Espain v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

BERTHA E., Ca se No. 2:24-cv-00167-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________________

ARMISTEAD, Magistrate Judge

In this judicial review of the Commissioner’s final decision denying Social Security

benefits, Bertha E. (last name omitted for privacy) challenges the Administrative Law Judge’s

evaluation of her subjective symptom testimony, the lay witness testimony, and the medical

expert testimony of Jerry Seligman, M.D. Those errors, plaintiff asserts, means that the ALJ’s

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step-five finding is also in error. (Pl.’s Br. at 7.) As explained below, the Commissioner’s

decision is reversed, and this case is remanded for an immediate calculation of benefits.1

ALJ’S DECISION

Plaintiff applied for Title II Disability Insurance Benefits (DIB) on April 29, 2020,

alleging disability beginning on April 30, 2010. (Tr. 73.) Her claim was initially denied on

September 10, 2020, and again upon reconsideration on March 29, 2021. (Tr. 78-79, 88.) The

ALJ held a hearing on January 11, 2023. (Tr. 40.) At the hearing, plaintiff amended her alleged

onset date to May 23, 2012. (Tr. 45-46.)

In denying plaintiff’s application, the ALJ followed the five-step sequential evaluation

process.2 At step one, the ALJ determined that plaintiff has not engaged in substantial gainful

activity during the period from her alleged onset date through her date last insured of June 30,

2016. (Tr. 28.) At step two, the ALJ determined that she had the following severe impairments:

“diabetes mellitus and diabetic retinopathy.” (Tr. 28.) At step three, the ALJ determined that her

impairments singly or in combination did not meet or medically equal the severity of any listed

impairment. (Tr. 29.)

As for the RFC, the ALJ found that plaintiff could perform light work with these other

limitations:

[She] can carry 20 pounds occasionally and 10 pounds frequently. [She] can stand

or walk up to 6 hours in an 8-hour day. [She] can sit for at least 6 hours of an 8-

1 The court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and the parties have

consented to jurisdiction by magistrate judge under 28 U.S.C. § 636(c).

2 To determine a claimant’s disability, the ALJ must apply a five-step evaluation. See 20

C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ finds that a claimant is either disabled or not

disabled at any step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481

F.3d 742, 746-47 (9th Cir. 2007) (discussing the five-step evaluation in detail).

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hour day. [She] can never climb ladders, ropes, or scaffolds, kneel crouch, and

crawl. [She] can occasionally climb ramps and stairs, balance, and stoop. [She]

must have no exposure to hazards such as unprotected heights and machinery with

moving mechanical parts. [She] must avoid concentrated exposure to extreme

cold, extreme heat, vibrations, humidity, and wetness.

(Tr. 30.) At step four, the ALJ determined that plaintiff is unable to perform her past relevant

work as a forklift operator. (Tr. 32.) Considering her RFC, the ALJ found at step five that jobs

exist in significant numbers in the national economy that plaintiff can perform, including such

representative occupations as production assembler, small parts assembler, and sub assembler.3

(Tr. 33.)

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if the Commissioner applied

proper legal standards and the findings are supported by substantial evidence in the record. 42

U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation

and citation omitted). To determine whether substantial evidence exists, the court must weigh all

the evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v.

Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).

\ \ \ \ \

\ \ \ \ \

3 As noted in White v. Kijakazi, 44 F.4th 828, 835 (9th Cir. 2022), the SSA has been

working on a transition to a new Occupational Information System since 2008. The transition has

not yet occurred, and the Ninth Circuit has encouraged the SSA, along with its sister circuits, “to

make the transition to a system that more accurately reflects available jobs in the current

economy.” Id.

