Weber v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LESLIE A. W.,1 3:19-cv-00626-BR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

LAURIE B. MAPES

Attorney at Law

P.O. Box 1241

Scappoose, OR 97056

(503) 543-2900

Attorney for Plaintiff

BILLY J. WILLIAMS

United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

1 In the interest of privacy this Court uses only the first

name and the initial of the last name of the nongovernmental

party in this case. Where applicable, this Court uses the same

designation for the nongovernmental party's immediate family

member.

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Portland, OR 97204-2902

(503) 727-1003

MICHAEL W. PILE

Acting Regional Chief Counsel

SARAH L. MARTIN

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-3705

Attorneys for Defendant

BROWN, Senior Judge.

Plaintiff Leslie A. W. seeks judicial review of the final

decision of the Commissioner of the Social Security

Administration (SSA) in which the Commissioner denied

Plaintiff's application for Disability Insurance Benefits (DIB)

under Title II of the Social Security Act. This Court has

jurisdiction to review the Commissioner's final decision

pursuant to 42 U.S.C. § 405(g).

For the reasons that follow, the Court REVERSES the

decision of the Commissioner and REMANDS this matter for the

immediate calculation and payment of benefits.

ADMINISTRATIVE HISTORY

On November 19, 2015, Plaintiff protectively filed her

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application for DIB benefits. Tr. 21, 195.2 Plaintiff alleges a

disability onset date of October 29, 2015. Tr. 21, 195.

Plaintiff=s application was denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on September 22, 2017. Tr. 21, 40-87. Plaintiff and a

vocational expert (VE) testified at the hearing. Plaintiff was

represented by an attorney at the hearing.

On January 25, 2018, the ALJ issued an opinion in which she

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 21-33. Plaintiff requested review by the

Appeals Council. On February 21, 2019, the Appeals Council

denied Plaintiff=s request to review the ALJ's decision, and the

ALJ's decision became the final decision of the Commissioner.

Tr. 1-4. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On April 24, 2019, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner=s decision.

BACKGROUND

Plaintiff was born on April 1, 1971. Tr. 32, 195.

2 Citations to the official Transcript of Record (#7) filed

by the Commissioner on August 30, 2019, are referred to as "Tr."

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Plaintiff was 44 years old on her alleged disability onset date.

Tr. 32. Plaintiff has a high-school education and a certificate

as a licensed practical nurse. Tr. 32, 52. Plaintiff has past

relevant work experience as a licensed practical nurse, home-

health nurse, charge nurse, nanny, and daycare director.

Tr. 81.

Plaintiff alleges disability due to chronically recurring

mononucleosis, rheumatoid arthritis, Sjogren's syndrome,

myositis, osteopenia, irritable bowel syndrome, interstitial

cystitis, and hypothyroid disorder. Tr. 89.

Except as noted, Plaintiff does not challenge the ALJ=s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ=s summary of the

medical evidence. See Tr. 28-31.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110

(9th Cir. 2012). To meet this burden, a claimant must

demonstrate her inability "to engage in any substantial gainful

activity by reason of any medically determinable physical or

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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). The ALJ must develop the record when

there is ambiguous evidence or when the record is inadequate to

allow for proper evaluation of the evidence. McLeod v. Astrue,

640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari,

276 F.3d 453, 459B60 (9th Cir. 2001)).

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

"relevant evidence that a reasonable mind might accept as

adequate to support a conclusion." Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

evidence] but less than a preponderance." Id. (citing

Valentine, 574 F.3d at 690).

The ALJ is responsible for evaluating a claimant=s

testimony, resolving conflicts in the medical evidence, and

resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591

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(9th Cir. 2009). The court must weigh all of the evidence

whether it supports or detracts from the Commissioner's

decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th

Cir. 2008). Even when the evidence is susceptible to more than

one rational interpretation, the court must uphold the

Commissioner=s findings if they are supported by inferences

reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d

1047, 1051 (9th Cir. 2012). The court may not substitute its

judgment for that of the Commissioner. Widmark v. Barnhart, 454

F.3d 1063, 1070 (9th Cir. 2006).

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the

Commissioner determines the claimant is engaged in substantial

gainful activity (SGA). 20 C.F.R. § 404.1520(a)(4)(i). See

also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.

2011).

At Step Two the claimant is not disabled if the

Commissioner determines the claimant does not have any medically

severe impairment or combination of impairments. 20 C.F.R.

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§ 404.1509, 404.1520(a)(4)(ii). See also Keyser, 648 F.3d at

724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant=s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R.

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments).

If the Commissioner proceeds beyond Step Three, he must

assess the claimant's residual functional capacity (RFC). The

claimant=s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. "A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm'r of Soc. Sec.

Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v.

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Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, he must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).

The Commissioner may satisfy this burden through the testimony

of a VE or by reference to the Medical-Vocational Guidelines (or

the grids) set forth in the regulations at 20 C.F.R. part 404,

subpart P, appendix 2. If the Commissioner meets this burden,

the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since October 29, 2015, Plaintiff=s

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alleged disability onset date. Tr. 23.

At Step Two the ALJ found Plaintiff has the severe

impairments of obesity, diastolic heart failure, obstructive

sleep apnea, rheumatoid arthritis, asthma, and interstitial

cystitis. Tr. 24.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P,

appendix 1. Tr. 27. The ALJ found Plaintiff has the RFC to

perform light work. Tr. 27. The ALJ indicated Plaintiff has

"no limits on balancing," but has "occasional [limits] handling,

fingering with the right dominant hand." Tr. 27-28. The ALJ

also found Plaintiff can be exposed occasionally to "extreme

cold, fumes/odors/dusts/gases/poor ventilation," but she cannot

be exposed to hazards such as moving mechanical parts or

unprotected heights. Tr. 28.

At Step Four the ALJ concluded Plaintiff is unable to

perform her past relevant work. Tr. 32.

At Step Five the ALJ found Plaintiff can perform other jobs

that exist in the national economy such as counter clerk,

furniture-rental clerk, and greeter. Tr. 33. Accordingly, the

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ALJ found Plaintiff is not disabled. Tr. 33.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) failed to

provide legally sufficient reasons supported by substantial

evidence in the record for discounting the opinions of Shawn

Macalester, D.O., Plaintiff's treating rheumatologist, and

Daniel Lowery, P.A., Plaintiff's primary care provider;

(2) improperly relied on the opinions of Lloyd Wiggins, M.D.,

and William Nisbet, M.D., state-agency reviewing physicians; and

(3) improperly discounted Plaintiff's subjective symptoms

testimony.

I. The ALJ erred when she failed to provide specific and

legitimate reasons for discounting the opinion of

Dr. Macalester and failed to provide germane reasons for

discounting the opinion of PA Lowery.

Plaintiff contends the ALJ erred when she discounted the

opinions of Dr. Macalester and PS Lowery, Plaintiff's treating

providers, and failed to include in Plaintiff's RFC any

limitations assessed by those providers.

A. Standards

1. Medical Sources

"In disability benefits cases . . . physicians may

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render medical, clinical opinions, or they may render opinions

on the ultimate issue of disability - the claimant's ability to

perform work." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

2014). "In conjunction with the relevant regulations, [courts]

have . . . developed standards that guide [the] analysis of an

ALJ's weighing of medical evidence." Ryan v. Comm'r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

"If a treating or examining doctor's opinion is

contradicted by another doctor's opinion, an ALJ may only reject

it by providing specific and legitimate reasons that are

supported by substantial evidence." Id. When contradicted, a

treating or examining physician's opinion is still owed

deference and will often be "entitled to the greatest

weight . . . even if it does not meet the test for controlling

weight." Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). 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." Reddick, 157 F.3d at 725. "The

ALJ must do more than state conclusions. He must set forth his

own interpretations and explain why they, rather than the

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doctors', are correct." Id. (citation omitted).

2. "Other Sources"

Medical sources are divided into two categories:

"acceptable medical sources" and "other sources." 20 C.F.R.

§§ 416.913. Acceptable medical sources include licensed

physicians and psychologists. 20 C.F.R. §§ 416.913(a). Medical

sources classified as "other sources" include, but are not

limited to, nurse practitioners, therapists, licensed clinical

social workers, and chiropractors. 20 C.F.R. §§ 416.913(d).

With respect to "other sources," the Social Security

Administration Regulations provide:

With the growth of managed health care in recent

years and the emphasis on containing medical

costs, medical sources who are not acceptable

medical sources, such as nurse practitioners,

physician assistants, and licensed clinical

social workers, have increasingly assumed a

greater percentage of the treatment and

evaluation functions previously handled primarily

by physicians and psychologists. Opinions from

these medical sources, who are not technically

deemed acceptable medical sources under our

rules, are important and should be evaluated on

key issues such as impairment severity and

functional effects, along with the other relevant

evidence in the file.

SSR 06-03p, at *3. Factors the ALJ should consider when

determining the weight to give an opinion from those "important"

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sources include the length of time the source has known the

claimant, the number of times and frequency that the source has

seen the claimant, the consistency of the source's opinion with

other evidence in the record, the relevance of the source's

opinion, the quality of the source's explanation of his opinion,

and the source's training and expertise. SSR 06-03p, at *4. On

the basis of the particular facts and the above factors, the ALJ

may assign a not-acceptable medical source either greater or

lesser weight than that of an acceptable medical source. SSR

06-03p, at *5-6. The ALJ, however, must explain the weight

assigned to such sources so that a claimant or subsequent

reviewer may follow the ALJ's reasoning. SSR 06-03p, at *6.

"The ALJ may discount testimony from . . . 'other sources' if

the ALJ 'gives reasons germane to each witness for doing so.'"

Molina, 674 F.3d at 1111 (quoting Turner v. Comm’r Soc. Sec.

Admin., 613 F.3d 1217, 1224 (9th Cir. 2010)).

B. Analysis

Dr. Macalester and PA Lowery each opined Plaintiff can

work only eight-to-fifteen hours per week; that Plaintiff cannot

use her hands for more than two hours a day; and that the pain

and fatigue from full-time work interferes with Plaintiff's

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concentration, completion of tasks, and maintenance of an

acceptable pace. PA Lowery also opined Plaintiff would be off-

task by 20 percent and miss work four or more days per month.

As noted, Dr. Macalester and PA Lowery concluded

Plaintiff could only use her hands for two hours a day.

The ALJ, in turn, found Plaintiff has "occasional [limits]

handling, fingering with the right dominant hand." Tr. 27-28.

The ALJ gave "little weight" to the opinions of Dr. Macalester

and PA Lowery on the ground that their "two-hour" limitation was

inconsistent with the definition of "occasional" in the Social

Security Regulations. The Court, however, notes SSR 83-10

defines "occasionally" as "occurring from very little up to one-

third of the time" (i.e., up to approximately 2.67 hours of a

workday). Thus, there is not any "inconsistency" between the

medical providers' limitation of two hours and the ALJ's

limitation of "occasional" use of Plaintiff's hand (i.e., "from

very little up to" 2.67 hours) that constitutes a specific or

germane reason for rejecting the opinions of Dr. Macalester and

PA Lowery.

The ALJ also gave little weight to the opinions of

Dr. Macalester and PA Lowery on the ground that they provided

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"little explanation" for their medical opinions. The record as

a whole, however, reflects the opposite. Dr. Macalester began

treating Plaintiff in 2014 and documented the basis for his

opinion in detail. For example, in November 2014 Dr. Macalester

diagnosed Plaintiff with "rheumatoid arthritis, kerato-

conjunctivitis sicca in Sjogren's syndrome, obesity, and

monoclonoal gammopathy." Tr. 976-79. In February 2015

Dr. Macalester noted Plaintiff complained of pain, numbness,

weakness, shortness of breath, anxiety, and depression.

Tr. 971-72. Although Plaintiff reported she had increased her

work hours to 32 hours per week, Dr. Macalester noted Plaintiff

"was not handling it very well." Tr. 971. Dr. Macalester

described Plaintiff's rheumatoid arthritis as "still active" and

noted new medications caused Plaintiff to experience "mouth

sores, hair loss and fatigue." Tr. 975. In January 2016

Dr. Macalester described Plaintiff's rheumatoid arthritis as

"not getting better and . . . at least moderately severe."

Tr. 969. In his report on August 30, 2017, Dr. Macalester

specifically referenced the objective signs of Plaintiff's

rheumatoid arthritis, noted bony erosions caused Plaintiff pain,

and indicated the use of Plaintiff's hands should be limited to

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minimize joint or bone destruction and pain. Tr. 981. Thus,

Dr. Macalester's records document and support his opinion

regarding Plaintiff's limitations. Accordingly, the ALJ failed

to provide specific and legitimate reasons supported by

substantial evidence in the record for discounting

Dr. Macalester's opinion.

PA Lowery reached conclusions similar to the

conclusions of Dr. Macalester, and the ALJ discounted

PA Lowery's opinion on the same grounds. The medical evidence

shows Plaintiff was seen by PA Lowery from June 2015 through

September 8, 2017, which was the date of his report. PA Lowery

noted MRI evidence showed Plaintiff had bony erosions from

rheumatoid arthritis. The medical records reflect the bony

erosions caused Plaintiff pain and limited the use of her hands

and that she received treatment from various specialists to

treat her symptoms. Tr. 1198-2000. PA Lowery treated all of

Plaintiff's conditions, including rheumatoid arthritis and

Sjogren's syndrome. Tr. 1069-1197. PA Lowery was also familiar

with Plaintiff's efforts to continue working and the job changes

that she made to accommodate her health. Thus, PA Lowery's

records support his opinion regarding Plaintiff's limitations,

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and the ALJ failed to provide germane reasons for discounting

PA Lowery's opinion.

The ALJ also found the opinions of Dr. Macalester and

PA Lowery as to Plaintiff's pain and fatigue were conclusory.

Tr. 31. The ALJ, however, failed to provide specific and

legitimate reasons to support his rejection of Dr. Macalester's

opinion or germane reasons to support his rejection of PA

Lowery's opinion.

Finally, the ALJ concluded the opinions of

Dr. Macalester and PA Lowery were inconsistent with the medical

records, which reflected Plaintiff reported in April 2016 that

her symptoms improved significantly with treatment and remained

that way until August 2016. Tr. 29. In addition, the ALJ noted

Plaintiff reported in October 2016 that her pain was "not as

bad," she reported in May 2017 that she had been doing "quite

well," and she reported in July 2017 that she was not "extremely

fatigued." Tr. 29.

Mere "improvement" from treatment, however, must be

interpreted in context and does not mean the person has

recovered enough" function" to work. See Holohan v. Massanari,

246 F.3d 1195, 1205 (9th Cir. 2001). For example, although

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Plaintiff reported periods of improvement, she also experienced

a recurrence of mononucleosis and concurrent diastolic heart

failure in 2016 that caused her to leave her nursing job and

prevented her from receiving certain treatments for her

rheumatoid arthritis because of other health risks. Tr. 945,

950. Plaintiff also stopped taking certain medications in 2017

due to concerns about ocular toxicity, and she reported ongoing

high levels of pain. Tr. 941-42.

On this record the Court concludes the ALJ erred when

she failed to provide legally sufficient reasons supported by

substantial evidence in the record for discounting the opinions

of Dr. Macalester and PA Lowery.

II. The ALJ erred when she relied on the opinions of

Drs. Wiggins and Nesbit, nonexamining physicians.

Plaintiff contends the ALJ improperly gave "some weight" to

the opinions of Drs. Wiggins and Nisbet, nonexamining state-

agency physicians, who opined Plaintiff is capable of full-time

work.

A. Standards

As noted, "[i]f a treating or examining doctor's

opinion is contradicted by another doctor's opinion, an ALJ may

only reject it by providing specific and legitimate reasons that

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are supported by substantial evidence." Ryan v. Comm'r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). When contradicted, a

treating or examining physician's opinion is still owed

deference and will often be "entitled to the greatest

weight . . . even if it does not meet the test for controlling

weight." Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007).

B. Analysis

In 2016 Drs. Wiggins and Nisbet opined Plaintiff is

capable of performing full-time work at the light exertional

level but did not limit Plaintiff's manipulative activities.

Tr. 31, 95, 111. The ALJ gave their opinions "some weight," but

she noted "evidence of erosive RA in the right hand[, which] is

partially consistent with [Plaintiff's] alleged limitations in

using the hands." Tr. 31. The ALJ, therefore, concluded this

evidence limited the weight that should be given to the physical

assessments of Drs. Wiggins and Nisbet. Tr. 31. The ALJ also

gave "some weight" to the opinions of Drs. Wiggins and Nisbet

because she found the record supported their assessment that

Plaintiff could perform work at the light exertional level and

the postural limitations that the ALJ assessed in Plaintiff's

RFC were consistent with their opinions and "with the objective

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evidence, course of treatment, and response to treatment."

Tr. 31.

Plaintiff, nevertheless, contends the ALJ erred when

she gave "any weight" to the opinions of Drs. Wiggins and Nesbit

on the ground that their opinions were based on limited records

and were contrary to the subsequent opinions of Dr. Macalester

and PA Lowery.

Social Security Regulations provide:

[B]ecause nonexamining sources have no examining or

treating relationship with you, the weight we will

give their medical opinions will depend on the

degree to which they provide supporting explanations

for their medical opinions. We will evaluate the

degree to which these medical opinions consider all

of the pertinent evidence in your claim, including

medical opinions of treating and other examining

sources.

20 C.F.R. § 404.1527(c)(3)(emphasis added). Although

Drs. Wiggins and Nesbit based their opinions on the medical

evidence available to them at the time of their evaluation in

2016, Dr. Macalester and PA Lowery gave opinions one year later

based on additional medical evidence that contradicted the

opinions of Drs. Wiggins and Nesbit. When contradicted, a

treating or examining physician's opinion is still owed

deference and will often be "entitled to the greatest weight

. . . even if it does not meet the test for controlling weight."

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Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007).

The Court concludes on this record that the ALJ erred

when she gave "some weight" to and relied on the opinions of the

nonexamining physicians and failed to give greater weight to the

opinions of the treating providers.

III. The ALJ erred when she failed to provide clear and

convincing reasons for discounting Plaintiff's symptom

testimony.

Plaintiff contends the ALJ erred when she failed to provide

clear and convincing reasons for discounting Plaintiff's symptom

testimony.

A. Standards

The ALJ engages in a two-step analysis to determine

whether a claimant's testimony regarding subjective pain or

symptoms is credible. "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 Lingenfelter

v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). The

claimant need not show his "impairment could reasonably be

expected to cause the severity of the symptom [he] has alleged;

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[he] need only show that it could reasonably have caused some

degree of the symptom." Garrison, 759 F.3d at 1014 (quoting

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). A

claimant is not required to produce "objective medical evidence

of the pain or fatigue itself, or the severity thereof." Id.

If the claimant satisfies the first step of this

analysis and there is not any affirmative evidence of

malingering, "the ALJ can reject the claimant's testimony about

the severity of [his] symptoms only by offering specific, clear

and convincing reasons for doing so." Garrison, 759 F.3d at

1014-15. See also Robbins v. Soc. Sec. Admin., 466 F.3d 880,

883 (9th Cir. 2006)("[U]nless an ALJ makes a finding of

malingering based on affirmative evidence thereof, he or she may

only find an applicant not credible by making specific findings

as to credibility and stating clear and convincing reasons for

each."). General assertions that the claimant's testimony is

not credible are insufficient. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007). The ALJ must identify "what testimony is

not credible and what evidence undermines the claimant's

complaints." Id. (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)).

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B. Analysis

Plaintiff testified her rheumatoid arthritis, viral

infections, and recurring mononucleosis made her health

unpredictable from day to day; that she can only function for a

few hours each day; and that she often has days when she is in

bed or lies on the couch all day. Tr. 28-9, 63-79, 244-51, 313-

15.

The ALJ discounted Plaintiff's testimony on the ground

that it was inconsistent with the medical evidence. Tr. 28-30.

The ALJ specifically concluded Plaintiff's symptoms did not last

for twelve consecutive months, that they "waxed and waned," and

that they were effectively treated with the right medications.

The "twelve-month duration" requirement is only

relevant at Step Two when the ALJ determines whether a claimant

has an impairment or combination of impairments that is “severe”

and expected to last a continuous period of at least twelve

months. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). Here the

ALJ resolved Step Two in Plaintiff's favor, and, therefore, the

ALJ’s application of the "twelve-month duration" requirement to

evaluate Plaintiff’s specific symptoms for the purpose of

determining disability was in error.

Similarly, the waxing and waning of a claimant's symptoms

23 - OPINION AND ORDER

does not constitute clear and convincing evidence to support

discounting a claimant's subjective symptom testimony. Garrison v.

Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). As noted, mere

"improvement" from treatment does not necessarily mean that a

person has recovered enough "function" to work. Holohan, 246 F.3d

at 1205. Although Plaintiff reported improvement in her pain

symptoms at various times (Tr. 1116), she also reported

progressively worsening chronic fatigue and stated there were days

when she could not get out of bed (Tr. 29, 1171, 1175).

On this record the Court concludes the ALJ erred when

she discounted Plaintiff's testimony and failed to provide clear

and convincing reasons supported by substantial evidence in the

record for doing so.

REMAND

The Court must determine whether to remand this matter for

further proceedings or to remand for the calculation and payment

of benefits.

The decision whether to remand for further proceedings or

for payment of benefits generally turns on the likely utility of

further proceedings. Carmickle, 533 F.3d at 1179. The court

may "direct an award of benefits where the record has been fully

24 - OPINION AND ORDER

developed and where further administrative proceedings would

serve no useful purpose." Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman v. Apfel, 211 F.3d 1172,

1178 (9th Cir. 2000). The court should grant an immediate award

of benefits when

(1) the ALJ has failed to provide legally sufficient

reasons for rejecting such evidence, (2) there are no

outstanding issues that must be resolved before a

determination of disability can be made, and (3) it is

clear from the record that the ALJ would be required

to find the claimant disabled were such evidence

credited.

Id. The second and third prongs of the test often merge into a

single question: Whether the ALJ would have to award benefits

if the case were remanded for further proceedings. Id. at 1178

n.2.

As noted, the Court concludes the ALJ erred when she failed

to provide legally sufficient reasons supported by substantial

evidence in the record for discounting the opinions of

Dr. Macalester and PA Lowery regarding Plaintiff's limitations.

The ALJ also erred when she failed to provide legally sufficient

reasons for discounting Plaintiff's symptom testimony. Thus,

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the Court concludes consideration of the record as a whole

establishes that the ALJ would be required to find Plaintiff

disabled and to award benefits if this evidence was credited.

Accordingly, the Court remands this matter for the

immediate calculation and payment of benefits.

CONCLUSION

For these reasons, the Court REVERSES the decision of the

Commissioner and REMANDS this matter pursuant to sentence four

of 42 U.S.C. § 405(g) for the immediate calculation and payment

of benefits.

IT IS SO ORDERED.

DATED this 4th day of May, 2020.

/s/ Anna J. Brown

______________________________________

ANNA J. BROWN

United States Senior District Judge

26 - OPINION AND ORDER