Sanders v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

MATTHEW W.S., Case No. 6:20-cv-01439-AC

Plaintiff, OPINION AND ORDER

Vv.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

ACOSTA, Magistrate Judge:

Plaintiff Matthew W. S.' seeks judicial review of the final decision of the Commissioner

of Social Security denying his application for a period of disability and disability insurance

benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has

' In the interest of privacy, this Opinion and Order uses only the first name and the initial of the

last name of the non-governmental party in this case.

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jurisdiction pursuant to 42 U.S.C. § 405(g). All parties have consented to allow a Magistrate

Judge to enter final orders and judgment in this case in accordance with 28 U.S.C. § 636(c). For

the following reasons, the Commissioner’s decision is reversed and remanded for an immediate

calculation and award of benefits.

Procedural Background

On November 17, 2015, Plaintiff protectively filed a Title II application for a period of

disability and disability insurance benefits. On December 6, 2016, Plaintiff protectively filed a

Title XVI application for supplemental security income benefits. In both applications, Plaintiff

alleged disability beginning July 15, 2015, due to severe anxiety, mood disorder, eating disorder,

stomach pain, scoliosis, hernias, and cervical degenerative disc disease. Tr. Soc. Sec. Admin. R.

(“Tr.”) 66, Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a

request for a hearing before an administrative law judge (“ALJ”). The ALJ held a hearing on

October 22, 2018, at which Plaintiff appeared with his attorney and testified. A vocational expert,

Kimberly Mullinax, also appeared and testified at the hearing. On December 5, 2018, the ALJ

issued an unfavorable decision.

Plaintiff sought review by the Appeals Council. Tr. 1-2. The Appeals Council granted

Plaintiff's request for review because the ALJ failed to consider opinion evidence submitted prior

to the hearing from Plaintiff's nurse practitioner Teresa Burfine. Tr. 5. The Appeals Council

gave Ms. Burfine’s opinion little weight and affirmed the ALJ’s decision. Tr. 6. Therefore, the

Appeals Council’s decision became the final decision of the Commissioner for purposes of review.

Plaintiff was born in 1970, was forty-six years old on the alleged onset date of disability,

and forty-eight years old on the date of the ALJ’s decision. Tr. 65. Plaintiff completed the

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eleventh grade and has past relevant work as a farm machine operator and a hand sander. Tr. 40,

55.

The ALJ’s Decision

The ALJ determined that Plaintiff meets the insured status requirements through September

30, 2017, and at step one, found that he has not engaged in substantial gainful employment since

his alleged onset date of July 15, 2015. Tr. 20. At step two, the ALJ determined that Plaintiff

has the following severe impairments: cervical degenerative disc disease, status-post fusion; a

psychotic disorder, NOS; attention deficit-hyperactivity disorder (ADHD); an anxiety disorder;

and major depressive disorder. □□□ □□□ At step three, the ALJ determined that Plaintiff's severe

impairments did not meet or equal any listed impairment. Tr.21. The ALJ determined Plaintiff

has the residual functional capacity (“RFC”) to perform light work, with the following additional

limitations: he can lift and carry twenty pounds occasionally and ten pounds frequently; he can

sit, stand, or walk for six hours each in an eight-hour day; he can occasionally reach overhead with

the bilateral upper extremities; he can perform only simple tasks with a general education

development (“GED”) reasoning level of two or less and unskilled work as defined by the

Dictionary of Occupational Titles (“DOT”); he can make only simple work-related decisions; and

he can tolerate only occasional interaction with coworkers, supervisors, and the general-public.

Tr. 23.

At step four, the ALJ determined that Plaintiff is capable of performing past relevant work

as hand sander. Tr. 26. At step five, the ALJ found that jobs exist in significant numbers in

the national economy that Plaintiff can perform, including such representative occupations as

cleanet/housekeeper, production assembler, and packing-line worker. Tr. 27. Therefore, the

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ALJ found that Plaintiff was not disabled from July 15, 2015, through the date of the decision and

denied Plaintiffs application for disability benefits. Tr. 28.

