Neumeister v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAWNA, N1, Case No. 3:18-cv-00818-SI

Plaintiff, OPINION AND ORDER

v.

ANDREW M. SAUL, Commissioner of

Social Security,

Defendant.

Betsy R. Shepherd, 425 Riverwalk Manor Dr., Dallas, GA, 30132. Of Attorneys for Plaintiff.

Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,

UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;

Leisa A. Wolf, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL, Social

Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of

Attorneys for Defendant.

Michael H. Simon, District Judge.

Shawna N. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying Plaintiff’s application for

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the

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.

Social Security Act. For the following reasons, the Commissioner’s decision is reversed and

remanded.

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

Where the evidence is susceptible to more than one rational interpretation, the

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th

Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s

interpretation is a rational reading of the record, and this Court may not substitute its judgment

for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,

1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may

not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495

F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th

Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554

F.3d at 1226.

BACKGROUND

A. Plaintiff’s Application

Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security

Income with a protective filing date of November 6, 2001. Plaintiff alleges disability beginning

July 27, 1999. Plaintiff was born on January 30, 1974 and was 25 years old on the alleged

disability onset date. She is now 45 years old. Plaintiff alleges disability due to post-traumatic

headaches, degenerative disc disease of the cervical spine, fibromyalgia, obesity, cognitive

disorder, and depression.

Plaintiff’s applications were denied initially and on reconsideration. Plaintiff requested a

hearing before an Administrative Law Judge (“ALD”). ALJ Charles Evans held a hearing on

July 31, 2003. After the hearing, ALJ Evans issued a decision finding Plaintiff not disabled.

Plaintiff sought review of that decision, the Appeals Council granted review, and the case was

remanded to the ALJ for further proceedings. ALJ Evans held another hearing on May 18, 2005.

On January 20, 2006, ALJ Evans again found Plaintiff not disabled. Plaintiff sought review of

that decision. The Appeals Council granted Plaintiff’s request for review and remanded the case

to ALJ Dan Hyatt for further proceedings.

ALJ Hyatt held a hearing on July 31, 2007. On December 8, 2007, ALJ Hyatt found

Plaintiff not disabled. Plaintiff sought review of that decision, but this time the Appeals Council

denied Plaintiff’s request and so she filed an action in this court. On May 25, 2010, this court

issued an order remanding the case to the agency for another hearing. ALJ Hyatt held a hearing

on December 14, 2010. In a decision issued on January 14, 2011, ALJ Hyatt found Plaintiff not

disabled. After the Appeals Council denied review, Plaintiff filed another action in this court,

and on January 23, 2014, this court issued an order remanding the case to the agency for another

hearing, ordering that on remand Plaintiff be examined by a board-certified rheumatologist. 6:12-

cv-02067-BR, ECF 25. After a fifth hearing, this time before ALJ Kelly Wilson, at which a

medical expert rheumatologist testified but did not examine Plaintiff, ALJ Wilson issued a

decision on September 27, 2016 finding Plaintiff not disabled. See AR 1142-1187. The Appeals

Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the

commissioner. Plaintiff now seeks judicial review of that decision.

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . has lasted or

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is

potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential

process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving

significant mental or physical duties done or intended to be done for pay

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing

such work, she is not disabled within the meaning of the Act. 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An

impairment or combination of impairments is “severe” if it significantly

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,

this impairment must have lasted or be expected to last for a continuous

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the

claimant does not have a severe impairment, the analysis ends. 20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

the listed impairments, the analysis continues. At that point, the ALJ must

evaluate medical and other relevant evidence to assess and determine the

claimant’s “residual functional capacity” (“RFC”). This is an assessment

of work-related activities that the claimant may still perform on a regular

and continuing basis, despite any limitations imposed by his or her

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis

proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC

assessment? If so, then the claimant is not disabled. 20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience,

is the claimant able to make an adjustment to other work that exists in

significant numbers in the national economy? If so, then the claimant is

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or

she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the

Commissioner must show that the claimant can perform other work that exists in significant

numbers in the national economy, “taking into consideration the claimant’s residual functional

