Beal v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ROY B.,1

Plaintiff, Civ. No. 1:22-cv-00843-MC

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

denying his application for disability insurance benefits. This court has jurisdiction under 42

U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff filed an application for benefits on August 29, 2019, ultimately alleging

disability as of July 1, 2018. Tr. 13.2 After the first hearing, the Administrative Law Judge

(“ALJ”) determined Plaintiff was not disabled under the Social Security Act (the “Act”). Tr. 13–

22. Plaintiff argues the ALJ erred in rejecting his subjective symptom testimony, in finding the

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.

2 “Tr” refers to the Transcript of Social Security Administrative Record provided by the

Commissioner.

medical opinion of Scott Ross, PA-C, unpersuasive, and in improperly rejecting lay witness

testimony. Because the ALJ erred, and because the record is fully developed and requires a

finding that Plaintiff is disabled as of July 1, 2018, the Commissioner’s decision is REVERSED

and this matter is REMANDED for calculation of benefits.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on

proper legal standards and the legal findings are supported by substantial evidence in the record.

See 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004); Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). “Substantial evidence is ‘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.’” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.

2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether

substantial evidence exists, the court reviews the administrative record as a whole, weighing both

the evidence that supports and that which detracts from the ALJ’s conclusion. Davis v. Heckler,

868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.

1986)). “‘If the evidence can reasonably support either affirming or reversing,’ the reviewing

court ‘may not substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of

Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715,

720–21 (9th Cir. 1996)).

DISCUSSION

The Social Security Administration utilizes a five-step sequential evaluation to determine

whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden

of proof rests on the claimant for steps one through four, and on the Commissioner for step five.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d

1094, 1098 (9th Cir. 1999)). At step five, the Commissioner’s burden is to demonstrate that the

claimant can make an adjustment to other work existing in significant numbers in the national

economy after considering the claimant’s residual functional capacity (“RFC”), age, education,

and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this

burden, then the claimant is considered disabled. Id. If, however, the Commissioner proves that

the claimant is able to perform other work existing in significant numbers in the national

economy, the claimant is not disabled. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.

2001).

The ALJ determined Plaintiff had the following severe impairments: left meralgia

paresthesia; mild lumbar spine degenerative disc disease, and mild degenerative joint disease of

the right hand. Tr. 15. The ALJ found that Plaintiff had the RFC to perform light work with a

limitation to frequently handle and finger with the right hand. Tr. 17.

I. Subjective Symptom Testimony

Plaintiff contends the ALJ erred in discounting his subjective statements about his

limitations. To determine whether a claimant’s testimony about subjective pain or symptoms is

credible, an ALJ performs a two-stage analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir.

2017); 20 C.F.R. § 416.929. First, 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). Second, absent affirmative evidence that the

claimant is malingering, the ALJ must provide specific, clear and convincing reasons for

discounting the claimant’s testimony regarding the severity of the symptoms. Trevizo, 871 F.3d

at 678; 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 Ninth Circuit demands more than a summary of the medical evidence and

generic, high-level reasons why a claimant’s allegations conflict with that evidence. Lambert v.

Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). The Ninth Circuit “requires the ALJ to specifically

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

undermines that testimony.” Id.; Brown-Hunter, 806 F.3d at 494.

Clear and convincing reasons for rejecting a claimant’s testimony “include conflicting

medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the

claimant’s testimony or between her testimony and her conduct, daily activities inconsistent with

the alleged symptoms, and testimony from physicians and third parties about the nature, severity

and effect of the symptoms” about which the claimant complains. Bowers v. Astrue, No. 11-cv-

583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti, 533 F.3d at 1040);

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013). In some circumstances, an ALJ may

reject subjective complaints where the claimant's “statements at her hearing do not comport with

objective medical evidence in her medical record.” Bray v. Comm’r of Soc. Sec. Admin., 554

F.3d 1219, 1227 (9th Cir. 2009). However, a lack of objective evidence may not be the sole basis

for rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th

Cir. 2001).

At the hearing, Plaintiff testified that he is constantly in pain, that he is unable to engage

in too much movement over a long period of time, that he suffers from the side effects of his

many medications, such as fatigue and blurred vision, as well as from memory loss. Tr. 51. He

testified that he can only walk for ten or fifteen minutes before he must rest, that he can only sit

for fifteen or twenty minutes, and he can comfortably lift or carry up to ten pounds. Tr. 53.

Plaintiff also testified that while he can dress and bathe himself independently, he has bars in his

shower to hold onto and he has difficulty putting on his socks. Tr. 54. When asked about his

daily activities, he testified that he can do some dishes, sweep, or go to the grocery store for a

few items, but will have to lie down for part of the day to recover due to pain his left leg. Tr. 54–

55. When asked about his need to lie down, he testified to needing to do so up to three times a

day for twenty to forty-five minutes at a time. Tr. 55. Even when done in concert with taking

gabapentin, it does not relieve his symptoms, but it does help. Tr. 55–56. Plaintiff also testified

that along with pain, he also experiences numbness from his left hip to his left knee and has

swelling in both extremities from his feet to his knees. Tr. 56. The pain begins as pressure, turns

into pain, then escalates. Tr. 57. To alleviate the swelling, Plaintiff testified to taking Lasix and

elevating his legs throughout the day. Tr. 57. Plaintiff also testified that if he were in a work

setting, he would need to elevate his legs for half of the day. Tr. 57. Plaintiff also experiences

back pain he rates as a six or seven out of ten, that the pain gets worse when he has to stoop,

crouch, or crawl, and that he gets dizzy when climbing ladders. Tr. 59–60. When asked about his

mental health, Plaintiff testified to suffering from insomnia exacerbated by his pain, from anxiety

for which he takes Zoloft, and that he would not be able to handle the stress, pressure, or

criticism of a work environment. Tr. 60–61. Lastly, Plaintiff testified that he would have

difficulty maintaining attention and concentration for even two hours at a time in an eight-hour

workday. Tr. 63.

The ALJ determined that Plaintiff’s “statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely consistent with the medical evidence and

other evidence in the record.” Tr. 18. The ALJ discounted Plaintiff’s subjective symptom

complaints because they conflicted with the objective medical evidence in the record and were

inconsistent with his activities of daily living.

1. Daily Living

An ALJ may rely on daily living activities as a basis for discounting subjective symptoms

if the claimant’s activities contradict his testimony or meet the threshold for transferable work

skills. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn v. Astrue, 495 F.3d 625,

639 (9th Cir. 2007). For daily activities to discount subjective symptom testimony, the activities

need not be equivalent to full-time work; it is enough that the claimant’s activities “contradict

claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. Claimants do not,

however, need to be utterly incapacitated to receive disability benefits, and an ability to complete

certain routine activities is insufficient to discount subjective symptom testimony. See id. at

1112-13 (noting that a “claimant need not vegetate in a dark room in order to be eligible for

benefits” (quotation marks omitted)).

The ALJ discounted Plaintiff’s subjective symptom testimony because he “was still able

to engage in a variety of activities consistent with light work, and inconsistent with constant

pain,” such as being “able to drive, shop, and perform some household chores.” Tr. 19, citing Tr.

253, 281–87. However, the ALJ did not explain how these activities undermine his testimony,

nor how they are consistent with light work. Because the ALJ did not explain her reasoning, this

fails to provide a specific, clear and convincing basis upon which to discount Plaintiff’s

subjective symptom testimony. See Felicia F. P. v. Comm’r Soc. Sec. Admin., Case No. 3:21-cv-

00889-AR, 2023 WL 1991530, at *3 (D. Or. Feb. 14, 2023).

\ \ \ \ \

2. Conflicting with Medical Records

The ALJ discounted Plaintiff’s subjective symptom testimony based on alleged conflicts

with the medical record. 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).

The ALJ found that Plaintiff’s allegations are inconsistent because “objective findings on

examination, in addition to mild or unremarkable findings on testing, during most of the relevant

period, have been fairly mild.” Tr. 18. An independent review of the record does not support the

ALJ’s assessment.

Plaintiff first tested positive for left Meralgia Paresthetica in May 2018, before his

alleged onset date. Tr. 307. Plaintiff was experiencing burning pain from his left thigh to his

knee, aggravated by wearing a toolbelt and climbing ladders, but with no low back pain radiating

down his legs and no right-side symptoms. Tr. 307. Plaintiff’s nerve conduction testing also

returned normal results. Tr. 309, 311. In July 2018, Plaintiff reported constant pain at 3/10, but

that pain increases intermittently. Tr. 353. In August 2018, after his alleged onset date, he was

diagnosed with persistent hypesthesia that becomes shooting pain and interferes with his sleep,

though he denied weakness in his legs and had 5/5 strength in his lower extremities. Tr. 314–15.

In December 2018, Plaintiff underwent an independent medical evaluation confirming a left

lateral femoral cutaneous nerve neuropathy, resulting in reported pain and numbness from left

thigh to knee that are constant. Tr. 335–36. Plaintiff rated the pain a 4/10 on average, but

worsened when aggravated with prolonged kneeling, leaning forward, and standing straight. Tr.

332. According to the evaluation, Plaintiff was not capable of returning to his work as a sheet

metal worker because there “is usually no such thing as light duty and he needs to avoid constant

standing and kneeling until this has been improved.” Tr. 337. The ALJ points to medical records

from Plaintiff’s medical evaluation through 2019 displaying 5/5 strength, normal range of

motion, and normal gait. Tr. 334–35, 507, 512–13, 517, 530, 536. Yet Plaintiff continued testing

positive for pain and numbness at these same appointments. Tr. 506–07, 512–13, 517, 527, 536.

The ALJ also pointed to Plaintiff receiving a recommendation that he begin looking for work in

June 2019. Tr. 18. What the ALJ leaves out, however, is that this recommendation had the

following restrictions: only twisting, bending, crawling, kneeling for up to half an hour; standing

for two hours at once and four hours total in a day; sitting for up to an hour; and walking up to

1.5 miles. Tr. 516. Plaintiff testified that he has not attempted to look for work since his alleged

onset date, and it is questionable whether such work with those limitations exists. Tr. 54.

The ALJ acknowledged that Plaintiff’s condition worsened in February 2020, where

testing showed a positive straight leg test on the right side, back pain and tenderness in his

lumbosacral spine, moderate back pain with motion, and an antalgic gait. Tr. 468–69. Plaintiff’s

condition continued to deteriorate and, at an appointment in July 2020, he was seen again for

bilateral edema in his feet, which had been ongoing since February, and he again received

treatment in the form of a low salt diet, leg elevation above his heart as much as possible during

the day, compression hose, diuretics as prescribed, and daily walking. Tr. 540, 542. Plaintiff

returned for swelling in January 2021 and received the same treatment recommendations along

with a prescription for Lasix. Tr. 548. Records from February and March echo the previous

appointments for swelling while adding that gabapentin was no longer as effective as it had been,

resulting in greater hip and low back pain. Tr. 551–53, 563–65.

The ALJ acknowledged Plaintiff’s swelling and limited him to light work, “although the

claimant’s edema so far has been treated with conservative measures.” Tr. 18. The ALJ,

however, does not explain how limiting Plaintiff to light work coincides with Plaintiff’s

treatment to keep his legs elevated above his heart for as much of the day as possible. The ALJ

also erroneously misconstrues the record, stating that “leg swelling had only actually been a

problem for few months by early 2021.” Tr. 19. Records show that Plaintiff’s leg swelling had

been a problem since February 2020, meaning that Plaintiff’s condition had been ongoing for at

least a year by early 2021. How a year only equates to a few months in the ALJ’s eyes is clearly

circumspect. The ALJ further discounted Plaintiff’s testimony because records indicate Plaintiff

was well-developed and in no acute distress. Tr. 19, citing 318, 469, 542. The ALJ’s evidence,

however, does not support the ALJ’s reasoning. The ALJ relied on a report from June 2018,

before the alleged onset date, where Plaintiff saw a doctor for a possible adverse reaction to prior

treatment; a report from February 2020 where Plaintiff tested positive for pain in his back and in

his straight leg test; and a report from July 2020 where Plaintiff was again positive for pain. Tr.

318, 469, 542.

Finally, the ALJ indicates Plaintiff is not consistently taking his medication. Tr. 19. The

ALJ relies on a single report stating he stopped taking Cymbalta, but was continuing to take all

others, and where he was encouraged to continue taking Cymbalta as prescribed. Tr. 552.

Plaintiff testified he was still taking Cymbalta at his hearing. Tr. 51–52. Furthermore, a single

report of medication noncompliance over three years fails to undercut Plaintiff’s testimony.

Accordingly, because the ALJ glossed over the many reports of chronic pain and

impairment, did not take into account escalating pain due to exacerbation which would

undoubtedly affect Plaintiff’s ability to work, and failed to explain their reasoning for the

evidence that was cited, this was not a clear and convincing reason to discount the entirety of

Plaintiff’s testimony.

II. Medical Opinion Evidence

Plaintiff argues the ALJ failed to properly evaluate the medical opinion of Scott Ross, PA-

C. Because Plaintiff filed his application after March 27, 2017, revised regulations regarding the

evaluation of medical source opinions apply to his claim. See Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017) (codified at 20 C.F.R.

pts. 404 & 416)). The revised rules provide that the Social Security Administration will evaluate

medical opinions according to the following factors: supportability; consistency; relationship with

the claimant; specialization; and other factors such as the medical source's familiarity with other

evidence in the record or with disability program requirements. 20 C.F.R. § 416.920c(c)(1)-(5);

see Tyrone W. v. Saul, No. 3:19-cv-01719-IM, 2020 WL 6363839, at *7 (D. Or. Oct. 28, 2020).

“Supportability” and “consistency” are the most important factors to be considered when

evaluating the persuasiveness of medical opinions and, therefore, the ALJ is required to explain

how both factors were considered. See 20 C.F.R. § 404.1520c(b)(2).

“Supportability means the extent to which a medical source supports the medical opinion

by explaining the ‘relevant . . . objective medical evidence.’” Woods v. Kijakazi, 32 F.4th

785,791-92 (citing 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the extent to which a

medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical

sources in the claim.’” Id. at 792 (citing 20 C.F.R. § 404.1520c(c)(2)). Additionally, “[t]he ALJ

may but is not required to explain how other factors were considered, as appropriate, including

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

examination); whether there is an examining relationship; specialization; and other factors, such

as familiarity with other evidence in the claim file or understanding of the Social Security

disability program's policies and evidentiary requirements.” Linda F. v. Comm'r Soc. Sec.

Admin., No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020).

The ALJ’s decision finding Ross’s opinion unpersuasive is not supported by substantial

evidence. See Woods, 32 F.4th at 787 (noting that under the new regulations, “an ALJ’s decision,

including the decision to discredit any medical opinion, must simply be supported by substantial

evidence.”). The ALJ concluded there was little evidence in the record to support Ross’s opinion

that Plaintiff could not sit, stand, or walk for more than two hours a day, would need a sit/stand

option, would need to take unscheduled breaks, could never lift any amount of weight, could

perform no postural activities, and would be off task a significant amount. Tr. 19. Ross based his

opinion on Plaintiff’s gait abnormality, tenderness to palpation, numbness and tingling in his

legs, and leg swelling. Tr. 556. An independent review of the record shows Plaintiff only began

having an abnormal gait in February 2020, a year and a half after his alleged onset date. Tr. 469.

The only medical evaluation Plaintiff received was in December 2018, and in June 2019 he was

given a recommendation that he could return to work with several limitations, including twisting,

bending, crawling, kneeling for up to half an hour, standing for two hours at once and four hours

total in a day, sitting for up to an hour, and walking up to 1.5 miles. Tr. 335, 353, 516. The

December 2018 affirmed Plaintiff’s reports of pain below the left anterior superior iliac spine

and showed decreased sensation due to left lateral femoral cutaneous nerve neuropathy. Tr. 335.

And despite Plaintiff’s 5/5 strength on testing, he could not return to his normal work in

construction but could do modified work if it was “quite light and limited to where he could sit

and stand on a p.r.n. basis.” Tr. 335, 337.

While some of Ross’s opinion was in line with the previous reports, the ALJ found the

medical evaluation for Plaintiff’s worker’s comp claim and the follow-up appointment with

modified work limitations to be unpersuasive because there were no specific functional

limitations, he was not medically stationary after the work-related injury, and records showed

Plaintiff had normal gait, full strength, and negative straight leg raising. Tr. 20, citing Tr. 335.

The ALJ’s assessment, however, is unsupported. Plaintiff’s records show that for over three

years he has not been medically stationary, and it is questionable as to whether Plaintiff will ever

reach that point. Tr. 337. Furthermore, Plaintiff was given specific functional limitations in

December 2018 and in July 2019, including a sit/stand option, twisting, bending, crawling,

kneeling for half an hour, standing for 2 hours, sitting for more than one hour, walking more than

1.5 miles. Tr. 354. Given that Plaintiff’s complaints of pain were confirmed when Plaintiff was

evaluated in December 2018, along with the pain being exacerbated by prolonged kneeling,

leaning forward, and standing straight, the July 2019 limitations reinforce what was found seven

months prior. Tr. 331, 335, 354. As discussed above, Plaintiff continued experiencing pain even

with normal gait and full strength and had a positive straight leg test in February 2020. Tr. 469.

Oddly enough, the ALJ finds the modified light work limitations imposed in July 2019 to be

persuasive, but finds Ross’s opinion, which is partially in line with the previous limitations and

assessments, unpersuasive. Tr. 20, 527, 557–58. The ALJ, however, does not explain what part

of the modified light work limitations she finds persuasive. The ALJ also erroneously found

Plaintiff could lift, push, and pull twenty pounds less than one-third of the workday based on the

July 2019 assessment, yet the record does not give any indication of how much of the workday

this could be done. Tr. 20, citing Tr. 354.

Due to the lack of explanation, the ALJ’s reasoning for finding Ross’s medical opinion

unpersuasive is unsupported by substantial evidence.

III. Lay Witness Testimony

Generally, “[l]ay testimony as to a claimant's symptoms is competent evidence that an

ALJ must take into account, unless he or she expressly determines to disregard

such testimony and gives reasons germane to each witness for doing so.” Lewis, 236 F.3d at

511 (citation omitted); see also Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir.

2000) (“[A]n ALJ ... must give full consideration to the testimony of friends and family

members.”). The ALJ's reasons for rejecting lay testimony must be germane and specific. Bruce

v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (citing Stout v. Comm'r, Soc. Sec. Admin., 454

F.3d 1050, 1054 (9th Cir. 2006)).

Plaintiff’s wife, friend, and brother-in-law provided third-party statements in support of

his disability. Tr. 260, 301, 303. Plaintiff argues the ALJ erred by failing to provide germane

reasons for rejecting those lay witness statements.

The statements provided echo Plaintiff’s subjective complaints, such as being unable to

finish laundry or dishes, being unable to walk for more than twenty minutes, an inability to

spend, squat, or stand without pain, trouble sitting and concentrating for long periods, inability to

stay in one position for too long, inability to carry heavy objects, and suffering from depression.

Tr. 260, 301, 305, 303. The ALJ disregarded these statements for the same inconsistencies as the

Plaintiff’s subjective symptom testimony, as well as because the witnesses do not “have the

requisite medical training as to adequately opine as to the severity of the claimant’s symptoms.”

Tr. 19. The ALJ’s reasoning is unsupported for the same reasoning here as it was above when

evaluating Plaintiff’s subjective symptom testimony. Furthermore, not only does the ALJ

blatantly misstate the regulation, and is in fact required to “consider all of the medical and

nonmedical evidence,” including evidence offered by “family, neighbors, friends, or other

persons,” but the logic of such a statement does not exist. 20 C.F.R. § 404.1545. If lay witnesses

were required to have medical training, then they would not be lay witnesses. Therefore, the ALJ

erred in failing to properly consider the lay witness statements.

IV. Remedy

As the ALJ erred, the question is whether to remand for further administrative

proceedings or an award of benefits. Generally, “when an ALJ’s denial of benefits is not

supported by the record, ‘the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.’” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir.

2012), quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). However, an award of

benefits can be directed “where the record has been fully developed and where further

administrative proceedings would serve no useful purpose.” Smolen v. Chater, 80 F.3d 1273,

1292 (9th Cir. 1996). Remand for calculation of benefits is only appropriate where the credit-as-

true standard has been satisfied, which requires:

(1) the record has been fully developed and further administrative proceedings

would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient

reasons for rejecting evidence, whether claimant testimony or medical opinion;

and (3) if the improperly discredited evidence were credited as true, the ALJ

would be required to find the claimant disabled on remand.

Garrison, 759 F.3d at 1020 (citations omitted).

This is a rare instance where remand for an award of benefits is appropriate. As noted,

Plaintiff testified, and medical records indicate, he needed to elevate his feet above his heart

much of the day and lie down from anywhere between twenty and forty-five minutes to alleviate

his pain. Plaintiff’s base level of pain, while moderate, would also be necessarily exacerbated in

a work setting. That evidence is supported by Ross’s improperly rejected opinion, his treatment

notes, and other medical records. Although the Commissioner argues further proceedings are

required, the vocational expert testified that someone needing to elevate one’s feet above one’s

heart for much of the workday, or needing to lie down, would not be able to sustain employment.

Tr. 66–67. Plaintiff is therefore disabled under the Act.

CONCLUSION

The decision of the Commissioner is REVERSED and this matter is REMANDED to the

immediate calculation and payment of benefits.

IT IS SO ORDERED.

DATED this 31st day of October, 2023.

______/s/ Michael McShane___________

Michael McShane

United States District Judge