Roper v. Commissioner Social Security Administration

Filing 18

Opinion and Order - The Commissioner's decision that Plaintiff was not disabled is REVERSED AND REMANDED for further proceedings consistent with this Opinion and Order. Signed on 4/30/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Lacie R.1,

Case No. 6:17-cv-1952-SI
Plaintiff,

OPINION AND ORDER

v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing the
duties and functions not reserved to the
Commissioner of Social Security,
Defendant.

Katherine L. Eitenmiller and Brent Wells, HARDER, WELLS, BARON & MANNING, PC, 474
Willamette Street, Eugene, OR 97401. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue, Suite 600, Portland, OR 97204;
Sarah L. Martin, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL, Social
Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.

1

In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
PAGE 1 – OPINION AND ORDER

Michael H. Simon, District Judge.
Lacie R. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying Plaintiff’s application for both
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C.
§§ 401-33, and for Supplemental Security Income (“SSI”) under Title XVI of the Social Security
Act, 42 U.S.C. §§ 401-33. For the following reasons, the Commissioner’s decision is reversed
and remanded.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
When the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
PAGE 2 – OPINION AND ORDER

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff was born on December 11, 1979. AR 80. Plaintiff applied for both DIB and SSI,
alleging a disability onset date of November 22, 2013. AR 16. As of the alleged disability onset
date, Plaintiff was nearly 34 years old. AR 80. She alleged disability due to obesity, liver disease,
bipolar disorder, borderline personality disorder, and severe pain. AR 272. Plaintiff’s
applications were denied both initially and upon reconsideration, and a hearing was held before
Administrative Law Judge (“ALJ”) B. Hobbs on May 17, 2017. AR 16. The ALJ denied
Plaintiff’s claims on July 19, 2017. AR 13. The Appeals Court denied review on October 4,
2017, making the ALJ’s decision the final decision of the Commissioner. AR 1. Plaintiff now
seeks review in this Court.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:

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1.

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

2.

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

3.

Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.

4.

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

5.

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

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See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ found that Plaintiff met the insured status requirements of the Social Security
Act through September 30, 2019. AR 18. Thus, for Plaintiff’s DIB claim, she must establish
disability on or before that date. At step one, the ALJ found that Plaintiff had performed
substantial gainful activity during the claimed disability period, with a total of $4,824 in
earnings. Id. The ALJ considered that job an unsuccessful work attempt, however, because
Plaintiff left the job due to a reported aggravation of her post-traumatic stress disorder (“PTSD”).
AR 18-19. At step two, the ALJ found that Plaintiff had the following severe impairments:
PTSD; major depressive disorder; irritable bowel syndrome (“IBS”); obesity; fatty liver disease;
gastroesophageal reflux disease (“GERD”); and gastroparesis. AR 19. At step three, the ALJ
found that Plaintiff did not have an impairment or a combination of impairments that met or
medically equaled one of the impairments listed in the regulations. AR19-20.
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The ALJ then determined that Plaintiff retained the RFC to perform light work with the
following additional limitations:
[Plaintiff] is limited to frequent stopping, crouching, kneeling,
crawling, and climbing ramps and stairs. [Plaintiff] can have no
more than infrequent interactive contact with the public,
coworkers, or supervisors. [Plaintiff] requires access to a bathroom
within five minutes travel time from the workstation.
AR 21. At step four, the ALJ found that Plaintiff was unable to perform past relevant work as a
fast food worker. AR 26. At step five, the ALJ identified three jobs in the national economy that
Plaintiff could perform based on her age, education, work experience, and RFC. AR 27-28.
Ultimately, the ALJ found that Plaintiff was not disabled. AR 28.
DISCUSSION
Plaintiff argues that the ALJ erred by: (A) failing to identify specific clear and convincing
reasons supported by substantial evidence for rejecting Plaintiff’s subjective testimony;
(B) failing to provide sufficient reasons to discount the treating medical testimony by Jay
Richards, DO, and Stephanie Casey, DO, as well as the examining medical testimony by
Raymond Noland, MD; and (C) rejecting lay witness testimony without providing reasons
germane to each of those witnesses.
A. Rejection of Plaintiff’s Subjective Testimony
“There is a two-step process for evaluating a claimant’s testimony regarding the severity
and limiting effect of the claimant’s symptoms.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). “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.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the
claimant need not show that her impairment could reasonably be expected to cause the severity
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of the symptom she has alleged; she need only show that it could reasonably have caused some
degree of the symptom.” Smolen, 80 F.3d at 1282.
“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345–46).
The Commissioner superseded Social Security Rule (“SSR”) 96-7p governing the
assessment of a claimant’s “credibility” and replaced it with SSR 16-3p. SSR 16-3p eliminates
the reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination
of an individual’s character,” and requires the ALJ to consider all of the evidence in an
individual’s record when evaluating the intensity and persistence of symptoms. See SSR 16-3p,
available at 2016 WL 1119029, at *1-2. The Commissioner recommends that the ALJ examine
“the entire case record, including the objective medical evidence; an individual’s statements
about the intensity, persistence, and limiting effects of symptoms; statements and other
information provided by medical sources and other persons; and any other relevant evidence in
the individual’s case record.” Id. at *4. The Commissioner further recommends assessing: (1) the
claimant’s statements made to the Commissioner, medical providers, and others regarding the
claimant’s location, frequency and duration of symptoms, the impact of the symptoms on daily

