Chism v. Commissioner Social Security Administration, No. 6:2016cv01106 - Document 27 (D. Or. 2017)

Court Description: For the reasons stated, the decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner pursuant to Sentence Four, 42 U.S.C. § 405(g) for further proceedings as directed in this Opinion and Order. IT IS SO ORDERED. DATED this 7th day of December, 2017, by United States Magistrate Judge John V. Acosta. (peg)

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Chism v. Commissioner Social Security Administration Doc. 27 UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION LEAH SUE CHISM, Case No. 6:16-cv-01106-AC Plaintiff, OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ACOSTA, Magistrate Judge: Leah Sue Chism ("plaintiff') seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for Disability Insurance Benefits ("DIB"). Because the Commissioner's decision is not supported by substantial evidence, her decision is REVERSED and REMANDED for further proceedings. \\\\\ Page 1 - OPINION AND ORDER Dockets.Justia.com Procedural Background Plaintiff filed her application for DIB on May 16, 2012, alleging disability beginning December 22, 2011. (Tr. 86-87.) The Commissioner denied her application initially and upon reconsideration. (Tr. 112-14, 121-25.) Plaintiff requested a hem'ing before an Administrative Law Judge ("ALJ"), and an administrative hem'ing was held on September 17, 2014. (Tr. 38-85, 126-27.) After the hearing, the ALJ issued a decision finding plaintiff not disabled dated October 31, 2014. (Tr. 20-37.) The Appeals Council denied plaintiffs subsequent request for review on April 20, 2016, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-7.) This appeal followed. Factual Background Born in Janumy, 1977, plaintiff was 37 years old at the time of the administrative hem'ing. (Tr. 38, 100, 203.) She graduated high school and has past relevant work experience as a laser technician, central supply worker, and health club manager. (Tr. 31, 65, 99, 239, 243-45.) Plaintiff alleges disability due to multiple chemical sensitivity, mixed connective tissue disease, and a head injury resulting in traumatic brain injury. (Tr. 87, 100.) Standard ofReview The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammockv. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to suppott a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NL.R.B., 305 U.S. 197, 229 (1938)). The comt must weigh "both the evidence that suppotts and detracts from the Page 2 - OPINION AND ORDER [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted). The initial burden of proofrests upon the claimant to establish disability. Howardv. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the Commissioner determines whether the claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). Ifso, she is not disabled. At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F .R. § 404.1520(c). If the claimant does not have a severe impairment, she is not disabled. At step tlu·ee, the Commissioner determines whether the claimant's impairments, either individually or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] aclmowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520( d). If so, she is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. Page 3 - OPINION AND ORDER At step four, the Commissioner dete1mines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(f). If the claimant can perform past relevant work, she is not disabled; if she cannot, the burden shifts to the Commissioner. At step five, the Commissioner must establish the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566. The ALJ's Findings The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since her alleged onset date. (Tr. 25.) At step two, the ALJ concluded plaintiff had the severe impairment of a respiratory disorder. (Id) At step three, the ALJ determined plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (Tr. 26.) The ALJ dete1mined plaintiff had the residual functional capacity ("RFC") to perfo1m "a full range of work at all exertional levels," but with the following limitations: She should not climb ladders, ropes or scaffolds. She should avoid concentrated exposure to extreme heat, humidity, and hazards. She should avoid even moderate exposure to pollutants. (Id.) At step four, the ALJ found plaintiff was able to perform her past relevant work as a laser technician, central supply worker, and health club manager. (Tr. 31.) By finding plaintiff was able to do past relevant work, the ALJ determined plaintiff was not disabled; therefore, the ALJ did not proceed to step five. 20 C.F.R. §§ 404.1520(a)(4); 404.1520(f). Page 4 - OPINION AND ORDER Discussion Plaintiff alleges the ALJ erred by: (1) failing to provide a clear and convincing reason to reject her subjective symptom testimony; (2) improperly rejecting the medical opinions in the record; (3) improperly rejecting the lay testimony of Thomas Chism; (4) failing to find plaintiffs obesity and multiple chemical sensitivity to be medically determinable impairments; and (5) failing to find plaintiffs mixed connective tissue disease and traumatic brain injury to be severe impairments. L Plaintiffs Subjective Svmptom Testimony. Plaintiff argues that this case must be remanded because the ALJ discredited plaintiff without providing a specific, clear and convincing reason for doing so. Plaintiffs Motion for Summary Judgment 16-20 (ECF No. 16) ("Pl.'s Br."). If "there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.' " Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Sha/ala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). Examples of clear and convincing reasons include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or between his testimony and his conduct, daily activities inconsistent with