Hales v. Commissioner of Social Security, No. 4:2017cv05077 - Document 14 (E.D. Wash. 2018)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 11 AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 - Signed by Judge Rosanna Malouf Peterson. (VR, Courtroom Deputy)

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Hales v. Commissioner of Social Security Doc. 14 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Oct 11, 2018 1 SEAN F. MCAVOY, CLERK 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 LYDIA H., 8 9 No. 4:17-CV-5077-FVS Plaintiff, vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 13 14 15 16 17 18 19 20 BEFORE THE COURT are the parties’ cross-motions for summary judgment. ECF Nos. 11, 12. This matter was submitted for consideration without oral argument. Plaintiff was represented by attorney Chad Hatfield. Defendant was represented by Special Assistant United States Attorney Jeffrey R. McClain. The Court, having reviewed the administrative record and the parties’ briefing, is fully informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 11, is granted and Defendant’s Motion, ECF No. 12, is denied. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 JURISDICTION Plaintiff Lydia H. (“Plaintiff”) filed for disability income benefits (DIB) on 3 July 29, 2015, alleging an onset date of February 9, 2015. Tr. 157-58, 202. 4 Benefits were denied initially, Tr. 99-101, and upon reconsideration, Tr. 108-09. 5 Plaintiff appeared at a hearing before an administrative law judge (ALJ) on 6 February 29, 2016. Tr.44-69. On November 18, 2016, the ALJ denied Plaintiff’s 7 claim, Tr. 24-36, and on April 7, 2017, the Appeals Council denied review. Tr. 18 5. The matter is now before this Court pursuant to 42 U.S.C. § 405(g). 9 10 BACKGROUND The facts of the case are set forth in the administrative hearing and 11 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 12 and are therefore only summarized here. 13 Plaintiff was born in February 1969 and was therefore 47 years old at the 14 time of the hearing. Tr. 157. She graduated from high school and served four 15 years in the Marine Corps, and later served in the U.S. Army Reserve. Tr. 995, 16 999. After the Marines, she obtained a bachelor’s degree in general studies with 17 emphasis on music performance and sociology, and later obtained a master’s 18 degree in social work. Tr. 995, 999. Her last job was working for the Department 19 of Veterans Affairs (VA) as a social worker. Tr. 1000. As a social worker, she 20 provided trauma counseling and suicide prevention as well as other mental health 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 services. Tr. 1000. She was a concert-level French horn player, having played in 2 the Marine Corps field band and in various other symphonies and community 3 bands. Tr. 995. She was also an avid runner and completed at least 29 marathons. 4 Tr. 996. 5 In April 2011, Plaintiff was in a single-car motor vehicle rollover accident 6 after her vehicle hit ice. Tr. 666. She was initially seen in the emergency room 7 with back and shoulder pain, Tr. 665, but within a month was experiencing 8 symptoms such as photophobia, phonophobia, dizziness, aggravation from visual 9 stimulation, motion sickness, difficulty concentrating, difficulty with words and 10 speech, vision changes, and lack of energy. Tr. 1121. She continued at her social 11 work job half-time, but by May 2014 was complaining that working part-time was 12 difficult, and she stopped working altogether in January 2015. Tr. 996, 1121. 13 Plaintiff alleges she is unable to manage change or stress. Tr. 254. Her 14 thinking is slow and she gets tired easily in a high sensory or mentally challenging 15 environment. Tr. 254. She cannot process language, she lacks energy, completing 16 tasks is difficult, and she has difficulty staying on task. Tr. 254. She can no longer 17 drive, run marathons, or play the French horn. Tr. 255, 314. She gave her brother 18 power of attorney for her financial matters. Tr. 321. 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 7 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 8 (quotation and citation omitted). Stated differently, substantial evidence equates to 9 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 10 citation omitted). In determining whether the standard has been satisfied, a 11 reviewing court must consider the entire record as a whole rather than searching 12 for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 15 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 19 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 20 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 2 decision generally bears the burden of establishing that it was harmed. Shinseki v. 3 Sanders, 556 U.S. 396, 409-10 (2009). 4 5 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than twelve 10 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 11 “of such severity that he is not only unable to do his previous work[,] but cannot, 12 considering his age, education, and work experience, engage in any other kind of 13 substantial gainful work which exists in the national economy.” 42 U.S.C. § 14 423(d)(2)(A). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 17 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 18 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 19 “substantial gainful activity,” the Commissioner must find that the claimant is not 20 disabled. 20 C.F.R. § 404.1520(b). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 4 from “any impairment or combination of impairments which significantly limits 5 [his or her] physical or mental ability to do basic work activities,” the analysis 6 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 7 does not satisfy this severity threshold, however, the Commissioner must find that 8 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 9 At step three, the Commissioner compares the claimant’s impairment to 10 severe impairments recognized by the Commissioner to be so severe as to preclude 11 a person from engaging in substantial gainful activity. 