Kelley v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KATELYN K.,1 Case No. 6:20-cv-00251-SB

Plaintiff, OPINION AND ORDER

v.

KILOLO KIJAKAZI, Acting Commissioner of

Social Security,2

Defendant.

BECKERMAN, U.S. Magistrate Judge.

Katelyn K. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social

Security Administration’s (“Commissioner”) denial of her application for Disability Insurance

Benefits (“DIB”) under Title II of the Social Security Act. The Court has jurisdiction to hear this

appeal pursuant to 42 U.S.C. § 405(g), and all parties have consented to the jurisdiction of a U.S.

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

name of the non-governmental party in this case.

2 Kilolo Kijakazi became the acting Commissioner of the Social Security Administration

on or about July 9, 2021 and is substituted for Andrew Saul as the defendant. See FED. R. CIV. P.

25(d)(1).

Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the Court reverses

the Commissioner’s decision because it is based on harmful legal error and not supported by

substantial evidence.

STANDARD OF REVIEW

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

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

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

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

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

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

1039 (9th Cir. 1995)).

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

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

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

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

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

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

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

(9th Cir. 2007)).

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BACKGROUND

I. PLAINTIFF’S APPLICATION

Plaintiff was born in October 1986, making her twenty-nine years old on February 3,

2016, her alleged disability onset date.3 (Tr. 23, 69, 82.) Plaintiff graduated from high school and

has past relevant work experience as an appointment clerk. (Tr. 22, 58, 174.) In her DIB

application, Plaintiff alleged disability due to postural orthostatic tachycardia syndrome

(“POTS”), fibromyalgia, Ehlers-Danlos syndrome (“EDS”), and chronic migraines.4 (Tr. 70, 83,

173.)

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

on March 8, 2017, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).

(Tr. 13.) Plaintiff and a vocational expert (“VE”) appeared and testified at an administrative

hearing held on August 3, 2018. (Tr. 31-67.) On October 30, 2018, the ALJ issued a written

decision denying Plaintiff’s application. (Tr. 13-24.) On December 18, 2019, the Appeals

3 To be eligible for DIB, “a worker must have earned a sufficient number of [quarters of

coverage] within a rolling forty quarter period.” Herbert v. Astrue, No. 07-cv-01016, 2008 WL

4490024, at *4 n.3 (E.D. Cal. Sept. 30, 2008). Workers accumulate quarters of coverage based

on their earnings. Id. Typically, “the claimant must have a minimum of twenty quarters of

coverage [during the rolling forty quarter period to maintain insured status]. . . . The termination

of a claimant’s insured status is frequently referred to as the ‘date last insured’ or ‘DLI.’” Id.

(citations omitted). Thus, Plaintiff’s date last insured of December 31, 2021 (see Tr. 13) reflects

the date on which her insured status terminated based on the prior accumulation of quarters of

coverage. If Plaintiff established that she was disabled on or before December 31, 2021, she is

entitled to DIB. See Truelsen v. Comm’r Soc. Sec., No. 2:15-cv-02386, 2016 WL 4494471, at *1

n.4 (E.D. Cal. Aug. 26, 2016) (“To be entitled to DIB, plaintiff must establish that he was

disabled . . . on or before his date last insured.” (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th

Cir. 1999))).

4 POTS is a syndrome “in which the patient’s heart rate increases significantly upon

standing without a significant drop in blood pressure,” Hibbard v. Sec’y of Health & Human

Servs., 698 F.3d 1355, 1359 (Fed. Cir. 2012), and EDS is a “rare genetic condition typified by

joint instability and chronic musculoskeletal pain.” Wong v. Minn. Dep’t of Human Servs., 820

F.3d 922, 926 (8th Cir. 2016).

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

Commissioner. (Tr. 1-6.) Plaintiff now seeks judicial review of the ALJ’s decision. (Compl. at 1-

2.)

II. THE SEQUENTIAL PROCESS

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

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

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

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

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

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

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

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

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

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

at 724-25.

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

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

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

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

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

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

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

F.3d at 954.

III. THE ALJ’S DECISION

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

disabled. (Tr. 13-24.) At step one, the ALJ determined that Plaintiff had not engaged in

substantial gainful activity since February 3, 2016, her amended alleged onset date. (Tr. 15.) At

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

determinable impairments: POTS and migraines. (Tr. 15.) At step three, the ALJ concluded that

Plaintiff did not have an impairment that meets or medically equals a listed impairment. (Tr. 17.)

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

sedentary work, subject to these limitations: (1) Plaintiff can never climb ladders, ropes, or

scaffolds; and (2) Plaintiff can have no more than “occasional exposure to workplace hazards,”

such as “unprotected heights and exposed, moving machinery.” (Id.) At step four, the ALJ

concluded that Plaintiff was not disabled because she could perform her past relevant work as an

appointment clerk. (Tr. 22.) In the alternative, the ALJ proceeded to step five, where he found

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

economy that she could perform, including work as a document preparer, addressor, and election

clerk. (Tr. 24.)

DISCUSSION

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

convincing reasons for discounting Plaintiff’s symptom testimony; and (2) failing to provide

legally sufficient reasons for discounting the opinion of Plaintiff’s treating physician, Michael

Feldman, M.D. (“Dr. Feldman”). As explained below, the Court concludes that the

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

evidence. Accordingly, the Court reverses the Commissioner’s decision and remands for further

proceedings.

I. PLAINTIFF’S SYMPTOM TESTIMONY

A. Applicable Law

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

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

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

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

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

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

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

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

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

(citation omitted).

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

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

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

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

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

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

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

Cir. 1997)).

B. Analysis

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

objective medical evidence of underlying impairments which might reasonably produce the

symptoms alleged. (See Tr. 18, the ALJ determined that Plaintiff’s “medically determinable

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

was therefore required to provide clear and convincing reasons for discounting Plaintiff’s

symptom testimony. See Ghanim, 763 F.3d at 1163. The Court finds that the ALJ failed to meet

that standard here.

The Commissioner argues that the ALJ provided two clear and convincing reasons for

discounting Plaintiff’s testimony. First, the Commissioner argues that the ALJ appropriately

discounted Plaintiff’s testimony based on a lack of supporting medical evidence. (See Def.’s Br.

at 3-6, summarizing portions of the medical record and arguing that the “ALJ noted that

inconsistencies in the medical evidence undermined [Plaintiff’s] allegations,” the ALJ

“reasonably relied on Plaintiff’s questionable diagnosis of POTS in discounting her complaints,”

the ALJ “reasonably relied on Plaintiff’s largely normal physical examinations and diagnostic

findings in discounting her complaints,” and the “Court should not subscribe to Plaintiff’s

alternative interpretation of the medical records”).5 Second, the Commissioner argues that the

ALJ appropriately discounted Plaintiff’s testimony by pointing out that her “testimony about her

activities [was] ‘not fully consistent with the record.’” (Def.’s Br. at 6, quoting Tr. 18.)

It is well settled that an ALJ may discount a claimant’s symptom testimony based on,

among other things, a lack of supporting medical evidence. See, e.g., Wills v. Saul, 829 F. App’x

838, 839 (9th Cir. 2020) (holding that the ALJ provided clear and convincing reasons for

discounting the claimant’s testimony and noting that the “ALJ reasonably relied on . . . the lack

of supporting medical evidence to find [that the claimant’s] symptom allegations were not

5 When discussing Plaintiff’s testimony, the ALJ focused largely on evidence that

concerned one of Plaintiff’s primary impairments, POTS. (See Tr. 18-20, addressing Plaintiff’s

testimony before transitioning to the “opinion evidence”; Tr. 34, referring to POTS as one of

Plaintiff’s two “leading diagnoses”). Importantly, however, the ALJ also stated that he was

“giving [Plaintiff] credit” for suffering from POTS, even though she “may not even have POTS.”

(Tr. 18.)

entirely credible”). However, it is also well settled that in discounting a claimant’s symptom

testimony, an ALJ may not rely solely on a lack of supporting medical evidence. See Valdez v.

