# Rodriguez v. Commissioner Social Security Administration

> District Court, D. Oregon · October 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10392484

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 1, 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/10392484

## How later opinions describe it (automated extraction)

- noting that a “claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted)
- finding general rejection of claimant’s testimony was insufficient and that ALJ committed legal error when she did not specify what testimony she rejected and why

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHRISTINA, R. 1, Case No. 6:19-cv-1334-SI

Plaintiff, OPINION AND ORDER

v.

ANDREW M. SAUL, Commissioner of
Social Security,

Defendant.

Katherine L. Eitenmiller and Mark A. Manning, HARDER, WELLS, BARON & MANNING, P.C., 474
Willamette Street, Eugene, OR 97401. Of Attorneys for Plaintiff.

Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
L. Jamala Edwards, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.

Michael H. Simon, District Judge.

Christina R. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying her applications for Disability

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial
of the last name of the non-governmental party in this case. When applicable, this Opinion and
Order uses the same designation for a non-governmental party’s immediate family member.
Insurance Benefits and Supplemental Security Income. Because the Commissioner’s findings
were not supported by substantial evidence, the decision is REVERSED and this case
REMANDED for further proceedings.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
When the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment

for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff filed an application for DIB on May 6, 2016, and an application for SSI on
May 20, 2016, alleging disability beginning October 28, 2013. AR 87; AR 162; AR 171. Plaintiff
was born on December 17, 1963, and was 49 years old as of the alleged disability onset date.
AR 36. She alleged disability due to degenerative disk disease, bilateral feet and knees

osteoarthritis, hyperthyroid, fibromyalgia, diverticulitis, neuropathy, insomnia, vitamin D
deficiency, and asthma. AR 40. The Commissioner denied Plaintiff’s application initially on
October 4, 2016, and upon reconsideration on January 17, 2017. AR 14; AR 89; AR 101.
Plaintiff filed a written request for a hearing before an Administrative Law Judge (“ALJ”) on
February 3, 2017. AR 14. In a decision dated September 17, 2018, the ALJ found that Plaintiff
was not disabled through the date of the decision. AR 22. The Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of the Commissioner. AR 1-3.
Plaintiff seeks judicial review of that decision. This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g).
B. The Sequential Analysis

Under the Social Security Act (“Act”), a claimant is disabled if he or she is unable to
“engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to last for a continuous period of not
less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-
step sequential process for determining whether an applicant is disabled within the meaning of
the Social Security Act.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011);
see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140
(1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
five-step sequential process asks the following series of questions:
1. Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3. Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ performed the sequential analysis as noted above. At step one, the ALJ
determined that the Plaintiff had not engaged in substantial gainful activity since the alleged

disability onset date of October 28, 2013. AR 16. Plaintiff satisfied the insured status
requirements of the Act through March 31, 2019. At step two, the ALJ determined that Plaintiff
had the following severe impairments as of January 1, 2016: diabetes mellitus with peripheral
neuropathy, lumbosacral degenerative disc disease, fibromyalgia, morbid obesity and bilateral
knee osteoarthritis, and status post right knee arthroscopy/partial meniscectomy. AR 17. The
ALJ concluded that none of these impairments, either together or in combination, equal the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). AR 17.
The ALJ next determined Plaintiff’s RFC. The ALJ found that the Plaintiff had the RFC
to perform sedentary work, which involves lifting no more than 10 pounds at a time,
occasionally lifting or carrying articles like docket files, ledgers, and small tools, and

occasionally standing and walking. AR 18; 20 C.F.R. § 404.1567(a). The ALJ included the
following additional limitations: that Plaintiff can occasionally climb ramps and stairs but can
never climb ladders, ropes or scaffolds; can frequently balance; can occasionally stoop and
crouch but can never kneel or crawl; and must avoid concentrated exposure to workplace hazards
such as unprotected heights and heavy machinery. Id.
At step four, the ALJ considered Plaintiff’s past relevant work. Plaintiff previously
worked as a customer complaint clerk. AR 22. The ALJ concluded that work as a customer
complaint clerk was compatible with the Plaintiff’s RFC. Id. Accordingly, the ALJ found
Plaintiff was not disabled from either October 28, 2013 or January 1, 2016 through the date of

the decision. Id.
DISCUSSION
Plaintiff argues that the ALJ erred by improperly rejecting Plaintiff’s subjective symptom
testimony and the medical opinion testimony of treating physician Dr. Lance Cheung.
A. Plaintiff’s Subjective Symptom Testimony
Plaintiff contends that the ALJ erred by failing to identify specific, clear, and convincing
reasons supported by substantial evidence in the record to reject Plaintiff’s subjective symptom
testimony. There is a two-step process for evaluating a claimant’s testimony about the severity
and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). “First, the ALJ must determine whether the claimant has presented objective medical
evidence of an underlying impairment ‘which could reasonably be expected to produce the pain
or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the
claimant need not show that her impairment could reasonably be expected to cause the severity
of the symptom she has alleged; she need only show that it could reasonably have caused some

degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing

Bunnell, 947 F.2d at 345-46).
In her function report of September 30, 2016, Plaintiff described her conditions as
follows:
Unable to stand or walk for more than 30 minutes without
experiencing pain from my back to my toes. I have to stop and sit
after 2-3 blocks. I have swelling and numbness in my feet and legs
are weak. I had surgery on one knee and still have pain in both
knees.
AR 236. At the hearing, Plaintiff testified that she has pain from her back to her toes, spinal
stenosis in her back, two bad knees needing replacement, and diabetes neuropathy in her legs and
her feet. AR 569. The ALJ concluded that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, satisfying step one of the framework.
AR 18. The ALJ, however, determined that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were “not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision.” Id. The
ALJ identified two reasons for rejecting Plaintiff’s subjective symptom testimony—that it was
inconsistent with her activities of daily living and that it was unsupported by the objective

medical evidence.2 AR 19.
1. Daily Living Activities
Daily living activities may provide a basis for discounting subjective symptoms if the
plaintiff’s activities either contradict his or her testimony or meet the threshold for transferable
work skills. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn, 495 F.3d at 639.
For daily activities to discount subjective symptom testimony, the activities do not need to be
equivalent to full-time work; it is sufficient that the plaintiff’s activities “contradict claims of a
totally debilitating impairment.” Molina, 674 F.3d at 1113. A claimant, however, need not be
utterly incapacitated to receive disability benefits, and completion of certain routine activities is
insufficient to discount subjective symptom testimony. See id. at 1112-13 (noting that a

“claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks
omitted)); Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“One does not need to be

2 The Commissioner argues that additional reasons were provided by the ALJ, but the
ALJ did not assert additional reasons for discounting Plaintiff’s testimony. The ALJ expressly
stated, both in beginning the analysis of Plaintiff’s subjective testimony and in concluding the
analysis of Plaintiff’s RFC, that the ALJ’s analysis was only based on objective medical
evidence and daily living activities. AR 19 (“As for the claimant’s statements about the intensity,
persistence, and limiting effects of her symptoms, they are not reliable because they are
unsupported by the objective medical evidence and contradicted by the claimant’s activities of
daily living.”); AR 22 (“In sum, the above residual functional capacity assessment is supported
by the objective medical evidence showing only mild and mild to moderate degenerative changes
and the claimant’s activities of daily living including providing child care for her grandchild.”).
‘utterly incapacitated’ in order to be disabled.”); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th
Cir. 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has carried on
certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise,
does not in any way detract from her credibility as to her overall disability. One does not need to
be ‘utterly incapacitated’ in order to be disabled.” (quoting Fair v. Bowen, 885 F.2d 597, 603

(9th Cir. 1989))); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (requiring the level of
activity be inconsistent with the plaintiff’s claimed limitations to be relevant to his or her
credibility and noting that “disability claimants should not be penalized for attempting to lead
normal lives in the face of their limitations”). Moreover, particularly with certain conditions,
cycles of improvement may be a common occurrence, and it is error for an ALJ to pick out a few
isolated instances of improvement over a period of months or years and to treat them as a basis
for concluding that a plaintiff is capable of working. See Garrison v. Colvin, 759 F.3d 995, 1017
(9th Cir. 2014).
The ALJ did not discuss specific activities that she found contradicted Plaintiff’s

subjective testimony in directly analyzing Plaintiff’s subjective testimony. See Brown-Hunter v.
Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (finding general rejection of claimant’s testimony was
insufficient and that ALJ committed legal error when she did not specify what testimony she
rejected and why). The ALJ did, however, mention some activities as contradicting subjective
testimony in discussing the medical evidence. See AR 20 (discussing the reports of Drs. Kehrli
and Davenport); AR 21 (discussing the opinion of Dr. Cheung). The ALJ noted that Plaintiff’s
ability to go grocery shopping, perform household chores, and watch her grandchild were
inconsistent with Plaintiff’s testimony regarding her limitations.
Plaintiff testified that she goes grocery shopping twice a month (AR 571), she takes a cab
to the grocery store (AR 562), she uses a motorized cart and can shop for no more than one hour,
and if no cart is available she can shop for no more than 30 minutes and would have severe
swelling in her feet the next day (AR 303). Regarding household chores, she testified that she
tries to be as helpful as possible, such as folding clothes or chopping vegetables while sitting

down, that she can make simple meals for herself and her grandson, that she “fiddles” with her
potted plants, and that she can bathe herself. AR 570-71. Regarding watching her grandson, she
testified that she sits with him, watches cartoons, plays games, or he plays a video game.
AR 570. These activities are not inconsistent with her claimed limitations and are the types of
activities the Ninth Circuit has repeatedly held not to support discounting subjective testimony.
The ALJ erred by failing to identify specific, clear, and convincing reasons supported by
Plaintiff’s daily living activities to reject Plaintiff’s subjective symptom testimony.
2. Objective Medical Evidence
The ALJ’s decision contained a description of Plaintiff’s symptom allegations with a
detailed and specific recitation of the objective medical evidence. The ALJ then discounted

Plaintiff’s testimony with general statements that “the claimant’s statements concerning the
intensity, persistence and limiting effect of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record. . .” and “the claimant’s statements. . . are not
reliable because they are unsupported by the objective medical evidence and contradicted by the
claimant’s activities of daily living.” AR 18-19.
The Commissioner argues that the ALJ can rely on the objective medical evidence as
contradicting a plaintiff’s subjective testimony. The ALJ did not, however, provide specific
examples of where Plaintiff’s subjective symptom testimony conflicted with or contradicted the
objective medical evidence. The ALJ recounted the objective medical evidence and the sources
from which the evidence originated without identifying what pieces of evidence contradict
specific parts of Plaintiff’s subjective symptom testimony. Because the ALJ failed to connect the
objective medical evidence to Plaintiff’s subjective symptom testimony the ALJ did not provide
specific, clear, and convincing reasons by way of the objective medical evidence for rejecting
Plaintiff’s testimony.

The ALJ appears generally to have found that the objective medical evidence did not
support the severity of Plaintiff’s allegations. A lack of support in the objective medical evidence
cannot, by itself, support rejecting a plaintiff’s subjective symptom testimony. Robbins, 466 F.3d
at 883; see also 20 C.F.R. § 404.1529(c)(2) (noting that the Commissioner “will not reject your
statements about the intensity and persistence of your pain or other symptoms or about the effect
your symptoms have on your ability to work solely because the available objective medical
evidence does not substantiate your statements”). The ALJ erred by failing to identify specific,
clear, and convincing reasons supported by the objective medical evidence to reject Plaintiff’s
subjective symptom testimony.

B. Medical Opinion Testimony
The ALJ generally will give more weight to opinions from treating sources because they
have treated the claimant over a period of time and “bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone” or from one-time
evaluations performed by consulting physicians. 20 C.F.R. §§ 404.1527(c), 416.927(c)(2). If a
treating physician’s medical opinion is not inconsistent with other evidence in the record and is
supported by medical findings, the treating physician’s opinion should be given controlling
weight. See Holohan v. Masasnari, 246 F.3d 1195, 1202 (9th Cir. 2001). In the hierarchy of
medical evidence, the opinion of a treating physician is entitled to greater weight than that of an
examining physician, which in turn is entitled to greater weight than that of a non-examining
physician. Garrison, 759 F.3d at 1012.
The ALJ serves as “the final arbiter with respect to resolving ambiguities in the medical
evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008). In that capacity, the
ALJ is responsible for making credibility determinations, resolving conflicts in the medical

evidence, and resolving ambiguities. Vazquez, 572 F.3d at 591. “Where the treating doctor’s
opinion is not contradicted by another doctor, it may be rejected only for ‘clear and convincing’
reasons.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If, however, “a treating or
examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may reject it by
providing specific and legitimate reasons that are supported by substantial evidence.” Garrison,
759 F.3d at 1012 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).
However, “even 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.’” Garrison, 759 F.3d at 1012 (quoting Orn, 495 F.3d at 633).

Dr. Cheung was Plaintiff’s treating physician and saw Plaintiff three times before issuing
his medical opinion. Dr. Cheung opined that Plaintiff is limited to walking two city blocks
without severe pain, sitting for no more than 30 minutes at a time, standing for no more than 20
minutes at a time, two hours of sitting and standing/walking during an eight-hour workday, and
lifting 20 pounds only rarely. AR 496. Dr. Cheung also opined that Plaintiff needs to walk
around every 15-20 minutes during an eight-hour workday. Id.
The ALJ gave Dr. Cheung’s medical opinion testimony some weight. AR 21. The ALJ
discounted Dr. Cheung’s opinion in part because he had only seen Plaintiff three times, she had
not appeared at some appointments with Dr. Cheung, and she had failed to complete the physical
therapy he had prescribed. Id. Additionally, the ALJ noted that Dr. Cheung’s opinion is
inconsistent with the objective medical evidence and Plaintiff’s daily living activities. Id.
The ALJ failed to provide specific and legitimate reasons that are supported by
substantial evidence for giving little weight to the medical opinion testimony of Dr. Cheung. The
ALJ stated that Dr. Cheung’s treatment note saying that Plaintiff requires a cane for pain and

weakness is contradicted by the March 26, 2018 treatment notes of Dr. Anton Lotman. AR 513.
The ALJ referred to these treatment notes to dispute Dr. Cheung’s opinion that Plaintiff requires
a cane because the notes state that Plaintiff can control some of her pain by taking Cymbalta 60
mg twice daily, gabapentin 300 mg three times a day, and Capsaicin cream twice a day. Id. The
ALJ further chose to give little weight to Dr. Cheung’s opinion because, during an appointment
with Dr. Cheung, the Plaintiff noted that her back pain was reduced with physical therapy and
that her medication was helping to reduce her foot pain at night. AR 21.
The ALJ’s findings that the opinion of Dr. Cheung is inconsistent with the treatment
notes of either Dr. Lotman or Dr. Cheung’s own treatment notes are not specific and legitimate

or supported by substantial evidence. The ALJ merely cited to the single treatment note of
Dr. Lotman and concluded that Plaintiff’s ability to control some of her pain refuted
Dr. Cheung’s opinion that Plaintiff requires a cane. Dr. Lotman’s treatment note, however,
makes no comment on Plaintiff’s pain levels or whether Plaintiff’s symptoms necessitate the use
of a cane. The ALJ does not address other contemporaneous evidence in the record that discusses
Plaintiff’s use of a cane. For example, during a January 12, 2018, visit to her orthopedic doctor
to discuss her “present illness” the doctor noted Plaintiff’s use of a cane and her statement that
her condition is “getting worse.” AR 503. An ALJ may not “cherry pick” evidence in the record.
Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016).
The ALJ also concluded that Dr. Cheung’s opinion is entitled to less weight because
Dr. Cheung himself noted that Plaintiff experienced improvements in her back pain after
participating in physical therapy. AR 21. Dr. Cheung, however, also noted that Plaintiff’s knee
pain was a barrier to her continuing the physical therapy for her back. AR 515.
The ALJ further noted that Dr. Cheung’s medical opinion testimony is inconsistent with

Plaintiff’s daily living activities as reported on her function report and as testified to at the
hearing. The ALJ states that Dr. Cheung’s medical opinion is inconsistent with Plaintiff’s daily
living activities because Plaintiff is capable of grocery shopping for herself and provides
childcare for her grandson. AR 21. For the same reasons Plaintiff’s daily living activities are not
inconsistent with her subjective symptom testimony, they are not inconsistent with Dr. Cheung’s
opinion. The ALJ failed to specifically identify which aspects of Dr. Cheung’s medical opinion
testimony are inconsistent with Plaintiff’s function report and testimony and the type of activities
in which Plaintiff engaged are not inconsistent with the functionality to which Dr. Cheung
opined.

The ALJ’s reasons for discounting Dr. Cheung’s medical opinion are not specific and
legitimate and are not supported by substantial evidence. Thus, the ALJ erred in discounting
Dr. Cheung’s opinion.
C. Remand
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
utility of further proceedings. A 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. Id. at 1100. 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).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison, 759 F.3d at 999. The Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. If the court finds such an error, it must next
review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential
factual matters have been resolved. In conducting this review, the
district court must consider whether there are inconsistencies
between the claimant’s testimony and the medical evidence in the
record, or whether the government has pointed to evidence in the
record that the ALJ overlooked and explained how that evidence
casts into serious doubt the claimant’s claim to be disabled. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
appropriate remedy and a reviewing court is not required to credit
claimant’s allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
their testimony.
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
marks omitted).
The ALJ committed reversible errors in assessing Plaintiff’s subjective symptom
testimony and Dr. Cheung’s medical opinion. The Court, however, does not find that the record
as a whole is fully developed and free from all conflicts and ambiguities. Accordingly, remand
for further proceedings is appropriate.
CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is REVERSED AND
REMANDED for further proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 1st day of October, 2020.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392484. Public record. Not legal advice.