Myers v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

SARA M., Case No. 6:24-01074-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________________

ARMISTEAD, United States Magistrate Judge

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

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

findings regarding her subjective symptom testimony and the medical opinions of Dr. Joshua

Boyd and Dr. Sarah Eckstein. (Pl.’s Br. at 3-20, ECF 11.) As explained below, the

Commissioner’s decision is reversed, and this case is remanded for the immediate calculation

and payment of benefits.1

PROCEDURAL BACKGROUND

Plaintiff applied for Title II Disability Insurance Benefits (DIB) in 2019, alleging

disability onset as of November 20, 2018. (Tr. 13.) Her application was denied, and plaintiff

requested, and was granted, a hearing before an ALJ. (Tr. 73-123.) On September 2, 2020, the

ALJ issued an unfavorable decision. (Tr. 13-23.) The Appeals Council denied plaintiff’s request

for review in October 2020. (Tr. 166-68, 1-6.) Plaintiff sought review of that decision from this

court on December 15, 2020, resulting in an order for remand after the parties stipulated to

remand the case for further administrative proceedings. (Tr. 742, 745-46, 747-49.) On remand,

the Appeals Council vacated the original hearing decision and ordered the ALJ to address the

supportability factors when evaluating Dr. Eckstein’s opinion. (Tr. 754.) After hearings on

August 24, 2023, and February 22, 2024, the ALJ issued a new decision finding plaintiff was not

disabled on March 6, 2024. (Tr. 658-70.) Plaintiff now seeks review of that decision.

ALJ’S DECISION

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

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

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

consented to jurisdiction by magistrate judge under Federal Rule of Civil Procedure 73 and 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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gainful activity (SGA) since November 20, 2018. (Tr. 660.) At step two, the ALJ determined that

plaintiff had the following severe impairments: posttraumatic stress disorder (PTSD), social

anxiety disorder, generalized anxiety disorder, panic disorder, major depressive disorder,

insomnia disorder, bulimia nervosa, bipolar disorder, and bilateral hearing loss. At step three, the

ALJ determined that plaintiff’s impairments, singly or in combination, did not meet or medically

equal the severity of any listed impairment. (Tr. 661.)

As for the ALJ’s assessment of plaintiff’s residual functional capacity (RFC), 20 C.F.R. §

404.1545, the ALJ determined that plaintiff had the ability to perform a full range of work at all

exertional levels with these added limitations:

persist at simple, routine, repetitive tasks, make simple work-related decisions,

and perform work with few, if any, changes in the workplace, no assembly line

pace work. [Plaintiff] can have no public contact and occasional coworker

contact. [Plaintiff] can sustain work at noise levels of three or below (general

office noise). [Plaintiff] needs to avoid concentrated exposure to hazards, such as

heights and heavy machinery. (Tr. 662.)

At step four, the ALJ determined that plaintiff cannot perform any past relevant work.

(Tr. 668.) Considering her age, education, work experience, and RFC, the ALJ found at step five

that jobs existed in significant numbers in the national economy that plaintiff could perform,

including such representative occupations as electronic worker, office helper, and inspector hand

packager. (Tr. 669.)

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

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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, 587 U.S. 97, 103 (2019) (simplified). 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).

DISCUSSION

A. Subjective Symptom Testimony

Determining the credibility of a claimant’s symptom testimony requires the ALJ to

undertake a two-step process of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017);

20 C.F.R. § 404.1529. At the first step, the claimant must produce objective medical evidence of

an underlying impairment that could reasonably be expected to produce the alleged symptoms.

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014); Tommasetti v.

Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second step, if there is no affirmative

evidence of malingering, the ALJ must provide specific, clear and convincing reasons for

discounting the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir.

2015); 20 C.F.R. § 404.1529. The specific, clear and convincing standard is “the most

demanding required in Social Security cases” and is “not an easy requirement to meet.”

Garrison, 759 F.3d at 1015; Trevizo, 871 F.3d at 678-79. The “clear and convincing” standard

requires an ALJ to “show [their] work” but, ultimately, the question is not whether ALJ’s

rationale convinces the court, but whether the ALJ’s rationale “is clear enough that it has the

power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).

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Plaintiff argues that the ALJ failed to give specific, clear and convincing reasons for

disregarding her subjective symptom testimony. And plaintiff contends that the ALJ failed to

support with substantial evidence the finding that plaintiff’s statements were inconsistent with

the medical evidence and other evidence in the record, and that the ALJ failed to identify what

testimony she found not credible and what evidence undermined that testimony. (Pl. Br. at 17-

19.) Plaintiff is correct.

1. Inconsistent Objective Medical Evidence

The ALJ improperly discounted plaintiff’s testimony about the limiting effects of her

health impairments. The ALJ summarized various parts of the medical record attempting to show

inconsistency between the record and plaintiff’s testimony regarding her anxiety, PTSD,

depression, bipolar disorder, and panic disorder. (Tr. 663-65.) Although an ALJ may use

“inconsistent objective medical evidence in the record to discount subjective symptom

testimony,” the ALJ “cannot effectively render a claimant’s subjective symptom testimony

superfluous by demanding positive objective medical evidence fully corroborating every

allegation within the subjective testimony.” Smartt, 53 F.4th at 498 (simplified); see Coleman v.

Saul, 979 F.3d 751, 756 (9th Cir. 2020) (“An ALJ, however, may not discredit the claimant’s

subjective complaints solely because the objective evidence fails to fully corroborate the degree

of pain alleged.”). Thus, to satisfy the substantial evidence standard, the ALJ must provide

specific, clear, and convincing reasons that explain why the medical evidence is inconsistent with

the claimant’s subjective symptom testimony. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-

38, 1040 (9th Cir. 2007).

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Here, the ALJ failed to do so. Instead, the ALJ provided a summary of medical evidence

that she found undermined plaintiff’s testimony by focusing on the evidence supporting her

conclusion even when contrary evidence appeared in the same treatment notes. (Tr. 663-65.) An

ALJ may not “cherry pick” evidence without considering its context in the record. Ghanim v.

Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (holding ALJ may not “cherry pick” evidence that

disfavors disability without considering its context in record); Garrison, 759 F.3d at 1017 n.23

(holding an ALJ may not “cherry-pick” from mixed results to support a denial).

For example, the ALJ stated plaintiff’s “anxiety and mood had improved” after her

discharge from an overnight hospitalization in a psychiatric ward in November 2018. (Tr. 664.)

Although the discharge summary reported plaintiff denied suicidal and homicidal ideation with

normal mood, the same summary diagnosed plaintiff with bipolar disorder, PTSD, and severe

depression with mild psychotic features. (Tr. 496.) Those records included reports that plaintiff’s

mood was “depressed/anxious,” that she was “at highly elevated risk of self-harm,” and that two

years after plaintiff’s discharge, she still “has current passive suicidal ideation (e.g. ‘imagining a

gun in my mouth’).” (Tr. 563-64, 591-92.) The ALJ also asserted that “her mental impairments

were managed with medication and therapy,” citing a May 2019 treatment note in which plaintiff

denied acute symptoms of depression and anxiety and reported that her bipolar disorder was

managed with medication and therapy. However, that same page listed PTSD as a current

diagnosis without indication of management or improvement. (Tr. 649.) Similarly, the ALJ

asserted plaintiff had “normal ‘psych’ on examination” by citing records of normal insight, lack

of neurological deficits, and plaintiff being alert and pleasant; yet records from the same

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appointments included PTSD and bipolar disorder on plaintiff’s “Problem List.” (Tr. 664, 624-

25, 639-40.)

Additionally, the ALJ acknowledged that plaintiff attended therapy in 2023, but found

that “much of the focus was on her relationship with food[.]” (Tr. 664.) The ALJ’s finding is

misleading because the record listed plaintiff’s chief complaint as “[m]y anxiety and my

relationship with food,” and ignores her bulimia nervosa diagnosis. (Tr. 1113, 1114, 1116.)

Additionally, the ALJ identified therapy session notes to support her assertion that plaintiff’s

“[m]ental status examinations were unremarkable.” (Tr. 664.) Contrary to the ALJ’s finding,

however, those same therapy notes describe plaintiff as “depressed,” in a “current depressive

episode,” and “anxious.” (Tr. 1112, 1114-16.)

Furthermore, as plaintiff argues, the ALJ failed to identify what portion of her testimony

the ALJ found inconsistent or not credible and based on what evidence. (Pl. Br. at 17-19.) “The

ALJ must state specifically which symptom testimony is not credible and what facts in the record

leads to that conclusion.” Smolen v. Chater, 80 F.3d 1273, 1273 (9th Cir. 1996) (citing Dodrill v.

Shalala, 12 F.3d 915, 918 (9th Cir. 1993)); see also Lambert v. Saul, 980 F.3d 1266, 1278 (9th

Cir. 2020) (“providing a summary of medical evidence is not the same as providing clear and

convincing reasons for finding the claimant’s symptom testimony not credible”) (citation

modified); Holcomb v. Saul, 832 F. App’x 505, 506 (9th Cir. 2020) (holding that it was reversible

error for the ALJ to discuss relevant medical evidence but fail to link the claimant’s symptom

testimony to specific medical records and explain why those records contradicted his symptom

testimony).

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Instead, the ALJ generally stated that plaintiff’s “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. 663-

64.) Because the ALJ failed to specify what testimony was not credible and link that testimony to

the particular parts of the record, the ALJ has erred. Brown-Hunter, 806 F.3d at 494 (citing

Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014).

Overall, the ALJ’s analysis of plaintiff’s subjective symptom testimony is

mischaracterized and unsupported by the record. Therefore, the ALJ failed to provide a clear and

convincing reason, supported by substantial evidence, for affording less weight to plaintiff’s

symptom testimony.

B. Medical Opinion Evidence

Plaintiff challenges the ALJ’s consideration of the medical opinions of Drs. Boyd and

Eckstein. The regulations require ALJs to evaluate the supportability and consistency of a

medical opinion when assessing its persuasiveness. 20 C.F.R. § 404.1520c. ALJs must “articulate

. . . how persuasive [they] find all of the medical opinions” and “explain how [they] considered

the supportability and consistency factors.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022)

(quoting 20 C.F.R. § 404.1520c(b)(2)). Supportability is determined by assessing whether the

medical source provides explanations and objective medical evidence to support their opinion.

20 C.F.R. § 404.1520c(c)(1). Consistency is determined by evaluating how consistent the opinion

is with evidence from other medical and nonmedical sources in the record. 20 C.F.R. §

404.1520c(c)(2).

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1. Joshua Boyd, Psy.D.

On February 10, 2020, Dr. Boyd, a reviewing agency psychologist, submitted an RFC at

the reconsideration level that stated, in part, “[t]he [claimant] requires an understanding

supervisor that clearly explains expectation and work procedures” because of her medical

impairments. (Tr. 100.) The ALJ found Boyd’s opinion unpersuasive because she found the term

“understanding supervisor” to be “vague and also unwarranted.” (Tr. 667.) To support that

finding, the ALJ referred to plaintiff’s “recent treatment records at 15F which do not indicate

social deficits and interpersonal skills observed during the consultative examination at 9F/6,

indicating the claimant was affable, cooperative, and socially appropriate with the examiner.”

(Tr. 667.) Not only did the ALJ fail to connect plaintiff’s demeanor in a medical setting to

plaintiff’s need for an understanding supervisor, but the ALJ cited a page of plaintiff’s

consultative examination with Dr. Eckstein that opined plaintiff “seems to be struggling with

intense anxiety around other people following her physical and sexual assault in the military.”

(Tr. 595.) As discussed in greater detail below, Dr. Eckstein opined that plaintiff would have mild

to moderate “difficulty accepting instructions from supervisors,” would have marked difficulties

interacting with co-workers, and would have marked difficulties completing a normal workday

or workweek. (Tr. 596.) Those statements directly contradict the ALJ’s finding that plaintiff did

not show social deficits and bolster Dr. Boyd’s assessed limitations. As explained in Section A,

an ALJ may not “cherry pick” evidence to support a finding of nondisability without considering

its context in the record. Ghanim, 763 F.3d at 1164.

The ALJ’s rationale for finding Boyd’s opinion unpersuasive is not supported by

substantial evidence and the ALJ has erred. See Ghanim, 763 F.3d at 1160-61; Garrison, 759

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F.3d at 1012-13 (“[A]n ALJ errs when he rejects a medical opinion or assigns it little weight

while doing nothing more than ignoring it, asserting without explanation that another medical

opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a

substantive basis for his conclusion.”).

2. Sarah Eckstein, Ph.D.

On January 31, 2020, Sarah Eckstein, Ph.D., conducted a psychodiagnostic evaluation of

plaintiff. (Tr. 590-99.) Dr. Eckstein diagnosed plaintiff with PTSD, social anxiety disorder,

generalized anxiety disorder, panic disorder, recurrent moderate major depressive disorder,

insomnia disorder, and mild bulimia nervosa. (Tr. 595.) In Dr. Eckstein’s opinion, plaintiff would

have no difficulty performing simple and repetitive tasks; mild to moderate difficulty performing

detailed and complex tasks and accepting instructions from supervisors; moderate difficulty

performing work activities on a consistent basis without special or additional instructions and

accommodations; moderate difficulty maintaining regular attendance; and marked difficulty with

the usual stresses encountered in the workplace, such as interacting with co-workers and the

public, and completing a normal workday or work week without interruptions from a psychiatric

condition. (Tr. 595-96.) Plaintiff’s affect and mood were observed as anxious. (Tr. 595.) Dr.

Eckstein opined that plaintiff’s “complex chronic mental health conditions seem to significantly

impair occupational functioning.” (Tr. 593.)

The ALJ found Dr. Eckstein’s opinion unpersuasive because it was “inconsistent with the

treatment record and [plaintiff’s] own statements to treating sources,” and unsupported by Dr.

Eckstein’s contemporaneous evaluation of plaintiff. (Tr. 666.) Dr. Eckstein’s report was

inconsistent with the record, the ALJ found, because of plaintiff’s treatment history and “her

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level of independence in daily activities and ability to travel.” (Tr. 666.) The ALJ’s rationale is

not supported by substantial evidence.

“We will consider your physical, mental, educational, and linguistic limitations (including

any lack of facility with the English language) when determining if you have an acceptable

reason for failure to follow prescribed treatment.” 20 C.F.R. § 404.1530(c); see Carmickle v.

Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (holding that “although a

conservative course of treatment can undermine allegations of debilitating pain, such fact is not a

proper basis for rejecting the claimant’s credibility where the claimant has a good reason for not

seeking more aggressive treatment”); see also Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).

Here, plaintiff testified that she stopped attending therapy because:

the VA kept trying to put me in group therapy and I was always the only female

there and the guys tried to be supportive, but my—I wasn’t disabled in a line of

combat like they were, I was—you know, assaulted so it’s—it was difficult to talk

to them. And frankly, the stuff that bothers me I don’t like talking about anyway,

so it was really hard to get into a therapy situation. I’m fortunate now that I found

somebody that I can talk to. But before, it was always just so male driven in the

VA. (Tr. 700-01.)

As plaintiff stated, she started consistently attending therapy after her providing facility

offered a women’s program with a female therapist. (Tr. 699.) Plaintiff elaborated, “[i]t feels a lot

safer for me to be able to talk to another female, so this is the first time I’ve done therapy in kind

of successful environment, so it’s actually kind of been really a good thing for me.” (Tr. 701.) In

the decision, the ALJ failed to consider plaintiff’s reasons for not having a more robust treatment

history and erred in discounting Eckstein’s assessed limitations on that basis.

The ALJ’s second reason for finding Eckstein’s opinion inconsistent with the record is

also flawed. The ALJ found Eckstein’s assessment of plaintiff’s limitations inconsistent with

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plaintiff’s activities of daily living (ADLs). (Tr. 666.) A medical opinion can be undermined by a

claimant’s reported activities if supported by substantial evidence. Ford, 950 F.3d at 1155. Yet

disability claimants should not be penalized for attempting to lead normal lives in the face of

their limitations. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Cooper v.

Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (holding that claimant need not “vegetate in a dark

room” in order to be deemed eligible for benefits)).

Here, the ALJ found plaintiff’s ability to enjoy hobbies and travel as evidence that her

limitations were not as debilitating as Eckstein opined. To support that finding, the ALJ cited

plaintiff’s activities of

water color painting, creative writing, watching movies on TV, and reading 2 to 3

e-Books per week on her tablet. She went on camping trips with her parents and

fished with them from a boat. She related she had a Costco membership, which

suggested that she has been able to shop at a Costco Wholesale Club. (Tr. 666.)

The ALJ failed to explain how those minimal activities were inconsistent with Eckstein’s

opinion. For example, it is not apparent from the record how plaintiff’s ability to paint, write,

read, or watch television while at home (which she shares with her parents) are inconsistent with

Eckstein’s opinion that her impairments significantly impair her occupational functioning. Nor is

it apparent how plaintiff’s ability to camp, fish, and possibly shop at Costco Wholesale Club was

inconsistent with Eckstein’s opinion that plaintiff would have marked difficulty dealing with the

usual stress of work, interacting with co-workers, and completing a normal workday or work

week. (Tr. 593, 596.) Therefore, the ALJ’s determination that plaintiff’s ADLs are inconsistent

with Dr. Eckstein’s opinion is not supported by substantial evidence in the record.

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Next, the ALJ found Dr. Eckstein’s opinion unsupported because the examination

“revealed [plaintiff] was nervous, but otherwise objective findings were largely normal,” and

because Dr. Eckstein relied on plaintiff’s subjective reports to formulate her limitations. (Tr.

666.) As explained above, the ALJ is not allowed to “cherry pick” the record. Here, the ALJ

discounted Dr. Eckstein’s assessed limitations based on plaintiff’s cognitive abilities and her

ability to properly interact with Dr. Eckstein. (Tr. 666, 594-95.) Again, the fact that plaintiff

could interact with Dr. Eckstein in a private treatment environment ignores Dr. Eckstein’s report

that plaintiff’s mood and affect were anxious. (Tr. 595.) The ALJ erred in ignoring the evidence

that supported Dr. Eckstein’s opinion.

Moreover, Dr. Eckstein’s reliance on plaintiff’s subjective complaints is not a proper

reason to find that opinion unsupported because psychiatric evaluations uniquely rely on patients

to self-report their symptoms. A lack of supporting objective medical evidence alone may not be

sufficient to discount subjective reports in the context of mental health impairments which

generally are less (or not at all) susceptible to objective measurement. Buck v. Berryhill, 869 F.3d

1040, 1049 (9th Cir. 2017) (“Psychiatric evaluations may seem subjective, especially compared

to evaluation in other medical fields [but] [d]iagnoses will always depend in part on the patient’s

self-report, as well as the clinician’s observations of the patient [so] the rule allowing an ALJ to

reject opinions based on self-reports does not apply in the same manner to opinions regarding

mental illness.”) (citations omitted). Therefore, the ALJ’s rationale in finding Eckstein’s opinion

unsupported is not backed by substantial evidence and the ALJ erred in finding Eckstein’s

medical opinion unpersuasive.

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In summary, the ALJ’s erred in rejecting plaintiff’s subjective symptom testimony and in

evaluating the medical opinions of Drs. Boyd and Eckstein.

C. Remedy

The decision whether to remand for further proceedings or for immediate payment of

benefits is within the discretion of the court. Trevizo, 871 F.3d at 682. The issue turns on the

utility of further proceedings. Garrison, 759 F.3d at 1019, 1021. Under the “credit-as-true”

doctrine, evidence should be credited and an immediate award of benefits directed if “(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. at

1020 (citations omitted). Even when the credit-as-true standard is met, the court retains the

“flexibility to remand for further proceedings when the record [evidence] 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. The reviewing court should decline to credit testimony when

“outstanding issues” remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).

All the credit-as-true criteria are satisfied here. The ALJ erred in evaluating plaintiff’s

symptom testimony and improperly evaluated Drs. Boyd and Eckstein’s opinions. The record is

fully developed and there are no outstanding issues to resolve. Plaintiff testified that she would

have spotty attendance if she returned to work and that she experiences severe anxiety when

triggered. What might trigger her severe anxiety, which manifests physically, is unpredictable

and can even be triggered by people arguing in a movie. When triggered, plaintiff’s mind races

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and she cannot control her thoughts. (Tr. 593, 705-06.) Dr. Boyd opined that due to plaintiff’s

medical impairments, she would require an understanding supervisor at work. (Tr. 100.) Dr.

Eckstein opined that, due to plaintiff’s impairments, her occupational functioning was

significantly impaired, she would have marked difficulty completing a normal workday or work

week without interruptions, and she would have marked difficulty dealing with the usual stresses

of a workplace. (Tr. 593, 596.) The vocational expert testified that being off task for 15 percent

or more of a workday and that missing more than one day of work a month would be

unacceptable in the competitive job market. Additionally, the vocational expert testified that

having an understanding supervisor is not something that can be controlled in a competitive

marketplace. (Tr. 714-15.) Furthermore, the court’s review of the record creates no serious doubt

that plaintiff is, in fact, disabled. Accordingly, the court exercises its discretion to remand this

case for an immediate award of benefits.

CONCLUSION

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

REMANDS for an immediate calculation of benefits.

ORDERED: August 28, 2025.

_____/s_/_ J_e_ff_ A__r_m_i_st_e_a_d_______

JEFF ARMISTEAD

United States Magistrate Judge

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