Dukes v. Commissioner Social Security Administration, No. 3:2016cv00502 - Document 23 (D. Or. 2017)

Court Description: Opinion & Order. The Commissioner's decision is REVERSED and REMANDED for an immediate award of benefits. Because the prior disability determination was not reopened and remains binding, plaintiff's period of disability began May 10, 2012, the day after the prior denial. Signed May 24, 2017. Ordered by Judge Ann L. Aiken. (cw)

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Dukes v. Commissioner Social Security Administration Doc. 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION Case No. 3:16-cv-005020PINION AND ORD R KIMBERLY R. DUKES, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security AIKEN, Judge: Plaintiff Kimberly Dukes brings this action pursuant to the Social Security Act ("Ac "), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of So ial Security ("Commissioner"). The Commissioner denied plaintiffs applications for Suppleme tal Security Income ("SSI") and Disability Insurance Benefits ("DIB"). For the reasons set fl rth below, the Commissioner's decision is reversed and remanded for an immediate award of benefits. BACKGROUND On May 9, 2012, the Commissioner denied plaintiffs application for SSI and DIB. 140-49. In that application, plaintiff had alleged disability beginning June 1, 2007. Tr. 140. n Page 1 - OPINION AND ORDER Dockets.Justia.com I ! January 17, 2013, plaintiff filed a second set of applications for SSI and DIB, again alleg ng disability beginning June 1, 2007. Tr. 304-18. That second set of applications is under rev· w in this decision. Plaintiff alleged she suffered from sciatica due to severe anteversion of the 1 gs, anxiety, panic disorder, back spasms, and chronic knee pain. Tr. 356. Her applications w re denied initially and upon reconsideration. Tr. 161-83, 187-224. On June 27, 2014, plaintiff appeared at a hearing. Tr. 45-101. unrepresented at the hearing, rejecting the ALJ' s offer to continue the hearing to permit her ti e to obtain counsel. Tr. 47, 49. Following the hearing, the ALJ found plaintiff not disabled nd denied her claim. Tr. 24-37. The Appeals Council denied review, and plaintiff filed a compl int in this Court. Tr. 1-2. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if it is based upon pro er legal standards and the findings are supported by substantial evidence in the record. 42 U.S. . § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more t an a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable m nd might accept as adequate to support a conclusion." Gutierrez v. Comm 'r of Soc. Sec., 740 F 3d 519, 522 (9th Cir. 2014) (quotation marks omitted). The court must weigh "both the evide ce that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massan ri, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation ut the Commissioner's decision is rational, the Commissioner must be affirmed, because "the co rt may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001 ). Page 2 - OPINION AND ORDER COMMISSIONER'S DECISION The initial burden of proofrests upon plaintiff to establish disability. Howard v. Heck er, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determina le physical or mental impairment which can be expected ... to last for a continuous period of ot less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step sequential process for determining whet er a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a) ); id § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gai ful activity" since the alleged disability onset date. Tr. 28; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id §§ 416.920(a)(4)(i), (b). impairments: At step two, the ALJ found plaintiff had the following sev re "bilateral femur anteversion, pain disorder, and post traumatic stress disor er (PTSD)[.]" Tr. 28; see 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); id §§ 416.920(a)(4)(ii), (c). he ALJ acknowledged medical evidence of affective disorder, attention deficit hyperacti ity disorder, and mild right greater than left hip dysplasia. Tr. 28. However, the ALJ found th se conditions non-severe based on a determination that they "were either controlled, transient, or did not result in significant functional limitations for a continuous 12-month period." Tr. 28. At step three, the ALJ determined plaintiffs impairments, whether considered singl or in combination, did not meet or equal "one of the listed impairments" that the Commissio er acknowledges are so severe as to preclude substantial gainful activity. Tr. 28; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id §§ 416.920(a)(4)(iii), (d). The ALJ found plaintiff retained the residual functional capacity to perform light work as defined in 20 [C.F.R. §] 404.1567(b) and [20 C.F.R. §] 416.967(b) except: She can lift, carry, push and pull 20 pounds occasionally and Page 3 - OPINION AND ORDER 10 pounds frequently. She can stand and walk for two hours out of an eight-hour day. She has no limitations on sitting. She can occasionally climb ramps and stairs but should not climb ladders, ropes, or scaffolds. She can occasionally stoop, kneel, crouch and crawl. She can understand and remember simple instructions and complete simple, routine tasks for a normal workday and workweek with normal breaks. She should have only occasional, brief, superficial interactions with the general public and can have frequent interactions with coworkers and supervisors. Tr. 29-30; see 20 C.F.R. § 404.1520(e); id. § 416.920(e). At step four, the ALJ conclu ed plaintiff would be unable to perform any past relevant work. Tr. 35; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f); id. §§ 416.920(a)(4)(iv), (f). At step five, the ALJ found plaintiff co ld perform several jobs existing in significant numbers in the national economy: garment so er, laundry sorter, and marker. Tr. 36; 20 C.F.R. §§ 404.1520(a)(4)(v), (g); id. §§ 416.920(a)(4) v), (g). Accordingly, the ALJ found plaintiff not disabled and denied her application for bene its. Tr. 37. DISCUSSION Plaintiff alleges that the ALJ erred by (1) discrediting plaintiffs testimony about the severity of her symptoms without legally sufficient justification; (2) improperly weighing the medical evidence; (3) rejecting lay witness testimony without providing reasons germane toe ch witness; and (4) failing to formulate an RFC that includes all her limitations. I address e ch allegation of error in turn. 1 1 Plaintiff also alleges error at steps two and three of the five-step evaluation process, ut neither allegation of error supports reversal here. With respect to step two and the classifica ion of impairments as severe or not severe, any error was harmless because the ALJ did not rule out any functional limitations due to the absence of an underlying impairment that could cause the limitation. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that an error to d em an impairment severe is harmless when the ALJ considers any limitations caused by hat impairment in formulating the RFC). With respect to step three and the ALJ's failure to cons'der the combined effect of plaintiffs mental and physical impairments, plaintiff has waived y challenge because she did not put forth a listing theory, either before the ALJ or in her brief: on appeal. Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). Page 4 - OPINION AND ORDER Preliminarily, I review the law concerning the effect of a prior finding that a plaintif is not disabled. Principles of claim and issue preclusion apply in the Social Security cont xt, "although the doctrine is applied less rigidly to administrative proceedings than to judi ial ,. proceedings." Chavez v. Bowen, 844 F .2d 691, 693 (9th Cir. 1988). The doctrine "retains 11 ;. 1·.· force when applied to adjudications of past facts," meaning that denial of a disability cl im generally precludes relitigation of the issue of disability with respect to the time period lead ng up to the decision date. Stuckey v. Weinberger, 488 F.2d 904, 911 (9th Cir. 1973) (quotat on marks omitted). With respect to the time period after the decision date, a prior denial is ot binding but instead creates a presumption of continuing nondisability. Lester v. Chater, 81 F 3d 821, 827-28 (9th Cir. 1996). In order to overcome that presumption, the plaintiff "must pr ve 'changed circumstances' indicating a greater disability," Chavez, 844 F.2d at 693 (quot ng Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985)), or raise a "new issue, such as he existence of an impairment not considered in the previous application," Lester, 81 F.3d at 8 7. Here, the ALJ concluded that the presumption of continuing nondisability had been rebutted "th respect to mental limitations but not with respect to physical limitations. Tr. 24. I. Plaintiff's Symptom Testimony When a claimant's medically documented impairments reasonably could be expected to produce some degree of the symptoms complained of, and the record contains no affirmaf ve evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of ... symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F .3d 1273, 1281 (9th Cir. 1996). A general assertion the claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence sugge ts the complaints are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). Page 5 - OPINION AND ORDER e reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that he ALJ did not arbitrarily discount the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 50 (9th Cir. 1995). If the "ALJ's credibility finding is supported by substantial evidence in he record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 59 (9th Cir. 2002). In an adult function report completed in February 2013, plaintiff explained that b ck spasms (onset July 2007) and sciatica (onset January 2011) exacerbated longstanding mental d physical health problems. Tr. 372. She stated that she was unable to care for herself with ut assistance. She wrote that she was walking about four miles each day, although she noted t at she experienced pain as a result. Tr. 381. Due to a three-week sciatic flare, she experiencing a pain level of nine to ten out of ten eighty-five percent of the time. Tr. 397. he pain was not helped by medication. In the April 2012 hearing that preceded plaintiffs first disability denial, she testified at she was unable to hold down a full-time job because her hips "go out of joint a lot" and her 1 gs "totally lock up" on her. Tr. 105. She stated that since she was a child, her feet have "skidd d," she has tripped over her own feet, and her kneecaps have fallen asleep. Tr. 109. She explai ed that due to a "shooting, electric" pain through her legs and buttocks she began using a walke in November 2011. Tr. 109. She stated that she could sit for thirty minutes at a time, st nd unsupported for up to an hour, stand for a total of five hours of an eight-hour workday, and sit for four hours of an eight-hour workday. Tr. 114, 115, 118. She was unable to lift a gallo of milk. Tr. 119. In the June 2014 hearing, plaintiff testified that she has "always lacked tact," but that er interpersonal difficulties have gotten "massively worse since the chronic pain jumped u m Page 6 - OPINION AND ORDER 2007, and now, I literally cannot seem to control what comes out of my mouth." Tr. 64. She as to take pills "to knock herself out in order not to injure people where I live." Tr. 64. conceded that injections have helped her back pain but stated that her legs still "randomly go out" and her back will seize up. Tr. 64. The injections manage her back pain enough that he has stopped using "marijuana-oiled food" as a pain reliever. Tr. 68. She takes medications back spasms, nerve pain, anxiety, anger outbursts, depression, ADHD, and focusing. Tr. 6. She rated the medications as seventy-five percent effective, Tr. 66, but notes they have s de effects, including fatigue and dizziness, Tr. 67. Plaintiff occasionally sweeps, but otherwise she is unable to do chores. Tr. 69. Twi a week, she uses her walker for one to two hours at a time to pick up trash around the homel ss camp where she and her husband live. Tr. 69. She goes grocery shopping with her husband d occasionally to the movies. Tr. 70. When she has access to the internet, she will play Faceb ok games such as Farmville for four to six hours at a time. Tr. 71. She reads a lot. Tr. 72. The ALJ found that plaintiffs medically determinable impairments reasonably could be expected to produce some degree of the symptoms alleged. Tr. 30. However, the ALJ fo nd plaintiffs statements about the severity of her symptoms not entirely credible for sev ral reasons. First, the ALJ found that the objective medical evidence did not support plainti rs allegations regarding her physical limitations. Tr. 30. The ALJ specifically opined that plain iff had introduced insufficient evidence that her physical limitations had worsened since the 2012 disability determination. Standing alone, the absence of corroborating objective medi al evidence is insufficient to support discrediting subjective symptom testimony. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). An ALJ may, however, consider the absence of Page 7 - OPINION AND ORDER such evidence if she also identifies other reasons to question the claimant's statements ab ut symptom severity. Here, the ALJ identified several records classifying plaintiffs spi al degeneration as "mild" and identified several other reasons to doubt plaintiffs testimony ab her symptoms. Nevertheless, I cannot conclude that absence of medical evidence is a convincing rea on to discredit plaintiffs symptom statements. As explained in more detail in Section II.A oft is opinion, the ALJ did not address several medical records relevant to plaintiffs musculoskel tal pain, including a written evaluation completed by a physiatrist after the May 2012 decisi n. That evaluation, if credited as true, could support a finding that plaintiffs physical limitati ns have worsened since the prior denial. The ALJ' s absence-of-evidence finding therefore rests on an unresolved conflict in the evidentiary record and cannot support the decision to give 1 ss weight to plaintiffs symptom testimony. Second, the ALJ noted evidence that plaintiff exaggerated symptoms related to her eg and ankle problems. That evidence comes from the opinion of Kim Webster, M.D., evaluated plaintiff in May 2013. Dr. Webster wrote: She moves around the clinic with a very inconsistent gait. At times she kind of drags her right leg with this very exaggerated limp. At other times she is walking with her toes in at about 45 degrees, at other times a relatively normal gait. ... She is able to get on and off the examination table and go from a sitting to supine and supine to sitting position without difficulty. There is no real poor effort or inconsistencies other than the gait. Station varies also. At times she stands with her legs extraordinarily internally rotated, but my overall impression was that she actually had relatively good internal/external rotation in the hips and that her gait appeared to me when she walked with her legs internally rotated was on purpose and seemed exaggerated, as did station at times. Page 8 - OPINION AND ORDER ho Tr. 764-65. Dr. Webster also found "no consistent objective medical evidence" that plainti rs use of a walker was necessary, Tr. 765; opined that the examination's objective results indica ed "that the claimant significantly exaggerated problems that she might have" with regard to er legs, Tr. 767; and noted "rather significant" knee and ankle problems compared to "relativ ly normal musculoskeletal examination," Tr. 768. The parties disagree on how broadly evidence of symptom exaggeration may be appl ed to discredit a claimant's testimony. Their dispute centers on SSR 16-3p, which directs