1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

FRANCIA M. GARTZKE,

Plaintiff, Civ. No. 6:14-cv-00806-MC

v. OPINION AND ORDER

CAROLYN W. COLVIN,

Acting Commissioner of the Social Security,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff Francia M. Gartzke brings this action for judicial review of the Commissioner’s 

decision denying her application for supplemental security income and disability insurance 

benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). 

Gartzke, now 48 years old, alleges she became disabled on April 1, 20031 due to mental 

impairments. After a hearing, the administrative law judge (ALJ) determined Gartzke is not 

disabled. TR 28.

2 The ALJ erred in rejecting the opinion of Dr. Ryan Scott, the examining 

psychologist; and in rejecting the law witness testimony of Paula Rowe. The Commissioner’s 

decision is REVERSED and this matter is remanded for calculation of benefits.

 1 Gartzkeoriginally alleged she became disabled on October 1, 1999. At the hearing, Gartzke formally amended the 

alleged onset date to April 1, 2003 as she had substantial gainful activity before that date.

2 “TR” refers to the Transcript of Social Security Administrative Record, ECF No. 9, provided by the Commissioner.

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2 – OPINION AND ORDER

BACKGROUND

Gartzke was sexually abused as a child. She claims to have too much anxiety to work, 

rendering her unable to stay on task more than 30 minutes without taking a break. After 30 

minutes, she becomes very impatient with the task and feels like darting from the room and not 

returning. 

Gartzke had a previous period of disability from September 1990 through January 2001, 

which she voluntarily ended in order to return to work. Gartzke then worked two years as a 

grocery store cashier. Gartzke explains she has anger management issues which cause her to be 

impatient and affect her mood. She fears people will fire her from a job or treat her badly. These 

fears led Gartzke to quit her job as a cashier in 2003. Gartzke also has work experience as a 

caregiver, and a list of odd jobs she performed for very short periods of time, such as raking 

leaves, walking dogs, and baking pies.

She is a high school graduate and attended college for two years before dropping out in 

2008 because she could not pass a required math course. About five times a month, her anxiety 

caused her to leave school before the end of the day.

She uses public transportation but occasionally becomes disoriented upon exiting the bus. 

Gartzke generally does not like to be around people. When she sees her boyfriend, they go to one 

of their homes rather than to a public place. Gartzke suffers from flashbacks on a daily basis 

which take her anywhere from a few minutes to half an hour to recover from. She has terrifying 

nightmares and claims to be hypervigilant. Gartzke does not get along well with authority figures 

such as landlords and supervisors.

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3 – OPINION AND ORDER

Gartzke lives alone in an apartment with her cat. She admits to hygiene problems caused 

by a failure to bathe or wash her clothes. She often has breakfast at a food kitchen run by a 

church, and then takes a bus to the library where she spends about two hours a day. Gartzke does 

her own shopping about three times a month, taking as long as two hours per trip. She watches 

television and browses the internet nearly every day. Gartzke also has contact nearly every day 

with Paula Rowe, her friend of twenty years. 

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

“Substantial evidence is ‘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.’” Hill 

v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 

(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative 

record as a whole, weighing both the evidence that supports and that which detracts from the 

ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can 

reasonably support either affirming or reversing, ‘the reviewing court may not substitute its 

judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 

519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

DISCUSSION

The Social Security Administration utilizes a five step sequential evaluation to determine 

whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of 

proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden 

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4 – OPINION AND ORDER

with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. 

§ 404.1520. At step five, the Commissioner’s burden is to demonstrate that the claimant is 

capable of making an adjustment to other work after considering the claimant’s residual 

functional capacity (RFC), age, education, and work experience. Id. 

At step two, the ALJ found Gartzke had severe impairments of mild degenerative disc 

disease, major depressive disorder, and post traumatic stress disorder (“PTSD”). TR 19. The ALJ 

found Gartzke had the RFC to peform medium work with the following limitations: she can 

understand, remember, and carry out simple, repetitive tasks on a constant basis; she can perform 

more complex tasks occasionally on an intermittent basis; and she can engage in no more than 

occasional, brief interactions with the public and coworkers. TR 21. A vocational expert testified 

that a person with the RFC as stated by the ALJ could work as a cleaner/housekeeper, handpackager, and laundry sorter. Therefore, the ALJ determined plaintiff was not disabled under the 

Social Security Act. TR 28.

