Frink v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

DEBORAH M. F,1

Plaintiff,

Case No. 6:19-cv-01292-YY

v.

OPINION AND ORDER

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

YOU, Magistrate Judge:

Plaintiff Deborah F. seeks judicial review of the final decision by the Social Security

Commissioner (“Commissioner”) denying her application for Supplemental Security Income

(“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381-1383. This court has jurisdiction to

review the Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and 1383(g)(3). For the

reasons set forth below, that decision is REVERSED and REMANDED for further proceedings.

Plaintiff protectively filed for SSI on October 29, 2015, alleging disability beginning on

March 27, 2015. Tr. 173-82. Her application was initially denied on January 15, 2016, and upon

reconsideration on September 22, 2016. Tr. 68-81, 82-96. Plaintiff requested a hearing before

1 In the interest of privacy, the court uses only plaintiff’s first name and the first initial of her last

name.

an Administrative Law Judge (“ALJ”), which took place on May 10, 2018. Tr. 34-67. After

receiving testimony from plaintiff and a vocational expert, ALJ B. Hobbs issued a decision on

August 22, 2018, finding plaintiff not disabled within the meaning of the Act. Tr.10-33. The

Appeals Council denied plaintiff’s request for review on June 15, 2019. Tr. 1-6. Therefore, the

ALJ’s decision is the Commissioner’s final decision and subject to review by this court. 20

C.F.R. § 416.1481.

DISCUSSION

The reviewing court must affirm the Commissioner’s decision if it is based on proper

legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.

§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the

evidence that supports and detracts from the ALJ’s conclusion and “‘may not affirm simply by

isolating a specific quantum of supporting evidence.’” Garrison v. Colvin, 759 F.3d 995, 1009-

10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This

court may not substitute its judgment for that of the Commissioner when the evidence can

reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746

(9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational

interpretation, the Commissioner’s decision must be upheld if it is “supported by inferences

reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)

(citation omitted); see also Lingenfelter, 504 F.3d at 1035.

SEQUENTIAL ANALYSIS AND ALJ FINDINGS

Disability is the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in death

or 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). The ALJ engages in a five-step sequential inquiry to

determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920;

Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180

F.3d 1094, 1098-99 (9th Cir. 1999)).

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since

October 29, 2015, the application date. Tr. 15. At step two, the ALJ determined plaintiff

suffered from the following severe impairments: bilateral carpal tunnel syndrome, degenerative

disc disease of the cervical spine, obesity, and asthma/chronic obstructive pulmonary disease

(“COPD”). Id. The ALJ recognized mental impairments in the record, i.e., depression and

anxiety, but concluded these conditions did not cause more than minimal limitations. Id.

At step three, the ALJ found plaintiff did not have an impairment or combination of

impairments that met or medically equaled a listed impairment. Tr. 17. The ALJ next assessed

plaintiff’s residual “capacity (“RFC”) and determined she could perform sedentary work as

defined in 20 C.F.R. § 416.967(a) with these exceptions: occasionally crawl; frequently crouch,

stoop, and kneel; never climb ladders, ropes, or scaffolds; frequently handle and finger with the

bilateral upper extremities; no toleration of exposure to extreme heat or extreme cold; and no

toleration of concentrated exposure to airborne irritants. Tr. 18.

At step four, the ALJ found plaintiff unable to perform past relevant work. Tr. 25.

At step five, the ALJ found that considering plaintiff’s age, education, work experience,

and RFC, she could perform jobs that existed in significant numbers in the national economy,

including billing/sorting clerk, document preparer, and credit card clerk. Tr. 26. Thus, the ALJ

concluded plaintiff was not disabled. Id.

DISCUSSION

Plaintiff argues the ALJ erred by (1) rejecting her subjective symptom testimony; (2)

improperly evaluating the medical opinion evidence of treating physicians Dr. Daniel Barrett and

Dr. Susan Cho; and (3) not including the limitations caused by her alleged mental impairments in

the RFC.

II. Subjective Symptom Testimony

When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of and the record contains no

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that

the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not

credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12

F.3d 915, 918 (9th Cir. 1993). The reasons proffered 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) (internal citation omitted). If the “ALJ’s

credibility finding is supported by substantial evidence in the record, [the court] may not engage

in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)

96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with SSR 16-3p.

See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to

“credibility,” clarifies that “subjective symptom evaluation 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. Id. at *1-2. The ALJ must

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.

Here, the ALJ recounted plaintiff’s claims and testimony in detail. Tr. 18-19. The ALJ

found plaintiff’s medically determinable impairments could reasonably be expected to cause

some of the alleged symptoms, but “[the claimaint’s] statements concerning the intensity,

persistence, and limiting effects of these symptoms were not entirely consistent with the medical

record and other evidence in the record[.]” Tr. 19.

Plaintiff specifically challenges the ALJ’s finding that her testimony as to her “most

disabling impairments[,]” i.e., “cervical spine disease, carpal tunnel disorder, and asthma/COPD”

is inconsistent with the record.2 Pl. Br. 11.

A. Cervical Spine Disease—Neck Pain and Arm Numbness

Regarding plaintiff’s neck pain and numbness, the ALJ found:

[I]n September 2015, the claimant underwent cervical discectomy and fusion at

C5-6 due to herniation with myelopathy at this level. The claimant was noted for

doing well postoperatively. . . X-rays showed solid fusion with no complications,

and examination showed normal arm strength with symmetric sensation[.]

