Trowbridge v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

FREDRICK T.,1 Case No. 3:21-cv-1684-SI

Plaintiff, OPINION AND ORDER

v.

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

Caitlin S. Laumaker and George J. Wall, LAW OFFICES OF GEORGE J. WALL, 825 NE 20th

Avenue, Suite 330, Portland, OR 97232. Of Attorneys for Plaintiff.

Natalie K. Wight, United States Attorney, and Renata Gowie, Civil Division Chief, UNITED

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

Stucky, 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.

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. Where applicable, this Opinion and

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

Michael H. Simon, District Judge.

Plaintiff Fredrick T. brings this appeal challenging the decision of the Commissioner of

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

Supplemental Security Income (SSI) under title XVI of the Social Security Act (Act). The Court

has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the

review provisions of 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses the

Commissioner’s decision and remands for further proceedings.

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

Plaintiff was born February 3, 1974. AR 1445. He was 40 years old as of the amended

alleged disability onset date. Id. Plaintiff alleges that he suffers from diabetes with diabetic

neuropathy, post-traumatic stress disorder (PTSD), chronic obstructive pulmonary disease,

anxiety, depression, and excoriation (skin picking) disorder.

Plaintiff initially applied for disability insurance benefits (DIB) and SSI in 2010, alleging

a disability onset date of August 15, 2008. AR 11. Disability Determination Services (DDS)

denied Plaintiff’s applications. Id. Plaintiff did not appeal the denials. AR 47. Plaintiff reapplied

for both DIB and SSI in 2012. AR 11. DDS denied the claims initially and upon reconsideration.

Id. Plaintiff had a hearing before Administrative Law Judge (ALJ) Vadim Mozyrsky on June 29,

2015. AR 44. The ALJ denied Plaintiff’s claims. AR 8. Plaintiff appealed the decision to the

Appeals Council (AC), which denied review. AR 1. Plaintiff then appealed to this District Court.

United States Magistrate Judge Thomas Coffin determined that the ALJ had committed harmful

error in rejecting Plaintiff’s subjective symptom testimony about his peripheral neuropathy. AR

1400-03. District Judge Ann Aiken adopted Judge Coffin’s Findings and Recommendation and

remanded the case. AR 1420.

On remand, Plaintiff amended his alleged onset date to May 11, 2014, and withdrew his

DIB claim. AR 1429. Plaintiff had his second hearing before ALJ Mozyrsky on June 25, 2020.

Id. The ALJ again denied Plaintiff’s SSI claim. AR 1446. Plaintiff requested review of the ALJ’s

decision, which the AC denied. AR 1330. Accordingly, the ALJ’s decision is the final decision

of the Commissioner and Plaintiff seeks judicial review of that decision.

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 can 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 of the sequential analysis, the ALJ determined that Plaintiff had not engaged

in substantial gainful activity since May 11, 2014, the amended alleged onset date. AR 1432. At

step two, the ALJ found that Plaintiff suffered from six severe medically determinable

impairments: anxiety, depression, a substance use disorder in remission, PTSD, diabetes type I

with diabetic neuropathy, and chronic obstructive pulmonary disease. Id. At step three, the ALJ

determined that Plaintiff does not have an impairment or combination of impairments that meets

or medically equals the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1. AR 1433.

The ALJ next determined that Plaintiff had the RFC to perform a range of sedentary to

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

[H]e can lift and carry 20 pounds occasionally and 10 pounds

frequently. He can stand and walk two hours total in an eight-hour

workday. He can tolerate no concentrated exposure to airborne

irritants. He is limited to simple tasks. He can engage in simple

work-related decisions. He can interact with coworkers and the

public on an occasional basis.

AR 1435. At step four, the ALJ determined that Plaintiff was unable to perform

any of his past relevant work. AR 1444.

At step five, after considering Plaintiff’s age, education, work experience,

and RFC, the ALJ found that Plaintiff could perform jobs existing in significant

numbers in the national economy. AR 1445. Accordingly, the ALJ concluded that

Plaintiff was not disabled from the amended alleged onset date through

August 12, 2020, the date of the ALJ’s decision. AR 1446.

DISCUSSION

Plaintiff argues that the ALJ erred by: (1) improperly rejecting Plaintiff’s subjective

symptom testimony about his mental health symptoms and impairments; and (2) improperly

rejecting the opinion of Plaintiff’s treating therapist, Jane Rekas, LCSW.

