# Whalen v. Commissioner Social Security Administration

> District Court, D. Oregon · March 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10394569

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 30, 2022
- **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/10394569

## How later opinions describe it (automated extraction)

- affirming the ALJ’s discounting of the claimant’s testimony because the ALJ “provided at least one clear and convincing reason supported by substantial evidence for rejecting [it] as not credible”
- emphasizing that lay witness “testimony is competent evidence and cannot be disregarded without comment”
- holding that the ALJ did not err in discounting lay witness testimony on the ground that it was “outside the relevant period of disability”
- explaining that even if the identified inconsistency between testimony and evidence “could be reasonabl[y] . . . drawn” from the ALJ’s decision, “the credibility determination is exclusively the ALJ’s to make, and [courts] are constrained to review the reasons the ALJ assert[ed]”
- explaining that an ALJ’s post-remand decision becomes the Commissioner’s final decision “unless [the] Appeals Council assumes jurisdiction of [the] case” (citing 20 C.F.R. §§ 404.984, 416.1484)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RONALD W.,1 Case No. 6:21-cv-00014-SB

Plaintiff, OPINION AND ORDER

v.

KILOLO KIJAKAZI, Acting Commissioner
of Social Security,2

Defendant.

BECKERMAN, U.S. Magistrate Judge.
Ronald W. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social
Security Administration’s (“Commissioner”) denial of his applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the
Social Security Act. The Court has jurisdiction to hear Plaintiff’s appeal pursuant to 42 U.S.C.

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. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
2 Kilolo Kijakazi became the acting Commissioner of the Social Security Administration
on or about July 9, 2021 and is substituted as the defendant. See FED. R. CIV. P. 25(d)(1).
§ 405(g), and the parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant
to 28 U.S.C. § 636(c). For the reasons explained below, the Court reverses the Commissioner’s
decision because it is based on harmful legal error and not supported by substantial evidence in
the record.
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)).
BACKGROUND
I. PLAINTIFF’S APPLICATIONS
Plaintiff was born in August 1963, making him fifty years old on August 26, 2013, his
amended alleged disability onset date. (Tr. 129, 581, 592.) Plaintiff is a high school graduate and
has past work experience as a pipeline laborer and general farm worker. (Tr. 130, 283, 581.) In
his applications, Plaintiff alleged disability due to degenerative disc disease and neuropathy.
(Tr. 153, 577.)
The Commissioner denied Plaintiff’s applications initially and upon reconsideration, and
on January 19, 2015, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).

(Tr. 100.) Plaintiff and a vocational expert (“VE”) appeared and testified at an administrative
hearing held on December 13, 2016. (Tr. 124-152.) On February 23, 2017, the ALJ issued a
written decision denying Plaintiff’s applications. (Tr. 100-11.) On March 9, 2018, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s written decision the final
decision of the Commissioner. (Tr. 1-4.) Plaintiff sought review of the ALJ’s decision in federal
court.
On June 13, 2019, the parties stipulated to a remand for further administrative
proceedings, and the district court entered an order remanding the case to the agency and
instructing the ALJ to evaluate the opinion of Plaintiff’s treating physician, Samir Ale, M.D.

(“Dr. Ale”), “along with other medical source opinions of record,” reassess Plaintiff’s residual
functional capacity (“RFC”), obtain VE “evidence as necessary,” and “issue a new decision.”
Ronald W. v. Comm’r Soc. Sec. Admin., No. 6:18-cv-00828 (D. Or. filed May 14, 2018), ECF
Nos. 21-22. On remand, the Appeals Council vacated the ALJ’s original decision and explained
that the ALJ was required to, among other things, consider the new material evidence from
Dr. Ale and address only the “time period prior to May 8, 2018,” because Plaintiff had filed a
subsequent claim for benefits and the agency determined that Plaintiff was disabled as of May 8,
2018. (Tr. 659-60.)
///
Plaintiff and a VE appeared and testified at a second hearing held on September 3, 2020.
(Tr. 592-617.) On September 30, 2020, the ALJ issued a decision finding that Plaintiff was not
disabled “prior to May 8, 2018,” and therefore denying Plaintiff’s applications. (Tr. 574-83.)
This appeal followed, and the ALJ’s decision stands as the final decision of the Commissioner
for the purpose of the Court’s review. See Lax v. Astrue, 489 F.3d 1080, 1082 (10th Cir. 2007)

(explaining that an ALJ’s post-remand decision becomes the Commissioner’s final decision
“unless [the] Appeals Council assumes jurisdiction of [the] case” (citing 20 C.F.R. §§ 404.984,
416.1484)).3
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.
///

3 Plaintiff agrees that the ALJ’s decision stands as the Commissioner’s final decision
because the Appeals Council did not assume jurisdiction. (See Pl.’s Opening Br. at 2-3, citing 20
C.F.R. §§ 404.984, 416.1484).
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. 574-83.) At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since August 26, 2013, his amended alleged disability onset date. (See
Tr. 574, 577, referring to the original onset date of August 18, 2013 but noting the onset date was
amended to August 26, 2013.) At step two, the ALJ determined that Plaintiff suffered from the
following severe impairments: cervical degenerative disc disease “status-post surgery in 2017,”

lumbar degenerative disc disease, and peripheral neuropathy. (Tr. 577.) At step three, the ALJ
concluded that Plaintiff did not have an impairment that meets or medically equals a listed
impairment. (Id.) The ALJ then concluded that Plaintiff had the RFC to perform light work,
subject to these limitations: (1) Plaintiff can stand and/or walk for four hours in an eight-hour
workday; (2) Plaintiff can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
engage in “bilateral overhead reaching,” but cannot crawl or climb ladders, ropes, and scaffolds,
(3) Plaintiff can frequently engage in “bilateral feeling with [his] upper extremities,” and (4)
Plaintiff must avoid “vibrations or hazards, such as dangerous machinery and unprotected
heights.” (Tr. 578.) At step four, the ALJ determined that Plaintiff was not able to perform his
past work. (Tr. 581.) At step five, the ALJ determined that Plaintiff was not disabled “prior to
May 8, 2018,” because a significant number of jobs existed in the national economy that he
could perform, including work as a marker, production assembler, and agricultural produce
sorter. (Tr. 582.)
DISCUSSION

In this appeal, Plaintiff argues that the ALJ erred by failing to provide (1) clear and
convincing reasons for discounting Plaintiff’s symptom testimony; (2) germane reasons for
discounting the lay witness testimony provided by Plaintiff’s girlfriend, Shelly Jones (“Jones”);
and (3) legally sufficient reasons for discounting the opinion of Plaintiff’s treating physician,
Dr. Ale. (Pl.’s Opening Br. at 14-24.) As explained below, the Court concludes that the
Commissioner’s decision is based on harmful legal error and not supported by substantial
evidence in the record. Accordingly, the Court reverses the Commissioner’s denial of Plaintiff’s
applications.
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-00583-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. 581, the ALJ determined that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause 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 concludes that the ALJ failed to meet that
standard here.
1. The ALJ’s Decision
Plaintiff argues that the ALJ erred in discounting Plaintiff’s symptom testimony because
the ALJ “briefly summarized the medical record” but “did not identify any testimony that he
found inconsistent with the medical record, nor explain how the record undermined that
testimony.” (Pl.’s Opening Br. at 16.) Plaintiff emphasizes that the Ninth Circuit has held that
“providing a summary of medical evidence . . . is not the same as providing clear and convincing
reasons for finding [a] claimant’s symptom testimony not credible.” (Pl.’s Opening Br. at 16-17,
quoting Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020)). Plaintiff also argues that
although “the ALJ did not specifically reject [Plaintiff’s] testimony based on his reported
activities,” the ALJ “failed to identify activities that exceed [Plaintiff’s] alleged limitations,” and
the limited activities the ALJ cited do “not contradict [Plaintiff’s] allegations of disability.” (Pl.’s

Opening Br. at 17-18.)
The Commissioner suggests that the ALJ’s analysis satisfied the Ninth Circuit’s
requirements of specificity, noting that the ALJ “explained that Plaintiff’s allegations were
inconsistent with his activities,” “noted improvement in Plaintiff’s symptoms with treatment,”
and “considered the ample medical records during the relevant period [i.e., August 26, 2013 to
May 8, 2018] that were at odds with Plaintiff’s extreme symptom reports.” (Def.’s Br. at 5-7,
citing Tr. 579-81.)
As explained below, the Court finds unpersuasive the Commissioner’s arguments and
concludes that the ALJ failed to provide clear and convincing reasons for discounting Plaintiff’s

testimony.
a. Specificity Requirements
Lambert and its progeny are instructive as to the level of specificity that Ninth Circuit
case law requires. In Lambert, the ALJ “noted generically that ‘the claimant’s statements
concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely
consistent with the objective medical and other evidence for the reasons explained in this
decision.’” 980 F.3d at 1277. The ALJ also “provided four high-level reasons as to why [the
claimant’s] allegations were ‘less than fully consistent with the evidence.’” Id. Specifically, the
ALJ cited these four reasons:
First, [the claimant] had ‘not generally received the type of medical treatment one
would expect for a totally disabled individual.’ Second, the ‘record reflect[ed]
significant gaps in [the claimant’s] history of treatment and relatively infrequent
trips to the doctor for the allegedly disabling symptoms.’ Third, [the claimant’s]
‘use of medications does not suggest the presence of impairments which is more
limiting than found in this decision.’ And finally, ‘medications have been
relatively effective in controlling [the claimant’s] symptoms.’
Id. at 1270.
The Ninth Circuit determined that the ALJ’s decision did “not meet the requirements set
forth in our cases and d[id] not permit meaningful review.” Id. at 1277. The Ninth Circuit held
that the ALJ’s generic introductory remark was insufficient, noting that “this boilerplate
statement by way of introductory remark, which is routinely included in ALJ decisions denying
benefits, did not identify what parts of the claimant’s testimony were not credible and why.” Id.
(simplified).
The Ninth Circuit also held that the ALJ’s “four high-level reasons” were insufficient. Id.
The Ninth Circuit explained that the ALJ’s “relatively detailed overview” of the medical history
was “not the same as providing clear and convincing reasons for finding the claimant’s symptom
testimony not credible.” Id. at 1278 (citation omitted). The Ninth Circuit also explained that “our
cases do not require ALJs to perform a line-by-line exegesis of the claimant’s testimony, . . . [or]
draft dissertations when denying benefits,” but they “plainly required the ALJ to do more than
was done here, which consisted of offering non-specific conclusions that [the claimant’s]
testimony was inconsistent with her medical treatment.” Id. at 1277 (citations omitted). Further,
the Ninth Circuit explained that it was “understandable” that the district court “attempted to fill
in the ALJ’s reasoning” and “shore up the ALJ’s decision” by citing activities-related evidence
and comparing it to “specific aspects of the medical evidence” (i.e., the general category under
which the ALJ’s reasons fit). Id. at 1278. The district court’s efforts, however, were “unavailing”
because “‘[a]lthough the inconsistencies identified . . . could be reasonable inferences drawn
from the ALJ’s summary of the evidence, the credibility determination is exclusively the ALJ’s
to make,’ and ‘[the district court was] constrained to review the reasons the ALJ assert[ed].’” Id.
(citation omitted).
Similarly, in Wade v. Saul, 850 F. App’x 568, 569 (9th Cir. 2021), the Ninth Circuit
explained that “[s]ummarizing [the claimant’s] testimony about her limitations from her mental

impairments, and later mentioning that her symptoms improved with medication and treatment,
does not provide clear and convincing reasons to discredit that testimony.” Id. (citing Lambert,
980 F.3d at 1277-78)). The Ninth Circuit therefore held that the ALJ committed “reversible
error.” Id.
By contrast, in Young v. Saul, 845 F. App’x 518, 519 (9th Cir. 2021), the Ninth Circuit
rejected the claimant’s “argument that, by failing expressly to mention [the claimant’s] assertion
that his back pain created a need for him to take weeks off from work at a time, the ALJ thereby
overlooked that testimony and failed to give reasons to discount it.” Id. The Ninth Circuit
explained that the “ALJ was not required to mention explicitly, in his ruling, each detail of [the

claimant’s] testimony, such as the need to take off weeks at a time from work.” Id. at 520 (citing
Lambert, 980 F.3d at 1277). The Ninth Circuit held that the ALJ did not err because he
“specifically cited [the claimant’s] written statements and testimony as among the items he had
‘carefully consider[ed],’ and he gave specific reasons why he did not credit [the claimant’s]
claims concerning the ‘limiting effects’ of [the claimant’s] symptoms, including his ‘back and
knee pain.’” Id. at 519-20. Those reasons included inconsistent objective medical evidence,
minimal treatment before the claimant’s date last insured, which the ALJ found did not support
the claimant’s “subjective complaints,” and a non-examining physician’s conflicting opinion. Id.
at 520.
b. Disposition
The Court concludes that the ALJ failed to provide clear and convincing reasons for
discounting Plaintiff’s testimony.
Near the end of his decision, the ALJ noted generically that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely

consistent with the medical evidence and other evidence in the record for the reasons explained
in this decision.” (Tr. 581.) Before doing so, the ALJ summarized September 2018 findings from
Neal Berner, M.D., a non-examining state agency physician, which the ALJ stated “suggested”
that the RFC was correct but were “not entitled to full weight” because Dr. Berner issued his
opinion “outside the period at issue” (i.e., after the agency found that Plaintiff was disabled).
(Tr. 578.)
The ALJ then summarized Plaintiff’s medical records, which are “marked by several
orthopedic and neurological disorders” and “particularly notable for cervical stenosis and
indications of radiculopathy, culminating in surgery in [September] 2017.” (Tr. 578-79.) The
ALJ noted that Plaintiff’s medical records include: (1) a March 2015 cervical spine image

showing “severe spinal stenosis and an area of myelomalacia in the central cord,” (2) a March
2018 lumbar spine image showing “severe bilateral foraminal stenosis,” (3) observations about
an “antalgic gait” and “limping,” and (4) reports about “ongoing neuropathy affecting both [the]
upper and lower extremities, including numbness in the feet and one hand confirmed by
electrodiagnostic testing.” (Tr. 578-80, citing, inter alia, Tr. 1114, 1175; see also Tr. 1112-14,
Plaintiff complained of “acute exacerbation of chronic low back pain” and Plaintiff’s provider
observed that Plaintiff has “severe” degenerative joint disease and “severe” low back spasm, his
“pain control has been deteriorating,” and the March 2018 lumbar spine image showed that the
“[h]igh intensity zones of the intervertebral discs are indicative of annular tears, and can be [a]
significant pain generator . . . in some patients” and “asymptomatic in other[s]”; Tr. 1175, a
physiatrist noted “electrodiagnostic findings suggestive of a length dependent, sensory [greater
than] motor, primarily axonal polyneuropathy” that “seem[ed] to have worsened” and was
“[l]ikely secondary to [a] history of heavy alcohol use” and “no findings to suggest or confirm a
lumbar radiculopathy bilaterally,” but added that he could “not necessarily rule [radiculopathy]

out” and “further blood work” was necessary to “rule out other possible” causes for Plaintiff’s
polyneuropathy).
In summarizing Plaintiff’s medical records, the ALJ noted that the records also include
some less remarkable evidence, including, but not limited to, a negative straight leg raise test and
providers’ observations about Plaintiff exhibiting a normal gait and station, full strength, and
intact reflexes on exam. (Tr. 579-80.) The ALJ also referenced Dr. Berner’s “interpret[ation]” of
certain findings, discussed evidence that the ALJ believed supported his conclusion that
Plaintiff’s “multiple [physical] impairments would . . . be reasonably addressed by” the RFC, and
determined that there was “no need to include psychologically-based limitations beyond limiting

the onset of pain via appropriate restrictions.” (Id.)
Thereafter, the ALJ made two broad statements about Plaintiff, third parties, and/or
unnamed medical sources, one of which is an incomplete sentence. (See Tr. 580-81, “Any
allegation by [Plaintiff], third parties, or medical sources suggesting that [Plaintiff] could not
sustain [this RFC] is entitled to little weight. . . . Third party reports are similarly considered but
discounted. [Plaintiff] specifically was stated to be able to walk only [twenty-five] yards before
significant rest, when he was at a minimum able to[.]”). Other than a brief summary of Plaintiff’s
testimony and the ALJ’s boilerplate concluding remark about Plaintiff’s statements not being
“entirely consistent with medical evidence and other evidence for the reasons explained in this
decision,” the ALJ provided only the following explanation for discounting Plaintiff’s testimony:
[Plaintiff] indicat[ed] that [he] worked despite foot and other pain, and that his
symptoms eased with less time on the feet, [but] did not show that his ability to
stand or walk was limited to a particular amount of time. Consequently, with an
overall limit of four hours, he would be expected to be able to stand or walk
between routine breaks. His reported numbness in the left hand is addressed by
limiting feeling. His implication of continued severe pain is inconsistent with his
own activities. In 2014, after the onset, [Plaintiff] himself believed that he was
capable of chopping down trees. Even as of April 4, 2020, [Plaintiff] was noted to
be able to do activities of daily living without limitations, and able to do
housework with limitations. He exercises regularly and could state that his health
was ‘good.’ He has had no additional surgeries, and is without a pattern of
emergency room visits. Medications are those typical for his complaints.
(Tr. 580-81.)
The Court concludes the ALJ erred in discounting Plaintiff’s testimony. As an initial
matter, the ALJ’s reference to Plaintiff’s “implication of continued severe pain” as inconsistent
with his activities and the subsequent discussion of Plaintiff’s activities is the only portion of the
decision that may satisfy the Ninth Circuit’s specificity requirement. See Young, 845 F. App’x at
519-20 (holding that the ALJ satisfied the Ninth Circuit’s requirements of specificity by
providing “specific reasons” for discounting the claimant’s testimony about the “limiting effects”
of his symptoms, such as “back and knee pain”). This portion of the ALJ’s decision, however, is
nevertheless deficient because, as explained below, it is evident that the ALJ considered
evidence about Plaintiff’s activities selectively, and ignored evidence that contradicted his
findings. See, e.g., Jacob T. v. Saul, No. 3:19-cv-01151-SB, 2020 WL 4451163, at *4 (D. Or.
Aug. 3, 2020) (“An ALJ errs when [he] considers evidence about a claimant’s activities
selectively, and ignores evidence that contradicts [his] findings.”) (simplified).
For example, the ALJ cited Plaintiff’s ability to cut down trees, but the record reveals that
Plaintiff performed this activity one time and experienced pain-related issues following the
activity due to his physical impairments. (See Tr. 134, at the first hearing on December 13, 2016,
Plaintiff explained that he cut some trees down on one occasion after the amended onset date, but
he could not perform this activity on a sustained basis because it was “physically too much” and
“involves a lot of bending over and standing up and picking things up”; Tr. 596, 600-01, at the
second hearing on September 3, 2020, Plaintiff further explained that he was a logger in the

1980s and after his amended onset date, a friend paid him $646 for using a chainsaw to cut
down, not haul away or “clean[] . . . up,” some “30-foot, little pine trees,” but he had problems
performing the work and was “in pain” due to his cervical spine issues, which the ALJ’s decision
describes as “notable” and were not surgically repaired until several years later; see also Tr. 860-
61, June 1, 2017, Plaintiff’s orthopedist stated that Plaintiff’s exam was positive for neck pain,
shoulder impingement, and “concomitant shoulder arthropathy,” Plaintiff’s symptoms were
“consistent with severe and progressive myelopathy and surgical intervention [was] indicated,”
and “surgery need[ed] to proceed”).
The ALJ failed to explain how Plaintiff’s report about cutting down trees on one occasion

undermines the entirety of his symptom testimony. (See Tr. 581.) Although the Commissioner
argues that Plaintiff’s tree cutting “undercut[s] his claims that he was unable to stand or use his
hands for even brief periods” (Def.’s Br. at 5), the record does not address whether Plaintiff took
breaks when cutting down the trees due to his physical impairments. More importantly, however,
the ALJ did not state or find that Plaintiff’s tree cutting conflicted with his testimony about his
ability to stand or use his hands. Accordingly, the Court rejects the Commissioner’s post-hoc
rationalization for the ALJ’s decision. See Lambert, 980 F.3d at 1278 (explaining that even if the
identified inconsistency between testimony and evidence “could be reasonabl[y] . . . drawn”
from the ALJ’s decision, “the credibility determination is exclusively the ALJ’s to make, and
[courts] are constrained to review the reasons the ALJ assert[ed]”) (simplified).
The ALJ also noted that Plaintiff “exercises regularly and could state that his health was
good.” (Tr. 581; see also Tr. 579, citing Tr. 1112 and Tr. 1130 in regard to these reports).
Although there is one discrete reference to Plaintiff’s “good” health and “regular[]” exercise in

the medical records the ALJ referenced, the same medical records include reports about
Plaintiff’s worsening symptoms, acute exacerbation of his low back pain, poor symptom control,
abnormal lumbar spine imaging, “deteriorating” pain control, “severe” degenerative joint disease
and “severe” low back spasm, and impressions of “peripheral vascular disease and lumbar
radiculopathy” and “[m]oderate/severe claudication.” (See Tr. 1112-15, 1123-30). It is not clear
how these records undermine Plaintiff’s testimony or support the ALJ’s findings.
Nor is it clear how Plaintiff’s “regular” exercise undermines his symptom testimony. The
record reflects that Plaintiff’s exercise consists of walking as part of a cardiac rehabilitation
program, Plaintiff’s ability to walk is very limited and involves stopping, and his walking results

in pain and claudication. (See Tr. 1105, March 24, 2020, Plaintiff is only “able to walk his dog
100 yards before stopping”; see also Tr. 1196, March 8, 2017, Plaintiff complained of worsening
symptoms and reported that “exercise and walking” are exacerbating factors; Tr. 93, April 3,
2017, symptoms are made worse with “walking”; Tr. 1140, 1143, August 20, 2018, Plaintiff
“does not exercise regularly” and was “doing poorly” and experiencing “worsen[ing]” symptoms
and Plaintiff’s provider referred to his “inadequate exercise regimen”; Tr. 971, September 13,
2019, Plaintiff reported that he “ambulates his dog daily for [thirty] min[ute]s”; Tr. 968,
September 16, 2019, “States he is walking up to [twenty minutes a] day with his dog for home
exercise and his legs hurt when he ambulates. He uses a cane . . . [due to] leg weakness and
neuropathy to his feet[.]”; Tr. 1107, September 26, 2019, Plaintiff was walking daily, but stated
that “he can barely walk 200 feet before he experience[s] bilateral claudication which he
describe[d] as severe and activity limiting,” and his cardiologist noted that he could now “walk
[eight] minutes on the treadmill which is [a] significant improvement before he starts
experiencing claudication”; Tr. 954, October 4, 2019, Plaintiff reported that he walks his dog for

thirty minutes per day and reported moderate “claudication pain” during treadmill work; Tr. 948,
October 11, 2019, Plaintiff “tolerated” aerobic activity on a treadmill, but also reported the onset
of bilateral calf pain after one to two “minutes [which] became severe at [eight]”; Tr. 942,
October 25, 2019, Plaintiff reported that his “claudication pain is always [three to four] at rest”
and he was “walking his dog [thirty minutes a] day”; Tr. 939, November 1, 2019, Plaintiff
reported that he was “walking his dog for home exercise for [approximately thirty minutes]
daily” but his claudication pain is “always at a [four] even with sitting and never goes away
staying at a [three to four]”).
It is likewise unclear how Plaintiff’s daily activities undermine his symptom testimony.

Plaintiff’s activities consist of, among other things, preparing simple meals (microwaveable and
frozen foods), “laying down most of the day,” “stay[ing] off [his] feet as much as possible,”
watching television, sitting outside in a chair when his “pain is low,” and spending an hour or
less per week on chores, such as laundry and mowing a “little yard” with “rest here and there.”
(Tr. 303-05, 787-89.) Given this context, and contrary to the ALJ’s suggestion (Tr. 581), it is not
particularly notable that Plaintiff once reported that he can perform his activities of daily living
without limitations. (See Tr. 835, Plaintiff presented for therapy “following cervical spine
anterior fusion” and Plaintiff’s therapist assessed “[d]ifficulty with stairs and [d]ifficulty with
activities of daily living”).
Based on this record evidence and the case law cited herein, the Court rejects (1) the
Commissioner’s suggestion (and post-hoc rationalization) that Plaintiff’s ability to walk his dog
for up to thirty minutes per day conflicts with his testimony about how walking is painful or that
he cannot stand or walk for more than several minutes at a time, and (2) the Commissioner’s
argument that substantial evidence supports the ALJ’s finding that Plaintiff’s activities of daily

living undermine his “allegations of disabling pain.”4 (See Def.’s Br. at 5, citing, inter alia,
Tr. 1105.) The ALJ and Commissioner fail to address notable reports that undermine their
conclusions.
The ALJ also implied that Plaintiff’s testimony conflicted with “no additional surgeries,
and [a lack of a] pattern of emergency room visits.” (Tr. 581.) The Commissioner does not
defend or address Plaintiff’s arguments about this portion of the ALJ’s decision. (Compare Pl.’s
Opening Br. at 19-20, with Def.’s Br. at 5-8.) As Plaintiff correctly points out, the record
“documents emergency room visits and cervical discectomy and fusion” during the period at
issue, and a subsequent referral for “surgical consideration regarding the lumbar spine[.]” (Pl.’s

Opening Br. at 20, citing Tr. 480-81, 834-35, 914-16, 1147; see also Tr. 1147, July 2, 2018,
Plaintiff’s physiatrist stated that he would “send the referral in” about “a surgical opinion for
[the] lumbar spine” and “consider referral to [n]eurology to see if any further work up is
necessary for [Plaintiff’s] constellation of symptoms,” he could “not necessarily rule[] out”
lumbar radiculopathy, there was “[l]ikely polyneuropathy secondary to [a] history of heavy
[alcohol] use, or idiopathic/cryptogenic,” Plaintiff “may benefit from referral to [a] chronic pain

4 Although Dr. Ale’s opinion also addresses how long Plaintiff can stand and walk in an
eight-hour workday (Tr. 818), the evidence and testimony above also undermines the ALJ’s
finding that Plaintiff failed to “show that his ability to stand or walk was limited to a particular
amount of time.” (Tr. 581.)
management center,” Plaintiff has a “history of severe cervical stenosis [status post]
decompressive surgery,” and lumbar images revealed “bilateral [neuroforaminal] stenosis, severe
at L4-5”).
In light of this evidence, the ALJ erred in implying that Plaintiff’s symptom testimony is
inconsistent with his lack of “additional surgeries” or a “pattern of emergency room visits.” See

Sherry Lynn D. K. v. Saul, No. 20-2032, 2021 WL 4916723, at *8 (N.D. Cal. May 3, 2021)
(“The ALJ did not explain how a lack of unplanned emergency interventions (like emergency
room visits . . . ) undermines Plaintiff’s testimony. Such interventions are generally not part of an
intentional course of treatment and are instead meant to deal with sudden intense spikes in
symptoms. The ALJ did not identify anything in Plaintiff’s testimony that would indicate such
sudden intense spikes in symptoms would be expected (and therefore the lack of such spikes
probative).”).
Finally, the Commissioner argues that the ALJ provided sufficiently specific findings and
explanations about how Plaintiff’s testimony was inconsistent with evidence of improvement in

his symptoms (Def.’s Br. at 6, citing Tr. 579), and that certain medical records “were at odds
with Plaintiff’s extreme symptom reports.” (Def.’s Br. at 7, citing Tr. 578-80.) These portions of
the ALJ’s opinion demonstrate that the ALJ summarized the medical records and evidence he
believed supported his RFC, but did not identify which testimony he found not credible nor
explain which evidence contradicted that testimony. (See Tr. 578-80.) Further, although the ALJ
suggested that Plaintiff had “full[y] recover[ed]” by July 2019—i.e., over a year after the ALJ
and Commissioner determined that Plaintiff was disabled (see Tr. 575, the ALJ found “no reason
to the disturb” the state agency’s determination that Plaintiff was “disabled as of May 8, 2018,”
and therefore addressed only whether Plaintiff was “disabled in the period August 26, 2013 to
May 8, 2018”)—the ALJ acknowledged that Plaintiff did not undergo “decompression of the
spinal cord” until September 2017 and Plaintiff’s physician stated that “it might take up to [a]
year or so for symptoms to improve given the severity of the spinal stenosis and myelomalacia.”
(Tr. 579.)
Relatedly, the ALJ acknowledged that the record was “particularly notable for cervical

stenosis and indications of radiculopathy, culminating in surgery” eighth months before the date
on which the ALJ agrees that Plaintiff was disabled, that pre-surgery imaging “showed extensive
degenerative disease with disc and osteophyte complexes . . . resulting in severe spinal stenosis
and an area of myelomalacia in the central cord,” and that Plaintiff reported a ten-year “history
with worsening neck and arm pain.” (Tr. 579.) The ALJ also failed to address that Plaintiff’s
physiatrist could not rule out lumbar radiculopathy or other potential causes of polyneuropathy.
(See Tr. 579-80, 1147, 1175.)
Based on the discussion above and evidence cited herein, the Court finds that to the
extent the ALJ discounted Plaintiff’s testimony based on evidence of improvement or conflicting

objective evidence, the ALJ’s analysis does not meet the Ninth Circuit’s requirements of
specificity, nor does substantial evidence support discounting Plaintiff’s testimony on these
grounds.
In sum, the ALJ erred in discounting Plaintiff’s testimony. See Wade, 850 F. App’x at
569 (explaining that “[s]ummarizing” record evidence and “later mentioning that [the claimant’s]
symptoms improved with medication and treatment, does not provide clear and convincing
reasons to discredit that testimony” (citing Lambert, 980 F.3d at 1278)); see also Smith v.
Kijakazi, 14 F.4th 1108, 1111-14 (9th Cir. 2021) (holding that substantial evidence supported
that the claimant was not disabled at the time of the 2018 hearing but nevertheless reversing the
ALJ’s evaluation of the claimant’s testimony because the ALJ “did not adequately consider how
[the claimant’s] symptoms changed over time” or “sufficiently consider the duration of, or
chronological fluctuation in, [the claimant’s] symptoms” since the 2012 onset date, and instead
focused and relied on evidence from 2015 through 2018); McDowell v. Colvin, No. 2:15-cv-
00087, 2016 WL 2347854, at *4 (D. Vt. May 4, 2016) (“One of the records [the ALJ] cited . . . is

particularly unhelpful in demonstrating [any] medical improvement . . . because it was prepared
in March 2013, a date falling well within the period that the ALJ found [the claimant] to be
disabled.”).
2. Conclusion
For these reasons, the Court finds that the ALJ committed harmful error in discounting
Plaintiff’s symptom testimony because the ALJ failed to provide at least one clear and
convincing reason for doing so. Cf. Sims v. Berryhill, 704 F. App’x 703, 704 (9th Cir. 2017)
(affirming the ALJ’s discounting of the claimant’s testimony because the ALJ “provided at least
one clear and convincing reason supported by substantial evidence for rejecting [it] as not
credible”); see also Valdez v. Berryhill, 746 F. App’x 676, 677 (9th Cir. 2018) (“[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))).
II. LAY WITNESS TESTIMONY
Plaintiff argues that the ALJ failed to provide germane reasons for discounting the lay
witness testimony provided by Plaintiff’s girlfriend, Jones. (Pl.’s Opening Br. at 23-24.) The
Court agrees.
“Lay testimony as to a claimant’s symptoms is competent evidence that an ALJ must take
into account, unless he or she expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so.” Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir.
2017) (simplified). Here, the ALJ made two broad statements about third parties, one of which is
an incomplete sentence. (See Tr. 580-81, “Any allegation by . . . third parties . . . suggesting that
[Plaintiff] could not sustain [the ALJ’s RFC] is entitled to little weight. . . . Third party reports
are similarly considered but discounted. [Plaintiff] specifically was stated to be able to walk only

[twenty-five] yards before significant rest, when he was at a minimum able to[.]”). Accordingly,
the ALJ failed to provide any reason, let alone a germane reason, for rejecting Jones’s lay
testimony.
The Commissioner concedes that the ALJ did not provide an explanation as to why he
“considered but discounted” Jones’s testimony, and that the ALJ’s decision “lacks a specific
discussion” about Jones’s testimony. (Def.’s Br. at 10, citing Tr. 581.) The Commissioner,
however, argues that the ALJ did not commit an “error, let alone [a] reversible error,” as the ALJ
was only required to explain why he rejected “significant probative” evidence, and Jones’s
testimony did not amount to such evidence because she only “described Plaintiff’s present

limitations as of August 2018—a time at which there is no dispute that Plaintiff was disabled.”
(Def.’s Br. at 10-11.) The Commissioner also argues that any error was harmless because the
ALJ’s reasons for discounting Plaintiff’s testimony apply equally to Jones’s testimony. (Def.’s
Br. at 11.)
The Courts finds unpersuasive the Commissioner’s arguments for several reasons. First,
as discussed, the ALJ failed to provide clear and convincing reasons for discounting Plaintiff’s
testimony, and therefore those reasons cannot save the ALJ’s failure to complete his analysis of
Jones’s testimony.
///
Second, the Commissioner is correct that the ALJ was not required to discuss evidence
that was not significant or probative, and that evidence relating solely to the period outside the
period of disability at issue is not significant or probative. See Burkett v. Berryhill, 732 F. App’x
547, 553 (9th Cir. 2018) (holding that the ALJ “did not err by declining to discuss” lay witness
testimony, noting that the ALJ “acknowledged” but “declined to rely” on the lay testimony

because it “address[ed] the claimant’s functioning outside the period at issue,” explaining that
“[a]n ALJ is not required to discuss evidence that is not significant or probative, and evidence
relating to [the claimant’s] symptoms and limitations outside the alleged period of disability does
not qualify as significant or probative,” and adding that any error was harmless because the lay
“testimony described the same limitations as [the claimant’s properly discounted] testimony”)
(simplified); Spence v. Colvin, 617 F. App’x 752, 754 (9th Cir. 2015) (holding that the ALJ did
not err in discounting lay witness testimony on the ground that it was “outside the relevant period
of disability”).
Here, however, Jones’s testimony does not appear to address “limitations only after

[Plaintiff] was already determined to be disabled” (Def.’s Br. at 11), as the Commissioner
argues. Jones filled out her third-party report on August 28, 2018, less than four months after
May 8, 2018, the date on which Plaintiff was indisputably disabled, and Jones testified that she
has known Plaintiff for thirty-two years, lives with Plaintiff, and has observed, for example, that
Plaintiff has been “unable to sit, stand or walk for a long time [and] is always in pain[.]”5
(Tr. 794-801.)

5 It is not clear when the state agency made its final decision that Plaintiff was disabled as
of May 8, 2018. (See Pl.’s Opening Br. at 2; Tr. 574-75, 660-74, 758-59.) Plaintiff filed the
relevant application in May 2018 (Tr. 758), and it may have taken several months for the state
agency to make its final determination. Thus, at the time Jones completed her report, the period
Given the short amount of time that passed between Plaintiff’s already established
disability date and the date on which Jones completed her report, and the words Jones used
therein, the Court cannot conclude that Jones’s testimony was insignificant or not probative.
Accordingly, the ALJ’s unexplained discounting of Jones’s testimony was harmful error. See
Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (emphasizing that lay witness “testimony is

competent evidence and cannot be disregarded without comment”) (simplified); Howell v.
Astrue, 248 F. App’x 797, 800 (9th Cir. 2007) (explaining that the ALJ discounted the lay
testimony because it did not “broach the time period in question” and “focused on . . . present
symptoms,” the lay testimony was “ambiguous as to whether it was descriptive” of the
claimant’s “then-current condition,” past condition, or “condition during more than one time
frame,” and “[i]f [the lay] testimony was not clearly addressed to the relevant time period, the
ALJ had an obligation to ask clarifying questions before rejecting the testimony on that basis,
and it was error to reject the testimony without doing so”) (simplified); cf. Peksenak v. Kijakazi,
No. 20-35823, 2021 WL 4948266, at *1 (9th Cir. Oct. 25, 2021) (affirming the discounting of a

lay witness’s report that was “written four years after the date last insured and did not clearly
address the relevant time period”).
///
///
///
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up to and including August 28, 2018 may have still been in dispute and part of the period at
issue.
III. MEDICAL OPINION EVIDENCE
A. Applicable Law6
“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.
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

6 The new regulations that govern how ALJs must evaluate medical opinion evidence do
not apply here because Plaintiff filed his applications 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).
with boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012-13
(citation omitted).
B. Analysis
1. Dr. Ale’s Opinion
Dr. Ale completed a treating source statement on May 30, 2017. (Tr. 816-20.) In his
treating source statement, Dr. Ale explained that he had treated Plaintiff since February 25, 2015,

and Plaintiff suffered from cervical spinal stenosis, cervicalgia, bilateral foot/leg pain, tobacco
dependence, and “significant spinal stenosis, awaiting spinal surgery.” (Tr. 816.) Dr. Ale
explained that Plaintiff’s symptoms included neck pain, arm and hand weakness, severe leg pain,
and leg numbness, and that Plaintiff’s symptoms were corroborated by his MRI results, which
Dr. Ale cited in support of his opinions. (Tr. 817.) Dr. Ale added that Plaintiff needs to rest every
fifteen to twenty minutes, Plaintiff was taking anti-inflammatories, muscle relaxers, and opioid
pain medication, Plaintiff could sit for two hours and stand/walk for one hour during an eight-
hour workday, Plaintiff would need to take unscheduled work breaks, Plaintiff can never lift and
carry twenty pounds or more, and Plaintiff would him miss more than four workdays per month.
(Tr. 817-20.)

2. Disposition
Plaintiff argues that the ALJ failed to provide specific and legitimate reasons, supported
by substantial evidence, for discounting Dr. Ale’s opinion. (Pl.’s Opening Br. at 20-23.) The
Court agrees.
The ALJ addressed Dr. Ale’s opinion on the last page of his decision, and assigned “little
weight” to the opinion. (Tr. 583.) The Commissioner asserts that the ALJ provided three legally
sufficient reasons for doing so: (1) “Plaintiff’s activities were inconsistent with Dr. Ale’s
opinion,” (2) “Dr. Ale’s opinion was not consistent with objective findings from the relevant
period,” and (3) “Dr. Ale’s assessment that Plaintiff would miss four or more days of work a
month lacked objective findings.” (Def.’s Br. at 8-9.) Substantial evidence does not support these
reasons.
In discounting Dr. Ale’s opinion, the ALJ only referred generally to “daily activities
[that] do not suggest significant limitations.” (Tr. 583.) As discussed, the ALJ’s reliance on

Plaintiff’s activities was misplaced because (1) the ALJ considered activities-related evidence
selectively, and ignored evidence that contradicted his findings, (2) it would be improper for the
Court to affirm the ALJ’s decision based on the Commissioner’s post-hoc rationalizations, and
(3) the ALJ and Commissioner cite activities that, when given their appropriate context, are
entirely unremarkable. (See Def.’s Br. at 9, relying on Plaintiff’s ability to “haul firewood” even
though the ALJ did not do so, and to “do laundry, perform chores, . . . clean both inside and
out . . . [and] go on [thirty]-minute walks for exercise,” citing, inter alia, Tr. 303-05, 1105, which
show that Plaintiff is only “able to walk his dog 100 yards before stopping,” stays off his feet “as
much as possible” each day because it is “[p]ainful to walk [and] stand,” and spends one “hour or

so once a week” bringing laundry to the wash room, folding clothes, bringing in wood (the size
and weight of which are unknown, as is the method of transportation) for a stove, and cleaning
up “inside and out”).
With respect to conflicting objective evidence, the Commissioner argues that the ALJ
appropriately discounted Dr. Ale’s opinion because “the evidence showed that Plaintiff routinely
walked normally . . . [and] maintained normal strength, including grip strength.” (Def.’s Br. at 8,
citing, inter alia, Tr. 392, 462, 1103.) The evidence described herein demonstrates that Plaintiff
has testified about and exhibited notable walking limitations and that the ALJ and Commissioner
impermissibly isolate normal findings while ignoring numerous abnormal findings that support
Plaintiff’s improperly discounted testimony and claim of disability.7 (See, e.g., Tr. 392,
documenting a normal gait and stance but adding that electrodiagnostic studies were “consistent
with distal symmetric polyneuropathy with possible superimposed peroneal nerve abnormality
on the right possibly related to [Plaintiff’s] prior history of knee and/or ankle injury,” and that it
“would seem most likely that [Plaintiff’s] burning dysesthetic pain is related to painful peripheral

neuropathy”; Tr. 463, February 19, 2015, “There is electrodiagnostic findings of active
denervation and chronic reinnervation in the left triceps. This is suggestive of a [cervical]
radiculopathy . . . . Given his history and physical examination findings . . . , I am concerned for
a cervical spinal stenosis or myelopathy. [The left] median motor study was mildly prolonged
with normal sensory studies. A left C8 radiculopathy may explain this finding. . . . [A]
sensorimotor polyneuropathy . . . may also explain this finding. [Lastly, the left] ulnar sensory
study was also abnormal. Possibly due to a sensorimotor polyneuropathy. Ulnar neuropathy
across the elbow cannot be ruled out. . . . Today’s test was suggestive of a left cervical
radiculopathy. X-ray and MRI of C-spine ordered”; Tr. 579, the ALJ observed that a March 26,

2015 “MRI of the cervical spine . . . showed extensive degenerative disease with disc and
osteophytes complexes. . . resulting in severe spinal stenosis and an area of myelomalacia in the
central cord”; Tr. 1103, “Severe [peripheral arterial disease], activity limiting [and] lifestyle
limiting . . . , with [a CT scan] demonstrating distal right femoral arteries occluded in the distal

7 The Ninth Circuit has made similar observations. See, e.g., Kelly v. Berryhill, 732 F.
App’x 558, 561-62 (9th Cir. 2018) (“By isolating a few normal findings from the MRI results
while ignoring the numerous abnormal MRI findings as well as all of the other abnormal clinical
findings in the record, the ALJ erred. . . . [T]he ALJ is not free to ignore relevant, competent
evidence—such as a recent [and relevant time period] MRI for a claimant who suffers from
lumbar degenerative disc disease and lumbar spondylosis—that would lend support to a claim of
disability.”).
thigh”; see also Tr. 358, 830, 1141, 1197, wide-based and antalgic gait, limping, and difficulty
with tandem gait).
The ALJ also discounted Dr. Ale’s opinion on absenteeism on the ground that it “is not
supported [because] it is speculation with a lack of objective findings.” (Tr. 583.) Courts,
however, have rejected an ALJ’s discounting of an absenteeism opinion under circumstances

similar to those presented here. See, e.g., Thies v. Colvin, No. 1:15-cv-00258, 2016 WL 5746343,
at *8 (D. Idaho Sept. 30, 2016) (holding that the ALJ’s rejection of a treating physician’s opinion
on absenteeism as “speculative” was “insufficient to overcome the more fundamental flaws in
the ALJ’s opinion,” namely, an erroneous adverse credibility determination and improper
reliance on “facts and information from” outside the relevant period); see also Jasmine K. v.
Saul, No. 20-0728, 2021 WL 963476, at *4 (W.D. Wash. Mar. 15, 2021) (“Because the ALJ’s
rejection of [the treating physician’s] absenteeism opinion [as speculative] appears to be based
on sheer disbelief rather than a legitimate rationale for discounting, the Court finds this line of
reasoning to be erroneous.”); Jackson v. Astrue, No. 11-cv-4731, 2012 WL 835979, at *1 (C.D.

Cal. Mar. 8, 2012) (explaining that the ALJ’s rejection of a treating physician’s absenteeism
opinion as “speculative” was “cryptic,” “tantamount to a non-explanation,” and comparable to
“say[ing] that medical opinions are not supported by sufficient objective findings . . . [which]
does not achieve the level of specificity [Ninth Circuit] cases have required, even when the
objective factors are listed seriatim” (quoting Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir.
1988))).
Finally, the ALJ discounted Dr. Ale’s opinion based on the conflicting opinion of the
non-examining state agency physician, Dr. Berner. (Tr. 583; see also Tr. 666-74, September 27,
2018, Dr. Berner summarized his record review and stated that “[o]nset is fully supported as of
[the date of filing] of 5/8/18,” and Dr. Ale’s May 2017/pre-September 2017 surgery opinion was
only “partially consistent with [the] evidence” and “not fully supported by the totality of [the]
evidence”; Tr. 817, Dr. Ale explained that his opinion was based largely on Plaintiff’s “recent
MRI results”). Standing alone, however, Dr. Berner’s non-examining opinion is not enough to
meet the substantial evidence standard. See Blacksher v. Berryhill, 762 F. App’x 372, 375-76

(9th Cir. 2019) (holding that the ALJ failed to provide specific and legitimate reasons for
discounting an examining psychologist’s opinion and explaining that a non-examining
psychologist’s conflicting opinion was “not enough on its own to meet the substantial evidence
standard”).
For all of these reasons, the Court concludes that the ALJ failed to provide legally
sufficient reasons, supported by substantial evidence in the record, for discounting Dr. Ale’s
opinion.
IV. 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 1020 (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. (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 Plaintiff meets the credit-as-true standard here, and a remand
for benefits is appropriate.
First, Plaintiff’s “case was remanded to the agency for further proceedings once before,
so the record has been fully developed and further administrative proceedings would serve no
useful purpose.” Pulliam v. Berryhill, 728 F. App’x 694, 697 (9th Cir. 2018) (citing Garrison,
759 F.3d at 1020). Second, the ALJ failed properly to evaluate an “opinion[] from [a] treating
physician[] indicating that [Plaintiff] is disabled, and [all] of the ALJ’s reasons for discrediting
[Plaintiff’s] testimony are not specific, clear, and convincing.” Id. The ALJ also failed properly

to evaluate lay witness testimony. Third, if the improperly discredited evidence were credited as
true, the ALJ would be required to find Plaintiff disabled on remand. (See Tr. 615-16, 819-20,
the VE testified that standing alone, Dr. Ale’s opinions about absenteeism, or Plaintiff’s ability
to sit for two hours during an eight-hour workday and stand and/or walk for “a total of one
hour,” would preclude gainful employment, and Dr. Ale’s opinion about Plaintiff’s ability to
perform less than frequent fingering and handling would rule out jobs at the “light level”).
For these reasons, and because the Court does not have serious doubt about whether
Plaintiff is disabled, the Court exercises its discretion to remand this case for an award of
benefits. See Newton v. Saul, 839 F. App’x 178, 179 (9th Cir. 2021) (reversing district court
opinion remanding for further proceedings and instead remanding for an award of benefits
where, as here, the ALJ erred in discounting a treating physician’s opinion, the claimant’s
testimony, and other evidence, additional medical evidence supported the claim of disability, and
the “conflicting medical opinions in the record . . . came from non-examining doctors”); Varela
v. Saul, 827 F. App’x 713, 714 (9th Cir. 2020) (reversing district court opinion remanding for
further proceedings and instead remanding for benefits where, as here, the ALJ erred in
discounting a treating physician’s opinion based on conflicting non-examining opinion
evidence).
CONCLUSION
Based on the foregoing reasons, the Court REVERSES the Commissioner’s decision and
REMANDS this case for an award of benefits.
IT IS SO ORDERED.
DATED this 30th day of March, 2022. Ste vie J Fecwe ner
HON. STACIE F. BECKERMAN
United States Magistrate Judge

PAGE 31 — OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394569. Public record. Not legal advice.