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living activities, factors that precipitate and aggravate symptoms, medications and treatments
used, and other methods used to alleviate symptoms; (2) medical source opinions, statements,
and medical reports regarding the claimant’s history, treatment, responses to treatment, prior
work record, efforts to work, daily activities, and other information concerning the intensity,
persistence, and limiting effects of an individual’s symptoms; and (3) non-medical source
statements, considering how consistent those statements are with the claimant’s statements about
his or her symptoms and other evidence in the file. See id. at *6-7.
The ALJ’s assessment of a claimant’s testimony may be upheld overall even if not all the
ALJ’s reasons for rejecting the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197.
The ALJ may not, however, make a negative credibility finding “solely because” the claimant’s
symptom testimony “is not substantiated affirmatively by objective medical evidence.”
Robbins, 466 F.3d at 883.
When the ALJ performed step one of the two-step process, he found that Plaintiff’s
“medically determinable impairments could reasonably be expected to cause the alleged
symptoms.” AR 22. When the ALJ performed step two, however, he found that Plaintiff’s
statements about “the intensity, persistence and limiting effects” of her symptoms were “not
entirely consistent with the medical evidence and other evidence in the record.” AR 22-23. The
ALJ provided several reasons for discounting Plaintiff’s subjective testimony regarding her
symptoms.
1. Inconsistencies—Gastrointestinal Symptoms
In discounting Plaintiff’s testimony regarding the limitations caused by her
gastrointestinal symptoms, the ALJ noted several inconsistencies between Plaintiff’s statements
to the Commissioner and Plaintiff’s statements to medical providers. AR 23. The ALJ noted that
although Plaintiff testified that she showered up to five times per day due to accidents from her
PAGE 8 – OPINION AND ORDER

gastrointestinal problems, she reported to the state agency consultative doctor that she showered
only once per week. The ALJ also noted that although Plaintiff claims to have significant
incontinence problems, she did not report incontinence issues with any specific frequency to
medical providers other than urinary tract incontinence for a short period of time.
The ALJ also noted inconsistencies between Plaintiff’s testimony and the medical record.
The ALJ also noted that Plaintiff’s statements that she had severe daily vomiting and diarrhea
such that she could hardly eat was inconsistent with her relatively stable obese weight, which
actually trended up during the relevant period.
Plaintiff testified that she took “probably about five” showers a day to clean up after
diarrhea accidents. AR 60. At her psychodiagnostic evaluation, however, Plaintiff claimed to
take only one shower a week. AR 309; AR 1572. Plaintiff does not offer any explanation for this
inconsistency.
Plaintiff testified that she vomits between six and thirty times per day. AR 57. Plaintiff
also testified that she suffers from near-constant diarrhea. Plaintiff’s weight has stayed relatively
stable, however, throughout the period at issue,2 and she even gained approximately thirty
pounds between 2015 and 2017. See AR 2296; AR 2456. Plaintiff claimed to lose thirty pounds
sometime before November 2015, but the ALJ noted that Plaintiff was taking phentermine for
weight loss at the time and was more active during this period. It was a rational interpretation of
the record for the ALJ to disregard this one instance of weight loss because of the overall trend
of stability and weight gain. The conflict between the extensive documentation of Plaintiff’s

