Hoole

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ESTHER H.,1 Case No. 1:24-cv-01054-SB

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

BECKERMAN, U.S. Magistrate Judge.

Esther H. (“Plaintiff”) filed this appeal challenging the Commissioner of Social

Security’s (“Commissioner”) denial of her 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 explained below, 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 and lay witness.

STANDARD OF REVIEW

“As with other agency decisions, federal court review of social security determinations is

limited.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). That is

because “[f]or highly fact-intensive individualized determinations like a claimant’s entitlement to

disability benefits, Congress places a premium upon agency expertise, and, for the sake of

uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their

discretion for that of the agency.” Id. (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 621

(1966)). Adhering to this principle, courts “follow three important rules” in reviewing social

security determinations. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).

First, courts “leave it to the [agency] to determine credibility, resolve conflicts in the

testimony, and resolve ambiguities in the record.” Id. (quoting Treichler, 775 F.3d at 1098).

Second, courts “will ‘disturb the Commissioner’s decision to deny benefits only if it is not

supported by substantial evidence or is based on legal error.’” Id. (quoting Treichler, 775 F.3d at

1098). Third, if the agency “‘commits legal error, [courts] uphold the decision where that error is

harmless,’ meaning that ‘it is inconsequential to the ultimate nondisability determination,’ or

that, despite the legal error, ‘the agency’s path may reasonably be discerned, even if the agency

explains its decision with less than ideal clarity.’” Id. (quoting Treichler, 775 F.3d at 1098); see

also Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (“And even where this modest

[substantial evidence] burden is not met, [courts] will not reverse an [agency] decision where the

error was harmless.” (citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded

on other grounds by regulation as recognized in Farlow v. Kijakazi, 53 F.4th 485, 487 (9th Cir.

2022))).

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BACKGROUND

I. PLAINTIFF’S APPLICATION

Plaintiff was born in May 1969, making her fifty-one years old on her application date.2

(Tr. 24, 215.) Plaintiff has at least a high school education, but no past relevant work experience.

(Id. at 24.) In her application, Plaintiff alleged disability due to chronic pain in her neck, mid-

back, and lower back, osteoarthritis, and a bulging disc in her neck. (Id. at 217.) Plaintiff also

alleged chronic pain, weakness, fatigue, mobility difficulties, and environmental sensitivities due

to fibromyalgia. (Id. at 257.)

The Commissioner denied Plaintiff’s application initially and upon reconsideration. (Id.

at 122-35.) Plaintiff and an impartial vocational expert (“VE”) appeared and testified at a hearing

before an Administrative Law Judge (“ALJ”) on March 15, 2023. (Id. at 34-52.) On May 1,

2023, the ALJ issued a written decision denying Plaintiff’s application. (Id. at 17-26.) On May 1,

2024, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s written

decision the final decision of the Commissioner. (Id. at 1-6.) Plaintiff now seeks judicial review

of that decision.

II. THE SEQUENTIAL PROCESS

A claimant is considered disabled if he or she 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

2 “[T]he earliest an SSI claimant can obtain benefits is the month after which [s]he filed

h[er] application[.]” Schiller v. Colvin, No. 12-771-AA, 2013 WL 3874044, at *1 n.1 (D. Or.

July 23, 2013) (citation omitted).

Security Act.” Keyser v. Comm’r of 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. 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 v. Apfel, 180 F.3d

1094, 1100 (9th Cir. 1999). 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. 17-26.) At step one, the ALJ determined that Plaintiff had not engaged in

substantial gainful activity since December 29, 2020, the application date. (Id. at 20.) At step

two, the ALJ found that Plaintiff suffered from the following severe, medically determinable

impairments: degenerative disc disease of the cervical, thoracic, and lumbar spine, cervical spine

osteoarthritis, status post left rotator cuff repair, trochanteric bursitis of the left hip, fibromyalgia,

depression, and anxiety. (Id.)

At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or

medically equals a listed impairment. (Id.) The ALJ then concluded that Plaintiff had the residual

functional capacity (“RFC”) to perform light work, subject to these limitations: (1) can perform

tasks involving up to six hours of sitting, and up to six hours of standing/walking, in an eight-

hour workday with normal breaks, (2) can push, pull, lift, and carry up to twenty pounds

occasionally, and up to ten pounds frequently, (3) can occasionally reach overhead bilaterally

and in all other directions frequently, (4) can occasionally climb ramps or stairs, but can never

climb ladders, ropes, or scaffolds, (5) can occasionally stoop, kneel, crouch, or crawl, (6) must

avoid exposure to workplace hazards, including unprotected heights and moving mechanical

parts, and (7) can understand, remember, and carry out simple, routine tasks involving simple

work-related decisions. (Id. at 21.) The ALJ also opined that Plaintiff can occasionally interact

with supervisors, co-workers, or the public and that her time off task (in addition to normal

breaks) is five percent of the time in an eight-hour workday. (Id.)

