Fiederowicz v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AMY F.,1 No. 20-cv-01838-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Caitlin S. Laumaker

George J. Wall

Law Offices of George J. Wall

825 NE 20th Ave, Suite 330

Portland, OR 97232

Attorneys for Plaintiff

Renata Gowie

Assistant United States Attorney

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

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 or parties in this case. Where applicable, this Opinion uses the

same designation for a non-governmental party’s immediate family member.

Sarah L. Martin

Sarah Elizabeth Moum

Social Security Administration

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Amy F. brings this action seeking judicial review of the Commissioner’s final

decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant to 42

U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Court reverses the

Commissioner’s decision and remands this case for further administrative proceedings.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB on May 21, 2018, alleging an onset date of March 5, 2013.

Tr.167.2 Plaintiff’s date last insured (“DLI”) is March 31, 2018. Her application was denied

initially and on reconsideration. Tr. 206, 212.

On March 5, 202, Plaintiff appeared with counsel for a hearing before an Administrative

Law Judge (“ALJ”). Tr. 106. On April 7, 2020, the ALJ found Plaintiff not disabled. Tr. 29. The

Appeals Council denied review. Tr. 1–6.

FACTUAL BACKGROUND

Plaintiff alleges disability based on left parietal craniotomy for resection of meningoma

CVA, cognitive disorder, fibromyalgia, cervical DDD, migraines, anxiety, depression, mennieres

disease, ehellers danlos syndrome, and thyroid disorder with nodules. Tr. 292. At the time of her

2 Citations to “Tr.” refer to the pages indicated in the official transcript of the administrative

record, filed herein as ECF 7.

alleged onset date, she was 39 years old. Tr. 321. She has completed four or more years of

college and has past relevant work experience as an accountant and administrative clerk. Tr. 27.

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step

procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases,

agency uses five-step procedure to determine disability). The claimant bears the ultimate burden

of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines

whether the claimant has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not

disabled. Id.

In step three, the Commissioner determines whether the claimant’s impairments, singly

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”

20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the

claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to

the Commissioner. In step five, the Commissioner must establish that the claimant can perform

other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the

Commissioner meets their burden and proves that the claimant can perform other work that

exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,

416.966.

THE ALJ’S DECISION

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

activity after her alleged onset date of March 5, 2013. Tr. 17. Next, at steps two and three, the

ALJ determined that Plaintiff has the following severe impairments: “fibromyalgia, hypermobile

Ehlers-Danlos syndrome, small fiber neuropathy, chronic positional headaches, obesity,

neurocognitive disorder, and major depressive disorder.” Tr. 17. However, the ALJ determined

that Plaintiff’s impairments did not meet or medically equal the severity of a listed impairment.

Tr. 18–21. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to

perform light work as defined in 20 C.F.R. §§ 404.1567(b) with the following limitations:

the claimant can lift and/or carry twenty pounds occasionally and ten pounds

frequently; can sit for six hours in an eight-hour day; can stand and/or walk for six

hours in an eight-hour day; can push and/or pull as much as she can lift and/or carry;

can frequently climb ramps and stairs; can never climb ladders or scaffolds; can

frequently crouch; can occasionally crawl; must avoid concentrated exposure to

hazards such as unprotected heights, moving mechanical parts, or operating a motor

vehicle; must avoid concentrated exposure to airborne irritants such as dust, fumes,

and gases; can work in an environment with moderate noise levels; can perform

simple routine repetitive tasks and simple work related decisions; can have

superficial contact with the public such as passing people in the hallways but with

no direct contact; and can tolerate few changes in the routine work setting, defined

as having routine tasks and routine changes throughout the day working in the same

environment from one day to the next.

Tr. 21. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past

relevant work. Tr. 27. But at step five, the ALJ found that there are jobs that exist in significant

numbers in the national economy that Plaintiff can perform, such as “electronics worker, office

helper, marker.” Tr. 29. Thus, the ALJ concluded that Plaintiff is not disabled. Id.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings “are based on legal error or are not supported by substantial evidence

in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a

whole, including both the evidence that supports and detracts from the Commissioner’s decision.

Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is

susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”

Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s”) (internal

quotation marks omitted).

//

DISCUSSION

Plaintiff argues that the ALJ erred in: (1) rejecting Plaintiff’s subjective symptom

testimony; (2) failing to adequately consider whether Plaintiff’s migraines equal Listing 11.02;

and (3) failing to include all supported limitations in the RFC.