Berryhill, 746 F. App’x 676, 677 (9th Cir. 2018) (noting that an “ALJ may properly include lack

of supporting medical evidence in the reasons to discredit claimant testimony as long as it is not

the only reason” (citing Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005))); see also Taylor

v. Berryhill, 720 F. App’x 906, 907 (9th Cir. 2018) (holding that the ALJ “failed to provide clear

and convincing reasons supported by substantial evidence to support her conclusion that [the

claimant’s] testimony was not entirely credible,” and noting that a “lack of objective medical

evidence cannot be the sole reason to discredit claimant testimony” (citing Burch, 400 F.3d at

681)).

With respect to Plaintiff’s activities, the ALJ stated that Plaintiff provided “the following

testimony that [was] not fully consistent with the record as discussed later in the decision,” and

in the same paragraph, which otherwise summarized Plaintiff’s testimony, the ALJ included this

reference to Plaintiff’s activities: “Activities such as standing too long, playing with her daughter

or cleaning can bring on symptoms of lightheadedness, dizziness, rapid heart rate, nausea,

tingling and weakness in legs.” (Tr. 18.) In the same paragraph, the ALJ also discussed

Plaintiff’s testimony that she “needs help caring for her daughter at least five days per week for

various amounts of time” and can occasionally drive. (Id.) The ALJ’s decision does not refer

specifically to Plaintiff’s “activities” again until the concluding paragraph of the discussion in

support of the RFC assessment. (See Tr. 22, concluding that Plaintiff’s “activities of daily living”

and other evidence supported the RFC for the “identified range of sedentary work”).6

6 As discussed below in footnote eight, in the portion of his decision addressing

Dr. Feldman’s opinion, the ALJ did state that Plaintiff’s testimony about her limited childcare

activities was not consistent with her testimony about her upper extremity limitations, which

The ALJ’s discussion of Plaintiff’s reported activities falls short of satisfying the Ninth

Circuit’s specificity requirement, and therefore does not amount to a clear and convincing reason

for discounting Plaintiff’s testimony. Ninth Circuit case law “requires the ALJ to specifically

identify the testimony from a claimant she or he finds not to be credible and explain what

evidence undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020)

(simplified); see also Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (explaining that

general findings are insufficient, as the ALJ “must identify what testimony is not credible and

what evidence undermines the claimant’s complaints,” and therefore refusing to rely on a finding

that did not meet “our requirements of specificity”) (simplified). That does not mean that an ALJ

must “perform a line-by-line exegesis of the claimant’s testimony,” or “draft dissertations when

denying benefits.” Lambert, 980 F.3d at 1277. But Ninth Circuit case law plainly requires that

the ALJ identify “which testimony [he] found not credible, and . . . explain[] which evidence

contradicted that testimony,” not just “offer[] non-specific conclusions that [the claimant’s]

testimony [is] inconsistent with her medical treatment [evidence].” Id. (simplified); see also id. at

1278 (“The district court’s efforts to shore up the ALJ’s decision, while understandable, are

unavailing. Although the inconsistencies identified by the district court could be reasonable

inferences drawn from the ALJ’s summary of the evidence, the credibility determination is

exclusively the ALJ’s to make, and we are constrained to review the reasons the ALJ asserts.”)

(simplified).

The ALJ here summarized Plaintiff’s testimony and did not explain which evidence

undermined the testimony. Accordingly, the ALJ improperly discounted Plaintiff’s testimony

Plaintiff offered in support of, and in response to the ALJ’s questions about, Dr. Feldman’s

opinion. (See Tr. 56, setting forth Plaintiff and the ALJ’s discussion about Dr. Feldman’s

opinion). As the Court explains in footnote eight, the record does not support this conclusion.

based on her activities. See Lambert, 980 F.3d at 1278 (“Although the ALJ did provide a

relatively detailed overview of [the claimant’s] medical history, ‘providing a summary of

medical evidence . . . is not the same as providing clear and convincing reasons for finding the

claimant’s symptom testimony not credible.’” (quoting Brown-Hunter v. Colvin, 806 F.3d 487,

488-89 (9th Cir. 2015))).

Given that the ALJ erred in discounting Plaintiff’s testimony based on her activities, the

Court concludes that the ALJ committed harmful error in discounting Plaintiff’s testimony,

because a lack of supporting medical evidence cannot be the sole reason for doing so. See

Valdez, 746 F. App’x at 677 (noting that an “ALJ may properly include lack of supporting

medical evidence in the reasons to discredit claimant testimony as long as it is not the only

reason”); Taylor, 720 F. App’x at 907 (“[A] lack of objective medical evidence cannot be the

sole reason to discredit claimant testimony[.]”). “Remand for further proceedings is proper

because outstanding issues in the record remain that must be resolved before a determination of

disability can be made, including . . . weighing [Plaintiff’s improperly discounted symptom]

testimony with the other evidence.” Id. (citing Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir.

2017))).

II. MEDICAL OPINION EVIDENCE

A. Applicable Law7

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

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

7 The new regulations that govern how ALJs must evaluate medical opinion evidence do

not apply here because Plaintiff filed her application before March 27, 2017. See generally

Robert S. v. Saul, No. 3:19-cv-01773-SB, 2021 WL 1214518, at *3 (D. Or. Mar. 3, 2021)

(addressing the new regulations that apply to Social Security applications filed on or after March

27, 2017).

Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citation omitted). “Where a treating or

examining physician’s opinion is contradicted by another doctor, the ‘[ALJ] must determine

credibility and resolve the conflict.’” Id. (quoting Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th

Cir. 2002)). “An ALJ may only reject a treating physician’s contradicted opinions by providing

‘specific and legitimate reasons that are supported by substantial evidence [in the record].’”

Ghanim, 763 F.3d at 1161 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.

2008)).

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

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

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

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

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

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

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

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

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

(citation omitted).

B. Analysis

Plaintiff argues that the ALJ failed to provide clear and convincing reasons for

discounting the opinion of her treating physician, Dr. Feldman. (See Pl.’s Opening Br. at 9,

arguing that the ALJ failed to provide clear and convincing or specific and legitimate reasons for

discounting Dr. Feldman’s opinion, but the “standard should be clear and convincing” reasons).

As explained below, the ALJ did not commit harmful error in discounting Dr. Feldman’s

opinion.

1. Standard of Review

Dr. Feldman’s opinion regarding Plaintiff’s POTS diagnosis conflicts with other opinion

evidence in the record. (Compare Tr. 602, July 29, 2016, Dr. Feldman stated that Plaintiff was

“looking better today [even] though [she was] still markedly disabled by her POTS,” with

Tr. 260, Feb. 3, 2016, a treating physician examined Plaintiff and stated that Plaintiff is “unlikely

to meet full formal criteria for POTS,” and Tr. 375, Feb. 15, 2016, a treating cardiologist stated

that the etiology of Plaintiff’s dizziness was “uncertain” and Plaintiff’s “[h]eart rate excursions

do not seem to be postural, suggesting that this is not POTS”). The ALJ was therefore required to

provide specific and legitimate reasons for rejecting Dr. Feldman’s opinion. See Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (“[I]n the case of a conflict the

ALJ must give specific, legitimate reasons for disregarding the opinion of the treating

physician[.]”) (simplified); Kilian v. Barnhart, 226 F. App’x 666, 668 (9th Cir. 2007) (“[The

claimant’s] contention that the ALJ erred when he discounted her treating physician’s opinion is

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

physician, and the ALJ supported his decision with specific and legitimate reasons.”).

2. Dr. Feldman’s Opinion

Dr. Feldman stated the following in a “To Whom It May Concern” letter dated July 12,

2018:

I have been treating [the claimant] for the past 2+ years for [POTS]. This

accompanies her hypermobile-[type] [EDS] diagnosis. There are few if any

options for physicians who provide longitudinal management of these disorders. I

follow 300 patients with this disorder. [The claimant] has seen numerous

physicians across many specialties including at the university without any traction

or formal diagnosis. Since working with me, she has a firm diagnosis and is on

appropriate therapy. I as[k] that you allow her to continue to follow [up] with me

for ongoing care of her disorder.

(Tr. 688.)

Dr. Feldman also completed a treating medical source statement on July 27, 2018.

