# Franklin v. Commissioner Social Security Administration

> District Court, D. Oregon · July 15, 2024

URL: https://www.frixlaw.com/law-library/cases/10666336

## Case

- **Court:** District Court, D. Oregon
- **Decided:** July 15, 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/10666336

## How later opinions describe it (automated extraction)

- observing that “[t]he new regulations apply to [a claimant’s Social Security case if] she filed her claim on or after March 27, 2017,” and that the new regulations displace the “irreconcilable” and “incompatible” specific and legitimate reasons standard

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TRISHA F.,1 Case No. 6:23-cv-00433-SB

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.

BECKERMAN, U.S. Magistrate Judge.
Trisha F. (“Plaintiff”) brings this appeal challenging the Commissioner of Social
Security’s (“Commissioner”) denial of her application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act. The Court has jurisdiction over this appeal pursuant to
42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge
pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the Court reverses the
Commissioner’s decision and remands for the calculation and payment of benefits.

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 in this case.
PAGE 1 – OPINION AND ORDER
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “not supported by substantial evidence or based on legal error.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). Substantial evidence is defined as “more than a mere scintilla [of evidence]

but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court
must consider the entire record, weighing the evidence that both supports and detracts from the
Commissioner’s conclusions. Id. Where the record as a whole can support either the grant or
denial of Social Security benefits, the district court “may not substitute [its] judgment for the
[Commissioner’s].” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152

(9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF’S APPLICATION
Plaintiff was forty years old on April 1, 2020, her alleged disability onset date. (Tr. 140.)
Plaintiff has a high school education and past work experience as “a resident care aide,
merchandiser sales route driver, dining room attendant, server, and food-service manager.” (Tr.
140, 218.) In her application, Plaintiff alleged disability due to Bechet’s disease, fibromyalgia,

PAGE 2 – OPINION AND ORDER
vasculitis, retinal vasculitis, spinal stenosis, arthritis, right knee tendonitis, osteophytes in both
knees, neuropathy, visual impairment, and abdominal adhesions. (Id. at 218.)
The Commissioner denied Plaintiff’s application initially and upon reconsideration, and
on October 15, 2021, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).

(Id. at 231, 240, 259-260.) Plaintiff and a vocational expert (“VE”) appeared and testified at an
administrative hearing before an ALJ on February 4, 2022. (Id. at 168-216.) On March 18, 2022,
the ALJ issued a written decision denying Plaintiff’s application. (Id. at 128-146.) On January
25, 2023, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s written
decision the final decision of the Commissioner. (Id. at 1-7.) Plaintiff now seeks judicial review
of that decision.
II. THE SEQUENTIAL PROCESS
A claimant is considered disabled if he or she is 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 [twelve]
months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential

process for determining whether an applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five
steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the impairment meets or equals a listed
impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the
claimant can perform other work that exists in significant numbers in the national economy. Id.
at 724-25.
///

PAGE 3 – OPINION AND ORDER
The claimant bears the burden of proof for the first four steps. See Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any
of those steps, the claimant is not disabled. See id. at 954. The Commissioner bears the burden of
proof at step five, where the Commissioner must show the claimant can perform other work that

exists in significant numbers in the national economy, “taking into consideration the claimant’s
residual functional capacity, age, education, and work experience.” Tackett, 180 F.3d at 1100. If
the Commissioner fails to meet this burden, the claimant is disabled. See Bustamante, 262 F.3d
at 954.
III. THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is
disabled. (Tr. 133-42.) At step one, the ALJ concluded that Plaintiff had not engaged in
substantial gainful activity since April 1, 2020, the alleged onset date. (Id. at 133.) At step two,
the ALJ found that Plaintiff suffers from the following severe, medically determinable
impairments: depression, anxiety, fibromyalgia, spondylosis, right knee patellar tendonitis, right
knee osteoarthritis, and inflammatory polyarthropathy. (Id.) At step three, the ALJ determined

that Plaintiff did not have an impairment that meets or medically equals a listed impairment. (Id.
at 134.)
The ALJ then found that Plaintiff had the residual functional capacity (“RFC”) to
perform sedentary work, subject to these limitations: (1) unable to climb ladders, stairs, ramps,
ropes, or scaffolds, (2) can never kneel, crouch, or crawl, (3) can never be exposed to hazards
such as machinery and unprotected heights, (4) can frequently stoop and has no limitations in
balancing, and (5) is limited to carrying out and maintaining attention for short and simple tasks,

PAGE 4 – OPINION AND ORDER
consistent with a reasoning level of two and unskilled work as defined by the Dictionary of
Occupational Titles, and she is unable to perform detailed or complex tasks. (Id. at 136.)
At step four, the ALJ found that Plaintiff could not perform her past work as a resident
care aide, merchandiser sales route driver, dining room attendant, server, or food-service

manager. (Id. at 140.) At step five, the ALJ found that Plaintiff was not disabled because a
significant number of jobs existed in the national economy that she could perform, such as a
table worker, addresser, and wafer breaker. (Id. at 141.)
DISCUSSION
Plaintiff argues that the ALJ failed to provide specific, clear, and convincing reasons
supported by substantial evidence for discounting her symptom testimony, improperly
discounted the medical opinion of Plaintiff’s nurse practitioner, Leann Willis (“Willis”), and
improperly disregarded Plaintiff’s father’s lay witness testimony. (Pl.’s Opening Br. (“Pl.’s Br.”)
at 5-21, ECF No. 12.) As explained below, the Court agrees, and therefore reverses the
Commissioner’s decision because it is based on harmful legal error.

I. PLAINTIFF’S SYMPTOM TESTIMONY
A. Applicable Law
The Ninth Circuit has “established a two-step analysis for determining the extent to
which a claimant’s symptom testimony must be credited[.]” Trevizo v. Berryhill, 871 F.3d 664,
678 (9th Cir. 2017). “First, the ALJ must determine 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.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)
(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). Second, “[i]f the
claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the

PAGE 5 – OPINION AND ORDER
claimant’s testimony about the severity of the symptoms if she gives specific, clear and
convincing reasons for the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)
(citation omitted).
B. Analysis
There is no evidence of malingering here and the ALJ determined that Plaintiff provided

objective medical evidence of underlying impairments which might reasonably produce the
symptoms alleged. (See Tr. 137, the ALJ found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms”). The ALJ
was therefore required to provide clear and convincing reasons for discounting Plaintiff’s
symptom testimony. See Ghanim, 763 F.3d at 1163. The Court concludes that the ALJ did not
meet that standard here.
1. Plaintiff’s Testimony
At the hearing, Plaintiff testified that she is unable to work due to “extreme” pain in her
body, knees, and abdomen. (Tr. 190.) Plaintiff stated she also suffers from blurred vision, back
pain, hand cramps, and fibromyalgia. (Id. at 191-93.) Plaintiff testified that her symptoms vary

daily, and she experiences up to three “bad days” in a week, as well as “flares” that “can last
anywhere from two days, typically, to three weeks[.]” (Id. at 201.) She testified that she cannot
lift more than ten pounds, walk more than fifteen minutes, or bend at the waist or knees. (Id. at
194-95.) She stated that her medications make her feel groggy and cause urinary incontinence.
(Id. at 192.)
In her function report, Plaintiff indicated that she cares for her therapy dog, cooks simple
meals, and does small loads of laundry and other household chores. (Id. at 364-65.) At the
hearing, Plaintiff explained that she reclines in a recliner six hours per day and that because she

PAGE 6 – OPINION AND ORDER
cannot stand for very long, she “tr[ies] to get just a few things done within that small amount of
time [she] ha[s] before [she] starts hurting and then [has] to sit back down.” (Id. at 196, 204-05.)
2. The ALJ’s Findings
The ALJ discounted Plaintiff’s testimony about the intensity, persistence, and limiting
effect of her symptoms based on Plaintiff’s activities of daily living and inconsistencies with the
objective medical record.2 (Id. at 136-38.)

The ALJ cited medical reports that “often reflected [Plaintiff] had a moderate activity
level lifestyle and that [Plaintiff] exercised three to four times per week, for five to ten hours a
week.” (Id. at 137-38, citing Exs. 8F-89, 94, 13F-3, 16, 27, 40, 47, 53, i.e., Tr. 662, 667, 738,
751, 764, 775, 788, 801.) The ALJ also discussed Plaintiff’s reported activities, including her
ability to perform household chores, care for her therapy dog and family, cook simple meals, do
small loads of laundry, and drive. (Id. at 136.)
The ALJ further explained that “the medical evidence established that [Plaintiff] was able
to function even with her impairments.” (Id. at 137.) To support this assertion, the ALJ
summarized imaging and other diagnostic records that showed “normal” and “unremarkable”

examination findings. (Id. at 137-38.)
3. Activities of Daily Living
Plaintiff argues that the ALJ appears to have relied on Plaintiff’s daily activities to
discount her symptom testimony without articulating her activities as a “clear reason to support

2 The Commissioner asserts that the ALJ discounted Plaintiff’s subjective symptom
testimony because her pain improved with treatment. (Def.’s Br. at 8, ECF No. 14.) As the Court
explains below, the ALJ discussed Plaintiff’s alleged improvement with treatment when
discounting Willis’ medical opinion, but did not cite Plaintiff’s improvement with treatment as a
reason to discount her subjective symptom testimony.
PAGE 7 – OPINION AND ORDER
his decision” and that the activities the ALJ identified are not inconsistent with Plaintiff’s pain-
related impairments. (Pl.’s Br. at 9-12.)
a. Applicable Law
An ALJ may discount a claimant’s symptom testimony based on activities that are
incompatible with the claimant’s testimony regarding the severity of her symptoms. See Burrell

v. Colin, 775 F.3d 1133, 1137-38 (9th Cir. 2014) (explaining that “[i]nconsistencies between a
claimant’s testimony and the claimant’s reported activities provide a valid reason for an adverse
credibility determination” (citing Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)));
Garrison, 759 F.3d at 1016 (stating that a claimant’s activities have “bearing on [the claimant’s]
credibility” if the reported “level of activity” is “inconsistent with [the claimant’s] claimed
limitations” (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998))). Notably, however,
there must be a meaningful inconsistency between the claimant’s daily activities and the
symptom testimony. See Harris v. Kijakazi, No. 21-35136, 2022 WL 1262011, at *1 (9th Cir.
Apr. 28, 2022) (holding that the ALJ committed harmful error in discounting the plaintiff’s
symptom testimony and explaining that the plaintiff’s “limited daily activities were not

meaningfully inconsistent with her symptom testimony” (citing Fair v. Bowen, 885 F.2d 597,
603 (9th Cir. 1989))).
b. Disposition
The Court finds that substantial evidence does not support the ALJ’s conclusion that
Plaintiff’s level of activity is inconsistent with her claimed limitations. See Garrison, 759 F.3d at
1016 (“Recognizing that ‘disability claimants should not be penalized for attempting to lead
normal lives in the face of their limitations,’ we have held that ‘[o]nly if [the claimant’s] level

PAGE 8 – OPINION AND ORDER
of activity [is] inconsistent with [the claimant’s] claimed limitations would these activities have
any bearing on [her] credibility.’”) (citation omitted).
First, when summarizing medical treatment notes from Coquille Indian Health, the ALJ
stated that Plaintiff “engaged in moderate-level activity, which included exercising three to four

times per week, for five to ten hours a week.” (Tr. 137-38, citing Exs. 8F-89, 94, i.e., Tr. 662,
667.) Plaintiff asserts that the ALJ relied on treatment notes in which the “lifestyle” sections are
essentially “clones” of a 2017 treatment note pre-dating the relevant period. (Pl.’s Br. at 11,
citing Tr. 597, 610.) Plaintiff explains that this repetition of the “lifestyle” section of the
treatment note “stands in stark contrast to the narrative portions of her treatment records.” (Id.)
For example, Plaintiff presented with back pain rated at a severity level of ten and described her
pain as persistent, discomforting, throbbing, stabbing, and piercing. (Tr. 660, see also Tr. 137
citing Tr. 662.) In light of the evidence that the lifestyle section of the treatment notes on which
the ALJ relied was not updated, the medical record’s reference to Plaintiff’s frequent and
moderate exercise did not accurately reflect her condition during the relevant time period and
therefore was not a clear and convincing reason to discount her symptom testimony.3

Second, the Court finds that the ALJ’s reliance on Plaintiff’s daily activities—e.g., her
ability to perform household chores, care for her therapy dog and family, cook simple meals, do

3 Further, to the extent Plaintiff reported that she walked for exercise, the record reflects
that her treatment providers encouraged her to continue aerobic exercise as tolerated. (See Pl.’s
Br. at 12, citing Tr. 920-21, see also Tr. 629, Plaintiff’s assessment plan for fibromyalgia
included exercising regularly.) The Ninth Circuit has held that “activities such as walking . . .
and swimming are not necessarily transferable to the work setting with regard to the impact of
pain.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). Indeed, “[a] patient may do these
activities despite pain for therapeutic reasons, but that does not mean she could concentrate on
work despite the pain or could engage in similar activity for a longer period given the pain
involved.” Id.
PAGE 9 – OPINION AND ORDER
small loads of laundry, and drive (id. at 136)—was misplaced because the ALJ did not explain
how these activities conflict with Plaintiff’s reported symptoms. See Garza v. Colvin, No. 14-
04425, 2015 WL 1285307, at *10 (C.D. Cal. Mar. 20, 2015) (holding that the ALJ’s reliance on
the claimant’s daily activities was misplaced because the ALJ “listed a few daily activities . . .

[but] failed to elaborate at all on how these activities actually conflict with [the claimant’s]
subjective symptom testimony”); Vertigan, 260 F.3d at 1049-50 (“[T]he mere fact that a plaintiff
has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking
for exercise, does not in any way detract from her credibility as to her overall disability. One
does not need to be ‘utterly incapacitated’ in order to be disabled.”) (citation omitted).
For these reasons, the Court finds that the ALJ erred by discounting Plaintiff’s symptom
testimony as inconsistent with her activities of daily living.
4. Inconsistency with Objective Medical Evidence
Plaintiff argues that the ALJ also failed to provide clear and convincing reasons
supported by substantial evidence for discounting her testimony based on conflicting objective

medical evidence. (Pl.’s Br. at 12-14.)
a. Applicable Law
“[T]he ALJ may properly include lack of supporting medical evidence in the reasons to
discredit claimant testimony as long as it is not the only reason[.]” Valdez v. Berryhill, 746 F.
App’x 676, 677 (9th Cir. 2018) (citing Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005));
see also McClaren v. Saul, 812 F. App’x 500, 501 (9th Cir. 2020) (noting that “inconsistencies
with objective medical evidence . . . cannot provide the sole basis for an ALJ’s credibility
determination”) (citations omitted); Taylor v. Berryhill, 720 F. App’x 906, 907 (9th Cir. 2018)
(explaining that even “[a]ssuming that [the claimant’s] testimony regarding her physical

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impairments was not supported by the objective medical evidence, the ALJ cannot properly rely
on that as the sole reason to discredit her testimony” (citing Burch, 400 F.3d at 681)).
b. Disposition
Having found that the ALJ erred by discounting Plaintiff’s symptom testimony based on
her daily activities, the ALJ may not rely on a lack of objective medical evidence as the only

reason to discount her testimony. See Valdez, 746 F. App’x at 677 (“[T]he ALJ may properly
include lack of supporting medical evidence in the reasons to discredit claimant testimony as
long as it is not the only reason[.]” (citing Burch, 400 F.3d at 680)); see also McClaren, 812 F.
App’x at 501; Taylor, 720 F. App’x at 907.
In any event, the ALJ summarized Plaintiff’s medical records but never explained how
those records undermined Plaintiff’s testimony. (Tr. 137-38.) It is well settled than an ALJ must
“specifically identify the testimony from a claimant [the ALJ] finds not to be credible and . . .
explain what evidence undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th
Cir. 2020) (simplified); see also Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015)
(noting that the ALJ must “specify which testimony [the ALJ] finds not credible”). This

specificity requirement is not satisfied where the ALJ does not connect the medical evidence to
any particular symptom testimony. See id. at 494 (“Because the ALJ failed to identify the
testimony she found not credible, she did not link that testimony to the particular parts of the
record supporting her non-credibility determination. This was legal error.”). As a result, the ALJ
erred here by failing to “identify the testimony [he] found not credible” and then “link that
testimony to the particular parts of the record supporting [his] non-credibility determination.” Id.
Even if the ALJ had satisfied the specificity requirement, the ALJ’s reasons for
discounting Plaintiff’s testimony were not supported by clear and convincing evidence in light of