I. Symptom Testimony

Plaintiff contends the ALJ failed to provide legally sufficient reasons to reject her

subjective symptom testimony concerning her migraines, pain, and memory impairment.3

Defendant responds that the ALJ reasonably relied on Plaintiff’s conservative treatment,

improvement with treatment, and the objective medical evidence.

The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL

5180304, at *1 (Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal

relationship between the impairment and some level of symptoms, clear and convincing reasons

are needed to reject a claimant’s testimony if there is no evidence of malingering. Carmickle v.

Comm’r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is

malingering, “where the record includes objective medical evidence establishing that the

claimant suffers from an impairment that could reasonably produce the symptoms of which he

complains, an adverse credibility finding must be based on clear and convincing reasons”)

(quotation marks and citation omitted); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.

2012) (the ALJ engages in a two-step analysis for subjective symptom evaluation: First, the ALJ

determines whether there is “objective medical evidence of an underlying impairment which

could reasonably be expected to produce the pain or other symptoms alleged”; and second, “if

3 Plaintiff concedes that the ALJ reasonably discounted her symptom testimony related to her

mental health impairments, which included a discussion of her alleged memory problems. Tr. 25.

the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ

must give specific, clear and convincing reasons in order to reject the claimant’s testimony about

the severity of the symptoms.”) (quotation marks and citations omitted). When evaluating

subjective symptom testimony, “[g]eneral findings are insufficient.” Reddick v. Chater, 157 F.3d

715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). “An 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.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Instead, “the ALJ

must specifically identify the testimony she or he finds not to be credible and must explain what

evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001); see

also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons proffered must be

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

discount the claimant’s testimony.”).

Plaintiff testified that she is “never without a headache” and experiences migraines five

to six times a month. Tr. 111, 114–115. During these migraines she experiences extreme nausea,

light and sound sensitivity, and cannot sleep. Tr. 116. Her migraines can cause her to go to the

emergency room. Tr. 116. She testified that sometimes her migraines respond to rescue

medications, sleep, or a hot shower. Tr. 114.

Plaintiff testified that she spends most of the day in bed and that it has been over two

years since she has been able to take a brief walk. Tr. 112. She noted that her balance and

headaches are affected by changes in elevation. Id. She lives with her parents, husband, and kids.

Tr. 110. She does not do chores and relies on prepared foods or food prepared by her family

members. Tr. 113, 124–125. She stated that she has been diagnosed with a “convergence

problem” which prevents her eyes from focusing and causes blurry vision and headaches. Tr.

120.

To discount Plaintiff’s symptom allegations related to her migraines and pain the ALJ

relied on conservative treatment, lack of objective evidence, and improvement with treatment.

Tr. 23.

Conservative treatment and a lack of objective medical evidence were not clear and

convincing reasons to reject Plaintiff’s testimony. The ALJ wrote that after Plaintiff’s brain

surgery her “impairments were generally treated conservatively.” Tr. 23. On the contrary, the

record shows Plaintiff has tried several types of rescue and prophylactic prescription

medications, a neurostimulator device, chiropractic treatment, physical therapy, and changes to

her diet. Tr. 381, 403, 417, 760. Furthermore, there is no evidence in the record that Plaintiff

declined an available alternative or more aggressive treatment for her migraines and pain.

Regarding the objective medical evidence, the ALJ gave two reasons related to Plaintiff’s

migraines and pain. First, he noted Plaintiff’s “unremarkable presentation during appointments”

despite alleging “constant chronic symptoms.” Tr. 22–23. While she did not present with a

headache or migraine at every visit, there are multiple visits where Plaintiff complained of a

headache or multi-day severe migraine. Tr. 388, 393, 510, 1082. Next, the ALJ found that

Plaintiff “generally had no evidence of muscle atrophy during the relevant period” noting

without citation that “muscle atrophy is a common side effect of prolonged or chronic pain, as it

is common to not use a muscle in order to avoid pain.” Tr. 23. The ALJ did not cite any medical

finding or opinion in the record that supports his statement that Plaintiff’s reported level of

activity would necessarily lead to widespread muscle atrophy. Accordingly, the Court has no

reasonable method to determine whether this is a medically supportable conclusion given

Plaintiff’s alleged activity and conditions. An unsupported expectation of generalized muscle

atrophy was not a clear and convincing reason to discount Plaintiff’s testimony. See Rawa v.

Colvin, 672 F. App'x 664, 667 (9th Cir. 2016) (finding the same and noting that ‘[i]t is beyond

the scope of the ALJ's authority to offer such a medical opinion based solely on his own personal

speculation.”) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008)); see also Day

v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.1975) (finding that an ALJ may not go outside the

record to assess a Plaintiff’s medical conditions).

