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Plaintiff was previously awarded disability benefits as of January 2000. (Tr. 509).

REPORT AND RECOMMENDATION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PAUL E. POLLARD, )

)

Plaintiff, ) CASE NO. C05-1481RSM-MJB

)

v. ) REPORT AND 

) RECOMMENDATION

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

____________________________________)

Plaintiff Paul Pollard appeals to the District Court for review of a final decision of the

Commissioner of the Social Security Administration (the “Commissioner”) denying his

application for Disability Insurance Benefits (“DIB”) from December 17, 1997 to January 2000

under Title II of the Social Security Act.1 For the reasons set forth below, it is recommended

that the Commissioner’s decision be REVERSED and the case be REMANDED for an award of

benefits. 

I. PROCEDURAL HISTORY

Plaintiff filed for DIB on December 18, 1997. (Tr. 74-76). Plaintiff initially alleged that

he had been disabled since October 27, 1997, due to fibromyalgia and chronic fatigue syndrome.

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(Tr. 74). Plaintiff later agreed to an onset date of December 17, 1997. (Dkt. #12 at 4 -

Plaintiff’s Reply Brief). Plaintiff’s DIB application was denied initially and on reconsideration.

(Tr. 62-66, 69-71). A hearing was held before administrative law judge (“ALJ”) John F. Bauer

on April 1, 1999. (Tr. 36-61, 305-330). Plaintiff, represented by counsel, testified at the

hearing. (Tr. 36-61, 305-330). Plaintiff’s wife, Diane Pollard (“Mrs. Pollard”), while present as

a witness, did not testify. (Tr. 38, 307). On June 19, 1999, the ALJ issued a decision finding

Plaintiff was not disabled at Step 2 because he failed to establish a severe impairment

significantly limiting his ability to work. (Tr. 10-22, 288-297). Plaintiff’s request for review by

the Appeals Council was denied. (Tr. 8-9, 298-99, 5-6, 300-02). 

Plaintiff subsequently sought judicial review in District Court (No. C01-661P) and, based

upon a stipulated agreement, this Court remanded the case for further administrative

proceedings. (Tr. 331-33). A second hearing was held before ALJ John F. Bauer on August 1,

2002. (Tr. 427-481). Plaintiff, represented by counsel, testified at the hearing. (Tr. 427-481).

Mrs. Pollard, medical expert Marvin Wolf, M.D., and vocational expert Paul Tomita, also

testified at the hearing. (Tr. 427-481). On September 24, 2002, the ALJ issued a decision

finding that although Plaintiff suffered from fibromyalgia, he was nevertheless not disabled at

Step 4 because he retained a residual functional capacity (“RFC”) to perform a significant range

of sedentary work. (Tr. 265-277). Plaintiff’s request for review by the Appeals Council was

denied. (Tr. 240-41).

On August 4, 2004, Plaintiff again sought judicial review in District Court (No. C04-

0104C). (Tr. 508). United States Magistrate Judge Mary Alice Theiler issued a Report and

Recommendation to remand Plaintiff’s case for an award of benefits as of January 2000 and for

further proceedings to determine whether Plaintiff was disabled for the relevant time period prior

to that date. (Tr. 510-527). On September 13, 2004, the District Court adopted Magistrate

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Judge Theiler’s Report and Recommendation. (Tr. 509). Pursuant to the Order of Remand, the

Appeals Council sent Plaintiff’s case back to the Office of Hearings and Appeals. (Tr. 528-29). 

ALJ M. J. Adams was assigned to Plaintiff’s case. (Tr. 534-538).

A third hearing was conducted before ALJ Adams on March 25, 2005. (Tr. 577-629).

Plaintiff, represented by counsel, testified at the hearing. (Tr. 577-629). Mrs. Pollard and Phillip

Rodriguez (“Mr. Rodriguez), a vocational expert, also testified at the hearing. (Tr. 577-629). 

On June 24, 2005, the ALJ issued a decision finding Plaintiff was not disabled at Step 4 because

he retained the ability to perform a full range of light work, including his past work as a customer

service representative or mortgage broker. (Tr. 503-04). Plaintiff’s request for review by the

Appeals Council was denied, making the ALJ’s decision the final decision of the Commissioner. 

(Tr. 482-84). Plaintiff now seeks judicial review in this Court. 

