Wentz v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

SHANE W.,1

Plaintiff,

Case No. 3:19-CV-01901-YY

v.

OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

YOU, Magistrate Judge.

Plaintiff Shane W. seeks judicial review of the final decision by the Commissioner of the

Social Security Administration (“Commissioner”) denying his application for Supplemental

Security Income (“SSI”) disability benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-

1383f. For the reasons set forth below, that decision is REVERSED and this matter is

REMANDED for the immediate award of benefits.

Plaintiff protectively filed for SSI on March 31, 2017, alleging disability beginning on

March 31, 2017. Plaintiff’s application was initially denied on July 18, 2017, and upon

reconsideration on September 1, 2017. Plaintiff requested a hearing before an Administrative

1 In the interest of privacy, the court uses only plaintiff’s first name and the first initial of

plaintiff’s last name.

Law Judge (“ALJ”), which took place on November 29, 2018. At that hearing, plaintiff and a

vocational expert testified. The ALJ issued a decision on January 10, 2019, finding plaintiff not

disabled within the meaning of the Act. Tr. 13. The Appeals Council denied plaintiff’s request

for review on September 18, 2019. Tr. 1-3. Therefore, the ALJ’s decision is the

Commissioner’s final decision and subject to review by this court. 20 C.F.R. § 416.1481.

STANDARD OF REVIEW

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

legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.

§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the

evidence that supports and detracts from the ALJ’s conclusion and “‘may not affirm simply by

isolating a specific quantum of supporting evidence.’” Garrison v. Colvin, 759 F.3d 995, 1009-

10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This

court may not substitute its judgment for that of the Commissioner when the evidence can

reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746

(9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational

interpretation, the Commissioner’s decision must be upheld if it is “supported by inferences

reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)

(citation omitted); see also Lingenfelter, 504 F.3d at 1035.

SEQUENTIAL ANALYSIS AND ALJ FINDINGS

Disability is the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in death

or 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). The ALJ engages in a five-step sequential inquiry to

determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920;

Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180

F.3d 1094, 1098-99 (9th Cir. 1999)). The claimant bears the burden of proof at steps one

through four. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). The Commissioner

bears the burden of proof at step five. Id. at 953-54.

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since

the alleged onset date of March 31, 2017. Tr. 15. At step two, the ALJ determined plaintiff had

the following severe impairments: autism spectrum disorder, ADHD, depressive disorder,

learning disorder, and anxiety disorder. Tr. 15.

At step three, the ALJ found plaintiff did not have an impairment or combination of

impairments that met or medically equaled a listed impairment. Tr. 15.

The ALJ next assessed plaintiff’s residual functional capacity (“RFC”) and found he “has

the residual functional capacity to perform a full range of work at all exertional levels but with

the following nonexertional limitations: the claimant is limited to performing simple, routine

tasks, with GED’s not exceeding 2.” Tr. 17.

At step four, the ALJ found plaintiff had no past relevant work. Tr. 21. At step five, the

ALJ found that, considering plaintiff’s age, education, work experience, and residual functional

capacity, there were jobs that existed in significant numbers in the national economy that he

could perform. Thus, the ALJ concluded plaintiff was not disabled. Tr. 22.

DISCUSSION

Plaintiff contends the ALJ erred by improperly discounting his subjective symptom

testimony and rejecting the testimony of Dr. Weniger and lay witnesses.

I. Subjective Symptom Testimony

When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of, and the record contains no

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that

the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not

credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12

F.3d 915, 918 (9th Cir. 1993). The proffered 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) (internal citation omitted).

If the “ALJ’s credibility finding is supported by substantial evidence in the record, [the

court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.

2002) (citation omitted). “Substantial evidence means ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Burch v. Barnhart, 400 F.3d 676, 679

(9th Cir. 2005) (citation omitted). “Where evidence is susceptible to more than one rational

interpretation, it is the ALJ’s conclusion that must be upheld.” Id.

“While subjective pain testimony cannot be rejected on the sole ground that it is not fully

corroborated by objective medical evidence, the medical evidence is still a relevant factor in

determining the severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari,

261 F.3d 853, 857 (9th Cir. 2001); see 20 C.F.R. § 416.929(c)(2) (“we 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”).

Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)

96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with SSR 16-3p.

