# Morris v. Commissioner Social Security Administration

> District Court, D. Oregon · June 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10396163

## Case

- **Court:** District Court, D. Oregon
- **Decided:** June 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TIFFANY M.,1 No. 6:22-cv-00850-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

Defendant.

Katherine Eitenmiller
Brent Wells
Wells, Manning, Eitenmiller & Taylor, P.C.
474 Willamette Street
Eugene, OR 97401

Attorneys for Plaintiff

Kevin C. Danielson
Assistant United States Attorney
1000 S.W. Third Avenue
Suite 600
Portland, OR 97204

Jacob Phillips
Social Security Administration
Office of the General Counsel
6401 Security Boulevard
Baltimore, MD 21235

Attorneys for Defendant

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. Where applicable, this Opinion uses the
same designation for a non-governmental party’s immediate family member.
HERNÁNDEZ, District Judge:

Plaintiff Tiffany M. brings this action seeking judicial review of the Commissioner’s
final decision to deny disability insurance benefits (“DIB”) and supplemental security income
(“SSI”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g)(incorporated by 42 U.S.C. §
1383(c)(3)). The Court reverses the Commissioner’s decision and remands this case for payment
of benefits.
PROCEDURAL BACKGROUND
Plaintiff applied for SSI and DIB on March 7, 2017, alleging an onset date of July 30,
2016. Tr. 142.2 Her applications were denied initially and on reconsideration.
On January 17, 2019, Plaintiff appeared with counsel for a hearing before an
Administrative Law Judge (“ALJ”). Tr. 52-70. On February 21, 2019, the ALJ found Plaintiff
not disabled. Tr. 139-57. The Appeals Council remanded the matter to the ALJ to review
Plaintiff’s residual functional capacity (“RFC”), to obtain updated information concerning
Plaintiff’s impairments, and to obtain evidence from a medical expert. Tr. 159-60.
On November 23, 2020, Plaintiff appeared with counsel for a hearing on remand.
Tr. 39-51. On March 29, 2021, Plaintiff appeared with counsel for a continued hearing on
remand. Tr. 71-114. On April 20, 2021, Plaintiff amended her alleged onset date to January 1,
2018. Tr. 404. On May 27, 2021, the ALJ found Plaintiff not disabled from January 1, 2018,
through the date of the ALJ’s decision, and, therefore, not entitled to benefits. Tr. 51-31. On
June 13, 2022, Plaintiff appealed the ALJ’s decision to this Court.

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative
record, filed herein as Docket No. 8.
FACTUAL BACKGROUND
Plaintiff alleges disability due to bi-polar disorder. Tr. 115. At the time of her amended
alleged onset date, Plaintiff was 48 years old. Tr. 214. Plaintiff has a college degree. Tr. 409.
Plaintiff has past relevant work experience as a cashier. Tr. 29.
SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine
v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the ultimate burden of proving disability.
Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. § 404.1520(b). In step two, the Commissioner determines whether the
claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S.
at 140–41; 20 C.F.R. § 404.1520(c). If not, the claimant is not disabled. Id.
In step three, the Commissioner determines whether the claimant’s impairments, singly
or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. § 404.1520(d). If so, the claimant is conclusively presumed disabled; if not, the
Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”
20 C.F.R. § 404.1520(e). If the claimant can perform past relevant work, the claimant is not
disabled. If the claimant cannot perform past relevant work, the burden shifts to the
Commissioner. In step five, the Commissioner must establish that the claimant can perform other

work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. § 404.1520(e)–(f). If the Commissioner meets
their burden and proves that the claimant can perform other work that exists in the national
economy, then the claimant is not disabled. 20 C.F.R. § 404.1566.
THE ALJ’S DECISION
At step one, the ALJ found Plaintiff engaged in substantial gainful activity (“SGA”) in
2019 and 2020. Tr. 18. Nevertheless, the ALJ noted Plaintiff’s “earnings in 2018 were below
SGA levels,” and, therefore, there “has been a continuous 12-month period(s) during which
[Plaintiff] did not engage in [SGA].” Tr. 19. Accordingly, the ALJ continued with the analysis.
At steps two and three, the ALJ determined Plaintiff has the following severe impairments:

