# Dillard v. Commissioner Social Security Administration

> District Court, D. Oregon · May 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10393344

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 28, 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/10393344

## How later opinions describe it (automated extraction)

- holding that ALJ did not err by failing to consider a social worker’s opinion issued after the plaintiff’s date last insured regarding the plaintiff’s ability to work

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RYAN D.,1 No. 6:19-cv-00269-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

Defendant.

Mark A. Manning
Katherine Eitenmiller
Harder Wells Baron & Manning, P.C.
474 Willamette Street
Eugene, OR 97401

Attorneys for Plaintiff

Renata Gowie
Assistant United States Attorney
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204

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 or parties in this case. Where applicable, this Opinion uses the
same designation for a non-governmental party’s immediate family member.
Ryan Ta Lu
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Ryan D. brings this action seeking judicial review of the Commissioner’s final
decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant to 42
U.S.C. § 405(g). The Court reverses the Commissioner’s decision and remands this case for
further administrative proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB on November 23, 2015, alleging an onset date of January 12,
2014. Tr. 14, 203.2 Plaintiff’s date last insured (“DLI”) is March 31, 2017. Tr. 16, 203. His
application was denied initially and on reconsideration. Tr. 14.
On August 10, 2017, Plaintiff appeared with counsel for a hearing before an
Administrative Law Judge (“ALJ”). Tr. 30. On March 7, 2018, the ALJ found Plaintiff not
disabled. Tr. 25. The Appeals Council denied review. Tr. 1.
FACTUAL BACKGROUND
Plaintiff alleges disability based on diabetes, chronic back pain, Lyme disease, and Bells
Palsy. Tr. 207. At the time of his alleged onset date, he was thirty-four years old. Tr. 207. He has
a high school education and past relevant work experience as a tree trimmer; driver, sales route;
surveillance system monitor; and commercial cleaner. Tr. 24.

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative
record, filed herein as Docket No. 9.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step

procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases,
agency uses five-step procedure to determine disability). The claimant bears the ultimate burden
of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines
whether the claimant has a “medically severe impairment or combination of impairments.”
Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not
disabled. Id.

In step three, the Commissioner determines whether the claimant’s impairments, singly
or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”
20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the
claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to
the Commissioner. In step five, the Commissioner must establish that the claimant can perform
other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the
Commissioner meets their burden and proves that the claimant can perform other work that
exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,
416.966.

THE ALJ’S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity after his alleged onset date. Tr. 17. Next, at steps two and three, the ALJ determined that
Plaintiff has the following severe impairments:
[L]umbar post laminectomy syndrome; lumbar spondylosis; left shoulder
impingement syndrome; diabetes mellitus type II controlled with treatment and
without complications; neuropathy of the bilateral feet; unspecified
mononeuropathy of the right lower extremity status post remote history of gunshot
wound; obesity; anxiety; [and] depression.
Tr. 17. However, the ALJ determined that Plaintiff’s impairments did not meet or medically
equal the severity of a listed impairment. Tr. 19. At step four, the ALJ concluded that Plaintiff
has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b)
with the following limitations:
The claimant is able to lift and/or carry twenty pounds occasionally and ten pounds
frequently. He is able to stand for two hours total in an eight-hour workday with
normal breaks. He is able to walk two hours total in an eight-hour workday with
normal breaks and up to six blocks at one time. He is able to sit for six hours total
in an eight-hour workday with normal breaks. He is able to perform work limited
to reaching no higher than the shoulder level with the left upper extremity. He
requires the ability to shift positions between sitting and standing to manage pain
at will. He is able to perform work limited to occasionally climbing . . . ladders,
ropes, or scaffolds. He is able to perform work limited to frequent balancing,
stooping, kneeling, crouching, crawling, and/or climbing of stairs or ramps. He is
able to perform work limited to occasional superficial interaction with the public.
Tr. 21. Within those limitations, the ALJ concluded that Plaintiff could perform his past relevant
work as a surveillance system monitor. Tr. 24–25. Thus, the ALJ concluded that Plaintiff is not
disabled. Tr. 25.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings “are based on legal error or are not supported by substantial evidence
in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal
quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a
whole, including both the evidence that supports and detracts from the Commissioner’s decision.
Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is
susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”
Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either
a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s”) (internal
quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ erred by failing to identify legally sufficient bases supported
by substantial evidence in the record to reject the medical opinion of Plaintiff’s treating doctor
and Plaintiff’s subjective symptom testimony. Pl. Br. 13–21, ECF 10. Plaintiff asks the Court to
exercise its discretion to credit the medical opinion and subjective symptom testimony as true
and remand the case for an award of benefits. Id. at 14, 21.
I. Medical Opinion Evidence
Plaintiff argues that the ALJ erred by according little weight to Dr. Nancy Keller’s May
2017 and July 2017 opinions because the reasons the ALJ gave for discounting Dr. Keller’s
opinions are not legitimate or supported by substantial evidence in the record. Pl. Br. 14–15.
Social Security law recognizes three types of physicians: (1) treating, (2) examining, and (3)

