IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WENDY EREVIA, 6:15-CV-01404-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

MERRILL SCHNEIDER

Schneider Kerr Law Offices

P.O. Box 14490

Portland, OR 97293

(503) 255-9092 

Attorney for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 1 of 17
DAVID MORADO

Regional Chief Counsel

THOMAS M. ELSBERRY 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 901

Seattle, WA 98104

(206) 615-2112

Attorneys for Defendant

BROWN, Judge.

Plaintiff Wendy Erevia seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's application

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court REVERSES the decision

of the Commissioner and REMANDS this matter pursuant to sentence

four of 42 U.S.C. § 405(g) for the immediate calculation and

award of benefits.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for DIB on November 29, 2011,

alleging a disability onset date of May 10, 2011. Tr. 93.1 The

application was denied initially and on reconsideration. An

1

 Citations to the official transcript of record filed by

the Commissioner on February 11, 2016, are referred to as "Tr."

2 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 2 of 17
Administrative Law Judge (ALJ) held a hearing on November 19,

2013. Tr. 34-77. At the hearing Plaintiff was represented by an

attorney. Plaintiff and a vocational expert (VE) testified at

the hearing. 

The ALJ issued a decision on December 3, 2013, in which he

found Plaintiff was not disabled and, therefore, is not entitled

to benefits. Tr. 13-33. Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on

May 29, 2015, when the Appeals Council denied Plaintiff's request

for review. Tr. 1-6. See Sims v. Apfel, 530 U.S. 103, 106-07

(2000). 

BACKGROUND

Plaintiff was born September 17, 1978, and was 34 years old

at the time of the hearing. Tr. 78. Plaintiff has a GED. 

Tr. 47. Plaintiff has past relevant work experience as a

cashier/retail clerk. Tr. 27. 

Plaintiff alleges disability due to fibromyalgia; “back and

shoulder muscles”; celiac sprue; and “body, nerve and muscle

pain.” Tr. 93. 

Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 22-26.

3 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 3 of 17
STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate her

inability "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. 

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district 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 as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

evidence] but less than a preponderance." Id. (citing Valentine,

574 F.3d at 690). 

4 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 4 of 17
The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 404.1520. Each step is potentially

dispositive. 

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v.

5 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 5 of 17
Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

6 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 6 of 17
F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since her May 10, 2011, alleged

onset date. Tr. 18. 

At Step Two the ALJ found Plaintiff has the severe

impairments of fibromyalgia with chronic pain syndrome, neck and

7 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 7 of 17
back problems, and chronic diarrhea. Tr. 18. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, 

appendix 1. Tr. 20. The ALJ found Plaintiff has the RFC to

perform “less than a full range of sedentary work.” Tr. 20. The

ALJ also found Plaintiff could frequently “lift a negligible

amount of weight” and “engage in gross and fine manipulation with

the bilateral upper extremities.” Tr. 20. The ALJ found

Plaintiff could occasionally lift up to ten pounds, climb ramps

and stairs, stoop, kneel, crouch, push, pull, and reach overhead. 

Tr. 20-21. The ALJ found Plaintiff must “be allowed to sit or

stand at 30 to 45 minute intervals for 3 to 5 minutes at a time,

during which period she may remain on task.” Tr. 20. The ALJ

also found Plaintiff “must avoid more than occasional exposure to

extreme cold, vibration, and hazards” and “requires ready access

to restroom facilities.” Tr. 21.

At Step Four the ALJ found Plaintiff cannot perform her past

relevant work. Tr. 27. 

At Step Five the ALJ found Plaintiff can perform jobs that

exist in significant numbers in the national economy. Tr. 27. 

Accordingly, the ALJ found Plaintiff is not disabled.

8 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 8 of 17
DISCUSSION

Plaintiff contends the ALJ erred when he improperly gave

“little weight” to the October 2013 opinion of Plaintiff’s

treating physician, Lesley Garber, D.O.

An ALJ may reject a treating physician's opinion when it is

inconsistent with the opinions of other treating or examining

physicians if the ALJ makes "findings setting forth specific,

legitimate reasons for doing so that are based on substantial

evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751

(9th Cir. 1989)). When the medical opinion of a treating

physician is uncontroverted, however, the ALJ must give "clear

and convincing reasons" for rejecting it. Thomas, 278 F.3d at

957. See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.

1996). 

When "the ALJ fail[s] to provide legally sufficient reasons

for rejecting . . . [a] physician['s] opinion[]," the Court

credits the opinion as true. Benecke v. Barnhart 379 F.3d 587,

594 (9th Cir. 2004). See also Lester, 81 F.3d at 834 (improperly

rejected physician opinion court credited as matter of law).

In November 2012 Dr. Garber completed a Work Restrictions

Form in which he opined Plaintiff could sit up to four hours in

an eight-hour work day with “a 15 minute break of standing or

walking every 30 minutes.” Tr. 488. Dr. Garber also opined

9 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 9 of 17
Plaintiff could stand and walk up to two hours in an eight-hour

work day with “a 30 minute break of sitting every hour.” 

Tr. 488. Dr. Garber opined Plaintiff could occasionally lift and

carry up to ten pounds below or at her waist or chest; use a

“simple grasp”; engage in repetitive hand movements; kneel, bend,

and squat; and never lift or carry above her shoulders, use a

“power grasp,” or climb. Dr. Garber also opined Plaintiff could

work eight hours per day for a maximum of three days. Tr. 489. 

The ALJ gave “great weight” to Dr. Garber’s November 2012

opinion.

In October 2013 Dr. Garber submitted a letter in which he

again opined Plaintiff could sit up to four hours in an eighthour work day. Tr. 523. Unlike in his November 2012 opinion,

however, Dr. Garber did not state Plaintiff required any breaks

“of standing or walking” during her four hours of sitting at

work. In his October 2103 opinion Dr. Garber opined Plaintiff

could stand and walk up to one hour in an eight-hour work day as

opposed to two hours as he opined in November 2012. Tr. 523. In

his October 2013 opinion Dr. Garber again opined Plaintiff could

occasionally lift and carry up to ten pounds below or at her

waist or chest and use a “simple grasp.” Tr. 523. Dr. Garber

again opined Plaintiff should never climb or lift or carry

anything above her shoulders. Tr. 523. Dr. Garber, however,

also opined Plaintiff should never stoop, bend, kneel, crouch, or

10 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 10 of 17
crawl. Tr. 523. Finally, Dr. Garber opined Plaintiff would miss

“two full work days or more per month.” Tr. 523.

The ALJ gave little weight to Dr. Garber’s October 2013

opinion on the grounds that Dr. Garber “appear[ed] to be trying

to obtain insurance or disability for [Plaintiff],” that he

completed his opinion on a Costco Work Restrictions Form, and

that he “opined greater limitations than he previously stated

without noting any increased symptomatology that would explain

the additional restrictions.” Tr. 26.

Plaintiff asserts the ALJ engaged in “unwarranted

speculation” that Dr. Garber misrepresented Plaintiff’s condition

in his October 2013 opinion in an effort to help Plaintiff to

obtain benefits. The Commissioner states in her Response that

she “does not defend the ALJ’s statement that Dr. Garber appeared

to be trying to obtain insurance or disability for Plaintiff.” 

The Ninth Circuit has made clear that the Commissioner “may not

assume that doctors routinely lie in order to help their patients

collect disability benefits.” Lester, 81 F.3d at 832 (quotation

omitted). Although the Commissioner “may introduce evidence of

actual improprieties,” here the Commissioner does not point to

any such evidence and the record does not indicate any

impropriety with respect to Dr. Garber’s October 2013 opinion. 

The Court, therefore, concludes the ALJ erred when he engaged in

unwarranted speculation to support his rejection of Dr. Garber’s

11 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 11 of 17
October 2013 opinion.

The ALJ’s second basis for giving little weight to 

Dr. Garber’s October 2013 opinion is similarly meritless. 

As noted, the ALJ relied in part on the fact that Dr. Garber’s

October 2013 opinion was completed on a Costco Work Restrictions

Form. Dr. Garber’s October 2013 opinion, however, was completed

in letter format. Only Dr. Garber’s November 2012 opinion was

completed on a Costco Work Restrictions Form. The ALJ’s

statement casts doubt on whether the ALJ was actually considering

Dr. Garber’s October 2013 opinion when the ALJ gave it little

weight.

Finally, when evaluating Dr. Garber’s October 2013 opinion,

the ALJ relied on the fact that Dr. Garber “opined greater

limitations than he previously stated [in his November 2012

opinion] without noting any increased symptomatology that would

explain the additional restrictions.” The Commissioner asserts

“an ALJ reasonably rejects a medical opinion that, without

additional evidence or explanation, deviates considerably from an

earlier opinion.” Def.’s Resp. at 8 (citing Tommasetti v.

Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)(incongruity between

treating doctor’s questionnaire responses and her medical records

provided a specific and legitimate reason for rejecting the

doctor’s opinion of claimant’s limitations). A review of 

Dr. Garber’s November 2012 and October 2013 opinions, however,

12 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 12 of 17
reflects little overall deviation between his opinions. For

example, in his October 2013 opinion Dr. Garber reduced the

number of hours that Plaintiff could stand or walk from two to

one, but he also eliminated the need for Plaintiff to take a 

15-minute break every 30 minutes when sitting. Dr. Garber noted

in his October 2013 opinion that Plaintiff should never kneel,

bend, or squat even though he had previously opined that

Plaintiff could occasionally do so. Dr. Garber also did not

include any limitation on Plaintiff’s repetitive hand movements

even though he had previously limited Plaintiff to occasional

repetitive hand movements. Finally, Dr. Garber’s opinion as to

the number of days of work he expected Plaintiff to miss in

October 2013 was actually fewer than he concluded in his November

2012 opinion. As noted, in November 2012 Dr. Garber concluded

Plaintiff would be unable to work more than three days per week

while he opined in his October 2013 opinion that Plaintiff would

only miss two or more days per month. 

In summary, the ALJ’s conclusion that Dr. Garber opined

Plaintiff had greater limitations in his October 2013 opinion

than he previously stated in his November 2012 opinion is

unsupported by the record.

In addition, although the ALJ stated in his conclusion that

Plaintiff’s “[p]hysical exams consistently do not support the

level of pain and functional limitations that . . . Dr. Garber”

13 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 13 of 17
concludes in his October 2013 opinion, the ALJ fails to point to

any specific medical evidence in the record that supports his

conclusory statement. The Commissioner points to medical records

from more than a year before Dr. Garber’s October 2013 opinion to

support the ALJ’s statement, but the Court “cannot affirm the

decision of an agency on a ground that the agency did not invoke

in making its decision.” Stout v. Comm'r, 454 F.3d 1050, 1054

(9th Cir. 2006)(citation and quotation omitted). The Court,

therefore, rejects the Commissioner’s post hoc argument in

support of the ALJ’s rejection of Dr. Garber’s October 2013

opinion.

REMAND

The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely

utility of further proceedings. Harman v. Apfel, 211 F.3d 1172,

1179 (9th Cir. 2000). When "the record has been fully developed

and further administrative proceedings would serve no useful

purpose, the district court should remand for an immediate award

of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004). The decision whether to remand this case for further

proceedings or for the payment of benefits is a decision within

the discretion of the court. Harman, 211 F.3d 1178.

The decision whether to remand for further proceedings or

14 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 14 of 17
for immediate payment of benefits generally turns on the likely

utility of further proceedings. Id. at 1179. The court may

"direct an award of benefits where the record has been fully

developed and where further administrative proceedings would

serve no useful purpose." Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman, 211 F.3d at 1178. The

Court should grant an immediate award of benefits when:

(1) the ALJ has failed to provide legally

sufficient reasons for rejecting . . .

evidence, (2) there are no outstanding issues

that must be resolved before a determination

of disability can be made, and (3) it is

clear from the record that the ALJ would be

required to find the claimant disabled were

such evidence credited.

Id. The second and third prongs of the test often merge into a

single question: Whether the ALJ would have to award benefits if

the case were remanded for further proceedings. Id. at 1178 n.2.

The Court has determined the ALJ erred when he improperly

gave little weight to Dr. Garber’s October 2013 opinion, which,

the Court notes, is not contradicted by the opinions of other

treating or examining physicians on a fully-developed record. In

addition, Dr. Garber opined Plaintiff would miss at least two

days of work per month, and the VE, in turn, testified a claimant

who missed two or more days of work per month would find “it

virtually impossible to maintain competitive employment.” The VE

15 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 15 of 17
also testified there were not any jobs in the national economy

that such an individual could perform. Tr. 76.

After giving the October 2013 opinion of Dr. Garber the

weight required by law, the Court concludes Plaintiff cannot work

on a regular and continuing basis and, therefore, is disabled. 

See 20 C.F.R. §§ 404.1545(b), 416.945(b)(RFC is ability to work

on “regular and continuing basis”). See also SSR 96-8p (“regular

and continuing basis” is “8 hours a day, for 5 days a week, or an

equivalent work schedule”). The Court, therefore, concludes this

matter should not be remanded for further proceedings. See

Schneider v. Comm’r, 223 F.3d 968 (9th Cir. 2000). See also

Reddick, 157 F.3d at 729 ("We do not remand this case for further

proceedings because it is clear from the administrative record

that Claimant is entitled to benefits."); Rodriguez v. Bowen, 876

F.2d 759, 763 (9th Cir. 1989)(if remand for further proceedings

would only delay the receipt of benefits, judgment for the

claimant is appropriate). 

Accordingly, the Court remands this matter for the immediate

calculation and award of benefits to Plaintiff. 

CONCLUSION

For these reasons, the Court REVERSES the decision of

the Commissioner and REMANDS this matter pursuant to sentence

16 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 16 of 17
four of 42 U.S.C. § 405(g) for the immediate calculation and

award of benefits.

IT IS SO ORDERED.

DATED this 29th day of August, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

17 - OPINION AND ORDER

Case 6:15-cv-01404-BR Document 18 Filed 08/29/16 Page 17 of 17