# Kibby v. Commissioner Social Security Administration

> District Court, D. Oregon · September 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10666522

## Case

- **Court:** District Court, D. Oregon
- **Decided:** September 18, 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/10666522

## How later opinions describe it (automated extraction)

- noting that a “claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted)
- holding that the court “must uphold the ALJ’s decision where the evidence is susceptible to more than one rational interpretation”
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666522. Public record. Not legal advice.