r, 533 F.3d 1155,
1164 (9th Cir. 2008). “If a treating or examining doctor’s opinion is contradicted by another
doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are
supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
A. Dr. Fletemier’s Opinion
In June 2015, Dr. Fletemier issued a report on Plaintiff’s ability to work, answering
questions posed by Plaintiff’s attorney. Tr. 624-25. Dr. Fletemier opined that Plaintiff’s
“cardiac status would preclude any type of work other than sedentary. Unfortunately, the
medications themselves cause side effects that make a sedentary full-time position not feasible.”
Tr. 624. Dr. Fletemier reported that Plaintiff “takes cardiac medications that lower his blood
pressure to a level that enables his heart to function, but at the same time causes significant
fatigued [sic] and decreased exercise tolerance.” Tr. 624. Dr. Fletemier also stated that because
Plaintiff took furosemide, a “water pill necessary to maintain his cardiac function,” he required
breaks to urinate “every 15-20 minutes in the morning,” continuing throughout the day at a lesser
rate. Tr. 625. Plaintiff also needed “breaks for chest pain for which he takes nitroglycerin,” and
for “any heart palpitations related to his atrial fibrilliation.” Tr. 625.
Dr. Fletemier noted that Plaintiff had fainted while driving on I-5 in January 2013, and
his physicians concluded that a medication for treating congestive heart failure, Aldactone, had
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caused the syncope by lowering Plaintiff’s blood pressure. Because of his fatigue and low blood
pressure, Plaintiff “requires naps during the day. These are 30 to 90 minutes at a time,” up to
three naps per day. Tr. 624. Plaintiff “also requires breaks if he has angina which is frequent,
but not daily. His general speed of doing chores is quite slow. Quite simply he does not have
the stamina to work an 8 hour day and it is highly unlikely an employer would tolerate his
current pace as an acceptable pace for the work place.” Tr. 624-25. Dr. Fletemier opined that
Plaintiff “would be expected to miss between 5-7 days per month either full days or half days,”
based on his appointments with cardiologists, pulmonologists, dermatologists, and others. Tr.
625; Tr. 53 (Plaintiff testified that he and Dr. Fletemier reviewed his medical records from 2008
to determine the number of appointments per month).
As to mental functioning, Dr. Fletemier stated that depression affected Plaintiff’s
concentration somewhat, although Plaintiff was taking Wellbutrin. Dr. Fletemier noted that a
neuropsychological evaluation of Plaintiff in May 2014 found “sustained attention inefficiency”
caused by fatigue and other factors. Tr. 625.
B. The ALJ’s Reasons for Giving Dr. Fletemier’s Opinion Little Weight
1. Conflict with Plaintiff’s Alleged Onset Date
In explaining why he gave Dr. Fletemier’s opinion little weight, the ALJ stated that Dr.
Fletemier “sets forth an onset date of disability that is some 5-years prior to what the claimant
himself has alleged.” Tr. 28. The ALJ stated Dr. Fletemier “indicated” that “the onset of these
restrictions commenced on or about February 9, 2008.” Tr. 28. An ALJ may reject a medical
opinion that conflicts with the plaintiff’s own testimony. Magallanes v. Bowen, 881 F.2d 747,
754 (9th Cir. 1989).

