Kibby v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

KIMBERLY K.,1 Case No. 6:23-cv-00408-HL

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

_________________________________________

HALLMAN, United States Magistrate Judge:

Plaintiff Kimberly K. 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 plaintiff’s applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI

of the Act. 42 U.S.C. § 401 et seq. For the following reasons, the decision of the Commissioner

is REVERSED and REMANDED.

1 In 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.

STANDARD OF REVIEW

42 U.S.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 asthma, an intellectual disability, small fiber

neuropathy, vision issues, leg paralysis, use of a cane and a walker, and depression. Tr. 143.2 At

2 Citations to “Tr.” are to the Administrative Record. (ECF 12).

the time of her alleged onset date, she was 47 years old. Id. She has completed high school and

can no longer perform her past relevant work as a housekeeper cleaner, and a housekeeper

cleaner/cafeteria attendant. Tr. 86.

Plaintiff protectively applied for DIB and SSI on June 1, 2020, alleging an onset date of

January 14, 2018. Tr. 143-44, 159-60. Her applications were denied initially on September 2,

2020, and on reconsideration on April 13, 2021. Tr. 157-58, 173, 202-03, 227-28. Plaintiff

subsequently requested a hearing, which was held on February 15, 2022, before Administrative

Law Judge (“ALJ”) Henry Kramzyk. Tr. 102. Prior to the hearing, plaintiff amended her alleged

onset date to January 31, 2020. Tr. 405. Plaintiff appeared and testified at the hearing,

represented by counsel. Tr. 102-42. A vocational expert (“VE”), Chad Kollars, also testified. Tr.

134-42. On March 14, 2022, the ALJ issued a decision denying plaintiff’s claim. Tr. 88. Plaintiff

requested the Appeals Council review ALJ Kramzyk’s decision, which was denied on January

31, 2023. Tr. 1-7. Plaintiff then sought review before this Court.

II. 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

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.” Id.; 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. Id. 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.

III. The ALJ’s Decision

At step one, the ALJ determined that plaintiff had not engaged in substantial gainful

activity since January 31, 2020, the amended alleged onset date. Tr. 72.

At step two, the ALJ determined that plaintiff has the following severe impairments:

“peripheral neuropathy, asthma, obesity, depression, anxiety, and intellectual disorder.” Id.

At step three, the ALJ determined that plaintiff’s impairments did not meet or medically

equal the severity of a listed impairment. Tr. 73. The ALJ then resolved that plaintiff had the RFC

to perform light work with the following limitations:

[S]he can lift, carry, push, and pull 20 pounds occasionally and 10 pounds

frequently. She can sit for 6 hours in an eight-hour workday and stand and/or walk

for 6 hours in an eight-hour workday. She can occasionally climb ramps and stairs.

She can never climb ladders, ropes, or scaffolds. She can occasionally balance and

stoop. She can never crouch, kneel, and crawl. She is able to understand, remember

and carry out short, routine and repetitive instructions. She is able to sustain

attention/concentration for 2-hour periods at a time and for 8 hours in the workday

on short, routine repetitive instructions. She can use judgment in making work

decisions related to short, routine repetitive instructions. [She] requires an

occupation with only occasional co-worker contact and supervision. She requires

an occupation with set routine, procedures and instructions, and occasional changes

during the workday. She requires an occupation with only occasional contact with

the public. She can do work with no requirement to meet defined production quotas,

such as production line work. She can maintain regular attendance and be punctual

within customary tolerances. She can perform activities within a schedule. She must

avoid concentrated exposure to extreme cold and extreme heat. She must avoid

concentrated exposure to fumes, odors, dusts, gases, and pulmonary irritants. She

must avoid concentration exposure to vibration. She must avoid concentrated

exposure to hazards such as dangerous machinery and unprotected heights.

Tr. 77.

At step four, the ALJ found that plaintiff could no longer perform her past relevant work

as a housekeeper cleaner and housekeeper cleaner/cafeteria attendant. Tr. 85-86. At step five—

considering plaintiff’s age, education, work experience, and RFC—the ALJ found that a

significant number of jobs existed in the national economy that plaintiff could perform, including

work as a hand bander, paper pattern folder, and ironer. Tr. 87. Thus, the ALJ concluded that

plaintiff is not disabled. Tr. 88.

DISCUSSION

Plaintiff argues that the ALJ committed three errors: (1) failing to identify specific, clear

and convincing reasons for rejecting plaintiff’s subjective symptom testimony; (2) improperly

rejecting the medical opinions of Jeremy Lanford, M.D., Kiley Gilbert, PMHNP, Michael

Conner, Psy. D., and William Trueblood, M.D.; and (3) improperly rejecting the lay witness

testimonies of plaintiff’s mother, three acquaintances, and a services coordinator.

I. Subjective Symptom Testimony

Plaintiff contends that the ALJ failed to provide specific, clear and convincing reasons to

reject her symptom testimony. Pl.’s Br. 13-15. This Court finds that the ALJ’s rejection of

plaintiff’s testimony concerning her medical conditions was supported by substantial evidence,

but that the ALJ’s finding as to her mental health conditions was not.

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. Id.

Second, the ALJ must assess the claimant’s testimony regarding the severity of the

symptoms. Id. The ALJ can reject the claimant’s testimony “only by offering specific, clear and

convincing reasons for doing so.” Id. 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).

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, full-time basis because of a

neuropathy in her left leg, numbness she experiences in both legs and feet, an inability to control

her eyelids at times, asthma, and pain in her legs, feet, and right lower back. Tr. 120-22. She

testified that she is taking medication for her pain, two inhalers for her asthma, sleeping pills,

and some medication for depression. Tr. 122. She further testified that she experiences coughing

as a side effect of her inhalers and blurred vision as a side effect of her pain medication. Tr. 122-

23. She has not undergone any other kinds of treatment, like physical therapy, for her physical

impairments. Tr. 123. When asked about her physical capabilities, she testified that she could lift

and carry a gallon of milk, walk for 30 minutes, stand for 15 minutes, sit for 30 minutes, and that

she can use her arms and hands. Tr. 123-24. As for her daily activities, plaintiff testified that she

has her caregiver help with vacuuming and dusting, laundry, and shopping. Tr. 124. She also

clarified that she does not need help taking care of her personal hygiene, getting dressed, or

taking care of her finances, and that she drives. Tr. 124-26.