Although the ALJ may have erred in citing Plaintiff's conservative treatment and lack of

objective medical evidence in making his adverse credibility determination, any error was

harmless, because Plaintiff's favorable response to treatment was a clear and convincing reason

supported by the record for discounting Plaintiff's testimony. Improvement with treatment can be

a clear and convincing reason to discount a Plaintiff’s testimony. See Orteza, 50 F.3d at 750

(“Factors that the adjudicator may consider when making such credibility determinations include

the . . . effectiveness or adverse side effects of any pain medication.”); Tommasetti v. Astrue, 533

F.3d 1035, 1040 (9th Cir. 2008) (claimant's testimony undermined by the fact he responded well

to conservative treatment). Symptom improvement, however, should be considered within the

context of an “overall diagnostic picture.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.

2001).

In 2016, Plaintiff was described by her doctor as “a woman with a mixed headache

disorder including chronic migraine” and “seizure like episodes.” Tr. 449. She experienced

photophobia, phonophobia, nausea, vertigo and the need to go to her room and not come out. Id.

She reported having migraines with these symptoms 8-10 times per month. Id. She experienced

relief from rescue medications. Id. In 2017, despite being on prophylactic migraine medications

she experienced a thirteen-day migraine and reported nausea, photophobia, and worsening with

movement. Tr. 390–393. In 2018, Plaintiff continued to take multiple prophylactic medications

but reported daily headaches with similar symptoms. Tr. 379–380. During this time period she

reported intermittent and short-term relief from pain with prescription medications and

chiropractic treatments. Tr. 449 (relief from rescue medications); Tr. 388 (“better after last

[chiropractic] visit for about 3-4 days, headaches continue to be better compared to before

treatment.”); Tr. 403 (“responded well to today's [chiropractic] treatment and reported "feeling

much better" following care”); Tr. 418 (“felt great following [chiropractic] treatment for 2.5

days”); Tr. 406 (Plaintiff “reported that she walked Portland to coast” but experienced back

pain).

In 2019, she saw a “50%” decrease in the severity of her headaches with the introduction

of a new medication. Tr. 1013, 1038. She also began a series of regular physical therapy visits.

Throughout these visit she showed “significant improvement” in her various physical symptoms,

including her postural orthostatic tachycardia syndrome (POTS) directly associated with her

headaches. Tr. 745–746, 759, 774, 781, 788, 796, 804, 810. During these visits she reported

feeling better and noted considerable physical activities. Id. For example, at a visit in July 2019,

her physical therapist noted that she had “been progressing her ability with her POTS

limitations” and had “been able to increase her activity level while maintaining an acceptable HR

with less adverse symptoms.” Tr. 760. Plaintiff stated “I do not take as long to recover. I used to

be in bed the whole next day. Now, I am able to be functional doing light work throughout the

day” and “I was able to walk 3/4 mile up at Timberline elevation. I was able to keep my heart

rate in the right range. I had to stop a few times but I did it.” Tr. 759. At a visit in September

2019, Plaintiff reported that she had “been doing well with POTS symptoms” despite “working

everyday doing heavier work . . . moving racks and clothes,” “doing 12,000-16,000 steps a day

and working 16 hour days.” Tr. 810.

These 2019 chart notes show significant improvement in Plaintiff’s symptoms that are at

odds with her hearing testimony. At the March 2020 hearing, she testified that she lays in bed all

day and has not taken a brief walk in over two years. But throughout 2019, the record shows

significant improvement in her condition after the introduction of a new medication and physical

therapy leading to markedly increased physical activity. The ALJ directly cited these notes when

discounting Plaintiff’s testimony. Thus, improvement with treatment was a clear and convincing

reason supported by substantial evidence to reject Plaintiff’s testimony.

II. Listing 11.02

Plaintiff argues the ALJ erred by failing to address her migraines under Listing 11.02.

Defendant responds that the ALJ was not required to specifically identify Listing 11.02 when

discussing whether Plaintiff’s headaches met or equaled a listing. He argues in the alternative

that any error was harmless because Plaintiff has not met her burden to show that her headaches

meet Listing 11.02B.

In discussing the listed impairments and Plaintiff’s headaches the ALJ noted the

following:

Headaches cannot meet a listing in Appendix 1 because it is not a listed impairment.

At this step, therefore, it must be determined whether it medically equals a listing.

However, the evidence fails to demonstrate that the claimant's headaches medically

equal a listing.

Tr. 18.

If a claimant meets or medically equals a listed impairment at step three of the sequential

analysis, then she is presumed disabled regardless of her age, education, or work experience. 20

C.F.R. § 404.1520(a)(4)(iii), (d). A claimant bears the burden of producing medical evidence to

establish all of the requisite medical findings that her impairments meet or equal any particular

listing. An impairment, or combination of impairments, is medically equivalent to a listing “if it

is at least equal in severity and duration to the criteria of any listed impairment,” considering,

“all evidence in [the] case record about [the] impairment(s) and its effects on [the claimant] that

is relevant[.]” 20 C.F.R. § 404.1526(a), (c). Finally, “the claimant's illnesses ‘must be considered

in combination and must not be fragmentized in evaluating their effects.’” Lester v. Chater, 81

F.3d 821, 829 (9th Cir.1995) (quoting Beecher v. Heckler, 756 F.2d 693, 694–95 (9th Cir.1985)).

“Listed impairments are purposefully set at a high level of severity because ‘the listings were

designed to operate as a presumption of disability that makes further inquiry unnecessary.’”

Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v. Zebley, 493 U.S.

521, 531 (1990)). “Listed impairments set such strict standards because they automatically end

the five-step inquiry, before residual functional capacity is even considered.” Id.

There is no medical listing for migraines or headaches. However, as Defendant concedes,

Listing 11.02 is the appropriate listing for an equivalence analysis. SSR 19-4p instructs the ALJ

on how to evaluate whether a claimant's migraines are equal in severity and duration to the

criteria in Paragraph B of Listing 11.02. It states:

Paragraph B of listing 11.02 requires dyscognitive seizures occurring at least once

a week for at least 3 consecutive months despite adherence to prescribed treatment.

To evaluate whether a primary headache disorder is equal in severity and duration

to the criteria in 11.02B, we consider: a detailed description from an AMS of a

typical headache event, including all associated phenomena (for example,

premonitory symptoms, aura, duration, intensity, and accompanying symptoms);

the frequency of headache events; adherence to prescribed treatment; side effects

of treatment (for example, many medications used for treating a primary headache

disorder can produce drowsiness, confusion, or inattention); and limitations in

functioning that may be associated with the primary headache disorder or effects

of its treatment, such as interference with activity during the day (for example, the

need for a darkened and quiet room, having to lie down without moving, a sleep

disturbance that affects daytime activities, or other related needs and limitations).

SSR 19-4p at 4.

The ALJ provided no analysis of Listing 11.02B, despite finding that Plaintiff’s “chronic

positional headaches” constituted a severe impairment. The ALJ committed legal error by failing

to discuss whether Plaintiff’s headaches met or equaled Listing 11.02B after finding headaches

were a severe impairment. See Jones v. Comm'r of Soc. Sec., No. 1:19-CV-00109-REB, 2020

WL 7029143, at *5 (D. Idaho Nov. 30, 2020) (concluding that a finding that the plaintiff’s

migraines were a severe impairment “coupled with the SSA's . . . direction on analyzing

migraine headaches vis à vis Listing 11.02, establishes that the ALJ erred in evaluating

Petitioner's migraine headaches at step three of the sequential process by not considering Listing

11.02.”); Rader v. Comm'r of Soc. Sec., No. 2:17-CV-00131-CWD, 2018 WL 4087988, at *4 (D.

Idaho Aug. 27, 2018) (same); Despinis v. Comm'r Soc. Sec. Admin., No. 2:16-CV-01373-HZ,

2017 WL 1927926, at *3 (D. Or. May 10, 2017) (same). The “ALJ must evaluate the relevant

evidence before concluding that a claimant's impairments do not meet or equal a listed

impairment. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). The ALJ’s conclusory statement

that “the evidence fails to demonstrate that the claimant's headaches medically equal a listing” is

not sufficient. See id. (“A boilerplate finding is insufficient to support a conclusion that a

claimant's impairment does not do so.”). This is especially so where the body of the ALJ’s

opinion lacks a robust discussion of Plaintiff’s headaches.

Defendant contends that the ALJ’s failure to make findings regarding Listing 11.02 was

harmless because she has not met her burden of setting forth evidence that supports these

findings. Plaintiff has presented plausible evidence of equivalency to listing 11.02. The record

establishes that Plaintiff has a documented history of migraines with photophobia, phonophobia,

and nausea and adherence to prescribed treatments. However, the frequency and severity of

Plaintiff’s migraines and attendant limitations are all based on her self-reports. As discussed

above, the ALJ reasonably discounted her symptom testimony related to her migraines. Thus, the

ALJ’s failure to discuss Listing 11.02 was harmless. See Brown-Hunter v. Colvin, 806 F.3d 487,

494 (9th Cir. 2015) (citations omitted) (an error is harmless if it is “inconsequential to the ALJ's

ultimate nondisability determination” or if, despite any legal error, “the agency's path may

reasonably be discerned”).

