1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 Pursuant to the consent of the parties, this case proceeds before the undersigned in

accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and Local Rule MJR 13. 

MEMORANDUM OPINION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ANITA BLACKWEASEL, )

)

Plaintiff, ) CASE NO. C05-2054-MJB1

)

v. ) MEMORANDUM OPINION

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

____________________________________)

Plaintiff Anita Blackweasel appeals to the District Court from a final decision of the

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

application for Supplemental Security Income under Title XVI of the Social Security Act. For

the reasons set forth below, the Court REVERSES the Commissioner’s decision and

REMANDS for further proceedings.

I. PROCEDURAL HISTORY

On October 1, 2002, Plaintiff protectively filed an application for Supplemental Security

Income (“SSI”). (Tr. 63-67.) Plaintiff alleged disability since December 31, 1993 due to back

problems and arthritis. (Tr. 64, 74.) On March 5, 2003, Plaintiff filed a Reconsideration

Disability Report additionally alleging depression. (Tr. 110.) The claim was denied initially and

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 1 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 Plaintiff provided to the Appeals Council additional evidence consisting of an abstract on

the interpretation of Waddell’s signs. (Tr. 8.)

MEMORANDUM OPINION

PAGE - 2

upon reconsideration. (Tr. 30-33, 40-42.) A hearing was held before Administrative Law Judge

(“ALJ”) M. J. Adams on March 31, 2005. (Tr. 443-58.) Plaintiff was represented by counsel

and testified at the hearing. (Id.) Vocational expert Michael Swanson also testified at the

hearing. (Id.) On June 16, 2005, the ALJ issued a decision finding that Plaintiff was not

disabled. (Tr. 17.) The Appeals Council denied Plaintiff’s request for review2

, making the ALJ’s

decision the final decision. (Tr. 5.) Plaintiff timely filed her appeal with this Court. (Dkt. #1.)

II. THE PARTIES’ POSITIONS

Plaintiff requests that the Court reverse the ALJ’s decision and award benefits. 

(Dkt. #11.) Plaintiff argues that the ALJ erred in (1) finding her pain syndrome is a not a severe

impairment, (2) failing to provide specific and legitimate reasons supported by the record for

rejecting the opinions of three examining doctors, (3) rejecting her subjective testimony, and (4)

ignoring relevant vocational expert testimony. (Dkt. #11.) The Commissioner argues that the

ALJ’s decision should be affirmed because it was supported by substantial evidence. (Dkt. #13).

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). The ALJ is responsible for determining credibility, resolving

conflicts in medical testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

1039 (9th Cir. 1995). Where the evidence is susceptible to more than one rational interpretation,

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 2 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 3

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 she 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 Administration 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 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 she has one or more medically severe impairments or a combination

of impairments. If the claimant does not have a “severe” impairment, she is not disabled. Id. at §

(c). At step three, the Commissioner determines 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 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,

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 3 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 4

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 EVIDENCE

Plaintiff was last insured for Disability Insurance Benefits on December 31, 1982. 

(Tr. 68.) Plaintiff is currently 46 years old. (Tr. 64.) Plaintiff has a General Equivalency

Diploma. (Tr. 80.) Plaintiff has worked as a cashier, housekeeper, cook, meat trimmer, forest

fighter camp crew member, laundry worker, telemarketer, day laborer, fisher person, assistant

librarian, and substitute teacher. (Tr. 75, 88-94.)

Because the parties have adequately summarized the record in their briefing, and because

much of the record evidence is not relevant given the scope of the issues, this Court will not

summarize the record here. Relevant evidence will be referenced as appropriate in the

discussion.

VI. THE ALJ’S DECISION

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

activity at any time since the alleged onset of disability. (Tr. 18, 26.) At step two, the ALJ

found that Plaintiff has depression and degenerative disc disease of the lumbar spine, and that

they are severe impairments. (Tr. 21, 26.) The ALJ further found that Plaintiff’s bilateral knee

osteoarthritis, asthma, pain disorder with medical and psychological factors, alcohol and heroin

abuse, and metacarpal fracture are not severe impairments, and that she has no medically

determinable impairment related to her complaints of hip and hand pain. (Id.) The ALJ also

found that Plaintiff’s allegations regarding her limitations were not totally credible. (Tr. 23, 26.) 

At step three, the ALJ found that Plaintiff’s medically determinable impairments do not meet or

medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. (Tr.

21-22, 26.)

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 4 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 5

At step four, the ALJ determined that Plaintiff has the residual functional capacity to do

the following: (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2)

stand and/or walk for a total of two hours in an eight-hour workday, and (3) sit for a total of six

hours in an eight-hour workday, provided that she be allowed to alternate between sitting,

standing, and/or walking at thirty minute intervals; (4) occasionally climb stairs, balance, kneel,

crouch, and crawl, and frequently stoop; (5) understand, remember, and carry out simple

instructions, make simple work-related decisions, respond appropriately to supervisors, coworkers, and usual work settings, and deal with changes in a routine work setting. (Tr. 23-24,

26.) The ALJ also determined that Plaintiff should avoid concentrated exposure to hazards and

vibration. (Tr. 23, 26.)

At step five, the ALJ found that Plaintiff is a younger individual with the equivalent of a

high school education and no past relevant work. (Tr. 25, 26.) The ALJ determined that

although Plaintiff’s exertional limitations do not allow her to perform the full range of sedentary

or light work, a significant number of jobs exist in the national economy that she could perform,

including work in small parts assembly and hand packaging. (Tr. 27.)

VII. DISCUSSION

A. Examining Physicians’ Opinions

Plaintiff argues that the ALJ erred in failing to provide specific and legitimate reasons

supported by the record for rejecting the opinions of her examining physicians, Dr. James

LoGerfo, Dr. Sohail K. Mirza, and Dr. Shoshanna Press. As a general rule, more weight should

be given to the opinion of a treating source than to the opinion of doctors who do not treat the

claimant. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). Where the treating doctor’s

opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing”

reasons. Lester v. Chater, 81 F.3d 821, 830 (9th cir. 1996) (citing Baxter v. Sullivan, 923 F.2d

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 5 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 6

1391, 1396 (9th Cir. 1991)). “Clear and convincing” reasons are also required to reject the

treating doctor’s ultimate conclusions. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 

Even if the treating doctor’s opinion is contradicted by another doctor, the Commissioner may

not reject this opinion without providing “specific and legitimate reasons” supported by

substantial evidence in the record for doing so. See Lester, 81 F.3d at 830; Magallanes v.

Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989).

The ALJ assigned substantial weight to the findings of Dr. Fleming, a state agency

medical consultant because, although he did not examine Plaintiff, he is an expert in evaluating

the medical issues in disability claims before the Social Security Administration. (Tr. 24.) The

ALJ also adopted the findings of state agency medical consultant, Dr. Reade, regarding the

functional limitations arising from Plaintiff’s mental impairments. The ALJ adopted Dr. Reade’s

findings because they were consistent with Plaintiff’s actual functioning as demonstrated by her

daily activities and performance on mental status examination. (Tr. 24.) In adopting the medical

consultants’ opinions, the ALJ largely rejected the opinions of Plaintiff’s examining and treating

physicians. (Tr. 24.)

Dr. LoGerfo

On January 29, 2003 and April 9, 2003, Dr. LoGerfo opined that Plaintiff was severely

limited and unable to perform at least half-time work. (Tr. 279, 215.) The Physical Evaluation

form defines “severely limited” as an inability to lift at least two pounds or stand and/or walk. 

(Id.) The ALJ rejected Dr. LoGerfo’s opinion because the limitations were not supported by the

objective evidence. (Tr. 24.) The ALJ also noted that Dr. LoGerfo had encouraged Plaintiff to

increase her walking and activity level, and that examining physician Dr. Paynter had encouraged

Plaintiff to be active, assuring her that she would not likely hurt herself as long as she used

proper ergonomics. (Id.)

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 6 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 7

First, the fact that Drs. LoGerfo and Paynter encouraged Plaintiff to increase her activity

level does not directly contradict the opinion that she was severely limited. Second, regarding

objective evidence, Dr. LoGerfo does not, in his treatment notes, specifically observe or assess an

inability to lift two pounds or stand and/or walk. In fact, he frequently observes that Plaintiff

walks with a normal gait (Tr. 182, 185, 335, 361, 402) or without difficulty (Tr. 322). However,

he also observed limping. (Tr. 176, 334.) In addition, he observed mild joint tenderness in

Plaintiff’s left third finger, rheumatic symptoms, edema in the extremities bilaterally, and palpable

muscle spasm bilaterally. (Tr. 320, 333, 335.)

Dr. LoGerfo assessed Plaintiff as having significant problems with pain (Tr. 186), for

which he prescribed medication. (Tr. 176, 186, 322, 333, 335, 340.) He also assessed Plaintiff as

having significant depressive symptomatology (Tr. 186), for which he prescribed antidepressants. 

(Tr. 182, 361.) Even before Plaintiff’s psychiatric evaluation, Dr. LoGerfo had recognized a

possible psychological component in Plaintiff’s pain issues when he noted that pain medications

would be adjusted, depending, in part, on whether the pain improved with increased levels of

antidepressants. (Tr. 182.) 

 In conclusion, while the objective physical evidence is sparse, Dr. LoGerfo’s opinion

appears to be based not only on that evidence, but also on his assessment that Plaintiff’s pain

problems are significant and that she suffers from pain syndrome. (Tr. 332, 397) He also gives

credence to the possible psychological factors involved in the pain and its significant depressive

symptomatology. For these reasons and in light of Dr. Press’ diagnosis of pain disorder with both

medical and psychological factors (discussed below), this Court finds that the ALJ has failed to

provide specific and legitimate reasons supported by substantial evidence in the record for

rejecting Dr. LoGerfo’s opinion. 

//

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 7 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 8

Dr. Mirza

On January 14, 2004, Dr. Mirza opined that Plaintiff was limited to sedentary work, and

that her inability to perform at least half-time work was permanent. (Tr. 277.) The ALJ’s stated

reason for rejecting Dr. Mirza’s opinion was that the Plaintiff had undergone back surgery only

one month earlier. (Tr. 24.) The ALJ also noted that Dr. Mirza had encouraged Plaintiff to walk

as much as possible, and that she had subsequently reported walking four to five hours daily. 

(Id.) While Plaintiff had undergone surgery only one month before, Dr. Mirza did not indicate

that her limitations were likely to improve at a later date. On the contrary, he stated that 

Plaintiff’s inability to work at least halftime was permanent. (Tr. 277.) As noted above,

encouraging locomotion does not plainly contradict an assessment of “severely limited.” Nor is

it inconsistent with a limitation of sedentary work, the definition of which recognizes that a

certain amount of walking may be necessary. (Id.) 

The notation that Plaintiff was walking four to five hours daily occurred in a report dated

February 2004, only two months after she had undergone two back surgeries one week apart. 

(Tr. 363.) At that time Plaintiff had not yet been released for physical therapy. (Dkt. #17.) The

notation is contradicted consistently throughout the remainder of the record. In March 2004,

Plaintiff reported walking four to six times a week for 30-60 minutes, “stop and go.” (Tr. 359.) 

In June 2004, August 2004, and March 2005, Plaintiff indicated an ability to walk only 1-11⁄2

blocks at a time. (Tr. 338, 335, 453.) The February 2004 report appears to be an anomalous

notation which is inconsistent with several later reports that demonstrate Plaintiff’s extremely

lower level functioning; thus, it does not appear to be reliable. For these reasons, this Court

finds that the ALJ has not provided specific and legitimate reasons supported by substantial

evidence in the record for rejecting Dr. Mirza’s opinion.

//

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 8 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 9

Dr. Press

On July 15, 2003, Dr. Press conducted a psychiatric evaluation of Plaintiff, diagnosing

her with a pain disorder with both medical and psychological factors, opiate dependence,

currently prescribed for pain, alcohol dependence in sustained, full remission, major depressive

disorder with psychotic features, chronic pain, and a Global Assessment of Functioning (GAF) of

47. (Tr. 226.) Dr. Press opined that Plaintiff could not perform work activities on a consistent

basis, maintain regular attendance in the workplace, complete a normal workday or workweek,

or deal with the usual stress encountered in competitive work. (Tr. 227.) The ALJ rejected this

opinion. (Tr. 24.) Dr. Press further opined that although Plaintiff’s problems were partially

treatable, her likelihood of recovery was poor and unlikely to improve within the next twelve

months. (Tr. 226.) Dr. Press indicated that Plaintiff had severe pain problems and would benefit

from receiving psychiatric evaluation and treatment. (Id.) 

 In rejecting Dr. Press’ opinion, the ALJ noted that although Plaintiff complained of

paranoia and auditory hallucinations at her evaluation, the evidence did not document ongoing

psychotic symptoms. (Tr. 24.) The ALJ also noted that Plaintiff had not received treatment

from a mental health specialist, and that her psychotropic medications were prescribed by her

primary care physician. (Id.) It is not clear how the fact that Plaintiff discussed her psychotic

symptoms with a psychiatrist rather than with her primary care physicians is evidence against

those symptoms. While Plaintiff had not received treatment from a mental health specialist, such

treatment had never been offered to her. (Tr. 474.) Dr. Press determined that Plaintiff would

benefit from psychiatric treatment, (Tr. 226) and Plaintiff has indicated that she would go to

counseling if it were offered. (Tr. 474.) The ALJ does not make it clear how the fact that

Plaintiff’s antidepressants were prescribed by her primary care physician supports rejection of Dr.

Press’ opinion. Plaintiff had not yet seen a psychiatrist at the time antidepressants were first

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 9 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 10

prescribed for her. (Tr. 186, 222.) Dr. LoGerfo prescribed them in view of her significant

depressive symptomatology. (Tr. 186.)

This Court finds that the opinions of Plaintiff’s three examining and treating physicians

are consistent and unanimous in their assessment of Plaintiff’s inability to work at least half-time

or on a consistent basis. Further, the ALJ has failed to state specific and legitimate reasons

supported by substantial evidence in the record for rejecting these opinions.

B. Plaintiff’s Subjective Testimony

Plaintiff argues that the ALJ did not provide clear and convincing reasons supported by

specific facts for rejecting Plaintiff’s subjective testimony regarding pain and related symptoms. 

In rejecting Plaintiff’s testimony, the ALJ must perform a two-step analysis. Smolen v Chater,

80 F.3d 1273, 1281 (9th Cir. 1996). The first step requires the plaintiff to produce objective

medical evidence of an underlying impairment which could reasonably be expected to produce

the alleged symptoms. (Id.) In addition, there must be no evidence of malingering. (Id.) In the

present case, Plaintiff met this burden by presenting medical evidence of her pain disorder with

both medical and psychological factors. (Tr. 226.) Likewise, there is no evidence in the record

indicating that Plaintiff was malingering, and the Commissioner so concedes. (Dkt. #13.) 

The second step requires the ALJ to analyze the credibility of a Plaintiff’s testimony

regarding the severity of her symptoms. The ALJ can reject a Plaintiff’s symptom testimony only

if he makes specific findings, stating clear and convincing reasons for doing so. Dodrill v.

Shalala, 12 F.3d 915, 918 (9th Cir. 1993). In weighing a claimant’s credibility, the ALJ may

consider her reputation for truthfulness, inconsistencies either in her testimony or between her

testimony and her conduct, unexplained or inadequately explained failure to seek treatment or to

follow a prescribed course of treatment, her daily activities, work record, and testimony from

physicians and third parties concerning the nature, severity, and effect of the symptoms of which

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 10 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 11

she complains. See Smolen, 80 F.3d at 1284 (citations omitted).

In the present case, Plaintiff testified that she has worked at numerous jobs, including,

inter alia, cleaning motel rooms, cashiering, meat-trimming, and telemarketing. (Tr. 445-46.) 

She has had to switch jobs and work fewer hours due to constant pain which made her unable to

stand, sit, or walk for very long, and which made bending and lifting difficult. (Tr. 74.) She

used to clean her whole house in an hour, but at the time of her initial application, it took her an

hour to do dishes, 45 minutes to sweep the floors, and an hour to mop them, as she had to stop

and rest about every ten minutes due to pain. (Tr. 97-98.) Later, the only housework she was

able to do was wash dishes, which took her awhile due to the need to stop and rest. (Tr. 115.) 

Others had to help her with the housework and with shopping, and friends had to bathe her son,

as her pain prevented her from doing so herself. (Tr. 115, 224, 448.) She is no longer able to do

her cultural handicrafts due to pain. (Tr. 449-50.) 

The ALJ stated a number of reasons in support of his finding that Plaintiff was not

entirely credible. (Tr. 23.) First, the ALJ found Plaintiff’s testimony that friends assisted her

with housework to be inconsistent with her activity questionnaire report that “she could wash

dishes for an hour, sweep the floor for 45 minutes at a time, and mop the floor for an hour.” 

(Id.) However, Question 8 on the questionnaire asks not how long Claimant can do chores, but

rather how long it takes to do them. (Tr. 97.) Thus, what the ALJ states as an ability to perform

for 45-60 minutes continuously, is actually the total time required to perform the task, which

Plaintiff indicates that she must do in ten minute increments interspersed by periods of rest. 

(Tr. 97-98.) Plaintiff also reported in her Activities of Daily Living and Socialization

questionnaire and to Dr. Press that friends helped her with housework. (Tr. 115, 224.) Based

on a careful reading of the record, I find that the plaintiff’s testimony and reports are consistent

regarding her ability to do housework. 

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 11 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 12

Second, although the ALJ found that Plaintiff suffers from depression (Tr. 21), he bases

his credibility findings, in part, on inconsistencies regarding her depression. (Tr. 23.) The ALJ

observed that whereas Plaintiff reported her depression to Dr. Press as 91⁄2 -10 out of 10, she was

not referred for counseling. (Id.) However, the examining psychiatrist determined that Plaintiff

would benefit from receiving evaluation and treatment from a psychiatrist. (Tr. 226.) Moreover,

Plaintiff indicated that she would go to counseling if referred. (Tr. 474.) The ALJ also noted

that Plaintiff was off psychotropic medications for several months despite her acknowledgment

that her depressive symptoms improved with medication. (Tr. 23.) The ALJ found that this

suggested that Plaintiff was not suffering from significant depressive symptoms during “that

period.” (Id.) It is not clear whether the ALJ is referring to the initial period during which

Plaintiff took antidepressants or to the hiatus in which she did not. Nor does the ALJ make clear

how improvement of depressive symptoms followed by a medication hiatus indicates a lack of

significant depression or, in turn, a lack of credibility. The ALJ did not inquire of Plaintiff as to

the reason for her temporary cessation of antidepressant medication, therefore this Court finds

that the record has not been fully developed on this issue. 

Third, the ALJ found that Plaintiff exaggerated her physical complaints based on the fact

that she had 5/5 Waddell’s signs. (Tr. 23.) However, this conclusion appears to be based on a 

misinterpretation of the Waddell’s signs. Plaintiff submitted additional evidence on this subject

to the Appeals Council. (Tr. 4.) In an abstract taken from a posting on the website of the

National Center for Biotechnology Information, a division of the National Library of Medicine at

the National Institutes of Health, Dr. Waddell writes:

 

Despite clear caveats about the interpretation of the signs, they have been

misinterpreted and misused both clinically and medicolegally. Behavioral

responses to examination provide useful clinical information, but need to be

interpreted with care and understanding . . . . Multiple signs suggest that the

patient does not have a straightforward physical problem, but that

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 12 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 13

psychological factors also need to be considered . . . . Behavioral signs are not

on their own a test of credibility or faking.

(Tr. 442.)

Rather than suggesting exaggeration, the 5/5 Waddell’s signs tend to lend credence to

Plaintiff’s complaints within the context of the pain disorder. Furthermore, both the consulting

psychiatrist and examining physician have diagnosed Plaintiff with depression. (Tr. 226, 278.) 

Thus, this Court’s careful consideration of the record supports the finding that Plaintiff’s 5/5

Waddell’s signs was not a convincing basis for the ALJ to reject her pain testimony.

Fourth, regarding Plaintiff’s physical abilities, the ALJ noted the following as

inconsistencies: (1) Plaintiff complained of maximal pain during a physical therapy visit, but

appeared to walk and move about with relative ease, and later reported that her pain was tolerable

with medication; (2) Plaintiff claimed at the hearing that she could walk only 1.5 blocks before

needing rest, but had reported to Dr. Mirza that she was walking four to five hours daily; (3)

Plaintiff traveled to Montana in mid 2004; and (4) the activities associated with parenting a small

child are consistent with medium level work. 

The record indicates fluctuating difficulty with gait ranging from normal, to waddling,

limping, and slightly ataxic (Tr. 182, 335, 361, 155, 176, 334, 187). The record also indicates 

fluctuating degrees of pain and of the ability of medications to control it. (Tr. 74, 81, 82, 96-98,

110, 114, 149, 151, 153, 155, 176, 182, 185, 187) Plaintiff has reported that her pain is affected

by weather (Tr. 96, 187, 408), and that it is intermittent. (Tr. 155.) Plaintiff’s reports on her pain

cover a range of time since before her October 2002 application to her hearing in March 2005. In

her March 2003 reconsideration report, she reported that her pain had gotten worse. (Tr. 110.) 

Accordingly, this Court finds that an occasional report of Plaintiff’s pain being tolerable is not

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 13 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 14

inconsistent with the overall record, nor indicative of a lack of credibility considering the length of

time covered, Plaintiff’s reports on pain fluctuation, and the psychological factors involved in her

pain disorder.

The ALJ does not explain how traveling to Montana bears upon Plaintiff’s credibility, and

the record lacks support for the conclusion. The record indicates that Plaintiff receives

significant help from others in caring for her son and that her own activity levels in this regard are

minimal. (Tr. 115, 123, 448.) Plaintiff reported to her health care provider in September 2002

that her pain was worsening, her mobility decreasing, and that taking care of her toddler was

“very difficult.” (Tr. 151.) This Court therefore concludes that what parenting Plaintiff is able to

do is not inconsistent with her reports of pain and physical inability.

Fifth, the ALJ concluded that Plaintiff’s pre-disability work history reflects on her

credibility, finding that her low earnings indicated a predilection for unemployment. Plaintiff’s

claimed disability began in 1993. (Tr. 64.) She had two minor children during this period. (Tr.

447-448.) Whether her work history at that time was based on a predilection for unemployment,

for homemaking, or for some other reason is not clear from the record. The Commissioner 

argues that Plaintiff completed only one-half of her physical therapy. However, Plaintiff reported

that therapy tended to make her symptoms worse and that she felt it was not much help. (Tr.

342.) This Court finds that the ALJ has not provided a reason for finding this explanation

incredible.

In addition, it is noteworthy that the record lacks any indication on the part of the

examining physicians that Plaintiff exaggerates her experience or lacks credibility. It is also worth

noting that Plaintiff was completely forthcoming about her temporary street drug use during the

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 14 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 15

period she was without prescription analgesics. 

Finally, the nature of Plaintiff’s pain disorder is of particular importance to this case. This

is a disorder with both medical and psychological factors. Because a pain disorder must be ruled

out if the patient intentionally produces or feigns her symptoms (DSM-IV-TR 307.89), the

consulting psychiatrist must necessarily consider this possibility. The fact that Dr. Press

diagnosed the plaintiff as suffering from a pain disorder tends to support a finding of credibility. 

Further, this diagnosis presumes that the patient’s symptoms cannot be explained entirely by a

general medical condition. (Id.) The condition is primarily a mental disorder. (Id.) To the extent

that the ALJ’s credibility findings are derived from the nature of the condition itself, a circularity

exists. 

In sum, the Court finds that the ALJ has not provided clear and convincing reasons for

rejecting Plaintiff’s subjective symptom testimony. While the ALJ made specific findings in some

instances, these findings were based on a misreading of the record. In particular, the record

contradicts the findings regarding Plaintiff’s endurance in performing housework and in walking,

the significance of the Waddell’s signs, and the extent of her parenting activities. Other findings 

require greater specificity as to reasoning or further development of the record, including the

conclusions based on Plaintiff’s temporary cessation of antidepressants, her pre-disability work

history, and her trip to Montana. Most importantly, this Court finds that the ALJ fails to

adequately explain his credibility findings in light of Plaintiff’s pain disorder with medical and

psychological factors.

C. ALJ’s Finding that Plaintiff’s Pain Disorder is Not a Severe Impairment

Plaintiff argues that the ALJ’s step two finding that her pain disorder is not a severe

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 15 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 16

impairment is in error. A claimant’s impairment, or combination of impairments, is not severe if it

does not significantly limit the claimant’s physical or mental ability to do basic work activities. 20

C.F.R. §§ 404.1520(c), 404.1521(a). Basic work activities are defined as the abilities and

aptitudes necessary to do most jobs, such as (1) walking, standing, sitting, lifting, pushing,

pulling, reaching, carrying, or handling; (2) seeing, hearing, and speaking; (3) understanding,

carrying out and remembering simple instructions; (4) use of judgment; (5) responding

appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes

in a routine work setting. See 20 C.F.R. §§ 404.1521, 416.921.

The step two inquiry is a de minimis screening device to dispose of groundless claims. 

See Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). “If a claimant is unable to show that he has

a medically severe impairment, he is not eligible for disability benefits. In such a case, there is no

reason for the Secretary to consider the claimant’s age, education, and work experience.” (Id.) at

148. An impairment or combination of impairments can be found “not severe” only if the

evidence establishes a slight abnormality that has “no more than a minimal effect on an

individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (internal

citations omitted).

In the present case, the ALJ noted that Dr. Press diagnosed a pain disorder with medical

and psychological factors, but that the evidence supported a finding that Plaintiff exaggerated the

degree of pain she experiences. Thus, the ALJ’s credibility finding underlies his determination 

that the pain disorder is not severe. Having concluded that the ALJ has failed to state clear and

convincing reasons for rejecting Plaintiff’s pain testimony, this Court finds that the record does

not support a finding that the impairment is not severe.

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 16 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OPINION

PAGE - 17

D. Vocational Expert Testimony 

Plaintiff argues that the ALJ erred in disregarding the vocational expert’s testimony. The

ALJ in posing a hypothetical to a vocational expert “‘must set out all the limitations and

restrictions of the claimant.’” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (quoting

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). In the present case, the ALJ posed

hypotheticals that excluded certain limitations based on Plaintiff’s pain testimony. At the hearing,

Plaintiff suggested alternative hypotheticals that incorporated such limitations. However, the ALJ

rejected the vocational expert’s testimony regarding these alternatives. The Court finds that this

testimony should be reevaluated following reconsideration of Plaintiff’s subjective testimony, her

pain disorder as a severe impairment, and the opinions of her examining physicians.

VIII. CONCLUSION

The Commissioner’s determination to deny Plaintiff Supplemental Social Security Income

is neither supported by substantial evidence in the record nor free of legal error. Accordingly, the

Court REVERSES the Commissioner’s decision and REMANDS for further proceedings.

DATED this 12thday of October, 2006.

AMONICA J. BENTON

United States Magistrate Judge

Case 2:05-cv-02054-MJB Document 18 Filed 10/12/06 Page 17 of 17