. . .

The claimant reported neck pain to Dr. McGirr in August 2016; however, MRI

showed no changes that would explain her symptoms. Based on the claimant’s

complaints of numbness in her hands, Dr. McGirr referred her for studies. MRI

showed postsurgical changes with significant improvement to only mild spinal

canal stenosis at C5-6.

2 Plaintiff contends “[t]he ALJ [mistakenly] provided an analysis of the severity of certain

alleged symptoms, including difficulty swallowing, headaches, and foot and back pain” rather

than an analysis of the inconsistencies with the medical record.” Pl. Br. 10 (citing Tr. 20-21).

However, plaintiff has not identified any inconsistencies or conflicts with the medical evidence

relied on by the ALJ, i.e., plaintiff does not challenge the ALJ’s finding that her testimony

regarding difficulty swallowing, headaches, and foot and back pain conflicted with the objective

medical evidence.

The claimant reported neck pain in July 2017 when someone pulled her hatchback

down on her neck. However, x-rays showed only two-millimeter anterolisthesis

of C4 in relation to C5, which is stable, intact C5-6 fusion, and no acute

abnormality.

Tr. 21 (citing Tr. 347-57, 397-410, 1343-44, 1354-55). The ALJ not only found plaintiff’s

testimony about the intensity and limiting effects of her symptoms relating to hand numbness

and neck pain was not supported by the objective medical evidence, but also found evidence of

improvement after surgery. See Fletcher-Silvas v. Saul, 791 F. App’x 647, 649 (9th Cir. 2019

(holding ALJ properly rejects a plaintiff’s testimony where there is medical evidence of

improvement after a surgery). In sum, the ALJ found the objective medical record and

improvement in plaintiff’s conditions following surgery were inconsistent with plaintiff’s

testimony. The ALJ offered clear and convincing reasons, supported by substantial evidence, for

discounting plaintiff’s statements regarding the limiting effect of her neck and arm symptoms.

B. Carpal Tunnel Syndrome

Regarding plaintiff’s carpal tunnel symptoms, the ALJ found:

Electromyography studies in August 2016 revealed moderately severe carpal

tunnel syndrome with chronic cervical radiculopathy. More recently, nerve

conduction studies in May 2018 showed moderate bilateral carpal tunnel

syndrome. She has not been recommended for surgical release, she has not

reported significant functional problems to treating sources, and no treating or

examining source has recommended significant gross or fine manipulative

limitations.

Tr. 22 (citing Tr. 1015-22). The ALJ not only rejected plaintiff’s symptom testimony because it

was not supported by the objective medical evidence, but also rejected it because “[plaintiff] has

not reported significant functional problems to treating sources.” Tr. 22. A claimant’s

inconsistent or non-existent reporting of symptoms is competent evidence for an ALJ to consider

in assessing subjective symptom testimony. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir.

2006) (finding that claimant never reported problems related to carpal tunnel syndrome was a

clear and convincing reason to reject his testimony). Thus, the ALJ provided clear and

convincing reasons, supported by substantial evidence, to reject plaintiff’s testimony as to

limitations caused by carpal tunnel syndrome.

C. COPD/Asthma

With regard to plaintiff’s COPD/asthma, the ALJ summarized plaintiff’s testimony as

follows:

The claimant . . . testified that she has experienced gradually worsening COPD,

and was recently hospitalized in December 2017. She noted that she requires

hospitalization due to infections and pneumonia causing exacerbations of her

asthma and COPD almost every year, primarily in the winter due to cold weather,

but also sometimes due to summer seasonal allergies. She stated she is treated

with steroids, asthma medication, and antibiotics. When she is at home, her

asthma medication and rescue inhaler are generally effective, and she noted she

uses her inhaler and nebulizer six times per day each at regular intervals. The

claimant expressed that she lacks energy and stamina when her asthma and COPD

are triggered, and that during these times she is unable to attend to her own

personal care, and friends help with caring for her children. She noted that she

does lung therapy (walking on a treadmill or using foot pedals while sitting) for

20 minutes at a time with Dr. Cho. The claimant acknowledged that she smokes

cigarettes, stating that she previously quit but then resumed smoking, and that she

is planning to quit again.

Tr. 19; see Tr. 51-57.

While acknowledging “the claimant requires treatment for exacerbation of symptoms”

the ALJ rejected plaintiff’s symptom testimony for several reasons, which are addressed in turn.3

3 Regarding plaintiff’s asthma/COPD, the ALJ stated: “Despite her reported symptoms, the

claimant continues to smoke, and while she testified that she plans to quit, this intention is also

reflected throughout the treatment record.” Continued smoking may be a reason to discount

testimony of worsening COPD symptoms. See Newberry v. Astrue, No. CIV. 09-648-ST, 2011

WL 588935, at *7 (D. Or. Feb. 10, 2011) (“The ALJ also cited Newberry’s continued smoking in

finding his testimony regarding his worsening COPD not credible. . . . Such a citation is

appropriate.”) (citing Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2007)”;

but see Hatcher v. Astrue, No. CV 08-00042-OP, 2009 WL 1110545, at *5 (C.D. Cal. Apr. 21,

2009) (“An addiction to cigarettes, however, should not serve to discredit Plaintiff’s description

1. Objective Medical Evidence

The ALJ discredited plaintiff’s testimony, in part, because “the frequency and need for

hospitalization she alleged is not consistent with the record.” Tr. 23. The ALJ observed that

plaintiff testified she required hospitalization “almost every year.” Tr. 19; see Tr. 51 (testifying

she went to the hospital almost every year in the winter time). But the ALJ also observed that

plaintiff had been hospitalized four times in four years: (1) July 26-28, 2015, “for acute

exacerbation of asthma with respiratory failure”; (2) February 11-15, 2016, “for COPD

exacerbation with acute lower respiratory infection”; (3) December 27, 2017-January 4, 2018,

“for respiratory failure secondary to the flu, . . . requir[ing] extended hospitalization due to

severe sepsis with acute organ dysfunction”; and (4) January 19-24, 2018, for rehospitalization

“due to increasing shortness of breath.” Tr. 22-23 (citing Tr. 301-22, 454-78, 1050-1309, 1557-

61). Thus, the “frequency and need for hospitalization alleged” by plaintiff is in fact consistent

with the medical record.

The ALJ also observed that, “as noted by Dr. Cho, the claimant’s breathing is stable

when she is not dealing with illness. . . . Tr. 23. However, “the stability of a condition does not

undermine a plaintiff’s allegations as to the intensity, persistence, or limiting effects of the

symptoms of a condition.” Marti Jean K. v. Comm’r Soc. Sec. Admin., No. 6:18-cv-00109-HZ,

2019 WL 3061561, at *7 (D. Or. July 10, 2019). Rather, “stable” may simply mean that a

of his impairments.”) (citing Bray, 554 F.3d at 1227). However, the court need not address this

issue because, although the Commissioner argues the ALJ found plaintiff’s smoking was brought

on by situational stressors which then triggered COPD symptoms, the ALJ did not provide this

reason in her opinion, and the court is not permitted to make ad hoc rationalizations for the ALJ.

Stout v. Comm’r Soc. Sec. Admin, 454 F.3d 1050, 1054 (9th Cir. 2006) (a reviewing court cannot

affirm an ALJ’s decision denying benefits on a ground not invoked by the ALJ herself) (citation

omitted).

plaintiff’s alleged symptoms are not getting worse. Timothy S. v. Comm’r, No. 6:17-cv-02043-

HZ, 2019 WL 2006689, at *7 (D. Or. May 3, 2019). Moreover, even assuming “[plaintiff’s]

breathing is stable as long as she is not sick[,]” Tr. 23 (citing Tr. 527), the record does not reflect

that she was free from symptoms, or, importantly, that the stability contradicted her symptom

testimony.

Thus, the ALJ’s reasons for rejecting plaintiff’s testimony based on a conflict with the

objective medical record were not clear and convincing reasons supported by substantial

evidence.

2. Effective Treatment

The ALJ also rejected plaintiff’s testimony because “the record shows that illnesses

exacerbating the claimant’s respiratory condition are generally responsive to treatment.” Tr. 23.

An ALJ may discount a claimant’s testimony based on effective treatment. Warre v. Comm’r

Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled

effectively with medication are not disabling for the purpose of determining eligibility for SSI

benefits.”). However, evidence of improvement with treatment does not automatically negate a

plaintiff’s claimed symptoms or functional limitations. See Moore v. Comm’r, Soc. Sec. Admin.,

278 F.3d 920, 924-25 (9th Cir. 2002).

The ALJ correctly noted instances where plaintiff’s symptoms were “responsive to

treatment.” Tr. 22-23 (citing Tr. 301-22 (symptoms resolved quickly with nebulizer therapy,

prednisone, and oxygen, July 2015 hospital visit), 909-12 (treated with antibiotics and

adjustment of medications, June 2016 office visit), 1597 (treated with nebulizer treatment with

oxygen and improved significantly, September 2016 office visit). The ALJ was required,

however, to examine this evidence in the broader context of plaintiff’s impairment. See Holohan

v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). An ALJ cannot simply “pick out a few

isolated instances of improvement over a period of months or years” but must interpret “reports

of ‘improvement’ . . . with an understanding of the patient’s overall well-being and the nature of

her symptoms.” Garrison, 759 F.3d at 1017. In short, the examples an ALJ chooses “must in

fact constitute examples of a broader development.” Id. at 1018 (emphasis added).

The record demonstrates that any response to treatment was not sustained. In addition to

the four hospital visits described above, plaintiff presented to immediate care due to exacerbation

of symptoms numerous times. E.g., Tr. 740-43 (June 28, 2016), 1597-1600 (September 21,

2016), 1592-95 (October 19, 2016), 1552-56 (December 12, 2016), 1585-90 (March 26, 2017),

1495-1504 (April 30, 2017), 1472-76 (August 21, 2017), 1447-51, 1456-61 (October 17, 2017),

1360-65 (March 8, 2018). Plaintiff also visited the emergency room frequently for same. E.g.,

Tr. 358 (September 7, 2015), 777 (December 15, 2015), 764 (January 2, 2016), 690-95 (January

23, 2016), 755 (January 29, 2016), 1316-17 (January 7, 2018). The record further documents

instances where plaintiff visited her primary care physician, Dr. Barrett, and pulmonologist, Dr.

Cho, for treatment for symptom exacerbation. E.g., Tr. 955-58 (September 23, 2015 office visit

to Dr. Barrett); Tr. 1557-62 (November 21, 2016 office visit to Dr. Cho). In short, any time

plaintiff’s symptoms may have improved, she suffered an exacerbation of symptoms soon

thereafter. Thus, substantial evidence does not support the ALJ’s conclusion that plaintiff’s

improvement with treatment undermines her subjective symptom testimony.

3. Conservative Treatment

The ALJ rejected plaintiff’s testimony because “[t]he record does not show she requires

frequent use of her rescue inhaler and nebulizer throughout the day when she is not ill, and she is

generally treated conservatively.” Tr. 23.

An ALJ may also discount a claimant’s testimony based on conservative treatment.

Parra, 481 F.3d at 750-51 (citation omitted). Here, the ALJ noted that plaintiff’s treatment when

symptoms of exacerbation were not present included encouragement to stop smoking and lose

weight, lung and physical therapy, and occasional use of a nebulizer and/or inhaler. Tr. 22-23

(citing Tr. 454-62, 527, 530, 925, 1439-40, 1445-46, 1455-56, 1563, 1575, 1595). If these were

the only treatments that plaintiff had received, then her course of treatment arguably could be

described as conservative. See, e.g., Tommasetti, 533 F.3d at 1040 (physical therapy is

conservative treatment); Teresa M. v. Comm’r Soc. Sec. Admin., No. 6:17-CV-00466-MA, 2018

WL 3600058, at *9 (D. Or. July 27, 2018) (prescribed inhalers and a nebulizer on an as needed

basis to treat asthma and COPD is conservative treatment); Hayes v. Colvin, 2014 WL 7405647,

at *3 (D. Or. Dec. 30, 2014) (prescription anti-inflammatory medication, pain medication,

aerosol inhalers, and a recommendation to quit smoking is conservative treatment).

However, in considering plaintiff’s treatment only when she is free from symptoms, the

ALJ failed to consider the full longitudinal record of her treatment, including her treatment when

she was not free from symptoms. Holohan, 246 F.3d at 1205, 1208 (holding ALJ erred by

selectively reading treatment records). The record shows that when plaintiff’s symptoms

exacerbated, she was repeatedly treated with prescriptions for steroids and antibiotics. E.g., Tr.

325, 459, 519, 541, 743, 755, 777, 980, 1142, 1316, 1365, 1417, 1461, 1476, 1499, 1557, 1590,

1595; see Kager v. Astrue, 256 F. App’x 919, 923 (9th Cir. 2007) (cited pursuant to Ninth Cir.

Rule 36-3) (rejecting ALJ’s characterization of treatment as conservative where, inter alia,

claimant took prescription medications). She also routinely received bronchodilator treatment

and oxygen therapy. E.g., Tr. 464-65, 980, 1193, 1316, 1600; cf. Duane S. v. Comm’r Soc. Sec.

Admin, No. 6:19-CV-01795-JR, 2020 WL 7181586, at *5 (D. Or. Dec. 7, 2020) (ALJ properly

rejected plaintiff’s testimony where “plaintiff sought only conservative treatment for his COPD,

failing to seek continuous oxygen therapy, ventilation therapy, and surgery”). Further, plaintiff

was noted for “chronic” use of her inhaler, and she was prescribed many different inhalants and

related medications. Tr. 325, 358, 541, 911. During hospitalizations, plaintiff required

ventilators, intubation, and intravenous therapy. Tr. 1141-42, 1193. There is substantial

evidence, then, that plaintiff’s treatment was far from conservative. Thus, conservative treatment

is not a clear and convincing reason for discounting plaintiff’s subjective symptom testimony.

4. Activities of Daily Living

Finally, the ALJ rejected claimant’s claims that she “lacks energy and stamina when her

asthma and COPD are triggered, and that during these times she is unable to attend to her own

personal care, and friends help with caring for her children.” Tr. 19. Specifically, the ALJ

found:

The claimant has reported she is independent with activities of daily living and is

able to attend to the care of her two young children. She stated she receives help

taking care of her kids from friends on occasions when her symptoms are severe.

Otherwise, she prepares meals, does the dishes, cleans the house, and goes

grocery shopping.

Tr. 24.

An ALJ may invoke activities of daily living in the context of determining symptom

allegation credibility to (1) illustrate a contradiction in previous testimony, or (2) demonstrate

that the activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625,

639 (9th Cir. 2007). Here, the ALJ failed to invoke either basis, i.e., the ALJ provided no

explanation why childcare, preparing meals, doing the dishes, cleaning the house, and going

grocery shopping were either inconsistent with plaintiff’s subjective symptom testimony or

translated to activities that could be performed within a competitive work environment.4 See

Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“The Social Security Act does not require that

claimants be utterly incapacitated to be eligible for benefits,” and “many home activities are not

easily transferable to what may be the more grueling environment of the workplace, where it

might be impossible to periodically rest or take medication.”). Plaintiff’s attempts at leading a

normal life do not prevent her from receiving disability benefits. Molina v. Astrue, 674 F.3d

1104, 1112-13 (9th Cir. 2012) (holding a “claimant need not vegetate in a dark room to be

eligible for benefits”) (citation omitted).

Also, importantly, the ALJ did not address plaintiff’s testimony detailing the difficulties

she experiences when performing activities of daily living. For example, plaintiff testified that

doing the dishes takes about 20 minutes and “increases her symptoms.” Tr. 55. She also

testified that when she “is experiencing an exacerbation of [her] asthma[,]” she has “a friend that

comes over and helps her” because “[she] can[not] do everything [she] need[s] to do unassisted–

–for [her children]––if [she’s] experiencing an exacerbation.” Id.

In sum, the ALJ did not give clear and convincing reasons, supported by substantial

evidence, for discounting plaintiff’s asthma/COPD subjective symptom testimony.

II. Medical Opinion Evidence

The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony.

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must provide clear and

4 The Commissioner invokes the former, arguing plaintiff’s testimony that she takes care of her

children conflicts with her contention that she lacks stamina and energy. Def. Br. 17 (citing Tr.

19, 23, 56, 1026). The ALJ, however, does not provide this explanation in her opinion, and the

court is not permitted to make ad hoc rationalizations for the ALJ. Stout, 454 F.3d at 1054 (9th

Cir. 2006).

convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining

physician, or specific and legitimate reasons for rejecting contradicted opinions, so long as they

are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

However, “[t]he ALJ need not accept the opinion of any physician, including a treating

physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”

Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Additionally, the ALJ may discount

physicians’ opinions based on internal inconsistencies, inconsistencies between their opinions

and other evidence in the record, or other factors the ALJ deems material to resolving

ambiguities. Morgan v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999).

A. Dr. Daniel Barrett

On April 19, 2018, Dr. Barrett, plaintiff’s primary care physician, provided a “Treating

Source Statement.” Tr. 1630-34. Dr. Barrett diagnosed severe persistent asthma, COPD,

gastroesophageal reflux disease, obesity, fibromyositis, dyspnea, and adjustment disorder. Tr.

1630. Dr. Barrett opined that in an eight-hour workday, plaintiff can walk half a city block

without rest or significant pain; can sit for 20 minutes at a time; can stand/walk for 15 minutes at

a time; requires a job that permits shifting positions at will “but for short times”; would need to

take unscheduled, half-hour breaks every 20 minutes; cannot lift more than ten pounds; is limited

in handling and fingering bilaterally; can use her arms for reaching 100 percent, her hands for

grasping 95 percent, and her fingers for fine manipulation 80 percent of the workday; would

require breaks after using her hands; would need to periodically elevate her legs; and would miss

more than four workdays per month. Tr. 1632-34.

The ALJ assigned “partial weight” to Dr. Barrett’s opinion, finding Dr. Barrett’s opinions

as to plaintiff’s “extreme exertional limitations and expectation of significant absences is not

supported by the evidence.” Tr. 25. In support, the ALJ observed that “[w]hile [plaintiff’s]

conditions resulted in two hospitalizations for serious symptoms recent to [Dr. Barrett’s] opinion,

[her] asthma/COPD during the period under review has been generally controlled between

infrequent infections, and as of Dr. Barrett’s opinion, the record shows [plaintiff’] conditions

were stable.” Id. However, as described above, plaintiff’s infections were neither infrequent nor

controlled. See supra Sect. II.B (listing 23 documented exacerbations), Sect. II.C (describing

plaintiff’s treatment).

The ALJ also discounted Dr. Barrett’s exertional limitations and absences opinions

because Dr. Barrett had described plaintiff’s conditions as “stable.” Tr. 25; see Tr. 1623

(treatment note from Dr. Barrett stating: “She is stable with her asthma.”). “A conflict between

treatment notes and a treating provider’s opinions may constitute an adequate reason to discredit

the opinions of a treating physician or another treating provider.” Ghanim v. Colvin, 763 F.3d

1154, 1161 (9th Cir. 2014) (citations omitted). Here, however, the ALJ chose one of Dr.

Barrett’s notes describing plaintiff’s symptoms as “stable,” while ignoring other notes to the

contrary. E.g., Tr. 942 (“She has asthma and bronchitis that is not well controlled.”); 955 (“The

patient states she has been doing poorly with her asthma control since the last visit.”). The

ALJ’s characterization of plaintiff’s symptoms as “stable” “constitutes impermissible cherry-

picking” because “an ALJ must consider all of the relevant evidence in the record and may not

cite only those portions of the record that bolster his findings.” Walker v. Astrue, No. 3:11-CV-

990-AA, 2012 WL 3962310, at *4 (D. Or. Sept. 7, 2012); see also Robinson v. Barnhart, 366

F.3d 1078, 1083 (10th Cir. 2004) (“The ALJ is not entitled to pick and choose from a medical

opinion, using only those parts that are favorable to a finding of nondisability.”). Morever, as

plaintiff correctly observes, “stable” does not mean “resolved.” Pl. Br. 23 (citing Taber’s Online

Cyclopedic Medical Dictionary (23d ed. 2018)); see also Kirk M. v. Comm’r Soc. Sec. Admin.,

No. 6:17-CV-01663-HZ, 2018 WL 6651525, at *4 (D. Or. Dec. 19, 2018) (“[A]lthough Dr. Gil

noted that Plaintiff’s glaucoma was “stable,” stable does not mean resolved.”). In short,

substantial evidence does not support the ALJ’s determination that Dr. Barrett’s assessments

were inconsistent with the medical record and, therefore, the ALJ’s partial rejection of his

opinion was error.

B. Dr. Susan Cho

On May 8, 2018, Dr. Cho signed a concurrence letter stating she was treating plaintiff for

COPD. Tr. 1635. Dr. Cho opined plaintiff “is capable of being more active when she is not

experiencing significant symptoms”; “experiences exacerbations of her condition that are severe

enough to prevent her from functioning, including the ability to go to work”; “experiences more

exacerbations in the winter than summer due to exposure to cold, and to more illnesses”;

experiences “some exacerbations in the summer that are caused by her allergies”; “[w]hen she

becomes sick, she does not recover as quickly as other people”; and “[she] would be absent more

than one workday per month on average due to exacerbations of her COPD.” Tr. 1635.

The ALJ assigned partial weight to Dr. Cho’s opinion, finding “the evidence shows

[plaintiff] will miss work when she experiences significant exacerbations of COPD, but does not

find this amounts to one day per month.” Tr. 24. To support this conclusion, the ALJ noted:

“Taken as a whole, the record shows the claimant’s symptoms are generally stable with

occasional exacerbations that respond to adjustments in medication, and infrequently requiring

hospitalization.” Tr. 24-25.

As described above, plaintiff’s exacerbations were neither occasional, nor did they

respond to adjustments in medication. See supra Sect. II.B. (listing 23 documented

exacerbations). Thus, the ALJ relied on the same flawed reasons she used to reject plaintiff’s

subjective symptom testimony, and, accordingly, the ALJ did not properly evaluate Dr. Cho’s

opinion.

III. RFC

The RFC is the most a person can do, despite her physical or mental impairments. 20

C.F.R. §§ 404.1545, 416.945. In formulating an RFC, the ALJ must consider all medically

determinable impairments, including those that are not “severe,” and evaluate “all of the relevant

medical and other evidence,” including the claimant’s testimony. Id.; SSR 96-8p, available at

1996 WL 374184. In determining a claimant’s RFC, the ALJ is responsible for resolving

conflicts in the medical testimony and translating the claimant’s impairments into concrete

functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.

2008). Only limitations supported by substantial evidence must be incorporated into the RFC

and, by extension, the dispositive hypothetical question posed to the vocational expert.

The Commissioner, however, uses the special psychiatric review technique to evaluate

mental impairments at steps two and three of the sequential process with respect to activities of

daily living, social functioning, concentration, persistence, or pace, and episodes of

decompensation of extended duration. 20 C.F.R. § 404.1520a(c). While the results of the

special psychiatric review technique are distinct from the RFC assessment, a doctor may

translate the psychiatric review technique findings into concrete workplace limitations, which the

ALJ may adopt into the RFC. Stubbs-Danielson, 539 F.3d at 1174-75.

Plaintiff argues that the ALJ erred in failing to evaluate her medically determinable

mental impairments of depression and anxiety, resulting in an incomplete RFC.5 Pl. Br. 4-8. At

step two, the ALJ noted the claimant did not allege mental limitations “other than ‘difficulty

handling stress.’”6 Id.; see Tr. 206-07. The ALJ further noted “the record reflects that the

claimant has reported various situational stressors (finances, relationship issues, and concerns

over her daughter’s health)” and “chart notes clearly delineate that [claimant’s diagnosed anxiety

and depression] are situational.” Id. (citing Tr. 516, 526, 540-41, 904-98, 986, 1034, 1360-

1618). The ALJ also noted that plaintiff’s documented situational stressors “predate the alleged

onset date, when [she] was working successfully.” Tr. 15 (citing Tr. 986).

The ALJ observed that Alan Schrader, LCSW, who “assessed adjustment disorder with

anxious mood and stress due to marital problems[,]” indicated “normal mental status findings”

and “full activities of daily living” in October and November 2016 treatment notes. Tr. 15-16

(citing Tr. 1026-36). The ALJ also observed that Linda Henderson, MSW, who assessed post-

traumatic stress disorder, indicated “normal” mental status examination findings in late 2017. Id.

at 16 (citing Tr. 1036-49). Further, the ALJ observed “that no acceptable medical source who is

5 The Commissioner argues plaintiff has waived this argument because she “[did] not attempt to

show the ALJ erred at step two.” Def. Br. 4 (citing Ball v. Massanari, 254 F.3d 817, 823 (9th

Cir. 2001) (“It follows that if the claimant’s ailment does not pass step 2, ipso facto it is not

disabling.”)). Ball is distinguishable because, there, the court found that because “Ball could not

proceed past step two of the evaluation process, . . . there was no need explicitly to consider

whether the condition, standing alone, would be disabling.” Id. at 822. Here, in contrast,

although the ALJ did not find plaintiff’s anxiety and depression severe at step two, the ALJ did

find plaintiff could proceed past step two. See Tr. 15-17.

6 Plaintiff argues that, to the contrary, she did report mental limitations “but she indicated that

her greatest limitations were physical.” Pl. Br. 6 (citing Tr. 201-07). Even assuming plaintiff

alleged mental limitations, as discussed herein, the court concludes that the ALJ adequately

assessed plaintiff’s mental impairments at step two.

qualified to make psychological diagnoses has assessed the claimant.” Tr. 16. The ALJ noted

that although plaintiff’s providers had prescribed medication for plaintiff’s anxiety and

depression, “[c]hart notes do not reflect mental status examinations or other assessments.” Tr.

15; see Tr. 310, 318, 346, 540, 544, 548, 918, 1120, 1490. Indeed, the ALJ stated, “[t]he only

other note” pertaining to plaintiff’s mental health “is from February 2018, when [plaintiff]

presented to the emergency department requesting a psychiatric evaluation for anxiety and

depression[,]” where “[s]he was evaluated for safety and referred for follow up with her primary

care physician for medications and/or counseling.” Id. (citing Tr. 1028, 1320-22, 1038); see

Thune v. Astrue, 499 F. App’x 701, 703 (9th Cir. 2012) (upholding ALJ’s determination that

claimant’s depression was “not severe” when treating physician recorded in treatment notes that

she was depressed and prescribed her anti-depressants but did not identify any functional

limitations resulting from this diagnosis).

Moreover, the ALJ found “[plaintiff] reported that she attends to personal care, the care

of her children, grocery shopping, management of household finances, meal preparation, and

housecleaning” and also that “she has no problems following instructions or paying attention.”

Tr. 16; see Tr. 201-07. For these reasons, the ALJ did not err by declining to find plaintiff’s

mental impairments severe at step two.

A. State Agency Review Psychologists

Plaintiff contends the ALJ erroneously ignored the opinions of state agency reviewing

psychologists, Dr. Megan Nicoloff and Dr. Scott Kaper. Pl. Br. 7-8.

“[I]n interpreting the evidence and developing the record, the ALJ does not need to

discuss every piece of evidence,” only that which is significant and probative. Wolff v. Barnhart,

341 F.3d 1006, 1012 (9th Cir. 2003) (internal quotation marks omitted); see also Vincent v.

Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam). However, although ALJs “are not

bound by findings made by State agency or other program physicians and psychologists, . . . they

may not ignore these opinions and must explain the weight given to the opinions in their

decisions.” Social Security Ruling (“SSR”) 96–6p, available at 1996 WL 374180, at *2; see also

20 C.F.R. §§ 404.1527(f), 416.927(f). Moreover, as noted above, the court “must consider the

entire record as a whole, weighing both the evidence that supports and the evidence that detracts

from the Commissioner’s conclusion.” Lingenfelter, 504 F.3d at 1035 (internal quotation marks

omitted).

Here, the ALJ ignored the medical opinions of the nonexamining state agency

psychiatrists, and, therefore, erred. See Tr. 13-22. However, it is well-established that “[a]

decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400

F.3d 676, 679 (9th Cir. 2005). An ALJ’s error may be deemed harmless where it “was

inconsequential to the ultimate nondisability determination.” Stout, 454 F.3d at 1055.

1. Dr. Scott Kaper

On reconsideration, Dr. Kaper assessed plaintiff’s “Medically Determinable Impairments

and Severity” (“MDI”). Tr. 89-90. Dr. Kaper opined plaintiff’s medically determinable

impairments, i.e., “Affective Disorders” and “Anxiety-Related Disorders,” did not meet or

medically equal any of the listings criteria and would cause “mild”: “Restriction of Activities of

Daily Living”; “Difficulties in Maintaining Social Functioning”; and “Difficulties in Maintaining

Concentration, Persistence, or Pace.” Tr. 90. He noted that the “[mental residual functional

capacity assessment] given at initial level does not appear necessary”; plaintiff reported “that she

has become more depressed as she has struggled w/ pain, but [this is] not reflected in [medical

evidence of record]”; “[mental symptoms] still functionally [not severe]”; and “[e]vidence

supports Initial Decision.” Id.

The ALJ acknowledged plaintiff suffered from depression and anxiety, but ultimately

concluded these impairments were “nonsevere.” Tr. 16. Dr. Kaper’s opinion does not contradict

the ALJ’s findings, and, therefore, the ALJ’s failure to explicitly consider or discredit his opinion

is harmless.

2. Dr. Megan Nicoloff

Dr. Nicoloff assessed both plaintiff’s MDI and RFC. Tr. 74-75, 78-80. In her MDI

report, Dr. Nicoloff concluded that plaintiff’s “Affective Disorders” and “Anxiety Disorders” did

not meet any of the listings criteria and would cause “moderate” difficulties in maintaining

“Social Functioning” and “Concentration, Persistence or Pace.” Tr. 75. In her “Mental Residual

Functional Capacity Assessment,” Dr. Nicoloff opined plaintiff was “moderately limited” in her

“ability to understand and remember detailed instructions,” explaining that “[plaintiff] is capable

of understanding/remembering simple instructions” but “would be incapable of

understanding/remembering more complex instructions [due to symptoms] of affective

[disorder].” Tr. 78. She also opined plaintiff is “moderately limited” in the “ability to carry out

detailed instructions[,]” explaining “[plaintiff] can carry out and maintain [concentration,

persistence, and pace] for simple tasks” but “would be unable to maintain [the same] for more

complex tasks [due to symptoms] of anxiety [disorder].” Tr. 79. Dr. Nicoloff further opined

plaintiff is “moderately limited” in her “ability to interact with the general public,” explaining

that “[she] is capable of appropriate coworker and supervisor interaction” but “would be

incapable of greater than occasional general public contact [due to symptoms] of anxiety

[disorder].” Id.

The Commissioner argues any error in ignoring Dr. Nicoloff’s opinion is harmless

because even if Dr. Nicoloff’s opinion is credited, plaintiff can still perform at least one of the

jobs the ALJ found she could perform at step five, i.e., document preparer. DOT # 249.587-018,

available at 1991 WL 672349. Document preparer has a specific vocational preparation

(“SVP”) of 2, which corresponds to unskilled work. Id.; see Social Security Ruling (SSR) 00-4p,

available at 2000 WL 1898704, at *3. The mental activities generally required by unskilled

work include:

* Understanding, remembering, and carrying out simple instructions.

* Making judgments that are commensurate with the functions of unskilled work––i.e.,

simple work- related decisions.

* Responding appropriately to supervision, co-workers and usual work situations.

SSR 96-9p, available at 1996 WL 374185, at *9 (emphasis added).

Dr. Nicoloff indicated plaintiff “is capable of understanding/remembering simple

instructions,” “can carry out and maintain [concentration and persistence] for simple tasks,” and

“is capable of appropriate co-worker and supervisor interaction.” Tr. 78-79. These opinions do

not conflict with the ALJ’s finding that plaintiff could perform the job of document preparer.

Further, as to Dr. Nicoloff’s opinion that plaintiff “would be incapable of greater than occasional

general public contact,” the VE testified a “person . . . limited to occasional public contact” could

still perform the job of document preparer. Tr. 63, 79. Therefore, the ALJ’s step five opinion

that plaintiff can perform the position of document preparer does not conflict with Dr. Nicoloff’s

opinion. See 20 C.F.R. §§ 404.1566(b), 416.966(b) (“Work exists in the national economy when

there are a significant number of jobs (in one or more occupations) having requirements which

you are able to meet with your physical or mental abilities and vocational qualifications.”)

(emphasis added); Tommasetti, 533 F.3d at 1044 (while the ALJ erred at step four by finding the

claimant could perform past work, this error was harmless because the ALJ properly found the

claimant could perform work as a semiconductor assembler at step five); Garner v. Saul, 805 F.

App’x 455, 459 (9th Cir. 2020) (finding that one job existing in significant numbers is sufficient

in a step five finding). Any error that the ALJ committed in failing to mention Dr. Nicoloff’s

opinion in the decision is harmless.

IV. Remand

When a court determines the Commissioner erred in some respect in making a decision to

deny benefits, the court may affirm, modify, or reverse the Commissioner’s decision “with or

without remanding the cause for a rehearing.” Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d

1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In determining whether to remand for

further proceedings or immediate payment of benefits, the Ninth Circuit employs the “credit-as-

true” standard when the following requisites are met: (1) the ALJ has failed to provide legally

sufficient reasons for rejecting evidence, (2) the record has been fully developed and further

proceedings would serve no useful purpose, and (3) if the improperly discredited evidence were

credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison,

759 F.3d at 1020. Even if all of the requisites are met, however, the court may still remand for

further proceedings, “when the record as a whole creates serious doubt as to whether the

claimant is, in fact, disabled[.]” Id. at 1021.

Here, the first requisite of the Garrison test is met, as the ALJ failed to properly evaluate

plaintiff’s subjective symptom testimony as to her asthma/COPD and the medical opinions of Dr.

Barrett and Dr. Cho.

However, the second requisite is not met, as the record in this case is not fully developed.

Where the ALJ failed to properly consider the opinions of Dr. Barrett and Dr. Cho, remand is the

most appropriate remedy. See Treichler, 775 F3d at 1105 (“Where . . . an ALJ makes a legal

error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the

agency.”). “There may be evidence in the record to which the ALJ can point to provide the

requisite specific and legitimate reasons for disregarding the opinions of [Dr. Barrett and Dr.

Cho]. Then again, there may not. In any event, the ALJ is in a better position than this court to

perform the task.” Crumly v. Astrue, No. CV-08-674-TUC-RCC, 2010 WL 3023349, at *22 (D.

Ariz. June 15, 2010), report and recommendation adopted, 2010 WL 3023339 (D. Ariz. July 30,

2010). Moreover, even if the improperly-rejected opinions are credited as true, it is not clear that

the ALJ would be required to find plaintiff disabled because the VE did not provide an opinion

as to whether plaintiff would be able to perform jobs that exist in significant numbers in the

national economy when taking into account all of plaintiff’s limitations.

On remand, the ALJ must (1) accept plaintiff asthma/COPD testimony or provide legally

sufficient reasons for rejecting it, (2) accept the opinions of Dr. Barrett and Dr. Cho or provide

legally sufficient reasons for rejecting them, (3) obtain additional VE testimony regarding what

work plaintiff can do, if any, and (4) conduct any additional proceedings as indicated by the

results of the foregoing.

ORDER

The Commissioner’s decision is REVERSED and REMANDED for further proceedings

consistent with this opinion.

DATED March 24, 2021.

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge