Brunn v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NAN B.,1 Case No. 6:19-cv-1726-SI

Plaintiff, OPINION AND ORDER

v.

ANDREW M. SAUL, Commissioner

of Social Security,

Defendant.

Sherwood J. Reese and Drew L. Johnson, DREW L. JOHNSON PC, 1700 Valley River Drive,

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;

Jeffrey E. Staples, 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.

Plaintiff Nan B. brings this action pursuant to § 205(g) of the Social Security Act (the

Act), as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the

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 also uses a similar designation for a non-governmental party’s immediate family member.

Commissioner of the Social Security Administration (the Commissioner) denying Plaintiff’s

application for Disability Insurance Benefits under Title II of the Act. For the following reasons,

the Commissioner’s decision is REVERSED and REMANDED for calculation of benefits.

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, born in September 1956, is currently 64 years old and was 57 years old at the

alleged date of disability onset of January 6, 2014. She protectively filed a Title II application for

disability insurance benefits on July 14, 2015. Plaintiff alleged the following impairments:

peripheral neuropathy, fibromyalgia, progressive hearing loss, chronic neck and back pain,

arthritis, insomnia, anxiety-depression disorder, mobility issues, and alcoholism. AR 202. Her

claim was denied initially on September 23, 2016, and upon reconsideration on February 17,

2017. She appealed that decision and attended and testified at a hearing on July 11, 2018, before

Administrative Law Judge (ALJ) Mark Tripplet. After that hearing, the ALJ found Plaintiff not

to be disabled under the Act. The Appeals Council denied Plaintiff’s request for review, making

the ALJ’s decision the final decision of the Commissioner. Plaintiff seeks judicial review of that

decision.

B. The Sequential Analysis

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

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

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

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

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

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

§§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive.

20 C.F.R. §§ 404.1520(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 (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). 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

At step one of the sequential analysis, the ALJ found that Plaintiff met the insured status

requirements of the Social Security Act through June 30, 2021. AR 15. The ALJ found that

Plaintiff had not engaged in substantial gainful activity (SGA) since the date of alleged disability

onset, but noted that Plaintiff had worked continuously, at near substantial gainful activity levels,

for most of the period after her alleged onset date. AR 15-16. At step two, the ALJ found that

Plaintiff has the following severe impairments: fibromyalgia syndrome (Fibromyalgia),

vertebrogenic disorder, and depression/bipolar disorder. AR 16. At step three, the ALJ

determined that Plaintiff does not have an impairment that meets or medically equals one of the

listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 16-17.

The ALJ next determined Plaintiff’s RFC and found that Plaintiff could perform

medium work as defined in 20 CFR 404.1567(c) except the

individual can never climb ladders, ropes or scaffolds. The

individual can tolerate occasional exposure to loud noise, as

defined in Appendix D, Selected Characteristics of Occupations

(SCO), 1993 ed. The individual can tolerate no exposure to

workplace hazards such as unprotected heights, or exposed,

moving, machinery. The individual can perform simple, routine

tasks.

AR 17.

At step four, considering the testimony of a vocational expert regarding Plaintiff’s past

relevant work as actually and generally performed, the ALJ found that Plaintiff was able to

perform past relevant work as a barista. AR 25-26. The ALJ also made alternative findings at

step five that Plaintiff could perform other jobs existing in the national economy. AR 26-27.

Based on the testimony of the vocational expert, the ALJ found that Plaintiff could perform such

occupations as kitchen helper, laundry laborer, and dry helper. AR 27. The ALJ thus concluded

that Plaintiff was not disabled under the Act through the date of the ALJ’s decision. AR 27.

DISCUSSION

Plaintiff challenges: (1) the ALJ’s decision to disregard the determination and opinion of

examining physician Darrel Kauffman, M.D. that Plaintiff could only carry out light work; and

(2) the ALJ’s rejection of Plaintiff’s subjective symptom testimony. Each argument is addressed

in turn.

A. Opinion of Dr. Darrel Kauffman

Plaintiff challenges the ALJ’s discrediting of a portion of the opinion of examining

physician Dr. Kauffman without providing a sufficient legal basis. Specifically, the ALJ declined

to adopt Dr. Kauffman’s opinion and determination that Plaintiff was limited to lifting 20 pounds

occasionally and 10 pounds frequently. Instead, the ALJ included a limitation in the RFC to

lifting 50 pounds occasionally and 25 pounds frequently. The Commissioner argues in his

Response that the ALJ’s decision to increase Plaintiff’s lifting limitations from light to medium

was justified by the poor effort and inconsistencies that Dr. Kauffman noted. The Commissioner

does not argue that any of the other bases provided by the ALJ for his decision about Plaintiff’s

lifting limitation, including the prioritization of Dr. Chandra Basham, M.D.’s contradictory

opinion, were validly decided. Thus, those arguments are conceded.

The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted

opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the

opinion of an examining physician is contradicted by another physician’s opinion, the ALJ must

provide “specific, legitimate reasons” for discrediting the examining physician’s opinion. Lester

v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ errs by rejecting or assigning minimal

weight to a medical opinion “while doing nothing more than ignoring it, asserting without

explanation that another medical opinion is more persuasive, or criticizing it with boilerplate

language that fails to offer a substantive basis” for the ALJ’s conclusion. Garrison v. Colvin¸ 759

F.3d 995, 1013 (9th Cir. 2014); see also Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996)

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

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

and explain why they, rather than the doctors’, are correct.” Reddick v. Chater, 157 F.3d 715,

725 (9th Cir. 1998) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).

In his decision, the ALJ rejected the opinion of Dr. Kauffman, an examining physician,

with respect to Plaintiff’s lifting abilities. Dr. Kauffman conducted a physical examination of

Plaintiff and concluded that she is able to lift no more than 10 pounds regularly and 25 pounds

occasionally. AR 793. The ALJ, however, accepted Dr. Kauffman’s findings about Plaintiff’s

other limitations. The ALJ described the results of Dr. Kauffman’s exam as follows:

Darrel Kauffman, M.D., examined the claimant on January 19,

2017. A cervical x-ray obtained as part of the examination showed

degenerative changes throughout the cervical spine, with a

prominent degenerative change at the lateral aspect of the mid to

lower cervical areas. Vertebral body height and alignment was

otherwise satisfactory. A concurrent study of the lumbar spine

showed mild degenerative change. The claimant told Dr. Kauffman

that she had had neuropathy since 2005, for which she took Lyrica;

fibromyalgia diagnosed in 2004, for which she took Flexeril;

bilateral hearing loss, not affecting ordinary conversations; and

cervical and lumbar pain over the last 20 years, for which she had

had no imaging. . . . She was easily able to transfer from the chair

to the examination table. She sat comfortably, and was able to take

her shoes off without difficulty. She was able to walk to the

examination room without difficulty. . . . Range of motion was 90

degrees of forward flexion, and cervical flexion was to 50 degrees.

Straight leg raising was negative. No spasm was present. Reflexes

were normal. Dr. Kauffman noted that motor strength testing was

marked by poor effort and giving-way in the upper and lower

extremities. He suspected that strength should be 5/5 in the upper

and lower extremities; grip testing also should be 5/5. Sensation

was normal, with inconsistencies between objective and subjective

findings. Dr. Kauffman specified that sensation was intact in the

upper extremities. In the lower extremities, it was also intact, but

when he tested sensation in the legs, middle third and distal, the

claimant reported that it felt like tingling in both legs, including the

ankles and feet, both plantar and dorsal. Dr. Kaufmann added that

Waddell’s rotation test for nonorganic symptoms was positive in

the spine; light pressure on the head caused pain in her low back.

She also had pain to very light subcutaneous pressure in the back

area, and moved away with pain and moaning and groaning. He

observed that while she had giving away of all muscle groups,

including the legs and arms, there were no signs of atrophy, or any

observable etiology for giving away or weakness. Dr. Kauffman

concluded that the claimant could stand, walk, or sit for six hours a

day, and lift 20 pounds occasionally and 10 pounds frequently. She

had no manipulative limitations, and could frequently perform

postural activities such as bending and stooping, except that she

could never climb ladders, ropes, or scaffolds.

AR 18-19 (emphasis added). As Plaintiff argues, the ALJ failed to mention that Dr. Kauffman

also found all 18 fibromyalgia points to be positive. AR 793. Dr. Kauffman expressly noted

Plaintiff’s poor effort and factored this information, along with the rest of his findings, into his

conclusion regarding Plaintiff’s lifting limitations.

The ALJ accepted both Dr. Kauffman’s opinion and the identical conclusion of

Dr. Basham, a reviewing, non-examining physician, regarding Plaintiff’s limitations in sitting,

standing, and walking. The ALJ then stated: “However, Dr. Basham also found that the claimant

could lift 50 pounds occasionally and 25 pounds frequently, and this is more consistent with the

claimant’s performance by herself of all caregiving duties, regardless of testimony.” AR 23. The

ALJ followed this statement by noting, among other reasons not argued by the Commissioner,

“at most, [Plaintiff] has the questionable pain behavior cited by Dr. Kauffman.” AR 30. The ALJ

did not provide any explanation or reasoning showing that despite detailing Plaintiff’s

“questionable” pain behavior, Dr. Kauffman did not account for this behavior, or otherwise

factor it in to his conclusions regarding Plaintiff’s lifting limitations. Among the other test

results, including objective findings such as spinal imaging, Dr. Kauffman detailed his

observations about Plaintiff’s giving away and poor effort, and factored in all of his findings in

reaching his conclusion.

