IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

LENA M. NAVARRO, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner of Social 

Security, 

Defendant. 

Kathryn Tassinari 

Mark A. Manning 

Harder, Wells, Baron & Manning, P.C. 

474 Willamette, Suite 200 

Eugene, OR 97401 

Attorneys for plaintiff 

Billy Williams 

Interim United States Attorney 

Ronald K. Silver 

Assistant United States Attorney 

1000 SW Third StAve., Suite 600 

Portland, OR 97201 

Catherine Escobar 

Case No. 6:14-cv-00811-AA 

OPINION AND ORDER 

Special Assistant United States Attorney 

Office of the General Council 

Social Security Administration 

701 Fifth Ave., Suite 2900 M/S 221A 

Seattle, WA 98104 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 1 of 25
AIKEN, Chief Judge: 

Plaintiff Lena Navarro brings this action pursuant to the 

Social Security Act (nAct") to obtain judicial review of a final 

decision of the Commissioner of Social Security (ncommissioner") 

denying his application for disability insurance benefits 

(nDIB") and supplemental security income (nSSI"). For the 

reasons set forth below, the Commissioner's decision is REVERSED 

and REMANDED for payment of benefits. 

PROCEDURAL BACKGROUND 

On April 8, 2010, plaintiff filed her applications for DIB 

and SSI. Tr. 182, 186. After the applications were denied 

initially and on reconsideration, plaintiff timely requested a 

hearing before an administrative law judge (nALJ"). Tr. 133. On 

March 14, 2012, an ALJ hearing was held before the Honorable 

Stuart Waxman; plaintiff was represented by counsel and 

testified therein; a vocational expert (nVE") also testified. 

Tr. 13-47. On April 2, 2012, ALJ Waxman issued a decision 

finding plaintiff not disabled within the meaning of the Act. 

Tr. 103-113. After the Appeals Council declined review, 

plaintiff filed a complaint in this court. Tr. 100-102. 

STATEMENT OF FACTS 

Born on June 20, 1970, plaintiff was 34 years old on the 

Page 2 - Opinion and Order . 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 2 of 25
alleged onset date of disability and 41 years old at the time of 

the hearing. Tr. 13, 182, 186. Plaintiff dropped out of high 

school after completing the tenth grade. Tr. 15, 221. She 

previously worked as a gas station attendant, fast food worker, 

cook helper, administrative clerk, and residence leasing agent. 

Tr. 41-42. Plaintiff alleges she became disabled on September 1, 

2004 due to degenerative disc disease, neuropathy, severe back 

arthritis, shoulder bursitis, depression, weight gain, bilateral 

carpal tunnel syndrome ("CTS"), pinched nerves in elbows, 

dyslexia, and chronic pain. 

STANDARD OF REVIEW 

The court must affirm the Commissioner's decision if it is 

based on proper legal standards and the findings are supported 

by substantial evidence in the record. Hammock v. Bowen, 879 

F.2d 498, 501 (th Cir. 1989). Substantial evidence is "more than 

. ' 

a mere scintilla. It means such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 

(1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 

(1938)). The court must weigh "both the evidence that supports 

and detracts from the [Commissioner's] conclusions. Martinez v. 

Heckler, 807 F. 2d 771, 772 (9th Cir. 1986). 

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Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 3 of 25
The initial burden of proof rests upon the plaintiff to 

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 

(9th Cir. 1986). To meet this burden, the plaintiff must 

demonstrate an "inability to engage in any substantial gainful 

activity by reason of any medically determinable physical or 

mental impairment which can be expected . . to last for a 

continuous period of not less than twelve months." 42 U.S.C. § 

423(d) (1) (A). 

The Commissioner has established a five-step sequential 

process for determining whether a person is disabled. Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First, 

the Commissioner determines whether a plaintiff is engaged in 

"substantial gainful activity." Yuckert, 482 U.S. at 140; 20 

C.F.R. § 416.920(b). If so, the plaintiff is not disabled. 