non-examining. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). More weight should
typically be given to an examining physician than to a non-examining physician. Id. “‘If a
treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may
only reject it by providing specific and legitimate reasons that are supported by substantial
evidence.’” Id. (quoting Ryan v. Comm’r, 528 F.3d 1194, 1198 (9th Cir. 2008)). When
determining how much weight to give a medical opinion, the ALJ should consider the nature and
extent of the physician’s examining or treating relationship with the claimant, supportability of
the opinion, consistency with the record as a whole, the specialization of the physician, and other
relevant factors. 20 C.F.R. § 404.1527(c).

A. Dr. Keller’s May 2017 Opinion
Dr. Keller treated Plaintiff six or seven times between September 2016 and July 2017. Tr.
611. In May 2017, two months after Plaintiff’s date last insured, Plaintiff visited Dr. Keller. Tr.
555. He reported issues with Prozac, controlling his blood sugar, and back pain. Id. Plaintiff
described his history of back pain dating back to 2001 and described an inability to work full
time after he lost his job in 2012 due to “cutbacks.” Id. He also reported that he experienced pain
after sitting for prolonged periods that he relieved by laying down. Id. Under the “back pain”
section of her “Discussion/Summary,” Dr. Keller noted that Plaintiff was permanently disabled
and unable to work based on: (1) his back pain, which had not been relieved by his back surgery;
(2) his inability to work a full day; and (3) the likelihood that he would miss multiple days of
work due to his pain. Tr. 558. Notably, this record does not attribute Plaintiff’s disability to the
other conditions Dr. Keller treated at that time, which included agitation, diabetes, hypertension,
tachycardia, anxiety, and depression. Id. At the end of the visit, Dr. Keller provided Plaintiff with
a note “to give to the children’s services for child support” about his disability. Id.

The ALJ gave very little weight to Dr. Keller’s opinion because it was not supported by
the longitudinal record, “including Dr. Keller’s own mostly normal examination findings.” Tr.
24. The ALJ also explained that Dr. Keller’s opinion was inconsistent with the records of
Plaintiff’s prior treating physician during the two years before Dr. Keller began treating Plaintiff
and that the opinion “invades the area reserved to the Commissioner regarding a finding of
disability[.]” Id.
Plaintiff argues that the ALJ erred by discounting Dr. Keller’s May 2017 opinion because
the reasons the ALJ identified are either not legitimate or not supported by substantial evidence
in the record. Pl. Br. 14–15. Plaintiff argues that the longitudinal record demonstrates significant

