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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

NANCY H. GRAAK,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner

Social Security Administration,

Defendant.

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Case No. CV06-0368-JPD

ORDER

I. INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff Nancy Graak appeals the final decision of the Commissioner of the Social

Security Administration (the “Commissioner”) denying her application for disability insurance

benefits (“DIB”) under Title II of the Social Security Act (the “Act”) after a hearing before an

administrative law judge (“ALJ”). For the reasons set forth below, the Court ORDERS that

the ALJ’s decision be reversed and the case remanded for further administrative proceedings.

II. FACTS AND PROCEDURAL HISTORY

Plaintiff is a 46-year-old woman with a college education. AR 811. She worked

continuously from 1988 until July 2001. AR 71. In her most recent job, plaintiff worked for

approximately eight years as an office assistant for Pierce County. Id. Plaintiff previously

worked in a clerical capacity at an animal shelter for four years. Id. She also worked briefly as

a layout artist for a newspaper. Id. 

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On August 5, 2002, plaintiff applied for DIB. AR 60-62. Plaintiff alleges that she

became unable to work on August 1, 2001, as a result of multiple conditions including chronic

fatigue syndrome (“CFS”), fibromyalgia, chronic sinusitis, hypothyroidism, and depression. 

AR 70. Her application was denied initially and upon reconsideration. AR 31-34, 38-41. 

Plaintiff requested a hearing to appeal the denial of her claim. AR 42.

An ALJ held a hearing to review plaintiff’s application and on March 25, 2005, issued a

decision denying benefits. AR 17-26. Among other things, the ALJ found that plaintiff

retained the residual functional capacity (“RFC”) to perform a “significant range of light

work,” and that there were a “significant number of jobs in the national economy” that plaintiff

could perform, such as work as “a routine office clerk.” AR 26. The ALJ concluded that

plaintiff was not disabled for purposes of the Act. Id. The Appeals Council denied plaintiff’s

request for review, making the ALJ’s March 25, 2005, decision the Commissioner’s final

decision for purposes of judicial review. AR 6-8. Plaintiff timely filed this civil action

appealing the ALJ’s decision. Dkt. No. 1. 

III. JURISDICTION

The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. §

405(g). The parties have consented to have this case heard by the undersigned Magistrate

Judge pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and Local Rule MJR 13. Dkt. No.

10.

IV. STANDARD OF REVIEW

A reviewing court may set aside the Commissioner’s denial of social security benefits

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

in the record as a whole. See 42 U.S.C. 405(g); see, e.g., Smolen v. Chater, 80 F.3d 1273,

1279 (9th Cir. 1996). Substantial evidence is defined as “more than a mere scintilla but less

than a preponderance.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citations

and quotations omitted). It is “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Id. “The ALJ is responsible for determining credibility,

resolving conflicts in medical testimony, and resolving ambiguities.” Andrews v. Shalala, 53

F.3d 1035, 1039 (9th Cir. 1995) (citation omitted). “Where the evidence is susceptible to

more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s

conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citation

omitted).

V. EVALUATING DISABILITY

As the claimant, Ms. Graak bears the burden of proving that she is disabled within the

meaning of the Act. 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). A claimant is disabled only if her impairments are of such severity

that she is not only unable to do her previous work, but cannot, considering her age, education,

and work experience, engage in any other substantial gainful activity existing in the national

economy. See 42 U.S.C. § 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99

(9th Cir. 1999). In addition, a claimant applying for DIB must show that she was covered by

the social security disability insurance program at the time of the injury’s onset or occurrence. 

See 42 U.S.C. §§ 416(i)(3), 423(c)(1); 20 C.F.R. § 404.130(b). 

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

determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §

404.1520. At step 1, the claimant must establish that she is not engaging in any substantial

gainful activity. 20 C.F.R. § 404.1520(b). If the claimant establishes that she has not engaged

in any substantial gainful activity during the relevant time period, the Commissioner proceeds

to step 2. At step 2, the claimant must establish that she has one or more medically severe

impairments, or combination of impairments, that limit her physical or mental ability to do basic

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work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have such impairments, she

is not disabled. Id. If the claimant’s impairment is severe, the Commissioner moves to step 3

to determine whether the impairment meets or equals any of the listed impairments described in

the regulations. 20 C.F.R. § 404.1520(d). A claimant who meets or equals one of the listings

for the requisite twelve-month duration is disabled. Id.

When the claimant’s impairment neither meets nor equals one of the impairments listed

in the regulations, the Commissioner must proceed to step 4 and evaluate the claimant’s RFC. 

