McMurtrey v. Commissioner Social Security Administration

Filing 21

OPINION AND ORDER: Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED and REMANDED for calculation and award of benefits. Final judgment shall be entered accordingly. Signed on 5/18/2023 by Judge Ann L. Aiken. (ck)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AMBER J.M,1
Plaintiff,

Civ. No. 6:19-cv-0833-AA

v.

OPINION & ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_______________________________________
AIKEN, District Judge:
Plaintiff Amber J.M. seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying benefits. The decision of
the Commissioner is REVERSED and REMANDED for award of benefits.
BACKGROUND
On January 18, 2017, Plaintiff filed a Title II application for disability
insurance benefits alleging disability beginning on October 1, 2015. Tr. 205. The
application was denied initially and upon reconsideration and, at Plaintiff’s request,
an Administrative Law Judge (“ALJ”) held a hearing on October 11, 2018. Tr. 126,
131. On January 30, 2019, the ALJ issued a decision finding Plaintiff not disabled.
Tr. 15-24. On April 10, 2019, the Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner. Tr. 1. This appeal followed.
In the interest of privacy, this opinion uses only 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.
1

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DISABILITY 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, 648 F.3d
721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in a
substantially gainful activity? (2) Is the claimant’s impairment severe?
(3) Does the impairment meet or equal one of a list of specific
impairments described in the regulations? (4) Is the claimant able to
perform any work that he or she has done in the past? and (5) Are
there significant numbers of jobs in the national economy that the
claimant can perform?
Id. at 724-25; 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.
Bustamante, 262 F.3d at 953. The Commissioner bears the burden of proof at step
five. Id. at 953-54. 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.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999). 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

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that the claimant can perform other work existing in significant numbers in the
national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54.
THE ALJ’S FINDINGS
The ALJ performed the sequential analysis. At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since the alleged onset date
(“AOD”) of October 1, 2015. Tr. 17.
At step two, the ALJ found that Plaintiff had the following medically
determinable impairments: residuals of bullet wounds to left upper extremity,
abdomen, and hip; posttraumatic stress disorder (“PTSD”); depression; and anxiety
(20 CFR 404.1520(c)). Tr. 17. At step three, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled a
listed impairment. Tr. 18.
The ALJ determined that Plaintiff had the residual functional capacity
(“RFC”) to perform “light work as defined in 20 CFR 404.1567(b) except the
claimant is limited to occasional overhead reaching and frequent feeling with the
left upper extremity. She can never climb ladders, ropes, or scaffolds, and never
crawl.” Tr. 19. Further, "the claimant must avoid all exposure to hazards (i.e.
dangerous machinery unprotected heights, etc.) … [but] is capable of occasional
interaction with the public, coworkers, and supervisors, and needs a static work
environment with few changes in work routines and settings.” Id.
At step four, the ALJ determined that Plaintiff has past relevant work as a
nurse assistant. Tr. 23. Due to Plaintiff’s designated RFC limitations, the ALJ

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determined that she would be unable to perform past work as actually or generally
performed. Id. The ALJ found at step five that Plaintiff could perform jobs that
exist in significant numbers in the national economy, specifically that Plaintiff
could perform work as a marker, assembler, or hand packager. Tr. 24. Therefore,
the ALJ determined that Plaintiff was not disabled. Id.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the decision is
based on proper legal standards and the legal findings are supported by substantial
evidence in the record. Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004).
Substantial evidence “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 quotation marks omitted).

In reviewing the

Commissioner’s alleged errors, the Court must weigh “both the evidence that
supports and detracts from the [Commissioner’s] conclusion.” Martinez v. Heckler,
807 F.2d 771, 772 (9th Cir. 1986).
When the evidence before the ALJ is subject to more than one rational
interpretation, courts must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198
(citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court,
however, cannot affirm the Commissioner’s decision on a ground that the agency did
not invoke in making its decision. Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir.
2006). Finally, a court may not reverse an ALJ’s decision on account of an error
that is harmless. Id. at 1055–56. “[T]he burden of showing that an error is harmful

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normally falls upon the party attacking the agency’s determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
DISCUSSION
Plaintiff asserts the ALJ erred by improperly (1) discounting Plaintiff’s
subjective symptom testimony; (2) weighing the medical opinion evidence; (3)
discounting “other” medical source evidence; and (4) discounting lay witness
statements.
I.

Subjective Symptom Testimony
Plaintiff asserts that the ALJ erred by discounting her subjective symptom

testimony. To determine whether a claimant’s testimony is credible, an ALJ must
perform a two-stage analysis. 20 C.F.R. § 416.929. The first stage is a threshold
test in which the claimant must produce objective medical evidence of an underlying
impairment that could reasonably be expected to produce the symptoms alleged.
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). At the second stage of the
credibility analysis, absent evidence of malingering, the ALJ must provide clear and
convincing reasons for discrediting the claimant’s testimony regarding the severity
of symptoms. Id.
The ALJ must make findings that are sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s
testimony.

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014).

“General

findings are insufficient; rather, the ALJ must identify what testimony is not
credible and what evidence undermines the claimant’s complaints.” Id. (internal

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quotation marks and citation omitted). An ALJ may use “ordinary techniques of
credibility evaluation” in assessing a claimant’s credibility, such as prior
inconsistent statements concerning the symptoms, testimony that appears less than
candid, unexplained failure to seek treatment or follow a prescribed course of
treatment, or a claimant’s daily activities. Id. The ALJ may also rely on “other
evidence” factors such as activities of daily living, claimant’s reported descriptions
of symptoms, and their treatment history in assessing a Plaintiff’s testimony. See
20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii).
A.

Plaintiff’s Testimony

Plaintiff testified about her lingering physical and mental injuries as a victim
of the mass shooting at Umpqua Community College near Roseburg, Oregon in
2015. Tr. 37. The shooter fired at Plaintiff eight times, discharging ten bullets into
her body. Plaintiff survived two exit wounds and five shots through her left arm.
Bullets hit Plaintiff through her chest, her left lung, her abdomen, and her left hip.
Tr. 38-39, 97-98, 334, 343, 346, 362, 367, 375. After years of extensive surgery,
Plaintiff still has bullet fragments lodged in her left shoulder. Tr. 381, 453, 455469.
Plaintiff testified that she suffers a range of physical limitations from the
wounds the shooter inflicted that affect her ability to reach, grab, and lift. Tr. 42,
74, 288. Plaintiff stated she is not able to lift a gallon of milk with her left arm. Tr.
948.

Plaintiff explained that surgery and physical therapy has alleviated some

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pain, allowing Plaintiff to drive and lift objects up to five pounds. Id. She has
chronic nerve pain and increased pain and numbness when active. Tr. 41-42.
Though Plaintiff endured severe injuries from the shooting, she attests that
her disability is “more mental than physical.” Tr. 58. Plaintiff explained that she
suffers from PTSD, anxiety, hypervigilance, recurring nightmares, paralyzing
agoraphobia, and struggles with survivor’s guilt. Tr. 72, 475, 489, 711, 897, 898,
901. The trauma she suffered as a mass-shooting victim continues to cause poor
sleep, exhaustion, and trouble concentrating. Tr. 488.
Plaintiff enrolled in therapy after the shooting, briefly discontinuing it in
January 2016. Tr. 398. Plaintiff resumed therapy in May 2016 and has received
consistent treatment from Lee VanBeuzekom, LMFT, since May 2016. Tr. 471-79,
799. She uses a service dog for emotional support. Tr. 73. After the shooting,
Plaintiff’s physicians prescribed the following medications: Gabapentin, Buspar,
Percocet, Venlafaxine/Effexor, Celexa, Benadryl, Xanax, Alprazolam, Hydroxyzine,
Tramadol, and Wellbutrin. Tr. 43, 59, 65, 407, 416, 422, 433, 441, 446, 451, 453,
459, 461, 465, 701, 716.
The record includes Plaintiff’s statements and hearing testimony about the
impact the shooting had on her daily activities.

Due to financial constraints,

Plaintiff lives with her husband, though they are separated. Tr. 54, 55. Their two
children, who are 9 and 10 years old, live with them. Tr. 51. In a typical day,
Plaintiff can drive her children to school but afterward must isolate for about a half
an hour and do nothing. Tr. 289. Plaintiff sometimes drives her children to their

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afterschool activities, but waits in the car to avoid the crowds.

Tr. 53.

She

experiences lost “gaps of time.” Tr. 289.
Occasionally, Plaintiff has socialized in small groups of close friends, with her
family, or when required by previous employers. Tr. 48. She stated that it took
time after the shooting, but she was eventually able to prepare simple meals and
perform light cleaning with lots of resting.

Tr. 291, 719.

She benefits when

someone is with her for support when going out in public, but even then, she
remains anxious, nervous, and hypervigilant. Tr. 496, 489, 757, 749, 748. Since the
shooting, she experiences poor sleep, exhaustion, and trouble concentrating. Tr.
488. She must engage in “self-talk” when she is out in public, especially when she is
alone, reminding herself that she is safe. Tr. 291.
For a short period, Plaintiff’s activities included part-time work. Plaintiff
stated that in 2018, when she faced financial strain, she worked part-time as a preschool classroom assistant. Tr. 21, 46, 224, 851, 852, 926, 928. The job required no
special training. Her duties included preparing simple meals and clean-up. Id.
However,

Plaintiff

testified

that

working

was

mentally

and

emotionally

unsustainable and that she spent her evenings recovering from the stress. Tr. 57,
928. Plaintiff sometimes left work early and missed days of work.

Tr. 49, 55.

Plaintiff stopped working after six months. Tr. 224.
B.

ALJ Decision

The ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s]

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statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence
in the record.” Tr. 20.
The ALJ cited as the basis for rejecting Plaintiff’s testimony that it was “not
fully consistent with the record that shows significant medical improvement in her
left shoulder and arm, no significant limits in the hip, and decreased and/or stable
symptoms of PTSD, anxiety, and depression, plus an ability to perform a robust
slate of daily activities, including working 26 hours a week.” Tr. 22.
1.

Daily Activities

The ALJ determined that Plaintiff’s reported activities showed she “was able
to function in public” and could therefore work in a “static work environment as per
the RFC.” Tr. 21. The ALJ based that on Plaintiff’s ability to “ready her children
for school, work part-time, prepare meals, keep track and attend her appointments,
manage her personal hygiene, and enjoy family activities including hiking, going to
the coast, doing arts and crafts and watching movies.” Tr. 21. The ALJ found that
Plaintiff’s “return[ ] to school” and “working 26 hours a week” were activities
inconsistent with her subjective symptom testimony. Tr. 20, 22.
An ALJ may reject a plaintiff’s testimony by demonstrating their activities of
daily living correspond to “transferrable work skills.” Orn v. Astrue, 495 F.3d 625,
639 (9th Cir. 2007). “Transferrable work skills” include tasks such fully managing a
household, attending school full-time, or homeschooling one’s children. DeLeon v.
Saul, 812 F. App’x 529, 530 (9th Cir. 2020). Basic household chores and “reading,

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watching television, and coloring in coloring books” are not considered work
transferrable skills. Id. at 628. The critical differences between activities of daily
living and activities in a full-time job are that a person has more flexibility in
scheduling the former than the latter, can get help from other persons, and is not
held to a minimum standard of performance, as she would be by an employer.
Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (citations omitted). An ALJ
improperly discredits symptom testimony when a Plaintiff attempts to work but is
unable to perform as required. Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d 690,
694 (9th Cir. 1999).
Evidence in the record is that most of Plaintiff’s home-based activities
involved assistance from her husband. Tr. 268, 928. The record shows that when
Plaintiff engaged in family activities she confined herself inside the car while her
husband and children participated outside. Tr. 327, 899, 909, 928. Plaintiff’s trips
with her family to visit the Oregon Coast are not activities generally considered to
have transferability to a work setting, nor did those activities involve large
gatherings of people. And, Plaintiff still reported mental health difficulties and
pain during those outings. Tr. 97, 465, 554, 928.
Further, Plaintiff described her social activities as limited and frequently
resulting in a mental health crisis and panic attack. Tr. 43, 266, 272, 317, 630.
Rather than a full-time return to school, evidence is that Plaintiff attended two
online classes during one semester, and later, Plaintiff attempted attending inperson a math and bowling class. Tr. 65. Plaintiff explained that her attempt to

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return to school resulted in a mental health crisis and that she has not gone back.
Tr. 97, 98, 109, 127. Plaintiff’s short stint working 26 hours a week at a daycare—
an activity that the ALJ did not find to be substantial gainful employment—was
anything but indicative of a “robust slate of daily activities,” where the ALJ noted
Plaintiff’s report that the simple tasks she was assigned caused Plaintiff stress that
left her exhausted and at the end of each day, ultimately rendering the job
unsustainable, even with the impetus of Plaintiff’s emergent financial need for
work.
Thus, the record as a whole does not support the ALJ’s determination that
Plaintiff’s daily activities undermine her testimony about her symptoms.
2.

Mental Health

The ALJ cited “decreased and/or stable symptoms of PTSD, anxiety, and
depression” as a basis for discrediting Plaintiff’s subjective symptom testimony,
finding that Plaintiff had a “moderate limitation” with her “ongoing symptoms of
PTSD and social anxiety.” Tr. 18. The ALJ also cited Plaintiff’s initial reports to
her physician in 2016 that her anxiety symptoms improved after she learned coping
strategies.

Tr. 20.

The ALJ also reasoned that Plaintiff’s “activity level alone

indicates she was able to function in public” because she had worked at the daycare,
attended church, or otherwise “went into the public realm.” Tr. 18, 21.
“It is error to reject a claimant’s testimony merely because symptoms wax
and wane in the course of treatment.

Cycles of improvement and debilitating

symptoms are a common occurrence, and in such circumstances it is error for an

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ALJ to pick out a few isolated instances of improvement over a period of months or
years and to treat them as a basis for concluding a claimant is capable of working.
Garrison, 759 F.3d at 1017. “That a person who suffers from severe panic attacks,
anxiety, and depression makes some improvement does not mean that the person's
impairments no longer seriously affect her ability to function in a workplace.”
Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.2001)
Evidence in the record is that Plaintiff’s treating physicians noted
improvement in Plaintiff’s mood and that Plaintiff attempted to resume other
normal activities. However, the record also shows that when going “into the public
realm” Plaintiff continues to feel anxious, nervous, and hypervigilant. Tr. 496. She
experiences poor sleep, exhaustion, and trouble concentrating. Tr. 488. Plaintiff
still benefits from a support person accompanying her to stores and only attends
small events. Tr. 757, 749, 748. Large events exacerbate Plaintiff’s anxiety and
PTSD. Tr. 488, 606.
Following initial improvement, the record shows that Plaintiff’s depression
worsened.

Tr. 712.

Physicians attempted treating Plaintiff with various

medications: some helped, others increased her agitation. Tr. 701, 702, 710. Two
years after the shooting, Plaintiff’s mental symptoms persisted and her depression
got worse, requiring increased medication. Tr. 811, 806, 922. She described having
a startle response at work, where she disassociated and her body jerked in response
to loud sounds. Tr. 901. By summer 2018, her therapist, VanBeuzekom, noted that
Plaintiff had improved some over two years since the shooting, stating that Plaintiff

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was forcing herself to go out in public and to interact with others and knew when
she needed to take breaks. Tr. 942. Yet, VanBeuzekom assessed, “I believe the
client has made all of the gains she’s going to make toward normalizing her
situation and reducing her PTSD symptoms. She is functional to some degree and
pushes herself quite hard to do things that are anxiety provoking to her. I believe
she still has too many symptoms to be working.” Tr. 939.
On this record, the Court concludes that the ALJ failed to give clear and
convincing reasons supported by substantial evidence in the record for discounting
Plaintiff’s subjective symptom testimony about her mental health. Plaintiff’s daily
activities, as she described them in her testimony, were consistent with her
statements about the impairments caused by depression, anxiety, and PTSD.
Reports of “improvement” in the context of mental health issues must be
interpreted with an understanding of the patient's overall well-being and the nature
of the patient’s symptoms and must also be interpreted with an awareness that
improved functioning while being treated and while limiting environmental
stressors does not always mean that a claimant can function effectively in a
workplace.
3.

Physical Function

The ALJ found that medical records showed post-operative progress in
Plaintiff’s left arm, demonstrating “reduced pain, decreased numbness and tingling,
and increased strength and range of motion.” Tr. 20. The ALJ pointed to a “nondisplaced fracture . . . that was not healing,” and that Plaintiff had reported

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“worsening pain” to her physician when using a recommended bone stimulate for
treatment. Tr. 20. The ALJ cited Plaintiff’s report to her physician in 2017 that her
overall function was good and that she could complete her daily activities without
difficulty. Tr. 21. The ALJ stated that, though Plaintiff occasionally experienced
“shooting pain” and decreased sensation in the left hand, a physical exam at one
point found Plaintiff “nontender to palpitation about the shoulder and [elbow],” and
that she had “full overhead range of motion.” Tr. 21. The ALJ pointed to evidence
that Plaintiff engaged in resistance band training to strengthen her left arm, and
that a physician had advised plaintiff to upgrade to a heavier resistance band in her
training.

Tr. 21.

The ALJ determined that the RFC “already limits overhead

reaching” thus there was not a need for further functional limitations. Tr. 21-22.
Plaintiff reported that she could still not lift a gallon of milk, but the ALJ
specifically determined that her report “was not objectively verified.” Tr. 22.
Plaintiff argues that the ALJ disregarded evidence of ongoing limitations
during the relevant period. Specifically, while the ALJ pointed to evidence that
Plaintiff reported herself capable of performing daily activities without difficulty,
and good overall function as of January 2017, she continued to struggle to lift more
than a gallon of milk with the left arm as of August 2018. Tr. 716, 948.
In rejecting Plaintiff’s subjective symptom testimony about the severity of her
symptoms, the ALJ recognized objective medical evidence of impairment to
Plaintiff’s left limb—an unhealed fracture, reports of shooting pain, bullet
fragments, etc.—evidence that “could reasonably be expected” to produce the degree

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of symptoms Plaintiff claimed to experience, namely, difficulty lifting items such as
a gallon of milk.

See Smolen, 80 F.3d 1273, 1282 (9th Cir. 1996) (stating

evidentiary standard).

In rejecting Plaintiff’s testimony and reports to her

physicians that she could not lift an a gallon of milk, the ALJ cited to a lack of
objective evidence to support Plaintiff’s claim.
The Court recognizes that the ALJ is responsible for determining credibility,
resolving conflicts in medical testimony, and for resolving ambiguities. Andrews, 53
F.3d at 1039. However, the ALJ’s findings must be supported by specific, cogent
reasons.

Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir.1990).

Once the

claimant produces medical evidence of an underlying impairment, an ALJ may not
discredit the claimant's testimony as to the severity of symptoms merely because
they are unsupported by objective medical evidence. Reddick v. Chater, 157 F.3d
715, 722 (9th Cir. 1998). The Court finds erroneous the ALJ’s determination that
there was a “lack of objective verification” of whether Plaintiff’s impairment could
cause pain capable of limiting her ability to lift a gallon of milk.
In all, the ALJ erred in failing to identify specific, clear and convincing
reasons supported by substantial evidence in the record to reject Plaintiff’s
subjective symptom testimony, and that evidence should be fully credited as true
II.

Medical and “Other” Opinion Testimony
Plaintiff alleges the ALJ failed to identify a legally sufficient basis to reject

the examining medical opinion of Dr. Teresa Dobles. When evaluating the intensity
and persistence of a plaintiff’s symptoms, the ALJ “consider[s] all of the available

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evidence from medical sources and nonmedical sources about how [the] symptoms
affect [the plaintiff].” 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). Under the “old
rules” relevant here, more weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the claimant[.]” Turner v. Comm’r of
Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (internal quotation marks and citation
omitted). An ALJ may reject the uncontradicted medical opinion of a treating or
examining physician only for “clear and convincing” reasons supported by
substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
Cir. 2005). An ALJ may reject the contradicted opinion of a treating or examining
doctor by providing “specific and legitimate reasons that are supported by
substantial evidence.”

Id.

An ALJ may reject “the opinion of any physician,

including a treating physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
A.

Dr. Teresa Dobles

Dobles examined Plaintiff in 2018. Tr. 925. Dobles submitted an eight-page,
typed, single-spaced, psychological evaluation of Plaintiff’.

Tr. 925-932.

Dobles

reviewed available medical records, administered a clinical interview, and
conducted several psychometric tests, including the Wechsler Adult Intelligence
Test–Fourth Edition (“WAIS-IV”), Trails A and B, Personality Assessment
Inventory (“PAI”), and Beck Depression Inventory. Tr. 925, 928.
Dobles noted that Plaintiff’s “extreme vulnerability to triggers reminding her
of the traumatic event” were evident during the evaluation. Tr. 927-28. Plaintiff

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cried readily when she discussed difficult situations in her life. Tr. 928. She needed
repetition of some subtest directions and became frustrated and tearful when she
could not perform items on certain tests. Tr. 929. Plaintiff’s ability to sustain
attention, concentration, and exert mental control ranged from mildly impaired to
low average.

Tr. 930.

Her ability to process simple or routine visual material

without making errors was highly variable, ranging from moderately impaired to
high average. Tr. 930.
Dobles opined that Plaintiff uses maladaptive behavior patterns to control
her anxiety, such as withdrawing from activities. Tr. 930. Dobles noted that, at
times, Plaintiff’s thought processes were marked by confusion, distractibility, and
impaired concentration. Tr. 930.
Dobles assessed Plaintiff’s cognitive functioning.
Inventory indicated moderate depression. Tr. 931.

The Beck Depression
Dobles determined that

Plaintiff’s variability in functioning may be due to several factors, including a
depression, anxiety, and medication side effects. Tr. 931. Dobles also diagnosed
PTSD and persistent depressive disorder. Tr. 932. Dobles opined that Plaintiff’s
variability in functioning was likely to “interfere in her life in significant ways.” Tr.
932.

Dobles specifically assessed mild impairment in Plaintiff’s ability to

understand, remember, and carry out simple instructions; moderate impairment in
Plaintiff’s ability to interact appropriate with the public, supervisors, and
coworkers; and marked impairment in Plaintiff’s ability to make judgments on

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simple or complex work-related decisions and respond appropriately to work
situations and changes in a routine work setting. Tr. 932-33.
The ALJ gave “little weight” to Dobles’ opinion “that [Plaintiff] experiences
‘variability in her functioning’ due to ongoing symptoms of PTSD.” Tr. 22. To
support that determination, the ALJ stated that Dobles’ opinion was “vague” and
“lacking a function-by-function assessment” of what Plaintiff “can actually do.” Tr.
22. The ALJ again cited Plaintiff’s daily activities as a basis for rejecting Dobles’
opinion, stating that the opinion was “belied” by Plaintiff’s “activity level.”
The ALJ failed to provide a legally substantial basis explaining how Dobles’
opinion is vague. The opinion is thorough; detailed. Further, the opinion provides
functional assessments in at least three identifiable categories, specifically noting
Plaintiff’s mild, moderate, and marked impairments in terms of her ability to
concentrate, interact with others, and respond to work and social situations.
The ALJ also failed to explain how Plaintiff’s daily activities negated Dobles’
opinion that Plaintiff would have the functional impairments Dobles’ described. As
discussed above in Section I, the record is replete with examples of Plaintiff’s
anxiety and PTSD limiting Plaintiff’s daily activities.
On this record, the Court concludes that, the ALJ failed to provide specific
and legitimate reasons supported by substantial evidence in the record to discount
Dobles’ opinion.

The Court further concludes that this error was harmful and

Dobles’ opinion should be fully credited as true.
B.

Lee VanBeuzekom, LMFT

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“In addition to considering the medical opinions of doctors, an ALJ must
consider the opinions of medical providers who are not within the definition of
‘acceptable medical sources.’” Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017);
20 C.F.R. § 404.1527(f). While not entitled to the same deference as “acceptable”
medical sources, statements from “other” medical sources relevant to a claimant’s
symptoms or how an impairment affects her ability to work is competent evidence
that cannot be disregarded without comment. Tobeler v. Colvin, 749 F.3d 830, 83334 (9th Cir. 2014). The ALJ may reject the opinion of an “other source” by giving
“reasons germane to each witness for doing so.” Turner, 613 F.3d at 1223-24. A
“germane reason” is one which an ALJ may discount an opinion that lacks sufficient
explanation or is based off an inadequate amount of interaction with the plaintiff.
20 C.F.R. §§ 404.1527(c)(3), 20 C.F.R. §§ 404.1527(c)(i), 416.927(c)(3), 416.927(c)(i).
VanBeuzekom has provided regular therapy to Plaintiff since May 2016. Tr.
831. VanBeuzekom noted the same symptoms as Plaintiff’s other providers: PTSD,
anxiety, fear, hypervigilance, and psychological distress triggered by internal and
external cues resembling her traumatic event. Tr. 831-32. VanBeuzekom opined
that Plaintiff’s symptoms would interfere with her ability to sustain full-time work.
VanBeuzekom assessed moderate impairment in Plaintiff’s ability to understand,
remember, and carry out simple instructions; make judgments on either simple or
complex work-related decisions; and interact appropriately with the public,
supervisors, and coworkers.

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Tr. 834.

She assessed marked impairment in

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Plaintiff’s ability to understand, remember, and carry out complex instructions and
to respond appropriately to changes in a routine work setting. Tr. 834.
The ALJ explained that “the opinion of Lee VanBeuzekom is given limited
weight,” reasoning that the opinion is inconsistent with Plaintiff’s ability to work
part-time for six months, as well as to “engag[e] in regular social activities outside
her home with friends and family, indicating an ability to engage in unpredictable
social situations without debilitating effects from her PTSD symptoms.” Tr. 22.
For the reasons addressed in Section I, the ALJ’s reasoning is not supported
by the record, which documents ongoing, severe, and persistent PTSD that
continues to impact Plaintiff’s ability to sustain in a full-time, competitive work
setting.

The ALJ therefore erred in rejecting VanBeuzekom’s opinion.

That

improperly rejected evidence should be credited as true. See Schneider, 223 F.3d at
976. When properly credited, VanBeuzekom’s statements support a finding that
Plaintiff is not capable of sustaining performance within the customary tolerances
of competitive work. Tr. 85-87.
III.

Lay Witness Testimony
Like “other” medical source opinions, lay witnesses statements are generally

“competent evidence that the ALJ must take into account” and may discount only
with germane reasons supported by substantial evidence in the record. Molina, 674
F.3d at 1114; Turner, 613 F.3d at 1224.
Plaintiff’s husband, sister, close friends, and other community members
provided highly compelling and detailed statements. Tr. 326-328. As lay witnesses,

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their reports elaborated on Plaintiff’s demeanor before—as a confident and outgoing
person—and after she was shot, citing specific events providing persuasive insight
into the persistent and significant physical and mental health deterioration
Plaintiff experienced. Id.
In total, the ALJ’s assessment of the lay witness statements was that the
testimony was “inconsistent with the longitudinal medical evidence of record
showing medical improvement” and therefore given “limited weight.” Tr. 23.
An ALJ is permitted to discount lay witness testimony for a variety of
reasons. An ALJ may discount lay witness evidence if inconsistent with the medical
evidence. Bayliss, 427 at 1218. When lay witness testimony merely regurgitates
the Plaintiff’s discredited testimony, that is sufficient reasoning to discount lay
testimony. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
Further, “if the ALJ gives 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 at 1114 (citing Valentine, 574 F.3d at 694).
Here, however, the record does not support the ALJ’s reasons for discounting
the testimony of Plaintiff’s husband, sister, and friends. The ALJ therefore erred in
rejecting the lay witness reports, and that improperly rejected evidence should be
fully credited as true. See Schneider, 223 F.3d at 976. When properly credited,
each lay witness statement demonstrates the severity and persistence of Plaintiff’s
impairments.
IV.

Remedy

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The ALJ’s decision contained harmful error, necessitating remand.

The

decision whether to remand for further proceedings or for the immediate payment of
benefits lies within the discretion of the court. Triechler v. Comm’r, 775 F.3d 1090,
1101-02 (9th Cir. 2014). A remand for award of benefits is generally appropriate
when: (1) the ALJ failed to provide legally sufficient reasons for rejecting evidence;
(2) the record has been fully developed, there are no outstanding issues that must
be resolved, and further administrative proceedings would not be useful; and (3)
after crediting the relevant evidence, “the record, taken as a whole, leaves not the
slightest uncertainty” concerning disability.

Id. at 1100-01 (internal quotation

marks and citations omitted). The second and third prongs of the test often merge
into a single question: Whether the ALJ would have to award benefits if the case
were remanded for further proceedings. Harman v. Apfel, 211 F.3d 1172, 1178 n.7
(9th Cir. 2000).
Here, the Court determines that the ALJ erred by discounting Plaintiff’s
subjective symptom testimony; assigning “little weight” to Dobles’ medical opinion
and VanZeubekom’s assessment; and discrediting the testimony of lay witnesses.
The Commissioner does not identify, and the Court has not found, any outstanding
issues that must be resolved. The Court concludes that the record is complete and
that no purpose would be served by a remand for further proceedings. Crediting the
improperly discounted opinions and reviewing the record as a whole, the Court is
satisfied that Plaintiff is disabled and that a remand for award of benefits is
warranted in this case.

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CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the
Commissioner is REVERSED and REMANDED for calculation and award of
benefits. Final judgment shall be entered accordingly.
It is so ORDERED and DATED this ___________
day of May 2023.
18th

/s/Ann Aiken
ANN AIKEN
United States District Judge

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