Allen v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

GARTH A.,1 Case No. 6:19-cv-01592-SB

Plaintiff, OPINION AND ORDER

v.

ANDREW M. SAUL, Commissioner of

Social Security,

Defendant.

BECKERMAN, U.S. Magistrate Judge.

Garth A. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social

Security Administration’s (“Commissioner”) denial of his applications for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the

Social Security Act. The Court has jurisdiction to hear Plaintiff’s appeal pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3). For the reasons explained below, the Court reverses the

Commissioner’s decision and remands for an award of benefits.

1 In the interest of privacy, this opinion uses only the first name and the initial of the last

name of the non-governmental party in this case. Where applicable, this opinion uses the same

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

STANDARD OF REVIEW

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

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

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

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

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

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

1039 (9th Cir. 1995)).

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

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

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

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

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

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

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

(9th Cir. 2007)).

BACKGROUND

I. PLAINTIFF’S APPLICATIONS

Plaintiff was born in November 1965, making him forty-nine years old on November 2,

2015, the alleged disability onset date. (Tr. 36, 183.) Plaintiff received a GED and completed a

Certified Nursing Assistant (“CNA”) training program in 1990. (Tr. 232.) Plaintiff has past work

experience as a CNA, cashier, and dog food grinder. (Tr. 233.) In his applications, Plaintiff

alleges disability due to chronic obstructive pulmonary disease (“COPD”), asthma, emphysema,

congestive heart failure, edema, high blood pressure, bilateral hearing loss, respiratory issues,

chronic neck pain, numbness in his extremities, depression, and PTSD. (Tr. 231.)

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

on February 22, 2017, Plaintiff requested a hearing before an Administrative Law Judge

(“ALJ”). (Tr. 123.) Plaintiff and a vocational expert (“VE”) appeared and testified at an

administrative hearing held on July 25, 2018. (Tr. 32-55.) On October 24, 2018, the ALJ issued a

written decision denying Plaintiff’s applications. (Tr. 15-24.) On August 15, 2019, the Appeals

Council denied Plaintiff’s request for review, making the ALJ’s written decision the final

decision of the Commissioner. (Tr. 2-8.) Plaintiff now seeks judicial review of the ALJ’s

decision.

II. THE SEQUENTIAL PROCESS

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

gainful activity by reason of any medically determinable physical or mental impairment

which . . . has lasted or can be expected to last for a continuous period of not less than 12

months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential

process for determining whether an applicant is disabled within the meaning of the Social

Security Act.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five

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

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

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

claimant can perform other work that exists in significant numbers in the national economy. Id.

at 724-25.

The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari,

262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those

steps, the claimant is not disabled. Id. at 954. The Commissioner bears the burden of proof at

step five of the analysis, where the Commissioner must show the claimant can perform other

work that exists in significant numbers in the national economy, “taking into consideration the

claimant’s residual functional capacity, age, education, and work experience.” Tackett, 180 F.3d

at 1100. If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262

F.3d at 954.

III. THE ALJ’S DECISION

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

disabled. (Tr. 15-24.) At step one, the ALJ determined that Plaintiff had not engaged in

substantial gainful activity since November 2, 2015, the alleged disability onset date. (Tr. 17.) At

step two, the ALJ determined that Plaintiff suffered from the following severe, medically

determinable impairments: COPD; congestive heart failure; coronary artery disease; cervical

spine degenerative disease; and obstructive sleep apnea (Id.) At step three, the ALJ concluded

that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 19.) The

ALJ then concluded that Plaintiff had the residual functional capacity (“RFC”) to perform “light

work,” subject to the following limitations: (1) Plaintiff can “reach overhead bilaterally

occasionally”; (2) Plaintiff can “never climb ladders, ropes, or scaffolds”; and (3) Plaintiff “must

avoid dust, odors, fumes, and pulmonary irritants.” (Id.) At step four, the ALJ concluded that

Plaintiff was unable to perform his past relevant work. (Tr. 22.) At step five, the ALJ concluded

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

economy that he could perform, including work as: (1) a small products assembler I and II, and

(2) a counter clerk. (Tr. 23.)

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DISCUSSION

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

convincing reasons for discounting Plaintiff’s symptom testimony; and (2) specific and

legitimate reasons for discounting the opinion of Plaintiff’s treating physicians, Dr. Thomas

Pitchford (“Dr. Pitchford”) and Dr. Wojcieck Nowak (“Dr. Nowak”). As explained below, the

Commissioner’s decision is based on harmful legal error and not supported by substantial

evidence. The Court concludes that Plaintiff satisfies the credit-as-true standard, and therefore

remands for an award of benefits.

I. PLAINTIFF’S SYMPTOM TESTIMONY

A. Applicable Law

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

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

678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective

medical evidence of an underlying impairment ‘which could reasonably be expected to produce

the pain or other symptoms alleged.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)

(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). Second, “‘[i]f the

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

claimant’s testimony about the severity of the symptoms if she gives specific, clear and

convincing reasons for the rejection.’” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)

(quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).

Clear and convincing reasons for rejecting a claimant’s testimony “include conflicting

medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the

claimant’s testimony or between her testimony and her conduct, daily activities inconsistent with

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

and effect of the symptoms complained of.” Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL

2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th

Cir. 2008), Lingenfelter, 504 F.3d at 1040, and Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th

Cir. 1997)).

B. Analysis

There is no evidence of malingering here and the ALJ determined that Plaintiff provided

objective medical evidence of underlying impairments which might reasonably produce the

symptoms alleged. (See Tr. 20, finding that Plaintiff’s “medically determinable impairments

could reasonably be expected to cause some of the alleged symptoms”). The ALJ was therefore

required to provide specific, clear, and convincing reasons for discrediting Plaintiff’s symptom

testimony. See Ghanim, 763 F.3d at 1163. The ALJ failed to do so here.

The ALJ discounted Plaintiff’s testimony on the ground that it conflicted with the

objective medical evidence. (See Tr. 20, finding that Plaintiff’s symptoms are “not entirely

consistent with the medical evidence”). The Ninth Circuit has held that it is appropriate to

discount a claimant’s testimony based on inconsistencies with, among other things, “the

objective medical evidence[.]” Eblen v. Saul, 811 F. App’x 417, 420 (9th Cir. 2020) (citing

Tommasetti, 533 F.3d at 1039).

However, an ALJ may not reject a claimant’s pain testimony merely because the

testimony appears disproportionate to the objective medical evidence. See Burch, 400 F.3d at

680 (“[A]n ALJ may not reject a claimant’s subjective complaints based solely on a lack of

medical evidence to fully corroborate the alleged severity of pain.”). Here, the only reason the

ALJ cited to discount Plaintiff’s testimony is its inconsistency with the medical evidence. (Tr.

20-21; see also Def.’s Br. at 2-3, acknowledging that the ALJ discounted Plaintiff’s subjective

symptom testimony due to alleged inconsistencies with the medical evidence in the record). Even

if the objective medical evidence is inconsistent with Plaintiff’s proffered symptoms, the ALJ

may not rely on a lack of objective medical evidence as the sole reason to discredit his testimony.

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

objective medical evidence cannot be the sole reason to discredit claimant’s testimony,” and

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

claimant’s testimony) (citation omitted). Accordingly, the Court finds that the ALJ erred in

discounting Plaintiff’s testimony. Cf. Heltzel v. Comm’r of Soc. Sec. Admin., No. 19-1287, 2020

WL 914523, at *4 (D. Ariz. Feb. 26, 2020) (“Because the ALJ’s other reasons for rejecting

Plaintiff’s testimony were legally insufficient, a mere lack of objective support, without more, is

insufficient to reject Plaintiff’s testimony.”).

II. MEDICAL OPINION EVIDENCE

A. Applicable Law

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

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

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

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

doctor, the ‘[ALJ] must determine credibility and resolve the conflict.’” Id. (quoting Thomas v.

Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002)). “An ALJ may only reject a treating physician’s

contradicted opinions by providing ‘specific and legitimate reasons that are supported by

substantial evidence.’” Ghanim, 763 F.3d at 1161 (quoting Ryan v. Comm’r of Soc. Sec., 528

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

“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and

thorough summary of the facts and conflicting clinical evidence, stating his interpretation

thereof, and making findings.’” Garrison, 759 F.3d at 1012 (quoting Reddick v. Chater, 157 F.3d

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

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

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

rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it,

asserting without explanation that another medical opinion is more persuasive, or criticizing it

with boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012-13

(citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir.1996)).

B. Analysis

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

discounting the opinions of his treating physicians, Drs. Pitchford and Nowak. (Pl.’s Opening Br.

at 15, 17-19.) The Court agrees.

1. Dr. Thomas Pitchford, M.D.

The record indicates that Dr. Pitchford served as Plaintiff’s treating physician for at least

seven years and saw him on a monthly basis. (Tr. 288, 943.) On January 22, 2018, Dr. Pitchford

completed a medical evaluation. (Tr. 943-47.) Dr. Pitchford stated that Plaintiff has been

diagnosed with neck pain and radiculopathy; Plaintiff experiences pain and numbness in his

neck; Plaintiff can walk ten blocks without rest or severe pain; Plaintiff can sit and stand for

sixty minutes at one time and eight hours total in an eight-hour workday; Plaintiff can

occasionally lift ten pounds or less, but never more; Plaintiff is limited to right-sided handling

twenty percent of the workday, right-sided fingering fifty percent of the workday, and right-sided

reaching for ten percent of the workday; and Plaintiff requires breaks after using his hands to

perform handling and fingering. (Tr. 943-46.) Dr. Pitchford declined to opine as to the number of

workdays Plaintiff would miss each month due to his impairments, and was unable to assess

whether Plaintiff needs to lie down or rest periodically during the day or whether Plaintiff

requires opportunities to shift positions at will. (Tr. 944-45, 947.)

The ALJ assigned “little weight” to Dr. Pitchford’s opinion, for two reasons: (1) “Dr.

Pitchford’s own treatment notes do not offer supporting objective evidence”; and (2) Dr.

Pitchford “provided no medical explanation or basis to support needing unscheduled breaks or

the other noted limits.” (Tr. 21.)

Dr. Pitchford’s medical opinion conflicts in part with the opinion of the state agency non-

examining doctor, Dr. Martin Kehrli (“Dr. Kehrli”), who found that Plaintiff can occasionally lift

and carry twenty pounds, can frequently lift and carry ten pounds, and that Plaintiff is not limited

in handling, fingering, or feeling. (Tr. 85-89, 97-98.) Due to the conflicting medical opinions, the

ALJ was required to provide specific and legitimate reasons for discrediting Dr. Pitchford’s

opinion. See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (“[I]f the treating doctor’s

opinion is contradicted by another doctor, the ALJ may discount the treating physician’s opinion

by giving specific and legitimate reasons that are supported by substantial evidence in the

record.”) (quotation marks citation omitted); Kilian v. Barhart, 226 F. App’x 666, 668 (9th Cir.

2007) (“Kilian’s contention that the ALJ erred when he discounted her treating physician’s

opinion is flawed because the treating physician’s opinion conflicted with that of a

nonexamining physician, and the ALJ supported his decision with specific and legitimate

reasons.”); see also Pl.’s Opening Br. at 14 (acknowledging that the “specific and legitimate

reasons” standard applies in this case).

The ALJ discounted Dr. Pitchford’s medical opinion because he found that his treatment

notes did not offer objective medical evidence in support of his opinion. (Tr. 21.) The ALJ’s

conclusion is not supported by substantial evidence in the record. Dr. Pitchford treated Plaintiff

for chronic neck pain and radiculopathy, and he specifically indicated that his medical opinion

pertained to that diagnosis. (Tr. 943.) Consistent with his opinion, Dr. Pitchford’s treatment notes

document daily neck pain, stiffness, muscle spasms, tenderness, and decreased range of motion,

as well as upper extremity paresthesias and radiating pain to his left shoulder, left arm, and left

hand. (Tr. 723, 726, 729, 734, 738, 755, 762, 766, 770, 773, 776, 778, 783, 786, 789, 791, 795,

802.) In addition, Dr. Pitchford’s treatment notes reflect consistent clinical findings of limited

cervical range of motion and cervical tenderness. (Tr. 724, 727, 730, 736, 740, 757, 764, 768,

772, 775, 778, 783, 785, 788, 791, 797, 804.) Indeed, not a single treatment note made by Dr.

Pitchford between the alleged disability onset date and Plaintiff’s hearing indicates a normal

range of cervical motion.

As Dr. Pitchford noted, Plaintiff underwent a left posterior C8 foraminotomy in 2015 to

treat his chronic neck and arm pain (Tr. 514-16), but his condition remained unchanged and he

was not responding to treatment. (Tr. 723-24, 729-31, 734, 738, 755, 766, 778, 783, 788-89, 791,

801; see also Tr. 520, one month after Plaintiff’s surgery, his surgeon noted “numbness in all 5

fingers of his left hand. . . . significant tenderness, and a positive Tinel sign over his left ulnar

nerve with some replication of the pain up into his shoulder blade”). A cervical MRI performed

in 2016 also corroborates Plaintiff’s persistent symptoms as documented by Dr. Pitchford,

showing multilevel disc osteophyte complex formation, multilevel moderate spinal canal

narrowing, and moderate to severe neuroforaminal narrowing asymmetric to the right, primarily

at cervical vertebrae C3-4 and C4-5. (Tr. 716.)

As the foregoing evidence demonstrates, Dr. Pitchford’s treatment notes offer objective

medical evidence in support of his opinion regarding Plaintiff’s limitations. Accordingly, this

was not a specific and legitimate reason for discounting Dr. Pitchford’s medical opinion.

The ALJ also discounted Dr. Pitchford’s opinion because he did not provide an

explanation for the limitations he assessed in his medical evaluation. (Tr. 21.) “An ALJ is not

required to take medical opinions at face value, but may take into account the quality of the

explanation when determining how much weight to give a medical opinion.” Ford, 950 F.3d at

1155. “While an opinion cannot be rejected merely for being expressed as answers to a check-

the-box questionnaire, ‘the ALJ may permissibly reject check-off reports that do not contain any

explanation for the bases of their conclusions.’” Id. (citing Popa v. Berryhill, 872 F.3d 901, 907

(9th Cir. 2017), and quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). However,

“even where a treating physician’s opinion is brief and conclusory, an ALJ must consider its

context in the record—especially the physician’s treatment notes.” Emily M K. v. Comm’r Soc.

Sec., No. C19-5384 TLF, 2020 WL 5869067, at *3 (W.D. Wash. Oct. 2, 2020) (citing Burrell v.

Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014)).

The Court agrees that Dr. Pitchford does not explain the basis for his opined limitations.

When asked to identify the “relevant clinical findings, test results, etc.” that support his opinion,

Dr. Pitchford wrote only “painful neck.” (Tr. 944.) Accordingly, this was a specific and

legitimate reason to discount Dr. Pitchford’s opinion. See Lora J. Green v. Saul, No. 19-16092,

2020 WL 7240448, at *1 (9th Cir. Dec. 9, 2020) (affirming the ALJ’s decision to assign “little

weight” to the claimant’s treating physician’s opinion where the physician’s check-box report

“lacked explanation and support”); Williams v. Comm’r Soc. Sec. Admin., No. CV-20-00136-

PHX-JAT, 2020 WL 7123010, at *4 (D. Ariz. Dec. 4, 2020) (finding that the “check-off report

identified the general documents on which the opinions were based but did not provide an

explanation of their conclusions” and that “this is a specific, legitimate reason to support giving

[the claimant’s treating physician’s opinion] ‘little weight’”); Erik F.N. v. Comm’r, Soc. Sec.

Admin., No. 1:19-CV-00778-HZ, 2020 WL 4207080, at *6 (D. Or. July 22, 2020) (holding that

the ALJ did not err in giving limited weight to the claimant’s treating physician’s opinion where

“he provided no support or explanation for the limitations he assessed in the check-box portion

of the report”).

However, “the ALJ is not allowed to disregard a treating physician’s opinion solely

because the opinion is brief and conclusory, the ALJ is required to consider a treating doctor’s

opinion within the context of the record.” Emily M K., 2020 WL 5869067, at *4 (citing Burrell,

775 F.3d at 1140). As explained above, the ALJ failed properly to consider Dr. Pitchford’s

treatment notes, which provide clinical findings and objective medical evidence of Plaintiff’s

symptoms and proffered limitations. Furthermore, the longitudinal record further corroborates

Dr. Pitchford’s opinion. (See Tr. 586, a January 2015 treatment note diagnosing Plaintiff with

right shoulder rotator cuff syndrome with a rotator cuff tear and moderately severe

acromioclavicular arthritis; Tr. 517, Plaintiff reporting to his surgeon one month after surgery

that his neck pain “radiates down his arm into his posterior arm and into his forearm extending

into all 5 fingers” and that “his numbness extends into all fingers of his hand rather than just the

fourth and fifth digits”; Tr. 706, a pain management specialist assessed Plaintiff for chronic neck

pain, cervical radiculopathy, and cervical facet syndrome, and noted tenderness in the lower

cervical spine and increased pain with range of motion exercises.) The ALJ did not address the

full context of the medical record, including Dr. Pitchford’s treatment notes containing

supportive clinical findings and objective evidence of Plaintiff’s limitations. Accordingly, the

ALJ erred in rejecting Dr. Pitchford’s opinion. See Burrell, 775 F.3d at 1140 (“Indeed, Dr.

Riley’s assessments are of the ‘check-box’ form and contain almost no detail or explanation. But

the record supports Dr. Riley’s opinions because they are consistent both with Claimant’s

testimony at the hearing and with Dr. Riley’s own extensive treatment notes which, as discussed

above, the ALJ largely overlooked. The ALJ clearly erred in his assessment of the medical

evidence, overlooking nearly a dozen reports related to head, neck, and back pain.”).

2. Dr. Wojciek Nowak, D.O.

Plaintiff also argues that the ALJ improperly rejected Dr. Nowak’s medical opinion. Dr.

Nowak began treating Plaintiff for his heart and lung conditions in October 2017. (Tr. 1205-06,

1219.) On June 13, 2018, Dr. Nowak completed a treating source statement, diagnosing Plaintiff

with paroxysmal atrial fibrillation, occlusive coronary artery disease with ongoing angina,

biventricular failure, sleep apnea, and tobacco abuse. (Tr. 1219-23.) Dr. Nowak noted that

Plaintiff’s atrial fibrillation and coronary artery disease were chronic conditions. (Id.) He opined

that Plaintiff would need to lie down or rest periodically when he experienced angina, typically

two or three times per week; Plaintiff could sit for sixty minutes at a time and his ability to stand

or walk depended on pace; Plaintiff would need “to avoid walking at a fast pace” and carrying

heavy objects; Plaintiff can lift and carry less than ten pounds frequently and up to twenty

pounds occasionally; Plaintiff would require an unscheduled ten-to-fifteen minute break during

an eight-hour workday; Plaintiff would need to periodically elevate his legs in a physical eight-

hour period; and Plaintiff’s conditions would cause him to miss three to four workdays a month.

(Tr. 1220-23.)

The ALJ gave Dr. Nowak’s opinion regarding Plaintiff’s exertional limitations “great

weight” because it was “consistent with Dr. Kehrli’s overall persuasive medical opinion.” (Tr.

22.) However, the ALJ accorded “little weight” to the remainder of Dr. Nowak’s medical

opinion, finding that “Dr. Nowak’s treatment notes do not support the level of severity opined

outside of exertion.” (Id.) Specifically, the ALJ noted that: (1) Plaintiff “presented with regular

cardiac rate and rhythm”; (2) Plaintiff had “no indication of diminished strength or gait deficit”;

(3) Plaintiff’s follow-up cardiac appointments “did not show signs of significant worsening” and

instead noted only “trivial” bilateral pitting edema and palpable bilateral radial pulses; and (4)

Plaintiff’s chest pain “continued to be resolved with nitroglycerin.” (Id.)

Like Dr. Pitchford, Dr. Nowak’s medical opinion conflicts in part with the opinion of the

state agency non-examining doctor, Dr. Kehrli. (See Tr. 85-89, 97-98.) Therefore, the ALJ was

required to provide specific and legitimate reasons for discrediting Dr. Nowak’s medical opinion.

The ALJ failed to do so here.

The ALJ offered only one reason for rejecting Dr. Nowak’s opinion: that Dr. Nowak’s

treatment notes were inconsistent with the degree of limitation identified in his medical source

statement. (Tr. 22.) An ALJ may reject a medical opinion that is unsupported by the treating

physician’s clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding

that a discrepancy between a treating physician’s opinion as to the claimant’s capabilities and his

observations and treatment notes is a “clear and convincing reason for not relying on the doctor’s

opinion”). Here, however, substantial evidence in the record does not support the ALJ’s

conclusion regarding Dr. Nowak’s opinion. As explained below, the ALJ highlighted the record

evidence that supports his decision to discount Dr. Nowak’s opinion, while ignoring observations

in the treatment notes that support Dr. Nowak’s opinions included in the medical source

statement. See Melissa B. v. Saul, No.1:19-cv-00363-SB, 2020 WL 5517260, at *3 (D. Or. Sept.

14, 2020) (holding that the ALJ erred by cherry-picking record evidence that supported his

decision to discount the treating physician’s opinion and “overlooked significant, probative

evidence that contradicted his findings”).

For example, the ALJ noted that Plaintiff had a normal cardiac rate and rhythm and

demonstrated full strength and normal gait. (Tr. 22, citing Tr. 1209-10.) However, at a more

recent visit, Dr. Nowak noted an abnormal cardiac rhythm, which included right-sided S4

gallops. (Tr. 1205.) Dr. Nowak also noted an abnormal EKG with an incomplete sinus rhythm

and left bundle branch block. (Id.) Contrary to the ALJ’s findings, Dr. Nowak indicated that

Plaintiff’s chest pains had increased in frequency and duration since his myocardial perfusion

imaging conducted the previous year, and that Plaintiff “is becoming more and more

symptomatic,” as evidenced by “episodes of atrial fibrillation which render him short of breath.”

(Id.) In addition, Dr. Nowak recommended that Plaintiff undergo a left heart catheterization,

which revealed the presence of a chronic total occlusion of the right coronary artery with

heterocollaterals from the left coronary tree. (Tr. 1211; see also Tr. 1212, noting that Plaintiff

“has had multiple episodes of chest pain since cardiac catherization was completed” and that he

experiences “frequent, almost daily episodes of chest pressure and heaviness occurring without

and with activity” and “increased frequency of palpitations with dizziness”).

The ALJ also points to a treatment note indicating that Plaintiff’s angina has been

“resolved” by taking medication. (Tr. 22.) It is well settled that references to signs of

improvement must be read in context of the overall diagnostic picture drawn by the treatment

provider. See Ghanim, 763 F.3d at 1161 (holding that an ALJ must read the claimant’s treatment

records “in context of the overall diagnostic picture,” including where the records “consistently

reveal that, despite some occasional signs of improvement” the claimant continued to experience

symptoms); Gagnon v. Colvin, No. 6:16-cv-00988-SB, 2016 WL 3450825, at *8-9 (D. Or. June

22, 2016) (explaining that signs of improvement must be read in the context of the overall

diagnostic picture the provider draws). It is true that Dr. Nowak’s treatment notes indicate that

Plaintiff showed some signs of improvement. For example, in a June 2018 treatment note, Dr.

Nowak noted that Plaintiff’s heart rate had been “controlled” with the use of beta blocker

therapy, and that the “frequency and severity of angina has improved by approximately 50%.”

(Tr. 1216.) However, in that same note, Dr. Nowak reported that Plaintiff had “significant

abnormalities” on a recent pulmonary function test, and that Plaintiff “continues to have multiple

episodes of angina [per week],” which is “lifestyle limiting.” (Tr. 1216.)

The record evidence demonstrates that the ALJ failed to evaluate Dr. Nowak’s opinion in

context of the overall diagnostic picture he drew. Instead, the ALJ appeared to selectively

consider the evidence that supports his decision and overlook the evidence that contradicted his

findings. See Adeena W. v. Saul, No. 6:19-cv-00051-SB, 2020 WL 2992191, at *5 (D. Or. June

4, 2020) (noting that ALJs cannot “cherry-pick” from the record to support their findings and

“ignore evidence that contradicts [their] findings”); Fanlo v. Berryhill, No. 17-cv-1617-LAB

(BLM), 2018 WL 1536732, at *10 (S.D. Cal. Mar. 28, 2018) (“The ALJ cherry-picked Plaintiff’s

progress notes . . . to support her conclusion that Plaintiff was stable and improving, but the ALJ

failed to acknowledge progress notes from the same time period that directly contradicted her

conclusion.”) Accordingly, the ALJ erred in rejecting Dr. Nowak’s opinion as unsupported by

his treatment notes.

3. Conclusion

For the reasons stated, the Court concludes that the ALJ failed to provide specific and

legitimate reasons, supported by substantial evidence, for discounting Drs. Nowak and

Pitchford’s medical opinions.

III. REMEDY

A. Applicable law

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

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

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

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

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

as-true standard is] met.” Garrison, 759 F.3d at 1021 (citations omitted).

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

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

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

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

true, the ALJ would be required to find the claimant disabled on remand.” Id. at 1020 (citations

omitted). Even when the credit-as-true standard is met, the court retains the “flexibility to

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

the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021.

B. Analysis

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

award of benefits is warranted.

First, the Court finds that the record has been fully developed. It includes over nine years

of treatment notes, testimony from Plaintiff about his symptoms and limitations, and opinions

from two treating doctors, Drs. Pitchford and Nowak, and a non-examining state physician. The

ALJ asked the VE hypothetical questions that addressed whether a worker with Plaintiff’s

limitations could sustain gainful employment, and the VE testified that Plaintiff’s limitations

would preclude work. (See Tr. 52-53, the ALJ asked the VE about the customary tolerances for

absences and routine rest break periods in the workplace, to which the VE responded that

employers will not tolerate missing more than one day per month of work, and that anyone

exceeding this customary limit would be unable to sustain competitive employment; see also Tr.

1223, Dr. Nowak reported that Plaintiff’s medical conditions would prevent him from

maintaining a regular work schedule of an eight-hour day, five days a week with normal breaks

of ten to fifteen minutes in the morning and afternoon, three to four days per month; Tr. 946, Dr.

Pitchford reported that Plaintiff will need to take two unscheduled breaks during an eight-hour

workday).

The Commissioner argues that the Court cannot direct a finding of disability where there

are “outstanding issues on which further proceedings in the administrative court are useful,” but

the Commissioner identifies no such issues. (Def.’s Br. at 4-5.) Ninth Circuit “precedent and the

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

allowing the ALJ to have a mulligan qualifies as a remand for a ‘useful purpose’ under the first

part of credit-as-true analysis.” Garrison, 759 F.3d at 1021; see also Benecke, 379 F.3d at 595

(“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win;

tails, let’s play again’ system of disability benefits adjudication.”); Moisa v. Barnhart, 367 F.3d

882, 887 (9th Cir. 2004) (“The Commissioner, having lost this appeal, should not have another

opportunity to show that [the claimant] is not credible any more than [the claimant], had he lost,

should have an opportunity for remand and further proceedings to establish his credibility.”).

Accordingly, the Court concludes that Plaintiff satisfies the first part of the credit-as-true

analysis.

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

rejecting Plaintiff’s testimony and Drs. Pitchford and Nowak’s medical opinions. Therefore,

Plaintiff satisfies the second part of the credit-as-true analysis.

Third, if the improperly discredited evidence were credited as true, the ALJ would be

required to find Plaintiff disabled because his impairments would cause him to exceed the

customary tolerance for absences. (See Tr. 52-53, the VE testified that employers will not

tolerate missing more than one day per month of work or exceeding customary break periods of

ten minutes in the morning and afternoon and a lunch break; see also Tr. 1223, Dr. Nowak

reported that Plaintiff’s medical conditions would prevent him from maintaining a regular work

schedule of an eight-hour day, five days a week with normal breaks of ten to fifteen minutes in

the morning and afternoon, three to four days per month; Tr. 946, Dr. Pitchford reported that

Plaintiff will need to take two unscheduled breaks during an eight-hour workday.).

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

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

benefits. Cf. Varela v. Saul, 827 F. App’x 713, 714 (9th Cir. 2020) (reversing district court

opinion remanding for further proceedings and instead remanding with instructions to “remand

to the Commissioner of Social Security for an award of benefits” where “crediting [the treating

physician’s] opinion as true, there is no doubt that [the claimant] was disabled”); Weirick v. Saul,

825 F. App’x 446, 450 (9th Cir. 2020) (reversing district court opinion affirming the denial of

benefits and instead remanding “with instructions to remand to the ALJ for calculation and

award of benefits” where “the vocational expert’s testimony establishes that if the improperly

discredited opinions of the treating physicians were credited as true, there would be no jobs in

the national economy that she could perform and ‘the ALJ would be required to find the claimant

disabled on remand’” (citing Garrison, 759 F.3d at 1020)); Smith v. Saul, 820 F. App’x 582, 586

(9th Cir. 2020) (reversing district court opinion affirming the denial of benefits and instead

remanding “with instructions to remand to the ALJ for calculation and award of benefits” where

“[t]he vocational expert concluded that an individual with [the claimant’s] limitations, as

described in the improperly discredited testimony of [the treating psychologist], the lay

witnesses, and [the claimant], would be unable to perform competitive employment”).

CONCLUSION

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

REMANDS this case for an award of benefits.

IT IS SO ORDERED.

DATED this 16th day of December, 2020.

HON. STACIE F. BECKERMAN

United States Magistrate Judge