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I find, however, that Dr. Fletemier’s statement does not conflict with Plaintiff’s
allegations about his alleged onset date. Dr. Fletemier did not set forth an earlier onset date, but
rather stated Plaintiff’s “health problems clearly started on February 9, 2008 when he had a
myocardial infarction resulting in cardiogenic shock. Function worsened when he had syncope
while driving on the freeway February 1, 2013.”4 Tr. 625 (emphasis added). Dr. Fletemier also
noted that Plaintiff’s “underlying cardiac issues,” combined with the effects of the medication
required to treat those issues, progressively deceased Plaintiff’s stamina and endurance. Tr. 625.
I find Dr. Fletemier’s statement about when Plaintiff’s heart condition first manifested itself does
not conflict with Plaintiff’s alleged onset date, and does not support discounting her opinion.
2. Opinion on Plaintiff’s Ability to Work
The ALJ also discounted Dr. Fletemier’s opinion in part because “the question of
whether an individual is able to sustain work on a regular and continuing basis, at any level of
exertion described in the Regulations, is an issue reserved to the Commissioner of Social
Security.” Tr. 28 (citing Social Security Ruling (SSR) 96-5p). The ALJ is correct that the
Commissioner ultimately determines whether a claimant is able to work. 20 C.F.R. §
404.1527(d)(1) (applicable to claims filed before March 27, 2017); see also 20 C.F.R. §
404.1527(d)(3) (the Commissioner “will not give any special significance to the source of an
opinion on issues reserved to the Commissioner”). However, “‘In disability benefits cases . . .
physicians may render medical, clinical opinions, or they may render opinions on the ultimate
issue of disability—the claimant’s ability to perform work.’” Garrison v. Colvin, 759 F.3d 995,
1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see also

4

The record indicates that Plaintiff’s syncope episode occurred January 3, 2013. Tr. 490 (report
of Christine S. Magill, PA-C).

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Nichols v. Colvin, No. 11-cv-7699, 2013 WL 4495524, at *11 (N.D. Ill. Aug. 21, 2013) (holding
that although a treating physician’s opinion on a claimant’s ability to work is “not entitled to
controlling weight, the ALJ still must consider the opinion”).
Here, Dr. Fletemier opined that it was “highly unlikely” that an employer would tolerate
Plaintiff’s slow pace. Although Dr. Fletemier’s opinion on Plaintiff’s ability to work is not
controlling, the ALJ erred in discounting her opinion because the opinion was based on her
medical expertise and on her experience treating Plaintiff.
3. Conflict with Dr. Ghalili’s Opinion
The ALJ also found that Dr. Fletemier’s opinion was contradicted by a treating
cardiologist, Dr. Kamran Ghalili, M.D. In a January 2014 report, Dr. Ghalili stated, “Regarding
his disability, I think the patient can do this job. This was discussed with the patient and family
in detail.” Tr. 583.5 Dr. Ghalili did not explain his conclusory statement that Plaintiff could “do
this job.” The ALJ chose to rely on Plaintiff’s testimony at the hearing about Dr. Ghalili’s
opinion. Plaintiff testified that Dr. Ghalili told him and his wife that “you [i.e., Plaintiff] can
work, just like I can work. I’ve had -- he said, I’ve had multiple surgeries -- not with the heart,
but I’ve had shoulder surgery, and I’ve had whatever other surgery or two he mentioned.” Tr.
61. Citing this testimony, the ALJ stated,
The claimant’s hearing testimony additionally indicated that his cardiology
specialist [Dr. Ghalili] found him somewhat less limited than did his primary care
physician. In particular, the claimant’s testimony suggested that his cardiologist
believed him capable of performing sedentary work activity, and that the claimant
disagreed strongly. While such an exchange is not immediately apparent, the
undersigned has no reason to disbelieve the disagreement with his treating
cardiologist.

5

In a December 2013 report, Dr. Fletemier stated, “Dr. Ghalili told him to quit working. I told
him to quit working.” Tr. 573.