The Commissioner solely relies on the fact that Dr. Kauffman noted that Plaintiff

engaged in poor effort and made “moans” that were “out of proportion to what would be

expected” as the only valid basis for the ALJ to discount Dr. Kauffman’s opinion. The ALJ erred

in discounting Dr. Kauffman’s lifting limitations on that basis. See David D. v. Saul, 405 F.

Supp. 3d 868, 883 (D. Or. 2019) (finding that when a doctor’s report expressly acknowledged

potential exaggeration and factored it into the opinion, the potential exaggeration is not a proper

reason to discredit the doctor’s opinion).

B. Plaintiff’s Subjective Symptom Testimony

Plaintiff contends the ALJ committed legal error in discounting her subjective symptom

testimony on the basis of her: (1) documented inconsistencies on Dr. Kauffman’s exam;

(2) activities of daily living and job duties; (3) routine treatment; (4) alcohol and drug use; and

(5) lack of “acute” diagnosis. In response, the Commissioner argued that the ALJ was correct in

relying on Plaintiff’s documented inconsistencies on Dr. Kauffman’s exam. The Commissioner

did not argue that any of the other reasons given by the ALJ were valid, and thus conceded those

issues.

1. Legal Standard

A claimant “may make statements about the intensity, persistence, and limiting effects of

his or her symptoms.” SSR 16-3p, 2017 WL 5180304, at *6 (Oct. 25 2017).2 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, 80 F.3d at 1282. The ALJ found that Plaintiff does have an impairment that

could produce the symptoms alleged.

“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

2 Effective March 28, 2016, Social Security Ruling (SSR) 96-7p was superseded by SSR

16-3p, which eliminates the term “credibility” from the agency’s sub-regulatory policy. SSR 16-

3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 14166 (Mar.

16, 2016). Because, however, case law references the term “credibility,” it may be used in this

Opinion and Order.

Smolen, 80 F.3d at 1281) (emphasis added); see also Austin v. Saul, 818 F. App’x 725, 728 (9th

Cir. 2020) (finding that a claimant’s possible exaggerations regarding the severity of his

symptoms cannot be equated with affirmative evidence of malingering). 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) (emphasis added). Describing the evidence that suggests complaints are not

credible, but not connecting that evidence to specific portions of a plaintiff’s symptom

testimony, is insufficient even if the relevant testimony seems obvious. Ammie B. v. Saul, 2020

WL 1984894, at *10 (D. Or. Apr. 27, 2020) (citing Bray, 554 F.3d at 1226). The reasons given

for discrediting symptom testimony must be “sufficiently specific to permit the reviewing court

to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v.

Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell, 947 F.2d at 345-46). The ALJ may not

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

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

(9th Cir. 2006).

Consideration of subjective symptom testimony “is not an examination of an individual’s

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

evaluating the intensity and persistence of symptoms. SSR 16-3p, available at 2017 WL

5180304, at *1-2. The Commissioner recommends that the ALJ examine “the entire case record,

including the objective medical evidence; an individual’s statements about the intensity,

persistence, and limiting effects of symptoms; statements and other information provided by

medical sources and other persons; and any other relevant evidence in the individual’s case

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

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

location, frequency and duration of symptoms, the impact of the symptoms on daily living

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

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

reports regarding the claimant’s history, treatment, responses to treatment, prior work record,

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

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

how consistent those statements are with the claimant’s statements about his or her symptoms

and other evidence in the file. See id. at *6-7.

2. Specificity of ALJ’s Opinion

The ALJ made two statements conveying his decision regarding Plaintiff’s subjective

symptom testimony. Before discussing her medical record, the ALJ stated:

The record shows that the claimant is somewhat impaired by her

medical disorders, but not substantially so. The claimant in

particular is unable to establish that while being able to work part

time at a physical job, she could not work full time. Many of the

claimant’s alleged symptoms are related to disorders such as

fibromyalgia, which are more than usually dependent on the

reliability of her reports of the extent and nature of symptoms such

as pain. However, the claimant is not wholly reliable in this

respect[.]

AR 18 (emphasis added). After concluding his discussion of Plaintiff’s medical record, the ALJ

concluded that

the claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms; to respond

to however, the claimant’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 this decision.

AR at 25 (emphasis added).

Among other testimony, Plaintiff testified about: (1) her need to take unscheduled rest

breaks during the workday and the pain and exhaustion she experiences after workdays as a

result of her back pain, which prevent her from working consecutive days; (2) her difficulty

lifting objects and carrying out manual labor; and (3) her difficulty sitting or standing for

sustained periods of time. The ALJ did not explain whether he rejected those, or any other,

statements and why any particular statement’s rejection supports his finding of Plaintiff’s ability

to maintain full time work. The ALJ must specifically discuss which testimony about what

limitations he is crediting or discrediting, and why. See, e.g., Brown-Hunter v. Colvin, 806 F.3d

487, 489 (9th Cir. 2015) (determining that a general rejection of claimant’s testimony was

insufficient and that the ALJ committed legal error when she did not specify what testimony she

rejected and why); Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom

testimony is not credible and what facts in the record lead to that conclusion.”); Dodrill, 12 F.3d

at 918 (determining that the ALJ “must state which pain testimony is not credible and what

evidence suggests the complaints are not credible”); Ammie B. v. Saul, 2020 WL 1984894, at *8

(D. Or. Apr. 27, 2020) (concluding that summarizing the medical record but failing to link it to

any specific testimony is legal error).

The ALJ did not identify which subjective symptom testimony was not credible. As

explained above, the ALJ’s most direct statement about his findings relating to Plaintiff’s

symptom testimony was that her testimony was not entirely consistent with the medical evidence

and other evidence “for the reasons explained in this decision.” AR 25. The ALJ did not specify

in that statement, or elsewhere, which statements concerning the intensity, persistence, and

limiting effects of Plaintiff’s symptoms the ALJ was discounting. Thus, the ALJ erred in his

general discounting of Plaintiff’s subjective testimony.

3. Whether the ALJ’s Reason was Clear and Convincing

Plaintiff objected to a number of bases for the rejection of her symptom testimony

articulated by the ALJ, and the Commissioner only defended one reason: documented

inconsistencies on Dr. Kauffman’s exam. Thus, that is the only reason considered in this Opinion

and Order. The ALJ did not clearly state how Dr. Kauffman’s documented inconsistencies

affected the ALJ’s decision about a specific piece of Plaintiff’s subjective symptom testimony

and how he drew a conclusion from that analysis. Instead, the ALJ made the broad

generalizations quoted above. As discussed above, such general assertions fail to meet the

standard for discrediting subjective symptom testimony.

Plaintiff argues in her reply that the Commissioner’s reliance on Plaintiff’s purported

“poor effort” and “exaggeration” during her examination with Dr. Kauffman is misplaced

because it fails to provide clear and convincing evidence sufficient to discount a claimant’s

testimony. Plaintiff first notes that the word “exaggeration” is nowhere in the record and that

Dr. Kauffman noted only that Plaintiff showed poor effort and that she moaned more than would

be expected. Plaintiff also points out that Dr. Kauffman specifically found all 18 fibromyalgia

points to be positive, and fibromyalgia is a syndrome that causes heightened pain. Plaintiff

argues that the record is replete with Plaintiff’s complaints about ongoing issues with pain,

exhaustion, and fatigue that are consistent with her testimony, and that the ALJ failed to connect

poor effort or moaning in one examination with Plaintiff’s testimony or the rest of the record.

Plaintiff concludes that that her poor effort and moaning in one examination is not clear and

convincing evidence to discount all of her subjective testimony.

The Court agrees that the ALJ has not clearly or convincingly applied his analysis of the

impact of Plaintiff’s behavior during Dr. Kauffman’s exam to his subjective symptom

evaluation. While the ALJ said Plaintiff was not “wholly reliable” he did not connect that lack of

“reliability” to a specific symptom testimony or a specific limitation. The ALJ may not make

sweeping assessments of a claimant’s overall character or truthfulness. SSR 16-3p, 2017

WL 5180304, at *11 (Oct 25, 2017). As it is written, this is precisely what the ALJ’s opinion

does. By stating that Plaintiff’s general reliability is at issue, rather than analyzing the reported

instances of poor effort in Dr. Kauffman’s examination and how those relate to the specific

symptoms alleged, the ALJ committed the type of over-arching credibility finding that SSR 16-

3p prohibits, and which is precluded under Ninth Circuit precedent. See Brown-Hunter, 806 F.3d

at 489; Smolen, 80 F.3d at 1284; Dodrill, 12 F.3d at 918. Because the ALJ failed to explain

which symptoms are not credited and what evidence supports this discrediting, the ALJ

committed legal error in his evaluation of Plaintiff’s subjective symptom testimony.