20 C.F.R. § 12 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 404.1520(d). 15 If the severity of the claimant’s impairment does not meet or exceed the 16 severity of the enumerated impairments, the Commissioner must pause to assess 17 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 20 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 12 adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 14 other work, the Commissioner should conclude that the claimant is disabled and is 15 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 2 700 F.3d 386, 389 (9th Cir. 2012). 3 4 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful 5 activity since February 9, 2015, the alleged onset date. Tr. 26. At step two, the 6 ALJ found Plaintiff has the following severe impairments: neurocognitive disorder, 7 anxiety disorder, affective disorder, headaches, and seizure disorder. Tr. 26. At 8 step three, the ALJ found that Plaintiff does not have an impairment or 9 combination of impairments that meets or medically equals the severity of a listed 10 impairment. Tr. 27. The ALJ then found Plaintiff has the residual functional 11 capacity to perform a full range of work at all exertional levels but with the 12 following nonexertional limitations: 13 14 15 16 17 She can never climb ladders, rope, or scaffolding. She can occasionally climb ramps and stairs. She must avoid moderate exposure to extreme heat, extreme cold, loud noise, excessive vibration, and hazards. She should not work with dangerous machinery, unprotected heights, or in jobs requiring the operation of a motor vehicle. She can perform simple routine tasks, in a routine work environment with simple work-related decisions. She can have superficial interaction with coworkers and brief superficial interaction with the public. She is capable of adequate task-related interactions within these parameters. 18 Tr. 29. 19 At step four, the ALJ found Plaintiff is unable to perform past relevant work. 20 Tr. 34. After considering the testimony of a vocational expert and Plaintiff’s age, 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 education, work experience, and residual functional capacity, the ALJ found there 2 are other jobs that exist in significant numbers in the national economy that 3 Plaintiff can perform, such as industrial cleaner, hospital cleaner, cook helper, 4 housekeeping cleaner, production assembler, or hand packager. Tr. 35. Therefore, 5 at step five, the ALJ concluded that Plaintiff has not been under a disability, as 6 defined in the Social Security Act, from February 9, 2015, through the date of the 7 decision. Tr. 36. 8 ISSUES 9 Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 disability insurance benefits under Title II of the Social Security Act. ECF No. 15. 11 Plaintiff raises the following issues for review: 12 1. 13 Whether the ALJ failed to properly consider the medical opinion evidence; 14 2. Whether the ALJ improperly rejected Plaintiff’s symptom claims; and 15 3. Whether the ALJ made a proper step five finding. 16 ECF No. 11 at 10-11. 17 DISCUSSION 18 A. Plaintiff’s Symptom Claims 19 Plaintiff contends the ALJ improperly rejected her symptom claims. ECF 20 No. 13 at 15-20. An ALJ engages in a two-step analysis to determine whether a 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 2 ALJ must determine whether there is objective medical evidence of an underlying 3 impairment which could reasonably be expected to produce the pain or other 4 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 5 “The claimant is not required to show that her impairment could reasonably be 6 expected to cause the severity of the symptom she has alleged; she need only show 7 that it could reasonably have caused some degree of the symptom.” Vasquez v. 8 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 12 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 13 citations and quotations omitted). “General findings are insufficient; rather, the 14 ALJ must identify what testimony is not credible and what evidence undermines 15 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 16 Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (2002) (“[T]he ALJ 17 must make a credibility determination with findings sufficiently specific to permit 18 the court to conclude that the ALJ did not arbitrarily discredit claimant’s 19 testimony.”). “The clear and convincing [evidence] standard is the most 20 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 2 924 (9th Cir. 2002)). 3 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 4 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 5 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 6 daily living activities; (4) the claimant’s work record; and (5) testimony from 7 physicians or third parties concerning the nature, severity, and effect of the 8 claimant’s condition. Thomas, 278 F.3d at 958-59. 9 Here, the ALJ found Plaintiff’s medically determinable impairments could 10 reasonably be expected to produce the symptoms alleged, but that Plaintiff’s 11 statements concerning the intensity, persistence, and limiting effects of these 12 symptoms were not entirely credible. Tr. 30. 13 First, the ALJ found that Plaintiff stopped working as a social worker for 14 reasons other than her disability. Tr. 30. An ALJ may consider that a claimant 15 stopped working for reasons unrelated to the allegedly disabling condition in 16 making a credibility determination. See Tommasetti v. Astrue, 533 F.3d 1035, 17 1040 (9th Cir. 2008); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The 18 ALJ observed that Plaintiff returned to part-time work as a social worker after her 19 accident in April 2011. Tr. 30, 503, 996. As the ALJ noted, she continued in that 20 position until February 2015. Tr. 30, 51, 506. According to the ALJ, Plaintiff left 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 her job as a social worker “due to its severely stressful nature” rather than her 2 disability. Tr. 30. This conclusion is based on Plaintiff’s report in June 2015 that 3 “she has been in a very hostile work environment with harassment by a supervisor 4 which caused significant stress.” Tr. 30, 491. However, the Court notes that the 5 symptom complaint rejected by the ALJ (“her alleged inability to maintain or 6 tolerate any stress,” Tr. 30), is the very reason the ALJ found that she left her job 7 as a social worker. 8 Moreover, the ALJ’s determination that Plaintiff left her job due to 9 difficulties with her supervisor is not supported by the record. Dr. Cancado began 10 noting in May 2014 that Plaintiff was unable to work full time and that even 11 working part time was difficult. Tr. 500. In July 2014, he indicated Plaintiff had 12 been working part-time for a while and “[s]he seems unable to perform all tasks 13 required for full-time work.” The next month, Dr. Cancado wrote that she 14 “continues to have difficulty working as a social worker,” her symptoms prevent a 15 full-time job, and even part-time work was difficult. Tr. 611. By October 2014, 16 Plaintiff had “significant difficulty” performing her job and was pursuing 17 retirement. Tr. 614. In December 2014, Dr. Cancado noted that Plaintiff was 18 having frequent episodes of seizure-like activity and that stress may aggravate 19 those symptoms. Tr. 494. She continued to have difficulty even with basic 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 activities of daily living, and “[a]t work, she cannot appropriately perform her 2 tasks.” Tr. 494. 3 By the time of her alleged onset date and the reported difficulties with her 4 supervisor in early 2015, Dr. Cancado’s notes reflect that Plaintiff had been 5 struggling to meet job requirements for more than six months. Tr. 494. In March 6 2016, she told Andrew Ellis, Ph.D., a rehabilitation psychologist, that in her part7 time job she was “only doing 5 or 10% of my real job.” Tr. 996. While the ALJ 8 notes Plaintiff’s testimony that her part-time schedule required her to meet with 9 three to four clients per day, the ALJ failed to acknowledge that she also testified 10 she was not able to see that many clients or assist with crisis control as required. 11 Tr. 57, 506. Additionally, the VA eventually awarded her medical retirement in 12 October 2015. Tr. 996. Based on the foregoing, it was not reasonable for the ALJ 13 to find that Plaintiff left her job for reasons unrelated to her symptom complaints. 14 Second, the ALJ determined the treatment records and exam findings 15 document a mild cognitive disorder with adequate concentration for simple tasks, 16 and her psychological impairments and seizure disorder are well-controlled with 17 medication. Tr. 30-31. The medical evidence is a relevant factor in determining 18 the severity of a claimant’s pain and its disabling effects. Rollins v. Massanari, 19 261 F.3d 853, 857 (2001); 20 C.F.R. § 404.1529(c)(2) (2011). Further, an 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 impairment that can be effectively controlled with treatment is not disabling. 2 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 3 The ALJ cited a number of records in support of this finding, but in 4 particular noted “appointments in 2012 noted slow improvement in her cognitive 5 impairment.” Tr. 30 (citing Tr. 546, 562, 732). This overstates the record. In 6 February 2012, Adam Nelson, Ph.D., a neuropsychologist, indicated that Plaintiff 7 had experienced a concussion/mild traumatic brain injury (TBI) with numerous 8 changes in functioning, including difficulties with multi-tasking, processing, and 9 motor speed, balance, sensitivity to light, migraines, daytime fatigue, and loss of 10 appetite. Tr. 546. She “had noticed some improvement in functioning over time; 11 however, she is not back to her previous level of functioning.” Tr. 546. Test 12 results indicated below expectation performance regarding processing speed, 13 psychomotor speed, and verbal memory; and she performed very slowly on 14 attention tasks. Tr. 546. Dr. Nelson opined her cognitive deficits are “atypical” 15 for someone with a concussion. Tr. 546. 16 In March 2012, Plaintiff was working part-time, attending speech and 17 physical therapy, and was “continuing to have some occasional word-finding 18 problems and fatigue.” Tr. 562. Plaintiff’s speech therapist found some 19 improvement in May 2012, but Plaintiff continued to show a speech delay with 20 pauses and hesitations in her sentences. Tr. 732. It was noted to be difficult for 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 her to write information and comprehend what she was reading. Tr. 732. Thus, 2 while the ALJ is technically correct that there is an indication of some minor 3 improvement during 2012 noted in these records, the implication that Plaintiff’s 4 condition was controlled by medication or otherwise significantly improved is not 5 supported by the overall record. 6 For example, the ALJ did not note that in July 2013, the speech therapist 7 found continued delay in processing information and word-finding difficulties. Tr. 8 934. She had improved her daily living skills but continued to have difficulty with 9 organizational tasks and would get confused with too many details. Tr. 934. In 10 August 2013, Dr. Cancado noted significant fatigue, worsening condition, 11 paresthesias, decreased ability to concentrate, phonophobia and photophobia, and 12 increased imbalance and gait disturbance. Tr. 584. The ALJ cited findings of John 13 Christensen, Ph.D., who completed a neuropsychological report in July 2015. Tr. 14 321-27. The ALJ listed some of the data from Dr. Christensen’s test results, but 15 failed to note that Dr. Christensen compared the 2015 test results to prior test 16 results and found “there appeared to be no improvements in the cognitive areas 17 assessed over the last 3 years since her initial evaluation.” Tr. 326. In fact, some 18 of Plaintiff’s verbal skills, an area of strength for her, had decreased from 19 “superior” to “average to high average” over time. Tr. 326. He also noted that 20 “she may be downplaying her emotional well-being.” Tr. 326. Dr. Christensen 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 opined that “[a]t this point in time cognitive improvement is very questionable. . . . 