III. RFC

Plaintiff contends the ALJ erred by failing to include all supported limitations in her

RFC. Once a claimant establishes a medically-determinable impairment that does not meet a

“Listed” disorder at step three in the sequential proceedings, the ALJ must assess the claimant's

RFC. 20 C .F.R. §§ 404.1520(e); 416.920(e). The RFC represents all of a claimant's work-related

limitations, including non-severe limitations. 20 C.F.R. §§ 404.1545(a)(1–2); 416.945(a)(1–2).

In making this assessment, the ALJ considers “all of the relevant medical and other evidence,” as

well as a claimant's testimony and lay testimony describing the claimant's limitations. 20 C.F.R.

§§ 404.1545(a)(3); 416.945(a)(3).

Plaintiff contends the ALJ erred by failing to include the limiting effects of her headache

disorder and history of brain surgery: nausea, photophobia, disabling pain, and transient paralysis

on her right side. Again, as discussed above, these symptoms are based on Plaintiff’s self-reports.

Because the ALJ permissibly rejected Plaintiff’s symptom testimony, it was not error to fail to

include these alleged limitations in the RFC.

Plaintiff also argues the ALJ erred by failing to include the limiting effects of her

convergence insufficiency. Defendant did not respond to this argument in his brief. At the

hearing, when asked about her “convergence problem,” Plaintiff testified that she “can’t read”

and “can’t really do anything close up.” Tr. 118. She stated that she gets “blurry vision, which

increased headaches, which increases stress.” Id.

Though the ALJ reasonably discounted Plaintiff’s symptom testimony about her

migraines, he did not discuss her alleged limitations related to convergence insufficiency. See

See Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically

identify the testimony she or he finds not to be credible and must explain what evidence

undermines the testimony.”); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993) (finding that a

general assertion that a claimant is not credible is insufficient; the ALJ must “state which ...

testimony is not credible and what evidence suggests the complaints are not credible.”). The

ALJ’s only discussion of Plaintiff’s convergence insufficiency was based on the objective

medical evidence, which standing alone is not enough to discount her testimony about the

alleged limitations. Tr. 23 (“The claimant’s eye examination showed some convergence

insufficiency but otherwise showed normal motility and alignment”); Reddick v. Chater, 157

F.3d 715, 722 (9th Cir. 1998) (“Once the claimant produces medical evidence of an underlying

impairment, the Commissioner may not discredit the claimant's testimony as to the severity of

symptoms merely because they are unsupported by objective medical evidence.”). And here,

Plaintiff has produced objective medial evidence of the underlying impairment. In November

2018, in a “comprehensive ophthalmology progress note” Plaintiff was diagnosed with

“convergence insufficiency with otherwise normal motility and alignment” after an eye exam.

Tr. 1163 In December 2018 at a follow-up eye exam, she was noted to have “convergency

insufficiency.” Tr. 1141.

The ALJ did not discount these ophthalmologists’ opinions. And, as noted, he did not

permissibly discount Plaintiff’s symptom testimony related to her convergence insufficiency.

Though the ALJ wrote that Plaintiff had convergence insufficiency with “normal motility and

alignment,” the medical significance of this finding is not established in the record. Accordingly,

the ALJ failed to properly consider Plaintiff’s alleged limitations related to her convergence

insufficiency when proceeding through the steps of the sequential evaluation.

In light of this error a remand for further proceedings is necessary. Plaintiff does not ask

for a remand for benefits, and the Court finds that “ordinary remand rule” applies in this case.

Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014). The severity of

Plaintiff’s convergence insufficiency and the expected limitations are not immediately apparent

from the record. Plaintiff testified that she “can’t read” or do things “up close” but also testified

to doing “puzzles” on her ipad in bed. Tr. 112–113. Thus, the record is not “free of conflicts,

ambiguities, or gaps.” Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017). The Court

exercises its discretion and remands this case for further proceedings.

CONCLUSION

Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED

for further proceedings.

IT IS SO ORDERED.

DATED:___J_u__n_e_ 6_,_ _2_0_2_2_________.

__________________________________

MARCO A. HERNÁNDEZ

United States District Judge