IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KATHLEEN J. PETERSON 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

DREW L. JOHNSON 

1700 Valley River Drive 

Eugene, OR 97405 

Attorney for Plaintiff 

JANICE E. HEBERT 

Assistant United States Attorney 

District of Oregon 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204-2902 

SARAH L. MARTIN 

Social Security Administration 

Office of the General Counsel 

701 Fifth Ave., Suite 2900, M/S 22la 

Seattle., WA 98104 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 6:14-cv-01024-MA 

OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 1 of 21
MARSH, Judge 

Plaintiff Kathleen J. Peterson seeks judicial review of the 

final decision of the Commissioner of Social Security that 

partially denied her applications for. Disabled Widow's Benefits 

(OWE) under Title II of the Social Security Act, 42 U.S.C. §§ 401-

403, and Supplemental Security Income (SSI) disability benefits 

under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-

1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) 

and 1383 (c) (3). For the reasons that follow, I reverse and remand 

that portion of the Commissioner's decision denying benefits from 

March 24, 2008 through September 24, 2012, for an immediate 

calculation and award of benefits. 

PROCEDURAL AND FACTUAL BACKGROUND 

Plaintiff protectively filed applications for DWB and SSI on 

March 17, 2010, alleging disability beginning March 24, 2008 1 , due 

to post-traumatic stress disorder, panic attacks, depression, 

intestinal problems, fibromyalgia, arthritis in her back, and arch 

problems creating leg pain. Plaintiff's claims were denied 

initially and upon reconsideration. Plaintiff filed a request for 

a hearing before an administrative law judge (ALJ). An ALJ held a 

hearing on August 23, 2012, at which plaintiff appeared with her 

attorney and testified. A vocational expert, Mark Mann, also 

1

Plaintiff amended her alleged onset date at the August 23, 

2012 hearing. 

2 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 2 of 21
appeared at the hearing and testified. On October 15, 2012, the 

ALJ issued a partially favorable decision finding plaintiff 

disabled as of September 24, 2012, but not before that date. The 

Appeals Council denied plaintiff's request for review, and 

therefore, the ALJ' s decision became the final decision of the 

Commissioner for purposes of review. 

Plaintiff was born on March 24, 1958, and was 50 years old on 

her amended alleged onset of disability date, and 54 years old on 

the date of the ALJ's adverse decision. Plaintiff has completed 

her GED and previously worked as a custodian in 1997. Plaintiff 

has a very limited work history and has no earnings since 1997. 

Tr. 193. 

THE ALJ'S DISABILITY ANALYSIS 

The Commissioner has established a five-step sequential 

process for determining whether a person is disabled. Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520; 416.920. 

Each step is potentially disposi ti ve. The claimant bears the 

burden of proof at steps one through four. See Valentine v. 

Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); 

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step 

five, the burden shifts to the Commissioner to show that the 

claimant can do other work which exists in the national economy. 

Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). 

3 - OPINION AND ORDER 

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The ALJ concluded that plaintiff is the unmarried widow of a 

deceased insured worker and has attained the age of 50, and that 

plaintiff meets the non-disability requirements for disabled 

widow's benefits. Plaintiff must establish that her disability 

began on or before October 31, 2012 in order to be entitled to DWB. 

At step one, the ALJ found that plaintiff has not engaged in 

substantial gainful activity since her alleged onset of disability. 

At step two, the ALJ found that plaintiff had the following severe 

impairments: post-traumatic stress disorder ( PTSD) with panic 

attacks, chronic pain secondary to degenerative disc disease of the 

thoracic spine, scoliosis, degenerative joint disease of the 

bilateral shoulders, restless leg syndrome, abdominal pain, 

hyperlipidemia, substance abuse, and depression. At step three, 

the ALJ found that plaintiff's impairments, or combination of 

impairments, did not meet or medically equal a listed impairment. 

The ALJ assessed plaintiff with a residual functional capacity 

(RFC) to perform a range of light work, except that plaintiff can 

perform tasks that involve about six hours of standing/walking, and 

about six hours of sitting in an eight-hour workday (with normal 

breaks); she is capable of frequent, but not continuous, exposure 

to industrial hazards or unprotected heights due to marijuana use, 

she remains able to use commonsense understanding to carry out 

detailed but uninvolved oral or written instructions, or deal with 

problems involving a few concrete variables in or from standardized 

4 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 4 of 21
situations, and she is able to work with things rather than people 

or data. 

At step four, the ALJ found that plaintiff has no past 

relevant work. The ALJ found that prior to plaintiff's disability 

onset date, she was an individual closely approaching advanced age, 

and that applying the age categories non-mechanically, as of 

September 24, 2012, plaintiff's age category changed to an 

individual of advanced age. At Step Five, the ALJ concluded that 

prior to the date plaintiff's age category changed, considering 

plaintiff's age, education, work experience, and residual 

functional capacity, jobs existed in significant numbers in the 

national economy that plaintiff could perform, such as 

cleaner/housekeeper, small parts assembler, and warehouse worker. 

However, beginning the date plaintiff's age category changed, there 

are no jobs that exist in significant numbers in the national 

economy that plaintiff can perform, and therefore, she has been 

under a disability under the Social Security Act from September 24, 

2012, through the date of the decision. 

ISSUES ON REVIEW 

On appeal to this court, plaintiff contends the following 

errors were committed: (1) the ALJ failed to properly evaluate the 

medical evidence of treating physician Shelly Spiller, D. O.; ( 2) 

the ALJ failed to properly evaluate plaintiff's testimony; (3) the 

ALJ failed to incorporate all the limitations identified by 

5 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 5 of 21
examining physician Gale Smolen, M. D.; ( 4) the ALJ failed to 

properly evaluate the lay testimony of plaintiff's daughter-in-law 

Sara Bagg and neighbor Brenda Lee Pope; and (5) the ALJ erred at 

Step Five. Because plaintiff's challenges to the ALJ's evaluation 

of Dr. Spiller's opinions and plaintiff's credibility are 

dispositive, the court declines to address plaintiff's remaining 

arguments as moot. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if 

the Commissioner applied proper legal standards and the findings 

are supported by substantial evidence in the record. 42 u.s.c. § 

405 (g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 

"Substantial evidence is more than a mere scintilla but less than 

a preponderance; it is such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion." Hill, 698 F.3d 

at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. 

The court must weigh all 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, even if the evidence is susceptible to more than 

one rational interpretation. Batson v. Commissioner Soc. Sec. 

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence 

supports the Commissioner's conclusion, the Commissioner must be 

affirmed; "the court may not substitute its judgment for that of 

6 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 6 of 21
the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 

Cir. 2001). 

I. Medical Evidence 

A. Standards 

In general, the opinion of a treating physician is given more 

weight than the opinion of an examining physician, and the opinion 

of an examining physician is afforded more weight than the opinion 

of a nonexamining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 

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

2014); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "If a 

treating physician's opinion is well-supported by medically 

acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in [the] case 

record, [it will be given] controlling weight." Orn, 4 95 F. 3d at 

631 (internal quotations omitted) (alterations in original); 20 

C.F.R. § 416.927(c). To reject the uncontradicted opinion of a 

treating physician, the ALJ must provide "clear and convincing 

reasons that are supported by substantial evidence." Bayliss v. 

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

If the treating physician's opinion is contradicted, the ALJ 

must consider how much weight it is entitled to considering the 

factors in 20 C.F.R. § 416.927(c) (2-6). The factors include the 

length of the treatment relationship, the frequency of examination, 

the nature and supportability of the opinion, and its consistency 

7 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 7 of 21
with other evidence in the record as a whole. 20 C.F.R. § 

416. 927 (d) (2-6); Ghanim, 763 F. 3d at 1161. 

If a treating or examining doctor's opinion is contradicted by 

another doctor's opinion, it may be rejected by specific and 

legitimate reasons. Taylor v. Commissioner Soc. Sec. Admin., 659 

F.3d 1228, 1232 (9th Cir. 2011). "An ALJ errs when he rejects a 

medical opinion or assigns it little weight while doing nothing 

more than ignoring it, asserting without explanation that another 

medical opinion is more persuasive, or criticizing it with 

boilerplate language that fails to offer a substantive basis for 

his conclusion." Garrison, 7 59 F. 3d at 1013. Because Dr. 

Spiller's opinions were contradicted by the agency reviewing 

physicians, the ALJ was required to provide specific and legitimate 

reasons backed by substantial evidence to discount them. See 

Garrison, 759 F.3d at 1012. 

B. Analysis - Dr. Spiller 

Plaintiff contends that the ALJ erred by failing to discuss 

and properly weigh the opinions of her treating physician, Shelly 

Spiller, D.O. Dr. Spiller was plaintiff's treating physician from 

2008 through 2012. Plaintiff argues the ALJ ignored four separate 

opinions indicating that plaintiff is disabled. Plaintiff is 

correct. 

In the decision, the ALJ discussed some of Dr. Spiller' s 

treatment notes from 2008 to 2010. For example, the ALJ noted that 

8 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 8 of 21
Dr. Spiller' s treatment notes reflect that in 2008, plaintiff 

complained of ongoing abdominal pain, beginning three years 

earlier, and that plaintiff's shoulder arthritis and bursitis were 

aggravated by plaintiff's care of her elderly mother. Tr. 299. 

The ALJ observed that Dr. Spiller' s treatment notes showed no 

objective findings to support plaintiff's persistent abdominal 

pain. The ALJ discussed that plaintiff was using medical marijuana 

and prescription opioids, including Dilaudid and Methadone for 

pain. As the ALJ correctly indicated, imaging of plaintiff's spine 

indicated "mild" degenerative changes and scoliosis in her thoracic 

region. Tr. 367. The ALJ also noted that plaintiff was a 

passenger in a motor vehicle accident in April 2010 which increased 

her neck, back and chest pain, and that plaintiff gradually 

improved. Tr. 529. 

Concerning plaintiff's mental health, the ALJ noted that 

plaintiff experienced marked grief when her mother passed away in 

2008, and that despite plaintiff's depressed affect, she interacted 

appropriately and denied suicidal ideation. The ALJ discussed that 

plaintiff's situational stressors, such as financial and housing 

difficulties affected plaintiff through 2008, but that Dr. 

Spiller's treatment notes showed improvement with medication. 

Yet, as plaintiff correctly highlights, the ALJ failed to 

discuss several probative pieces of Dr. Spiller's opinions, 

including: (1) a June 18, 2008 affordable housing authorization in 

9 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 9 of 21
which Dr. Spiller indicated that plaintiff was disabled, and that 

plaintiff "physically & mentally suffers severely and is not able 

to work or hold steady employment;" (2) an April 4, 2010 treatment 

note in which Dr. Spiller indicates support for plaintiff's 

disability application "as she lives in chronic pain that is 

exacerbated by activities of daily living;" (3) a January 26, 2011 

housing form in which Dr. Spiller indicated that plaintiff is 

disabled as defined in the Social Security Act; and (4) a June 26, 

2012 treatment note indicating that plaintiff suffers from 

"arthritic pain, abdominal pain and has anxiety and PTSD" and that 

plaintiff is unable to perform a "regular job," including custodial 

work. Tr. 286, 510, 511, 516. Moreover, the ALJ failed to discuss 

Dr. Spiller's treatment notes from 2011-2012 showing that plaintiff 

continues to suffer from chronic pain and bouts of PTSD and anxiety 

that are not fully controlled with medication. Tr. 416-18. Thus, 

the ALJ's limited discussion of Dr. Spiller's treatment notes is 

not fully supported by substantial evidence. 

The ALJ's silent rejection of the treating physician's opinion 

that plaintiff is disabled clearly is error. See Marsh v. Colvin 

No. 12-17014, F. 3d , 2015 WL 4153858, *2 (9th Cir. July 10, 

2015) (finding ALJ erred by failing to provide any reasons for 

discounting treating physician's opinion and progress notes); 

accord Garrison, 759 F.3d at 1012 ("Where an ALJ does not 

explicitly reject a medical opinion ... he errs."). Additionally, 

10 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 10 of 21
the ALJ's failure to articulate specific and legitimate reasons for 

implicitly discounting Dr. Spiller's opinions in favor of the nonexamining agency physicians' opinions is error. Hill, 698 F.3d at 

1160. 

The Commissioner contends that any error by the ALJ is 

harmless because Dr. Spiller's opinion that plaintiff is disabled 

is an ultimate issue reserved to the Commissioner, and because Dr. 

Spiller's notes fail to describe specific functional limitations 

that the ALJ was required to consider. See, e.g., 20 C.F.R. § 

416. 927 (d) (1) ("A statement by a medical source that you are 

'disabled' or 'unable to work' does not mean that we will determine 

that you are disabled."); Treichler v. Commissioner of Social 

Security Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (noting an 

error may be harmless if it is "inconsequential to the ultimate 

nondisability determination" or if "the agency's path may be 

reasonably discerned, even if the agency explains its decision with 

less than ideal clarity") . I disagree. 

The Commissioner correctly maintains that whether a claimant 

is "disabled" under the Act is a determination reserved to the 

Commissioner. Thus, Dr. Spiller's check-the-box opinion that 

plaintiff satisfies the criteria for disability under the Act is 

beyond the treating physician's expertise. Tr. 511-12. 

However, in this case, Dr. Spiller's opinions contained far 

greater detail that required the ALJ's analysis. Here, Dr. Spiller 

11 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 11 of 21
opined that plaintiff suffered from chronic pain, exacerbated by 

activity, and that her arthritis, anxiety, and PTSD prevented her 

from returning to her past work - an opinion based upon a medical 

assessment of a longstanding patient. Hill, 698 F.3d at 1160; 

Rayford v. Colvin, Case No. 13-cv-05839-JCS, 2015 WL 1534119, *5 

(N. D. Cal. Apr. 1, 2015) (remanding for further proceedings where 

ALJ failed to discuss treating physician opinion) . Therefore, I 

reject the Commissioner's first contention that the ALJ's failure 

to weigh Dr. Spiller's opinions was harmless. 

The Commissioner's second argument similarly fails. As the 

Ninth Circuit has recently made clear, where an ALJ fails to 

articulate his or her reasoning, a reviewing court is unable to 

meaningfully review the Commissioner's rationale without engaging 

in speculation. Marsh, 2015 WL 4153858 at *2; see Brown-Hunter v. 

Colvin, No. 13-15213, F.3d , 2015 WL 4620123, *5-6 (9th Cir. 

Aug. 4, 2015) (concluding that where ALJ committed legal error by 

failing to connect adverse credibility determination with specific 

reasons, error could not be harmless). "Al though the ALJ' s 

analysis need not be extensive, the ALJ must provide some reasoning 

in order for [the court] to meaningfully determine whether the 

ALJ's conclusions were supported by substantial evidence." BrownHunter, 2015 F.3d at *7. 

Here, rather than providing specific reasons for discounting 

Dr. Spiller's opinions in favor of the non-examining agency 

12 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 12 of 21
physicians, the ALJ simply ignored Dr. Spiller's opinions. 

Consequently, I cannot reasonably discern the ALJ's rationale for 

rejecting Dr. Spiller's April 2010 opinion that plaintiff lives in 

chronic pain exacerbated by activity or the June 2012 opinion that 

plaintiff suffers from arthritic pain, abdominal pain, anxiety and 

PTSD that prevents plaintiff from holding down a regular job. Tr. 

516. This court may not speculate about the ALJ's reasons, or 

substitute its own conclusion. Marsh, 2015 WL 4153858, *2 (a 

district court may not find harmless error by "affirm[ing] the 

agency on a ground not invoked by the ALJ") . The court is 

"constrained to review the reasons the ALJ asserts." Connett v. 

Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Accordingly, I 

conclude that the ALJ' s failure to identify any specific and 

legitimate reasons for discounting Dr. Spiller's opinions was not 

harmless. Marsh, 2015 WL 4153858 at *2; see also Camarena v. 

Colvin, No. EDCV 14-1672-MAN, 2015 WL 4512269, *4 (July 24, 

2015) (ALJ erred by failing to discuss treating physician's opinions 

of claimant's functional limitations). 

In short, I conclude the ALJ erred in evaluating and weighing 

Dr. Spiller's opinions, and the ALJ's implicit rejection of the 

treating physician's opinion is not supported by substantial 

evidence; the error is not harmless. 

/Ill 

Ill/ 

13 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 13 of 21
II. Plaintiff's Credibility 

A. Standards 

To determine whether a claimant's testimony regarding 

subjective pain or symptoms is credible, an ALJ must perform two 

stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first 

stage is a threshold test in which the claimant must produce 

objective medical evidence of an underlying impairment that could 

reasonably be expected to produce the symptoms alleged. Molina v. 

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 

533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of the 

credibility analysis, absent affirmative evidence of malingering, 

the ALJ must provide clear and convincing reasons for discrediting 

the claimant's testimony regarding the severity of the symptoms. 

Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 

(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 

Cir. 2007). 

The ALJ must make findings that are sufficiently specific to 

permit the reviewing court to conclude that the ALJ did not 

arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 

763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. 

Factors the ALJ may consider when making such credibility 

determinations include the objective medical evidence, the 

claimant's treatment history, the claimant's daily activities, 

inconsistencies in testimony, effectiveness or adverse side effects 

14 - OPINION AND ORDER 

Case 6:14-cv-01024-MA Document 24 Filed 08/17/15 Page 14 of 21
of any pain medication, and relevant character evidence. Ghanim, 

763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. 

B. Analysis 

At the hearing, plaintiff testified that in 2005, her husband 

died, and that due to depression, she could no longer work. 

Plaintiff testified that she has arthritis in her thoracic back and 

suffers from arthritis, tendoni tis, and bursitis in her left 

shoulder. Plaintiff also has intestinal difficulties with chronic 

pain, but has declined further testing because she suffered a 

violent attack in 1996 in which she was raped rectally. Plaintiff 

testified that she has high cholesterol, high blood pressure, and 

restless leg syndrome for which she takes medication. Plaintiff 

further testified that she takes Dilaudid for pain, in addition to 

medical marijuana. Plaintiff testified that medical marijuana 

helps with her pain and nausea and that she no longer takes 

methadone. 

Plaintiff testified that she periodically babysits her two 

grandchildren. Plaintiff testified that her boyfriend does the 

cooking, and her son and daughter-in-law do the grocery shopping. 

Plaintiff testified that she does not drive. Plaintiff estimated 

she could lift and carry 10 pounds, walk one block, stand for 30 

minutes, and sit for 30 to 45 minutes. Plaintiff testified that 

she has difficulty going up and down stairs and that she is in 

constant pain that she rates at a six or seven on a 10-point scale. 

15 - OPINION AND ORDER 

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Plaintiff testified that she can lift a gallon of milk with her 

right arm, but not her left. Plaintiff testified that she lies 

down with a heating pad on her shoulder for a couple of hours twice 

a day. 

Plaintiff testified that she has PTSD and suffers from panic 

attacks three to five times each week, and that her attacks last 

from one to three hours. Tr. 36-38. Plaintiff is not in counseling 

for her mental health issues, and takes prescription antidepressant and anti-anxiety medication. 

In a July 15, 2010 Adult Function Report, plaintiff reported 

that she suffers severe intestinal pain and needs to rest after 

walking two blocks. Plaintiff reported that following her attack 

in 1996, she suffers from chronic severe depression, PTSD, panic 

attacks, insomnia, and that she had a nine-month memory loss and 

continues to have difficulty remembering things. Tr. 226. 

Plaintiff described that in a typical day, after waking, she makes 

coffee, watches television lying on the sofa, and takes medicine 

for pain and depression. Plaintiff described that later in the 

day, she may perform small household chores, resting in between, 

takes pain pills, makes dinner and again watches television. 

Plaintiff stated that she can make quick, easy meals and is capable 

of all self-care. 

health. Tr. 233. 

Plaintiff also noted that she has poor dental 

16 - OPINION AND ORDER 

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In a Pain and Fatigue Questionnaire, plaintiff reported 

experiencing stabbing, burning, and aching pains in her neck, back, 

legs, and intestines that is ongoing and severe, which is worsened 

with any activity. Tr. 234. Plaintiff also stated that she 

fatigues easily, and that she can only be active for two to three 

hours before needing to rest. Tr. 234. 

The ALJ identified two reasons for discrediting plaintiff: (1) 

plaintiff's allegations of pain and mental impairments are 

inconsistent with the medical evidence; and (2) her physical and 

mental limitations were adequately controlled with medications. 

Based upon my careful review of the record, I conclude that 

the ALJ's reasoning falls far short of clear and convincing. The 

ALJ's primary reason for discounting plaintiff's credibility relies 

upon an erroneous evaluation of the objective medical evidence from 

Dr. Spiller. As discussed above, the ALJ erred in failing to 

adequately discuss Dr. Spiller's opinions that plaintiff suffered 

debilitating physical and mental limitations. 

The ALJ's second reason, that her pain allegations and mental 

health allegations are controlled with medication also rests upon 

an inadequate evaluation of the medical opinion evidence as 

discussed above. Because the ALJ' s evaluation of the medical 

records was not supported by substantial evidence, the ALJ may not 

rely upon this reasoning to discount plaintiff's credibility. See 

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 

17 - OPINION AND ORDER 

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(inconsistency with medical evidence cannot be the sole ground to 

discount credibility). 

Contrary to the Commissioner's argument, the errors in the 

ALJ's credibility determination are not harmless because the ALJ 

did not identify any other bases for the negative credibility 

assessment. See Carmickle, 533 F.3d at 1162-63 & n.4. (even if ALJ 

erred in relying on credibility factor, where remaining credibility 

factors still provide clear and convincing support backed by 

substantial evidence, error is harmless). 

Because I find these errors by the ALJ to be dispositive, I 

decline to address plaintiff's remaining assigned errors. 

III. Remand 

After finding the ALJ erred, this court applies a three part 

test to determine whether the case should be remanded for further 

proceedings, or to calculate and award benefits. Garrison v. 

Colvin, 759 F.3d 995, 1020 (9th Cir. 2014), Vasquez v. Astrue, 572 

F.3d 586, 593 (9th Cir. 2008); Harman v. Apfel, 211 F.3d 1172, 1178 

(9th Cir. 2000). The court should grant an immediate award of 

benefits when these three conditions are met: 

( 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 

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. 

Garrison, 759 F.3d at 1020. 

18 - OPINION AND ORDER 

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Where, after evaluating the record as a whole, there are serious 

doubts that the claimant is, in fact, disabled, the court may 

exercise its discretion and remand the case for further 

administrative proceedings. Id. at 1021; Connett, 340 F.3d at 876. 

Plaintiff argues that when Dr. Spiller's opinion is credited, 

she is entitled to an award of benefits. Plaintiff also maintains 

that when her testimony that she suffers three to five panic 

attacks a week lasting one hour each is credited, combined with VE 

testimony that her panic attacks would preclude competitive 

employment, the record is fully developed and there are no 

outstanding issues that require resolution. I agree. 

All the conditions of the credit-as-true rule are satisfied. 

First, as discussed above, the ALJ committed legal error in failing 

to discuss Dr. Spiller's multiple opinions and failed to identify 

which testimony of plaintiff's was credible and why. 

Second, the record is fully developed. Plaintiff testified at 

the hearing that she was having panic attacks three to five days a 

week. Tr. 36-38. At the hearing, the VE was asked whether an 

indi victual who suffered from unpredictable panic attacks every 

other day lasting for an hour each could maintain full time 

employment, and the VE responded that competitive employment would 

be eliminated. Tr. 55-56. Therefore, the record is fully 

developed and further administrative proceedings are unnecessary. 

19 - OPINION AND ORDER 

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Third, if plaintiff's testimony about her panic attacks is 

credited as true, the ALJ would be required to find plaintiff 

disabled at Step Five. Garrison, 759 F.3d at 1022; Holohan v. 

Massanari, 246 F.3d 1195, 1211 (9th Cir. 2001); see Lingenfelter, 

504 F.3d at 1041 (crediting plaintiff's testimony as true combined 

with VE testimony established disability and remand for immediate 

payment of benefits was proper). 

Lastly, considering the record as a whole and the 

Commissioner's arguments, I have no basis to doubt that when 

plaintiff's testimony is credited, that she is disabled under the 

Act. Indeed, plaintiff's testimony of frequent panic attacks is 

supported by the 2010 psychodiagnostic evaluation of Gale Smolen, 

M.D., whose evaluation the ALJ gave significant weight. In that 

evaluation, Dr. Smolen indicated that plaintiff suffered from 

0

frequent" panic attacks, and that they were not controlled with 

medication. Tr. 393, 395. Dr. Smolen did not quantify the panic 

attacks, but did diagnose plaintiff with PTSD, and Panic Attacks 

with agoraphobia, noting that plaintiff has suffered from 

flashbacks, nightmares and heightened startle ability since 1996. 

Tr. 396. Moreover, Dr. Smolen's opinion is echoed by Dr. Spiller's 

treatment notes, which indicate that plaintiff was prescribed 

Clonazepam for her PTSD with panic attacks, and that she has 

suffered from significant PTSD since her attack in 1996. Tr. 293. 

An April 9, 2012 treatment note from Dr. Spiller reflects that 

20 - OPINION AND ORDER 

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plaintiff reported that she was having panic attacks daily, and 

that she wished to return to counseling because medication was 

ineffective. Tr. 416-18. 

In sum, plaintiff satisfies all three conditions of the credit 

as true rule, and a careful review of the record reveals no basis 

to doubt seriously that plaintiff has been unable to maintain full 

time employment since her alleged amended onset of disability. 

Therefore, the proper remedy is to remand for calculation of 

benefits. Garrison, 759 F.3d at 1022-23. 

CONCLUSION 

For the reasons stated above, the Commissioner's final 

decision partially denying benefits to plaintiff from March 24, 

2008 to September 24, 2012 is REVERSED and this proceeding is 

REMANDED for an immediate calculation and award of benefits from 

March 24, 2008 through September 24, 2008. 

IT IS SO ORDERED. 

DATED this _L'2'_ day of AUGUST, 2015. 

Malcolm F. Marsh 

United States District Judge 

21 - OPINION AND ORDER 

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