See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to

“credibility,” clarifies that “subjective symptom evaluation is not an examination of an

individual’s character,” and requires the ALJ to consider all the evidence in an individual’s

record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must

examine “the entire case record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of symptoms; statements and

other information provided by medical sources and other persons; and any other relevant

evidence in the individual’s case record.” Id. at *4.

SSR 16-3p explains that “[w]hen a Federal court reviews our final decision in a claim, we

expect the court will review the final decision using the rules that were in effect at the time we

issued the decision under review.”

The decision under review is dated January 10, 2019. Tr. 25. Therefore, SSR 16-3p

applies.

The ALJ found that plaintiff’s “medically determinable impairments could reasonably be

expected to cause some of the alleged symptoms.” Tr. 17. However, the ALJ concluded that

plaintiff’s “statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely consistent with the medical evidence and other evidence in the record

for the reasons explained in this decision.” Id.

The record contains evidence that plaintiff’s mother removed him from school in the

second grade and kept him socially isolated until she passed away in 2015 when plaintiff was 32

years old. Plaintiff lived alone with his mother in a small apartment and had limited contact

outside of the home; they were “never apart.” Tr. 58, 476. Plaintiff’s mother would not allow

him to interact with peers, and he rarely left the residence. Tr. 479. Plaintiff’s mother attempted

to homeschool plaintiff but it was “too stressful,” so “she just let [plaintiff] figure it out on [his]

own.” Tr. 480.

Plaintiff’s mother was reportedly schizophrenic and believed everyone was out to get her.

Tr. 58, 477. Being around people “set [her] off.” Tr. 478. Plaintiff did not work because his

mother was “very attached and afraid of him working. Tr. 480. Plaintiff and his mother

subsisted on her social security disability payments. Tr. 477.

Following his mother’s death, plaintiff became homeless and showed up “distraught” at a

church in Tigard, Oregon, where he had lived during a portion of his childhood. Tr. 477. When

plaintiff applied for social security benefits, he was residing in the back of the church, and

bathing twice a week at parishioners’ homes. Tr. 155, 470. Plaintiff does not use drugs and does

not drink except at holidays and to take communion. Tr. 41.

Plaintiff sought assistance with the state Office of Vocational Rehabilitation Services. In

April 2016, the state agency obtained an evaluation for plaintiff with Robert Weniger, Psy.D., a

board certified clinical neurologist, for purposes of better understanding plaintiff’s functional

limitations in relation to employment. Dr. Weniger diagnosed plaintiff with autism spectrum

disorder, ADHD, and an unspecified anxiety disorder. Tr. 305. Testing revealed plaintiff has a

low average IQ (87, 19th percentile). Tr. 483. He excelled in some areas of testing but was

borderline in others, including working memory (6th percentile) and processing speed (3rd

percentile). Tr. 483. He also scored in the borderline range (9th percentile) for word list recall

and story memory task, Tr. 484, and his adaptive skills spanned the borderline to extremely low

ranges. Tr. 486. Plaintiff’s reading and math skills tested at eighth grade and fifth grade levels,

respectively. Tr. 483.

Dr. Weniger “maintained concern” about plaintiff’s “job readiness,” and opined that

vocational success would be contingent upon effectively dealing with a number of significant

impediments, including “appropriate accommodation of his cognitive challenges, effective

management of his mood, improved interpersonal skills, enhanced motivation, and increased

stability in his personal life.” Tr. 491. Dr. Weniger concluded that, “[g]iven the breadth of

[plaintiff’s] impediments, his vocational prognosis appeared guarded,” Tr. 491, and suggested

that plaintiff may be eligible for disability benefits. Tr. 493.

A second evaluation conducted by Dr. Patrick Ethel-King, Ph.D. in June 2017 confirmed

plaintiff’s diagnosis of autism. Dr. Ethel-King also diagnosed plaintiff with depressive disorder.

Tr. 535. This evaluation was ordered by the Oregon Department of Human Services for

purposes of determining disability benefits. Tr. 532.

In May 2017, with significant assistance from state vocational rehabilitation services,

plaintiff obtained a part-time position, his first job ever, in a sandwich shop. Tr. 311, 341; see

Tr. 361 (“Client has lived in isolation for most of his life and has a total lack of work

experience.”). Plaintiff worked only two hours per day, Tr. 345, 533, but vocational

rehabilitation specialists considered even that to be quite a feat. See Tr. 352 (“Awesome . . . !!

What a success. Thank you for sticking with this. Shane has had quite the long haul.”).

The state agency contracted with Rise Employment Services to assist in providing

services for plaintiff. Tr. 284, 311. The sandwich shop that hired plaintiff had employed Rise

clients in the past. Tr. 312. The Rise counselors who assisted plaintiff spent a great amount of

time helping him through every step of the process of getting a job, including educating him

about realistic job prospects, researching openings, filing out applications, visiting job sites with

plaintiff, conducting a mock interview, selecting and purchasing work clothes, and coaching him

at the sandwich shop when he began working. Tr. 345; see Tr. 391 (observing vocational

exploration was necessary because plaintiff lacked “a sense of what working is about”).2 In fact,

when plaintiff began working at the sandwich shop, a Rise counselor visited the job site at least

15 times over the course of approximately two and a half months to check in with him and

provide him with coaching. Tr. 326-27.

Jessica Culp, the manager of the sandwich shop, completed a questionnaire in October

2018. Tr. 463. Although plaintiff had been working at the sandwich shop for some time, his

hours had increased to only 2.5 hours per day. Tr. 464. Culp confirmed that plaintiff had been

hired as part of a “work assistance program,” and explained that he required more coaching than

other crew members on where to focus his energy and lacked autonomy in the workplace. Tr.

464. While plaintiff did his best to relate to everyone, he had a low threshold for social

exhaustion and sometimes asked to leave work before his shift was completed. Tr. 464-65.

Although the quality of plaintiff’s work was generally good, he produced at a slower rate than

other employees even though his workload was less. Culp did not believe plaintiff could

complete the full duties of an employee in the shop. Tr. 465.

2 Plaintiff had unrealistic ideas about how he could support himself, believing he could find work

as a freelance photographer, Tr. 403, artist, or inventor. Tr. 443-44; see Tr. 444 (plaintiff

“produced a drawing of a square to demonstrate his artistic prowess”). He claimed he invented

the Subaru Baja and compared himself to Tony Stark. Tr. 443.

The ALJ found that the “medical evidence does not support [plaintiff’s] testimony.” Tr.

17. In particular, the ALJ observed that the “minimal treatment notes entered into the record,

collectively dated between March 2016 and August 2016 do [not] reflect any treatment for his

allegedly disabling impairments, such as use of medications typically prescribed for ADHD.”

Tr. 17. But, clearly, one of the reasons that the treatment records in this case are so minimal is

because plaintiff’s mother kept plaintiff in isolation for decades, ever since he was a young child.

For the same reason, plaintiff’s records do not contain a professional psychological evaluation

until 2016 and 2017. And while plaintiff’s treatment records may be slim, he was clearly

destitute and, at the time of the hearing, he did not believe he “currently” had health insurance.3

Tr. 34. “Disability benefits may not be denied because of the claimant’s failure to obtain

treatment he cannot obtain for lack of funds.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir.

1995).

The ALJ also observed that plaintiff “has never taken any medications for [ADHD],

because he felt they ‘can be risky.’” Tr. 18. The ALJ apparently relies on Dr. Weniger’s report,

which states, “He has never taken medication considered efficacious for treating ADHD

‘because that can be risky.’” Tr. 477. Importantly, however, there is no indication in the record

that plaintiff was ever prescribed medication for ADHD. Thus, the ALJ improperly faulted

plaintiff for refusing to take ADHD medication that had never been prescribed. Moreover, the

ALJ’s reasoning does not address plaintiff’s uncontroverted autism diagnosis and what effect any

hypothetical ADHD medication would have had on his autism symptoms. Additionally,

3 Plaintiff testified that he was not “currently” insured although he “used to” be. Tr. 34. The

record contains some indication that plaintiff had health insurance coverage under the Oregon

Health Plan one month before the hearing. Tr. 458. In any event, even if plaintiff had health

insurance, the ALJ improperly discredited plaintiff’s testimony for the other reasons discussed in

this decision.

plaintiff’s ambivalence about taking medication must be read in the context of his isolated

upbringing by a mother who distrusted all external influences and herself suffered from mental

health issues for which she apparently refused treatment.

The ALJ further found that while plaintiff reported experiencing difficulty in crowded

social environments, he “maintains social relationships through his church and volunteers at his

church’s food pantry.” Tr. 18. This ignores significant evidence to the contrary. For example,

there is evidence that plaintiff’s behavior with one of the vocational rehabilitation staff members

“got out of hand” due to the fact he called her 4 days a week, 10 times a day, and even in the

middle of the night. Tr. 400, 403. Notes indicate concern that if plaintiff obtained a job, his

“relationship with an employer could be destroyed” by such behavior. Tr. 400. Plaintiff’s

actions caused state agency staff to be “very hesitant to advocate to an employer of his stability

and reliability” and to conclude it was not “a good choice to begin job development at this

point.” Tr. 403. Other evidence shows that plaintiff struggles to connect with people, although

he tries to be considerate and well-liked, Tr. 471, and that when plaintiff engages in

conversation, it becomes incessant, nervous chatter. Tr. 473.

Finally, the ALJ relied on evidence that plaintiff volunteered at his church and worked

part-time. But, as discussed, plaintiff’s minimal part-time employment of 2.5 hours per day is

not reasonably indicative of his ability to perform full-time work. The same is true for plaintiff’s

volunteer church work that he engaged in once or twice a week, Tr. 470, and which involved

“short” tasks such as setting up and tearing down signs, cleaning, arranging chairs, and helping

people load groceries in their car. Tr. 436, 473, 480. Also, the record shows that plaintiff was

distracted when performing this volunteer work and his successful performance depended on his

emotional state and stress level. Tr. 473.

In sum, the ALJ failed to provide specific, clear and convincing reasons, supported by

substantial evidence, to reject plaintiff’s testimony.

II. Lay Opinion Testimony

The ALJ also rejected the lay witness statements of Sally Gradin and Forrest Cammack

because they were “further persuasive evidence that the claimant possesses the ability to perform

fulltime work activity consistent with the residual functional capacity found above.” Tr. 21. The

ALJ cited to reports by Gradin and Cammack that plaintiff participated in church volunteer

activities, went to the library, listened to music, watched movies, used public transportation,

exhibited independent self-care, went shopping, and performed household chores. Tr. 20-21.

But the ALJ ignored those portions of the record, including statements by Gradin and

Cammack, that showed plaintiff’s activities were in fact very limited. Plaintiff’s meal prep was

minimal and largely consisted of making prepared foods, like warming soups or hot dogs.

Plaintiff could not follow recipes or other written directions. He could not operate a computer

except to turn on videos. Plaintiff was overwhelmed by paperwork. He could not drive, and it

was opined that he will never have the capacity to obtain a driver’s license. Plaintiff had to be

reminded to bathe and was unaware of his body odor. Plaintiff could do household chores, such

as laundry, taking out the trash, and a limited amount of cleaning and vacuuming. However, he

did not do these chores often, and either barely touched a task or was overly meticulous and

spent hours on it. And, as for the fact plaintiff took public transportation, went to the library, and

watched movies, “[t]he Social Security Act does not require that claimants be utterly

incapacitated to be eligible for benefits.” Smolen, 80 F.3d at 1284 n.7.

The ALJ also ignored Gradin and Cammack’s observations regarding plaintiff’s mental

condition. Gradin, who happens to be a CSWA, observed that plaintiff displayed the anxiety,

rigidity, and social struggles classic of Asberger’s syndrome. Tr. 466. Plaintiff had low

tolerance for stress, and attempts to challenge him beyond comfortable work or social skills

usually increased his anxiety to a point of rigidity or withdrawal. Tr. 466. “Changes cause

excessive anxiety.” Tr. 472. When plaintiff became overwhelmed, it impacted him physically to

the point of near exhaustion. Even increasing his daily work shift from two to three hours

stretched his stress and energy levels. Gradin opined that plaintiff’s “expressions are not

presented in a manner suggestive of someone looking for opportunity to avoid productivity but

with affect and body language congruent with clinically impairing anxiety.” She explained his

symptoms were “similar to clients [she has] with combinations of high anxiety and low ability to

identify the emotional source and healthfully cope.” Tr. 466.

Cammack indicated that plaintiff had a “one-track mind” and was “unable to deal with

the flexibility that most work environments require.” Tr. 200. Cammack observed that plaintiff

was “unable to process complicated situations and if faced with a situation he is unfamiliar with,

will become easily overwhelmed and shut down.” Tr. 200. “While it is possible for him to do

simple tasks, like watering plants, most jobs would be difficult if not impossible for him to

succeed in.” Tr. 200.

The ALJ’s failure to consider this evidence is error and not harmless. See Stout v.

Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (“[W]here the ALJ's error lies in

a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court

cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ,

when fully crediting the testimony, could have reached a different disability determination.”).

III. Medical Opinion Testimony

Finally, plaintiff claims the ALJ erred in rejecting Dr. Weniger’s opinion.

A. Relevant Law

Plaintiff filed for benefits on March 31, 2017. For claims filed on or after March 27,

2017, Federal Regulation 20 C.F.R. § 404.1520c governs how an ALJ must evaluate medical

opinion evidence under Title II and 20 C.F.R. § 416.920c governs under Title XVI. Revisions to

Rules Regarding the Evaluation of Medical Evidence (Revisions to Rules), 82 Fed. Reg. 5844,

available at 2017 WL 168819 (Jan. 18, 2017). Under these new regulations, ALJs no longer

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

404.1520c(a)-(b), 416.920c(a)-(c). To that end, controlling weight is no longer given to any

medical opinion. Revisions to Rules, 82 Fed. Reg. 5844, at 5867-68; see also 20 C.F.R. §§

404.1520c(a), 416.920c(a). Instead, the Commissioner evaluates the persuasiveness of all

medical opinions based on (1) supportability, (2) consistency, (3) relationship with the claimant,

(4) specialization, and (5) other factors, such as “evidence showing a medical source has

familiarity with the other evidence in the claim or an understanding of our disability program’s

policies and evidentiary requirements.” 20 C.F.R. § 404.1520c(a), (c)(1)-(5); 20 C.F.R. §

416.920c(a), (c)(1)-(5).

The factors of “supportability” and “consistency” are considered to be “the most

important factors” in the evaluation process. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

“[S]upportability” means “[t]he more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her medical opinion(s) or prior

administrative medical finding(s), the more persuasive the medical opinions or prior

administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20 C.F.R. §

416.920c(c)(1). “[C]onsistency” means “[t]he more consistent a medical opinion(s) or prior

administrative medical finding(s) is with the evidence from other medical sources and

nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior

administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20 C.F.R. §

416.920c(c)(2).

The new regulations require the ALJ to articulate how persuasive the ALJ finds the

medical opinions and to explain how the ALJ considered the supportability and consistency

factors. 20 C.F.R. § 404.1520c(a), (b); 20 C.F.R § 416.920c(a),(b); see Tyrone W. v. Saul, No.

3:19-CV-01719-IM, 2020 WL 6363839, at *7 (D. Or. Oct. 28, 2020). “The ALJ may but is not

required to explain how other factors were considered, as appropriate, including relationship with

the claimant (length, purpose, and extent of treatment relationship; frequency of examination);

whether there is an examining relationship; specialization; and other factors, such as familiarity

with other evidence in the claim file or understanding of the Social Security disability program’s

policies and evidentiary requirements.” Linda F. v. Comm’r Soc. Sec. Admin., No. C20-5076-

MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020). However, ALJs are required to

explain “how they considered other secondary medical factors [if] they find that two or more

medical opinions about the same issue are equally supported and consistent with the record but

not identical.” Tyrone, 2020 WL 6363839, at *6 (citing 20 C.F.R. §§ 404.1520c(b)(2) and

404.1520c(b)(3)).

The court must continue to consider whether the ALJ’s decision is supported by

substantial evidence. See Revisions to Rules, 82 Fed. Reg. at 5852 (“Courts reviewing claims

under our current rules have focused more on whether we sufficiently articulated the weight we

gave treating source opinions, rather than on whether substantial evidence supports our final

decision.”); see also 42 U.S.C. § 405(g).

B. Whether the “Specific and Legitimate” Standard Still Applies

Under existing Ninth Circuit law, an ALJ must provide “clear and convincing” reasons to

reject an uncontradicted opinion from a treating or examining doctor and “specific and

legitimate” reasons to reject a contradicted opinion from such doctor. Lester v. Chater, 81 F.3d

821, 830-31 (9th Cir. 1995). The regulations pertaining to applications filed before March 27,

2017, set out a hierarchy for treatment of opinion evidence that, consistent with Ninth Circuit

case law, gives treating sources more weight than non-treating sources, and examining sources

more weight than non-examining sources. See Standards for Consultative Examinations and

Existing Medical Evidence, 56 Fed. Reg. 36,932, available at 1991 WL 142361 (Aug. 1, 1991);

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (adopting the “clear and convincing”

and “specific and legitimate” standards for rejecting treating and examining source medical

opinions); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983) (holding that “[i]f the ALJ

wishes to disregard the opinion of the treating physician, he or she must make findings setting

forth specific, legitimate reasons for doing so that are based on substantial evidence in the

record).

The Ninth Circuit has not yet considered whether the revision of the 2017 regulations

requires re-evaluation of the “specific and legitimate” standard for review of medical opinions.

See Robert S. v. Saul, No. 3:19-CV-01773-SB, 2021 WL 1214518, at *4 (D. Or. Mar. 3, 2021),

report and recommendation adopted, 2021 WL 1206576 (D. Or. Mar. 29, 2021) (collecting

cases). Nevertheless, “[e]ven under the Commissioner's new regulations, the ALJ must articulate

why he has rejected the opinion” and “the Ninth Circuit's ‘specific and legitimate standard’ is

merely a benchmark against which the Court evaluates that reasoning.” Scott D. v. Comm’r Soc.

Sec., No. C20-5354 RAJ, 2021 WL 71679, at *4 (W.D. Wash. Jan. 8, 2021); see 20 C.F.R. §§

404.1520c(a), 416.920c(a).

C. Analysis

The ALJ rejected Dr. Weniger’s opinion because plaintiff’s “work activity since May

2017 shows that his limitations are not as great as Dr. Weniger opined them to be.” Tr. 19. For

the reasons discussed above, this is not a reasonable interpretation of the record, nor is it a

conclusion that is supported by substantial evidence. The ALJ also gave weight to the opinions

of Dr. Kessler and Dr. Boyd because their finding that plaintiff is not disabled was “consistent

with plaintiff’s sustained work activity since May 2017.” Tr. 20. But, as discussed, based on the

record in this case, plaintiff’s capacity to work 2.5 hours a day cannot be considered sustained

work activity sufficient to establish he is capable of performing full-time work. For these

reasons, the ALJ erred in rejecting Dr. Weniger’s opinion.

III. Credit-as-True Analysis

When a court determines the Commissioner erred in some respect in making a decision to

deny benefits, the court may affirm, modify, or reverse the Commissioner’s decision “with or

without remanding the cause for a rehearing.” Treichler, 775 F.3d at 1099 (quoting 42 U.S.C.

§ 405(g)). In determining whether to remand for further proceedings or immediate payment of

benefits, the Ninth Circuit employs the “credit-as-true” standard when the following requisites

are met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2) the

record has been fully developed and further proceedings would serve no useful purpose, and

(3) if the improperly discredited evidence were credited as true, the ALJ would be required to

find the plaintiff disabled on remand. Garrison, 759 F.3d at 1020. Even if all of the requisites

are met, however, the court may still remand for further proceedings “when the record as a whole

creates serious doubt as to whether the claimant is, in fact, disabled[.]” Id. at 1021.

Here, the first requisite of the Garrison test is met.  As discussed above, the ALJ failed to

properly evaluate plaintiff’s subjective symptom testimony and improperly discounted the

testimony of Dr. Weniger and lay witnesses. Moreover, the record has been fully developed.

The record is minimal, but that is because of the circumstances of plaintiff’s upbringing.

Plaintiff has had two thorough psychological evaluations. Thus, there is no reason to remand

this case for further development of the record or additional testing.

Finally, if the improperly discredited evidence is credited as true, plaintiff would be

entitled to benefits. The evidence in the record establishes that plaintiff meets the paragraph B

criteria for autism spectrum disorder, which includes extreme limitation of one, or marked

limitation of two, of the following areas of mental functioning: (1) understanding, remembering,

or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining

pace; and (4) adapting or managing oneself. The fact that it took state vocational rehabilitation

staff such herculean efforts to help plaintiff find a part-time job where he is capable of working

only 2.5 hours a day says it all. When the improperly discredited evidence is credited as true, it

is apparent that plaintiff cannot maintain a full-time job due to his mental impairments.

ORDER

The Commissioner’s decision is REVERSED and this matter is REMANDED for the

immediate award of benefits.

DATED June 30, 2022.

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge