The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON T.,1 Case No. 6:23-cv-01663-SB
Plaintiff, OPINION AND ORDER
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
BECKERMAN, U.S. Magistrate Judge.
Jason T. (“Plaintiff”) filed this appeal challenging the Commissioner of Social Security’s
(“Commissioner”) denial of his application for Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act. The Court has jurisdiction over this appeal pursuant to
42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge
pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the Court reverses the
Commissioner’s decision and remands for the calculation and payment of benefits.
1 In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “not supported by substantial evidence or is based on legal error.” Bray v. Comm’r of Soc.
Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006)). Substantial evidence is defined as “more than a mere scintilla [of
evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court
must consider the entire record, weighing the evidence that both supports and detracts from the
Commissioner’s conclusions. Id. Where the record as a whole can support either the grant or
denial of Social Security benefits, the district court “may not substitute [its] judgment for the
[Commissioner’s].” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152
(9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF’S APPLICATION
Plaintiff was born in April 1970, making him forty-eight years old on October 15, 2018,
the application filing and amended disability onset date.2 (Tr. 39, 222, 258.) Plaintiff alleges
2 “SSI benefits are not payable prior to the month following the month in which the
application was filed, and therefore the ALJ’s disability determination [in an SSI case] is
whether [the claimant] was under a disability as of the date the application was filed.” Pineda v.
Comm’r of Soc. Sec., No. 1:22-cv-01287-SAB, 2023 WL 5334984, at *1 n.3 (E.D. Cal. Aug. 18,
2023) (citation omitted).
disability due to “no warning” grand mal seizures, dizziness spells, and migraines. (Id. at 294-
301.)
The Commissioner denied Plaintiff’s application initially and upon reconsideration, and
on June 3, 2020, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Id.
at 122-24.) Plaintiff, accompanied by his attorney, testified at an administrative hearing on
November 1, 2022, along with a vocational expert (“VE”). (Id. at 34-74.) On November 28,
2022, the ALJ issued a written decision denying Plaintiff’s application. (Id. at 17-24.) On
September 22, 2023, the ALJ’s decision became the final decision of the Commissioner when the
Appeals Council denied review. (Id. at 1-6.) Plaintiff now seeks judicial review.
II. THE SEQUENTIAL PROCESS
A claimant is considered disabled if the claimant is unable to “engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which . . . has lasted or can be expected to last for a continuous period of not less than 12
months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five
steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the impairment meets or equals a listed
impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the
claimant can perform other work that exists in significant numbers in the national economy. Id.
at 724-25.
The claimant bears the burden of proof for the first four steps. See Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any
of those steps, the claimant is not disabled within the meaning of the Social Security Act. See id.
at 954. The Commissioner bears the burden of proof at step five, where the Commissioner must
show the claimant can perform other work that exists in significant numbers in the national
economy, “taking into consideration the claimant’s residual functional capacity, age, education,
and work experience.” Tackett, 180 F.3d at 1100. If the Commissioner fails to meet this burden,
the claimant is disabled. See Bustamante, 262 F.3d at 954.
III. THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is
disabled. (Tr. 17-24.) At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since October 15, 2018, the application date. (Id. at 19.) At step two,
the ALJ found that Plaintiff suffered from the following severe, medically determinable
impairments: “seizure disorder and coronary artery disease with bypass surgery in June 2021.”
(Id.)
At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or
medically equals a listed impairment. (Id. at 20.) The ALJ then concluded that Plaintiff had the
residual functional capacity (“RFC”) to perform light work. (Id.) The ALJ limited him to
“occasionally climb ramps and stairs” and “occasionally stoop, crouch, kneel, and crawl” but
“never climb ladders, ropes, or scaffolds[,]” “never be required to balance as part of his job
activities[,]” “never work around unprotected heights or moving and/or dangerous machinery[,]
and never be required to drive a vehicle as part of work activities.” (Id.) The ALJ also found that
Plaintiff can “tolerate moderate noise levels and must avoid bright lights (in excess of typical
office or retail lighting) and flashing lights.” (Id.)
At step four, the ALJ concluded that Plaintiff has no past relevant work experience. (Id.
at 23.) At step five, the ALJ concluded that Plaintiff was not disabled because he was “capable of
making a successful adjustment to other work that exists in significant numbers in the national
economy.” (Id. at 24.)
DISCUSSION
In this appeal, Plaintiff argues that the ALJ erred by failing to provide legally sufficient
reasons to discount (i) the medical opinion of Yulia Whidden, FNP (“FNP Whidden”); (2)
Plaintiff’s symptom testimony; and (3) the lay witness testimony of Plaintiff’s fiancée. (See
generally Pl.’s Opening Br. (“Pl.’s Br.”), ECF No. 12.)
As explained below, the Court concludes that the Commissioner’s decision is based on
harmful legal error and not supported by substantial evidence. Accordingly, the Court remands
Plaintiff’s case for the calculation and payment of benefits.
I. MEDICAL OPINION EVIDENCE
Plaintiff argues that substantial evidence does not support the ALJ’s explanation for
discounting the opinion of Plaintiff’s nurse practitioner, FNP Whidden. (Id. at 5-9.) The Court
agrees.
A. Applicable Law
The Ninth Circuit has recognized that the Social Security Administration’s updated
regulations for evaluating medical evidence “apply to [a claimant’s Social Security case if] she
filed her claim on or after March 27, 2017.” Woods v. Kijakazi, 32 F.4th 785, 787-92 (9th Cir.
2022). Under the new regulations, “‘[t]he most important factors’ that [an ALJ] considers when
evaluating the persuasiveness of medical opinions are ‘supportability’ and ‘consistency.’” Id. at
791 (quoting 20 C.F.R. § 404.1520c(a)). “Supportability means the extent to which a medical
source supports the medical opinion by explaining the ‘relevant . . . objective medical
evidence.’” Id. at 791-92 (quoting 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the extent
to which a medical opinion is ‘consistent . . . with the evidence from other medical sources and
nonmedical sources in the claim.’” Id. at 792 (citing 20 C.F.R. § 404.1520c(c)(2)). 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.” Id. An ALJ “must articulate how persuasive [the ALJ] finds all the medical opinions
from each doctor or other source,” and must explain how he or she “considered the supportability
and consistency factors in reaching these findings.” Id. (citing 20 C.F.R. § 404.1520c(b))
(simplified).
B. Analysis
The Court concludes that substantial evidence does not support the ALJ’s evaluation of
FNP Whidden’s opinion.
1. FNP Whidden’s Opinion
FNP Whidden began treating Plaintiff for his conditions on December 5, 2018. (See Tr.
415.) On January 5, 2022, FNP Whidden provided a treating source statement regarding the
severity and limiting effects of Plaintiff’s seizures and migraine headaches. (Id. at 996-98.) FNP
Whidden opined that Plaintiff’s seizures and migraines are both chronic diseases that “are
controlled with medications to some extent.” (Id. at 996.) FNP Whidden reported that Plaintiff’s
seizures include a “loss of consciousness and clonic-tonic muscle activities.” (Id. at 997.) FNP
Whidden observed that Plaintiff’s migraines are “well controlled for now[,]” but that he has
frequent tension headaches in the occipital area. (Id.) FNP Whidden’s opinion included
descriptions of Plaintiff’s objective medical testing, including an electroencephalography
(“EEG”) from 2019 showing “abnormal spikes in the left and right frontal areas” and magnetic
resonance imaging (“MRI”) in 2019 showing a small focus of gliosis within the anterior left
frontal cortex. (Id.)
///
FNP Whidden reported that Plaintiff has to lie down or rest for thirty minutes following a
headache until his medication takes effect, and he may need to remain in bed for the remainder
of the day after a seizure. (Id.) Plaintiff’s treatment included Oxcarbazepine, Vimpat, and
Amitriptyline. (Id. at 998.) Oxcarbazepine causes headaches, somnolence, fatigue, and impaired
concentration, and Amitriptyline causes sedation. (Id.) FNP Whidden reported that Plaintiff’s
conditions would cause him to miss more than four workdays per month. (Id.)
2. The ALJ’s Findings
The ALJ found that FNP Whidden’s opinion was “not persuasive.” (Id. at 22-23.) The
ALJ explained that FNP Whidden’s “treatment notes do not support the noted frequency of
absences due to seizures,” citing her treatment notes:
[I]n March 2021, Ms. Whidden noted that [Plaintiff] reported having seizures
once every 2 to 3 months, with his most recent seizure approximately 1.5 months
prior. In April 2022, she noted that [Plaintiff] reported 4 seizures in December
2021 and January 2022, 2 seizures in March 2022, and no seizures in February or
April 2022. In August 2022, [Plaintiff] reported 2 recent seizures, in the context
of medication change.
(Id. at 23) (internal citations omitted). The ALJ reasoned that this evidence “indicate[s]
continued seizure activity, but do[es] not support a finding that these seizures would prevent
work more than [four] days per month.” (Id.) The ALJ also found that FNP Whidden’s
statements regarding Plaintiff’s headaches were unsupported. (Id.)
3. Disposition
The Court concludes that the ALJ committed harmful error in discounting FNP
Whidden’s opinion.
Plaintiff argues that “even evaluating only the documented frequency of [Plaintiff]’s
seizures requires a finding of disability per vocational expert testimony” and therefore the ALJ’s
discussion of the combined effect of Plaintiff’s seizures and headaches on his ability to maintain
work attendance was misplaced. (See Pl.’s Br. at 8.) Plaintiff also asserts that the ALJ focused
only on periods of reduced seizure activity to discount FNP Whidden’s opinion. (Id.)
FNP Whidden’s treatment notes reflect that Plaintiff regularly suffered grand mal
seizures, up to five times per month, as well as daily tension headaches and less frequent
migraines. (Tr. 996-98.) Her treatment notes reflect that Plaintiff had three seizures in October
2018, five in November 2018, and that he was also experiencing headaches with associated
photophobia, phonophobia, nausea, and vomiting five to six times per week. (Id. at 415, 574.) In
March 2021, FNP Whidden reported that Plaintiff was “having seizure episodes once every 2-3
months[,]” but that he “complains of headache that he is experiencing every day.” (Id. at 999.) A
2022 treatment note reflects that Plaintiff had four grand mal seizures in December 2021 and
January 2022, two in March 2022, but none in February or April 2022. (Id. at 1017.) Treatment
notes further reflect that Plaintiff had two seizures in August 2022, in the context of a medication
change. (Id. at 1021.)
Evaluating the record as a whole, the Court finds that isolated periods of reduced seizure
activity do not provide substantial evidence to discount FNP Whidden’s opinion. The record
demonstrates that Plaintiff’s grand mal seizures are random and difficult to predict. (See id. at
571, 573, 889-915.) However, the record establishes that during the relevant time period,
Plaintiff consistently suffered grand mal seizures, with increasing frequency, including an
average of greater than two seizures each month and up to four or five seizures per month. (See
Def.’s Br. at 6, noting that in 2020, Plaintiff suffered four seizures in January; two in February;
one in March; two in April; two in May; three in June; two in July; one in August; two in
September; three in October; two in November; and two in December; Pl.’s Reply at 2, citing a
seizure log in Plaintiff’s medical records (Tr. 889-915) indicating that Plaintiff suffered three
seizures in October 2018, five in November 2018, three in December 2018, two in January 2019,
two in February 2019, four in March 2019, three in April 2019, one in May 2019, two in June
2019, three in July 2019, three in August 2019, one in September 2019, two in October 2019,
one in November 2019, three in December 2019, four in January 2020, two in February 2020,
one in March 2020, two in April 2020, two in May 2020, three in June 2020, two in July 2020,
one in August 2020, two in September 2020, three in October 2020, two in November 2020, and
two in December 2020.) FNP Whidden reported that “after a seizure [he] might need to be in a
bed the whole day” (Tr. 997), necessarily supporting that each seizure results in at least one
missed workday.3
In light of this record, the ALJ’s conclusion that FNP Whidden’s treatment notes do not
support her opinion about the frequency of Plaintiff’s seizures and their impact on his workdays
is not supported by substantial evidence. See Robbins, 466 F.3d at 882 (holding that a reviewing
court must consider the entire record as a whole and may not affirm simply by isolating a
“specific quantum of supporting evidence” (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th
Cir. 1989))); see also Shirley C. v. Comm’r Soc. Sec. Admin., No. 1:20-cv-01212-MK, 2021 WL
3008265, at *8 (D. Or. July 15, 2021) (“The new regulations do not . . . displace the Ninth
Circuit’s entire body of caselaw relating to medical evidence, which remain binding on this
3 FNP Whidden opined that Plaintiff would miss four workdays because of his seizures
and headaches, and the ALJ discounted FNP Whidden’s opinion in part because Plaintiff’s
headaches “are mild and responsive to Tylenol.” (Tr. 23, citing Tr. 1017.) However, FNP
Whidden opined that Plaintiff would miss work because he “had to lie down or rest for thirty
minutes following a headache” in order for the Tylenol to start working (id. at 997), and FNP
Whidden reported that Plaintiff suffers headaches every day. (See id. at 999, “[T]he patient
complains of headache that he is experiencing every day.”) The Court finds that Plaintiff’s
responsiveness to Tylenol does not provide substantial evidence to discount FNP Whidden’s
opinion about whether his headaches would otherwise impact Plaintiff’s workday. In any event,
as discussed below, the Court finds that Plaintiff would exceed the customary tolerance for
absences because of his seizures alone.
Court. For example, it remains true that ALJs may not cherry-pick evidence in discounting a
medical opinion.”) (citation omitted).
For these reasons, the Court finds that the ALJ’s reasons for discounting FNP Whidden’s
opinion were not supported by substantial evidence.
II. PLAINTIFF’S SYMPTOM TESTIMONY
A. Applicable Law
The Ninth Circuit has “established a two-step analysis for determining the extent to
which a claimant’s symptom testimony must be credited[.]” Trevizo v. Berryhill, 871 F.3d 664,
678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which could reasonably be expected to produce
the pain or other symptoms alleged.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)
(quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). Second, “[i]f the claimant meets
the first test and there is no evidence of malingering, the ALJ can only reject the claimant’s
testimony about the severity of the symptoms if she gives specific, clear and convincing reasons
for the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (simplified).
Clear and convincing reasons for rejecting a claimant’s subjective symptom testimony
“include conflicting medical evidence, effective medical treatment, medical noncompliance,
inconsistencies in the claimant’s testimony or between her testimony and her conduct, daily
activities inconsistent with the alleged symptoms, and testimony from physicians and third
parties about the nature, severity and effect of the symptoms complained of.” Bowers v. Astrue,
No. 6:11-cv-00583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (first citing Tommasetti
v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); then citing Lingenfelter v. Astrue, 504 F.3d 1028,
1040 (9th Cir. 2007); and then citing Light v. Comm’r Soc. Sec. Admin., 119 F.3d 789, 792 (9th
Cir. 1997)).
B. Analysis
There is no evidence of malingering here, and the ALJ determined that Plaintiff provided
objective medical evidence of underlying impairments that might reasonably produce the
symptoms alleged. (See Tr. 21.) The ALJ was therefore required to specify which testimony the
ALJ found not credible and provide clear and convincing reasons to discount Plaintiff’s
symptom testimony. See Ghanim, 763 F.3d at 1163.
1. Plaintiff’s Testimony
Plaintiff testified at his 2022 hearing that he gets “three to five” no-warning seizures per
month and that he experiences them despite taking preventative anti-seizure medications. (Tr.
51.) He testified that he began having grand mal seizures in 2007. (Id. at 42.) Plaintiff discussed
that some months he does not experience seizures, but that when he does experience seizures, “it
makes every muscle in [his body sore,]” and it “feels like somebody beat the heck out of [him] or
[he] went on a 10[-]mile hike.” (Id. at 61.) Plaintiff testified that it takes him days to get back to
what “[he] call[s] normal.” (Id.) He claims that when a seizure happens, he hits his head a lot and
it puts him “on the ground.” (Id.) As a result, he is not allowed to drive and relies on medical
transport to attend appointments. (Id. at 42-43, 65-66.)
Plaintiff also stated that his migraines “come and go” and that every few days he gets one
that “puts [him] out of commission.” (Id. at 47.) His non-migraine headaches occur more
frequently, but are not as debilitating as the migraines. (Id. at 43, 48, 63-64.)
2. The ALJ’s Findings
The ALJ discounted Plaintiff’s testimony “regarding the frequency of his seizures or the
severity of his other symptoms.” (Id. at 21.) The ALJ cited treatment records that “indicate a
long history of seizures dating from prior to 2007, but [show] inconsistent treatment for this
condition.” (Id.) The ALJ found that in 2016, Plaintiff “sought care after a significant gap in
treatment, reporting no medication for [two] years and poor control of his seizures, with [six]
episodes in the last year.” (Id.) In March 2017, “he reported generally having [seven] to [eight]
seizures per year[.]” (Id.) In August 2017, “he reported episodes approximately once per month.”
(Id.) In October 2018, “he reported that his seizure disorder was fairly well controlled with
medication.” (Id.) However, an “electroencephalogram performed in January 2019 was slightly
abnormal” and reflected spikes “of a potentially epileptogenic nature.” (Id.)
The ALJ further summarized that in April 2019, Plaintiff reported two seizures the
previous month, triggered by stress, and side effects from his seizure medications. (Id.) Plaintiff
reported two seizures in early September 2019 and two seizures in October 2019. (Id.) Plaintiff
visited the emergency room in January 2020, reporting recent seizures and a fall down the stairs.
(Id.) He had multiple seizures in the emergency room. (Id.) The ALJ noted that Plaintiff had an
elevated blood alcohol content while in the emergency room, “leading to a conclusion that his
seizures were likely multifactorial.” (Id.) The ALJ further noted that the treatment notes reflect
that Plaintiff’s medical refill patterns suggested noncompliance at that time, which Plaintiff
acknowledged. (Id.)
In March 2021, Plaintiff reported seizures every two to three months, as well as daily
headaches. (Id. at 22.) In January 2022, he reported four seizures the prior month, rare migraine
headaches, and frequent tension headaches treated with Tylenol. (Id.) In April 2022, he reported
four seizures in December and January, two in March, and none in February or April; and he
reported two seizures in August 2022. (Id.) During this time period, his physicians prescribed
new medications for his seizures following failed trials of Dilantin, Topamax, and Keppra. (Id.)
The ALJ concluded that “[a]lthough this record demonstrates [Plaintiff]’s allegations of
persistent seizures, it does not support the frequency of these seizures.” (Id. at 22.) To support
this assertion, the ALJ summarized imaging and other diagnostic records that showed Plaintiff
being “seizure-free” and that he had only “slightly abnormal” examination findings. (Id. at 21-
22.)
3. Disposition
Plaintiff argues that the ALJ failed to identify specific, clear, and convincing reasons
supported by substantial evidence to discount Plaintiff’s symptom testimony. (Pl.’s Br. at 9-14;
Pl.’s Reply Br. at 2.) Specifically, Plaintiff argues that there are no treatment gaps in the
adjudicatory period, and despite the ALJ’s acknowledgement that “the record demonstrates
[Plaintiff]’s allegations of persistent seizures[,]” the ALJ asserted without explanation that the
record failed to support the alleged frequency of the seizures. (Pl.’s Br. at 11-12, citing Tr. 22.)
The Commissioner responds that the ALJ reasonably discounted Plaintiff’s testimony because it
conflicted with the medical record and his seizures were controlled with medication and
conservative treatment. (Def.’s Br. at 3-13, ECF No. 14.)
In evaluating symptom testimony, an ALJ may consider a claimant’s “unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course of treatment.”
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); Larsen v. Kijakazi, No. 18-55398, 2022
WL 1537365, at *1 (9th Cir. May 16, 2022) (finding that the ALJ did not err in discounting the
claimant’s testimony in part because “there was an unexplained absence of treatment for a
portion of the closed period”); see also Mutter v. Kijakazi, No. 18-15877, 2021 WL 4776379, at
*1 (9th Cir. Oct. 13, 2021) (“The ALJ provided specific, clear, and convincing reasons to
discount [the claimant]’s symptom testimony as inconsistent with and unsupported by the record
and based on a lengthy gap in treatment, conservative treatment, and evidence that his conditions
were managed with medication.”).
///
First, although the ALJ clearly identifies October 15, 2018, as Plaintiff’s application and
amended disability onset date, he cites a gap in treatment in 2016 to discount Plaintiff’s
testimony about the frequency of his grand mal seizures during the adjudicatory period. (See Tr.
21; cf. Def.’s Br. at 6, highlighting a gap in seizures before the adjudicatory period.) The record
does not reflect any treatment gaps in the adjudicatory period. The Court finds that a gap in
treatment that predated Plaintiff’s disability onset date by more than two years does not provide
substantial evidence to discount the frequency of his seizures during the adjudicatory period.
Second, the ALJ acknowledged Plaintiff’s “persistent” seizures but discounted his
alleged frequency of seizures. (Tr. 22.) Although the ALJ’s reasoning is unclear, the
Commissioner interprets the ALJ’s opinion as discounting Plaintiff’s hearing testimony that he
suffered “three to five” seizures a month because the medical record reflects only “one to three
seizures a month.” (Def.’s Br. at 6, noting that in 2020, Plaintiff suffered four seizures in
January; two in February; one in March; two in April; two in May; three in June; two in July;
one in August; two in September; three in October; two in November; and two in December.)
However, even if Plaintiff inaccurately calculated his average monthly number of seizures
without the benefit of his medical records, the Commissioner acknowledges that the medical
record demonstrates that he suffered between two to three seizures per month on average. (Id.)
As discussed below, the record reflects that two seizures each month precludes Plaintiff from
full-time employment.
Third, the ALJ suggested that Plaintiff’s seizures may be secondary to “medication
noncompliance and alcohol withdrawal.” (Tr. 22.) However, the ALJ based that conclusion on
one emergency room visit in January 2020, when Plaintiff reported increased seizure activity and
a fall. 4 (Id. at 21.) Plaintiff reported medication noncompliance at that time and sought resources
to help him stop drinking (Id. at 544, 606, 598-99), and later testified that he stopped drinking
after that incident. (Id. at 49.) The only other example of medication noncompliance the ALJ
cited was an incident in August 2022 when Plaintiff stopped taking a new medication because of
its side effects. (Id. at 22.) Aside from these two isolated examples, there is no other evidence in
the record of medication noncompliance, nor any medical opinion concluding that Plaintiff’s
seizures result from alcohol withdrawal. Instead, the record reflects consistent diagnoses from
multiple providers of Plaintiff’s seizure disorder over a span of several years. (See, e.g., id. at
433-34, 452-67, 477, 479, 484, 526-29, 544, 581, 599, 852, 916-17, 941, 946, 1004, 1014, 1025,
1046, 1054, 1068, 1074, 1082, 1088, 1111, 1116, 1130, 1133, 1137, 1143, 1147, 1171, 1179,
1195, 1420, 1426, 1433, 1438, 1541.) In any event, even if Plaintiff’s seizures are “multifactorial
in etiology” (id. at 22), there is nothing in the record that calls into question Plaintiff’s reports to
his providers regarding the frequency of his seizures which are corroborated by his longitudinal
medical record, objective medical evidence, and testimony.
The Court finds that the ALJ erred by relying on an isolated emergency room visit to
support discounting Plaintiff’s testimony without viewing that event in the context of the entire
medical record. See Robbins, 466 F.3d at 882 (holding that a reviewing court must consider the
entire record as a whole and may not affirm simply by isolating a “specific quantum of
supporting evidence” (quoting Hammock, 879 F.2d at 501)); see also Adeena W. v. Saul, No.
6:19-cv-00051-SB, 2020 WL 2992191, at *5 (D. Or. June 4, 2020) (explaining that an ALJ
4 At that same visit, a hospital physician concluded that Plaintiff “had a high probability
of imminent or life-threatening deterioration due to increased seizures and intracranial
hemorrhage[.]” (Tr. 546.)
cannot “cherry-pick” from the record to support findings while ignoring evidence that contradicts
those findings).
In summary, the ALJ acknowledged Plaintiff’s “persistent” grand mal seizures and
accurately summarized the timeline of his frequent seizures beginning in October 2018, but then
discounted Plaintiff’s testimony about the frequency of the seizures based on a gap in treatment
prior to the adjudicatory period and an isolated emergency room visit in 2020. The Court finds
that the ALJ did not provide specific, clear, and convincing reasons to discount Plaintiff’s
testimony regarding the frequency of his seizures.5
III. REMEDY
Plaintiff asks the Court to remand for further administrative proceedings or an immediate
award of benefits. (Id. at 16; Pl.’s Reply Brief at 2-5, ECF No. 15.) The Commissioner responds
that “Plaintiff has not met th[e] high bar” for a benefits remand, but does not point to any issues
that remain unresolved. (Def.’s Br. at 21.) The Court finds that the credit-as-true standard is
satisfied here and that remand for the payment of benefits is appropriate.
A. Applicable Law
“Generally when a court of appeals reverses an administrative determination, ‘the proper
course, except in rare circumstances, is to remand to the agency for additional investigation or
explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). In
several cases, however, the Ninth Circuit has “stated or implied that it would be an abuse of
discretion for a district court not to remand for an award of benefits when [the three-part credit-
as-true standard is] met.” Garrison, 759 F.3d at 1020 (citations omitted).
5 Plaintiff also argues that the ALJ erred by failing to provide germane reasons for
discounting the lay witness testimony provided by Plaintiff’s fiancée, Jennie M. (Pl.’s Br. at 14-
16.) In light of the Court’s conclusions above and remand for benefits, the Court does not reach
the ALJ’s evaluation of the lay witness testimony.
The credit-as-true standard is met if three conditions are satisfied: “(1) the record has
been fully developed and further administrative proceedings would serve no useful purpose; (2)
the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion; and (3) if the improperly discredited evidence were credited as
true, the ALJ would be required to find the claimant disabled on remand.” Id. (citations omitted).
Even when the credit-as-true standard is met, the court retains the “flexibility to remand for
further proceedings when the record as a whole creates serious doubt as to whether the claimant
is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021.
B. Analysis
The Court has concluded that the ALJ failed to provide legally sufficient reasons for
rejecting FNP Whidden’s medical opinion and Plaintiff’s testimony regarding his grand mal
seizures. The record has been fully developed, including treatment notes spanning the relevant
time period, opinions from several medical sources, and Plaintiff’s testimony about the severity
and effects of his impairments, and further proceedings would serve no useful purpose. See
id. (“Although the Commissioner argues that further proceedings would serve the ‘useful
purpose’ of allowing the ALJ to revisit the medical opinions and testimony that she rejected for
legally insufficient reasons, our precedent and the objectives of the credit-as-true rule foreclose
the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a
remand for a ‘useful purpose’ under the first part of credit-as-true analysis.”) (citations omitted).
Further, if Plaintiff’s symptom testimony and FNP Whidden’s medical opinion are
credited as true, the record reflects that Plaintiff would miss at least four days of work per month
due to his impairments.6 (Tr. 998.) The VE testified that although there is “great variability
6 FNP Whidden opined that Plaintiff would miss four workdays per month as a result of
his seizures and headaches, but the record also reflects that Plaintiff would miss at least one day
between employers and industries[,]” typically the customary number of absences an employer
will tolerate is “six to eight days per year” which is the “equivalent of missing one day every six
to eight weeks.” (Id. at 72, “[M]ore liberal employers” might “allow up to one day per month
before . . . threat of termination. But the average nationally is around six to eight days per year.”)
As a result of the VE’s testimony, the ALJ would be required to find Plaintiff disabled on
remand. See Garrison, 759 F.3d at 1021 n.28 (explaining that “there is no need to develop the
record or convene further administrative proceedings” where “the VE answered a question
describing a hypothetical person with the RFC that the claimant would possess were the relevant
opinion or testimony taken as true”).
Finally, the Court does not have any serious doubt as to whether Plaintiff is disabled
within the meaning of the Social Security Act. Plaintiff testified that he has suffered from
unpredictable and debilitating grand mal seizures for several years, and the medical record and
FNP Whidden’s medical opinion corroborate that Plaintiff suffered an average of more than two
seizures per month during the adjudicatory period despite taking various anti-seizure
medications. The record further reflects that Plaintiff would miss at least one day of work with
each seizure, and therefore the documented frequency of Plaintiff’s seizures alone is disabling
per the VE’s testimony, even before factoring in Plaintiff’s daily headaches and occasional
migraines. For these reasons, the Court does not have serious doubt about whether Plaintiff is
disabled and therefore remands this case for the calculation and payment of benefits. See Leitz v.
Kijakazi, No. 22-35356, 2023 WL 4342114, at *3 (9th Cir. July 5, 2023) (“The Government
of work each time he suffers a seizure (or more than one day if his testimony about his recovery
time is credited as true), and the Commissioner acknowledges that Plaintiff suffered, on average,
more than two seizures per month. (Def.’s Br. at 6.) Thus, even considering only the impact of
Plaintiff’s seizures, Plaintiff would miss more days of work than employers customarily tolerate.
argues that we should remand for further proceedings rather than remand for an award of
benefits. However, remand would serve no legitimate purpose . . . and permitting the
Government to introduce additional evidence on remand would provide the Government with an
unfair second opportunity to present its case... . We therefore remand to the district court with
instructions to remand to the agency for an award of benefits.”) (citations omitted);
Hoffschneider v. Kijakazi, No. 18-15504, 2022 WL 3229989, at *3 (9th Cir. Aug. 10, 2022)
(“Once the improperly discredited evidence is credited as true, the vocational expert’s testimony
forecloses a determination that [the claimant] can work. Because no ‘serious doubt’ remains that
[the claimant] is disabled, there is nothing left to decide. We therefore reverse and remand with
instructions to remand to the Commissioner for a calculation and award of benefits.”) (citations
omitted).
CONCLUSION
For the reasons stated, the Court REVERSES the Commissioner’s decision and
REMANDS for the calculation and payment of benefits.
IT IS SO ORDERED.
DATED this 10th day of February, 2025.
Si Hawic 7, [eeerrmer
HON. STACIE F. BECKERMAN
United States Magistrate Judge
PAGE 19 —- OPINION AND ORDER