and persistent objective findings consistent with Dr. Keller’s conclusion that Plaintiff is disabled.
Id. In support of that argument, Plaintiff points to abnormal objective findings in the record that
relate to Plaintiff’s back and his other impairments, including his left shoulder, neck, leg,
thoracic spine, tachycardia, and diaphoresis. Pl. Br. 15. However, Dr. Keller appeared to base her
May 2017 opinion that Plaintiff is disabled only on his back pain. Tr. 558 (discussing Plaintiff’s
disability under the heading “Back pain”).
The ALJ’s conclusion that the longitudinal record did not support Dr. Keller’s opinion
that Plaintiff’s back impairments were disabling is supported by substantial evidence in the
record. See, e.g., Tr. 522 (narcotic therapy is making his pain tolerable); Tr. 524 (reviewing
normal cervical and thoracic spine MRIs and noting that left shoulder ultrasound did not identify
a rotator cuff tear); Tr. 322 (continues to find his current medications helpful); Tr. 334 (heard a
pop in his back while tearing carpet out of his home); Tr. 487 (back to work doing maintenance).
More importantly, Dr. Keller herself found Plaintiff able to work with restrictions just two
months later and described his neck and back pain as “probably muscular related and probably

some arthritis,” but “it does not look like anything surgical.” Tr. 612. Plaintiff argues that the
Court should reverse the ALJ’s decision in favor of Dr. Keller’s May 2017 opinion that Plaintiff
is disabled without acknowledging that Dr. Keller’s July 2017 opinion directly contradicts it.
Where the evidence is susceptible to two rational interpretations, the Court must affirm. Vasquez,
572 F.3d at 591. As a result, the ALJ did not err by giving very little weight to Dr. Keller’s
opinion contained in her May 2017 treatment record. See Turner v. Comm’r, 613 F.3d 1217,
1224 (9th Cir. 2010) (holding that ALJ did not err by failing to consider a social worker’s
opinion issued after the plaintiff’s date last insured regarding the plaintiff’s ability to work).
The ALJ’s conclusion that Dr. Keller’s exam findings before May 2017 were “mostly

normal,” is not supported by substantial evidence in the record. Dr. Keller’s records between
September 2016 and May 2017 do not document any examinations of his back, shoulder, or legs.
Tr. 563–81. At Plaintiff’s first visit with Dr. Keller, he asked to be weaned off his pain
medications. Tr. 576. After his initial visit with Dr. Keller in September 2016, Dr. Keller saw
Plaintiff three other times before his date last insured. Tr. 563–75. Dr. Keller’s treatment of
Plaintiff focused primarily on managing his anxiety, depression, elevated heart rate, and diabetes
with few references to his back pain and no documented examinations of his back. See Tr. 563
(diabetes and social anxiety); Tr. 567 (diabetes); Tr. 572 (back pain, diabetes, hemorrhoids). Dr.
Keller did, however, continue to manage weaning him from narcotic pain medications during
that time. As a result, the ALJ’s determination that Dr. Keller’s examinations of Plaintiff were
“mostly normal” is not supported by substantial evidence in the record.
Plaintiff also contends that the ALJ erred by discounting Dr. Keller’s opinion because Dr.
Amavisca, Plaintiff’s primary provider before he initiated care with Dr. Keller, had found no
work limitations during the entire relevant period. Pl. Br. 15. In drawing that conclusion, the ALJ

cited a work excuse note completed by Dr. Amavisca that indicated that Plaintiff could return to
work with no restrictions on July 22, 2013, after a nineteen-day absence. Tr. 24 (citing Tr. 468).
Plaintiff argues that the ALJ erred by relying on a record that Dr. Amavisca created before
Plaintiff’s date of onset. Pl. Br. 15. The Court disagrees. The July 2013 release to work
establishes that as of July 2013, Dr. Amavisca did not believe that Plaintiff had any limitations
from performing full-duty work. Because Dr. Amavisca’s records between Plaintiff’s date of
onset in January 2014 through Dr. Amavisca’s last visit with Plaintiff in June 2016 impose no
limitations on Plaintiff’s ability to work, Tr. 347–401, 498–519, the ALJ’s conclusion is
supported by substantial evidence. As a result, the ALJ did not err by discounting Dr. Keller’s

opinion based on Dr. Amavisca’s conflicting findings.
Plaintiff also argues that the ALJ improperly discounted Dr. Keller’s May 2017 opinion
that Plaintiff is disabled on the ground that the disability determination is an issue reserved for
the Commissioner. Pl. Br. 16. Plaintiff asserts that although it is a correct statement of the law, it
is not a specific and legitimate reason to reject a treating medical opinion. Id. Although that is
true, see Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012), the ALJ provided the other legally
sufficient reasons identified above to give very little weight to Dr. Keller’s opinion. As a result,
the ALJ’s finding must be affirmed.
///
B. Dr. Keller’s July 2017 Opinion
In July 2017, Dr. Keller wrote a more detailed opinion outlining Plaintiff’s ability to
work. Tr. 611. Dr. Keller noted that Plaintiff has chronic low back pain that has not been relieved
with surgery, injections, and extensive narcotic medication trials. Id. She explained that Plaintiff
has anxiety, depression, irritability, insomnia, and social phobia. Id. Dr. Keller also noted that

Plaintiff has left shoulder pain, neck pain, a chronic thoracic spine strain, and Bells Palsy, a
condition that results in one-sided facial paralysis. Id. Dr. Keller explained that Plaintiff also has
neuropathy which causes his feet to go numb. She noted that Plaintiff has sinus tachycardia and
that she had observed him become diaphoretic in her presence before. Id. at 611–12.
Dr. Keller opined that Plaintiff can walk about six blocks, sit for up to two hours with
breaks, and stand and walk for an hour at a time with frequent rest periods. Tr. 612. Dr. Keller
found that Plaintiff would need multiple unscheduled breaks during an eight-hour period, require
the ability to shift positions, “probably have to lay down to get a break from the pain,” lift no
more than ten pounds, and not reach with his left arm or look overhead. Id. Dr. Keller also noted

that Plaintiff would have difficulty working with the public due to his social phobia, anxiety, and
depression. Id. at 613. As discussed above, contrary to her May 2017 opinion, Dr. Keller no
longer characterized Plaintiff as “permanently disabled.” Id.
The ALJ gave “some weight” to Dr. Keller’s July 2017 opinion. Tr. 23. The ALJ
identified several reasons that she discounted Dr. Keller’s July 2017 opinion: (1) Dr. Keller saw
Plaintiff only five times during the period at issue; (2) Dr. Keller based her opinion largely on
Plaintiff’s subjective reports rather than objective clinical findings; (3) the opinion was not
consistent with the opinions of Plaintiff’s pain specialists or Plaintiff’s prior primary doctor; (4)
Dr. Keller’s assessed limitations were inconsistent with her own treatment notes that show few
objective findings to support the extreme limitations she identified; and (5) Plaintiff reported that
he was doing reasonably well with activities while on narcotic medications in 2014 and 2015. Tr.
23.
Plaintiff first argues that the ALJ erred because he found that Dr. Keller saw Plaintiff
only five times when, in fact, Dr. Keller saw Plaintiff seven times in a ten-month period before

issuing her opinion. Pl. Br. 17. Plaintiff argues that by failing to explain why that level of
treatment was insufficient for Dr. Keller to substantiate her conclusions, the ALJ erred. Plaintiff
is incorrect. The length of treatment and frequency of examination are relevant factors for an
ALJ to consider when determining how much weight to give a medical opinion. 20 C.F.R. §
404.1527(c)(2)(i). Plaintiff’s further argument that the longitudinal record “which, as [Plaintiff’s]
primary care provider, Dr. Keller would have had access to and considered in assessing
[Plaintiff’s] functional limitations”, Pl. Br. 17, is speculative and does not warrant reversal of the
ALJ’s decision.
Plaintiff next argues that the ALJ erred by discounting Dr. Keller’s opinion because the

ALJ did not explain how Dr. Keller’s opinion conflicted with the reports of Plaintiff’s pain
specialists or prior primary provider. Pl. Br. 17. However, that argument misstates the
Commissioner’s burden. The ALJ must offer specific and legitimate reasons supported by
substantial evidence to discount a treating doctor’s opinion that is contradicted by another
doctor’s opinion. Garrison, 759 F.3d at 1012 (citation omitted). As explained above, the ALJ
noted that Dr. Keller’s opinion conflicted with the findings of Plaintiff’s prior primary provider,
Dr. Amavisca, because Dr. Amavisca did not impose any limitations on Plaintiff’s ability to
work after his date of onset. See Tr. 24. As for Plaintiff’s pain specialists, the ALJ explained that
Plaintiff had “told the pain treatment sources he was doing reasonably well with activities while
on the medication. Tr. 23. The ALJ offered a specific and legitimate reason to discount Dr.
Keller’s opinion—that Dr. Keller’s opinion contradicted the records of Plaintiff’s prior primary
physician and pain specialists—and Plaintiff does not argue that the ALJ’s decision on that point
was not supported by substantial evidence, except to point out that if the ALJ based that finding
on Dr. Amavisca’s 2013 work release, that release concerned the period before Plaintiff’s onset

of disability and was not a reasonable basis for rejecting Dr. Keller’s opinion. Pl. Br. 17. Because
the Court finds that the ALJ provided a specific and legitimate reason to discount Dr. Keller’s
opinion and Plaintiff does not argue that it was unsupported by substantial evidence, the ALJ did
not err.
Next, Plaintiff argues that the ALJ erred by discounting Dr. Keller’s opinion because
Plaintiff told his pain specialists that he did reasonably well with activities while on opiate
medications in 2014 and 2015. Pl. Br. 17–18 (citing Tr. 23). Plaintiff argues that, although he
had received some relief from pain medications, he was eventually weaned from them because
they caused significant side effects and were ineffective at managing his pain long-term. Pl. Br.

18. After weaning from the medications, Plaintiff reported that he was “miserable with pain.” Id.
(citing Tr. 572). The Court agrees with Plaintiff that the ALJ’s conclusion that Plaintiff’s pain
was managed with medications is not supported by substantial evidence. First, any benefit of
pain medications Plaintiff enjoyed in 2014 and 2015 was short-lived. The doctor who prescribed
pain medications to Plaintiff remarked that Plaintiff “has, over time, proven that every opioid is
either intolerable or ineffective and I am concerned that opioids will do more harm than good.
Many patients become over sensitized to pain due to opioid use and I find that Naltrexone
therapy can help with this issue and is ordered.” Tr. 538. Two months later, Plaintiff began to
wean from his pain medications. Tr. 573 Second, the record establishes that in 2014 and 2015,
despite “doing reasonably well,” Plaintiff rated his level of physical functioning 50/100, his
energy and fatigue 5/100, his pain 50/100, and his general health 55/100. Tr. 319. He also rated
the interference of his pain with his level of activity 4/5. Tr. 322. Although it is accurate that
Plaintiff’s pain specialist remarked that Plaintiff had done reasonably well with activities on pain
medications, the pain treatment records are rife with self-evaluations in which Plaintiff rated his

overall level of functioning quite low. Thus, the ALJ’s conclusion is not supported by substantial
evidence. See Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (ALJ decision that
relied on isolated instances of improvement to discount treating physician’s testimony—when
the weight of the evidence did not reflect improvement—was not supported by substantial
evidence).
Finally, the ALJ remarked while discussing Dr. Keller’s opinion that Plaintiff had
suffered a gunshot wound to his right lower extremity and that Dr. Keller’s opinion noted the
gunshot wound was in his left lower extremity. The ALJ pointed out that mistake in his
discussion of why he discounted Dr. Keller’s opinion, but did not explain why that mistake

undermined Dr. Keller’s opinion. Tr. 23. As a result, that was not a specific and legitimate
reason to discount Dr. Keller’s testimony. Because the ALJ provided other legally sufficient
reasons to discount Dr. Keller’s testimony, the errors the Court has identified were harmless.
Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006) (An error is harmless if it is
inconsequential to the non-disability determination.).
II. Subjective Symptom Testimony
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL
5180304, at *1 (Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal
relationship between the impairment and some level of symptoms, clear and convincing reasons
are needed to reject a claimant’s testimony if there is no evidence of malingering. Carmickle v.
Comm’r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is
malingering, “where the record includes objective medical evidence establishing that the
claimant suffers from an impairment that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on clear and convincing reasons”)

(quotation marks and citation omitted); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.
2012) (the ALJ engages in a two-step analysis for subjective symptom evaluation: First, the ALJ
determines whether there is “objective medical evidence of an underlying impairment which
could reasonably be expected to produce the pain or other symptoms alleged”; and second, “if
the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ
must give specific, clear and convincing reasons in order to reject the claimant’s testimony about
the severity of the symptoms.”) (quotation marks and citations omitted), superseded by
regulation on other grounds as stated in Thomas v. Saul, 830 F. App’x 196, 198 (9th Cir. 2020).
When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a
claimant’s testimony by simply reciting the medical evidence in support of his or her residual
functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).
Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and
must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195
(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons
proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ
did not arbitrarily discount the claimant’s testimony.”).
Plaintiff argues that the ALJ erred when he discounted Plaintiff’s subjective symptom
testimony for the following reasons: (1) the objective medical evidence was inconsistent with the
degree of impairment Plaintiff alleged; (2) Plaintiff had worked in the past despite his
impairments; and (3) Plaintiff’s testimony contradicted his reports to medical providers.
First, Plaintiff argues that the ALJ erred by finding that the degree of impairment alleged

by Plaintiff was inconsistent with the objective medical evidence because Plaintiff has the
burden to show only that his impairment could cause some degree of symptoms. Pl. Br. 20. The
ALJ must consider all symptoms “and the extent to which [those] symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. §
404.1529(a). An ALJ may reject a plaintiff’s subjective symptom testimony that does “not
comport with objective evidence in [his] medical record.” Bray v. Comm’r, 554 F.3d 1219, 1227
(9th Cir. 2009). The ALJ rejected Plaintiff’s testimony about the limiting effects of his symptoms
because they were inconsistent with the objective medical findings. Tr. 22. However, the ALJ
did not identify any actual inconsistency. Tr. 22. The ALJ noted that Plaintiff conceded that he

may be able to relieve his back pain with frequent position changes rather than lying down. Id.
The ALJ also noted that Plaintiff’s gunshot wound and lumbar impairments developed in 2000,
and he had been able to work for years after that until the relevant period. Id. The ALJ remarked
that Plaintiff’s “subjective complaints alleging limitations beyond those described in the residual
functional capacity are not consistent with the longitudinal objective medical evidence.” Id.
None of those statements demonstrate any inconsistency between the intensity, persistence, and
limiting effects of Plaintiff’s alleged symptoms and the objective medical evidence. Accordingly,
the ALJ’s stated reason is not supported by substantial evidence.
Second, the ALJ rejected Plaintiff’s subjective symptom testimony because Plaintiff had
been able to work in the past, including after his alleged date of onset, with the same
impairments he alleges form the basis for his disability. Tr. 22. In doing so, the ALJ emphasized
that Plaintiff worked for one week in 2014 and only discontinued that work because it was
temporary, not because his impairments prevented him from performing the job. Id. Plaintiff

argues that one week of work, which was not substantial gainful activity, is not a clear and
convincing reason to reject Plaintiff’s testimony and does not establish that he can sustain full-
time, competitive work. Pl. Br. 20. The Court agrees. Although Plaintiff worked temporarily for
a week during 2014, the record contains no evidence of the work tasks he performed, the level of
physical exertion the job required, whether Plaintiff required breaks and other accommodations
to perform the work, whether he would have been able to continue the work if the position was
long-term or permanent, or any other information that undermines Plaintiff’s testimony
concerning the intensity, persistence, and limiting effects of his symptoms. As a result, Plaintiff’s
performance of a week of work in 2014 was not a clear and convincing reason to reject