A. Plaintiff’s Symptom Testimony

1. Standards

A claimant “may make statements about the intensity, persistence, and limiting effects of

his or her symptoms.” SSR 16-3p, 2017 WL 5180304, at *6 (Oct. 25, 2017).2 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

2 Effective March 28, 2016, Social Security Ruling (SSR) 96-7p was superseded by SSR

16-3p, which eliminates the term “credibility” from the agency’s sub-regulatory policy. SSR 16-

3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 14166 (Mar.

16, 2016). Because, however, case law references the term “credibility,” it may be used in this

Opinion and Order.

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).

Consideration of subjective symptom testimony “is not an examination of an individual’s

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

evaluating the intensity and persistence of symptoms. SSR 16-3p, available at 2016

WL 1119029, at *1-2. The Commissioner recommends that the ALJ 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. The Commissioner further recommends assessing: (1) the claimant’s

statements made to the Commissioner, medical providers, and others regarding the claimant’s

location, frequency, and duration of symptoms, the impact of the symptoms on daily living

activities, factors that precipitate and aggravate symptoms, medications and treatments used, and

other methods used to alleviate symptoms; (2) medical source opinions, statements, and medical

reports regarding the claimant’s history, treatment, responses to treatment, prior work record,

efforts to work, daily activities, and other information concerning the intensity, persistence, and

limiting effects of an individual’s symptoms; and (3) non-medical source statements, considering

how consistent those statements are with the claimant’s statements about his or her symptoms

and other evidence in the file. See id. at *6-7.

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

v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 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 must specifically identify what evidence contradicted 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 court “cannot review whether the ALJ provided specific, clear,

and convincing reasons for rejecting [a clamaint’s] pain testimony where . . . the ALJ never

identified which testimony she found not credible, and never explained which evidence

contradicted that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (emphasis in

original) (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)). “[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, 806 F.3d at 489 (quoting

Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014)); see also Lambert, 980 F.3d at 1278

(stating that “provid[ing] a relatively detailed overview of [a claimant’s] medical history . . . ‘is

not the same as providing clear and convincing reasons for finding the claimant’s symptom

testimony not credible.’” (emphasis in original) (quoting Brown-Hunter, 806 F.3d at 494));

Treichler, 775 F.3d at 1103 (rejecting the argument that because the ALJ “set out his RFC and

summarized the evidence supporting his determination” the court could infer “that the ALJ

rejected [petitioner’s] testimony to the extent it conflicted with that medical evidence”);

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.”). 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.

2. Analysis

The ALJ determined that Plaintiff’s impairments could reasonably be expected to cause

the alleged symptoms and did not find evidence of malingering. AR 1437. The ALJ then

concluded that Plaintiff’s testimony about the intensity, persistence, and limiting effects of his

symptoms was not consistent with the record. Id. As grounds for discounting Plaintiff’s mental

health symptom testimony, the ALJ cited Plaintiff’s improvement with treatment, the

inconsistency of Plaintiff’s testimony with that improvement, and a lack of objective medical

evidence supporting Plaintiff’s claims. AR 1437-38.

a. Improvement with Treatment

A claimant’s improvement with treatment is “an important indicator of the intensity and

persistence of . . . symptoms.” 20 C.F.R. § 416.929(c)(3). “[E]vidence of medical treatment

successfully relieving symptoms can undermine a claim of disability.” Wellington v.

Berryhill, 878 F.3d 867, 876 (9th Cir. 2017); see also Warre v. Comm’r of Soc. Sec. Admin., 439

F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication

are not disabling for the purpose of determining eligibility for SSI benefits.”). “Reports of

‘improvement’ in the context of mental health issues must be interpreted with an understanding

of the patient’s overall well-being and the nature of her symptoms.” Garrison v. Colvin, 759

F.3d 995, 1017 (9th Cir. 2014). A court must also consider “that improved functioning while

being treated and while limiting environmental stressors does not always mean that a claimant

can function effectively in a workplace.” Id. “The fact that a person suffering from depression

makes some improvement does not mean that the person’s impairment no longer seriously

affects his ability to function in a workplace.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th

Cir. 2014) (cleaned up).

As the Ninth Circuit explained in Garrison,

[I]t is error to reject a claimant’s testimony merely because

symptoms wax and wane in the course of treatment. Cycles of

improvement and debilitating symptoms are a common occurrence,

and in such circumstances, 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 a claimant is capable of

working.

Garrison, 759 F.3d at 1017.