2 Her work demands should not increase.” Tr. 327. This contradicts the ALJ’s 3 inference that Plaintiff’s cognitive condition was improved or well-controlled. 4 The ALJ also noted findings by Andrew Ellis, Ph.D., a rehabilitation 5 psychologist, in March 2016, that Plaintiff was amiable, cooperative, and slightly 6 anxious. Tr. 31, 994. According to the ALJ, testing reflected adequate 7 concentration and attention for basic demands, mild memory impairment, difficulty 8 with complex executive functioning, normal verbal expression, and difficulty 9 formulating complex idea. Tr. 31 (citing Tr. 1001-02). Based on the ALJ’s 10 interpretation of Dr. Ellis’ findings, Plaintiff would appear to be only mildly 11 challenged. However, Dr. Ellis actually found: 12 13 14 15 16 17 persisting cognitive changes, sensory changes, emotional distress, and personality change. Based on the evaluation of the BIRC [Brain Injury Rehabilitation Center] team today, [Plaintiff] continued to demonstrate reduced processing speed, reduced complex attention skills, reduced memory skills, and reduced executive function skills. In addition to these cognitive changes, she demonstrated altered communication skills with dysfluency. She also demonstrated and reported sensory overload in response to both visual and auditory stimulation that undermines her cognitive functioning. Her vision demonstrated changes related to the accident of 4/11. She demonstrated reduced cognitive and physical endurance overall as well as reported persisting headaches. 18 Tr. 997. Dr. Ellis diagnosed major neurocognitive disorder and adjustment 19 disorder with mixed anxiety and depressed mood. Tr. 997. 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 The ALJ’s findings regarding improvement and Plaintiff’s capabilities do 2 not reasonably take into account the entirety of the record or even the entirety of 3 specific records cited by the ALJ. Although the ALJ found Plaintiff’s condition 4 was improved and controlled with medication, the ALJ cited no records showing 5 improvement in Plaintiff’s condition after 2012; in fact, the record shows that 6 Plaintiff’s cognitive condition did not improve. Furthermore, even if the ALJ’s 7 finding that Plaintiff retains adequate concentration for simple tasks is correct, this 8 finding does not address Plaintiff’s fatigue and reduced cognitive and physical 9 endurance which have prevented full-time work since her accident began. This is 10 not a clear and convincing reason supported by substantial evidence. 11 Third, the ALJ found Plaintiff’s allegations of disability are inconsistent 12 with her lack of interest in treatment for her cognitive impairment. Tr. 31. 13 Credibility is undermined “by unexplained, or inadequately explained, failure to 14 seek treatment or follow a prescribed course of treatment. While there are any 15 number of good reasons for not doing so, a claimant’s failure to assert one, or a 16 finding by the ALJ that the proffered reason is not believable, can cast doubt on the 17 sincerity of the claimant’s pain testimony.” Fair v. Bowen 885 F.2d 597, 603 (9th 18 Cir. 1989) (internal citations omitted). The ALJ noted that cognitive rehabilitation 19 was recommended to Plaintiff in July 2015 “as records don’t reflect that this has 20 happened,” and again March 2016, but Plaintiff declined. Tr. 31, 327, 660, 997. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 On this basis, the ALJ found that Plaintiff lacked interest in treatment for her 2 cognitive issues. 3 This characterization of Plaintiff’s treatment history is not supported by 4 substantial evidence. There is no indication that Plaintiff’s lack of cognitive 5 therapy by July 2015 was due to Plaintiff’s lack of interest, or whether at that point 6 cognitive therapy had even been offered to her. Moreover, in August and 7 December 2015, Dr. Cancado indicated that, “[s]he is having cognitive therapy,” 8 indicating that, in fact, Plaintiff did participate in cognitive therapy. Tr. 485, 646. 9 With respect to declining cognitive therapy in March 2016, the recommended 10 therapy involved “comprehensive multiple week treatment” at a facility located in 11 Portland, Oregon, several hours from Plaintiff’s home. Tr. 660, 997. A statement 12 from a treating provider submitted to the Appeals Council and not reviewed by the 13 ALJ explains that at the time the therapy was offered, she would have had to 14 provide her own housing and transportation and would have had to leave her pet 15 behind, which were reasonable considerations under the circumstances. Tr. 306. 16 The record reflects that Plaintiff attended at least some cognitive therapy and had a 17 reasonable excuse for declining intensive therapy hours away from her home. 18 Therefore, the ALJ’s suggestion that Plaintiff “lacked interest” in attending 19 cognitive therapy is without basis in the record. 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 Fourth, the ALJ concluded there is inconsistent evidence regarding 2 Plaintiff’s motor vehicle accident which undermines the reliability of her 3 statements about the severity of her cognitive impairment. Tr. 32. In assessing a 4 claimant’s symptom complaints, the ALJ may rely on ordinary techniques of 5 credibility evaluation. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The 6 ALJ cited hospital emergency records after her April 2011 motor vehicle accident 7 noting no loss of consciousness, lack of trauma to her head, alert behavior, and 8 normal mood and affect. Tr. 32, 665-67, 675. She had no neurological complaints 9 and a normal neurologic examination the day after the accident. Tr. 32, 838-39. 10 The ALJ also noted that Plaintiff repeatedly stated she lost consciousness during 11 the accident due to a head injury, which the ALJ found is inconsistent with 12 emergency room reports. Tr. 32 (citing Tr. 312, 503, 532, 552, 1006). The ALJ 13 concluded that “[a]lthough the claimant’s lengthy treatment records are consistent 14 with some degree of cognitive impairment following her MVA in 2011, the 15 inconsistencies highlighted . . . indicate that this injury was not as severe as 16 reported by the claimant.” Tr. 32. 17 However, it is noted that hospital reports immediately after the accident also 18 mention that Plaintiff did not remember the accident and note “?” next to loss of 19 consciousness. Tr. 666, 668. In March 2016, Plaintiff reported that “she can’t 20 remember what she remembers outright and what she remembers from people 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 telling her.” Tr. 1006. There is at least some ambiguity in the record about 2 Plaintiff’s loss of consciousness. Regardless, less than a month after the accident, 3 Plaintiff had an initial visit with Dr. Cancado and relayed the neurological and 4 cognitive symptoms which continued to impact her throughout the record. The 5 “inconsistency” identified by the ALJ regarding loss of consciousness is a minor 6 detail which does not reasonably reflect on Plaintiff’s credibility, as there is no 7 suggestion or implication by any provider in the record that Plaintiff was 8 intentionally misleading medical personnel, exaggerating, or overstating her injury. 9 Furthermore, in light of the fact that Plaintiff indisputably sustained a head injury 10 which impacted her memory and cognition, it is unreasonable to hold one detail 11 about the accident against her. This is not a clear and convincing reason for giving 12 less weight to Plaintiff’s symptom complaints. 13 Fifth, the ALJ found Plaintiff’s activities since the alleged onset date 14 indicate she is not as limited as alleged. Tr. 31. It is reasonable for an ALJ to 15 consider a claimant’s activities which undermine claims of totally disabling pain in 16 assessing a claimant’s symptom complaints. See Rollins, 261 F.3d at 857. 17 However, it is well-established that a claimant need not “vegetate in a dark room” 18 in order to be deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 19 (9th Cir. 1987). Notwithstanding, if a claimant is able to spend a substantial part 20 of her day engaged in pursuits involving the performance of physical functions that 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 are transferable to a work setting, a specific finding as to this fact may be sufficient 2 to discredit an allegation of disabling excess pain. Fair v. Bowen, 885 F.2d at 603. 3 Furthermore, “[e]ven where [Plaintiff’s daily] activities suggest some difficulty 4 functioning, they may be grounds for discrediting the claimant’s testimony to the 5 extent that they contradict claims of a totally debilitating impairment.” Molina, 6 674 F.3d at 1113. 7 The ALJ found Plaintiff’s activities of walking, running, and strength 8 training are inconsistent with her allegations. Tr. 31 (citing Tr. 433, 996); see also 9 Tr. 50. The ALJ also noted that Plaintiff reported that she leaves home on a daily 10 basis to shop, exercise, visit with friends, or attend social outings. Tr. 31, 996. 11 Plaintiff testified she took an on-line continuing education class to maintain her 12 social work license, took an on-line music theory class, plays computer games, and 13 has a blog. Tr. 31, 48-49, 58-59. The ALJ found these activities indicate Plaintiff 14 is not as limited as alleged, retains adequate stamina for gainful activity, and can 15 persist with at least unskilled work tasks requiring routine social interaction. Tr. 16 31. 17 While these types of activities may in some cases be inconsistent with 18 disability, depending on the symptoms alleged, in this case they do not 19 demonstrate that Plaintiff retains “adequate stamina for gainful activity.” Tr. 31. 20 None of the activities listed by the ALJ involves the type of continuous persistence 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 required by an eight-hour workday. Furthermore, even if these activities were 2 reasonably considered by the ALJ in evaluating Plaintiff’s symptoms complaints, 3 in light of the ALJ’s errors in considering and characterizing the record detailed 4 throughout this decision, the Court concludes that Plaintiff’s activities are not by 5 themselves persuasive or convincing reasons for giving less weight to Plaintiff’s 6 symptom complaints. 7 Based on the foregoing, the ALJ’s determination that Plaintiff’s symptom 8 complaints are less than fully credible is not legally sufficient. 9 B. 10 Medical Opinion Evidence Plaintiff contends that the ALJ improperly rejected the medical opinion of 11 her treating neurologist and psychiatrist Paulo Cancado, M.D., examining 12 neuropsychologist John Christensen, Ph.D., and treating physician assistant Carol 13 Flaugher, PA-C. ECF No. 12 at 7-12. 14 There are three types of physicians: “(1) those who treat the claimant 15 (treating physicians); (2) those who examine but do not treat the claimant 16 (examining physicians); and (3) those who neither examine nor treat the claimant 17 but who review the claimant’s file (nonexamining or reviewing physicians).” 18 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 19 “Generally, a treating physician’s opinion carries more weight than an examining 20 physician’s, and an examining physician’s opinion carries more weight than a 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 reviewing physician’s.” Id. “In addition, the regulations give more weight to 2 opinions that are explained than to those that are not, and to the opinions of 3 specialists concerning matters relating to their specialty over that of 4 nonspecialists.” Id. (citations omitted). 5 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 6 reject it only by offering “clear and convincing reasons that are supported by 7 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 8 “However, the ALJ need not accept the opinion of any physician, including a 9 treating physician, if that opinion is brief, conclusory and inadequately supported 10 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 11 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 12 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 13 may only reject it by providing specific and legitimate reasons that are supported 14 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 83015 31). 16 1. 17 Dr. Cancado, a psychiatrist and neurologist, began treating Plaintiff in May Paulo Cancado, M.D. 18 2011, one month after the motor vehicle accident. Tr. 1121. In May 2016, Dr. 19 Cancado completed residual functional capacity assessment forms for Plaintiff’s 20 physical and mental functioning. Tr. 509-20. Mentally, Dr. Cancado assessed nine 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 moderate and six marked limitations, noting the form was filled out based on 2 Plaintiff’s report of cognitive impairments. Tr. 509-11. Physically, Dr. Cancado 3 found that Plaintiff could lift or carry 10 pounds occasionally and frequently, stand 4 or walk less than two hours in an eight-hour workday, sit less than six hours in an 5 eight-hour workday, and has occasional postural limitations. Tr. 514-15. He 6 assessed manipulative, visual, communicative, and environmental limitations. Tr. 7 516-18. He indicated that an objective evaluation of physical function could be 8 obtained from Plaintiff’s physical therapist. Tr. 520. 9 Dr. Cancado also wrote five letters cumulatively releasing Plaintiff from 10 work at her part-time job from March 6, 2015, to January 31, 2016. Tr. 488-89, 11 630, 649, 653. Additionally, in August 2015, he opined that Plaintiff: 12 13 14 15 will need to retire from her part-time position as a Social Worker due to her present mental and physical condition. She is unable to perform her essential functions as a Social Worker because the frequent migraine headaches, vestibulopathy, dizziness and cognitive impairment affect her ability to perform her position effectively. She also is unable to meet with and counsel veterans, as the position requires. As noted previously, she has been unable to work full-time since her on-the-job motor vehicle accident. 16 Tr. 507. 17 The ALJ gave some weight to Dr. Cancado’s assessments and agreed with 18 Dr. Cancado’s opinion that Plaintiff’s impairments prevent her from pursuing full19 time employment as a social worker. Tr. 33. Because Dr. Cancado’s opinion was 20 contradicted by the opinions of Edward Beaty, Ph.D. and Eugene Kester, Ph.D., 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 1 Tr. 79-81, 94-96, the ALJ was required to provide specific and legitimate reasons 2 for rejecting Dr. Cancado’s opinion. Bayliss, 427 F.3d at 1216. 3 First, the ALJ found that Dr. Cancado’s assessments of physical and 4 psychological limitations are contrary to the record as a whole and his own 5 treatment records. Tr. 33. An ALJ may discredit treating physicians’ opinions that 6 are unsupported by the record as a whole or by objective medical findings. Batson 7 v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ 8 asserts that Dr. Cancado’s treatment records since February 2015 indicate that 9 Plaintiff’s impairments “are not severe enough to preclude all gainful 10 employment.” Tr. 33. The ALJ cites an April 2015 record where Plaintiff was 11 doing “relatively well at this time,” but fails to acknowledge that Dr. Cancado also 12 noted that, “[s]he has done much better after stopping working.” Tr. 631. The fact 13 that Plaintiff was doing relatively well only after stopping work supports, rather 14 than undermines, Dr. Cancado’s assessments of limitations. 15 The ALJ also cites December 2015 and April 2016 reports by Plaintiff that 16 she had no recent seizure activity or recent headaches, but ignores Dr. Cancado’s 17 notes that she “continues to have some degree of imbalance” (Tr. 657); that 18 because of her cognitive impairment, she frequently forgets to take medication (Tr. 19 657); and she continued to have cognitive impairment, sometimes with anxiety and 20 anger. Tr. 660. Additional findings by Dr. Cancado in December 2015 include 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 1 notes that recent neuropsychological testing showed no improvement, she had 2 difficulty remembering to take her medication, she experienced staring spells with 3 post ictal confusion or disorientation, and experienced imbalance and occasional 4 tremors when exhausted. Tr. 485. The ALJ also failed to address Dr. Cancado’s 5 detailed summary of Plaintiff’s treatment history which concludes with the finding 6 that she has been unable to work full-time since her motor vehicle accident. Tr. 7 503-07. Based on the foregoing and as discussed throughout this decision, the 8 ALJ’s determination that Dr. Cancado’s opinions are not based on his records or 9 consistent with the record overall is not a reasonable conclusion. 10 Second, the ALJ found that Dr. Cancado’s opinions are inconsistent with 11 Plaintiff’s activities and her departure from her last job. Tr. 33. An ALJ may 12 discount a medical source opinion to the extent it conflicts with the claimant’s 13 daily activities. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th 14 Cir. 1999). The ALJ noted Plaintiff ran a marathon after her accident, suggesting 15 that is inconsistent with Dr. Cancado’s findings of fatigue, decreased 16 concentration, imbalance, and gait disturbance. Tr. 30, 33. However, Plaintiff 17 testified she last “tried” a half marathon in 2013, Tr. 49, and the record reflects she 18 needed an “escort” for that marathon because noise and visual stimuli trigger 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 26 1 vertigo. 1 Tr. 332. She was re-referred to physical therapy in July 2013 due to falls 2 while running even with a service dog. Tr. 912. A fall in March 2013 required 3 stitches and Plaintiff estimated she falls approximately every 10 days. Tr. 912. It 4 was also noted that Plaintiff fatigues after six hours of activity and usually needs a 5 nap in the afternoon. Tr. 912. 6 While on its face “running a marathon” seems inconsistent with the 7 limitations alleged by Plaintiff and those assessed by Dr. Cancado, the record 8 indicates that Plaintiff’s ability to run marathons was in fact reduced or eliminated 9 by fatigue, imbalance, and gait disturbance. Furthermore, by the time of the 10 alleged onset date, Plaintiff had not run or attempted to run even a half marathon in 11 nearly two years. As discussed supra, the ALJ findings regarding Plaintiff’s 12 running and other activities are not supported by the record. Thus, the ALJ 13 findings do not support the proper rejection of Dr. Cancado’s opinions. 14 The ALJ also found that Plaintiff’s part-time work as a social worker is 15 inconsistent with Dr. Cancado’s opinion that Plaintiff is unable to work. Tr. 33. 16 As discussed supra, the ALJ’s conclusion that the stressful nature of Plaintiff’s job 17 as a social worker caused her to stop working is entirely consistent with the stress18 19 1 Plaintiff testified she “tried” to run a half marathon; the record is silent as to 20 whether she was able to complete it. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 27 1 related limitations assessed by Dr. Cancado. Additionally, by the time of Dr. 2 Cancado’s May 2016 opinion, Plaintiff had not been working for over a year, so 3 her pre-onset date ability to work part-time does not undermine his findings 4 regarding full-time work. 5 The ALJ also asserted that Plaintiff could not do full-time social work 6 because of its stressful nature (“the claimant’s inability to maintain full-time 7 employment as a social worker appears to have been because of the very stressful 8 nature of this position”), implying that Plaintiff could do other less stressful full9 time work. Tr. 33. This implication is not supported by the record, as the ALJ 10 identified no evidence in Dr. Cancado’s records, or elsewhere in the record, that at 11 any point after Plaintiff’s accident she participated in activities consistent with the 12 ability to perform full-time work. In fact, Dr. Cancado indicated on multiple 13 occasions that Plaintiff is unable to perform full-time work. Tr. 506-07, 607, 611, 14 which is also consistent with Dr. Christensen’s finding that her work demands 15 should not increase. Tr. 326. 16 Third, the ALJ found that Dr. Cancado’s opinions are based on Plaintiff’s 17 self-report. Tr. 33. A physician’s opinion may be rejected if it is based on a 18 claimant’s subjective complaints which were properly discounted. Tonapetyan v. 19 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan, 169 F.3d at 599; Fair, 885 20 F.2d at 604. As discussed supra, the ALJ’s findings regarding Plaintiff’s 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 28 1 subjective complaints are not supported by substantial evidence. Thus, this is not 2 specific, legitimate reason for rejecting Dr. Cancado’s opinions. 3 2. 4 In July 2015, Dr. Christensen examined Plaintiff and prepared a John Christensen, Ph.D. 5 neuropsychological assessment. Tr. 321-27. He diagnosed Plaintiff with mild 6 neurocognitive disorder due to traumatic brain injury, causing problems and 7 deficits with attention, memory, cognitive flexibility and processing speed; and 8 depressive disorder with major depression and, or, persistent depressive disorder. 9 Tr. 326. After comparing test results from testing three years prior, Dr. 10 Christensen stated that there “appeared to be no improvements in the cognitive 11 areas assessed”; in fact, her scores decreased from “superior” to “high average.” 12 Tr. 326. He opined that, “based on behavioral observations, she may be 13 downplaying her emotional well-being.” Tr. 326. Additionally, Dr. Christensen 14 indicated, “[h]er work demands should not increase” and suggested Plaintiff apply 15 for Social Security benefits. Tr. 327. 16 The ALJ gave some weight to Dr. Christensen’s assessment and agreed that 17 Plaintiff’s impairments prevent full-time employment as a social worker. Tr. 33. 18 Because Dr. Christensen’s opinion was contradicted by the opinions of Dr. Beaty 19 and Dr. Kester, Tr. 79-81, 94-96, the ALJ was required to provide specific and 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 29 1 legitimate reasons for rejecting the rest of Dr. Christensen’s opinion. Bayliss, 427 2 F.3d at 1216. 3 First, the ALJ found Dr. Christensen’s assessment is “conclusory” and gives 4 greater weight “to more detailed assessments.” Tr. 33. A medical opinion may be 5 rejected by the ALJ if it is conclusory, contains inconsistencies, or is inadequately 6 supported. Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957. This findingby the 7 ALJ is without basis in the record. Dr. Christensen’s assessment is based on a 8 thorough neuropsychological assessment, including Plaintiff’s treatment history, 9 behavioral observations, at least nine different objective tests, and a thorough 10 discussion of the test results. Tr. 321-27. The ALJ fails to identify any specific 11 evidence contradicting Dr. Christensen’s assessment, and fails to identify which 12 part of his opinion is conclusory. And, although other “more detailed assessments” 13 are mentioned, the only opinions credited in full by the ALJ are those of the 14 reviewing psychologists, Drs. Beaty and Kester. Tr. 33-34. There is no reasonable 15 interpretation of those opinions resulting in a finding that they are “more detailed” 16 than Dr. Christensen’s assessment, as they supply little explanation for the 17 limitations assessed. Tr. 75-80, 91, 93-95. Dr. Beaty’s opinion, in particular, 18 appears to be based primarily on a portion of Dr. Christensen’s findings. Tr. 75. 19 Based on the foregoing, the ALJ characterization of Dr. Christensen’s opinion as 20 “conclusory” is not supported by substantial evidence. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 30 1 Next, the ALJ gave less weight to Dr. Christensen’s opinion for the same 2 reasons given for assigning less weight to Dr. Cancado’s opinion. Tr. 33. 3 According to the ALJ, Plaintiff’s work history, activities, testing, and overall 4 treatment record testing are inconsistent with Dr. Christensen’s opinion. Tr. 33. 5 As discussed supra, these reasons are not specific, legitimate, and supported by 6 substantial evidence with respect to Dr. Cancado’s opinion, and they are likewise 7 insufficient to reject Dr. Christensen’s opinion. 8 3. 9 Ms. Flaugher submitted an undated statement indicating that she has known Carol Flaugher, PA-C 10 and worked with Plaintiff for nine years. Tr. 303. She noted “severe cognitive 11 deficits” which have not improved. Tr. 303. Some of the difficulties reported by 12 Ms. Flaugher include: slower processing of verbal and written language; reduced 13 reading speed; cannot talk on the telephone; difficulty tracking speakers with 14 accents or speaking rapidly; difficulty with multi-step tasks; difficulty cooking; 15 cannot anticipate stimuli; needs reminders for daily tasks; heightened PTSD, 16 anxiety and depression; she can only move forward in space and cannot stand on 17 one foot; difficulty driving and cannot drive more than 10 miles, at night, in the 18 rain or snow; loses her train of thought while talking; word finding difficulty; must 19 nap every afternoon; shopping is limited due to crowds and fluorescent lighting; 20 her brother manages her finances with a power of attorney; and her ability to work 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 31 1 through problems is poor. Tr. 303-07. Ms. Flaugher noted Plaintiff was a concert 2 grade French horn player and was part of a Marine Corps band and played with the 3 Portland Orchestra, but can no longer tolerate the noise from the horn and cannot 4 follow music. Tr. 304. Plaintiff has three or more panic attacks per week and will 5 hide in a restroom or drop to the ground during an attack. Tr. 304. Panic attacks 6 are triggered by overstimulation, changes in routine, and crowds. Tr. 304. 7 Although Plaintiff faults the ALJ for not giving weight to Ms. Flaugher’s 8 statement, ECF No. 11 at 15, Ms. Flaugher’s statement was first submitted to the 9 Appeals Council and therefore was not available for review by the ALJ. Tr. 4-5. 10 The ALJ could not have erred by failing to review an opinion not before her. 11 Notwithstanding, the Court must consider Ms. Flaugher’s opinion in determining 12 whether the ALJ’s decision was supported by substantial evidence. Brewes v. 13 Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012). As noted 14 throughout this decision, based on the record as a whole, including Ms. Flaugher’s 15 opinion, the ALJ’s findings are not supported by substantial evidence. 16 C. Remedy 17 The Court concludes that the ALJ erred in considering Plaintiff’s symptoms 18 complaints and discounting the opinions of Dr. Cancado and Dr. Christensen. 19 Thus, the Court must decide whether to remand the case to the Social Security 20 Administration for further proceedings or for the payment of benefits. Remand is 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 32 1 appropriate where it is not clear from the record whether the ALJ would be 2 required to find a plaintiff disabled if all the evidence were properly evaluated. See 3 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). However, “where the 4 record has been developed fully and further administrative proceedings would 5 serve no useful purpose, the district court should remand for an immediate award 6 of benefits.” Id. at 593 (citations omitted). “More specifically, the district court 7 should credit evidence that was rejected during the administrative process and 8 remand for an immediate award of benefits if (1) the ALJ failed to provide legally 9 sufficient reasons for rejecting the evidence; (2) there are no outstanding issues 10 that must be resolved before a determination of disability can be made; and (3) it is 11 clear from the record that the ALJ would be required to find the claimant disabled 12 were such evidence credited.” Id. (citations omitted). 13 Because the Court concludes that the ALJ did not provide legally sufficient 14 reasons for discounting the opinions of Dr. Cancado and Dr. Christensen, those 15 opinions are treated as true. See id. at 594. Dr. Cancado opined on multiple 16 occasions that Plaintiff cannot perform full-time work and assessed limitations 17 inconsistent with full-time work, and Dr. Christensen opined that Plaintiff’s work 18 should not increase from part-time. Once those opinions are credited as true, it is 19 apparent that Plaintiff cannot perform full-time work and an award of benefits in 20 mandated. Further development of the record is unnecessary as there are no 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 33 1 outstanding issues. Under these circumstances, remand with a direction for 2 payment of benefits is appropriate. 3 4 CONCLUSION After reviewing the record and the ALJ’s findings, the Court concludes that 5 the ALJ’s decision is not supported by substantial evidence and free of harmful 6 legal error. For the reasons discussed above, the Court GRANTS Plaintiff’s 7 motion for summary judgment, DENIES the Commissioner’s motion for summary 8 judgment, and REMANDS for the calculation and award of benefits. 9 10 Accordingly, IT IS HEREBY ORDERED: 1. 11 12 GRANTED. 2. 13 14 Plaintiff’s Motion for Summary Judgment, ECF No. 11, is Defendant’s Motion for Summary Judgment, ECF No. 12, is DENIED. 3. The Court enters JUDGMENT in favor of Plaintiff REVERSING and 15 REMANDING the matter to the Commissioner of Social Security for 16 immediate calculation and award of benefits. 17 The District Court Executive is directed to file this Order and forward copies 18 to counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 19 20 DATED October 11, 2018. s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 34

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