(Tr. 703-07.) In his medical source statement, Dr. Feldman stated that he has treated Plaintiff

since May 31, 2016; Plaintiff suffers from POTS and EDS; Plaintiff’s diagnoses are “usually

long term problems that are managed not cured”; Plaintiff’s signs include orthostatic tachycardia,

hypermobility, and flushing; Plaintiff’s examinations and testing are “consistent” with her

diagnoses; and Plaintiff needs “[f]requent breaks to lie down every hour” to manage her

symptoms, including orthostatic lightheadedness, “crushing” fatigue, and headaches. (Tr. 703-

04.) Dr. Feldman also stated that Plaintiff would need unscheduled breaks, and on a “[d]aily”

basis, Plaintiff’s medical problems would prevent her from maintaining a regular work schedule.

(Tr. 706-07.)

3. The ALJ’s Treatment of Dr. Feldman’s Opinion

The ALJ assigned “little weight” to Dr. Feldman’s opinion, for several reasons:

[In response to some questions on his medical source statement, Dr. Feldman]

said to refer to [his] ‘extensive charting,’ but there was only about 20 pages from

his clinic and those records did not support his opinion. Dr. Feldman opined [that

the claimant] can use her hands/fingers for only 10% of an 8-hour day [and] could

not reach at all . . . [but these opinions] are not supported by objective evidence

and seem quite excessive and severe in light of the benign objective record.

Treatment notes showed few, if any, complaints about upper extremities and there

is no objective evidence related to her upper extremities, other than some

hypermobility. However, there was no mention of upper extremity pain and [the

claimant] endorsed much improved overall chronic pain symptoms. Even the

claimant testified that on average she spends 1-2 hours alone with her child,

which is not consistent with her testimony that she goes weeks and months

without being able to reach or use her hands/fingers for more than 6 minutes per

hour. Moreover, Dr. Feldman’s notes are disjointed in that he states [that the

claimant] is disabled or incapacitated by POTS but also describes her complaints

as somatic and physical examinations were completely normal (see above detailed

discussion of Dr. Feldman’s treatment notes). Of note, gait was normal through

the record, which discounts the finding of reduced standing/walking, and there

were no complaints of sitting or notations that she had difficulty sitting at

appointments.

(Tr. 21) (simplified).

The Court finds that the ALJ did not commit harmful error in discounting Dr. Feldman’s

opinion. Notably, although Plaintiff’s testimony does not necessarily undermine Dr. Feldman’s

opinion regarding Plaintiff’s extreme upper extremity limitations (i.e., Plaintiff can only use her

hand and fingers ten percent of the time during an eight-hour workday and Plaintiff can reach

with her arms zero percent of the time during an eight-hour workday, Tr. 706),8 the Court agrees

that the record, including the “extensive charting” that Dr. Feldman referred to in his medical

source statement, does not appear to include any objective evidence that would support such

excessive findings. Cf. Klaus v. Astrue, No. 2:11-cv-0086, 2012 WL 2921372, at *7 (E.D. Cal.

July 17, 2012) (“The ALJ correctly noted that Dr. Kalman failed to provide any objective

evidence to support his excessive findings (as noted above), which were also not supported by

the other record evidence.”); see also Reed v. Saul, 834 F. App’x 326, 329 (9th Cir. 2020)

(holding that the ALJ satisfied the specific and legitimate reasons standard and noting that the

ALJ discounted the physician’s opinion because it was “excessive and inconsistent with the

clinical findings in the record”).