the alleged symptoms, a Page 5 - OPINION AND ORDER sparse work history, testimony that is vague or less than candid, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of. Tommasetti, 533 F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ found plaintiffs subjective symptom testimony "not fully credible" because:(!) plaintiff had a history of conservative treatment; (2) there was a lack of medical evidence to suppo1i plaintiffs allegations; (3) plaintiff exaggerated her symptoms and limitations; (4) plaintiffs activities of daily living were inconsistent with her alleged symptoms; and (5) plaintiff used a nonprescribed respiratory aide. A. Conservative Treatment. First, the ALJ discredited plaintiffs symptom testimony because he found that plaintiff had a history of conservative treatment. (Tr. 29.) Evidence of conservative treatment "is sufficient to discount a claimant's testimony regarding the severity of an impairment." Parra v. Astrue, 481 F .3d 742, 751 (9th Cir. 2007). The ALJ noted that "despite her alleged impairments, plaintiff testified that "[n]ot one doctor has prescribed [her] with anything for anything." (Tr. 29, 56.) The ALJ also found that despite claiming multiple chemical sensitivity, plaintiff "has not seen an immunologist or allergy specialist to do an allergy test." (Tr. 29.) Plaintiff argues that she could not take medications because ofher multiple chemical sensitivity. However, other than plaintiffs claim that she avoids medications because she has "some allergic reactions" to "high doses" and her claim that she has had allergic reactions to dyes, there is no evidence in the record that she cannot take medications. (Tr. 438, 443.) Indeed, the record reveals that plaintiff has no documented allergies Page 6 - OPINION AND ORDER to medications. (Tr. 329.) (Treatment notes reflect that plaintiff has no known drug allergies.); (Tr. 435.) (same); (Tr. 631.) ("No reported drug allergies.") Plaintiff further argues that she had been prescribed medications in the past. Although plaintiff once was prescribed Meclizine for dizziness and Hydroxyzine for itching, this revelation hardly serves to bolster plaintiffs credibility, considering it was plaintiff who testified she had never been prescribed "anything for anything." (Tr. 56, 333, 473.) Furthermore, conservative treatment can be demonstrated through a failure to seek aggressive treatment. Tommasetti, 533 F.3d at 1039. Such common, minimally invasive medications for dizziness and itching are not indicative of aggressive treatment for allegedly disabling multiple chemical sensitivity. Plaintiff finally argues that she was receiving sufficiently aggressive treatment from Naturopathic Doctor ("N.D.") Robel. Plaintiff explained that her daily supplements, dietary restrictions, and unprescribed air filter device are sufficient for treating her symptoms. Pl.'s Br. 17-19. However, a favorable response to such minimal treatment is consistent with conservative treatment. Tommasetti, 533 F.3d at 1040. Moreover, plaintiff contends that nothing can be gained from seeing an allergist because her multiple chemical sensitivity merely results in allergy-like reactions and she has gotten relief from her air filter. Pl.' s Br. 18-19. For these reasons, the ALJ appropriately identified plaintiffs conservative treatment as a valid reason to discredit plaintiffs symptom testimony. B. Lack of Medical Evidence. Next, the ALJ found there was a lack of objective medical evidence to suppmt plaintiffs alleged impairments. The ALJ noted that plaintiff alleged back pain, severe arthritis, and the need to lie down for the remainder of the day after standing two hours. The ALJ found plaintiffs Page 7 - OPINION AND ORDER allegations were not well suppmted because Dr. Ho observed normal gait, full muscle strength, and no evidence of muscle spasms; Dr. Wei observed normal strength and reflexes; and Dr. Ito observed intact coordination and full power in the upper and lower limbs. (Tr. 28-29.) However, a normal gait, full muscle strength, and normal reflexes are not necessarily inconsistent with plaintiffs alleged back pain, aithritis, and fatigue. Furthermore, plaintiffs claims of fatigue were supported by Dr. Ho's finding that plaintiffs ability to stand and walk was limited by fatigue. (Tr. 406.) The ALJ also found plaintiff alleged difficulty concentrating and poor memmy, but her cognitive testing indicated she had average intellectual functioning and good verbal and non-verbal skills. (Tr. 29, 266, 270-71, 412.) The ALJ further noted that the consultative psychological examiner found plaintiff had no memory deficits or impairments. (Tr. 29, 411-12.) However, plaintiffs average intellectual functioning and good verbal skills do not meaningfully address her concentration or memory. Fmthermore, the ALJ ignored both of plaintiffs Trails scores, which fell outside the normal range to a significant degree. (Tr. 413.) The ALJ also failed to note Dr. Toews's findings that plaintiffs working memory was in the "Low Average range" and that her thinking is "scattered and loose." (Tr. 410-11.) The ALJ also failed to address Dr. Ho's determination that plaintiff has "memory loss and concentration problems." (Tr. 406.) Therefore, medical evidence in the record supports plaintiffs claims that she has difficulty concentrating and poor memory. The ALJ additionally found that plaintiff alleged constant swelling in her hands, but treating Family Nurse Practitioner ("FNP") Galey reported plaintiffs hands had normal range of motion, normal sensation, and no swelling. (Tr. 28-29, 462.) Indeed, despite plaintiffs repmt that her hands were constantly swollen, it appears that none of her medical providers ever observed swelling in her hands. Page 8 - OPINION AND ORDER Plaintiff urges that it is improper for the ALJ to reject subjective symptom testimony solely because it is not fully supported by the objective evidence. Pl.' s Br. 19 (citing Rollins v. Massanari, 261F.3d853, 856 (9th Cir. 2001)). Although, a lack of medical evidence cannot serve as the sole reason for discrediting plaintiffs testimony, "it is a factor that the ALJ can consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Furthermore, here, the ALJ did not reject plaintiffs symptom testimony solely based on lack of support, because plaintiffs claims of swollen hands, in addition to lacking support, were directly contradicted by the medical record. (Tr. 462.) Therefore, the ALJ appropriately considered plaintiffs unsupported allegations about hand swelling in making his credibility determination. C. Exaggerated Symptoms. Next, the ALJ discredited plaintiffs symptom testimony because he found the "record includes evidence suggesting the claimant exaggerated symptoms and limitations." (Tr. 30.) Plaintiffs exaggerated statements constitute a clear and convincing reason for rejecting her subjective symptom testimony, because in making a credibility determination the ALJ may consider inconsistent statements and other testimony that appears less than candid. Smolen, 80 F.3d at 1284. The consultative psychological examiner determined that plaintiffs answers on the MMPI-2 exam suggested, "she may have ve1y deliberately sought out and endorsed the most highly wmsual psychopathological items purposely." (Tr. 413.) Dr. Toews concluded the "profile is not interpretable" and "[i]t may be suggestive of malingering." (Id.). Dr. Toews even added a note in his report, stating "it raises questions of her credibility." (Id.) Plaintiff correctly notes that unless an ALJ makes a finding of malingering, the ALJ can discredit plaintiffs testimony only for clear and convincing reasons. Garrison v. Colvin, 759 F.3d Page 9 - OPINION AND ORDER 995, 1014-15 (9th Cir. 2014). However, the fact thatthe ALJ did not make afinding of malingering does not mean plaintiffs documented symptom exaggeration is not a clear and convincing reason for rejecting plaintiffs symptom testimony. An ALJ may discredit for testimony "that appears less than candid," and here, Dr. Toews determined that plaintiffs responses appeared less than candid. Smolen, 80 F .3d at 1284 (Tr. 413.) Thus, the ALJ' s rationale is valid. D. Activities ofDaily Living. Next, the ALJ found that plaintiffs "daily activities are not limited to the extent one would given the complaints of disabling symptoms and limitations." expect, (Tr. 29.) Activities of daily living that conflict with a claimant's testimony can provide a clear and convincing reason for rejecting the claimant's credibility. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). After reciting a general finding that plaintiffs activities are not as limited as would be expected, the ALJ merely listed plaintiffs activities, including: travelling on foot, shopping in stores once a month, preparing meals, knitting, occasionally going door-to-door to discuss the Bible, and independently performing basic self-care. (Tr. 29, 268-70, 410.) In order to properly discredit a claimant, "[t]he ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen, 80 F.3d at 1284 (citing Dodrill, 12 F.3d at 918). Here, the ALJ never indicated which symptom testimony was contradicted by plaintiffs activities. Therefore, the ALJ's finding was insufficient as a matter oflaw. E. Use of a Non-Prescribed Aide. Finally, the ALJ considered plaintiffs use of a motorized environmental air filter device which was not prescribed. Plaintiff wore the device at her hearing and at every appointment with her doctors. (Tr. 50-52, 329, 338, 402, 408, 435, 439, 443, 462, 632.) In discrediting a plaintiffs Page 10 - OPINION AND ORDER testimony, an ALJ may consider the use of a non-prescribed aide, such as a wheelchair or a cane. See Chaudhry v. Astrue, 688 F.3d 661, 671-72 (9th Cir. 2012). Plaintiff argues that the use of the respirato1y device should not be a reason to discredit her symptom allegations because she was diagnosed with multiple chemical sensitivity. Plaintiffs Reply Brief 10 (ECF No. 25) ("Pl.' s Reply Br."); Tr. 406.) Although plaintiff was diagnosed with multiple chemical sensitivity, the doctor who diagnosed her neither prescribed nor recommended the use of the air filter. The plaintiff further argues that because the ALJ included in the RFC a limitation to avoid "even moderate exposure to pollutants" the ALJ should not discredit plaintiff for using the air filter. Pl. 's Reply Br. 10; (Tr. 26.). The fact that the ALJ indicated plaintiff should avoid moderate exposure to pollutants, does not mean the ALJ accepted that plaintiffs air filtration device was necessmy. Notably, the ALJ did not include a limitation requiring accommodation of such a device. Therefore, the ALJ did not e11' by considering plaintiffs use of a non-prescribed aide in making the credibility dete1mination. Although the court does not find plaintiffs activities of daily living to be a clear and convincing reason for rejecting plaintiffs symptom testimony, this error is hannless because plaintiffs conservative treatment, exaggerations about symptoms, use of an unprescribed aide, and the lack of medical evidence, constitute clear and convincing reasons to discredit plaintiffs symptom testimony. See Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (the ALJ's overall credibility decision may be upheld even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld.) In sum, the ALJ provided clear and convincing reasons for discrediting plaintiffs symptom testimony. Page 11 - OPINION AND ORDER II. Medical Opinion Evidence. Plaintiff argues the ALJ erred in rejecting the medical opinion evidence of Dr. Marie Ho, Dr. Jay Toews, and Heidi Robel. Pl.'s Br. 06-12. A. Acceptable Medical Opinions. An ALJ may reject the uncontradicted medical opinion of a treating or examining physician only for "clear and convincing" reasons supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or examining doctor by providing "specific and legitimate reasons that are supported by substantial evidence." Id. 1. Dr. Marie Ho, Examining Physician. Dr. Ho issued a medical opinion on September 22, 2012, based on her clinical examination of plaintiff and her review of plaintiffs medical records. (Tr. 401-07.) In her repmi, Dr. Ho opined plaintiff had the following limitations: (1) she could only stand or walk for a maximum of three to four hours of an eight-hour workday; (2) could only sit for a maximum of four hours of an eight-hour workday; (3) was limited to lifting a maximum of 10 pounds; (4) and was precluded from working around chemicals, dust, fumes, and gases. (Id.) Dr. Ho additionally noted plaintiff had a history of traumatic brain injury which caused memmy loss and concentration problems and could "limit her ability to function in the workplace." (Tr. 406.) The ALJ gave Dr. Ho's opinion little weight based on his finding that it was "inconsistent with the doctor's clinical findings" and his determination that it "appear[ ed] the doctor relied heavily on the claimant's subjective repmi of symptoms and limitations, which are not fully credible for the reasons stated in this decision." (Tr. 30.) Page 12 - OPINION AND ORDER In her clinical findings, Dr. Ho noted there was no evidence oflumbar parave1tebral muscle spasms or tenderness, joint deformities, crepitus, effusion or trigger points. (Tr. 30, 405.) Dr. Ho also noted plaintiff had full muscle strength, intact sensation, and normal reflexes. (Tr. 30, 405.) The opinion of an examining doctor, "even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). Here, the ALJ merely summarized Dr. Ho's opinion, listed some of the clinical findings, and asserted there were inconsistencies; however, he failed to specify what was inconsistent. (Tr. 30.) Furthermore, none of the clinical findings cited by the ALJ contradict Dr. Ho's opinion. Dr. Ho noted that plaintiffs standing, walking, and sitting limitations were "due to fatigue." (Tr. 406.) As plaintiff points out, Dr. Ho's opinion was "not based on [plaintiffs] strength, reflexes, or the presence or absence of muscle spasms or tenderness, which is what the ALJ recites as reasons to disregard her findings." Pl's Br. 07; (Tr. 30.) Thus, the purported inconsistency with her clinical findings was not a legitimate reason for rejecting Dr. Ho's opinion. When doctors' "opinions are based to a large extent on an applicant's self-repmts and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating provider's opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (internal quotations omitted). Although the ALJ asserted that Dr. Ho relied heavily on plaintiffs subjective symptom reports, the ALJ did so without explaining any basis for that conclusion. (Tr. 30.) An ALJ must "ensure that the discussion of the evidence ... allows a claimant or subsequent reviewer to follow the adjudicator's reasoning[.]" SSR 06-03p at *6; See Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). Here, the ALJ did not provide sufficient reasoning. Page 13 - OPINION AND ORDER Moreover, even if Dr. Ho did rely to a limited extent on plaintiffs subjective repo1is, Dr. Ho also performed her own examination of plaintiff and reviewed plaintiffs medical records as well as test results. (Tr. 401-07.) "[W]hen an opinion is not more heavily based on a patient's self-rep01is than on clinical observations, there is no evidentiary basis for rejecting the opinions." Ghanim, 763 F.3d at 1162. The ALJ failed to identify any evidence indicating Dr. Ho relied more heavily on plaintiffs self-rep01is than on her own clinical observations, therefore, this was not a legitimate reason to reject Dr. Ho's opinion. The Commissioner additionally argues the ALJ properly rejected Dr. Ho's opinion by crediting Dr. Staley's opinion over hers. Garrison, 759 F.3d at 1012 (An ALJ may "explicitly reject a medical opinion or set f01ih specific, legitimate reasons for crediting one medical opinion over another."). The Commissioner's argument is unavailing for several reasons. First, the ALJ never made this argument. The ALJ never indicated he was relying on Dr. Staley's opinion to reject Dr. Ho's opinion. Thus, the Commissioner's contention is post hoc, which the Comi may not consider in affirming an adverse decision. Bray v. Commissioner, 554 F.3d 1219, 1225 (9th Cir. 2009) ("Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking."). Second, although the Commissioner noted the ALJ gave great weight to Dr. Staley's opinion because it was consistent with tlie clinical findings of Dr. Wei and Dr. Ito, the Commissioner failed to acknowledge that the ALJ also found Dr. Staley's opinion to be consistent with Dr. Ho's clinical findings. (Tr. 31.) Third and finally, Dr. Staley's non-examining opinion, alone, is insufficient to reject Dr. Ho's examining opinion because "[t]he opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies Page 14 - OPINION AND ORDER the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831. Therefore, the ALJ failed to provide specific, legitimate reasons to reject Dr. Ho's opinion. 2. Dr. Jay Toews, Examining Psychologist. Plaintiff argues that although the ALJ properly gave great weight to Dr. Toews' GAF score of 50-64, the ALJ failed to account for this finding in the RFC. Pl.'s Br. 11. Citing to an online summaiy of GAF scores, plaintiff asse1is that a GAF score of 50 defines a level of functioning incompatible with keeping a job, or at least it would be unlikely that she could work on a regular and continuing basis of 8 hours per day, 5 days per week. Pl.'s Br. 11-12. Despite plaintiffs asse1iion, the language she cited indicates inability to keep a job is just one of a number of impahments that could be found in a person with a GAF score at that level. Pl.'s Br. 11 ("Serious symptoms (e.g., suicidal ideations, severe obsessional rituals, frequent shoplifting) OR serious impahment in social, occupational or school functioning (e.g., no friends, unable to keep a job)"). Plaintiff next argues that the ranged GAF score is not a matter of interpretation, but a matter of fact. Pl.'s Reply Br. 04. Plaintiff urges that in accepting the GAF score, the ALJ was required to take into account the fluctuating nature of plaintiffs functioning, accounting for the low end as well as the high end. (Id.) Taking into account the fluctuations of plaintiffs GAF score, even at the lowest end, an inability to maintain employment is just one of several possible manifestations. The fact that plaintiffs low GAF score could indicate a functioning level that might manifest itself through an inability to maintain employment, does not constitute a finding by the doctor that plaintiffs impairment would interfere with her ability to maintain employment. Furthermore, the reliability of GAF scores, in evaluating a person's ability to function, is in doubt. The GAF score Page 15 - OPINION AND ORDER was omitted from the fifth edition of the Diagnostic & Statistical Manual of Mental Disorders "for several reasons, including its conceptual lack of clarity ... and questionable psychometrics in routine practice." AMERICAN PSYCffiATRIC Ass'N, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS ("DSM-V") 16 (5th ed. 2013). The ALJ was not required to account for every potential functional limitation that could accompany a particular GAF score. Finally, plaintiff argues that the "ALJ improperly found Dr. Toews[] only gave rule-out diagnoses." Plaintiff urges that the ALJ failed to address Dr. Toews's finding that plaintiff had "odd personality traits" under Axis II and that her personality was "one of the strangest profiles I have seen in the course of my practice." Pl.'s Br. at 12; (Tr. 413.) The ALJ c01rnctly noted that Dr. Toews did not diagnose plaintiff with any mental impairment. Although Dr. Toews did indicate plaintiff had "odd personality traits," such a determination does not constitute a clinical diagnosis of a mental impairment. In fact, Dr. Toews reported that plaintiffs "profile was not interpretable[.]" Therefore, the ALJ did not en- in his analysis of Dr. Toews's opinion. B. Non-Acceptable Medical Sources. 1. Dr. Heidi Robel, Treating Naturopath. Plaintiff alleges that the ALJ improperly rejected the opinion of N.D. Robel, an "other source." Pl.'s Br. 08-10. Evidence from an acceptable medical source is used to establish whether a claimant has a medically determinable impairment. 20 C.F.R. § 404.1521. Acceptable medical sources include licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. § 404.1502. Evidence from "other sources," including, but not limited to, "nurse practitioners, physician assistants, licensed clinical social Page 16- OPINION AND ORDER workers, naturopaths, chiropractors, audiologists, [and] therapists," may also be used to show the severity of a claimant's impairments and how they affect his ability to work. SSR 06-03p at *2. In order to reject evidence from "other sources," the ALJ must give germane reasons for doing so. Molina, 674 F.3d at 1111. On November 29, 2012, N.D. Robel opined that plaintiff had a difficult time being in public places and would strnggle in most work environments. (Tr. 577.) Then, on Janumy 17, 2013, N .D. Robel noted that even "a small mnount of exposure" to pollutants could cause "debilitating headaches, muscle pains[,] and confusion." (Tr. 444.) The ALJ gave N.D. Robel's opinion "little weight," finding that she was not an acceptable medical source. (Tr. 30.) Although N.D. Robel is not an acceptable medical source, this is not, in and of itself, a germane reason for rejecting her medical opinion. See SSR 06-03p. Next, the ALJ noted that he included environmental restrictions in the RFC to account for plaintiffs chemical sensitivity. (Tr. 30.) However, the ALJ's limitation in the RFC stated only that plaintiff"should avoid even moderate exposure to pollutants." (Tr. 26.) Such a limitation failed to address N.D. Robel's findings that "even a small mnount of exposure" could cause "debilitating headaches, muscle pains[,] and confusion." (Tr. 444.) Finally, the ALJ found N.D. Robel relied heavily on plaintiffs subjective repmi of symptoms. (Tr. 30.) However, as plaintiff correctly points out, the ALJ failed to supply any reasoning to suppoti his conclusion. Pl.'s Reply Br. 05. The Commissioner m·gues the ALJ's opinion is supported by substantial evidence because N.D. Robel's letter and treatment notes essentially repeated plaintiffs claims. Defendant's Brief 09-10 (ECF No. 20) ("Def.'s Br."). A thorough review of N.D. Robel's treatment notes reveals that she never documented objective Page 17 - OPINION AND ORDER evidence of plaintiffs purported symptoms, therefore, N.D. Robel must have relied "to a large extent" on plaintiffs self-repmis and "not on clinical evidence." Ghanim, 763, F.3d at 1162. Nevertheless, plaintiff urges that N.D. Robel relied on her observations that plaintiff used an air purifier mask and refused to sit on an office chair. (Tr. 439, 577.) This reasoning is unpersuasive. Plaintiffs use of the air purifier mask and refusal to sit in the office chair were based on plaintiffs subjective beliefs about her symptoms, rather than objective medical evidence. N.D. Robel's reliance on her observations of such behavior is the functional equivalent of relying on plaintiffs subjective symptom testimony. Therefore, the ALJ provided a germane reason for rejecting N.D. Robel's opinion. III. Lay Testimony. Plaintiff alleges the ALJ improperly rejected the lay testimony ofplaintiffs husband, Thomas Chism. Pl.'s Br. 10-11. The ALJ must provide "germane reasons" for rejecting lay witness testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). Mr. Chism testified that as a result of plaintiffs concussion, she has the same conversations over and over because of her memory problems; has difficulty finding places that she has been to before; is unable to follow instructions; has problems concentrating; gets confused with handling money; and has difficulty completing even basic tasks. (Tr. 71-73, 258, 262, 265.) The ALJ found that Mr. Chism's "statements may reflect his personal observations of the claimant" but "the medical evidence of record does not support finding greater limitations than those set forth in the above residual functional capacity." (Tr. 31.) The ALJ did not provide any reasons for rejecting Mr. Chism's testimony, he merely stated his conclusion. Although the ALJ needed only provide a germane reason to reject the lay testimony, he failed to provide any reason. The Page 18 - OPINION AND ORDER Commissioner argues the ALJ did provide a germane reason to discount Mr. Chism because the ALJ reasonably relied on the medical evidence. Def.'s Br. 20. ("in light of [the ALJ's] careful analysis of the medical record, [p]laintifffails to identify any en-or.") Reliance on the medical record may supp01i a reason for rejecting lay testimony, but it is not itself a separate reason. Moreover, although an ALJ may discredit lay testimony if it conflicts with medical evidence, it cannot be rejected merely based on a lack of support. See Lewis, 236 F.3d at 51 l(noting an ALJ may discount lay testimony that "conflicts with medical evidence") (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)). Accordingly, the ALJ improperly rejected Mr. Chism's lay testimony. IV. Medically Determinable Impairments. Plaintiff argues the ALJ erred in failing to find plaintiffs obesity and multiple chemical sensitivity were medically determinable impairments. Pl.'s Br. 13-14. To establish the existence of a medically determinable impairment, the claimant must provide medical evidence consisting of "signs - the results of 'medically acceptable clinical diagnostic techniques,' such as tests - as well as symptoms." Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). A claimant's own statement of symptoms, a diagnosis, or a medical opinion is not enough to establish a medically dete1minable impairment. See 20 C.F.R. § 404.1521; SSR 96-4p. A. Obesity. Plaintiff first alleges the ALJ en-ed in failing to find her obesity to be a medically determinable impairment. Pl.'s Br. 13-14. Dr. Wei noted that plaintiff was dealing with obesity. (Tr. 563.) A BMI of 30.0 - 34.9 qualifies as obese. SSR 02-lp at *2. The medical record establishes that plaintiffs obesity is a medically determinable impairment because plaintiff consistently presented with a BMI over 30.0. (Tr. 562, 564, 567, 629.) The ALJ en-ed because he Page 19 - OPINION AND ORDER never addressed plaintiffs obesity. (Tr. 23-32.); Ghanim, 763 F.3d at 1166 ("In determining a claimant's residual functional capacity, the ALJ must consider all of a claimant's medically determinable impairments, including those that are not severe."). Plaintiff argues this e1rnr was harmful because the ALJ dete1mined in the RFC that plaintiff was capable of work at all exe1iional levels, including ve1y heavy work. (Tr. 26.) The Commissioner contends that the e1Tor was harmless because it was "inconsequential to the ultimate nondisability decision." Molina, 674 F.3d at 1115 (citing Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). In the RFC, the ALJ determined plaintiff was capable of work at all exertional levels, but the Commissioner argues, even if this was an error, it was harmless because the ALJ specifically found that plaintiff could perform past relevant work that was only light or medium. (Tr. 31.) Neve1iheless, the Social Security Regulations provide that "[ o]besity in combination with another impairment may or may not increase the severity or functional limitations of the other impairment. We will evaluate each case based on the information in the case record." SSR 02-1 p at *6. The ALJ failed to make such an evaluation in this case. Had the ALJ properly conducted such evaluation, he may have found that plaintiffs obesity would have increased the severity of her other impairments. Thus, the enor was not harmless because it cannot be said that the error was "inconsequential to the ultimate nondisability decision." Molina, 674 F.3d at 1115. B. Multiple Chemical Sensitivity. Plaintiff asse1is the ALJ e1rnd in failing to find plaintiffs multiple chemical sensitivity to be a medically determinable impairment. Pl.'s Br. 14. Dr. Ho and Dr. Wei both diagnosed plaintiff with multiple chemical sensitivity and plaintiff cites to a number of her purpo1ied symptoms. Pl. 's Br. 14; Pl. 's Reply Br. 07-08; (Tr. 406, 436, 443-44, 459.) However, plaintiff fails to demonstrate Page 20 - OPINION AND ORDER that her multiple chemical sensitivity is a medically determinable impainnent because she relies completely on medical diagnoses and her own symptom testimony, rather than objective medical evidence derived from "medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1521 (The Commissioner "will not use [a claimant's] statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s)."). To show that her allergic reactions were supported by medical evidence, plaintiff points to evidence that she had to avoid certain chairs, had allergic reactions to fabric softener and the dye in ibuprofen, and had a wide range of symptoms caused by exposure to chemicals. Pl.'s Br. 14; Pl.'s Reply Br. 07. The claims about her allergic reactions are not suppmied by the objective record, but instead appear to be based entirely on her own reports. Dr. Ho merely noted that plaintiff "was careful to avoid sitting on a chair, covered with a material, which she considered toxic." (Tr. 402.) (emphasis added). Plaintiff's allergic reaction to the fabric softener was merely an allegation plaintiff made over the phone that the fabric softener on the nurse's scrubs was too strong. (Tr. 459.) Finally, plaintiffs list of symptoms triggered by enviromnental exposure purportedly include "migraines, myalgia with muscle weakness and spasm, mood swings with iJTitability, confusion, coughing, slUJTed speech, fatigue, nausea, flatulence and swollen abdomen and hands." (Tr. 443.) However, the existence of these symptoms are not suppmied by any medical signs or laboratmy findings. (Tr. 443.) Plaintiff was never tested by an immunologist or allergy specialist. (Tr. 436, 563.) Thus, the ALJ properly determined plaintiffs multiple chemical sensitivity was not a medically determinable impairment because the record was entirely devoid of signs or laboratmy findings to substantiate the alleged impairment. Ukolov, 420 F.3d at 1005; SSR 96-4p at*!. Page 21 - OPINION AND ORDER V. Severe Impairments. Plaintiff also argues the ALJ erred because he did not find her mixed connective tissue disease and traumatic brain injury to be "severe" impairments at step two of the sequential analysis. Pl.'s Br. 15-16. At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140--41; 20 C.F.R. § 404.1520( c). "An impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnmmality that has 'no more than a minimal effect on an individual's ability to work.'" Smolen, 80 F.3d at 1290 (quoting SSR 85-28). A. Mixed Connective Tissue Disease. Plaintiff alleges the ALJ e!Ted in failing to find her mixed connective tissue disease to be a severe impairment. Pl.'s Br. 16. Plaintiff first argues the ALJ failed to account for plaintiffs positive RNP autoantibody workups. (Tr. 356, 500.) The ALJ did, however, note that the two most recent RNP autoantibody workups from 2013 and 2014 were negative. (Tr. 452.) Furthermore, the positive workups contained the caveats that RNP autoantibodies "are also found in about 2% of the normal population," "[a]utoimmune diseases cannot be diagnosed by serology alone," and "[s]pecific clinical criteria must also be documented." (Tr. 353.) Plaintiff did not provide any evidence that such clinical criteria was ever documented. Furthe1more, the ALJ additionally relied on Dr. Ho's finding that there was "no evidence of lumbar paravertebral muscle spasms or tenderness, joint deformities, crepitus, effusion, or trigger points." (Tr. 26, 405.) Therefore, notwithstanding the two positive workups, the ALJ did not e!T in finding plaintiffs mixed connective tissue disease to be non-severe. Plaintiff also argues the ALJ failed to account for plaintiffs fatigue, weakness and tingling Page 22 - OPINION AND ORDER in hands, and swollen fingers. (Tr. 330, 343, 438.) Although plaintiff reported suffering from fatigue, her doctors never attributed the fatigue to her mixed connective tissue disease. (Tr. 343, 406.) In fact, plaintiff reported she suffered from fatigue due to her multiple chemical sensitivity, and the weakness and tingling in plaintiffs hands was reported as a symptom ofher concussion. (Tr. 330, 443.) Moreover, plaintiff claimed her fingers were swollen due to an allergic reaction to the dye in ibuprofen. (Tr. 443.) As such, plaintiffs reported symptoms do not demonstrate that her mixed connective tissue disease is a "severe" impairment. Finally, plaintiff argues the ALJ erred because he concluded plaintiff could do a full range of exe1iional work with "no proper accommodations for her condition, such as reduced exposure to vibration." Pl.' s Br. 16. However, a review of the record reveals that none of plaintiffs doctors ever indicated plaintiff needed to limit exposure to vibration and there is no evidence plaintiff ever claimed exposure to vibration caused her any problems. None of plaintiffs doctors identified limitations due to plaintiffs mixed connective tissue disease; therefore, her mixed connective tissue disease would have "no more than a minimal effect on [her] ability to work." Smolen, 80 F.3d at 1290 (quotations omitted). Thus, the ALJ did not err in his finding that plaintiffs mixed connective tissue disease was not a severe impainnent. B. Traumatic Brain Injury. Plaintiff also alleges the ALJ erred in failing to find that her traumatic brain injury was a severe impairment. Pl. 's Br. 15-16. Plaintiff has had up to six concussions over the course of her life. (Tr. 570, 631.) Plaintiff hit her head at a job site in August, 2010, and had to go to the emergency room. (Tr. 338.) In December of2011, she hit her head again and was diagnosed with a concussion. (Tr. 402.) The Commissioner argues plaintiffs traumatic brain injury was not severe Page 23 - OPINION AND ORDER because the diagnostic imaging was umemarkable. However, "[i]n most cases, damage to the brain from a concussion cannot be seen in tests such as a CT or MRI scan." (Tr. 464.) The Commissioner also argues the ALJ properly relied on the fact that plaintiffs neurological examinations were "essentially umemarkable" and when plaintiff was originally diagnosed with a concussion, it was refen-ed to as mild. (Tr. 25, 332, 336-37). Despite those initial findings, more than two years after her concussion, plaintiff was still experiencing symptoms and she was diagnosed with chronic past concussive encephalopathy and traumatic brain injury. (Tr. 462, 467.) Furthermore, after her concussion, plaintiff struggled to complete even small tasks: she would repeat the same conversations over and over again; she would forget where she was or what she was doing; she became unable to follow instructions, and she experienced dizziness, confusion; and problems concentrating. (Tr. 73, 258, 263, 323-24.) Moreover, plaintiff did poorly on the Trails test with scores that fell "outside the normal range to a significant degree,'' Dr. Toews noted plaintiff rambled and exhibited a looseness of thought, and Dr. Ho determined that plaintiff had memory loss and concentration problems. (Tr. 406, 413.) Dr. Ho found that plaintiffs traumatic brain injury "may limit her ability to function in the workplace.'' (Tr. 406.) Plaintiffs traumatic brain injury is more than just a "slight abno1mality" with "no more than a minimal effect" on her ability to work. Smolen, 80 F .3d at 1290 (internal quotations omitted). Accordingly, the ALJ ened in his finding that plaintiffs traumatic brain injury was not severe. The Commissioner argues plaintiff failed to identify hmm. However, plaintiff correctly noted the ALJ failed to include any accommodations for her traumatic brain injury in the RFC. Pl.'s Br. 15-16. The Commissioner asserts that in his consideration of the RFC limitations, the ALJ "properly did not include discounted testimony or medical evidence." Def.'s Br. 14. As noted Page 24 - OPINION AND ORDER above, however, the ALJ erred in rejecting Dr. Ho's opinion and Mr. Chism's testimony. In light of that evidence-which the ALJ erroneously rejected, and therefore did not consider in crafting the RFC - plaintiff has deficits in memory, concentration, completing tasks, as well as difficulty understanding and following instructions. Therefore, the ALJ's failure to find plaintiffs traumatic brain injmy to be "severe" at step two was not harmless error. Remand The decision whether to remand for further proceedings or for immediate payment ofbenefits is within the discretion of the comt. Harman v. Apfel, 211F.3d1172, 1178 (9th Cir. 2000), cert. denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A remand for an award ofbenefits is appropriate when no useful purpose would be served by further administrative proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-39 (9th Cir. 2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir 2004)). The comt may not award benefits punitively and must conduct a "credit-as-true" analysis to determine if a claimant is disabled under the Act. Id. at 1138. Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Id. The "credit-as-true" doctrine is not amandato1y rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F .3d 871, 87 6 Page 25 - OPINION AND ORDER (9th Cir. 2003) (citing Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 191) (en bane)). The reviewing court should decline to credit testimony when "outstanding issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). Here, the first requisite is met. The ALJ failed to provide legally sufficient reasons to reject the opinion of Dr. Ho and the testimony of Mr. Chism. However, the second requisite is not met, as there are still outstanding issues that must be resolved before a determination of disability can be made. At the administrative hearing, the VE testified that "if sitting [is J at a maximum of folll' holll's and standing and walking is a maximum of three hours, at the bottom of your range, that precludes competitive full time work." (Tr. 83.) Here, when crediting Dr. Ho's opinion as true, plaintiff would arguably be precluded from full time work because Dr. Ho found that plaintiff could sit for a maximum of four hours and stand or walk for a maximum of three to four hours. (Tr. 406.) However, the VE also testified that if plaintiff could stand or walk for four hours the "Office Helper" job could still be "feasible." (Tr. 83.) As such, Dr. Ho's finding that plaintiff could stand or walk for three to four hours leaves some ambiguity as to whether plaintiff would be precluded from full time work. Furthennore, serious doubts remain with regard to Dr. Ho's ultimate conclusions regarding the sitting, standing, and walking limitations. Dr. Ho based those limitations on plaintiffs "fatigue," however, Dr. Ho never explained what caused plaintiffs fatigue. It is therefore not clear how Dr. Ho came to her conclusion, and consequently, whether the conclusion is supported by the record. Therefore, the record is still not fully developed and it is not clear that Plaintiff is, in fact, disabled. Remand for further proceedings is the appropriate remedy. Treichler, 775 F3d at 1105. ("Where ... an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency."). Page 26 - OPINION AND ORDER On remand, the ALJ shall: (1) accept Dr. Ho's opinion and incorporate it into the RFC or provide legally sufficient reasons for its rejection; (2) accept Mr. Chism's testimony or provide legally sufficient reasons for discounting it; (3) evaluate plaintiffs obesity as a medically determinable impairment and dete1mine whether it would increase the severity of plaintiffs other impairments; (4) evaluate plaintiffs traumatic brain injury as a severe impairment and incorporate any resulting limitations into the RFC; (5) order an examination of plaintiff to evaluate her impairments as well as determine the cause and assess the extent of her symptoms including, fatigue; (6) order a mental examination of plaintiff to evaluate her mental health and diagnose any mental health impairments; and (7) conduct any additional proceedings as indicated by the results of the foregoing instrnctions. Conclusion For these reasons, the decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner pursuant to Sentence Four, 42 U.S.C. § 405(g) for further proceedings as directed in this Opinion and Order. IT IS SO ORDERED DATED this 7th day of December 2017. V.ACOSTA Page 27 - OPINION & ORDER

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