The Appeals Council’s Decision

The Appeals Council granted review because the ALJ did not consider all of the evidence

in the record, specifically the residential functional capacity opinion from Teresa Burfine, NP.

Tr. 5. At step one, the Appeals Council agreed with and adopted the ALJ’s finding that Plaintiff

has not engaged in substantial gainful employment since his alleged onset date of July 15, 2015.

Tr. 6. At step two, the Appeals Council agreed with and adopted the ALJ’s finding that Plaintiff

has the following severe impairments: cervical degenerative disc disease, status-post fusion; a

psychotic disorder, NOS; attention deficit-hyperactivity disorder (ADHD); an anxiety disorder;

and major depressive disorder. Tr. 6. At step three, the Appeals Council agreed with and

adopted the ALJ’s finding that Plaintiff's severe impairments did not meet or equal any listed

impairment. Tr. 6. In evaluating the evidence of record, including Ms. Burfine’s opinion, the

Appeals Council determined that Ms. Burfine’s opinion deserved little weight because it is not

supported by other evidence in the medical record. Tr. 5-6.

At step four, the Appeals Council agreed with and adopted the ALJ’s finding that Plaintiff

is capable of performing past relevant work as a hand sander. Tr. 6. At step five, the Appeals

Council agreed with and adopted the ALJ’s finding that jobs exist in significant numbers in the

national economy that Plaintiffcan perform. Tr.7. Accordingly, the Appeals Council found that

Plaintiff was not disabled under the Act. Tr. 7.

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Issues on Review

Plaintiff argues the following errors were committed: (1) the Appeals Council erred in

adopting the ALJ’s evaluation of the medical opinion of the examining mental health provider,

Scott Alvord, Psy.D.; (2) the Appeals Council erred in giving Ms. Burfine’s opinion little weight;

and (3) the Appeals Council erred in adopting the ALJ’s decision to reject Plaintiff's subjective

symptom testimony. The Commissioner argues that the Appeals Council reasonably adopted the

ALJ’s analysis of Dr. Alvord’s opinion, reasonably discounted Ms. Burfine’s opinion, and

properly discounted Plaintiffs subjective allegations. Additionally, the Commissioner argues that

the Appeals Council’s decision is supported by substantial evidence and is free of harmful legal

error. Alternatively, the Commission contends that if the Appeals Council erred, a remand for

further administrative proceedings is necessary.

Standard of Review

The district court must affirm the Commissioner’s decision if the Commissioner applied

proper legal standards and the findings are supported by substantial evidence in the record. 42

U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal

quotation and citation omitted); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020); Garrison v.

Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence exists,

the court must weigh all the evidence, whether it supports or detracts from the Commissioner’s

decision. Trevizo, 871 F.3d at 675; Garrison, 759 F.3d at 1009. “Ifthe evidence can reasonably

support either affirming or reversing,’ the reviewing court ‘may not substitute its judgment’ for

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that of the Commissioner.” Gutierrez v. Comm’r Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir.

2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)). When a claimant

submits new evidence to the Appeals Council, the court must consider whether that new evidence,

in the context of the record as a whole, undermines the ALJ’s non-disability determination.

Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012).

Discussion

I. Medical Opinion Evidence

A, Standards

The ALJ is responsible for resolving conflicts in the medical record, including conflicts

among physicians’ opinions. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th

Cir. 2008). In general, the opinion of a treating physician is given more weight than the opinion

of an examining physician, and the opinion of an examining physician is afforded more weight

than the opinion of a nonexamining physician.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir.

2014); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); 20 C.F.R. § 404.1527.