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Tr. 27. The ALJ also reasoned that Dr. Ghalili’s opinion was entitled to more weight than Dr.
Fletemier’s opinion because she is not a cardiologist. See 20 C.F.R. § 404.1527(c)(5)
(Commissioner generally gives more weight to a specialist’s opinion than the opinion of a source
who is not a specialist).
I note that it seems unusual for an ALJ to determine the substance of a physician’s
opinion based on the claimant’s testimony about the physician’s opinion. In any event,
Plaintiff’s testimony indicates that Dr. Ghalili based his opinion on his own ability to return to
work as a cardiologist after receiving shoulder and other unspecified surgeries. Dr. Ghalili’s
ability to work after undergoing surgery is not relevant to Plaintiff’s ability to work. Neither Dr.
Ghalili’s conclusory report nor his statements to Plaintiff provide specific medical reasons to
support his opinion that Plaintiff could do “his job.” In contrast, Dr. Fletemier gave detailed
medical reasons for her opinion on Plaintiff’s functional capacity.
Furthermore, Dr. Ghalili opined on Plaintiff’s ability to return to work, which, as noted
above, is an issue the law reserves to the Commissioner. McLeod v. Astrue, 640 F.3d 881, 885
(9th Cir. 2011). There is no indication that Dr. Ghalili was familiar with the physical or mental
requirements of Plaintiff’s past relevant work. See McLeod, 640 F.3d at 885 (although a treating
physician’s evaluation of a plaintiff’s ability to work “may be useful or suggestive of useful
information,” “a treating physician ordinarily does not consult a vocational expert or have the
expertise of one”).
I also note that Dr. Ghalili and another cardiologist, Dr. Priya Kansal, determined that
Plaintiff’s cardiac condition should be treated as New York Heart Association (NYHA) class III
heart failure. See, e.g., Tr. 334 (report of Dr. Ghalili, Feb. 1, 2013); Tr. 362 (report of Dr.
Kansal,, May 20, 2013); Tr. 473 (report of Dr. Kansal, May 16, 2013); and Tr. 587 (report of Dr.
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Kansal, Dec. 19, 2013). As one district court recently explained, “The NYHA is the most
commonly used classification system to determine patients’ heart failure according to the
severity of their symptoms. The NYHA places patients in one of four categories based on how
much they are limited during physical activity.” Reed v. Berryhill, 337 F. Supp. 3d 525, 527 n.5
(E.D. Pa. 2018) (citations omitted). NYHA class III “denotes a person with ‘[m]arked limitation
of physical activity. Comfortable at rest. Less than ordinary activity causes fatigue, palpitation,
dyspnea.’” Id. at 528 (footnote omitted); see also Feskens v. Astrue, 804 F. Supp. 2d 1105, 1120
(D. Or. 2011) (“Class III indicates a patient has ‘cardiac disease and with marked limitation of
physical activity. They are comfortable at rest but experience symptoms with the milder forms
of ordinary activity.’”) (citation omitted)). Dr. Fletemier’s opinion on the effects of Plaintiff’s
congestive heart failure is consistent with the findings of Drs. Ghalili and Kansal that Plaintiff’s
symptoms of congestive heart failure fall within NYHA class III.
I conclude that substantial evidence does not support the ALJ’s decision to give little
weight to Dr. Fletemier’s opinion.6 I also conclude that the ALJ’s error was not harmless
because the ALJ failed to include the limitations noted by Dr. Fletemier in the Plaintiff’s RFC.
Cf. Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008) (ALJ’s error is harmless if
“inconsequential to the ultimate nondisability determination”) (quotation marks omitted).
II. The ALJ’s Credibility Determination on Plaintiff’s Testimony
6

The ALJ gave “significant weight” to the reports of two reviewing physicians who found
Plaintiff could perform a broad range of sedentary work. See Tr. 76-78 (RFC assessment by Dr. Martin
Lahr, M.D.); Tr. 90-91 (same, by Dr. Sharon B. Eder, M.D.). Because the ALJ improperly discounted the
opinion of Dr. Fletemier, the contradictory opinions of the non-examining review physicians do not
support discrediting Dr. Fletemier’s opinion. “‘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.’” Ryan v. Comm’r, 528 F.3d 1194, 1202 (9th Cir. 2008) (quoting Lester v.
Chater, 81 F.3d 821, 831 (9th Cir. 1995) (emphasis omitted)).

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Plaintiff contends that the ALJ failed to provide clear and convincing reasons for
rejecting his statements about the severity of his impairments. To find “a claimant’s pain or
symptom testimony not credible,” an ALJ “must make two findings.” Treichler, 775 F.3d at
1102. First, the ALJ must “determine whether the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain
or other symptoms alleged.” Id. (citation and quotation marks omitted). “Second, if the claimant
has produced that evidence, and the ALJ has not determined that the claimant is malingering, the
ALJ must provide ‘specific, clear and convincing reasons for’ rejecting the claimant’s testimony
regarding the severity of the claimant’s symptoms.’” Id. (quoting Smolen v. Chater, 80 F.3d
1273, 1281 (9th Cir. 1996)). The ALJ must “specifically identify” the claimant’s testimony that
he or she finds to be not credible and explain which evidence undermines the testimony. Id.
(citing Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)). This requirement means
that “‘[g]eneral findings are insufficient.’” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th
Cir.1995)). “Although the ALJ’s analysis need not be extensive, the ALJ must provide some
reasoning in order for us to meaningfully determine whether the ALJ’s conclusions were
supported by substantial evidence.” Id. “Factors that an ALJ may consider in weighing a
claimant’s credibility include reputation for truthfulness, inconsistencies in testimony or between
testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to
seek treatment or follow a prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 636
(9th Cir. 2007) (internal quotation marks and citations omitted). Here, because the ALJ found
Plaintiff presented objective medical evidence of his underlying impairments, and because the
ALJ did not find evidence of malingering, the ALJ was required to identify the specific portions

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of Plaintiff’s testimony he found not credible, and to explain what evidence undermines
Plaintiff’s credibility.
Plaintiff testified that because of his congestive heart failure and the medications for that
condition, he has “significant fatigue and poor stamina,” with “heavy legs,” causing “very slow
walking.” Tr. 45. Plaintiff testified that he had increased his dosage of “water pills” from one
pill to three pills, causing “frequent and urgent trips to the bathroom, especially within an hour of
taking the pills in the morning.” Tr. 48. Plaintiff testified that he has “periods of sweating,
feeling cold or hot. And this happens usually with mild or extended exertion. It can happen
without exertion, very suddenly and severe, causing immediate rest or laying down and
napping.” Tr. 45. Plaintiff testified that he suffers from “shortness of breath, which can be at
rest with no exertion having caused it. And it definitely does happen regularly with light or more
exertion, such as walking or going up stairs or inclines. Sometimes it feels like I may have been
having a heart attack, and I end up with the fear of dying in those episodes.” Tr. 46. Plaintiff
testified that he took two to three naps of 30 to 60 minutes per day “to help maintain my daily
functioning.” Tr. 47. After fainting while driving on I-5, Plaintiff has suffered episodes of “near
syncope,” including one that occurred two weeks before the hearing. Tr. 47.
In discrediting Plaintiff’s testimony about his symptoms, the ALJ found that although
Plaintiff’s “cardiovascular impairments have limited his work-related physical abilities, they
have not been totally work-preclusive.” Tr. 26. I note that Plaintiff testified that he was working
only about 30 hours per month at his family-owned janitorial business. Tr. 43.
The ALJ also stated that “the medical treatment notes indicate that the claimant has
experienced some limited medical improvement during the period under review.” Tr. 26. The
ALJ stated that while echocardiograms and catheterization reports “between January 2013 and
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March 2013 show that the claimant’s left ventricular ejection fraction had decreased from 33
percent down to a range of 20-25 percent,” but “this was not a persistent change for the worse, as
subsequent echocardiograms both from December 2013 and December 2014 show that the
claimant’s baseline findings had improved with treatment, and had returned to 35 percent left
ventricular ejection fraction.” Tr. 26-27 (citations omitted). The ALJ also noted that Plaintiff
“underwent successful radiofrequency ablation treatment for atrial fibrillation in July 2015.” Tr.
27. The ALJ found that generally, the findings on physical examinations of Plaintiff “have been
mixed . . . rather than consistent throughout the record.” Tr. 27.
I find that the ALJ failed to identify specific reasons for discrediting Plaintiff’s testimony
and allegations. As the Seventh Circuit has noted, “An ALJ has the obligation to consider all
relevant medical evidence and cannot simply cherry-pick facts that support a finding of
non-disability while ignoring evidence that points to a disability finding.” Denton v. Astrue,
596 F.3d 419, 425 (7th Cir. 2010). Here, the ALJ did not explain how the “mixed” medical
findings on Plaintiff’s heart condition discredited his testimony about the severity of his
symptoms. Dr. Fletemier noted that Plaintiff’s heart condition was progressively worsening. Tr.
625. Nor did the ALJ explain how slight improvements in Plaintiff’s ejection fraction rates
discredit Plaintiff’s testimony. When the ALJ fails to specify evidence supporting the reasons
for discrediting the claimant’s testimony, it is not this court’s role to search the record and make
independent findings. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). I conclude
that the ALJ failed to provide clear and convincing reasons to reject Plaintiff’s testimony on the
effects of his congestive heart failure. The ALJ’s error was not harmless.
III. Plaintiff’s Depression