At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant

work. (Id. at 24.) At step five, the ALJ determined that Plaintiff was not disabled because a

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

work as a merchandise marker, collator operator, and router. (Id. at 25.)

DISCUSSION

Plaintiff raises three primary arguments on appeal. First, Plaintiff argues that the ALJ

failed to identify specific, clear, and convincing reasons supported by substantial evidence in the

record to discount Plaintiff’s symptom testimony. (Pl.’s Opening Br. (“Pl.’s Br.”) at 8-15, ECF

No. 9.) Second, Plaintiff argues that the ALJ improperly evaluated the persuasiveness of the

medical opinion of Wendell Heidinger, M.D. (“Dr. Heidinger”). (Id. at 3-8.) Third, Plaintiff

argues that the ALJ erred by dismissing the lay testimony of Plaintiff’s partner, Mike F. (Id. at

15-16.)

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For the reasons discussed below, the Court reverses the Commissioner’s decision and

remands for the calculation and payment of benefits.

I. 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 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 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) (citation omitted).

B. Analysis

There is no evidence of malingering here and the ALJ determined that Plaintiff provided

objective medical evidence of underlying impairments which might reasonably produce the

symptoms alleged. (See Tr. 22, the ALJ found that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the alleged symptoms”). The ALJ

was therefore required to provide clear and convincing reasons for discounting Plaintiff’s

symptom testimony. See Ghanim, 763 F.3d at 1163. The Court concludes that the ALJ did not

meet that standard here.

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1. Plaintiff’s Testimony

At the hearing, Plaintiff testified that she is unable to work due to widespread pain

spreading from the top of her spine to the bottom, down her left leg, and down both of her arms.

(Tr. 40.) Plaintiff also suffers from back pain, morning stiffness, fatigue, and fibromyalgia.

(Id. at 41-44.) Plaintiff testified that it takes her three to four hours to get out of bed due to pain

and morning stiffness. (Id. at 41.) She cannot lift more than five pounds, stand more than fifteen

minutes, and would likely need to lie down for at least three hours in an eight-hour workday.

(Id. at 42.) Plaintiff’s medications make her tired and cause “brain fog.” (Id. at 40-41.)

In her function report, Plaintiff indicated that she cares for her cat, shops once a week,

cooks once a month, reads, and watches movies. (Id. at 267, 269-71.) Plaintiff also explained in

her function report that her pain stems from injuries she suffered in seven previous car accidents,

and “standing, sitting, [or] laying down for more than [fifteen] minutes at a time []causes severe

pain.” (Id. at 266.)

2. The ALJ’s Findings

The ALJ discounted Plaintiff’s testimony about the intensity, persistence, and limiting

effect of her symptoms based on Plaintiff’s improvement with treatment and inconsistencies with

the objective medical record. (Id. at 22-24.) The ALJ cited medical records corroborating

Plaintiff’s complaints, but nevertheless highlighted records suggesting that Plaintiff could

“work[] through her chronic pain symptoms.” (Id. at 23, further noting that Plaintiff “was still

able to ambulate without an assistive device[.]”)

3. Improvement with Treatment

Plaintiff argues that the record fails to document sustained improvement in her

symptoms, and that the evidence the ALJ cited in his decision does not provide a clear and

convincing reason supported by substantial evidence to discount Plaintiff’s testimony. (Pl.’s Br.

at 10-12.) The Commissioner responds that the ALJ properly considered Plaintiff’s testimony,

including her fibromyalgia, and included appropriate limitations in Plaintiff’s RFC. (Def.’s Br. at

7-9, ECF No. 11.)

a. Applicable Law

It is well settled that an ALJ may discount a claimant’s testimony based on evidence that

her symptoms improved with treatment. For example, in Burkett v. Saul, 806 F. App’x 509, 512

(9th Cir. 2020), the Ninth Circuit held that the ALJ provided clear and convincing reasons for

discounting the claimant’s symptom testimony, and in doing so, noted that the ALJ appropriately

found that the claimant’s testimony was inconsistent with “record evidence that her kidney

disease had improved, record evidence that her hypertension was under control, and record

evidence that her depression [was] well controlled (when on medication regularly).” Id.

(simplified); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

(explaining that “[i]mpairments that can be controlled effectively with medication are not

disabling for the purpose of determining eligibility for SSI benefits”).

Similarly, in Fletcher-Silvas v. Saul, 791 F. App’x 647, 649 (9th Cir. 2019), the Ninth

Circuit held that the ALJ provided clear and convincing reasons for discounting the claimant’s

testimony regarding her limitations. Id. The Ninth Circuit noted that the ALJ appropriately found

that the claimant’s testimony that “her left leg improved only slightly and her right leg did not

really improve following her knee replacement surgeries . . . conflicted with [her] self-reports to

treatment providers and with the objective indicia of improvement in her medical record.” Id.;

see also Darling v. Kijakazi, No. 22-35594, 2023 WL 4103935, at *2 (9th Cir. June 21, 2023)

(holding that the ALJ provided clear and convincing reasons to discount the claimant’s

subjective symptom testimony, including “treatment efficacy[] and longitudinal improvement”);

Walker v. Kijakazi, No. 22-35351, 2023 WL 3017946, at *1 (9th Cir. Apr. 20, 2023) (holding

that substantial evidence supported that the claimant’s “pain improved after treatment and

medication”); Torres v. Saul, 798 F. App’x 979, 981 (9th Cir. 2019) (“The [ALJ] proffered

specific, clear, and convincing reasons for discounting [claimant’s] pain and limitations

testimony because the record showed that [her] conditions improved with treatment and were

less severe than alleged.”).

b. Disposition

The record demonstrates that the ALJ erred in discounting Plaintiff’s testimony based on

evidence that her symptoms improved with treatment.

Before making specific findings, the ALJ included the following boilerplate language

often found in disability determinations: “[Plaintiff’s] statements concerning the intensity,

persistence and limiting effects of [her] symptoms are not entirely consistent with the medical

evidence and other evidence in the record for the reasons explained in this decision.” (Tr. 22.)

This language alone does not meet the Ninth Circuit’s specificity requirements. See Finney v.

Kijakazi, No. 22-15143, 2022 WL 17830000, at *1 n.1 (9th Cir. Dec. 21, 2022) (“The ALJ . . .

made use of boilerplate language stating that [the plaintiff’s] statements are ‘not entirely

consistent with the medical evidence and other evidence in the record.’ This boilerplate

explanation is insufficiently specific.”) (citation omitted). The ALJ did not rely solely on this

boilerplate language, but also cited a few examples of Plaintiff’s symptom improvement with

chiropractic care. (Tr. 23.) Nevertheless, the ALJ failed to provide specific, clear, and convincing

reasons for discounting Plaintiff’s symptom testimony, particularly regarding her fibromyalgia.

For example, the ALJ stated that “[Plaintiff] estimated that her pain symptoms had

improved [sixty]-[seventy-five percent] thanks to chiropractic adjustments—but that her

symptoms worsened in the absence of such treatments.” (Id., citing id. at 590.) The ALJ also

cited Plaintiff’s confirmation “to her chiropractor in August 2021 that her back and neck

symptoms had improved [twenty-five]-[thirty percent].” (Id., citing id. at 736.) Finally, the ALJ

relied on subsequent chiropractic notes documenting Plaintiff’s subjective reports of “measurable

improvement in her symptoms.” (Id., citing id. at 740, 742-43, 746, 754.)

First, as Plaintiff highlighted in her brief, the reported improvement rate of sixty to

seventy-five percent was a mischaracterization of the record. (See Pl.’s Br. at 11.) The treatment

note in question reflects that Plaintiff experienced improvement in her neck and back pain with a

rate of up to seventy-five percent in the past, but such relief was only temporary and was the

original reason for the referral. (See Tr. 781, “Her pain is consistently at [seven out of ten],

although she does get temporary improvement in her pain level from treatment”; see also id. at

771, “Percent improvement is reported to be [ten percent] for [three] days after treatment.”)

Furthermore, the ALJ’s citations to the record did not directly address Plaintiff’s

fibromyalgia. (Id. at 22-23.) Although the record supports a finding that chiropractic care

relieved Plaintiff’s musculoskeletal symptoms temporarily from 2021-2023, her symptoms

related to fibromyalgia persisted and she was eventually referred to a rheumatologist and

diagnosed with fibromyalgia in 2023. (Id. at 786.)

Based on its review of the record as a whole, the Court concludes that substantial

evidence does not support the ALJ’s discounting of Plaintiff’s symptom testimony based on

evidence of improvement and effective treatment. Thus, the Court finds that the ALJ erred in

relying on these reasons to discount Plaintiff’s subjective symptom claims. See Garrison, 759

F.3d at 1015 (holding that the ALJ improperly cited effective treatment as a reason to discount

the plaintiff’s pain testimony where the treatment provided only partial and temporary relief);

Angela V. v. Comm’r, Soc. Sec. Admin., No. 6:19-cv-0836-HZ, 2021 WL 1565788, at *5 (D. Or.

Apr. 20, 2021) (holding that the ALJ erred in rejecting the plaintiff’s symptom testimony related

to her fibromyalgia where the ALJ “isolat[ed] a few examples of symptom improvement and

ignor[ed] the many others that indicated continued, severe impairment”) (simplified) (citation

omitted); Tamara B. v. Comm’r of Soc. Sec., No. 318CV05219JCCTLF, 2019 WL 2563850, at

*4 (W.D. Wash. Apr. 8, 2019) (“[B]ecause fibromyalgia symptoms may wax and wane, . . .

intermittent improvement does not support discrediting pain testimony.” (citing Revels v.

Berryhill, 874 F.3d 648, 657 (9th Cir. 2017))), report and recommendation adopted, 2019 WL

1922806 (W.D. Wash. Apr. 30, 2019).

4. Inconsistency with Objective Medical Evidence

Plaintiff argues that the ALJ also failed to provide clear and convincing reasons

supported by substantial evidence for discounting her testimony based on conflicting objective

medical evidence. (Pl.’s Br. at 12-14.) The Commissioner argues that the ALJ addressed

Plaintiff’s fibromyalgia, acknowledged that Plaintiff was not “pain-free,” and incorporated

appropriate limitations in Plaintiff’s RFC. (Def.’s Br. at 7-9.)

a. Applicable Law

“[T]he ALJ may properly include lack of supporting medical evidence in the reasons to

discredit claimant testimony as long as it is not the only reason[.]” Valdez v. Berryhill, 746 F.

App’x 676, 677 (9th Cir. 2018) (citing Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005));

see also McClaren v. Saul, 812 F. App’x 500, 501 (9th Cir. 2020) (noting that “inconsistencies

with objective medical evidence . . . cannot provide the sole basis for an ALJ’s credibility

determination”) (citations omitted); Taylor v. Berryhill, 720 F. App’x 906, 907 (9th Cir. 2018)

(explaining that even “[a]ssuming that [the plaintiff’s] testimony regarding her physical

impairments was not supported by the objective medical evidence, the ALJ cannot properly rely

on that as the sole reason to discredit her testimony” (citing Burch, 400 F.3d at 681)).

b. Disposition

Having found that the ALJ erred by discounting Plaintiff’s symptom testimony based on

her improvement with treatment, the ALJ may not rely on a lack of objective medical evidence

as the only reason to discount her testimony.3 See Valdez, 746 F. App’x at 677 (“[T]he ALJ may

properly include lack of supporting medical evidence in the reasons to discredit claimant

testimony as long as it is not the only reason[.]” (citing Burch, 400 F.3d at 680)); see also

McClaren, 812 F. App’x at 501 (same); Taylor, 720 F. App’x at 907 (same).

Even if a lack of objective medical evidence could stand alone as a reason to discount

Plaintiff’s testimony, the ALJ summarized Plaintiff’s medical records but never explained how

those records undermined her testimony regarding her fibromyalgia symptoms. (Tr. 23.) It is

well settled than an ALJ must “specifically identify the testimony from a claimant [the ALJ]

finds not to be credible and . . . explain what evidence undermines that testimony.” Lambert v.

Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (simplified); see also Brown-Hunter, 806 F.3d at 489

(noting that the ALJ must “specify which testimony [the ALJ] finds not credible”). This

specificity requirement is not satisfied where the ALJ does not connect the medical evidence to

3 The Commissioner argues that the ALJ also cited Plaintiff’s activities of daily living as

a reason to discount her symptom testimony. (See Def.’s Br. at 8.) The ALJ’s only reference to

Plaintiff’s activities was a reference to “exercising daily.” (Tr. 23.) The ALJ cited Exhibit B6F at

page two in support of Plaintiff’s daily exercise (id.), but the cited progress notes do not include

a reference to exercise. The ALJ may have been referring to Exhibit B3F at page two, which

reflects a provider’s note stating “EXERCISE: Yes” and “Qty: Daily” (id. at 541), but that note

provides no detail about the type of exercise in which Plaintiff was engaged. Several other

progress notes reflect that providers recommended therapeutic daily physical therapy “exercises”

for Plaintiff to complete at home. (See, e.g., id. at 353, 394, 401, 621, 675, 680-81, 683, 711,

717, 723.) In light of this record, the Court finds that a vague reference to daily exercise in the

context of Plaintiff’s documented home physical therapy “exercises” is not a clear and

convincing reason to discount her pain symptom testimony. See, e.g., Caryn T. v. Kijakazi, No.

20-cv-06138-KAW, 2022 WL 17968842, at *3 (N.D. Cal. Sept. 29, 2022) (holding that the ALJ

erred by discounting the plaintiff’s symptom testimony based on her exercise where the plaintiff

“exercised at the gym regularly,” but the exercise “was her physical therapy for her

hypermobility syndrome”).

any particular symptom testimony. See id. at 494 (“Because the ALJ failed to identify the

testimony she found not credible, she did not link that testimony to the particular parts of the

record supporting her non-credibility determination. This was legal error.”). Here, the ALJ erred

by failing to “identify the testimony [he] found not credible” and then “link that testimony to the

particular parts of the record supporting [his] non-credibility determination.” Id.

Even if the ALJ had satisfied the specificity requirement, the ALJ’s reasons for

discounting Plaintiff’s testimony were not supported by clear and convincing evidence in light of

Plaintiff’s fibromyalgia. The ALJ acknowledged that Plaintiff was not pain-free and that “recent

treatment notes established all [eighteen] fibromyalgia trigger points[,]” but nevertheless

concluded that the record shows that Plaintiff “has been successful in working through her

chronic pain symptoms.” (Tr. 23, citing id. at 785.) To support this conclusion, the ALJ relied on

February 2023 rheumatology clinic notes reflecting that Plaintiff “presented as ‘well appearing’

and in no distress with normal mood and affect.” (Tr. 23, citing id. at 785.) The ALJ also relied

on treatment notes showing that Plaintiff’s “clinical presentation was benign” and that she

presented in “no acute distress, alert and fully oriented with no swelling or neurological deficits.”

(Id., citing id. at 662.)

Despite Plaintiff’s appearance at her appointments, she alleged disability due in large part

to fibromyalgia. (See id. at 20, listing fibromyalgia as one of Plaintiff’s severe impairments; see

also id. at 785-86, a complete soft tissue exam and all fibromyalgia tender points were positive).

The objective medical evidence on which the ALJ relied is not inconsistent with debilitating

fibromyalgia. See, e.g., Revels, 874 F.3d at 666 (stating that normal imaging results and

unremarkable physical examinations are “perfectly consistent with debilitating fibromyalgia,”

and noting that fibromyalgia is “diagnosed ‘entirely on the basis of patients’ reports of pain and

other symptoms,’ and ‘there are no laboratory tests to confirm the diagnosis’”) (citation omitted);

Nunn v. Berryhill, No. 6:17-cv-00203-SB, 2018 WL 2244705, at *12 (D. Or. May 16, 2018)

(explaining that fibromyalgia can be “confirmed as a severe impairment without objective

testing” and that “persons suffering from fibromyalgia ‘manifest normal muscle strength and

neurological reactions and have a full range of motion’”) (citation omitted).

For these reasons, the Court finds that the ALJ erred in discounting Plaintiff’s testimony

as inconsistent with objective medical evidence. See id. (explaining that an ALJ commits

reversible error by failing to evaluate the medical evidence “in light of fibromyalgia’s unique

symptoms and diagnostic methods” and by failing to consider symptom testimony in light of a

fibromyalgia diagnosis (quoting Revels, 874 F.3d at 662-66)); Rita L.S. v. Comm’r of Soc. Sec.

Admin., No. 16-cv-01981-MC, 2018 WL 4361039, at *5-6 (D. Or. Sept. 13, 2018) (noting that

the ALJ discounted the claimant’s testimony based on conflicting objective medical evidence,

including unremarkable examination results, and that courts in this district “have been especially

reluctant to rely on a lack of objective medical evidence when considering fibromyalgia cases,”

and therefore rejecting the ALJ’s reliance on conflicting objective medical evidence).

II. MEDICAL OPINION EVIDENCE

Plaintiff also argues that substantial evidence does not support the ALJ’s explanation for

discounting the opinion of Dr. Heidinger, Plaintiff’s primary care physician. (Pl.’s Br. at 3-8.)

The Court agrees.

A. Applicable Law

“In January 2017, the Social Security Administration issued revised regulations for

evaluating medical opinions relating to claims filed on or after March 27, 2017.” Cross v.

O’Malley, 89 F.4th 1211, 1214 (9th Cir. 2024) (citation omitted). The revised “regulations

provide that ALJs will no longer ‘defer or give any specific evidentiary weight’ to any medical

opinion.” Id. (quoting 20 C.F.R. § 416.920c(a)). Instead, “ALJ[s] must assess the persuasiveness

of each medical opinion after considering specified factors.” Stiffler v. O’Malley, 102 F.4th 1102,

1106 (9th Cir. 2024) (first citing Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022); and

then citing 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(b))).