The ALJ may “reject the uncontradicted medical opinion of an examining psychologist

only if the ALJ provides ‘clear and convincing’ reasons supported by substantial evidence in the

* For all claims filed on or after March 27, 2017, the regulations set forth in 20 C.F.R. §§

404.1520c, 416.920c (not §§ 404.1527, 416.927) govern. The new regulations provide that the

Social Security Administration “will not defer or give any specific evidentiary weight, including

controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including

those from your medical sources.” 20 C.F.R. §§ 404.1520c, 416.920c. Thus, the new

regulations eliminate the term “treating source,” as well as what is customarily known as the

treating source or treating physician rule. See 20 C.F.R. §§ 404.1520c, 416.920c. In this case,

Plaintiff filed his claims for benefits on November 17, 2015 and December 6, 2016, well before

March 27, 2017. See 20 C.F.R. § 404.614 (defining when an application for benefits is considered

filed). Therefore, the court analyzes Plaintiffs claim utilizing § 416.927 (providing the rules for

evaluating opinion evidence for claims filed prior to March 27, 2017).

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record.” Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2007). Where a physician’s opinion is

contradicted, the ALJ must provide specific and legitimate reasons, backed by substantial evidence

to discount it. Ghanim, 763 F.3d at 1160-61.

A nurse practitioner’s opinion qualifies as an “other” medical source. Popa, 872 F.3d at

906. An ALJ may discount other medical sources’ opinions if they provide “germane reasons for

doing so.” Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (internal quotation and citation

omitted); Popa, 872 F.3d at 906 (providing that ALJ may discount opinion from an “other source”

by identifying “reasons germane to each witness for doing so”) (internal quotation and citation

omitted). Additionally, the ALJ must consider the factors set forth in 20 C.F.R. § 416.927(c)

when evaluating the other sources’ opinions. Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir.

2017) (providing ALJ must consider factors in § 404.1527(c), including nature and extent of

treating relationship, supportability, and consistency with the record).

B. Analysis

Plaintiff argues that the ALJ failed to meet the legal standards when rejecting Dr. Alvord’s

examining medical opinion and therefore, the Appeals Council erred in adopting the ALJ’s

evaluation of Dr. Alvord. Additionally, Plaintiff argues that the Appeals Council erred in

rejecting the “other” medical source statements of Ms. Burfine.

1. Scott T. Alvord, Psy.D

Dr. Alvord conducted a psychological examination of Plaintiff on September 26, 2018.

Dr. Alvord performed a mental status examination, a Wechsler Adult Intelligence Scale 4th Edition

test (“WAIS IV”), a Wide Range Assessment of Memory and Learning test “‘WRAML IY’), and a

Trail Marking Test. Tr. 454. The ALJ gave Dr. Alvord’s medical opinion little weight because

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“his examination findings, [are] not entirely consistent with the rest of the medical evidence of

record.” Tr. 26. Specifically, Dr. Alvord noted that Plaintiff's presentation and test results

“highlight the possibility of a frontal lobe condition given excessive anger and irritability,

difficulty with executive functions, getting along with other people, responding to novel stimuli,

etc.” Tr. 458. Additionally, Dr. Alford discussed that there is evidence of Schizoaffective

Disorder, depressed type, which could “account for underlying paranoia and a history of

hallucinations.” Tr. 458. Dr. Alvord stated that during the examination, Plaintiff was irritable,

agitated, and argumentative. Tr. 456. Dr. Alvord also provided a Medical Source Statement of

work-related abilities. Tr. 460. In that statement, Dr. Alvord opined that Plaintiff had mild

limitations in understanding, remembering, and carrying out simple instructions. Tr. 460-61.

However, Dr. Alvord also assessed that Plaintiff has numerous marked limitations including:

Plaintiff's ability to interact appropriately with the public, interact appropriately with supervisors,

interact appropriately with coworkers, and respond appropriately to usual work situation and to

changes in routine work setting. Tr. 461.

The agency physicians’ opinions contradict Dr. Alvord’s opinion. Dr. Alvord’s opinion

is contradicted by the agency physicians. Tr. 70, 111. Therefore, the ALJ was required to

provide specific and legitimate reasons for discrediting his opinion. The ALJ’s decision fails to

meet this standard.

Dr. Alvord opined that Plaintiff has numerous serious mental health limitations. Yet, the

ALJ’s reasoning involves minor, technical inconsistencies. The ALJ stated that while the “bulk

of the medical evidence contains reference to repeated panic attacks and no evidence of paranoia

or hallucinations,” Dr. Alvord noted in his examination that the Plaintiff reported “no panic, but

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described agitation, irritability, rumination, and a tendency towards physically manifested

symptoms. Tr.26. The ALJ also noted that Plaintiff stated his friends would not let him socially

isolate, but he told Dr. Alvord that he went “weeks without seeing anyone.” Tr. 26. While

technically correct that Dr. Alvord did not diagnose Plaintiff with panic, Plaintiff reported to Dr.

Alvord that he experiences “physically manifested symptoms” such as tachycardia and difficulty

catching his breath. Tr. 455-56. Dr. Alvord’s report reflects that Plaintiff's sister corroborated

Plaintiff's assertion he socially isolates. Tr. 456. Additionally, Dr. Alvord’s opinion is

consistent with other evidence of record that references panic. F.g., Tr. 48, 393, 475, 521. Dr.

Alvord’s opinion reflects that Plaintiff reported “excessive anger” and “butting heads” with

coworkers and authority figures. Tr.455. Plaintiff testified to “flipping out,” screaming, yelling,

hitting things, and losing control at the hearing. Tr.42. Thus, the court concludes that the ALJ’s

reasoning fails to amount to specific and legitimate reasons backed by substantial evidence for

discounting Dr. Alvord’s opinion when viewing the record as a whole. Accordingly, the ALJ

erred in discounting Dr. Alvord’s opinion.

2. Teresa Burfine, NP

Ms. Burfine began treating Plaintiffin June 2017. Tr. 521. On November 15, 2018, Ms.

Burfine completed a treating source statement in which she opined that Plaintiff had the following

limitations: Plaintiff could sit, stand, or walk for ten minutes at a time; Plaintiff could sit for two

hours and sit or stand for one hour in an eight-hour workday; Plaintiff needs a job which permits

shifting positions at will from sitting, standing, or walking; and Plaintiff would need to take

unscheduled breaks every two hours for ten minutes during the workday. Tr. 523-24.

Additionally, Ms. Burfine opined that Plaintiff can do the following in a competitive work

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situation: frequently lift less than ten pounds, occasionally lift ten and twenty pounds, and never

lift fifty pounds. Tr.524. Ms. Burfine further indicated that Plaintiff has limitations in repetitive

reaching, handling, and fingering. Tr. 524. During an eight-hour workday, Ms. Burfine opined

that Plaintiff could use his right and left hand for twenty percent of the workday, his right fingers

for twenty percent of the workday, his left fingers for ten percent of the workday, his right arm for

fifteen percent of the workday, and his left arm for ten percent of the workday. Tr.524. Notably,

Ms. Burfine also opined that Plaintiff's medical issues would prevent him from maintaining a

regular work schedule three or four times a month. Tr. 525.

The Appeals Council erred in discounting Ms. Burfine’s opinion. The Appeals Council

gave Ms. Burfine’s opinion little weight because “the medical record does not support her

opinion.” Tr. 6. The Appeals Council stated that the record shows no evidence of a gait

impairment and that the record provides insufficient evidence to support a severe hand impairment.

Tr. 6. The Appeals Council focused on gait impairment and severe hand pain as reasons for

discounting Ms. Burfine’s opinion and the Commissioner appears to cherry-pick reasons for

discounting an opinion showing a fairly severe constellation of symptoms. The court concludes

the Appeals Council failed to provide germane reasons supported by substantial evidence for

rejecting Ms. Burfine’s opinion, when viewing the record as a whole.

Ms. Burfine’s opinion that Plaintiff has physical limitations including but not limited to

hand pain, neck and shoulder pain, and back and lumbar pain with parathesis to the dorsum of both

feet is largely supported in the record. FE.g., Tr. 356, 386, 405, 433, 436. Ms. Burfine noted

limitations in plaintiff's ability to sit, stand, and walk in an eight-hour workday which is also

supported by the record. Tr. 523. Ms. Burfine’s opinion regarding plaintiff's depression, pain,

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irritability, and anger are supported by substantial evidence in the record as a whole. Tr. 356,

391, 407, 445, 454, 455, 458, 475. Additionally, Ms. Burfine diagnosed Plaintiff with

gastroesophageal reflux disease (“GERD”), insomnia, panic disorder, cervicalgia, paresthesia,

social phobia, anxiety, left hip pain, overweight, hypertension, depression, trichotillomania,

irritability, and anger. Tr. 521. These diagnoses, especially panic disorder, anxiety, and social

phobia, are supported by substantial evidence in the record. Accordingly, the court concludes that

the Commissioner’s determination to give Ms. Burfine’s opinion “little weight” is not supported

by substantial evidence when viewing the record as whole and the ALJ has erred.

Il. Plaintiff's Subjective Symptom Testimony

A, Standards

To determine whether a claimant’s testimony regarding subjective pain or symptoms is

credible, an ALJ must perform two stages of analysis. Trevizo, 871 F.3d at 678; 20 C.F.R. §§

404.1529, 416.929. The first stage is a threshold test in which the claimant must produce

objective medical evidence of an underlying impairment that could reasonably be expected to

produce the symptoms alleged. Treichler vy. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th

Cir. 2014); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage,

absent affirmative evidence that the claimant is malingering, the ALJ must provide clear and

convincing reasons for discrediting the claimant’s testimony regarding the severity of the

symptoms. Carmickle vy. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008);

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).

The ALJ must make findings that are sufficiently specific to permit the reviewing court to

conclude that the ALJ did not arbitrarily discredit the claimant’s testimony. Brown-Hunter v.

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Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Clear and convincing reasons for rejecting a claimant’s

subjective symptom 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 y. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012); Ghanim v.

Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013); Tommasetti, 533 F.3d at 1039.

B. Analysis

At the hearing, Plaintiff testified he is forty-eight years old and completed the eleventh

grade. Tr. 40. He testified that he is not currently working and has not worked since December

2015 when he had neck surgery. Tr. 41. Plaintiff testified that he was losing strength in his left

arm, so he went to the doctor and discovered that he had a crushed nerve. Tr. 42. He testified

that the surgery fixed the previous problems, but that it created more problems; following the

surgery, his arm frequently goes numb, is achy, and is painful to use. Tr. 42.

Plaintiff testified that before December 2015, he was working onafarm. Tr.41. Plaintiff

stated that while he was working hundred-hour weeks on the tractors, he would start “flipping

out.” Tr. 42. Plaintiff described “flipping out” as screaming, yelling, hitting things, and losing

control. Tr. 42. Plaintiff stated that he attempted to go back to farm work after the December

2015 surgery, but that it took three days to recover after working one day. Tr. 43.

Plaintiff described trying other types of work, but that he doesn’t “work with the public,”

Tr. 43. Plaintiff stated that he liked being alone and that he gets really nervous around people; he

noted that he was nervous at the hearing. Tr. 43. Plaintiff testified that he does not know what

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goes on in his head and that there are ‘“‘a lot of things going on up there.” Tr. 43. Plaintiff stated

that “‘little things just set me off,” and that he loses all control and starts yelling, screaming, and

hitting. Tr. 44. He stated he doesn’t know how to explain losing control, and that he still loses

control and that it happens in his daily life. Tr. 44. Plaintiff testified that he now takes

medication, but that he still has “issues” a couple times a week. Tr. 44-45. He stated that “the

wind could blow on me, something could get stuck on my feet, just anything, you know, my hand

might bump something, and all of a sudden now I’m angry, and I just can’t control it.” Tr. 45.