“obesity; diabetes mellitus; myofascial pain; renal disease; depressive disorder; anxiety disorder;
personality disorder; and peripheral neuropathy.” Id. The ALJ, however, determined that
Plaintiff’s impairments do not meet or medically equal the severity of a listed impairment during
the relevant period. Tr. 20. The ALJ concluded Plaintiff has the RFC to perform light work as
defined in 20 C.F.R. § 404.1567(b) except:
[She] can occasionally climb ramps and stairs but never climb ladders, ropes, or
scaffolds. The claimant can occasionally stoop, kneel, crouch, and crawl. The
claimant can tolerate occasional exposure to workplace hazards such as
unprotected heights and exposed, moving machinery. The claimant can perform
simple, routine tasks consistent with a reasoning level of one or two. The claimant
can tolerate occasional contact with coworkers, supervisors, and the general
public. The claimant cannot engage in team-based work or work requiring close
collaboration. The claimant can tolerate occasional changes to work routines and
processes. The claimant cannot engage in work that involves strict time pressures,
such as conveyor belt work or work involving timed production quotas.

Tr. 23. At step four, the ALJ concluded Plaintiff cannot perform her past relevant work. Tr. 29.
At step five, the ALJ concluded Plaintiff can perform other work in the national economy.
Tr. 30. The ALJ, therefore, concluded that Plaintiff is not disabled. Tr. 30.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings “are based on legal error or are not supported by substantial evidence
in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)(internal
quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a
whole, including both the evidence that supports and detracts from the Commissioner’s decision.
Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is
susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”
Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)(“Where the evidence as a whole can support either a
grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s”)(internal quotation
marks omitted).
DISCUSSION

Plaintiff contends the ALJ erred when he (1) partially rejected the opinions of Leah
Wright, LCSW; Maggie Drake, NP; and Stephen Rubin, Ph.D.; (2) partially rejected Plaintiff’s
testimony; and (3) partially rejected the lay-witness statements of Plaintiff’s mother, Judith T.
I. Medical Source Evidence
Plaintiff contends the ALJ erred when he gave “limited weight” to the opinions of
NP Drake, LCSW Wright, and Dr. Rubin.
A. Standards
Medical sources are divided into two categories: "acceptable" and "not

acceptable." 20 C.F.R. § 416.902. Acceptable medical sources include licensed physicians and
psychologists. 20 C.F.R. § 416.902. Medical sources classified as "not acceptable" include, but
are not limited to, nurse practitioners, therapists, licensed clinical social workers, and
chiropractors. SSR 06-03p, at *2. The Social Security Administration notes:
[M]edical sources who are not acceptable medical sources, such as nurse
practitioners, physician assistants, and licensed clinical social workers,
have increasingly assumed a greater percentage of the treatment and
evaluation functions previously handled primarily by physicians and
psychologists. Opinions from these medical sources, who are not
technically deemed acceptable medical sources under our rules, are
important and should be evaluated on key issues such as impairment
severity and functional effects, along with the other relevant evidence in
the file.

SSR 06-03p, at *3. Factors the ALJ should consider when determining the weight to give an
opinion from those non-acceptable medical sources include: the length of time the source has
known the claimant and the number of times and frequency that the source has seen the claimant;
the consistency of the source's opinion with other evidence in the record; the relevance of the
source's opinion; the quality of the source's explanation of his opinion; and the source's training
and expertise. SSR 06-03p, at *4. On the basis of the particular facts and the above factors, the
ALJ may assign a not-acceptable medical source either greater or lesser weight than that of an
acceptable medical source. SSR 06-03p, at *5-*6. The ALJ, however, must explain the weight
assigned to such sources to the extent that a claimant or subsequent reviewer may follow the
ALJ's reasoning. SSR 06-03p, at *6.
With respect to “acceptable” medical sources social security law recognizes three
types of physicians: (1) treating, (2) examining, and (3) nonexamining. Garrison v. Colvin, 759
F.3d 995, 1012 (9th Cir. 2014). For applications filed before March 27, 2017, generally, more

weight is given to the opinion of a treating physician than to the opinion of those who do not
actually treat the claimant. Id.; 20 C.F.R. § 404.1527(c)(1)-(2). More weight is given to an
examining physician than to a nonexamining physician. Garrison, 759 F.3d at 1012. A
nonexamining physician is one who neither examines nor treats the claimant. Lester v. Chater,
81 F.3d 821, 830 (9th Cir. 1996). "The opinion of a nonexamining physician cannot by itself
constitute substantial evidence that justifies the rejection of the opinion of either an examining
physician or a treating physician." Id. at 831. A nonexamining physician's opinion can constitute
substantial evidence if it is supported by other evidence in the record. Morgan v. Comm'r of Soc.
Sec. Admin, 169 F.3d 595, 600 (9th Cir. 1999).

B. NP Drake
On November 20, 2018, NP Drake completed a letter in which she noted she
began treating Plaintiff on July 20, 2016 and sees Plaintiff every four months for “medication
maintenance.” Tr. 1137. Drake stated Plaintiff suffers from panic attacks, anxiety, and
“depressed mood which inhibits her from working a full-time job.” Id. Drake noted Plaintiff is
able to work part-time with “the assistance of medications,” but that working more than part time
would “likely cause an exacerbation in her symptoms, worsening anxiety, mood, and panic
attacks.” Id.
The ALJ gave Drake’s opinion “limited weight” stating Drake’s “interactions
with [Plaintiff], as well as her opportunity to observe [Plaintiff’s] presentation are relatively
limited.” Tr. 26. The ALJ also stated Drake’s treatment notes indicate Plaintiff has only
moderate impairments, which is inconsistent with Drake’s opinion but consistent with the RFC.
Finally, the ALJ noted the limitations assessed by Drake are “entirely inconsistent” with her

August 20, 2019, treatment note in which Drake stated Plaintiff “continues to work once a week
at Taco Time but is now a caregiver for her mother through the state,” but Plaintiff reported
“generally . . . doing well, ‘over the past year I have been more upbeat, more positive, easier to
get along with. I haven’t had a big blow-up with anybody in over a year.’” Tr. 1632. Plaintiff
denied “any recent panic attacks and states that alprazoiam continues to help.” Id.
The record reflects Drake had been treating Plaintiff for more than two years at
the time she provided her opinion. Drake saw Plaintiff every four months for a total of six to
eight visits, each lasting approximately 30 to 40 minutes. Drake, therefore, did not have a
“limited” treating relationship with Plaintiff. In addition, although Drake’s treatment notes

occasionally reflect that Plaintiff’s medications were helpful, they also indicated Plaintiff
continued to suffer serious mental-health symptoms. For example, in February 2018 Plaintiff
reported she had been “calm, not screaming and yelling,” her overall mood was “pretty good,”
and she was “sleeping well.” Tr. 1317. Plaintiff, however, also reported she had been “crying
every night . . . for months.” Id. In October 2018 Plaintiff stated that she “continued to work at
Taco Time,” and found her medications “continue[d] to be helpful for her mood an anxiety.” Tr.
1321. Nevertheless, Drake noted Plaintiff “has experiences [sic] moments of anger, rage, [and]
anxiety.” Tr. 1321. In February 2019 Plaintiff reported continuing trouble sleeping and waking
“feeling exhausted in the morning.” Tr. 1579. Finally, although the ALJ noted Drake’s opinion
was “entirely inconsistent with” her August 2019 chart note, the record also contains numerous
other chart notes in which Plaintiff experienced depression, anxiety, increased panic attacks, low
energy, low mood, irritability, feelings of hopelessness, flashbacks, and passive thoughts of
suicide as well as “crying spells” that lasted two or three days. See, e.g., Tr. 1675, 1711, 1772,
1778, 1864, 1873, 1887, 1897.

