# Scott v. Andrew Saul, Commissioner, Social Security Administration

> District Court, D. Oregon · March 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10394591

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 24, 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/10394591

## How later opinions describe it (automated extraction)

- noting that a “claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted)
- 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”
- noting that an error is harmless if it is “clear from the record the error was inconsequential to the ultimate non-disability determination”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394591. Public record. Not legal advice.