Egoroff v. Commissioner Social Security Administration

Filing 22

OPINION AND ORDER: Based on the foregoing, the Commissioner's decision denying Plaintiff's applications for DIB and SSI is REVERSED and REMANDED for the limited purpose of determining the onset date of disability. DATED this 14th day of May, 2020 by United States Magistrate Judge John V. Acosta. (pjg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

CRYSTALE. 1,

Case No. 6: 18-cv-0 1059-AC
Plaintiff,

OPINION AND ORDER

V.

COMMISSIONER,
Social Security Administration,
Defendant.
KATHERINE L. EITENMILLER,
MARK A. MANNING
Harder Wells Baron & Manning, PC
474 Willamette St.
Eugene, OR 97401
Of Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
District of Oregon
1000 SW Third Ave., Suite 600
Portland, OR 97204-2936
ALEXIS L. TOMA
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900 M/S 221A
Seattle, WA 98104-7075
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.
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A COSTA, Magistrate Judge:
Crystal E. ("Plaintiff') seeks judicial review of the final decision by the Social Security
Commissioner ("Commissioner") denying her application for Disability Insurance Benefits
("DIB") under Title II and Social Security Income ("SSI") under Title XVI of the Social Security
Act ("SSA"). This Court has jurisdiction to review the Commissioner's decision pursuant to 42
U.S.C. § 405(g).

Based on a careful review of the record, the Commissioner's decision is

REVERSED and REMANDED for further proceedings.
Procedural Background

Plaintiff filed for DIB and SSI on September 5, 2014, alleging disability beginning March
15, 2013. (Tr. 83-84.) Plaintiff alleged disability due to confusion, depression, back pain, neck
pain, muscle weakness, and fatigue. (Tr. 71, 100.) Her applications were denied initially and upon
reconsideration. (Tr. 83-84, 114-115.) A hearing was convened on March 10, 2017 before an
Administrative Law Judge ("ALJ"); Plaintiff was represented by counsel and testified, as did a
vocational expert ("VE"). (Tr. 39-58.) On June 14, 2017, ALJ MaryKay Rauenzahn issued a
decision finding Plaintiff not disabled. (Tr. 14-27.) Plaintiff timely requested review of the ALJ's
decision and, after the Appeals Council denied her request for review, filed a complaint in this
Court. (Tr. 1-3.)
Factual Background

Born in 1988, Plaintiff was 24 years old on her alleged disability onset date. (Tr. 59.)
Plaintiff completed high school and earned an undergraduate degree in psychology; she previously
worked as a caregiver. (Tr. 25, 41-42.)
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Standard of Review
The court must affirm the Commissioner's decision if it is based on proper legal standards
and the findings are supp01ied by substantial evidence in the record. Hammock v. Bowen, 879
F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The
court must weigh "both the evidence that supports and detracts from the [Commissioner's]
conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of
the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005).
The initial burden of proof rests upon the claimant to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate
an "inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1502 and
404.1520. First, the Commissioner considers whether a claimant is engaged in "substantial gainful
activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). Ifso, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe
impairment or combination of impairments."

Yuckert, 482 U.S. at 140-41; 20 C.F.R. §

404.1520(a)(4)(ii). If the claimant does not have a severe impairment, she is not disabled.
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At step three, the Commissioner determines whether the claimant's impairments, either
singly or in combination, meet or equal "one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert,
482 U.S. at 140-41; 20 C.F.R. § 404.1520(a)(4)(iii). Ifso, the claimant is presumptively disabled;
if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant still can perform "past
relevant work." 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can work, she is not disabled; if
she cannot perform past relevant work, the burden shifts to the Commissioner.
At step five, the Commissioner must demonstrate that the claimant can perform other work
existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20
C.F.R. § 404.1560(c). If the Commissioner meets this burden, the claimant is not disabled. 20
C.F.R. § 404.1520(a)(4)(v).
The ALJ's Findings
At step one of the sequential evaluation process outlined above, the ALJ found that Plaintiff
had not engaged in substantial gainful activity since the initial alleged onset date of March 15,
2013. (Tr. 16.)
At step two, the ALJ found Plaintiff had the following severe impairments: multiple
sclerosis ("MS"), obesity, migraines, and major depressive disorder with anxiety distress. Id
At step three, the ALJ determined that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled one of the Listings of presumptively disabling
impairments. (Tr. 17-18.)
Next, the ALJ determined that Plaintiff retained the residual functional capacity ("RFC")
to perform sedentary work, with the following caveats:

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[She can] lift and carry 10 pounds occasionally and less than 10 pounds frequently
... walk and/or stand for 2 hours during an 8-hour workday and sit for 6 hours
during an 8-hour workday, with normal breaks. However, claimant cannot climb
ladders, ropes, and scaffolds, crawl and kneel. On an occasional basis, she can
climb stairs/ramps, stoop, and crouch. She cannot be exposed to extreme cold or
heat. The claimant can understand, remember, and carry out simple, repetitive, and
routine instructions that can be learned in 30 days or less. In addition, the claimant
cannot operate a motor vehicle as part of job duties. Furthermore, the claimant
cannot engage in balancing on elevated surfaces.
(Tr. 19.)
At step four, the ALJ determined Plaintiff could not perform her past relevant work as a
caregiver. (Tr. 25.)
At step five, considering Plaintiff's age, education, work experience, and RFC, the ALJ
determined that other jobs existed in the national economy which Plaintiff could perform,
including "document preparer," "election clerk," and "telephone survey worker."

(Tr. 26.)

Accordingly, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr. 27.)
Discussion

Plaintiff on appeal raises three assignments of ALJ error: (1) that the ALJ improperly
evaluated the medical opinion of her treating physician; (2) that the ALJ improperly evaluated her
subjective symptom testimony; and (3) that the ALJ improperly rejected relevant lay witness
testimony.
I.

Medical Opinion Evidence
Plaintiff argues that the ALJ failed to properly assess the medical opinion provided by her

treating physician. An ALJ is responsible for resolving ambiguities and conflicts in the medical
testimony. Magallanes v. Bowen, 881 F.2d 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

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are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Nonetheless, treating or examining physicians are owed deference and will often be entitled to the
greatest, if not controlling, weight. Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (citation and
internal quotation omitted). An ALJ can satisfy the substantial evidence requirement by setting
out a detailed summary of the facts and conflicting evidence, stating his interpretation, and making
findings. Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999). However,
"the ALJ must do more than offer his conclusions. He must set fmih his own interpretations and
explain why they, rather than the doctors', are correct." Reddickv. Chafer, 157 F.3d 715, 725 (9th
Cir. 1998) (citation omitted).
In July 2015, Plaintiffs treating physician, neurologist David Clark, M.D., provided a
medical opinion in a worksheet entitled "Multiple Sclerosis Medical Source Statement." (Tr. 42124.) Dr. Clark indicated that he first treated Plaintiff in August 2014, with follow-up visits every
one-to-three months. (Tr. 421.) He further indicated Plaintiff was diagnosed with MS based on
MRI results, her "aggressive history of MS progression," and by examination. Id. The doctor
noted that Plaintiffs symptoms and signs included chronic fatigue, paresthesias, weakness, bowel
problems, depression, sensitivity to heat, pain, double vision, poor coordination, and numbness.

Id. Dr. Clark indicated plaintiff had an MS exacerbation in January 2015, and had "typical MS
fatigue." (Tr. 422). The doctor opined that Plaintiff could sit for two hours at one time, and could
stand for only 10 minutes at a time before needing to sit down or walk around. Id. He further
opined Plaintiff could sit for about two hours in an eight-hour workday, but could stand/walk less
than two hours in that period. Id. He also indicated that Plaintiff would require a job that would
allow her to shift positions at will, and would require excessive breaks during the course of a
workday. Id. Dr. Clark noted that Plaintiffs need for extra breaks was due to chronic fatigue and

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pain/paresthesias or numbness. (Tr. 423.) Additionally, the doctor felt that Plaintiff was likely to
be off-task 25 percent or more, but otherwise retained the capacity to perform low-stress work,
due to "significant depression on top of MS." (Tr. 424.) Fmihermore, Dr. Clark indicated that
although plaintiff has good days and bad days, he expected she would be absent from work more
than four days per month. Finally, the doctor indicated that the earliest date that his description of
the symptoms and limitations applied was 2010. Id.
The ALJ summarized and considered Dr. Clark's medical opinion, but ultimately accorded
it "little weight." (Tr. 23.) The ALJ purported to reject the doctor's opinion on four bases: (1) the
statement that Plaintiffs symptoms had existed since 2010 although the doctor did not treat her
until 2014; (2) his opinion was inconsistent with objective evidence of improvement with
medication, normal exam results, and reduction in brain lesion size; (3) the opinion was internally
inconsistent regarding Plaintiffs ability to sit and walk; and (4) the opinion did not explain why
Plaintiff would be expected to miss more than four workdays per month and be off-task 25 percent
of the time. (Tr. 23-24.) Plaintiff contends that none of the ALJ's rationales meet the applicable
specific-and-legitimate legal standard for the rejection of Dr. Clark's assessments.
Indeed, the record reflects that Plaintiff began her treatment by Dr. Clark, her neurologist,
in August 2014. The doctor indicated that Plaintiff had been referred to his clinic by a Dr.
Jacobsen, "regarding diplopia [double vision], paresthesias, abnormal MRI, and migraines." (Tr.
296.) Dr. Clark indicated that plaintiff reported frequent headaches beginning in about 2000. Id.
The doctor further noted that beginning in 2010, Plaintiff "had the first of several neurologic
episodes," which included diplopia, left leg paresthesias, and difficulty walking. Id. Plaintiff
reported that her primary care doctor recommended an MRI, but concerned and frightened that she
might have MS, Plaintiff did not pursue an MRI at that time. Id. Following recurrent symptoms,

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noted Dr. Clark, Plaintiff had an MRI done in August 2014, which revealed "multiple T2
hyperintensities involving the corpus callosum, periventricular region, and infratentorial region,
most consistent with CNS demyelination." Id. Dr. Clark indicated that Plaintiffs "history and
imaging are very compelling," and diagnosed MS, observing that "[h]er disease seems relatively
advanced radiographically," and that "[t]he number of enhancing lesions on her MRI may suggest
a more aggressive treatment strategy." Id. Accordingly, the doctor ordered additional MRI studies
and scheduled a follow-up appointment for the next month. (Tr. 301.)
Although the ALJ concluded that Dr. Clark's opinion regarding the onset of Plaintiffs
symptoms was dubious because he was not treating her at the time, Dr. Clark provided a fairly
thorough explanation of the history of development of Plaintiffs symptoms, as she related them.

It is further notable that Plaintiffs previous doctor refened her to Dr. Clark's neurology practice
for her symptoms, although those clearly began prior to Dr. Clark's August 2014 diagnosis. Dr.
Clark's explanation of Plaintiffs "compelling" medical history, his assessment of multiple MRI
results, and his diagnosis and treatment of her aggressively progressing MS is contrary to the ALJ's
conclusion that his July 2015 opinion was "simply" reliant on Plaintiffs subjective complaints.
(Tr. 23.) Additionally, there is nothing in the record that contradicts Plaintiffs description of her
own medical history prior to 2014, which history the doctor found "compelling" in diagnosing MS
and which the ALJ found to constitute a severe impairment at step two.
Moreover, and also contrary to the ALJ' s finding, Dr. Clark did not opine that each of the
limitations outlined in his July 2015 opinion all began in 2010. Rather, the doctor indicated that
the "earliest date that the description of symptoms and limitations" applied was 2010, and that
those symptoms exacerbated in January 2015. (Tr. 422, 424.) For example, in one of the earliest
clinical visits of record in June 2014, Plaintiff indicated she had not seen a doctor for two years