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DISCUSSION

A. Subjective Symptom Testimony

To determine whether a claimant’s testimony about subjective pain or symptoms is

credible, an ALJ must perform two steps of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th

Cir. 2017); 20 C.F.R. § 404.1529. The first step is a threshold test in which the claimant must

produce objective medical evidence of an underlying impairment that could reasonably be

expected to produce the pain or other symptoms alleged. Trevizo, 871 F.3d at 678. If the claimant

has satisfied the first step and there is no evidence that the claimant is malingering, the ALJ must

at the second step provide clear and convincing reasons for discounting the claimant’s testimony

about the severity of her symptoms. Id. “The clear and convincing standard is the most

demanding required in Social Security cases.” Garrison, 759 F.3d at 1014-15. The ALJ’s

findings must be specific enough to permit the reviewing court to conclude that the ALJ did not

arbitrarily discredit the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th

Cir. 2015). Factors the ALJ may consider when making those credibility determinations include

the objective medical evidence, the claimant’s treatment history, the claimant’s daily activities,

and inconsistencies in testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013);

Tommasetti v. Astrue, 533 F.3d 1035, 1039.

Plaintiff contends that she cannot engage in full-time, competitive employment because

of her physical health conditions—diabetes, kidney failure, high blood pressure, and anemia. (Tr.

73.) At her hearing, plaintiff testified with the assistance of an interpreter that she has been

unable to control her diabetes since 2012, and that she has experienced swelling in her feet since

2016. (Tr. 52, 57.) In the summer of 2016, her A1C measurement was 8.6% to 10.0% with

varying blood sugars. (Tr. 58.) She tried to work during the relevant period but couldn’t because

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of frequent episodes of dizziness, blurred vision, pain in her feet from neuropathy, and trembling

hands preventing her from grabbing things. (Tr. 60.) When she attempted to work, she was

unable to stand longer than 15 to 20 minutes due to fatigue, and she needed to sit down for 15 to

30 minutes before standing or walking again. (Tr. 60-61.) Plaintiff testified that she needs to lie

down about three times per week for one to two hours at a time due to dizziness and nausea. (Tr.

61-62.) Her dizziness with exertion, difficulty with breathing, worsening symptoms with lifting

and carrying, and the inability to lift more than 10 pounds meant that she needed assistance with

shopping and household chores. (Tr. 62.)

The ALJ discounted plaintiff’s subjective symptom testimony, for two reasons. (1) her

activities of daily living are inconsistent with her claimed limitations and (2) her medical records

show improvement with treatment and largely normal objective findings during medical

appointments.

1. Activities of Daily Living

In finding that plaintiff’s statements concerning the severity of her symptoms were not

entirely consistent with, among other things in the record, her activities of daily living, the ALJ

relied on reports from plaintiff that she can cook simple meals, do laundry, shop in stores, and

that she “had no problem with personal care.” (Tr. 30-31.)

Plaintiff argues that the ALJ erred in discounting her testimony based on her activities of

daily living because the ALJ did not identify activities in which she engaged that were

inconsistent with her stated limitations, or that could translate to full-time work. An ALJ may

reject symptom allegations that are inconsistent with a claimant’s ability to perform normal

ADLs. Smartt v. Kijakazi, 53 F.4th 489, 499-500 (2022); 20 C.F.R. § 404.1529(c)(3)(i). A

rejection based on ADLs is supportable in two ways: (1) the ADLs contravene the claimant’s

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allegations of functional limitations; or (2) the ADLs “meet the threshold for transferrable work

skills[.]” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). “Even where those activities suggest

some difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the

extent that they contradict claims of a totally disabling impairment.” Molina v. Astrue, 674 F.3d

1104, 1113 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1520(a).

The ALJ improperly relied on plaintiff’s ability to perform household chores, prepare

simple meals, shop, and attend to personal care. Although plaintiff testified that she can still shop

in stores, plaintiff explained that her husband always did the grocery shopping and if she

“accompanied him[,] it was to walk to get some exercise.” (Tr. 62.) Moreover, plaintiff testified

that she was limited in performing household chores and shopping in stores, due to dizziness

with exertion. (Tr. 62.) The record reflects that she consistently described those limitations to

providers. See Revels v. Berryhill, 874 F.3d 648, 667-68 (9th Cir. 2017) (holding that the ALJ

erred in relying on claimant’s relatively numerous daily activities, where claimant consistently

described severe limitations in all her ADLs).

The ALJ also failed to identify any activities that she performs that are inconsistent with

her allegations, and failed to explain how any of the cited activities undermined her testimony.

Because the ALJ did not explain “which daily activities conflicted with which part of [plaintiff's]

testimony,” the ALJ erred. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014); Holohan,

246 F.3d at 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify the testimony she or he

finds not to be credible and must explain what evidence undermines the testimony.”).

Here, the ALJ’s findings are not supported by substantial evidence because none of the

minimal activities described by plaintiff undermine her testimony. Because the ALJ did not

connect plaintiff’s activities to any symptom or the degree of any symptom alleged by her, this

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rationale fails to provide a specific, clear and convincing basis on which to discount her

subjective symptom testimony. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020)

(holding that general high-level reasons did not satisfy specific, clear and convincing standard

because ALJ did not identify which testimony was not credible and which evidence contradicted

that testimony); Felicia F. P. v. Comm’r Soc. Sec. Admin., Case No. 3:21-cv-00889-AR, 2023

WL 1991530, at *3 (D. Or. Feb. 14, 2023).

2. Objective Medical Evidence and Improvement with Treatment

The ALJ also relied on medical evidence and improvement with treatment to discount

plaintiff’s symptom testimony. As to the medical evidence, the ALJ found that, although

observing that plaintiff’s diabetes was uncontrolled at times, “on many occasions, [her] diabetes

was noted to be controlled with medication and diet.” (Tr. 31, citing Tr. 386, 411, 1343.)

Plaintiff asserts that the ALJ mischaracterized the record in evaluating her diabetes

testimony by failing to account for her lack of health insurance and inability to afford regular

treatment of her diabetes. See Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (the

ALJ’s “paraphrasing of record material” was “not entirely accurate regarding the content and

tone of the record” and did not support an adverse credibility finding). The court agrees.

Although the ALJ is correct that plaintiff’s diabetes was documented in medical

appointments as “controlled” in 2014 and “presently controlled” in 2015 (Tr. 31, citing Tr. 386,

1343), plaintiff did not confirm her diabetes was “controlled” at the hearing; instead, she stated

that “[she] was never able to control the diabetes, neither were the doctors” (Tr. 57). From 2012

to 2013 the record reflects that plaintiff’s diabetes was poorly controlled because she did not

have health insurance. (Tr. 52.) In September 2013, plaintiff reported that she was only able to

check her blood sugars three times per week because healthcare was very expensive for her, and

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she was running out of test strips. (Tr. 1318-19.) Plaintiff presented to providers that she was

unable to regularly check her blood sugars because she lacked insurance. (Tr. 1321.) The next

year, in May 2014, she managed to obtain insurance through the Affordable Care Act. (Tr. 52.)

Even so, after obtaining insurance, her diabetes and hypertension were documented repeatedly as

“uncontrolled.” (Tr. 334, 409, 415, 417, 421, 625, 689-90, 759, 822-23, 840, 846, 871-77, 940,

1349, 1360, 1375.) Lab worked showed that her diabetes was under very poor control with

HBA1C at 12.6%. (Tr. 1319.) The ALJ erred by mischaracterizing plaintiff’s diabetes as well-

controlled.

Furthermore, the ALJ failed to account for plaintiff’s symptoms caused by her

uncontrolled diabetes. For example, when plaintiff’s blood sugar was 126, which was the lowest

that Eileen McElligott, RNFP, had ever seen, plaintiff still reported that “she is a little bit dizzy,

more when going from a sitting to standing position or when she lies down” and when she lies

down, “it feels like the room is swimming.” (Tr. 1343.) Plaintiff also reported that when “she

goes from a sitting to a standing position, she has to steady herself.” (Tr. 1343.) A treatment note

from 2015 indicates that plaintiff’s vision was worsening due to her diabetes, her vision

problems were described as “constant,” and she was experiencing blurred vision. (Tr. 386.)

Although plaintiff’s corrected vision was 20/25, it is a mischaracterization of the record to state

that her diabetes is “controlled” when the context of the treatment notes overall shows otherwise.

(Tr. 388.)

And the reports of improvement with treatment are modest. Plaintiff’s diabetes continued

to negatively impact her vision and kidney function, which eventually led to dialysis and a

kidney transplant. (Tr. 407-08, 1627.) Although this decline in functioning happened after the

relevant period ended in 2016, this medical evidence relates back because it shows that

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plaintiff’s diabetes was not “controlled with medication and diet” given that she experienced a

significant decline after the relevant period. Thus, the overall diagnostic picture reveals waxing

and waning diabetes symptoms with generally low levels of overall functioning. Ghanim, 763

F.3d at 1164 (explaining that an ALJ may not cherry-pick isolated instances of favorable

symptoms when the record reflects longstanding disability).

The ALJ’s analysis of plaintiff’s subjective symptom testimony is brief,

mischaracterized, and unsupported by the record, including a lack of elaboration or citations to

support his contentions. Therefore, the ALJ failed to provide a clear and convincing reason,

supported by substantial evidence, for affording less weight to plaintiff’s physical symptom

testimony.

B. Medical Expert Testimony

At the hearing, Dr. Jerry Seligman testified that plaintiff has the following severe

impairments: end stage renal disease treated with a transplant, diabetes mellitus, decreased vision

acuity, and obesity. (Tr. 54.) In his opinion, plaintiff’s impairments did not meet or equal a

Listing through the relevant period. (Tr. 54.) He also observed that plaintiff would have visual

limitations including that “near acuity would be limited in both eyes, unlimited depth perception

accommodation color visions and field of visions.” (Tr. 54.) Those limitations would continue to

the present, with no significant differences. (Tr. 55.)

Dr. Seligman’s opinion was persuasive for the ALJ, who stated that Dr. Seligman’s

findings were consistent with the record, including “evidence of good symptom control,

acceptable corrected vision in spite of retinopathy, acceptable physical findings, and self-reports

of good functioning.” (Tr. 31, citing Tr. 280-87, 386, 411, 1343.)

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Plaintiff asserts that the ALJ improperly evaluated Dr. Seligman’s medical expert

testimony. She points out that she was first noted to have developed kidney insufficiency in May

2014. (Pl. Br. at 9, citing Tr. 334.) Plaintiff explains that her symptoms worsened over time,

leading to dialysis in March 2020 and a kidney transplant in April 2022, which in her view is so

limiting that the social security administration has determined that those symptoms would meet

Listings 6.03 and 6.04 alone or equal in combination. (Pl. Br. at 9.) Because her condition

deteriorated significantly after 2016, resulting in a kidney transplant in 2022, Dr. Seligman’s

opinion that her limitations would not be “significantly different” in 2023 reveals that he

misunderstood her medical records or the diabetes listings. (Pl.’s Br. at 9.) According to plaintiff,

that misunderstanding undercuts Dr. Seligman’s opinion and the ALJ erred in finding it

persuasive.

The Commissioner responds that Dr. Seligman’s testimony that plaintiff’s current

functioning is the same as it was from 2012 to 2016 is “immaterial because what is at issue is

Plaintiff’s functioning during the period at issue.” (Def. Br. at 3.) Plaintiff’s condition after the

date last insured, in the Commissioner’s view, is irrelevant. (Def.’s Br. at 3.)

Although Dr. Seligman’s statement calls into question the supportability of his opinion,

the court need not resolve the parties’ debate about his understanding of plaintiff’s medical

records and the listings because the ALJ committed other errors in evaluating Dr. Seligman’s

medical expert testimony. For example, the ALJ found Dr. Seligman’s opinion consistent with

and supported by other medical evidence showing that plaintiff had “good symptom control” (Tr.

31.) As discussed above, the ALJ’s finding that plaintiff’s diabetes was “controlled with

medication and diet” is unsupported by substantial evidence in the record. Further, the ALJ’s

finding that plaintiff had “acceptable corrected vision” fails to discuss or grapple with Dr.

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Seligman’s assessment that she had vision limitations, including that her near visual acuity is

limited in both eyes. (Tr. 54.) The ALJ’s discussion of plaintiff’s vision difficulties, as noted

above, mischaracterized the record and is not supported by substantial evidence in the record.

Consequently, the ALJ’s similar rationales for finding Dr. Seligman’s opinion persuasive

likewise are insufficient. The ALJ erred. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022)

(holding that “even under the new regulations,” the ALJ’s explanation must be supported by

substantial evidence).

C. Lay Witness Testimony

Lay witness testimony about a claimant’s symptoms is competent evidence that an ALJ

must consider unless she “expressly determines to disregard such testimony and gives reasons

germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001);

Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (holding that competent lay witness

testimony “cannot be disregarded without comment” (emphasis in original). An ALJ may not

reject such testimony without comment and “must give reasons that are germane to each

witness.” Nguyen, 100 F.3d at 1467 (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.

1993)).

An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,

either individually or in the aggregate.” Molina, 674 F.3d at 1115 (quoting Nguyen, 100 F.3d at

1467). Such an error may be harmless, and a court must determine whether the error is

“‘inconsequential to the ultimate nondisability determination’ in the context of the record as a

whole.” Id. at 1122 (quoting Carmickle, 533 F.3d at 1162-63).

In responding to plaintiff’s argument that the ALJ erred by failing to consider the

testimony of her son, the Commissioner argues that under new regulations governing the

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evaluation of medical evidence, an ALJ need not provide a reason for rejecting lay witness

statements. Subsection (d) of the new regulations provides: “We are not required to articulate

how we considered evidence from nonmedical sources using the requirements in paragraphs (a)-

(c) in this section.” 20 C.F.R. § 404.1520c(d). Subsections (a) through (c) lay out the new

standards for evaluating medical opinion evidence . Id. § 404.1520c(a)-(c). In the

Commissioner’s view, lay testimony is a “nonmedical source” and ALJ’s are not required to

articulate how that evidence was considered.

The court is not persuaded by the Commissioner’s argument. The Ninth Circuit has not

yet decided whether the regulations relating to medical evidence affect an ALJ’s analysis of lay

witness testimony. Most district courts in this circuit, however, have concluded that the new

regulations do not eliminate an ALJ’s obligation to consider and address lay witness testimony.

See, e.g., Christopher M. v. Comm’r, Soc. Sec. Admin., Case No. 6:22-cv-01378-SB, 2023 WL

8827678, at *10 (D. Or. Dec. 21, 2023); Jerald H. v. Comm’r of Soc. Sec., Case No. 3:22-cv-

05855-GJL, 2023 WL 6533477, at *4 (W.D. Wash. Oct. 6, 2023); Gardner v. Comm’r of Soc.

Sec. Admin., Case No. CV-22-00321-TUC-LCK, 2023 WL 6173220, at *6 (D. Ariz. Sept. 21,

2023); Joseph L. S. v. Kijakazi, Case No. 5:23-cv-00006-BFM, 2023 WL 5611408, at *5 (C.D.

Cal. Aug. 30, 2023); Sharon W. v. Kijakazi, Case No. 1:22-cv-00013-DKG, 2023 WL 246391, at

*8 (D. Idaho Jan. 18, 2023).

The court agrees with the majority view. Although the new regulations do not require

ALJ’s to analyze nonmedical sources using the same criteria as medical sources, those

regulations did not eliminate the ALJ’s obligation to review and address lay witness testimony.

And the new regulations did not overrule binding Ninth Circuit precedent that an ALJ must

address lay witness testimony and provide germane reasons to discount it. See

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790 (“[Ninth Circuit] precedent controls unless its reasoning or theory is clearly irreconcilable

with the reasoning or theory of intervening higher authority, which in this case is the agency’s

updated regulations.” (simplified)). Furthermore, “[t]he requirement that an ALJ consider lay

witness testimony comes from other regulations, regulations that remain intact after the 2017

amendment.” Joseph L.S., 2023 WL 5611408, at *5. (citing 20 C.F.R. §§ 416.913(a),

416.929(a)). The contention “[t]hat an ALJ can disregard or reject relevant lay evidence for no

reason is inconsistent with the Commissioner’s obligation to consider such evidence[ ] and the

rule [that] the ALJ must provide some rationale in order for the Court to meaningfully determine

whether the ALJ’s conclusions are free of legal error and supported by substantial evidence.”

Gary J.D. v. Comm’r of Soc. Sec., Case No. C22-1821-BAT, 2023 WL 5346621, at *14 (W.D.

Wash. Aug. 21, 2023).

As plaintiff argues, the ALJ did not address the lay witness testimony, and therefore,

erred. The court rejects the Commissioner’s argument that the ALJ’s error is harmless because

the son’s statement does not provide any materially different limitations than does plaintiff’s

testimony. See Molina, 674 F.3d at 1118-19 (“Where lay witness testimony does not describe

any limitations not already described by the claimant, and the ALJ’s well-supported reasons for

rejecting the claimant’s testimony apply equally well to the lay witness testimony, it would be

inconsistent with our prior harmless error precedent to deem the ALJ’s failure to discuss lay

witness testimony to be prejudicial per se.”). The ALJ did not provide legally sufficient reasons

to discount plaintiff’s subjective symptom testimony and therefore harmfully erred in failing to

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consider the lay witness testimony.

D. Step-Five Error

Because the ALJ committed harmful error by failing properly to evaluate plaintiff’s

symptom testimony, lay witness testimony, and finding Dr. Seligman’s opinion persuasive, the

RFC and hypothetical posed to the VE have no evidentiary value; the ALJ thus erred at step

five. Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (“If a vocational expert’s

hypothetical does not reflect all the claimant’s limitations, then the testimony has no evidentiary

value to support a finding that the claimant can perform jobs in the national economy.”

(quotation marks omitted)).

E. Remand

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) (citation omitted). 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 Soc. Sec. Admin., 775 F.3d 1090, 1099-100

(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 whether a claimant is disabled. Strauss v. Comm’r

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

In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this

court. Garrison, 759 F.3d at 999. The 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 there is any useful purpose in further

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proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has

been fully developed and there are no outstanding issues left to be resolved does the district 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 district court can exercise its

discretion to remand for an award of benefits. Id. The district court retains flexibility, however,

and need not credit statements as true merely because the ALJ made a legal error. Id. at 408.

Plaintiff satisfies all three parts of the credit as true as true analysis. As explained above,

the ALJ failed to provide legally sufficient reasons to reject plaintiff’s testimony, lay testimony,

and in finding Dr. Seligman’s opinion persuasive. If that testimony is credited as true, the ALJ

would be required to find plaintiff disabled on remand. Plaintiff testified that between 2012 and

2016, she needed to lie down and rest three times per week for one to two hours at a time due to

dizziness and nausea, could not lift or carry more than 10 pounds, could stand for only two

hours, had difficulty breathing, and experienced fatigue. (Tr. 61-62.) Those limitations were

echoed by her son. The vocational expert testified that plaintiff’s need for unscheduled breaks

three times per week to lie down for one to two hours would eliminate competitive employment.

(Tr. 69-71.)

The Commissioner contends that conflicts in the record prevent remanding for an award

of benefits, yet it fails to identify them. Presuming the Commissioner is referring to Dr.

Seligman’s light work opinion, the court disagrees his testimony requires resolving or that

further proceedings would serve a useful purpose. Dr. Seligman’s opinion was not consistent

with or supported by other medical evidence in the record and even he recognized that plaintiff

has limited near vision acuity in both eyes. And because plaintiff was uninsured, additional

records are unlikely to be forthcoming on remand. For those reasons, the court sees little value in

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providing the ALJ a “mulligan” here. Garrison, 759 F.3d at 1021; Benecke v. Barnhart, 379 F.3d

587, 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the issue again would create an

unfair ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”).

Finally, reviewing the whole record creates no doubt that plaintiff is, in fact, disabled.

Garrison, 759 F.3d at 1022-23. When discussing remand, the Commissioner states that the

record calls plaintiff’s limitations into question, but it does not support that assertion. And the

Commissioner does not respond to plaintiff’s contention that if her testimony is credited, she is

limited to sedentary work, and that she is disabled as of her fiftieth birthday under the Medical

Vocational Rule 201.14. (Pl.’s Br. at 8-9.)

In sum, the court concludes that plaintiff satisfies the credit as true test, has no serious

doubt that plaintiff is disabled, and that remanding this case for an immediate calculation of

benefits is appropriate.

CONCLUSION

For the above reasons, the court REVERSES the Commissioner’s decision and

REMANDS for an immediate calculation of benefits.

ORDERED: December 27, 2024.

______________/_s/_ J_e_f_f _A_r_m__is_te_a_d__

JEFF ARMISTEAD

United States Magistrate Judge

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