20 C.F.R. § 404.1520(e). Here, the Commissioner evaluates the physical and mental demands

of the claimant’s past relevant work to determine whether the claimant can still perform that

work. Id. If the claimant is not able to perform her past relevant work, the burden shifts to the

Commissioner at step 5 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 RFC, age,

education, and work experience. 20 C.F.R. § 404.1520(f); Tackett, 180 F.3d at 1100. If the

Commissioner finds the claimant is unable to perform other work, then the claimant is found

disabled and benefits may be awarded. 

VI. DECISION BELOW

On March 25, 2005, the ALJ issued a decision denying plaintiff’s request for benefits

and made the following findings:

1. The claimant meets the nondisability requirements for a period of

disability and Disability Insurance Benefits set forth in Section 216(i) of

the Social Security Act and is insured for benefits through the date of

this decision.

2. The claimant has not engaged in substantial gainful activity since the

alleged onset of disability. 

3. The claimant’s dysthymia, somatic disorder not otherwise specified, a

personality disorder, musculoskeletal disorder, and chronic fatigue

syndrome/fibromyalgia are considered “severe” based on the

requirements in the Regulations 20 CFR § 404.1520(c).

4. These medically determinable impairments do not meet or medically

equal one of the listed impairments in Appendix 1, Subpart P,

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Regulation No. 4.

5. The undersigned finds the claimant’s allegations regarding her

limitations are not totally credible for the reasons set forth in the body of

the decision.

6. The claimant has the following residual functional capacity: she has the

ability to lift and carry 20 pounds occasionally and 10 pounds

frequently. She can sit, stand, and walk for a total of 6 hours in an 8-

hour workday and sit for 6 hours in a workday. She would have no

limitations with regard to pushing or pulling. The claimant has the

ability to understand, remember, and carry out simple instructions; make

simple work-related decisions necessary to function in unskilled work;

respond appropriately to supervisors, coworkers, and usual work

situations and deal with changes in a routine work setting.

7. The claimant is unable to perform any of her past relevant work (20

CFR § 404.1565).

8. The claimant is a “younger individual” (20 CFR § 404.1563).

9. The claimant has “more than a high school (or high school equivalent)

education” (20 CFR § 404.1564).

10. The claimant has no transferable skills from any past relevant work

and/or transferability of skills is not an issue in this case (20 CFR §

404.1568).

11. The claimant has the residual functional capacity to perform a

significant range of light work (20 CFR § 404.1567).

12. Although the claimant’s exertional limitations do not allow her to

perform the full range of light work, using the Medical-Vocational Rule

202.21 as a framework for decision-making, there are a significant

number of jobs in the national economy that she could perform. 

Examples of such jobs include work as a routine office clerk (DOT

#209.562-010).

13. The claimant was not under a “disability,” as defined in the Social

Security Act, at any time through the date of this decision (20 CFR §

404.1520(g)).

AR 25-26.

VII. ISSUES ON APPEAL

Plaintiff raises the following issues on appeal:

A. Did the ALJ erroneously reject or ignore the supportive opinions of

plaintiff’s treating doctors?

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B. Did the ALJ improperly determine that plaintiff was not credible?

C. Did the ALJ give a hypothetical to the vocational expert that failed to

accurately reflect all of plaintiff’s limitations?

D. Did the ALJ err by rejecting testimony of lay witnesses? 

VIII. DISCUSSION

A. The ALJ Erred By Rejecting or Ignoring the Opinions of Plaintiff’s

Treating Physicians Without Giving Specific and Legitimate Reasons

for Doing So.

Plaintiff argues that the ALJ erred by failing to accord proper weight to the favorable

opinions of her treating doctors. Dkt. No. 11 at 6. The Commissioner asserts that the ALJ

gave specific and legitimate reasons for rejecting certain opinions and, therefore, that the

ALJ’s treatment of the medical testimony was adequate. Dkt. No. 13 at 7.

Because treating physicians are “employed to cure and [have] a greater opportunity to

know and observe the patient as an individual,” their opinions are given greater weight than

the opinions of other physicians. Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989)

(citations omitted). A treating physician’s opinion, however, is not necessarily conclusive as

to either a physical condition or the ultimate issue of disability; and an ALJ may disregard a 

treating physician’s opinion whether or not that opinion is contradicted by other medical

evidence. Id. at 761-62 & n.7; Magallanes, 881 F.2d at 751. 

A treating physician’s opinion that has not been contradicted by another physician,

however, may be rejected only for “clear and convincing” reasons supported by substantial

evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). This requires

that the ALJ provide a “detailed and thorough summary of the facts and conflicting clinical

evidence” and explain his interpretations and findings based thereon. Id. at 725 (citation

omitted). Mere conclusions are not enough. Id. Similarly, an ALJ must defer to a treating

physician’s opinion, even when controverted by other medical opinions, unless the ALJ

provides “specific, legitimate reasons for doing so that are based on substantial evidence in

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The ALJ’s opinion makes no mention of Dr. Ranheim’s evaluations of plaintiff from

2002. AR 21.

ORDER

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the record.” See Andrews, 53 F.3d at 1041 (citations omitted), see also Magallanes, 881 F.3d

at 751. 