that A Js "will not asses an individual's overall character or truthfulness in the manner typically u ed during an adversarial court litigation" because the weight ALJs give symptom testimony d es not turns on whether the claimant "is a truthful person." SSR 16-3p, 2016 WL 1119029, at* 0. As such, ALJs "must limit their evaluation to the individual's statements about his or er symptoms and the evidence in the record that is relevant to the individual's impairments[,]" d., and "more closely follow [SSA] regulatory language regarding symptom evaluation," id. at * 1 n.1. SSR 16-3p, which became effective March 16, 2016, superseded SSR 96-7. The issued her decision before SSR 16-3p's effective date. Plaintiff contends that SSR 16 3p retroactively precludes the ALJ from making any assessment regarding character truthfulness. Defendant contends that to the extent SSR 16-3p prohibits ALJs from gener ly assessing a claimant's propensity to lie, it represents a substantive change in the law and ca ot be applied retroactively. Page 9 - OPINION AND ORDER I conclude that SSR 16-3p applies in this case. 2 SSR 16-3p's policy of eschewing glo al credibility determinations in favor of a more focused evaluation of subjective sympt m statements is wholly consistent with SSR 96-7p's proscription that "credibility of the individu l's statements cannot be based on an intangible or intuitive notion about an individual's credibili ." SSR 96-7p, 1996 WL 374186, at *4. Even more importantly, SSR 16-3p closely tracks he Commissioner's regulations governing the evaluation of subjective symptom testimony. S R 16-3p should be applied retroactively because it clarifies "an unsettled or confusing area of he law" rather than announcing a substantive change in the law. Pope v. Shala/a, 998 F.2d 473, 83 (7th Cir. 1993), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 199 ); see also Smolen v. Chafer, 80 F.3d 1273, 1281 n.l (9th Cir. 1996) (acknowledging the Seve th Circuit's Pope decision but finding it unnecessary to decide the question of retroactivity wh re 2 Most of this Court's decisions since SSR 16-3p's effective date have found it unnecessary to decide whether the guidance applies retroactively because the ALJ's treatment of the plaintiffs symptom testimony would be upheld whether or not SSR 16-3p applied. See, e. . , Upham v. Berryhill, 2017 WL 452007, at *7, n.2 (D. Or. Feb. 2, 2017); Hoy v. Comm 'r of S c. Sec., 2016 WL 8198528, at *4 (D. Or. Dec. 16, 2016), report and recommendation adopted ub nom. 2017 WL 462008 (D. Or. Feb. 2, 2017); Anderson v. Colvin, - F. Supp. 3d-, 2016 L 7013472, at *10 n.8 (D. Or. Nov. 30, 2016); Willis v. Colvin, 2016 WL 4942000, at *3 n.3 D. Or. Sept. 15, 2016); Dunkel v. Colvin, 2016 WL 4034800, at *6 n.3 (D. Or. July 26, 201 ); Chavez v. Colvin, 2016 WL 8731796, at *6 n.1 (D. Or. July 25, 2016). The decisions that dee de the question of retroactivity are split. Compare, e.g., Mesecher v. Colvin, 2016 WL6666800, at *4 (D. Or. Nov. 10, 2016) (holding that SSR 16-3p is a clarification of preexisting policy t at applies retroactively); Messmer v. Colvin, 2016 WL 5339728, at *3 (D. Or. Sept. 23, 20 6) (applying SSR 16-3p to a 2013 denial of benefits without addressing retroactivity); and Bowli v. Colvin, 2016 WL 5339591, at *8 (D. Or. Aug. 18, 2016) (same), report and recommendatz n adopted, 2016 WL 5339578 (D. Or. Sept. 21, 2016) with, e.g., Bahles v. Comm 'r Soc. S c. Admin., 2017 WL 1293982, at *3 (D. Or. Apr. 4, 2017) (determining that SSR 16-3p "does ot apply retroactively because 42 U.S.C. § 405(g) does not contain any express authorization fr m Congress allowing the Commissioner to engage in retroactive rulemaking"); Spain v. Colv ·n, 2017 WL 517795, at *5 (D. Or. Feb. 8, 2017) (declining to apply SSR 16-3p retroactively); a d Colton v. Colvin, 2016 WL 7015669, at *4 (D. Or. Sept. 28, 2016) (same), report a d recommendation adopted, 2016 WL 6986504 (D. Or. Nov. 28, 2016). Page 10 - OPINION AND ORDER "the new regulations are consistent with the Commissioner's prior policies and with prior Ni th Circuit caselaw, both of which clearly apply here.") However, SSR 16-3p does not sweep so broadly as plaintiff contends. SSR 16 3p clarifies that an ALJ cannot use isolated instances of lying or evasiveness to discredit all o a plaintiffs statements. See, e.g., Senser v. Colvin, 2017 WL 253847, *3 (D. Or. Jan. 19, 20 7) ("[T]he fact that [the plaintiff] was not forthcoming about illegal drug use and her crimi al history does not support the inference that she exaggerated her symptom testimony," particula ly where "[t]he medical records do not contain evidence of malingering on any other topic.") an ALJ retains the power under SSR 16-3p to consider evidence that a plaintiff is exaggerati g her symptoms. See, e.g., Dubrawasky v. Berryhill, 2017 WL 1758054, *6 (D. Or. May 2, 20 7) (ALJ permissibly gave plaintiffs pain testimony less weight based on evidence that plain "ff exaggerated her pain symptoms to her treating provider in order to obtain pain medicatio ); Mendenhall v. Colvin, 2016 WL 4250214, *4 (C.D. Ill. Aug. 10, 2016) (contrasting a wholes le attack on a claimant's character for truthfulness with "a reasoned explanation of why [t e claimant] exaggerated his back pain."). Here, the ALJ did not make a global credibility findi she noted an examining doctor's opinion that plaintiff exaggerated her back, leg, and a symptoms. That is a clear, convincing reason to give less weight to plaintiffs testimony ab ut her back, leg, and ankle symptoms. Third, the ALJ found plaintiffs statements about her physical limitations inconsist nt with her ability, at the hearing, to easily open "very heavy" doors to admit a witness. Tr. 1. The Ninth Circuit disapproves of "sit and squirm" jurisprudence, and ALJs may not discredi a claimant's testimony about pain based on a failure to "manifest external symptoms" of pain t the hearing. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). Here, however, the A J Page 11 - OPINION AND ORDER observed plaintiff opening a heavy door, and found that ability inconsistent with plainti s testimony about the severity of her physical limitations. Such reasoning has been expres ly endorsed by the Ninth Circuit as a clear, convincing reason to doubt symptom testimony. Id. Fourth, the ALJ noted evidence in the medical record that plaintiffs mental heath symptoms were improving. Tr. 31. Plaintiff argues that any improvement was simply part o a longstanding pattern of waxing and waning symptoms. An ALJ may not cherry-pick isola ed instances of improved psychological symptoms when the record as a whole reflects longstandi g psychological disability. Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). The ALJ ci ed two records that documented improvement. The first record, written by psychologist Jonathan Rabon in November 2013, does state that plaintiffs "functional ability has improve " Tr. 778. However, it goes on to state that "[ c]onsistent symptom reduction has not yet b en achieved, and she has at times had difficulty restraining destructive impulses." Tr. 778. second record, written by Dr. Rabon in January 2014, includes a checked box classify" g plaintiffs mental health issues as "Resolving/Resolved." Tr. 808. The first record is, at b st, weak evidence of symptom improvement. The second record is stronger evidence of sympt m improvement, but it, like the first record, contains no specific discussion of functio al limitations. Indeed, Dr. Rabon later would state in a written evaluation that he was unable to provide any assessment of plaintiff's specific functional limitations in the areas of understand ng and memory, sustained concentration and persistence, social interaction, or adaptation. Tr. 81517. The ALJ apparently considered this evidence of improvement to be inconsistent ith plaintiffs testimony about her mental limitations. But the ALJ did not explain which portion of plaintiff's testimony were inconsistent with the evidence of unquantified improvement Page 12-0PINION AND ORDER ith treatment. Certain statements would be plainly inconsistent with such evidence - for exam if plaintiff had stated that she had experienced no improvement at all with treatment. But ALJ identified no such statements. The purported inconsistency between plaintiffs sympt m testimony and Dr. Rabon's documentation of improvement is therefore not a clear, convinc ng reason to discredit plaintiffs testimony. Fifth, the ALJ found plaintiffs allegations about symptom severity inconsistent with activities of daily living. Tr. 31. The ALJ cited plaintiffs ability to walk several miles ad y; dress, bathe, and feed herself; perform basic cleaning and organization; spend time at the libr and community college; and clean up trash around the homeless camp. The ALJ permissi found that activity level inconsistent with plaintiffs testimony about her physical pain related limitations. However, there is no apparent inconsistency between those activities plaintiffs mental limitations, which appear primarily to relate to interpersonal difficulti s, concentration, and distractibility. In sum, the ALJ provided several clear, convmcmg reasons to discredit plainti statements about her physical limitations. Dr. Webster's opinion that plaintiff exaggerated back and leg problems, the ALJ' s observation that plaintiff opened a heavy door during t e hearing, and the inconsistencies between the alleged extent of plaintiffs physical pain and er daily activities adequately support the ALJ's decision to give limited weight to plaintif s testimony about her physical symptoms. See Batson v. Comm 'r of Soc. Sec. Admin., 359 F. 1190, 1197 (9th Cir. 2004) (holding that the ALJ' s treatment of symptom testimony may e affirmed even if some of the ALJ' s reasons for rejecting that testimony were erroneous). By contrast, the ALJ did not provide sufficient reasons to reject plaintiffs stateme ts about her mental limitations. The ALJ did not explain which portions of plaintiffs testimo y Page 13-0PINION AND ORDER about mental limitations were inconsistent either with Dr. Rabon's documentation of sympt m improvement or with plaintiffs daily activity level. Moreover, Dr. Rabon did not quantify he improvement or provide any opinion about the extent of plaintiffs specific, functio al limitations. The ALJ's treatment of plaintiffs mental-health symptom testimony is ot supported by substantial evidence. II. Medical Opinion Evidence Plaintiff next challenges the ALJ' s treatment of the medical evidence. Specifically, he asserts the ALJ erred in (1) silently disregarding the opinions of plaintiffs treating orthoped st, physiatrist, and pain specialist; (2) rejecting Dr. Webster's lifting limitation without suffici nt justification; (3) rejecting a portion of Dr. Rabon's opinion without considering the consiste cy between that opinion and other evidence in the record; and (4) partially discrediting the opin on of an examining physician, Luke Patrick, without giving sufficient reasons for that decision. When the opinion of a treating or examining physician is contradicted by other evide ce in the record, the ALJ may reject the treating or examining source's opinion only for "speci ic and legitimate" reasons supported by substantial evidence. Holohan v. Massanari, 246 F .3d 1195, 1202 (9th Cir. 2001). When evaluating the "intensity and persistence" of a claima 's symptoms, the ALJ is bound to "consider all of the available evidence." 20 C.F.R. § 404.1529(a). A. Evidence ofPlaintiff's Musculoskeletal Pain The ALJ' s decision contains no discussion of medical records from Kathryn Schab 1, MD (plaintiffs treating orthopedist), Mark Kellgren, MD (plaintiffs treating pain specialist), or Jeffrey Degen, MD (plaintiffs treating physiatrist). Defendant argues that any error in failing to discuss those records was harmless. Page 14 - OPINION AND ORDER I agree that the failure to discuss the medical records from Dr. Schabel and Dr. Kellg en was, at most, harmless error. The records express no opinion regarding specific functio limitations. Moreover, although the records confirm a connection between plaintiffs pain d anteversion, Dr. Schabel and Dr. Kellgren both recommend relatively conservative treatment. The failure to address Dr. Degen's opinion, however, is different. Dr. Degen complete a five-page new patient evaluation in June 2012, after the first disability decision was render d. Tr. 707-11. Dr. Degen completed a thorough physical examination, documenting bilat ral intoeing, significant crepitus and popping in the knees and ankles, and osteoarthritis of the kn e. Based on those findings, Dr. Degen opined that plaintiff "will have a difficult time be ng competitive for work[.]" Tr. 710. Dr. Degen's findings of impairment and opinion on he ultimate issue of disability conflict with the milder findings documented elsewhere in the reco d. The ALJ had a duty to resolve that conflict. Moreover, although the ALJ need not defer t a medical source opinion regarding the ultimate issue of disability, she nonetheless must consi er the opinion - including considering "an assessment, based on objective medical evidence, of [the claimant's] likelihood of being able to sustain full-time employment[.]" Hill v. Astrue, 6 8 F.3d 1153, 1160 (9th Cir. 2012). The ALJ did not discuss Dr. Degen's evaluation at all d therefore failed to provide legally sufficient reasons to discredit Dr. Degen's opinion. B. Lifting Restriction The ALJ gave "some weight" to Dr. Webster's opinion and incorporated the majority of Dr. Webster's assessed postural limitations into the RFC. Tr. 33. However, the ALJ found th re was no objective basis for Dr. Webster's opinion that plaintiff should be limited to carrying o ten pounds occasionally. In particular, the ALJ cited the absence of evidence that plainti ability to lift had changed significantly since the prior disability denial. Page 15 - OPINION AND ORDER s I 1 M I I I i ! Dr. Webster did not tie the lifting restriction to any objective part of her examination d the connection to any objective finding is unclear from the face of the record. The absence of such a connection is a specific, legitimate reason to discount the lifting restriction. Particul ly in view of the absence of any lifting restrictions in the prior RFC and the presumption of 1 I I I continuing nondisability, the ALJ did not err in declining to adopt Dr. Webster's lifti g restriction. C. Dr. Rabon 's Opinion Plaintiff faults the ALJ for failing to credit Dr. Rabon's statement that she had not I achieved consistent symptom reduction in November 2013. However, as defendant points I and as discussed in Section I of this opinion, Dr. Rabon specifically declined to assess specific functional limitations for plaintiff. Moreover, the November 2013. statement confli ts with Dr. Rabon's January 2014 notation that plaintiffs problems were resolved or resolvi g. This analysis is not affected by the records from LifeWorks NW. Plaintiff argues that those ca e notes corroborate Dr. Rabon's report of persistent symptoms, but the Life Works NW notes st e that, as of January 2012, services would be terminated because "[c]lient very much agrees t t she has accomplished the goals she worked on." Tr. 670. The ALJ did not err in failing to ere Dr. Rabon's November 2013 statement. D. Dr. Patrick's Opinion Finally, plaintiff challenges the ALJ's treatment of the opinion of Dr. Patrick. Dr. Patri k performed a psychodiagnostic evaluation in April 2013. Tr. 753. He opined that plaintif s attention and concentration are "mildly to moderately impaired," that her persistence "will v y appreciably with the type of task," and that she "will show consistent impairment wi h appropriate social interaction." The ALJ gave Dr. Patrick's opinion "some weight," explaini g Page 16 - OPINION AND ORDER that he offered no specific functional limitations, but that the RFC was consistent with r. Patrick's objective findings on examination. Tr. 33. I find no error in the treatment of r. Patrick's opinion. Dr. Patrick did not quantify his statements about plaintiffs restrictions in concentration, persistence, or social interaction. The RFC contains a restriction to address so e limitation in each of these errors. The ALJ appears to have fully adopted Dr. Patrick's opinion III. Lay Witness Statements Next, plaintiff asserts that the ALJ erred in discrediting the statements of several 1 y witnesses. In general, lay witness testimony regarding a claimant's symptoms is compet nt testimony that an ALJ must consider. Dodrill v. Shala/a, 12 F.3d 915, 918-19 (9th Cir. 19 3) (citing Sprague v. Bowen, 812 F.3d 1226, 1232 (9th Cir. 1987)). In order to discount 1 y witness's testimony, the ALJ must provide reasons that are germane to each witness. Id. Shawn Wechter, plaintiffs friend, testified at the heating. He has known plaintiff r four years. The entire time he has known her, she has been in "some kind of pain," either in lower back or in her feet. Tr. 78. Plaintiff has a "short fuse." Tr. 78. She is very outspoken intelligent but the slightest social problem will provoke a conflict. Tr. 79. The ALJ gave "so e weight" to Mr. Wechter's testimony. Tr. 34. The ALJ credited Mr. Wechter's stateme ts regarding interaction with the public because they were consistent with the record and based n his direct observation. However, she discredited Mr. Wechter's statements about plainti s physical pain as inconsistent with the medical evidence and with plaintiffs presentation at t e hearing. Although the ALJ's reasons could have been more clearly explained, it is appare t when reading the decision as a whole that the ALJ was referring back to her evaluation f plaintiffs symptom testimony, including plaintiffs ability to open the heavy door and t e evidence of symptom exaggeration documented by Mr. Webster. Those are germane reaso s Page 17 - OPINION AND ORDER sufficient to support the rejection of Mr. Wechter's testimony about plaintiffs physi al impairments. Vin Sorenson and Kirsten Martin completed lengthy forms that appear to have b en prepared by plaintiff based on Social Security listing 12.06. See Tr. 448-53. The A J permissibly gave those opinions less weight because neither Mr. Sorenson nor Ms. Martin is competent to assess the clinical criteria from that listing, such as autonomic hyperactivi , recurrent panic attacks, or autistic thinking. Moreover, the ALJ permissibly found the "mark d difficulties" Mr. Sorenson and Ms. Martin assessed in all areas inconsistent with the medi al evidence elsewhere in the record. However, that does not mean that the ALJ was free to disregard the direct observations Mr. Sorenson and Ms. Martin included in their detail d responses to the questionnaire. For example, the ALJ provided no reason germane to Sorenson to reject his statement that "[a]ny time there is a little bit and I mean just the tini st smidge of drama, [plaintiff] goes from somewhat normal to out of control/non-human bonk s taking things to the extreme." Tr. 448. Similarly, the ALJ provided no reason to germane to Martin to reject her observation that plaintiff "often loses [her] temper and attacks others ifs t off." Tr. 452. Shelby Abbott submitted a two-page letter to the ALJ. Tr. 501-02. Ms. Abbott, who h s known plaintiff for four years, stated that plaintiff "is set off by people in general" and that s e will "lose her temper whether she is dealing directly with people or just in their general vicinity " Tr. 501. Ms. Abbott also noted inappropriate social behavior such as sticking gum in the loc s of cars, walking in front of an oncoming car to get it out of the bus lane, intervening in t e middle of a physically violent domestic dispute, and confronting others with weapons. Tr. 50 . Ms. Abbott described plaintiffs physical limitations, stating that when helping with housewor , Page 18 - OPINION AND ORDER plaintiff often will "seize up" and be rendered "immobile." Tr. 502. The ALJ gave "signific nt weight" to Ms. Abbott's firsthand observations of plaintiffs interactions with others, but li le weight to the statements about physical functioning because Ms. Abbott did not quantify he limitations and the symptoms described were inconsistent with findings on medical examinati n. I find no error in the ALJ's treatment of Ms. Abbott's statements. IV. Formulation of the RFC Plaintiff contends that a properly formulated RFC should have included a ten-po d lifting restriction, additional restrictions regarding concentration and persistence, and additio al restrictions regarding social functioning. Based on the foregoing analysis, I find no error w th respect to the lifting restriction or concentration restriction. However, I conclude that the A J erred with respect to social functioning. The record contains ample documentation of interpersonal difficulty. Lay statements described above (which the ALJ credited) and plaintiffs own testimony (which t e ALJ did not provide legally sufficient reasons to reject) describe plaintiffs inability to m e decisions about appropriate social interaction and confrontation. Corroboration for tho e difficulties exists elsewhere in the record as well. See, e.g., Tr. 513 (letter from Ms. Mart n describing plaintiffs use of "shameful manipulation through aggressive phrases and actio s toward other students" as well as "outbursts" and "quick anger"); Tr. 755 (Dr. Patrick predicti "consistent impairment with appropriate social interaction"). The RFC restricts plaintiff to "occasional, brief, superficial interactions with the gener 1 public" but permits up to "frequent interactions with coworkers and supervisors." Tr. Tr. 29-3 . The ALJ did not explain how frequent interpersonal contact is consistent with the credit d evidence of record regarding plaintiffs social difficulties. The absence of any such explanati n Page 19 - OPINION AND ORDER is particularly notable in view of the ALJ's decision to give significant weight to lay witn ss statements describing plaintiffs conflicts with people across a variety of circumstanc s. Additionally, there is evidence in the record that plaintiff was terminated from at least one j b due to difficulties interacting with coworkers and supervisors. In February 2009, plaintiff sen a long email rant about her "LOUSY market MANAGER" to her direct supervisor with Dav 's Killer Bread. Tr. 460. In response, the supervisor replied simply that "[i]t is clear that t is situation is untenable and that this company will no longer be requiring your services." Tr. 461. The ALJ's determination that plaintiff could have up to frequent interactions w"th supervisors and coworkers is not supported by substantial evidence. Based on the lay witn ss statements credited by the ALJ and other evidence in the record, plaintiff will experien e difficulty interacting with others appropriately on a consistent basis, and those difficulties w ll not be limited to interactions with the general public. V. Type ofRemand The only remaining question is whether to remand for further proceedings or immediate award of benefits. Pursuant to the Ninth Circuit's "credit-as-true" doctrine, I m t undertake a four-part inquiry to answer that question. First, for the reasons described herein, I conclude that the ALJ erred by (1) failing to provide clear and convincing reasons to discre it plaintiffs testimony about her mental limitations; (2) silently rejecting the opinion of Dr. Dege , thereby discrediting the opinion of an examining physician without specific, legitima e justification; and (3) failing to include any limitations in the RFC addressing plaintiffs difficul y with social interaction as it applies to coworkers and supervisors. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Page 20 - OPINION AND ORDER Second, I must determine whether the record has been fully developed and whet er further administrative proceeds would be useful. Id Further development would be useful "th respect to Dr. Degen's opinion because his opinion conflicts with the opinions of many ot er doctors in the record. However, the same cannot be said regarding plaintiffs difficulties w th social interactions. Credited lay witness statements and other evidence in the record consisten ly demonstrate that plaintiff has pervasive interpersonal difficulties, and the record as a wh le shows that those difficulties would manifest with supervisors and coworkers as well as with e general public. It is not clear what purpose further development of the record would serve w th respect to plaintiffs difficulties with social interaction. Moreover, at the third step of the inquiry, I conclude that "if the improperly discredit d evidence" regarding plaintiffs mental limitations were credited as true, "the ALJ would e required to find the claimant disabled on remand." Garrison, 759 F.3d at 1021. At plainti s hearing, the vocational expert testified that a "sustained pattern" of conflicts with coworkers r supervisors would be unsustainable because the employee would be written up and eventual y fired. Tr. 98-100. Crediting plaintiffs testimony as true and combining it with the consiste t accounts of lay witnesses, the record compels the conclusion that plaintiff would have a sustained pattern of interpersonal conflicts at work. Such a pattern mandates a finding f "disabled." Finally, I must consider whether the "record as a whole creates serious doubt as o whether the claimant is, in fact, disabled" within the meaning of the Act. Dominguez v. Co/vi , 808 F.3d 403, 407-08 (9th Cir. 2015) (quoting Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Ci . I f 2014)) (internal brackets and quotation marks omitted). There is no such serious doubt wi f f respect to plaintiffs difficulties with social interaction. As noted, those who have observ f Page 21 - OPINION AND ORDER I f ,, I l ( l I plaintiff firsthand have documented remarkably similar, consistent problems in interperso al relationships with strangers, acquaintances, and friends. CONCLUSION The Commissioner's decision is REVERSED and REMANDED for an immediate aw d of benefits. Because the prior disability determination was not reopened and remains bindi plaintiffs period of disability began May 10, 2012, the day after the prior denial. Dated this day of May 2017. ---=-=--rL"--""r"Aiken Ann ____ ,. United States District Judge Page 22 - OPINION AND ORDER I I I r p l

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