# Molenkamp v. Commissioner Social Security Administration

> District Court, D. Oregon · December 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10392737

## Case

- **Court:** District Court, D. Oregon
- **Decided:** December 21, 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/10392737

## How later opinions describe it (automated extraction)

- explaining that a claimant’s activities have “bearing on [his or her] credibility” if the reported “level of activity” is “inconsistent with [the claimant’s] claimed limitations”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JON M.,1 Case No. 3:19-cv-01903-SB

Plaintiff, OPINION AND ORDER

v.

ANDREW M. SAUL, Commissioner of Social
Security,

Defendant.

BECKERMAN, U.S. Magistrate Judge.
Jon M. (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security’s
(“Commissioner”) denial of his application for Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act. The Court has jurisdiction to hear Plaintiff’s appeal pursuant to 42
U.S.C. § 405(g). For the reasons that follow, the Court reverses the Commissioner’s decision
because it is based on harmful legal error and not supported by substantial evidence in the
record.

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 APPLICATION
Plaintiff was born in June 1959, making him fifty-two years old on April 30, 2012, his
alleged disability onset date.2 (Tr. 113, 127.) Plaintiff has a general equivalency degree and

2 To be eligible for DIB, “a worker must have earned a sufficient number of [quarters of
coverage] within a rolling forty quarter period.” Herbert v. Astrue, No. 07-cv-01016, 2008 WL
4490024, at *4 n.3 (E.D. Cal. Sept. 30, 2008). Workers accumulate quarters of coverage based
on their earnings. Id. Typically, “the claimant must have a minimum of twenty quarters of
coverage [during the rolling forty quarter period to maintain insured status]. . . . The termination
of a claimant’s insured status is frequently referred to as the ‘date last insured’ or ‘DLI.’” Id.
completed some college coursework, and he has past relevant work as a sales and operations
manager. (Tr. 33, 52, 65.) In his application, Plaintiff alleged disability due to back and knee
injuries, hearing deficits, depression, anxiety, asthma, diabetes, and a “[p]sychosocial disorder.”
(Tr. 114, 128.)
The Commissioner denied Plaintiff’s application initially and upon reconsideration, and

on December 13, 2016, Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). (Tr. 23.) Plaintiff and a vocational expert (“VE”) appeared and testified at an
administrative hearing held on May 23, 2018. (Tr. 42-70.) On July 3, 2018, the ALJ issued a
decision denying Plaintiff’s application. (Tr. 23-33.) On April 19, 2019, the Appeals Council
denied Plaintiff’s request for review, making the ALJ’s written decision the final decision of the
Commissioner. (Tr. 1-7.) Plaintiff now seeks judicial review of the ALJ’s decision. (Compl. at 1-
2.)
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

(citations omitted). Thus, Plaintiff’s date last insured of December 31, 2013 (see Tr. 23) reflects
the date on which his insured status terminated based on the prior accumulation of quarters of
coverage. If Plaintiff established that he was disabled on or before December 31, 2013, he is
entitled to DIB. See Truelsen v. Comm’r Soc. Sec., No. 2:15-cv-02386, 2016 WL 4494471, at *1
n.4 (E.D. Cal. Aug. 26, 2016) (“To be entitled to DIB, plaintiff must establish that he was
disabled . . . on or before his date last insured.” (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th
Cir. 1999))).
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. 23-33.) At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since April 30, 2012, the alleged disability onset date. (Tr. 25.) At
step two, the ALJ determined that Plaintiff suffered from the following severe, medically
determinable impairments: “[D]egenerative joint disease knee and shoulder, degenerative disc
disease, and obesity[.]” (Tr. 25.) At step three, the ALJ concluded that Plaintiff did not have an
impairment that meets or equals a listed impairment. (Tr. 27.) The ALJ then concluded that
Plaintiff had the residual functional capacity (“RFC”) to perform light work, subject to these
limitations: (1) Plaintiff can “stand and walk [for] four hours total in an eight-hour workday,”
(2) Plaintiff can “sit for four hours in an eight-hour workday,” and (3) Plaintiff can “occasionally
climb, stoop, crouch, kneel, and crawl.” (Tr. 28.) At step four, the ALJ concluded that Plaintiff
was not disabled because he could perform his past work as a sales and operations manager.
(Tr. 33.)
DISCUSSION
In this appeal, Plaintiff argues that the ALJ erred by failing to provide: (1) specific, clear,

and convincing reasons for discounting Plaintiff’s symptom testimony; and (2) legally sufficient
reasons for discounting the opinions of Plaintiff’s treating physician, Ann Marie Paulsen, M.D.
(“Dr. Paulsen”), and the non-examining medical expert, Stephen Golub, M.D. (“Dr. Golub”).
(Pl.’s Opening Br. at 5, 9-10.) As explained below, the Court concludes that the Commissioner’s
decision is based on harmful legal error and not supported by substantial evidence in the record.
Accordingly, the Court reverses the Commissioner’s decision and remands this case for further
proceedings.
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. 29, the ALJ determined that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms”). The ALJ was
therefore required to provide specific, clear, and convincing reasons for discounting Plaintiff’s
testimony. See Ghanim, 763 F.3d at 1163. The Court concludes that the ALJ failed to meet that

standard here.
1. Plaintiff’s Reported Activities
First, the ALJ discounted Plaintiff’s testimony based on his reported activities. (See
Tr. 29-30, the ALJ stated that Plaintiff’s testimony is “not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision,” and then
twice emphasized that Plaintiff engaged in “a wide variety of activities,” such as walking “1/2 to
3/4 of a mile before needing to stop and rest,” preparing meals, watering a garden, shopping in
stores “1-2 times a week,” and performing “physical exercises and stretching exercises most
days”).
It is well settled that an ALJ may discount a claimant’s testimony based on activities that
are incompatible with the claimant’s testimony regarding the severity of his symptoms. See
Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014) (“Inconsistencies between a claimant’s
testimony and the claimant’s reported activities provide a valid reason for an adverse credibility
determination.”); Garrison, 759 F.3d at 1016 (explaining that a claimant’s activities have

“bearing on [his or her] credibility” if the reported “level of activity” is “inconsistent with [the
claimant’s] claimed limitations”); Ghanim, 763 F.3d at 1165 (“Engaging in daily activities that
are incompatible with the severity of symptoms alleged can support an adverse credibility
determination.”). Even where the claimant’s “activities suggest some difficulty functioning, they
may be grounds for discrediting the claimant’s testimony to the extent that they contradict claims
of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)
(citation omitted).
Citing the Ninth Circuit’s decision in Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th
Cir. 2015), Plaintiff argues that the ALJ erred in discounting his testimony based on his reported

activities because the ALJ failed to specify which testimony he found not credible and why. (See
Pl.’s Opening Br. at 13, arguing that the ALJ in Brown-Hunter “did exactly what the ALJ did in
this case”). In Brown-Hunter, the Ninth Circuit held that the ALJ committed reversible error
because “the ALJ never identified which testimony she found not credible, and never explained
which evidence contradicted that testimony.” 806 F.3d at 494 (citing Burrell, 775 F.3d at 1138).
The Ninth Circuit explained that “the ALJ must provide some reasoning in order for [a reviewing
court] to meaningfully determine whether the ALJ’s conclusions were supported by substantial
evidence,” and that “inconsistencies identified independently by [a reviewing court] cannot
provide the basis upon which [it] can affirm [an] ALJ’s decision.” Id. at 494-95 (citation
omitted).
The Commissioner’s response does not address or attempt to distinguish Plaintiff’s case
from Brown-Hunter. Instead, the Commissioner argues that the ALJ “did not arbitrarily discredit
Plaintiff’s testimony” because the ALJ “summarized” Plaintiff’s testimony before “contras[ting]

[Plaintiff’s] allegations with the ‘wide variety of activities’ Plaintiff performed in spite of his
impairments.” (Def.’s Br. at 2, quoting Tr. 29). The Commissioner then compares portions of
Plaintiff’s testimony to some of Plaintiff’s reported activities. (See Def.’s Br. at 3.)
Contrary to the Commissioner’s argument, the ALJ never compared and contrasted
Plaintiff’s activities and testimony, let alone explain how any activity undermined Plaintiff’s
testimony. (See Tr. 29-30). That alone amounts to reversible error. See Brown-Hunter, 806 F.3d
at 494-95 (“We cannot review whether the ALJ provided specific, clear, and convincing reasons
for rejecting [the claimant’s symptom] testimony where, as here, the ALJ never identified which
testimony she found not credible, and never explained which evidence contradicted that

testimony. This falls short of meeting the ALJ’s responsibility to provide the reason or reasons
upon which [her] adverse determination is based.”) (citations, ellipses, and quotation marks
omitted).
The ALJ’s error is also significant because it is not clear to the Court how the activities
the ALJ identified are inconsistent with Plaintiff’s testimony. For example, the ALJ noted that
Plaintiff’s function report indicates that he can shop in stores on a weekly basis for food and
prescriptions and “walk 1/2 to 3/4 of a mile [on flat ground] before needing to stop and rest [for
five to twenty minutes]” (Tr. 30, 246-48), but the ALJ did not point to any evidence that conflicts
with Plaintiff’s function report or explain why Plaintiff’s ability to shop in stores and walk up to
three-quarters of a mile undermines his claim of disability. (Cf. Tr. 246, Plaintiff’s function
report indicates that Plaintiff “occasionally” cannot walk due to back spasms, pain in his back,
hips, and legs, and needs to use pain medication that causes Plaintiff to be “to[o] tired and
unstable”; Tr. 490, Plaintiff informed his medical provider that walking can “increase[] [his]
symptoms”).

The ALJ also noted that Plaintiff reported that he “prepared meals most days” (Tr. 30),
but Plaintiff also reported that cooking is “painful” and it takes him “hours” and “[t]oo . . . long”
to prepare “anything” unless he “can stand up to do it.” (Tr. 245.) Additionally, the ALJ noted
that Plaintiff reported that he “watered the garden” and performed “physical exercises and
stretching exercises most days.” (Tr. 30.) Plaintiff, however, reported that it “[t]akes [him] hours
to do any[]” house or yard work, he “frequently ha[s] to stop [and] come back” to any house or
yard work, and everything he does “takes a toll” and makes him feel “miserable.” (Tr. 245.) As
to Plaintiff’s performance of physical and stretching exercises, the record reflects that Plaintiff’s
exercises are part of his physical therapy regimen and that Plaintiff reported that “20+ years” of

physical therapy has not resulted in “significant changes.” (Tr. 244, 490; see also Tr. 619,
Plaintiff does “gentle stretching” and Plaintiff’s physical therapy exercises “hurt[] his back more
than [they] help[]”). It is not clear how these reported activities undermine Plaintiff’s symptom
testimony.
For these reasons, the ALJ erred in discounting Plaintiff’s testimony based on his
reported activities.
2. Conflicting Medical Evidence
The ALJ also discounted Plaintiff’s testimony on the ground that it was inconsistent with
the objective medical evidence. (See Tr. 29-30, the ALJ found that Plaintiff’s testimony is “not
entirely consistent with the medical evidence” and later emphasized Plaintiff’s physical exams
showed that he was “alert and in no apparent distress,” his “gait was non-antalgic with normal
coordination,” and he was “able to transfer independently to and from a cha[i]r”). As discussed
above, the ALJ erred in discounting Plaintiff’s testimony based on his reported activities. Thus,
even if the objective evidence does not support Plaintiff’s testimony, the ALJ may not rely on
that as the sole reason to discredit Plaintiff’s testimony. See Taylor v. Berryhill, 720 F. App’x

906, 907 (9th Cir. 2018) (explaining that a “lack of objective medical evidence cannot be the sole
reason to discredit claimant testimony,” and therefore holding that the ALJ failed to provide
clear and convincing reasons for discounting the claimant’s testimony about her mental and
physical impairments). Accordingly, the ALJ erred in discounting Plaintiff’s testimony. See
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.”).
The Courts also notes that the allegedly conflicting medical evidence that the ALJ

identified is unremarkable when compared to (1) an August 2013 magnetic resonance imaging
(“MRI”) of Plaintiff’s lumbar spine, (2) the ALJ’s comments about Plaintiff’s August 2013 MRI,
and (3) Dr. Golub’s comments about Plaintiff’s August 2013 MRI. (See Tr. 30, 1289-90,
Plaintiff’s August 2013 MRI showed that he suffers from “moderately severe degenerative disc
disease at the L4-5 level with severe right and moderately severe left lateral recess stenosis and
compression of [the] descending bilateral L5 nerve roots,” “[m]oderately severe degenerative
disc disease at the L5-S1 level with associated mild bilateral L5 foraminal narrowing,” “[f]acet
arthropathy and effusions mild to moderate at the L3-4, L4-5 and L5-S1 levels,” “[s]evere
degenerative disc disease [at the] L2-3 [level] with left-sided and centralized predominance of
reactive endplate changes,” and mild arthrosis in the sacroiliac joints; Tr. 48, the ALJ stated at
the hearing, “[I]f I’d gotten that [August 2013 MRI] report, and I was having concordant pain
issues [like Plaintiff], I would have . . . be[en] under the knife [for surgery] the next day.”;
Tr. 49, Dr. Golub stated that he did not “know what to make” of Plaintiff’s August 2013 MRI
because images taken several years after Plaintiff’s date last insured of December 31, 2013

showed “significant resolution [over a] three-year period,” but Dr. Golub added that the August
2013 MRI was “certainly significant” and suggested that Plaintiff might have suffered from
“significant symptomatology,” which “might require lying down, extra rest breaks, [and]
absences from work on bad days”).3
3. Conclusion
For these reasons, the Court concludes that the ALJ failed to provide clear and
convincing reasons, supported by substantial evidence, for discounting Plaintiff’s symptom
testimony. (Cf. Def.’s Br. at 2-3, arguing that the Court should affirm the ALJ’s decision to
discount Plaintiff’s symptom testimony based solely on the ALJ’s findings regarding Plaintiff’s
activities).

///
///

3 Dr. Golub also testified that he could not conclude that Plaintiff met or equaled a listed
impairment based solely on Plaintiff’s August 2013 MRI, because Plaintiff also needed to “have
something on exam” like a negative “straight leg raise” test or “diminished reflexes or sensory
decreases.” (Tr. 51.) Dr. Golub added that he “did not see” any of this type of evidence in the
records he reviewed before the hearing (i.e., Exhibits 1F through 29F or Tr. 351-1287) and
“apologize[d]” if he “missed it.” (Tr. 46, 51; Ct. Tr. Index at 2-4.) The record, however, shows
that Plaintiff’s August 9, 2013 straight leg raise and seated slump tests were “[p]ositive . . . on
the left.” (Tr. 638; Tr. 641, July 19, 2013, “Positive straight leg raise on the left. Positive seated
slump on the left.”; Tr. 680, April 13, 2012, describing a positive “straight leg raise bilaterally at
15 degrees”).
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 legally sufficient reasons, supported by
substantial evidence, for discounting the opinions of the non-examining medical expert,
Dr. Golub, and Plaintiff’s treating physician, Dr. Paulsen.
1. Dr. Golub
As discussed, Dr. Golub testified that he did not “know what to make” of Plaintiff’s

August 2013 MRI because images taken several years later showed “significant resolution [over
a] three-year period,” but Dr. Golub also noted that the August 2013 MRI was “certainly
significant” and suggested that Plaintiff might have suffered from “significant symptomatology,”
which “might require lying down, extra rest breaks, [and] absences from work on bad days.”
(Tr. 49.) Dr. Golub also testified that he could not conclude that Plaintiff met or equaled a listed
impairment based only on his August 2013 MRI, because Plaintiff also needed to “have
something on exam” like a negative “straight leg raise” test or “diminished reflexes or sensory
decreases.” (Tr. 51.) Dr. Golub added that he “did not see” any of this type of evidence in the
records he reviewed before the hearing (i.e., Exhibits 1F through 29F or Tr. 351-1287) and
“apologize[d]” if he “missed it.” (Tr. 46, 51; Ct. Tr. Index at 2-4.)

The ALJ assigned only “moderate weight” to Dr. Golub’s opinion. (Tr. 31.) The ALJ
discounted Dr. Golub’s opinion because he “did not provide a clear residual functional capacity
regarding [Plaintiff’s] ability to work prior to his date last insured [of December 31, 2013].”
(Tr. 31.)
Plaintiff argues that the ALJ erred in discounting Dr. Golub’s opinion because the ALJ’s
reason for doing so “does not speak to [Dr. Golub’s] confirmation of Plaintiff’s pain and need to
lie down, take breaks, and miss work in the context of the 2013 MRI findings.” (Pl.’s Opening
Br. at 10.) The Commissioner responds that Plaintiff “mischaracterizes” Dr. Golub’s hearing
testimony and “ignores Dr. Golub’s later explanation that [Plaintiff’s] imaging [alone] was
insufficient to draw any conclusions, and [that] more [exam] information was needed.” (Def.’s
Br. at 5.)
The Court concludes that the ALJ failed to identify legally sufficient reasons, supported
by substantial evidence, for discounting Dr. Golub’s opinion. In the Court’s view, Plaintiff did

not mischaracterize Dr. Golub’s testimony or ignore any explanation from Dr. Golub about
Plaintiff’s MRI results. To be sure, the questions the ALJ posed to Dr. Golub were focused
almost exclusively on whether Plaintiff met or equaled a listed impairment between April 30,
2012, the alleged onset date, and December 31, 2013, the date last insured. (See Tr. 46-51.)
Dr. Golub explained that it was “tough to answer” and “hard to draw [a] conclusion” about
whether Plaintiff met or equaled a listing “prior to the end of 2013,” because such a finding
cannot be based “only on MR[I] findings” and Dr. Golub “did not see” any supporting evidence
“like [a negative] straight leg raise [test] or diminished reflexes or sensory decreases.” (Tr. 49-
51.)

The record, however, demonstrates that Dr. Golub overlooked relevant evidence. (See
Tr. 638, August 9, 2013, Plaintiff’s straight leg raise and seated slump tests were “[p]ositive” on
the left side; Tr. 641, July 19, 2013, “Positive straight leg raise on the left. Positive seated slump
on the left.”; Tr. 680, April 13, 2012, describing a positive “straight leg raise bilaterally at 15
degrees”). That is significant because neither the ALJ nor Plaintiff’s hearing counsel directed
Dr. Golub to this evidence, and because Dr. Golub responded in the affirmative when the ALJ
specifically inquired whether Plaintiff’s August 2013 MRI results were consistent with evidence
indicating that Plaintiff needed to lie down, take extra rests breaks, and be absent “from work on
bad days,” which are functional limitations that would impact his ability to sustain full-time
work. (Tr. 50.)
In summary, the Court concludes that the ALJ failed to identify legally sufficient reasons,
supported by substantial evidence, for discounting Dr. Golub’s opinion. See, e.g., Tam Phan
Nguyen v. Berryhill, No. 17-cv-01406, 2018 WL 4214478, at *2 (S.D. Cal. Sept. 5, 2018)

(holding that the ALJ erred in discounting a physician’s opinion on the ground that “he failed to
identify any specific functional limitations or restrictions,” because the ALJ’s finding was
“inaccurate”).
2. Dr. Paulsen
The Court does not address Plaintiff’s argument that the ALJ also failed to provide
legally sufficient reasons for discounting Dr. Paulsen’s opinion because, as explained below, this
case will be remanded for further proceedings.4 See Dasher v. Astrue, No. 09-cv-6139-BR, 2010
WL 4923101, at *7 (D. Or. Nov. 29, 2010) (“In light of the Court’s decision below that a remand
for further proceedings is necessary to permit the ALJ to further consider the evidence consistent
with this Opinion and Order, the Court need not address Plaintiff’s remaining arguments.”).

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) (citing INS v. Ventura,
537 U.S. 12, 16 (2002)). In a number of cases, however, the Ninth Circuit has “stated or implied

4 On remand, the ALJ will re-evaluate Dr. Golub’s opinion and, if necessary, hold
another hearing so Dr. Golub may clarify any ambiguous testimony and address relevant
evidence that he overlooked.
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. The credit-as-
true standard is met if the following 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).
B. Analysis
The Court concludes that there are unresolved conflicts and ambiguities between
evidence the ALJ erroneously rejected and other record evidence, and therefore remands this
case for further proceedings. See Brandon v. Saul, 821 F. App’x 857, 858 (9th Cir. 2020)
(explaining that it is appropriate for a district court to remand for further proceedings where there
are unresolved conflicts or ambiguities “between the erroneously rejected [evidence] and other
record evidence”); Bradshaw v. Colvin, 642 F. App’x 677, 678 (9th Cir. 2016) (“Because we

conclude that the ALJ failed to adequately explain why he rejected certain [record] evidence, and
that the error was not harmless, we vacate and [exercise our discretion to] remand for further
proceedings.”).
Specifically, there remain unresolved conflicts or ambiguities between Plaintiff’s
testimony, which the ALJ erroneously rejected and must reevaluate on remand, and other record
evidence. For example, Plaintiff testified that he frequently needs assistance getting dressed and
bathing due to his chronic pain, his house and yard work consists of watering the garden,
washing his clothes, and “nothing else,” he “no longer tend[s] to bees without [the] help of
others,” his impairments impact his ability to climb stairs, and he “fall[s] a lot” when walking or
using stairs. (Tr. 60, 244-45, 247-48.) By contrast, other record evidence reflects that Plaintiff
reported that he spent “6 months” cleaning up his father-in-law’s “hoarder” house, getting the
house ready to sell, and moving his father-in-law into assisted living; he used a “ladder” with
“rung[s]” to access a tree stand for hunting; he dragged a “150 [pound] deer uphill”; he took his
son deer hunting; he was able to “extract himself” from the tree stand’s ladder when he got
caught hanging upside down; he cleaned out a storage unit; he was a beekeeper; he “work[s] with
bees on his property,” which “involves ladders and climbing trees”; he “climbe[d] ladders” to
“catch his bees”; he owns a firearm safety training program; he occasionally rides a motorcycle;
he planned to go hunting and build honeybee hives; he “[b]uilt some closets for some rooms in
[his] house”; and he “{d]id a lot of sanding.” (Tr. 409-10, 499, 577-78, 583, 600, 603-04, 668,
671-72, 677, 679, 780-81, 805, 799, 809, 1023, 1056, 1169, 1170, 1182.)
Given this evidence, the Court exercises its discretion to remand this case for further
proceedings.
CONCLUSION
Based on the foregoing reasons, the Court REVERSES the Commissioner’s decision and
REMANDS this case for further proceedings consistent with this opinion.
IT IS SO ORDERED.
DATED this 21st day of December, 2020.
Shuck (Fiéecermar
HON. STACIE F. BECKERMAN
United States Magistrate Judge

PAGE 17 — OPINION AND ORDER

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392737. Public record. Not legal advice.