Villavicencio v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHELLEY V.,1 Case No. 6:18-cv-01760-SB

Plaintiff, OPINION AND ORDER

v.

ANDREW M. SAUL, Commissioner of Social

Security,

Defendant.

BECKERMAN, U.S. Magistrate Judge.

Shelley V. (“Plaintiff”) brings this appeal challenging the Commissioner of Social

Security’s (“Commissioner”) denial of her applications for Disability Insurance Benefits (“DIB”)

and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act.

The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

For the reasons explained below, the Court reverses the Commissioner’s decision and remands

for an award of benefits.

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.

STANDARD OF REVIEW

The district court may set aside a denial of benefits only if the Commissioner’s findings

are “‘not supported by substantial evidence or [are] based on legal error.’” Bray v. Comm’r Soc.

Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d

880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of

evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035,

1039 (9th Cir. 1995)).

The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a

specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.

2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court

must consider the entire record, weighing the evidence that both supports and detracts from the

Commissioner’s conclusions. Id. Where the record as a whole can support either a grant or a

denial of Social Security benefits, the district court “‘may not substitute [its] judgment for the

[Commissioner’s].’” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152

(9th Cir. 2007)).

BACKGROUND

I. PLAINTIFF’S APPLICATIONS

Plaintiff was born in May 1974, making her thirty-seven years old on May 1, 2012, the

alleged disability onset date. (Tr. 36, 94, 124.) Plaintiff completed some college coursework and

has no past relevant work. (Tr. 36, 65, 1180.) In her applications, Plaintiff alleges disability due

to a back injury, post-traumatic stress disorder (“PTSD”), depression, anxiety, and chronic pain.

(Tr. 94, 124.)

The Commissioner denied Plaintiff’s applications initially and upon reconsideration, and

on July 24, 2015, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).

(Tr. 26.) Plaintiff and a vocational expert (“VE”) appeared and testified at a hearing held on

August 9, 2017. (Tr. 47-80.) On August 28, 2017, the ALJ issued a written decision denying

Plaintiff’s applications. (Tr. 26-38.) On July 30, 2018, the Appeals Council denied Plaintiff’s

request for review, thereby making the ALJ’s written decision the final decision of the

Commissioner. (Tr. 1-6; Tr. 264-66.) Plaintiff now seeks judicial review of that decision.

(Compl. at 1.)

II. THE SEQUENTIAL PROCESS

A claimant is considered 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). Those five

steps are: (1) whether the claimant is currently engaged in any substantial gainful activity; (2)

whether the claimant has a severe impairment; (3) whether the impairment meets or equals a

listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether

the claimant is capable of performing other work that exists in significant numbers in the

national economy. Id. at 724-25. The claimant bears the burden of proof for the first four steps.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the

burden at any of those steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137,

140-41 (1987).

The Commissioner bears the burden of proof at step five of the sequential analysis, where

the Commissioner must show 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, 180 F.3d at 1100. If the Commissioner

fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations

omitted).

III. THE ALJ’S DECISION

The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is

disabled. (Tr. 26-38.) At step one, the ALJ determined that Plaintiff had not engaged in

substantial gainful activity since May 1, 2012, the alleged disability onset date. (Tr. 28.) At step

two, the ALJ determined that Plaintiff suffered from eight severe impairments: (1) osteoarthritis,

(2) degenerative disc disease, (3) “degenerative joint disease of the shoulder with a partial tear,”

(4) fibromyalgia, (5) obesity, (6) PTSD, (7) major depressive disorder, and (8) “a panic disorder

with agoraphobia.” (Tr. 28-29.) At step three, the ALJ concluded that Plaintiff did not have an

impairment that meets or equals a listed impairment. (Tr. 29.) The ALJ then concluded that

Plaintiff had the residual functional capacity (“RFC”) to perform light work, subject to these

limitations: (1) Plaintiff “can never climb ladders, ropes, or scaffolds,” (2) Plaintiff “can

occasionally crawl,” (3) Plaintiff “can perform simple, routine tasks,” and (4) Plaintiff can have

“occasional contact with the general public and with coworkers.” (Tr. 31.) At step four, the ALJ

concluded that Plaintiff has no past relevant work. (Tr. 36.) At step five, the ALJ concluded that

Plaintiff was not disabled because a significant number of jobs existed in the national economy

that she could perform, including work as a housekeeping cleaner, router, and bottle packer.

(Tr. 61.)

DISCUSSION

In this appeal, Plaintiff argues that the ALJ erred by failing to: (1) provide specific, clear,

and convincing reasons for discounting her symptom testimony; (2) provide germane reasons for

discounting the lay witness testimony provided by her friend and neighbor, Vivian Barbour

(“Barbour”); (3) provide specific and legitimate reasons for rejecting the opinion of her

examining psychologist, Teresa Dobles, Psy.D. (“Dr. Dobles”); (4) account for the opinion of the

non-examining state agency psychologist, Jan Jacobson, Ph.D. (“Dr. Jacobson”); and (5) provide

germane reasons for rejecting the opinion of her treating therapist, Amy Kammerer

(“Kammerer”).

As explained below, the Court concludes that the Commissioner’s decision is based on

harmful legal error and not supported by substantial evidence. The Court further concludes that

Plaintiff satisfies the credit-as-true standard, and the Court does not have serious doubt about

whether Plaintiff is disabled. Accordingly, the Court remands Plaintiff’s case for an award of

benefits.

I. PLAINTIFF’S SYMPTOM TESTIMONY

A. Applicable Law

The Ninth Circuit has “established a two-step analysis for determining the extent to

which a claimant’s symptom testimony must be credited[.]” Trevizo v. Berryhill, 871 F.3d 664,

678 (9th Cir. 2017). “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.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)

(quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). Second, “[i]f the claimant meets

the first test and there is no evidence of malingering, the ALJ can only reject the claimant’s

testimony about the severity of the symptoms if she gives specific, clear and convincing reasons

for the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation and quotation

marks omitted).

Under Ninth Circuit case law, clear and convincing reasons for rejecting a claimant’s

subjective symptom testimony “include conflicting medical evidence, effective medical

treatment, medical noncompliance, inconsistencies in the claimant’s testimony or between her

testimony and her conduct, daily activities inconsistent with the alleged symptoms, and

testimony from physicians and third parties about the nature, severity and effect of the symptoms

complained of.” Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25,

2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), Lingenfelter v. Astrue,

504 F.3d 1028, 1040 (9th Cir. 2007), and Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir.

1997)).

B. Analysis

In this case, there is no evidence of malingering and the ALJ determined that Plaintiff has

provided objective medical evidence of underlying impairments which might reasonably produce

the symptoms alleged. (See Tr. 32, reflecting that the ALJ determined that Plaintiff’s “medically

determinable impairment could reasonably be expected to cause the alleged symptoms”). The

ALJ was therefore required to provide specific, clear, and convincing reasons for discrediting

Plaintiff’s symptom testimony. See Ghanim, 763 F.3d at 1163. The ALJ did not meet that

standard here.

1. Reported Activities

The ALJ discounted Plaintiff’s symptom testimony on the ground that it is inconsistent

with her “reported activities.” (Tr. 35.) In support of this finding, the ALJ noted that (1) Plaintiff

can “perform adequate self-care, prepare simple meals, do household chores, and go out to the

store,” and (2) Plaintiff was “able to actively engage in parenting classes, be a foster parent, help

her friend with filing legal paperwork, make art and photo collages, actively engage in an online

social group, clean her mom’s house, take her dog for walks, go to the coast, take road trips,

swim, and exercise 3-4 times per week by walking, biking, or using the elliptical.” (Tr. 35)

(citations omitted).

“Engaging in daily activities that are incompatible with the severity of symptoms alleged

can support an adverse credibility determination.” Ghanim, 763 F.3d at 1165. Here, substantial

evidence does not support the ALJ’s finding that Plaintiff’s level of activity is inconsistent with

her claimed limitations. See Garrison, 759 F.3d at 1016 (“Recognizing that ‘disability claimants

should not be penalized for attempting to lead normal lives in the face of their limitations,’ we

have held that ‘[o]nly if [the claimant’s] level of activity [is] inconsistent with [the claimant’s]

claimed limitations would these activities have any bearing on [her] credibility.’”) (citation

omitted).

The ALJ noted that Plaintiff can perform adequate self-care, but the record shows that

Plaintiff bathes less often due to pain and that Plaintiff exhibited “mildly bad breath and body

odor” on examination. (Tr. 354, 1182.) Thus, Plaintiff’s level of self-care is not inconsistent with

her claimed limitations.

The ALJ also noted that Plaintiff can prepare simple meals, but the ALJ failed to explain

how Plaintiff’s ability to “use[] a lot of T.V. and microwave dinners” (Tr. 355) is inconsistent

with her claimed limitations. Cf. Fritz v. Berryhill, 685 F. App’x 585, 586 (9th Cir. 2017)

(holding that the ALJ failed to satisfy the clear and convincing reasons standard and noting that

the ALJ “did not explain how” certain evidence “impacted [the claimant’s] credibility”); see also

Rocha v. Berryhill, 771 F. App’x 447, 448 n.2 (9th Cir. 2019) (“[A]n ALJ must specifically

identify the testimony [from the claimant] she or he finds not to be credible and . . . explain what

evidence undermines the testimony.”) (citation and quotation marks omitted).

Furthermore, the ALJ noted that Plaintiff can perform household chores and go to the

store. The record, however, reveals that Plaintiff “does limited housework,” Barbour, Plaintiff’s

daughter, and neighbors help Plaintiff complete housework, Plaintiff only shops about once a

month, Plaintiff often rides in an electric cart at the store, and Plaintiff typically only “work[s] on

a chore for 10 minutes” before needing to rest. (Tr. 54, 62, 67-68, 348, 355, 1181-82.) Thus, the

ALJ’s reliance on Plaintiff’s ability to perform chores and go to the store was misplaced. See

Meuser v. Colvin, 838 F.3d 905, 913 (7th Cir. 2016) (explaining that an ALJ cannot “disregard a

claimant’s limitations in performing” his activities, and noting that the ALJ discounted the

claimant’s testimony based on, among other things, the claimant’s ability to complete chores, but

the “ALJ ignored evidence” that the claimant received help from family members and rarely left

the house).

Additionally, the ALJ noted that Plaintiff was “able to actively engage in parenting

classes, be a foster parent, help her friend with filing legal paperwork, make art and photo

collages, actively engage in an online social group, clean her mom’s house, take her dog for

walks, go to the coast, take road trips, swim, and exercise 3-4 times per week by walking, biking,

or using the elliptical.” (Tr. 35.) The ALJ failed to consider these activities in their proper

context. See Scrogham v. Colvin, 765 F.3d 685, 698-99 (7th Cir. 2014) (explaining that an ALJ

errs by “consider[ing] evidence about [a claimant’s] activities selectively, ignoring evidence that

contradicted her findings,” and noting that the ALJ cited the claimant’s ability to mow his lawn,

even though he testified that he “would be incapacitated for a couple hours” after mowing for ten

minutes).

For example, the ALJ suggested that Plaintiff’s ability to engage in parenting classes is

inconsistent with her claimed limitations. The record, however, reveals that after the alleged

onset date, the Department of Human Services (“DHS”) placed Plaintiff’s daughter in foster care

based, in part, on the fact that Plaintiff was “experiencing severe anxiety, not sleeping at night,

and sleeping heavily during the day.”2 (Tr. 1180; see also Tr. 976, stating that Plaintiff’s

daughter was “taken into foster care in July [2013] due to allegations of neglect”; Tr. 893,

showing that in March 2013, Plaintiff complained to her provider about “increased PTSD

symptoms” because her “abuser” would be “getting out of jail early next month”). In February

2014, after participating in several parenting classes, Plaintiff “graduated” from the parenting

class program that DHS required Plaintiff to complete before her daughter could return home.

(Tr. 509, 1021.) In the Court’s view, it was not reasonable for the ALJ to conclude that the

activities and sequence of events described above are inconsistent with Plaintiff’s claim of

disability because it is evident that Plaintiff’s impairments greatly impacted her ability to

function.

The ALJ also suggested that Plaintiff’s ability to be a foster parent is inconsistent with

her claimed limitations. However, the record reveals that DHS did “not approve” Plaintiff as “a

foster parent because of her history with having an open case (her child placed in foster care for

several months),” Plaintiff only provided shelter to the teenager because she came to her door

bleeding and asking for help, and the teenager assisted Plaintiff with household chores. (Tr. 54,

2 The record suggests that DHS was also concerned that Plaintiff might be “abusing

prescription pain meds and psych meds,” but nothing in record contradicts Plaintiff’s report that

she had “taken urinalysis tests whenever requested, and . . . [they] c[a]me back clean.” (Tr. 509.)

Plaintiff’s provider also informed DHS that she had not banned Plaintiff “from receiving pain

medication,” nor had she observed Plaintiff “being intoxicated or under the influence of drugs.”

(Tr. 780.) Furthermore, Plaintiff “voluntarily went off Xanax” based on DHS’ “accusations of

prescription drug abuse,” even though it increased Plaintiff’s “anxiety, panic, and insomnia.”

(Tr. 647.)

57-58, 62, 1391.) The ALJ erred in finding this level of activity (i.e., allowing a teenager to stay

in her home) inconsistent with Plaintiff’s symptom testimony.

Moreover, the ALJ noted that Plaintiff once reported that she exercises “3-4 times per

week by walking, biking, or using the elliptical,” and she “occasionally swim[s] at [her

apartment] complex.” (Tr. 35, citing Tr. 1098, 1323, 1412.) The record, however, reveals that (1)

Plaintiff weighs 325 pounds and suffers from severe obesity, (2) Plaintiff injured her right leg on

December 1, 2012, several months after the alleged disability onset date, (3) Plaintiff did not

transition from a cast to walking boot until May 7, 2013, (4) Plaintiff at times reported that she

was not exercising, (5) Plaintiff at times reported that she was “limited in her exercise due to

pain,” or that her exercise was “[l]imited due to pain,” (6) Plaintiff reported that her exercise

consisted primarily of “tak[ing] her small dog outside for ‘short [ten-minute] walks’ but [she] is

not able to exercise or be active with her daughter because of all the pain’” she experiences, and

(7) Plaintiff reported that “she is in a lot of pain with her knees, ankles, and back, which

interferes with her ability to walk like doctors have recommended.” (Tr. 29, 657, 757, 811, 888,

1060, 1081, 1212, 1309, 1366, 1384, 1395.) The foregoing record evidence suggests that

Plaintiff engaged in only minimal exercise during the relevant time period, which is not

inconsistent with Plaintiff’s claimed limitations. See Bunner v. Berryhill, No. 6:16-cv-02370-SI,

2018 WL 1558449, at *6 (D. Or. Mar. 30, 2018) (finding that the claimant’s “minimal exercise

(riding a recumbent bike for up to one-half mile) . . . [was] not inconsistent with his claimed

limitations”).

The ALJ also noted that Plaintiff makes art and photo collages, cleaned her mom’s house,

goes to the coast, and takes road trips. (Tr. 35, citing Tr. 506, 863, 1427.) Plaintiff testified that

she uses a phone “app[]” to make photo collages. (Tr. 59-60.) Plaintiff also reported that she

“enjoys going to the coast and taking road trips,” and that that she “clean[ed] up her [mother’s]

house” after she died. (Tr. 863.) It is not clear to the Court how Plaintiff’s symptom testimony is

undermined by her ability to use a phone app to make photo collages, the fact that she reported

that she enjoys taking road trips, or her ability to clean her mom’s house on one occasion,

because the ALJ offered no explanation and the record fails to provide any details about how

much work Plaintiff performed at her mother’s house or how often Plaintiff goes on road trips.3

Cf. Trevizo, 871 F.3d at 676 (rejecting the ALJ’s reliance on the claimant’s childcare activities

because the record “provide[d] no details as to what [the claimant’s] childcare activities

involved”).

Finally, in discounting Plaintiff’s testimony, the ALJ noted that Plaintiff was able to

engage in an online social group and help her friend file legal paperwork. (Tr. 35, citing

Tr. 1206, 1322, 1403.) Plaintiff is a domestic violence survivor who experiences PTSD

symptoms related to the “physical and emotional abuse” she experienced “in childhood and in

relationships with men.” (Tr. 1432.) Plaintiff helped her friend complete the paperwork for a

domestic violence restraining order. (Tr. 1403.) This is not inconsistent with Plaintiff’s

testimony, as Plaintiff never claimed that she lacked the ability to fill out familiar forms. (See

Tr. 1404, showing that Plaintiff “kn[ew]” what she was doing when it came to a restraining

order). Nor is Plaintiff’s ability to engage in an online Facebook group with other single moms

inconsistent with her testimony. (Cf. Tr. 54-57, 61, 70, reflecting that Plaintiff told the ALJ that

3 The Court reviewed over a decade’s worth of Plaintiff’s medical records and only

identified one reference to Plaintiff ever taking a road trip. (See Tr. 1392, showing that Plaintiff

reported that she “felt positive about taking both girls to the coast over spring break”). A single

in-state road trip does not undermine Plaintiff’s testimony. See Tammy S. v. Comm’r Soc. Sec.

Admin., No. 17-1562-HZ, 2018 WL 5924505, at *5 (D. Or. Nov. 10, 2018) (“Nor does one trip

to New Mexico to visit family undermine her testimony.” (citing Hostrawser v. Astrue, 364 F.

App’x 373, 378 (9th Cir. 2010))).

her anxiety is triggered primarily by crowds, leaving the house, males, unfamiliar people, and

unfamiliar places).

For these reasons, the ALJ erred in discounting Plaintiff’s testimony based on her

activities.

2. Objective Medical Evidence

The ALJ also discounted Plaintiff’s testimony on the ground that it was inconsistent with

the objective medical evidence. (See Tr. 32-35, stating that the “medical record does not support”

Plaintiff’s symptom testimony, summarizing the objective medical evidence, and concluding that

the “discussion of the treatment record shows that [Plaintiff’s] allegations are not consistent with

the medical record”; see also Def.’s Br. at 6, stating that “the ALJ provided two clear and

convincing reasons,” and citing conflicting “objective medical evidence” and Plaintiff’s reported

activities). As discussed above, the ALJ erred in discounting Plaintiff’s testimony based on her

activities. Thus, even if Plaintiff’s testimony is not supported by the objective medical evidence,

the ALJ cannot properly rely on that as the sole reason to discredit Plaintiff’s testimony. See

Taylor v. Berryhill, 720 F. App’x 906, 907 (9th Cir. 2018) (explaining that a “lack of objective

medical evidence cannot be the sole reason to discredit claimant testimony,” and therefore

holding that the ALJ failed to provide clear and convincing reasons for discounting the

claimant’s testimony about debilitating mental and physical impairments) (citation omitted).

Accordingly, the Court concludes that the ALJ erred in discounting Plaintiff’s testimony. See

Heltzel v. Comm’r of Soc. Sec. Admin., No. 19-1287, 2020 WL 914523, at *4 (D. Ariz. Feb. 26,

2020) (“Because the ALJ’s other reasons for rejecting Plaintiff’s testimony were legally

insufficient, a mere lack of objective support, without more, is insufficient to reject Plaintiff’s

testimony.”).

II. LAY WITNESS TESTIMONY

A. Applicable Law

An ALJ must consider lay witness testimony concerning a claimant’s ability to work.

Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). The ALJ cannot disregard such testimony

without providing reasons that are germane to each witness. Stout v. Comm’r Soc. Sec. Admin.,

454 F.3d 1050, 1054 (9th Cir. 2006). “Inconsistency with medical evidence is one such reason.”

Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). “Germane reasons for rejecting a lay

witness’ testimony [also] include inconsistencies between that testimony and the claimant’s

presentation to treating physicians or the claimant’s activities, and the claimant’s failure to

participate in prescribed treatment.” Barber v. Astrue, No. 10-1432, 2012 WL 458076, at *21

(E.D. Cal. Feb. 10, 2012). Furthermore, “when an ALJ provides clear and convincing reasons for

rejecting the credibility of a claimant’s own subjective complaints, and the lay-witness testimony

is similar to the claimant’s complaints, it follows that the ALJ gives ‘germane reasons for

rejecting’ the lay testimony.” Williams v. Astrue, 493 F. App’x 866, 869 (9th Cir. 2012) (citation

omitted).

B. Analysis

Plaintiff argues that the ALJ failed to provide germane reasons for discounting the lay

witness testimony provided by her friend and neighbor, Barbour. (Pl.’s Br. at 28-29.) The Court

agrees.

Barbour completed a third-party adult function report on February 13, 2015. (Tr. 353-60.)

Barbour testified that Plaintiff suffers from chronic pain and anxiety that prevents her from

“function[ing] very well,” Plaintiff “does limited housework,” Plaintiff’s daughter, Barbour and

her children, and neighbors assist Plaintiff with chores, Plaintiff’s daughter is self-sufficient,

Plaintiff’s anxiety and pain affect her sleep, and she occasionally helps Plaintiff care for her hair.

(Tr. 353-55.) Barbour also testified that Plaintiff is in “pain most of the time and is in tears a lot

of the time when [Barbour] come[s] to visit,” and that unknown males trigger Plaintiff’s anxiety.

(Tr. 360.)

The ALJ stated that he could not assign significant weight to Barbour’s testimony:

“Significant weight could not be granted to [Barbour’s] statements, as they are not consistent

with the preponderance of medical and other evidence of record, including [Plaintiff’s] own

reports to her providers that she has a knack for helping others decorate and organize.” (Tr. 36,

citing Tr. 1223.)

The Commissioner argues that the ALJ appropriately discounted Barbour’s testimony on

the ground it is “‘not consistent with’ the ‘medical and other evidence of record.’” (Def.’s Br. at

10.) The Commissioner does not address (or dispute) Plaintiff’s argument that the ALJ

improperly discounted Barbour’s testimony based on Plaintiff’s one-time statement that she has a

knack for helping others decorate and organize. (Compare Pl.’s Br. at 28-29, with Def.’s Br. at

10-11.)

The Court is not persuaded by the Commissioner’s argument. This case is very similar to

Gilbert v. Colvin, No. 3:15-cv-05007, 2015 WL 4039338, at *5 (W.D. Wash. July 2, 2015). In

that case, the ALJ discounted the claimant’s parent’s lay witness testimony because “it was

‘inconsistent with the medical evidence of record’ and thus did ‘not support finding greater

limitations than’ the ALJ himself found.” Id. The district court held that the ALJ erred because

he failed to explain what medical evidence undermined the claimant’s parent’s lay witness

testimony:

The Court agrees with plaintiff that the ALJ’s mere statement that

the lay witness evidence was inconsistent with the medical

evidence, without giving any idea as to what in the medical

evidence was inconsistent therewith, is insufficiently specific in

that it prevents the Court from determining whether or not the ALJ

was in fact correct in so finding.

Id.; see also McCann v. Colvin, 111 F. Supp. 3d 1166, 1175 (W.D. Wash. 2015) (“[T]he ALJ

provided no explanation for his assertions that Mr. Knutson’s opinions were inconsistent with the

overall medical record, Mr. McCann’s daily activities, or his work history. . . . The ALJ’s

reasoning is not sufficiently specific because it is not clear which opinions he finds to be

inconsistent with which parts of the record. Only those opinions that are actually inconsistent

may be discounted. . . . The ALJ must provide an explanation for his determination.”) (citations

omitted).

Similarly here, the ALJ’s reasoning was not sufficiently specific because the ALJ failed

to explain what medical evidence undermined Barbour’s testimony. Accordingly, the ALJ erred

in discounting Barbour’s testimony based on the medical evidence because the ALJ did not set

forth the reasoning behind his decision in a way that allows for meaningful review. See Gilbert,

2015 WL 4039338, at *5 (same); McCann, 111 F. Supp. 3d at 1175 (same); see also Brown-

Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[A]lthough we will not fault the agency

merely for explaining its decision with ‘less than ideal clarity,’ . . . we still demand that the

agency set forth the reasoning behind its decisions in a way that allows for meaningful review.”)

(citation omitted).

The ALJ also erred in discounting Barbour’s testimony based on Plaintiff’s one-time

statement about “helping friends to decorate and reorganize.” (Tr. 1223.) Indeed, the record

provides no details about what Plaintiff’s decorating and reorganizing advice involved, which

leaves open the possibility that Plaintiff simply gave feedback or performed little to no work. Cf.

Doto v. Berryhill, No. 17-cv-01120-VKD, 2018 WL 4680212, at *20 (N.D. Cal. Sept. 28, 2018)

(“Because the record contains no details regarding what [the claimant’s] activities involved,

these activities . . . are not substantial evidence inconsistent with [the treating physician’s]

opinion.”).

In summary, the ALJ failed to provide germane reasons for discounting Barbour’s

testimony.

III. MEDICAL OPINION EVIDENCE

A. Applicable Law

“There are three types of medical opinions in social security cases: those from treating

physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc.

Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th

Cir. 1995)). In the event “a treating or examining physician’s opinion is contradicted by another

doctor, the ‘[ALJ] must determine credibility and resolve the conflict.’” Id. (citation omitted).

“An ALJ may only reject a treating physician’s contradicted opinions by providing ‘specific and

legitimate reasons that are supported by substantial evidence.’” Ghanim, 763 F.3d at 1161

(citation omitted).

“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 v. Chater, 157 F.3d

715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient: “‘The ALJ must do more

than state conclusions. He must set forth his own interpretations and explain why they, rather

than the doctors’, are correct.’” Id. (quoting Reddick, 157 F.3d at 725). “[A]n ALJ errs when he

rejects a medical opinion or assigns it little weight 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 his conclusion.” Id. at 1012-13

(citation omitted).

B. Dr. Jacobson’s Opinion

Plaintiff argues that the ALJ failed to account for the opinion of the non-examining state

agency psychologist, Dr. Jacobson. Specifically, Plaintiff argues that in formulating her RFC, the

ALJ failed to account for Dr. Jacobson’s opinion that she is moderately limited in her ability to

accept instructions and respond appropriately to criticism from supervisors. (Pl.’s Br. at 18-20,

citing Tr. 137.)

The Commissioner responds that the ALJ’s RFC is “consistent with Dr. Jacobson’s

opinion.” (Def.’s Br. at 16.) In support of his argument, the Commissioner notes that (1)

Dr. Jacobson concluded that Plaintiff can perform simple tasks, (2) although Dr. Jacobson found

that Plaintiff is moderately limited in her ability to accept instructions and respond appropriately

to criticism from supervisors, Dr. Jacobson also stated that Plaintiff “can accept supervision

delivered in a normative fashion,” and thus (3) the ALJ “reasonably interpreted Dr. Jacobson’s

opinion to mean that Plaintiff could perform ‘simple, routine tasks’ and have ‘only occasional

contact with the general public and with co-workers.’” (Def.’s Br. at 17, citing Tr. 31 and

Tr. 137.)

An ALJ errs when he fails to explain why he did not account for a portion of a

physician’s opinion in formulating the claimant’s RFC. See, e.g., Harris v. Berryhill, No. 17-

1506, 2018 WL 3343219, at *11 (W.D. Wash. July 9, 2018) (“[The ALJ] entirely ignored that

part of [the consulting physician’s] opinions in his current decision, and thus essentially rejected

it without giving any reasons for doing so. This was error.”). In Dennis v. Colvin, No. 6:14-822-

HZ, 2015 WL 3867506, at *4 (D. Or. June 20, 2015), for example, a psychologist opined that the

claimant was moderately limited in her ability to accept instructions and respond appropriately to

criticism from supervisors. Id. The ALJ gave great weight to the psychologist’s opinion and

formulated an RFC that limited the claimant to work with a specific vocational preparation of

one or two that involved only simple work-related decisions, few workplace changes, no public

interaction or teamwork, and occasional interaction with co-workers. Id. at *2-5. The district

court held that the ALJ failed to account for the psychologist’s opinion that the claimant was

moderately limited in her ability to accept instructions and respond appropriately to criticism

from supervisors:

When the ALJ credits the opinion of a medical source which

includes [a moderate] limitation on the ability to interact

appropriately with supervisors, the omission of this specific,

concrete limitation in the RFC is error because it is a limitation not

requiring ‘capturing’ or ‘translation’ and limitations on interactions

with the public or coworkers do not address the separate dynamic

created by the supervisory relationship. Thus, the ALJ erred by

failing to include a supervisory-related limitation in the RFC.

Id. at *8; see also Rachel H. v. Saul, No. 3:18-cv-02020-SB, 2020 WL 954969, at *9 (D. Or.

Feb. 27, 2020) (“Consistent with Dennis, the Court finds that the ALJ committed harmful error

by failing to account for Drs. Holmes and Kennemer’s opinion that Plaintiff is moderately

limited in her ability to accept instructions and respond appropriately to criticism from

supervisors because it is not a limitation that requires ‘capturing’ or ‘translation,’ and because

the ALJ’s limitations on work tasks and public and co-worker interactions do not address

Plaintiff’s relationship with supervisors.”).

Here, the ALJ assigned partial weight to Dr. Jacobson’s opinion, but the ALJ did not

address or provide any reasons for rejecting Dr. Jacobson’s opinion that Plaintiff is moderately

limited in her ability to accept instructions and respond appropriately to criticism from

supervisors: “[T]he undersigned has given partial weight to the state agency medical and

psychological consultant’s assessments . . . because evidence received at the hearing level shows

that [Plaintiff] is more limited than determined by the state agency consultants.” (Tr. 35)

(citations omitted). The ALJ then concluded that Plaintiff could perform work that involved

“simple, routine tasks” and “only occasional contact with the general public and with co-

workers.” (Tr. 31.)

This Court cannot conclude that the ALJ’s RFC is consistent with Dr. Jacobson’s opinion

for two reasons. First, the Court agrees with the holding in Dennis that limitations on interactions

with the public or co-workers do not address the separate dynamic created by the supervisory

relationship. Second, although Dr. Jacobson also stated that Plaintiff “can accept supervision

delivered in a normative fashion” (Tr. 137), it does not necessarily follow that Plaintiff will have

no difficulty accepting instructions or responding appropriately to criticism from supervisors.

Accordingly, the ALJ erred by failing to include a supervisory-related limitation in Plaintiff’s

RFC.

C. Dr. Dobles’ Opinion

Plaintiff argues that the ALJ failed to provide specific and legitimate reasons for

discounting the opinion of her examining psychologist, Dr. Dobles. (Pl.’s Br. at 5-14.) The Court

agrees.

The state agency referred Plaintiff to Dr. Dobles for comprehensive psychological

evaluations in 2014 and 2017. In 2014, Dr. Dobles examined Plaintiff, conducted a clinical

interview, and administered tests. (Tr. 1179-87.) Dr. Dobles ruled out bipolar disorder and

diagnosed Plaintiff with PTSD, major depressive disorder, and panic disorder with agoraphobia.

(Tr. 1186.) Dr. Dobles added that Plaintiff’s “psychiatric symptoms are quite disruptive to her

daily functioning and would likely interfere with her ability to find and maintain employment[.]”

(Tr. 1186.)

In a Mental Residual Function Capacity Report dated September 2, 2014, Dr. Dobles

opined, among other things, that Plaintiff suffers from marked limitations (i.e., “[a] limitation

which precludes the ability to perform the designated activity on a regular and sustained basis,

i.e., 8 hours a day, 5 days a week, or an equivalent work schedule”) in her ability to: (1)

“complete a normal workday and workweek without interruptions from psychologically based

symptoms and to perform at a consistent pace without an unreasonable number and length of rest

periods,” and (2) “accept instructions and respond appropriately to criticism from supervisors.”

(Tr. 1188-89.)

In 2017, Dr. Dobles re-examined Plaintiff, re-administered tests, reviewed Plaintiff’s

records, compared Plaintiff’s 2014 and 2017 tests results, and obtained updated information

during a clinical interview. (Tr. 1428-37.) Dr. Dobles again diagnosed Plaintiff with PTSD,

major depressive disorder, and panic disorder with agoraphobia. (Tr. 1436.) Dr. Dobles also

noted that “[g]iven the duration and persistence of her symptoms even with treatment, it is highly

likely that [Plaintiff’s] symptoms and functioning would continue in the future as it is currently.”

(Tr. 1436.) In addition, Dr. Dobles estimated that Plaintiff’s “psychiatric impairments [would]

prevent her from being able to maintain a regular work schedule . . . [at least] 4 days per month.”

(Tr. 1442.)

In a Mental Residual Function Capacity Report dated July 24, 2017, Dr. Dobles opined,

among other things, that Plaintiff suffers from marked limitations (i.e., “[a] limitation which

precludes the ability to perform the designated activity on a regular and sustained basis, i.e., 8

hours a day, 5 days a week, or an equivalent work schedule”) in her ability to: (1) “perform

activities within a schedule, maintain regular attendance, and be punctual within customary

tolerances,” (2) “work in coordination with or proximity to others without being distracted by

them,” (3) “complete a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace without an unreasonable

number and length of rest periods,” and (4) “travel in unfamiliar places or use public

transportation.” (Tr. 1444.) Dr. Dobles added that Plaintiff suffers from up to marked limitations

in her ability to “accept instructions and respond appropriately to criticism from supervisors.”

(Tr. 1444.)

The ALJ discounted Dr. Dobles’ opinions because the ALJ found that they relied too

heavily on Plaintiff’s reports and were inconsistent with Plaintiff’s activities and Dr. Dobles’ test

results:

Little weight has been given to the various opinions of the

examining psychologist, Dr. Dobles (17F; 26F). [Dr. Dobles]

relied heavily upon [Plaintiff’s] report[s] and the strict limitations

that she assigned [Plaintiff] are not consistent with the objective

testing upon examination, which showed average to mildly

impaired functioning. [Dr. Dobles’] limitations are further

inconsistent with [Plaintiff’s] reported daily activities, which

included assisting people with DHS issues, working to become a

foster parent, and attending family functions.

(Tr. 35.)

The Court concludes that the ALJ failed to provide specific and legitimate reasons for

discounting Dr. Dobles’ opinions. As discussed above, the ALJ erred in discounting Plaintiff’s

testimony based on her reported activities. Accordingly, the Court concludes that the ALJ also

erred in discounting Dr. Dobles’ opinions based on Plaintiff’s reported activities. See Dau v.

Berryhill, No. 15-1380, 2018 WL 3913266, at *6 (W.D. Wash. Aug. 16, 2018) (“The ALJ’s

second reason for rejecting Dr. Skelton’s . . . opinion, that it was contradicted by Dau’s daily

activities, fails for the same reason her rejection of Dau’s symptom testimony on this basis

failed.”).

The ALJ also erred in discounting Dr. Dobles’ opinions on the grounds that they are “not

consistent with the objective testing upon examination” and “relied heavily upon” Plaintiff’s

reports. In Buck v. Berryhill, 869 F.3d 1040, 1045 (9th Cir. 2017), the state agency referred the

claimant to a psychologist for a psychiatric evaluation. Id. The psychologist performed both a

clinical interview and mental status examination as part of his evaluation. Id. The ALJ rejected

the psychologist’s opinion based on its reliance on the claimant’s self-reported symptoms. Id. at

1049. The Ninth Circuit held that the ALJ erred in rejecting the psychologist’s opinion based on

its reliance on the claimant’s self-reports and explained that the psychologist relied on objective

evidence:

[The psychologist’s] opinion was based in part on [the

claimant’s] self-report that he had trouble keeping a job. However,

[the psychologist] also conducted a clinical interview and a mental

status evaluation. These are objective measures and cannot be

discounted as a ‘self-report.’

. . . Psychiatric evaluations may appear subjective,

especially compared to evaluation in other medical fields.

Diagnoses will always depend in part on the patient’s self-report,

as well as on the clinician’s observations of the patient. But such is

the nature of psychiatry. . . . Thus, the rule allowing an ALJ to

reject opinions based on self-reports does not apply in the same

manner to opinions regarding mental illness. In the context of this

case, [the psychologist’s] partial reliance on [the claimant’s] self-

reported symptoms is thus not a reason to reject his opinion.

Id. at 1049 (internal citations and ellipses omitted).

Similar to Buck, the ALJ here failed to recognize that Dr. Dobles’ opinions were based on

her clinical interviews, test results, observations of Plaintiff, and review of Plaintiff’s medical

records. Although Dr. Dobles’ clinical interview relied on Plaintiff’s self-reports, a clinical

interview is an objective measure and cannot be discounted as a self-report. See Buck, 869 F.3d

at 1045. In any event, it was appropriate for Dr. Dobles to rely on Plaintiff’s self-reports, which

have not been properly discounted as incredible. Cf. Tommasetti, 533 F.3d at 1041 (“An ALJ

may reject a [claimant’s] physician’s opinion if it is based ‘to a large extent’ on a claimant’s self-

reports that have been properly discounted as incredible.”). Accordingly, the Court concludes

that the ALJ erred in discounting Dr. Dobles’ opinions based on their reliance on Plaintiff’s self-

reports.

The Court also finds that substantial evidence does not support the ALJ’s conclusion that

Dr. Dobles’ opinions are “not consistent with the objective testing upon examination, which

showed average to mildly impaired functioning.” (Tr. 35.) In fact, Dr. Dobles’ testing of

Plaintiff’s intellectual functioning showed that Plaintiff scored in the average, “low average to

average,” “low average to mildly impaired,” and “mildly impaired” ranges on various indexes

and subtests. (Tr. 1433-34.)

In any event, Dr. Dobles’ opinions were also based on “standardized psychological

testing,” such as the Beck Depression Inventory and the Personality Assessment Inventory

(“PAI”). See David D. v. Saul, 405 F. Supp. 3d 868, 879 (D. Or. 2019) (noting that a

psychologist’s opinion was based on “standardized psychological testing,” such as the PAI and

the Beck Anxiety Inventory). Plaintiff’s score on the Beck Depression Inventory was “consistent

with a severe level of depression.” (Tr. 1435.) According to Dr. Dobles, a “computer

interpretation” of Plaintiff’s scores on the PIA also revealed that:

• Plaintiff’s profile pattern is “usually associated with marked distress and severe

impairment in functioning.”

• Plaintiff is “a person with significant tension, unhappiness, and pessimism.”

• Plaintiff is “quite distressed and acutely aware of her need for help.”

• Plaintiff’s “low energy, tension, and withdrawal may make it difficult for her to

engage in treatment.”

• “The combination of hopelessness, anxiety, and stress may place [Plaintiff] at

increased risk for self-harm.”

• Plaintiff’s “life is probably constricted by her psychological turmoil.”

• “Although efforts to control anxiety are probably present, they are having little

effect in preventing anxiety from intruding and affecting [Plaintiff’s]

functioning.”

• Plaintiff’s “anxiety likely interferes in her life, and she probably monitors her

environment in a vigilant manner to avoid contact with the feared situation.”

• Plaintiff “likely experienced a disturbing traumatic event that continues to distress

her and cause anxiety.”

• Plaintiff’s “life is probably constricted by her anxiety.”

• Plaintiff is “likely to be plagued by worry to the degree that her ability to

concentrate and attend are significantly compromised.”

(Tr. 1434.)

In addition, Dr. Dobles submitted a letter to the Appeals Council after the ALJ issued his

decision.4 (Tr. 2, 18.) In the letter, Dr. Dobles explained that she found that Plaintiff has

“significant and serious psychiatric diagnoses,” individuals with “serious psychiatric diagnoses

are likely to function at their best within low stress supportive environments and with

medications,” Plaintiff “would be vulnerable to escalating symptoms and decompensation within

stressful environments such as in a work environment,” and Plaintiff still exhibited “limited

functioning” even “in her low stress, sheltered, supportive environment.” (Tr. 18.) Additionally,

4 The Appeals Council found that the letter did “not show a reasonable probability that it

would change the outcome of the decision,” and therefore “did not consider and exhibit this

evidence.” (Tr. 2.) Nevertheless, the Court may consider the letter, on which Plaintiff relies (see

Pl.’s Br. at 13), in this appeal. See Williams v. Berryhill, No. 17-5885, 2018 WL 6737511, at *3

(W.D. Wash. Apr. 19, 2018) (“[A]lthough the Appeals Council stated ‘[w]e did not consider and

exhibit this evidence,’ this statement is contradicted by the Appeals Councils claim ‘[w]e find

this evidence does not show a reasonable probability that it would change the outcome of the

decision.’ The new evidence presented to the Appeals Council is thus reviewable by the Court in

determining whether the ALJ’s decision remains supported by substantial evidence.”) (citation

omitted).

Dr. Dobles explained that Plaintiff is “vulnerable to decompensation when performing any job,

even low demand jobs,” and that Plaintiff is “likely to see a major decline in functioning and an

increase in psychiatric symptoms with added stress” from, among other things, “having a job.”

(Tr. 18.)

Given the evidence described above and the ALJ’s failure to recognize that Dr. Dobles

relied on several objective measures, the Court concludes that substantial evidence does not

support the ALJ’s finding that Dr. Dobles’ opinions are inconsistent with her objective test

results.

In sum, the ALJ failed to provide specific and legitimate reasons for rejecting Dr. Dobles’

opinion.

IV. OTHER SOURCES

Plaintiff argues that the ALJ failed to provide legally sufficient reasons for rejecting the

opinion of her therapist, Kammerer. “Only physicians and certain other qualified specialists are

considered ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (quoting Molina, 674

F.3d at 1111). Therapists are considered “other sources.” Id. (citation omitted). “While their

opinions must still be evaluated, . . . the ALJ may ‘discount testimony from these other sources if

the ALJ gives reasons germane to each witness for doing so.’” Id. (quoting Molina, 674 F.3d at

1111).

Kammerer filled out a questionnaire and Mental Residual Functional Capacity Report on

April 10, 2017. (Tr. 1359-65.) Kammerer explained that she treated Plaintiff since January 2012,

and that Plaintiff suffers from PTSD, panic attacks, and depression. (Tr. 1359-60.) Kammerer

added that Plaintiff “does not demonstrate the capacity to” perform full-time work without

missing more than “two days per month.” (Tr. 1360.) Like Dr. Dobles, Kammerer also opined

that Plaintiff suffers from marked limitations in her ability to: (1) “perform activities within a

schedule, maintain regular attendance, and be punctual within customary tolerances,” (2) “work

in coordination with or proximity to others without being distracted by them,” and (3) “complete

a normal workday and workweek without interruptions from psychologically based symptoms

and to perform at a consistent pace without an unreasonable number and length of rest periods.”

(Tr. 1362-65.)

The ALJ discounted Kammerer’s opinion on the ground that it is inconsistent with

Plaintiff’s reported activities: “[L]ittle weight has been given to the opinion of Amy Kammerer,

LMFT, QMHP (22F), whose multiple marked limitations are inconsistent with [Plaintiff’s]

reported activities of daily living noted above.” (Tr. 35.) As explained above, the ALJ’s reliance

on Plaintiff’s reported activities was misplaced because the ALJ considered evidence about

Plaintiff’s activities selectively, ignoring evidence that contradicted his findings. Accordingly,

the ALJ likewise erred in discounting Kammerer’s opinion based on Plaintiff’s reported

activities.

V. REMEDY

A. Applicable Law

“Generally when a court of appeals reverses an administrative determination, ‘the proper

course, except in rare circumstances, is to remand to the agency for additional investigation or

explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citation omitted). In a

number of cases, however, the Ninth Circuit has “stated or implied that it would be an abuse of

discretion for a district court not to remand for an award of benefits when [the three-part credit-

as-true standard is] met.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (citations

omitted).

The credit-as-true standard is met if three conditions are satisfied: “(1) the record has

been fully developed and further administrative proceedings would serve no useful purpose; (2)

the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant

testimony or medical opinion; and (3) if the improperly discredited evidence were credited as

true, the ALJ would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at

1020 (citations omitted). Even when the credit-as-true standard is met, the court retains the

“flexibility to remand for further proceedings when the record as a whole creates serious doubt

as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id.

at 1021.

B. Analysis

The Court finds that the credit-as-true standard is satisfied here and that remand for an

award of benefits is warranted.

First, the Court finds that the record has been fully developed. It includes over a decade’s

worth of treatment notes, testimony from Plaintiff and Barbour about Plaintiff’s symptoms and

limitations, Dr. Dobles’ two functional capacity assessments, and Kammerer’s functional

capacity assessment. The ALJ and Plaintiff’s counsel asked the VE hypothetical questions that

addressed whether a worker with Plaintiff’s limitations could sustain gainful employment, and

the VE testified that Plaintiff’s limitations would preclude work. (See Tr. 75, reflecting that the

VE testified that a worker could not sustain competitive employment if she “miss[ed] work three

times a month or more”; cf. Tr. 1442, showing that Dr. Dobles estimated that Plaintiff’s

“psychiatric impairments [would] prevent her from being able to maintain a regular work

schedule . . . [at least] 4 days per month”; Tr. 1360, noting that Kammerer stated that Plaintiff

“does not demonstrate the capacity to” perform full-time work without missing more than “two

days per month”).

As to further proceedings, the Commissioner does not argue that further proceedings

would serve a useful purpose here. (See Def.’s Br. at 17, reflecting that the Commissioner

opposes a remand for an award of benefits solely on the ground that “Plaintiff does not show that

she has met the requirements” of the credit-as-true standard, and explains that the Court “need

not consider the issue” of serious doubt because “the ALJ’s decision is support by substantial

evidence”). Even if the Commissioner had argued that further proceedings would be useful,

Ninth Circuit precedent and the objectives of the credit-as-true standard foreclose any argument

that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a remand for a

“useful purpose”:

Although the Commissioner argues that further proceedings would

serve the ‘useful purpose’ of allowing the ALJ to revisit the

medical opinions and testimony that she rejected for legally

insufficient reasons, our precedent and the objectives of the credit-

as-true rule foreclose the argument that a remand for the purpose

of allowing the ALJ to have a mulligan qualifies as a remand for a

‘useful purpose’ under the first part of credit-as-true analysis.

Garrison, 759 F.3d at 1021; see also Benecke, 379 F.3d at 595 (“Allowing the Commissioner to

decide the issue again would create an unfair ‘heads we win; tails, let’s play again’ system of

disability benefits adjudication.”); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The

Commissioner, having lost this appeal, should not have another opportunity to show that [the

claimant] is not credible any more than [the claimant], had he lost, should have an opportunity

for remand and further proceedings to establish his credibility.”). Accordingly, the Court finds

that Plaintiff meets the first part of the credit-as-true analysis.

Second, as discussed above, the ALJ failed to provide legally sufficient reasons for

rejecting Plaintiff’s testimony, Barbour’s testimony, Dr. Dobles’ opinions, and Kammerer’s

opinion. Accordingly, the Court finds that Plaintiff satisfies the second part of the credit-as-true

analysis.

Third, if the improperly discredited evidence, such as Dr. Dobles’ and Kammerer’s

opinions, were credited as true, the ALJ would be required to find Plaintiff disabled on remand

because her psychiatric conditions would cause her to exceed the customary tolerances for

absences. Cf. Revels v. Berryhill, 874 F.3d 648, 662-69 (9th Cir. 2017) (noting that the

claimant’s treating physician’s opinion was contradicted by the non-examining state agency

physicians, explaining that “the opinions of nonexamining doctors ‘cannot by [themselves]

constitute substantial evidence that justifies the rejection of the opinion of either an examining

physician or a treating physician,’” and remanding for an award of benefits because, if credited

as true, the claimant’s physician’s improperly discredited opinion established that she “could not

work”).

For these reasons, and because the Court does not have serious doubt about whether

Plaintiff is disabled, the Court exercises its discretion to remand this case for an award of

benefits.

CONCLUSION

For the reasons stated, the Court REVERSES the Commissioner’s decision and

REMANDS this case for an award of benefits.

IT IS SO ORDERED.

DATED this 9th day of March, 2020.

STACIE F. BECKERMAN

United States Magistrate Judge