II. THE PARTIES’ POSITIONS

Plaintiff requests that the Court reverse the Commissioner’s decision and remand for an

award of retroactive benefits from December 17, 1997 to January 1, 2000 or, in the alternative,

remand the case to a different ALJ for further administrative proceedings. Plaintiff argues that

the ALJ erred by: 1) improperly exceeding the scope of this Court’s Order of Remand by finding

Plaintiff was not under a disability at any time through the date of his decision, 2) ignoring the

law of the case by finding that Plaintiff was capable of performing his past relevant work, 3)

rejecting the opinions of Plaintiff’s attending rheumatologist, Philip Mease, M.D., 4) finding

Plaintiff and his wife not credible, 5) failing to address the credibility of the lay witness testimony,

and 5) failing to award disability benefits for the period from December 17, 1997 to January 1,

2000. 

The Commissioner concedes that the ALJ erred: 1) by adjudicating a longer period of

time than was properly before him, 2) in his assessment of the severity of Plaintiff’s mental

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impairments, and 3) in his consideration of medical opinions, Plaintiff’s credibility, and lay

evidence. The Commissioner argues, however, that remand for further administrative

proceedings is the appropriate remedy to address the errors in the ALJ’s decision. 

III. STANDARD OF REVIEW

The Court may set aside the Commissioner’s denial of social security disability benefits

when the ALJ’s findings are based on legal error or not supported by substantial evidence in the

record as a whole. Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence is

defined as more than a mere scintilla but less than a preponderance; it is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen,

881 F.2d 747, 750 (9th Cir. 1989). Where the evidence is susceptible to more than one rational

interpretation, it is the Commissioner’s conclusion which must be upheld. Sample v. Schweiker,

694 F.2d 639, 642 (9th Cir. 1982).

IV. EVALUATING DISABILITY

The claimant bears the burden of proving that he is disabled. Meanel v. Apfel, 172 F.3d

1111, 1113 (9th Cir. 1999). Disability is defined as the inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment, which

can be expected to result in death, or which has lasted or can be expected to last for a continuous

period of not less than twelve months. 42 U.S.C. § 423 (d)(1)(A).

The Social Security regulations set out a five-step sequential evaluation process for

determining whether a claimant is disabled within the meaning of the Social Security Act. See 20

C.F.R. § 416.920. At step one, the claimant must establish that he or she is not engaging in any

substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the claimant

must establish that he or she has one or more medically severe impairments or combination of

impairments. If the claimant does not have a “severe” impairment, he or she is not disabled. Id.

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at § (c). At step three, the Commissioner will determine whether the claimant’s impairment

meets or equals any of the listed impairments described in the regulations. A claimant who meets

one of the listings is disabled. See Id. at § (d).

At step four, if the claimant’s impairment neither meets nor equals one of the impairments

listed in the regulations, the Commissioner evaluates the claimant’s residual functional capacity

and the physical and mental demands of the claimant’s past relevant work. Id. at § (e). If the

claimant is not able to perform his or her past relevant work, the burden shifts to the

Commissioner at step five to show that the claimant can perform some other work that exists in

significant numbers in the national economy, taking into consideration the claimant’s residual

functional capacity, age, education, and work experience. Id. at § (f); Tackett v. Apfel, 180 F.3d

1094, 1100 (9th Cir. 1999). If the Commissioner finds the claimant is unable to perform other

work, then the claimant is found disabled.

V. SUMMARY OF THE RECORD

 Plaintiff was forty-four (44) years old on the alleged onset date and fifty-two (52) years

old at the time the ALJ issued the most recent decision. (Tr. 74, 498-504). Plaintiff has a high

school education. (Tr. 78-83). Plaintiff has worked as a customer service representative,

mortgage loan officer, mortgage manager, instructor, and clergy member. (Tr. 92-97, 555-57). 

The evidence relevant to Plaintiff’s allegations of disability is incorporated in the discussion. 

VI. THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful

activity since the onset of his alleged disability. (Tr. 504). At step two, the ALJ determined that

Plaintiff’s fibromyalgia is a severe impairment. Id. At step three, the ALJ determined that

Plaintiff’s sufficiently severe impairments did not meet or equal any of the impairment listings

under the federal regulations. Id. At step four, the ALJ evaluated Plaintiff’s RFC and

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determined that he could perform a full range of light work, including his past relevant work. Id.

The ALJ therefore concluded that Plaintiff was not disabled and ended his analysis at step four. 

VII. DISCUSSION

The parties agree that the ALJ erred: 1) by adjudicating a longer period of time than was

properly before him, and 2) in his consideration of medical opinions, Plaintiff’s credibility, and

lay evidence. The Commissioner also determined that the ALJ erred in his assessment of the

severity of Plaintiff’s mental impairments. The parties disagree, however, with whether the

appropriate remedy is to remand the case for further proceedings or for an immediate payment of

benefits. 

