IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DIANA LYNN CHAMBERS, 

Plaintiff, 

v. 

CAROLYNW. COLVIN 

Commissioner of Social Security, 

Defendant. 

Arthur W. Stevens III 

Black, Chapman, Webber & Stevens 

221 Stewart Ave. Ste. 209 

Medford, OR 97501 

Attorney for Plaintiff 

Civil No. 1: 15-cv-00305-CL 

OPINION & ORDER 

Case 1:15-cv-00305-CL Document 23 Filed 03/17/16 Page 1 of 20
Billy J. Williams 

United States Attorney 

District of Oregon 

Janice E. Hebert 

Assistant United States Attorney 

1000 SW Third Ave., Suite 600 

Portland, OR 97201-2902 

Lisa Goldoftas 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

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

Seattle, WA 98104 

Of Attorneys for Defendant 

CLARKE, Magistrate Judge: 

Plaintiff Diana Lynn Chambers ("Chambers") seeks judicial review of the Social Security 

Commissioner's final decision denying her applications for Disability Insurance Benefits ("DIB") 

and Supplemental Security Income Benefits ("SSI") under Titles II and XVI of the Social Security 

Act ("Act"). This court has jurisdiction under 42 U.S.C. § 405(g). For the reasons explained below, 

the Commissioner's decision is reversed and this case remanded for further proceedings consistent 

with this Opinion and Order. 

BACKGROUND 

Born on October 13, 1958, Chambers applied for benefits on April 13, 2011. Tr. 12, 91. She 

alleges disability beginning on August 1, 2010. Id. The Commissioner denied her applications 

initially and upon reconsideration. Tr. 12, 100-01, 137. Thereafter, an Administrative Law Judge 

("ALJ'') held a hearing on June 5, 2013. Tr. 33-79. The ALJ issued a decision finding Chambers not 

disabled on June 24, 2013. Tr. 12-25. The Appeals Council declined review on July 31, 2014. Tr. 

1-3. Chambers now appeals to this Court. 

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DISABILITY ANALYSIS 

The Commissioner engages in a sequential process encompassing between one and five steps 

in determining disability under the meaning of the Act. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 

U.S. 137, 140 (1987). 

At step one, the ALJ determines if the claimant is performing substantial gainful activity. If 

so, the claimant is not disabled. 20 C.F.R. § 404. 1520(a)(4)(i). At step two, the ALJ determines if 

the claimant has "a severe medically determinable physical or mental impairment" that meets the 

twelve-month durational requirement. 20 C.F.R. §§ 404.1509; 404. 1520(a)(4)(ii). If the claimant 

does not have such a severe impairment, she is not disabled. Id. 

At step three, the ALJ determines whether the severe impairment meets or equals a "listed" 

impairment in the regulations. 20 C.F.R. § 404. 1520(a)(4)(iii). If the impairment is determined to 

equal a listed impairment, the claimant is disabled. 

If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other 

relevant evidence in assessing the claimant's residual functional capacity ("RFC"). The claimant's 

RFC is an assessment of work-related activities the claimant may still perform on a regular and 

continuing basis, despite limitations imposed by her impairments. 20 C.F.R. § 404.1520( e ); Social 

Security Ruling ("SSR") 96-8p. 

The ALJ uses this information to determine if the claimant can perform her past relevant 

work at step four. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can perform her past relevant 

work, she is not disabled. If the ALJ finds that the claimant's RFC precludes performance of her 

past relevant work, the ALJ proceeds to step five. 

At step five the Commissioner must determine ifthe claimant is capable of performing work 

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existing in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v); 404. 1520(f); Yuckert, 482 U.S. 

at 142; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). If the claimant cannot perform such 

work, she is disabled. Id. 

The initial burden of establishing disability rests upon the claimant. Tackett, 180 F.3d at 

1098. If the process reaches the fifth step, the burden shifts to the Commissioner to show that "the 

claimant can perform some other work that exists in the national economy, taking into consideration 

the claimant's residual functional capacity, age, education, and work experience." Id. at 1100. If the 

Commissioner meets this burden the claimant is not disabled. 20 C.F .R. § § 404.1520(g); 404.1566. 

