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

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MICHAEL ANDREW RUSSELL,

Plaintiff,

v.

NANCY A. BERRYHILL,

Defendant.

Case No. 17-cv-00065-SVK 

ORDER ON MOTIONS FOR 

SUMMARY JUDGMENT

Re: Dkt. Nos. 24, 25

Plaintiff Michael Andrew Russell (“Plaintiff”), as heir and representative of the estate of 

Yvonne Susan Russell (“Claimant”), seeks review of a final decision of the Commissioner of 

Social Security denying Claimant’s application for a period of disability and disability insurance 

benefits under Title II of the Social Security Act. Plaintiff presents two issues for review: 

(1) Plaintiff asserts that the Administrative Law Judge (“ALJ”) erred in assessing Claimant’s 

residual functional capacity, and (2) Plaintiff asserts that the ALJ erroneously concluded that 

Claimant had skills from her previous jobs that were transferable to other available jobs. ECF 24 

(“Pl. MSJ”). Before the Court are the parties’ cross-motions for summary judgment. See id.; ECF 

25 (“Def. MSJ”). 

Having considered the cross-motions for summary judgment, the relevant law, and the 

record in this case,1the Court finds that the ALJ erred in evaluating Claimant’s residual functional 

capacity because the ALJ failed to provide clear and convincing reasons, supported by substantial 

evidence, for not giving the medical opinion of Claimant’s treating physician controlling weight. 

The ALJ also erred in concluding that Claimant had skills that were transferable to other jobs 

identified by the vocational expert because the ALJ did not specifically identify the transferable

 

1

This matter was submitted without oral argument pursuant to Civil Local Rule 16-5.
2

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

27

28

United States District Court

Northern District of California

skills and did not evaluate what vocational adjustment would be necessary to enable Claimant to 

perform other jobs. These errors require that the case be remanded. Because the vocational expert 

testified that a claimant with the physical limitations described in the medical opinion of her 

treating physician would be unable to do the alternative jobs identified by the vocational expert, 

the existing record establishes that Claimant is entitled to benefits. The Court therefore GRANTS

Plaintiff’s motion for summary judgment, DENIES the Commissioner’s motion for summary 

judgment, and REMANDS the case for the calculation and award of benefits. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff seeks disability benefits on behalf of Claimant from the alleged onset date of 

April 15, 2003 through Claimant’s last insured date of June 30, 2009. As of the date last insured, 

Claimant was 57 years old. Administrative Record (“AR”) 28, 91. Claimant obtained a GED and 

attended some college. AR 91. She reported past employment as a hotel maid, cashier and 

assistant manager at a hardware store, and work at a loan company. AR 92-93. 

Claimant filed a claim for disability benefits on October 12, 2011. AR 253-56. Claimant 

complained of various medical conditions, including fibromyalgia, depression, and rheumatoid 

arthritis. AR 275. 

After her claim was denied initially and on reconsideration, Claimant requested a hearing 

before an ALJ. AR 130-31, 169-71. ALJ Ruperta Alexis held a hearing on February 21, 2013, at 

which Claimant and a vocational expert testified and Claimant was represented by an attorney. 

AR 35-79. On May 13, 2013, ALJ Alexis issued a decision finding that Claimant had the severe 

impairment of fibromyalgia but was not disabled as defined in the Social Security Act at any time 

between April 15, 2003 and June 30, 2009 (the date last insured). AR 132-148. The Appeals 

Council subsequently vacated the May 13, 2013 decision and remanded the case for the ALJ to 

review the period from June 30, 2009 to December 31, 2017, on the grounds that “Social Security 

records indicate the claimant is insured through December 31, 2017.” AR 151.2 

 

2 On remand, the ALJ concluded that the original May 13, 2013 ALJ decision had correctly 

concluded that the date last insured was June 30, 2009. AR 19-20. At the hearing on remand, 

Claimant’s counsel agreed that June 30, 2009 was the correct date last insured. AR 86. Plaintiff 

does not challenge the ALJ’s conclusion on the last insured date.
3

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

27

28

United States District Court

Northern District of California

ALJ Timothy Magrum held a hearing on remand on April 16, 2015, at which Claimant and 

a vocational expert testified and Claimant was represented by an attorney. AR 80-129. On 

September 4, 2015, ALJ Magrum issued the decision that is the subject of this action, finding that 

Claimant had the severe impairment of fibromyalgia but was not disabled as defined in the Social 

Security Act. AR 16-34. 

On November 3, 2015, Claimant died. AR 9. Three days later, a Request for Review of 

the ALJ’s decision was filed with the Appeals Council. AR 14-15. The Request for Review was 

filed in the name of Claimant but lacked her signature. AR 15. Nearly two months later, on 

December 28, 2015, Plaintiff filed a Notice Regarding Substitution of Party Upon Death of 

Claimant form, asking to be substituted for Claimant. AR 8-13. On November 9, 2016, the 

Appeals Council denied Claimant’s request for a review of the ALJ’s determination by notice 

addressed to Plaintiff as “Substitute Party.” AR 1-6. 

On January 5, 2017, Plaintiff filed a timely civil action in this Court. ECF 1. All parties 

have consented to the jurisdiction of a magistrate judge. ECF 14, 15.

II. LEGAL STANDARDS 

A. Standard of Review

This Court has the authority to review the Commissioner’s decision to deny disability 

benefits, but “a federal court’s review of Social Security determinations is quite limited.” BrownHunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405(g). Federal courts 

“leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve 

ambiguities in the record.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation 

omitted). 

The Commissioner’s decision will be disturbed only if it is not supported by substantial 

evidence or if it is based on the application of improper legal standards. Id. “Substantial 

evidence” means 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.” Rounds v. 

Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (internal quotation marks and 

citations omitted). The Court “must consider the evidence as a whole, weighing both the evidence 
4

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

27

28

United States District Court

Northern District of California

that supports and the evidence that detracts from the Commissioner’s conclusion.” Id. (citation 

omitted). Where the evidence is susceptible to more than one rational interpretation, the Court 

must uphold the ALJ’s findings if supported by inferences reasonably drawn from the record. Id.

Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is 

harmless. Brown-Hunter, 806 F.3d at 492. But “[a] reviewing court may not make independent 

findings based on the evidence before the ALJ to conclude that the ALJ’s error was harmless.” Id. 

The Court is “constrained to review the reasons the ALJ asserts.” Id. (citation omitted).

B. Standard for Eligibility for Disability Benefits

Disability benefits are available under Title II of the Social Security Act when an eligible 

claimant is unable “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 12 months.” 42 U.S.C. 

§ 423(d)(1)(A).

To determine whether a claimant is disabled, the ALJ is required to employ a five-step 

sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; 

(2) whether the claimant has a severe medically determinable physical or mental impairment or 

combination of impairments that has lasted for more than 12 months; (3) whether the impairment 

meets or equals one of the listings in the regulations; (4) whether, given the claimant’s residual 

functional capacity (i.e., what a claimant can still do despite her limitations), the claimant can still 

do her past relevant work; and (5) whether the claimant can make an adjustment to other work. 

Ghanim v. Colvin, 763 F.3d 1154, 1160 and n.5 (9th Cir. 2014) (internal quotation marks and 

citations omitted). The burden of proof is on the claimant at steps 1 through 4, but shifts to the 

Commissioner at step 5. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 

2009).

////

////

////

////
5

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

27

28

United States District Court

Northern District of California

III. DISCUSSION

A. Standing

This district court action was brought by Plaintiff Michael Andrew Russell. ECF 1. The 

Complaint describes Mr. Russell as “heir and representative of the estate of” Claimant but does 

not further describe his relationship to Claimant. Id. Nor do the parties address Mr. Russell’s 

status in their cross-motions for summary judgment. This raises the question of whether 

Mr. Russell has standing to bring this action seeking review of an ALJ’s decision not to award 

disability benefits to Claimant. 

Standing is a jurisdictional limitation that is comprised of both constitutional (Article III) 

requirements and prudential considerations. Gladstone Realtors v. Village of Bellwood, 441 U.S. 

91, 99 (1979). The Commissioner has not challenged Mr. Russell’s standing to bring this action, 

but the requirement of constitutional standing is not subject to waiver, and thus the Court has an 

independent duty to consider the issue. United States v. Hays, 515 U.S. 737, 742 (1995). To have 

constitutional standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly 

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 

favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

42 U.S.C. § 404(d) governs payment of Social Security disability benefits to survivors or 

heirs when a claimant is deceased, giving the highest priority to “the person, if any, who is 

determined by the Commissioner of Social Security to be the surviving spouse of the deceased 

individual and who either (i) was living in the same household with the deceased at the time of his 

death or (ii) was, for the month in which the deceased individual died, entitled to a monthly 

benefit on the basis of the same wages and self-employment income as was the deceased 

individual.” 42 U.S.C. § 404(d)(1). Section 405(g) empowers an individual to seek judicial 

review in federal district court of a final decision of the Commissioner “made after a hearing to 

which he was a party.” 

Here, the record indicates that Plaintiff was Claimant’s spouse and was living in the same 

household at the time of Claimant’s death, thereby satisfying the requirements of 

Section 404(d)(1). AR 9. Moreover, Plaintiff filed a notice of substitution into the administrative 
6

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

27

28

United States District Court

Northern District of California

proceedings during the Appeals Council review. AR 10. Although the request for Appeals 

Council review was filed after Claimant died but before Plaintiff substituted into the proceedings, 

“Section 405(g) does not mandate a particular substitution procedure when a claimant’s death 

occurs after the ALJ’s hearing (and unfavorable decision) but before issuance of the Appeals 

Council’s order on the request for review.” Weinshenker v. Berryhill, No. 1:17CV4, 2017 U.S. 

Dist. LEXIS 141784, at *11 (M.D.N.C. Sep. 1, 2017) (emphasis in original). The Notice of 

Appeals Council Action was addressed to Plaintiff as “Substitute Party” for Claimant. AR1.

Under these circumstances, and particularly in light of the Commissioner’s failure to 

challenge the record evidence showing that Plaintiff is Claimant’s surviving spouse and was living 

in the same household as Claimant at the time of her death, the Court concludes that Plaintiff 

possesses Article III constitutional standing by virtue of his interest under 42 U.S.C. §§ 404(d) and 

405(g). 

In addition to the requirements for constitutional standing, courts have traditionally 

adopted various prudential considerations that preclude the exercise of jurisdiction over some 

types of cases even where constitutional standing exists. For example, the plaintiff’s claim 

generally must relate to the plaintiff’s own legal rights and interests. See Elk Grove Unified Sch. 

Dist. v. Newdow, 542 U.S. 1, 12 (2004). The Ninth Circuit has held that prudential standing 

arguments can be waived if not raised in the district court. Pershing Park Villas Homeowners 

Ass’n v. United Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000). Because the Commissioner has 

not challenged Plaintiff’s standing on prudential grounds, the Court deems the issue waived.

Accordingly, Plaintiff has standing to bring this action.

B. Merits

The ALJ employed the established five-step framework for evaluation of disability claims 

and found as follows:

 Step 1: The ALJ found that Claimant did not engage in substantial gainful activity 

from the alleged onset date of April 15, 2003 through her date last insured of 

June 30, 2009. AR 22.

 Step 2: The ALJ concluded that Claimant had fibromyalgia that qualified as a 
7

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

27

28

United States District Court

Northern District of California

severe impairment. Id.

 Step 3: The ALJ held that through the date last insured, Claimant did not have an 

impairment or combination of impairments that met or medically equaled the 

severity of one of the listed impairments in 20 C.F.R. Part 405, Subpart P, 

Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526). Id.

 Step 4: The ALJ determined that through the date last insured, Claimant had the 

residual functional capacity to perform light work as defined in 20 C.F.R. 

404.1567(b), with certain limitations, but was unable to perform any past relevant 

work. AR 24, 28.

 Step 5: The ALJ concluded that considering Claimant’s age, education, work 

experience, and residual functional capacity, she had acquired work skills from past 

relevant work that were transferable to other occupations with jobs existing in 

significant numbers in the national economy. AR 28-29.

Plaintiff asserts error with respect to the ALJ’s determination of Claimant’s residual 

functional capacity (step 4) and the transferability of her skills (step 5). Plaintiff does not seek 

review of the ALJ’s rulings at steps 1, 2, or 3. See Pl. MSJ.

C. The ALJ’s Assessment of Claimant’s Residual Functional Capacity

Plaintiff argues that the ALJ gave too little weight to the opinion of Claimant’s treating 

physician, David True, M.D., that Claimant was disabled. Pl. MSJ at 18-22. Specifically, 

Plaintiff contends that the ALJ should have determined that Claimant had a number of restrictions 

identified by Dr. True in a March 25, 2013 opinion. Id. at 19. In particular, the ALJ apparently 

did not credit Dr. True’s opinion that (1) Claimant had significant limitations in reaching, 

handling, and fingering; and that (2) Claimant would require unscheduled 15-minute breaks three 

or four times a day and that she would have to keep her legs elevated at all times during the work 

day. AR 888-89. Instead, the ALJ found that Claimant could perform light work, except that

“claimant was capable of occasional overhead reach with her left, non-dominant upper extremity” 

and “occasional kneeling, crouching, crawling, and climbing stairs but never ladders, ropes, or 

scaffolds.” AR 24.
8

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

27

28

United States District Court

Northern District of California

During cross-examination, the vocational expert testified that the three alternative jobs she 

had identified for Claimant would not be available if Claimant could do no more than occasional 

fingering or handling, or if Claimant had to have breaks during the day to keep the legs elevated to 

hip level and above. AR 126-27. 

In social security disability cases, the ALJ must consider all medical opinion evidence. 

See 20 C.F.R. § 404.1527(b), (c). Generally, the opinion of a treating physician is entitled to more 

weight than the opinion of an examining physician, and more weight is given to the opinion of an 

examining physician than a non-examining physician. Ghanim, 763 F.3d at 1160. A treating 

physician’s opinion is entitled to “controlling weight” if it is “well-supported by medically 

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other 

substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2). 

If the ALJ gives a treating physician’s opinion less than controlling weight, the ALJ must 

comply with two requirements. First, the ALJ must consider other factors specified in 20 C.F.R. 

§ 404.1527(c)(2)—such as the length of the treating relationship, the frequency of examination, 

the nature and extent of the treatment relationship, the supportability and consistency of the 

opinion, and the specialization of the physician—in determining what weight to give that opinion. 

Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir. 2007). The failure to consider these factors 

constitutes reversible error. Trevizo v. Berryhill, No. 15-16277, 2017 U.S. App. LEXIS 17979, at 

*24 (9th Cir. Sep. 14, 2017). Second, the ALJ must provide reasons for rejecting the treating 

physician’s opinion. Id. at *22. The legal standard those reasons must satisfy depends on whether 

the treating physician’s opinion is contradicted. Id. If the treating doctor’s opinion is contradicted 

by another doctor’s opinion, the ALJ may only reject the treating doctor’s opinion by providing 

specific and legitimate reasons that are supported by substantial evidence. Id. To reject the 

uncontradicted opinion of a treating doctor, the ALJ must state clear and convincing reasons that 

are supported by substantial evidence. Id.

In this case, the ALJ stated that he gave “little weight” to the opinion of Dr. True, who 

began treating Claimant in 2012, several years after her last insured date. AR 27. The ALJ 

considered some of the relevant factors specified in 20 C.F.R. § 404.1527(c)(2) but failed to 
9

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

27

28

United States District Court

Northern District of California

identify clear and convincing reasons, supported by substantial evidence, for not giving Dr. True’s

uncontradicted opinion controlling weight.

1. ALJ’s consideration of 20 C.F.R. § 404.1527(c)(2) factors

Here, having decided not to afford Dr. True’s opinion controlling weight, the ALJ was 

required to analyze the factors under section 404.1527(c)(2). The ALJ addressed some of these 

factors. He stated that Dr. True was a primary care physician who had “treated the claimant every 

three months since February 2012,” which was “almost three years after her date last insured.” 

AR 27. The ALJ also concluded that Dr. True’s opinion “conflicts with the evidence,” including 

Claimant’s testimony at the 2013 hearing and her function reports and testimony. AR 27. The 

ALJ did not expressly address other factors under section 404.1527(c)(2), such as the nature and 

extent of the treatment relationship, the consistency of Dr. True’s opinion, and Dr. True’s 

specialty. As discussed below, even though the ALJ to some extent considered certain relevant 

factors, he failed to identify clear and convincing reasons, supported by substantial evidence, for 

discounting Dr. True’s opinion.

2. ALJ’s reasons for giving Dr. True’s opinion less than controlling 

weight

The ALJ did not identify any medical opinions that contradicted that of Dr. True. The ALJ 

referred to four other doctors who completed residual functional capacity assessments, but gave 

these opinions “little weight” because he found that their conclusions that there was insufficient 

evidence to form an opinion regarding the Claimant’s functional capacity on or before her date last 

insured were inconsistent with the evidence. AR 27. Accordingly, Dr. True’s medical opinion 

was not contradicted by any other medical opinion in the record.

Moreover, the medical records from the adjudicative period support, rather than contradict,

Dr. True’s opinions. Dr. True’s opinion that Claimant had fibromyalgia is consistent with her 

diagnosis in September 2006 by her treating physician at the time, Alan L. Brodsky, M.D. As the 

ALJ noted, Claimant reported pain in various parts of her body including her shoulder, knee, neck, 

upper back, arm, hands, and feet during the adjudicative period, although some of these symptoms 
10

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

27

28

United States District Court

Northern District of California

were periodically alleviated through surgery, medication, and other treatment. See AR 25-26. As 

for the specific limitations found by Dr. True, Claimant was seen by Deborah Westergaard, M.D., 

a pain management specialist, on June 29, 2009, the day before her last insured date. AR 620. 

Claimant complained of neck, arm, back, and knee pain, with the area of greatest pain intensity 

being the neck with pain radiating into the shoulders. Id. Claimant complained of tingling in both 

arms into the fingers, as well as radiating pain in the left arm and the fingers and palm of the left 

hand and significant weakness in her left hand. Id. Dr. Westergaard’s physical examination found 

“significantly decreased left hand grip strength.” AR 623. Dr. Westergaard noted deficient arm 

reflexes and “extremely sensitive multiple cervical and shoulder area trigger points.” Id. These 

findings are not inconsistent with Dr. True’s opinion that Claimant had limitations in reaching, 

handling, and/or fingering. AR 889. 

Because Dr. True’s opinion was uncontradicted, the ALJ was required to provide clear and 

convincing reasons, supported by substantial evidence, for discounting that opinion. See Ghanim, 

763 F.3d at 1160. The ALJ failed to meet this high standard. 

a) Time period of Claimant’s treatment by Dr. True

One reason the ALJ cited for discounting Dr. True’s opinion is that Dr. True’s treatment 

commenced years after Claimant’s date last insured. AR 27. Medical evaluations made after the 

expiration of a claimant’s insured status should not be disregarded solely on the basis that they are 

rendered retrospectively. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). Nevertheless, the 

retrospective nature of the treating physician’s opinion can, in proper cases, provide a basis for 

discounting that opinion. For example, in Magallanes v. Bowen, the Ninth Circuit held that an 

ALJ had properly rejected the opinion of a treating physician regarding the onset date of a 

claimant’s disability where the physician had not treated her at that time. 881 F.2d 747, 754 (9th

Cir. 1989). The Court noted that a treating physician who did not begin treating a claimant until 

after the time period at issue is “scarcely different from any non-treating physician with respect to 

that time period.” Id. Magallanes is distinguishable from this case, however, because the treating 

physician’s opinion in Magallanes was contradicted by other evidence, including opinions from 
11

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

27

28

United States District Court

Northern District of California

other physicians. Because the treating physician’s opinion conflicted with other medical opinions, 

the ALJ was required make findings that set forth “specific, legitimate reasons for doing so that 

are based on substantial evidence in the record.” Id. at 751. By contrast, where (as in this case) 

the retrospective opinion of the treating physician is uncontradicted, a higher standard applies: the

ALJ may disregard that opinion only if he provides clear and convincing reasons that are 

supported by the record as a whole. Id. The fact that Dr. True did not begin treating Claimant 

until after her date last insured does not, by itself, provide a legitimate basis for discounting Dr. 

True’s uncontradicted opinion.

b) Plaintiff’s daily activities

Another reason the ALJ cited for giving “little weight” to Dr. True’s opinion is that it 

“conflicts with the evidence, including the claimant’s own testimony at the prior hearing that she 

was able to work fulltime in a sedentary capacity in 2006” and “the claimant’s function reports 

and testimonies that she was able to clean her home, cook full meals, and shop in stores.” AR 27. 

A treating physician’s opinion may be rejected where it conflicts with a claimant’s daily 

activities, but this principle has no application where “a holistic review of the record does not 

reveal an inconsistency between the treating providers’ opinions and [the claimant’s] daily 

activities.” Ghanim, 763 F.3d at 1162. Moreover, a claimant is not required to be totally 

incapacitated to be eligible for benefits, and “many home activities are not easily transferable to 

what may be the more grueling environment of the workplace, where it might be impossible to 

periodically rest or take medication”. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 

The ALJ concluded that Claimant “had the residual functional capacity to perform light 

work as defined in 20 C.F.R. 404.1567(b) ... except that claimant was capable of occasional 

overhead reach with her left, non-dominant upper extremity” and “occasional kneeling, crouching, 

crawling, and climbing stairs but never ladders, ropes, or scaffolds.” AR 24. The ALJ thus 

rejected certain limitations that Dr. True had found, including far more extensive limitations on 

reaching, handling, and fingering and the Claimant’s need to keep her legs elevated and take three 

to four unscheduled breaks during the work day. AR 888-89.
12

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

27

28

United States District Court

Northern District of California

The evidence cited by the ALJ does not support his findings as to Claimant’s residual 

functional capacity for reaching, handling, or fingering. The ALJ noted that Claimant’s function 

reports stated that she performed daily activities including cooking, cleaning, doing laundry, 

handling personal care, paying bills, reading, watching TV, using public transportation, shopping 

at stores such as Target, and checking mail. AR 26. But the ALJ ignored statements throughout 

Claimant’s testimony and in her function reports showing limitations affecting Claimant’s ability 

to reach, handle, and finger. See, e.g., AR 93 (“my hands cramp, I can’t move them sometimes”); 

AR 97 (“It’s hard to write anything because my fingers cramp up or it’s hard to even use a 

typewriter,” and this problem with her fingers has been going on more than ten years); AR 97-98 

(“I need help snapping bras, doing buttons”); AR 299 (“it hurts my hand to write my fingers get 

cramped”); AR 303 (“don’t do much it’s hard to do crafts & paint when my fingers cramp”); AR 

304 (noting that her condition affects activities including reaching; “Lifting sometimes its hard to 

lift a cup”); AR 316 (“I can’t lift anything – it causes a Burning sensation in my upper neck down 

into my arms & shoulder Blades”); AR 317 (“hard time buttoning”); AR 321 (noting that her 

condition affects activities including reaching and using hands). Although the ALJ noted that 

“[t]hese function reports were dated two years after the date last insured, which suggests she was 

even more functional during the adjudicative period” (AR 26), the ALJ does not cite any evidence 

from the adjudicative period that conflicts with Dr. True’s opinion as to Claimant’s limitations in 

reaching, handling, or fingering. 

The ALJ also apparently did not credit Dr. True’s opinion that Claimant would need three 

to four 15-minute unscheduled breaks during the day and that Claimant’s legs should always be 

elevated. AR 888-89. But the ALJ cited no evidence that conflicted with Dr. True’s opinion. The 

fact that Claimant may have been able “to work fulltime in a sedentary capacity in 2006” and “was 

able to clean her home, cook full meals, and shop in stores” (AR 27) does not mean that Claimant 

would not have needed to take frequent unscheduled breaks from work due to her pain. Claimant 

testified that she did things around the house, like washing the dishes, that “never get finished” 

because “I get tired and I have to sit down . . . ” AR 108. In one of her function reports, Claimant 

stated that she needed rest while doing housework. AR 301. Claimant also stated that since her 
13

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

27

28

United States District Court

Northern District of California

condition began, her cooking habits changed to making easy meals or ordering out rather than 

cooking from scratch. AR 301; AR 318. Although Claimant testified that she shopped in stores, 

she also stated that she used a scooter or leaned on a cart to do grocery shopping. AR 109. 

Moreover, Claimant testified that she left her 2006 job because her boss wanted her to work full 

time rather than part time. AR 111-12; see also AR 41 (boss “wanted [her] to work more hours 

and [she] couldn’t work the hours he was giving [her], as it was.”).

Non-specific evidence about a claimant’s daily activities, such as the evidence cited by the 

ALJ, does not provide a clear and convincing reason, supported by substantial evidence, for 

discounting a treating physician’s opinion. The Ninth Circuit’s recent decision in Trevizo v. 

Berryhill is instructive. In that case, the ALJ discounted an opinion by a treating physician that a 

claimant could perform less than the full range of sedentary work as a result of her psoriasis and 

other conditions. The ALJ pointed to the claimant’s childcare responsibilities as evidence 

inconsistent with the treating physician’s opinion. Because the treating physician’s opinion in that 

case was contradicted by the opinions of other physicians, the ALJ needed to provide only

“specific and legitimate reasons that are supported by substantial evidence”—rather than the “clear 

and convincing” reasons that are required where (as here) the treating physician’s opinion is 

uncontradicted. 2017 U.S. App. LEXIS 17979, at *22. Even so, the Ninth Circuit held that the 

ALJ’s rejection of the treating physician’s opinion was legal error because “the record provides no 

details as to what [the claimant’s] regular childcare activities involved,” such as “the extent to 

which and the frequency with which [the claimant] picked up the children, played with them, 

bathed them, ran after them, or did any other tasks that might undermine her claimed limitations.” 

Id. at *24. “Absent specific details about [the claimant’s] childcare responsibilities, those tasks

cannot constitute ‘substantial evidence’ inconsistent with [the treating physician’s] informed 

opinion. Id. at *25. 

Similarly, in this case, where the higher “clear and convincing reasons” standard applies, 

the record of the daily activities performed by Claimant is an insufficient basis for discounting 

Dr. True’s opinion, especially when the ALJ has ignored evidence showing that Claimant had 

significant limitations on her ability to perform tasks such as dressing, cooking, cleaning, and 
14

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

27

28

United States District Court

Northern District of California

shopping.

c) Alleged gaps in Claimant’s treatment for fibromyalgia

In further support of support of his conclusion that the medical evidence “does not support 

the claimant’s allegations about the severity of her joint pain,” the ALJ stated that after Claimant 

was seen by Dr. Brodsky in November 2006, “the evidence showed the claimant sought no 

ongoing treatment for fibromyalgia until April 2009, when she reported to Julia Graves, M.D.,” 

who then referred Claimant to pain management. AR 26. This finding is not supported by the 

record. Dr. Graves’ records from March and April 2009 recorded that Claimant had been seeing 

Dr. Henderson for pain management. AR 564 (March 19, 2010 progress note stating that 

Claimant “sees pain doc”); AR 565 (April 14, 2009 progress note stating that Claimant “was 

seeing [sic] Dr. Henderson – pain”). The records from Claimant’s visit with Dr. Westergaard in 

June 2009 confirm that Claimant “was seeing Dr. Henderson” but explain that “he is now out of 

practice and she does not know how to get a copy of her records.” AR 621; see also AR 623 

(“Patient is unable to obtain her records. Every time she contacts her pain physician’s office she 

gets a message that the phone has been disconnected.”). Claimant testified that she had been 

seeing Dr. Henderson, a pain management specialist, but during an appointment with Dr. 

Henderson, “the DEA came in, along with other people, security, and shut them down.” AR 99. 

Claimant testified that she was without pain management for only “a couple months” before she 

started seeing Dr. Westergaard in June 2009. Id. Thus, there is no substantial evidence to support 

the ALJ’s finding that Claimant did not seek treatment for pain between November 2006 and April 

2009. 

d) Claimant’s credibility

The ALJ remarked at several points in his decision that he found that Claimant’s 

statements concerning her symptoms were not entirely credible. See, e.g., AR 26 (“the claimant’s 

statements concerning the intensity, persistence and limiting effects of these symptoms are not 

entirely credible for the reasons explained in this decision”); AR 27 (“Further bearing on the 

claimant’s credibility is her medical treatment record”). The Ninth Circuit has established a twostep analysis for determining the extent to which a claimant’s testimony about her symptoms must 
15

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

27

28

United States District Court

Northern District of California

be credited. First, the ALJ must determine whether the claimant has presented objective medical 

evidence of an underlying impairment which could reasonably be expected to cause some degree 

of the symptoms alleged. Trevizo, 2017 U.S. App. LEXIS 17979, at *28. Second, if the claimant 

satisfies the first step and there is no evidence of malingering, the ALJ can reject the claimant’s 

testimony about the severity of her symptoms only by offering specific, clear, and convincing 

reasons for doing so.” Id (citation omitted). “This is not an easy requirement to meet: The clear 

and convincing standard is the most demanding required in Social Security cases.” Id. (quoting 

Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)).

Here, at step 1 of the credibility determination, the ALJ found that Claimant had the severe 

impairment of fibromyalgia that “could reasonably be expected to cause some of the alleged 

symptoms.” AR 26. He nevertheless found “the claimant’s statements concerning the intensity, 

persistence, and limiting effects of these symptoms are not entirely credible.” Id. However, at 

step one of the credibility analysis, the claimant is not required to show her impairment could 

reasonably be expected to cause the severity of the symptom she has alleged, and she need not 

produce objective medical evidence of the symptom or severity thereof. Trevizo, 2017 U.S. App. 

LEXIS 17979, at *28. Moreover, at step 2 of the credibility determination, the ALJ did not make 

any finding of malingering. Accordingly, the ALJ could reject the Claimant’s testimony about the 

severity of her symptoms only if he identified specific, clear, and convincing reasons for doing so. 

Id.

The ALJ’s finding that Claimant was able “to work fulltime in a sedentary capacity in 

2006” (AR 27) is not supported by the record and fails to justify the ALJ’s rejection of Claimant’s 

testimony about the severity of her symptoms. The Claimant testified that she worked “in 

between part time and full-time” for six months in 2006 and that she left that job, at least in part, 

because her boss wanted her to work full time rather than part time. AR 111-12; see also AR 41 

(boss “wanted [her] to work more hours and [she] couldn’t work the hours he was giving [her], as 

it was.”). The evidence concerning Claimant’s 2006 job does not provide a specific, clear, and 

convincing reason for finding her testimony regarding symptoms less than credible. Id.

As discussed above, the ALJ noted that Claimant’s function reports stated that she 
16

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

27

28

United States District Court

Northern District of California

performed daily activities but ignored statements throughout the function reports showing 

limitations in Claimant’s use of her hands and her need for breaks throughout the day. The ALJ 

noted that the function reports completed by Claimant “were dated two years after the date last 

insured, which suggests she was even more functional during the adjudicative period.” AR 26. 

He also stated that Claimant “admitted this during her testimony, when she stated that used [sic] to 

complete ‘a lot more’ tasks.” Id. Although it is true that Claimant testified at the April 2015 

hearing that she was “doing a lot less” than she had been doing “back then,” this testimony was 

ambiguous as to the timing. AR 109. Claimant first saw Dr. Westergaard in June 2009. AR 26, 

620. At the April 2015 hearing, Claimant testified as follows:

Q: Okay. I want you to compare what your current daily activities are to what your 

activities were at the time you first saw Dr. Westergaard in 2009? Are you doing 

more now, less now, the same now? How does it compare with back then?

A: I’m doing a lot less.

Q: Well, how much more were you doing back then?

A: I used to go out and take – be able to take walks and part of that time is when I 

worked at Fast Bucks.

Q: No. When did you last work at Fast Bucks?

A: In –

Q: That was 2003, wasn’t it?

A: Yeah.

Q: Okay. That was six years before you saw Dr. Westergaard and you saw Dr. 

Westergaard –

A: Because I was seeing Dr. Henderson and then they –

Q: Right –

A: – took me.

Q: Right. So, at the time you switched from Henderson to Westergaard, were you 

doing a whole lot more during the day?
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

27

28

United States District Court

Northern District of California

A: No.

AR 110. This ambiguous testimony does not provide a specific, clear, and convincing basis for 

the ALJ’s conclusion that Claimant “was even more functional during the adjudicative period” 

than she was at the time of her disability hearing.

In conclusion, as discussed above, the reasons cited by ALJ are not clear and convincing 

reasons, supported by substantial evidence, for giving “little weight” to the uncontradicted opinion 

of Dr. True. Accordingly, the ALJ erred in declining to find Dr. True’s opinion to be controlling. 

Because the vocational expert testified that a claimant with the physical limitations described in 

Dr. True’s medical opinion would be unable to do the alternative jobs identified by the vocational 

expert, Dr. True’s opinion “alone establishes that [Claimant] is entitled to benefits.” See Trevizo, 

2017 U.S. App. LEXIS 17979, at *27 (citation omitted). 

D. The ALJ’s Findings on Transferable Skills

At step 5, the ALJ must determine whether the claimant is able to do any other work 

considering her residual functional capacity, age, education, and work experience. 20 C.F.R 

§ 404.1520(g)(1). The Social Security regulations explain that transferable skills exist “when the 

skilled or semi-skilled work activities [the claimant] did in past work can be used to meet the 

requirements of skilled or semi-skilled work activities of other jobs or kinds of work.” 20 C.F.R. 

§ 404.1568(d)(1). The regulations also state that “[t]ransferability is most probable and 

meaningful among jobs in which – (i) The same or a lesser degree of skill is required; (ii) The 

same or similar tools and machines are used; and (iii) The same or similar raw materials, products, 

processes, or services are involved.” 20 C.F.R. § 404.1568(d)(2). 

Here, the ALJ concluded that Claimant had acquired “general clerical” skills from her past 

relevant work as assistant manager of a hardware store that were transferable to three other 

occupations with jobs existing in significant numbers in the national economy: order clerk 

food/beverage; data entry clerk; and appointment clerk. AR 28-29. Each job is discussed below.

////
18

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

27

28

United States District Court

Northern District of California

Order clerk food/beverage: The vocational expert identified “order clerk 

food/beverage,” Dictionary of Occupational Title (“DOT”) 209.567-14, as one job that Claimant 

could perform. AR28. As acknowledged by the ALJ, this position has a Specific Vocational 

Preparation (“SVP”) of 2. AR29; DOT 209.567-14. An SVP of 2 corresponds to unskilled work. 

Social Security Ruling (“SSR”) 00-4p, 2008 SSR LEXIS 8. However, because Claimant was of 

advanced age (57 years old) as of her date last insured and, according to the ALJ, had a severe 

impairment that limited her to no more than light work (with limitations) (AR 24), her skills had to 

be transferable to skilled or semiskilled light work. 20 C.F.R. 404.1568 (d)(4). The 

Commissioner concedes that this position is not at issue because it is an unskilled job. Def. MSJ

at 3 n.3. 

Appointment clerk: The vocational expert identified “appointment clerk,” DOT 237.367-

010, as one job that Claimant could perform. AR29. As acknowledged by the ALJ, this position 

has an SVP of 3. AR28; DOT 209.567-14. An SVP of 3 corresponds to semiskilled work. SSR 

00-4p. Thus, this position meets the requirement that Claimant’s skills had to be transferable to 

skilled or semiskilled light work. 20 C.F.R. 404.1568 (d)(4). 

Data entry clerk: The vocational expert identified “data entry clerk,” DOT 203.582-054, 

as one job that Claimant could perform. AR28. As acknowledged by the ALJ, this position has an 

SVP of 4. AR28; DOT 209.567-14. An SVP of 4 corresponds to semiskilled work. SSR 00-4p. 

Thus, this position meets the requirement that Claimant’s skills had to be transferable to skilled or 

semiskilled light work. 20 C.F.R. 404.1568 (d)(4). 

Plaintiff contends that the ALJ erred in concluding that Claimant had gained skills in her 

position as an assistant store manager that were transferable to jobs as an appointment clerk or 

data entry clerk. The Commissioner argues that Plaintiff waived these arguments and that, in any 

event, the ALJ’s transferable skills analysis was correct.

////
19

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

27

28

United States District Court

Northern District of California

1. Waiver

The Commissioner argues that Plaintiff waived any argument concerning transferability of 

skills by failing to question or otherwise challenge the vocational expert’s testimony on this issue 

during the hearing before the ALJ. Def. MSJ at 3. Even if the doctrine of issue exhaustion applies 

in the context of social security disability determinations, a claimant can preserve issues by raising 

them before the Appeals Council. See Brewes v. Comm’r of Soc. Sec Admin., 682 F.3d 1157, 

1162 (9th Cir. 2012) (on review of ALJ’s decision, administrative record includes evidence 

presented for the first time to Appeals Council). Here, Claimant raised the ALJ’s failure to 

address whether vocational adjustment was required in her brief to the Appeals Council. AR 364-

65. Accordingly, Claimant did not waive her argument that the ALJ’s transferable skills analysis 

was erroneous.

2. Identification of transferable skills and vocational adjustment

Plaintiff challenges the ALJ’s determination at step 5 on the grounds that the ALJ’s finding 

that Claimant had transferable “general clerical” skills was not supported by substantial evidence. 

See Pl. MSJ at 8. According to Plaintiff, Claimant was not asked what clerical functions she 

performed as assistant manager, and the vocational expert did not identify what specific skills 

would transfer. Id. at 7-8. “When transferability of skills is an issue and must be decided, the ALJ 

is required to make certain findings of fact and include them in the written decision.” Bray, 554 

F.3d at 1223 (quoting SSR 82-41, 1982 SSR LEXIS 34, at *19). Specifically, “[w]hen a finding is

made that a claimant has transferable skills, the acquired work skills must be identified, and 

specific occupations to which the acquired work skills are transferable must be cited in the ALJ's 

decision.” Id.

Moreover, “[i]n order to find transferability of skills to skilled sedentary work for 

individuals who are of advanced age (55 and over), there must be very little, if any, vocational

adjustment required in terms of tools, work processes, work settings, or the industry.” Id. (citing 

20 C.F.R. pt. 404, subpt. P, app. 2 § 201.00(f)). The vocational expert testified that the two 

relevant jobs—appointment clerk and data entry clerk—were sedentary. AR 121-22.

Here, the ALJ stated that Claimant had acquired “general clerical” skills from her work as 
20

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

27

28

United States District Court

Northern District of California

assistant manager of a hardware store. AR 28. This is not a sufficient identification of the 

acquired work skills. Nor did the ALJ or the vocational expert address whether Claimant, who 

was of advanced age as of the date last insured (id.), would have to undergo more than minimal 

“vocational adjustment” to perform successfully the tasks required of the other jobs. Because the 

ALJ’s conclusion that Claimant was not disabled was based in part on his finding that she had 

transferable work skills, these errors in the ALJ’s evaluation of Claimant’s transferable work skills 

warrant a remand. See Bray, 554 F.3d at 1226. 

3. Transferability under other rubrics

Plaintiff also argues that the ALJ erred in determining that Claimant’s skills from being an 

assistant manager were transferable to other positions as an appointment clerk or data entry clerk 

because the “work field” and “Material, Products, Subject Matter, and Services (‘MPSMS’)”

codes for those other positions differ from those for an assistant manager. See Pl. MSJ at 13. 

According to Plaintiff, “[u]se of SVP [specific vocational preparation], work fields, and MPSMS 

codes has long stood as the only acceptable methodology” for transferability of skills and that 

“[t]ransferability does not exist between an assistant manager and an appointment clerk or data 

entry clerk when using the universally recognized methodology of work fields and MPSMS 

codes.” Id. at 11, 15-16. 

Plaintiff cites no legal authority to support this argument. To the contrary, the only cases

the Court has identified on this issue have universally rejected Plaintiff’s argument. As another 

court has explained:

The only legal authority that this Court could find that referred to the MPSMS was an 

unpublished Ninth Circuit memorandum decision that rejected the plaintiff's argument as 

"non-persuasive" that "her skills are not transferable because the alternate work positions 

suggested by the ALJ are not found under the same work file number or Material, 

Products, Subject Matter, and Services number as her prior position of Shipping and 

Receiving Clerk in the Dictionary of Occupational Titles." See Thompson v. Barnhart, 148 

F. App'x 634, 635 (9th Cir. 2005). No other Ninth Circuit or district court case relies upon, 

or even cites, Plaintiff's purported "only responsible methodology" theory. 

Garcia v. Astrue, No. 1:11-cv-00774-SKO, 2012 U.S. Dist. LEXIS 132493, at *21-22 (E.D. Cal. 

Sept. 17, 2012); see also Hartley v. Colvin, No. 2:13-cv-1863 AC, 2014 U.S. Dist. LEXIS 159309, 
21

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

27

28

United States District Court

Northern District of California

*17 (E.D. Cal. Nov. 12, 2014) (“plaintiff's contention that the vocational expert must rely on 

matching work fields and MPSMS codes when analyzing transferability is unsupported by any 

legal authority. In fact, the regulations specify that a complete similarity of degree of skill, tools 

and machinery used, and raw materials, products, processes or services involved ‘is not necessary 

for transferability.’”); Nunez v. Colvin, No. EDCV 13-2131 AGR, 2014 U.S. Dist. LEXIS 133183, 

at *12 (C.D. Cal. Sep. 22, 2014), vacated on other grounds, 673 Fed. Appx. 776 (9th Cir. 2017)

(rejecting argument that vocational expert must rely on matching work fields and MPSMS codes 

when analyzing transferability). 

Plaintiff’s argument that the ALJ erroneously failed to evaluate transferability under 

Program Operational Manual Systems (“POMS”) is similarly misplaced. “Court decisions have 

rejected the notion that use of the POMS WF and MPSMS codes is required [and] POMS itself, 

like the Regulations, does not require a complete similarly of all factors considered in evaluating 

the degree of vocational adjustment required.” Engel v. Colvin, No. SACV 14-01989-JEM, 2015 

U.S. Dist. LEXIS 144467, *13-14 (C.D. Cal. Oct. 23, 2015).

The ALJ’s reliance on the vocational expert’s testimony and the DOT in evaluating 

transferability of skills was proper. 

E. Disposition

Because the Court has concluded that the ALJ erred in discounting the opinion of Dr. True 

and in analyzing Claimant’s transferable skills, the Court must decide whether to remand the case 

to the Social Security Administration for further proceedings or for the payment of benefits. 

Remand is appropriate where it is not clear from the record whether the ALJ would be required to 

find a plaintiff disabled if all the evidence were properly evaluated. See Benecke v. Barnhart, 379 

F.3d 587, 595 (9th Cir. 2004). However, “where the record has been developed fully and further 

administrative proceedings would serve no useful purpose, the district court should remand for an 

immediate award of benefits.” Id. at 593 (citations omitted). “More specifically, the district court 

should credit evidence that was rejected during the administrative process and remand for an 

immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting 
22

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

27

28

United States District Court

Northern District of California

the evidence; (2) there are no outstanding issues that must be resolved before a determination of 

disability can be made; and (3) it is clear from the record that the ALJ would be required to find 

the claimant disabled were such evidence credited.” Id. (citations omitted).

Because the Court concludes that the ALJ did not provide legally sufficient reasons for 

discounting the opinion of Dr. True, that opinion is treated as true. See id. at 594. Dr. True’s 

opinion, credited as true, mandates an award of benefits. Dr. True opined that Claimant had 

limitations in her reaching, handling, and fingering abilities and would need to take breaks and 

keep her legs elevated throughout the work day. AR 889-91. At the administrative hearing, the 

vocational expert admitted that these limitations would not be accommodated in the alternative 

jobs she had identified for Claimant—appointment clerk or data entry clerk. AR 126-27. Thus, 

the evidence already in the record establishes that Claimant cannot perform her past relevant work 

or other jobs in the national economy. Moreover, no additional evidence can be adduced from 

Claimant on remand because she is now deceased. 

Under these circumstances, remand with a direction for payment of benefits is appropriate.

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Plaintiff’s motion for summary 

judgment, DENIES the Commissioner’s motion for summary judgment, and REMANDS for the 

calculation and award of benefits. 

SO ORDERED.

Dated: October 6, 2017

SUSAN VAN KEULEN

United States Magistrate Judge