When asked to elaborate on the numbness plaintiff experiences, she explained that her

legs will freeze, as if paralyzed, and she will be unable to move for up to three hours. Tr. 128.

She further explained that these episodes are brought on by sitting or standing for too long but

did not elaborate on how long. Id. She stated that the leg paralysis happens two or three times a

month. Tr. 129. She then explained that her inability to open her eyes happens twice a day, once

in the morning and once at night, and lasts for approximately 30 minutes. Id. When asked to

elaborate on her reason for needing a caregiver, plaintiff testified that she needs the caregiver

because it takes her a longer time to do ordinary tasks, such as cleaning, because she needs more

breaks. Tr. 131-32. She then testified that she uses a cane because she has balance issues that

cause her to fall at least once a month. Tr. 132-33. As for her sleep quality, she stated that she

only gets two to three hours a night because of her pain, and that she must take three-hour naps

during the day. Tr. 133. When asked about her memory and concentration, she testified that he

has to have reminders of her appointments even when she writes them down, and that she will go

somewhere to do a task but forget why she is there. Tr. 134.

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. 78. The

ALJ reasoned that plaintiff’s testimony concerning her physical limitations was inconsistent with

her conservative treatment and the objective medical evidence. Tr. 73, 81.3 The ALJ found that

Plaintiff’s testimony concerning her mental limitations was inconsistent with evidence of her

daily activities, as well as her conservative medical treatment and evidence from the medical

record. Id.

C. Daily Activities

Activities of daily living can form the basis for an ALJ to discount a claimant’s testimony

in two ways: (1) as evidence a claimant can work if the activities “meet the threshold for

transferable work skills”; or (2) where the activities “contradict [a claimant’s] testimony.” Orn,

495 F.3d at 639.

Plaintiff stated that she was unable to sit, stand, or walk for any significant length of time

due to pain and numbness in her legs, and that she had trouble with her memory, insofar as

needing reminders even after writing things down. She also stated that she has a caregiver that

vacuums and dusts and takes care of the laundry because she physically cannot do these tasks.

Tr. 123-24, 134. In discounting plaintiff’s testimony because of her daily activities, the ALJ cited

plaintiff’s ability to do some chores, independently shower and dress, pay bills online, drive, that

she took a vacation in 2021, that she is able to use a smartphone, use the internet, use social

media, and gets along with her family. Tr. 81. Plaintiff argues that her ability to perform these

activities does not undermine her testimony. The Court agrees.

Plaintiff testified that she does not vacuum or dust, that her caregiver cleans the bathroom

and floors, that she has help from her caregiver when she does the laundry, that she goes grocery

3 The Commissioner asserts that “[t]he ALJ did not cite Plaintiff’s activity level as being

inconsistent with her physical complaints, only her mental complaints.” Def.’s Br. 7 n. 5.

Accordingly, this Court only addresses Plaintiff’s activity level with respect to her mental

conditions.

shopping with her caregiver, and what chores she can do, she does only “a little.” Tr. 124, 131.

Plaintiff did testify that she took a vacation in 2021, but there was no elaboration of any actual

activities that took place there, making this an inappropriate line of reasoning on which the ALJ

relied. Tr. 125. It is unclear how these activities meet the threshold for transferrable work skills

or how they contradict plaintiff’s testimony. A plaintiff cannot be penalized for trying to live

some semblance of a normal life, and an ability to complete certain routine activities is

insufficient to discount subjective symptom testimony. See Molina v. Astrue, 674 F.3d 1104,

1112-13 (9th Cir. 2012) (noting that a “claimant need not vegetate in a dark room in order to be

eligible for benefits” (quotation marks omitted)). Tellingly, the ALJ does not elaborate on what

activities contradict plaintiff’s testimony regarding either her physical or mental impairments.

Given that plaintiff requires help in order to effectuate any household activities outside of her

personal hygiene, and that she took a vacation with her parents in their motorhome, no

reasonable inference that plaintiff is somehow physically more capable than alleged can be

drawn. Furthermore, none of these activities has any bearing on plaintiff’s mental health

condition, and the mere fact that plaintiff is capable of using a smartphone, the internet, and

social media, without more, neither contradicts plaintiff’s testimony nor establishes that she is

somehow more capable than alleged.

In sum, because the ALJ did not connect those activities to any symptom or the degree of

any symptom alleged by plaintiff, he cannot rely on Plaintiff’s activity level to discount her

testimony regarding her mental health limitations. Garrison v. Colvin, 759 F.3d 995, 1016 (9th

Cir. 2014) (“We have repeatedly warned that ALJs must be especially cautious in concluding

that daily activities are inconsistent with testimony about pain, because impairments that would

unquestionably preclude work and all the pressures of a workplace environment will often be

consistent with doing more than merely resting in bed all day.”). Accordingly, Plaintiff’s activity

level does not provide a clear and convincing reason for rejecting Plaintiff’s testimony.

D. Inconsistent Medical Record

An ALJ may reject a claimant’s symptom testimony if that testimony is contradicted by

evidence in the medical record. Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1161

(9th Cir. 2008); see also Smartt, 53 F4th at 498 (“When objective medical evidence in the record

is inconsistent with the claimant’s subjective testimony, the ALJ may indeed weigh it as

undercutting such testimony.”). While an ALJ may also consider the lack of corroborating

objective medical evidence as one factor in “determining the severity of the claimant’s pain,”

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001), they cannot reject subjective pain

testimony solely on that basis. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006);

see also 20 C.F.R. § 404.1529(c)(2) (the Commissioner “will not reject your statements about the

intensity and persistence of your pain or other symptoms or about the effect your symptoms have

on your ability to work solely because the available objective medical evidence does not

substantiate your statements”). In sum, “an ALJ cannot effectively render a claimant’s subjective

symptom testimony superfluous by demanding positive objective medical evidence ‘fully

corroborat[ing]’ every allegation within the subjective testimony.” Smartt, 53 F.4th at 498

(quoting Burch, 400 F.3rd at 681)).

i. Physical symptoms.

The ALJ concluded that plaintiff’s testimony regarding her weakness in her lower

extremities was contradicted by medical records showing that her neuropathy was not as severe

as alleged, and by testing results showing that her reported limitations did not exist. Tr. 80-81.

