# Brown v. Commissioner Social Security Administration

> District Court, D. Oregon · April 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10393126

## Case

- **Court:** District Court, D. Oregon
- **Decided:** April 6, 2021
- **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/10393126

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RANDALL B.,1 Case No. 6:20-cv-00685-JR

Plaintiff,
OPINION AND ORDER
v.

COMMISSIONER OF SOCIAL
SECURITY ADMINSTRATION,

Defendant.

RUSSO, Magistrate Judge:
Plaintiff Randall B. brings this action for judicial review of the Commissioner of Social
Security’s final decision denying his application for Title II Disability Insurance Benefits. All
parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case
in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the
Commissioner’s decision is reversed, and this case is remanded for the immediate payment of
benefits.

1 In the interest of privacy, this opinion uses only the first name and initial of the last name of the
non-governmental party or parties in this case.
BACKGROUND
Born in 1954, plaintiff alleges disability beginning February 19, 2014, due to back
problems, arthritis, anxiety, and depression. Tr. 44–45. Plaintiff’s application, dated August 30,
2016, was denied initially and upon reconsideration. Tr. 55, 70. On March 23, 2019, a hearing was
held before an Administrative Law Judge (“ALJ”), wherein a non-attorney representative

represented plaintiff. Tr. 30–43. A vocational expert (“VE”) testified at the hearing. Id. On April
2, 2019, the ALJ issued a decision finding plaintiff not disabled. Tr. 13–24. After the Appeals
Council denied his request for review, plaintiff filed a complaint in this Court. Tr. 1.
THE ALJ’S FINDINGS
At step one of the five-step sequential evaluation process, the ALJ found plaintiff had not
engaged in substantial gainful activity during the adjudication period. Tr. 15. At step two, the ALJ
determined the following impairment was medically determinable and severe: “lumbar
degenerative disc disease.” Id. At step three, the ALJ found plaintiff’s impairments, either singly
or in combination, did not meet or equal the requirements of a listed impairment. Tr. 18.

Because plaintiff did not establish presumptive disability at step three, the ALJ continued
to evaluate how plaintiff’s impairments affected his ability to work. The ALJ resolved plaintiff
had the residual functional capacity (“RFC”) to perform sedentary work and further limited
plaintiff “to no more than occasional balancing, stooping, crouching, crawling, kneeling or
climbing [and he must] avoid concentrated exposure to unprotected heights, moving machinery
and similar hazards.” Id. At step four, the ALJ determined plaintiff could perform past relevant
work as an order clerk, accounting clerk, or customer service representative. Tr. 23.
DISCUSSION
Plaintiff argues the ALJ erred by: (1) discrediting his subjective symptom testimony; (2)
improperly discounting the medical opinions of primary care provider Leslie Stevens, D.O., and
examining doctor Thomas Potter, Ph.D.; and (3) failing to include all his limitations in the RFC,
thereby rendering an invalid step four finding. Pl.’s Opening Br. 4, 8, 17 (doc. 13).

I. Plaintiff’s Testimony
Plaintiff argues the ALJ erred by discrediting his subjective symptom testimony concerning
the extent of his impairments.2 Id. at 4. 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) (internal 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).
Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual’s
character” or propensity for truthfulness and instead assesses whether the claimant’s subjective

2 Plaintiff did not testify at the hearing, despite being present, because his non-attorney
representative felt “the record was fairly well complete and well developed.” Tr. 42. As such, the
ALJ relied primarily on the functional report, submitted by plaintiff on October 3, 2016, in
evaluating plaintiff’s subjective symptom statements. Tr. 19, 202.
symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL
1119029. If the ALJ’s finding regarding the claimant’s subjective symptom testimony 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) (internal citation omitted).
Plaintiff stated he was unable to work due to an inability to exert himself related to his back