The decision whether to remand a case for further proceedings or simply to award

benefits is in the Court’s discretion. Varney v. Secretary of Health and Human Services, 859

F.2d 1396, 1399 (9th Cir. 1988). The Court may direct an award of benefits where the record

has been fully developed and where further administrative proceedings would serve no useful

purpose. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). In determining when

evidence should be credited and an immediate award of benefits directed, the Court applies the

following three-part test: 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. Harmon v. Apfel, 211 F.3d 1172, 1178 (9th

Cir. 2000), citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). The decision to

remand Plaintiff’s case for further proceedings depends on the utility of such proceedings. Id. at

1179. Each element of the Smolen Test will be considered in turn. 

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Part 1: Were there legally sufficient reasons for rejecting such evidence?

A. Medical Testimony

Plaintiff contends that Dr. Mease’s letter finding Plaintiff disabled between December 17,

1997 and January 1, 2000 should be credited as true. The Commissioner concedes the ALJ erred

when he rejected Dr. Mease’s letter without justification. (Dkt. #11 at 8 – Defendant’s

Memorandum Requesting Remand). Nevertheless, the Commissioner contends that the record

contains other, conflicting opinions. (Dkt. #11 at 9). Namely, the Commissioner points to the

following conflicting opinions: Jacqueline Farwell, M.D. (“Dr. Farwell”), a program physician,

opined in September 1998 that Plaintiff had no neurological impairment. (Tr. 191). R. Steven

Singer, M.D. (“Dr. Singer”) opined in March 1999 that Plaintiff’s pain was not in fibromyalgia

tender points. (Tr. 200). And, Dr. Mease had earlier observed that Plaintiff’s tender points were

mild and involved control points. (Tr. 227). 

An ALJ can reject a controverted treating physician’s opinion only if there are specific,

legitimate reasons based on substantial evidence in the record. See Andrews v. Shalala, 53 F.3d

1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). To meet this

burden, the ALJ must set out a detailed and thorough summary of the facts and conflicting

clinical evidence, stating his interpretation thereof, and making findings. Magallanes, 881 F.2d

at 751. “The ALJ must do more than offer his conclusions. He must set forth his own

interpretations and explain why they, rather than the doctors’, are correct.” Embrey v. Bowen,

849 F.2d 418, 421-22 (9th Cir. 1988). Where an ALJ can provide no adequate reasons for

rejecting the treating physician’s opinions, those opinions are credited as a matter of law. Lester

v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)(citations omitted). This Court, however, retains

flexibility in applying ‘credited as true’ theory. See Connett v. Barnhart, 340 F.3d 871, 876 (9th

Cir. 2003). 

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Dr. Mease’s testimony must be credited as true because the ALJ failed to state specific,

legitimate reasons based on substantial evidence in the record to reject his testimony. In a letter

to Plaintiff’s counsel on April 27, 2005, Dr. Mease concluded that, after reviewing his own

records and other selected documents, Plaintiff’s fibromyalgia and chronic fatigue syndrome had

been “active, ongoing and disabling since December 1997.” (Tr. 567-73). Simply put, Plaintiff

was disabled since December 17, 1997. (Tr. 567-73). 

The law is clear in this circuit that the ALJ must defer to the treating doctor’s opinion,

even if controverted by another doctor, unless the ALJ makes findings setting forth specific,

legitimate reasons for rejecting it that are based on substantial evidence in the record. See

Lester, 81 F.3d at 830-31. Here, the ALJ rejected Dr. Mease’s opinion without providing

reasons for doing so. (Tr. 500-01). Furthermore, the medical opinions contradicting Dr.

Mease’s letter are questionable. Dr. Farwell’s finding that Plaintiff had no neurological

impairment is unpersuasive because fibromyalgia is not a neurological disorder. (Dkt. #12 at 4). 

And, while Dr. Singer questioned Plaintiff’s fibromyalgia diagnosis, Dr. Singer is a neurologist,

not a rheumatologist. (Dkt. #12 at 4). Therefore, Dr. Mease’s opinion that Plaintiff was

disabled with fibromyalgia since December 17, 1997 should be credited as true.

B. Plaintiff’s Credibility 

Plaintiff contends that the ALJ both failed to meet his burden for rejecting Plaintiff’s

testimony and “cherry-picked” facts “to construct the illusion of a normal healthy lifestyle.” 

(Dkt. #10 at 10). The Commissioner concedes the ALJ erred by not considering several relevant

factors when he determined Plaintiff’s testimony was not credible. (Dkt. #11 at 11). However,

the Commissioner argues that remand is appropriate so the ALJ can reconsider, among other

things, Plaintiff’s inability to perform basic household chores. (Dkt. #11 at 11). 

Absent evidence of malingering, an ALJ must provide clear and convincing reasons to

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reject a claimant’s testimony. See Verdigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). If

an ALJ finds a claimant to be unreliable, this determination must be supported by substantial

evidence. See Lester, 81 F.3d at 834. Thus, an ALJ must “build an accurate and logical bridge

from the evidence to her conclusions so that the Court may afford the claimant meaningful

review of the SSA’s ultimate findings.” Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003).

“In weighing a claimant’s credibility, the ALJ may consider his reputation for truthfulness,

inconsistencies either in his testimony or between his testimony and his conduct, his daily

activities, his work record, and testimony from physicians and third parties concerning the

nature, severity, and effect of the symptoms of which he complains.” Light v. Social Security

Administration, 119 F.3d 789, 792 (9th Cir. 1997). Finally, a claimant’s testimony may be

credited as true where the ALJ improperly rejects the claimant’s testimony as to his or her

limitations. Lester, 81 F.3d at 834. 

Here, Plaintiff’s testimony must be credited as true because the ALJ failed to provide

convincing reasons to reject Plaintiff’s testimony. The ALJ did clearly list a number of activities

that suggest a “disconnection between [Plaintiff’s] alleged limitations and the level of daily

activities” in which he was engaged. (Tr. 502). These activities include, among others,

Plaintiff’s position as a pastor, his ability to wash dishes, pick up the trash, return phone calls,

and take care of the family’s pets. (Tr. 502). As the Commissioner concedes, however, the ALJ

failed to address several other factors also relevant to Plaintiff’s credibility. (Dkt. #11 at 11). 

These factors include, among others, Plaintiff’s inability to: meet with parishioners for more than

a few hours per week, walk the dogs more than twice a week, walk more than five blocks, sit for

prolonged periods of time, vacuum, garden, or do maintenance. (Tr. 599, 603). 

While the ALJ did provide a number of clear reasons why Plaintiff’s testimony was not

credible, these reasons were not convincing because so many factors relevant to Plaintiff’s

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physical limitations were left out. Therefore, the Commissioner argues that remand is

appropriate to reassess Plaintiff’s credibility. (Dkt. #11 at 11). Remanding this case for

reconsideration of Plaintiff’s credibility would serve little use because the facts in the record have

been fully developed. Moreover, the facts in the record that were omitted from the ALJ’s

decision only add support to Plaintiff’s testimony. Therefore, according to Lester, the

appropriate action is to credit Plaintiff’s testimony as true. See Lester, 81 F.3d at 834.

C. Lay Witness Testimony

Plaintiff argues the ALJ erred by failing to address the credibility of lay witness

testimony. (Dkt. #10 at 11). Plaintiff contends not only that the lay witness statement from Will

O’Keefe (“Mr. O’Keefe”) should be credited as true, but also that Mr. O’Keefe’s statement

supplements Plaintiff’s testimony describing his physical limitations. (Dkt. #12 at 12). The

Commissioner concedes the ALJ erred by not mentioning any of the lay witness statements in his

decision. (Dkt. #11 at 12). Nevertheless, the Commissioner contends that, even if Mr.

O’Keefe’s statement is credited as true, it does not lead to a conclusion that Plaintiff was

disabled from December 17, 1997 to January 1, 2000. (Dkt. #11 at 12). 

Lay testimony as to a claimant’s symptoms is competent evidence that an ALJ must take

into account, unless he or she expressly determines to disregard such testimony and gives reasons

germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511, (9th Cir. 2001). As

mentioned, this Court retains flexibility in applying the ‘credited as true’ theory. See Connett,

340 F.3d at 876. 

There is not enough information to determine whether Mr. O’Keefe’s statement should

be credited as true. The ALJ never mentions Mr. O’Keefe’s statement in his decision. (Tr. 498-

504). Based upon this omission, it is unclear whether the ALJ considered Mr. O’Keefe’s

statement and then disregarded it, or whether the ALJ never considered Mr. O’Keefe’s statement

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at all. Mr. O’Keefe’s written statement is particularly relevant because it addresses Plaintiff’s

symptoms between 1997 and 2000. (Tr. 354). Specifically, Mr. O’Keefe observed that Plaintiff

was “whipped” day-in and day-out from tasks such as picking his wife up from work. (Tr. 354). 

Nevertheless, Mr. O’Keefe’s statement is not dispositive because it merely supplements Dr.

Mease’s testimony that Plaintiff was disabled during the relevant time frame. Thus, even without

Mr. O’Keefe’s statement, there is enough evidence on the record to make a disability

determination.

Part 2: Are there outstanding issues to resolve before a determination of disability can be made? 

There are no outstanding issues to resolve because, considering Plaintiff’s testimony and

Dr. Mease’s letter are to be credited as true, a determination of disability can be made. The

Commissioner concedes that the ALJ’s RFC assessment is flawed and contends that remand is

appropriate to reconsider Plaintiff’s RFC. (Dkt. #11 at 13). Given the testimony to be credited

as true, however, a remand to reconsider Plaintiff’s RFC is unnecessary. First, Dr. Mease’s letter

stating that Plaintiff was disabled from December 17, 1997 to January 1, 2000 should be credited

as true. And second, Plaintiff’s testimony as to his limited physical abilities should be credited as

true. When considering this evidence, in addition to Mrs. Pollard’s testimony that Plaintiff’s

condition was relatively the same from 1997 to the present, there are no outstanding issues left to

resolve. (Tr. 495-504, 616).

The Commissioner contends that, even if the above testimony is being credited as true,

remand is appropriate because there was no hypothetical question posed during the vocational

expert’s testimony. (Dkt. #11 at 13). At step five in a disability determination, the burden shifts

to the Social Security Administration to demonstrate that the claimant is not disabled and that he

or she can engage in some type of substantial gainful activity that exists in “significant numbers”

in the national economy. An ALJ may meet his burden under step five by propounding to a

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vocational expert a hypothetical that is based on medical assumptions supported by substantial

evidence in the record and that reflects all the claimant’s limitations. See Roberts v. Shalala, 66

F.3d 179, 184 (9th Cir. 1995); Magallanes, 881 F.2d at 756. The ALJ’s depiction of the

claimant’s impairments must be “accurate, detailed, and supported by the medical record.” 

Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).

Even though the ALJ did not pose a hypothetical to the vocational expert, the ALJ’s

questions were sufficient enough to allow the vocational expert to make a determination on

Plaintiff’s employability. Mr. Rodriguez, the vocational expert, testified that he was familiar

Plaintiff’s work history. (Tr. 621). Mr. Rodriguez also testified that he was familiar with the

social security rulings that require employees to be on time and work all day in order to qualify

for substantial gainful activity. (Tr. 622). The ALJ then asked Mr. Rodriguez if employers

would tolerate missed work caused by continual flare-ups of fibromyalgia’s symptoms. (Tr.

622). Mr. Rodriguez replied that employers would not tolerate continual absences caused by

Plaintiff’s flare-ups. (Tr. 623). Mr. Rodriguez stated this lack of tolerance applies to both

Plaintiff’s past relevant work and other light sedentary jobs in the national economy. (Tr. 623-

24). Based upon Mr. Rodriguez’s testimony, it is clear that the ALJ’s questions were sufficient

and Mr. Rodriguez was able to make a determination concerning Plaintiff’s employability. Thus,

even though the ALJ never posed a hypothetical, it is unnecessary to supplement the record with

additional vocational expert testimony.

In light of Mr. Rodriguez’s testimony and that the letter and testimony discussed above

are to be credited as true, there are no outstanding issues that must be resolved before a

determination of disability can be made.

Part 3: Is it clear from the record that the ALJ must find the claimant disabled?

The Court may direct an award of benefits where the record has been fully developed and

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where further administrative proceedings would serve no useful purpose. Swenson, 876 F.2d at

689. Here, remanding this case for a fourth round of administrative proceedings will serve no

useful purpose. The vocational expert’s testimony confirms that Plaintiff can perform neither

past relevant work nor other work in the national economy. Plaintiff was previously determined

to be disabled with fibromyalgia from January 2000 to the present. Because Plaintiff’s symptoms

from December 1997 to the present are relatively unchanged, the record shows that Plaintiff was

disabled with fibromyalgia from December 17, 1997 to January 2000.

VIII. CONCLUSION

The Commissioner’s decision to deny Plaintiff’s application for DIB is not free of legal

error and is not supported by substantial evidence. Accordingly, the undersigned recommends

that the Commissioner’s decision be reversed and the cased be remanded for an award of

benefits. A proposed Order accompanies this Report and Recommendation. 

DATED this 21st day of June, 2006.

AMONICA J. BENTON

United States Magistrate Judge

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