At step two, the Commissioner determines whether the 

plaintiff has a "medically severe impairment or combination of 

impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 

416.920(c). If not, the plaintiff is not disabled. 

At step three, the Commissioner determines whether the 

impairment meets or equals "one of a number 'of listed 

impairments that . are so severe as to preclude substantial 

gainful activity." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 

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Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 4 of 25
416.920(d). If so, the plaintiff is conclusively presumed 

disabled; if not, the Commissioner proceeds to step four. 

Yuckert, 482 U.S. at 141. 

At step four, the Commissioner determines whether the 

plaintiff can still perform ~past relevant work." 20 C.F.R. § 

416.920(e). If plaintiff can work, she is not disabled. If she 

cannot perform past relevant work, the burden shifts to the 

Commissioner. At step five, the Commissioner must establish that 

the plaintiff can perform other work that exists in the national 

economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 

416.920(e)&(f). If the Commissioner meets this burden, the 

plaintiff is not disabled. 20 C.F.R. § 416.966. 

THE ALJ'S FINDINGS 

At step one of the five step sequential evaluation process, 

the ALJ found that plaintiff had not engaged in substantial 

gainful activity since the application date. Tr. 105. At step 

two, the ALJ determined that plaintiff has the following severe 

impairments: spine syndrome, failed back syndrome or post 

laminectomy syndrome, myalgia myositis, lumbago, tardy ulnar 

palsy, status post left ulnar nerve transposition in June 2006, 

status post right ulnar nerve transposition in September 2006, 

degenerative disc disease of the lumbar spine with some central 

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Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 5 of 25
canal stenosis, status post laminectomies and fusion, lumbar 

radiculopathy, minimal degenerative changes of the thoracic 

spine, bilateral CTS, status post bilateral carpal tunnel 

releases, obesity, fibromyalgia, muscle spasm, a history of 

edema, and mild to moderate obstructive sleep apnea. Tr. 105-

106. At step three, the ALJ found that plaintiff's impairments 

did not meet or equal the requirements of a listed impairment. 

Tr. 107. 

As plaintiff did not establish disability at step three, 

the ALJ continued to evaluate how plaintiff's impairments 

affected her ability to work. The ALJ resolved that plaintiff 

had the residual functional capacity ("RFC") to perform 

sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 

416.9679(a), except that she should never climb ladders, ropes, 

scaffolds, ramps, or stairs; should never balance, kneel, 

crouch, or crawl; can occasionally stoop, push and/or pull 

bilaterally, reach overhead bilaterally; and should avoid all 

exposure to unprotected heights, walking on uneven terrain, and 

all use of "moving machinery." Tr. 107. 

At step four, the ALJ found that plaintiff was capable of 

performing her past relevant work as an administrative clerk. 

Tr. 111. Accordingly, the ALJ concluded that plaintiff was not 

Page 6 - Opinion and Order 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 6 of 25
disabled within the meaning of the Act. Tr. 113. 

DISCUSSION 

Plaintiff alleges the ALJ erred by (1) not fully crediting 

her pain testimony, (2) failing to properly credit the opinion 

of Dr. Jeffrey Bert, and (3) finding plaintiff capable of 

performing her past relevant work. 

I. Plaintiff's Testimony 

Plaintiff contends the ALJ failed to provide clear and 

convincing reasons, supported by substantial evidence, to reject 

her subjective symptom statements concerning the extent and 

severity of her impairments. When a plaintiff has medically 

documented impairments that could reasonably be expected to 

produce some degree of the symptoms complained of, and the 

record contains no affirmative evidence of malingering, "the ALJ 

can reject the claimant's testimony about the severity of . 

symptoms only by offering specific, clear and convincing reasons 

for doing so." 1 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 

1996). A general assertion that plaintiff is not credible is 

insufficient; the ALJ "must state which . . testimony is not 

1 The court notes defendant's contention that the 

"substantial evidence" rather than "clear and convincing" 

standard should be applied when assessing an ALJ's credibility 

findings. Def.'s Br. 5-6. The Ninth Circuit has repeatedly 

affirmed that the clear and convincing standard applies. Se€, 

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

Page 7 - OPINION AND ORDER 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 7 of 25
credible and what evidence suggests the complaints are not 

credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) 

In assessing a plaintiff's credibility, an ALJ may consider 

a range of factors, including ordinary techniques of credibility 

evaluation, such as (1) plaintiff's reputation for lying or 

prior inconsistent statements concerning symptoms; (2) 

unexplained or inadequately explained failure to seek treatment 

or to follow a prescribed course of treatment; and (3) 

evaluation of plaintiff's daily activities. See Ghanim v. 

Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing Smolen, 80 

F.3d at 1284). The reasons proffered must be "sufficiently 

specific to permit the reviewing court to conclude that the ALJ 

did not arbitrarily discredit the plaintiff's testimony." Orteza 

v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citation omitted) 

However, when evidence supports either confirming or reversing 

an ALJ's decision, the court may not substitute its own judgment 

for that of the ALJ. See Batson v. Comm'r of Soc. Sec. Admin., 

359 F.3d 1190, 1196 (9th Cir. 2004). 

The ALJ found that objective medical evidence did not 

"fully support" plaintiff's alleged level of impairment. Tr. 

108-109. The ALJ explained that although MRis of plaintiff's 

lumbosacral and thoracic spine revealed abnormal findings, her 

Page 8 - Opinion and Order 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 8 of 25
extreme symptoms were nonetheless disproportionate. Id. Once a 

plaintiff produces medical evidence of an underlying impairment, 

an ALJ may not discredit plaintiff's testimony regarding 

subjective symptoms merely because they are unsupported by 

medical evidence. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 

2010). Thus, alone, the ALJ's rationale would not suffice. 

However, the ALJ also impugned plaintiff's credibility based on 

symptom magnification and self-limiting behaviors. Tr. 107-109. 

Self-limiting behaviors on examination, as well as symptom 

exaggeration, may detract from a plaintiff's credibility. Thomas 

v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 

First, the ALJ indicated plaintiff demonstrated positive 

Waddell's signs on examination in March 2005. Tr. 288. Plaintiff 

references a medical journal abstract which states that 

Waddell's testing "does not distinguish between malingering and 

psychological conditions." Pl.'s Reply Br. 3 (citing Gordon 

Waddell et al., Nonorganic Physical Signs in Low-Back Pain, 5 

Spine 117, 117-25 (Mar.-Apr. 1980)). Plaintiff further notes 

that in order to be deemed "clinically significant," three or 

more Waddell's signs must be detected on examination. Id. 

Although defendant cites one case that found detection of 

Waddell's signs potentially probative, the case is 

Page 9 - OPINION AND ORDER 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 9 of 25
distinguishable, as there was no suggestion that fewer than 

three Waddell's signs were detected, as here. Tr. 288, See 

Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001). More 

significantly, the examining physician did not assign any import 

to the findings. Tr. 287-89. Therefore, the ALJ's reason is not 

clear and convincing. See Reinertson v. Barnhart, 127 Fed.Appx. 

285, 289 (9th Cir. 2005) (Where an examining physician reported 

two out of five Waddell's signs but did not assign any 

significance to them, the ALJ's conclusion that physician had 

documented "functional behavior" was not supported by 

substantial evidence.). 

Next, plaintiff argues it was improper to use plaintiff's 

reported "somatization" to undermine her credibility. Pl.'s 

Reply Br. 4. Indeed, there are only two references to 

somatization in the record. In 2008, Dr. Rusu reported, "I 

expect there is a degree of somatization but I am not sure about 

the secondary gains . " Tr. 584. In 2010, another 

physician, after r~viewing Dr. Rusu's notes, indicated 

"[plaintiff] has some degree of somatization." Tr. 410. The 

physicians appeared to be inferring that plaintiff was 

exaggerating symptoms in order to obtain pain medication, and 

both discussed limiting plaintiff's access to narcotics. Tr. 

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Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 10 of 25
410, 584. Nonetheless, neither the ALJ nor the treating doctors 

explicitly mentioned drug-seeking behavior, commented on the 

degree of any symptom exaggeration, or whether her 

"somatization" was willful deception or rather a psychiatric 

response consistent with somatization disorder. Further, the 

court notes that the two incidents where somatization disorder 

appears in the record were fairly isolateq considering the 

seven-year relevant time period. Further, the defendant does not 

proffer any further evidence of somatization in support of the 

ALJ's findings. Accordingly, the ALJ's reference to isolated 

"possible somatization" is not a sufficient rationale to 

discount plaintiff's credibility. 

The ALJ also questioned plaintiff's credibility because she 

missed medical appointments. Tr. 110. The parties agree 

plaintiff missed medical appointments on two occasions during 

the relevant time period. Pl.'s Reply Br. 5; Def.'s Br. 5; Tr. 

570. Although failure to follow a prescribed course of treatment 

or an inadequately explained failure to seek treatment may 

impact credibility, plaintiff's absence from two appointments 

over a seven-year time period is not probative, particularly 

considering she provided reasons for her absences. Pl.'s Opening 

Br. 17; See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 

Page 11 - OPINION AND ORDER 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 11 of 25
2008) . 

The ALJ next noted that plaintiff's ADL's, as reported by 

plaintiff and her daughter, demonstrated functionality which 

belied disability. Tr. 109, 242-48 250-56. The ALJ noted that 

plaintiff is ~ble to clean, watch television, cook, and provide 

care for her granddaughter, who lives with her. 2 Tr. 109, 242-43. 

Plaintiff, in her disability application, indicated she is able 

to go out on her own, shop and handle money, get along with 

others, pay attention and follow directions, and manage stress 

and changes in her routine. Tr. 245, 247-48. At hearing, 

plaintiff explained she rarely goes out on her own other than to 

grocery shop, does not drive, has a state-provided assistant 20 

hours per week to help with housekeeping and food preparation, 

has trouble navigating the stairs to and from her apartment, and 

uses a chair while in the shower. Tr. 32-36. Plaintiff's 

daughter, who the ALJ generally found credible on this issue, 

indicated that although plaintiff is able to clean and prepare 

some meals, it takes several hours for her to do chores, and 

even simple tasks such as laundry require assistance. Tr. 110, 

2 The court notes that although caring for a young child 

suggests a certain level of functionality, the ALJ did not 

provide specific examples of plaintiff's childcare duties which 

were inconsistent with her alleged level of impairment. The fact 

that plaintiff "cares" for a child is not sufficienti without 

greater specificity, to impugn her credibility. 

Page 12 - Opinion and Order 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 12 of 25
250-56. 

Activities such as light household chores, grocery 

shopping, and occasional preparation of meals are activities 

that do not necessarily translate to a full-time work 

environment. Fair v. Bowen, 8$5 F.2d 597, 603 (9th Cir. 1989) 

Only if a plaintiff's level of activity is inconsistent with 

plaintiff's alleged limitations would such activities bear on 

credibility. Reddick v. Chater, 157 F.3d 715, 723 n.1 (9th Cir. 

1998). Here, while plaintiff's activities reflect some 

functionality, the ALJ failed to identify inconsistencies 

between plaintiff's activities and her alleged level of 

impairment; he merely articulated plaintiff's fairly low 

activity level. Tr. 109. While the ALJ appeared to attach 

significance to plaintiff's willingness to care for her 

granddaughter, the ALJ did not provide detail on what aspect of 

caregiving was contradicted by plaintiff's allegations. Id. As 

such, the ALJ's failure to explain why plaintiff's testimony was 

inconsistent with her ADL's was reversible error. Garrison v. 

Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). 

Plaintiff further argues that the ALJ misinterpreted her 

alleged self-limiting behavior during some medical examinations. 

For example, in 2006, Dr. Bert reported plaintiff appeared to be 

Page 13 - OPINION AND ORDER 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 13 of 25
voluntarily limiting her spine bending on examination due to 

pain. Tr. 109, 306. Dr. Alina Rizea indicated on two separate 

encounters in 2005 that plaintiff "would not bend" during 

examination, citing back pain. Tr. 316, 318. In 2012, an 

examining nurse reported plaintiff's performance on a 

neurological examination was inconsistent, and noted plaintiff 

may be "consciously limiting her responses." Tr. 722. In 2011, a 

nurse practitioner indicated plaintiff was "unwilling/unable to 

put shoulder through ROM" due to pain. Tr. 696. 

Despite these incidents, not one of the physicians 

performing the examinations indicated that plaintiff was being 

uncooperative, and only one mentioned that plaintiff "may" have 

been consciously limiting herself. Tr. 291, 306, 316, 318, 585, 

696, 722. That a plaintiff "may" have been consciously limiting 

herself during a single examination is not clear and convincing 

grounds to impugn a plaintiff's credibility. While the court 

recognizes that self-limiting behavior is generally a valid 

reason to discount a plaintiff's testimony pursuant to Thomas, 

unlike that case, the physicians here did not indicate plaintiff 

attempted to exaggerate her symptoms, exhibit dramatic pain 

behaviors, or was likely capable of significantly better 

performance. Tr. 290-291, 306, 316, 318, 584-85, 695-96, 721-23. 

Page 14 - Opinion and Order 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 14 of 25
To the contrary, plaintiff's physicians, particularly after 

2010, routinely noted plaintiff's history of back surgeries and 

reports of extreme back pain, diagnosed back disorders, and 

continued to prescribe medications to address her impairments. 

Id. 

Therefore, based on the record as a whole, the court does 

not find that "possible" self-limiting behavior on a handful of 

back examinations in the context of degenerative disc disease of 

the lumbar spine, lumbago, spine syndrome, and failed back 

syndrome (or post-laminectomy syndrome) to be determinative of 

plaintiff's overall credibility. See Tr. 105-106. An ALJ's error 

is harmless only so long as the ALJ provides valid reasons for 

rejecting the evidence, substantial evidence supporting the 

ALJ's credibility determination remains, and the error does not 

negate the validity of the ultimate credibility conclusion. 

Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th 

Cir. 2008) (citations omitted). Here, the ALJ' s rationales do not 

withstand scrutiny; therefore, the credibility assessment is not 

valid. 

II. Dr. Bert's Opinion 

The ALJ assigned little weight to Dr. Bert's opinion that 

plaintiff was "unemployable," "completely disabled," and "fits 

Page 15 - OPINION AND ORDER 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 15 of 25
the criteria for Social Security complete and total disability." 

Tr. 110, 496, 558. The ALJ further found that Dr. Bert's 

assessment was not consistent with the objective evidence, that 

the doctor relied heavily on plaintiff's own subjective 

complaints, and that the opinions were improper because the 

issue was reserved to the Commissioner. Tr. 110. 

The ALJ must consider all medical opinion evidence. 20 

C.F.R. § 404.1527(b). Physicians may provide medical or clinical 

opinions, or they may provide opinions on the ultimate issue of 

disability. Reddick, 157 F.3d at 725. A medical source's 

conclusory statement that plaintiff is disabled or "unable to 

work" does not bind the Commissioner to find plaintiff is 

disabled. 20 C.F.R. § 404.1527(d) (1). However, opinions about 

the likelihood of disability are not conclusory. Hill v. Astrue, 

698 F.3d 1153, 1160 (9th Cir. 2012). Generally, the ALJ should 

afford more weight to doctors who treat a plaintiff than those 

who do not. Lester, 81 F.3d 821, 830 (9th Cir. 1995). In 

resolving ambiguities in the medical record, an ALJ may reject 

the uncontradicted opinion of a treating doctor by providing 

clear and convincing reasons, supported by substantial evidence, 

to do so; the contradicted opinion of a treating doctor may be 

rejected by providing specific and legitimate reasons ~hat are 

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Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 16 of 25
supported by substantial evidence. Orn v. Astrue, 495 F.3d 625, 

631-32 (9th Cir. 2007). When evaluating medical opinions, an ALJ 

is not required to accept an opinion that is brief, conclusory, 

arid inadequately supported by objective findings. Bayliss v. 

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may also 

reject the opinion of a doctor that is largely based on a 

plaintiff's self-reports when the plaintiff has been deemed not 

credible. Tommasetti, 533 F.3d at 1041. 

The parties dispute whether Dr. Bert's opinion statements 

were conclusory. Pl.'s Opening Br. 19; Def.'s Br. 12. In 2010, 

Dr. Bert wrote that plaintiff was "unemployable." Id. Although 

Dr. Bert mentioned some probable causes of plaintiff's pain, his 

assertion that plaintiff was unemployable did not include any 

explanation or objective findings; therefore, the opinion was 

conclusory. 20 C.F.R. § 404.1527(d) (1) For the same reasons, 

the ALJ did not err in disregarding Dr. Bert's 2011 opinion that 

plaintiff was "completely disabled" and "fit[] the criteria for 

Social Security complete and total disability." Tr. 558. 

Nevertheless, Dr. Bert provided other medical opinion 

evidence in February 2012 that was more detailed in describing 

various aspects of plaintiff's impairments. Tr. 735-37. Dr. Bert 

indicated via questionnaire that plaintiff's diagnoses were 

Page 17 -OPINION AND ORDER 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 17 of 25
spinal stenosis at L2-3 and status post-fusion at L3-L5. Tr. 

735. He indicated plaintiff experienced back and leg pain, would 

have to rest one hour per day, had weakness, should not drive, 

could stand and walk for less than 2 hours per day, could sit 

less than 6 hours per day, could occasionally lift up to ten 

pounds, could never lift 20 pounds or more, and would likely 

miss more than two days per month due to her impairments. Tr. 

736-37. Defendant argues that Dr. Burt's 2012 opinion is invalid 

because it is unsupported by objective findings or explanation 

for the restrictions, and was based on plaintiff's subjective 

reports. Def.'s Br. 12. 

While Dr. Bert's February 2012 opinion predominantly 

consists of 1-2 word answers and check-the-box responses, it 

nonetheless sets out necessary details that were lacking in the 

doctor's previous opinions. The 2012 opinion indicates 

plaintiff's diagnoses, symptoms, treatment plan (surgery at L2-

3), and a functional assessment. Tr. 735-37. Further, Dr. Bert, 

in a treatment note from June 20, 2011, reported: 

This unfortunate woman has a known spinal 

stenosis at L2-3. She has been falling down 

and unable to function without the use of a 

cane. She has a lot of leg discomfort on the 

right and the left . [t]here is weakness 

on examination today. There is marked 

limitation of motion of her back and 

positive straight leg raise on the right 

Page 18 - Opinion and Order 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 18 of 25
. I reviewed her MRI from 2009 and it was 

clear at that point that she had moderate 

canal stenosis at L2-3, which is above her 

L3-L5 fusion. I believe this is a true 

transition syndrome progressively worsening 

with weakness . . I am strongly 

recommending a decompression at L2-3. 

Tr. 744. In October 2011, Dr. Bert found, among other things, 

"marked limitation of motion . [in] back flexion ahd 

extension." Tr. 740. Plaintiff then underwent a lumbar MRI on 

November 18, 2011. Tr. 746-47. Dr. Bert reviewed the findings 

and reported plaintiff had a "9-mm spinal canal at [L]2-3 with 

foraminal stenosis." Tr. 738. He also noted decreased strength 

in the left anterior thigh, left foot numbness, and positive 

straight leg raising on the right. Id. The doctor concluded 

plaintiff "has the ravages of progressive spinal stenosis." Id. 

Thus, while the 2012 questionnaire is somewhat laconic, the 

opinion goes beyond a bare conclusion, and Dr. Bert's treatment 

notes from the time support his opinions. See Burrell v. Colvin, 

775 F. 3d 1133, 1140 (9th Cir. 2014). Therefore, the .ALJ erred in 

rejecting Dr. Burt's 2012 opinion. 

The ALJ also found that Dr. Bert failed to adequately 

address plaintiff's "increasingly more obvious symptom 

exaggeration" around the time of his 2012 opinion. Tr. 111. As 

described above, although plaintiff reported increasing 

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Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 19 of 25
symptoms, it was Dr. Bert's opinion that they were related to 

progressively worsening transition syndrome in the area of her 

spine above her spinal fusion. Tr. 744. Further, the ALJ's 

assertion that plaintiff's symptoms were due to exaggeration was 

largely based on the ALJ's assessment of her "significantly 

diminished credibility" regarding subjective complaints and 

effort-dependent testing. Tr. 111. However, because the ALJ 

failed to give specific'· clear and convincing reasons for 

discrediting plaintiff's testimony as explained above, that 

assessment is not a valid reason to discredit Dr. Bert's 

opinion. 3 Burrell, 775 F.3d at 1141 (citing Tommasetti, 533 F.3d 

at 1041). 

Accordingly, the ALJ did not provide legitimate reasons 

supported by substantial evidence for giving little weight to 

Dr. Bert's 2012 assessment. 

III. VE Testimony 

Plaintiff argues that the ALJ's step four finding was 

erroneous because it did not account for the limitations set 

3 Defendant, in briefing, also notes that plaintiff's 

insurance declined to pay for the surgery recommended by Dr. 

Bert. Def. 's Br. 13. There are any number of reasons why an 

insurance company might decline to pay for a surgery, regardless 

of a plaintiff's disability status. The fact that an insurance 

company declined to cover a surgery, without more, is immaterial 

to the disability determination at issue, 

Page 20 - Opinion and Order 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 20 of 25
forth in the discredited testimony of plaintiff and Dr. Bert. 

Pl.'s Br. 20. As described above, the ALJ determined plaintiff 

could perform work at a sedentary exertion level with additional 

restrictions. Tr. 107. Based on the ALJ's RFC, the VE indicated 

plaintiff was capable of performing her previous work as an 

administrative clerk. Tr. 44, 111. Providing alternative step 

five findings, the VE indicated plaintiff's RFC would allow her 

to perform the occupations of cashier II (660 positions in 

Oregon), microfilming document preparer (117 positions in 

Oregon), and food and beverage clerk (less than 25 positions in 

Oregon). Tr. 45, 112. When the ALJ posed hypothetical questions 

applying the restrictions imposed by Dr. Bert, including an 

hour-long break in addition to regular breaks and missing more 

than two days per month, the VE indicated plaintiff would be 

precluded from all sedentary work. Tr. 44. 

However, as the ALJ's RFC did not include impairments set 

forth by plaintiff through her testimony or by Dr. Bert's 2012 

opinion, it was not based on substantial evidence and is 

therefore invalid. Accordingly, all the jobs -- including 

plaintiff's past relevant work and alternative step five jobs 

identified by the VE based upon the RFC were invalid. 

IV. Remedy 

Page 21 - OPINION AND ORDER 

Case 6:14-cv-00811-AA Document 21 Filed 05/18/15 Page 21 of 25
The ALJ erred in assessing the credibility of plaintiff's 

pain testimony and the weight provided to the treating 

physician's testimony in this .case. Courts are empowered to 

affirm, modify, or reverse the decision by the Commissioner 

"with or without remanding the case for a rehearing.'' 42 U.S.C. 

§ 405(g). Remand for the calculation of benefits is one possible 

remedy. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 

2004) (citations omitted). The Ninth Circuit employs the "creditas-true" standard when the following requisites are met: ( 1) the 

record has been fully developed and further proceedings would 

serve no useful purpose, (2) the ALJ has failed to provide 

legally sufficient reasons for rejecting evidence, and (3) if 

the improperly discredited evidence were credited as true, the 

ALJ would be required to find the plaintiff disabled on remand. 

Garrison, 759 F.3d at 1020. 

Defendant argues that even if plaintiff's 2012 testimony 

and Dr. Bert's 2012 opinion were credited and plaintiff found 

disabled, remand would be necessary for further proceedings 

including calculation of an onset date. Def. 's Br. 15-16. The 

Ninth Circuit has repeatedly stated, "allowing the Commissioner 

to decide the issue again would create an unfair 'heads we win; 

tails, let's play again' system of disability benefits 

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adjudication." Benecke, 379 F.3d at 595j Moisa v. Barnhart, 367 

F.3d 882, 887 (9th Cir. 2004) ("The Commissioner, having lost 

this appeal, should not have another opportunity to show that 

Moisa is not credible any more than Moisa, had he lost, should 

have an opportunity for remand and further proceedings to 

establish his credibility.") ( citation omitted) . 

Here, the record does not require supplementation. In 2012, 

plaintiff's treating physician outlined functional impairments 

based on a recent MRI and examination findings. Tr. 734-37. The 

ALJ failed to provide legally sufficient reasons for 

discrediting Dr. Bert, who had a lengthy longitudinal record of 

treating plaintiff. His opinion should therefore have been 

afforded significant, if not controlling, weight. 20 C.F.R. § 

404.1527; Holohan v. Massinari, 246 F.3d 1195, 1202 (9th Cir. 

2001). The ALJ also failed to provide legally sufficient reasons 

for discrediting plaintiff, who described her many problems 

carrying out even basic housekeeping tasks, such as her 

testimony that she must lay down for half an hour after washing 

a small load of dishes. Tr. 37. Further, plaintiff has a long 

and consistent history of severe back pain following two lumbar 

surgeries, in addition to a range of other problems including 

impairments which cause her to regularly fall at home and drop 

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things. Tr. 29, 35. 

Moreover, despite finding both plaintiff and Dr. Bert not 

credible, the ALJ determined plaintiff could only perform 

limited sedentary work, and only identified four jobs in the 

national economy she could perform. Tr. 112-13. Although the VE 

did not provide job numbers for plaintiff's past relevant work, 

the three alternative jobs plaintiff was found able to perform 

exist only in small numbers in the state economy. Tr. 112; see 

Beltran v. Astrue, 700 F.3d 386, 389-90 (9th Cir. 2012). 

Although not dispositive, certainly even fewer jobs exist in the 

part of the state where plaintiff resides. Thus, even if the 

improperly discredited evidence were only partially credited, it 

is reasonable to assume the already small job numbers would be 

diminished even further. 

Finally, in reviewing the record as a whole, the court is 

satisfied that plaintiff is disabled. Both objective and 

testimonial evidence support a litany of severe impairments that 

affect her ability to function in the workplace. Tr. 105-106. In 

combination, and based on her own pain allegations and the 

opinion of her treating physician, these impairments would 

substantially limit her ability to succeed in even a sedentary 

position. Therefore, if the improperly rejected evidence were 

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credited as true, an ALJ would be required to find plaintiff 

disabled on remand. Accordingly, no further proceedings are 

necessary. Lingenfelter v. Astrue, 504 F.3d 1028, 1040-41 (9th 

Cir. 2007). 

CONCLUSION 

For the reasons set forth herein, this case is REVERSED and 

REMANDED for immediate calculation and payment of DIB and SSI 

benefits. 

IT IS SO ORDERED. ~ 

Dated this ;'~day of May 2015. 

Ann Aiken 

United States District Court Judge 

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