To support his conclusion that Plaintiff had improved with treatment, the ALJ relied on

treatment notes from March and April 2020. AR 1437. Those treatment notes show that Plaintiff

had reported low mood and motivation to his provider on March 30, 2020. AR 1870. His

provider prescribed Wellbutrin. Id. At his next appointment, on April 21, 2020, Plaintiff reported

improvement in mood and motivation. AR 1881. During that appointment, Plaintiff rated his

depression at a three out of ten. Id. He also rated his anxiety at a four out of ten and complained

of trouble falling asleep. Id. Plaintiff’s April 2020 appointment is the final appointment in the

record before Plaintiff’s disability hearing in June 2020. AR 1339. The ALJ concluded that the

treatment notes from March 30 and April 21, 2020, demonstrated “improvement in symptoms

with Wellbutrin.” AR 1437. The ALJ relied on that improvement in discounting Plaintiff’s

testimony. Id.

The treatment notes from March and April 2020 do not constitute substantial evidence to

support the ALJ’s decision to discount Plaintiff’s testimony on the ground that his mental health

symptoms improved with treatment. Evidence of symptom improvement must be weighed within

the context of a plaintiff’s “overall diagnostic picture.” Holohan v. Massanari, 246 F.3d 1195,

1205 (9th Cir. 2001). Plaintiff’s medical record shows that Plaintiff had taken Wellbutrin prior

to 2020 and had experienced no significant changes in symptoms when either starting or

stopping the medication. AR 1204. The record also shows that Plaintiff’s symptoms related to

depression have waxed and waned. For example, Plaintiff described improvements in his mental

health symptoms in the spring and summer of 2016, followed by a worsening of symptoms in the

fall of that year. AR 1595. Later, in July 2019, Plaintiff reported that he was not experiencing

much depression. AR 1706. And in September 2019, Plaintiff rated his depression at a two out of

ten. AR 1684. Plaintiff’s symptoms of depression then worsened again, as Plaintiff reported low

mood and motivation in March 2020. AR 1870. Plaintiff also testified that he has “ups and

downs” with his mental health symptoms. AR 1352. He has described his depression as cyclical.

AR 1214. As the Ninth Circuit explained in Garrison, when a plaintiff’s symptoms wax and

wane, it is error for the ALJ to treat isolated instances of improvement as demonstrating that a

plaintiff is capable of working. Garrison, 759 F.3d at 1017. The single instance of improvement

cited by the ALJ does not amount to substantial evidence that Plaintiff’s symptoms significantly

improved with treatment.

Further, the ALJ’s opinion does not mention any improvement in symptoms of Plaintiff’s

anxiety or PTSD, which the ALJ determined were severe impairments at step two of the

sequential analysis. AR 1432. Plaintiff has consistently complained of symptoms related to his

anxiety and PTSD. AR 1595, 1619, 1682, 1684, 1692, 1696, 1704, 1706, 1849, 1853, 1865,

1872. He has described those symptoms, including hypervigilance, paranoia, night terrors, and

panic attacks, as more severe than his symptoms of depression. AR 1706, 1849, 1865.

Improvement of some symptoms does not constitute a reason to discount testimony that the

plaintiff continues to suffer from severe symptoms, particularly mental health symptoms, which

are cyclical by nature. See Garrison, 759 F.3d at 1017-18 (explaining that because mental health

symptoms wax and wane, to provide a clear, convincing, and specific reason to discount a

plaintiff’s claimed limitations, instances of improvement that an ALJ cites must “chart a course

of improvement” and “must in fact constitute examples of a broader development” (emphasis

added); see also Ghanim, 763 F.3d at 1161-62 (rejecting argument that records indicating

improvement in depressive mood preclude disability based on PTSD and depression when

records showed cyclical problems with nightmares, trouble sleeping, depression, and other

symptoms, and concluding “that a person suffering from depression makes some improvement

does not mean that the person’s impairment no longer seriously affects his ability to function in a

workplace” (cleaned up)).

Based on Plaintiff’s overall diagnostic picture, the treatment notes cited by the ALJ do

not constitute substantial evidence of improvement with treatment. The alleged improvement

therefore is not a clear and convincing reason to discount Plaintiff’s mental health symptom

testimony.

b. Inconsistent Statements

i. Testimony Related to Symptoms Over Time

The ALJ concluded that Plaintiff’s improvement with treatment contradicted Plaintiff’s

testimony that his mental health symptoms have worsened over the past five years. AR 1437.

The ALJ cited this inconsistency as a reason for discounting Plaintiff’s symptom testimony. Id.

