UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ROXIE ANN KUHNS, ) 

) 

Plaintiff, ) Case No. 6:15-cv-00430-AC 

) 

v. ) 

) 

CAROLYNW. COLVIN, ) 

Acting Commissioner of Social Security, ) 

) 

Defendant. ) 

ACOSTA, Magistrate Judge: 

OPINION AND ORDER 

Roxie Ann Kuhns ("plaintiff') seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration ("Commissioner") denying her application 

for Supplemental Security Income ("SSI"). Because the Commissioner's decision is not 

supported by substantial evidence, it is REVERSED and REMANDED for further proceedings 

consistent with this opinion. 

Procedural Background 

Plaintiff filed her application for SSI on September 29, 2011, alleging disability as of 

September 28, 2009. (Tr. 12, 146-59.) The Commissioner denied her application initially and 

upon reconsideration, and she requested a hearing before an Administrative Law Judge ("ALJ"). 

Case 6:15-cv-00430-AC Document 19 Filed 02/08/16 Page 1 of 11
(Tr. 85-88, 96-100.) An administrative hearing was held on July 24, 2013. (Tr. 27-59.) After 

the hearing, the ALJ issued an unfavorable decision on August 13, 2013, finding plaintiff not 

disabled. (Tr. 12-21.) The Appeals Council denied plaintiffs subsequent request for review, 

making the ALJ's decision final. (Tr. 1-6.) This appeal followed. 

Factual Background 

Born in January, 1966, plaintiff was 45 years old on her filing date, and 47 years old at 

the time of the hearing. (Tr. 20, 146-59.) She obtained her GED in 2000, and has past relevant 

work experience as a shipping manager in electronics. (Tr. 19, 31-32, 69.) She was laid off 

from her job in 2000. Id. She alleges disability due to lymphoma, fibromyalgia, mass on her left 

lung, limited use of her left hand, asthma, and irritable bowel syndrome. (Tr. 166.) 

Standard of Review 

The 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. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. 

It means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 

NL.R.B., 305 U.S .. 197, 229 (1938)). The court must weigh "both the evidence that suppmis and 

detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th 

Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [a comi] may 

not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 

2007) (citation omitted). 

The initial burden of proof rests upon the claimant to establish disability. Howard v. 

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must 

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demonstrate an "inability to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected ... to last for a continuous 

period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). 

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. § 416.920. First, 

the Commissioner determines whether a claimant is engaged in "substantial gainful activity"; if 

so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). 

At step two, the Commissioner determines whether the claimant has a "medically severe 

impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 

416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. 

At step three, the Commissioner determines whether the impairment meets or equals "one 

of a number of listed impairments that the Secretary acknowledges are so severe as to preclude 

substantial gainful activity." Id.; 20 C.F.R. § 416.920(d). If so, the claimant is conclusively 

presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

At step four, the Commissioner determines whether the claimant still can perform "past 

relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 416.920(e). If the claimant can work, she 

is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. 

Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the claimant can 

perform other work. Id. at 142; 20 C.F.R. § 416.920(e) & (f). If the Commissioner meets this 

burden and proves that the claimant is able to perform other work which exists in the national 

economy, she is not disabled. 20 C.F.R. § 416.966. 

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The ALJ's Findings 

The ALJ performed the sequential analysis. At step one, she found that plaintiff had not 

engaged in substantial gainful activity since her alleged onset date. (Tr. 14.) At step two, the 

ALJ concluded that plaintiff had the following severe impairments: status post right shoulder 

SLP repair; fibromyalgia; chronic left hip pain; left hip bursitis; degenerative disc disease at 14-

5, status post left small finger removal of deep hardware and extensor tenolysis; asthma; major 

depressive disorder; and headaches/migraines. Id At step three, the ALJ determined that 

plaintiff did not have an impairment or combination of impairments that met or medically 

equaled a listed impairment. Id 

The ALJ next assessed plaintiffs residual functional capacity ("RFC") and found that 

plaintiff could perform sedentary work with the following limitations: she can frequently push or 

pull bilaterally; she can engage in occasional foot control operation with her left foot; she can 

occasionally climb ramps or stairs; she can never climb ladders, ropes, or scaffolds; she can 

occasionally balance, stoop, kneel, crouch, or crawl; she can occasionally reach overhead with 

her right upper extremity; she can frequently handle objects with her left hand; she should avoid 

concentrated exposure to extreme cold and extreme heat; she should avoid moderate exposure to 

irritants such as fumes, odors, dusts, gases, and poorly ventilated hazardous machinery, and 

unprotected heights; she can understand and carry out simple instructions; and she would be 

absent from work for less than two times per month as a result of her medical condition. (Tr. 15.) 

At step four, the ALJ found that plaintiff was unable to perfo1m any of her past relevant 

work. (Tr. 19.) At step five, the ALJ dete1mined that plaintiff retained the residual functional 

capacity to perform jobs that exist in significant numbers in the national economy, including 

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document preparer, table worker, and stuffer. (Tr. 20.) The ALJ therefore concluded plaintiff 

was not disabled. (Tr. 21.) 

Discussion 

Plaintiff argues that the ALJ etTed by: (1) rejecting her subjective symptom testimony, 

and (2) improperly rejecting the lay testimony. Plaintiff asserts that these alleged etTors caused 

further enor in the ALJ' s RFC assessment and step five findings. 

I. Plaintiffs Testimony 

Plaintiff first argues that the ALJ erred by rejecting her subjective symptom testimony. 

In Cotton v. Bowen the Ninth Circuit established two requirements for a claimant to present 

credible symptom testimony: the claimant must produce objective medical evidence of an 

impairment or impairments, and she must show the impairment or combination of impairments 

could reasonably be expected to produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 

(9th Cir. 1986). The claimant, however, need not produce objective medical evidence of the 

actual symptoms or their severity. Smolen v. Chafer, 80 F.3d 1273, 1284 (9th Cir. 1996). 

If the claimant satisfies the above test and there is not any affirmative evidence of 

malingering, the ALJ can reject the claimant's testimony only ifhe provides clear and convincing 

reasons for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). General assertions that 

the claimant's testimony is not credible are insufficient. Id. The ALJ must identify "what 

testimony is not credible and what evidence undermines the claimant's complaints." Id. (quoting 

Lester v. Chafer, 81 F.3d 821, 834 (9th Cir. 1995)). 

At the administrative hearing plaintiff testified that she is in pain "all day long" due to 

fibromyalgia. (Tr. 48-49.) She testified that she attempted to work for a friend for a year but 

was let go due to poor attendance. (Tr. 34.-35.) Plaintiff explained that her attendance was poor 

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due to fibromyalgia pain, difficulty breathing, and fatigue, stating that she "can't keep a job" due 

to her symptoms. Id She stated that she did not know whether she would have the energy to 

perform work with a sit-stand option, but testified that she would be "outrageously in pain" if she 

worked a full eight hours at even an easy job. (Tr. 48-49.) In a statement to the Agency on 

December 10, 2011, plaintiff also reported constant pain, dizziness, and shortness of breath every 

day. (Tr. 176.) 

The ALJ determined that plaintiffs testimony regarding the extent of her limitations was 

"not entirely credible." (Tr. 16.) First, she found that plaintiff made inconsistent statements 

about her symptoms and limitations. Inconsistencies within a claimant's statements constitute a 

clear and convincing reason for rejecting her testimony. Thomas v. Barnhart, 278 F.3d 947, 958 

(9th Cir. 2002). The ALJ first noted that although plaintiff testified she stopped working in 2010 

due to fibromyalgia and difficulty breathing, she reported on her application for SSI that she 

stopped working, in part, because her contract ended. (Tr. 16-17, 35, 166.) Plaintiffs physical 

therapist also notes that she stopped working due to pain from right shoulder injury sustained in 

2009. (Tr. 17, 308.) The Court finds no inconsistency here. Plaintiffs application for SSI 

alleges multiple debilitating impairments that are not mutually exclusive; the application also 

states that plaintiff stopped working because her contract ended and because she was "already 

sick." (Tr. 166.) On this record, the reasons plaintiff ceased to work do not provide a clear and 

convincing reason for rejecting her credibility. 

The ALJ also noted that while plaintiff testified that she rarely left her house because the 

sun caused her skin to blister, itch, and burn, plaintiff also reported that she went outside every 

two hours to get "fresh air." (Tr. 180.) Here, plaintiff gave testimony regarding her reaction to 

the sun at a much later date -- July 24, 2013 -- than the date she reported going out every two 

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hours (December 10, 2011). (Tr. 27-59, 180.) This alleged inconsistency therefore provides 

little weight to the ALJ's credibility determination. Thomas, 278 F.3d at 958. In sum, 

inconsistencies within plaintiffs statements do not constitute substantial evidence supporting the 

ALJ's credibility finding. 

The ALJ next found that plaintiff did not comply with treatment recommendations. (Tr. 

17.) The ALJ may rely on unexplained or inadequately explained failure to follow treatment 

recommendations in her credibility determination. Tommasetti v. Astrue, 533 F.3d 1035, 1039 

(9th Cir. 2008). Here, plaintiffs medical providers noted on multiple occasions that she failed to 

comply with recommendations to quit smoking. (Tr. 17, 18, 302, 307, 370.) This Court has 

stated, however, that failure to stop smoking is not a clear and convincing reason for rejecting a 

claimant's testimony when there is evidence that the claimant has a severe nicotine addiction. 

See, e.g., Jones v. Colvin, Case No. 13-890-SI, 2014 WL 3579523, at *6 (D. Or. July 18, 2014). 

In this case, the Court is satisfied that plaintiffs failure to quit smoking is adequately explained 

by evidence of her nicotine addiction. 

The ALJ also asserted that plaintiff failed to establish an exercise routine for combating 

symptoms of fibromyalgia and asthma, despite repeated counseling by her primary care 

physician Fred Weisensee, M.D. (Tr. 18, 275, 302, 307, 370.) The record shows, however, that 

plaintiff performed range of motion exercises, worked with a physical therapist on a weekly 

basis, performed home stretching exercise, and attended exercise classes during the relevant 

period. (See Tr. 306, 308, 316, 342, 346.) The comt therefore finds that plaintiff did not fail to 

follow recommendations to establish an exercise routine; thus, this alleged failure is not a clear 

and convincing to reject plaintiffs credibility. Tommasetti, 533 F.3d at 1039. 

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The ALJ next noted plaintiff admitted to Darci Glass, P A-C that she did not comply with 

her medical provider's instructions to wear an immobilizer following shoulder surgery in July 

2011. (Tr. 17, 306.) On the date this was recorded, however, Ms. Glass also indicated that use 

of an immobilizer was not needed. (Tr. 306.) The Court finds that because plaintiffs 

immobilizer was not needed, plaintiffs failure to wear the immobilizer is adequately explained 

and therefore does not constitute a clear and convincing reason for rejecting her testimony. 

Tommasetti, 533 F.3d at 1039. 

Finally, the ALJ found plaintiffs testimony was not supported by the medical record. 

(Tr. 17.) While this is not, by itself, a clear and convincing reason to reject a claimant's 

testimony, it can provide additional support to the ALJ's credibility determination given other 

legally sufficient reasons for rejecting a claimant's testimony. 20 C.F.R. 416.929; Thomas, 278 

F.3d at 959. Here, while plaintiff testified that she had severe headaches twice per week that 

caused her to vomit, her medical records contain little evidence of headaches. (Tr. 17, 38, 41.) 

While plaintiffs treatment records indicate that she denied having a headache on the date of one 

examination, the court can find no contradiction in the record. Plaintiffs headache condition is 

evident throughout her medical history. (Tr. 271, 331, 437, 445.) 

In sum, the comt finds that the ALJ failed to provide clear and convincing reasons for 

rejecting plaintiffs testimony. Therefore, the ALJ's credibility determination was not suppmted 

by substantial evidence in the record. 

II. Lay Testimony of Ellen Kuhns, Annette Belle, Raymon Kuhns, and Michael Vosgien 

Plaintiff argues that the ALJ erred by rejecting the lay testimony of Ellen Kuhns, Annette 

Belle, Raymond Kuhns, and Michael Vosgien. The ALJ must provide "germane reasons" for 

rejecting the testimony of lay witnesses, and need not "clearly link his determination to those 

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reasons." Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001); see also Molina v. Astrue, 674 

F.3d 1104, 1114 (9th Cir. 2012). 

The lay evidence consists of third-party function reports and letters submitted to the 

Agency. Plaintiffs daughter Ellen Kuhns completed a third-paity function report on December 

11, 2011. (Tr. 185-92.) Ms. Kuhns stated that plaintiff takes two to three hours to start her day, 

and takes a nap as part of her daily routine. (Tr. 185-86.) She indicated that plaintiff alternately 

suffers from insomnia and "sleep[s] for days." (Tr. 186.) Ms. Kuhns wrote that plaintiff needs 

frequent rest, has pain from doing daily activities, and can walk only one block before needing to 

stop and rest for five to fifteen minutes. (Tr. 190.) Plaintiffs son, Raymond Kuhns, submitted a 

letter regai·ding plaintiffs functional limitations stating plaintiff "deals with a lot of pain that 

keeps her from being active." (Tr. 240.) Plaintiffs friend Michael Vosgien also submitted a 

letter in July 2013 stating "I see [plaintiff] in more pain now than ever and struggling to get up in 

the mornings." (Tr. 241.) Annette Bell, plaintiffs sister, stated that plaintiff was unable to work 

due to her condition. (Tr. 238-41.) 

The ALJ's only reason for rejecting the lay testimony was that it "align[ed] with" 

plaintiffs testimony. (Tr. 19). When lay testimony mirrors a claimant's testimony in describing 

the nature and extent of her symptoms and limitations, the ALJ' s reasons for rejecting plaintiffs 

credibility also constitute legally sufficient reasons for rejecting the lay testimony. Molina, 674 

F.3d at 1122. Because the ALJ did not provide legally sufficient reasons for rejecting plaintiffs 

testimony, she also failed to provide legally sufficient reasons for rejecting the lay witness' 

statements. 

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III. Remand 

Although a court should generally remand to the agency for additional investigation or 

explanation, a court has discretion to remand for immediate payment of benefits. Treichler v. 

Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the 

utility of further proceedings. A remand for an award of benefits is appropriate when no useful 

purpose would be served by further administrative proceedings or when the record has been fully 

developed and the evidence is insufficient to support the Commissioner's decision. Id. A court 

may not award benefits punitively and must conduct a "credit-as-true" analysis on evidence that 

has been improperly rejected by the ALJ to determine if a claimant is disabled under the Act. 

Strauss v. Comm 'r of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). 

In the Ninth Circuit, the "credit-as-true" doctrine is "settled" and binding on this court. 

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

[The Ninth Circuit has] devised a three-part credit-as-ttue standard, each part of which 

must be satisfied in order for a court to remand to an ALJ with instructions to calculate 

and award benefits: (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. 

Id. at 1020. Ordinarily, if all three of these elements are satisfied, a district comt must remand for a 

calculation of benefits. Id If, however, "an evaluation of the record as a whole creates serious doubt that 

a claimant is, in fact, disabled," the district comt retains the "flexibility" to remand for further 

proceedings even when these elements are satisfied. Id. at 1021; see also Burrell v. Colvin, 775 F.3d 

1133, 1141-42 (9th Cir. 2014) (remanding for fmther proceedings without analyzing whether the three 

factors are met "because, even assuming that they are, we conclude that the record as a whole creates 

serious doubt as to whether Claimant is, in fact, disabled"). Moreover, when remanding for fmther 

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development of the record, the district court has the discretion to remand on an open record or with the 

directive that the claimant's testimony be credited as true. See Burrell, 775 F.3d at 1142 (observing that a 

comt' s "flexibility" includes the option to "remand on an open record for further proceedings" (citing 

Garrison, 759 F.3d at 1021)). 

Here, when the erroneously rejected evidence is credited as true, outstanding issues 

remain before a disability determination may be made. Because consultative physicians Michael 

Spackman, M.D., and Richard Alley, M.D., both found plaintiff capable of sustaining medium 

exertional work (Tr. 68-69, 79-80), the record as a whole creates serious doubt that plaintiff is, in 

fact, disabled. The court thus retains the flexibility to remand for fulther proceedings. Garrison, 

759 F.3d at 1021. On remand, the ALJ must resolve the conflict between plaintiffs testimony, 

the lay opinion evidence, and the opinions of the consultative physicians. 

Conclusion 

The Commissioner's decision is not supported by substantial evidence in the record, and 

it is therefore REVERSED and REMANDED for further proceedings consistent with this 

opinion. 

J 

DATED this -'---·t_1'aay of February 2016. 

Page 11 - OPINION AND ORDER 

'J¢JBN V. ACOSTA 

Unitaj/ States Magistrate Judge 

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