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The ALJ found that Plaintiff’s depression was not severe. There is substantial evidence
that Plaintiff’s depression was controlled by medication starting in early 2014. See, e.g., Tr. 564
(Dr. Fletemier report of Feb. 2014 indicating that Plaintiff was “adjusting to Wellbutrin” and
showed appropriate mood and “mildly flat affect” with occasional smiles); Tr. 570
(questionnaire indicated Plaintiff had “mild” depression). However, even though Plaintiff’s
depression was not severe, the ALJ should have included limitations caused by depression in the
RFC. See 20 C.F.R. § 404.1545(e) (Commissioner considers nonsevere impairments in
determining RFC).
IV. Remand for Further Proceedings or an Award of Benefits
Plaintiff contends that this case should be remanded for an immediate award of benefits
rather than for further proceedings to determine disability. When a court finds that the ALJ
committed harmful error, the Social Security Act allows the court to modify or reverse the
Commissioner’s decision “‘with or without remanding the case for a rehearing.’” Garrison v.
Colvin, 759 F.3d 995, 1019 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g) (emphasis deleted)).
The Ninth Circuit has “devised a three-part credit-as-true standard, each part of which must be
satisfied in order for a court to remand to an ALJ with instructions to calculate and award
benefits.” Id. at 1020. The court should determine first whether the “‘ALJ has failed to provide
legally sufficient reasons for rejecting evidence, whether claimant testimony or medical
opinion.’” Treichler v. Comm’r, 775 F.3d 1090, 1100-01 (9th Cir. 2014) (quoting Garrison, 759
F.3d at 1020). Second, if the ALJ has erred, the court should determine whether the record has
been fully developed, whether outstanding issues must be resolved before determining disability,
and whether further administrative hearings would be useful. Id. at 1101. Third, if the court
concludes “that no outstanding issues remain and further proceedings would not be useful,” the
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court may “find the relevant testimony credible as a matter of law” and “determine whether the
record, taken as a whole, leaves not the slightest uncertainty as to the outcome of the
proceeding.” Id. (citations, quotation marks, and brackets omitted). The court retains discretion
to remand for further proceedings if the record as a whole creates “serious doubt as to whether
the claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021.
Here, I conclude that when given proper weight, Dr. Fletemier’s opinion establishes that
Plaintiff required several naps during the day because of fatigue, that he needed frequent breaks,
especially in the morning, because of his diuretic medication, and that he lacked the stamina to
complete an eight-hour work day. See Feskens v. Astrue, 804 F. Supp. 2d 1105, 1122 (D. Or.
2011) (remanding for an immediate award of benefits because the record showed that the
plaintiff’s impairments “render him unable to work on a regular and continuing basis for ‘8 hours
a day, for 5 days a week, or an equivalent schedule’”) (citing SSR 96-8p, at *1).
No outstanding issues remain to be resolved, so further proceedings would not be useful.
Nothing in the record creates serious doubt about whether Plaintiff is disabled. I conclude that
Plaintiff is entitled to an immediate award of disability benefits.
CONCLUSION
The Commissioner’s decision is reversed and this case is remanded for an immediate
award of benefits.
IT IS SO ORDERED.
Dated this _____ day of February, 2019.
______________________________
Marco A. Hernandez
United States District Judge
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