Gartzke argues the ALJ erred in rejecting the opinion of Dr. Scott, her examining 

psychologist, in finding Gartzke not credible, and in rejecting lay witness testimony. With 

respect to Dr. Scott’s opinion and the lay witness testimony, I agree.

The record demonstrates Gartzke suffers from significant mental impairments. While 

Gartzke’s physical impairments do not prevent her from working, the record points to the 

conclusion that as of her March 2, 2011 appointment with Dr. Scott, Gartzke’s mental 

impairments prevented her from sustaining full-time employment. 

The ALJ erred in elevating the opinions of the reviewing pyschologists above the opinion

of the examining psychologist. Essentially, the reviewing psychologists attempted to interpret 

Dr. Scott’s own notes and findings by formulating a mental RFC for Gartzke based on the 

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5 – OPINION AND ORDER

information available at that time. Several months later, Dr. Scott formulated a mental RFC for 

Gartzke. Dr. Scott’s RFC, based on his own notes, findings, and recollections from his March 

2011 examination of Gartzke, was more restrictive than the RFCs of the reviewing 

psychologists. As discussed below, the ALJ failed to provide specific and legitimate reasons for 

rejecting Dr. Scott’s RFC. 

While the ALJ pointed to clear and convincing reasons, supported by the record, in 

finding Gartzke not fully credible, he erred in rejecting the law witness testimony of Ms. Rowe. 

This error, however, was harmless.

Crediting Dr. Scott’s opinion as true, the record demonstrates that as of March 2, 2011, 

Gartzke was indeed disabled under the Act. 

Dr. Scott’s Opinion

On March 2, 2011, Dr. Ryan Scott, a licensed psychologist, conducted a 

psychodiagnostic evaluation of Gartzke. TR 389. Dr. Scott diagnosed Gartzke with major 

depressive disorder, recurrent, moderate, and chronic PTSD. TR 393. Dr. Scott noted Gartzke 

appeared “to have symptoms consistent with posttraumatic stress disorder related to sexual abuse 

as a child.” TR 392. During the evaluation, Dr. Scott was able to evaluate Gartzke’s claims that 

she experienced a depressed mood most of the day nearly every day for at least the past decade 

TR 392, as well as her claims of substantial issues with trusting others. TR 389-90. Dr. Scott 

listened to Gartzke’s reports of “terrifying nightmares of cannibalism and sexual contact,” TR 

389, and her estimate of sleeping only one to three hours per night, TR 391. 

The purpose of Dr. Scott’s evaluation was to determine whether Gartzke suffered from 

PTSD and memory loss. TR 389. Despite clearly finding Gartzke credible on her claims of 

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6 – OPINION AND ORDER

PTSD, Dr. Scott noted Gartzke performed adequately on the memory tests and mental status 

testing. TR 391-92. Dr. Scott did not include any specific limitations in his 2011 evaluation.

In January 2013, Gartzke’s attorney sent Dr. Scott his 2011 evaluation along with a 

Mental Residual Functional Capacity Report form to fill out. TR 655-59. Dr. Scott concluded 

Gartzke was “markedly limited” in several ways: maintaining attention and concentration for 

extended two-hour periods; working with or around others without being distracted; accepting

and responding to instructions; and, perhaps most significant, “The ability to complete a normal 

workday and workweek without interruptions from psychologically based symptoms and to 

perform at a consistent pace without an unreasonable number and length of rest periods.” TR 

657-58. The form defined “markedly limited” as “A limitation which precludes the ability to 

perform the designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a 

week, or an equivalent work schedule.” TR 656. Dr. Scott directed the reader to his March 2, 

2011 evaluation of Gartzke. TR 659.

 The limitations in Dr. Scott’s January 2013 RFC are entirely consistent with Dr. Scott’s 

earlier notes and findings that Gartzke: 

appeared to perseverate over the questions that were asked of her. At times she 

had to be redirected to focus on the current question without offering a lengthy 

explanation that was only tangentially related to the question that was asked of 

her. She appeared to be very nervous about her performance on the mental status 

testing and seemed to process information somewhat slower than [the] average 

claimant. 

* * * *

Ms. Gartzke does appear to have symptoms consistent with posttraumatic stress 

disorder related to sexual abuse as a child. She reported that she regularly has 

nightmares and flashbacks. She also reported significant hypervigilance. It 

appears that this has caused problems in the past at work where she believes 

others have negative intentions toward her, perhaps without tangible evidence. 