2

Plaintiff weighed 259 lbs. on June 6, 2014. AR 422. She weighed 267 lbs. on October 7,
2014. AR 1470. She weighed 272 lbs. on December 21, 2015. AR 2296. She weighed 305 lbs. on
March 21, 2016. AR 2275. She weighed 305 lbs. on January 11, 2017. AR 2463. She weighed
308 lbs. on April 14, 2017. AR 2525.
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weight and her subjective testimony about near-constant vomiting and diarrhea is a specific,
clear, and convincing reason for the ALJ to discredit Plaintiff’s testimony. See Myres v. Colvin,
2015 WL 5032027, at *7 (D. Or. 2015) (“The ALJ reasonably considered this weight gain as
inconsistent with [claimant’s] reports of regular nausea, vomiting, diarrhea, and inability to
maintain proper nutrition.”).
The ALJ followed SSR 16-3p in considering the statements Plaintiff made to medical
providers and the Commissioner, and whether they were consistent. The ALJ also followed
SSR 16-3p in evaluating Plaintiff’s stated limitations with the evidence in the record. The
inconsistencies between Plaintiff’s testimony and her statements to medical providers and other
medical evidence is a clear and convincing reason to discount her subjective testimony regarding
her limitations.
2. Work history
Plaintiff has a history of IBS and GERD that dates back to when Plaintiff was working
full time. See AR 323, 441, 449-50. More recently, Plaintiff worked for three or four months as a
housekeeper. AR 52-53, 1569. During that time, she reported to her doctor that she walked
approximately six miles per day to catch a shuttle for work, plus she walked during her job.
AR 1431. Although the ALJ found Plaintiff’s housekeeping job to be an unsuccessful work
attempt, AR 19, the ALJ considered Plaintiff’s walking routine and ability to work for three
months as evidence that contradicts Plaintiff’s testimony about the severity of her physical
symptoms. AR 23. The Court agrees that Plaintiff’s ability to walk six miles per day and work
full time, although an unsuccessful work attempt, is still evidence that contradicts Plaintiff’s
testimony regarding the severity of her claimed physical limitations. This is a clear and
convincing reason to discount Plaintiff’s testimony regarding these limitations.

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The ALJ’s conclusion that Plaintiff left her housekeeping job for mental health reasons,
however, is not supported by substantial evidence in the record. According to a medical report
from September 24, 2015, around Labor Day while at her housekeeping job, Plaintiff suffered a
PTSD flareup that caused her “to yell and be really upset and hallucinate.” AR 1419. The chart
note, recorded during a mental health visit and as reported by Plaintiff, further states that
Plaintiff left work the day of the incident and was fired “a couple weeks later.” Id. There is no
explanation for why Plaintiff was fired. The ALJ assumed that Plaintiff was fired because of the
incident on Labor Day. The ALJ points to no direct evidence supporting that assumption and
only relies on this one chart note, which does not discuss the reasons why Plaintiff was fired. The
ALJ is conflating correlation (a mental health incident occurring a few weeks before Plaintiff
was fired) with causation.
Further, Plaintiff asserted another reason for being fired from her housekeeping job.
Plaintiff testified that she was fired for missing too many workdays. AR 53. Plaintiff elaborated
that her absences were caused by anxiety and the fact that she was “throwing up all the time.”
AR 54. Consequently, the ALJ committed an error by relying on one single medical record,
which did not discuss the reason Plaintiff was fired, to conclude that Plaintiff did not leave the
housekeeping job because of a physical ailment. This error is harmless, however, because the
ALJ provided other valid reasons for rejecting Plaintiff’s testimony regarding her physical
ailments.
3. Testimony Regarding Mental Health Limitations
Plaintiff criticizes the ALJ’s summary of Plaintiff’s mental health treatment record for
being too cursory. The ALJ characterized Plaintiff’s “rather limited treatment” as evidence that
her mental infirmities were less debilitating than her testimony would indicate. AR 25. The ALJ
alluded to the fact that Plaintiff only took part in individual and group therapy for less than one
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year between 2013 and 2014. Id. An ALJ may properly consider a claimant’s resistance to
treatment or lack of treatment in evaluating credibility. See Molina v. Astrue, 674 F.3d 1104,
1114 (9th Cir. 2012); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The Ninth Circuit
has, however, criticized reliance on a lack of treatment to reject mental complaints, opining that
it is “a questionable practice to chastise one with a mental impairment for the exercise of poor
judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996).
The ALJ dismissed Plaintiff’s mental treatment records as “not show[ing] an inability to
engage in basic work activities.” AR 25. Plaintiff argues, however, that the ALJ improperly
dismissed Plaintiff’s series of mental health crisis interventions due to panic attacks and suicidal
ideation. AR 1521-23; AR 1551-55; AR 2283-84. The ALJ dismissed these interventions as
“short lived” and the result of “situational stressors.” AR 25. The ALJ further noted that Plaintiff
reported having a good response to drugs, particularly Seroquel. Id.
Plaintiff argues that the overall record does not provide the ALJ with substantial evidence
to support that reasoning. The Court agrees. Plaintiff had a significant episode at work because
of a PTSD3 flareup that included hallucinations and required her to leave her job that day.
AR 1419. If a mental illness requires a person to leave work, it might indicate an inability to
engage in basic work activities. Additionally, even if suicidal episodes are the result of
“situational stressors,” and are “short-lived,” that is not a valid reason to downplay their impact
on a claimant’s ability to engage in basic work activities or to discount them in assessing
Plaintiff’s testimony. “An individual may have structured his or her activities to minimize
symptoms to a tolerable level by avoiding . . . mental stressors that aggravate his or her
“PTSD is associated with suicidal ideation and suicide attempts, and presence of
[PTSD] may indicate which individuals with ideation eventually make a suicide plan or actually
attempt suicide.” DSM-5 at 278.
3

