IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DAYSHIA TAYLOR, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

MERRILL SCHNEIDER 

Schneider Kerr Law Offices 

P.O. Box 14490 

Portland, OR 97293 

(503) 255-9092 

Attorneys for Plaintiff 

BILLY J. WILLIAMS 

Acting United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

(503) 727-1003 

1 - OPINION AND ORDER 

3:14-CV-01472-BR 

OPINION AND ORDER 

Case 3:14-cv-01472-BR Document 16 Filed 09/08/15 Page 1 of 17
DAVID MORADO 

Regional Chief Counsel 

JORDAN D. GODDARD 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Avenue, Suite 2900, M/S 221A 

Seattle, WA 98104 

(206) 615-2733 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Dayshia Taylor seeks judicial review of a final 

decision of the Commissioner of the Social Security 

Administration (SSA) in which she denied Plaintiff's application 

for Supplemental Security Income (SSI) under Title XVI of the 

Social Security Act. This Court has jurisdiction to review the 

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

Following a review of the record, the Court REVERSES the 

decision of the Commissioner and REMANDS this matter pursuant to 

sentence four of 42 U.S.C. § 405(g) for the immediate calculation 

and award of benefits. 

ADMINISTRATIVE HISTORY 

Plaintiff filed an application for SSI on November 1, 2010, 

and alleged a disability onset date of January 1, 2008. Tr. 173-

77, 179. 1 Her applications were denied initially and on 

1 Citations to the official transcript of record filed by 

the Commissioner on January 29, 2015, are referred to as "Tr." 

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reconsideration. An Administrative Law Judge (ALJ) held a 

hearing on December 6, 2012. Tr. 31-82. At the hearing 

Plaintiff and a vocational expert (VE) testified. Plaintiff was 

represented by an attorney. 

On March 1, 2013, the ALJ issued an opinion in which she 

found Plaintiff is not disabled and, therefore, is not entitled 

to benefits. Tr. 14-30. On July 25, 2014, that decision became 

the final decision of the Commissioner when the Appeals Council 

denied Plaintiff's request for review. Tr. 1-4. 

Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND 

See Sims v. 

Plaintiff was born on October 31, 1992, and was 20 years old 

at the time of the hearing. Tr. 83. Plaintiff has a tenth-grade 

education. Tr. 40. She does not have any past relevant work 

experience. Tr. 26. 

Plaintiff alleges disability due to epilepsy. Tr. 83. 

Except when noted, Plaintiff does not challenge the ALJ's 

summary of the medical evidence. After carefully reviewing the 

medical records, this Court adopts the ALJ's summary of the 

medical evidence. See Tr. 23-25. 

STANDARDS 

The initial burden of proof rests on the claimant to 

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establish disability. Molina v. As true, 67 4 F. 3d 1104, 1110 (9th 

Cir. 2012). To meet this burden, a claimant must demonstrate her 

inability ''to engage in any substantial gainful activity by 

reason of any medically determinable physical or mental 

impairment 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}. The ALJ must develop the record when there is 

ambiguous evidence or when the record is inadequate to allow for 

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F. 3d 

453, 459-60 (9th Cir. 2001)). 

The district 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 as a whole. 42 

U.S.C. § 405(g}. See also Brewes v. Comm'r of Soc. Sec. Admin., 

682 F.3d 1157, 1161 (9'" Cir. 2012). Substantial evidence is 

"relevant evidence that a reasonable mind might accept as 

adequate to support a conclusion.~ Molina, 674 F.3d. at 1110-11 

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 

(9~ Cir. 2009)). It is more than a mere scintilla [of evidence] 

but less than a preponderance. Id. (citing Valentine, 574 F.3d 

at 690). 

The ALJ is responsible for determining credibility, 

resolving conflicts in the medical evidence, and resolving 

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ambiguities. Vasquez v. Astrue, 572 F. 3d 586, 591 (9th Cir. 

2009). The court must weigh all of the evidence whether it 

supports or detracts from the Commissioner's decision. Ryan v. 

Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even 

when the evidence is susceptible to more than one rational 

interpretation, the court must uphold the Commissioner's findings 

if they are supported by inferences reasonably drawn from the 

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the 

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 

2006) . 

DISABILITY ANALYSIS 

I. The Regulatory Sequential Evaluation 

The Commissioner has developed a five-step sequential 

inquiry to determine whether a claimant is disabled within the 

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 

2007). See also 20 C.F.R. § 416.920. Each step is potentially 

dispositive. 

At Step One the claimant is not disabled if the Commissioner 

determines the claimant is engaged in substantial gainful 

activity. 20 C.F.R. § 416.920(b). See also Keyser v. Comm'r of 

Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011). 

At Step Two the claimant is not disabled if the Commis5 - OPINION AND ORDER 

Case 3:14-cv-01472-BR Document 16 Filed 09/08/15 Page 5 of 17
sioner determines the claimant does not have any medically severe 

impairment or combination of impairments. 20 C.F.R. 

§ 416.920(c). See also Keyser, 648 F.3d at 724. 

At Step Three the claimant is disabled if the Commissioner 

determines the claimant's impairments meet or equal one of a 

number of listed impairments that the Commissioner acknowledges 

are so severe they preclude substantial gainful activity. 20 

C.F.R. § 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724. 

The criteria for the listed impairments, known as Listings, are 

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed 

Impairments). 

If the Commissioner proceeds beyond Step Three, she must 

assess the claimant's Residual Functional Capacity (RFC). The 

claimant's RFC is an assessment of the sustained, work-related 

physical and mental activities the claimant can still do on a 

regular and continuing basis despite his limitations. 20 C.F.R. 

§ 416.945(a). See also Social Security Ruling (SSR) 96-8p. "A 

'regular and continuing basis' means 8 hours a day, for 5 days a 

week, or an equivalent schedule.'' SSR 96-8p, at *1. In other 

words, the Social Security Act does not require complete 

incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 

659 F. 3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885 

F.2d 597, 603 (9ili Cir. 1989)). 

At Step Four the claimant is not disabled if the 

6 - OPINION AND ORDER 

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Commissioner determines the claimant retains the RFC to perform 

work she has done in the past. 20 C.F.R. § 416.920(a) (4) (iv). 

See also Keyser, 648 F.3d at 724. 

If the Commissioner reaches Step Five, she must determine 

whether the claimant is able to do other work that exists in the 

national economy. 20 C.F.R. § 416.920(a) (4) (v). See also 

Keyser, 648 F.3d at 724. Here the burden shifts to the 

Commissioner to show a significant number of jobs exist in the 

national economy that the claimant can perform. Lockwood v. 

Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of 

a VE or by reference to the Medical-Vocational Guidelines set 

forth in the regulations at 20 C.F.R. part 404, subpart P, 

appendix 2. If the Commissioner meets this burden, the claimant 

is not disabled. 20 C. F. R. § 416. 920 (g) (1). 

ALJ'S FINDINGS 

At Step One the ALJ noted Plaintiff testified at the hearing 

that she earned approximately $1,200 per month babysitting her 

niece and two nephews from February 2012 through November 2012, 

which ~rises above the level of substantial gainful activity for 

2012.n Tr. 19. Nevertheless, the ALJ found Plaintiff had not 

engaged in substantial gainful activity since her November 1, 

2010, application date because there was not any documentation of 

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Plaintiff's alleged earnings in the record. Tr. 19. 

At Step Two the ALJ found Plaintiff has the severe 

impairments of epilepsy, borderline intellectual functioning, and 

depression. Tr. 19. The ALJ found Plaintiff's impairment of 

obesity is not severe. Tr. 19. 

At Step Three the ALJ concluded Plaintiff's impairments or 

combination of impairments do not meet or equal the criteria for 

any Listed Impairment from 20 C.F.R. part 404, subpart P, 

appendix 1. The ALJ found Plaintiff has the RFC to perform light 

work. Tr. 21. The ALJ found Plaintiff can climb ramps or stairs 

occasionally and should never climb ladders, ropes, or scaffolds. 

Tr. 21. The ALJ also found Plaintiff should avoid "workplace 

hazards such as dangerous machinery and unprotected heights." 

Tr. 21-22. The ALJ found Plaintiff is limited to "simple to 

moderately complex tasks, which for example could mean the amount 

of decision making involved in childcare, but not extremely 

complex tasks." Tr. 22. Finally the ALJ found Plaintiff 

"requires the flexibility to be absent for medical reasons one 

day per month." Tr. 22. 

At Step Four the ALJ found Plaintiff does not have any past 

relevant work experience. Tr. 26. 

At Step Five the ALJ found Plaintiff can perform jobs that 

exist in significant numbers in the national economy. Tr. 26. 

Accordingly, the ALJ found Plaintiff is not disabled. 

8 - OPINION AND ORDER 

Case 3:14-cv-01472-BR Document 16 Filed 09/08/15 Page 8 of 17
DISCUSSION 

Plaintiff contends the ALJ erred when she improperly gave 

limited weight to the opinions of Barbara Long, M.D., and Juliana 

Lockman, M.D., treating physicians and to the opinion of Ronal 

Duvall, Ph.D., examining psychologist. 

An ALJ may reject a treating or examining physician's 

opinion when it is inconsistent with the opinions of other 

treating or examining physicians if the ALJ makes "findings 

setting forth specific, legitimate reasons for doing so that are 

based on substantial evidence in the record." Thomas v. 

Barnhart, 278 F. 3d 94 7, 957 (9th Cir. 2002) (quoting Magallanes v. 

Bowen, 881 F. 2d 747, 751 (9th Cir. 1989)). When the medical 

opinion of an examining or treating physician is uncontroverted, 

however, the ALJ must give "clear and convincing reasons" for 

rejecting it. Thomas, 278 F.3d at 957. See also Lester v. 

Chater, 81 F.3d 821, 830-32. 

When ''the ALJ fail[s] to provide legally sufficient reasons 

for rejecting . [a] physician['s] opinion[],'' the Court 

credits the opinion as true. Benecke v. Barnhart 379 F.3d 587, 

594 (9th Cir. 2004). See also Lester, 81 F.3d at 834 (court 

credited the improperly rejected physician opinion as a matter of 

law). 

9 - OPINION AND ORDER 

Case 3:14-cv-01472-BR Document 16 Filed 09/08/15 Page 9 of 17
I. Drs. Long and Lockman 

On November 28, 2012, Dr. Long, Plaintiff's treating 

physician, completed a Medical Source Statement in which she 

indicated Plaintiff suffered approximately one seizure per month 

lasting 30 minutes on average. Tr. 774. Dr. Long noted 

Plaintiff reported she suffered confusion, exhaustion, and/or 

irritability for "variable" lengths of time after a seizure. 

Tr. 774. Dr. Long stated Plaintiff was compliant with taking her 

seizure medications, and she was "not aware" of any side effects 

that Plaintiff experienced as a result of her seizure medication. 

Tr. 774. Dr. Long opined the seizure symptom that would 

interfere with Plaintiff's ability to sustain "the basic 

attention and concentration needed to perform even simple work 

tasks" is a concern of Plaintiff because of the "unpredictable 

nature of occurrence [sic] of seizure activity." Tr. 775. 

Dr. Long stated she did not know whether Plaintiff's seizures 

would likely increase if she was placed in a competitive work 

environment, but Plaintiff's "anxiety level [was] likely to 

increase" in a competitive work environment. Tr. 775. Dr. Long 

found Plaintiff's seizures were likely to disrupt coworkers and 

that Plaintiff would need to take unscheduled breaks during an 

eight-hour work day. Tr. 775-76. Dr. Long opined Plaintiff 

might initially have to take unscheduled breaks frequently, but 

that "should improve over time given experience with working." 

10 - OPINION AND ORDER 

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Tr. 776. Finally Dr. Long opined Plaintiff would likely miss 16 

hours or more of work per month. Specifically, Dr. Long stated 

she would "expect [Plaintiff) to be out 1-7 days with each 

seizure based on severity." Tr. 776. 

On December 3, 2012, Dr. Lockman, Plaintiff's treating 

neurologist, provided a Medical Source Opinion in which she noted 

Plaintiff suffers 2-3 seizures per month, which can cause 

Plaintiff to suffer confusion, exhaustion, and/or headaches for 

"up to several hours" afterwards. Tr. 778. Dr. Lockman stated 

Plaintiff was "not always" compliant with taking her seizure 

medication, and her failure to take sufficient medication "ma[de) 

a difference in the frequency of [Plaintiff's] seizures." 

Tr. 778. Dr. Lockman stated Plaintiff suffered from side effects 

of lethargy, lack of alertness, and poor appetite as a result of 

her medication. Tr. 779. Dr. Lockman opined Plaintiff's 

"difficulty maintaining concentration" could interfere with her 

ability to sustain the attention and concentration needed to 

perform even simple work tasks. Tr. 779. Dr. Lockman also 

opined Plaintiff's seizures would likely increase if she was 

placed in a competitive work environment because such an 

environment would be stressful and "stressful situations are 

triggers for [Plaintiff's) seizures." Tr. 779. Dr. Lockman 

noted Plaintiff would sometimes need to take unscheduled breaks 

"up to several hours" in an eight-hour work day, and she expected 

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Plaintiff to miss 16 hours of work a month because of suffering 

1-3 seizures per month. Tr. 780. 

The ALJ gave limited weight to the opinions of Drs. Long and 

Lockman that Plaintiff's symptoms would interfere with her 

ability to perform even simple work tasks in a sustained manner, 

that she would need to take unscheduled breaks in an eight-hour 

work day, and that she would likely miss at least two days of 

work per month as a result of her condition. The ALJ noted the 

frequency and severity of Plaintiff's epilepsy is "difficult to 

determine given her noncompliance with recommended medical 

treatment.• Tr. 25. The ALJ also noted the doctors' opinions 

were inconsistent with Plaintiff's daily activities that include 

attending online schooling and babysitting her niece and nephews. 

The record, however, reflects when Plaintiff was babysitting, her 

mother was usually home and available to assist her in case she 

had a seizure. In addition, although Plaintiff had some issues 

with compliance with her medication early in the record mainly 

due to issues with pharmacies prescribing a generic brand at a 

different dosage level and fluctuations in Plaintiff's weight, 

the record later reflects Plaintiff was consistently compliant 

with taking her medication but still suffered seizures. For 

example, on June 13, 2012, Plaintiff was admitted to the 

emergency room for multiple seizures. Tr. 646. At that time 

Plaintiff's mother reported Plaintiff was completely compliant 

12 - OPINION AND ORDER 

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with her medication, her seizures were in better control than 

they had been in three years, and Plaintiff was suffering 

approximately two seizures per month. Tr. 646. When Plaintiff 

was admitted to the emergency room in November 2011 due to 

multiple seizures, the doctor noted Plaintiff likely experienced 

the seizures because of her admitted noncompliance with 

medication. On the June 13, 2012, occasion, however, Plaintiff's 

mother reported Plaintiff took her medications "religiously." 

Tr. 681. On August 19, 2012, Plaintiff was admitted to critical 

care for seizures. It was noted by her treating physician that 

she was compliant with her medication, but she had been under 

increased stress and suffered a number of seizures that day. 

Tr. 542. On September 30, 2012, Plaintiff reported suffering two 

seizures that month even though she had been taking her 

medication as prescribed. Tr. 610, 615. 

In addition, the ALJ did not point to any opinion by any 

treating or examining physician that contradicts the opinions of 

Ors. Long and Lockman as to the frequency and duration of 

Plaintiff's seizures, the after-effects of her seizures, or her 

likelihood of missing 16 hours per month of work. 

On this record the Court concludes the ALJ erred when she 

gave limited weight to the opinions of Ors. Long and Lockwood 

13 - OPINION AND ORDER 

Case 3:14-cv-01472-BR Document 16 Filed 09/08/15 Page 13 of 17
that Plaintiff's symptoms would interfere with her ability to 

perform even simple work tasks, that she would need to take 

unscheduled breaks in an eight-hour work day, and that she would 

likely miss at least two days of work per month as a result of 

her condition because the ALJ did not provide legally sufficient 

reasons supported by substantial evidence in the record for doing 

so. 

II. Dr. Duvall 

Plaintiff contends the ALJ erred when she gave limited 

weight to the opinion of Dr. Duvall, examining psychologist. 

On March 28, 2011, Dr. Duvall completed an Intellectual 

Assessment of Plaintiff in which he diagnosed Plaintiff with mild 

dysthymia and borderline intellectual functioning. Tr. 289. 

Dr. Duvall concluded Plaintiff's "particular combination of 

Borderline Intellectual Functioning (I.Q. 74) and her continuing 

problems with Epilepsy render her a poor candidate for competing 

successfully for a job." Tr. 290. Specifically, Dr. Duvall 

noted he 

Tr. 290. 

expect[ed] Plaintiff to have difficulty following 

and recalling complex work instructions; 

maintaining and [sic] adequate pace and 

persistence; withstanding the stress of a routine 

work day; maintaining emotional stability and 

predictability; and maintaining appropriate work 

relationships and communicating effectively. 

14 - OPINION AND ORDER 

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The ALJ gave limited weight to Dr. Duvall's opinion on the 

ground that it was "inconsistent with [Plaintiff's] relatively 

conservative course of mental health treatment, as well as her 

daily activities. Dr. Duvall's opinion was similarly based 

in part on [Plaintiff's] less than fully credible self-report.n 

Tr. 25. Dr. Duvall, however, found Plaintiff's mental-health 

condition in combination with her epilepsy kept her from being a 

good candidate for employment. Even if Plaintiff's mental-health 

treatment was relatively conservative, the record reflects her 

epilepsy caused ongoing issues. In addition, Dr. Duvall 

conducted numerous tests to reach his diagnosis of Borderline 

Intellectual Functioning, including the Wechsler IQ test. 

Dr. Duvall reported Plaintiff gave good effort on those tests, 

and, therefore, he did not rely solely on Plaintiff's self-report 

to reach his diagnosis. Finally, the ALJ did not point to any 

opinion by any treating or examining physi.cian that contradicts 

Dr. Duvall's opinion. 

On this record the Court concludes the ALJ erred when she 

gave limited weight to Dr. Duvall's opinion because the ALJ did 

not provide legally sufficient reasons supported by substantial 

evidence in the record for doing so. 

15 - OPINION AND ORDER 

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REMAND 

When "the ALJ fail[s] to provide legally sufficient reasons 

for rejecting . [a] physician['s] opinion[],'' the Court 

credits the opinion as true. Benecke v. Barnhart 379 F.3d 587, 

594 (9'" Cir. 2004). See also Lester, 81 F.3d at 834 (improperly 

rejected physician opinion court credited as matter of law) . 

Ors. Long and Lockwood opined Plaintiff would miss 16 hours 

per month of work due to her impairments, symptoms, or medication 

side-effects. 

The VE testified at the hearing that Plaintiff would be 

unable to maintain jobs in the regional or national economy if 

she had to miss work two or more days per month. Tr. 80. 

Accordingly, because the Court credits the opinions of Ors. Long 

and Lockwood that Plaintiff would likely miss 16 hours per month 

of work and because missing two or more days of work per month 

would rule out competitive work, the Court concludes Plaintiff is 

disabled. The Court, therefore, reverses the decision of the 

Commissioner and remands this matter for the immediate 

calculation and award of benefits. 

CONCLUSION 

For these reasons, the Court the Court REVERSES the decision 

of the Commissioner and REMANDS this matter pursuant to sentence 

16 - OPINION AND ORDER 

Case 3:14-cv-01472-BR Document 16 Filed 09/08/15 Page 16 of 17
four of 42 U.S.C. § 405(g) for the immediate calculation and 

award of benefits. 

IT IS SO ORDERED. 

DATED this 3th day of September, 2015. 

ANNA J. BROWN 

United States District Judge 

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