Oberfoel v. Commissioner Social Security Administration

Filing 26

OPINION & ORDER: The decision of the Commissioner is REVERSED and this matter is REMANDED for further proceedings. Signed on June 20, 2019 by Magistrate Judge Youlee Yim You. (eo)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION

CYNTHIA O.,1
Plaintiff,
Case No. 6:18-cv-00446-YY
v.
OPINION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Defendant.

YOU, Magistrate Judge:
Cynthia O. (“plaintiff”), seeks judicial review of the final decision by the Commissioner
of Social Security (“Commissioner”) denying plaintiff’s application for Title II Disability
Insurance Benefits (“DIB”) under the Social Security Act (“Act”). This court has jurisdiction to
review the Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).2 Because

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 or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member(s).
2

All parties have consented to allow a magistrate judge to enter final orders and judgment in this
case in accordance with FRCP 73 and 28 USC § 636(c).
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the Commissioner’s decision is not supported by substantial evidence, it is REVERSED and
REMANDED for further proceedings.
BACKGROUND
Born in 1953, plaintiff was 59 years old on the alleged onset date. Tr. 90. Plaintiff has
past relevant work as a secretary. Tr. 30.
Plaintiff has been diagnosed with pathological gambling, major depressive disorder,
bulimia nervosa, hypothyroidism, posttraumatic stress disorder (“PTSD”), adjustment disorder,
agoraphobia, panic disorder, anxiety disorder, dysthymic disorder, and Stage III chronic kidney
disease. Tr. 353-54, 456, 465, 514, 556, 623, 632, 680.
Plaintiff was terminated from her most recent work as a secretary at the Lane County
School District after she admitted to embezzling funds from the school. Tr. 180, 196. She was
ordered to pay restitution and sentenced to twenty-two months in prison, of which she served
sixteen. Tr. 196, 484. Prior to her prison sentence, plaintiff began treatment for her gambling
addiction. Tr. 355-62.
Plaintiff suffers from PTSD and anxiety resulting from her older brother sexually abusing
her from age nine to sixteen. Tr. 351-52, 632. Her parents knew about the abuse, but never did
anything to stop it. Id. Plaintiff also was physically abused by her first husband. He began
abusing her in 1974, and “[s]he suffered broken bones, [a] fractured skull, and bruises until she
divorced him in 1981.” Tr. 352.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on February 2, 2014, alleging disability beginning
February 11, 2013. Tr. 18. Plaintiff’s claim was initially denied on June 27, 2014, and upon
reconsideration on January 25, 2015. Id. A hearing was held before an Administrative Law

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Judge (“ALJ”) on February 9, 2017, in which the plaintiff testified, as did a vocational expert
(“VE”). Tr. 39-79. On April 20, 2017, the ALJ issued a decision finding plaintiff not disabled
within the meaning of the Act. Tr. 18-32. After the Appeals Council denied her request for
review, plaintiff filed a complaint in this court. Tr. 1-7. The ALJ’s decision is therefore the
Commissioner’s final decision subject to review by this court. 20 C.F.R. § 422.210.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the
evidence that supports and detracts from the ALJ’s conclusion and “‘may not affirm simply by
isolating a specific quantum of supporting evidence.’” Garrison v. Colvin, 759 F.3d 995, 100910 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The
reviewing court may not substitute its judgment for that of the Commissioner when the evidence
can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742,
746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational
interpretation, the Commissioner’s decision must be upheld if it is “supported by inferences
reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citation omitted); see also Lingenfelter, 504 F.3d at 1035.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
Disability is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or 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). The ALJ engages in a five-step sequential inquiry to