As support for this conclusion, the ALJ pointed to records showing that in May 2020, five

months after her alleged onset date, that her pain was only moderate, the back pain was new, that

her complaints of weakness were volitional and functional with no known cause and no

neurological concerns on exam, her falls were rare, and her gabapentin was improving her pain.

Tr. 977. On testing, she had full motor strength, reflexes, and senses, with only a slight reduction

in temperature in her lower extremities, an absent Rhomberg test, and she was able to tandem

walk. Tr. 978. In August 2020, she complained of full body paralysis rather than just her legs,

but otherwise her condition had not changed, with it being noted once again that her episodic

paralysis was more than likely volitional since it was without clear cause, and her gabapentin

was increased. Tr. 989. In November 2020, she was evaluated again for her weakness, notably

she no longer complained of full body paralysis, but the weakness was still present in her legs.

Tr. 1100. Her gabapentin was again increased, and it was noted that while her weakness was due

to a functional disorder, there were “no concerns regarding these episodes.” Id. In February

2021, records remained the same as they were in November 2020, except that her gabapentin

further improved her pain and neurological evaluation revealed no issues related to leg weakness.

Tr. 1097. More testing was done throughout 2021, from July to October, all of which repeated

her previous results, with the addition of results showing she had no gait or balance issues. See

Tr. 1172-73, 1169, 1195, 1332-33.

Based on the record before the Court, the ALJ provided clear and convincing reasons,

supported by substantial evidence, for rejecting plaintiff’s subjective symptom testimony about

her physical limitations based on contradictory medical evidence. The ALJ’s citation to these

objective findings is “sufficiently specific to permit the court to conclude that the ALJ did not

arbitrarily discredit claimant’s testimony.” Thomas, 278 F.3d at 958. This objective evidence is

therefore a clear and convincing reason, supported by substantial evidence, for discounting

plaintiff’s subjective symptom testimony.

ii. Mental symptoms.

As for her mental health, plaintiff testified that she has issues with her memory and

concentration, such that she needs reminders and will sometimes forget what she is attempting to

do. Tr. 133. According to plaintiff’s function reports from July 1, 2020, she sometimes needs

reminders to take her medication, she cannot pay bills, count change, handle a savings account,

use a checkbook, has difficulty with anything math related, and suffers from memory loss and

loss of focus. Tr. 471, 473-74. She is able to pay attention for up to one hour, usually finishes

what she starts, including chores, reading, and watching movies, and can follow written and

spoken instructions as well as get along with authority figures. Tr. 474. Plaintiff’s function report

from July 13, 2020, shows that plaintiff sometimes needs reminders to brush her teeth, that she is

able to pay bills but not count change, handle a savings account, or use a checkbook, and that she

enjoys working on puzzles and reading, and that changes in routine do not bother her much. Tr.

502, 504, 507-08. In an updated function report from February 19, 2021, plaintiff stated she has

difficulty focusing and spelling, has poor memory which causes her to misplace things, has

difficulty learning things, and she is easily distracted. Tr. 535. She also stated she continues

doing puzzles and reading, that she can only pay attention for 10-15 minutes, that she gets easily

distracted, that she has to read written instructions a few times, and that she needs spoken

instructions repeated as well. Tr. 536, 540.

The ALJ concluded that plaintiff’s testimony was inconsistent with the medical evidence

because of mental status examination findings. Tr. 80. As support for his conclusion, the ALJ

pointed to a psychological examination from January 2019, where plaintiff had a full-scale IQ of

72, leading to a diagnosis of mild intellectual disability. Tr. 1155-63. Despite her low IQ, she

was able to maintain attention throughout the testing, her statements were relevant, coherent,

logical, and goal directed. Tr. 1157. In June 2020, she reported being depressed and anxious but

also that she was improving through a combination of behavioral changes and Celexa. Tr. 1037.

A report from August 2020 was much the same, with normal thought content, goal-directed

thought processes, fair judgment, and limited insight. Tr. 1023.

A year later, in August 2021, plaintiff underwent a second psychological evaluation in

which she had a full-scale IQ score of 69, again reflecting a mild intellectual disability. Tr. 1172.

In September 2021, plaintiff again displayed normal thought content and goal-directed thought

processes with fair judgment and limited insight. Tr. 1231. In October 2021, she displayed fair

insight and judgment though had slowed speech and lower than average intelligence. Tr. 1338. In

a summary of treatment report from October 2021, plaintiff had impaired speech such that she

was asked to speak up and repeat herself, her intelligence was in the below average to average

range, her short-and-long-term memory were seemingly intact, she had an average to above

average fund of knowledge, and some impairment of her executive functioning such that she had

some difficulty walking. Tr. 1234. In January 2022, plaintiff reported her mood was stable

overall, that she had some anxiety, and that panic symptoms were rarely experienced. Tr. 1248.

Here, the ALJ failed to connect how Plaintiff’s mental status reports or other objective

medical evidence contradict her testimony concerning her memory, concentration, and ability to

function. The ALJ gives a cursory review of her treatment, rarely mentioning what affect her

treatment is having or how and why she is undergoing treatment. Further, all objective medical

evidence cited by the ALJ demonstrates that Plaintiff had mental limitations, including a mild

intellectual disability and issues with her speech, insight, and judgment. To be sure, the mental

status reports and objective medical evidence cited by the ALJ does not fully corroborate

Plaintiff’s testimony concerning her mental limitations, but such corroboration is not required.

Smartt, 53 F.4th at 498. Accordingly, the ALJ’s rejection of Plaintiff’s subjective symptom

testimony as inconsistent with the objective medical evidence was not supported by substantial

evidence.

E. Conservative treatment

“[I]n order to get benefits, an individual must follow treatment prescribed by his or her

physician if the treatment can restore the ability to work, unless the individual has an acceptable

reason for failing to follow the prescribed treatment.” Orn v. Astrue, 495 F.3d 625, 636-37 (9th

Cir. 2007). An ALJ may reject a claimant's testimony when the severity of symptoms alleged is

inconsistent with the level or frequency of treatment. See Molina, 674 F.3d at 1113 (quoting

Social Security Ruling (“SSR”) 96–7p, 1996 WL 374186, at *7 (July 2, 1996); Burch v.

Barnhart, 400 F.3d 1111, 1114 (9th Cir. 2005)). In some instances, use of conservative treatment

such as over-the-counter medication is “sufficient to discount a claimant's testimony regarding

severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007).

i. Mental limitations.

With respect to Plaintiff’s mental health limitations, the ALJ found that “treatment for the

claimant’s condition has been conservative in nature. There is no indication that she has required

aggressive medical intervention to manage her mentally based symptoms.” Tr. 75. He also found

that “[t]he record does not contain evidence of any inpatient hospitalizations for her mental

condition.” Tr. 81. These conclusory statements regarding the conservative nature of the

treatment are insufficient. To begin with, the “lack of inpatient medical care does not render

claimant’s mental health treatment ‘conservative.’” Scott H. v. Comm'r, Soc. Sec. Admin., 2023

WL 4249276, *4 (D. Or. June 29, 2023). The ALJ also failed to cite to any other treatment that

would have been available for Plaintiff’s mental health conditions. The record does not reflect

what additional treatment for Plaintiff’s mental limitations was available, much less treatment

that Plaintiff failed to follow and that would have restored her ability to work. As such, the

ALJ’s reliance on conservative treatment to reject Plaintiff’s symptom testimony was not

supported by substantial evidence.

ii. Physical limitations.

With respect to Plaintiff’s physical limitations, the ALJ concluded that “her treatment has

been conservative in nature. The claimant is treated with medications and in October 2021 she

reported some improvement with medications.” Tr. 79. The ALJ also found that Plaintiff’s

“treatment records showed that providers offered at most conservative treatment, the treatment

offered was generally effective, and providers never opined that they caused the claimant any

specific work related functional limitations.” Tr. 73. Unlike with respect to Plaintiff’s mental

health conditions, here, the ALJ specifically references the treatment modalities provided to

Plaintiff and records demonstrating that conservative treatment was generally effective. Thus, the

ALJ provided sufficient support for his rejection of plaintiff’s subjective symptom testimony

based on her conservative treatment.

F. Conclusion

In sum, the ALJ provided clear and convincing reasons, supported by substantial

evidence, for rejecting plaintiff’s subjective symptom testimony as to her physical conditions as

inconsistent with her conservative treatment and the objective medical evidence. On the other

hand, the ALJ failed to provide clear and convincing reasons, supported by substantial evidence,

for rejecting her subjective symptom testimony as to her mental limitations as inconsistent with

evidence of her daily activities, her conservative medical treatment and the objective medical

evidence.

II. Medical Opinions

Plaintiff alleges that the ALJ’s rejection of the opinions of by Dr. Lanford, Dr.

Trueblood, and Kiley Gilbert, PMHNP, as inconsistent and unsupported was not supported by

substantial evidence. Pl.’s Br. 6-13.4 This Court finds that the ALJ’s rejection of Dr. Lanford’s

testimony was supported by substantial evidence, but the rejections of Dr. Trueblood and

Gilbert’s opinions were not.

A. Legal standards

For disability claims filed on or after March 27, 2017, new regulations for evaluating

medical opinion evidence apply. Revisions to Rules Regarding the Evaluation of Medical

Opinion Evidence (Revisions to Rules), 2017 WL 168819, 82 Fed. Reg. 5844, at *5867-68 (Jan

18, 2017). Under those revised regulations, the ALJ no longer “weighs” medical opinions but

instead determines which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a). The new

regulations eliminate the hierarchy of medical opinions and state that the agency does not defer

to any particular medical opinions, even those from treating sources. Id.; see also Woods v.

Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social security regulations are clearly

irreconcilable with our caselaw according special deference to the opinions of treating and

examining physicians on account of their relationship with the claimant.”). Under the new

regulations, the ALJ primarily considers the “supportability” and “consistency” of the opinions

in determining whether an opinion is persuasive. 20 C.F.R. § 404.1520c(c). Supportability is

4 Plaintiff also argues that Dr. Conner’s opinion was not inconsistent with the medical evidence.

Pl. Brief 11. The ALJ did not reject Dr. Conner’s opinion, so this Court does not consider

Plaintiff’s arguments concerning Dr. Conner to be a separate assignment of error.

determined by whether the medical source presents explanations and objective medical evidence

to support their opinions. Id. § 404.1520c(c)(1). Consistency is determined by how consistent the

opinion is with evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(2).

An ALJ may also consider a medical source’s relationship with the claimant by looking

at factors such as the length, purpose, or extent of the treatment relationship, the frequency of the

claimant’s examinations, and whether there is an examining relationship. Id. § 404.1520c(c)(3).

An ALJ is not, however, required to explain how she considered those secondary medical factors

unless she finds that two or more medical opinions about the same issue are equally well-

supported and consistent with the record but not identical. Id. § 404.1520c(b)(2)- (3).

The regulations require ALJs to “articulate . . . how persuasive [they] find all of the medical

opinions” and “explain how [they] considered the supportability and consistency factors.” Id. §

404.1520c(c)(b). The court must, moreover, continue to consider whether the ALJ’s analysis has

the support of substantial evidence. See 42 U.S.C. § 405(g); Woods, 32 F.4th 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.”).

B. Dr. Jeremy Lanford

Plaintiff first argues that the ALJ improperly evaluated Dr. Lanford’s opinion by equating

plaintiff’s neuropathy and conversion disorder as a single diagnosis rather than two separate

issues. Pl.’s Br. 6-7. Plaintiff also argues that Dr. Lanford’s assessed absenteeism and need for

frequent breaks were not properly addressed. Pl.’s Br. 7. The ALJ found that Dr. Lanford’s

opinion was unpersuasive because it lacked adequate support and was inconsistent with the

evidence of record. Tr. 83. The ALJ found that Dr. Lanford failed to provide any testing or

examination records to support his findings and that although plaintiff reported lower extremity

weakness such that she could not move her legs, Dr. Lanford found that plaintiff had no issues

on neurological examination, that her gait was normal with no weakness or sensory deficits, and

that she displayed normal motor strength and reflexes while also reporting she rarely falls. Tr. 83

(citing Tr. 1097, 1100, 1169, 1332).

Dr. Lanford submitted a medical opinion in which he noted that plaintiff’s sensory

symptoms are due to an idiopathic small fiber neuropathy because no cause had been identified.

Tr. 1321. He also noted that plaintiff’s episodes of weakness were due to a functional

neurological disorder, equating it to a conversion disorder over which plaintiff has no control or

suggestive of malingering. Id. Last, Dr. Lanford opined that the frequency of plaintiff’s leg

weakness and her neuropathy, which was responsible for her pain, would lead to plaintiff being

absent “many more than 2 days a month and [require] frequent breaks.” Id.

The ALJ found the assessed limitations regarding plaintiff’s absenteeism, and the opinion

as a whole, unpersuasive because it was unsupported by the medical evidence. Tr. 83. Plaintiff

argues that this finding was not supported by substantial evidence because Dr. Lanford’s findings

were supported by objective testing. Pl. Br. 7. This Court disagrees.

Dr. Lanford’s own notes from November 2020 and February 2021 showed that even

though he believed plaintiff suffered from a functional disorder that caused her weakness, he

specifically noted that this condition was of “no concern.” Tr. 1097, 1100. And although Dr.

Lanford noted that plaintiff’s pain was a contributing factor in her absenteeism and need for

breaks, he opined that her pain was only moderate, that her pain improved with treatment, that

she has no weakness in her lower extremities, no hand symptoms, and that she has full motor

strength, reflexes, sensory, coordination, and normal gait. Tr. 1097, 1100-01. In October 2021,

Dr. Lanford once again noted that he had “no concerns” regarding plaintiff’s weakness, that her

pain was being adequately treated by the same medication from February, and that her test

results were grossly normal. Tr. 1332-33.

Given that plaintiff displayed normal strength, sensation, reflexes, and gait in her lower

extremities, that her pain was adequately managed by medication, and that plaintiff’s episodes of

weakness due to a possible conversion disorder were described as being of “no concern,” the

ALJ concluded that Dr. Lanford’s opinion regarding Plaintiff’s inability to work lacked adequate

support and was not supported by substantial evidence. Tr. 83. To be sure, the evidence cited by

Plaintiff could have supported a different conclusion. But this Court “must uphold the ALJ’s

decision where the evidence is susceptible to more than one rational interpretation.” Burch, 400

F.3d at 679. Accordingly, the ALJ’s rejection of Dr. Lanford’s opinion is supported by

substantial evidence.

C. Kiley Gilbert, PMHNP

Gilbert provided a mental residual functional capacity assessment on February 8, 2022.

Tr. 1322-26. She noted that she began seeing plaintiff on December 2, 2021, saw her monthly,

and that her last appointment was February 3, 2022, indicating she only saw plaintiff three times.

Tr. 1322. She noted that plaintiff’s diagnosis was persistent depressive disorder, that her

condition responded fairly well to medication, that she had no knowledge of plaintiff’s other

medical records, and that she believed plaintiff’s possible brain damage contributed to her mental

health condition. Id.

In the category of understanding and memory, Gilbert provided that plaintiff has a

marked limitation in her ability to remember locations and work-like procedures and an extreme

limitation in her ability to understand and remember detailed instructions. Tr. 1323. In sustained

concentration and persistence, Gilbert opined that plaintiff has marked limitations in the ability

to carry out detailed instructions, ability to perform activities within a schedule, maintain regular

attendance and be punctual, and the ability to sustain an ordinary routine without special

supervision. Tr. 1323-24. In that same category, plaintiff had extreme limitations in the ability to

maintain attention and concentration for extended periods and the ability to complete a normal

workday or workweek without interruption from her symptoms. Tr. 1323-24. In the category of

social interaction, plaintiff had moderate limitations across the board, but neither marked nor

extreme limitations. Tr. 1324. In the category of adaptation, plaintiff had marked limitations in

her ability to respond appropriately to changes in the work setting, the ability to be aware of

normal hazards and take appropriate precautions, the ability to travel in unfamiliar places or use

public transportation, the ability to set realistic goals or make plans independently of others, and

the ability to tolerate normal levels of stress. Tr. 1324-25. There were no extreme limitations in

that category. Lastly, Gilbert opined that plaintiff would be off-task at least 20 percent of a

normal workday, that plaintiff would miss two days of work per month due to her symptoms, and

that plaintiff could manage her own funds. Tr. 1325.

The ALJ found Gilbert’s opinion unpersuasive because it was based on only three visits

with the plaintiff, plaintiff’s daily activities were inconsistent with Gilbert’s opinion, the opinion

was inconsistent with Gilbert’s own records as well as other medical evidence of record. Tr. 83.

Plaintiff argues that the ALJ improperly discounted Gilbert’s opinion based on limited time with

the plaintiff which relies on old regulations that no longer apply, that the ALJ improperly relied

on plaintiff’s activities of daily living to discount Gilbert’s opinion, and that the ALJ failed to

address Gilbert’s opinion that plaintiff would be unable to work due to being off task and absent.

Pl. Br. 8. The Court agrees with Plaintiff on some of these grounds and concludes that the ALJ’s

rejection of Gilbert’s opinion was not supported by substantial evidence.5

Plaintiff argues that limited time spent with the plaintiff is not a valid reason to discount

Gilbert’s testimony because it relies on prior, inapplicable regulations. Plaintiff, however, is

incorrect. The current regulations clearly state that an ALJ is to consider, but is not required to

elaborate on, a medical providers relationship with the plaintiff, which includes both length of

time treated and frequency of examinations. See 20 C.F.R. §§ 404.1520c(c)(3)(i), (ii),

416.920c(c)(3)(i), (ii). Therefore, it is not only not improper for an ALJ to take length of

treatment into account, the ALJ is required to do so.

As to the ALJ’s rejection of Gilbert’s opinion based on Plaintiff’s activities of daily

living, the Court agrees with plaintiff, though not for the reason plaintiff asserts.6 While plaintiff

has a caregiver help her with her chores and household responsibilities, it is the daily activities

themselves that do not provide support for the ALJ’s conclusion. As discussed above, plaintiff’s

5 Though not specifically addressed by Plaintiff, the ALJ also appears to have rejected Gilbert’s

opinion based in part on the “checklist-style” form used. Tr. 84. An ALJ may discount a medical

opinion provided in this way when there is no narrative explanation for its conclusions. See Ford

v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (holding that a medical opinion in check-the-box

form can only be rejected when the questionnaire does not contain any explanation for its

conclusions). Gilbert provided an explanation under a question asking if plaintiff can work on a

regular sustained basis in light of her mental impairment, stating “[w]ith the medical issues and

brain damage along with the mental health symptoms it would be difficult for her to sustain

consistent work at this time. She would need frequent breaks and supervision to help with

staying on task as she struggles with memory and executive functioning.” Tr. 1325. While

Gilbert does not provide any other narrative explanations, this explanation does provide a basis

for Gilbert’s opinion that would not allow the ALJ to reject it entirely on this basis.

6 Plaintiff argues that her daily activities do not provide a sufficient basis to discount Gilbert’s

opinion because plaintiff has a paid caregiver that helps take care of her activities of daily living,

and that the caregiver is being provided because of plaintiff’s intellectual disability. While it

would have been appropriate for the ALJ to discuss the role of Plaintiff’s caregiver when

considering her activities of daily living, the failure to do so does not automatically render the

decision unsupported by substantial evidence.

ability to perform such activities as personal hygiene, drive, pay bills online, use a smartphone,

the internet, and social media do not form a sufficient basis for discounting a medical opinion

regarding plaintiff’s mental health without sufficient reasoning. Furthermore, a vacation taken in

2021 with her parents, in their motorhome, cannot serve as a valid basis for rejection, especially

when there is no indication of any activity taking place that would undermine the mental health

assessment or plaintiff’s underlying testimony. The ALJ failed to explain how these activities

were inconsistent with the limitations described by Gilbert. Accordingly, the ALJ’s rejection of

Gilbert’s opinion as inconsistent with plaintiff’s activities of daily living was not supported by

substantial evidence.

Finally, the ALJ failed to provide adequate support for his conclusion that Gilbert’s

opinion was inconsistent with other medical evidence. The ALJ relied on reports from September

and October 2021, showing that plaintiff had fair judgment, was cooperative and alert, had

normal thought content, goal directed thought processes, average to below average intelligence,

intact short-and-long-term memory, and average to above average fund of knowledge. Tr. 1231,

1233. However, these findings are not inconsistent with Gilbert’s finding that plaintiff would be

off task, as they only tangentially relate to plaintiff’s ability to concentrate, persist, or maintain

pace. The ALJ also relied on one of Gilbert’s own medical records from January 2022, noting

that plaintiff reported feeling stable, rarely had panic symptoms, had a brighter mood, and

reported her mood was “ok.” Tr. 1248-49. The ALJ cannot reject an examining medical

professional’s opinion as inconsistent without providing an explanation for that decision. See

Woods, 32 F.4th at 792.

In sum, because it is not clear from the ALJ’s opinion how Gilbert’s assessment is

inconsistent with plaintiff’s activities of daily living or the medical record, the ALJ’s rejection of

Gilbert’s medical opinion was not supported by substantial evidence.

D. Dr. William Trueblood

Dr. Trueblood provided a mental residual functional capacity assessment on August 20,

2021. Tr. 1180-84. In the assessment, Dr. Trueblood noted that her neurocognitive status was

unlikely to change, that the cause of her intellectual impairment may relate back to a brain injury

she received as an infant, and that plaintiff has never received any type of treatment for her

neurocognitive/intellectual condition. Tr. 1180. Dr. Trueblood opined that plaintiff would have

marked limitations in her ability to understand and remember detailed instructions, in her ability

to carry out detailed instructions, in her ability to maintain attention and concentration for

extended periods, to work in coordination with or proximity to others without getting distracted,

and in her ability to complete a normal workday or workweek and perform at a consistent pace

without interruption from her symptoms. Tr. 1181-82. He further opined that she would have

marked limitations in her ability to respond appropriately to changes in a work setting, in her

ability to be aware of normal hazards and take appropriate precautions, in her ability to travel to

unfamiliar places or use public transportation, and in her ability to tolerate normal levels of

stress. Tr. 1182-83. He also assessed an extreme limitation in her ability to set realistic goals or

make plans independently of others. Tr. 1183. Notably, he did no testing in the category of social

interaction. Tr. 1182. Lastly, Dr. Trueblood noted that plaintiff would be unable to sustain work

at least 20 percent of the time, that her intellectual disability would not cause absenteeism, and

that she cannot manage her own funds, though he did not explain why. Tr. 1183.

The ALJ found Dr. Trueblood’s opinion unpersuasive because it was based on a “one-

time evaluation” and “not on long term treatment.” Tr. 84. The ALJ also discounted Dr.

Trueblood’s opinion because it was unsupported and inconsistent with other mental health

records, lacked reasoning for why plaintiff would be off-task at least 20 percent of the time, was

inconsistent with plaintiff’s activities of daily living, and contained marked limitations despite

plaintiff only having a mild intellectual disability. Id. Plaintiff argues that reliance on a one-time

evaluation is inconsistent with current regulations, that Dr. Trueblood’s finding related to

plaintiff being off task was supported by testing, that plaintiff’s activities of daily living are not a

proper basis for discounting the medical opinion because plaintiff has a caregiver, and that the

ALJ provided no reasoning as to why a mild intellectual disability cannot result in marked

limitations. Pl.’s Br. 10-12. As discussed below, the ALJ’s rejection of Dr. Trueblood’s opinion

was not supported by substantial evidence.

On plaintiff’s first point, that Dr. Trueblood’s opinion was improperly discounted

because it relied on a one-time evaluation, the Commissioner concedes that Dr. Trueblood

evaluated plaintiff twice. See Def.’s Br. 20. Although plaintiff was correct that Dr. Trueblood

evaluated plaintiff twice, plaintiff’s argument regarding the ALJ’s rejection based on limited

time with plaintiff is improper for reasons set forth above. Therefore, it would not ordinarily

have been improper for the ALJ to take this into account when discounting a medical opinion. It

was, however, improper in this case because Dr. Trueblood provided the equivalent of a

consultative examination, which are by their nature generally one-time evaluations.

The ALJ also discounted Dr. Trueblood’s opinion because plaintiff’s intellectual

disability was mild, but Dr. Trueblood found “many marked limitations.” Tr. 84. This reasoning

is unsupported. The ALJ provides no reason as to why a mild intellectual disability could not

have marked limitations, apparently relying on the word “mild” to the detriment of the actual

findings. As such, this was not a valid reason to discount Dr. Trueblood’s opinion.

Next, the ALJ found Dr. Trueblood’s assessment regarding plaintiff being off task at least

20 percent of the time was inconsistent with plaintiff’s activities of daily living and with other

medical evidence. Regarding plaintiff’s activities of daily living, as discussed in the preceding

section, as well as earlier in this decision, none of the activities cited by the ALJ provides any

support for the rejection of Dr. Trueblood’s medical opinion.

As for inconsistency with other medical evidence, the ALJ relies on the same records

used in improperly discounting Gilbert’s opinion above. Namely, the ALJ relied on reports from

September and October 2021, showing that plaintiff had fair judgment, was cooperative and

alert, had normal thought content, goal directed thought processes, average to below average

intelligence, intact short-and-long-term memory, and average to above average fund of

knowledge. Tr. 1231, 1233. The ALJ also relied on a report from January 2022 in which plaintiff

reported an overall stable mood, rarely had panic symptoms, and presented with a brighter mood.

Tr. 1248, 1329. And much like the finding related to Gilbert’s opinion, these findings are also

not inconsistent with Dr. Trueblood’s assessment that plaintiff would be off task, as they only

tangentially relate to plaintiff’s ability to concentrate, persist, or maintain pace.

Because it is not clear from the ALJ’s opinion how Dr. Trueblood’s assessment is

inconsistent with plaintiff plaintiff’s intellectual disability being mild, with the medical record,

and with plaintiff’s activities of daily living, the ALJ’s rejection of Gilbert’s medical opinion

was not supported by substantial evidence.7

7 Plaintiff also argues that had that ALJ properly considered Dr. Trueblood’s medical opinion,

plaintiff would meet or equal Listing 12.05. Pl. Br. 12. Because this Court finds that Dr.

Trueblood’s medical opinion was improperly discounted, it need not reach plaintiff’s argument

III. Lay Witness Testimony

Plaintiff contends that the ALJ erred by failing to properly address the lay witness

testimony provided by plaintiff’s mother, a Deschutes County Developmental Disabilities

program service coordinator, and three acquaintances by failing to provide reasons germane to

the witness. Pl.’s Br. 15-18.

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. Id. (citation and internal quotation

omitted). “Lay witness testimony is competent evidence and cannot be disregarded without

comment.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). 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”).8

Plaintiff’s mother provided a third-party report dated July 11, 2020. In it, she stated that

plaintiff could not communicate effectively, asthma prevents her from doing housekeeping, that

regarding whether or not Dr. Trueblood’s medical opinion would establish plaintiff met or

equaled a listing.

8 Citing in the revised regulations for medical source opinions and the Ninth Circuit’s

unpublished opinion in Fryer v. Kijakazi, 2022 WL 17958630, at *3 n.1 (9th Cir. Dec. 27, 2022),

the Commissioner argues that the ALJ is no longer required to provide “germane reasons” for

discounting lay witness testimony. Def. Br. 13-14. This Court disagrees that the new regulations

provide a basis to reject the Ninth Circuit’s longstanding precedent concerning “germane

reasons.” See Donna B.S. v. O'Malley, No. 6:22-CV-1571-SI, 2024 WL 3534431, at *7 (D. Or.

July 25, 2024) (so holding).

she uses a cane for stability for at least a year, that it takes longer than normal to do housework,

that she cares for two cats, that she experiences numbness in her feet which causes her to stumble

and fall, that she experiences numbness in her lower extremities to the point of paralysis, that she

cannot stand or walk for any significant length of time due to the numbness, that she does not get

adequate sleep due to pain caused by her neuropathy, that she needs reminders to take care of her

personal hygiene, that she cannot go out alone, that she has problems with her finances, that she

finishes what she starts, and that she follows written instructions fairly well. Tr. 477-89.

Three friends of the plaintiff’s mother also provided third-party reports, in which they all

produced similar statements. In their reports, they witnessed an incident at church where plaintiff

was unable to move for 15 to 30 minutes, that when she could finally move her movements were

slow and deliberate, and two people helped her leave the church. Tr. 645-47, 648-49, 650-51.

Lastly, plaintiff’s services coordinator provided a report. In the report, she mentioned that

plaintiff had told her she experiences tingling and numbness in her lower extremities, that she

has pain due to her neuropathy, and that she experienced an instance of paralysis. Tr. 680. She

also mentioned that plaintiff was interested in seeking work, that she suffered a knee injury due

to a fall, she uses a walking stick, and that any type of physical activity requiring prolonged

standing would be difficult for her. Tr. 680-81.

The ALJ found the lay witness testimonies inconsistent in “terms of the severity of those

symptoms and limitations. The ALJ also found that the lay witnesses are “are not trained to make

exacting observations about the claimant's limitations; further, the degree of limitation noted in

these statements and interviews are not supported by other evidence in the record from medical

and mental health professionals.” Tr. 85. Plaintiff asserts that this does not constitute germane

reasons for rejecting the lay witness statements. This Court agrees in part.

The fact that a lay witness is “not trained to make exacting observations” about a

claimant’s limitations is not a basis to reject the lay witness’s testimony. See Bruce, 557 F.3d at

1116 (a lay person, though not a medical or vocational expert, is not disqualified from rendering

an opinion as to how claimant’s condition affected his ability to work); Brumbaugh-Sandoval v.

Colvin, No. 1:15-CV-585-EPG, 2016 WL 4434473, at *14 (E.D. Cal. Aug. 22, 2016) (rejecting

lay witness “testimony on the basis that the witness is not trained to make exacting observations

regarding medical signs and treatments is improper”).

The ALJ also concluded that the law witness statements were not supported by other

evidence in the record from medical and mental health professionals. Because the ALJ’s

rejection of Dr. Lanford’s opinion as to Plaintiff’s medical limitations was supported by

substantial evidence, the ALJ provided germane reasons for rejecting the lay witness testimony

to the extent it was inconsistent with Dr. Lanford’s assessment of Plaintiff’s limitations.

However, because the ALJ improperly rejected the opinions of Dr. Trueblood and Gilbert as to

plaintiff’s mental limitations, the same reasoning does not provide germane reasons for rejecting

lay witness testimony on those issues. Accordingly, the ALJ’s rejection of plaintiff’s lay witness

statements was not supported by substantial evidence.

IV. Step Five

Finally, plaintiff asserts that the ALJ erred by failing to include limitations from

plaintiff’s testimony, the lay witnesses’ testimonies, and the medical opinions in the proposed

hypotheticals to the VE. According to plaintiff, by not including these improperly rejected

limitations, the VE’s testimony is of no evidentiary value. Pl.’s Br. 18-19.

At step five, the Commissioner has the burden “to identify specific jobs existing in

substantial numbers in the national economy that the claimant can perform despite [her]

identified limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); 20 C.F.R §

416.920(g). In making this determination, the ALJ relies on the Dictionary of Occupational

Titles (DOT), which is the Social Security Administration’s “primary source[] of reliable job

information” regarding jobs that exist in the national economy. Terry v. Sullivan, 903 F.2d 1273,

1276 (9th Cir. 1990); 20 C.F.R §§ 416.969, 416.966(d)(1).

The ALJ relies on the testimony of a vocational expert (VE) to identify specific

occupations that a claimant can perform in light of her RFC. 20 C.F.R § 416.966(e); Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). When there is an apparent conflict

between the vocational expert’s testimony and the DOT, the ALJ is required to reconcile that

inconsistency by posing questions about the potential conflict. See Massachi v. Astrue, 486 F.3d

1149, 1153 (9th Cir. 2007). Nevertheless, if the ALJ fails to ask the vocational expert about the

potential conflict, that “procedural error” may be “harmless” if there is no conflict between the

vocational expert’s testimony and the DOT. Id. at 1154 n.19.

Plaintiff argues that limitations noted in her testimony, in the lay witness testimonies, and

in the medical opinions should have been present in the hypotheticals proposed to the VE, and

the ALJ erred in his reliance on the VE’s testimony because the hypotheticals were incomplete.

Pl.’s Br. 18-19. Plaintiff is correct.

As discussed above, the ALJ failed to provide valid reasons for discounting plaintiff’s

subjective symptom testimony as it pertained to her mental health and intellectual disability as

well as the medical opinions provided by Kiley Gilbert and Dr. Trueblood. Because of this

improperly rejected evidence, the resulting hypotheticals proposed to the VE were necessarily

incomplete, and therefore invalid. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988).

V. Remedy

Plaintiff argues that this Court should exercise its discretion to credit-as-true the rejected

evidence and remand for payment of benefits. Pl. Br. 19. This Court disagrees.

A. Legal Standard

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 v. Massanari, 246 F.3d

1195, 1210 (9th Cir. 2001). Although a court should generally remand to the agency for

additional investigation or explanation, a court has discretion to remand for immediate payment

of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014).

The issue turns on the utility of further proceedings. A court may not award benefits punitively

and must conduct a “credit-as-true” analysis on evidence that has been improperly rejected by

the ALJ to determine if a claimant is disabled under the Social Security Act. Strauss v. Comm’r

of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

Generally, where “(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,” the district court should remand for payment of benefits.

Garrison, 759 F.3d at 1020.

In conducting this analysis, the district court first determines whether the ALJ made a

legal error and then reviews the record as a whole to determine whether the record is fully

developed, the record is free from conflicts and ambiguities, and whether there is any useful

purpose in further proceedings. Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015).

Only if the record has been fully developed and there are no outstanding issues left to be

resolved does the court consider whether the ALJ would be required to find the claimant disabled

on remand if the improperly discredited evidence were credited as true. Id. If so, the court can

exercise its discretion to remand for an award of benefits. Id.

Even where all the requisites are met, however, a court may still remand for further

proceedings “when the record as a whole creates serious doubt as to whether the claimant is, in

fact, disabled[.]” Garrison, 759 F.3d at 1021. “Serious doubt” can arise when there are

“inconsistencies between the claimant’s testimony and the medical evidence,” or if the

Commissioner “has pointed to evidence in the record the ALJ overlooked and explained how that

evidence casts serious doubt” on whether the claimant is disabled under the Act. Dominguez, 808

F.3d at 407 (internal quotations and citation omitted).

B. Analysis

Here, the ALJ committed harmful error by improperly rejecting plaintiff’s subjective

symptom testimony as it pertains to her mental health, and improperly rejecting the medical

opinions of Kiley Gilbert and Dr. William Trueblood. However, the record is not free from

conflicts and ambiguities, and there is a useful purpose in further proceedings.

Specifically, the extent of Plaintiff’s mental health limitations is not clear from the

record. For example, plaintiff has some daily activities that are not referenced by the ALJ that do

support she can concentrate and persist (such as reading and doing puzzles every day, and

constantly reminding her daughter, who has ADHD/memory issues of her own, to do things

every day). Tr. 130, 473, 504, 536. Plaintiff also has three different function reports that

generally conflict with each other that the ALJ does not mention. Tr. 469-76, 499-508, 535-42

As for the medical opinions, Dr. Trueblood’s assessment has notes pertaining to

plaintiff’s ability to concentrate and persist that contradict his finding that plaintiff would be off-

task, as well as internal inconsistencies between his first and second assessment that were also

unaddressed by the ALJ. Tr. 1155-63, 1180-84. Gilbert provided a single medical record despite

seeing plaintiff three times, but there are other therapy records from her treatment center that

were also provided at the same time that went unaddressed by the ALJ. Tr. 1248-72. These are

all conflicts and ambiguities in the record that must be resolved on remand.

Considering that the ALJ included multiple mental health related limitations in the RFC,

it is not clear from this record whether those limitations will be modified on remand after the

ALJ reevaluates plaintiff’s testimony, the opinions of Gilbert and Trueblood, and the lay witness

statements. Moreover, the record as a whole creates serious doubt as to whether the Plaintiff is

disabled, particularly given that Plaintiff’s physical limitations included in the RFC were

supported by substantial evidence. Accordingly, this Court declines to exercise its discretion

remand for immediate payment of benefits.

Instead, on remand, the ALJ shall reevaluate plaintiff’s subjective symptom testimony

and identify specific, clear and convincing reasons as to why her mental health and intellectual

disability limitations were discounted or accept them. The ALJ must also reevaluate the medical

opinions of Kiley Gilbert and Dr. William Trueblood. On reevaluation of Dr. William

Trueblood’s opinion, the ALJ must also reassess whether Dr. Trueblood’s medical opinion

would entitle plaintiff to meet or equal listing 12.05. The ALJ must also reevaluate the lay

witness statements, at least as they pertain to Plaintiff’s mental health and intellectual disability

limitations, and either accept them or provide germane reasons for rejecting them. Last, the ALJ

must, if necessary, reformulate the RFC, seek further VE testimony at step five, and conduct any

other measures deemed appropriate.

CONCLUSION

Based on the foregoing, pursuant to 42 U.S.C. § 405(g), sentence four, the

Commissioner’s decision is REVERSED and REMANDED for further proceedings.

IT IS SO ORDERED.

DATED this 18th day of September, 2024. ( (S\N

DREW HALLMAN

United States Magistrate Judge