condition and arthritis—specifically endorsing difficulty lifting, stooping, kneeling, and
crouching; the inability to sit or stand for more than 15 minutes; and the need to change positions
frequently. Tr. 202. Plaintiff further reported he was unable to concentrate and retain details.3 Id.
In terms of daily activities, plaintiff disclosed that he occasionally transports his
grandchildren to school and performs limited chores—such as laundry, cooking, shopping, and
yard work—in short intervals and while alternating positions (and often with his wife’s assistance).
Tr. 203–05; see also Tr. 369, 407, 460. He indicated disruption in his sleep and daily activities due
to pain, such that he needed two hour-plus long rest periods throughout the day. Tr. 203. He
occasionally participated in fishing trips or similar activities, with assistance and in a more limited

capacity (i.e., no sitting or standing for long periods, no walking on uneven terrain, no carrying
equipment, etc.), though he noted he would “have to pay for it afterward by spending at least one
day in bed recuperating.” Tr. 203, 206, 209.
After summarizing plaintiff’s testimony, the ALJ determined plaintiff’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms but found

3 Plaintiff contends the ALJ erred by “not identify[ing] a single reason to support discounting [his]
complaints related to difficulty concentrating, processing, and retaining information.” Pl.’s
Opening Br. 8 (doc. 13). At step two, the ALJ found plaintiff’s mental impairments were not
severe. Tr. 15. Plaintiff does not challenge the ALJ’s step two finding on appeal and, as discussed
in greater detail below, the mental health records do not reflect a significant impairment in
functioning. Indeed, plaintiff’s course of treatment and function report focus almost exclusively
on his physical problems. As such, any purported error in regard to this issue was harmless.
“the claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the record.”
Tr. 19. In particular, the ALJ found that plaintiff’s self-reports were less reliable because: (1)
plaintiff had a significant history of back problems “with three prior, very remote back surgeries
[but] the record does not indicate these back problems interfered with his past work”; and (2)

plaintiff’s work history and daily activities showed that his back problems “were generally well
controlled with the use of prescribed medication” and activity modification Tr. 21.
The ALJ’s reasons for rejecting plaintiff’s testimony regarding the extent of his functional
capacities are not supported by substantial evidence. First, the ALJ weighed plaintiff’s previous
medication use and back surgeries—occurring in 1996, 2010, and 2012—against his work history.
Tr. 19, 21. The Court notes plaintiff has a degenerative condition and that he stopped working in
February 2014. Tr. 15. Under these circumstances, plaintiff’s past work is less relevant. See Meier
v. Astrue, 404 F. App’x 150, 151 (9th Cir. 2010) (when a plaintiff “suffers from a degenerative
condition, [his] participation in activities several years ago carries less weight than does his more

recent activity level”). Indeed, even the ALJ acknowledged that plaintiff was capable of only
“intermittent” work between 2005 and 2012, and “since 2012 he has reported much more difficulty
with prolonged sitting and standing.” Tr. 21.
Moreover, the majority of the evidence from the adjudicative period is consistent with
plaintiff’s testimony4 and, as such, does not support a negative credibility finding. See Reddick v.
Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“claimants should not be penalized for attempting to

4 The 550-plus page record contains only two isolated instances of more strenuous activities—i.e.,
roller skating and hanging Christmas lights. Tr. 386, 477. Plaintiff sought treatment for injuries
following participation in each activity. Id. Given the overall tone and content of the record,
coupled with the infrequency of these activities, they do not constitute substantial evidence.
lead normal lives in the face of their limitations”); see also Coaty v. Colvin, 2015 WL 1137189,
*4-5 (D. Or. Mar. 11, 2015), aff’d, 673 F. App’x 787 (9th Cir. 2017) (“contemporaneous self-
reports to medical providers, as memorialized by their treatment notes, are the most accurate
portrayal of functioning” where “there is a remote date last insured”). In particular, the record
indicates plaintiff frequently struggles with daily activities and medication generally provides only