She also indicated that in her relationship with her boyfriend she tends to be much 

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7 – OPINION AND ORDER

more standoffish and reported impaired ability to relate to him in a trusting 

manner. 

Ms. Gartzke also appears to meet the criteria major depressive disorder, recurrent, 

moderate. She reported experiencing depressed mood most of the day nearly 

every day for at least the last decade. She also reported sleeping difficulties, loss 

of energy, fatigue, difficulty concentrating and lack of motivation. . . . This 

writer’s impression of Ms. Gartzke is that she did seem to process information 

more slowly and was more deliberative than the average claimant.

TR 391-92. 

Dr. Scott’s RFC limitations were contradicted only by the opinions of the state reviewing 

doctors.3 The reviewing psychologists concluded Gartzke had only moderate limitations and 

could consistently maintain concentration, persistence, and pace for simple tasks within normal 

two hour work periods. TR 136-40. As noted, the reviewing psychologists had Dr. Scott’s notes 

and findings, but did not have the benefit of reviewing the RFC Dr. Scott assigned Gartzke. 

Thus, the ALJ had to resolve the conflicting medical opinions. Regarding Dr. Scott’s opinion, the 

ALJ concluded:

With respect to Dr. Scott’s MRFC forms, the undersigned notes the initial form 

was completed approximately 18 months after the one-time evaluation. The 

undersigned questions how accurately Dr. Scott remembered the one hour he 

spent with the claimant after so much time had passed, particularly when 

comparing the State agency opinion that resulted from a review immediately 

following the evaluation to the these MRFC forms. Dr. Scott did not provide any 

specific rationale for his MRFC findings, rather he directed the reader back to his 

evaluation; however, the findings on his evaluation did not seem supportive of the 

degree of limitation in his MRFC form. Dr. Scott had very limited access to the 

medical evidence of record. Moreover, a subsequent neuropsychological 

evaluation resulted in a finding that there was no underlying cognitive disorder, 

which clearly would have affected Dr. Scott’s opinion. The medical evidence of 

record as a whole does not support that the claimant is incapable of sustaining 

simple work.

TR 26. None of the ALJ’s reasons for rejecting Dr. Scott’s opinion are legitimate. 

 3 Dr. Scott and the reviewing psychologists were the only acceptable medical sources to formulate mental RFCs for 

Gartzke.

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8 – OPINION AND ORDER

Where there exists conflicting medical evidence, the ALJ is charged with determining 

credibility and resolving any conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012).

“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 

may only reject it by providing specific and legitimate reasons that are supported by substantial 

evidence. . . .” Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Generally, 

a treating doctor’s opinion is entitled to more weight than an examining doctor’s opinion, which 

in turn is entitled to more weight than a reviewing doctor’s opinion. Garrison v. Colvin, 759 F.3d 

995, 1012 (9th Cir. 2014).

First, the ALJ questioned Dr. Scott’s memory of his evaluation of Gartzke, which 

occurred more than 18 months before Dr. Scott formulated specific limitations. In other 

circumstances, this could be a legitimate reason for discounting an examining doctor’s opinion. 

But in this instance, Gartke’s attorney sent Dr. Scott his 2011 evaluation of Gartzke along with 

the mental RFC forms. Despite expressly acknowledging that Dr. Scott utilized his own 

evaluation in filling out the mental RFC forms, TR 24, the ALJ then “question[ed] how 

accurately Dr. Scott remembered the one hour he spent with the claimant after so much time had 

passed,” TR 26. For some reason, the ALJ concluded that because Dr. Scott based his RFC−at 

least in the ALJ’s opinion−solely on a review of his earlier examination notes and findings, this 

was a legitimate reason to assign greater weight to the opinions of the reviewing psychologists.

The reviewing psychologists, however, never examined Gartzke, certainly did not remember her, 

and in fact based their opinions largely on their own interpretations of Dr. Scott’s own 2011 

notes and findings. Additionally, rather than assume Dr. Scott refreshed his memory with the 

supplied evaluation, the ALJ infers Dr. Scott merely grabbed his opinions out of thin air. While 

this assumption may hold some water if Dr. Scott’s limitations differed greatly from his earlier 

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9 – OPINION AND ORDER

evaluation, Dr. Scott’s mental RFC limitations in fact mirrored his notes and findings from his 

2011 examination of Gartzke.

As described above, Dr. Scott’s March 2011 notes and findings support his January 2013 

RFC limitations. Further confirming that Dr. Scott in fact referred to his own evaluation of 

Gartzke in filling out the mental RFC form, Dr. Scott concluded Gartzke was not significantly 

limited in understanding and memory, even as to “detailed instructions.” TR 657. Had Dr. Scott 

not actually refreshed his memory from his 2011 evaluation, one would not expect his memoryrelated RFC to align so precisely with his earlier findings that Gartzke performed adequately on 

the memory tests. In other words, Dr. Scott’s opinion appears to be a neutral one. He certainly 

was not a mere advocate supporting Gartzke’s claim or parroting her complaints.

While the reviewing psychologists had a bit more evidence (in the form of rather limited 

notes with therapists) to digest than Dr. Scott, they did not have the opinion of Dr. Thomas 

Boyd, another examining doctor. Dr. Thomas Boyd conducted a neuropychological consultation 

of Gartzke on December 29, 2011, after the reviewing psychologists formed their mental RFCs. 

TR 581. Dr. Boyd observed Gartzke had a “mildly disorganized quality of speech, with 

occasional word finding hesitancy. Most notably, at times her thought process seemed slightly 

disjointed, with a childlike quality and some self-contradiction, as in her description of her 

relationship with her partner’s grandchildren.”4 TR 583.

Gartzke scored largely within the mean, or slightly below it, in the testing administered 

by Dr. Boyd. TR 584-86. Dr. Boyd noted that throughout much of the testing, and especially in 

 4 During her interview with Dr. Boyd, Gartzke first stated her partner’s grandchildren “are like my kids,” before 

stating that the couple does not often see the grandchildren and that they were not that close. TR 583.

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10 – OPINION AND ORDER

the problem solving portions, Gartzke exhibited “much indecision and vacillation.” TR 585. Dr. 

Boyd commented on Gartzke’s performance and self-reporting:

Areas of particular concern include marked anxiety and tension, especially around 

personal relationships, consistent with self-report in interview. Anxiety is at such 

a level that the client may employ maladaptive patterns in attempting to ward off 

anxiety, such as phobic behavior, obsession-compulsion, and an unusual degree of 

concern around physical functioning and health matters. Depressive symptoms are 

also endorsed, and a number of findings suggest that a past traumatic experience 

continues to cause distress and anxiety. There are occasional odd responses and 

concerns around unusual beliefs (e.g., special talents), possible difficulty in 

interpreting social cues, a tendency toward volatile relationships, and a brittle self 

esteem.

TR 585.5

Dr. Boyd concluded “the single greatest likelihood is that Ms. Gartzke’s symptoms are an 

expression of very significant psychological influences. These likely include the turmoil, tension, 

and anxiety related not only to significant ongoing psychosocial stressors, but also to unresolved 

childhood sexual trauma dating to abuse within her home over a period of several years.” TR 

586. Dr. Boyd diagnosed PTSD and panic disorder. Dr. Boyd assigned Gartzke a Global 

Assessment of Functioning (“GAF”) score of 57, indicating moderate symptoms and/or moderate 

difficulty in social functioning. TR 586.6

The ALJ concluded that had Dr. Scott known that subsequent neurological testing 

showed Gartzke did not suffer from an underlying cognitive disorder, he would have formulated 

a less restrictive RFC. TR 26. Dr. Boyd, however, clearly thought Gartzke suffered from “very 

significant psychological influences.” TR 586. Dr. Boyd formed his opinion despite noting 

 5 Dr. Boyd and Dr. Scott were not the only ones to comment on Gartzke’s “odd” responses to questions. During a 

December 23, 2011 assessment, a social worker noted that Gartzke “had slightly erratic skipping to different 

subjects, but appeared normal and engaged in the interview process.” TR 507. In September 2012, another 

therapist noted Gartzke’s blunted affect and tangential speech. TR 561. 6 Social Worker John Meyer, who treated Gartzke for several months, opined in December 2011 that Gartzke had a 

GAF of 47, indicating serious symptoms and/or serious impairments in social or occupational functioning. TR 508. 

In September 2012, another social worker assigned Gartzke a GAF of 53. TR 565.

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11 – OPINION AND ORDER

Gartzke’s “roughly average background cognitive abilities[.]” TR 586. Therefore, this reason 

relied on by the ALJ to reject Dr. Scott’s RFC, like the other reasons, fails.

Everyone agrees Gartzke suffers from PTSD and major depressive disorder. Other than 

Dr. Scott and the reviewing psychologists, no other mental health expert offered an opinion as to 

Gartzke’s specific mental limitations. There is a reason the regulations require that, all things 

being equal, examining doctors are entitled to more weight than reviewing doctors. This is 

especially true in cases turning solely on a claimant’s mental impairments. Here, the reviewing 

psychologists based their RFCs largely on their interpretations of Dr. Scott’s own evaluation 

notes and findings. But Dr. Scott formulated his own RFC, which happened to be more 

restrictive. And of those who formulated a mental RFC for Gartzke, Dr. Scott was the only one 

to sit down and look Gartzke in the eye during an in-person examination. Admittedly, this 

process if not perfect. But Dr. Scott’s opinion as to Gartzke’s mental limitations is the best 

evidence available. And here, the ALJ failed to provide specific and legitimate reasons for 

rejecting it.

In the Ninth Circuit:

Remand for further administrative proceedings is appropriate if enhancement of 

the record would be useful. Conversely, 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. 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 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.

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see also Garrison v. Colvin, 759 F.3d 

995, 1020 (9th Cir. 2014).

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12 – OPINION AND ORDER

The vocational expert testified that someone with the limitations noted in Dr. Scott’s RFC 

would be unable to maintain full-time employment. TR 78, 80-81. The record, somewhat sparse 

as it is, has been fully developed. Other than Gartzke’s own allegations, there is little evidence 

that her mental limitations advanced to the stage of preventing her from maintaining full-time 

employment before her March 2011 examination by Dr. Scott. She worked two full years after 

the date she originally claimed to be fully disabled. Just before her date last insured, Gartzke was 

a student for two years, coming within one class of obtaining an associate degree. And the few 

notes from therapy sessions do little to support Gartzke’s claim of disability. In fact, absent Dr. 

Scott’s 2013 mental RFC limitations, the reviewing psychologists’ opinions are fully supported 

by the limited evidence in the record. But Dr. Scott formulated his own opinion as to Gartzke’s 

limitations. He opined that as of March 2, 2011, Gartzke’s mental limitations prevented her from 

maintaining full-time employment and that her condition would likely last longer than 12 

months. TR 659.

Especially when dealing with mental impairments, the disability system is far from 

perfect. It can be difficult to establish a precise onset date. But Dr. Scott’s opinion, which is the 

best opinion we have, indicates that Gartzke became disabled on March 2, 2011. Remand for 

calculation of benefits is therefore appropriate in this instance. Further proceedings would simply 

extend the time until Gartzke receives the supplemental security income she is entitled to. 

Remanding for further proceedings here, when Gartzke cannot demonstrate a disability onset 

date before September 30, 2008, her date last insured, would serve no useful purpose. This 

matter is therefore remanded for calculation of benefits.

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13 – OPINION AND ORDER

The ALJ’s Adverse Credibility Determination

In making an adverse credibility determination regarding Gartzke’s subjective reporting 

on the severity of her symptoms, the ALJ was required to provide “specific, clear and convincing 

reasons” for rejecting Gartzke’s testimony. Vasquez v. Astrue, 572, F.3d 586, 591 (9th Cir. 2009) 

(quoting Smolen v. Charter, 80 F.3d 1273, 1282 (9th Cir. 1996)). The ALJ provided several 

reasons for finding Gartzke not credible. Some were valid. Some were not. 

For instance, the ALJ found Gartzke not credible because she asked her Laurel Hill 

counselors for assistance in seeking a job with requirements exceeding Gartzke’s claimed

limitations. TR 25. This is not a valid reason in finding Gartzke not credible. That Gartzke 

perhaps dreamed of reentering the workplace should be applauded, not used against her. 

Additionally, the regulations recognize claimants may attempt to engage in trial work periods 

without torpedoing their claims. See Lingenfelter v. Astrue, 504 F.3d 1028, 1038-39 (9th Cir. 

2002) (noting that the administration “permits recipients of disability benefits to work on a trial 

basis without the trial work period adversely affecting their disability status.”)). Here, Gartzke 

merely spoke with her counselors about finding work. She never even got to the trial work period 

stage. 

The ALJ also found Gartzke “informed Dr. Scott that she had never been fired for 

reasons related to her mental health problems, but testified to the opposite.” TR 25. The ALJ 

appears to base this finding on Gartzke’s statement at the hearing that “I’m always paranoid that 

somebody’s going to fire me or treat me bad. I was slapped by one of my bosses in the past so –

and I was, I was let go for reasons that weren’t right[.]” TR 66. This statement is not inconsistent 

with Gartzke’s statement that she had never been fired for mental health related issues. 

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14 – OPINION AND ORDER

Other reasons provided by the ALJ are in fact legitimate and constitute clear and 

convincing evidence in finding Gartzke not fully credible as to the extent of her limitations. 

Especially in cases involving mental impairments, ALJs and courts must look to a claimant’s 

own statements as to both their limitations, and the evolution of those limitations. Here, Gartzke 

clearly suffers from PTSD. The main issue is whether her symptoms prevent her from 

maintaining full-time employment. Clearly, at least in 2001 and 2002, Gartzke’s symptoms did 

not prevent her from performing substantial gainful activities. During those years, Gartzke 

maintained employment as a grocery cashier. Despite being able to hold down this job, Gartzke 

originally alleged she became unable to work due to her disability as of October 1, 1999. TR 

218. When a claimant alleges an onset date of 1999, yet maintains substantial gainful activities 

for over two years after that date, the ALJ may point to that discrepancy in finding a claimant not 

fully credible as to the extent of her limitations. Here, the ALJ did just that, noting that Gartzke 

continued to work after the alleged onset date.7

The ALJ also noted Gartzke often made allegations about her medical history and 

limitations that lacked support. TR 25. This is certainly true. On numerous occasions, Gartzke 

claimed to have suffered two heart attacks in 2010. However, an EKG showed normal results.

TR 409.8 Gartzke complained of blurry vision but had 20/20 vision. TR 405. Gartzke claimed to 

have gone 47 days without sleep. TR 409. Gartzke also claimed to have suffered a months-long 

concussion after hitting her head on a paper towel dispenser. Gartzke had trouble finding words 

and “even had trouble remembering her name.” TR 419. Her primary care physician noted 

 7 That Gartzke’s attorney amended the onset date (to a date after she quit her cashier job) at the hearing does not 

alter this conclusion. The ALJ, and this court, must rely on Gartzke’s own allegations in evaluating her claim. That 

she claimed becoming disabled in 1999 despite working for two full years after that date is a clear and convincing 

reason for finding Gartzke not credibleas to her limitations. 8 The EKG did show poor R wave progression, TR 409, but an echocardiogram was normal, TR 421.

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15 – OPINION AND ORDER

Gartzke’s “system presentation seems forced and overdone,” with symptoms more appropriate 

with one suffering severe head trauma. TR 420. The ALJ’s conclusion that, at least as regards to 

her self-reporting of her symptoms and limitations, Gartzke was not fully credible is supported 

by substantial evidence in the record.9

The ALJ also noted that despite claiming some difficulties in using public transportation, 

the record demonstrates Gartzke generally took the bus to the library every day without any 

problems. Although not a clear and convincing reason on its own, this reason is supported by the 

record.

An ALJ may look to an unexplained failure to seek or follow a prescribed course of 

treatment in determining a claimant’s credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 

1989). Here, the ALJ noted that despite alleging debilitating symptoms from depression and 

PTSD, Gartzke does not take any medications for her complaints. Gartzke also went several 

years before seeking any counseling or treatment. Especially when dealing with claims of mental 

illness, these reasons on their own are likely insufficient to support an adverse credibility 

determination. But they are supported by the record, and they lend support to the ALJ’s adverse 

credibility determination.

Lay Testimony

Gartzke contends the ALJ erred in failing to credit the lay testimony from her friend of 

23 years, Paula Rowe. While I generally agree, any error is harmless.

 9 Although the ALJ properly found Gartzke not fully credible, her reports of a “long term concussion” and “pain 

when brushing her hair” surely factored into Dr. Scott’s evaluation. TR 389-393. In other words, although Gartzke’s 

self-reports may in fact be symptoms of her mental impairments (and therefore support her claim of disability), it 

does not demonstrate that she is credible regarding her self-reporting of limitations. In this case, the examining 

phsychologists, trained in evaluating and diagnosing claims of mental illness during in-person evaluations, are in 

fact the most reliable reporters on Gartzke’s symptoms and limitations. This is especially true in a case like this, 

where Gartzke claimed to “like telling my cat to do his homework because I wanted a baby but don’t have one so I 

turned my cat into a son I never had[.]” TR 390.

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Rowe completed a Third-Party Function Report on December 26, 2010 in which she 

explains she has contact with Gartzke nearly every day. This daily contact included going for 

coffee together, cooking together at Rowe’s house, or talking on the phone. Rowe states Gartzke 

has trouble taking direction, becomes overwhelmed and confused in the middle of tasks, suffers 

from poor memory and flashbacks, has hygiene problems, and becomes disorganized when 

trying to cook something other than a frozen meal. Rowe hired Gartzke to clean out her car for 

$20 but Gartzke was unable to finish the job. Gartzke keeps her house very clean and does not 

like clutter, so her house has minimal furnishings. She often panics and throws out things she 

buys for her home. According to Rowe, Gartzke is fearful people will stalk her, believes people 

pick on her and are out to get her, is consumed with conspiracy theories and tracking devices, 

and has trust issues. On the positive side, Rowe reports Gartzke takes the bus to a café and then 

to the library every day, where she stays for two hours. She spends a lot of time visiting her 

boyfriend, but is extremely jealous of him, and talks a lot on the phone with Rowe.

Lay testimony about a claimant’s symptoms is competent evidence which the ALJ must 

take into account unless he gives reasons for the rejection that are germane to each witness. 

Molina, 674 at 1114. The germane reasons must be specific. Bruce v. Astrue, 557 F.3d 1113, 

1115 (9th Cir. 2009). A legitimate reason to discount lay testimony is that it conflicts with 

medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). But the ALJ 

cannot discredit lay testimony because it is not supported by, or corroborated by, medical 

evidence in the record. Bruce, 557 F.3d at 1116.

The ALJ expressly gave weight to Rowe’s concern about Gartzke becoming easily 

overwhelmed; he addressed this concern by limiting Rowe to simple, repetitive tasks. But the 

ALJ gave little weight to the rest of Rowe’s statement for several reasons. First, the ALJ noted 

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17 – OPINION AND ORDER

the record contained nothing about an obsession with conspiracy theories. Gartzke correctly 

points out several references in the medical records to her reports of extreme suspiciousness, 

stalkers, and people plotting to get her fired at work. The term “conspiracy theory” is not a 

precise one and could be loosely interpreted to include Rowe’s statements to her medical 

providers. Thus, this reason is not supported by the record. 

Next, the ALJ reasoned that Rowe claimed Gartzke was disorganized but had a very 

clean home at all times. He considered these statements inconsistent with each other. Gartzke 

again correctly points out that Rowe limited the disorganization statement to the context of 

cooking. Lack of organized cooking skills is not inconsistent with keeping an obsessively clean 

house. The ALJ’s reason is not persuasive.

Finally, the ALJ was concerned Rowe likely parroted Gartzke’s allegations because she 

only meets her for coffee in the mornings and may not have an adequate picture of Gartzke’s 

day-to-day functioning. Much of Rowe’s statement discusses her observations of Gartzke’s 

behavior, including her hygiene problems, her cooking disorganization, her housekeeping, and 

her inability to complete simple jobs for Rowe. Moreover, many lay witnesses have far less 

contact than the nearly daily contact Rowe had with Gartzke. This is not a germane reason to 

discount Rowe’s testimony.

Although the ALJ erred in largely rejecting Rowe’s statements, any error is harmless. 

Gartzke’s statements to Dr. Scott generally mirrored Rowe’s statements. Rowe wrote her 

statement only one month before Dr. Scott’s examination of Gartzke. And as noted, Dr. Scott 

incorporated Gartzke’s statements into the RFC he formulated, and that RFC is now credited as 

true. Additionally, Rowe did not include specific limitations not included in Dr. Scott’s RFC. 

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18 – OPINION AND ORDER

Rather, Rowe’s statements generally paint a picture of a person suffering from mental 

impairments. And on that point, all of the evidence in this record agrees.

CONCLUSION

The ALJ erred in rejecting the RFC of Dr. Ryan Scott, and the law witness testimony of 

Paula Rowe. Credited as true, Dr. Scott’s RFC establishes Gartzke is disabled as of March 2, 

2011. The Commissioner’s decision is REVERSED and this matter is remanded for calculation 

of benefits.

IT IS SO ORDERED.

DATED this 3rd day of September, 2015.

Michael J. McShane 

Michael McShane

United States District Judge

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