IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

NICHOLAS J. HOGAN, 

Plaintiff, 

v. 

COMMISSIONER, 

SOCIAL SECURITY ADMINISTRATION, 

Defendant. 

MARK D. CLARKE, Magistrate Judge. 

Case No. 6:15-cv-00315-CL 

REPORT AND 

RECOMMENDATION 

Plaintiff Nicholas J. Hogan ("Plaintiff') seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration ("Commissioner") denying his application for 

Supplement Security Income ("SSI") under Title XVI of the Social Security Act. This court has 

jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). Because the Commissioner's decision is not 

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supported by substantial evidence, that decision should be reversed and this matter should be 

remanded for the calculation and payment of benefits. 

BACKGROUND 

Plaintiff was born on February 20, 1983, and was 15 years old on the January 8, 1998 alleged 

onset date of disability. Tr. 284. He completed two years of unaccredited college credits. Tr. 395. 

He has no past relevant work. 

Plaintiff protectively filed an application for disability insurance on May 29, 2012, alleging 

disability due to "eminent grand mal epileptic seizures." Tr. 395. The Commissioner denied his 

application initially and upon reconsideration. Tr. 140-54. At Plaintiffs request, a hearing was held 

before an Administrative Law Judge ("ALJ") on April 4, 2014. Tr. 41-85. On May 1, 2014, the ALJ 

found Plaintiff not disabled. Tr. 13-3 8. The Appeals Council denied Plaintiffs request for review, 

making the ALJ' s decision the Commissioner's final decision Tr. 1-5. Plaintiff now seeks judicial 

review of that decision. 

DISABILITY ANALYSIS 

A claimant is disabled if he or she is unable 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)(l)(A). 

"Social Security Regulations set out a five-step sequential process for determining whether an 

applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm 'r Soc. Sec. 

Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. § 416.920(SSI); Bowen v. Yuckert, 

482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 

416.920(a)(4). The five-step sequential process asks the following series of questions: 

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1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(I). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner's 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless 

expected to result in death, an impairment is "severe" if it significantly 

limits the claimant's physical or mental ability to do basic work activities. 

20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted 

or must be expected to last for a continuous period of at least 12 months. 

20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe 

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 

416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds beyond step three. At that 

point, the ALJ must evaluate medical and other relevant evidence to assess 

and determine the claimant's "residual functional capacity" ("RFC"). This 

is an assessment of work-related activities that the claimant may still 

perform on a regular and continuing basis, despite any limitations imposed 

by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 

416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, 

the analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 

416.960(c). If the claimant cannot perform such work, he or she is 

disabled. Id. 

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See also Bustamante v. Massanari, 262. F.3d 949, 954 (9th Cir. 2001). 

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant numbers 

in the national economy, "taking into consideration the claimant's residual functional 

capacity, age, education, and work experience." Id.; see also 20 C.F.R. §§ 404.1566; 416.966 

(describing "work which exists in the national economy"). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099. 

THE ALJ'S FINDINGS 

The ALJ applied the sequential process. At step one, the ALJ found Plaintiff has not engaged 

in substantial gainful activity since his application on March 27, 2012. Tr. 18. At step two, the ALJ 

found Plaintiffs methamphetamine and cannabis dependence, and seizure disorder, were severe 

impairments. Id. At step three, the ALJ found that Plaintiff did not have an impairment or 

combination of impairments that met or equaled one of the specific impairments listed in the 

regulations. Tr. 21. 

The ALJ determined that Plaintiff had the RFC to perform a full range of work at all 

exertional levels but with the following nonexertional limitations: the claimant can occasionally 

climb ramps and stairs, but cannot climb ladders, ropes or scaffolds. The claimant should avoid even 

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moderate exposure to hazards. Tr. 21. In reaching his conclusion, the ALJ considered Plaintiffs 

testimony, but found him not fully credible. Tr. 22. At step four, the ALJ found Plaintiff had no 

past relevant work. Tr. 28. At step five, the ALJ found there were jobs in the national economy 

Plaintiff can perform, including laundry folder, hand packager, and small products assembler. Tr. 