THE ALJ'S FINDINGS 

The ALJ found Chambers had the following severe impairments: degenerative disc disease 

of the cervical spine; obesity; mood disorder not otherwise specified ("NOS"); anxiety disorder 

NOS; borderline personality disorder; and history of alcohol dependence. Tr. 14. However, the ALJ 

found that none of the severe impairments, singly or in combination, met a listing under the Act. Tr. 

15-16. The ALJ concluded that Chambers retained the following RFC: 

light work ... except she could frequently balance, stoop, kneel, 

crouch, crawl, and climb ramps or stairs, but could never climb 

ladders, ropes, or scaffolds; she could occasionally reach overhead 

with her bilateral upper extremities; she would have no to mild 

limitations in her ability to maintain attention and concentration for 

extended periods; she would have mild limitations in her ability to 

carry out detailed instructions, complete a normal workday and 

workweek without interruptions from psychologically-based 

symptoms, perform at a consistent pace without an unreasonable 

number and length of rest periods, and respond appropriately to 

changes in the work setting; and she would have mild to moderate 

limitations in her ability to work in coordination with others without 

being distracted by them, to interact appropriately with the general 

public, to accept instructions and respond appropriately to criticism 

from supervisors, to get along with co-workers or peers without 

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distracting them or exhibiting behavioral extremes, to maintain 

socially appropriate behavior, and to set realistic goals or make plans 

independently of others. 

Tr. 18-19. At step three, the ALJ found Chambers was capable of performing her past relevant work 

as a "soft counter supervisor and retail associate." Tr. 24. The ALJ therefore determined Chambers 

was not disabled under the Act. Tr. 25. 

STANDARD OF REVIEW 

The reviewing court must affirm the Commissioner's decision ifthe Commissioner applied 

proper legal standards and the findings are supported by substantial evidence in the record. 42 

U.S.C. § 405(g); Batson v. Comm 'r for 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 of the Soc. Sec. Admin, 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shala/a, 

53 F.3d 1035, 1039 (9th Cir. 1995)). It is "such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion." Id. 

This Court must weigh the evidence that supports and detracts from the ALJ's conclusion. 

Lingenfelterv. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citingReddickv. Chafer, 157 F.3d 715, 

720 (9th Cir. 1998)). The Court may not substitute its judgment for that of the Commissioner. Id. 

(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)), see also Edlund v. 

Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are 

insignificant if the Commissioner's interpretation is a rational reading. Id., see also Batson, 3 59 F .3 d 

at 1193. However, this Court may not rely upon reasoning the ALJ did not assert in affirming the 

ALJ's findings. Bray, 554 F.3d at 1225-26 (citingSECv. Chenery Corp., 332 U.S. 194, 196 (1947)). 

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DISCUSSION 

Chambers asserts the ALJ erred for the following reasons: (1) failing to provide legally 

sufficient rationales for discounting her testimony; (2) improperly rejecting the opinions of a treating 

mental health provider and her supervising physicians; (3) inappropriately making medical findings 

and substituting his own opinion for that of treating medical sources; ( 4) failing to consider the 

combined effect of Chambers' severe and non-severe impairments; and (5) erroneously discrediting 

lay witness testimony. Pl.'s Br. 5-6. 

I. Plaintiff's Credibility 

Chambers argues the ALJ failed to apply the correct legal standards in evaluating her 

testimony regarding the symptoms and functional effects caused by her mental impairments. Pl.' s 

Br. 27. The Ninth Circuit relies on a two-step process for evaluating the credibility of a claimant's 

testimony about the severity and limiting effect of the claimant's symptoms. Vasquez v. Astrue, 572 

F.3d 586, 591 (9th Cir. 2009) (citation omitted). First, the ALJ must determine whether the claimant 

"has presented objective medical evidence of an underlying impairment which could reasonably be 

expected to produce the pain or other symptoms alleged." Lingenfelter, 503 F.3d at 1036 (citation 

and quotation marks omitted). Second, absent evidence of malingering, "the ALJ can reject the 

claimant's testimony about the severity of her symptoms only by offering specific, clear and 

convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Further, 

an ALJ "may consider ... ordinary techniques of credibility evaluation, such as the claimant's 

reputation for lying, prior inconsistent statements concerning the symptoms, ... [or] other testimony 

that appears less than candid .... " Id. at 1284. However, a negative credibility finding made solely 

because the claimant's symptom testimony "is not substantiated affirmatively by objective medical 

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evidence" is legally insufficient. Robbins, 466 F.3d at 882. Nonetheless, the ALJ' s credibility finding 

may be upheld even if not all of the ALJ's rationales for rejecting claimant testimony are upheld. See 

Batson, 359 F.3d at 1197. 