Plaintiff’s subjective symptom testimony.
Finally, Plaintiff argues that the ALJ erred by rejecting Plaintiff’s subjective symptom
testimony because Plaintiff made inconsistent statements during his disability claim. The ALJ
highlighted a number of statements Plaintiff made during his hearing testimony that contradicted
statements he made to his treating physicians and in his disability application concerning topics
other than the intensity, persistence, and limiting effects of his symptoms. Tr. 22–23. The
statements identified by the ALJ included Plaintiff’s admission that he performed work in 2014
that he failed to report in his application, his statement about whether he went to the hospital
immediately after his 2013 car accident or twelve days later, his statements about the reason he
did not complete physical therapy, and whether he received neck injections following his 2013
car accident. Tr. 22–23. After describing the inconsistent statements, the ALJ concluded that
Plaintiff’s “inconsistent statements and symptom magnification lessen the reliability of his
limitation allegations.” The ALJ did not explain what he meant by “symptom magnification” or
explain how those statements related to the intensity, persistence, and limiting effects of his

symptoms. The ALJ’s decision makes clear that the ALJ rejected Plaintiff’s subjective symptom
testimony because the ALJ found Plaintiff to be untruthful. By doing so, the ALJ erred. See SSR
16-3p, 2017 WL 5180304, at *2, 11 (“subjective symptom testimony is not an examination of an
individual’s character . . . [t]he focus of the evaluation of an individual’s symptoms should not
be to determine whether he or she is a truthful person”); Trevizo v. Berryhill, 871 F.3d 664, 678
n.5 (9th Cir. 2017) (the purpose of the ALJ’s evaluation of subjective symptom testimony
evaluation is “not to delve into wide-ranging scrutiny of the claimant’s character and apparent
truthfulness.”). Consequently, the ALJ failed to identify any legally sufficient reasons to reject
Plaintiff’s subjective symptom testimony.

III. Credit as True
Plaintiff cursorily argues that the Court should credit Plaintiff’s testimony as true and
remand for an immediate payment of benefits. Pl. Br. 21. The decision whether to remand for
further proceedings or for immediate payment of benefits is within the Court’s discretion.
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). To determine which type of remand is
appropriate, the Ninth Circuit uses a three-part test. Garrison v. Colvin, 759 F.3d 995, 1020 (9th
Cir. 2014); see also Treichler v. Comm’r, 775 F.3d 1090, 1100 (9th Cir. 2014) (“credit-as-true”
rule has three steps). First, the ALJ must fail to provide legally sufficient reasons for rejecting
evidence, whether claimant testimony or medical opinion. Garrison, 759 F.3d at 1020. Second,
the record must be fully developed, and further administrative proceedings would serve no useful
purpose. Id. Third, if the case is remanded and the improperly discredited evidence is credited as
true, the ALJ would be required to find the claimant disabled. Id. To remand for an award of
benefits, each part must be satisfied. Id.; see also Treichler, 775 F.3d at 1101 (When all three
elements are met, “a case raises the ‘rare circumstances’ that allow us to exercise our discretion

to depart from the ordinary remand rule” of remanding to the agency.) (quoting Varney v. Sec’y
of Health & Human Servs., 859 F.2d 1396 (9th Cir. 1988)). Even if those requirements have
been met, the district court retains the flexibility to remand the case for further proceedings,
particularly when the record as a whole creates serious doubts that the claimant is disabled.
Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
The Court finds that the ordinary remand rule is the proper remedy in this case. Although
the ALJ provided no legally sufficient reason to reject Plaintiff’s subjective symptom testimony,
accepting it as true does not establish that Plaintiff is disabled in light of the medical evidence
and the RFC the ALJ developed that incorporated nearly all the limitations identified by both

Plaintiff and Dr. Keller. Accordingly, the Court remands this case for further administrative
proceedings so that the ALJ can determine in the first instance whether and to what extent
Plaintiff’s subjective symptom testimony alters the RFC and the ALJ’s non-disability
determination.
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CONCLUSION
Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED
for further administrative proceedings.
IT IS SO ORDERED.
DATED:____M__a_y_ 2_8__, _2_0_2_1________.

__________________________________
MARCO A. HERNÁNDEZ
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10393344. Public record. Not legal advice.