limited relief. Tr. 304, 345, 385, 471, 505. Therefore, plaintiff’s activities—i.e., occasionally
driving and socializing, completing relatively limited daily chores with breaks, and infrequent
fishing trips with assistance and accommodations for standing, sitting, and walking—are neither
transferable to a work setting nor contradict claims of a totally debilitating impairment.
Furthermore, plaintiff had an MRI in May 2016 showing significant back issues including
moderate and severe “[m]ultilevel degenerative disc disease,” “potential nerve root irritation
and/or impingement,” and “severe diffuse disc bulge[s].” Tr. 293–94; see also Dahl v. Comm’r of
Soc. Sec., 2015 WL 5772060, *5 (D. Or. Sept. 30, 2015) (even mild degenerative disc disease can
be disabling) (collecting cases). Given the severity of these findings, Dr. Stevens stated: “there are

no further medical therapies which will cure or solve his back [so he must] adjust his activity level
which requires unstructured days.” Tr. 515. Essentially, there is nothing in the record to contravene
plaintiff’s self-reports concerning his need to alternate positions, pace himself and take frequent
breaks, and utilize a cane or walker for mobility.
In sum, the ALJ’s reasons for discounting plaintiff’s subjective symptom testimony are not
supported by substantial evidence in the record. The ALJ’s evaluation of plaintiff’s testimony is
reversed.
II. Medical Opinion Evidence
Plaintiff asserts the ALJ wrongfully rejected the opinions of Drs. Stevens5 and Potter. Pl.’s
Opening Br. 8 (doc. 13). At the time of plaintiff’s application, there were three types of acceptable
medical opinions in Social Security cases: those from treating, examining, and non-examining
doctors. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). To reject the uncontroverted opinion

of a treating or examining doctor, the ALJ must present clear and convincing reasons, supported
by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citation
omitted). If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion,
it may be discredited by specific and legitimate reasons, supported by substantial evidence. Id.
A. Dr. Stevens—Physical Assessment
Dr. Stevens became plaintiff’s primary care physician in 2005 and managed his medical
care through 2019. Tr. 514, 584. In May 2017, Dr. Stevens conducted a physical evaluation of
plaintiff and commented:
“[Plaintiff] is well known to me . . . He has a long history back pain and was on
chronic pain medication . . . when I took over his care 2005. . . He started having
difficulty with falling due to severe pain jabs as far back as 2009. His pain seemed
to progressively get worse after about 2010 . . . This limits his activities of daily
living including fitness, hobbies, home chores, sleep and ability to work. He reports
he carefully adjusts the activity in his day so that he can get through basic activities
of daily living without causing severe flares of pain. He is maintained on a
combination of self care activities and medications which he reports are helpful but
minimally so. The most successful self care tool he has is pacing and being able to
adjust his activity level which requires unstructured days. There are no further
medical therapies which will cure or solve his back pain.”

Tr. 514–15.

5 Dr. Stevens also appears in the record as “Leslie Ann Stevens Sorweide” and “Leslie A.
Sorweide.” Tr. 35.
In March 2019, Dr. Stevens completed a “Functional Assessment of Work-Related
Physical Activities.” The Assessment found plaintiff can sit for less than one hour in a typical
workday, must alternate positions to relieve pain or discomfort, must be allowed short breaks
multiple times per hour, and may not bend to the ground. Tr. 584–86. Dr. Stevens further noted
that plaintiff was a “fall risk,” has “impaired endurance and mobility,” and uses a cane. Tr. 587.

The ALJ afforded Dr. Stevens’ physical assessment “no weight because it lacks support
from the record.” Tr. 22. Specifically, the ALJ asserted: (1) “there is no evidence the claimant has
any problems sitting [and] his activities of daily living do not reflect this either;” (2) “[t]here is
nothing in the record that indicates he has to use a cane to get around;” and (3) Dr. Stevens “merely
filled out a check box form without providing any explanation for her findings.” Id.
The ALJ’s assessment of Dr. Stevens’ opinion is not supported by substantial evidence.
First, the record shows plaintiff previously expressed and was observed to have postural issues.6
Tr. 361, 408, 515–16. As addressed in Section I, both his self-reports and daily activities, as
memorialized by his contemporaneous medical records, reflect problems sitting. See, e.g., Tr. 323,

374, 407, 521. Additionally, plaintiff was instructed by his physical therapist to “avoid prolonged
sitting or long car rides.” Tr. 342.
Likewise, the record shows plaintiff’s physical therapist recommended use of a cane or
walker. Tr. 326. Plaintiff was also observed to use a cane or walker on multiple occasions—in
some instances presenting with an unsteady gate. Tr. 300, 339, 341, 357, 380, 407, 463, 487.
Finally, the fact that Dr. Stevens used a check-box form is not, alone, sufficient to reject
her opinion, especially given her lengthy treating relationship with plaintiff and the accompanying

6 The sole reference in the record to plaintiff appearing comfortable while sitting occurred in June
2016, after he received an epidural steroid injection following the administration of 100mcg of
Fentanyl. Tr. 308, 311.
chart notes. In fact, an ALJ can only reject a check-box form where it is not based on a provider’s
past or current experience with the patient. See Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir.
2014) (ALJ erred when she “failed to recognize that the opinions expressed in [the] check-box
form. . . were based on significant experience with [the claimant] and supported by numerous
records”).

Dr. Stevens’ record shows that she actively managed plaintiff’s medical care for 14 years
and her check-box form is supported by previous examinations and treatment notes. Tr. 514. For
instance, her statement concerning the need to alternate sitting and laying down to relieve pain or
discomfort is supported by various notes throughout the record. See, e.g., Tr. 342, 383. Further,
Dr. Stevens had access to objective imaging studies of plaintiff's back, which, as discussed above,
showed moderate and severe neural foraminal narrowing and nerve root impingement at various
levels. Tr. 294; see also Wright v. Berryhill, 2017 WL 3399855, *6-7 (D. Or. Aug. 7, 2017)
(reversing the ALJ’s rejection of a treating provider’s opinion regarding the claimant's limitations
from severe back pain where imaging studies in the record “revealed mild to moderate spinal cord

compression and stenosis”). Therefore, the ALJ erred as to this issue.
B. Dr. Stevens—Mental Assessment
In March 2019, Dr. Stevens also completed a “Functional Assessment of Work-Related
Mental Activities” form, indicating plaintiff would be moderately to severely limited in
understanding/remembering/carrying out detailed instructions, maintaining
attention/concentration for extended periods of time, and traveling to unfamiliar places or using
public transportation; and severely limited in performing activities within a schedule, maintaining
regular attendance, and completing a normal work day/week without interruptions from
psychologically based symptoms. Tr. 583–84.
The ALJ afforded Dr. Stevens’ mental assessment no weight because she failed to
demonstrate familiarity with plaintiff’s mental health conditions. Tr. 22. “Dr. Sorweide’s opinion
provides little guidance with which to assess functional capacity. It is not persuasive because she
does not treat the claimant for mental health issues [and] failed to identity any psychiatric condition
the claimant might have.” Id. Accordingly, the ALJ gave greater weight to the mental health

specialist’s opinion, Dr. Potter. Id.
A treating physician’s opinion may be rejected if it “is brief, conclusory, and inadequately
supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Similarly,
inconsistency with the record or a medical provider’s own treatment notes constitutes a legally
sufficient reason to reject that opinion. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692–
93 (9th Cir. 2009). Generally, more weight is given “to the medical opinion of a specialist about
medical issues related to his or her area of specialty than to the medical opinion of a source who
is not a specialist.” 20 C.F.R. § 416.927(c)(5).
The ALJ provided legally sufficient reasons for discounting Dr. Stevens’ mental health

findings. However, an independent review of the record reveals Dr. Stevens managed plaintiff’s
mental health care—though limited to medication management—since 2013. Tr. 359–61, 394–95,
407–08, 530–31. The earlier reference in the record occurred in April 2013, when Dr. Stevens
prescribed Cymbalta for plaintiff’s depression, denoting “[i]f ineffective will refer to [mental
health] for consult/medication recommendations.” Tr. 408. In December 2013, two months before
the alleged onset date, plaintiff reported the Cymbalta was managing his depression well, yet stated
his anxiety was hindering him from falling asleep; however, plaintiff was reporting a number of
situational stressors related to his work environment at that time. Tr. 396. Plaintiff followed-up
telephonically with Dr. Stevens a month later and noted the medications were working well but he
had increased anxiety due to the loss of his father. Tr. 394.
Thereafter, there are no records related to plaintiff’s mental health until December 2014,
at which point plaintiff requested changes to his mental health medications due to back pain and
financial/personal stressors. Tr. 369-70. In January 2015, Dr. Stevens referred plaintiff to

psychiatrist Cheryl Chessick, M.D. describing plaintiff’s depression/anxiety as “chronic – always
present though worse since chronic pain and doesn’t help [that he] had a stressful last 1-2 years
with family illness/death.” Tr. 360-61. Plaintiff followed up with Dr. Chessick the same month
and received new medications to help manage his anxiety and depression. Tr. 357. In February
2015, plaintiff reported the medications were “working great” with no notable side effects. Tr.
355. There are no other treatment records concerning plaintiff’s depression or anxiety, or
documenting any mental health complaints, until February 2018, when plaintiff reported adverse
side effects with his medication and requested a change. Tr. 530.
Thus, the record as it relates to plaintiff’s mental health treatment, including Dr. Stevens’

chart notes, are not consistent with Dr. Stevens’ moderately severe and severe restrictions. Plaintiff
sought mental health counseling on a single occasion during the adjudication period, and both Dr.
Chessick’s and Dr. Stevens’ limited notes suggest plaintiff’s anxiety and depression were related
to his long-standing back pain and other situational stressors. In any event, these records do not
reflect any significant disruption in mental functioning. Furthermore, the ALJ largely relied on the
less restrictive assessment of Dr. Potter, a mental health specialist, as discussed in greater detail
below.
C. Dr. Potter—Mental Assessment
In November 2016, Dr. Potter examined plaintiff at the request of the Oregon Department
of Human Services to assist in the determination of benefit eligibility. Tr. 460. Dr. Potter
specifically assessed the impacts of plaintiff’s anxiety, depression, and memory issues as relating
to his day-to-day functions:

“[Plaintiff] would be able to understand simple instructions. . . [He] completes
activity of daily living independently with some exceptions. [Plaintiff] describes
having back pain and not being able to bend or complete task[s] below the waist.
Therefore, he needs assistance to complete task[s], such as maintenance of the
residence, household responsibilities, tying shoes 2–3 times a week, transfer
between/from furniture 5–6 times a week, assistance walking—needing with arm
support about 25% of time, and assistance with organizing medications and
reminders to take them. These limitations are mostly related to physical health
problems related to his back, however, difficulty managing medications may be
associated with depressive functioning and reported memory loss.”

Tr. 464.
The ALJ provided “partial weight [and] not . . . full weight” to Dr. Potter’s evaluation
“because there is insufficient evidence to support a restriction to simple instructions.” Tr. 22. In
particular, the ALJ noted Dr. Potter’s limitation was based on plaintiff’s “inability to copy
interlocking pentagrams correctly [but] it is not obvious [this mistake] translates into an inability
to perform work requiring him to understand more than simple instructions” and “[t]reatment notes
show the claimant is capable of understanding.” Id.
Here, the ALJ did not err in rejecting Dr. Potter’s opinion concerning simple instructions.
Throughout the record, plaintiff endorsed understanding and agreement of treatment plans
including at-home care instructions. Tr. 319, 323, 327, 335, 354, 409, 488. He also indicated the
ability to drive independently, shop for groceries, complete conversations and television shows,
and follow written instructions if “well written.” Tr. 205-07. Dr. Stevens’ chart notes do not reflect
any observed issues related to plaintiff’s comprehension or knowledge retention. Tr. 582. Nothing
in the record suggests a limitation to simple instructions is appropriate. Therefore, the ALJ’s
evaluation of the mental health opinion evidence is affirmed.
III. RFC and Step Four Finding
Plaintiff asserts the ALJ’s RFC and step four finding are erroneous because they do not
adequately account for the limitations described in his testimony, or the medical opinions of Drs.