Chambers first argues the ALJ failed to evaluate her symptom testimony because the 

credibility determination was premised solely on a lack of evidentiary support for her subjective 

complaints. Pl.'s Br. 27 (citing Light v. Soc. Sec. Admin., 119, F.3d 789, 792 (9th Cir. 1997); 

Robbins, 466 F.3d at 883). Chambers' argument is unavailing because the ALJ provided additional 

valid rationales for discounting her credibility. See Bray, 554 F.3d 1219, 1227 (9th Cir. 2008) (citing 

Batson, 359 F.3d at 1197). The court further notes that to the extent Chambers did not raise specific 

credibility evaluation issues in her opening brief, those arguments are waived. See Indep. Towers of 

Wash. V Wash., 350 F.3d 925, 929 (th Cir. 2003) (the court cannot manufacture arguments for an 

appellant and therefore will review only issues which are argued specifically and distinctly in a 

party's opening brief) (citations and internal quotations omitted); see also Carmickle v. Comm 'r, Soc. 

Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). Accordingly, insofar as the ALJ provided 

valid rationales in addition to lack of objective medical support for Chambers' subjective symptoms, 

her argument is unavailing; further, the court will review only the validity of the credibility rationales 

raised by Chambers in her opening brief. 

Chambers specifically raises whether the ALJ correctly assessed her credibility based on the 

conclusions of agency physician Dorothy Anderson, Ph.D., who indicated Chambers was capable 

of performing simple tasks with normal supervision. Tr. 22, 87. Chambers asserts the ALJ erred by 

relying on Dr. Anderson's opinions, and the doctor reviewed only medical evidence through August 

2011. Pl.'s Br. 28. The ALJ indicated he accorded "some weight" to Dr. Anderson's opinion, "as she 

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reviewed much of the medical evidence, but ... later opinions better summarize the claimant's 

limitations." Tr. 22. Thus, contrary to Chambers' contention, the ALJ accounted for the fact that Dr. 

Anderson reviewed only a portion of the ultimate medical evidence. Further, it is unclear whether 

the ALJ used Dr. Anderson's opinion at all in assessing Chambers' credibility. As such, Chambers' 

argument is inapposite. 1 

Chambers next argues the ALJ erred by indicating he "reviewed all the evidence and finds 

that the claimant's allegations of mental limitation lack credibility to the extent they are inconsistent 

with the residual functional capacity set forth above." Pl.'s Br. 28; tr. 23. In support, Chambers cites 

Treichler v. Comm 'r of Soc. Sec. Admin., 775 F.3d 1090, 1102-03 (9th Cir. 2014) forthe proposition 

that an ALJ may not reject a claimant's testimony "simply" because it is inconsistent with the ALJ's 

RFC assessment. Pl.' s Br. 28. Plaintiffs argument misses the mark, however, as Treichler does not 

hold that it is erroneous per se for an ALJ to employ boilerplate language such as "the allegations 

lack credibility to the extentthey are inconsistent with the RFC." Rather, Treichler held the language 

at issue alone is insufficient to meet the specificity requirement for rejecting symptom testimony, 

as the boilerplate language is characteristically followed by the specific findings made by the ALJ. 

Treichler, 775 F .3d at 1102-03. As discussed above, the ALJ included the boilerplate, but unlike the 

1 Chambers also argues "the ALJ erred in his reliance on the medical records cited in his 

recitation on pages 10 and 11 of his Decision ... apparently intended to support his assertion 'the 

objective medical evidence does not fully support the level oflimitation claimed."' Pl.' s Br. 28. 

Of the numerous medical opinions and providers mentioned by the ALJ on pages 10 and 11, 

Chambers takes issue only with the discussion of Dr. Anderson's findings. Id., see tr. 21-22. To 

the extent Chambers contends other medical opinions expressed the relevant pages negatively 

impacted her credibility, the argument is completely lacking in specificity, and is, therefore, 

waived. Indep. Towers of Wash., 350 F.3d at 929. 

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situation in Treichler, he also set forth specific reasons for impugning Chambers' credibility. Tr. 20-

23. As such, Chambers' argument lacks merit. 

The Commissioner, in addition to arguing Chambers waived credibility arguments absent in 

her opening brief, included a summary of the credibility rationales Chambers did not challenge. 

Def.'s Br. 8-12. Chambers, in her Reply Brief, proceeds to present arguments in opposition to the 

Commissioner's version of the ALJ' s credibility findings, arguing issues Chambers failed to present 

in her Opening Brief. See generally Pl.' s Reply 1-11. As explained above, the court finds the 

Commissioner successfully argued that issues not raised by Chambers in her opening brief were 

waived pursuant to Independent Towers of Wash. However, it behooved the Commissioner to lend 

additional support forthe ALJ' s credibility finding by providing an alternative argument, in the event 

the court disagreed with the primary waiver argument. Therefore, as the court finds the 

Commissioner's additional summary of the credibility findings are unnecessary for the purpose of 

this review, Chambers' arguments in response to the unchallenged credibility rationales are 

inapposite. See Katie A., ex rel. Ludin v. Los Angeles Cnty., 481F.3d1150, 1162 (9th Cir. 2007) (an 

appellate court will not ordinarily consider matters on appeal that are not specifically and distinctly 

argued in appellant's opening brief, even if such matters are raised in appellant's reply brief) (citing 

Indep. Towers of Wash., 350 F .3d at 929). As such, the court declines to submit the Commissioner's 

alternative arguments to review. 

Finally, Chambers argues the ALJ's credibility finding is erroneous because it does not 

include medical evidence submitted after the hearing which became part of the record when it was 

accepted by the Appeals Council. Pl.' s Br. 29. The evidence at issue includes a letter and a "mental 

impairment questionnaire" signed by Paige Buell, Psychiatric Mental Health Nurse Practitioner 

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("PMHNP"), and Henry Elder, M.D., whom Chambers identifies as supervisor the of Chambers' 

various mental health providers. PL' s Br. 20-21; tr. 861-68. As a threshold matter, the court agrees 

that pursuant to Brewes v. Comm 'r of Soc. Sec. Admin., 682 F.3d 1157 (9th Cir. 2012), the postdecision evidence is part of the administrative record and therefore subject to review. See id. at 1164. 

Chambers asserts the responses to the impairment questionnaire "substantiated and corroborated the 

severity of [Chambers'] symptoms and their functional effects, as relates to her capacity to persist 

in full-time employment." Pl.'s Br. 29. Chambers' argument lacks specificity, however, as it fails 

to identify which of the ALJ' s credibility findings the "new" evidence impugns. See id. Chambers 

further asserts that the opinions expressed in the questionnaire "provide a far better gauge than the 

opinions of non-examining and non-treating physicians[,]" but the argument concerns the weighing 

of medical opinions rather than the evaluation of Chambers' credibility, and will be addressed in the 

next section of this Opinion. Id. 

Despite its lack of specificity, Chambers' argument may be generally read as supporting the 

proposition that the new evidence casts doubt upon the ALJ' s conclusion that Chambers' symptom 

complaints were not substantiated by the medical record. However, assuming Chambers' assertion 

is valid, the ALJ nonetheless provided additional rationales for his adverse credibility finding. For 

example, the ALJ noted plaintiffs allegations about the limitations caused by her mental 

impairments were contradicted by her own reports that her bipolar disorder was well-managed; she 

provided inconsistent testimony about her alcohol use, and indicated that she stopped working due 

to stress and conflict with her supervisor, although the evidence showed she was not completely 

disabled by stress and anxiety as she had maintained work before, and had planned to apply for work 

in the summer of 2011. Tr. 19, 21, 22, 23. All of these are generally valid categories for an ALJ to 

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discredit a claimant's credibility, and Chambers does not contest the findings in her Opening brief. 

Insofar as the ALJ provided other permissible rationales for discrediting Chambers' symptom 

allegations, the overall credibility determination may be upheld. Batson, 359 F.3d at 1197. On this 

record, even assuming the new evidence negates one of the rationales provided by the ALJ, the other 

rationales direct the court to uphold the ALJ' s ultimate credibility finding. 

II. Medical Opinion Evidence 

Chambers argues the ALJ improperly evaluated the medical opinion evidence on several 

fronts. The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony. 

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must give clear and convincing 

reasons for rejecting the uncontradicted medical opinion of a treating or examining physician, or 

specific and legitimate reasons for rejecting contradicted opinions, so long as they are supported by 

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

or examining physicians are owed deference and will often by entitled to the greatest, if not 

controlling, weight. Orn v. Astrue, 495 F .3d 625, 633 (9th Cir. 2007) (citation and internal quotation 

omitted). An ALJ can satisfy the substantial evidence requirement by setting out a detailed summary 

of the facts and conflicting evidence, stating his interpretation, and making findings. Morgan v. 

Comm 'r Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999). However, "the ALJ must do more 

than offer his conclusions. He must set forth his own interpretations and explain why they, rather 

than the doctors', are correct." Reddick, 157 F.3d at 725 (citation omitted). On this record, the 

treating and examining providers' opinions Chambers wishes to credit were contradicted by other 

treating and examining providers, as well as the state medical examiners. Tr. 20-21. Accordingly, 

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the applicable legal standard for evaluating the ALJ's rationales is specific-and-legitimate. See 

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 

Chambers first assignment of error is the ALJ' s evaluation of the opinion of treating provider 

Trace Wonser, Qualified Medical Health Provider ("QMHP"). Ms. Wonser treated Chambers at 

Klamath County Mental Health ("KCMH") in 2012 and 2013, and completed a psychological 

questionnaire in January 2013 which covered a variety of functional areas. Tr. 668-73. Ms. Wonser' s 

report includes diagnoses of bipolar II, borderline personality disorder, and post-traumatic stress 

disorder ("PTSD"). Tr. 668. The report further indicates severe restrictions resulting from mental 

impairments in numerous work-related categories, such that she would likely be precluded from any 

substantial gainful activity. Tr. 669-73.2 The ALJ found Ms. Wonser's conclusions were not 

supported by the record, noting that Chambers reported feeling '"great' psychosocially" just one 

month after Ms. Wonser's evaluation, and she "had no recent urges to harm herself." Tr. 23. The 

ALJ concluded Chambers "continued to report depressive and anxiety symptoms ... but nothing that 

would limit her to the extent outlined by Ms. Wonser." Id Thus, the ALJ accorded Ms. Wonser's 

January 2013 report "no weight." Id 

Chambers contends the ALJ' s assessment of Ms. Wonser' s report did not comply with the 

requirements of Social Security Ruling ("SSR") 06-03p. The ruling explains that medical providers' 

opinions are organized on a hierarchy, with licensed physicians such as doctors and psychologists 

- "acceptable medical sources" - at the top, and "other sources," such as nurse practitioners and 

licensed clinical social workers, below. SSR 06-03p, available at 2006 WL 2329939, *l-2. The 

2 Chambers further asserts Ms. Wonser' s conclusions, if credited, would exceed the 

minimum requirements for meeting up to three mental impairment listings: 20 C.F.R. Part 404 

Subpt. P, App. 1, §§ 12.04, 12.06 and/or 12.08. Pl.'s Br. 19-20. 

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difference between the two categories of provider is substantial: only acceptable medical sources can 

establish the existence of an impairment, provide medical opinions, and may be considered "treating 

sources" entitled to controlling weight. Id. at *2. Alternatively, "other sources" may provide 

evidence illustrating the severity of an impairment "and how it affects the individual's ability to 

function." Id. The ruling further explains, 

With the growth of managed health care in recent years and the 

emphasis on containing medical costs, medical sources who are not 

"acceptable medical sources" ... have increasingly assumed a greater 

percentage of the treatment and evaluation functions previously 

handled primarily by physicians and psychologists. Opinions from 

these medical sources, who are not technically deemed "acceptable 

medical sources" under our rules, are important and should be 

evaluated on key issues such as impairment severity and functional 

effects .... 

Id. at *3. Importantly, the ruling establishes that, "depending on the facts of the case, and after 

applying the factors for weighing opinion evidence, an opinion from a medical source who is not an 

'acceptable medical source' may outweigh the opinion of an 'acceptable medical source,' including 

the opinion of a treating source."3 Id. at *5. Chambers asserts that by according Ms. Wonser's 

opinions no weight, the ALJ necessarily failed to comply with SSR 06-03p. Pl.'s Br. 22-23. 

However, SSR 06-03p does not preclude an ALJ from according no weight to a treating source 

opinion, even if that source has a significant treating history. Rather, the ruling requires the ALJ to 

consider other medical sources, and that an ALJ may accord an "other source" more weight than an 

3 SSR 06-03p identifies the following factors in weighing the opinions of "other sources": 

(1) length and frequency of treatment by source; (2) consistency with other evidence; (3) degree 

of evidentiary support for opinion; (4) how well the source's opinion is explained; (5) whether 

the source's expertise is related to a claimant's impairment; and (6) any other factors that tend to 

support or refute the opinion. Id. at *5-6. 

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"acceptable medical source," depending on the particular circumstances. SSR 06-03p at *3-5. As 

such, an ALJ does not err per se by according a source no weight. See, e.g., Ball v. Colvin, 607 

Fed.Appx. 709 (9th Cir. 2015) (ALJ did not err by according no weight to inconsistent opinions of 

treating chiropractor). 

Chambers further argues the evidence submitted post-decision invalidates the ALJ's 

assessment of Ms. Wonser's opinions. In the letter admitted to the record, PMHNP Buell indicated 

she reviewed Chambers' records, including the January 2013 evaluation authored by Ms. Wonser, 

and was in complete agreement with the evaluation's conclusions. Tr. 861-62. In addition, Ms. Buell 

and Henry Elder, M.D. completed a "mental impairment questionnaire" in July 2013. Tr. 863-68. 

Ms. Buell and Dr. Elder provided virtually identical responses to those provided in Ms. Wonser's 

earlier assessment, with only slight variations. Compare tr. 668-673 to tr. 863-68. In short, Ms. Buell 

and Dr. Elder indicated Chambers is severely limited in a number of mental abilities and aptitudes 

required for unskilled work (tr. 865); has some marked and extreme functional limitations (tr. 867); 

and would be expected to miss more than four workdays per month (tr. 868). Thus, Chambers asserts 

the second evaluation form substantiates and corroborates the first evaluation form, and that both 

forms should be evaluated as if they were the opinions of an "acceptable medical source" because 

they were endorsed by Dr. Elder. 4 Pl.'s Br. 24. 

The ALJ accorded Ms. Wonser's evaluation "zero weight" because its "conclusions are not 

supported by the remaining evidence or any other accepted medical opinion." Tr. 23. To discredit 

"other" medical source opinions, an ALJ must identify "reasons germane to each witness." Molina 

4 Because both the January and July assessments are virtually identical, the court does not 

differentiate its evaluation of the assessments' contents. 

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v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citations omitted). The ALJ explained that Ms. 

Wonser' s conclusions were "not supported by the remaining evidence or any other accepted medical 

opinion," and although the rationale is somewhat vague, it is nonetheless sufficient to meet the 

"germane" threshold. Indeed, at least at the time the ALJ drafted the decision, his statement 

regarding the other accepted medical opinions was accurate, and insofar as the ALJ opined the 

conclusions were not supported by the remaining evidence - specifically Chambers' 

contemporaneous report of feeling "great" psycho-socially- his interpretation was not irrational5

, 

and was therefore valid. Carmickle, 533 F.3d at 1164. 

However, the ALJ did not have the opportunity to review the medical opinion evidence 

submitted post-decision. See tr. 861-68. As noted supra, the letter signed by Ms. Buell and the 

mental impairment questionnaire signed by Ms. Buell and Dr. Elder, are properly before this court 

pursuant to Brewes, 682 F.3d at 1159-60. Accordingly, the court is now tasked with considering 

whether the ALJ' s decision remains supported by substantial evidence and based on the proper legal 

standards and considering the record as a whole. Lingenfelter, 504 F.3d at 1035. Accordingly, in 

situations where medical evidence is submitted after the administrative hearing and incorporated into 

the record pursuant to Brewes, the court must specifically review the ALJ's stated reasons for 

discrediting testimonial or medical evidence to ensure those reasons continue to pass muster under 

the relevant legal threshold, despite the new evidence. In the instant case, the ALJ provided a 

germane reason to discredit the "other source" opinion of Ms.Wonser: her opinion was "not 

supported by the remaining evidence or any other medical source opinion." Tr. 23. However, with 

the introduction of Dr. Elder' s opinion, the ALJ' s reasoning is no longer valid because Ms. Wonser' s 

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opinion is now supported by other evidence, which happens to be endorsed by an "acceptable 

medical source." As such, the ALJ's rationale is not germane to her when considering the record as 

a whole. Therefore, the ALJ' s reasoning does not meet the required legal threshold. Further, because 

the ALJ accorded Ms. Wonser' s opinion no weight, the error was not harmless, as the opinions 

expressed therein could potentially affect the ultimate disability decision. 

The Commissioner argues the new opinion evidence does not change the outcome of this 

case for several reasons. First, the Commissioner cites Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 

1989) for the proposition that a medical opinion "solicited after an individual is found not disabled 

is not persuasive, particularly when it is inconsistent with earlier statements." Def.'s Br. 15-16. In 

Weetman, the court found the post-decision evidence unpersuasive because the doctor's opinion the 

claimant was "totally disabled" was inconsistent with his own chart notes. Weetman, 877 F .2d at 23. 

Here, however, the Commissioner does not identify any such internal inconsistency. See Def.'s Br. 

15-16. Thus, the argument fails. Further, to the extent the Commissioner contends evidence 

submitted post-decision is generally not persuasive, the contention is obviated by Brewes, which not 

only reversed the ALJ's decision based on post-decision opinion evidence, but was so persuaded it 

remanded the case for immediate payment of benefits. See Brewes, 682 F.3d at 1164-65. 

The Commissioner next argues, "the new evidence appears to reiterate the conclusions of Ms. 

Wonser based on the opinion of a nonexamining physician." Def.'s Br. 16. Review of the record 

reveals that Ms. Bruell treated Chambers at least once, on April 3, 2013. Tr. 787-91; 863. However, 

as a PMHNP, Ms. Buell is not an "acceptable medical source" under the Act. Nonetheless, as 

discussed above, her opinion as a treating provider is potentially probative. See SSR 06-03p. Thus, 

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the Commissioner's assertions that Ms. Bruell's opinion is merely a reiteration, or based on the 

opinion of a non-examining physician, are unpersuasive. 

However, the Commissioner's contention that Dr. Elder is at most an examining medical 

provider is well-taken. The court is unable to locate any reference to Dr. Elder aside from the new 

evidence, nor is there any indication the doctor ever treated or examined Chambers. Additionally, 

unlike the cases which Chambers cites in support of her argument, there is no affirmative evidence 

that Dr. Elder was directly supervising Ms. Buell or Ms. Wonser, or managing her treatment in any 

way. Pl. 's Br. 23; see Benton ex rel. Benton v. Barnhart, 331F.3d1030, 1039 (9th Cir. 2003) (doctor 

accorded "treating" status based on one-time examination, close supervisory relationship with mental 

health providers, and management of medications); Taylor v. Comm 'r of Soc. Sec. Adm in., 659 F.3d 

1228, 1234 (9th Cir. 2011) ("acceptable medical source" weight imputed to nurse practitioner who 

"work[ed] closely with, and under the supervision of' doctor); Gomez v. Chafer, 74 F.3d 967, 971 

(9th Cir. 1996) (nurse practitioner's opinion considered that of doctor based on evidence of 

"numerous" consultations and "close[] supervision"). Moreover, recent Ninth Circuit cases have 

questioned thecontinuingprecedential valueofGomezfollowingchangesto 20 C.F.R. § 416.913(6). 

See Molina, 674 F.3d at 1111 n.3; see also Jerome v. Colvin, available at 2015 WL 2450876, *4 

(W.D.Wash. May21, 2015) (unpublishedopinion);Millerv. Colvin, available at2015 WL 6455097 

at *4 (W.D.Wash. Oct. 26, 2015) (unpublished opinion). 

Nevertheless, even if Chambers has not shown that Dr. Elder was sufficiently involved with 

Chambers' treatment for his opinion to warrant "treating source" weight, substantial evidence 

indicates Dr. Elder at least reviewed and endorsed with the responses in the July 2013 impairment 

questionnaire. Accordingly, the new evidence represents at least a non-examining physician's 

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opinion from an "acceptable medical source" that Chambers' mental impairments result in "extreme" 

functional limitations in social functioning and concentration, persistence, or pace; and that on 

average, Chambers would likely miss more than four word days per month. Tr. 867-68. Such 

limitations, if accorded full weight, would almost certainly compel a finding that Chambers is 

disabled under the Act, either under Listings 12.04 (Affective Disorder), 12.06 (Anxiety Related 

Disorders), and/or 12.08 (Personality Disorders); or pursuant to testimony from a VE regarding her 

inability to perform substantial gainful activity in the national economy, including her past relevant 

work. See 20 C.F.R. Part 404, Subpt. P, App. 1; Treichler, 775 F.3d at 1096 (no work would be 

available for a person who would miss more than two days of work per month)6

. 

The Commissioner argues that notwithstanding Dr. Elder's opinion, the ALJ's decision 

should not be disturbed because "there is more than a scintilla of evidence to support the 

interpretations of the medical evidence the ALJ provides, and that interpretation is based on the 

correct legal standards[.]" Def.'s Br. 16. However, as explained above, the court is tasked with 

reviewing the entire record not only for substantial evidence, but also for compliance with the proper 

legal standards. 42 U.S.C. § 405(g); Batson, 359 F.3d at 1193. In light of the new evidence, the 

ALJ's outright rejection of Chambers' treating physician does not comply with the relevant legal 

standards, as the rationale is not germane. Further, the new evidence creates unresolved issues of fact 

regarding the severity and functional effects of Chambers' mental impairments. Therefore, the 

Commissioner's contention that "the new evidence does not change the fact that substantial evidence 

supports the ALJ's decision" is unavailing. See Def.'s Br. 16. 

6 Nevertheless, a reviewing physician's opinion is generally accorded less weight than 

that of a treating or examining physician. Ghanim v. Colvin, 762 F.3d 1154, 1160 (9th Cir. 2014) 

(citation omitted). 

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III. Remand for Further Proceedings 

Chambers also alleges the ALJ' s step three finding that she did not meet a listing under 

20 C.F.R. Part 404 Subpt. P, App. 1 § 12.00 were erroneous, and that the ALJ did not provide 

germane reasons to discount the testimony of the lay witness. However, because the court has 

determined this case requires remand based on the post-decision evidence, the court declines to 

address the remaining issues, as further development of the medical record may affect the 

analyses. 

Chambers contends this case should be remanded for immediate payment of benefits. In 

order to remand a case for benefits, three requirements must be met: first, the ALJ has provided 

legally insufficient reasons to reject evidence, be it claimant testimony or medical opinion; next, 

the record has been fully developed and further proceedings would not serve any useful purpose; 

and finally, if the improperly discredited evidence were credited as true, the ALJ would be 

obligated to find Plaintiff disabled on remand. Treichler, 775 F.3d at 1105-06. However, even 

where all three requisites are met, but "the record as a whole creates serious doubt as to whether 

the claimant is, in fact, disabled," further proceedings are appropriate. Garrison, 759 F.3d at 

1021. 

Here, the court concludes that even assuming all of the three requisites were met, doubt 

remains as to whether Chambers is disabled under the Act. See Burrell v. Colvin, 775 F.3d 1133, 

1141 (9th Cir. 2014). "Where there is conflicting evidence, and not all essential factual issues 

have been resolved, a remand for an award of benefits is inappropriate." Treichler, 775 F.3d at 

1101. With the introduction of Dr. Elder' s opinion, the medical opinion evidence is starkly 

divided on the limiting effects of Chambers' mental impairments. For example, although Dr. 

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Elder reported extreme limitation in concentration and attentions, Dr. Moore reported only mild 

limitations. Similarly, while Dr. Elder noted extreme limitation in social functioning, Dr. Moore 

indicated only mild or moderate limitation. Depending on the weight accorded to the opinions of 

Dr. Elder and/or Ms. Wonser, Chambers could be found either to meet one of the relevant 

listings, or otherwise disabled based on absenteeism and/or other functional limitations. 

Alternatively, should an ALJ, applying the proper legal standards, accord Dr. Elder's opinion 

little weight, an adverse disability finding may be appropriate. In either case, it is clear to the 

court that the new evidence warrants a remand for consideration by an ALJ, as the ALJ, rather 

than this court, is the appropriate arbiter of factual conflicts and ambiguities in the medical 

evidence. Id. at 1098. Therefore, the ALJ's decision must be reversed and this case remanded on 

an open record for further proceedings. Burrell, 775 F.3d at 1142. 

CONCLUSION 

Because the Commissioner's final decision is not supported by substantial evidence and free 

from harmful legal error, the decision is be REVERSED and REMANDED for further proceedings 

consistent with this Opinion and Order. 

Mark D. Clarke 

United States Magistrate Judge 

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