Scott v. Andrew Saul, Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HANNAH S.1, Case No. 1:20-cv-1623-SI

Plaintiff, OPINION AND ORDER

v.

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

Sara L. Gabin, SARA L. GABIN PC, 14523 Westlake Drive, Lake Oswego, Oregon, 97035.

Of Attorneys for Plaintiff.

Scott Erik Asphaug, Acting United States Attorney; Renata Gowie, Civil Division Chief, UNITED

STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue, Suite 600, Portland, OR 97204; Nancy C.

Zaragoza, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL, Social

Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104.

Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Hannah S. brings this action under § 205(g) of the Social Security Act, as amended, 42

U.S.C. § 405(g) (Act), to obtain judicial review of a final decision of the Commissioner of the

1 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. When applicable, this Opinion and

Order also uses the same designation for a non-governmental party’s immediate family member.

Social Security Administration (Commissioner) denying Plaintiff’s application for supplemental

security income (SSI) under Title XVI of the Act. For the reasons explained below, the Court

REVERSES AND REMANDS the Commissioner’s decision.

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

When the evidence is susceptible to more than one rational interpretation, the Court must

uphold the Commissioner’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Variable interpretations of the evidence are insignificant if the Commissioner’s interpretation is a

rational reading of the record, and this Court may not substitute its judgment for that of the

Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th

Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm

simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625,

630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)

(quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a

ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

BACKGROUND

A. Plaintiff’s Application

On July 18, 2017, Plaintiff applied for SSI alleging that her disability began on April 2,

2002. AR 66. Plaintiff’s application was denied initially and upon review. She requested a

hearing before an administrative law judge (ALJ). Plaintiff, through her representative, amended

the alleged onset date to July 18, 2017. Plaintiff was born on June 25, 1992, and she was 25

years old as of the amended alleged disability onset date. Id. After a hearing, the ALJ denied

Plaintiff’s claim on November 27, 2019. AR 15-25. The Appeals Council denied Plaintiff’s

timely request for review, making the ALJ’s decision the final decision of the Commissioner.

AR 1-6. Plaintiff seeks judicial review of that decision before this Court.

B. The Sequential Analysis

A claimant is 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); see also 20 C.F.R.

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is

potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential

process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving

significant mental or physical duties done or intended to be done for pay

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing

such work, she is not disabled within the meaning of the Act. 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An

impairment or combination of impairments is “severe” if it significantly

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,

this impairment must have lasted or be expected to last for a continuous

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the

claimant does not have a severe impairment, the analysis ends. 20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

the listed impairments, the analysis continues. At that point, the ALJ must

evaluate medical and other relevant evidence to assess and determine the

claimant’s “residual functional capacity” (RFC). This is an assessment of

work-related activities that the claimant may still perform on a regular and

continuing basis, despite any limitations imposed by his or her

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis

proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC

assessment? If so, then the claimant is not disabled. 20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience,

is the claimant able to make an adjustment to other work that exists in

significant numbers in the national economy? If so, then the claimant is

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or

she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the

Commissioner must show that 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.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966

(describing “work which exists in the national economy”). If the Commissioner fails to meet this

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,

the Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since July 18, 2017, the application date. AR 17. At step two, the ALJ determined that Plaintiff

had the following severe impairments: obesity; depression and anxiety disorders; and autism

spectrum disorder (previously described in her records as Non-Verbal Learning Disorder). Id.

At step three, the ALJ found that Plaintiff had not had an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments in 20

C.F.R. Part 404, Subpt. P, App’x 1. AR 18-19. The ALJ then determined that Plaintiff had the

RFC to perform no more than medium work as defined in 20 C.F.R. § 416.967(c). AR 19. The

ALJ also found that Plaintiff would need to avoid all exposure to workplace hazards such as

heights and heavy machinery, could have no more than frequent superficial contact with

coworkers and occasional contact with the general public, and could tolerate no more than

occasional changes in the workplace setting. Id.

At step four, the ALJ concluded that Plaintiff had no past relevant work. AR 23. At step

five, the ALJ found that there were jobs that existed in significant numbers in the national

economy that Plaintiff could perform, including laundry worker, industrial cleaner, and kitchen

helper. AR 24. The ALJ determined that Plaintiff had not been under a disability, as defined in

the Social Security Act, since July 18, 2017, the date the application was filed. AR 25.

DISCUSSION

Plaintiff raises three claims of error: (1) the ALJ provided insufficient reasons to discount

Plaintiff’s symptom report; (2) the ALJ gave insufficient reasons to discount treating source

evidence; and (3) the ALJ failed to develop an accurate RFC. The Court addresses each alleged

error in turn.

A. Plaintiff’s Subjective Symptom Testimony

There is a two-step process for evaluating a claimant’s testimony about the severity and

limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

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

Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant

need not show that her impairment could reasonably be expected to cause the severity of the

symptom she has alleged; she need only show that it could reasonably have caused some degree

of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must

state which pain testimony is not credible and what evidence suggests the complaints are not

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing

Bunnell, 947 F.2d at 345-46).

The ALJ’s decision relating to a claimant’s subjective testimony may be upheld overall

even if not all the ALJ’s reasons for discounting the claimant’s testimony are upheld. See Batson,

359 F.3d at 1197. The ALJ may not, however, discount testimony “solely because” the

claimant’s symptom testimony “is not substantiated affirmatively by objective medical

evidence.” Robbins, 466 F.3d at 883.

An ALJ is required to specifically identify what evidence contradicts what

testimony. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th

Cir. 2014) (stating that an ALJ may not vaguely conclude that “a claimant’s testimony is ‘not

consistent with the objective medical evidence,’ without any ‘specific findings in support’ of that

conclusion” (quoting Vasquez, 572 F.3d at 592). “[A]n ALJ does not provide specific, clear, and

convincing reasons for rejecting a claimant’s testimony by simply reciting the medical evidence

in support of his or her residual functional capacity determination” but must “specify which

testimony she finds not credible,” and the district court may not “comb the administrative record

to find specific conflicts.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (quoting

Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014)); see also Smolen, 80 F.3d at 1284 (“The

ALJ must state specifically which symptom testimony is not credible and what facts in the record

lead to that conclusion.”); Dodrill, 12 F.3d at 918 (holding that it is “not sufficient for the ALJ to

make only general findings; he must state which pain testimony is not credible and what

evidence suggests the complaints are not credible”); Nan B. v. Saul, 2020 WL 6636221, at *6 (D.

Or. Nov. 12, 2020) (finding that the ALJ’s summary of the medical record, statement that the

claimant’s testimony “was not entirely consistent with the medical evidence and other evidence

‘for the reasons explained in this decision,’” and failure to “discuss which testimony about what

limitations he is crediting or discrediting, and why” was legal error). Instead, the ALJ must

“identify the testimony she found not credible” and “link that testimony to the particular parts of

the record supporting her non-credibility determination.” Brown-Hunter, 806 F.3d at 494. Failure

to do so is legal error. Id.

Here, the ALJ offered several reasons for discounting Plaintiff’s testimony. The ALJ

found that her claimed limitations were contradicted by her activities, her lack of hospitalizations

for her alleged mental health impairments, and her normal mental health examinations. The

Court analyzes each reason given by the ALJ in turn.

1. Activities of Daily Living

Daily living activities may provide a basis for discounting subjective symptoms if the

plaintiff’s activities either contradict his or her testimony or meet the threshold for transferable

work skills. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn, 495 F.3d at 639.

For daily activities to discount subjective symptom testimony, the activities do not need to be

equivalent to full-time work; it is sufficient that the plaintiff’s activities “contradict claims of a

totally debilitating impairment.” Molina, 674 F.3d at 1113. A claimant, however, need not be

utterly incapacitated to receive disability benefits, and completion of certain routine activities is

insufficient to discount subjective symptom testimony. See id. at 1112-13 (noting that a

“claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks

omitted)); Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“One does not need to be

‘utterly incapacitated’ in order to be disabled.”). The Ninth Circuit “has repeatedly asserted that

the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping,

driving a car, or limited walking for exercise, does not in any way detract from her credibility as

to her overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see also

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (requiring the level of activity be

inconsistent with the plaintiff’s claimed limitations to be relevant to his or her credibility and

noting that “disability claimants should not be penalized for attempting to lead normal lives in

the face of their limitations”). Moreover, particularly with certain conditions, cycles of

improvement may be a common occurrence, and it is error for an ALJ to pick out a few isolated

instances of improvement over a period of months or years and to treat them as a basis for

concluding that a plaintiff is capable of working. See Garrison v. Colvin, 759 F.3d 995, 1017

(9th Cir. 2014).

The ALJ found Plaintiff’s activities contradicted her claimed impairments because

Plaintiff lived alone, drove, completed an associate’s degree, was pursuing an a theater degree,

cleans, does housework, engaged in stage production work at school, played dungeons and

dragons, had hobbies and interests, and made plans to travel and visit friends and family. AR 21.

The testimony that the ALJ highlighted as contradicted by these activities is that Plaintiff needed

accommodations at school and could not work full time.

Although Plaintiff was able to live alone at times and perform the aforementioned daily

activities, she was often overwhelmed and could not adequately focus, keep commitments,

tolerate change, and sometimes relapsed into a depressive episode lasting several days in a week.

AR 263-65, 267-69. Plaintiff argues that although she can do well in school and other daily

activities when she is stable, stability is tenuous for her and she has required the assistance of a

life coach, an academic advisor, ongoing physical therapy, and other student disability supports.

AR 784, 797. In terms of Plaintiff’s academic history, she required seven and half years to earn

her associate’s degree, and in college, she had five incompletes and a failed class. AR 39, 48-49.

She received family help when she relocated from Bend to Ashland.

Plaintiff’s activities do not contradict her testimony that she received special

accommodations in school. Her activities also do not contradict her testimony that she cannot

work full time, because the activities are not transferable to full time work. Thus, the ALJ did not

identify any specific testimony that Plaintiff’s activities contradicted. The ALJ therefore erred in

relying on Plaintiff’s daily living activities to discount her subjective symptom testimony.

2. Conservative Course of Treatment

Routine, conservative treatment can be sufficient to discount a claimant’s subjective

testimony regarding the limitations caused by an impairment. Parra v. Astrue, 481

F.3d 742, 750-51 (9th Cir. 2007). Not seeking an “aggressive treatment program” permits the

inference that symptoms were not “as all-disabling” as the claimant reported. Tommasetti v.

Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The amount of treatment is “an important indicator

of the intensity and persistence of [a claimant’s] symptoms.” 20 C.F.R. § 416.929(c)(3). If,

however, the claimant has a good reason for not seeking more aggressive treatment, conservative

treatment is not a proper basis for rejecting the claimant’s subjective symptoms. Carmickle v.

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). An ALJ is not required to ask

the claimant at the hearing about every inconsistency in the record that led the ALJ to find a

claimant’s testimony not reliable. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th

Cir. 2001).

The fact that Plaintiff had never been hospitalized for her mental impairments is not a

proper basis on which to discount her testimony. “The absence of hospitalizations or other

admissions does not mean Plaintiff did not seek appropriate treatment or that the treatment

provided was unduly conservative.” Cody T. v. Saul, 2021 WL 2660088, at *13 (D. Or. June 28,

2021). “This district . . . has repeatedly found that, in the context of mental health, the mere fact

that a claimant has not been admitted to a hospital on an inpatient basis does not mean that a

claimant received conservative treatment.” Shelly A. O. v. Comm’r, Soc. Sec. Admin., 2020

WL 3868504, at *7 (D. Or. July 8, 2020) (quotation marks omitted); see also Tammy L. O. v.

Comm’r, Soc. Sec. Admin., 2018 WL 3090196, at *13 (D. Or. June 20, 2018) (“The Court

refuses to find that the mere fact that a claimant has not been admitted to a hospital on an

inpatient basis means that the claimant has received only ‘conservative treatment.’”). Plaintiff

takes six psychotropic medications and continues to have mental health symptoms. The ALJ

offered no other suggestion of additional treatment, other than hospitalization. Thus, the ALJ

erred in discounting Plaintiff’s testimony because she had no prior hospitalizations.

3. Objective Medical Evidence

An ALJ may consider the lack of corroborating objective medical evidence as one factor

in “determining the severity of the claimant’s pain.” Rollins v. Massanari, 261 F.3d 853, 857

(9th Cir. 2001). The ALJ may not, however, reject subjective testimony solely because it was not

fully corroborated by objective medical evidence. Robbins, 466 F.3d at 883; see also 20 C.F.R.

§ 404.1529(c)(2) (noting that the Commissioner “will not reject your statements about the

intensity and persistence of your pain or other symptoms or about the effect your symptoms have

on your ability to work solely because the available objective medical evidence does not

substantiate your statements”).

Because the Court has found the other reasons given by the ALJ were not clear and

convincing reasons supported by substantial evidence, the ALJ could not solely rely on the fact

that Plaintiff’s mental status examinations did not affirmatively support her alleged limitations.

See Robbins, 466 F.3d at 883 (9th Cir. 2006) (stating that “[w]hile an ALJ may find testimony

not credible in part or in whole, he or she may not disregard it solely because it is not

substantiated affirmatively by objective medical evidence,” and finding where the ALJ’s first

stated reason for his adverse credibility determination was insufficient, his remaining reason

premised on lack of medical support was also legally insufficient).

B. Medical Opinions

Plaintiff alleges that the ALJ erroneously discounted or rejected medical opinions from

Melissa Dever-Mount, PMHNP;2 Karen Knapp, M.A.; Timothy Hofeldt, M.D.; and Trudy

Godat, MS LPC. Defendant disagrees

1. Standards

Plaintiff filed her application for benefits on July 18, 2017. For claims filed on or after

March 27, 2017, Federal Regulation 20 C.F.R. § 416.920c governs how an ALJ must evaluate

medical opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical

Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Under these new regulations, ALJs no longer

“weigh” medical opinions, but rather determine which are most “persuasive.” 20 C.F.R.

§ 416.920c(a)-(b). The new regulations purport to eliminate the hierarchy of medical opinions

and state that the agency does not defer to any particular medical opinions, even those from

treating sources. The new regulations purport to eliminate the agency’s “treating source rule,”

which gave special deference to certain opinions from treating sources. Instead, the ALJ

considers the “supportability” and “consistency” of the opinions, followed by additional sub-

factors,3 in determining how persuasive the opinions are. 20 C.F.R. § 416.920c(c). Supportability

is determined by whether the opinion is supported by relevant objective medical evidence, and

2 The ALJ misidentifies Nurse Dever-Mount as Melissa Dave-Mount.

3 The secondary factors include relationship with claimant, specialization, and “[o]ther

factors.” 20 C.F.R. § 416.920c(c).

the source’s explanation for the opinion. 20 C.F.R. § 416.920c(c)(1). Consistency is determined

by how consistent the opinion is with other medical opinions and prior administrative findings.

20 C.F.R. § 416.920c(c)(2).

The regulations require ALJs to “articulate . . . how persuasive [they] find all of the

medical opinions” and “explain how [they] considered the supportability and consistency

factors.” 20 C.F.R. § 416.920c(b). The ALJ is not required to explain how he or she considered

other secondary medical factors, unless he or she finds that two or more medical opinions about

the same issue are equally well-supported and consistent with the record but not identical. 20

C.F.R. § 416.920c(b)(2)-(3). The Court must, moreover, continue to consider whether the ALJ’s

analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); see also Hammock, 879

F.2d at 501.

2. Analysis

a. Melissa Dever-Mount, PMHNP

Psychiatric-mental health nurse practitioner Melissa Dever-Mount opined that Plaintiff

would be seriously limited in her ability to perform unskilled work and would be unable to meet

competitive demands in some aspects of unskilled work, as well as unable to perform more

skilled work. AR 785-90, 810-29, 990-93. Nurse Dever-Mount’s handwritten notes, several parts

of which are illegible, explain that Plaintiff has significant difficulty with sustained focus and

concentration, organization, and executive functioning, and that episodes of depression and

anxiety impair her ability to manage activities of daily living, routine school, and work. AR 787.

The ALJ did not find Nurse Dever-Mount’s opinion persuasive because her explanations are

difficult to read and provide little support. AR 22. Additionally, the ALJ found that Nurse Dever-

Mount’s findings, especially with regard to Plaintiff’s ability to perform unskilled work, are

inconsistent with the record as a whole, including Plaintiff’s testimony that she has worked with

lighting on theater productions and has lived independently. AR 22.

Plaintiff argues that the ALJ erred in finding Nurse Dever-Mount’s opinion unsupported

by the record, noting the consistencies between the opinions from Nurse Dever-Mount,

Dr. Thomas Brent Shields, Ms. Knapp, and Ms. Godat. Plaintiff also asserts that Nurse Dever-

Mount’s opinion tracks Dr. Hofeldt’s observations of several years about Plaintiff’s difficulty in

maintaining sleep habits. The Court agrees with the ALJ that Nurse Dever-Mount’s handwriting

is often illegible and generally difficult to decipher. The legible portions do not offer adequate

support for the opined limitations. Additionally, as the Court discusses below, the ALJ did not

err in discounting or rejecting Ms. Knapp and Ms. Godat’s opinions. Therefore, the apparent

consistencies among the opinions of Ms. Knapp, Ms. Godat, and Nurse Dever-Mount are

unpersuasive. Although there is consistency between Nurse Dever-Mount’s opinion and

Dr. Shield’s opinion that Plaintiff has difficulty sustaining concentration over extended periods

and would periodically withdraw and isolate, there are other, contradicting medical opinions. It is

the ALJ, and not the Court, who evaluates the various medical opinions. The fact that there may

be a medical opinion consistent with some of Nurse Dever-Mount’s opinion does not alone meet

the revised guidelines’ supportability and consistency requirements. To the extent Plaintiff cites

additional pages of Nurse Dever-Mount’s charts, those pages generally describe ongoing

diagnoses and plans and do not add further support. See, e.g., AR 817, 825, 991. Thus, the ALJ

did not err in discounting Nurse Dever-Mount’s medical opinion.

b. Karen Knapp, M.A.

Occupational therapist Ms. Karen Knapp opined that Plaintiff requires a life coach for

grocery shopping, apartment cleaning, and registering for classes and that Plaintiff cannot

practice regular bathing and grooming independently. AR 618. Plaintiff argues that although the

ALJ summarized Ms. Knapp’s findings, the ALJ erred in failing to assign the opinion any

weight. AR 22. The ALJ found Ms. Knapp’s opinion as inconsistent with the record as a whole

showing Plaintiff’s ability to live independently, attend college, and do technical stage

productions, among other things.

Although Plaintiff’s interpretation of the record may be a reasonable one, the ALJ’s

interpretation also is reasonable. When there is more than one reasonable interpretation, the

Court upholds the ALJ’s interpretation. See Burch, 400 F.3d at 679. The Court agrees with the

ALJ that Ms. Knapp’s opinion is inconsistent with other evidence on the record, particularly that

Plaintiff lives alone and generally can proceed with her daily life, attend college, and work on

technical theater productions. Therefore, the Court finds that the ALJ did not err in discounting

Ms. Knapp’s medical opinion.

c. Timothy Hofeldt, M.D.

Dr. Timothy Hofeldt opined that Plaintiff “has been recognized as having impairment in

functioning in independent living; interpersonal, academic, and occupational performance and

relationships rising to the level of disability.” AR 784. He described that Plaintiff was recognized

as a person with a disability beginning in early elementary school and was placed on an

individual academic plan pursuant to Section 504 of the Americans with Disabilities Act (ADA)

from elementary school through high school. He noted that with the assistance of an individual

therapist, individual independent living coach, and individual academic advisor, Plaintiff “has

been taking courses and living as independently as possible.” Id. Dr. Hofeldt then stated that

“[a]ppropriately, [Plaintiff] has submitted paperwork for [SSI] disability through the Social

Security Administration given her past and continued inability to work or live independently.”

Id.

The ALJ found Dr. Hofeldt’s opinion unpersuasive. The ALJ concluded that Dr. Hofeldt

made a determination of disability that is reserved for the Commissioner, that Dr. Hofeldt

erroneously stated that Plaintiff was in special education classes during high school, and that

Dr. Hofeldt’s opinion was inconsistent with the record. AR 22-23.

For the first reason, Dr. Hofeldt did not conclude that Plaintiff was disabled as that term

is used under the Social Security Act. Dr. Hofeldt described that Plaintiff was determined to be

disabled under the ADA. Then Dr. Hofeldt’s opinion simply recites the fact that Plaintiff has

applied for SSI, albeit with the editorialized comment of “appropriately.” The ALJ erred by

discounting Dr. Hofeldt’s opinion for making the ultimate decision on disability.

For the second reason, Dr. Hofeldt did not state that Plaintiff was in special education

classes during high school. Dr. Hofeldt stated that Plaintiff had an individualized education plan

from elementary school through high school, but an individualized education plan does not

necessarily require placement in special education classes.

For the third reason, the ALJ emphasized that Dr. Hofeldt’s opinion was inconsistent

with the record evidence that that Plaintiff drives, moved from one city to another, attends

college, does laundry and housework, and does technical stage production work. AR 23.

Dr. Hofeldt, however, merely states that Plaintiff has attended a transitional program since

matriculating and is attending college courses and living as independently as possible. That

statement is not contradicted by the fact that Plaintiff attends college courses, does stage

production work, and lives with some independence.

As the Commissioner points out, Dr. Hofeldt does not opine as to any specific limitations

or provide any functional limitations based on Plaintiff’s impairments. The ALJ, however, did

not discuss this problem with Dr. Hofeldt’s opinion. The Court cannot rely on the post hoc

reasoning of the Commissioner. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225

(9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ’s

decision based on the reasoning and factual findings offered by the ALJ—not post hoc

rationalizations that attempt to intuit what the adjudicator may have been thinking.”). The ALJ

therefore erred in evaluating Dr. Hofeldt’s opinion.

The Court, however, considers whether the error is harmless. An error is harmless if it is

“inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115; see also

Robbins, 466 F.3d at 885 (noting that an error is harmless if it is “clear from the record the error

was inconsequential to the ultimate non-disability determination”). Because Dr. Hofeldt did not

opine as to any functional limitations, the ALJ’s error is harmless.

d. Trudy Godat, MS LPC

Plaintiff’s counselor Ms. Trudy Godat submitted a letter on September 13, 2017. AR 562-

63. This letter describes Plaintiff’s history of depression, primarily by repeating Plaintiff’s self-

reports. It then contains a section labelled “Treatment and Therapeutic Recommendations,”

which describes Plaintiff’s treatment strategies. Ms. Godat notes here that Plaintiff “appears to

have increasingly improved on regulating emotions and seems to have increased self-esteem and

confidence” and that she “appears to absorb more each session and is increasingly able to

remember, use and create change with managing anxiety and depressive symptoms and moods.”

AR 63. Ms. Godat also notes that Plaintiff will need continued support as she continues with her

education, including “therapy, medication management, as well as social and academic

supports.” Id.

Plaintiff argues that the ALJ erred by ignoring this letter. The Commissioner responds

that because this letter did not contain any discussion about Plaintiff’s functional limitations or

restrictions, it was not a medical opinion under 20 C.F.R. § 416.913 and the ALJ did not need to

consider the letter. The Court agrees.

Under 20 C.F.R. § 416.913, a medical opinion must opine about “what you can still do

despite your impairment(s) and whether you have one or more impairment-related limitations or

restrictions.” 20 C.F.R. § 416.913(a)(2). This includes limitations and restrictions in the physical

or mental demands or work, other demands of work such as seeing and hearing, or the ability to

adapt to environmental conditions such as temperatures or fumes. Id. § 416.913(a)(2)(i).

Ms. Godat’s letter does not include any such assessment.

Further, an ALJ may discount an opinion that does “not show how [a claimant’s]

symptoms translate into specific functional deficits which preclude work activity.” Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999); see also Johnson v. Shalala, 60

F.3d 1428, 1432 (9th Cir. 1995) (holding that an ALJ may reject a medical opinion that includes

“no specific assessment of [the claimant’s] functional capacity” and does not include “any

named limitations such as the inability to lift, stoop, walk, stand or sit”); Gerde v. Berryhill, 2018

WL 2193194, at *3 (W.D. Wash. May 14, 2018) (“The lack of specificity as to functional

limitations is a legitimate reason to discount a medical opinion.”). Additionally, an ALJ need not

consider or act upon comments that amount to mere suggestions, as opposed to functional

assessments. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009)

(noting that when a doctor’s observation is a recommendation, it is “neither a diagnosis nor

statement of [the claimant’s] functional capacity” and an ALJ “[does] not err by excluding it

from the RFC”); Espenas v. Colvin, 2014 WL 7405655, at *8 (D. Or. Dec. 30, 2014) (noting that

comments such as that the claimant “would benefit from additional instruction and time when

adapting to more complex changes and would benefit from assistance in setting work goals”

were “occupational suggestions, not limitations per se”); Villalobos v. Colvin, 2014 WL 127084,

at *8 (D. Or. Jan. 9, 2014) (noting that where the doctor’s verbiage suggests “recommendations,

as opposed to imperatives,” they “are neither diagnoses nor statements of plaintiff’s RFC”).

Thus, the ALJ did not err in discounting Ms. Godat’s September 2017 letter.

C. RFC

Plaintiff asserts that the ALJ failed to develop an accurate RFC. Because the Court finds

that the ALJ erred in assessing Plaintiff’s subjective symptom testimony, the RFC may not

include all of Plaintiff’s limitations and restrictions.

D. Remand

Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to

remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation

omitted). Although a court should generally remand to the agency for additional investigation or

explanation, a court has discretion to remand for immediate payment of benefits. Treichler, 775

F.3d at 1099-1100. The issue turns on the utility of further proceedings. A court may not award

benefits punitively and must conduct a “credit-as-true” analysis on evidence that has been

improperly rejected by the ALJ to determine if a claimant is disabled under the Social Security

Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this

Court. Garrison, 759 F.3d at 999. The court first determines whether the ALJ made a legal error

and then reviews the record as a whole to determine whether the record is fully developed, the

record is free from conflicts and ambiguities, and there is any useful purpose in further

proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has

been fully developed and there are no outstanding issues left to be resolved does the district court

consider whether the ALJ would be required to find the claimant disabled on remand if the

improperly discredited evidence were credited as true. Id. If so, the district court can exercise its

discretion to remand for an award of benefits. Id. The district court retains flexibility, however,

and is not required to credit statements as true merely because the ALJ made a legal error. Id.

at 408.

The ALJ erred in considering Plaintiff’s subjective testimony. Ambiguities and conflicts

remain in the record, however, including with medical testimony that supports and contradicts

Plaintiff’s testimony. The ALJ will need to resolve these ambiguities and conflicts and remand.

The ALJ may also reconsider Dr. Hofeldt’s opinion, for which the Court determined the ALJ

engaged in harmless error.

CONCLUSION

The Court REVERSES the Commissioner’s decision that Plaintiff was not disabled

between the alleged onset date and July 18, 2017 and REMANDS the decision for further

proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 24th day of March, 2022.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge