# Burgess v. Commissioner Social Security Administration

> District Court, D. Oregon · December 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10396915

## Case

- **Court:** District Court, D. Oregon
- **Decided:** December 15, 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/10396915

## How later opinions describe it (automated extraction)

- holding that the court “must uphold the ALJ’s decision where the evidence is susceptible to more than one rational interpretation’
- holding that the ALJ erred because “the ALJ did not elaborate on which daily activities conflicted with which part of Claimant's testimony”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

DEBRA B..,! Case No. 6:22-cv-00759-HL
Plaintiff, OPINION AND ORDER
Vv.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

HALLMAN, United States Magistrate Judge:
Plaintiff Debra B. brings this action under the Social Security Act (the “Act”), 42 U.S.C.
§ 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security
(“Commissioner”). The Commissioner denied plaintiffs application for Disability Insurance
Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, the
decision of the Commissioner is REVERSED and REMANDED for further proceedings
consistent with this Opinion and Order.

the interest of privacy, this Opinion uses only the first name and the initial of the last name
for non-governmental parties and their immediate family members.
PAGE 1 —- OPINION AND ORDER

STANDARD OF REVIEW
42 US.C. § 405(g) provides for judicial review of the Social Security Administration’s
disability determinations: “The court shall have power to enter . . . a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” The court must affirm the Commissioner’s decision if it is
based on proper legal standards and the findings are supported by substantial evidence in the
record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation
omitted). The court must weigh “both the evidence that supports and detracts from the
[Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “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.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (holding that the court
“must uphold the ALJ’s decision where the evidence is susceptible to more than one rational
interpretation’). “[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) (quotation omitted).
BACKGROUND
I. Plaintiff’s Application
Plaintiff alleges disability based on lupus, sjogren’s depression, high blood pressure,
osteoarthritis in the knees and hips, diabetes, diabetic retinopathy, peripheral neuropathy, and

PAGE 2 — OPINION AND ORDER

“possible reynoud’s syndrome.” Tr. 66-67. At the time of her alleged onset date, she was 47
years old. Tr. 66. She has completed high school. Tr. 42, 585. She has past relevant work as a
medical transcriptionist. Tr. 24.
Plaintiff protectively applied for DIB on October 25, 2018, alleging an onset date of May
15, 2010. Tr. 82. Her application was denied initially on April 3, 2019, and on reconsideration on
December 18, 2019. Tr. 79, 95. Plaintiff subsequently requested a hearing, which was held on
January 13, 2021, before Administrative Law Judge (“ALJ”) Kathryn Burgchardt. Tr. 36.
Plaintiff appeared and testified at the hearing, represented by counsel. Tr. 38-64. A vocational
expert (“VE”), Douglas Prutting, also testified. Tr. 59-64. On March 19, 2021, the ALJ issued a
decision denying plaintiff's claim. Tr. 25. Plaintiff requested the Appeals Council to review ALJ
Burgchardt’s decision, which was denied on March 21, 2021. Tr. 1-6. Plaintiff then sought
review before this Court.
Il. Sequential Disability Process
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must
demonstrate an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected . . . to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At
step one, the Commissioner determines whether a claimant is engaged in “substantial gainful

? Citations to “Tr.” are to the Administrative Record. (ECF 12).
> The parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. §
636. (ECF 5).
PAGE 3 —- OPINION AND ORDER

activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b),
416.920(b).
At 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), 416.920(c). A severe impairment is one “which significantly limits [the claimant’s]
physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c).
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairments meet or equal “one
of a number of listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.” /d.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the
claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at
141.
At step four, the Commissioner determines whether the claimant can perform “past
relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 146 n. 5.
Finally, at step five, the Commissioner must establish that the claimant can perform other
work that exists in significant numbers in the national economy. /d. at 142; 20 C-F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. §§ 404.1566, 416.966.
Hl. The ALJ’s Decision
At step one, the ALJ determined that plaintiff had not engaged in substantial gainful
activity after her alleged onset date. Tr. 13.

PAGE 4 —- OPINION AND ORDER

At step two, the ALJ determined that plaintiff has the following severe impairments:
“fibromyalgia; positive ANA with suspected Sjogren’s/lupus; complex regional pain syndrome;
osteoarthritis of the hips and knees; status post C5-6 fusion and bilateral carpal tunnel syndrome
status post right carpal tunnel release with hand numbness; and obesity.” /d.
At step three, the ALJ determined that plaintiffs impairments did not meet or medically
equal the severity of a listed impairment. Tr. 15. The ALJ then resolved that plaintiff had the RFC
to do sedentary work with the following limitations:
She can lift or carry up to 10 pounds frequently and 10 pounds occasionally.
She can stand or walk with normal breaks for a total of two hours in an eight-hour
workday and may use a cane to ambulate. She can sit with normal breaks for a total
of six hours in an eight-hour workday. She can perform pushing and pulling
motions with upper and lower extremities with the weight restrictions given. She
can perform postural activities occasionally and those would be stooping,
crouching, kneeling and crawling. She should not climb any ladders, ropes or
scaffolds on the job. She can perform balancing but limited to only frequent. She
can perform activities requiring bilateral manual dexterity for both gross and fine
manipulation with handling and reaching, however, fine manipulation bilaterally
would be limited to only frequent.
Tr. 18.
At step four, the ALJ found that plaintiff could perform her past relevant work as a
medical transcriptionist. Tr. 24. Thus, the ALJ concluded that plaintiff is not disabled. Tr. 24-25.
DISCUSSION
Plaintiff argues that the ALJ committed three errors: (1) improperly finding plaintiffs
mental impairments were not severe at step two; (2) failing to provide clear and convincing
reasons to reject plaintiff's symptom testimony; and (3) failing to provide clear and convincing
reasons to reject the lay witness’ testimony.

PAGE 5 —- OPINION AND ORDER

I. Step Two Finding
Plaintiff contends the ALJ erred at step two by failing to find her mental impairments
severe. Pl.’s Opening Br., ECF 18, 14-15. Any error in this regarding was harmless, however,
because the ALJ continued with the sequential analysis.
At step two, the ALJ determines whether the claimant has an impairment, or combination
of impairments, that is both medically determinable and severe. 20 C.F.R. § 404.1520(c). The
step two threshold is low; it 1s “de minimus screening device to dispose of groundless claims.”
Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted). “Step two... is not
meant to identify the impairments that should be taken into account when determining the RFC.
The RFC therefore should be exactly the same regardless of whether certain impairments are
considered ‘severe’ or not.” Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (citations
omitted). As such, any “error at step two [is] harmless [if] step two was decided in [the
claimant’s] favor with regard to other ailments.” Mondragon vy. Astrue, 364 Fed. Appx. 346, 348
(9th Cir. 2010) (citing Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)).
Here, the ALJ found that plaintiff had a number of medically determinable and severe
impairments at step two. Tr. 13. Concerning plaintiff's mental impairments of adjustment
disorder mixed with anxiety and depressed mood, the ALJ determined they were not severe. Tr.
15. The ALJ explained that plaintiff's “mental status exams failed to show significant
abnormalities” and that her mental impairments cause only mild difficulties in functioning. Tr.
19, 23. The ALJ then went on to continue the sequential evaluation process and formulated an
RFC that considered evidence and allegations pertaining to plaintiffs mental impairments. Tr.
18-23. Thus, “under well-established case law, any alleged error at step two was harmless.” Gary

PAGE 6 — OPINION AND ORDER

M. v. Comm'r of Soc. Sec. Admin., No. 3:20-CV-00631-JR, 2023 WL 3276178, at *2 (D. Or.
May 5, 2023) (citing Buck, 869 F.3d at 1048-49).
II. Subjective Symptom Testimony
Plaintiff next asserts that the ALJ failed to provide clear and convincing reasons to reject
her symptom testimony. Pl.’s Opening Br. 4-13. Specifically, plaintiff contends that the ALJ
failed to link the testimony she found find not credible to the particular parts of the record
supporting her non-credibility determination. /d. at 7. This Court agrees.
A. Legal Standards
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL
5180304, at *1 (Oct. 25, 2017). There is a two-step process for evaluating a claimant’s testimony
about the severity and limiting effect of his symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). First, the claimant must produce objective medical evidence of one or more
impairments that could reasonably be expected to produce some degree of symptoms.
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant need not show that the
impairment could reasonably be expected to cause the severity of the symptoms, but only show
that it could reasonably have caused some degree of the symptoms. J/d.
Second, the ALJ must assess the claimant’s testimony regarding the severity of the
symptoms. /d. The ALJ can reject the claimant’s testimony “only by offering specific, clear and
convincing reasons for doing so.” /d. Thus, the ALJ must specifically identify the testimony that
they do not credit and must explain what evidence undermines the testimony. Holohan v.
Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). In other words, the “clear and convincing”
standard requires an ALJ to “show [their] work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir.
2022).

PAGE 7 — OPINION AND ORDER

General findings are insufficient to support an adverse determination; the ALJ must rely
on substantial evidence. Holohan, 246 F.3d at 1208. To discredit a plaintiff's testimony
regarding the degree of impairment, the ALJ must make a “determination with findings
sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit
claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The question is
not whether ALJ’s rationale convinces the court, but whether their rationale “is clear enough that
it has the power to convince.” Smartt, 53 F.4th at 499.
B. Plaintiff's Testimony
Plaintiff reported that she could not work on a regular basis because she needs to rest “a
lot.” Tr. 46. Plaintiff was asked specifically as to why she could not work full-time as a medical
transcriptionist:
Q: ... Why are you doing so little work now?
A. I'm doing as much as I can actually handle because of my tiredness
and my eyesight.
Q. How do those affect your ability to work?
A. I do have to stop and rest during the day. And also, I have issues
with seeing the computer screen, being too bright. And so, I do have to stop and
rest and close my eyes.
Q. How long can you be in front of the computer doing your medical
transcription work before you have to stop and rest?
A. Usually about 20 minutes to an hour.
Q. And then what do you need to do?
A I do need to rest my eyes. And I take the opportunity just to rest,
also. So, I’ll need to close my eyes. And I usually use eye drops, also.
Tr. 48. In her function report, plaintiff stated that her fatigue is constant and “debilitating” and
that she became “‘so tired in the afternoons that [she has] to sleep.” Tr. 232. Plaintiff discussed

PAGE 8 —- OPINION AND ORDER

how her carpal tunnel syndrome greatly affects her ability to type and that she can only type for
“about twenty minutes to an hour” before she must take a break. Tr. 51. Plaintiff testified that it
takes her an hour of resting to go back to doing medical transcription work, and that she can only
perform three hours of transcription work during an eight-hour day. Tr. 49-50.
The ALJ determined that her medically determinable impairments could reasonably be
expected to produce some degree of symptoms, but her “statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision.” Tr. 19. The
ALJ reasoned that plaintiff's testimony of her disabling limitations was inconsistent with (1)
evidence of her daily activities, (2) her work history, and (3) evidence from the medical record.
Tr. 18-21
C, Analysis.
Here, the ALJ failed to link the particular parts of the record supporting she found non-
credible to the parts of the record supporting her non-disability determination. See Brown-Hunter
v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (an ALJ must “link” the testimony they find not
credible “to the particular parts of the record supporting [their] non-credibility determination”);
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (an “ALJ must
identify the testimony that was not credible, and specify what evidence undermines the
claimant’s complaints”) (citation and quotations omitted). Although there may have been
substantial evidence in the record for the ALJ to reject portions of plaintiff's testimony based on
her activities of daily living, see Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th
Cir. 2015), her part-time work as a transcriptionist, see Ford v. Saul, 950 F.3d 1141, 1156 (9th
Cir. 2020), and the objective medical evidence, see Carmickle v. Comm'r of Soc. Sec. Admin.,

PAGE 9 —- OPINION AND ORDER

533 F.3d 1155, 1161 (9th Cir. 2008), the ALJ failed to link that evidence with the specific
testimony she rejected. Accordingly, the ALJ’s rejection of plaintiff's subjective symptom
testimony was not supported by substantial evidence.
With respect to plaintiffs activities of daily living, the ALJ discussed how plaintiff took
care of her daughter and pets, performed household chores, prepared meals, engaged in hobbies
with friends, drove a vehicle, shopped in stores, and handled money management activities. Tr.
19. These activities certainly call into question portions of plaintiffs testimony; however, the
ALJ failed to specifically link those activities plaintiff's purported inability to work full-time as a
medical transcriptionist due to her eyesight, fatigue, and carpal tunnel syndrome. Because the
failed to identify which specific daily activities that contradicted plaintiff's testimony as to
why she was unable to work full time, her decision was not supported by substantial evidence.
Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (holding that the ALJ erred because “the
ALJ did not elaborate on which daily activities conflicted with which part of Claimant's
testimony”).
With respect to plaintiffs part-time employment, the ALJ failed to connect plaintiff's
part-time work as a medical transcriptionist with her ability to work full-time in that same job.
Plaintiff provided specific and detailed testimony as to why she was only able to work up to
three hours per day due to her fatigue, carpal tunnel syndrome, and eyesight. Tr. 48-50. While
the ALJ may “consider any work activity, including part-time work, in determining whether a
claimant is disabled,” Ford, 950 F.3d at 1156, the ALJ must still connect plaintiffs ability to
work part time with a specific basis for rejecting her testimony. She failed to do so here.* The

* Tf anything, plaintiff’s testimony as to her specific limitations was consistent with the part-time
work she was actually performing. Plaintiff should not be penalized for her ability to work part
time in a job that allows significant accommodations for her impairments. See Aida R. v. Comm'r
PAGE 10 —- OPINION AND ORDER

ALJ’s reliance on plaintiffs part-time employment to reject her symptom testimony was
therefore not supported by substantial evidence.
Finally, with respect to the medical evidence, the ALJ failed to link the objective medical
evidence to plaintiff's testimony as to why she was unable to work full-time as a medical
transcriptionist. To be sure, the ALJ cited ample medical evidence sufficient to discount
plaintiffs testimony regarding her pain. Tr. 19-21. However, plaintiff did not testify that she was
unable to work full time as a medical transcriptionist due to her pain. And, while that ALJ cited
to objective medical evidence that could potentially cast doubt on plaintiffs complaints of
fatigue and her carpal tunnel syndrome, Tr. 20, 21, she failed to connect any of those records
with the parts of plaintiff's testimony she found non-credible, which was an error. See Brown-
Hunter, 806 F.3d at 494. In sum, “[a]lthough the ALJ did provide a relatively detailed overview
of [plaintiffs] medical history, ‘providing a summary of medical evidence . . . is not the same as
providing clear and convincing reasons for finding the claimant's symptom testimony not
credible.” Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (citing Brown-Hunter, 806 F.3d
at 494)).
For these reasons, the ALJ’s rejection of plaintiff's subjective symptom testimony was
not supported by substantial evidence, and remand is required.
III. Lay Witness Testimony
Finally, plaintiff argues that the ALJ failed to consider lay witness testimony —
specifically, the third-party function reports — regarding her symptoms, contending that “an ALJ

of Soc. Sec., No. C19-5987-BAT, 2020 WL 3397256, at *2 (W.D. Wash. June 19, 2020) (so
holding).
PAGE 11 —- OPINION AND ORDER

may not reject such testimony without comment.” Pl.’s Opening Br. 13. This Court agrees, and
further concludes that any error was not harmless.
Lay testimony concerning a claimant’s symptoms or how an impairment affects the
ability to work is competent evidence that an ALJ must take into account. Molina v. Astrue, 674
F.3d 1104, 1114 (9th Cir. 2012) (citation and internal quotation omitted). The ALJ must provide
“reasons germane to each witness” to reject such testimony. /d. (citation and internal quotation
omitted).° However, failure to discuss or weigh third-party testimony is harmless where the ALJ
validly discounts similar evidence. See id. at 1118-19 (ALJ’s failure to comment upon lay
witness testimony is harmless where “the testimony is similar to other testimony that the ALJ
validly discounted, or where the testimony is contradicted by more reliable medical evidence that
the ALJ credited”).
Here, the ALJ erred by failing to provide any basis for rejecting the third-party function
reports without comment. See Molina, 674 F.3d at 1114. Defendant asserts that this error is
harmless because the reports largely mirrored plaintiff's testimony and “the ALJ provided legally
valid reasons supported by substantial evidence to reject plaintiff's symptom allegations.” Def.’s

> The parties disagree about whether the Commissioner’s revised regulations require the ALJ to
articulate germane reasons for rejecting lay witness testimony. Defendant cites a recent Ninth
Circuit case, noting it is still an “open question” whether ALJs must consider nonmedical source
statements under the revised regulations. Def. Br. at 10 (citing Fryer v. Kijakazi, No. 21-36004,
2022 WL 17958630, at *3, n.1 (9th Cir. Dec. 27, 2022) (unpublished) (“It is an open question
whether ALJs are still required to consider lay witness evidence under the revised regulations,
although it is clear they are no longer required to articulate it in their decisions.”). However,
Courts within this District that have considered the “open question” have uniformly found the
“germane reasons” requirement survives the new regulations, at least absent further guidance
from the Ninth Circuit. See Blainey E. v. Comm'r, Soc. Sec. Admin., No. 6:21-CV-00737-MC,
2023 WL 2675149, at *8 (D. Or. Mar. 29, 2023); Julie J. v. Comm'r, Soc. Sec. Admin., No. 6:21-
CV-01384-HZ, 2023 WL 3002388, at *7 (D. Or. Apr. 18, 2023); Meaghan V. v. Comm’, Soc.
Sec. Admin., No. 6:22-CV-01530-HZ, 2023 WL 7545944, at *3 (D. Or. Nov. 14, 2023). This
Court agrees that absent further guidance from the Ninth Circuit, the germane reasons
requirement survives the revised regulations.
PAGE 12 —- OPINION AND ORDER

Br., ECF 21, 11. This Court agrees that the reports largely mirrored plaintiff's testimony;
however, because the ALJ’s rejection of plaintiff's symptom testimony was not supported by
substantial evidence, this Court cannot conclude that the error was harmless.
VI. Remedy
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. Here,
Plaintiff seeks a remand for further proceedings. Pl. Opening Br. 15. This Court agrees. On
remand, the ALJ must reassess Plaintiff's subjective symptom testimony and the lay witness
statements and, if necessary, reformulate Plaintiff's RFC, obtain additional VE testimony, and
proceed with the sequential analysis.
CONCLUSION
Based on the foregoing, pursuant to 42 U.S.C. § 405(g), sentence four, the Court
REVERSES and REMANDS for further proceedings.
IT IS SO ORDERED.
DATED this 15th day of December, 2023.

United States Magistrate Judge

PAGE 13 — OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396915. Public record. Not legal advice.