IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RANDEE A. DUNKEL, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

RUSSO, Magistrate Judge: 

Case No. 6: 15-cv-01664-JR 

OPINION AND ORDER 

Plaintiff Randee Dunkel brings this action for judicial review of the final decision of the 

Commissioner of Social Security ("Commissioner") denying her application for Title II 

Disability Insurance Benefits ("DIB") under the Social Security Act ("Act"). All parties have 

consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance 

with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the 

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

Page 1 - OPINION AND ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 1 of 18
PROCEDURAL BACKGROUND 

This case has a long procedural history and pertains to a period that transpired 

approximately 20 years ago, as the date last insured lapsed on December 31, 1998. See 20 C.F.R. 

§§ 404.lOl(a), 404.315 (claimant must have "insured status" in order to qualify for DIB). On 

October 15, 2009, plaintiff applied for DIB, alleging disability beginning on the date last insured. 

Tr. 118-19. Her application was denied initially and upon reconsideration. Tr. 68-75. On 

November 9, 2011, a hearing was held before an Administrative Law Judge ("ALJ''), during 

which plaintiff amended her alleged onset date to January 1, 1995. Tr. 21-63. On November 15, 

2011, the ALJ issued a decision finding plaintiff not disabled between the amended alleged onset 

date and the date last insured. Tr. 11-20. After the Appeals Council denied her request for 

review, plaintiff filed a complaint in this Court. Tr. 1-4. 

On April 16, 2013, the Honorable James A. Redden found that the ALJ erred in disposing 

of plaintiffs claim at step two by finding that none of her impairments were medically 

determinable during the relevant time-frame. Tr. 687-98. Accordingly, Judge Redden remanded 

the matter for further proceedings. Id. 

On April 27, 2015, a second administrative hearing took place, wherein plaintiff was 

represented by counsel and testified, as did a vocational expert ("VE") and medical expert 

("ME"). Tr. 624-52. On May 19, 2015, the ALJ issued a second decision finding plaintiff not 

disabled under the Act. Tr. 653-69. Plaintiff subsequently commenced this lawsuit. 

STATEMENT OF FACTS 

Born on March 12, 1950, plaintiff was 44 years old on the amended alleged onset date of 

disability and 55 years old at the time of the second hearing. Tr. 118. Plaintiff graduated from 

Page 2 - OPINION AND ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 2 of 18
high school and attended business school. Tr. 136. She worked previously as an office manager. 

Tr. 59-60. Plaintiff alleges disability due to multiple sclerosis, fibromyalgia, depression, arthritis, 

and diverticulitis. Tr. 130. 

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) (citation and internal quotations 

omitted). The court must weigh "both the evidence that supports and detracts from the 

[Commissioner's] conclusions." Martinez v. Heckler, 807 F .2d 771, 772 (9th Cir. 1986). 

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

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

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

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

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. § 404.1520. First, 

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

Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). Ifso, the claimant is not disabled. 

Page 3 - OPINION AND ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 3 of 18
At step two, the Commissioner evaluates whether the claimant has a "medically severe 

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

404.1520( c ). If the claimant does not have a severe impairment, she is not disabled. 

At step three, the Commissioner determines whether the claimant's impairments, either 

singly or in combination, meet or equal "one of a number of listed impairments that the 

[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 

482 U.S. at 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if 

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

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

relevant work." 20 C.F.R. § 404.1520(t). lfthe claimant can work, she is not disabled; if she 

cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the 

Commissioner must establish that the claimant can perform other work existing in significant 

numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). 

If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566. 

THE ALJ'S FINDINGS 

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since 

the amended alleged onset date. Tr. 658. At step two, the ALJ determined that plaintiffs obesity, 

degenerative disc disease, myofascial pain syndrome, and possible genitofemoral neuropathy 

were medically determinable but not severe prior to December 31, 1998. Tr. 658-59. As such, the 

ALJ did not continue the sequential evaluation process and concluded plaintiff was not disabled 

from the alleged onset date through the date last insured. Tr. 662. 

Page 4 - OPINION AND ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 4 of 18
DISCUSSION 

This case hinges on whether there is sufficient evidence relating to plaintiffs conditions 

to establish that they imposed more than a minimal effect on her ability to perform basic work 

activities prior to the date last insured. 

I. Step Two Finding 

Plaintiff argues that the ALJ erred at step two by: ( 1) affording less weight to medical 

evidence from James Morris, M.D.; (2) discrediting her subjective symptom statements; and 

(3) rejecting the lay testimony of her husband, Boris Dunkel. 

At step two, the ALJ determines whether the claimant has an impairment, or combination 

of impairments, that is both medically determinable and severe. 20 C.F .R. § 404.1520( c ). An 

impairment is medically determinable if it is diagnosed by an acceptable medical source and 

based upon acceptable medical evidence, such as "signs, symptoms, and laboratory findings." 

SSR 96-4p, available at 1996 WL 374187; 20 C.F.R. § 404.1513(a). An impairment is severe if it 

significantly limits the claimant's ability to do basic work activities, which are defined as 

"abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521; Webb v. Barnhart, 433 

F.3d 683, 686 (9th Cir. 2005). 

The step two threshold is low; the Ninth Circuit describes it as a "de minimus screening 

device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) 

(citation omitted); see also SSR 85-28, available at 1985 WL 56856 ("[g]reat care should be 

exercised in applying the not severe impairment concept," such that "[i]f an adjudicator is unable 

to determine clearly the effect of an impairment or combination of impairments on the 

individual's ability to do basic work activities, the sequential evaluation process ... should be 

Page 5 - OPINION AND ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 5 of 18
continued"). In other words, an impairment or combination of impairments can be found "not 

severe" only if the evidence establishes a slight abnormality that has "no more than a minimal 

effect on an individual's ability to work." SSR 85-28, available at 1985 WL 56856. 

A. Medical Evidence 

Plaintiff contends that the ALJ improperly discredited treating Dr. Morris's medical 

opinion. There are three types of acceptable medical opinions in Social Security cases: those 

from treating, examining, and non-examining doctors. Lester v. Chater, 81 F.3d 821, 830 (9th 

Cir. 1995). Generally, the opinions of treating physicians are afforded the most weight. Om v. 

Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citation omitted); see also SSR 96-2p, available at 

1996 WL 374188 ("[i]n many cases, a treating source's medical opinion will be entitled to the 

greatest weight and should be adopted, even if it does not meet the test for controlling weight"). 

To reject the uncontroverted opinion of a treating or examining doctor, the ALJ must present 

clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation 

omitted). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, 

it may be rejected by specific and legitimate reasons. Id. 

In May 1999, four months after the date last insured expired, plaintiff was evaluated by 

Dr. Morris, a chronic pain and rehabilitation specialist, at the request of Dr. Karasek, a 

neurologist. Tr. 356. Dr. Morris's initial assessment consisted of an examination and clinical 

interview; he also reviewed plaintiffs prior records, including chart notes from Drs. Hacker, 

Karasek, and Hansen, and an "MRI of the pelvis and lumbosacral spine." 1 Tr. 356-59. Plaintiff 

reported chronic low back and groin pain, which "began about four years ago with no single 

1 Although these records were generated prior to the date last insured, they are not in the 

transcript because "the doctors did not keep them and most of the doctors had retired." PL' s 

Opening Br. 16 n.4 (citing Tr. 31). Accordingly, it is undisputed Dr. Morris's May 1999 

evaluation is the only evidence in the record that is contemporaneous to the date last insured. 

Page 6 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 6 of 18
precipitating event." Tr. 356. Plaintiff also reported depression, mood swings, memory issues, 

numbness, and chronic fatigue. Tr. 357. Dr. Morris noted tenderness in the genitofemoral nerve 

and trigger points in the left abdominal rectus, iliopsoas/iliacus, quadratus lumborum, and 

gluteus medius; the remainder of his examination was unremarkable. Tr. 357-58. Dr. Morris 

diagnosed plaintiff with "degenerative lumbosacral disc disease, myofascial pain syndrome, and 

probably some genitofemoral neuropathy of unclear etiology." Tr. 358. 

In March 2001, plaintiff presented to Dr. Morris with worsening musculoskeletal pain, 

fatigue, and back pain radiating down her legs. Tr. 554. Dr. Morris noted myofascial banding and 

triggering, and diagnosed intractable low back pain, depression, and degenerative lumbosacral 

spine disease. Id. 

In May 2001, Dr. Morris noted an asymmetric neurologic examination, with signs of an 

upper neuron lesion, and referred plaintiff to a neurologist to check for multiple sclerosis. Tr. 

552. 

In June 2001, plaintiff reported "increasing groin pain, achiness, and some trouble 

walking." Tr. 550. Dr. Morris noted that she was also "struggling with her low back pain, 

radicular symptoms, and depression." Id. 

In August 2001, Dr. Morris reviewed plaintiffs recent MRI, which indicated progressive 

degenerative changes in the lumbar spine. Tr. 548. 

In October 2001, Dr. Morris informed plaintiff that her recent brain MRI revealed 

demyelinating lesions, which could be indicative of multiple sclerosis. Tr. 546-47. A neurologist, 

Kathleen Wilken, M.D., ultimately confirmed plaintiffs diagnoses of multiple sclerosis in April 

2002. Tr. 464. 

Page 7 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 7 of 18
Thereafter, plaintiff continued to receive regular care from Dr. Morris and Dr. Wilken. 

Tr. 242-355, 364-462, 497-555, 561-72. Dr. Morris denoted at various points in plaintiffs chart 

that she was unable to work due to her impairments. See, e.g., Tr. 247 (Dr. Morris opining in 

January 2011 that plaintiff "has been disabled since at least 1998, only working part time for her 

husband at home at her own pace and with generous accommodations"), 304 (Dr. Morris stating 

in June 2008 that plaintiffs "condition is disabling [and] permanent"). 

In January 2011, Dr. Morris authored a letter in support of plaintiffs DIB application. Tr. 

241. He listed plaintiffs diagnoses as fibromyalgia, degenerative osteoarthritis, intractable groin 

pain with genitofemoral nerve entrapment, multiple sclerosis, and degenerative spine disease. Id. 

He then wrote: 

Id. 

The medical conditions began affecting Mrs. Dunkel in 1995 or before. She has 

been unable to hold a job outside of the home since I met her. Her condition is 

expected to last until indefinite. No cure or palliative care is expected to improve 

her functional capacities. Mrs. Dunkel will be unable to return to work in the 

future and her condition is permanent. Deterioration in her condition due to 

advancing multiple sclerosis is likely. 

Restrictions: limited sitting, standing, walking or reaching. Cannot lift more than 

10 lb occasionally. Unable to bend, twist, stoop. Unable to withstand stress. Flareups in condition will cause disability and inability to work in any capacity on an 

average of 4-6 days per month. 

The ALJ afforded "little weight" to the January 2011 opinion of Dr. Morris because "the 

objective findings [from 1999 were normal and therefore] do not establish the presence of any 

limitations that would relate back to the time period at issue." Tr. 661. The ALJ also found that, 

"given that Dr. Morris did not start seeing [plaintiff] until 1999, he was not in a position to issue 

an opinion as to her functioning in 1998." Tr. 661-62. 

Page 8 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 8 of 18
Initially, the fact that Dr. Morris did not begin treating plaintiff until four months after the 

date last insured is not a legally valid reason to reject his retrospective opinion regarding her 

functioning. See Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1461 n.5 (9th Cir. 

1995) (claimant may establish "continuous disabling severity" beginning on or before the date 

last insured through retrospective evidence that post-dates the adjudication period); see also 

Smith v. Bowen, 849 F.2d 1222, 1225-26 (9th Cir. 1988) ("medical evaluations made after the 

expiration of a claimant's insured status are relevant to an evaluation of the pre-expiration 

condition") (collecting cases). Indeed, Judge Redden reversed the ALJ's previous decision in 

regard to a similar issue. See Tr. 689-93 (rejecting the Commissioner's contention that the ALJ 

did not need to accept Dr. Morris's January 2011 opinion because his "retrospective assessment 

[was] not substantiated by medical evidence relevant to the period in question," specifically 

noting Dr. Morris's findings upon exam in 1999, as well as his review of chart notes and imaging 

studies that pre-dated the date last insured); see also Tr. 36-38, 162-74 (plaintiff's journal entries 

from June 1996 through October 1997 detailing her significant back pain, groin pain, and 

fatigue). 

Likewise, Dr. Morris's May 1999 examination is not a basis to afford less weight to his 

January 2011 opinion.2 Contrary to the ALJ's conclusion, Dr. Morris's findings in 1999 were not 

2 The Commissioner's reliance on Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995), is 

misplaced. In Johnson, the ALJ articulated a number of reasons for rejecting a treating doctor's 

post-date last insured opinion that the claimant was disabled - including that it was "conclusory" 

and "not substantiated by medical evidence relevant to the period in question." Johnson, 60 F.3d 

at 1432. Specifically, the ALJ in Johnson noted that the doctor's opinion "contradicts his own 

contemporaneous finding" from within the adjudication period that the claimant could work. Id. 

at 1433. Here, Dr. Morris's 2011 opinion is compatible with, as opposed to contradicted by, his 

1999 examination. In addition, other evidence that post-dates the date last insured reflects that 

plaintiff's multiple sclerosis existed on or before the alleged onset date, and caused or 

contributed to some of her allegedly disabling symptoms. See, e.g., Tr. 629-30, 634 (ME 

testifying at the 2015 hearing that plaintiff's multiple sclerosis and fibromyalgia were "severe" 

Page 9 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 9 of 18
all normal. Rather, he assessed trigger points and tenderness precisely in the areas in which 

plaintiff described limitation. See, e.g., Tr. 358 (Dr. Morris informing plaintiff in 1999 that "[w]e 

don't know all the causes of your pain [but] you have some tight muscles in the back, abdomen, 

and pelvis [and] may have some problems with the way the nerve signals are processed in the 

central nervous system"). Based on this examination, in conjunction with his review of the other 

objective medical evidence, Dr. Morris diagnosed plaintiff with a number of conditions that he 

later and repeatedly opined were disabling prior to the date last insured. Regardless of whether it 

is sufficient to entitle plaintiff to benefits, the aforementioned evidence clearly establishes the 

existence of impairments that have more than than a minimal effect on plaintiffs ability to work. 

The ALJ' s evaluation of Dr. Morris's opinion is reversed. 

B. Plaintiff's Testimony 

Plaintiff argues that the ALJ wrongfully discredited her subjective symptom testimony 

concerning the severity of her impairments prior to the date last insured. 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, 80 F.3d at 1281 (citation omitted). 

A general assertion that the claimant is not credible is insufficient; the ALJ must "state which ... 

testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. 

Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to 

permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's 

testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the 

prior to the date last insured and that "fatigue is one of the major symptoms" of those 

conditions). 

Page 10 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 10 of 18
"ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not 

engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation 

omitted). 

At the hearing, plaintiff testified that she was unable to work due to groin pain, fatigue, 

and concentration and memory problems. Tr. 33-34, 637. Plaintiff reported that these symptoms 

began significantly impacting her in "about 95' or 96' ."Tr. 33, 637-38. Additionally, she 

endorsed lingering pain in her back following surgery in 1996. Tr. 640. During the mid-to-late 

1990s, plaintiff began working part-time as an office manager at her husband's dental equipment 

repair business. Tr. 635-36. At some point thereafter, she stopped doing "his bookkeeping[,] the 

phone and the invoicing and stuff like that," and presently only "pay[s] the bills," which takes 

approximately 10 hours per week. Id. 

After summarizing her hearing testimony, the ALJ determined that plaintiffs medically 

determinable impairments could reasonably be expected to produce some degree of symptoms, 

but her statements regarding the extent of these symptoms were not fully credible3 due to her 

work after the alleged onset date and the lack of corroborating medical evidence. Tr. 659-61. 

Notably, the ALJ found that plaintiffs credibility was undermined by her employment at 

her husband's business. Tr. 660. The record reflects that plaintiff worked only part-time, 

3 The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making an 

overarching credibility determination and instead assesses whether the claimant's subjective 

symptom statements are consistent with the record as a whole. See SSR 16-3p, available at 2016 

WL 1119029 (superseding SSR 96-7p). The ALJ's May 2015 decision was issued almost one 

year before SSR 16-3p became effective and there is no binding precedent interpreting this new 

ruling or 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.l (N.D. Ill. May 9, 2016) 

(applying SSR 16-3p retroactively to a 2013 ALJ decision). Because the ALJ's findings in regard 

to this issue fail to pass muster irrespective of which standard governs, the Court need not 

resolve this issue. 

Page 11 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 11 of 18
although there is some discrepancy regarding the number of hours per week she worked during 

the adjudication period. Compare Tr. 28-29, 636 (plaintiff testified she worked no more than 10 

to 15 hours per week after the amended alleged onset date), with Tr. 51 (Mr. Dunkel testified 

plaintiff worked 30 to 35 hours per week prior to 1999). Regardless, plaintiff was not 

compensated, and both plaintiff and her husband testified that her impairments adversely 

impacted the quality of her performance. It is undisputed this work did not satisfy the ALJ's 

step-one inquiry. Tr. 30, 49-53, 56, 658. In fact, plaintiff was unable to continue overseeing the 

majority of her office-related responsibilities due to her alleged impairments. Tr. 33, 41-42, 50-

51, 638-40. The fact that plaintiff worked part-time, for a family member, and struggled to 

complete that work in a satisfactory manner, does not impugn her credibility. See Lester, 81 F.3d 

at 833 ("[ o ]ccasional symptom-free periods - and even the sporadic ability to work- are not 

inconsistent with disability"). 

The ALJ also found "there are no objective findings to establish that her impairments 

were severe" because Dr. Morris's May 1999 exam was "essentially normal, suggest[ing] that 

her impairments were not as debilitating as alleged." Tr. 660-61. "[W]hether the alleged 

symptoms are consistent with the medical evidence" is a relevant consideration, but "an ALJ 

cannot reject a claimant's subjective pain or symptom testimony simply bec;mse the alleged 

severity of the pain or symptoms is not supported by objective medical evidence." Lingenfelter 

v. Astrue, 504 F .3d 1028, 1040 (9th Cir. 2007) (citations omitted). In other words, the ALJ may 

not rely exclusively on the lack of corroborating medical evidence to discount a claimant's 

testimony where, as here, the ALJ' s other reasons for finding the claimant not credible are 

unsupported by substantial evidence. 

Page 12 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 12 of 18
Regardless, the ALJ mistreated the medical evidence from Dr. Morris's May 1999 

assessment. The ALJ disregarded plaintiff's subjective complaints because she had a "full range 

of motion," "no significant tender points," a "negative straight-leg raising test," and "full motor 

strength, intact reflexes, and intact sensation in her upper and lower extremities." Tr. 660. Yet 

these findings have no bearing on whether plaintiff suffered from pain or fatigue that 

significantly limited her ability to perform basic work activities. See Light v. Soc. Sec. Admin, 

119 F.3d 789, 792 (9th Cir. 1997) ("a claimant need not present clinical or diagnostic evidence to 

support the severity of his pain"); see also Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 

1990) ("it is the very nature of excess pain to be out of proportion to the medical evidence"). 

This is especially true in light of the fact that, as discussed in section I(A), the ALJ failed to 

acknowledge the portions of the record which were indicative of severe impairment prior to the 

date last insured. Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (ALJ's "paraphrasing 

of record material" was "not entirely accurate regarding the content and tone of the record" and 

did not support an adverse credibility finding). 

In sum, the ALJ failed to provide a clear and convincing reason, supported by substantial 

evidence, for finding plaintiff not fully credible. The ALJ' s credibility finding is reversed. 

C. Lay Testimony 

Plaintiff asserts the ALJ neglected to provide a legally sufficient reason, supported by 

substantial evidence, to reject the statements of Mr. Dunkel. Lay testimony concerning a 

claimant's symptoms or how an impairment affects the ability to work is competent evidence 

that an ALJ must consider. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (citations 

omitted). The ALJ must provide "reasons germane to each witness" in order to reject such 

testimony. Id. (citation and internal quotation omitted). 

Page 13 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 13 of 18
Mr. Dunkel testified at the first administrative hearing. Tr. 46-57. He also offered written 

testimony regarding plaintiff's impairments in November 2011. Tr. 180-83. In each instance, Mr. 

Dunkel described how plaintiffs ability to function began to deteriorate in the early 1990s. Tr. 

49, 180-81. He explained that plaintiff was employed at his dental equipment repair company as 

an office manager and, by the late 1990s, was having significant professional problems, 

including confusion, calculation errors, and misplaced payments. Tr. 49, 51, 181. As a result of 

these problems, he lost business and was required to reduce plaintiffs responsibilities. Tr. 50-51, 

181-82. He also observed that she had physical difficulty taking out the trash, doing the dishes 

and laundry, and dusting. Tr. 52-54, 180-82. 

The ALJ discredited Mr. Dunkel's statements because "his testimony that [plaintiff] was 

able to work approximately thirty-five hours a week up until 1999 is inconsistent with his 

statement that [plaintiffs] conditions had become severe in the early 1990' s such that her 

condition had deteriorated and she was no longer able to do household chores." Tr. 662. 

When read in context, Mr. Dunkel's statements are not internally inconsistent. Mr. 

Dunkel's testimony related to plaintiffs inability to complete household chores revealed 

limitations due to physical impairment. Conversely, his testimony concerning plaintiffs poor 

workplace functioning was based predominantly on her mental impairments. This distinction is 

critical, as both plaintiff and the VE testified that plaintiffs past work as office manager was 

sedentary and skilled, with essentially no lifting- i.e., it was work that was mentally demanding 

but "physically easy." Tr. 29, 41, 645. Moreover, the medical evidence demonstrates that some 

of plaintiff's conditions are degenerative and therefore, "by definition, progressively worsen ... 

over time." Tr. 241, 247, 304, 356-58, 546-55; Daley v. Colvin, 2014 WL 5473797, *9 (D. Or. 

Oct. 28, 2014) (citations and internal quotations omitted). Because the alleged contradictions 

Page 14- OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 14 of 18
identified by the ALJ are not supported by the record before the Court, the ALJ erred in rejecting 

Mr. Dunkel's testimony. 

II. Remand 

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

benefits lies within the discretion of the court. Harman v. Apfel, 211F.3d1172, 1176-78 (9th 

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

remand for an award of benefits is appropriate when no useful purpose would be served by 

further administrative proceedings or when the record has been fully developed and the evidence 

is insufficient to support the Commissioner's decision. Treichler v. Comm'r of Soc. Sec. Admin., 

775 F.3d 1090, 1100 (9th Cir. 2014). 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 the 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, 999 (9th Cir. 2014). The United States Court of Appeals for 

the Ninth Circuit articulates the rule as follows: 

If the court finds [legal] error, it must next review the record as a whole and 

determine whether it is fully developed, is free from conflicts and ambiguities, 

and all essential factual matters have been resolved. In conducting this review, the 

district court must consider whether there are inconsistencies between the 

claimant's testimony and the medical evidence in the record, or whether the 

government has pointed to evidence in the record that the ALJ overlooked and 

explained how that evidence casts into serious doubt the claimant's claim to be 

disabled. Unless the district court concludes that further administrative 

proceedings would serve no useful purpose, it may not remand with a direction to 

provide benefits. 

If the district court does determine that the record has been fully developed and 

there are no outstanding issues left to be resolved, the district court must next 

Page 15 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 15 of 18
consider whether the ALJ would be required to find the claimant disabled on 

remand ifthe improperly discredited evidence were credited as true. Said 

otherwise, the district court must consider the testimony or opinion that the ALJ 

improperly rejected, in the context of the otherwise undisputed record, and 

determine whether the ALJ would necessarily have to conclude that the claimant 

were disabled if that testimony or opinion were deemed true. If so, the district 

court may exercise its discretion to remand the case for an award of benefits. A 

district court is generally not required to exercise such discretion, however. 

District courts retain flexibility in determining the appropriate remedy and a 

reviewing court is not required to credit claimants' allegations regarding the 

extent of their impairments as true merely because the ALJ made a legal error in 

discrediting their testimony. 

Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation 

marks omitted). 

As discussed herein, the ALJ made multiple errors in evaluating step two. Given the long 

procedural history of this case, as well as the remote date last insured, the Court questions why 

the ALJ did not complete the sequential evaluation by making alternate findings. Nevertheless, a 

court may not award benefits simply because the Commissioner makes a similar mistake on 

remand. See Strauss, 635 F.3d at 1138-39 ("[a] claimant is not entitled to benefits under the 

statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may 

be"). 

The record before this Court is ambiguous regarding the onset and extent of plaintiffs 

allegedly disabling impairments. On the one hand, plaintiff endorsed debilitating fatigue, pain, 

and concentration and memory problems beginning in the mid-l 990s. The retrospective 

symptoms plaintiff reported in applying for benefits are consistent with the contemporaneous 

journal entries she made in 1996 and 1997. On the other hand, both plaintiff and her husband 

testified that she continued working part-time, potentially up to 35 hours per week, during the 

adjudication period. But see Tr. 128 (plaintiffs Disability Report reflecting that she "work[ ed] 

Page 16 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 16 of 18
full-time as a business office manager for her husband's company through 1999"). While not 

dispositive, the Court also notes plaintiffs testimony is vague concerning when precisely she 

became unable to work, and that she started working for her husband's business after the 

amended alleged onset date and ceased working at her previous position for reasons unrelated to 

her impairments. Tr. 43-44, 128, 635, 638. 

Further, although the ALJ did not rely on this reason in his decision, the Court notes that 

Dr. Morris's 2011 letter is inconsistent with his treatment records. For instance, the only aspect 

of his letter that is retrospective is his statement that "[f]ibromyalgia, degenerative osteoarthritis, 

intractable groin pain with genitofemoral nerve entrapment, multiple sclerosis, and degenerative 

spine disease ... began affecting Mrs. Dunkel in 1995 or before." Tr. 241. Yet plaintiff did not 

present with any clinical signs of fibromyalgia until several years after the date last insured. See 

Tr. 546 (plaintiff presented with a sufficient number of positive fibromyalgia tender points for 

the first time in October 2001); see also SSR 12-29, available at 2012 WL 3104869 (outlining 

the diagnostic criteria for fibromyalgia). As such, Dr. Morris did not diagnose that condition as 

part of his May 1999 evaluation. Tr. 356-58. Finally, accepting plaintiffs assertion that medical 

records from the dispositive period were unobtainable, the fact remains that, after her initial 

evaluation with Dr. Morris in May 1999, there is no evidence that she sought further treatment 

for her allegedly disabling impairments for nearly two years, until March 2001. Tr. 554-55. 

In light of these ambiguities, further proceedings are required to resolve this case. Upon 

remand, the ALJ must consult an ME who specializes in the conditions that plaintiff alleges are 

Page 17 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 17 of 18
disabling4 to determine the onset date of any significant symptoms and/or functional limitations, 

and, if necessary, define plaintiff's RFC and obtain additional VE testimony. 

CONCLUSION 

For the reasons stated above, the Commissioner's decision is REVERSED and this case 

is REMANDED for further proceedings consistent with this opinion. 

IT IS SO ORDERED. 

1lk 

DATED thisJb'. day of July 2016. 

United 

d~~~us~ States Magistrate Judge 

4 The ME who testified at the 2015 hearing had not reviewed salient aspects of the record and 

"didn't regularly deal with [multiple sclerosis] patients." Tr. 632-34. 

Page 18 - OPINION & ORDER 

Case 6:15-cv-01664-JR Document 19 Filed 07/26/16 Page 18 of 18