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determine whether a claimant is disabled within the meaning of the Act. This sequential analysis
is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit
case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v.
Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ’s decision in this case, Tr. 19-20.
At step one, the ALJ found plaintiff had not engaged in substantial gainful activity after
February 11, 2013, the alleged onset date. Tr. 20.
At step two, the ALJ found plaintiff has the following severe impairments: anxiety
disorder, PTSD, affective disorder, gambling addiction, and an eating disorder. Tr. 21.
At step three, the ALJ found plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. Tr. 22. The ALJ next assessed
plaintiff’s residual functional capacity (“RFC”) and determined that she could perform a full
range of work at all exertional levels, except she was limited to no more than frequent interaction
with the general public and she should have no close cooperative work with coworkers. Tr. 24.
At step four, the ALJ found plaintiff was able to perform her past relevant work as a
secretary. Tr. 30.
Although the ALJ was not required to continue the sequential analysis, he proceeded to
step five and determined, in the alternative, that plaintiff could perform jobs that exist in
significant numbers in the national economy, including general administrative clerk, data entry
clerk, and billing typist. Tr. 31.
DISCUSSION
Plaintiff argues that the ALJ erred by improperly discounting her subjective symptom
testimony, erroneously assessing the medical opinions of Dr. Anderson and Zana Zeigler,

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improperly rejecting the lay witness testimony of her cousins, and erroneously evaluating her
severe impairments.
I.

Subjective Symptom Testimony
When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of, and the record contains no
affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the
severity of . . . symptoms only by offering specific, clear and convincing reasons for doing
so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general
assertion that the claimant is not credible is insufficient; the ALJ must “state which . . . testimony
is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala,
12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered 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) (internal citation omitted). If
the “ALJ’s credibility finding is supported by substantial evidence in the record, [the court] may
not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
(citation omitted).
Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)
96-7p, governing the assessment of a claimant's “credibility,” and replaced it with SSR 163p. See SSR 16-3p, available at 2016 WL 1119029. 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. Id. at *1-2. The ALJ must
examine “the entire case record, including the objective medical evidence; an individual’s

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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.
A.

Symptom Improvement

The effectiveness of treatment is a relevant factor in determining the severity of a
claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Here, the ALJ found that
plaintiff’s “mental health records from 2015 continued to show improved functioning.” Tr. 27.
At an appointment in February 2015, plaintiff reported to her therapist that she had “achieved a
much higher level of functioning.” Tr. 617. Plaintiff’s therapist noted that plaintiff had “made
significant progress in treatment.” Tr. 618. Although a year before, plaintiff “often left sessions
early[,] reporting that she had felt overwhelmed by the experience of talking about herself and
her life,” plaintiff was better able to tolerate the challenges of therapeutic work. Tr. 620.
However, at that same appointment, plaintiff’s therapist noted that on most days, plaintiff
experienced “debilitating anxiety.” Tr. 617. Moreover, in February and July 2016, plaintiff
reported worsening anxiety, panic, and depression. Tr. 630, 645.
Accordingly, even though plaintiff’s condition had improved, the record reflects that she
continued to experience significant mental health symptoms. The fact that plaintiff, at times,
experienced temporary improvement does not demonstrate her symptoms were effectively
treated. Furthermore, mental health symptoms often wax and wane over time; therefore, isolated
instances of improvement are not sufficient evidence to demonstrate that a claimant is not
disabled. Garrison, 759 F.3d at 1017 (citing Holohan v. Massanari, 246 F. 3d 1195, 1205 (9th
Cir. 2001) (“Cycles of improvement and debilitating symptoms are a common occurrence, and in
such circumstances it is error for an ALJ to pick out a few isolated instances of improvement

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over a period of months or years and to treat them as a basis for concluding a claimant is capable
of working.”). For these reasons, the ALJ erred in concluding that symptom improvement
constituted a clear and convincing reason for discounting plaintiff’s testimony.
B.

Inconsistent Statements

The ALJ found that plaintiff’s ability to volunteer at a senior home, take care of her
mother, and go outdoors for exercise showed that she was “not socially isolated and she [was]
cognitively intact, and it [was] inconsistent with her reports of worsening mental health
symptoms.” Tr. 26. However, plaintiff only spent about an hour-and-a-half per month
volunteering at the senior home, and she told her cousins even that was “too much for her.” Tr.
343. Moreover, it is not clear how the fact that plaintiff spent time taking care of her mother or
went outside to exercise establishes that she was not socially isolated or is inconsistent with her
reports of worsening mental health. Indeed, plaintiff’s therapist noted that plaintiff’s anxiety and
depression limit her “participation in a more active social life.” Tr. 617. The therapist further
noted that plaintiff “goes out very little due to anxiety and panic attacks,” and that her “severe
panic attacks” “cause her to isolate and keep her confined to her home more than she would like
to be.” Tr. 651, 671.
The ALJ also discounted plaintiff’s testimony because she “testified that she was not
‘writing’ a book, but this is not consistent with her report to her therapist.” Tr. 23 (citing Tr.
657, 673). In November 2016, plaintiff reported to her therapist that she was “so consumed with
her book that she [was] writing and that it feels like that is what gives her a purpose right now.”
Tr. 657. In December 2016, she shared with her therapist that “she enjoys working on a book
that she has been writing for her grandchildren. She calls it ‘My Grandchildren’s Ancestry.’”
Tr. 673. At the hearing, plaintiff explained that the book is essentially a scrapbook of pictures of

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her parents and grandparents, and she is making it for her grandchildren so they will know where
they came from. Tr. 50-51. She further explained that there is no narrative story in the book,
just family trees that she diagramed and some biographic information like birthdates. Tr. 51-52.
The ALJ seized on the words “writing” and “book,’ when in fact plaintiff was merely compiling
a scrapbook. This constitutes a dispute over semantics, and does not rise to a meaningful
inconsistency in plaintiff’s testimony.
The Commissioner argues that plaintiff’s testimony that she worked on the book to ease
her mental symptoms is inconsistent with her statements to treatment providers that “she enjoyed
working on her book and found it meaningful.” Def. Br. 8, ECF #24. However, an activity can
ease mental symptoms and at the same time be enjoyable and meaningful. In fact, one would
expect that an enjoyable and meaningful activity would be helpful in easing mental health
symptoms. Therefore, plaintiff’s purportedly inconsistent statements do not constitute a clear
and convincing reason for discounting her testimony.
C.

Activities of Daily Living

An ALJ may invoke activities of daily living in the context of determining symptom
allegation credibility to (1) illustrate a contradiction in previous testimony, or (2) demonstrate
that the activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625,
639 (9th Cir. 2007). Here, the Commissioner cited both alternative rationales, but then stated
“[t]his was the case here.” Def. Br. 10, ECF #24. It is not clear which of the two permissible
rationales the Commissioner was relying on to discount plaintiff’s testimony, or whether the
Commissioner intended to rely on both. Thus, the court addresses both.
To properly discredit a claimant based on a contradiction between her activities and her
testimony, “[t]he ALJ must state specifically which symptom testimony is not credible and what

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facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284 (citing Dodrill, 12 F.3d at
918). In finding that plaintiff was not disabled, the ALJ cited plaintiff’s ability to volunteer at
the nursing facility, take care of her mother, work on a book, and bake cookies for a friend.
Tr. 23, 27. The ALJ never indicated which symptom testimony was contradicted by those
activities, other than pointing out the purported inconsistency regarding whether plaintiff was
writing a book or making a scrapbook, which is invalid for the reasons discussed above.
Accordingly, the alleged inconsistency between plaintiff’s activities and her testimony does not
constitute a clear and convincing reason for discounting her testimony.
With regard to transferable work skills, “daily activities may be grounds for an adverse
credibility finding ‘if a claimant is able to spend a substantial part of his day engaged in pursuits
involving the performance of physical functions that are transferable to a work setting.’” Orn,
495 F.3d at 639 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Here, however, the
ALJ did not identify how any of plaintiff’s activities transferred to gainful work. Moreover, it
does not appear that plaintiff spent a substantial part of her day engaged in such activities.
Plaintiff spent only an hour-and-half per month volunteering at the senior home. Tr. 343.
Plaintiff’s “book” was merely a scrapbook of pictures of her parents and grandparents, and the
record shows that plaintiff made cookies for a friend on only one occasion. Tr. 50-51, 662.
Moreover, while plaintiff reported that she had become the primary care giver for her
mother, the record reflects that she began taking care of her mother shortly before her mother’s
death. Tr. 671. It is also not clear what caring for her mother actually entailed. The record does
not detail what plaintiff did for her mother or how much time she spent doing it. Tr. 629. Given
that plaintiff’s caretaking activities lasted for a short time and there is very little explanation as to

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what those activities involved, the caretaking activities do not constitute a clear and convincing
reason for discounting plaintiff’s testimony.
The ALJ also relied on the fact that plaintiff was reconnecting with her daughter and
grandchildren. Tr. 27. In December 2016, plaintiff reported that “friends and several family
members ha[d] turned their backs on her” and she was “just starting to reconnect with her
daughter who would not speak to her or let her see her grandchildren for several months/years.”
Tr. 671. It is not clear how plaintiff’s potential reconciliation with her family members
contradicts any of her testimony. Smolen, 80 F.3d at 1284 (citing Dodrill, 12 F.3d at 918).
Moreover, reconciling with family members does not qualify as “the performance of physical
functions that are transferable to a work setting.” Orn, 495 F.3d at 639 (quoting Fair, 885 F.2d
at 603). Accordingly, the fact that plaintiff was beginning to reconnect with her family does not
qualify as a clear and convincing reason for discounting her testimony.
D.

Exaggerated Symptom Reports

The ALJ found that plaintiff exaggerated the degree of her chronic kidney disease by
reporting to her therapist that she was going into kidney failure. Tr. 27. However, the record
reflects that plaintiff was suffering from “acute renal failure.” Tr. 589, 714, 731, 734. As such,
it does not appear that plaintiff exaggerated her symptoms.
The ALJ also found that plaintiff “self-reported extreme symptoms of depression and
anxiety, but her mental status exam was largely unremarkable.” Tr. 27 (citing Tr. 630, 633).
Plaintiff scored a 45 on the HAI anxiety screen and a 46 on the BDI-II, indicating extreme
anxiety and depression. Tr. 630. While the mental status exam did not indicate any cognitive
deficits, plaintiff presented with pressured speech and labile affect. Tr. 633. Moreover, plaintiff
presented as depressed, fearful, and anxious at a number of appointments. Tr. 356, 482, 515,

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620. Thus, the absence of cognitive deficits on plaintiff’s mental status exam does not contradict
her reports of depression and anxiety. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir.
2014) (rejecting ALJ’s reliance on the claimant’s “good eye contact, organized and logical
thought content, and focused attention” because “[t]hese observations of cognitive functioning
during therapy sessions [did] not contradict [the claimant’s] reported symptoms of depression
and social anxiety”).
The ALJ also noted the absence of emergency room records, even though plaintiff
reported “debilitating anxiety symptoms in 2016 such as multiple panic attacks daily, including
[a] severe one that allegedly lasted three days.” Tr. 27. While there are no records that plaintiff
went to an emergency room in 2016, she never claimed that she sought treatment at an
emergency room. Moreover, at one point, plaintiff kept a detailed written log of her panic
attacks, and those records reflect that during an eleven-day period in April 2016 she suffered 16
panic attacks. Tr. 320-22.
The ALJ also relied on records from a March 2016 therapy session where plaintiff
“insist[ed]” that she had experienced a panic attack lasting three days, but literature indicates that
panic attacks last only 5-15 minutes. Tr. 27 (citing Tr. 642). The ALJ found it significant that
plaintiff’s therapist “did not want to challenge her on this. . . .” Tr. 27. Plaintiff’s therapist
actually wrote that “[s]uggesting otherwise would be ill-fated and only increase[] [plaintiff’s]
anxiety. . . .” Tr. 642. Indeed, plaintiff’s therapy records reflect that plaintiff did not fully
understand her own mental impairment, and an important part of her treatment was increasing
her knowledge about panic disorder. Tr. 653. Therefore, while plaintiff may have
misunderstood her longer periods of anxiety symptoms to be panic attacks, that is not a clear and
convincing reason for discounting her testimony. Furthermore, the fact that plaintiff’s therapist

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believed it would increase plaintiff’s anxiety if she challenged plaintiff on whether her symptoms
met the definition of panic attacks, shows that plaintiff’s anxiety was significant.
E.

Reports of Retirement

The ALJ relied on the fact that plaintiff was receiving retirement benefits from Social
Security and from her former employer. Tr. 28. The fact that plaintiff was eligible for
retirement benefits, and opted to receive them, is not necessarily inconsistent with disability.
The ALJ also cited the fact that Dr. Findley listed plaintiff’s occupation as “retired” in
treatment notes, finding that “claiming to be ‘retired’ from work seems somewhat inconsistent
with claiming to be ‘disabled’ and unable to work.” Tr. 28 (citing Tr. 570). Notably, it is not
clear exactly what plaintiff said to Dr. Findley, only that the doctor listed “retired” as plaintiff’s
occupation. As such, it not evident that plaintiff actually claimed to be retired. Moreover,
“[a]djudicators must limit their evaluation to the individual’s statements about his or her
symptoms and the evidence in the record that is relevant to the individual’s impairments.” SSR
16-3p, at *10. In any event, the fact that plaintiff possibly referred to herself as retired is a weak
reason, and because the ALJ’s other reasons are not supported by substantial evidence, this
reason standing alone is not a clear and convincing reason for discounting plaintiff’s subjective
symptom testimony. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (“Because the
ALJ’s other reasons . . . are not supported by substantial evidence, and because this reason is
weak on this record, we conclude the ALJ erred. . . .”).
II.

Medical Opinion Evidence
Plaintiff argues that the ALJ improperly assessed the medical opinion of non-examining

physician, Dr. Anderson, and treating therapist, Zana Zeigler. The ALJ is responsible for
resolving ambiguities and conflicts in the medical testimony. Magallanes v. Bowen, 881 F.2d

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747, 750 (9th Cir. 1989). The ALJ must provide clear and convincing reasons for rejecting the
uncontradicted medical opinion of a treating or examining physician, or specific and legitimate
reasons for rejecting contradicted opinions, so long as they are supported by substantial
evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 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.” Chaudhry v. Astrue, 688 F.3d 661,
671 (9th Cir. 2012). Additionally, the ALJ may discount physicians’ opinions based on internal
inconsistencies, inconsistencies between their opinions and other evidence in the record, or other
factors the ALJ deems material to resolving ambiguities. Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 601-02 (9th Cir. 1999).
A.

Dr. Anderson

The ALJ gave significant weight to Dr. Anderson’s opinion. Tr. 29. Plaintiff argues that
the ALJ failed to include all of the limitations assessed by Dr. Anderson. Pl. Br. 8, ECF #19.
Dr. Anderson assessed that plaintiff would be moderately limited in her ability to interact
appropriately with the general public and in her ability to accept instructions and respond
appropriately to criticism from supervisors. Tr. 100. Dr. Anderson explained in narrative form
that plaintiff had “some anxiety/fears around others, and will be limited from public contact on a
frequent basis, and from close cooperative work with coworkers.” Id.
Where the ALJ professes to accept a doctor’s opinion but without explanation fails to
include the limitations contained in that opinion, the ALJ has effectively rejected the opinion.
See Kimble v. Berryhill, No. 3:15-cv-01641-JE, 2017 WL 3332256, at *4 (D. Or. Aug. 4, 2017)
(citing Bobbitt v. Colvin, No. 3:13-cv-01320-HZ, 2014 WL 2993738, at *9 (D. Or. Jul. 1, 2014)).
The Ninth Circuit has explained that an ALJ properly interprets medical opinions by relying on

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the narrative section of the opinion rather than the check-box or fill-in-the-blank sections. See
Buck v. Berryhill, 869 F.3d 1040, 1050-51 (9th Cir. 2017). Here, the ALJ fully incorporated the
specific limitations assessed by Dr. Anderson in the narrative portion of her opinion. Compare
Tr. 100 (Dr. Anderson’s assessed limitations of no more than frequent contact with the public
and no close cooperation with coworkers) with Tr. 24 (the ALJ’s RFC which limited plaintiff to
“no more than frequent interaction with the public . . . [and] no close cooperative work with
coworkers.”). Accordingly, the ALJ properly assessed Dr. Anderson’s opinion.
B.

Therapist Zeigler

Evidence from an acceptable medical source is used to establish whether a claimant has a
medically determinable impairment. 20 C.F.R. § 404.1521. Acceptable medical sources include
licensed physicians, licensed or certified psychologists, licensed optometrists, licensed
podiatrists, and qualified speech-language pathologists. 20 C.F.R. § 404.1502. Evidence from
“other sources,” including, but not limited to, “nurse practitioners, physician assistants, licensed
clinical social workers, naturopaths, chiropractors, audiologists, [and] therapists,” may also be
used to show the severity of a claimant’s impairments and how they affect his ability to
work. SSR 06-03p at *2. To reject evidence from “other sources,” the ALJ must give germane
reasons for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Because Zeigler is
a therapist, she is considered an “other source.” 20 C.F.R. § 404.1502.
Zeigler was plaintiff’s treating therapist. She completed a questionnaire regarding
plaintiff’s mental limitations and assessed that plaintiff was severely limited in her ability to
complete a normal workday, interact with the general public, ask simple questions, and respond
appropriately to criticism from her supervisors. Tr. 677.

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The ALJ gave Zeigler’s opinion “very little weight.” Tr. 28. The ALJ found that the
“severity of Ms. Zeigler’s opinion is inconsistent with the overall evidence of record.” Tr. 28.
The ALJ specifically found that although Zeigler diagnosed agoraphobia, there was no evidence
to support the diagnosis because plaintiff attended medical appointments, shopped, and exercised
regularly. Tr. 28. However, two other mental health providers also diagnosed plaintiff with
agoraphobia. Additionally, plaintiff testified that she spent most of her time at home, and she
repeatedly reported difficulty leaving the home. Tr. 13, 63, 349, 624, 631-32, 639, 651-53, 657,
671. Therefore, the ALJ’s assertion that there was no evidence of agoraphobia is not supported
by the record.
The ALJ also found that Zeigler reported “profound anxiety in social situations [and]
work situations,” but there was “no evidence [plaintiff] had profound anxiety when she was
working in the past, and she did not lose her job due to her anxiety.” Tr. 28. However, plaintiff
last worked in February 2012, one year prior to her alleged onset date of February 2013. Tr. 90,
184. Thus, this was an invalid reason to reject Zeigler’s opinion.
The ALJ next found that because there was no evidence that plaintiff lost her job due to
anxiety, it suggested that “many of the limitations reported by Ms. Zeigler were based on
[plaintiff’s] self-report not objective medical findings.” Tr. 28. Again, that premise is flawed, as
plaintiff last worked a year prior to her alleged onset date. Moreover, the Ninth Circuit has held
that “the rule allowing an ALJ to reject opinions based on self-reports does not apply in the same
manner to opinions regarding mental illness.” Buck, 869 F.3d at 1049. In Buck, the court held
that a clinical interview and a mental status evaluation conducted by the psychiatrist provided
sufficient objective measures. Id. Here, Zeigler performed a clinical interview and mental status

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examination, and administered psychiatric testing. Tr. 630-35, 639. Accordingly, the purported
over-reliance on self-reports was not a proper basis for rejecting Zeigler’s opinion.
Finally, the ALJ found that Zeigler’s conclusion that plaintiff was precluded from
functioning in public or in proximity with others was too extreme and inconsistent with her own
treatment notes, which indicated plaintiff had been volunteering at a nursing home, working on a
book, and caring for her mother. Tr. 28. As discussed above, plaintiff’s ability to work on what
could best be described as a family scrapbook has no bearing on her ability to function in public
or in proximity with others. Nevertheless, plaintiff’s ability to volunteer at a nursing home and
provide care for her mother are germane reasons for rejecting Zeigler’s opinion.3 Therefore, the
ALJ properly rejected Zeigler’s opinion on this basis.
III.

Lay Witness Testimony
Plaintiff argues that the ALJ improperly rejected the testimony of plaintiff’s cousins.

Lay-witness testimony regarding the severity of a claimant’s symptoms or how an impairment
affects a claimant’s ability to work is competent evidence that an ALJ must take into account.
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). To reject such testimony, an ALJ must
provide “reasons that are germane to each witness.” Rounds v. Comm’r, 807 F.3d 996, 1007 (9th
Cir. 2015) (quoting Molina, 674 F.3d at 1114; (remaining citation omitted)). Further, the reasons
provided must also be “specific.” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234

3

While these activities are not sufficient to satisfy the more stringent clear and convincing
standard in the context of plaintiff’s subjective symptom testimony, they are sufficient to meet
the germane reasons standard. Moreover, in regard to plaintiff’s symptom testimony, the issue
was whether plaintiff spent a substantial portion of her day engaged in the activities, whereas in
the context of Zeigler’s opinion the issue is whether plaintiff was precluded from functioning in
public or in proximity with others. Even though plaintiff did not spend a substantial portion of
her time engaged in volunteering at a nursing home and providing care for her mother, her ability
to perform those activities demonstrated that she was not precluded from functioning in public or
in proximity with others.
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(9th Cir. 2011) (citing Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)). However, where
the ALJ has provided clear and convincing reasons for rejecting the claimant’s symptom
testimony, and the lay witness has not described limitations beyond those alleged by the
claimant, the ALJ’s failure to provide germane reasons for rejecting lay testimony is harmless.
Molina, 674 F.3d at 1121-22.
The ALJ gave “little weight” to the written statements submitted by plaintiff’s cousins.
Tr. 29. One of plaintiff’s cousins, Linda W., submitted an email on her own. Tr. 346. Another
group of plaintiff’s cousins submitted a joint statement. Tr. 343-44.
The ALJ found that Linda W.’s statement that plaintiff’s anxiety had taken over her life
was contradicted by plaintiff’s activities, which included taking care of her mother, writing a
book, exercising at a local pool, riding her bike, walking, shopping, driving, and spending time
with her cousins bird watching. Tr. 29-30. The ALJ found that the joint statement, which
claimed that plaintiff’s functioning had worsened due to mental health, was inconsistent with the
same activities. Tr. 29-30. As discussed above, plaintiff’s ability to write a book was greatly
overstated by the ALJ. However, plaintiff’s ability to carry out the other activities constitute a
germane reason for discounting Linda W.’s testimony as well as the joint statement from
plaintiff’s other cousins.4
IV.

Severe Impairments and RFC
Plaintiff argues that the ALJ erred by failing to assess functional limitations for her

severe impairments, but fails to provide any specific examples. See Pl. Br. 6-7, ECF #19. In
formulating the RFC, the ALJ must consider all of a claimant’s impairments, both severe and

4

As explained above, while these activities are not sufficient to satisfy the stricter clear and
convincing standard, they are sufficient to meet the germane reasons standard.
17 – OPINION AND ORDER

non-severe. Buck, 869 F.3d at 1049; see also SSR 98-8p, 1996 WL 374184, at *5. Although the
ALJ was required to consider plaintiff’s severe and non-severe impairments in assessing the
RFC, that does not mean the ALJ was required to include functional limitations for each
impairment. Because plaintiff has not identified any specific examples, she has failed to identify
any error with regard to the ALJ’s assessment of her severe impairments.
V.

Remand
When a court determines the Commissioner erred in some respect in making a decision to

deny benefits, the court may affirm, modify, or reverse the Commissioner’s decision “with or
without remanding the cause for a rehearing.” Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d
1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In determining whether to remand for
further proceedings or immediate payment of benefits, the Ninth Circuit employs the “credit-astrue” standard when the following requisites are met: (1) the ALJ has failed to provide legally
sufficient reasons for rejecting evidence, (2) the record has been fully developed and further
proceedings would serve no useful purpose, and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison,
759 F.3d at 1020. Even if all of the requisites are met, however, the court may still remand for
further proceedings, “when the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled[.]” Id. at 1021.
Here, the first requisite of the Garrison test is met, as the ALJ erroneously assessed
plaintiff’s testimony. However, the second requisite is not met, as the record in this case is not
fully developed. Even if plaintiff’s improperly discounted testimony were credited as true, it is
not clear that the ALJ would be required to find plaintiff disabled because the VE did not provide
an opinion as to whether plaintiff would be able to perform jobs that exist in significant numbers

18 – OPINION AND ORDER

in the national economy when taking into account her described limitations. Moreover, the
record does not contain an assessment of plaintiff’s functional limitations by an acceptable
medical source who treated or examined plaintiff.
On remand, the ALJ must (1) accept plaintiff’s testimony or provide legally sufficient
reasons for rejecting it, (2) order a consultative psychiatric exam by an acceptable medical
source, (3) obtain additional VE testimony regarding what work plaintiff can do, if any, and (4)
conduct any additional proceedings as indicated by the results of the foregoing instructions.
CONCLUSION
For the reasons discussed above, the decision of the Commissioner is REVERSED and
this matter is REMANDED for further proceedings.
DATED June 20, 2019.

/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge

19 – OPINION AND ORDER