For example, on February 3, 2016, the alleged disability onset date and the day a hospital

admitted Plaintiff based on her complaints of lightheadedness and tachycardia, Plaintiff exhibited

8 The ALJ’s reference to Plaintiff’s childcare activities does not support the ALJ’s

finding that Plaintiff’s testimony undermined Dr. Feldman’s opinion regarding Plaintiff’s ability

to use her upper extremities. (See Tr. 36, “My parents and my husband have worked their

schedules so . . . I always have a backup [when I am home with my daughter].”; Tr. 54-55, “How

often are you actually alone with your daughter? A. It really varies. I mean, there are weeks

where I’m not alone with her at all. . . . But on average, I would say for an hour or two a day,

maybe. . . . But again, there’s periods of time where I’m not alone [with her] at all.”; Tr. 211, “[I]

always have a backup [childcare] provider close by if I am alone with her.”). The ALJ did not

ask Plaintiff about the activities she engages in during the “hour or two a day, maybe,” that she

spends with her daughter while “always hav[ing] a backup” provider nearby, and there was

nothing in Plaintiff’s testimony about her childcare activities that undermined Dr. Feldman’s

opinion about her upper extremities. (Cf. Tr. 211, “My husband cares for [our daughter]

primarily. I participate as I’m able with some diaper changes on the floor, sitting with her at

mealtime, reading books and light play.”).

full strength (i.e., “5/5”) in her “major muscle groups” (Tr. 520-22), which includes her arms and

shoulders. Similarly, on May 11, 2016, Plaintiff exhibited “full [range of motion] throughout

[the] joints of [her] upper and lower extremities.” (Tr. 386.) Furthermore, on August 16, 2016,

when Plaintiff’s physician referred her for a consultation based on “concerns of worsening joint

pain and hypermobility,” Plaintiff’s exam revealed that her “[m]uscle strength [was] 5 out of 5 in

all extremities” and there was “minimal tender points on [her] upper extremities.” (Tr. 660-63.)

It was reasonable for the ALJ to discount Dr. Feldman’s opinion based on this record evidence.

Given the findings above, the Court concludes that the ALJ did not commit harmful error

in discounting Dr. Feldman’s opinion. See Gilliland v. Saul, 821 F. App’x 798, 799 (9th Cir.

2020) (noting that an ALJ’s errors are harmless if the ALJ “provided at least one valid reason”

for discounting the evidence) (citation omitted); Brendan J.G. v. Comm’r, Soc. Sec. Admin., No.

6:17-cv-742-SI, 2018 WL 3090200, at *10 (D. Or. June 20, 2018) (“[B]ecause the ALJ gave at

least one specific and legitimate reason for discounting Dr. Richardson’s opinion, the Court

upholds the decision to do so.”); Hoge v. Berryhill, No. 16-cv-00718-AC, 2017 WL 4881586, at

*9 (D. Or. Oct. 27, 2017) (“[B]ecause the ALJ provided at least one specific and legitimate

reason, supported by the evidence, to accord little weight to Dr. Freed’s medical opinion, the

ALJ did not err in doing so.”).

III. REMEDY

A. Applicable Law

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

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

explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citing INS v. Ventura,

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

that it would be an abuse of discretion for a district court not to remand for an award of benefits

when [the three-part credit-as-true standard is] met.” Garrison, 759 F.3d at 1021 (citations

omitted).

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

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

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

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

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

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

remand for further proceedings when the record [evidence] as a whole creates serious doubt as to

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

1021.

B. Analysis

The Court concludes that remand for further proceedings is appropriate here because the

ALJ failed adequately to explain why he discounted Plaintiff’s testimony, and outstanding issues

in the record remain that the ALJ must resolve before a disability determination, including

weighing Plaintiff’s improperly discounted testimony with the other evidence. See Bradshaw v.

Colvin, 642 F. App’x 677, 678 (9th Cir. 2016) (“Because we conclude that the ALJ failed to

adequately explain why he rejected certain evidence, and that the error was not harmless, we

vacate and [exercise our discretion to] remand for further proceedings.”); Taylor, 720 F. App’x

at 907 (“Remand for further proceedings is proper because outstanding issues in the record

remain that must be resolved before a determination of disability can be made,

including . . . weighing [the claimant’s improperly discounted] testimony with the other

evidence.”).

CONCLUSION

Based on the foregoing reasons, the Court REVERSES the Commissioner’s decision and

REMANDS this case for further administrative proceedings consistent with this opinion.

IT IS SO ORDERED.

DATED this 17th day of September, 2021.

Sac Fecevrmar

HON. STACIE F. BECKERMAN

United States Magistrate Judge

PAGE 17 — OPINION AND ORDER