C. Remedy

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 v. Massanari, 246 F.3d

1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to the

agency for additional investigation or explanation, a court has discretion to remand for

immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-

1100 (9th Cir. 2014). The issue turns on the utility of further proceedings. A court may not award

benefits punitively and must conduct a “credit-as-true” analysis on evidence that has been

improperly rejected by the ALJ to determine if a claimant is disabled under the Social Security

Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

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

Garrison, 759 F.3d at 999. The court first determines whether the ALJ made a legal error and

then reviews the record as a whole to determine whether the record is fully developed, the record

is free from conflicts and ambiguities, and there is any useful purpose in further proceedings.

Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has been fully

developed and there are no outstanding issues left to be resolved does the district court consider

whether the ALJ would be required to find the claimant disabled on remand if the improperly

discredited evidence were credited as true. Id. If so, the district court can exercise its discretion

to remand for an award of benefits. Id. The district court retains flexibility, however, and is not

required to credit statements as true merely because the ALJ made a legal error. Id. at 408.

Under the credit-as-true rule, erroneously discredited claimant testimony is presumed to

be true

where there are no outstanding issues that must be resolved before

a proper disability determination can be made, and where it is clear

from the administrative record that the ALJ would be required to

award benefits if the claimant’s excess pain testimony were

credited, we will not remand solely to allow the ALJ to make

specific findings regarding that testimony. Rather, we will . . . take

that testimony to be established as true.

Garrison, 759 F.3d at 1019 (quoting Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396,

1401 (9th Cir. 1988).

As discussed above, the ALJ committed legal error in his rejection of Dr. Kauffman’s

lifting limit and in his rejection of all of Plaintiff’s subjective symptom testimony. The ALJ

asked the Vocational Expert (VE) to identify, given Plaintiff’s age, education, and RFC, which

past jobs she could carry out as SGA. The only past relevant work that someone of Plaintiff’s

age, education, experience, and with an ability to complete simple routine tasks at a medium

level of exertion, was barista. AR 70-71. The ALJ next asked the VE about the availability of

other jobs in the national economy that matched Plaintiff’s RFC as described above. The VE

identified three such jobs. AR 71. The ALJ did not ask the VE about jobs in the national

economy that matched the other elements of Plaintiffs RFC, but had a light level of exertion.

Because the ALJ declined to get that information from the VE, there is no evidence in the record

to support the existence of jobs Plaintiff could do if her lifting capacity is designated as light and

her limitations on movement, age, education, and her ability to carry out simple, routine tasks

remains the same. This error, on its own, would require further fact finding regarding whether

there are jobs available in the national economy for which she is qualified. The Court next,

however, considers the ALJ’s error relating to Plaintiff’s subjective symptom testimony.

As the Ninth Circuit has explained, improperly discredited symptom testimony may not

be reconsidered on remand solely to permit the ALJ to make sufficiently specific findings.

Plaintiff’s testimony included, among other symptoms, her need for unscheduled and frequent

rest breaks during her workday. Without a wholesale disregard for Plaintiff’s testimony, the

Court has no reason to find that Plaintiff’s poor effort or giving way in her extremities during

Dr. Kauffman’s exam invalidates this symptom testimony.

During the July 2018 hearing, the ALJ did not ask the VE questions about Plaintiff’s

work opportunities should she require unscheduled breaks during the workday. Plaintiff’s

attorney, however, asked the VE this question. The VE testified that two unscheduled additional

ten-minute breaks would preclude all employment. AR 72-73. Upon Plaintiff’s attorney’s

questioning, the VE also stated that a one-hour break, in addition to regularly scheduled lunch

and rest breaks, would preclude employment. AR 73.

Thus, if Plaintiff’s testimony regarding her rest break needs is credited as true, she would

be precluded from all SGA. This finding renders moot the potential for Plaintiff to carry out

SGA should Plaintiff’s RFC be modified to a light exertion level. Taking this into account, and

reviewing the record as a whole, it is fully developed and free from conflicts and ambiguities

such that there is not a useful purpose for further proceedings. Crediting Plaintiff’s improperly

rejected symptom testimony as true, the record clearly shows that Plaintiff may not carry out

SGA and thus is disabled under the meaning of the Act and accordingly entitled to benefits.

CONCLUSION

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

REMANDED for calculation of benefits.

IT IS SO ORDERED.

DATED this 12th day of November, 2020.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge