FINDINGS AND RECOMMENDATION – 1 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DIANA C. KUNKLE, ) Civil No.: 6:14-cv-01605-JE 

 ) 

 Plaintiff, ) FINDINGS AND 

 ) RECOMMENDATION 

 v. ) 

 ) 

CAROLYN W. COLVIN, ) 

Acting Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

____________________________________ ) 

 Kathryn Tassinari 

 Mark A. Manning

 Harder Wells Baron & Manning, PC 

 474 Willamette Street, Suite 200 

 Eugene, OR 97401 

 Attorneys for Plaintiff 

 

 Billy J. Williams, Acting U.S. Attorney 

 Janice Hebert, Asst. U.S. Attorney 

 1000 S.W. 3rd Avenue, Suite 600 

 Portland, OR 97204 

 

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FINDINGS AND RECOMMENDATION – 2 

 Martha Boden 

 Special Asst. U.S. Attorney 

 Office of the General Counsel 

 Social Security Administration 

 701 5th Avenue, Suite 2900 M/S 221 A 

 Seattle, WA 98104-7075 

 Attorneys for Defendants 

JELDERKS, Magistrate Judge: 

 Plaintiff Diana Kunkle brings this action pursuant to 42 U.S.C. §405(g) seeking judicial 

review of a final decision of the Commissioner of Social Security (the Commissioner) denying 

her application for Disability Income Benefits (DIB) under the Social Security Act (the Act). 

Plaintiff seeks an Order remanding the action to the Social Security Administration (the Agency) 

for an award of benefits. In the alternative, Plaintiff seeks a remand for further proceedings. 

 For the reasons set out below, the Commissioner’s decision should be reversed and this 

action should be remanded to the Agency for an immediate award of benefits. 

Procedural Background 

 Plaintiff filed an application for a period of disability and for DIB on December 5, 2011, 

alleging she had been disabled since September 14, 2011. 

 After her claims were denied initially and upon reconsideration, Plaintiff timely requested 

an administrative hearing. 

 On August 23, 2013, a hearing was held before Administrative Law Judge (ALJ) 

Elizabeth Watson. Plaintiff and Kay Wise, a Vocational Expert (VE), testified at the hearing. 

Plaintiff was represented by counsel. 

 In a decision dated September 11, 2013, ALJ Watson found that Plaintiff was not 

disabled within the meaning of the Act. 

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 On August 22, 2014, the Appeals Council denied Plaintiff’s request for review, rendering 

the ALJ’s decision the final decision of the Commissioner. In the present action, Plaintiff 

challenges that decision. 

Background 

 Plaintiff was born in 1977 and was 36 years old at the time of the ALJ’s decision. Tr. 

137. She has an associate degree and was certified as a Certified Nursing Assistant (CNA). Tr. 

41. She has past relevant work as a collector, an in-home care giver and a hospital ward clerk. Tr. 

68. 

Disability Analysis 

 The ALJ engages in a five-step sequential inquiry to determine whether a claimant is 

disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. Below is a summary 

of the five steps, which also are described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 

1999). 

 Step One. The Commissioner determines whether the claimant is engaged in substantial 

gainful activity (SGA). A claimant engaged in such activity is not disabled. If the claimant is 

not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s 

case under Step Two. 20 C.F.R. § 404.1520(b). 

 Step Two. The Commissioner determines whether the claimant has one or more severe 

impairments. A claimant who does not have such an impairment is not disabled. If the claimant 

has a severe impairment, the Commissioner proceeds to evaluate the claimant’s case under Step 

Three. 20 C.F.R. § 404.1520(c). 

 Step Three. Disability cannot be based solely on a severe impairment; therefore, the 

Commissioner next determines whether the claimant’s impairment “meets or equals” one of the 

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presumptively disabling impairments listed in the Social Security Administration (SSA) 

regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has such an impairment 

is disabled. If the claimant’s impairment does not meet or equal an impairment listed in the 

regulations, the Commissioner’s evaluation of the claimant’s case proceeds under Step Four. 

20 C.F.R. § 404.1520(d). 

 Step Four. The Commissioner determines whether the claimant is able to perform 

relevant work he or she has done in the past. A claimant who can perform past relevant work is 

not disabled. If the claimant demonstrates he or she cannot do work performed in the past, the 

Commissioner’s evaluation of the claimant’s case proceeds under Step Five. 20 C.F.R. 

§ 404.1520(f). 

 Step Five. The Commissioner determines whether the claimant is able to do any other 

work. A claimant who cannot perform other work is disabled. If the Commissioner finds that 

the claimant is able to do other work, the Commissioner must show that a significant number of 

jobs exist in the national economy that the claimant can do. The Commissioner may satisfy this 

burden through the testimony of a vocational expert (VE) or by reference to the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner 

demonstrates that a significant number of jobs exist in the national economy that the claimant 

can do, the claimant is not disabled. If the Commissioner does not meet this burden, the claimant 

is disabled. 20 C.F.R. § 404.1520(g)(1). 

 At Steps One through Four, the burden of proof is on the claimant. Tackett, 180 F.3d at 

1098. At Step Five, the burden shifts to the Commissioner to show that the claimant can perform 

jobs that exist in significant numbers in the national economy. Id. 

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Medical Record and Testimony 

 The court has carefully reviewed the medical record and testimony and the parties are 

familiar with both. Accordingly, the details of that evidence will be set out below only as they 

are relevant to the issues before the court. 

ALJ’s Decision 

 As an initial matter, the ALJ found that Plaintiff met the insured status requirements of 

the Act through September 30, 2015. 

 At the first step of her disability analysis, the ALJ found that Plaintiff had not engaged in 

substantial gainful activity from the date of her alleged onset of disability on September 14, 2011 

through the date last insured. 

 At the second step, the ALJ found that Plaintiff had the following severe impairments: 

lumbar spine degenerative disc disease, sacroiliac (SI) joint inflammation, migraine, and reactive 

depression. Tr. 13. 

 At the third step, the ALJ found that Plaintiff did not have an impairment or combination 

of impairments that met or equaled a presumptively disabling impairment set out in the Listings, 

20 C.F.R. Part 404, Subpart P, App. 1. 

 The ALJ next assessed Plaintiff’s residual functional capacity (RFC). She found that 

Plaintiff retained the capacity to lift 15 pounds occasionally and to lift and carry up to 10 pounds 

frequently. She could stand or walk for about six hours and sit for about six hours in an eight 

hour work day but should be allowed to alternate sitting or standing positions as needed 

throughout the day while remaining on task. Plaintiff could occasionally climb ramps or stairs 

and stoop, kneel, crouch or crawl. She should never climb ropes, ladders or scaffolds and should 

avoid all exposure to operational control of moving machinery, unprotected heights and 

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hazardous machinery. Plaintiff was limited to only occasional interaction with the public, 

coworkers and supervisors. On a regular basis, Plaintiff would be off task outside normal work 

breaks less than 10% of the time. Tr. 15. In determining Plaintiff’s RFC, the ALJ found that 

Plaintiff’s statements concerning the intensity, persistence and limiting effects of her symptoms 

were not entirely credible. Tr. 16. 

 At the fourth step of her disability analysis, the ALJ found that Plaintiff was unable to 

perform any of her past relevant work. 

 At the fifth step, the ALJ found that Plaintiff could perform other jobs that existed in 

substantial numbers in the national economy. Based upon testimony from the VE, the ALJ cited 

label coder/marker, data examination clerk, and non-government mail clerk/sorter as examples of 

such work. Having concluded that Plaintiff could perform other work, the ALJ found that 

Plaintiff had not been under a disability within the meaning of the Act from September 14, 2011 

through the date of her decision. Tr. 20. 

Standard of Review

 A claimant is disabled if he or she is unable “to engage in 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). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 

66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears 

the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), 

and bears the burden of establishing that a claimant can perform “other work” at Step Five of the 

disability analysis process. Tackett, 180 F.3d at 1098. 

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 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 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 

“Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Andrews, 53 F.3d at 1039. The court must weigh all of the evidence, whether it supports or 

detracts from the Commissioner’s decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 

1986). The Commissioner’s decision must be upheld, however, even if “the evidence is 

susceptible to more than one rational interpretation.” Andrews, 53 F.3d at 1039-40. 

Discussion 

I. Plaintiff’s Subjective Symptom Testimony 

 Plaintiff contends that the ALJ failed to articulate clear and convincing reasons, 

supported by substantial evidence, for finding that her subjective symptom allegations were not 

fully credible. 

 Plaintiff testified that she has lower back pain that had worsened over time. She 

experiences back pain and spasms every day and pain in her left hip three to four times a week. 

Tr. 51. Activities like walking, bending over, housecleaning or sleeping “wrong” can bring on 

the pain. She can sit for maybe an hour before she begins to experience pain and then must shift 

position. She lies down three to four times a day and sometimes all day due to her back pain. Tr. 

61. She can stand no more than about 20 minutes before she starts feeling pain in her back and 

she can walk for about ten minutes. Tr. 64-65. She has been trying to take walks with her mother 

at night. They walk about four blocks and “it’s pretty painful.” Tr. 65. Plaintiff plans her daily 

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activities, such as housework, around her pain and takes breaks during the day so that the pain 

does not intensify. Tr. 62. 

A. Standards 

 When a claimant has medically documented impairments that could reasonably be 

expected to produce some degree of the symptoms complained of, and the record contains no 

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the 

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” 

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). 

 Pursuant to Social Security Ruling (“SSR”) 16-3p, available at 2016 WL 1119029 (Mar. 

16, 2016) (superseding SSR 96-7p), the ALJ is no longer tasked with making an overarching 

credibility determination, and must assess instead whether a claimant’s subjective symptom 

statements are consistent with the record as a whole. The ALJ’s decision in this case was issued 

well before SSR 16-3p became effective and there is an absence of binding precedent 

interpreting this new ruling or addressing whether it applies retroactively. Compare Ashlock v. 

Colvin, 2016 WL 3438490, *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to 

an ALJ decision issued prior to the effective date), with Lockwood v. Colvin, 2016 WL 

2622325, *3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p retrospectively to a 2013 ALJ 

decision). 

 However, SSR 16-3p is a clarification of sub-regulatory policy, rather than a new policy. 

SSR 16-3p, at *1; also compare SSR 16-3p with SSR 96-7p (both policies set forth a two-step 

process to be followed in evaluating a claimant's testimony and contain the same factors to be 

considered in determining the intensity and persistence of a claimant's symptoms). In Andre v. 

Colvin, 6:14-cv-02009-JE (D.Or. Oct. 13, 2016), I recently concluded that, for this reason, 

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retroactive application of the new SSR is appropriate. 1 See Smolen, 80 F.3d at1281 n.1 (“We 

need not decide the issue of retroactivity [as to revised regulations] because the new regulations 

are consistent with the Commissioner's prior policies and with prior Ninth Circuit case law”) 

(citing Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993)) (because regulations were intended to 

incorporate prior Social Security Administration policy, they should be applied retroactively).2

 The new SSR clarifies that “subjective symptom evaluation is not an examination of an 

individual’s character.” Id. In other words, “[t]he focus of the evaluation of an individual’s 

symptoms should not be to determine whether he or she is a truthful person.” Id. at *10. Rather, 

“[a]djudicators must limit their evaluation to the individual’s statements about his or her 

symptoms and the evidence in the record that is relevant to the individual’s impairments.” Id. 

Thus, “it is not sufficient for our adjudicators to make a single, conclusory statement that ‘the 

individual’s statements about his or her symptoms have been considered . . . .’” Id. at *9. Instead, 

the finding “must contain specific reasons for the weight given to the individual’s symptoms, be 

consistent with and supported by the evidence, and be clearly articulated so the individual and 

any subsequent review can assess how the adjudicator evaluated the individual’s symptoms.” Id. 

 In evaluating a claimant’s subjective symptom testimony, an ALJ must consider the 

entire record and consider several factors, including the claimant's daily activities; the location, 

duration, frequency, and intensity of the claimant’s pain or other symptoms; medications taken 

and their effectiveness; treatment other than medication; measures other than treatment used to 

relieve pain or other symptoms; and “other factors concerning the individual's functional 

 

1

 Other recent District of Oregon SSA dispositions have also incorporated SSR 16-3p into the analytical framework 

for evaluating ALJ findings regarding subjective symptom testimony. See, e.g., Mesmer v. Colvin, No. 6:15-cv00947-MC, available at 2016 WL 5339728 (D.Or. Sept. 23, 2016); Burnstad v. Colvin, No. 6:15-cv-00921-SI, 

available at 2016 WL 4134535 (D.Or. Aug. 2, 2016). 

2

 In any event, the ALJ’s reasoning here failed to meet either standard. 

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limitations and restrictions due to pain or other symptoms.” C.F.R. §404.1529(c). If substantial 

evidence supports the ALJ's determination, it must be upheld, even if some of the reasons cited 

by the ALJ are not correct. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th 

Cir. 2008). 

B. Analysis 

Because Plaintiff’s medically determinable impairments could reasonably be expected to 

cause some degree of symptoms and there was no evidence of malingering, the ALJ was required 

to provide clear and convincing reasons supported by substantial evidence for discounting 

Plaintiff subjective symptom testimony. 

 The ALJ found that “treatment notes showed some clinical evidence of functional limits 

but not to the extent that all work activity would be precluded.” She also noted that Plaintiff did 

not stop working because of her disability and because her receipt of unemployment 

compensation contemporaneously with her application for disability benefits “called into 

question her allegations regarding the severity of her conditions.” Tr. 16. 3

 These are not clear 

and convincing reasons for discounting Plaintiff’s subjective symptom testimony and they are 

not supported by substantial evidence in the record. 

 The ALJ noted that in October 2011, treatment notes showed that Plaintiff appeared 

uncomfortable to palpation of the lumbar spine and left SI joint but had normal deep tendon 

 

3

 The Court notes that in her Response Brief the Commissioner advances the argument that the ALJ properly 

discounted Plaintiff’s testimony because it was inconsistent with her activities of daily living. As Plaintiff correctly 

asserts, this was not a reason proffered by the ALJ in her decision. Accordingly, the Court will not consider it as 

part of its review. See Bray v. Commissioner, 554 F.3d 1219, 1225 (9th Cir.2009)(“Long-standing principles of 

administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the 

ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”)(citations 

omitted). 

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reflexes in the lower extremities and negative straight leg raising. Plaintiff was prescribed 

Naprosyn and Vicodin. The next month she exhibited decreased range of back motion but her 

medical provider made no change in treatment. Tr. 241, 16. The ALJ asserted that despite her 

allegations of daily back pain, Plaintiff was inconsistent in pursuing treatment and reported 

improvements in April, May and June of 2012. The ALJ also asserted that subsequent treatment 

records “did not show clinical evidence of worsening.” Tr. 16. 

 Medical records from 2004 show MRI evidence of disc desiccation at L5-S1. In October 

2011, Plaintiff presented for treatment of back pain that was debilitating on a daily basis. Tr. 240. 

Plaintiff’s primary medical provider, Dr. LeBow, noted that her increase in symptomology was 

“entirely in keeping with the usual progression of the problem” and that “there certainly would 

not be improvement over time.” Tr. 241. Dr. LeBow’s treatment notes indicate that he did not 

view further imaging to be helpful and that he counseled Plaintiff regarding the need to go to a 

chronic pain management program. Id. Contrary to the Commissioner’s argument, Plaintiff did 

return for a follow up appointment the next month. Although Dr. LeBow made no changes in her 

medication, he referred Plaintiff to a women’s health specialist for evaluation of contributory 

causes to her back pain. Tr. 239, 247-249. The record reflects that Plaintiff returned to Dr. 

LeBow for assessment of her back pain in April and May of 2012. Although treatment notes 

from early 2012 indicate improvement on the narcotic regimen, they also show that, on 

examination, Plaintiff exhibited localized discomfort in the SI joint, “fairly discrete” tenderness 

in the left SI joint and more prominence to palpation. Although improved, Plaintiff’s range of 

motion was performed “in a careful fashion.” Tr. 261-64. 

 In July, 2012, Dr. LeBow noted exquisite tenderness in the left paralumbar musculature 

and “even more pain is elicited with palpation of the left SIJ.” Tr. 392. Plaintiff ambulated with a 

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very forward flexed position and wide-based gait. Id. Dr. LeBow noted the possibility that 

Plaintiff “may have true instability of the left sacroiliac joint,” but that obtaining any imaging 

studies would be “virtually impossible” thus making it difficult to prove at that time. Id. 

 In November 2012 Plaintiff reported having more difficulty controlling her back pain on 

a day-to-day basis. Dr. LeBow noted she was moving stiffly and “as usual, she has decreased 

mobility for range of motion of her lumbar spine mainly because of discomfort.” Tr. 380-81. 

 In March, 2013, Plaintiff reported to Dr. LeBow that her prescribed pain medication and 

Naprosyn combination barely kept her discomfort to a functional level and that performing 

activities of daily living or cleaning house “put her out of action for about a day.” Tr. 374. 

 Based on my review of the record, I conclude that substantial evidence does not support 

the ALJ’s findings that Plaintiff pursued only sporadic treatment and showed signs of 

improvement that were more than short-lived, or that the record shows no evidence of 

worsening. Furthermore, to the extent that the symptoms Plaintiff alleges might arguably be 

described as inconsistent with the objective medical record, the Ninth Circuit has expressly held 

that such inconsistency is not a proper basis for discounting a claimant's pain testimony. See, 

e.g., Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.1990) (assertion that pain was “out of 

proportion to the medical evidence” not valid basis for discounting testimony “since it is the very 

nature of excess pain to be out of proportion to the medical evidence”). 

 The ALJ also discounted Plaintiff’s subjective symptom testimony because Plaintiff did 

not stop working because of her disability. The ALJ noted that Plaintiff was able to maintain 

employment with her last employer despite absences related to her condition and that Plaintiff 

had been discharged for failing to meet quotas. Tr. 17. Plaintiff argues that the fact that she was 

not terminated because of her medical condition is not inconsistent with her claim of disability. 

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 I agree. The record reflects that Plaintiff was terminated from her employment in August 

of 2011. Tr. 46. In her application for benefits she alleged an onset date of September 14, 2011. 

Tr. 137. Plaintiff presented for treatment of debilitating daily back pain in October 2011 and, as 

discussed above, the record reflects that Plaintiff’s condition worsened over time. Finally, the 

circumstances under which Plaintiff had stopped working for her last employer are of 

questionable relevance, given that the ALJ's own assessment of her functional capacity precluded 

performance of the work that she had performed for that employer. Under these circumstances, 

the fact that she was terminated for non-medical reasons is not inconsistent with her allegations 

of pain. 

 Lastly, the ALJ supported her evaluation of Plaintiff’s subjective symptom testimony by 

noting that Plaintiff received unemployment compensation contemporaneously with her 

application for disability benefits. The Commissioner argues that “Plaintiff testified that, as an 

unemployment beneficiary in Oregon, she understood that she must accept full time work if 

offered to her.” Def. Brief at 7, Tr. 52. The Commissioner mischaracterizes Plaintiff’s testimony 

and the record does not establish that Plaintiff asserted that she was available for full-time 

employment. See, Carmickle, 533 F.3d at 1161–62. In any event, the ALJ herself relied only on 

Plaintiff’s receipt of unemployment benefits and the fact that she sought “office work, light 

collections, and entry level office work” as inconsistent with her symptom allegations. She did 

not reference any indication by Plaintiff that she could or would accept full-time work or that 

Plaintiff, as the Commissioner argues, “believed she was capable of working fulltime.” Tr. 17, 

Def. Brief at 7. 

 Under Oregon’s specific unemployment eligibility rules, a person with a disability may 

apply for unemployment benefits as long as she is able to perform “some work.” See, Oregon 

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Administrative Rule 471-030-0036(2)(b). Plaintiff’s receipt of benefits under these rules was not 

a clear and convincing reason to discount Plaintiff’s testimony. 

 In short, the ALJ's stated reasons for finding that the record did not support Plaintiff's 

subjective symptom statements, or were a reason to find her “not entirely credible,” were not 

clear and convincing reasons supported by substantial evidence. The ALJ improperly rejected 

Plaintiff’s testimony and the error was not harmless. Accordingly, remand is warranted. 

II. Evaluating Medical Opinion 

As noted above, Plaintiff contends that the ALJ gave legally insufficient reasons for 

failing to credit the opinion of her primary treating physician, Dr. John LeBow. 

 Dr. LeBow became Plaintiff’s treating physician in 2000. Tr. 255. In a letter to Plaintiff’s 

attorney dated May 8, 2012, he described Plaintiff as suffering “recurrent episodes of debilitating 

back pain.” Id. He indicated that “all modalities” of treatment had been tried variously and noted 

that the different medications that had been utilized all “have the potential to impair her abilities 

to work secondary to drowsiness.” Dr. LeBow opined: 

 As to physical abilities, when the patient is not having an episode, she can 

perform normally for stand, walk, and sit, however, I would definitely limit her to 

a 15 lb. wt. limit only on an occasional basis. Of course, during an episode, she 

can’t stand for more than 10-15 minutes at any one time, can sit for no more than 

30 minutes with frequent needs to lie down as needed. 

Tr. 255. Dr. LeBow elaborated that “[d]uring the episodes, she is debilitated to the point she 

needs to sit or lie almost continually and obviously not capable of work in the normal venue.” Id. 

He further opined that: 

 Given the pattern that I’ve observed over the years, I would speculate that, 

on average, she would be incapacitated from work for 3 days/month and would be 

in need of some limiting criteria, e.g. half-time status, for at least 2 additional 

days/month. 

Id. 

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 The ALJ agreed with a State agency consulting physician’s assessment of Dr. LeBow’s 

opinion and discounted those portions of his opinion regarding Plaintiff’s limitations during an 

episode of back pain. The ALJ gave Dr. LeBow’s opinion only “little weight” because she found 

it “speculative” and inconsistent with the doctor’s own treatment notes. 

A. Standards 

 The ALJ is required to consider all medical opinion evidence and is responsible for 

resolving conflicts and ambiguities in the medical testimony. Tommasetti v. Astrue, 533 F.3d 

1035, 1041 (9th Cir. 2008). In reviewing an ALJ's decision, the court does not assume the role of 

fact-finder, but instead determines whether the decision is supported by substantial evidence in 

light of the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992). 

 The opinion of an examining physician is entitled to greater weight than the opinion of a 

non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990). An ALJ must 

provide clear and convincing reasons for rejecting the uncontradicted opinions of an examining 

physician, id., and must provide specific and legitimate reasons for rejecting opinions of an 

examining physician that are contradicted by another physician. Andrews, 53 F.3d at 1043. A 

non-examining physician's opinion “cannot by itself constitute substantial evidence that justifies 

rejection of the opinion of either an examining physician or a treating physician.” Lester v. 

Chater, 81 F.3d 821, 830–31 (9th Cir.1995). 

B. Analysis

 The Commissioner argues that the ALJ legitimately discounted Dr. LeBow’s opinion as 

speculative because the doctor, in using the word “speculate,” was admitting that he was only 

guessing about Plaintiff’s workplace limitations. Def. Brief at 10. The Commissioner also asserts 

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that Dr. LeBow’s chart notes do not support the level of incapacity he described in his May 2012 

letter. The Commissioner’s arguments are unpersuasive. 

 In finding Dr. LeBow’s opinion inconsistent with his treatment records, the ALJ 

remarked that the doctor had not reported medication side effects, there was no mention of 

clinical signs to corroborate the level of severity indicated in his opinion and Plaintiff’s 

complaints were sporadic. Tr. 18. First, as Plaintiff correctly notes, Dr. LeBow’s letter indicated 

only that the medications that Plaintiff had been prescribed over the course of her treatment all 

had “the potential to impair her abilities to work secondary to drowsiness.” Tr. 55 (emphasis 

added). Dr. LeBow did not write that Plaintiff was experiencing these side effects and Plaintiff 

herself does not claim that she is adversely affected. Tr. 255-56, Pl. Brief at 16. 

 As reflected in the discussion in Section I, supra, Plaintiff presented for treatment of 

debilitating daily back pain in October 2011 and her condition worsened over time. Dr. LeBow’s 

treatment notes reflect that deterioration. See Tr. 239, 241, 374, 380-81, 385, 391-92. Also as 

discussed above, the record reflects that the ALJ mischaracterized Plaintiff’s reports of disabling 

limitations as sporadic. As to clinical findings, Dr. LeBow’s treatment records referenced MRI 

evidence of disc desiccation, muscle spasms of the paravertebral lumbar musculature, an S1 joint 

that was prominently painful to palpation, and his observations of Plaintiff’s decreased range of 

motion and altered gait. Id. Under these circumstances, inconsistency with treatment records was 

not a legally sufficient reason for rejecting Dr. LeBow’s opinion. 

 Next, as Plaintiff correctly notes, the portion of Dr. LeBow’s opinion describing 

Plaintiff’s limitations during an episode contained no speculative language. Second, in context, 

Dr. LeBow’s statement “speculating” as to the number of times per month Plaintiff would be 

incapacitated reflects that his opinion was based on his lengthy history of treatment of Plaintiff 

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and “the pattern that [he had] observed over the years.” Tr. 255. This assessment is no more and 

no less than the type of medical opinion proffered by treating physicians in a multitude of social 

security cases. It is a combination of objective and subjective judgments based upon an 

understanding of a Plaintiff’s medical history and circumstance. This “greater opportunity to 

know and observe a patient as an individual,” is why special weight is afforded to a treating 

physician’s opinion. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.1987). 

 As discussed above, Dr. LeBow had a long-standing treatment history with Plaintiff and I 

have concluded that his opinions were not inconsistent with his treatment notes. The nonexamining, State agency physician’s opinion that Dr. LeBow’s opinion was speculative does not, 

on its own, constitute substantial evidence. Lester, 81 F.3d at 830–31. Thus, the ALJ’s reliance 

on her characterization of Dr. LeBow’s opinion as “speculative” was neither a clear and 

convincing nor a specific and legitimate reason for rejecting that opinion. 

III. Lay Witness Evidence 

 Plaintiff’s mother, Christine Beights, completed a Third Party Function Report. She 

wrote that Plaintiff can only sit and stand for short periods of time, can lift very little weight and 

finds walking painful. Tr. 206. Ms. Beights, who lives with Plaintiff, wrote that Plaintiff does 

light housework depending on how her back feels and that Ms. Beights and Plaintiff’s husband 

pick up what Plaintiff cannot do. Tr. 207. She wrote that Plaintiff is in pain every day. Tr. 213. 

 The ALJ discounted Ms. Beights’ report because it “largely mirrors the claimant’s selfreport, which I do not find entirely credible.” Tr. 18. Plaintiff argues that this was not a valid 

reason since the ALJ erred in rejecting Plaintiff’s testimony. I agree. 

 Lay testimony as to a claimant's symptoms or as to how an impairment affects a 

claimant's ability to work is competent evidence which an ALJ must consider. Molina v. Astrue,

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FINDINGS AND RECOMMENDATION – 18 

674 F.3d 1104, 1114 (9th Cir.2012) (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 

Cir.1995); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993)). An ALJ who rejects the 

testimony of lay witnesses must provide reasons for doing so that are “germane” as to each 

witness. Id. 

 Ms. Beights’ statements, as the ALJ noted, were consistent with the alleged severity of 

Plaintiff’s limitations. In addition, Ms. Beights’ lived with Plaintiff and had the opportunity to 

observe her daily activities firsthand. Given my conclusion that the ALJ failed to give clear and 

convincing reasons for rejecting Plaintiff’s own subjective complaints, it follows that, in the 

absence of additional support, the ALJ also erred in rejecting the lay witness evidence. 

IV. Step Five Findings 

 In order to be accurate, an ALJ's vocational hypothetical presented to a VE must set out 

all of a claimant's impairments and limitations. E.g., Gallant v. Heckler, 753 F.2d 1450, 1456 

(9th Cir.1984). The ALJ's depiction of a claimant's limitations must be “accurate, detailed, and 

supported by the medical record.” Tackett, 180 F.3d at 1101. If the assumptions set out in the 

hypothetical are not supported by the record, a VE's conclusion that a claimant can work does 

not have evidentiary value. Gallant, 753 F.2d at 1456. If the ALJ has applied the proper legal 

standard and the decision is supported by substantial evidence, the RFC assessment must be 

affirmed. E.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.2005). 