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Plaintiff’s fibromyalgia. The ALJ relied on a December 2021 x-ray revealing “intact motor
strength and intact hand coordination,” “full ranges of extremity motions, full strength, intact
sensations, and normal symmetrical reflexes,” and “[n]o signs of extremity clubbing, cyanosis, or
edema.” (Tr. 138, citing Exs. 12F-10-12, i.e., Tr. 736-38.) However, Plaintiff alleges disability

due in large part to fibromyalgia. (See id. at 133, listing fibromyalgia as one of Plaintiff’s severe
impairments; see also id. at 742, 746, a complete soft tissue exam and all fibromyalgia tender
points were positive). The objective medical evidence on which the ALJ relied is not inconsistent
with debilitating fibromyalgia.4 See Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir.
2017) (stating that normal imaging results and unremarkable physical examinations are
“perfectly consistent with debilitating fibromyalgia,” and noting that fibromyalgia is “diagnosed
‘entirely on the basis of patients’ reports of pain and other symptoms,’ and ‘there are no
laboratory tests to confirm the diagnosis’”) (citation omitted); Nunn v. Berryhill, No. 17-cv-
00203-SB, 2018 WL 2244705, at *12 (D. Or. May 16, 2018) (explaining that fibromyalgia can
be “confirmed as a severe impairment without objective testing” and that “persons suffering

from fibromyalgia ‘manifest normal muscle strength and neurological reactions and have a full
range of motion’”) (citation omitted). As a result, the ALJ erred in discounting Plaintiff’s
testimony on this ground. See Nunn, 2018 WL 2244705, at *12 (explaining that an ALJ commits
reversible error by failing to construe the medical evidence “in light of fibromyalgia’s unique
symptoms and diagnostic methods” and by failing to consider symptom testimony in light of
such a diagnosis (quoting Revels, 874 F.3d at 662-66)); Rita L.S. v. Comm’r Soc. Sec., No. 16-
cv-01981-MC, 2018 WL 4361039, at *5-6 (D. Or. Sept. 13, 2018) (noting that the ALJ

4 The only other treatment note the ALJ cited was a visit at which Plaintiff complained of
facial pain, which is not one of Plaintiff’s disabling impairments. (Tr. 667.)
PAGE 12 – OPINION AND ORDER
discounted the claimant’s testimony based on conflicting objective medical evidence, including
unremarkable examination results, and that courts in this district “have been especially reluctant
to rely on a lack of objective medical evidence when considering fibromyalgia cases,” and
therefore rejecting the ALJ’s reliance on conflicting objective medical evidence).

For all of these reasons, the Court finds that the ALJ erred in discounting Plaintiff’s
subjective symptom testimony.
II. MEDICAL OPINION EVIDENCE
Plaintiff also argues that substantial evidence does not support the ALJ’s explanation for
discounting the opinion of Plaintiff’s nurse practitioner, Willis. (Pl.’s Br. at 15.) The Court
agrees.
A. Applicable Law
As the parties acknowledge (see Pl.’s Br. at 15; Def.’s Br. at 9), the new regulations
apply here because Plaintiff filed her application after March 27, 2017.5 See Woods v. Kijakazi,
32 F.4th 785, 787-92 (9th Cir. 2022) (observing that “[t]he new regulations apply to [a
claimant’s Social Security case if] she filed her claim on or after March 27, 2017,” and that the

new regulations displace the “irreconcilable” and “incompatible” specific and legitimate reasons
standard); see also Petritz v. Kijakazi, No. 22-35155, 2022 WL 17592191, at *1 (9th Cir. 2022)
(explaining that “the standard under the new regulations . . . [did] not apply to [the claimant’s]
case because [he] filed his application for benefits before [March 27,] 2017” (citing Woods, 32
F.4th at 789)).

5 The Ninth Circuit recently held that the new regulations are valid under the Social
Security Act and Administrative Procedures Act. See Cross v. O’Malley, 89 F.4th 1211, 1215-17
(9th Cir. 2024).
PAGE 13 – OPINION AND ORDER
Under the new regulations, “‘[t]he most important factors’ that [an ALJ] considers when
evaluating the persuasiveness of medical opinions are ‘supportability’ and ‘consistency.’”
Woods, 32 F.4th at 791 (quoting 20 C.F.R. § 404.1520c(a)). Supportability refers to “the extent
to which a medical source supports the medical opinion by explaining the ‘relevant . . . objective

medical evidence,’” id. at 791-92 (quoting 20 C.F.R. § 404.1520c(c)(1)), and consistency refers
to “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 (quoting 20 C.F.R. § 404.1520c(c)(2)).
An ALJ “must ‘articulate . . . how persuasive’ [he] finds ‘all of the medical opinions’ from each
doctor or other source, . . . and ‘explain how [he] considered the supportability and consistency
factors’ in reaching [his] findings.’” Id. (quoting 20 C.F.R. §§ 404.1520c(b), 404.1520c(b)(2)).
The new regulations reflect that an ALJ is not required to make specific findings
regarding a medical source’s relationship with the claimant, i.e., “the length and purpose of the
treatment relationship, the frequency of examinations, the kinds and extent of examinations that
the medical source has performed or ordered from specialists, and whether the medical source

has examined the claimant or merely reviewed the claimant’s record.” Id. (quoting 20 C.F.R.
§§ 404.1520c(b)(2), 404.1520c(c)(3)(i)-(v)). Nor is an ALJ required to make findings regarding
specialization or “other factors that tend to support or contradict a medical opinion[, such as the
medical source’s] familiarity with the other evidence in the claim or . . . understanding
of . . . disability program[] policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(b)(2),
404.1520c(c)(4)-(5).
If, however, an ALJ finds that medical opinions “about the same issue are both equally
well-supported . . . and consistent with the record . . . but are not exactly the same, [the ALJ] will
articulate how [he] considered the . . . factors in paragraphs (c)(3) through (c)(5).” Id.

PAGE 14 – OPINION AND ORDER
§ 404.1520c(b)(3). Those factors are the medical source’s relationship with the claimant,
specialization, and facts that tend to support or contradict a medical source’s opinion. Id.
§ 404.1520c(c)(3)-(5).
A district court reviews the ALJ’s evaluation of a medical opinion for substantial

evidence. See Woods, 32 F.4th at 787 (“Now, [under the new regulations,] an ALJ’s decision,
including the decision to discredit any medical opinion, must simply be supported by substantial
evidence.”); id. at 792 (“Even under the new regulations, an ALJ cannot reject an examining or
treating doctor’s opinion as unsupported or inconsistent without providing an explanation
supported by substantial evidence.”); Metcalf v. Kijakazi, No. 22-35201, 2022 WL 17592194, at
*1 (9th Cir. Dec. 13, 2022) (observing that “under the revised regulations . . . , the ALJ’s
evaluation of a medical opinion is reviewed for substantial evidence” (citing Woods, 32 F.4th at
789)).
B. Analysis
The Court concludes that substantial evidence does not support the ALJ’s evaluation of
Willis’ opinion.

1. Willis’ Opinion
Willis treated Plaintiff for her conditions beginning on July 7, 2014. (See Tr. 483.) In July
2019, prior to the relevant period of disability, Willis completed a Certification of Health Care
Provider for Employee’s Serious Health Condition (Family and Medical Leave Act). (Id. at 482.)
Willis reported that Plaintiff was unable to stand or walk during flares, and that she had chronic
muscle and joint pain that was exacerbated by working longer hours. (Id. at 483.) Willis opined
that from July 2019 to July 2020, Plaintiff could work a maximum of nine and a half hours a day,
for four days a week. (Id. at 484.) However, Willis indicated that it was medically necessary for

PAGE 15 – OPINION AND ORDER
Plaintiff to be absent from work due to her flare-ups and that the frequency of her flare-ups at
that time was one or two per month lasting for a half or full day per episode. (Id.)
In October 2020, Willis provided an updated opinion regarding the severity and limiting
effects of Plaintiff’s impairments. (Id. at 909.) Willis explained that Plaintiff was more limited

due to her impairments, and opined that Plaintiff (1) can sit for about an hour before she has to
move again, (2) can walk for around an hour before needing to rest, (3) can engage in activity up
to four hours per day with breaks, (4) has vision changes that prevent her from having clear
vision at dusk, after dark, or when it is raining, (5) can work on a computer for only about two
hours at a time before requiring rest but then is unable to use the computer until the following
day, (6) would be absent more than four workdays per month, and (7) would need to lie down for
several hours during the day because of her fatigue and increased pain. (Id. at 910-12.)
2. The ALJ’s Findings
The ALJ found Willis’ opinion unpersuasive. (Id. at 139.) The ALJ explained that Willis’
opinion was “not supported by the medical reports from Coquille Indian Health, dated between
June of 2016 and August 2021, which indicated [Plaintiff’s] pain management was working

fairly well, and that [Plaintiff] continued to obtain pain relief from opiate analgesics, with no side
effects . . . [and that Plaintiff] also had a normal gait.” (Id. at 139, citing Exs. 8F-5, 84, 87, i.e.,
Tr. 578, 657, 660.) The ALJ further explained that “in June and October 2020, it was noted
[Plaintiff] engage[d] in moderate-level activity, which included exercising three to four times per
week, for five to ten hours a week.” (Id. at 139, citing Exs. 8F-89, 94, i.e., Tr. 662, 667.)
3. Disposition
The Court concludes that the ALJ committed harmful error in discounting Willis’
opinion.

PAGE 16 – OPINION AND ORDER
Plaintiff first argues that the ALJ’s discussion of Plaintiff’s pain relief from opiate
analgesics “lacks relevance” because the record he cited is from June 2016, four years prior to
the relevant period. (Pl.’s Br. at 17, citing Tr. 578.) Plaintiff also asserts that the ALJ relied on a
chart note evaluating acute symptoms of left jaw pain, swelling, and headache, which also lacks

relevance given that these are not the impairments limiting Plaintiff’s ability to work. (Id., citing
Tr. 653, 657.) The Court agrees that neither reason for discounting Willis’ opinion was relevant.
Plaintiff also argues that the remaining citation on which the ALJ relied is a single chart
note from June 2020 indicating that Plaintiff had improved functioning with pain medication,
however, she still experienced back pain at a severity level of ten, which was aggravated by
“ascending stairs, bending, changing positions, bending, performing daily activities, . . .
standing, . . . and walking.” (Id., citing Tr. 665.) Plaintiff asserts that this same treatment note
reflected that Plaintiff was experiencing “aching, burning, dull piercing, sharp, and throbbing”
pain in her “bilateral shoulders, elbows, hips, knees, and ankles.” (Id.) The Court agrees that,
considering the record as a whole, this isolated chart note does not constitute substantial

evidence to discount Willis’ opinion. See Robbins, 466 F.3d at 882 (holding that a reviewing
court must consider the entire record as a whole and may not affirm simply by isolating a
“specific quantum of supporting evidence” (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th
Cir. 1989))); see also Adeena W. v. Saul, No. 6:19-cv-00051-SB, 2020 WL 2992191, at *5 (D.
Or. June 4, 2020) (explaining that an ALJ cannot “cherry-pick” from the record to support their
findings while ignoring evidence that contradicts those findings).
The ALJ’s only other reason to discount Willis’ opinion was that Plaintiff “engage[d] in
moderate-level activity, which included exercising three to four times per week, for five to ten
hours a week.” (Tr. 139.) As discussed above, the medical records on which the ALJ relied were

PAGE 17 – OPINION AND ORDER
not updated and did not reflect Plaintiff’s condition during the relevant period. As such,
Plaintiff’s reported exercise routine from prior years was not a valid reason to discount Willis’
opinion.
For these reasons, the Court finds that the ALJ’s reasons for discounting Willis’ opinion

were not supported by substantial evidence.
III. LAY WITNESS TESTMONY
Finally, Plaintiff argues that the ALJ erred by failing to address her father’s lay witness
testimony. (Pl.’s Br. at 20-21.) The Commissioner argues that because the ALJ properly
considered Plaintiff’s subjective symptom testimony, which was similar to the lay witness
testimony, and the ALJ properly discounted Plaintiff’s subjective testimony, any error in failing
to give germane reasons for rejecting the lay witness testimony was harmless. (Def.’s Br. at 11-
12.)
A. Applicable Law
The new regulations “provid[e] that an ALJ is ‘not required to articulate how [he]
considered evidence from nonmedical sources[.]’” Stephens v. Kijakazi, No. 22-35998, 2023 WL

6937296, at *2 (9th Cir. Oct. 20, 2023) (emphasis added) (quoting 20 C.F.R. §§ 404.1520c(d),
416.920c(d)). The Ninth Circuit recently recognized that it has “not yet addressed whether an
ALJ is required to provide germane reasons for discounting lay witnesses under the new
regulations.” Wilson v. O’Malley, No. 23-35463, 2024 WL 2103268, at *2 (9th Cir. May 10,
2024) (stating as much and finding it unnecessary to decide the issue because “any error would
be harmless”).
In at least two unpublished opinions, the Ninth Circuit has appeared to endorse the
position that an ALJ is no longer required to address lay testimony. In Kennedy v. O’Malley, No.

PAGE 18 – OPINION AND ORDER
22-35866, 2024 WL 242992, at *1-2 (9th Cir. Jan. 23, 2024), for example, the claimant argued
that the ALJ improperly discounted lay witness testimony (i.e., of a Social Security
Administration field office employee who conducted an in-person interview of the claimant). Id.;
see also David I. K. v. Comm’r Soc. of Soc. Sec., No. 3:21-cv-05904, 2022 WL 4008216, at *4

(W.D. Wash. Sept. 2, 2022) (describing the statement and additional factual circumstances). In
affirming the district court’s decision, the Ninth Circuit stated that “[t]he ALJ did not articulate
how he evaluated the statement of a Social Security Administration employee[;] [h]owever, an
ALJ is ‘not required to articulate how [she] considered evidence from nonmedical sources’ under
the new regulations.” Kennedy, 2024 WL 242992, at *2 (quoting 20 C.F.R. §§ 404.1520c(d),
416.920c(d)). Immediately thereafter, the Ninth Circuit stated that “even assuming [the ALJ did
err], any error was harmless . . . [, as] [n]othing in the statement about the employee’s interaction
with [the claimant] would alter any of the ALJ’s conclusions based upon objective medical
evidence.” Id.
About one year earlier, the Ninth Circuit stated (albeit in a footnote of an unpublished

opinion) that the new regulations make it clear that ALJs are no longer required to articulate in
their decisions how they considered evidence from lay witnesses. See Fryer v. Kijakazi, No. 21-
36004, 2022 WL 17958630, at *1 n.1 (9th Cir. Dec. 27, 2022) (“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.” (citing Johnson v. Kijakazi,
No. 21-35755, 2022 WL 3998572, at *2 (9th Cir. Sept. 1, 2022))); see also Johnson, 2022 WL
3998572, at *2 (finding it unnecessary to address the Commissioner’s argument that “under the
new, 2017 regulations, the ALJ does not need to discuss ‘non-medical sources’ in [his]
decision”).

PAGE 19 – OPINION AND ORDER
Like Kennedy, some district courts in this circuit have “concluded that the new
regulations may dispense with an ALJ’s obligation specifically to address lay witness testimony,
including any obligation to articulate germane reasons for disregarding lay testimony.” Tracy Q.
v. Kijakazi, No. 6:22-cv-00692-SI, 2024 WL 706963, at *7 (D. Or. Feb. 21, 2024) (citing Evans

v. Comm’r of Soc. Sec., No. 2:22-cv-00435, 2023 WL 3570083, at *9 (E.D. Cal. May 19, 2023));
see also Evans, 2023 WL 3570083, at *9 (“[T]he new regulations only require consideration of
these statements, not articulation. . . . Portions of [the caregiver’s] statement are discussed
throughout the decision, such that the undersigned is satisfied the ALJ met his duty to consider
this evidence.” (citing 20 C.F.R. § 404.1520c(d))). Although some district courts have held
otherwise, the “majority of district courts in this circuit,” including this Court, have “conclude[d]
that the new regulations have not eliminated an ALJ’s obligation to consider and address lay
witness testimony.” Tracy Q., 2024 WL 706963, at *7 (citing, inter alia, Christopher M. v.
Comm’r, Soc. Sec. Admin., No. 6:22-cv-01378-SB, 2023 WL 8827678, at *10 (D. Or. Dec. 21,
2023) and Joseph L. S. v. Kijakazi, No. 5:23-cv-00006, 2023 WL 5611408, at *5 (C.D. Cal. Aug.

30, 2023)).
In reaching the same conclusion, the district court in Tracy Q. explained that the new
regulations are not “clearly irreconcilable” with existing caselaw and insufficient to overrule
binding circuit precedent:
On the Court’s reading, the new regulations do not eliminate an ALJ’s
obligation to consider and address lay witness testimony. The revised regulations
describe how to evaluate medical opinion testimony. The fact that the regulations
state that nonmedical opinion testimony is not held to the same standard as
medical opinion testimony says nothing about the standard to which nonmedical
opinion testimony is held. Thus, the new regulations are not “clearly
irreconcilable” with existing caselaw and are insufficient to overrule binding
Ninth Circuit precedent that an ALJ must comment on lay witness testimony and
provide germane reasons to discount it. See Woods v. Kijakazi, 32 F.4th 785, 790
PAGE 20 – OPINION AND ORDER
(9th Cir. 2022) (“[Ninth Circuit] precedent controls unless its reasoning or theory
is clearly irreconcilable with the reasoning or theory of intervening higher
authority, which in this case is the agency’s updated regulations.”). Further, “[t]he
requirement that an ALJ consider lay witness testimony comes from other
regulations, regulations that remain intact after the 2017 amendment.” Joseph L.
S., 2023 WL 5611408, at *5 (citing 20 C.F.R. §§ 416.913(a), 416.929(a)). The
Ninth Circuit’s requirement from the line of cases described above that an ALJ
must provide germane reasons to discount lay witness testimony finds support in
this regulatory requirement, which still remains. See, e.g., Dodrill v. Shalala, 12
F.3d 915, 918-19 (9th Cir. 1993) (“Disregard of [lay witness testimony] violates
the Secretary’s regulation that he will consider observations by non-medical
sources as to how an impairment affects a claimant’s ability to work[,] 20 C.F.R.
§ 404.1513(e)(2).” (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.
1987)). Thus, the contention “[t]hat an ALJ can disregard or reject relevant lay
evidence for no reason is inconsistent with the Commissioner’s obligation to
consider such evidence[] and the rule [that] the ALJ must provide some rationale
in order for the [c]ourt to meaningfully determine whether the ALJ’s conclusions
are free of legal error and supported by substantial evidence.” Gary J.D. v.
Comm’r of Soc. Sec., No. 22-cv-1821, 2023 WL 5346621, at *14 (W.D. Wash.
Aug. 21, 2023).
Tracy Q., 2024 WL 706963, at *8 (footnotes omitted).6
In addition to this Court and the district judge in Tracy Q., several other judges from this
district have concluded that the new regulations have not eliminated an ALJ’s obligation to
articulate their assessment of lay witness testimony. See Liesa M-B v. Comm’r, Soc. Sec. Admin.,
No. 1:22-cv-01213-MK, 2024 WL 1007886, at *7 (D. Or. Mar. 8, 2024) (“[The Commissioner]
suggests it is an ‘open question’ whether ALJs are still required to consider lay witness evidence
under the revised regulations, . . . [but] this Court still requires ALJs to provide germane reasons
for dismissing lay witness testimony.”); Tonyia P. v. Comm’r, Soc. Sec. Admin., No. 6:20-cv-

6 The Court notes that the district court in Joseph L.S. “cited the regulatory provisions
applicable to Title XVI claims—the same regulatory provisions applicable to Title II claims are
in 20 C.F.R. §§ 404.1513, 404.1529.” Tracy Q., 2024 WL 706963, at *8 n.6. The Court also
notes that “[t]he requirement that the Commissioner consider nonmedical evidence in
adjudicating Title II claims is now in 20 C.F.R. § 404.1513(a)(4).” Id. at *8 n.7.
PAGE 21 – OPINION AND ORDER
00942-MO, 2024 WL 36713, at *2 (D. Or. Jan. 3, 2024) (“Under the new regulations, . . . the
ALJ must still articulate their assessment of lay witness statements.” (citing Tanya L.L. v.
Comm’r Soc. Sec., 526 F. Supp. 3d 858, 869-70 (D. Or. 2021) (Brown, J.))); Janet M. v. Comm’r
Soc. Sec. Admin., No. 6:21-cv-00725-AR, 2023 WL 3318777, at *6 (D. Or. May 9, 2023)

(same); Christopher K. v. Comm’r, Soc. Sec. Admin., 649 F. Supp. 3d 1041, 1049 (D. Or. 2023)
(Hernández, J.) (same).
B. Analysis
The Court finds that the ALJ was required but failed to provide germane reasons for
rejecting Plaintiff’s father’s lay witness testimony.
1. Lay Witness Testimony
Plaintiff’s father reported, inter alia, that Plaintiff experienced constant pain, fatigue,
nausea, low energy, and exhaustion, and could no longer do much outside of her home. (Tr. 371.)
He provided a detailed accounting of Plaintiff’s limitations (id. at 371-78), concluding that her
condition had deteriorated over the years and she used to be active and happy but now struggles
with “just normal day to day things[.]” (Id. at 378.)

2. The ALJ’s Findings
The ALJ stated that he “considered” the lay witness testimony and acknowledged that lay
testimony “can be helpful in making findings regarding the claimant’s ability to complete
activities of daily living[.]” (Tr. 137.) The ALJ then stated, “[h]owever, this is considered
evidence from a non-medical source” and provided no further analysis. (Id.)
3. Disposition
The Court adheres to its previous holding that ALJs are still required to articulate their
evaluation of lay witness testimony. See Christopher M., 2023 WL 8827678, at *10 (“Under the

PAGE 22 – OPINION AND ORDER
new regulations, . . . the ALJ must still articulate their assessment of lay witness statements.”);
see also Lance A. v. Kijakazi, No. 6:21-cv-00723-SB, 2023 WL 2728861, at *3 (D. Or. Mar. 31,
2023) (describing the legal standard applicable to lay witness testimony and noting that a judge
from this district held that “ALJs ‘must continue to give germane reasons for discounting lay

witness testimony’ and conclud[ed] that ‘under the new regulations . . . an ALJ’s failure to
address lay testimony is error’” (quoting Kimberly T. v. Kijakazi, No. 3:20-cv-01543-SI, 2022
WL 910083, at *7 (D. Or. Mar. 29, 2022))); Joseph B. v. O’Malley, No. 2:23-cv-00750-SI, 2024
WL 1636525, at *9 (D. Or. Apr. 16, 2024) (“The Commissioner argues that under new
regulations governing the evaluation of medical evidence, an ALJ need not provide any reason
for rejecting lay witness statements. This Court repeatedly has rejected this argument and still
requires ALJs to provide a germane reason to reject lay witness testimony.”).
The Court further concludes that the ALJ’s failure to consider the lay testimony was
harmful in light of the ALJ’s failure to provide legally sufficient reasons to discount Plaintiff’s
testimony where both Plaintiff and her father testified to similar limitations. See Janet M., 2023

WL 3318777, at *6 (noting that “as explained above, the ALJ did not provide legally sufficient
reasons to discount plaintiff’s subjective symptom testimony” and “[t]herefore, the ALJ erred in
failing to consider the lay witness statements”); cf. Christopher K., 649 F. Supp. 3d at
1050 (explaining that the lay witness’ “statements are substantially similar to
Plaintiff’s testimony[,]” “[t]he Court has already concluded the ALJ erred when she partially
rejected Plaintiff’s testimony because the ALJ failed to provide support for her opinion based on
substantial evidence in the record[,]” and “[t]he Court also concludes on the same basis that the
ALJ erred when she rejected” the lay witness’ testimony).
///

PAGE 23 – OPINION AND ORDER
IV. REMEDY
Plaintiff asks the Court to remand for further administrative proceedings or an immediate
award of benefits. (Pl.’s Br. at 21; Pl.’s Reply Brief at 7-9, ECF No. 16.) The Commissioner
responds that there are significant conflicts and ambiguities in the record and Plaintiff has failed
to demonstrate that a finding of disability would be required if the evidence was credited as true.

(Def.’s Br. at 12-13.) The Court finds that the credit-as-true standard is satisfied here and that
remand for the payment of benefits is appropriate.
A. Applicable Law
“Generally when a court of appeals reverses an administrative determination, ‘the proper
course, except in rare circumstances, is to remand to the agency for additional investigation or
explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). In
several cases, however, the Ninth Circuit has “stated or implied that it would be an abuse of
discretion for a district court not to remand for an award of benefits when [the three-part credit-
as-true standard is] met.” Garrison, 759 F.3d at 1020 (citations omitted).
The credit-as-true standard is met if three conditions are satisfied: “(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.” Id. (citations omitted).
Even when the credit-as-true standard is met, the court retains the “flexibility to remand for
further proceedings when the record as a whole creates serious doubt as to whether the claimant
is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021.
///

PAGE 24 – OPINION AND ORDER
B. Analysis
The Court finds that the credit-as-true standard is satisfied here and that remand for the
payment of benefits is appropriate.
The Court has concluded that the ALJ failed to provide legally sufficient reasons for
rejecting Plaintiff’s testimony, Willis’ medical opinion, and Plaintiff’s father’s testimony. The

record has been fully developed, including treatment notes spanning the relevant time period,
opinions from several medical sources, and Plaintiff’s testimony about the severity and effects of
her impairments, and further proceedings would serve no useful purpose. See Garrison, 759 F.3d
at 1021 (“Although the Commissioner argues that further proceedings would serve the ‘useful
purpose’ of allowing the ALJ to revisit medical opinions and testimony that she rejected for
legally insufficient reasons, our precedent and the objectives of the credit-as-true rule foreclose
the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a
remand for a ‘useful purpose’ under the first part of credit-as-true analysis.”) (citations omitted).
Further, if Plaintiff’s symptom testimony and Willis’ medical opinion are credited as true,
the record reflects that Plaintiff would miss two or more days of work per month due to her

impairments. (Id. at 196, 201, 204-05, 909-12.) The VE testified that a person missing two or
more days per month of work “would not be able to meet competitive employment demands[.]”
(Tr. 214.) As a result of the VE’s testimony, the ALJ would be required to find Plaintiff disabled
on remand. See Garrison, 759 F.3d at 1022 n.28 (explaining that “there is no need to develop the
record or convene further administrative proceedings” where “the VE answered a question
describing a hypothetical person with the RFC that the claimant would possess were the relevant
opinion or testimony taken as true”). Finally, the Court does not have any serious doubt as to

whether Plaintiff is disabled within the meaning of the Social Security Act.
PAGE 25 – OPINION AND ORDER
For these reasons, the Court remands this case for the calculation and payment of
benefits. See Varela v. Saul, 827 F. App’x 713, 714-15 (9th Cir. 2020) (reversing district court
opinion remanding for further proceedings and instead remanding with instructions to “remand
to the Commissioner of Social Security for an award of benefits” where “crediting [the treating
physician’s] opinion as true, there is no doubt that [the claimant] was disabled”); Smith v. Saul,
820 F. App’x 582, 586 (9th Cir. 2020) (reversing district court opinion affirming the denial of
benefits and instead remanding “with instructions to remand to the ALJ for calculation and
award of benefits” where “[t]he vocational expert concluded that an individual with [the
claimant’s] limitations, as described in the improperly discredited testimony . . . would be unable
to perform competitive employment”).
CONCLUSION
For the reasons stated, the Court REVERSES the Commissioner’s decision and
REMANDS for the calculation and payment of benefits.
IT ISSO ORDERED.
DATED this 15th day of July, 2024. by . 7, Kou
ST Y) 7
HON. STACIE F. BECKERMAN
United States Magistrate Judge

PAGE 26 — OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666336. Public record. Not legal advice.