Specifically, the revised “regulations require an ALJ to discuss the supportability and

consistency of medical evidence—the factors the agency has historically found to be the most

important in evaluating medical opinions—while allowing for discussion of other factors listed

in paragraphs (c)(3) through (c)(5), as appropriate.” Cross, 89 F.4th at 1215 (citing 20 C.F.R. §

416.920c(a)); see also Woods, 32 F.4th at 791 (“‘The most important factors’ that the agency

considers when evaluating the persuasiveness of medical opinions are ‘supportability’ and

‘consistency.’” (quoting 20 C.F.R. § 404.1520c(a))). “Supportability focuses on whether ‘a

medical source supports a medical opinion by explaining the relevant objective medical

evidence.’” Stiffler, 102 F.4th at 1106 (quoting Woods, 32 F.4th at 791-92); see also Kitchen v.

Kijakazi, 82 F.4th 732, 740 (9th Cir. 2023) (“Supportability concerns how ‘a medical source

supports a medical opinion’ with relevant evidence[.]” (quoting Woods, 32 F.4th at 791-92)).

“Consistency means the extent to which a medical opinion is consistent with the evidence from

other medical sources and nonmedical sources[.]” Stiffler, 102 F.4th at 1106 (quoting Woods, 32

F.4th at 792).

In addition to supportability and consistency, “[a]n ALJ may discuss other factors [listed

in paragraphs (c)(3) through (c)(5)], such as the medical source’s ‘relationship with the claimant’

or ‘specialization,’ but generally has no obligation to do so.” Cross, 89 F.4th at 1214 (citing 20

C.F.R. § 416.920c(b)(2)). If, however, an “ALJ finds two or more contradictory medical

opinions ‘both equally well-supported . . . and consistent with the record[,]’ . . . the regulations

mandate discussion of these other factors.” Id. at 1214-15 (quoting 20 C.F.R. § 416.920c(b)(3),

(c)(3)-(5)).

A district court reviews the ALJ’s evaluation of a medical opinion for substantial

evidence. See Woods, 32 F.4th at 787 (“Now, [under the new regulations,] an ALJ’s decision,

including the decision to discredit any medical opinion, must simply be supported by substantial

evidence.”); id. at 792 (“Even under the new regulations, an ALJ cannot reject an examining or

treating doctor’s opinion as unsupported or inconsistent without providing an explanation

supported by substantial evidence.”); Metcalf v. Kijakazi, No. 22-35201, 2022 WL 17592194, at

*1 (9th Cir. Dec. 13, 2022) (observing that “under the revised regulations . . . , the ALJ’s

evaluation of a medical opinion is reviewed for substantial evidence” (citing Woods, 32 F.4th at

789)).

B. Analysis

The Court concludes that substantial evidence does not support the ALJ’s evaluation of

Dr. Heidinger’s opinion.

Dr. Heidinger treated Plaintiff for her conditions beginning on March 29, 2021. (See Tr.

792.) On March 28, 2023, Dr. Heidinger completed a treating source statement, diagnosing

Plaintiff with fibromyalgia, insomnia, depression, and back pain. (Id.) He opined that Plaintiff’s

fibromyalgia would be a “lifelong” medical condition. (Id.) Dr. Heidinger described Plaintiff’s

symptoms as chronic pain in her upper and lower back and in her left hip, along with depression

and fatigue. (See id. at 793.) Dr. Heidinger stated that Plaintiff would need to lie down or rest

“up to [two] hours a day, secondary to pain and fatigue[.]” (Id.) Dr. Heidinger also opined that

Plaintiff would be off-task twenty-five percent or more during a typical workday and would miss

more than four days per month due to her impairments. (See id. at 796.)

The ALJ found Dr. Heidinger’s opinion “not persuasive.” (Tr. 24.) The ALJ explained

that Dr. Heidinger’s opinion was “not consistent with [his] own clinical notes from early

2023[,]” which indicated that Plaintiff had “full range of motion despite back tenderness, and

that she remained alert, oriented, and in no distress.” (Id., citing id. at 667.) The ALJ further

explained that the “other medical evidence cited above also undermines Dr. Heidinger’s

functional assessment, as [Plaintiff] exhibited no deficits in strength or mobility that would

justify such severe limitations.” (Id. at 24.)

Plaintiff first argues that the ALJ’s discussion of Plaintiff’s examination findings fail to

address the unique characteristics of fibromyalgia, and that “the evidence [the ALJ] cited is not

even relevant to fibromyalgia.” (Pl.’s Br. at 5.) Plaintiff also argues that the ALJ erred in

selectively relying on certain “objective” examination findings to reject Dr. Heidinger’s opinion,

effectively requiring objective evidence of a condition that “eludes such measurement.” (Id. at 6,

citing Revels, 874 F.3d at 657.) The Commissioner responds that the ALJ appropriately found

that the record did not support restrictions to the extent Dr. Heidinger opined. (See Def.’s Br. at

3-6.) The Court finds that substantial evidence does not support the ALJ’s opinion.

Plaintiff argues that the single chart note on which the ALJ relied was an impermissible

“cherry-picking” of the record and does not accurately reflect Dr. Heidinger’s observations of

Plaintiff over the full treatment period. (Pl.’s Br. at 6.) Dr. Heidinger’s notes revealed

“tenderness to the left lumbar paraspinal muscles, left lumbar facets, left greater than right

[sacroiliac] joints, and groin.” (Id., citing Tr. 622, 667.) Dr. Heidinger also noted that Plaintiff’s

radicular pain of her lumbosacral region was under “poor control” and increased her dose of pain

medication. (Tr. 637.) Dr. Heidinger noted throughout the treatment period that Plaintiff had left-

sided pain that radiated down the left leg to the knee and sometimes to the middle toe. (Id., citing

id. at 621, 635.) Plaintiff notes that Dr. Heidinger referred her for several diagnostic studies,

including an x-ray of the sacroiliac joints, which demonstrated mild bilateral joint degenerative

changes. (See Pl.’s Br. at 6, citing Tr. 623.) Plaintiff’s x-ray of her thoracic spine showed mild to

moderate multilevel degenerative changes. (Id., citing Tr. 624.) Dr. Heidinger then referred

Plaintiff to a rheumatologist (Tr. 667), who concluded that Plaintiff met the criteria for a

fibromyalgia diagnosis with eighteen out of eighteen trigger points. (Id., citing id. at 785-86.) At

a follow-up appointment, Dr. Heidinger opined that Plaintiff’s fibromyalgia was under poor

control even after treatment with the rheumatologist, and noted Plaintiff’s desire to try a new

treatment method for relief. (Id. at 801.)

The Court agrees that, considering the record as a whole, the single chart note indicating

Plaintiff’s full range of motion and presentation as alert with no distress alongside the ALJ’s

unspecified reference to “other medical evidence cited above” (id. at 24) does not constitute

substantial evidence to discount Dr. Heidinger’s opinion. See, e.g., Robbins v. Comm’r of Soc.

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (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

Adeena W. v. Saul, No. 6:19-cv-00051-SB, 2020 WL 2992191, at *5 (D. Or. June 4, 2020)

(explaining that an ALJ cannot “cherry-pick” from the record to support findings while ignoring

evidence that contradicts those findings). This is consistent with the Court’s conclusion above

that the ALJ failed properly to consider the medical evidence in light of Plaintiff’s fibromyalgia,

which as previously discussed, often presents with normal imaging results and unremarkable

physical examinations. See Revels, 874 F.3d at 666 (finding that normal imaging results and

unremarkable physical examinations are “perfectly consistent with debilitating fibromyalgia”).

For these reasons, the Court finds that the ALJ’s reasons for discounting Dr. Heidinger’s

opinion were not supported by substantial evidence.

III. LAY WITNESS TESTIMONY

Plaintiff argues that the ALJ erred by discounting her partner’s lay witness testimony.

(Pl.’s Br. at 15-16.) The Commissioner argues that the ALJ properly addressed the lay witness

testimony. (Def.’s Br. at 10-11.)

A. Applicable Law

It remains “unsettled whether an ALJ is still required to consider lay witness evidence

under the revised regulations.” Apple v. Bisignano, No. 24-307, 2025 WL 1525314, at *3 (9th

Cir. May 29, 2025) (quoting Crummett v. King, No. 23-3668, 2025 WL 470890, at *2 (9th Cir.

Feb. 12, 2025)); see also Wilson v. O’Malley, No. 23-35463, 2024 WL 2103268, at *2 (9th Cir.

May 10, 2024) (recognizing that the Ninth Circuit has “not yet addressed whether an ALJ is

required to provide germane reasons for discounting lay witnesses under the new regulations”).

“[A]ssuming that an ALJ must consider such evidence, ‘[a]n ALJ need only give germane

reasons for discrediting the testimony of lay witnesses.’” Apple, 2025 WL 1525314, at *3

(quoting Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)).

B. Analysis

The Court finds that if the ALJ was required to provide germane reasons for rejecting

the lay witness testimony, the ALJ failed to do so here.

Plaintiff’s partner, Mike F., reported that Plaintiff experiences constant pain, whether she

is driving, doing the dishes, walking, or sitting. (Tr. 324.) He also stated that Plaintiff cannot sit

or stand without pain, and that he helps her with all things “physical[,]” whether it be walking

behind her going up the stairs or helping her into the shower. (Id.) He concluded that her

condition had deteriorated over the years, and that she used to be “a very healthy person” but

now struggles with “anything physical.” (Id.)

The ALJ reviewed Mike F.’s lay witness testimony and summarized it as reflecting that

Plaintiff “sometimes spends the day in bed due to extreme pain.” (Id. at 24.) The ALJ concluded

that “while there is no reason to doubt [Mike F.]’s observation, the record does not establish a

medical justification for [Plaintiff]’s decision to occasionally remain in bed” and provided no

further analysis. (Id.)

The Court adopts its analysis above finding that the ALJ erred by discounting Plaintiff’s

symptom testimony, and finds that the ALJ erred for the same reasons in discounting the lay

witness testimony regarding Plaintiff’s similar limitations. See Janet M. v. Comm’r Soc. Sec.

Admin., No. 6:21-cv-00725-AR, 2023 WL 3318777, at *6 (D. Or. May 9, 2023) (noting that “the

ALJ did not provide legally sufficient reasons to discount plaintiff’s subjective symptom

testimony” and “[t]herefore, the ALJ erred in failing to consider the lay witness statements”); cf.

Christopher K. v. Comm’r, Soc. Sec. Admin., 649 F. Supp. 3d 1041, 1050 (D. Or. Jan. 3, 2023)

(explaining that the lay witness’ “statements are substantially similar to Plaintiff’s testimony[,]”

“[t]he Court has already concluded the ALJ erred when she partially rejected Plaintiff’s

testimony because the ALJ failed to provide support for her opinion based on substantial

evidence in the record[,]” and “[t]he Court also concludes on the same basis that the ALJ erred

when she rejected” the lay witness’ testimony).

IV. REMEDY

Plaintiff asks the Court to remand for further administrative proceedings or an immediate

award of benefits. (Pl.’s Br. at 16; Pl.’s Reply Brief at 3-6, ECF No. 12.) The Commissioner

responds that Plaintiff has failed to demonstrate that her case “meets all the demanding

requirements for such a drastic remedy.” (Def.’s Br. at 11.)

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).

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 concludes that the credit-as-true standard is satisfied here and that remand for

the payment of benefits is appropriate.

The Court concluded above that the ALJ failed to provide legally sufficient reasons for

rejecting Plaintiff’s testimony, Dr. Heidinger’ medical opinion, and Plaintiff’s partner’s

testimony. 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 her impairments, and further proceedings would serve no useful purpose.4 See

Garrison, 759 F.3d at 1021 (“Although the Commissioner argues that further proceedings would

serve the ‘useful purpose’ of allowing the ALJ to revisit 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 Dr. Heidinger’s medical opinion are

credited as true, the record reflects that Plaintiff would miss four or more days of work per

month due to her impairments. (Tr. 41-42, 266, 273, 796.) The VE testified that a person missing

more than one day of work per month on an ongoing basis “would[] rule out competitive

employment.” (Id. at 51.) 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 1022 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.

For these reasons, the Court remands this case for the calculation and payment of

benefits. See, e.g., Leitz v. Kijakazi, No. 22-35356, 2023 WL 4342114, at *3 (9th Cir. July 5,

2023) (“The Government argues that we should remand for further proceedings rather than

4 The Commissioner did not identify any useful purpose that further proceedings would

serve here. (See generally Def.’s Br.)

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); Varela v. Saul, 827 F. App’x 713, 714-15 (9th Cir. 2020)

(reversing district court opinion remanding for further proceedings and instead remanding with

instructions to “remand to the Commissioner of Social Security for an award of benefits” where

“crediting [the treating physician’s] opinion as true, there is no doubt that [the claimant] was

disabled”); Smith v. Saul, 820 F. App’x 582, 586 (9th Cir. 2020) (reversing district court opinion

affirming the denial of benefits and instead remanding “with instructions to remand to the ALJ

for calculation and award of benefits” where “[t]he vocational expert concluded that an

individual with [the claimant’s] limitations, as described in the improperly discredited testimony

. . . would be unable to perform competitive employment”).

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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 22nd day of October, 2025.

HON. STACIE F. BECKERMAN

United States Magistrate Judge

PAGE 24 —- OPINION AND ORDER