# Grant v. Commissioner Social Security Administration

> District Court, D. Oregon · February 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10397074

## Case

- **Court:** District Court, D. Oregon
- **Decided:** February 13, 2024
- **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/10397074

## How later opinions describe it (automated extraction)

- reaffirming the substantial evidence standard in social security cases

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHASTA G,!
Plaintiff, Civ. No. 6:22-cv-01351-MC
Vv. OPINION AND ORDER
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

MCSHANE, Judge:
Plaintiff Shasta G. brings this action for judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for disability
insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles I and XVI
of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff alleges that the Administrative Law Judge (“ALJ”) erred by (1) failing to
account for all Plaintiffs limitations in the residual functional capacity; (2) failing to provide
clear and convincing reasons for rejecting Plaintiff's subjective symptom testimony; and (3)
finding unpersuasive the medical opinions of Janette Stringer, LCSW. Pl.’s Br. 4-25, ECF No. 8.
For the reasons outlined below, the Commissioner’s decision is REVERSED and this matter is
REMANDED for immediate payment of benefits.

1 Tn the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of the
non-governmental party in this case and any immediate family members of that party.
1 — OPINION AND ORDER

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff applied for DIB and SSI on November 15, 2019, alleging disability since
January 29, 2019. Tr. 68. The claim was denied initially and upon reconsideration. Tr. 79, 91,
105, 120. Plaintiff requested a hearing before an ALJ and appeared before the Honorable John
Sullivan on May 17, 2021. Tr. 34–65. In a written decision dated July 21, 2021, ALJ Sullivan
determined that Plaintiff was not disabled under the Social Security Act. Tr. 13–28. Plaintiff
sought review from the Appeals Council; the Appeals Council declined. Tr. 1.
Plaintiff is currently 43 years old. See Tr. 68. Plaintiff alleges disability due to
dissociative identity disorder, bipolar 1 and 2, spinal stenosis, degenerative disc disease,
fibromyalgia, severe panic attacks, dissociative amnesia, and manic episodes with aggressive
tendencies. Tr. 68–69. Plaintiff has a high school diploma and previous work experience as a
storage facility rental clerk. Tr. 43, 57.

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) (reaffirming the substantial evidence
standard in social security cases). “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

2 – OPINION AND ORDER
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.
I. Residual Functional Capacity
Plaintiff first argues that the ALJ failed to account for all of Plaintiff’s social limitations
in the RFC. Pl.’s Br. 4–8. The RFC reflects the most activity a claimant can perform in a
workplace on a regular and continuing basis despite their limitations. 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). In that context, regular work means eight hours per day, five days

3 – OPINION AND ORDER
per week, or an otherwise equivalent work schedule. SSR 96–8p, 1996 WL 374184, at *2. The
RFC must contemplate all of a claimant’s medically determinable impairments (“MDIs”),
including all physical, mental, and sensory functional limitations caused by those MDIs. 20
C.F.R. §§ 404.1545(a), 416.945(a). However, the ALJ is only required to include those
limitations that the ALJ has determined are consistent with the record as a whole. See

Lingenfelter v. Astrue, 504 F.3d 1028, 1034 (9th Cir. 2007).
Here, the ALJ found that Plaintiff
can understand, remember, and carryout instructions for simple, routine tasks with
a reasoning level of two or less; limited to making simple work-related decisions;
can occasionally interact with supervisors, coworkers, and the general public; and
would be off task less than five percent of the time, scattered throughout the
workday.

Tr. 20. Plaintiff argues that this RFC does not incorporate limitations from state agency
consulting doctors, whose opinions the ALJ found persuasive. Pl.’s Br. 4–8.
On initial review, Ben G. Kessler, Psy.D., opined that Plaintiff was “[l]imited to
interactions that require minimal contact [with] general public as well as peers/coworkers.
Short/structured encounters OK. Responsive to supportive, lay supervision (not overly harsh,
highly critical style).” Tr. 77, 89. On reconsideration, Marilyn Jordan, Ph.D., affirmed this
opinion. Tr. 103, 118.
An ALJ need not incorporate persuasive medical opinions exactly, so long as the RFC is
consistent with the accepted medical opinions. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174
(9th Cir. 2008). However, even if the ALJ erred by not further limiting Plaintiff’s social
interactions, such error is harmless. At the hearing, Plaintiff’s counsel questioned the vocational
expert regarding the additional limitations. Tr. 61–62. The vocational expert testified that those

4 – OPINION AND ORDER
changes “would not really change [his] response.” Tr. 62. Plaintiff argues that the vocational
expert’s testimony suggests that the RFC should include a limitation for “not overly harsh”
supervision. However, the Court must defer to the ALJ’s reasonable interpretation of a medical
opinion. Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017).
II. Plaintiff’s Subjective Symptom Testimony

Plaintiff next argues that the ALJ failed to give clear and convincing reasons for
discounting Plaintiff’s subjective symptom testimony. Pl.’s Br. 8–20. The Court agrees.
“An ALJ engages in a two-step analysis to determine whether a claimant's testimony
regarding subjective pain or symptoms is credible.” 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 which could reasonably be expected to produce the pain
or other symptoms alleged.” Id. (internal citations and quotations omitted). If the first step is
satisfied, and the ALJ finds no evidence of malingering, the ALJ next determines the intensity
and persistence of symptoms by considering “all of the available evidence from . . . medical

sources and nonmedical sources.” 20 C.F.R. § 404.1529(c)(1). “The ALJ can reject the claimant's
testimony about the severity of [their] symptoms only by offering specific, clear and convincing
reasons for doing so.” Garrison, 759 F.3d at 1015 (emphasis added). Specific, clear and
convincing reasons are those which “identify what testimony is not credible and what evidence
undermines the claimant’s complaints.” Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81
F.3d 821, 834 (9th Cir. 1995)).
The ALJ found Plaintiff’s “statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely consistent with the medical evidence and other

5 – OPINION AND ORDER
evidence in the record.” Tr. 21. The ALJ then went on to summarize Plaintiff’s medical records.
Tr. 21–23. However, the Court can find no reasoning nor any specific part of Plaintiff’s
testimony that the ALJ found unsupported. “[P]roviding a summary of medical evidence . . . is
not the same as providing clear and convincing reasons for finding the claimant's symptom
testimony not credible.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015).

The Commissioner argues that the ALJ rejected Plaintiff’s testimony for three reasons:
(1) improvement with treatment; (2) inconsistency with Plaintiff’s activities of daily living; and
(3) inconsistency with objective medical evidence. Def.’s Br. 8–14, ECF No. 13. The Court may
not invoke any post hoc reasoning, but, for the sake of argument, addresses each reason.
The Commissioner first argues that the ALJ’s summary of Plaintiff’s medical records
shows improvement with treatment. However, the ALJ’s summary in fact demonstrates the
natural waxing and waning of symptoms. Tr. 22–23. In March 2019, Plaintiff presented as
anxious and depressed. Tr. 496. After beginning Lorazepam, Plaintiff was experiencing less
anxiety in August 2019. Tr. 776. Plaintiff struggled with online classes in the fall of 2019 and by

February 2020 was reporting significantly increased anxiety and paranoia. Tr. 708. Plaintiff was
sleeping well and engaging in services in April 2020. Tr. 968. But in July 2020, Plaintiff was
experiencing increased symptoms, including time loss and memory gaps, which led to her
therapist calling Cahoots after a missed appointment. Tr. 1320. At a diagnostic evaluation in
February 2021, Plaintiff reported that her daily panic attacks had increased. Tr. 1211. At the end
of March 2021, Plaintiff reported decreased anger and irritability with more tolerance for
everyday frustrations. Tr. 1241. And in April 2021, Plaintiff reported increased depression as
well as audio hallucinations. Tr. 1380. “Cycles of improvement and debilitating symptoms are a

6 – OPINION AND ORDER
common occurrence, and . . . it is error for an ALJ to pick out a few isolated instances of
improvement over a period of months or years and to treat them as a basis for concluding a
claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
The Commissioner next argues that Plaintiff’s testimony is undermined by her activities
of daily living. To “conclude that a claimant's daily activities warrant an adverse credibility

determination,” the ALJ must make specific findings that (1) the activities contradict the
Plaintiff’s testimony or (2) that the activities “meet the threshold for transferable work skills.”
Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Neither condition is met here.
The ALJ noted that Plaintiff “is able to shop for groceries and do household chores such
as laundry, as well as take the bus to the grocery store.” Tr. 21. Plaintiff testified that she
struggles to complete household chores. Tr. 53. Plaintiff usually brings one of her teenage
children with her to the grocery store to help keep her from disassociating. Tr. 53–54. Plaintiff
also testified that disassociating leads to trouble riding the bus as she may forget where she is or
where she is going. Tr. 54. Neither the ALJ nor the Commissioner explain how these minimal

activities of daily living, especially as actually performed by Plaintiff, contradict her testimony
or translate to competitive employment.
Finally, the Commissioner argues that “objective medical evidence did not support
additional limitations.” Def.’s Br. 10. However, inconsistency with the medical evidence alone is
not a clear and convincing reason to reject symptom testimony. Trevizo v. Berryhill, 871 F.3d
664, 679 (9th Cir. 2017). The ALJ erred by rejecting Plaintiff’s subjective symptom testimony
without clear and convincing reasons.

7 – OPINION AND ORDER
III. Medical Opinions of Janette Stringer, LCSW
Plaintiff argues that the ALJ erred by finding unpersuasive the opinions of Plaintiff’s
therapist, Janette Stringer, LCSW. Pl.’s Br. 20–25.
The Ninth Circuit has clarified that under the new regulations, “the former hierarchy of
medical opinions – in which we assign presumptive weight based on the extent of the doctor’s

relationship – no longer applies.” Woods, 32 F.4th at 787. Now, an ALJ’s “decision to discredit
any medical opinion, must simply be supported by substantial evidence.” Id. “The most
important factors that the agency considers when evaluating the persuasiveness of medical
opinions are supportability and consistency.” Id. at 791 (emphasis added) (internal quotations
omitted); 20 C.F.R. § 404.1520c(a). However, the Ninth Circuit clarified that “the extent of the
claimant’s relationship with the medical provider – what we will refer to as ‘relationship factors’
– remains relevant under the new regulations.” Id. at 790.
In March 2020, Ms. Stringer completed a function report. Tr. 320–27. She noted that
Plaintiff’s issues with memory, concentration, focus, and emotional dysregulation interfere with

her consistency and reliability. Tr. 320. Ms. Stringer also noted that Plaintiff often experiences
time loss and gets lost when she goes out alone. Tr. 321, 323. Ms. Stringer noted that Plaintiff
follows spoken instructions well and also handles stress well. Tr. 325–26. Ms. Stringer provided
an additional opinion in May 2021. Tr. 1371–78. She noted that Plaintiff’s hallucinations and
delusions led to inconsistent behavior and struggles with activities of daily living. Tr. 1372. Ms.
Stringer opined that Plaintiff was extremely limited in her ability to understand and remember
simple instructions. Tr. 1375. Ms. Stringer also opined that Plaintiff had marked limitations in
her ability to interact appropriately with the public, extreme limitations in interacting with

8 – OPINION AND ORDER
supervisors, and moderate limitations in interacting with coworkers. Tr. 1375. Ms. Stringer
opined that Plaintiff had a marked limitation in her ability to respond to usual work situations
and to changes in routine. Tr. 1375. Ms. Stringer opined that Plaintiff would be off task for 10%
of a workday due to hallucinations, delusions, and amnesia, and that Plaintiff would miss four or
more days of work a month. Tr. 1377–78.

The ALJ acknowledged that Ms. Stringer’s opinion was “somewhat supported” by her
treatment records, but overall found it inconsistent with the medical evidence, including other
providers’ notes and mental status exams. Tr. 25. This is supported by substantial evidence.
Although Ms. Stringer found that Plaintiff struggled with memory, concentration, and
focus, mental status exams consistently showed Plaintiff with fair to normal memory and fair to
normal concentration. Tr. 497, 501, 509, 525, 714, 737, 755, 782, 802, 809, 974, 989, 992, 995,
998, 1001, 1004, 1160, 1248, 1382. The ALJ’s reasonable interpretation that these mental status
exams do not support the extreme limitations in Ms. Stringer’s opinion is supported by
substantial evidence.

IV. Remedy
Because 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.

9 – OPINION AND ORDER
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 v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
This is a rare instance where remand for an award of benefits is appropriate. Here,
Plaintiff satisfies all three requirements. The record is fully developed and there are no
ambiguities that further administrative proceedings need resolve. As explained above, the ALJ
erred in discrediting Plaintiff’s subjective symptom testimony without providing clear and
convincing reasons for doing so. Credited as true, Plaintiff’s testimony combined with the
vocational expert’s testimony establish that Plaintiff is disabled under the Act. The vocational
expert testified that, in his experience, a worker who is off-task 20% of the time would be unable
to maintain competitive employment. Tr. 61. Moreover, consideration of the record as a whole
convinces the Court that Plaintiff is disabled. The Court sees no purpose for further proceedings.
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10 – OPINION AND ORDER
CONCLUSION
The Commissioner’s decision is REVERSED and this case is remanded for immediate
payment of benefits.

IT IS SO ORDERED.

DATED this 13th day of February, 2024.

s/ Michael J. McShane
Michael J. McShane
United States District Judge

11 – OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397074. Public record. Not legal advice.