The Court concludes the ALJ erred when he gave limited weight to Drake’s
opinion because the ALJ did not provide substantial and legitimate reasons for doing so based on
substantial evidence in the record.
B. LCSW Wright
On October 14, 2020, Wright completed a social security report in which she
noted Plaintiff had been her patient since July 2019 and she saw Plaintiff twice a month for
individual therapy sessions. Tr. 1808. Wright noted Plaintiff suffers from a mood disorder,
generalized anxiety disorder with panic attacks, and PTSD. Plaintiff’s symptoms include “mood
lability; sudden, difficult to control crying spells on a nearly daily-basis; anger outbursts; low

motivation and fatigue; lack of interest in daily activities; dysphoria; depression; feelings of
hopelessness and worthlessness; hyper-vigilance and flashbacks; ruminating thoughts; insomnia;
panic; trouble concentrating.” Id. Wright stated “limits to [Plaintiff’s] functioning and ability to
engage in the workplace” include “difficulty maintaining a work schedule as a result of
depression, ruminating thoughts and associated insomnia with significant fatigue; interpersonal
difficulties and difficulty collaborating with others due to mood lability and severe anxiety” and
concluded Plaintiff’s “mental health symptoms significantly impair her ability to both seek and
maintain gainful employment.” Id.
On March 17, 2021, Wright completed a social security benefits questionnaire in
which she noted Plaintiff’s “clinical symptoms” include:
mood lability; sudden and difficult to control crying spells; anger
outbursts; irritability; low motivation and fatigue; lack of interest in daily
activities; dysphoria; depression, feelings of hopelessness and
worthlessness; hyper-vigilance; ruminating thoughts; sleep
disturbances; panic; flashbacks and intrusive thoughts related to trauma;
difficulty concentrating; difficulty attending to activities of daily
living/basic tasks due to poor concentration/attention as a result of high
anxiety and depression; anhedonia; diminished ability to concentrate and
make decisions.

Tr. 1830. Wright noted “limits to [Plaintiff’s] functioning and ability to engage in the workplace”
include “significant fatigue and difficulty maintaining a work schedule as a result of depression,
ruminating thoughts and associated sleep disturbances due to depression and PTSD;
interpersonal difficulties and difficulty collaborating with others due to mood lability and severe
anxiety.” Id. Wright concluded Plaintiff’s mental-health conditions “would likely interfere with
her ability to sustain even a simple routine in a low stress job, even if it does not require frequent
interactions with others” because “[t]he severe impairment she experiences, particularly due to
depression and anxiety, negatively impacts her ability to maintain a basic routine, concentrate on
simple tasks, or make seemingly straight-forward decisions under even limited pressure.” Id.
Wright also completed a Medical Source Statement in which she noted Plaintiff’s symptoms of
“impaired concentration and attention due to severe depression, anxiety, [and] PTSD” would
“preclude[] performance for 15% or more of a 7.5 hour work day.” Tr. 1833. In addition,
Plaintiff’s “severe anxiety, poor sleep + associated fatigue, severe depression resulting in low
energy/impaired motivation, [and] PTSD symptoms causing significant emotional distress”
would “cause a need to miss” more than four days of work per month. Tr. 1833-34.
The ALJ gave Wright’s opinion limited weight on the bases that Wright’s
treatment notes did not support “the extreme limitations offered” and the opinion is inconsistent
with the record as a whole including the fact that Plaintiff provided health-care assistance to her
mother. The ALJ noted, for example, that on December 2, 2020 Plaintiff reported she was
“sleeping a lot better” and felt that the changes in her psychiatric medication had been

“beneficial.” Tr. 1855. The remainder of that chart note, however, reflects Plaintiff “remain[ed]
overwhelmed with the day to day tasks of taking care of her elderly mother,” cried every
morning, and continued to have difficulties with depression and anxiety. Id. On December 23,
2020, Plaintiff reported having a “reduction in nightmares,” but an increase in panic attacks and
flashback episodes “related to her ex-husband.” Tr. 1864. On January 31, 2021, Plaintiff reported
“feel[ing] . . . in an emotional space where she feels she can manage her symptoms,” that she
was “managing her symptoms relatively well, . . . getting more sleep, and getting up earlier and
feeling more productive.” Tr. 1873. On February 10, 2021, however, Wright reported Plaintiff
“generally . . . continu[es] to find the morning quite difficulty [sic], often waking up crying and

crying for a few hours every morning.” Tr. 1897. The record also reflects Plaintiff regularly
reported daily crying spells with heightened anxiety and daily panic attacks. Tr. 1772, 1855,
1897. Plaintiff “catastrophize[d] and “perseverate[d]” on what was not going well in her life. Tr.
1797, 1855, 1872-73, 1898. In addition, despite ongoing treatment with Wright and complying
with medication, Plaintiff experienced an increase in panic/flashback episodes and frequently
presented as tearful, with a depressed/dysphoric and anxious mood. Tr. 1751, 1773, 1797, 1864,
1873, 1898.
The Court concludes the ALJ erred when he gave limited weight to Wright’s
opinion because the ALJ did not provide substantial and legitimate reasons for doing so based on
substantial evidence in the record
C. Dr. Rubin
Dr. Rubin was called as a medical expert at the March 2021 hearing. He testified

that he had reviewed Plaintiff’s medical record and noted that although “it would be nice to have
a full psychological or psychiatric evaluation . . . [he] did find a lot of information” from which
he could offer an opinion. Tr. 85. Dr. Rubin opined Plaintiff suffers from a depressive disorder,
an anxiety disorder, and PTSD. Id. Dr. Rubin testified that he did not “see . . . evidence
supporting the depression disorder or the anxiety disorder as being severe.” Tr. 86. Dr. Rubin
noted “they are certainly troublesome[,] . . . [but] they are somewhat manageable [with]
medication and counseling.” Id. Dr. Rubin noted, however, that Plaintiff’s PTSD “requires very
specific treatment, I don’t see at this point successful treatment of [it], so it’s still an active
process and causes her a lot of unhappiness.” Tr. 86. Dr. Rubin stated Plaintiff’s PTSD is severe

and “would cause significant difficulties in working eight hours a day, five days a week.” Id.
Dr. Rubin conceded Plaintiff was working part time at Taco Time and taking care of her mother,
but noted that “from all the evidence that I have . . . [Plaintiff] can’t sustain the attention and
concentration which would be required eight hours a day.” Tr. 88. Dr. Rubin noted he did not
“think [Plaintiff] could stay on task eight hours a day.” Id. Dr. Rubin also opined Plaintiff’s
PTSD would cause her to miss more than four days of work per month and that “even [with] a
simple, routine [job] she would be off task more than 15%.” Tr. 87-88.
The ALJ gave Dr. Rubin’s opinion limited weight. The ALJ noted Dr. Rubin
relied on Wright’s treatment notes in reaching his opinion, but in September 2020 Wright
described Plaintiff has having only a history of PTSD and stated it was well-managed. Tr. 1748.
The record, however, reflects that in later treatment notes Wright included PTSD as a current,
ongoing problem. See, e.g., Tr. 1785, 1789, 1852, 1856, 1870, 1895. In addition, in January
2021, Plaintiff discussed with Wright reducing her therapy sessions because she did not “feel[]
. . . that she could explore her trauma history,” while also dealing with anxiety related to her

social security application “court date.” Tr. 1873. The record also reflects that Plaintiff
experienced an increase in panic attacks and flashbacks related to her PTSD. Tr. 1864, 1873.
On this record the Court concludes the ALJ erred when he gave limited weight to
Dr. Rubin’s opinion because the ALJ did not provide clear and convincing reasons for doing so
based on substantial evidence in the record.
II. Subjective Symptom Testimony
Plaintiff alleges the ALJ erred when he partially rejected Plaintiff’s testimony.
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL
5180304, at *1 (Oct. 25, 2017). “The ALJ ‘engages in a two-step analysis to determine whether a

claimant's testimony regarding subjective pain or symptoms is credible.’” Putz v. Kijakazi, No.
21-35733, 2022 WL 6943095, at *2 (9th Cir. Oct. 12, 2022)(quoting Garrison v. Colvin, 759
F.3d 995, 1014 (9th Cir. 2014)). First the ALJ determines “whether the claimant has presented
objective medical evidence of an underlying impairment [that] could reasonably be expected to
produce the pain or other symptoms alleged.” Putz, 2022 WL 6943095, at *2 (quotation
omitted). The claimant need not show the “impairment could reasonably be expected to cause the
severity of the symptom . . . alleged; [the claimant] need only show that it could reasonably have
caused some degree of the symptom.” Garrison, 759 F.3d at 1014 (quotation omitted). “If the
claimant satisfies the first step of this analysis, and there is no evidence of malingering, the ALJ
can reject the claimant's testimony about the severity of her symptoms only by offering specific,
clear[,] and convincing reasons for doing so.” Putz, 2022 WL 6943095, at *2 (quotation
omitted). See also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)(same).
When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)(quotation omitted). “An ALJ does not

provide specific, clear, and convincing reasons for rejecting a claimant’s testimony by simply
reciting the medical evidence in support of his or her residual functional capacity determination.”
Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Instead, “the ALJ must specifically
identify the testimony she or he finds not to be credible and must explain what evidence
undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001); see also
Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)(The reasons proffered must be “sufficiently
specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discount the
claimant’s testimony.”).
On June 7, 2017, Plaintiff completed an Adult Function Report in which she noted she

has days when she cannot leave the house, her anxiety “sometimes makes [her] feel . . . like [she]
wants to scream and tear [her] skin off,” she does not sleep well due to nightmares, she wears the
same thing “for days,” bathes once a week, brushes her hair once a week, she goes to the grocery
store two-to-five times per week, does not balance her checkbook, gets distracted easily, has
been fired “from many jobs,” and sometimes feels suicidal. Tr. 428-35.
At the March 29, 2021, hearing Plaintiff testified she had to reduce the number of hours
per day that she took care of her mother from four hours to two hours per day because she has
“flashbacks . . . every hour and [she] has to remove [herself] to be alone because [she does not]
want [her] family to know what happened to me and with the whole me too movement brought
up a bunch of stuff.” Tr. 83. Plaintiff stated she gets paid by the state to be her mother’s
caregiver, but she has “never used the max hours because [she] can’t.” Tr. 103. Nevertheless,
Plaintiff lives with her mother and her mother is “an amputee [with] . . . lots of medical issues so
if she need[s] something . . . [Plaintiff] would do [her] best to help.” Tr. 102. Plaintiff noted that
“with COVID going on” she and her mother are “kind of nervous about [having other people
help with her mother] so [Plaintiff is] just doing the best [she] can, but . . . [she] Just can’t do
four hours a day.” Tr. 103. Plaintiff noted that the “supplemental” things that she does for her
mother outside of the two hours per day that Plaintiff is paid to be her mother’s caretaker include
wound care and grocery shopping, but she is unable to scrub floors. Tr. 103-4.
The ALJ found Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms,” but Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not entirely consistent with the medical
evidence and other evidence in the record.” Tr. 24. The ALJ noted that in contrast to Plaintiff's
assertion that she bathes and combs her hair only once a week, no treatment notes indicated poor
grooming or issues with hygiene. In addition, Plaintiff was able to work part time at Taco Time
and to also care for her mother. Plaintiff indicated she has trouble interacting with the public and
coworkers, but she has successfully worked at Taco Time as a cashier, a position that requires
high public contact. In addition, treating psychologist Lindsey King repeatedly noted Plaintiff
was able “to make appropriate social connections even when her “mood was reported and
observed to be anxious and depressed.” See, e.g., Tr. 1248, 1253, 1255. Dr. King reported in
January 2018 that Plaintiff completed the Personality Assessment Inventory (“PAT”) “without
difficulty. Tr. 1244. Dr. King noted Plaintiff “engaged in negative impression management. Her

15 — OPINION & ORDER

responses indicate that she may have attempted to portray herself in a negative or pathological
manner in particular areas. Her scale elevations need to be interpreted with caution.” Id.
The Court concludes on this record that the ALJ did not err when he partially rejected
Plaintiff’s testimony regarding the intensity, persistence, and limiting effects of her symptoms
because the ALJ provided clear, and convincing reasons supported by substantial evidence in the

record for doing so.
III. Lay Witness Statement
Lay-witness testimony regarding a claimant's symptoms is competent evidence that the
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).
The ALJ's reasons for rejecting lay-witness testimony must also be "specific." Stout v. Comm’r,
454 F.3d 1050, 1054 (9th Cir. 2006).
On September 6, 2017 Plaintiff’s mother, Judith T., completed a Third-Party Adult
Function Report in which she stated Plaintiff has “difficulty communicating with others which

leads to frustration + anger problems.” Tr. 452. Judith T. noted Plaintiff does not sleep well and
is “exhausted during the day,” showers once a week, wears the “same clothes for weeks without
washing,” “does not communicate with family members,” does not socialize, has been fired from
“most jobs,” cries daily, and does not handle stress well.
The ALJ gave some weight to Judith T.’s statements. Judith T.’s statements are
substantially similar to Plaintiff’s testimony. The Court has already concluded the ALJ did not
err when he partially rejected Plaintiff’s testimony because the ALJ provided support for his
opinion based on substantial evidence in the record. The Court also concludes on the same basis
that the ALJ did not err when he partially rejected Judith T.’s statement.
IV. Remand
The decision whether to remand for further proceedings or for immediate payment of
benefits generally turns on the likely utility of further proceedings. Harman v. Apfel, 211 F.3d
1172, 1179 (9th Cir. 2000). When "the record has been fully developed and further
administrative proceedings would serve no useful purpose, the district court should remand for

an immediate award of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).
Generally, the decision whether to remand for further proceedings or for immediate
payment of benefits is within the discretion of the Court. Strauss v. Comm'r, 635 F.3d 1135,
1137 (9th Cir. 2011). The Ninth Circuit, however, has established a limited exception to this
general rule. Id. at 1138. Under the limited exception, the Court must grant an immediate award
of benefits when:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting
such evidence, (2) there are no outstanding issues that must be resolved
before a determination of disability can be made, and (3) it is clear from
the record that the ALJ would be required to find the claimant disabled
were such evidence credited.

Id. The second and third prongs of the test often merge into a single question: Whether the ALJ
would have to award benefits if the case were remanded for further proceedings. Harman v.
Apfel, 211 F.3d 1172, 1178 n.2 (9th Cir. 2000).
The Court has determined the ALJ erred when he improperly rejected the opinions of
NP Drake, LCSW Wright, and Dr. Rubin. As noted, LCSW Wright opined that Plaintiff would
be off task more than 15% of the workday and miss more than four days of work per month.
Dr. Rubin testified that Plaintiff’s PTSD would cause her to miss more than four days of work
per month and that “even [with] a simple, routine [job] she would be off task more than 15%.”
Tr. 87-88. At the hearing the vocational expert (“VE”) testified that missing four days of work
per month or being off task more than fifteen percent of the workday would preclude competitive
employment. Tr. 108, 110. After giving this evidence the effect required by law, the Court finds
Plaintiff cannot work on a regular and continuing basis and, therefore, is disabled. See 20 C.F.R.
§§ 404.1545(b), 416.945(b)(RFC is ability to work on “regular and continuing basis”). See also
SSR 96-8p (“regular and continuing basis” is “8 hours a day, for 5 days a week, or an equivalent

work schedule”). The Court, therefore, concludes this matter should not be remanded for further
proceedings. Accordingly, the Court remands this matter for the purpose of permitting the
Commissioner to calculate and to award benefits.
CONCLUSION
Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED
for immediate payment of benefits.
IT IS SO ORDERED.

DATED:_______J_u_n__e_ 2_8_,_ 2__0_2_3____

__________________________________
MARCO A. HERNÁNDEZ
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396163. Public record. Not legal advice.