29. Therefore, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social 

Security Act, through May 1, 2014. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if it is based on the proper legal 

standards and the findings are supported by substantial evidence. See 42 U.S.C. § 405(g); see also 

Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence" 

means "more than a mere scintilla, but less than a preponderance." Bray v. Comm 'r Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)(quotingAndrews v. Shala/a, 53 F.3d 1035, 1039 (9th 

Cir. 1995)). It means "such relevant evidence as a reasonable person might accept as adequate to 

support a conclusion." Id. 

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

Variable interpretations of the evidence are insignificant ifthe Commissioner's interpretation is a 

rational reading of the record, and this court may not substitute its judgment for that of the 

Commissioner. Id. "However, a reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 

625, 630 (9th Cir. 2007)(quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 

2006)(intemal quotations omitted)). The reviewing court, however, may not affirm the 

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Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d 

at 1226. 

Even where findings are supported by substantial evidence, "the decision should be set aside 

if the proper legal standards were not applied in weighing the evidence and making the decision." 

Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), 

the court has the power to enter, upon the pleadings and transcript record, a judgment affirming, 

modifying, or reversing the decision of the Commissioner, with or without remanding the case for 

a rehearing. 

ADMINISTRATIVE RECORD 

I. Testimony 

Plaintiff, his mother Kathleen Hogan, his attorney, and a Vocational Expert appeared at a 

hearing before an ALJ on April 4, 2014. Tr. 41-85. Plaintiff testified that he lived with his mother 

and father, and worked part-time in his mother's furniture company until November 2013. Tr. 44. 

Plaintiff worked three to four hour days, three to four days a week, opening the store, moving 

furniture, and keeping the warehouse clean. Tr. 46. He stopped working after hurting his back, 

resulting in back surgeries in December 2013 and February 2014. Tr. 45. Plaintiff worked when he 

was needed as backup or when there was a special promotion. Tr. 46. If Plaintiff felt petit mal 

migraines starting he would stop working and take a ninety minute to two hour nap. If he "didn't 

shake it" he was sent home. Tr. 47. Plaintiff estimated that he had to stop working to take a petite 

mal break about 15% of the time he was working. Plaintiff has associate degrees in marketing and 

business, and he wrote his mother's business plan and helped her arrange the furniture. 

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Plaintiff testified he had to stay away from the friends of his youth. Tr. 49. He was 

incarcerated until 2009, and in about 2011 found his friends were not enjoyable. Plaintiff testified 

that he did not currently spend time with friends. Tr. 50. None of his friends come over and he does 

not go out. Tr. 51. He checks on an older friend occasionally. 

Plaintiff sleeps a lot "because of my petit mal things." Tr. 52. Four days a week he sleeps 

18 hours a day. Id. When he feels a petit mal seizure starting it is like a "electric combustion ... right 

here at the core of my brain .... Id. "Ifl don't, ifl don't catch - - ifl don't get it, then it will get me. 

Yeah, I know it will get me. I know it will get me. I, I probably couldn't pass more than three ticks 

before, you know, it gets me." Id. 

Tr. 53. 

Plaintiff stated: 

.. .ifl have a grand mal seizure it's usually because I didn't start 

having the tick until later in the day and I was already - I'd already 

you know, made myself something to eat, got dressed, got ready for 

the day and I was like, you know, I'm not going to let this - I'm, I'm 

not going to let this kill my day. You know, I, I want some- it's, 

it's hard to just hand over your day to, you know, to sleep. You know, 

to sleep your days away, it's, it's hard for me too. I, I want to do 

something, you know. It's hard to just- so sometimes I push- I try 

to push through them and every time it gets me. Every time I try to 

push, try to push through it, it gets me. 

Plaintiff estimates he has had a dozen grand mal seizures in the past year. He does not 

always go to the hospital because it is expensive. He thinks he went to the hospital three times in 

the last year because of seizures. 

Plaintiff is on probation. He testified he was last incarcerated in September. "On, no, I'm 

sorry, because I just had a seizure, so my memory, my memory is rough. Let, let me think here. I 

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think I just recently went to jail. I just went - I just recently went to jail for a probation violation." 

Tr. 54. Plaintiff went to jail three days after his second back surgery for a probation violation arising 

out of a drug deal conducted in Plaintiffs presence. Tr. 54-55. Plaintiff is on probation for 

attempting to sell a stolen car, and has previous probation violations for failing to register as a sex 

offender when he changed residences. Tr. 55-56. 

He last used methamphetamine in February, and has used off and on since he was released 

from prison. Tr. 57. His doctors, including Dr. Ferguson, know about his drug use. Id. Plaintiff 

thinks the meth use does not affect his seizures, and he uses it because it makes him feel young 

again. Tr. 58. He admits he is an addict. He uses marijuana "not too often," and not usually more 

than three bong hits. Tr. 60-61. When his drug use "becomes a problem" he deal[ s] with it and tries 

to pull himself "towards the people that are the positive in my life." Tr. 61. Plaintiff does not have 

anxiety. He last sold drugs in 2011. Tr. 62. 

Plaintiff has a business plan to market a mobile service provider. Tr. 63. He is trying to 

create a prototype for investors. Plaintiff spends his time on the internet doing research and 

networking. He does not watch television. Tr. 65-66. Plaintiff had a bruise on his forehead after 

falling onto concrete during a seizure. Tr. 68. His short term memory is bad. 

After leaving prison in 2009 Plaintiff saw his drug using friends sometimes, until about 2011, 

when he attempted to avoid his old friends in order to stay clean. Tr. 69. Plaintiff has Obsessive 

Compulsive Disorder (OCD), which causes him to repeat routines in his daily activities., including 

the way in which he uses his computer. Tr. 70. 

II. Medical Records 

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The medical records are extensive, and the parties are familiar with them. Therefore they will 

be set out below when relevant. 

DISCUSSION 

Plaintiff argues that the ALJ erred by (1) improperly weighing medical evidence; (2) failing 

to properly evaluate the effect of stress on Plaintiffs ability to work; and (3) failing to consider the 

side effects of Plaintiffs medications. In addition, Plaintiff contends the Appeals Council 

improperly failed to consider new and material evidence. 

I. Medical Evidence 

Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(l); 

416.927( e )(1 ). If no conflict arises between medical source opinions, the ALJ generally must accord 

greater weight to the opinion of a treating physician than that of an examining physician. Lester v. 

Chafer, 81F.3d821, 830 (9th Cir. 1995). More weight is given to the opinion of a treating physician 

because the person has a greater opportunity to know and observe the patient as an individual. Orn, 

495 F.3d at 632. In such circumstances the ALJ should also give greater weight to the opinion of 

an examining physician over that of a reviewing physician. Id. If a treating or examining 

physician's opinion is not contradicted by another physician, the ALJ may only reject it for clear and 

convincing reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (91

h Cir. 

2006) (examining physician). Even if one physician is contradicted by another physician, the ALJ 

may not reject the opinion without providing specific and legitimate reasons supported by substantial 

evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of an 

nonexamining physician, by itself, is insufficient to constitute substantial evidence to reject the 

opinion of a treating or examining physician. Widmark, 454 F .3d at 1066 n. 2. The ALJ may reject 

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physician opinions that are "brief, conclusory, and inadequately supported by clinical findings." 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

A. Dr. Ferguson's Opinion 

Felicia A. Ferguson, M.D., is a neurologist at Kaiser Permanente, and Plaintiffs treating 

neurologist since August 2012. Tr. 968. In December 2012, Dr. Ferguson wrote to the Social 

Security Administration on Plaintiffs behalf. Tr. 774. Dr. Ferguson stated: 

Id. 

Mr. Hogan has had medically refractory seizures since age 15. He 

first presented with generalized tonic clonic seizures. He was having 

myoclonic seizures as well. He was seen by Dr. Norman So, an 

epileptologist, EEG was consistent with idiopathic generalized 

epilepsy. He was started on Depakote. On Depakote, the preferred 

medication for this type of epilepsy, he continued with seizures. Mr. 

Hogan has tried several times to enroll in school and maintain employment, but because of frequent generalized seizures despite therapeutic 

doses of Depakote, he has struggled. He has also failed trials of 

Dilantin, Tegretol, levetiracetam and lamotrigine. 

Mr. Hogan is medically disabled at this time due to frequent daily 

myoclonic seizures that have been recalcitrant to therapeutic doses 

of anti-epileptic medication. He also has frequent generalized 

seizures. He has some evidence of memory impairment, likely 

multifactorial due to effects of medications, and multiple seizures 

over time. He cannot drive due to seizure disorder. At this time, 

it would be very difficult for him to maintain gainful employment 

due to his medical condition. 

Epilepsy syndrome of an idiopathic generalized epilepsy was 

recently confirmed by an EEG here at Kaiser Permanente in August 

2012. 

In April 2014, Dr. Ferguson completed a form prepared by council in which she opined that 

Plaintiff must avoid driving, operating heavy machinery, working at night, and working 

unsupervised. Tr. 1250. Dr. Ferguson said Plaintiff would require one to two additional work 

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breaks during an eight hour day of 15 minutes duration, during which Plaintiff would need to lie 

down, due to myoclonic seizures. Tr. 1251. Dr. Ferguson said stress increased Plaintiffs seizure 

activity, and he was incapable of even a low stress job. Tr. 1252. Plaintiffs symptoms would 

interfere with the concentration required to complete simple tasks for one third of the workday or 

less. Dr. Ferguson opined that Plaintiff would miss work more than twice a month due to his 

condition, he was not malingering, and his prognosis was guarded. Tr. 1253. Treating physician 

Samuel A. Hughes, M.D., concurred with Dr. Ferguson's opinion. Tr. 1254. 

B. The ALJ's Rejection of Dr. Ferguson 

The ALJ noted Dr. Ferguson's December 2012 letter, and said her opinion "is not given 

great weight because it is not consistent with the longitudinal record that fails to document the 

frequency of seizures alleged and shows that the claimant typically experienced seizures when he 

was not medication compliant." Tr. 26. The ALJ rejected Dr. Ferguson's 2012 opinion because she 

did not identify specific functional limitations, and she did not address the degree to which substance 

abuse affected Plaintiffs seizure disorder. Tr. 26-27. 

Thereafter the ALJ cited Dr. Ferguson's April 2014 opinion. Tr. 27. The ALJ said "there 

is no support for the alleged need to take unscheduled breaks to lie down or the estimated absences. 

The record fails to contain objective documentation of frequent daily seizures, and shows that the 

claimant' seizures have been generally well controlled when he is medication compliant, which is 

often not as evidenced by subtherapeutic drug levels." Id. The ALJ rejected Dr. Ferguson's opinion 

as inconsistent with Plaintiffs activities of computer work and planning road trips related to his 

planned business. Finally, the ALJ found Dr. Ferguson's opinion not well supported or consistent 

with the medical record. 

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C. Analysis 

Plaintiff apparently concedes that Dr. Ferguson's opinion is contradicted, and argues that the 

ALJ' s assessment is not supported by specific and legitimate reasons. 

(1) The Medical Record Regarding the Frequency of Seizures 

The record indicates Plaintiff had at least a dozen grand mal seizures between May 2004 and 

October 2008. Tr. 602, 604, 600, 599, 598, 576, 591, 576, 575. On one occasion Plaintiff had 

missed his medication. Tr. 592. In March 2010 Plaintiff was seen in the emergency room after 

falling during a seizure. Tr. 663. He had a therapeutic level of Depakote in his system. Tr. 666. 

In April 2010, consulting neurologist Norman Freeman, M.D., noted generalized seizure disorder 

with sub-optimal control. Tr. 707. Plaintiff reported his medication caused drowsiness. Tr. 711. 

Dr. Freeman increased Plaintiffs Depakote from 1500 to 1750 mg per day. In June 2010, Plaintiff 

reported two seizures since April, he had reduced his Depakote to 1500 mg, and had side effects of 

a flat affect, hand tremors, tachycardia, and anxiety. Tr. 713. Plaintiff had a seizure on October 25, 

2010, and was sleepy and "foggy headed" for a number of days. Dr. Freeman noted increased 

frequency of seizures from about two per year to four this year. Tr. 734. Plaintiff reported seizures 

were triggered by stress. 

By November 2010 Plaintiff reported increasing seizures, with short term memory issues. 

Tr. 728. Dr. Freeman increased Depakote to 2000 mg per day, but Plaintiff was not able to tolerate 

that dose. On November 1 7, Plaintiff reported he had had a seizure that knocked him out for two 

and a half days and he could not remember anything. He took 1750 mg ofDepakote that caused him 

to be unaware of what he was doing. Tr. 731. Ifhe took his medication throughout the day he was 

sleepy. Dr. Freeman noted Plaintiff had rapid pressured speech and lost his train of thought. On 

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November 18, 2010, Dr. Freeman noted "inadequately controlled seizure disorder, but can't increase 

[Depakote] without intolerable side effects. Will add levetiracetam." Tr. 73 3. Plaintiff had a grand 

mal seizure on June 29, 2011. Tr. 822. Dr. Freeman noted Plaintiff was taking 2000 mg of 

Depakote, with side effects of drowsiness, mental fogginess, and dampening of emotion. Id. Dr. 

Freeman increased the Lamictal stating "his seizure disorder has not been under good control for a 

long time now." Tr. 823. In November 2011 Dr. Freeman reported Plaintiff had one seizure since 

August, when he had missed his medication. Tr. 836. Plaintiff was attending Lifeworks programs 

and not using methamphetamine or marijuana. Tr. 83 7. His Depakote level was subtherapeutic "but 

he is still very drowsy." Tr. 838. Higher doses caused intolerable side effects. 

Plaintiff saw Dr. Freeman in August 2012. Tr. 787. He reported a grand mal seizure in 

March 2012, although he had not missed his medications. Tr. 788. Plaintiff reported the Lamictal 

caused drowsiness, sensitivity to light, and decreased reaction time, and wanted surgery for his 

seizures. Dr. Freeman referred him to Dr. Ferguson. 

Plaintiff saw Dr. Ferguson on August 14, 2012. Tr. 969. Plaintiff described brief, petite 

mal seizures occurring when he attempted focused mental tasks. The seizures would sometimes fade 

ifhe was able to lie down and relax, and sometimes progressed to grand mal seizures. Dr. Ferguson 

noted breakthrough seizures on therapeutic doses ofDepakote. Tr. 970. She ordered a brain MRI 

and EEG. The EEG showed abnormal awake and asleep results with "very rare frontally dominant 

generalized appearing spike wave discharges on an otherwise normal EEG background. This finding 

is seen most often in association with an idiopathic generalized epilepsy, however, a focal frontal 

epilepsy with secondary bisynchrony cannot be entirely excluded." Tr. 769. On September 10 

Plaintiff reported side effects of sedation and slight nausea. Tr. 799. In October Dr. Ferguson 

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prescribed felbamate and the tapering of lamotrigine. Tr. 808. Plaintiff felt better mentally but 

myoclonic jerks were increasing. By December 2012, Dr. Ferguson noted Plaintiff was tapering off 

the Depakote and felt better mentally, but both generalized tonic-clonic seizures and myoclonic jerks 

were increasing. Tr. 1006. Dr. Ferguson said Plaintiff had improved control on Depakote but it 

caused "intolerable side effects." Id. 

In February 2013, Plaintiff had "seizure clusters every week, mostly myoclonic." Tr. 1011. 

In April Plaintiff reported a grand mal seizure after missing his evening medication. Tr. 1024. 

Plaintiff had two generalized tonic-clonic seizures in June after missing medications. Tr. 1034. Dr. 

Ferguson said Plaintiff "had improved control on Depakote and Felbamate, but still with 

breakthrough events." Id. On March 26, 2014, Plaintiff had a grand mal seizure and hit his head on 

concrete. Tr. 1233. He had missed three or four doses of his medications. Tr. 1236. 

On this record, the evidence as to the frequency of Plaintiffs seizures, when medication 

compliant, is not a specific and legitimate reason to discredit Dr. Ferguson's opinion. 

(2) Failure to Identify Functional Limitations 

Dr. Ferguson's failure to identify functional limitations in her December 2012 letter is not 

a valid reason to reject her opinion. This is especially true because she did identify functional 

limitations in April 2014 and the ALJ had access to both opinions. The failure to identify functional 

limitations is not a clear, convincing, specific or legitimate reason to reject her opinion. 

I II 

II I 

I I I 

II I 

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(3) Failure to Address Substance Abuse 

Dr. Freeman specifically noted Plaintiffs substance abuse in August 2012. Tr. 788. Other 

treating physicians noted intermittent substance abuse. Tr. 786. Dr. Ferguson noted "substance use 

and abuse in the past." Tr. 970. None of Plaintiffs treating doctors opined that substance abuse 

caused or contributed to his seizures. Dr. Ferguson's failure to address substance abuse is not a 

clear, convincing, specific or legitimate reason to reject her opinion. 

(4) Unscheduled Breaks, Estimated Absences, and Daily Activities 

The ALJ rejected Dr. Ferguson's opinion, in part, because there "is no support for the alleged 

need to take unscheduled breaks to lie down or the estimated absences." Tr. 27. Dr. Ferguson's 

opinion is based on her own observations of Plaintiff. Dr. Ferguson noted weekly seizure clusters, 

mostly myoclonic. Tr. 1011. Plaintiffs mother, Kathleen Hogan, testified that she witnesses 

Plaintiffs seizures about once a month, when Plaintiff appears to zone out for a minute. Tr. 77. She 

does not allow him to drive or use power tools. Id. 

As to daily activities, Plaintiff spends a great deal of time on the computer and planning road 

trips that he does not take. This is not inconsistent with frequent petit mal seizures. Because the 

ALJ failed to identify specific and legitimate reasons to reject Dr. Ferguson's opinion, the Court 

should find that determination not supported by substantial evidence. 

II. The ALJ Erred by Failing to Consider the Effect of Stress on Plaintiff's Ability to Work. 

Plaintiff contends the ALJ erred by failing to consider the effect of stress on his ability to 

work. Plaintiff notes he reported that seizures can occur when he feels psychologically stressed. Tr. 

709. Plaintiffs father completed an Adult Function Report in March 2011, in which he stated that 

"lots of stress triggers a seizure." Tr. 370. Plaintiffs mother completed a Third Party Seizure 

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Questionnaire in November 2012, in which she stated that stress caused seizures. Tr. 453. Two 

treating physicians stated that stress increased seizures. Tr. 1252. 

Defendant notes that Plaintiff reported to Thomas J. Smurthwaite, Ph.D., that his history of 

anxiety was related to his substance abuse, and his anxiety was reduced since he stopped abusing 

substances. Tr. 829. Although this may be true, it does not mean that stress does not increase the 

risk of seizure. The ALJ erred by failing to assess the effect of stress on Plaintiffs ability to work. 

III. The ALJ Erred by Failing to Consider the Side Effects of Medications. 

Plaintiff has consistently reported drowsiness from his medication. Tr. 386, 422, 713, 799, 

789, 812, 822, 838, 854, 878, 902, 910, 1006. In December, 2010, treating neurologist Freeman 

noted that Plaintiffs seizures were inadequately controlled by medication, and the dosage could not 

be increased because the side effects were already intolerable. Tr. 736. In November 2011, Dr. 

Freeman observed Plaintiff was drowsy. Tr. 838. In August 2012, Dr. Freeman reported that 

Plaintiff was having severe side effects from his medications, including drowsiness and sensitivity 

to light. In December 2012, treating epileptologist Ferguson said Plaintiff suffered some memory 

impairment due to seizures and medications. Tr. 774. 

The ALJ did not consider Plaintiffs medication side effects. On this record, the ALJ' s 

failure to consider medication side effects is error. 

IV. The Court Does Not Have Jurisdiction to Review the Action of the Appeals Council. 

Plaintiff presented new evidence, including a September 2014 surgical report, to the Appeals 

Council with his request for review. The Council declined to review the ALJ' s decision. Tr. 1. In 

doing so, it noted the newly proffered medical reports related to a "later time" and did not affect the 

ALJ' s disability determination. Id. The Council did not incorporate the new records into the 

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administrative record. Plaintiff argues the Appeals Council erred in failing to consider the new 

evidence. However, this Court does not have jurisdiction to review the action of the Appeals 

Council because it was not a final decision by the agency. Brewes v. Comm 'r of Soc. Sec. Admin., 

682 F.3d 1157, 1161 (9th Cir. 2012)("We have held that we do not have jurisdiction to review a 

decision of the Appeals Council denying a request for review of an ALJ' s decision, because the 

Appeals Council decision is a non-final agency action."). Accordingly, Plaintiffs challenge is not 

properly before this Court on appeal. 

REMAND 

The decision whether to remand for further proceedings or for immediate payment of benefits 

is within the discretion of the Court. Harman v. Apfel, 211 F.3d 172, 1178 (91

h Cir. 2000), cert. 

denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A remand for 

an award of benefits is appropriate when no useful purpose would be served by further administrative 

proceedings or when the record has been fully developed and the evidence is insufficient to support 

the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-39 (9th Cir. 201 l)(quoting 

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The Court may not award benefits 

punitively, and must conduct a "credit-as-true" analysis to determine if a claimant is disabled under 

the Act. Id at 1138. 

Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of 

benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such 

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

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

claimant disabled were such evidence credited. Id. The "credit-as-true" doctrine is not a mandatory 

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rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award 

of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F.3d 871, 876 

(citing Bunnell v. Sullivan, 947 F.2d 871(91

h Cir. 2003)(en bane)). The reviewing court should 

decline to credit testimony when "outstanding issues" remain. Luna v. Astrue, 623 F .3d 1032, 1035 

(91

h Cir. 2010). See also, Treichler v. Comm 'r of Soc. Sec. Admin., 775 F.3d 1090, 1100-1101 (th 

Cir. 2014). 

The ALJ erred by rejecting the opinions of the treating physicians. Those physicians opined 

thatPlaintiffwouldmissmorethan two days ofworkeachmonthdueto his symptoms. Tr. 1252-53. 

If credited, their opinions establish that Plaintiff cannot maintain employment because the Vocation 

al Expert testified that a person who missed more than two days of work each month would not be 

able to maintain employment. Tr. 83. These opinions establish that Plaintiff is disabled. Thus the 

Court should conclude Plaintiff is disabled based on this medical record and no useful purpose 

would be served by a remand of this matter for further proceedings. See Harman, 211 F.3d at 117. 

RECOMMENDATION 

For the foregoing reasons, the Commissioner's decision should be REVERSED and 

REMANDED to the Commissioner pursuant to sentence four, 42 U.S.C. § 405(g) forthe calculation 

and payment of benefits to Plaintiff. 

II I 

II I 

I II 

I II 

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This Report and Recommendation will be referred to a district judge. Objections, if any, are 

due no later than fourteen (14) days after the date this recommendation is filed. If objections are 

filed, any response is due within fourteen (14) days after the date the objections are filed. See 

FED.R.CIV. P. 72, 6. Parties are advised that the failure to file objections within the specified time 

may waive the right to appeal the District Court's order. Martinez v. Ylst, 951F.2d1153 (9th Cir. 

1991). 

Dated this 5· day of April 2016: 

United States Magistrate Judge 

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