Stevens and Potter.
This argument is partially well-taken. As specified above, the ALJ wrongfully discounted
portions of plaintiff’s and Dr. Stevens’ statements. Because the ALJ failed to account for this
evidence in plaintiff’s RFC, the ALJ erred in relying upon the VE’s testimony at step four. See
Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (if a VE’s “hypothetical does not reflect all
the claimant’s limitations, then the . . . testimony has no evidentiary value”) (simplified). Thus,
the ALJ’s ultimate decision is not supported by substantial evidence and remand is necessary.
IV. Remedy
The decision whether to remand for further proceedings or for the immediate payment of

benefits lies within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1176-78 (9th Cir.
2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is
appropriate when no useful purpose would be served by further administrative proceedings or
when the record has been fully developed and the evidence is insufficient to support the
Commissioner’s decision. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1090-1100
(9th Cir. 2014). The court may not award benefits punitively and must conduct a “credit-as-true”
analysis on evidence that has been improperly rejected by the ALJ to determine whether a claimant
is disabled. Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011); see also
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the standard for
determining the proper remedy).
In this case, the ALJ erred by failing to provide a legally sufficient reason, supported by
substantial evidence, for rejecting plaintiff’s testimony concerning the need to change positions
and take frequent breaks. Likewise, the ALJ neglected to furnish a legally sufficient reason,

supported by substantial evidence, for discrediting treating Dr. Stevens’ opinion concerning
plaintiff’s physical impairments. In addition, an independent review of the record does not reveal
any evidence that casts serious doubt on the debilitating extent of plaintiff’s physical impairments.
Rather, the objective medical evidence and plaintiff’s self-reported activities show a severe
limitation in functioning due to back pain. Nor is there any indication plaintiff’s back condition,
which is degenerative in nature, improved after the ALJ’s decision but prior to the date last insured.
See Daley v. Colvin, 2014 WL 5473797, *9 (D. Or. Oct. 28, 2014) (degenerative disc disease is a
condition that, “by definition, progressively worsens over time”).
Thus, the record has been fully developed and there are no outstanding issues remaining

for resolution. Plaintiff was 59 years old on the alleged onset date and is currently 66, meaning
that he qualified as a person of “advanced age” or “closely approaching retirement age” at all
relevant times. 20 C.F.R. § 404.1563(e). He is therefore entitled to benefits under the Medical-
Vocational Guidelines if he is unable to perform past work and limited to sedentary work with no
transferrable skills. 20 C.F.R. § 404.1568(d)(4); 20 C.F.R. § 404, Subpart P, App’x 2, Rule 201.00,
et seq. Here, the VE did not identify any transferrable skills and further testified that a hypothetical
individual who was required to miss more than one day of work per month, take additional breaks,
or periodically lay down throughout the day would be unable to maintain competitive employment.
Tr. 41. As such, the Court, in its discretion, credits the improperly rejected evidence as true and
finds plaintiff disabled.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is REVERSED and this case is
REMANDED for the immediate payment of benefits.

IT IS SO ORDERED.
DATED this 6th day of April, 2021.

________/_s/_ J_o_l_ie_ _A_._ R__u_ss_o________
Jolie A. Russo
United States Magistrate Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10393126. Public record. Not legal advice.