 Here, based on the testimony of the VE, the ALJ determined that Plaintiff was capable of 

performing “other work” that exists in significant numbers in the national economy. However, 

the VE testified that a person off task by ten percent or more would not maintain employment 

and absences of two or more days a month, if chronic, would preclude employment. Tr. 73. The 

VE also testified and that employers do not customarily allow employees to recline outside of 

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FINDINGS AND RECOMMENDATION – 19 

scheduled breaks during the workday. Thus, if Plaintiff and Dr. LeBow are credited, the ALJ 

would be required to find Plaintiff disabled. 

V. Remand

 A reviewing court has discretion to remand an action for further proceedings or for a 

finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th 

Cir.1985). Whether an action is remanded for an award of benefits or for further proceedings 

depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 

(9th Cir. 2000). 

 In determining whether an award of benefits is warranted the court follows the “threepart credit-as-true standard.” Garrison v. Colvin, 759 F3d 995, 1020 (9th Cir. 2014). Under this 

standard the court considers whether: “(1) the record has been fully developed and further 

administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide 

legally sufficient reasons for rejecting evidence, whether claimant's testimony or medical 

opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be 

required to find the claimant disabled on remand.” Id. (citing Ryan v. Comm'r Soc. Sec., 528 

F.3d 1194, 1202 (9th Cir. 2008)) 

 On the first factor, there is no need to further develop the record. The Commissioner 

argues that further proceedings would serve the “useful purpose” of allowing the ALJ to resolve 

conflicts between Plaintiff’s testimony and the opinions of the State agency non-examining 

physicians. The Ninth Circuit has noted that resolving conflicts and ambiguities in the record is 

the ALJ’s responsibility. E.g., Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989). 

However, it has also concluded that allowing the ALJ to revisit medical opinions and testimony 

she rejected for legally insufficient reasons does not qualify as a remand for a “useful purpose.” 

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FINDINGS AND RECOMMENDATION – 20 

See Garrison, 759 F.3d at 1021 (citing Benecke v. Barnhart, 379 F.3d 587, 595(9th Cir. 2004)) 

(“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; 

tails, let's play again’ system of disability benefits adjudication.”). The ALJ, here, improperly 

rejected Plaintiff’s testimony and Dr. LeBow’s opinion. Furthermore, although she considered 

the opinions of the State agency physicians, she gave those opinions only “partial weight.” Under 

these circumstances, additional administrative proceedings would serve no “useful purpose.” 

 On the second factor, the court has concluded that the ALJ failed to provide legally 

sufficient reasons to reject Dr. LeBow's opinion and Plaintiff's subjective complaints. 

 Third, if the discredited evidence were credited as true, the ALJ would be required to find 

Plaintiff disabled on remand because the vocational expert testified that a person with the 

limitations that Dr. LeBow identified and to which Plaintiff testified, would be incapable of 

sustained full-time work. Tr. 73-75. 

 If a court concludes, as in this case, that a Plaintiff meets the three criteria of the creditas-true standard, the improperly discredited evidence is credited as true and remand for an award 

of benefits is appropriate unless “the record as a whole creates serious doubt as to whether the 

claimant is, in fact, disabled with the meaning of the Social Security Act.” Garrison, 759 F.3d at 

1020–1021 (citations omitted). 

 Considering the record as a whole, I conclude that there is no reason for serious doubt as 

to whether Plaintiff is disabled. On the record before the Court, Dr. LeBow's opinions and 

Plaintiff's subjective complaints should be credited as true and the case should be remanded for 

an award of benefits. 

Conclusion 

 For the reasons set out above, a judgment should be entered REVERSING the 

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FINDINGS AND RECOMMENDATION – 21 

Commissioner’s decision and REMANDING this action to the Agency for an immediate award 

of benefits. 

Scheduling Order

 This Findings and Recommendation will be referred to a district judge. Objections, 

if any, are due December 30, 2016. If no objections are filed, then the Findings and 

Recommendation will go under advisement on that date. 

 If objections are filed, then a response is due within 14 days after being served with 

a copy of the objections. When the response is due or filed, whichever date is earlier, the 

Findings and Recommendation will go under advisement. 

 DATED this 13th day of December, 2016. 

 

 /s/ John Jelderks 

 John Jelderks 

 U.S. Magistrate Judge 

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