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966

(describing “work which exists in the national economy”). If the Commissioner fails to meet this

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,

the Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ issued a lengthy and thorough opinion in this case. The ALJ first found that

Plaintiff last met the insured status requirements of the Social Security Act on December 31,

2004. AR 1145.2 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful

activity since July 27, 1999. AR 1145. At step two, the ALJ found that Plaintiff had the

following severe impairments: post-traumatic headaches, mild cervical dystrophy, fibromyalgia

with methylenetetrahydrofolate reductase (MTHFR) gene, obesity, mild cognitive disorder, and

depression. The ALJ found Plaintiff’s remaining impairments non “severe,” AR 1145. At step

three, the ALJ determined that Plaintiff does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments in 20

C.F.R. Part 404 Subpart P, Appendix 1. AR 1146.

The ALJ then found that Plaintiff had the residual functional capacity (“RFC”) to:

[P]erform light work as defined in 20 C.F.R. 404.1567(b) and

416.967(b), except that she can perform occasional balancing,

stooping, kneeling, crouching, crawling, and climbing of ramps

and stairs, but no climbing of ladders, ropes, scaffolds. [Plaintiff]

needs to avoid even moderate exposure to extreme cold, wetness,

and humidity and must avoid all hazards (unprotected heights,

dangerous machinery). The claimant can perform simple and

detailed tasks, but would have difficulty performing more complex

tasks consistently. She can perform low stress work, which I have

defined as requiring occasional decision making and occasional

2 The Court uses the page numbers associated with the pages in PDF format of the entire

administrative record, rather than the page numbers listed, sometimes by hand and sometimes

inconsistently, on the top right-hand corner of each page.

adaptation to change in an unskilled work setting and requiring no

high production-paced tasks such as a high volume assembly line.

[Plaintiff] needs to be able to manage her own work flow during

the day.

AR 1148. At step four, the ALJ found that Plaintiff had not worked in the past 15 years and

therefore had no past relevant work. AR 1185. At step five, the ALJ found that there are jobs that

exist in significant numbers in the national economy that Plaintiff could perform, including

storage facility rental clerk, pricing marker, advertising material distributor, and delivery marker.

AR 1186.

DISCUSSION

Plaintiff contends that the ALJ erred by (1) improperly rejecting the opinions of treating

and examining medical sources, (2) improperly rejecting Plaintiff’s testimony, and

(3) improperly addressing the lay witness statements.

A. Medical Opinion Evidence

The ALJ is responsible for resolving conflicts in the medical record, including conflicts

among physicians’ opinions. Carmickle, 533 F.3d at 1164. The Ninth Circuit distinguishes

between the opinions of three types of physicians: treating physicians, examining physicians, and

non-examining physicians. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, “a

treating physician’s opinion carries more weight than an examining physician’s, and an

examining physician’s opinion carries more weight than a reviewing physician’s.” Holohan v.

Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). If a treating physician’s opinion is supported by

medically acceptable techniques and is not inconsistent with other substantial evidence in the

record, the treating physician’s opinion is given controlling weight. Id.; see also 20 C.F.R.

§ 404.1527(d)(2). A treating doctor’s opinion that is not contradicted by the opinion of another

physician can be rejected only for “clear and convincing” reasons. Ryan v. Comm’r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor’s opinion is contradicted by the

opinion of another physician, the ALJ must provide “specific and legitimate reasons” for

discrediting the treating doctor’s opinion. Id.

In addition, the ALJ generally must accord greater weight to the opinion of an examining

physician than that of a non-examining physician. Orn, 495 F.3d at 631. As is the case with the

opinion of a treating physician, the ALJ must provide “clear and convincing” reasons for

rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502,

506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another

physician’s opinion, the ALJ must provide “specific, legitimate reasons” for discrediting the

examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may

reject an examining, non-treating physician’s opinion “in favor of a nonexamining, nontreating

physician when he gives specific, legitimate reasons for doing so, and those reasons are

supported by substantial record evidence.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995),

as amended (Oct. 23, 1995).

Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance

on a claimant’s discredited subjective complaints, inconsistency with medical records,

inconsistency with a claimant’s testimony, inconsistency with a claimant’s daily activities, or

that the opinion is brief, conclusory, and inadequately supported by clinical findings. Bray, 554

F.3d at 1228; Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at

1042-43. An ALJ errs by rejecting or assigning minimal weight to a medical opinion “while

doing nothing more than ignoring it, asserting without explanation that another medical opinion

is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive

basis” for the ALJ’s conclusion. Garrison¸ 759 F.3d at 1013; see also Smolen, 80 F.3d at 1286

(noting that an ALJ effectively rejects an opinion when he or she ignores it).

“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and

thorough summary of the facts and conflicting clinical evidence, stating his interpretation

thereof, and making findings.” Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725). In

other words, “[t]he ALJ must do more than offer his conclusions. He must set forth his own

interpretations and explain why they, rather than the doctors’, are correct.” Reddick, 157 F.3d

at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). “[T]he opinion of a non-

examining medical advisor cannot by itself constitute substantial evidence that justifies the

rejection of the opinion of an examining or treating physician.” Morgan v. Comm’r of Soc. Sec.

Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citations omitted); but see id. at 600 (opinions of

non-treating or nonexamining physicians may serve as substantial evidence when the opinions

are consistent with independent clinical findings or other evidence in the record).

Plaintiff’s primary medical impairment is fibromyalgia. Fibromyalgia is “a rheumatic

disease that causes inflammation of the fibrous connective tissue components of muscles,

tendons, ligaments, and other tissue.” Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004).

People suffering from fibromyalgia experience “chronic pain throughout the body, multiple

tender points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the cycle

of pain and fatigue.” Id. at 590. Fibromyalgia is a poorly understood disease, and there is no

cure. Id. “What is unusual about the disease is that those suffering from it have ‘muscle strength,

sensory functions, and reflexes [that] are normal.’” Revels v. Berryhill, 874 F.3d 648, 657 (9th

Cir. 2017). Another poorly understood aspect of Fibromyalgia is that “[t]here is an absence of

symptoms that a lay person may ordinarily associate with joint and muscle pain.” Id. (quoting

Rollins v. Massanari, 261 F.3d 853, 863 99th Cir. 2001).

The ALJ gave little weight to Plaintiff’s treating physician Dr. Goering and examining

physician Dr. Harris, and completely ignored the 2007 opinion of examining physician

Dr. Ogisu. Dr. Goering was Plaintiff’s treating physician from 1999, shortly after her head

injury, through 2010. AR 1179. Although no physician other than Dr. Goering has asserted that

the clinical evidence supported the degree of pain and decreased functioning reported by

Plaintiff, he has the most experience with Plaintiff, has seen her more than any other doctor, and

over a continuous and extended period of time. The ALJ gave little weight to Dr. Goering’s

opinion in large part because, “his exams rarely addressed musculoskeletal functioning” and

“rarely addressed how [tender points] or her impairments in general affected her range of

motion, ability to walk, strength, or function in other exertional domains.” AR 1180. The ALJ

found Dr. Goering’s opinion to be contradicted by other medical opinion evidence because “on

most exams, [Plaintiff] demonstrated normal gait, full strength in all extremities, negative

straight leg rise, and fairly good range of motion.” AR 1180. As discussed above, due to the

unique characteristics of Fibromyalgia, normal muscle strength and range of motion is not

inconsistent with the disease. Revels, 874 F.3d at 657.

The ALJ also preferred Dr. Winkler’s opinion over Dr. Goering’s opinion as to Plaintiff’s

limitations due to Fibromyalgia. Dr. Winkler testified that Fibromyalgia patients, in general, tend

to do best at a light exertional level. AR 1731. From reading the transcript of Dr. Winkler’s

testimony, however, it is clear that Dr. Winkler is testifying about patients with Fibromyalgia

generally, and when she was asked specifically about Plaintiff, she consistently said that it was

hard to determine Plaintiff’s symptoms because Plaintiff suffers from more than just

Fibromyalgia. AR 1732 (“ALJ: So . . . based on your review of the record, would you expect her

to have days during the month where she wouldn’t be able to work because of her fibromyalgia

symptoms? A: Its—its really hard to determine that. . . . [Y]ou can’t determine that when you

talk about subjective symptoms and it’s certainly possible that her psychological issues are pretty

significant and, therefore, may be impacting her in terms of her ability to function. Generally

with fibromyalgia alone . . . you recommend like the exercise and good nutrition[.]”). Thus, these

are not “specific and legitimate” reasons for discounting the medical opinion evidence of Dr.

Goering.

The ALJ gave very little weight to the opinion of Dr. Harris in part because the ALJ

believed that Dr. Harris’s examination notes should have led Dr. Harris to reach a different

conclusion as to Plaintiff’s ability to reach overhead and in other directions. Dr. Harris noted that

Plaintiff had “excellent” shoulder range of motion, although testing the range of motion appeared

painful to Plaintiff. Dr. Harris recommended that Plaintiff was unable to perform any overhead

reaching and should reach in other directions only occasionally. The ALJ gave no weight to these

conclusions because the ALJ believed these limitations to be unsupported by Dr. Harris’s clinical

findings. The ALJ read the same examination notes as Dr. Harris but reached a different

conclusion as to what those examination results meant. But an ALJ may not substitute her own

opinion for that of the medical experts. Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999).

Additionally, the ALJ noted that Dr. Harris’s limitations on Plaintiff’s ability to reach overhead

and in other directions was “at best unsupported by clinical or objective evidence.” AR 1177.

This statement, however, ignores the fact that in 2007, Dr. Ogisu recommended the exact same

limitations on overhead reaching and reaching in other directions as Dr. Harris. See AR 138.

The ALJ completely ignored Dr. Ogisu’s 2007 examination of Plaintiff, in which

Dr. Ogisu concluded that Plaintiff could sit for 20-30 minutes at a time, stand for 20-30 minutes

at a time, and walk for 15 minutes at a time and could never reach overhead, but could

occasionally reach, handle, finger, and push/pull. AR 138. An ALJ cannot ignore the opinion of

an examining physician, which is the functional equivalent of rejecting an opinion without

providing any reasons at all, let alone “specific and legitimate” reasons, as is required. Garrison¸

759 F.3d at 1013; see also Smolen, 80 F.3d at 1286 (noting that an ALJ effectively rejects an

opinion when he or she ignores it). By completely ignoring Dr. Ogisu’s 2007 examination of

Plaintiff and accompanying medical opinion, the ALJ failed to provide specific and legitimate

reasons for rejecting it. Additionally, because Dr. Ogisu’s 2007 opinion was consistent with the

opinion of Dr. Harris, the ALJ’s statement that Dr. Harris’s opinion was unsupported by other

evidence is incorrect. The Court finds that the ALJ failed to give specific and legitimate reasons

for giving little weight to the opinions of Dr. Goering and Dr. Harris, and for ignoring the

opinion of Dr. Ogisu.

B. Plaintiff’s Testimony

There is a two-step process for evaluating a claimant’s testimony about the severity and

limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

“First, the ALJ must determine whether the claimant has presented objective medical evidence of

an underlying impairment ‘which could reasonably be expected to produce the pain or other

symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting

Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant

need not show that her impairment could reasonably be expected to cause the severity of the

symptom she has alleged; she need only show that it could reasonably have caused some degree

of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must

state which pain testimony is not credible and what evidence suggests the complaints are not

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing

Bunnell, 947 F.2d at 345-46).