1. Dr. Ranheim’s Opinion

Dr. Phillip Ranheim is one of plaintiff’s treating physicians. Dr. Ranheim first saw

plaintiff in 2002 and treated her regularly through March 2003.1 AR 464-69, 506-07, 598-99. 

During that time period, he noted that plaintiff suffered from multiple illnesses and conditions

including: chronic illness associated with exposure to molds, “ongoing chronic fatigue

syndrome,” nutritional deficiencies, chronic sinusitis, fibromyalgia, and depression. Id. Dr.

Ranheim saw plaintiff in December 2004 to examine her in connection with her DIB

application. Upon the request of plaintiff’s attorney, Dr. Ranheim wrote a letter in which he

opined that plaintiff “is unable to perform usual work-related activities and should qualify for

Social Security disability benefits based upon fibromyalgia syndrome and CFS.” AR 604. 

The ALJ did not credit Dr. Ranheim’s opinion regarding plaintiff’s disability. AR 21. 

He determined that Dr. Ranheim’s opinion was entitled to “less weight” because the doctor

had “given up his non-biased position” and was acting as an “advocate” for plaintiff. Id. 

This conclusion was apparently based upon the letter Dr. Ranheim had written to plaintiff’s

attorney. The ALJ also concluded that Dr. Ranheim based his opinion on plaintiff’s selfreported symptoms from one appointment, which was scheduled for “litigation purposes.” Id. 

 Further, the ALJ noted that the limitations Dr. Ranheim assessed were not consistent with his

treatment notes. 

Dr. Ranheim was plaintiff’s treating physician and his opinion, regarding the extent of

plaintiff’s disability, was contradicted by other medical-expert testimony. See, e.g., AR 488-

93. Thus, the ALJ was obligated to either credit Dr. Ranheim’s opinions, or to provide

specific and legitimate reasons, based on substantial evidence in the record, for rejecting

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them. For the reasons set forth below, the ALJ failed to meet this standard. 

a. The ALJ’s determination, that Dr. Ranheim was

acting as an advocate for the plaintiff, is not

supported by the record.

 The ALJ’s opinion and the Commissioner’s brief both cite, Matney v. Sullivan, 981

F.2d 1016, 1019-20 (9th Cir. 1992), in support of the proposition that ALJs are entitled to

reject doctors’ opinions that cross the line into the realm of advocacy. AR 21; Dkt. No. 13 at

8. The doctor’s opinion at issue in Matney is distinguishable from that of Dr. Ranheim. In

Matney, the doctor had examined the claimant one time and had “agreed to become an

advocate and assist in presenting a meaningful petition for Social Security benefits.” Matney,

981 F.2d at 1019 (emphasis added). In contrast, Dr. Ranheim treated plaintiff several times

over the course of approximately two and a half years. AR 468, 603. Additionally, there is

no evidence that Dr. Ranheim “agreed” to act as an advocate for plaintiff. To the contrary,

Dr. Ranheim’s letter contains numerous observations that tend to indicate the neutrality of his

opinion. AR 603-04 (“[plaintiff] is able to sit for prolonged periods of time,” “[plaintiff’s]

ability to hear and speak is fair,” “[plaintiff] is able to reason, make decisions, perform

routine tasks, and interact with others,” “[o]n the other hand, [plaintiff’s] ability to sustain

concentration she reports as poor”). 

“An examining doctor’s findings are entitled to no less weight when the examination

is procured by the claimant than when it is obtained by the Commissioner . . . [t]he Secretary

may not assume that doctors routinely lie in order to help their patients collect disability

benefits.” Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (citation and quotation omitted);

see also Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (noting that source of

patient’s referral was improper basis for assessing doctor’s credibility, where doctor’s opinion

was based on an examination of claimant, where there was no inconsistency between his report

and his treating notes, and where there was no evidence of any actual improprieties or evidence

that doctor was attempting to mislead the ALJ). Dr. Ranheim wrote a letter summarizing his

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findings and concluded that plaintiff was unable to work. AR 603. There is nothing

improper about a doctor providing a letter documenting and summarizing a patient’s medical

status. In short, the record does not demonstrate any bias on the part of Dr. Ranheim and the

ALJ is not permitted to infer that such bias existed simply because the doctor’s opinion was

procured by plaintiff’s attorney. Nguyen, 100 F.3d at 1465. The asserted advocacy is not a

legitimate basis to reject or discredit Dr. Ranheim’s opinion.

b. The ALJ mischaracterized Dr. Ranheim’s basis

for his opinion regarding plaintiff’s disability.

The ALJ also noted that Dr. Ranheim “based his opinion on [plaintiff’s] self-report

during this one visit in December 2004, which was scheduled for litigation purposes.” AR

21. This conclusion is not supported by the record. Although Dr. Ranheim undoubtedly did

rely on plaintiff’s self-reporting of her symptoms, he also conducted a physical examination. 

AR 604. For example, Dr. Ranheim wrote that “[o]n examination, the patient was alert” and

that “[t]here were 12 tender points noticed over the typical . . . distribution.” Id. 

Additionally, Dr. Ranheim had treated and examined the plaintiff on several prior occasions

and, although not explicitly stated, it is reasonable to assume that he also relied, at least in

part, on these previous assessments in rendering his opinion. See Lester, 81 F.3d at 833

(noting that the “treating physician’s continuing relationship with the claimant makes him

especially qualified to . . . form an overall conclusion as to functional capacities and

limitations, as well as to prescribe or approve the overall course of treatment”). 

The Court also notes that it is common and accepted practice for a doctor to base his

diagnosis of CFS on the self-reported symptoms of his patient and the ruling out of other

possible illnesses. See Reddick, 157 F.3d at 726 (noting that the Centers for Disease Control

defines CFS as “self-reported persistent or relapsing fatigue lasting six or more consecutive

months” and that “the presence of persistent fatigue is necessarily self-reported”) (emphasis

added). Therefore, the ALJ is not permitted to reject the opinion of Dr. Ranheim on the

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premise that it was based in-part on plaintiff’s subjective complaints. 

c. The ALJ’s conclusion that Dr. Ranheim’s

assessment of plaintiff was not consistent with

his treatment notes failed to take into account the

waxing and waning nature of CFS.

The ALJ stated that “the limitations [Dr. Ranheim] imposed are not consistent with his

treatment notes.” AR 21. In support of this determination, the ALJ cites three examples of

plaintiff’s relatively favorable reports to Dr. Ranheim. Id. The ALJ does not specifically

explain how these notations undermined Dr. Ranheim’s opinion that plaintiff was unable to

perform “usual work-related activities.” AR 64. When read in its entirety, Dr. Ranheim’s

opinion does not suggest that plaintiff is entirely unable to function; rather, he notes that

plaintiff’s symptoms render her unable to function productively for more than a “severely

limited” period of time. Id. This inability to function on a sustained basis is consistent with a

diagnosis of CFS. See Reddick, 157 F.3d at 722 (holding that periods of sporadic activities

punctuated with a need to rest are not inconsistent with CFS, which is characterized by

periods of exacerbation and remission) (internal citation omitted); see also Fair v. Bowen,

885 F.2d 597, 603 (9th Cir. 1989) (noting that “[m]any home activities are not easily

transferable to . . . the more grueling environment of the workplace, where it might be

impossible to periodically rest or take medication”). 

The ALJ’s reasons for rejecting the opinion of Dr. Ranheim are not based on

legitimate reasons supported by the record. On remand, the ALJ is directed to evaluate the

testimony of Dr. Ranheim.

2. Dr. Preston’s Opinion

Myra Preston, Ph.D., evaluated plaintiff in December 2001 and administered a

quantitative electroencephalogram (“QEEG”), a tool for mapping and analyzing brainwave

activity. AR 386-89. She opined that the results of the QEEG correlated with the CFS

symptoms that plaintiff reported. AR 387-88. She also opined that “Ms. Graak is not capable

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of performing the duties essential to the functions of her occupation. She is not suitable to be

trained for other duties due to her cognitive dysfunction.” AR 388. 

The ALJ gave “no significant weight” to Dr. Preston’s findings. AR 19. He rejected

the results of Dr. Preston’s testing because “[the QEEG ] has not been commonly recognized

as a diagnostic tool throughout the medical community to evaluate cognitive responses related

to chronic fatigue (SSR 99-2p), nor has the American College of Rheumatology (ACR)

reported the use of this as a measure to evaluate cognitive response in connection with

fibromyalgia.” AR 19.

Plaintiff argues that the ALJ did not use the proper legal test for accepting or rejecting

diagnostic testing for CFS, and further, that the QEEG test meets the standard promulgated by

the Social Security Administration (“SSA”) for diagnosing CFS. Dkt. No. 11 at 8-9. The

Commissioner contends that the ALJ’s rejection of Dr. Preston’s evidence was proper because

the opinion was based on unproven methods. Dkt. No. 13 at 8. 

Social Security Ruling 99-2p lists several medical signs and laboratory findings that

may be used to establish the existence of a medically determinable impairment in individuals

with CFS. SSR 99-2p at *3. It states that: “[t]he existence of CFS may be documented with

medical signs or laboratory findings other than those listed [here], provided that such

documentation is consistent with medically accepted clinical practice and is consistent with

the other evidence in the case record.” Id. at *2-3 (emphasis added). Thus, the SSA does not

mandate that a diagnostic tool for CFS be “commonly recognized . . . throughout the medical

community.” The SSA only requires that the medical findings be “consistent with medically

accepted clinical practice” and “consistent with the other evidence in the case record.” Id. 

Dr. Preston was a treating physician and her opinions were contradicted by other

medical-expert testimony. See, e.g., AR 488-93. The ALJ was therefore obligated to either

credit Dr. Preston’s opinions, or to provide specific and legitimate reasons, for rejecting them. 

The ALJ did not meet this burden. An ALJ is required to do more than make conclusory

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statements. See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). The ALJ “must set

forth his own interpretations and explain why they, rather than the doctors’, are correct.” Id.

at 421-22. Here, the ALJ reached a conclusory determination that Dr. Preston’s opinion,

supported by a QEEG analysis, was not entitled to significant weight. Dr. Preston is a

neurophysiologist with specialties in neuroscience and physiological psychology. AR 386. 

The ALJ was supplied with a medical-literature review that documents support for the use of

QEEG evaluations. AR 605-83. The ALJ did not cite any authority or make any findings to

explain why Dr. Preston’s evaluation of the plaintiff was not consistent with medically

accepted clinical practice. Additionally, because the ALJ did not believe that the QEEG had

been commonly accepted by the medical community, he rejected Dr. Preston’s entire opinion

and evaluation. However, Dr. Preston’s opinions were not confined to merely reporting the

results of the QEEG analysis. Instead, she also reported that: 

[T]he findings . . . clinically correlate with [plaintiff’s] responses to the Multiple

Symptom Questionnaire. These symptoms include poor memory, confusion,

concentration difficulties, slow processing speed, difficulty in making decisions,

trouble with calculating, wide mood swings, depression, physical fatigue and

sluggishness, motivational fatigue, restlessness, irregular heartbeat, rapid

heartbeat and other autonomic dysfunction, sleep disorder and immune

dysfunction.

AR 388. 

On remand, the ALJ is directed to evaluate Dr. Preston’s opinion in its entirety, and to

re-evaluate Dr. Preston’s testimony regarding the QEEG test in light of the “medically

accepted clinical practice” standard outlined in SSR 99-2p. 

3. Dr. Lidren

Donna Lidren, Ph.D., was plaintiff’s treating psychologist. AR 391-407. In August

2001, Dr. Lidren noted that plaintiff suffered from fibromyalgia and CFS, and that plaintiff

met the criteria for major depression, dysthymia, and generalized anxiety disorder. AR 404. 

Dr. Lidren also opined that plaintiff “may no longer be able to maintain work on a consistent

level.” Id. The ALJ’s decision either ignored, implicitly rejected, or failed to consider Dr.

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Lidren’s testimony. On remand, the ALJ should properly evaluate Dr. Lidren’s opinions.

4. Dr. Ahmad

The administrative record includes medical records from Dr. Naila Ahmad, who

examined plaintiff in January 2005. AR 766. She conducted a physical examination of

plaintiff and noted that she had a number of symptoms consistent with CFS, including “18 of

18 tender points.” AR 767. Plaintiff argues that the ALJ ignored the testimony of Dr. Ahmad

without analysis. Dkt. 11 at 9. The Commissioner argues that the ALJ had no obligation to

reject Dr. Ahmad’s testimony because she “did not find disability and was not listed as a

doctor.” Dkt. 13 at 8.

Dr. Ahmad’s opinion, at least with regard to the tender points, appears to be

uncontradicted. As with treating physicians, the uncontradicted opinions of an examining

physician may not be rejected without clear and convincing reasons. Lester, 81 F.3d at 830. 

It is true that plaintiff did not list Dr. Ahmad as a doctor in the “Disability Report” form that

she initially filled out for the SSA. This is likely because that form was prepared in 2002, and

plaintiff’s appointment with Dr. Ahmad was not until 2005. AR 69-95, 78. However, the

“List of Exhibits” in the table of contents of the administrative record contains the heading,

“Medical report from Naila Ahmad, MD dated 1/18/05,” and lists the correct corresponding

page numbers. AR 4. Dr. Ahmad’s treatment notes show that she conducted an interview

with plaintiff, performed a physical examination, and rendered an assessment. AR 766-68. 

Dr. Ahmad’s opinion was part of the record before the ALJ. AR 766-68. Therefore, the ALJ

was obligated to consider that testimony. It was erroneous for the ALJ to simply ignore the

examining doctor’s opinion without mention. On remand, the ALJ should properly evaluate

the testimony of Dr. Ahmad.

B. The ALJ Improperly Rejected Plaintiff’s Own Testimony as Being Not

Credible.

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The ALJ determined that plaintiff was “not entirely credible on this record in that

there are no objective findings to support the degree of limitations she has alleged.” AR 23. 

He also noted that plaintiff stated that she suffered from migraines but that her medical

records did not reflect any “workup” for that condition. Id. Lastly, the ALJ cited examples

from the record of activities he found inconsistent with the level of impairment that plaintiff

alleged. Id. Plaintiff argues that the ALJ erred by rejecting her testimony as not credible

without making specific findings about what testimony he deemed to have undermined her

credibility. Dkt. No. 11 at 10. Plaintiff further argues that the ALJ arbitrarily discredited her

testimony about pain and related symptoms. Id. The Commissioner contends that the ALJ

gave clear and convincing reasons for rejecting plaintiff’s testimony. Dkt. No. 13 at 6.

When evaluating a claimant’s credibility, the ALJ must specifically identify what

testimony is not credible and what evidence undermines the claimant’s complaints; general

findings are insufficient. Reddick, 157 F.3d at 722 (citations omitted). The ALJ may consider

“ordinary techniques of credibility evaluation” including a reputation for truthfulness,

inconsistencies in testimony or between testimony and conduct, daily activities, work record,

and testimony from physicians and third parties concerning the nature, severity, and effect of

the symptoms of which claimant complains. Smolen, 80 F.3d at 1284 (internal citations

omitted). 

1. The ALJ improperly discredited plaintiff’s subjective

symptom testimony.

According to the Commissioner’s regulations, a determination of whether to accept a

claimant’s subjective symptom testimony requires a two-step analysis. 20 C.F.R. § 404.1529;

Smolen, 80 F.3d at 1281; SSR 96-7p. First, the ALJ must determine whether there is a

medically determinable impairment that reasonably could be expected to cause the claimant’s

symptoms. 20 C.F.R. § 404.1529(b); Smolen, 80 F.3d at 1281-2; SSR 96-7p. Once a claimant

produces medical evidence of an underlying impairment, the ALJ may not discredit the

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claimant’s testimony as to the severity of symptoms solely because they are unsupported by

objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc);

Reddick, 157 F.3d 715, 722 (9th Cir. 1998) (internal citations omitted). Absent affirmative

evidence showing that the claimant is malingering, the ALJ must provide “clear and

convincing” reasons for rejecting the claimant’s testimony. Reddick, 157 F.3d at 722 (citation

omitted). Here, there are no allegations that plaintiff was malingering, so the ALJ was

required to provide clear and convincing reasons for rejecting her testimony. The ALJ,

however, failed to meet this burden. 

As stated above, once a claimant produces medical evidence of an underlying

impairment, the ALJ may not discredit a claimant’s testimony as to the severity of her

symptoms solely because they are unsupported by objective medical evidence. That is

precisely what occurred in this case. It is undisputed that plaintiff produced evidence of an

underlying impairment. AR 25, findings 3-4. The ALJ found that plaintiff suffered from

multiple medically determinable impairments, including CFS and fibromyalgia. Id. The

ALJ’s belief that there was a lack of objective evidence was an improper basis for discrediting

plaintiff’s testimony regarding the severity of her symptoms and the degree to which she was

limited by them.

2. The record shows that plaintiff reported to her doctors

that she suffered from migraines on several occasions.

The ALJ also stated that plaintiff testified that she suffers from headaches and takes

medicine for migraines but that there was “no record of workup for this condition.” AR 23. 

Although it is not clear precisely what the ALJ meant by the term “workup,” the plaintiff’s

medical records demonstrate that she reported suffering from migraines and headaches

numerous times. AR 237, 241, 349, 466, 468-69, 565. On at least one occasion, plaintiff told

her doctor that she uses “XS tylenol” when she gets a migraine, and then takes “Imitrex” if it

persists. AR 565. Therefore, plaintiff’s testimony regarding the headaches and migraines is

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supported by the medical evidence in the record. The ALJ erred by discrediting plaintiff’s

credibility on this basis.

3. The fact that plaintiff may have engaged in sporadic,

increased levels of activity is not necessarily inconsistent

with the nature of her alleged disability. 

The ALJ noted that, on occasion, plaintiff had engaged in activities that were

inconsistent with the limitations she had otherwise described. AR 23. It appears that the ALJ

based this observation in large part on a report, dated February 2, 2004, from one of

plaintiff’s doctors, which included a note that plaintiff had been taking care of her

stepchildren and had joined several craft and activity groups with her mother-in-law. AR

562. However, the only evidence the ALJ cited as proof of plaintiff’s heightened level of

activity, out of a record more than 800 pages, was a single report, based on a single

conversation that plaintiff had during a medical appointment. AR 23, 562. Further, the ALJ

does not point out that, during that same conversation, plaintiff stated that she felt “very

tired,” and that caring for her stepchildren had “been difficult but she is managing.” AR 562. 

Additionally, plaintiff stated only that she had “joined” the activity groups; the ALJ cites no

follow-up conversation to suggest plaintiff actually participated in these groups for any

significant period of time. In fact, plaintiff’s mother-in-law, Dena Graak, wrote a letter in the

record in which she stated “[w]e tried a senior exercise class when I first moved here, but

[plaintiff] could not tolerate it at all.” AR 152. Thus, the record does not support the ALJ’s

conclusion that plaintiff engaged in activities that were inconsistent with the symptoms she

reported.

Moreover, assuming that plaintiff did occasionally engage in the activities described,

such behavior is not inconsistent with the nature of plaintiff’s alleged disabilities, particularly

CFS. Plaintiff testified, and her medical records indicate, that some days are much worse for

her than others. AR 819-26, 464-69. This testimony is consistent with the characteristics of

CFS. See SSR 99-2p at *1 (defining CFS as “a systemic disorder consisting of a complex of

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symptoms that may vary in incidence, duration, and severity”); see also Reddick, 157 F.3d at

722. The fact that plaintiff occasionally has the capacity to watch her stepchildren, or even to

join an activity group, does not mean she is capable of consistently performing in a stressful

and structured work environment. 20 C.F.R. § 404, Subpt. P., App. 2, § 200.00(c) (defining

RFC as “the maximum degree to which the individual retains the capacity for sustained . . .

[work]”) (emphasis added); see also Lester, 81 F.3d at 833 (noting that “[o]ccasional

symptom-free periods are not inconsistent with disability”). 

The ALJ’s justifications for rejecting plaintiff’s testimony were insufficient. On

remand, the ALJ should properly credit plaintiff’s testimony, or provide clear and convincing

reasons for rejecting it.

C. The ALJ Failed to Give an Accurate Hypothetical to the Vocational

Expert.

Plaintiff argues that the ALJ committed reversible error by failing to submit a

hypothetical to the vocational expert (“VE”) that accurately reflected all of plaintiff’s

limitations. Dkt. No. 11 at 12. Additionally, plaintiff argues that the ALJ’s opinion

mischaracterizes the VE’s testimony. Dkt. No. 14 at 7. In her brief, the Commissioner does

not address the deficiencies with the hypothetical and the VE testimony raised by plaintiff. 

After a claimant has demonstrated that she has a severe impairment that prevents her

from doing her past relevant work, she has made a prima facie showing of disability. Tackett,

180 F.3d at 1100-01. The burden then shifts to the Commissioner at step 5 to demonstrate

that, in light of the claimant’s RFC, age, education, and work experience, she can perform

other types of work that exist in “significant numbers” in the national economy. Id.; 20 C.F.R.

§ 404.1560(b)(3). The Commissioner may meet this burden by referencing the MedicalVocational Guidelines (or the “Grids”), a matrix system that provides uniform conclusions

about the availability of work for similarly situated persons, in light of their physical limitations. 

See 20 C.F.R. Part 404, Subpt. P, App. 2.

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However, since the Grids are based solely on strength and exertional factors, they may

not be used for a claimant who suffers from non-exertional limitations. See 20 C.F.R. Part

404, Subpt. P, App. 2, § 200.00(b). When the Grids fail to describe accurately a claimant’s

limitations, as they did in this case, the ALJ should use them only as a framework and should

solicit the testimony of a VE. Reddick, 157 F.3d at 729; Tackett, 180 F.3d at 1101. The ALJ

must provide the VE with an accurate and detailed description of all the claimant’s physical

and mental limitations that are supported by the record. Thomas, 278 F.3d. at 956; Tackett,

180 F.3d at 1101. 

In this case, the ALJ properly employed the assistance of a VE at plaintiff’s hearing. 

However, the ALJ’s inquiries to the VE yielded practically indecipherable results. AR 827-33. 

There are two major problems with the VE-testimony on record. First, the ALJ never actually

posed a hypothetical to the VE, complete or otherwise. When plaintiff’s attorney asked the

ALJ, “are you going to ask [the VE] a, a hypothetical?,” the ALJ simply responded, “I don’t

have any questions. If you want to ask some more questions, you’re welcome to. This is, this

is your case.” AR 831. Plaintiff’s attorney then proceeded to ask the VE whether plaintiff was

capable of performing any of her previous jobs, to which the VE responded “I do not believe

she could return to any of those.” AR 832. Thus, a hypothetical was never submitted to the

ALJ. 

This leads to the second problem regarding the VE’s testimony. As mentioned, the VE

testified that she believed that plaintiff could not return to any of her previously held jobs,

which included work as a routine office clerk. AR 832, 71. Yet, the ALJ concluded that

plaintiff retained the RFC to work as “a routine office clerk.” AR 26, findings 7, 11, 12. The

ALJ did not address the inconsistency between these findings and the VE’s testimony. To the

contrary, the ALJ’s opinion stated:

The vocational expert agreed that the claimant would be able to work as a

routine office clerk (DOT #209.562-010) performed at the light level with an

SVP 3. This level is borderline unskilled work. The vocational expert testified

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that an individual with the claimant’s age, education, past relevant work

experience and residual functional capacity as determined could perform this

work with significant numbers of positions in the national economy. I accept

the testimony of the vocational expert.

AR 25. 

The record shows that the VE gave no such testimony. It appears that the ALJ relied

heavily on a “Vocational Decision Worksheet” signed and prepared by a disability adjudicator,

not a VE. AR 139. This bare-bones form contains no indication as to whether all of plaintiff’s

physical and mental limitations were considered in arriving at the determination that plaintiff is

capable of doing other light, unskilled work. Id. It is clear from the transcript of the hearing

that the VE was not given a hypothetical and that what little testimony the VE did give was

misinterpreted and mischaracterized in the ALJ’s opinion. On remand the ALJ is directed to

present the VE with a hypothetical that fairly incorporates all of plaintiff’s functional

limitations that are supported by the record.

D. The ALJ Did Not Erroneously Reject the Testimony of Plaintiff’s Lay

Witnesses But Should Consider the Testimony of Plaintiff’s Mother-inlaw on Remand. 

The record before the ALJ included testimony from three lay witnesses. William

Graak, plaintiff’s husband, and Melanie Stillman, plaintiff’s friend and “carpooler,” each

filled out a “Daily Activities Questionnaire” documenting their impressions of plaintiff’s dayto-day activities. AR 100-09. Dena Graak, plaintiff’s mother-in-law, also wrote a letter in

which she described her interactions and experiences with plaintiff. AR 152. Plaintiff argues

that the ALJ rejected the lay-witness testimony without reason. Dkt. No. 11 at 13. The

Commissioner argues that the ALJ did not reject the lay witnesses’ statements, rather, he

noted them and gave them some weight, except where they were inconsistent with other

evidence in the record. Dkt. No. 13 at 9.

In order to determine whether a claimant has an impairment, an ALJ may consider

lay-witness sources, such as testimony by friends and family members. 20 C.F.R. §

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404.1513(d)(4). Lay-witness testimony as to a claimant’s symptoms or as to how an

impairment affects claimant’s ability to work is competent evidence. 20 C.F.R. §

404.1513(e); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (citations omitted). 

Therefore, such testimony cannot be disregarded without comment. Dodrill v. Shalala, 12

F.3d 915, 918-19 (9th Cir. 1993). If an ALJ wishes to discount the testimony of a lay

witness, he must provide reasons germane to each witness and may not categorically discredit

the testimony. Lewis, 236 F.3d at 511. Identifying inconsistencies between such statements

and the record as a whole is sufficient. Id. 

The ALJ acknowledged the testimony of Mr. Graak and Ms. Stillman. AR 23. He

gave their testimony “some weight, but only to the extent that they support the findings

established in this decision.” Id. The ALJ then noted that the “[lay-witness] statements are

inconsistent with the claimant’s reports to various treating sources.” Id. He gave examples of

what he took to be inconsistencies between the plaintiff’s testimony and that of the lay

witnesses. Id. However, in light of the errors identified above regarding the evaluation of

medical testimony, the ALJ is directed to reconsider these lay-witness statements. Moreover,

the ALJ did not mention the letter from Dena Graak in his opinion. On remand, the ALJ

should also consider the testimony of Ms. Dena Graak, or give germane reasons for

disregarding it. 

IX. CONCLUSION

For the reasons set forth in this order, this case is remanded for further administrative

proceedings not inconsistent with this opinion. Upon remand the ALJ shall correct the

deficiencies identified above, with emphasis on the following: (1) reevaluate the medical

opinions of Dr. Ranheim and Dr. Preston; (2) evaluate the medical opinions of Dr. Lidren and

Dr. Ahmad; (3) reevaluate the adverse-credibility determination of plaintiff; (4) provide the VE

with a hypothetical that accurately reflects all of plaintiff’s limitations; and (5) address the laywitness testimony. 

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DATED this 6th day of September, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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