Plaintiff testified that he lives with his sister. Tr. 45. He stated that he does yard work

for his sister “because they are the only ones who could actually put up” with him, and that he does

yard work in exchange for a place to live. Tr. 45. Plaintiff testified that no animals live with

them, but that in the past there were cattle and horses. Tr. 45. He stated that he used to feed the

cows and that took five minutes in the morning. Tr. 46.

Plaintiff stated that he spends three-to-four hours a day doing yard work. Tr. 47. He

testified that he tries to stay away from people. Tr. 47. Plaintiff testified that he didn’t think he

could maintain a job doing yard work outside of the home because he would probably “have a flip

out moment.” Tr. 47. He testified that he doesn’t know how to control those “crazy moments,”

and stated that it could happen in the middle of the night, where he starts panicking and running

around. Tr. 47-48. Plaintiff testified that it is “kind of scary.” Tr. 48.

Plaintiff stated that he once saw a psychologist because people were worried about him

and he was having hard time. Tr. 49. Plaintiff testified that he is taking medication right now

that makes him “bawl all day long.” □□□ □□□ He said that he was referred to a counselor but was

told not to come back until he was “on drugs.” He testified that he can lift maybe twenty

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pounds before it bothers him, and stated that he wouldn’t “be able to hardly move the next day,”

because lifting would affect his neck and arm. Tr. 51-53. Plaintiff testified that he has trouble

sitting because it hurts his neck, and to relieve the neck pain, he lays down. Tr. 51. He testified

that in the middle of day, he lays down for five-to-ten minutes to get a little pressure of his neck,

and takes Tylenol and ibuprofen for the pain. Tr. 52.

1. objective medical evidence

Contradiction with the medical record is a relevant consideration in discounting a

claimant’s subjective symptom testimony. Carmickle, 533 F.3d at 1161; see also Burch y.

Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that ALJ may consider lack of medical

evidence but it cannot be the only factor supporting an adverse credibility finding); Bray v. Comm’r

Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (same).

In the decision, the ALJ stated that the medical record “does not support the severity of the

claimant’s symptoms.” Tr. 24. The ALJ explained that Plaintiffs complaints of chronic neck

pain and weakness in his left arm related to his degenerative disc disease were not supported by

the medical record; MRI scans from July 2015 and September 2015 showed only mild

degenerative changes in his cervical spine. Tr. 24. The ALJ also stated that a February 2016

MRI revealed some postsurgical changes with mild and upper mid cervical spine degenerative

changes but showed no evidence of complication or neurological involvement, whereas a March

2016 MRI revealed excellent artificial disk position and no abnormal alignment. Tr. 24. The

ALJ also stated that although Plaintiff complained of increasing cervical pain that radiated into the

arms around November 2017 and imaging revealed some possible slight telescoping, the imaging

did not show any evidence of significant halo formation. The ALJ also noted that while

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post-surgical musculoskeletal examinations have varied and have demonstrated decreased strength

and sensation in the left upper extremity, the examinations have shown full active and passage

range of motion, five-out-of-five muscle strength, and intact coordination, sensation, reflexes, and

muscle tone. Tr. 24.

The ALJ noted specific medical evidence in the record that does not fully support

Plaintiff's subjective testimony regarding his physical health. However, the ALJ’s analysis

concerning Plaintiff’s mental health is not supported by substantial evidence.

The ALJ stated that Plaintiff experiences the following signs and symptoms: anxiety,

depression, panic attacks, memory loss, confusion, sleep disturbance, appetite disturbance, chest

pressure, sweating, night terrors, and irritability. Tr. 25. The ALJ then stated that Plaintiffs

mental status examinations have demonstrated “alertness, orientation, a casual appearance with

intact grooming and hygiene, with a pleasant, friendly, and cooperative demeanor, socially

appropriate behavior, a depressed mood, a variable affect, intact memory, attention, and

concentration, intact cognition, low average intellectual functioning, and intact insight and

judgment, as well as a generally coherent logical and goal directed thought process and content.”

Tr. 25. The ALJ also stated that the Plaintiff has been treated with therapy as well as multiple

medications, including lorazepam, clonazepam, remeron, marijuana, nortriptyline, fluoxetine,

duloxetine, and venlafaxine. Tr. 25. The ALJ notes some improvements in Plaintiff's

symptoms. Tr. 25.

The ALJ’s first rationale fails to provide specific, clear, and convincing reasoning for

discounting Plaintiff's mental health symptoms. In the decision, the ALJ simply summarized

portions of the record without stating the reasoning and cherry-picked portions of the record.

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Mental health treatment records must be viewed “in light of the overall diagnostic record.”

Garrison, 759 F.3d at 1017 (holding ALJ erred in rejecting claimant’s testimony by pointing to

some treatment records showing occasional signs of improvement where overall record showed

persistent nightmares, hallucinations, social anxiety, difficulty sleeping, and feelings of

hopelessness); Richard R. v. Comm’r Soc. Sec. Admin., Case No. 3:19-cv-00918-MK, 2020 WL

4193114, at *4 (D. Or. July 21, 2020) (holding ALJ erred in discounting claimant’s testimony

about severity of mental health limitations by citing to treatment notes showing “cooperative

behavior, organized and goal directed thought process and intact memory”). Contrary to the

ALJ’s findings, the record reveals anxiety disorder, social anxiety, depression, and panic attacks.

See, e.g., Tr. 296, 428, 455, 458, 486. Therefore, the court concludes the ALJ’s first rationale is

not supported by substantial evidence when reviewing the record as a whole, and fails to provide

a specific, clear, and convincing reason for discounting Plaintiffs subjective symptom testimony.

2. conservative treatment

The ALJ discounted Plaintiffs subjective symptoms testimony because Plaintiff has “not

generally received the type of medical treatment one would expect for a totally disabled

individual.” Tr. 25. “Conservative treatment” may be sufficient to discount a claimant’s

testimony regarding the severity of an impairment. Parra v. Astrue, 481 F.3d 742, 750-51 (9th

Cir. 2007). Specifically, the ALJ found that since Plaintiff's surgery, his treatment has been

conservative, and largely managed with over-the-counter and prescription medication. Tr. 25.

Again, the ALJ’s finding is not supported by substantial evidence because the record shows

that Plaintiff has exhausted all surgical options. Tr. 451. In Lapeirre-Gutt v. Astrue, the court

stated that the ALJ erred in relying on “conservative treatment” as a basis for rejecting the

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plaintiff's testimony stating that “a claimant cannot be discredited for failing to pursue non-

conservative treatment options where none exist.” Lapeirre-Gutt vy. Astrue, 382 F. App’x 662,

664 (9th Cir. 2010). Here, the record reveals that Plaintiff has engaged in extensive medical

treatment: he had surgery; he engaged in physical therapy, acupuncture, and chiropractic care; and

he has been prescribed various medications. E.g., Tr. 25, 292, 499, 505. Therefore, the ALJ’s

second rationale is not supported by substantial evidence and fails to provide a specific, clear, and

convincing reason for discounting Plaintiffs subjective symptom testimony.

3, activities of daily living

Activities of daily living may provide a basis for discounting a claimant’s subjective

symptoms if the ADLs contradict his testimony of total disability or meet the threshold for

transferable work skills. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); superseded

by regulation on other grounds as stated in Schuyler v. Saul, 813 F. App’x 341, 342 (9th Cir.

2020). However, a claimant does not need to be utterly incapacitated to receive disability

benefits, and a claimant’s ability to complete certain routine activities is insufficient to discount

subjective symptom testimony. Molina, 674 F.3d at 1112-13 (observing that a “claimant need

not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted)); Benecke

vy. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“One does not need to be ‘utterly incapacitated’

in order to be disabled.”); Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).

The ALJ found that Plaintiff’ s limitations “are not fully supported by his reported activities

in the medical and other evidence of record.” Tr.25. The court disagrees. Plaintiff's ability to

occasionally care for his nephews, prepare simple meals, do household chores, handle his finances,

or attend sporting events does not mean that Plaintiff is capable of working for eight hours a day

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five daysa week. Tr.25. Although, the record shows that Plaintiff injured himself while moving

cinderblocks, this solitary instance does not undermine other evidence in the record of limited

activity. 494. The ALJ suggests that caring for livestock and riding a tractor are activities

that undermine Plaintiff's subjective symptom testimony. Tr. 25. Plaintiff testified that caring

for livestock required approximately five minutes of his time. Tr. 46. And, the record is not

clear whether these activities occurred while working on a farm or at a past residence or during

the relevant time period. In addition, getting kicked by a horse has no bearing on Plaintiff’s

subjective symptom testimony. In actuality, there is sufficient evidence that Plaintiff has physical

limitations and requires breaks. Therefore, the ALJ’s third rationale is not supported by

substantial evidence and the ALJ failed to provide a specific, clear, and convincing reason for

discounting Plaintiff's subjective symptom testimony. Furthermore, even if Plaintiff's activities

of daily living were supported by substantial evidence, the court concludes that this reason alone,

on this record, does not amount to clear and convincing support to reject Plaintiff's subjective

symptom testimony.

In short, the ALJ has failed to provide clear and convincing evidence backed by substantial

evidence for discounting Plaintiff's subjective symptom testimony.

Ill. Remedy

The decision whether to remand for further proceedings or for the immediate payment of

benefits lies within the discretion of the court. Treichler, 775 F.3d at 1101-02. A remand for

award of benefits is generally appropriate when: (1) the ALJ failed to provide legally sufficient

reasons for rejecting evidence; (2) the record has been fully developed, there are no outstanding

issues that must be resolved, and further administrative proceedings would not be useful; and (3)

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after crediting the relevant evidence, “the record, taken as a whole, leaves not the slightest

uncertainty” concerning disability. /d at 1100-01 (nternal quotation marks and citations

omitted); see also Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the

standard for determining the proper remedy). The second and third prongs of the test often merge

into a single question: Whether the ALJ would have to award benefits if the case were remanded

for further proceedings. Harman y. Apfel, 211 F.3d 1172, 1178 n.7 (9th Cir. 2000).

The Plaintiff meets all three criteria of the credit-as-true standard. First, the

Commissioner has erred in rejecting Dr. Alvord’s opinion, Ms. Burfine’s opinion, and Plaintiffs

subjective symptom testimony. Second, the record has been fully developed and there are no

material conflicts that require further resolution. Dr. Alvord diagnosed Plaintiff with numerous

marked limitations that establish disability. Ms. Burfine also assessed that Plaintiff would be

absent three to four days per month due to his impairments, which precludes competitive

employment. Third, further proceedings would serve no useful purpose because when the

discredited opinion evidence is properly considered, record reveals Plaintiff is unable to sustain

competitive employment.

Where a claimant meets all three criteria of the credit-as-true standard, remanding for an

award of benefits is appropriate unless “the record as a whole creates serious doubt as to whether

the claimant is, in fact, disabled with the meaning of the Social Security Act.” Garrison, 759 F.3d

at 1020-21 (citations omitted). Carefully considering the record as a whole, there is no “serious

doubt” that Plaintiff is in fact disabled. See id at 1021; see also Revels, 874 F.3d at 668 n.8

(explaining that where each of the credit-as-true factors is met, only in “rare instances” does the

record as a whole leave “serious doubt as to whether the claimant is actually disabled”).

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Accordingly, the Court exercises its discretion and credits the erroneously discredited evidence as

true and remands this case for an immediate calculation and payment of benefits.

Conclusion

Based on the foregoing, pursuant to sentence four of 42 U.S.C. § 405(g), the

Commissioner’s final decision REVERSED and REMANDED for an immediate calculation and

award of benefits.

IT IS SO ORDERED.

DATED this 28th day of February, 2022.

C (ff.

JOHN V. ACOSTA

ited States Magistrate Judge

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