The Commissioner superseded Social Security Rule (“SSR”) 96-7p governing the

assessment of a claimant’s “credibility” and replaced it with SSR 16-3p. SSR 16-3p eliminates

the reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination

of an individual’s character,” and requires the ALJ to consider all of the evidence in an

individual’s record when evaluating the intensity and persistence of symptoms. SSR 16-3p,

available at 2016 WL 1119029, at *1-2. The Commissioner recommends that the ALJ examine

“the entire case record, including the objective medical evidence; an individual’s statements

about the intensity, persistence, and limiting effects of symptoms; statements and other

information provided by medical sources and other persons; and any other relevant evidence in

the individual’s case record.” Id. at *4. The Commissioner further recommends assessing: (1) the

claimant’s statements made to the Commissioner, medical providers, and others regarding the

claimant’s location, frequency and duration of symptoms, the impact of the symptoms on daily

living activities, factors that precipitate and aggravate symptoms, medications and treatments

used, and other methods used to alleviate symptoms; (2) medical source opinions, statements,

and medical reports regarding the claimant’s history, treatment, responses to treatment, prior

work record, efforts to work, daily activities, and other information concerning the intensity,

persistence, and limiting effects of an individual’s symptoms; and (3) non-medical source

statements, considering how consistent those statements are with the claimant’s statements about

his or her symptoms and other evidence in the file. See id. at *6-7.

Daily living activities may provide a basis for discounting subjective symptoms if the

plaintiff’s activities either contradict his or her testimony or meet the threshold for transferable

work skills. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn v. Astrue, 495

F.3d 625, 639 (9th Cir. 2007). For daily activities to discount subjective symptom testimony, the

activities do not need to be equivalent to full-time work; it is sufficient that the plaintiff’s

activities “contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. A

claimant, however, need not be utterly incapacitated to receive disability benefits, and

completion of certain routine activities is insufficient to discount subjective symptom testimony.

See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted

that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping,

driving a car, or limited walking for exercise, does not in any way detract from her credibility as

to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.”

(quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989))); Benecke v. Barnhart, 379 F.3d 587,

594 (9th Cir. 2004) (“One does not need to be ‘utterly incapacitated’ in order to be disabled.”);

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (requiring the level of activity be

inconsistent with the plaintiff’s claimed limitations to be relevant to his or her credibility and

noting that “disability claimants should not be penalized for attempting to lead normal lives in

the face of their limitations”). Moreover, particularly with certain conditions, cycles of

improvement may be a common occurrence, and it is error for an 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 that a plaintiff is capable of working. See Garrison v. Colvin, 759 F.3d 995, 1017

(9th Cir. 2014).

The ALJ’s decision relating to a claimant’s subjective testimony may be upheld overall

even if not all the ALJ’s reasons for rejecting the claimant’s testimony are upheld. See Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). The ALJ may not, however,

discount testimony “solely because” the claimant’s symptom testimony “is not substantiated

affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883

(9th Cir. 2006).

The ALJ concluded that Plaintiff’s medically determinable impairments could reasonably

be expected to produce the symptoms alleged. AR 1151. The ALJ also found, however, that

Plaintiff’s statements concerning the intensity, persistence, and limiting effects of those

symptoms are not fully consistent with the evidence of record. AR 1151. The ALJ provided

several different reasons for giving less weight to Plaintiff’s subjective symptom testimony.

First, the ALJ found that Plaintiff’s credibility was undermined to an extent by the fact

that she provided slightly different details in the story of how she suffered a head injury in 1999.

AR 1151. The ALJ points out that Plaintiff told some medical providers that she was hit by a

crane hook in the back of her head, others that she was hit in the back of her neck, and yet others

that she was hit where her head meets her neck. AR 1151-52. Additionally, Plaintiff told some

providers that the accident happened as she was loading pallets off of her ship and told other

providers that she was loading pallets on to her ship. AR 1153. To some providers, she included

a detail that her hardhat fell off, but she left this detail out to others. AR 1153. The Court does

not examine a Plaintiff’s credibility in terms of an individual’s character for truthfulness. The

Social Security Administration has clarified that “the subjective symptom evaluation is not an

examination of an individual’s character.” SSR 16-3P, available at 2016 WL 1119029, *1.

Whether Plaintiff was hit in the back of the neck, the back of the head, or where her neck meets

her head is irrelevant to determining whether Plaintiff’s Fibromyalgia can reasonably be

expected to produce the degree of symptoms that Plaintiff claims. The ALJ found these minor

inconsistencies “shed significant doubt on the overall accuracy of [Plaintiff’s] subjective

reports.” AR 1173. The ALJ should not focus on inconsistencies unrelated to Plaintiff’s

symptoms, and should not “delve into a wide-ranging scrutiny of the claimant’s character and

apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). Therefore, the

fact that the details in Plaintiff’s account of how her head injury happened varied occasionally

does not provide a specific, clear, or convincing reason for rejecting Plaintiff’s subjective

symptom testimony.

The ALJ also noted repeatedly that, despite claims of weakness and fatigue, Plaintiff

tested 5/5 on most strength tests and showed no signs of muscle atrophy or weakness consistent

with an individual who is too fatigued to engage in normal activity. AR 1170. Although Plaintiff

did report weakness and fatigue, Plaintiff never reported that these symptoms prevented her from

ever occasionally engaging in physical activity sufficient to prevent muscle atrophy. To the

contrary, Plaintiff reported swimming twice a week for 30 or 45 minutes, as recommended to

treat her Fibromyalgia pain. The ALJ also found that Plaintiff’s reported level of functioning was

inconsistent with her claims. AR 1172. Plaintiff reported that she could manage her finances,

cook meals, perform household chores, and work on her schoolwork in 15-minute intervals.

AR 1172. Plaintiff always maintained, however, that she could not do all of these activities in

any given day and needed to take frequent rest breaks. She described her pain as “go[ing] to

intensities at different times of the day,” not as a consistent pain. AR 1719. She testified that “if I

go grocery shopping, that puts me down for the rest of the day and the next day.” AR 1719. The

Ninth Circuit has “repeatedly warned that ALJs must be especially cautious in concluding that

daily activities are inconsistent with testimony about pain, because impairments that would

unquestionably preclude work and all the pressures of a workplace environment will often be

consistent with doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d

955, 1016 (9th Cir. 2014). Here, Plaintiff’s “daily” activities—which are not really daily

activities because she cannot do more than one or two of them in any given day—were consistent

with her statements about the impairments caused by her pain. This was not a legitimate basis on

which the ALJ could reject Plaintiff’s subjective symptom testimony.

C. Lay Witness Statements

“In determining whether a claimant is disabled, an ALJ must consider lay witness

testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454 F.3d 1050, 1053

(9th Cir. 2006). Lay witness testimony regarding a claimant’s symptoms or how an impairment

affects her ability to work is competent evidence. Id. Thus, an ALJ may not reject such testimony

without comment. Id. In rejecting lay testimony, the ALJ need not “discuss every witness’s

testimony on an individualized, witness-by-witness basis. Rather, if the ALJ gives germane

reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when

rejecting similar testimony by a different witness.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th

Cir. 2012).

An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,

either individually or in the aggregate.” Id. at 1115 (quoting Nguyen, 100 F.3d at 1467 (9th Cir.

1996)). This error may be harmless “where the testimony is similar to other testimony that the

ALJ validly discounted, or where the testimony is contradicted by more reliable medical

evidence that the ALJ credited.” See id. at 1118-19. Additionally, “an ALJ’s failure to comment

upon lay witness testimony is harmless where ‘the same evidence that the ALJ referred to in

discrediting [the claimant’s] claims also discredits [the lay witness’s] claims.’” Id. at 1122

(quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). When an ALJ ignores

uncontradicted lay witness testimony that is highly probative of a claimant’s condition, “a

reviewing court cannot consider the error harmless unless it can confidently conclude that no

reasonable ALJ, when fully crediting the testimony, could have reached a different disability

determination.” Stout, 454 F.3d at 1056.

The ALJ considered the lay witness statements and testimony and gave them little

weight. AR 1182. The ALJ gave little weight to Plaintiff’s friend, Emilie T., who reported that

Plaintiff had memory problems and needed reminders. Ms. T. also stated that she believed

Plaintiff had difficulty moving information from short term memory to long term memory, but

the ALJ found this testimony inconsistent with the neuropsych testing and found the neuropsych

testing to be more reliable. The ALJ noted that Plaintiff’s memory problems are not supported by

the record, and found Ms. T.’s testimony internally inconsistent, thus providing germane reasons

for giving this testimony little weight.

Plaintiff’s husband testified in 2005 that Plaintiff had difficulty sleeping, and would leave

the house perhaps once per month, but she would spend 60-70% of her time lying on the couch.

The ALJ gave this opinion little weight, finding it implausible that Plaintiff could spend so much

of her time incapacitated and yet never fail to make a medical appointment, and always present

as alert. Plaintiff’s husband also testified that Plaintiff lacked retention of news stories, but the

ALJ found this statement inconsistent with Plaintiff’s high performance on neuropsych

evaluations and lack of other memory problems. In 2007, Plaintiff’s husband reported that she

had cognitive difficulty and short-term memory problems. The ALJ found that this testimony,

from both 2005 and 2007, inconsistent with the record evidence and not consistent with formal

testing or her interactions with doctors at appointments. At the 2016 hearing, Plaintiff’s husband

testified that she suffered from panic attacks, but the ALJ gave less weight to this statement

because Plaintiff has never claimed to doctors that she suffers from panic attacks. AR 1185. This

is a germane reason for giving less weight to Plaintiff’s husband’s lay witness testimony.

The ALJ found the testimony of Plaintiff’s sister Angela M. somewhat convincing.

AR 1183. Plaintiff’s sister testified that Plaintiff had diminished energy and was prone to

headaches and pain and walked slowly. She also testified, however, that Plaintiff could not

tolerate long conversations, a finding that was unsupported elsewhere in the record. The ALJ

therefore found Plaintiff’s sister’s testimony of limited persuasiveness. This was not error.

REMEDY

Plaintiff has had five hearings before ALJs. This is the third time that her case has been

considered by a federal district court. She filed her initial claim for disability in 2001, alleging a

disability that began in 1999 when she was 25 years old. Today, Plaintiff is 45. Within the

Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to remand for further

proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation omitted). Although

a court should generally remand to the agency for additional investigation or explanation, a court

has discretion to remand for immediate payment of benefits. Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the utility of further

proceedings. A court may not award benefits punitively and must conduct a “credit-as-true”

analysis on evidence that has been improperly rejected by the ALJ to determine if a claimant is

disabled under the Social Security Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d

1135, 1138 (9th Cir. 2011).

In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this

Court. Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The court first determines whether

the ALJ made a legal error and then reviews the record as a whole to determine whether the

record is fully developed, the record is free from conflicts and ambiguities, and there is any

useful purpose in further proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015).

Only if the record has been fully developed and there are no outstanding issues left to be

resolved does the district court consider whether the ALJ would be required to find the claimant

disabled on remand if the improperly discredited evidence were credited as true. Id. If so, the

district court can exercise its discretion to remand for an award of benefits. Id. The district court

retains flexibility, however, and is not required to credit statements as true merely because the

ALJ made a legal error. Id. at 408.

This Court cannot conclude that there are no outstanding issues left to be resolved in this

case. In particular, the Court notes that the ALJ entirely failed to consider the medical opinion of

Dr. Ogisu and provided unpersuasive reasoning for discounting Plaintiff’s subjective symptom

testimony. Even if the ALJ adjusted Plaintiff’s RFC to include the limitations on reaching

recommended by Dr. Harris and Dr. Ogisu, it is unclear whether there would still be jobs in the

national economy that Plaintiff could perform at a light exertional level. Although Plaintiff

suffers from Fibromyalgia, she reported that she is working towards a college degree in political

science online, swims twice a week for 30 to 45 minutes when she has access to a pool, and is

capable of managing finances, grocery shopping, and doing household chores. Plaintiff testified

that she hopes to use her degree to become a grant writer. AR 1150. The Court cannot

conclusively say that Plaintiff is disabled under the Social Security Act. Accordingly, the case is

remanded for a narrow consideration of the specific errors identified herein. The ALJ should

evaluate Plaintiff’s doctors’ opinions as well as Plaintiff’s testimony consistent with the medical

community’s understanding of Fibromyalgia and the specific difficulties it presents.

CONCLUSION

The Commissioner’s decision that Plaintiff was not disabled is REVERSED AND

REMANDED for further proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 22nd day of July, 2019.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge