# Jacobsen v. Commissioner Social Security Administration

> District Court, D. Oregon · June 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10396048

## Case

- **Court:** District Court, D. Oregon
- **Decided:** June 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10396048

## How later opinions describe it (automated extraction)

- holding that an ALJ can “reject an examining or treating doctor’s opinion as unsupported or inconsistent” if the ALJ “provide[es] an explanation supported by substantial evidence”
- holding that competent lay witness testimony “cannot be disregarded without comment” (emphasis in original)
- discussing the five-step evaluation in detail

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ROBERT J., Ca se No. 3:22-cv-00112-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.
_____________________________________

ARMISTEAD, Magistrate Judge

In this judicial review of the Commissioner’s final decision denying Social Security
benefits, plaintiff Robert J. (his last name omitted for privacy) contends that the Administrative
Law Judge (ALJ) failed to provide specific, clear and convincing reasons for discounting his
subjective symptom testimony. In plaintiff’s view, the ALJ erred by relying on a lack objective
medical evidence to discredit plaintiff’s testimony, simply summarizing the medical evidence in
support of the RFC assessment, and failing to identify what testimony he found not credible.

Page 1 – OPINION AND ORDER
(Pl.’s Br. at 10-11, ECF No. 14.) Plaintiff also argues that the ALJ failed to discuss testimony
offered by Leticia P., plaintiff’s wife. (Pl.’s Br. at 14-15.) Plaintiff’s final argument is that the
ALJ erred in analyzing the opinion of his primary care provider, Mark Wozniak, M.D., who
opined that plaintiff would have significant difficulties functioning in a competitive work
environment. (Pl.’s Br. at 11-14.) Specifically, plaintiff argues that Dr. Wozniak’s opinion is not
undermined by the examination findings that the ALJ cited, and that the ALJ failed to address
other limitations assessed by Dr. Wozniak. As explained below, the ALJ erred in all three
respects and the Commissioner’s decision is REVERSED and REMANDED for further
proceedings.1

ALJ’S DECISION
In denying plaintiff’s application for Title II Disability Insurance Benefits (DIB), the ALJ
followed the five-step sequential evaluation process.2 At step one, the ALJ found that plaintiff
had not engaged in substantial gainful activity since June 1, 2015, his date of disability.3 (Tr. 17.)
At step two, the ALJ found that plaintiff has several severe impairments: thoracic and lumbar spine
degenerative disc disease, bilateral hip degenerative joint disease, right foot degenerative joint
disease, diabetes, peripheral neuropathy, asthma, obstructive sleep apnea, and obesity. (Tr. 18.)

1 This court has jurisdiction under 42 U.S.C. § 405(g), and all parties have consented to
jurisdiction by magistrate judge under Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c).

2 To determine a claimant’s disability, the ALJ must apply a five-step evaluation. See 20
C.F.R. § 404.1520(a)(4). If the ALJ finds that a claimant is either disabled or not disabled at any
step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481 F.3d 742, 746–
47 (9th Cir. 2007) (discussing the five-step evaluation in detail).

3 Plaintiff was born in 1969 and was 50 years old at the December 2020 hearing. (Tr. 29,
164.)

Page 2 – OPINION AND ORDER
At step three, the ALJ determined that plaintiff does not have an impairment, or combination of
impairments, that meet or medically equal a listed impairment. (Tr. 19.)
After reviewing the evidence in the record, the ALJ then determined that plaintiff has the
residual functional capacity (RFC) to perform light work, except that he can never climb ladders,
ropes, or scaffolds; can occasionally reach overhead; can tolerate occasional exposure to extreme
cold and vibration; could tolerate occasional exposure to pulmonary irritants such as fumes,
odors, dust, gases, and poor ventilation; and should never be exposed to hazards such as
unprotected heights and moving mechanical machinery. (Tr. 21.) The ALJ found that plaintiff has
no past relevant work at step four. (Tr. 27.) Given plaintiff’s age, education, work experience, and

RFC, the ALJ found at step five that jobs exist in significant numbers in the national economy that
plaintiff can perform, including such representative occupations as assembler, storage facility
rental clerk, and gate guard. (Tr. 28.)
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is
“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation
and citation omitted). To determine whether substantial evidence exists, the court must weigh all

the evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).

Page 3 – OPINION AND ORDER
DISCUSSION
A. Subjective Symptom Testimony
To determine whether a claimant’s testimony about subjective pain or symptoms is
credible, an ALJ must perform two stages of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678
(9th Cir. 2017); 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant
must produce objective medical evidence of an underlying impairment that could reasonably be
expected to produce the symptoms alleged. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d
1090, 1102 (9th Cir. 2014); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the
second stage, absent affirmative evidence that the claimant is malingering, the ALJ must provide

clear and convincing reasons for discounting the claimant’s testimony about the severity of his
symptoms. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008);
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings that
are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).
The specific, clear and convincing standard is “the most demanding required in Social Security
cases” and is “not an easy requirement to meet.” Garrison, 759 F.3d at 1015; Trevizo, 871 F.3d
at 678-79. Moreover,
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. To ensure that our review of the ALJ’s credibility
determination is meaningful, and that the claimant’s testimony is not rejected arbitrarily,
we require the ALJ to specify which testimony she finds not credible, and then provide
clear and convincing reasons, supported by evidence in the record, to support that
credibility determination.

Brown-Hunter, 806 F.3d at 489. The ALJ must make findings that are sufficiently specific to

Page 4 – OPINION AND ORDER
permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s
testimony. Id. at 493.
At the hearing and in function reports, plaintiff alleged that he is unable to work due to
chronic, sharp, and consistent pain with any spinal movement, and that this pain interferes with
his ability to concentrate and sleep. (Tr. 242.) At the hearing, plaintiff alleged limitations from
thoracic and lumbar spine degenerative disc disease, bilateral hip degenerative joint disease, right
foot degenerative joint disease, peripheral neuropathy, asthma, obstructive sleep apnea,
hypersomnia, obesity, bilateral hand angioedema, hearing impairments, diabetes, depressive
disorder, bilateral nonproliferative retinopathy, refraction disorder, and memory dysfunction. (Tr.

40-52.) He testified that he had to lie down four to six hours in the morning waiting for his pain
medication to work, and that he could not work for more than five minutes at a time. (Tr. 48.)
Plaintiff reported that basic tasks such as cooking meals, doing the dishes, and bathing are
painful. (Tr. 48, 56.)
At the first step in the analysis, the ALJ made no finding of malingering and determined
that plaintiff provided objective medical evidence of underlying impairments that might
reasonably produce the symptoms alleged. (Tr. 22.) At the second step, however, the ALJ
discounted the alleged severity, intensity, and persistence of plaintiff’s symptom testimony as
inconsistent with the medical evidence. (Tr. 22-26.) The ALJ was therefore required to provide
specific, clear and convincing reasons for discrediting plaintiff’s symptom testimony. See

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013). The ALJ failed to do so here.
Plaintiff argues that the ALJ failed to identify specific, clear and convincing reasons
supported by substantial evidence to reject plaintiff’s subjective symptom testimony, and

Page 5 – OPINION AND ORDER
therefore committed harmful legal error. (Pl.’s Br. at 9-11.) Specifically, plaintiff asserts that the
ALJ erred by relying solely on a lack of objective medical evidence to discredit plaintiff’s
testimony. (Pl.’s Br. at 10.) Plaintiff is correct.4
In the decision, the ALJ states that “the objective findings do not substantiate the
claimant’s allegations of disabling symptoms and limitations,” and proceeds to provide a
chronological summary of the medical record. (Tr. 22-25.) The ALJ fails, however, to identify
any other basis upon which to discredit plaintiff’s allegations. (Tr. 22-25.)
Inconsistency with the medical record can provide a clear and convincing basis for
discounting a claimant’s symptoms, so long as it is not the sole basis for doing so. Bray v.

Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). Even if the objective medical
evidence is inconsistent with plaintiff’s proffered symptoms, the ALJ may not rely solely on a
lack of objective medical evidence to discredit plaintiff’s testimony. See Taylor v. Berryhill, 720
F. App’x 907, 907 (9th Cir. 2018) (explaining that a “lack of objective medical evidence cannot
be the sole reason to discredit claimant’s testimony,” and therefore holding that the ALJ failed to
provide clear and convincing reasons for discounting the claimant’s testimony). Therefore, the
ALJ erred by relying exclusively on a lack of objective medical evidence to discredit plaintiff’s
testimony.

4 Plaintiff further contends that the objective medical evidence is consistent with and
supports plaintiff’s testimony. (Pl.’s Br. at 10.) This argument is addressed in the remedy section
of this opinion. Plaintiff also argues that the ALJ was required to do more than simply
summarize the medical evidence in support of his RFC assessment, and that the ALJ is required
to “specifically identify” the testimony that he found not credible. Id. Plaintiff’s contention is
correct, however, because the ALJ’s committed harmful error by relying solely on a lack of
objective medical evidence to discredit plaintiff’s testimony, the court declines to address this
additional argument.

Page 6 – OPINION AND ORDER
The Commissioner asserts that the ALJ’s rationale may reasonably be discerned within
the discussion of the medical evidence, contending the ALJ also discounted plaintiff’s testimony
because it was inconsistent with his treatment history and his reported level of activity. (Def.’s
Br. at 8, ECF No. 18.) See, e.g. Brown-Hunter, 806 F.3d at 492 (remarking that legal error can be
affirmed if “the agency’s pathway may reasonably be discerned, even if the agency explains its
decisions with less than ideal clarity”). The court disagrees. The ALJ made no effort to describe
how plaintiff’s treatment history or his level of activity undermined his subjective complaints.
Although the ALJ’s decision need not be drafted with ideal clarity, the court may not glean
findings from the administrative record and is “constrained to review the reasons the ALJ

asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Because the ALJ only
identified a lack of objective medical evidence as a basis for discounting plaintiff’s subjective
symptom testimony, the Commissioner’s arguments are not well-taken here.
Accordingly, the court concludes that the ALJ erred by relying on a lack of objective
medical evidence as the sole reason for discrediting plaintiff’s subjective symptom testimony.
Bray, 544 F.3d at 1227; Sutherland v. Comm’r of Soc. Sec. Admin., 234 F. Supp. 3d 1063, 1071
(D. Or. Feb. 10, 2017).
B. Lay Witness Testimony
Lay witness testimony about a claimant’s symptoms is competent evidence that an ALJ
must consider unless he “expressly determines to disregard such testimony and gives reasons

germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001);
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (holding that competent lay witness
testimony “cannot be disregarded without comment” (emphasis in original)).

Page 7 – OPINION AND ORDER
In addition to plaintiff’s own subjective allegations, his wife, Leticia P., completed a
third-party function report in support of his disability. (Tr. 220-27.) Plaintiff argues that the ALJ
erred by disregarding this lay witness’s statements without comment. (Pl.’s Br. at 15.) The
Commissioner attempts to counter plaintiff’s argument on two grounds.
First, the Commissioner argues that the ALJ did not commit legal error because 20 C.F.R.
§ 404.1520c(d) does not require ALJs to articulate how they consider nonmedical source
statements. (Def.’s Br. at 8.) The Commissioner is mistaken: “Although § 404.1520c(d) states
the Commissioner is ‘not required to articulate how we consider evidence from nonmedical
sources’ using the same criteria for medical sources, it does not eliminate the need for the ALJ to

articulate his consideration of lay-witness statements and his reasons for discounting those
statements.” Joseph M. R. v. Comm’r of Soc. Sec. Admin., Case No. 3:18-cv-01779-BR, 2019
WL 4279027, at *12 (D. Or. Sept. 10, 2019) (quoting 20 C.F.R. § 404.1520c(d)).
Second, the Commissioner contends that the ALJ’s failure to consider the lay-witness
statements was harmless because the ALJ discounted similar testimony from plaintiff. (Def.’s Br.
at 8 (citing Molina v. Astrue, 674 F.3d 1104, 1118-19 (9th Cir. 2012) (“Where lay witness
testimony does not describe any limitations not already described by the claimant, and the ALJ’s
well-supported reasons for rejecting the claimant’s testimony apply equally well to the lay
witness testimony, it would be inconsistent with our prior harmless error precedent to deem the
ALJ’s failure to discuss lay witness testimony to be prejudicial per se.”)). As explained above,

because the ALJ did not provide legally sufficient reasons to discount plaintiff’s subjective
symptom testimony, the ALJ erred in failing to consider the lay witness testimony of plaintiff’s
wife.

Page 8 – OPINION AND ORDER
C. Dr. Wozniak’s Medical Opinion
For disability claims filed on or after March 27, 2017, new regulations for evaluation
medical opinion evidence apply. Revisions to Rules Regarding the Evaluation of Medical
Opinion Evidence (Revisions to Rules), 2017 WL 168819, 82 Fed. Reg. 5844, at *5867-68 (Jan
18, 2017). Under those revised regulations, the ALJ no longer “weighs” medical opinions but
instead determines which are most “persuasive.” 20 C.F.R. § 404.1520c(a). The new regulations
eliminate the hierarchy of medical opinions and state that the agency does not defer to any
particular medical opinions, even those from treating sources. Id.; see also Woods v. Kijakazi, 32
F.4th 785, 792 (9th Cir. 2022) (“The revised social security regulations are clearly irreconcilable

with our caselaw according special deference to the opinions of treating and examining
physicians on account of their relationship with the claimant.”). Under the new regulations, the
ALJ primarily considers the “supportability” and “consistency” of the opinions in determining
whether an opinion is persuasive. 20 C.F.R. § 404.1520c(c). Supportability is determined by
whether the medical source presents explanations and objective medical evidence to support his
or her opinions. Id. § 404.1520c(c)(1). Consistency is determined by how consistent the opinion
is with evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(2).
The regulations require ALJs to “articulate . . . how persuasive [they] find all of the
medical opinions” and “explain how [they] considered the supportability and consistency
factors.” Id. § 404.1520c(c)(b). The court must, moreover, continue to consider whether the

ALJ’s analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); Woods, 32 F.4th
at 792 (“Even under the new regulations, an ALJ cannot reject an examining or treating doctor’s
opinion as unsupported or inconsistent without providing an explanation supported by substantial

Page 9 – OPINION AND ORDER
evidence.”). An ALJ may also consider a medical source’s relationship with the claimant by
looking at factors such as the length, purpose, or extent of the treatment relationship, the
frequency of the claimant’s examinations, and whether there is an examining relationship. Id. §
404.1520c(c)(3).
Dr. Wozniak opined that plaintiff can stand and walk for twenty minutes at a time. (Tr.
1052.) In an eight-hour workday, Dr. Wozniak opined that plaintiff can stand for one hour, and
that he would need to lay down frequently due to back pain. (Tr. 1052.) Dr. Wozniak also opined
that plaintiff would be absent from work at least two days a month due to his impairments. (Tr.
1055.) The vocational expert testified that being absent more than one day per month would rule

out competitive employment. (Tr. 46.)
The ALJ was unpersuaded by Dr. Wozniak’s opinion, finding that his opinions were
unsupported by his own objective findings, including that plaintiff presented with a normal gait
during examinations. (Tr. 26, 338, 397-98, 456.) Further, the ALJ explained that Dr. Wozniak’s
opinion was inconsistent with x-ray images of plaintiff’s right hip and pelvis, which
demonstrated only mild degenerative joint disease (Tr. 26, 554, 911-12). Plaintiff challenges that
assessment of Dr. Wozniak’s opinion, arguing that Dr. Wozniak’s opinion is not undermined by
plaintiff’s normal gait and hip x-rays showing bilateral degeneration in both hips. He also asserts
that Dr. Wozniak included more limitations besides the standing, walking, sitting, and lifting
limitations, and that these additional limitations were not addressed by the ALJ. (Pl. Br. at 12-

14).5

5 Plaintiff emphasizes that Dr. Wozniak examined him on more than one occasion and has
been plaintiff’s primary care provider since 2009. The court is unclear what is meant by that
point because, as plaintiff recognizes, new regulations eliminate the hierarchy of medical

Page 10 – OPINION AND ORDER
As to plaintiff’s contention that Dr. Wozniak’s opinion regarding plaintiff’s lifting
limitation is not undermined by the examination findings of plaintiff’s normal gait, it is well-
settled that “an ALJ may not pick and choose evidence unfavorable to the claimant while
ignoring evidence favorable to the claimant.” Ghanim, 763 F.3d at 1164. Although the ALJ
found Dr. Wozniak’s opinion unsupported because plaintiff presented with a “normal gait,” other
examinations, diagnostic imaging, and treatment records reflect a history of thoracic spine
degeneration, lumbar degermation, accompanied by chronic pain and limited range of motion.
(Tr. 316, 323-24, 651, 784.) By selectively relying on evidence unfavorable to plaintiff, and by
failing to reconcile that evidence with examinations more favorable to plaintiff’s position, the

ALJ unreasonably concluded that Dr. Wozniak’s opinion was unsupported by the record.
Likewise, as to the ALJ’s view that Dr. Wozniak’s opinion is inconsistent with plaintiff’s hip x-
ray showing “mild” bilateral degeneration in both hips, the ALJ failed to identify an actual
inconsistency given that plaintiff’s hip degeneration was not a diagnosis Dr. Wozniak relied on
when assessing plaintiff’s limitations.
Plaintiff also contends that Dr. Wozniak identified other impairments based on objective
medical findings that provided a reasonable basis for the assessed limitations. (Pl.’s Br. at 14.)
Dr. Wozniak opined that plaintiff had more than just lifting, standing, walking, and sitting
limitations. (Tr. 1052-54.) Dr. Wozniak gave opinions on plaintiff’s ability to reach, perform
postural activities, and climb ramps and stairs. (Tr. 1052-54.) Dr. Wozniak also opined that

plaintiff would need to take extra breaks, and that the impact of plaintiff’s painful symptoms

opinions and deference to any particular medical opinions, even those from treating sources.
Woods, 32 F.4th at 792.

Page 11 – OPINION AND ORDER
would induce psychological stress thus limiting his ability to adapt, manage, understand,
remember, concentrate, maintain pace, and interact with others. (Tr. 1052-54.) Plaintiff asserts
that the ALJ erred by not fully considering Dr. Wozniak’s opinion that plaintiff needs extra
breaks due to pain, his extreme limitations in his ability to complete a workday, and his likely
absenteeism. (Pl.’s Br. at 14, citing Tr. 1053-55.)
The ALJ addressed only plaintiff’s opined sitting, standing, and walking limitations,
offering a generic explanation of a medical opinion and failing to address all of plaintiff’s
impairments does not afford the court a meaningful opportunity for review. John P. v. Comm’r
Soc. Sec. Admin., 3:21-cv-01482-MK, 2023 WL 2496635, at *4 (D. Or. Mar. 14, 2023)

(explaining that, under the new regulations, “ALJ’s must still provide sufficient reasoning for
federal courts to engage in meaningful appellate review”). The ALJ did not evaluate Dr.
Wozniak’s opinion regarding plaintiff’s other limitations. (Tr. 26.) As discussed previously, the
ALJ discredited Dr. Wozniak’s opinion generally, based on plaintiff’s normal gait and an x-ray
image showing mild degenerative joint disease. (Tr. 26.) That record fails to provide a basis upon
which to discount Dr. Wozniak’s other restrictions. Accordingly, substantial evidence does not
support the ALJ’s reason for finding those opinions not persuasive, and the ALJ has erred.
The Commissioner argues that Dr. Wozniak’s opinion evidence has no merit under Ninth
Circuit precedent, because the opinion evidence “equates to little more than the completion of a
check box form.” (Def.’s Br. at 11.) The court is not persuaded by this argument. An ALJ is not

required to accept the opinion of a physician if it is brief, conclusory, or inadequately supported
by clinical findings. Ford, 950 F.3d at 1154. However, an ALJ errs when he or she “fail[s] to
recognize that the opinions expressed in check-box form . . . [a]re based on significant

Page 12 – OPINION AND ORDER
experience . . . and supported by numerous records.” Garrison, 759 F.3d at 1013. Dr. Wozniak’s
completed a medical source statement predominately in a check-box format. (Tr. 1051-55.)
However, the check-box evaluation is based on significant experience and supported by
numerous records. (Tr. 1051-55.) Those records include: (1) Dr. Wozniak’s own treatment notes,
(2) an MRI of plaintiff’s lumbar spine showing moderate left neural foraminal stenosis with
contact of the inferior aspect of the left exiting L4 nerve root, and an MRI showing disk
protrusion at T2-3. and (3) x-ray images of plaintiff’s hip showing mild to moderate
osteoarthritic changes bilaterally in the hips. (Tr. 313-17, 325-27, 332-34, 339, 359-362, 366-68,
398, 399-424, 571, 756.) Given that the medical source statement is based on significant

experience and supported by numerous records, it is entitled to weight that an otherwise
unsupported check-box form would not merit.
The court concludes that the ALJ’s evaluation of Dr. Wozniak’s opinion is deficient
because the ALJ did not adequately discuss the supportability and consistency factors and failed
to articulate an explanation that is supported by substantial evidence. Woods, 32 F.4th at 792
(holding that an ALJ can “reject an examining or treating doctor’s opinion as unsupported or
inconsistent” if the ALJ “provide[es] an explanation supported by substantial evidence”).
Because the vocational expert testified that the limitations identified would eliminate all work in
the national economy, to not address all the limitations opined by Dr. Wozniak is harmful error.
D. Remedy

A reviewing court has discretion to remand an action for further proceedings or for a
finding of disability and an award of benefits. See, e.g., Burrell v. Colvin, 775 F.3d 1133, 1141
(9th Cir. 2014). Whether an action is remanded for an award of benefit or for further proceedings

Page 13 – OPINION AND ORDER
depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179
(9th Cir. 2000). In determining whether an award of benefits is warranted, the court conducts the
“three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under that analysis, the court
considers whether: (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 claimant disabled on remand. See Dominguez v. Colvin, 808 F.3d 403, 407
(9th Cir. 2015). Even if all 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.” Garrison, 759 F.3d at 1021.
As discussed above, the ALJ erred in discounting plaintiff’s subjective symptom
testimony, the lay witness’ testimony, and finding Dr. Wozniak’s medical opinion unpersuasive.
Thus, the first requisite of the credit-as-true analysis is met. As to the second requisite, the Ninth
Circuit has held that remanding for proceedings rather than for an immediate payment of benefits
serves a useful purpose where “the record has [not] been fully developed [and] there is a need to
resolve conflicts and ambiguities.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
1101 (9th Cir. 2014) (internal quotations and citation omitted). Here, the record would benefit
from further development, particularly with respect to plaintiff’s medical records. At the hearing,
plaintiff alleged that he could not work for more than five minutes at a time and that he has to lie

down for four to six hours in the morning while he waits for his pain medication to work. (Tr. 22,
48, 56.) The severity of plaintiff’s allegations conflict with certain aspects of the medical record.
For example, in October 2019, Dr. Robert Foege, M.D. stated that plaintiff had relatively modest

Page 14 – OPINION AND ORDER
anatomical findings on imaging, and that the data does not explain his severe level of pain and
disability. (Tr. 316.) Furthermore, the record also is unclear regarding how much plaintiff
benefitted from treatment. His pain intervention history shows that his most recent treatment in
January 2018 provided excellent relief in some areas, yet he still had persistent right thoracic
pain. (Tr. 759.) Therefore, remanding for further proceedings would serve a useful purpose. On
remand, the ALJ must: (1) reassess plaintiff’s subjective symptom testimony and lay witness
testimony de novo and accept the limitations described therein or provide specific, clear and
convincing reasons for their rejection; (2) conduct a de novo review of the medical opinion
evidence, including the medical opinion of Dr. Wozniak, and any other medical evidence
plaintiff may choose to submit in support of his application and; (3) conduct any further
necessary proceedings to complete the record, including offering a new hearing with vocational
expert testimony and making a step-five findings if required, and issue a new decision.
Dominguez, 808 F.3d at 410.
CONCLUSION
For the above reasons, the court REVERSES the Commissioner’s final decision and
REMANDS this case for further proceedings/an immediate award of benefits.
IT IS SO ORDERED.
DATED June 6, 2023.
tile,
United States Magistrate Judge

Page 15 — OPINION AND ORDER

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396048. Public record. Not legal advice.