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symptoms.” Ruling 16-3p, at *9. Avoidance of work can be a claimant’s method for avoiding
situational stressors; therefore, an ALJ should not rely on the presence of situational stressors to
downplay the impact of a mental health crisis on a claimant’s ability to engage in basic work
activities. Moreover, the Court notes that Plaintiff’s good response to Seroquel after her
intervention in December 2015 did not prevent her from needing additional interventions in
April 2016 and September 2016. AR 2283, 2395. The Court further notes that Plaintiff had to
decrease her Seroquel dosage because of worrying side effects to her liver.4 AR 2272-73.
Finally, the Court notes that Plaintiff has been on significant and varied medications to
treat her mental health impairments, including Prozac, Prazosin, Alprazolam, Fluoxetine,
Lithium, Wellbutrin, Seroquel, Xanax, Citalopram, Buspirone, Trazodone, and Clonazepam.
Despite these medications, Plaintiff has had fairly regular emergency mental health treatment,
including suicidal episodes. Accordingly, the ALJ did not provide a clear and convincing reason
to discount Plaintiff’s testimony regarding her mental health impairments.
B. Rejection of Medical Testimony
“Medical opinions are statements from acceptable medical sources that reflect judgments
about the nature and severity of [a claimant’s] impairment(s), including [her] symptoms,
diagnosis and prognosis, what [she] can still do despite impairment(s), and [her] physical or
mental restrictions.” 20 C.F.R. § 404.1527(a)(1). The medical opinion of a treating physician is
given “controlling weight” so long as it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). When a treating physician’s opinion is

“[Patient] is on a reduced dose of seroquel [sic] which was decreased . . . because her
[liver function tests] started to increase after the medication was started.” AR 2272.
4

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not controlling, it is weighted according to whether an examination has occurred; the nature and
extent of the treatment relationship; supportability; consistency with the record; and
specialization of the physician. 20 C.F.R. § 404.1527(c)(2)-(6).
“To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must
state clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r
of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) (quoting Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). “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.” Id. (quoting Bayliss, 427 F.3d
at 1216). “The ALJ can meet this burden by setting out a detailed and thorough summary of the
facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.”
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d
1403, 1408 (9th Cir. 1986)). “However, ‘[t]he ALJ need not accept the opinion of any physician,
including a treating physician, if that opinion is brief, conclusory, and inadequately supported by
clinical findings.’” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,1228 (9th Cir. 2009)
(alteration in original) (quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)).
Neither party disputes that Dr. Richards and Dr. Casey (collectively “Doctors”) qualify as
treating medical sources. The ALJ made no explicit findings about whether the Doctors’
opinions were contradicted by other medical opinions in the record. The Court has the authority
to draw inferences based on the record about whether the Doctors’ opinions have been
contradicted. Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017).
Both Doctors submitted their opinions by completing nearly identical form
questionnaires. The Doctors checked boxes indicating that Plaintiff needed to lie down or rest

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periodically throughout the workday. AR 2312; AR 2546. The Doctors indicated that Plaintiff’s
medical problems were severe enough to prevent her from maintaining a regular work schedule
on more than four days per month.5 AR 2313; AR 2546-47. These opinions contradict an
examining physician’s opinion indicating that Plaintiff would be able to either “stand and/or
walk (with normal breaks)” or to “sit (with normal breaks)” for a total of six hours in an eighthour workday. AR 93. The Doctors indicated that Plaintiff’s work schedule would be frequently
disrupted by her medical impairments, but the examining physician indicated that Plaintiff could
maintain a stable work schedule if she does not stay in one position for too long and if she is able
to take “normal breaks.” The Court finds that the Doctors’ opinions are contradicted, and the
ALJ therefore can reject those opinions by providing specific and legitimate reasons supported
by substantial evidence. Ryan, 528 F.3d at 1198.
1. Dr. Casey
The ALJ found that both Doctors “failed to provide specific information about how long
[Plaintiff] would have to lie down or otherwise rest.” AR 24. The ALJ also found that the
Doctors did not explain whether the need for rest could be met by “merely sitting while
performing work activity” or by taking breaks and resting outside of work hours. Id. The ALJ
also found that neither of the Doctors “provides a reason for the expectation of excessive

The ALJ made a misstatement by noting that both Doctors have failed to provide “a
reason for the expectation of excessive absences.” AR 24. The question on the form did not
exclusively deal with “absences” from work. Instead, the question asked how often Plaintiff’s
ailments would result in Plaintiff being unable to maintain a regular work schedule. The question
itself defines “[a] normal work schedule [as consisting] of an 8-hour day, 5 days per week with
normal breaks that would usually consist of a morning and an afternoon break of approximately
10-15 minutes in duration and a lunch break of one-half hour [sic] to one hour.” AR 2313;
AR 2546. The Doctors did not necessarily indicate that Plaintiff would be absent four or more
times a month. They were indicating that Plaintiff’s work schedule—as defined by the question
itself—would somehow be disrupted that many times by Plaintiff’s ailments.
5

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absences.” Id. The ALJ further found that Dr. Casey, having only treated Plaintiff for three
months, did not have a longitudinal relationship with Plaintiff. This latter reason is rejected
because Dr. Casey saw Plaintiff six times in those three months, and because Dr. Casey reviewed
Plaintiff’s extensive earlier records relating to her gastrointestinal problems. AR 2508.
Dr. Casey gave specific information about both the recommended form of rest (lying
down) and the recommended time (after meals). AR 2546. These statements by Dr. Casey
qualify as an explanation that the need for rest could not be satisfied by “merely sitting down
while performing work activity.” What Dr. Casey did not do, however, is explain the duration
that Plaintiff would need to lie down (e.g., 20 minutes, 45 minutes, 60 minutes) after each meal.
If it was only 15 minutes or 30 minutes, and Plaintiff’s only meal during work hours is lunch,
then Plaintiff could meet this restriction by taking a 60 minute lunch break, eating, and then
laying down for 15 or 30 minutes. If it requires 45 or 60 minutes, however, then it may not be
feasible for Plaintiff to rest the required time during a reasonable lunch break. Accordingly, the
ALJ’s conclusion that the Dr. Casey did not provide sufficient information regarding the
limitation required relating to Plaintiff’s need for rest is a specific and legitimate reason to
discount this opinion.
Regarding Plaintiff’s inability to maintain a regular work schedule, Dr. Casey opined that
Plaintiff would not be able to do so four or more days per month. Dr. Casey provided no
explanation or further information. Although this conclusion was unsupported on the form,
Dr. Casey had voluminous medical records, both from her own treatment of Plaintiff and
Plaintiff’s earlier treatment, which Dr. Casey reviewed. A doctor’s unsupported opinion can be
supported by the doctor’s experience with the claimant and underlying records. See Garrison v.
Colvin, 759 F.3d 995, 1013 (9th Cir. 2014). The ALJ did not provide any analysis as to why

PAGE 16 – OPINION AND ORDER

Dr. Casey’s experience with Plaintiff and underlying records did not support the opined work
interruptions, given Plaintiff’s long-documented gastrointestinal impairments. The mere fact that
the opinion was unsupported on the form, by itself, was not a sufficiently specific and legitimate
reason in light of the full record. Moreover, being precluded from maintaining a regular work
schedule does necessarily mean a full-day “absence,” as it appeared the ALJ assumed.
The ALJ also noted that Dr. Casey acknowledged that aside from gastroparesis,6
“multiple aspects of [Plaintiff’s] workup had been negative.” AR 24. For example, Dr. Casey’s
opinion mentioned “negative stool studies done by past gastroenterologist” and “upper and lower
endoscopies by past gastroenterologist without significant findings.” AR 2544. Additionally,
Dr. Casey acknowledged that aside from gastroparesis, Plaintiff’s ailments are not supported by
objective evidence, “as is the nature of such conditions.” AR 2545. Dr. Casey’s statements about
gastroparesis, however, are supported by her medical exam reports, which acknowledge an
earlier gastric emptying study showing that Plaintiff’s “stomach empties slowly.” AR 2501. The
ALJ pointed to no medical opinion or other evidence that gastroparesis alone could not result in
the opined work interruptions. Thus, the ALJ has failed to give a specific and legitimate reasons
supported by substantial evidence to dismiss Dr. Casey’s opinion regarding Plaintiff’s inability
to maintain a regular work schedule.
2. Dr. Richards
Dr. Richards indicated that Plaintiff would need to rest “[s]everal times per day to relieve
abdominal pain & nausea & vomiting.” AR 2312. Dr. Richards was even more vague than

“Gastroparesis is a condition that affects the normal spontaneous movement of the
muscles (motility) in your stomach. . . . Gastroparesis can interfere with normal digestion, cause
nausea and vomiting, and cause problems with blood sugar levels and nutrition.” Gastroparesis,
Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/gastroparesis/symptomscauses/syc-20355787 (last visited Mar. 8, 2019).
6

PAGE 17 – OPINION AND ORDER

Dr. Casey, and his opinion suffers from the same deficiency in that it does not include any
specifics regarding duration. Thus, the ALJ could not ascertain whether the required rest could
be completed during normal work breaks. With Dr. Richards’ opinion, it also is unclear whether
the “several times per day” would be required during the work day versus during a twenty-four
hour day. With Dr. Casey, the rest was associated with meals and common understanding is that
only one meal is during a work day. Dr. Richards, however, provides even less information from
which the ALJ could determine how this limitation would affect a work day. Accordingly, the
ALJ’s stated concern regarding the vague and nonspecific information is a specific and
legitimate reason to discount this opinion.
Dr. Richards provided the same opinion as Dr. Casey regarding Plaintiff’s inability to
maintain a regular work schedule—that she would be unable to do so four or more days per
month. The ALJ gave the same reason as she did for Dr. Casey. For the same reasons as
discussed with Dr. Casey, the ALJ did not provide a specific and legitimate reason to discount
this opinion.
The ALJ also noted that Dr. Richards did not acknowledge Plaintiff’s work activity as a
housekeeper. AR 24. One of Dr. Richards’ reports mentions that Plaintiff reported that she
walked six miles to catch the shuttle to work and walked during work hours. AR 1431. Although
this is evidence of some physical activity, it is not a specific and legitimate reason to discount
Dr. Richards’ opinion. The ALJ characterized the housekeeping job as a failed work attempt.
Plaintiff testified that she missed one to two days per week while attempting to work this job,
which is consistent with Dr. Richards’ opinion regarding Plaintiff’s disrupted work schedule.
Dr. Richards was not required to consider the failed work attempt in his opinion.

PAGE 18 – OPINION AND ORDER

3. Dr. Nolan
Raymond Nolan, M.D., administered a general medical exam on Plaintiff. Dr. Nolan
wrote a report with the following testimony about Plaintiff’s functional capabilities: “I would
place no restrictions on duration of sitting or walking, lifting or carrying. . . . The recurring
episodes of daily nausea and vomiting and the apparent regular issues of incontinence of feces
and urine can be problematic and would require regular availability of bathroom facilities.”
AR 2316. Dr. Nolan further assessed that Plaintiff’s reported headaches “did have some
characteristics suggesting migraine.” Id. Dr. Nolan attached a checkbox form to the exam report.
The form included the following question: “State any other work-related activities, which are
affected by any impairments and indicate how the activities are affected.” AR 2322. Dr. Nolan
made a handwritten note in response: “Frequent migraine headaches and daily complaints of
nausea & vomiting, plus incontinence complaints re urine and stool could easily disrupt job
productivity.” Id.
The ALJ credited Dr. Nolan’s opinion regarding access to a bathroom and included it in
the RFC. The ALJ rejected Dr. Nolan’s comment about frequent migraines by reasoning that the
record contained no indication that Plaintiff had “received ongoing treatment for migraines much
less headaches generally.” AR 24. The Court agrees with the ALJ’s dismissal of Dr. Nolan’s
migraine comment, and Plaintiff does not raise any arguments against it.7

The Ninth Circuit has “long held that, in assessing a claimant’s credibility, the ALJ may
properly rely on ‘unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment.’” Molina, 674 F.3d at 1114 (quoting Tomassetti v. Astrue, 533
F.3d 1035, 1039 (9th Cir. 2008)). Furthermore, the ALJ is allowed to reject even a treating
physician’s opinion to the extent that the opinion is based on “an applicant’s self-reports and not
on clinical evidence, [if] the ALJ finds the applicant not credible.” Ghanim, 763 F.3d at 1162.
Therefore, an ALJ can properly disregard an examining physician’s opinion to the extent that (1)
the opinion is based on a claimant’s self-reports and (2) the claimant’s self-reports are deemed
not credible because of an unexplained or inadequately explained failure to seek treatment.
7

PAGE 19 – OPINION AND ORDER

Plaintiff argues, however, that the ALJ erred by failing to identify a reason for rejecting
Dr. Nolan’s opinion about how easily Plaintiff’s nausea, vomiting, and incontinence could
“disrupt” job activity. This comment, however, is not a statement of any functional limitation or
assessment of functional capacity, but is a vague and nonspecific suggestion that the ALJ was
not required to accept or act upon. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685,
691-92 (9th Cir. 2009) (noting that when a doctor’s observation is a recommendation, it is
“neither a diagnosis nor statement of [the claimant’s] functional capacity” and an ALJ “[does]
not err by excluding it from the RFC”); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595,
601 (9th Cir. 1999) (noting that an ALJ can disregard a medical report that does “not show how
[a claimant’s] symptoms translate into specific functional deficits which preclude work
activity”); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (noting that an ALJ may reject
a medical opinion that includes “no specific assessment of [the claimant’s] functional capacity”);
Espenas v. Colvin, 2014 WL 7405655, at *8 (D. Or. Dec. 30, 2014) (noting that comments such
as that the claimant “would benefit from additional instruction and time when adapting to more
complex changes, and would benefit from assistance in setting work goals” were “occupational
suggestions, not limitations per se”); Villalobos v. Colvin, 2014 WL 127084, at *8 (D. Or. Jan. 9,
2014) (noting that where the doctor’s verbiage suggests “recommendations, as opposed to
imperatives,” they “are neither diagnoses nor statements of plaintiff’s RFC”).
Dr. Nolan also noted that Plaintiff could only use her right foot to operate “foot controls”
because Plaintiff has a “history [of] ankle injury with restricted range of motion.” AR 2319.
Dr. Nolan indicated that Plaintiff had a limited ability to crawl resulting from “ankle restriction
of range of motion and stiffness.” AR 2320. The ALJ responded to this proposed limitation by
referring to record evidence showing that the ankle injury was only minor, and “within a few

PAGE 20 – OPINION AND ORDER

months, [the ankle] was considered stable and related complaints ceased.” AR 19, 24. The ALJ’s
conclusion on this point is supported by substantial evidence. Consequently, the ALJ has given a
specific and legitimate reason that is supported by substantial evidence to reject the examining
physician’s opinion with regard to Plaintiff’s supposed ankle limitations.
The ALJ properly rejected Dr. Nolan’s examining opinion with regard to Plaintiff’s ankle
limitations, headaches, and need to rest. The Court also finds that the ALJ did not need to
incorporate Dr. Nolan’s nonspecific findings regarding Plaintiff’s impairments resulting in easy
job disruption. The ALJ thus did not err in considering Dr. Nolan’s opinion.
C. Rejection of Lay Witness Testimony
Any person who gives testimony about a claimant’s impairments can qualify as a lay
witness. SSR 06-03p, 2006 WL 2329939, at *2. Spouses and “other caregivers” can qualify as
lay witnesses. Id. The ALJ’s proffered reasons for rejecting lay witness testimony must be
specific, as well as germane. Bruce v. Astrue, 557 F33d 1113, 1115 (9th Cir. 2009).
“Inconsistency with medical evidence is one such [germane] reason.” Bayliss v. Barnhart, 427
F.3d 1211, 1218 (9th Cir. 2005). The Ninth Circuit has recognized a difference between (1) a lay
witness statement that lacks affirmative support in the record, which may not be a proper reason
for rejecting testimony, and (2) a lay witness statement that is actually inconsistent with medical
evidence in the record, which may be a proper reason for rejecting testimony. Compare Bruce v.
Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) with Bayliss, 427 F.3d at 1218.
An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,
either individually or in the aggregate.” Molina, 674 F.3d at 1115 (citing Nguyen v. Chater, 100
F.3d 1462, 1467 (9th Cir. 1996)). Where an ALJ ignores uncontradicted lay witness testimony
that is highly probative of the claimant’s condition, “a reviewing court cannot consider the error

PAGE 21 – OPINION AND ORDER

harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the
testimony, could have reached a different disability determination.” Stout, 454 F.3d at 1056.
An ALJ need not “discuss every witness’s testimony on an individualized, witness-bywitness basis. Rather, 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, 674 F.3d 1104, 1114 (9th Cir. 2012). Plaintiff argues that the ALJ failed to
give specific and germane reasons to dismiss the lay witness testimony of Plaintiff’s spouse,
Lorianna R.; Plaintiff’s caregiver, Stacey Stewart; and Plaintiff’s spouse’s former caregiver,
Velma Arter.
1. Lorianna R.
Plaintiff’s spouse, Lorianna R. submitted a third party function report in which she
repeatedly claimed that neuropathy in Plaintiff’s hips “causes her severe pain” and makes her
prone to fall down. AR 337. The ALJ acknowledged that Lorianna R.’s function report was
“somewhat consistent” with Plaintiff’s own testimony, but the ALJ relied on a lack of medical
diagnosis for Plaintiff’s neuropathy as a reason to dismiss Lorianna R.’s lay witness testimony.
The Court finds that this reason does not qualify as germane. “A lack of support from medical
records is not a germane reason to give ‘little weight’ to those [lay witness] observations.”
Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017).
The ALJ also noted that this report “adds little substance” and therefore was of limited
evidentiary value. This comment, however, does not appear to be provided as a germane reason
to discount the testimony. The ALJ did not assert that the report was irrelevant, only that it did
not add much substantive information.
The ALJ also rejected Lorianna R.’s lay witness testimony because she submitted
another, handwritten document that the ALJ characterized as included misrepresentations of the
PAGE 22 – OPINION AND ORDER

medical evidence. AR 22. These purported misrepresentations are that Plaintiff broke her ankle
in three places and that Plaintiff suffered from a significant gastrointestinal bleed. Id. The ALJ
noted that Plaintiff suffered a “minimal avulsion fracture” to her ankle. AR 19 (citing to
AR 1378-81, 1546, 2310); see also AR 1627 (x-ray report regarding Plaintiff’s ankle, noting a
small ossific fragment and concluding it is likely an avulsion fracture). The ALJ determined that
Lorianna R.’s testimony that Plaintiff broke her ankle in three places was therefore inconsistent
with and a misrepresentation of the medical record. Although the Court finds characterizing
Lorianna R.’s report a “misrepresentation” of the medical record to be excessive, because it may
be that she genuinely believed Plaintiff broke her ankle in three places instead of one, or
misremembered, the Court agrees that the report is inconsistent with the medical evidence. This
inconsistency is a germane reason to discount Lorianna R.’s testimony.
The Ninth Circuit has held that “an ALJ errs when he discounts [a lay witness’s] entire
testimony because of inconsistency with evidence in the record, when the ALJ has divided the
testimony into distinct parts and determined that only one part of the testimony is inconsistent.”
Dale v. Colvin, 823 F.3d 941, 945 (9th Cir. 2016) (emphasis in original). Reasons that “apply to
a witness’ entire testimony,” however, are germane to discounting the “whole opinion.” Id. Such
reasons include marginal relevance, bias, and conflicts with other opinions or the witnesses’ own
statements. Id. at 944-45.
The ALJ divided Lorianna R.’s testimony into two parts—the first submission, which the
ALJ discounted for its heavy reliance on undiagnosed neuropathy and noted it had limited
evidentiary value, and the second submission, which the ALJ discounted as having testimony
that was inconsistent with the medical evidence. The Court rejected the ALJ’s proffered reason
for the first part—the unsupported diagnosis. The accepted reason for the second part, however,

PAGE 23 – OPINION AND ORDER

is a reason that is applicable to Lorianna R.’s entire testimony. Her statement that Plaintiff broke
her ankle in three places when Plaintiff suffered only a single, mild fracture demonstrates that
Lorianna R. is not a reliable witness on Plaintiff’s medical conditions and symptoms, whether
from a lack of understanding, poor memory, or tendency to exaggerate. This is a generally
applicable reason. Accordingly, it is a germane reason to discount her entire testimony.
2. Stacey Stewart and Velma Arter.
The ALJ dismissed the lay witness testimony of Lorianna R.’s two caregivers, Stacey
Stewart and Velma Arter. Ms. Stewart also has worked as a caregiver for Plaintiff. AR 387. Both
Ms. Stewart and Ms. Arter describe Plaintiff’s ongoing struggles with incontinence and
excessive vomiting. AR 387-88, 390. The ALJ’s only stated reason for dismissing Ms. Stewart
and Ms. Arter’s testimony is that “[t]he frequency of incontinence cited by these sources has not
been reported to medical providers.” AR 22. The ALJ committed a legal error by dismissing lay
witness testimony for that reason alone. A “lack of support from medical records” does not
qualify as a germane reason for giving “little weight” to the symptom testimony of lay witnesses.
Diedrich, 874 F.3d at 640.
This error is harmless, however, because the ALJ properly discounted Plaintiff’s
testimony regarding her limitations caused by her physical impairments. Both Ms. Stewart and
Ms. Arter provided testimony similar to Plaintiff’s testimony. An ALJ’s error in discounting lay
witness testimony is harmless “where the testimony is similar to other testimony that the ALJ
validly discounted.” Molina, 674 F.3d at 1114.
D. Remand
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
PAGE 24 – OPINION AND ORDER

explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
utility of further proceedings. A court may not award benefits punitively and must conduct a
“credit-as-true” analysis on evidence that has been improperly rejected by the ALJ to determine
if a claimant is disabled under the Social Security Act. Strauss v. Comm’r of the Soc. Sec.
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this
Court. Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The court first determines whether
the ALJ made a legal error and then reviews the record as a whole to determine whether the
record is fully developed, the record is free from conflicts and ambiguities, and there is any
useful purpose in further proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015).
Only if the record has been fully developed and there are no outstanding issues left to be
resolved does the district court consider whether the ALJ would be required to find the claimant
disabled on remand if the improperly discredited evidence were credited as true. Id. If so, the
district court can exercise its discretion to remand for an award of benefits. Id. The district court
retains flexibility, however, and is not required to credit statements as true merely because the
ALJ made a legal error. Id. at 408.
The ALJ improperly discounted some of Plaintiff’s testimony and the treating physician
opinion of Drs. Casey and Richards regarding Plaintiff’s inability to maintain a regular work
schedule. The record is not complete, however, and further proceedings would be useful to
resolve lingering factual conflicts. Specifically, the ALJ needs to further evaluate Plaintiff’s
testimony regarding her mental impairments and how Plaintiff’s regular work schedule would be
interrupted by her physical impairments.

PAGE 25 – OPINION AND ORDER

CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is REVERSED AND
REMANDED for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 30th day of April, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 26 – OPINION AND ORDER