PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ANNETTE Y. WOODMARK,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Case No. 6:15-cv-472-SI

OPINION AND ORDER

James W. Moller, 8655 S.W. Citizens Drive, Suite 104, Portland, OR 97070. Of Attorneys for 

Plaintiff.

Billy J. Williams, U.S. Attorney, and Janice E. Hébert, Assistant U.S. Attorney, 

U.S. ATTORNEY’S OFFICE, DISTRICT OF OREGON, 1000 S.W. Third Avenue, Suite 600, Portland, 

OR 97204; Lisa Goldoftas, Special Assistant U.S. Attorney, OFFICE OF THE GENERAL COUNSEL,

SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 

98104. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Ms. Annette Y. Woodmark (“Claimant”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”) denying her application 

for disability insurance benefits (“DIB”) under Title II of the Social Security Act. For the 

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following reasons, the Court reverses the Commissioner’s decision and remands this case for 

further proceedings.

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper 

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means 

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 

(9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 

1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 

F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 

Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the 

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray,

554 F.3d at 1226.

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BACKGROUND

A. Claimant’s Application

Claimant protectively filed an application for DIB on April 12, 2011, alleging disability 

beginning October 1, 2008. AR 112-13. Claimant was born on January 15, 1961 and was 

50 years old at the time that she submitted her application. AR 112. Claimant alleges disability 

based on bipolar disorder, depression, post-traumatic stress disorder, anxiety, arthritis, and back 

and knee pain. AR 112-13. 

Claimant is a high school graduate and received a nursing assistant certification in 1979. 

AR 36, 201. Claimant started college in 1987 but stopped attending classes in 1990 and did not

obtain her degree at that time. AR 64. Claimant worked as an employment representative from 

1996 to 2000; as a clerical worker from June 2000 to July 2003; and as a child support case 

manager with the Oregon Department of Justice (“Oregon DOJ”) from August 2003 to

October 2008. AR 35-36, 202, 703. Claimant returned to school in 2008 and completed her 

Bachelor’s degree in December 2010.1 AR 64. According to Claimant, she received many 

accommodations while in school, such as extra time to complete written assignments, taperecording of classes, and no downgrading for spelling or grammar errors. AR 81-82. In 

March 2012, Claimant began work at Lane Community College (“LCC”) as a part-time art 

studio technician. AR 23, 69. 

The Commissioner denied Claimant’s application initially and upon reconsideration. 

AR 142, 149. Thereafter, Claimant requested a hearing before an Administrative Law Judge 

(“ALJ”). See AR 159. Claimant appeared for a hearing on June 27, 2013, at which she was

 

1 Claimant’s hearing testimony on this issue is inconsistent with her DIB application. 

Claimant testified on June 27, 2013 that she completed her college degree in December 2010. 

AR 64. On Claimant’s DIB application, however, Claimant lists her college completion date as 

December 2008. AR 201.

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represented by counsel. AR 21. Claimant testified at the hearing. Id. Claimant testified, in part,

that she was currently working at LCC for about 15 hours per week. AR 70-72. A vocational 

expert (“VE”) also appeared and testified at the hearing. AR 21. On August 29, 2013, the ALJ 

issued a decision finding that Claimant was not disabled within the meaning of the Social 

Security Act. AR 18-37. 

Claimant petitioned the Appeals Council for review of the ALJ’s decision. AR 14.

Claimant submitted additional medical evidence to the Appeals Council. AR 5. The Appeals 

Council admitted some of the additional evidence into the record. AR 1-2; see also AR 694-760 

(additional medical evidence). The additional medical evidence includes a letter dated March 12, 

2008, from Dr. David V. Baldwin to Oregon Vocational Rehabilitation. AR 703. Dr. Baldwin is 

a psychologist who treated Claimant in 2008. Id. In the letter, Dr. Baldwin opined that that 

Claimant meets the diagnostic criteria for dissociative disorder, although she was receiving

treatment regularly and “doing fairly well.” Id. Dr. Baldwin stated that Claimant is “capable of 

handling suitable and challenging employment,” but that her current position as a child support 

case manager with the Oregon DOJ was a “continuing source of emotional stress” and 

recommended that Claimant find alternative employment. Id.

The Appeals Council found that the new information does not provide a basis for 

overturning the decision of the ALJ. AR 1-2. On January 16, 2015, the Appeals Council denied 

Claimant’s request for review, rendering the ALJ’s decision the final decision of the 

Commissioner. AR 1. Claimant now seeks judicial review of the ALJ’s decision. 

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which . . . has lasted or 

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. 

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§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act.” 

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is 

potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential 

process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An 

impairment or combination of impairments is “severe” if it significantly 

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, 

this impairment must have lasted or be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the 

claimant does not have a severe impairment, the analysis ends. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe 

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis continues. At that point, the ALJ must 

evaluate medical and other relevant evidence to assess and determine the 

claimant’s “residual functional capacity” (“RFC”). This is an assessment 

of work-related activities that the claimant may still perform on a regular 

and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis 

proceeds to step four.

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4. Can the claimant perform his or her “past relevant work” with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or 

she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy, “taking into consideration the claimant’s residual functional 

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 

(describing “work which exists in the national economy”). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ began her opinion by finding that Claimant met the insured status requirements 

of the Social Security Act through December 31, 2013, meaning that Claimant must establish 

disability on or before that date in order to be entitled to DIB. AR 21, 23. The ALJ then 

performed the sequential analysis. At step one, the ALJ found that Claimant has not engaged in 

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substantial gainful activity since October 1, 2008, the alleged onset date. AR 23. The ALJ 

explained that although Claimant worked after October 1, 2008, this work activity did not rise to 

the level of substantial gainful activity as defined by the Social Security Regulations (“SSR”). Id.

At step two, the ALJ found that Claimant has the following severe impairments: irritable 

bowel syndrome (“IBS”); a history of anterior cruciate ligament repair; degenerative disc disease 

of the cervical spine and lumbar spine; bilateral high frequency hearing loss; osteoarthritis of the 

left foot; post-concussive syndrome; and adjustment disorder with mixed anxiety and depressed 

mood. AR 23-24. The ALJ noted that the record references additional impairments including 

obesity, moderate obstructive sleep apnea, low potassium, hypertension, and gastroesophageal 

reflux disease. AR 24. The ALJ concluded that the record does not support a finding that those 

additional impairments significantly limited Claimant’s ability to perform basic work activities, 

and thus that those additional impairments were not “severe” under the SSR. Id. Nonetheless, the 

ALJ considered those impairments she found nonsevere in combination with Claimant’s severe 

impairments in her decision. Id.

At step three, the ALJ found that Claimant does not have an impairment or combination 

of impairments that meets or medically equals the severity of one of the listed impairments in 

20 C.F.R. Part 404, Subpart P, Appendix 1. AR 24.

The ALJ next addressed Claimant’s RFC. The ALJ found that Claimant has the ability to 

perform light work as defined in 20 C.F.R. § 404.1564(b). AR 26. Specifically, the ALJ found 

that Claimant can: (1) frequently push, pull, and perform foot operations with the left side; 

(2) occasionally climb ramps and stairs; (3) occasionally balance, stoop, kneel, crouch, and 

crawl; and (4) can tolerate a moderate noise intensity level. Id. The ALJ additionally found that 

Claimant: (1) must be allowed to alternate between sitting and standing positions at will 

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throughout the day while remaining on task; (2) can never climb ladders, ropes, or scaffolds; 

(3) must avoid all exposure to excessive noise and unprotected heights; (4) must work in a low 

stress job in which she has only occasional decision-making and changes in work setting; 

(5) cannot tolerate production rate or pace work; and (6) would be off task outside normal work 

breaks for five percent or less of a normal workday. Id.

In formulating the RFC, the ALJ found that although Claimant’s “medically determinable 

impairments could reasonably be expected to cause the alleged symptoms . . . [her] statements 

concerning the intensity, persistence and limiting effects of these symptoms are not entirely 

credible.” AR 27. The ALJ reasoned that the medical evidence does not support Claimant’s 

allegations of debilitating impairments and associated limitations, and that Claimant’s allegations 

are inconsistent with her work and educational history. AR 27-32. 

At step four, the ALJ determined that Claimant is unable to perform any past relevant 

work. AR 35. At step five, the ALJ considered Claimant’s age, education, work experience, 

RFC, and the VE’s testimony. AR 36-37. The ALJ concluded that Claimant could perform 

jobs—such as cleaner/polisher, marking clerk, and office helper—that exist in significant 

numbers in the national economy. AR 37. Accordingly, the ALJ ruled that Claimant has not been 

under a disability, as defined in the Social Security Act, from October 1, 2008, the alleged onset 

date, through August 29, 2013, the date of the ALJ’s decision. Id.

DISCUSSION

Claimant argues that the ALJ provided inadequate—and often factually inaccurate—

reasons for discrediting Claimant’s subjective symptom testimony, and thus that substantial 

evidence in the record does not support the ALJ’s credibility finding. The Court first discusses 

whether the ALJ properly discounted Claimant’s credibility. Because the Court finds that the 

ALJ did not provide legally sufficient reasons for finding Claimant less than fully credible, the 

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Court then discusses whether to remand this case for further proceedings or to remand this case 

for an immediate award of benefits.

A. Claimant’s Credibility

There is a two-step process for evaluating the credibility of a claimant’s own testimony 

about the severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 

586, 591 (9th Cir. 2009). “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 v. Astrue, 504 F.3d 1028, 1036 (9th 

Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When 

doing so, “the claimant need not show that her impairment could reasonably be expected to cause 

the severity of the symptom she has alleged; she need only show that it could reasonably have 

caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

“Second, if the claimant meets this first test, and there is no 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.’” Lingenfelter, 504 F.3d at 1036 (quoting 

Smolen, 80 F.3d at 1281).2It is “not sufficient for the ALJ to make only general findings; he 

must state which pain testimony is not credible and what evidence suggests the complaints are 

not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be 

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily 

 

2

The Commissioner disputes that the specific, clear, and convincing standard applies and 

argues that courts must apply the more deferential “substantial evidence” standard of review set 

forth in 42 U.S.C. § 405(g). Ninth Circuit law is clear, however, that “the ALJ may ‘reject the 

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

convincing reasons for doing so.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)

(quoting Lingenfelter, 504 F.3d at 1036). The Court will follow Ninth Circuit law.

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discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing

Bunnell, 947 F.2d at 345-46).

The ALJ may consider objective medical evidence and the claimant’s treatment history, 

as well as the claimant’s daily activities, work record, and observations of physicians and third 

parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d 

at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location, 

duration, frequency, and intensity of the individual’s pain or other symptoms; factors that 

precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any 

medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other 

than medication, the individual receives or has received for relief of pain or other symptoms; and 

any measures other than treatment the individual uses or has used to relieve pain or other 

symptoms. See SSR 16-3p, available at 2016 WL 1119029. The ALJ may not, however, make a 

negative credibility finding “solely because” the claimant’s symptom testimony “is not 

substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883.

Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary 

techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 

statements concerning the symptoms, . . . other testimony by the claimant that appears less than 

candid[,] [and] unexplained or inadequately explained failure to seek treatment or to follow a 

prescribed course of treatment . . . .” Smolen, 80 F.3d at 1284. The ALJ’s credibility decision 

may be upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s testimony 

are upheld. See Batson, 359 F.3d at 1197.

At step one of the credibility assessment, the ALJ found that Claimant’s medically 

determinable impairments could reasonably be expected to cause her alleged symptoms. AR 27. 

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At step two, however, the ALJ found that Claimant’s statements concerning the intensity, 

persistence, and limiting effects of these symptoms are not fully credible. Id. The ALJ reasoned 

that Claimant’s subjective symptom testimony is not supported by the medical record or 

Claimant’s work and educational history. The Court addresses each argument in turn.

1. The Medical Record

The ALJ began her credibility assessment by asserting that the medical evidence does not 

support Claimant’s allegedly debilitating impairments and associated limitations. AR 27. The 

ALJ then engaged in a lengthy recitation of the medical record. See AR 27-31. In the ALJ’s 

description of the medical record, however, the ALJ did not explain which pain testimony she 

found to be not credible and why. An ALJ must “specifically identify the testimony she or he 

finds not to be credible and must explain what evidence undermines the testimony.” Holohan v. 

Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). Although the Commissioner argues that 

portions of the medical record identified by the ALJ contradict Claimant’s subjective symptom 

testimony, a reviewing court may only consider the reasons that the ALJ asserts for discrediting a 

claimant’s subjective symptom testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 

2003). Because the ALJ did not explain why her general description of the medical record 

undermines Claimant’s testimony, her description is not a clear and convincing reason, supported 

by substantial evidence, to discredit Claimant.

After her general description of the medical record, the ALJ asserted specific reasons for 

finding that Claimant’s testimony conflicts with the medical record: (1) Claimant’s allegations of 

IBS are inconsistent with the medical record; (2) Claimant only alleged back and knee pain in the 

context of obtaining and renewing her Oregon medical marijuana card; and (3) Claimant’s 

allegations of severe foot pain are unsupported by the medical record. AR 31-32. The Court 

addresses each of the ALJ’s assertions in turn. 

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a. Claimant’s Allegations of IBS

The ALJ found that Claimant “testified at the hearing to constant stress-related diarrhea 

since 2003, but the medical evidence of record does not support this statement.” AR 31. The ALJ 

cited to a medical report dated November 2011 where the provider stated that Claimant’s IBS 

symptoms were improving due to treatment that included fiber supplements and stress 

management. AR 531. This same report characterized “stress as the biggest factor” in Claimant’s 

IBS symptoms. Id. The ALJ also cited to a March 2012 report in which Claimant complained of 

back pain and severe muscle spasms but denied bowel problems, AR 627-28, and to an 

August 2011 report that states that Claimant had been experiencing abdominal pain symptoms 

for nearly a year and a half, although she has had symptoms as early as 2002. AR 511. The 

August 2011 report additionally stated that although Claimant regularly was taking medication, 

Claimant did not notice significant improvement and was still seeing blood in her stool. Id. The 

ALJ concluded that the record “demonstrates that claimant’s complaints of abnormal bowel 

symptoms were intermittent, and generally well managed through medication,” and that 

Claimant “was and remains able to work despite her allegations” regarding IBS. AR 31-32.

Claimant argues that the ALJ’s finding that Claimant testified to “constant stress-related 

diarrhea since 2003” is not supported by her hearing testimony. See AR 31 (emphasis added). 

The Court agrees. At the hearing, Claimant testified that her IBS is stress-related and “very much 

affected by the kind of work” that she is doing at the time. AR 78. Claimant testified that with 

her current work schedule, her bowels wake her up at about 3:00 a.m. several times per week and 

she has diarrhea until the late morning. Id. According to Claimant, she is able to work part-time 

despite her bowel problems because she wears adult diapers. AR 80. Although Claimant stated 

that her bowel problems began in 2003, she also testified that the severity of her IBS depends on 

how she manages stress and her work schedule. AR 78-80. Thus, the ALJ’s finding that Claimant 

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alleged constant stress-related diarrhea since 2003 is not supported by her hearing testimony, nor 

is Claimant’s hearing testimony regarding her IBS inconsistent with the medical evidence cited 

by the ALJ. Thus, Claimant’s allegations of IBS symptoms are not a specific, clear, and 

convincing reason to discredit Claimant’s credibility.

b. Claimant’s Allegations of Back and Knee Pain

The ALJ found that the medical record shows that Claimant only alleged pain symptoms 

relating to her back and knee in the context of obtaining and renewing her medical marijuana 

card. AR 32. Claimant argues that this finding is factually incorrect. The Court agrees. Although 

Claimant sought and obtained a medical marijuana card in 2010, AR 28, Claimant complained of 

back pain as early as November 2002. AR 278; see also AR 291-92 (April 2005 medical report 

noting that Claimant has a history of lower back pain). Additionally, Claimant began a six-week 

physical therapy regimen in February 2006 for her “[l]ong history of back pain” that “progressed 

to numbness and tingling” in her right leg. AR 328-29. Thus, the ALJ’s finding that Claimant 

only alleged back and knee pain in the context of receiving medical marijuana is unsupported by 

the medical record.

The ALJ also noted that an April 2013 medical report stated that Claimant’s chronic pain 

symptoms are well-controlled with marijuana. AR 32. That same medical report, however, 

described Claimant’s condition as persistent and her pain as “exhausting,” “miserable,” and 

“unbearable.” AR 682. The medical report also states that Claimant was incapacitated by pain 

seven days out of the previous month. Id. An ALJ may not selectively quote from treatment 

records when making a credibility determination. See Holohan, 246 F.3d at 1207-08. Thus, the 

ALJ’s passing reference to the April 2013 medical report is not a specific, clear, and convincing 

reason to discredit Claimant’s subjective pain testimony.

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c. Claimant’s Allegations of Foot Pain

The ALJ found that Claimant’s allegation of severe pain in her left foot is not supported 

by the record. AR 32. The ALJ, however, does not identify any evidence in the record that 

contradicts Claimant’s allegation of severe foot pain. In fact, the ALJ explicitly noted that 

Claimant complained of this pain to a treating physician in January 2012. Id. (citing AR 528).

Ninth Circuit law is clear that “‘the ALJ must identify what testimony is not credible and what 

evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d 1133, 1138 

(9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)) (emphasis added). 

Because the ALJ does not identify what medical evidence in the record conflicts with Claimant’s 

testimony on this point, the ALJ’s finding that Claimant’s allegation of severe pain is 

unsupported by the record is a legally insufficient reason for discrediting Claimant.

In sum, the ALJ did not provide specific, clear, and convincing reasons for finding that 

the medical record undermines Claimant’s credibility.

2. Claimant’s Work and Educational History

The ALJ found that Claimant’s decision to leave work in order to pursue her degree 

reflects negatively on Claimant’s credibility because it demonstrates “the claimant’s ability to 

achieve a long term goal.” AR 31. The ALJ also noted that “prior to going to school, the 

claimant stated she wanted to work one day per week in art therapy, as she now is.”3Id. The ALJ 

concluded that “[t]his demonstrates that the claimant, despite her limitations, is able to attend and 

complete school as well as successfully work.” Id.

The Commissioner argues that the ALJ reasonably found that Claimant decided to leave 

work in order to pursue a degree rather than due to her impairments. The Commissioner cites to 

 

3

The Court notes that the ALJ found that Claimant’s work at LCC did not rise to the 

level of “substantial gainful employment” as defined in the SSR. AR 23.

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Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001), in support of the legal proposition that this is 

a sufficient basis to disregard subjective symptom testimony. See id. at 828 (finding that the ALJ 

did not err in rejecting the claimant’s subjective pain testimony where the claimant “stated at the 

administrative hearing and to at least one of his doctors that he left his job because he was laid 

off, rather than because he was injured”). This was not the reasoning of the ALJ, however. The 

ALJ discounted Claimant’s credibility because Claimant’s decision to leave work reflected her 

“ability to achieve a long term goal.” AR 31. A reviewing court may only consider the reasons 

that the ALJ provides for discrediting a claimant’s subjective symptom testimony. Connett, 

340 F.3d at 874. The Court agrees with Claimant that her ability to achieve a long-term goal and 

to secure a part-time job that does not rise to the level of substantial gainful employment are not,

in and of themselves, specific, clear, and convincing reasons for discrediting Claimant.

The ALJ also found that although Claimant testified to “many accommodations in her 

past job, the record does not support this finding.” AR 31. At the hearing, Claimant expressed 

frustration that although the Oregon DOJ gave other employees accommodations that were 

identical to some accommodations that she had asked for, Claimant did not receive those 

accommodations. AR 82-83. The only special accommodation that Claimant identified receiving 

at the Oregon DOJ was time off to see her psychiatrist during the weekday. AR 84. Although 

Claimant testified that Oregon Vocational Rehabilitation paid for hearing aids and special shoes 

that allowed Claimant to stand on cement floor, Claimant’s hearing testimony is vague as to 

when she received the hearing aids and special shoes. AR 83. Thus, it is unclear that Claimant 

testified to receiving “many accommodations in her past job.” AR 31 (emphasis added).

The ALJ noted that Claimant’s Employee Assistance Program (“EAP”) records do not 

identify what accommodations, if any, were provided to Claimant. AR 31. The EAP records, 

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PAGE 16 – OPINION AND ORDER

however, are actually medical records from appointments Claimant had with Ms. Abelson, a 

Licensed Clinical Social Worker, in 2006 and 2008. See AR 660-678. EAP referred Claimant to 

Ms. Abelson. AR 662. Ms. Abelson, in turn, referred Claimant to Dr. Baldwin for further 

psychological treatment in 2008. AR 677-78. These records do not contradict Claimant’s hearing 

testimony. Additionally, an ALJ cannot disregard testimony “solely because it is not 

substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883. Thus, the 

absence of any discussion in Claimant’s EAP referral records regarding special accommodations 

is not a clear and convincing reason for discrediting Claimant’s testimony.

In sum, the ALJ did not provide specific, clear, and convincing reasons for finding that 

Claimant’s work and educational history undermines her credibility.

B. Remand for Benefits vs. Further Proceedings & Credit-as-True Doctrine

Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to 

remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation 

omitted). 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 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. at 1100. 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 Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

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PAGE 17 – OPINION AND ORDER

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). It has been described by the United States 

Court of Appeals for the Ninth Circuit as:

[The Ninth Circuit has] devised a three-part credit-as-true 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 court 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 court retains the “flexibility” to remand for 

further proceedings even when these elements are satisfied. Id. at 1021; see also Burrell, 

775 F.3d at 1141 (remanding for further 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”).

Further administrative proceedings may serve a useful purpose in this case. For example, 

the Appeals Council admitted additional evidence into the record that has not been considered by 

the ALJ. Additionally, the ALJ appears to have based her evaluation of Dr. Prescott’s and 

Ms. Myers’s opinions in part on her finding regarding Claimant’s credibility and hearing 

testimony.

4 AR 34-35. Thus, outstanding issues remain and the Court remands this case for 

further proceedings. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).

 

4 Claimant suggests that if the Court remand this case for further proceedings, one or 

more of Claimant’s mental health providers should complete a psychiatric review form to be 

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PAGE 18 – OPINION AND ORDER

On remand, the ALJ shall reconsider Claimant’s credibility, taking into account the 

additional medical evidence the Appeals Council admitted into the record. If necessary, the ALJ 

shall also reconsider those portions of Dr. Prescott’s and Ms. Myer’s opinions that the ALJ 

afforded only partial weight to due to the ALJ’s finding regarding Claimant’s credibility, or any 

other portion of the record as required, and formulate a new RFC and determine whether work 

exists in significant numbers in the national economy for a person with Claimant’s limitations.

CONCLUSION

The Commissioner’s decision that Claimant is not disabled is REVERSED and this case 

is REMANDED for further proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 31st day of May, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

 

entered into the record. Claimant, however, cites no authority that would support the procedure 

she suggests for remand in this case. Accordingly, the Court will not order such a form to be 

completed.

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