As discussed above, however, the ALJ’s conclusion that Plaintiff’s mental health symptoms had

improved with treatment was not supported by substantial evidence. That Plaintiff experienced

improved mood and motivation in April 2020 is not inconsistent with Plaintiff’s testimony that,

although he has “ups and downs,” his mental health is overall “more challenging now” and he

struggles with panic attacks, hypervigilance, and severe night terrors. AR 1352, 1343. The

alleged inconsistency therefore does not constitute a clear and convincing reason to discount

Plaintiff’s symptom testimony.

ii. Inconsistent Statements at Medical Appointments

The ALJ observed that Plaintiff had denied depression, anxiety, mental disturbance,

hallucinations, and paranoia at an October 2014 appointment and had denied fatigue at

appointments in 2018 and 2019. AR 1437-38. The Commissioner argues that the ALJ referred to

these symptom denials because they were inconsistent with Plaintiff’s allegations of his

symptoms of PTSD, anxiety, and depression. These purported inconsistencies, the Commissioner

argues, constitute a clear and convincing reason for discounting Plaintiff’s testimony.

The ALJ’s opinion does not reflect this reasoning. The ALJ did not assert that Plaintiff’s

symptom denials at certain medical appointments were inconsistent with Plaintiff’s testimony.

Nor did the ALJ tie Plaintiff’s prior statements to any contradictory testimony. Id. Rather, the

ALJ referred to Plaintiff’s select denials of symptoms when explaining that Plaintiff’s anxiety

and depression were “not constant.” AR 1437. The Court disregards post hoc explanations by 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.”). Because the ALJ did not

determine that Plaintiff’s symptom denials were inconsistent with Plaintiff’s testimony, the Court

must disregard this argument by the Commissioner. Further, Plaintiff testified as to the cyclical

nature of his mental health symptoms. The fact that his symptoms are “not constant” is consistent

with his testimony.

c. Objective Medical Evidence

An ALJ may consider the lack of corroborating objective medical evidence as a “relevant

factor in determining the severity of the claimant’s” alleged symptoms. Rollins v.

Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ may not, however, “discredit the

claimant’s testimony as to subjective symptoms merely because they are unsupported by

objective evidence.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (quoting Lester v.

Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Robbins, 466 F.3d at 883; 20 C.F.R.

§ 416.929(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”).

In discounting Plaintiff’s subjective symptom testimony, the ALJ cited mental status

examinations from 2014 and 2015 in which providers observed no signs of depression, anxiety,

or paranoia. AR 1438. The ALJ noted that Plaintiff has been described as both “calm” and

“anxious” during medical examinations. AR 1434. The ALJ appeared to conclude that the

objective medical evidence does not fully support Plaintiff’s claimed limitations.

The Court has rejected the ALJ’s other reasons for discounting Plaintiff’s testimony.

Even if Plaintiff’s claimed limitations are not supported by the objective medical record, that

cannot, by itself, stand as the clear and convincing reason supported by substantial evidence

required to discount Plaintiff’s subjective symptom testimony. The ALJ therefore erred in

discounting Plaintiff’s mental health symptom testimony.

B. Testimony of Ms. Rekas

Effective March 27, 2017, the Social Security Administration amended its regulations

and Social Security Rulings (SSRs) relating to the evaluation of medical evidence, including the

consideration of “acceptable medical sources” and “non-acceptable medical sources” or “other

medical sources.”3 Most of these changes were effective only for claims filed after March 27,

2017. The Administration, however, implemented revised versions of 20 C.F.R. §§ 404.1527(f)

and 416.927(f) to provide “clear and comprehensive guidance” about how to consider “other”

medical sources for claims filed before March 27, 2017. Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because Plaintiff’s claim

was filed before March 27, 2017, and the ALJ issued his opinion after March 27, 2017, the

revised version of 20 C.F.R. § 416.927 governs Plaintiff’s claim.

This revised regulation incorporates the policy in SSR 06-03p of separating acceptable

medical sources (licensed physicians and certain other qualified specialists) from “other”

medical sources, and generally giving less deference to “other” medical sources. It also

incorporates the policies of requiring the ALJ to consider “other” medical source opinions,

explain the weight given to such opinions, provide sufficient analysis to allow a subsequent

reviewer to follow the ALJ’s reasoning, and to provide sufficient detail and explanation if the

3 Among things, the Commissioner rescinded SSR 06-03p, broadened the definition of

acceptable medical sources to include Advanced Practice Registered Nurses (such as nurse

practitioners), audiologists, and physician assistants for impairments within their licensed scope

of practice, and clarified that all medical sources, not just acceptable medical sources, can

provide evidence that will be considered medical opinions. See 20 C.F.R. §§ 404.1502, 416.902;

82 F. Reg. 8544; 82 F. Reg. 15263.

ALJ gives greater weight to an opinion from an “other” medical source than a medical opinion

from a treating source. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

Fed. Reg. 5844, 5845; see also 20 C.F.R. §§ 404.1527(f), 416.927(f). Because Ms. Rekas is a

licensed clinical social worker, she is considered an “other” medical source.

An ALJ may not reject the competent testimony of “other” medical sources without

comment. Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). To reject the competent

testimony of “other” medical sources, the ALJ need only give “reasons germane to each witness

for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm’r

of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). In rejecting such testimony, the ALJ need not

“discuss every witness’s testimony on an individualized, witness-by-witness basis. Rather, if the

ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to

those reasons when rejecting similar testimony by a different witness.” Id. at 1114. The ALJ also

may “draw inferences logically flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639,

642 (9th Cir. 1982).

An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,

either individually or in the aggregate.” Molina, 674 F.3d at 1115 (quoting Nguyen v.

Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)). Such an error may be harmless, and a court must

determine whether the error is “‘inconsequential to the ultimate nondisability determination’ in

the context of the record as a whole.” Id. at 1122 (quoting Carmickle v. Comm’r, Soc. Sec.

Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008)). In evaluating “other” source testimony, the

error is harmless, for example, when the opinion is inconsistent with a medical source opinion,

particularly one that specializes in the field, and is “therefore entitled to greater weight.” Id.

at 1112. Additionally, “an ALJ’s failure to comment upon lay witness testimony is harmless

where ‘the same evidence that the ALJ referred to in discrediting [the claimant’s] claims also

discredits [the lay witness’s] claims.’” Id. at 1122 (quoting Buckner v. Astrue, 646 F.3d 549, 560

(8th Cir. 2011)). When an ALJ ignores uncontradicted lay witness testimony that is highly

probative of the claimant’s condition, “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.” Stout, 454 F.3d at 1056.

The ALJ gave only partial weight to Ms. Rekas’s opinion because he found her opinion

inconsistent with Plaintiff’s activities of daily living and not supported by objective medical

evidence. AR 1443. Ms. Rekas described Plaintiff as “quite debilitated by a very heightened

baseline of daily anxiety, only counterbalanced by depressive isolation.” AR 1808. She wrote

that it is difficult for Plaintiff to leave his house “without extreme hypervigilance.” Id.

The ALJ determined that Plaintiff’s activities of daily living contradicted the severity of

symptoms described by Ms. Rekas. AR 1443. Although some of the activities listed by the ALJ

are irrelevant to Ms. Rekas’s opinion, others are germane, such as performing small jobs for

friends, attending recovery meetings monthly, grocery shopping regularly, and spending every

other week at his sister’s house to help with her children. Id. These activities demonstrate that

Plaintiff regularly spent extended periods of time out of his house and around others. The

activities are therefore germane to the ALJ’s determination that Plaintiff had greater ability to

function than was described by Ms. Rekas.

In discounting Ms. Rekas’s testimony, the ALJ also cited objective medical evidence,

referencing his earlier determination of the severity of Plaintiff’s impairments at step three of the

sequential analysis. The ALJ noted that a provider had described Plaintiff as “friendly and open

to conversation,” and had said that Plaintiff “makes good eye contact” and “speaks with a strong

voice.” AR 1443 (quoting AR 1634). The ALJ also observed that, although some treatment

records described Plaintiff as “anxious,” others described him as “calm” or “relaxed.” AR 1434

(citing AR 1106, 1104, 1689). These observations are germane to Ms. Rekas’s opinion that

Plaintiff has a “very heightened baseline of daily anxiety” and experiences “extreme

hypervigilance” when he leaves his home. AR 1808. Because Plaintiff’s activities of daily living

and the objective medical evidence provide specific and germane reasons for discounting

Ms. Rekas’s opinion, the ALJ did not err in giving that opinion only partial weight.

C. Remand for Further Proceedings

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 1099-100. 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 committed reversible error by failing to provide specific, clear, and convincing

reasons to reject Plaintiff’s subjective symptom testimony. The record is fully developed and is

free of conflicts. The ALJ has rejected the conflicting agency medical opinions. Plaintiff’s

testimony should therefore be credited as true. After crediting Plaintiff’s testimony as true,

however, it remains unclear whether the ALJ is required to find Plaintiff disabled. Plaintiff’s

arguments for remanding for an award of benefits center on the testimony of Ms. Rekas. The

Court, therefore, declines to remand for an award of benefits. The Court remands to the ALJ to

determine whether Plaintiff is disabled. Upon remand the Commissioner must credit Plaintiff’s

testimony as true.

CONCLUSION

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

REMANDS for further proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 10th day of February, 2023.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge