# Zehner v. Commissioner Social Security Administration

> District Court, D. Oregon · May 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10392113

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10392113

## Opinion text

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

CHRISTOPHER Z.,1 Case No. 6:18-cv-01712-AA
OPINION AND ORDER
Plaintiff,

v.

ANDREW SAUL,
Commissioner of Social Security,

Defendant.

AIKEN, District Judge:
Plaintiff Christopher Z. brings this action pursuant to the Social Security Act
("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the
Commissioner of Social Security ("Commissioner"). The Commissioner denied
plaintiff’s application for Disability Insurance Benefits (“DIB”). For the reasons set

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 or parties in this case.
Where applicable, this opinion uses the same designation for a non-governmental
party's immediate family member.
forth below, the Commissioner’s decision is REVERSED and REMANDED for further
proceedings.
BACKGROUND

On January 21, 2015, plaintiff protectively filed for a period of DIB, alleging
disability beginning August 6, 2014, with a date last insured of December 31, 2019.
In his applications, plaintiff alleged disability due to a combination of physical
impairments, including back pain and degenerative disc disease, and obesity. His
claims were denied initially on May 5, 2015, and upon reconsideration on September
10, 2015. On October 7, 2015, plaintiff filed a written request for a hearing before an
Administrative Law Judge (“ALJ”). An administrative hearing took place on July 14,

2017, where plaintiff was represented by counsel. Both plaintiff and a vocational
expert offered testimony.
On October 17, 2017, plaintiff submitted new evidence to the ALJ. The ALJ
declined to admit plaintiff’s new evidence because it did not meet the requirement
that new evidence be submitted to the ALJ no less than five days before the hearing
and no exception applied to plaintiff’s case. Tr. 13; see also 20 C.F.R. § 404.935(b).

The ALJ found plaintiff not disabled from August 6, 2014, through the date of the
written decision on November 22, 2017. Tr. 21. After the Appeals Council denied
review in July 2018, plaintiff filed the present complaint in this Court.
STANDARD OF REVIEW
The district court must affirm the ALJ’s decision if it is based upon proper legal
standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). “Substantial
evidence is more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 522 (9th Cir.
2014) (citation and internal quotation marks omitted). The court must evaluate the
complete record and weigh “both the evidence that supports and the evidence that
detracts from the ALJ's conclusion.” Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir.
2001). If the evidence is subject to more than one interpretation but the
Commissioner’s decision is rational, the Commissioner must be affirmed, because
“the court may not substitute its judgment for that of the Commissioner.” Edlund v.

Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER’S DECISION
The initial burden of proof rests upon the plaintiff to establish disability.
Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet that burden, the
plaintiff must demonstrate an “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can

be expected . . . to last for a continuous period of not less than 12 months[.]” 42
U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for
determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140
(1987); 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found that plaintiff had not
engaged in “substantial gainful activity” since the alleged onset date of August 6,
2014. Tr. 15; see also 20 C.F.R. § 404.1571 et seq. At step two, the ALJ found that
plaintiff had “the following severe impairments: back pain and degenerative disc
disease, and obesity.” Tr. 15; see also 20 C.F.R. § 404.1520(c).

At step three, the ALJ determined plaintiff’s impairments, whether considered
separately or in combination, did not meet or equal “one of the listed impairments”
that the Commissioner acknowledges are so severe as to preclude substantial gainful
activity. Tr. 16; see also 20 C.F.R. § 404.1520(d), 404.1525, and 404.1526. The ALJ
then assessed plaintiff’s residual functional capacity (“RFC”). Tr. 16-20; see also 20
C.F.R. § 404.1520(e), 404.1545. The ALJ found that, through the date last insured,
plaintiff had the following RFC:

Plaintiff has the [RFC] to perform sedentary work as defined in 20 CFR
404.1567(a), except that [plaintiff] can occasionally climb ramps and
stairs, and never climb ladders, ropes, or scaffolds. [Plaintiff] can never
crawl, and can occasionally reach overhead bilaterally.

Tr. 16.
At step four, the ALJ found that plaintiff was “unable to perform any past
relevant work.” Tr. 20; see also 20 C.F.R. § 404.1565. But at step five, the ALJ found
that based on plaintiff’s “age, education, work experience, and [RFC], there are jobs
that exist in significant numbers in the national economy that [plaintiff] can
perform.” Tr. 20-21; see also 20 C.F.R. § 404.1569, (a). Specifically, the ALJ found
that plaintiff could work as a “Manual Assembler, Small Parts,” “Touch Up Inspector
for Printed Circuit Board Assembly,” and “Final Assembler, Optical.” Tr. 21. The
ALJ therefore found that plaintiff was not disabled and denied his application for
benefits.
DISCUSSION
Plaintiff raises three assignments of error on appeal. He contends that the
Commissioner erred in: (1) improperly declining to admit into the record medical

evidence presented after plaintiff’s July 2017 hearing; (2) improperly rejecting
plaintiff’s subjective symptom testimony; and (3) improperly rejecting lay witness
statements. The Court addresses each issue in turn.
I. Additional Medical Evidence
First, plaintiff contends that the Commissioner erred in improperly declining
to admit into the record medical evidence presented three months after plaintiff’s
July 2017 hearing. Plaintiff argues that the ALJ should have admitted the new

evidence because 20 C.F.R. § 404.935(a), known as the “five-day rule,” applies only to
evidence that existed prior to the hearing.
Under the five-day rule, claimants are required to submit any relevant
evidence, or inform the ALJ about it, at least five days before the administrative
hearing. 20 C.F.R. § 404.935(a) (2017). Section 404.935(b) contains several
exceptions to the five-day rule. Under § 404.935(b), the ALJ “may decline to consider

or admit the evidence” if the plaintiff failed to submit the evidence (or inform the ALJ
about the evidence) at least five days before the administrative hearing unless one or
more of the following exceptions apply:
(1) [the administration’s] action misled [the plaintiff];

(2) [The plaintiff] had a physical, mental, educational, or linguistic
limitation(s) that prevented [them] from informing [the administration]
about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond [the plaintiff’s] control prevented [them] from informing [the
administration] about or submitting the evidence earlier. Examples
include, but are not limited to:

(i) [The plaintiff was] seriously ill, and [their] illness prevented [them]
from contacting [the administration] in person, in writing, or through a
friend relative, or other person;

(ii) There was a death or serious illness in [the plaintiff’s] immediate
family;

(iii) Important records were destroyed or damaged by fire or other
accidental cause; or

(iv) [The plaintiff] actively and diligently sought evidence from a source
and the evidence was not received or was received less-than 5 business
days prior to the hearing.

20 C.F.R. § 404.935(b) (2017).
Here, plaintiff filed an application for benefits in August 2014, and his
administrative hearing took place nearly three years later in July 2017. About three
months after the hearing, plaintiff submitted new evidence to the ALJ in October
2017. Before issuing a written decision in November 2017, the ALJ declined to admit
plaintiff’s new evidence in October 2017. The ALJ reasoned that plaintiff’s new
evidence did not satisfy the five-day rule and that none of the identified exceptions
applied to plaintiff’s case.
Indeed, plaintiff does not argue that he met any of the exceptions in 20 C.F.R.
§ 404.935(b). Plaintiff instead argues that the five-day rule applies only to evidence
that existed prior to the July 2017 hearing. In an effort to support his argument,
plaintiff points to 20 C.F.R. § 404.1512(a), which requires claimants to “disclose any
additional evidence about which [they] become aware.”
Plaintiff’s ongoing duty to disclose relevant evidence under
20 C.F.R. § 404.1512(a) does not supersede the five-day rule and does not require an
ALJ to admit any new evidence. See Peter v. of Soc. Sec. Admin., 2019 WL 4534019,

at *6 (D. Or. Sept. 19, 2019) (A plaintiff’s “ongoing duty to disclose relevant evidence
does not silently create a duty for the ALJ to admit such evidence after the hearing.”).
The ALJ’s only duty to consider evidence submitted after the hearing is outlined in 20
C.F.R. § 404.935(b). Because plaintiff never advanced any argument that he met any
exception in 20 C.F.R. § 404.935(b), the Court cannot conclude that the ALJ erred in
finding plaintiff failed to meet any exception.
More importantly, the Ninth Circuit has held “that when a claimant submits

evidence for the first time to the Appeals Council, which considers that evidence in
denying review of the ALJ’s decision, the new evidence is part of the administrative
record, which the district court must consider in determining whether the
Commissioner’s decision is supported by substantial evidence.” Brewes v. Comm’ r
Soc. Sec. Admin., 682 F.3d 1157, 1162-63 (9th Cir. 2012). Here, the Appeals Council
considered the new evidence and found that it “does not show a reasonable probability

that it would change the outcome of the decision.” Tr. 2. The Appeals Council
included the evidence for this Court to review.
The records in question deal with the surgical removal of defendant’s bilateral
percutaneous occipital nerve stimulator. Defendant began a trial in March 2017 to
help deal with his chronic head and neck pain, and a permanent stimulator was
implanted on March 27, 2017. At post-operative visits plaintiff reported
improvement in his symptoms and was advised to begin tapering off pain
medications.
The following month, plaintiff reported that he was involved in an automobile

accident when his vehicle was rear ended. In June 2017, plaintiff reported concerns
about possible stimulator dysfunction following the accident. Plaintiff reported
localized erythema in the posterior cervical incision with scant yellow discharge.
However, according to medical records, he demonstrated no signs of wound infection
or stimulator dysfunction.
In September 2017, however, plaintiff sought emergency evaluation of a visible
piece of tubing from his implanted stimulator device. He was hospitalized, and the

stimulator was surgically removed the following day.
The ALJ concluded in his decision which that “the claimant's symptoms, of
whatever particular origin, were relieved with use of a stimulator.” Tr 17. The ALJ
also found that inconsistency was indicated for the period prior to the stimulant
implant by the discrepancy between the claimant's testimony and what his
physicians observed over a period of years. Tr. 18. After the implant, the ALJ found,

at most, plaintiff had some hardware issues, following a motor vehicle accident in
May 2017, but that there was no report of return of his symptoms (Ex. 8F, at 1). Tr
17. The ALJ made these findings without considering the fact that the nerve
stimulator was later surgically removed. Clearly, the ALJ’s findings regarding
plaintiff improvement of symptoms resulting from the nerve stimulator treatment
are no longer supported by substantial evidence.
To justify a remand, plaintiff must show that this new evidence is material to
determining his disability, and that he had good cause for having failed to produce
that evidence earlier. See 42 U.S.C. § 405(g). To be material under section 405(g),

the new evidence must bear “directly and substantially on the matter in dispute.”
Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir.1982). Plaintiff must additionally
demonstrate that there is a “reasonable possibility” that the new evidence would have
changed the outcome of the administrative hearing. Mayes v. Massanari, 276 F.3d
453, 462 (9th Cir. 2001).
A claimant does not meet the “good cause” requirement by merely obtaining a
more favorable report once his or her claim has been denied. Id. To demonstrate

good cause, the claimant must demonstrate that the new evidence was unavailable
earlier. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (“If new information
surfaces after the Secretary's final decision and the claimant could not have obtained
that evidence at the time of the administrative proceeding, the good cause
requirement is satisfied”).
Here, the Court finds that this evidence is material to determining plaintiff’s

disability and that he had good cause for failing to produce it earlier as it was
unavailable prior to the hearing. Moreover, the Court finds that there is a reasonable
probability that this evidence would change the outcome of the decision given the
ALJ’s reliance on the improvement of plaintiff’s symptoms with nerve stimulator as
reason for finding him not disabled. Accordingly, remand is justified to examine this
evidence.
II. Plaintiffs Subjective Symptom Testimony
Next, plaintiff contends that the Commissioner erred in improperly rejecting
plaintiff’s subjective symptom testimony. Plaintiff argues that the ALJ failed to

identify specific, clear, and convincing reasons supported by substantial evidence in
the record to reject [plaintiff’s] subjective symptom testimony.
When a plaintiff’s medically documented impairments reasonably could be
expected to produce some degree of the symptoms complained of, and the record
contains no affirmative evidence of malingering, the ALJ must provide “specific, clear
and convincing reasons” for rejecting the [plaintiff’s] testimony regarding the severity
of her symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). A

general assertion that the [plaintiff] is not credible is insufficient; the ALJ must “state
which . . . testimony is not credible and what evidence suggests the complaints are
not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The ALJ must
make findings that are sufficiently specific to permit the reviewing court to conclude
that the ALJ did not arbitrarily discredit the plaintiff’s testimony. Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014). If the “ALJ’s credibility finding is supported by

substantial evidence in the record, [the court] may not engage[] in second-guessing.”
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
In weighing the plaintiff’s credibility, the ALJ may consider many factors,
including: “(1) ordinary techniques of credibility evaluation, such as the [plaintiff’s]
reputation for lying, prior inconsistent statements concerning the symptoms, and
other testimony ... that appears less than candid; (2) unexplained or inadequately
explained failure to seek treatment or to follow a prescribed course of treatment; and
(3) the [plaintiff’s] daily activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th
Cir. 2008). However, “subjective pain testimony cannot be rejected on the sole ground

that it is not fully corroborated by objective medical evidence.” Rollins v. Massanari,
261 F.3d 853, 857 (9th Cir. 2001) (emphasis added) (citation omitted).
Here, the ALJ determined that plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however,
[plaintiff’s] statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in [his] decision.” Tr. 19-21. The

ALJ proceeded to assign “little weight” to plaintiff’s subjective statements that are
inconsistent with his shown ability “to perform a reduced range of sedentary work on
a regular and continuing basis.” Tr. 19.
To support his determination that plaintiff’s subjective symptoms statements
were not entirely reliable, the ALJ relied on inconsistencies in his testimony. For
example, the ALJ noted that plaintiff testified at the administrative hearing that he

has been in constant pain for the last three years. Yet in November 2015, plaintiff
reported improvement in previous pain. The ALJ also noted that plaintiff testified
at the administrative hearing that new treatment with the nerve stimulator made
his pain tolerable at best but emphasized he remained in unchanged, constant pain.
Yet in April 2017, plaintiff reported to his treatment providers doing well as well as
good pain relief.
Additionally, the ALJ listed specific evidence in the record and reasoned that
plaintiff’s reports to the ALJ were inconsistent with his doctors’ medical reports. For
example, the ALJ noted that plaintiff testified at the administrative hearing that he

had been suffering from flare-ups, which confined him to bed several times a month
for up to five days at a time. Yet throughout that same period, August 2013 to May
2017, during multiple presentations with his primary care provider, the doctor did
not note plaintiff evidencing the pain or “the behaviors that would be expected of
someone who spent each day in a recliner evaluating his feet, or who is confined to
bed several times a month for up to five days at a time.” Tr. 18. Instead, medical
reports repeatedly described plaintiff as having a normal affect. One doctor noted

that plaintiff’s subjective complaints did not correspond with the results of the
doctor’s findings.
Thus, in weighing plaintiff’s credibility, the ALJ considered legally relevant
factors. See Tommasetti, 533 F.3d at 1039. Additionally, the ALJ did not rely solely
on medical evidence. Instead, the ALJ also considered plaintiff’s prior inconsistent
statements.

However, as noted above, the ALJ’s decision regarding plaintiff’s subjective
symptom testimony is at least partially no longer supported by substantial evidence,
since plaintiff had his nerve stimulator removed following his administrative hearing.
Accordingly, remand is warranted for reconsideration of the record in light of the
supplementary evidence discussed above.
/ / /
III. Lay Witness Statements
Finally, plaintiff contends that the Commissioner erred in improperly rejecting
lay witness statements of plaintiff’s wife and parents.

Lay witness testimony about the severity of a plaintiff’s symptoms or how
impairment affects a plaintiff’s ability to work is competent evidence that an ALJ
must consider. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). To reject lay
witness testimony an ALJ must provide “reasons that are germane to each witness.”
Rounds v. Comm'r of Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 2015). The
reasons provided must also be “specific.” Taylor v. Comm'r of Soc. Sec. Admin., 659
F.3d 1228, 1234 (9th Cir. 2011). Inconsistency of a lay witness’s statements with the

medical evidence is a germane reason to discredit the witness’s testimony. Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
Here, the ALJ assigned “little weight” to the statements by plaintiff’s wife and
parents. Tr. 19. The ALJ specifically noted that the statements by plaintiff’s wife
and parents were inconsistent with plaintiff’s recent medical treatment notes
following the implant of a nerve stimulator. For example, plaintiff’s nerve stimulator

was implanted in March 2017. In April, plaintiff reported improvement, which
plaintiff conveyed remained consistent into May. Tr. 17, 518, 520. Soon afterward,
plaintiff’s wife and parents rendered their statements in June. Tr. 322, 323.
However, as noted above, these statements were rendered prior to the removal
of nerve stimulator. Accordingly, the fact that the ALJ rejected these opinions
because plaintiff showed improvement with the nerve stimulator is no longer
supported by substantial evidence.
IV. Scope of Remand

The Court has discretion under 42 U.S.C. § 405(g) to decide “whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at
1210 (citation omitted). A remand for an award of benefits is appropriate when no
useful purpose would be served by further administrative proceedings or when the
record has been fully developed and the evidence is insufficient to support the
Commissioner's decision. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
1099-1100 (9th Cir. 2014). 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 Act. Strauss v. Comm'r of
Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
The credit-as-true analysis requires courts to utilize the following sequential
evaluation process: (i) determine whether the ALJ made a harmful legal error; (ii)
review the whole record to assess whether it is fully developed, free from conflicts and

ambiguities, and that all essential factual issues have been resolved; and (iii)
determine whether the ALJ would be required to find the plaintiff disabled on remand
if the improperly discredited evidence were credited as true. Dominguez v. Colvin,
808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation marks omitted).
The Court has concluded that the Commissioner’s decision is not supported by
substantial evidence. However, given that the ALJ did not consider this evidence in
formulating an RFC or hypothetical for a VE to consider, further proceedings are
required to resolve essential factual issues in this cas.
CONCLUSION

For the reasons set forth herein, the Commissioner’s decision is REVERSED
and REMANDED for further proceedings. On remand, the ALJ shall hold a new
administrative hearing and issue new decision considering plaintiff’s supplemental
evidence. Accordingly, this case is dismissed.
IT IS SO ORDERED.
Dated this _3_0_t_h day of May, 2020.

__________/_s_/A__n_n_ _A_i_k_e_n_________
Ann Aiken
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392113. Public record. Not legal advice.