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due to a lack of insurance, but that her frequent headaches and other symptoms were worsening.
(Tr. 345.) That provider also indicated that Plaintiff reported her symptoms had continued for
years, and she left her job in 2013 because it became too difficult for her to work. (Tr. 350.) The
following month, Plaintiff expressed concern that she might have MS based on her worsening
headaches, a premonition which proved to be true. (Tr, 286, 343.) Further, Plaintiffs testimony
during her hearing was consistent with the observations of her providers, as she described that she
left her job due to fatigue and other symptoms which were progressively worsening. (Tr. 45.)
Thus, viewing the record as a whole which consistently described the worsening of symptoms over
time and culminating in multiple MRis confirming the existence of MS, which is notable for being
a progressively worsening condition despite periods of remission, the ALJ's conclusion that Dr.
Clark's opinion was flawed to the extent it relied on those rep01is cannot be said to meet the
specific-and-legitimate legal standard.
The ALJ also found that Dr. Clark's opinion was inconsistent with "a medical record
showing improvement with medication, n01mal examination results, and a reduction in lesion
size." (Tr. 23.) The record reflects, however, a more complex medical picture than the ALJ
described. For example, one year after her initial diagnosis, Dr. Clark indicated that Plaintiff had
an "aggressive history of MS progression," which was substantiated by several symptoms and
signs, including chronic fatigue, paresthesias, weakness, blurred vision, bowel problems,
sensitivity to heat, pain, double vision, poor coordination, and numbness." (Tr. 421.) By all
accounts, Plaintiff had some improvement with treatment the following year, as a December 2015
MRI showed no progression of the disease, and that it appeared "some of the lesions had decreased
in size." (Tr. 557.) Nonetheless, the MRI showed other lesions and signs were consistent with
Plaintiffs previous MRI. Id. Another MRI a year later showed "[s]table examination compared

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to December 2015, but also reflected persistent abnormal signals in the cerebrum. (Tr. 548.)
Additionally, despite stabilization of her MS, Dr. Clark noted Plaintiff continued to report
difficulties remembering details, chronic fatigue, and episodic headaches. (Tr. 504-05.) As such,
the ALJ's conclusion was not supported by substantial evidence of significant functional
improvement following Dr. Clark's July 2015 opinion.
Similarly, the ALJ's finding that Dr. Clark's medical opinion was internally inconsistent
is not supported by the record. Although the ALJ found, and the Commissioner maintains, that
Dr. Clark indicated that Plaintiff could both sit for more than two hours per day and could sit for
about two hours per workday, that interpretation is enoneous. Dr. Clark clearly marked that
Plaintiff could sit for two hours at one time, and that she could sit for about two hours total in a
workday. (Tr. 422.) There is no clear inconsistency with that assessment; the ALJ's interpretation
is simply not supported by the record.
Similarly, the ALJ's finding that Dr. Clark's opinion that Plaintiff would miss more than
four workdays per month and would be expected to be off-task 25 percent of the time, was not
properly explained and ignored the context of the medical opinion overall. Based on the record as
a whole, perhaps the most significant symptoms of Plaintiffs MS condition were severe, chronic
fatigue and headaches. The symptoms were observed in nearly all of Plaintiffs clinical visits
throughout the record, as well as the consultative examination which the ALJ accorded "great
weight." (Tr. 296,307,329,346,367, 378,382,388, 393, 421-22, 504, 511, 517, 522,526,532,
536, 540, 579.) Dr. Clark repeatedly noted that Plaintiffs "history, exam, and imaging [were]
consistent with relapsing and remitting multiple sclerosis." See id. In such context, and by the
explicit wording of the worksheet in which Dr. Clark provided his opinion, it is clear that fatigue
and pain/paresthesias were the symptoms that would require excessive breaks during the workday.

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(Tr. 422-23.) Dr. Clark additionally noted that Plaintiffs "significant depression" also contributed
to her clinical picture, all of which would likely result in her having "good days and bad days."
(Tr. 424.) Thus, the doctor's opinion that Plaintiff would miss more than four workdays per month
was supported by substantial evidence. (Tr. 424.) Contrary to the Commissioner's argument, the
ALJ' s finding that Dr. Clark provided no support for his assessment that Plaintiff would have
excessive absences is plainly belied by the full context of his medical opinion and the record as a
whole.
Finally, the ALJ accorded great significance to Plaintiffs statement to Dr. Clark that she
was tracking her steps on an electronic device, and finding she was taking about 10,000 steps per
day. (Tr. 24, 510). Indeed, the ALJ employed that fact to discount Plaintiffs subjective symptom
testimony and the lay witness testimony of her boyfriend, in addition to Dr. Clark's medical
opinion. (Tr. 22, 24.) The ALJ determined that 10,000 steps per day equated to roughly five miles
of walking, which was inconsistent with a limitation of walking for less than two hours per
workday. (Tr. 24.) However, the rationale does not withstand scrutiny: assuming Plaintiff walks
at a slower than average pace of 2.5 miles per hour, she would need only to walk for 2 hours over
the course of a complete 12-hour waking day to achieve 5 total miles. As such, Dr. Clark's walking
limitation is not inconsistent with Plaintiffs report. Moreover, Plaintiff did not express any ability
to walk her daily 5 miles at a time; rather, she indicated she was able to stand and walk for portions
of the day, with breaks to rest. (Tr. 229, 231, 23 3.) The ALJ' s conclusion therefore was not
supported by substantial evidence, and cannot be said to be specific-and-legitimate. For all the
foregoing reasons, the ALJ's evaluation of Dr. Clark's medical opinion was erroneous.

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II.

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Subjective Symptom Testimony
The Ninth Circuit relies on a two-step process for evaluating the credibility of a claimant's

testimony about the severity and limiting effect of the stated symptoms. Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 503 F.3d 1028, 1035-36 (9th Cir.
2007)). "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, 503 F.3d at 1036 (citation and quotation marks omitted).
Second, absent 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."

Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Further, an ALJ "may consider ... ordinary
techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent
statements concerning the symptoms, ... [or] other testimony that appears less than candid .... "

Id. at 1284. However, a negative credibility finding made solely because the claimant's symptom
testimony "is not substantiated affirmatively by objective medical evidence" is legally insufficient.

Robbins v. Soc. Sec. Admin., 466 F.3d 880,882 (9th Cir. 2006). Nevertheless, the ALJ's credibility
finding may be upheld even if not all of the ALJ' s rationales for rejecting claimant testimony are
upheld. See Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004).
Here, the ALJ provided three reasons to discount Plaintiff's symptom testimony because it
was inconsistent with the following:

(1) her daily activities; (2) reported improvement with

medications; and (3) the objective medical evidence.

(Tr. 21-22.) The court notes that the

Commissioner declined to rely on all the reasons the ALJ cited for discrediting Plaintiff's symptom
testimony. See Def.'s Br. at 4 n.2.

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The ALJ noted that Plaintiff was able to independently attend to her own self-hygiene;
meal preparation, with assistance from her boyfriend; and shopping and laundry; and that she had
both good and bad days. (Tr. 22.) As noted above, both the ALJ and the Commissioner on review
appeared to accord special significance to her ability to walk approximately 5 total miles each day.
Id. However, for the reasons expressed supra, the ALJ's finding regarding Plaintiffs ability to

take 10,000 steps over the course of a full day is not inconsistent with Dr. Clark's assessment, or
Plaintiffs testimony that she can stand and walk in order to perform certain daily activities, but
requires numerous break periods in order to do so. Further, although Plaintiff testified that she
was able to complete some basic activities and household chores, that does not necessarily mean
she is able to perform those activities on a consistent basis in a competitive work environment.
Indeed, the Ninth Circuit has long held that a claimant's ability to perform minimal activities does
not alone contradict an allegation of disability. Orn, 495 F.3d at 639 (citation omitted); see also
Molina v. Astrue, 674 F.3d 1104 at 1112-13 (9th Cir. 2012) (claimant need not vegetate in a dark

room in order to be eligible for benefits) (citation omitted); Ghanim v. Colvin, 763 F .3d 1154, 1164
(9th Cir. 2014) (claimant did not purport to be completely unable to perform all basic activities,
and therefore claimant's testimony did was not contradicted by repmied activities of daily living).
As such, the ALJ's first rationale did not meet the rigorous clear-and-convincing legal standard.
The ALJ also impugned Plaintiffs testimony based on a record of improved functioning
with effective treatment. Although such a rationale is generally valid, it must be suppmied by
substantial evidence in order to meet the applicable clear-and-convincing standard. Here, the
record reflects that following treatment for MS, Plaintiffs MRI showed that the progression of her
disease had ceased, and that signal foci had decreased in size compared to an MRI six months
prior. (Tr. 556.) One year later, in December 2016, yet another MRI result was obtained, which

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showed "[s]table examination" compared to her December 2015 MRI. (Tr. 547.) However, the
December 2016 MRI also showed continued abnormal signals in the corpus callosum. Id.
Further, the repmi of the December 2016 MRI reflected that it was "congruent with the
[Plaintiff's] reported history of multiple sclerosis." Id. (emphasis added). Moreover, the same
report indicated that Plaintiff reported an increase in fatigue and migraine headaches. Id. Thus,
taken as a whole, although Plaintiff's imaging results showed that her MS condition had remitted
to some degree, her symptoms, which were affirmatively "congruent" with the MRI results, had
worsened.

Id.

In short, although the ALJ felt that the lack of progression of the disease

contradicted Plaintiff's self-reports, her medical providers did not so believe. Accordingly, the
ALJ's rationale was not clear-and-convincing or suppo1ied by the medical evidence.
Moreover, even assuming Plaintiff's condition had stabilized with medication, it was
erroneous for the ALJ to assume that such stabilization indicated she had regained her ability to
perform in a competitive work environment. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir.
2014) (it is error for an ALJ to pick out isolated evidence of improvement in order to conclude that
a claimant is capable of regular work). Indeed, despite stabilization, Plaintiff continued to have
extreme fatigue, headaches, and pain, as described in the previous section of this Opinion. See
supra.

Finally, the ALJ determined Plaintiff's testimony was not reliable to the extent it was not
substantiated by the objective medical evidence of record. However, considering that the ALJ' s
remaining rationales failed to meet the clear-and-convincing legal standard, the Court may not
affom the ALJ's conclusion on that basis alone. See Reddick v. Chafer, 157 F.3d 715, 722 (9th
Cir. 1998) (Commissioner may not discredit a claimant's testimony regarding symptoms solely
because they are not supported by objective medical evidence). Therefore, for the foregoing

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reasons, the Court cannot affirm the rationales provided by the ALJ for discounting Plaintiff's
subjective symptom testimony.
III.

Lay Witness Testimony
Finally, the ALJ rejected the testimony of Plaintiff's live-in boyfriend, David N., finding

that it was inconsistent with Plaintiff's reported daily activities. (Tr. 24, 236-43.) Testimony
provided by lay witnesses must be considered by the ALJ in rendering a disability decision. 20
C.F.R. § 404.1512(b)(4); Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir. 1996). In order to
discount otherwise competent lay testimony, the ALJ is required to give reasons germane to that
witness. Dodrill v. Shala/a, 12 F.3d 915, 919 (9th Cir. 1993). However, where the ALJ provides
legally sufficient reasons for rejecting a claimant's own symptom allegations, an ALJ's failure to
provide germane reasons for rejecting similar testimony by a lay witness is harmless error. Molina,
674 F.3d at 1122.
In support of his finding, the ALJ outline the same minimal activities for which he
erroneously discounted Plaintiff's own symptom testimony. (Tr. 24.) To the extent the ALJ erred
in rejecting Plaintiffs testimony based on those minimal activities, the ALJ also erred in rejecting
David N.'s similar testimony.

For example, contrary to the assertions of the ALJ and the

Commissioner, for the reasons described supra, Plaintiff's ability to walk 5 miles total in a day is
not inconsistent with the activities she described. Similarly, although the ALJ found that the lay
witness indicated Plaintiff could "only walk 2 blocks," the record reflects he actually indicated
Plaintiff could walk for 15 to 20 minutes before she needed to stop and rest, which is not
inconsistent with Plaintiff's own testimony or the opinion of treating physician Dr. Clark. For
these reasons, the ALJ's rationales for discounting the testimony of David N. were not germane to
him.

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IV.

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Remand to Determine Disability Onset Date
Based on the ALJ's harmful enors in evaluating the medical opinion of Dr. Clark,

plaintiffs subjective symptom testimony, and the testimony of David N., this case must be
remanded. The sole remaining issue is to determine whether to remand for further proceedings or
for payment of benefits. The decision to remand for fmiher proceedings turns upon the likely
utility of such proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). While the
typical course is to remand for further proceedings, the Ninth Circuit has repeatedly credited
evidence as true when the ALJ failed to provide clear and convincing reasons for discounting the
testimony of a plaintiff. See, e.g., Garrison, 759 F.3d at 1022-23; Orn, 495 F.3d at 640; Benecke
v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). A comi "should credit evidence that was rejected

during the administrative process and remand for an immediate award of benefits" when the follow
conditions are met: "(1) the ALJ failed to provide legally sufficient reasons for rejecting the
evidence; (2) there are not outstanding issues that must be resolved before a determination of
disability can be made; and (3) it is clear from the record that the ALJ would be required to find
the [plaintiff] disabled were such evidence credited." Benecke, 379 F.3d at 593.
The first prong of the credit-as-true analysis is met based on the aforementioned enors of
the ALJ. However, the record is not fully developed in this case. Even assuming the evidence at
issue is credited, the record does not reflect when Plaintiffs disability began. There are at least
four dates of record that an ALJ on remand might adopt as the onset of disability date: when
Plaintiff stopped working in 2013, when she was diagnosed with MS in 2014, when her MS
apparently exacerbated in January 2015, or, at the latest, when her disability was confirmed
pursuant to Dr. Clark's July 2015 medical opinion. In such circumstances, remand for further
proceedings to determine an onset date is appropriate. See Luna v. Astrue, 623 F.3d 1023, 1035

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Case 6:18-cv-01059-AC

Document 22

Filed 05/14/20

Page 17 of 17

(9th Cir. 2010); Armstrong v. Comm 'r Soc. Sec. Admin., 160 F.3d 587, 590-91 (9th Cir. 1998)
(remand is appropriate where the onset date of disability is not clear from the record); see also
Social Security Ruling ("SSR") 18-1 p 2 •

Conclusion
Based on the foregoing, the Commissioner's decision denying Plaintiff's applications for
DIB and SSI is REVERSED and REMANDED for the limited purpose of determining the onset
date of disability.

L/~fMay, 2020.

DATED this/

tates Magistrate Judge

2

Available at https://www.ssa.gov/OP_Home/rulings/di/0l/SSR2018-01-di-01.html.

OPINION AND ORDER - 17