IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MARY PIERCE, 

Plaintiff, 

v. 

CAROLYNW. COLVIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

ACOSTA, Magistrate Judge. 

3:15-CV-00325-AC 

FINDINGS AND 

RECOMMENDATION 

PlaintiffMary Pierce ("Pierce") seeks judicial review ofafinal 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 C01mnissioner's final decision pursuant to 42 U.S.C. § 405(g). 

1- FINDINGS AND RECOMMENDATION 

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Following a review of the record, the court should find the decision of the Commissioner is 

not supported by substantial evidence in the record . Therefore the ALJ's decision should be 

reversed and remanded for further administrative proceedings. 

ADMINISTRATIVE HISTORY 

Plaintiff filed her application for DIB on July 28, 2011, and alleged an amended disability 

onset date of November 30, 2010, due to "cervical fusion with complications, right diaplu·a is 

paralyzed, heart problems/irregular rhythm, clu·onic pain, depression, feel sholi of breath from the 

diaphram problems." Tr. 15, 1871 The application was denied initially and on reconsideration. An 

Administrative Law Judge ("ALJ") held a hearing on Mm·ch 27, 2013. Tr. 35-68. At the hearing 

Plaintiff was represented by an attorney. Plaintiff and a vocational expe1i ("VE") testified. 

The ALJ issued a decision on June 25, 2013, in which she found Plaintiff was not disabled. 

Tr. 15-29. That decision became the final decision of the Commissioner on December 24, 2014, 

when the Appeals Council denied Plaintiffs request for review. Tr. 1-7. 

On February 24, 2015, Plaintiff filed a Complaint in this court seeking review of the 

Commissioner's decision. 

BACKGROUND 

Plaintiff was born in 1957, and was 55 years old at the hearing before the ALJ. Tr. 70, 39. 

She completed high school and some college classes. Tr. 42. She has worked as an office manager. 

STANDARDS 

The initial burden of proofresls on the claimant to establish disability. Molina v. Astrue, 674 

1 Citations to the official transcript of record filed by the Commissioner on July 24, 

2015, are referred to as "Tr." 

2- FINDINGS AND RECOMMENDATION 

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F.3d 1104, 1110 (9th Cir. 2012). To meetthis 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)(l)(A). The ALJ must develop the record when there is ambiguous 

evidence or when the record is inadeqtiate to allow for proper evaluation of the evidence. McLeod 

v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011 )(quoting Mayes v. lvfassanari, 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 suppmied by substantial evidence in the record as a whole. 42 U.S.C. 

§ 405(g). See also Bre;ves 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). 

The ALJ is responsible for detennining 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 ofSoc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the 

evidence is susceptible to more than one rational interpretation, the comi must uphold the 

Commissioner's findings if they are supported by inferences reasonably drawn from the record. 

Ludwig v. As/rue, 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). 

3- FINDINGS AND RECOMMENDATION 

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DISABILITY EVALUATION 

At Step One the claimant is not disabled if the Commissioner determines the claimant is 

engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(I). See also Keyser v. 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. § 

416.920(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. § 416.920(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 his 

limitations. 20 C.F.R. § 416.920(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. 

Taylan'. Comm 'r ofSoc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011 )(citing Fair v. Bowen, 

885 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. § 416.920(a)(4)(iv). See also Keyser, 

4- FINDINGS AND RECOMMENDATION 

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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. § 416.920(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. Lockwoodv. Comm 'r 

Soc. Sec. Adm in., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this burden 

thrnugh 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. § 416.920(g)(l). 

ALJ'S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since her 

November 30, 2010, amended alleged onset date. Tr. 17. Her date last insured is December 31, 

2015. Tr. 15. 

At Step Two the ALJ found Plaintiff has severe impairments of degenerative disc disease of 

the lumbar, thoracic, and cervical spine and disc herniation status post surgery, seizure disorder, and 

right hemidiaphragm paralysis. Tr. 17. 

At Step Tiffee the ALJ determined Plaintiffs impairments did not equal in severity a listed 

impairment, and found Plaintiff retained the RFC to perform sedentary work with only occasional 

overhead reaching with the right arm. Tr. 23. She can not work around dangerous machinery or at 

unprotected heights. Id 

At Step Four, the ALJ found Plaintiff was able to perform her past relevant work as an office 

manager. Tr. 29. The ALJ concluded that Plaintiff was not disabled. 

5- FINDINGS AND RECOMMENDATION 

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THE MEDICAL EVIDENCE AND TESTIMONY 

I. The Medical Record 

The parties are familiar with the extensive medical record. It will be set out below as 

relevant. 

II. Testimony at March 27, 2013 Hearing 

Plaintiff had surge1y in November 2009. Tr. 38. She continued to work after her surgery 

part-time, about 20 hours a week, until she was laid off in November 2010. She last worked as an 

office manager at a construction company, doing accounting functions, the payroll, human resources, 

and taxes. Tr. 42. She worked at the company for 11 years. Plaintiff has prior work in accounting. 

Plaintiff was laid off because the company was not doing well and the owner was tiying to 

reduce expenses. Tr. 43. She was not a dependable employee. After she was laid off Plaintiff 

received unemployment benefits and sought work in accounting. She made four or five applications 

per week, some of which were for full-time work and some of which were for part-time work. Tr. 

45. Plaintiff received unemployment benefits for almost two years, though she testified she "would 

not be able to work a regular job like I used to do." Plaintiff said she is not physically capable of 

holding a regular job. Tr. 45. Plaintiff testified that she has a strong work ethic so she "was willing 

to tty for a job and see if I could do it." Tr. 46. She received unemployment insurance benefits 

through June 2012, and took classes on resume writing and interview skills. 

Plaintiff lives in a house with the bedroom upstairs and the bathroom in the basement. Tr. 

47-48. When she goes down the stairs "quite often my heart just really races and I get very flushed 

and lightheaded and I have to just rest until my heart rate goes back down." Tr. 48. Plaintiff quit 

a position on her church administrative council after 15 years because she could not commit to the 

6- FINDINGS AND RECOMMENDATION 

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monthly meetings. She "didn't !mow what my health would be like ifl could attend or not." Id. She 

has trouble breathing because of a paralyzed diaphram, and can no longer sing or yell. She has 

tremors in both hands since 2009 that make it difficult to use a keyboard or a telephone. Plaintiff 

used to walk with a group for two miles before work, but can no longer keep up with the group. Tr. 

49. In July 2011 Plaintiff was walking seven miles a day, but she has become weaker over time and 

can no longer walk that far. Tr. 50. 

Plaintiff has a history of seizures since childhood, and she was told in October 2012 not to 

drive until she has been seizure free for six months. In March 2012 she was able to walk two miles 

four days a week. Tr. 54. For the past year Plaintiff takes morphine for chronic pain, as well as 

percocet. For transportation she gets rides with friends. In the past year she is unable to do art 

projects because her hands tremble. She does laundry and cooking, but her husband puts laundry 

away and cleans the kitchen. She does about one half hour of yard work at a time. She reads and 

rarely uses a computer. Tr. 58. Her memmy is poor and she repeats herself. Plaintiff is "extremely 

fatigued a lot where I can sleep a lot, like for a couple of days. And that usually is a couple of times 

a month." Tr. 60. She has poor endurance. Her pain is in her neck and upper back, and has been 

at the same level since her surge1y in 2009. Her surgeon suggested more surgery but she declined 

because the last surgery did not go well. 

DISCUSSION 

Plaintiff contends the ALJ erred by (1) finding Plaintiff less than fully credible; (2) failing 

to credit the opinion of the treating physician; and (3) rejecting lay witness testimony. 

I. Credibility 

The Ninth Circuit has developed a two-step process for evaluating the credibility of a 

7- FINDINGS AND RECOMMENDATION 

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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." Linge11felter v. Astrue, 504 

F.3d 1028, 1036 (9th Cir. 2007). 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, 80 F.3d at 1282. 

Second, "if the claimant meets the 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."' Lingerifelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d 

at 1281). It 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. 

Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be "sufficiently specific to pe1mit 

the reviewing comi to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." 

Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. l 995)(citingBunnell v. Sullivan, 947 F.2d 341, 345-46 

(9th Cir. 199l)(en bane)). 

The ALJ may consider objective medical evidence and the claimant's treatment histmy, as 

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

pmiies with personal lmowledge 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 

8- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00325-AC Document 32 Filed 09/06/16 Page 8 of 21
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 96-7p, 

available at J996 WL 374J86. 

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

of credibility evaluation, such as the 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 J284. 

The ALJ found Plaintiff not fully credible, stating "her statements concerning her incapacity 

are not borne out by the objective evidence or by the consistency of her own reported and 

demonstrated functional ability." Tr. 24. 

A. The Objective Evidence Supports Plaintiff's Pain Complaints 

The objective evidence includes a Februmy 20J 0 cervical MRI which showed post-operative 

changes at C3-4 and C4-S with no evidence of nerve root or disc herniation or impinging osteophyte 

at either level. Tr. 334. At TJ-2 there was a large lateral disc herniation/osteophyte complex that 

impinged on the right side of the spinal cord with severe impingement of the right T2 nerve root. 

Lumbar MRI scan showed a disc osteophyte complex at L4-S with moderate facet hypertrophy and 

an associated L4-5 annular tear causing flattening of the thecal sac and bilateral neural foraminal 

narrowing at L4-S. At LS-SJ there was a moderate broad-based disc osteophyte complex causing 

moderate bilateral neural foraminal narrowing at LS-S l with impingement of the exiting LS nerve 

roots at LS-SJ and the L4 and LS nerve roots at L4-S. Id. Plaintiff had bilateral chest numbness, 

and right T2 radiculopathy with pain, numbness, and paresthesias in the right arm. 

9- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00325-AC Document 32 Filed 09/06/16 Page 9 of 21
In May 2010 Plaintiff was seen by Wayne Strauss, M. D., Ph.D., a pulmonologist. Tr. 940-

42. Dr. Strauss reviewed chest x-rays from 2006 and 2007, a January 2010 CT abdominal scan, 

chest x-rays from January 2010, and fluroscopy loops from a Janumy 2010 sniff test. Tr. 941. Dr. 

Strauss concluded Plaintiff had "new paretic right hemidiaphragm most likely associated with her 

recent cervical spine surge1y" with exertional dyspnea and activity limitation. Id. 

On this record, inconsistency with the objective medical evidence is not a clear or convincing 

reason to find Plaintiff less than fully credible. 

B. Plaintiff's Reported Complaints and Functions Are Consistent With Her Testimony 

The ALJ cites multiple chmi notes in which Plaintiff reported her medications reduced or 

relieved her pain. Tr. 25. However, the ALJ fails to cite numerous instances where Plaintiff 

repmied inadequately controlled pain. The ALJ also found Plaintiffs credibility undermined by her 

ability to remain active. Tr. 26. 

In January 2011 Plaintiff reported increased pain with increased activity as she cared for her 

husband after his bypass surgery. Tr. 535. Plaintiff had more pain in general and in the left 

shoulder, with decreased range of motion. Dr. Carroll diagnosed left rotator cuff tendinitis and 

injected the shoulder with Kenalog and Marcaine. Tr. 536. In May 2011 Plaintiff reported 

increased pain in her knees and hands. Tr. 534. In July Plaintiff reported fatigue and she did not feel 

"mentally sharp," and Dr. Carroll noted "probable medication side effects," and recommended 

tapering Soma. Tr. 528, 525. 

On September 1, 2011, Plaintiff completed an Adult Function Report in which she reported 

trouble sleeping, fatigue, and pain. Tr. 199-207. She had to rest when her blood pressure spiked. 

She did household chores and worked in the garden for ten to 15 minutes. Tr. 200. She prepared 

I 0- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00325-AC Document 32 Filed 09/06/16 Page 10 of 21
simple meals three - to - four times a week, did light house work for one to two hours, shopped once 

a week for an hour, could lift ten pounds, went to church, and could walk about ten blocks before 

resting for five minutes. 201-02. She could pay attention for 15 -to - 30 minutes, and did not finish 

what she started. Her medications, including oxycodone, morphine, and soma caused fatigue. 

Plaintiff began treatment at the chronic pain clinic on September 14, 2011. Tr. 1088-93. 

Thomas Schrattenholzer, M.D. noted medication side effects included fatigue, nausea, and 

confusion. Tr. I 089. Plaintiff was short of breath, and was positive for myalgias, back pain, joint 

swelling, arthralgias, and gait problems. Tr. 1089-90. Plaintiff had tremors, weakness, numbness 

and headaches. Tr. 1090. She had sleep disturbance, dysphoric mood, and decreased concentration. 

Id. The following day Dr. Carroll noted Plaintiff went to the pain clinic because her pain was "not 

very well controlled. She continues the MS Cantin 15 mg b.i.d. and takes 4-5 mg oxycodone tabas 

a day. Even with that, she often has days where she has such neck, upper back and arm pain that she 

can even feel sick to her stomach." Tr. 599. Dr. Carroll noted increased bilateral shoulder aching 

that seemed to occur when he switched her from Lipitor lo simvastatin. Dr. Carroll had Plaintiff stop 

the simvastatin. 

In November 2011 Plaintiff reported to the pain clinic increased pain with window washing, 

gardening, and vacuuming, but increased mental clarity. Tr. I 052, 1041. In November she was laid 

off from her part-time job. Tr. 43. Plaintiff applied for and received unemployment benefits 

through June 2012. Tr. 26. She was "much improved" in December on Suboxone, but had 

"constant" pain in March, made worse by "sitting, lifting her arms above her shoulders, and 

walking." Tr. 597, 1010, I 012. Dr. Carroll noted dypsnea, and although Plaintiff was walking two 

miles four days a week, she felt unable to take a deep breath. Tr. 846. Suboxone was "terribly 

11- FINDINGS AND RECOMMENDATION 

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sedating," and Plaintiff slept 12 - to - 14 hours a night with excessive daytime sleepiness, and rated 

her pain at six or seven on a ten - point scale. Tr. 847. By July 2012 Plaintiff stopped taking 

Suboxone as she could not afford it, and asked Dr. Carroll to represcribe MS Conlin. Tr. 834. She 

reported "continuous pain although the medication helps. On most days she has reasonable relief 

but she still has some days it is just terrible-with bad neck pain." Tr. 835. Dr. Carroll prescribed 

naproxin for hip bursitis. Plaintiff reported the return of epileptic seizures previously controlled on 

Depakote. She had decreased walking due to pain. Tr. 836. 

Plaintiff continued to report inadequate pain control in August 2012. Tr. 820. She had 

aching pain in her hips, and additional seizures. Tr. 811. In September Plaintiff had episodic chest 

pain and palpitations with exe1iion, and bilateral hip pain worse with prolonged walking. Tr. 770. 

Dr. Carroll told her to avoid "any strenuous physical activity" and "prolonged walking." Tr. 771. 

In November Dr. Carroll noted Plaintiff increased her oxycodone with increased activity, and she 

repmied episodes of tachycardia. Tr. 723. Dr. Carroll noted "chronic pain after failed neck surge1y." 

Tr. 724. 

On Janumy 7, 2013, Plaintiff was seen in the emergency room with altered mental status 

arising from a seizure disorder. Tr. 924-25. The following week Dr. Carroll noted increased 

depression, and on February 7 Plaintiff was treated in the emergency room for Depakote toxicity, 

with confusion and somnolence. Tr. 697, 610. On March 15, 2013, treating neurologist Christopher 

J. Ginocchio, M.D., found Plaintiffs epilepsy controlled on Keppra. Tr. 945. 

The hearing before the ALJ occurred on March 27, 2013. Tr. 35-69. In April and May 

Plaintiff saw Dr. Cmrnll three times for severe right hip pain umelieved by injections. Tr. 1288-90. 

In mid-June Dr. Carroll noted Plaintiff was "not doing well at all." Tr. 1292. The ALJ's decision 

12- FINDINGS AND RECOMMENDATION 

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was issued on June 25. On July 4 Dr. Carroll noted MRls revealed extensive osteonecrosis of both 

hips. Tr. 1293, 1270. Orthopaedic surgeon D. Clll'istopher Hikes, M.D., examined Plaintiff and 

reviewed imaging studies and concluded Plaintiff had"[ d]ebilitating painfol avascular necrosis of 

the left hip. The size of this lesion is not amenable to core decompression and the patient is quite 

disabled with this." Tr. 1273. Plaintiff had a hip replacement on July 29, 2013. Tr. 1275. The 

Appeals Council denied Plaintiffs request for review on December 24, 2014. Tr. 1-4. 

One does not need to be 'utterly incapacitated' in order to be disabled." Verligan v. Halter, 

260 F.3d 1044, 1050 (9th Cir. 2001). A claimant's activities of daily living may discredit his 

testimony about symptoms only when either (I) the activities "meet the threshold for transferable 

work skills" or (2) the activities contradict his testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 

2007). Plaintiffs activities do not contradict her testimony, nor do they meet the threshold for 

transferable work skills. 

On this record, Plaintiffs symptom reports and activities do not constitute a clear and 

convincing reason to find her less than fully credible. The ALJ's credibility determination should 

be found not supported by substantial evidence. 

II. The Medical Evidence 

Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(l); 

416.927( e )(1 ). If no conflict arises between medical source opinions, the ALJ generally must accord 

greater weight to the opinion of a treating physician than that of an examining physician. Lester v. 

Chater, 81 F.3d 821, 830 (9th Cir. 1995). More weight is given to the opinion of a treating physician 

because the person has a greater opportunity to !mow and observe the patient as an individual. Orn 

v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). In such circumstances the ALJ should also give greater 

13- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00325-AC Document 32 Filed 09/06/16 Page 13 of 21
weight to the opinion of an examining physician over that of a reviewing physician. Id. If a treating 

or examining physician's opinion is not contradicted by another physician, the ALJ may reject it only 

for clear and convincing reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 

1067 (9th Cir. 2006) (examining physician). Even if one physician is contradicted by another 

physician, the ALJ may not reject the opinion without providing specific and legitimate reasons 

suppmied by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. 

The opinion of a nonexamining physician, by itself, is insufficient to constitute substantial evidence 

to reject the opinion of a treating or examining physician. Widmark, 454 F.3d at 1066 n.2. The ALJ 

may reject physician opinions that are "brief, conclusory, and inadequately supported by clinical 

findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

Plaintiff contends the ALJ erred in rejecting Dr. Carroll's opinion. Dr. Carroll has been 

Plaintiffs treating physician since September 2004. Tr. 1207. Dr. Canoll completed a Physical 

Residual Functional Capacity Report (PRFCP) in Februmy 2013. Tr. 921-22. He opined that 

Plaintiff could lift and /or carry less than ten pounds occasionally and could not lift or carry any 

weight frequently. He found Plaintiff could stand and/or walk for less than two hours and sit for 

about six hours in an eight-hour workday with normal breaks. Dr. CmToll found Plaintiff had 

limitations pushing and/or pulling with the upper extremities. He opined that Plaintiff could 

occasionally balance, stoop, and lmeel. Plaintiff could never crouch, crawl, or climb ramps, stairs, 

ladders, ropes or scaffolds. He found Plaintiff could only occasionally perform the manipulative 

activities of reaching in all directions, handling or fingering, concluding that Plaintiff had 

experienced such limitations since November 2009 and that they are permanent. Id. Dr. Carroll said 

Plaintiff should avoid frequent exposure to extreme cold, extreme heat, wetness, humidity, noise, 

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vibration, fumes, odors, dusts, gases, poor ventilation, and hazards. 

Dr. Ginocchio found similar limitations in a Janumy 2013 PRFCP. Tr. 606-07. Dr. 

Ginocchio opined that Plaintiff could lift and/or carry less than ten pounds occasionally and 

frequently. He said Plaintiff could stand and/or walk for less than two hours in an eight-hour 

workday and needed to periodically alternate between sitting and standing to relieve pain and 

discomfort. Dr. Ginocchio stated that Plaintiff had limitations pushing and/or pulling with the upper 

and lower extremities. Plaintiff should never balance or climb ramps, stairs, ladders, ropes or 

scaffolds. Dr. Ginocchio opined that Plaintiff could occasionally stoop, kneel, crouch and crawl. 

Plaintiff could only occasionally perform reaching in all directions or fingering, and could never 

perform overhead handling. Plaintiff should avoid exposure to extreme cold, wetness, fumes, odors, 

gases, poor ventilation, and hazards. The limitations arose out of seizures and cervical disc joint 

disease and were expected to be permanent. 

The ALJ noted both opinions and gave them "little weight." Tr. 27-28. The ALJ said Dr. 

Carroll did not cite objective findings or provide a significant rationale in supp011 of the limitations. 

Tr. 28. As set out above, there are multiple objective findings of severe impairments including 

multi-level spine issues, a pararetic right hemidiaphram with dypsnea on exertion, a seizure disorder, 

and bilateral osteonecrosis of the hips, although the documentation regarding Plaintiff's hip 

impairments was not before the ALJ. 

Dr. Carroll treated Plaintiff for more than mne years with at least 50 face-to-face 

examinations. His records contain detailed reports of Plaintiff's complaints as well as clinical 

observations. Tr. 590 ("She has no tremor at this time in her hands."), 579 ("She looks tired and did 

get tearful."), 571 ("She is hoarse ... tired appearing ... I walked her around the office at a regular 

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Case 3:15-cv-00325-AC Document 32 Filed 09/06/16 Page 15 of 21
pace - her 02 sat remained [normal] 96-97% but her [heart rate] rose to 130 ... dypsnea on 

exertion."), Tr. 1144 ("The right hand shows some livedo changes in her right thumb .... She is 

mildly hoarse."), Tr. 567 ("There is mottling over the thumb and the radial aspect and tip of the 

index finger. She has an intact radial pulse - but it seems weaker than on the left."), Tr. 1134 ("She 

has edema to her knees [bilaterally]."), Tr. 1108 ("She looks tired and slightly pale."), Tr. 1288 ("She 

looks to be in pain.") Tr. 1293 ("She is anxious."). Considering the entire medical record, Dr. 

Carroll's opinion is supported by objective signs and clinical findings. 

The Commissioner argues that the ALJ reasonably found Plaintiffs neck and upper right 

extremity symptoms improved following her neck surgery, and cites a January 2010 "essentially 

negative" MRI of the neck. Tr. 307. The ALJ failed to consider the Februmy 2010 MRI which 

indicated a "mild broad-based disc bulge or disc osteophyte complex with moderate articular facet 

degeneration at L4-5 and LS-SI resulting in flattening of the ventral thecal sac with mild bilateral 

neural foraminal nan-owing" and a small central annular tear at L4-5. Tr. 355. As set out above, the 

medical records indicate some waxing and waning of Plaintiffs symptoms but do not support the 

ALJ's conclusion that Plaintiffs symptoms improved after her 2009 cervical fusion. 

The Commissioner contends the ALI reasonably found Dr. Carroll's failure to explain the 

objective findings that support his PRFCP conclusions undermined the reliability of his opinion. 

On the PFCCP form under "diagnosis" Dr. Carroll wrote "chronic pain after cervical fusion." Tr. 

922. It is not reasonable to expect a treating physician to detail the objective and clinical findings 

supporting an opinion where, as here, the ALI had access to the physician's entire treatment record. 

The ALJ noted a disparity between Dr. Carroll's assessment of manipulative limitations and 

the lack of objective findings to support this assessment, with the exception of restrictions on 

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reaching overhead on the right. Tr. 28. The Commissioner notes Plaintiff denied limitations in 

"using hands" in her September 2011 application. Tr. 204. The Commissioner cites medical records 

in which Plaintiff's grip strength was normal and fine motor movements were intact. However, 

normal grip strength and fine motor control are not necessarily inconsistent with manipulative 

limitations, especially where, as here, manipulative limitations arise from chronic pain resulting 

from cervical surgeiy. 

The ALJ found Dr. CmToll' s assessment inconsistent with Plain ti ff s claimed abilities, noting 

Plaintiff reported an ability to lift up to ten pounds. Tr. 28,202. Dr. Cmrnll opined Plaintiff was 

limited to lifting less than ten pounds occasionally. To the extent this is an inconsistency, it does not 

amount to a specific or legitimate reason to reject Dr. Carroll's opinion. The ALJ noted an 

inconsistency between Dr. Carroll's opinion and Plaintiffs reports of walking for exercise. 

Considering the whole medical record, Plaintiffs reports of walking vary but decrease over time to 

the point where Dr. Canoll advised her to avoid prolonged walking in September 2012. Ti-. 771. 

On this record, the ALJ's rejection of the treating physician's opinion should be found not 

supported by specific, legitimate clear or convincing reasons, and not supp01ied by substantial 

evidence. 

Ill. Lay Testimony 

The ALJ has a duty to consider lay witness testimony. 20 C.F.R. § 404.1513(d); 

404.1545(a)(3); 416.945(a)(3); 416.913(d); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 

Friends and family members in a position to observe the claimant's symptoms and daily activities 

are competent to testify regarding the claimant's condition. Dodrill v. Shala/a, 12 F.3d 915, 918-19 

(9th Cir. 1993). The ALJ may not reject such testimony without comment and must give reasons 

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germane to the witness for rejecting her testimony. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 

1996). However, inconsistency with the medical evidence may constitute a germane reason. Lewis, 

236 F.3d at 512. The ALJ may also reject lay testimony predicated upon the testimony of a claimant 

properly found not credible. Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009). 

A. David Pierce 

Mr. Pierce is Plaintiff's husband. He completed an Adult Function Report in September 

2011. Tr. 207-14. Mr. Pierce said Plaintiff had conditions limiting her ability to work including 

insomnia, constant fatigue, chronic pain (neck, back and legs), rapid pulse, high blood pressure, 

memory loss, and breathing problems. He reported Plaintiff"only has the energy to prepare simple 

meals" three to four times a week. Tr. 209. At his encouragement, she did some light dusting and 

sweeping for about one to two hours once a week. Mr. Pierce reported Plaintiff cannot do much yard 

or house work because she becomes short of breath. She grocery shops once a week for an hour "but 

cannot lift much." Tr. 210. Plaintiff gardened for ten to fifteen minutes at a time because of pain 

and shortness of breath. She went to church and book club, but required reminders. Tr. 211. Her 

ability to socialize was limited because she was often ill and in pain. 

Mr. Pierce said Plaintiff was limited in lifting, bending, reaching, walking, talking, stair 

climbing, memory, completing tasks, concentration, understanding, and following instructions. Tr. 

212. She could lift no more than ten pounds, could not bend over all the way, had pain with 

reaching, and limited endurance for walking and stair climbing. Plaintiff speech was sometimes 

slurred, she had short term mernmy loss and trouble completing tasks with poor concentration. Mr. 

Pierce said she could walk five blocks before requiring five minutes rest. Her medications caused 

her to be tired and listless with memmy loss. Tr. 213. 

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The ALJ gave Mr. Pierce's function report "little weight," noting Plaintiff reported in her 

September 2011 function report that she could walk ten blocks, instead of five, before needing to 

rest. Tr. 28. The ALJ noted Plaintiffs July 2011 rep01i of walking seven miles a day. Tr. 28, 528. 

Finally, the ALJ noted Mr. Pierce reported Plaintiff had problems with written instruction at times, 

but Plaintiff did not assert that limitation. Arguably, the ALJ identified germane reasons to discourit 

Mr. Pierce's observations regarding Plaintiffs ability to walk. The ALJ did not, however, identify 

any germane reason to discount the balance of Mr. Pierce's report, which is consistent with the 

reports from the treating physician and the Plaintiff. On this record, the ALJ's assignment of"little 

weight" to Mr. Pierce's opinion is not supported by germane reasons and should be found not 

supported by substantial evidence. 

B. Michael Mather 

On Februmy 22, 2013, Michael Mather, Plaintiffs former employer, submitted a written 

statement in which he stated Plaintiff worked for him since 1999 as the office manager and 

bookkeeper in a three - employee office. Tr. 249. Mr. Mather said Plaintiff was self- motivated and 

required little supervision. "Because of this she was given flexibility on her days and hours of work 

which was required due to her medical conditions, there were many times she came to work when 

she should have been under a doctor's care and on several occasions we would drive her and her car 

home." Id. Mr. Mather said Plaintiffs health issues deteriorated after her last surgery and there 

were "times she appeared to be in so much pain I couldn't believe she was at work .... "Tr. 249. 

During the 20 I 0 recession Mr. Mather was forced to eliminate her position. He opined that 

Plaintiffs medical problems would make it "next to impossible for her to maintain a regular 9 to 5 

job although knowing her she would !Iy. Id. 

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The ALJ gave Mr. Mather's statement "little weight," noting Plaintiff continued working for 

a year after the November 2009 surgery, and she was laid - off for economic reasons rather than an 

inability to do the job, concluding "the evidence shows the claimant's pain medications are effective 

in managing her pain." Tr. 28. 

Plaintiffs ability to work, part-time, after her surgery, with difficulty, is not evidence that 

she could perform substantial gainful activity after her November 2010 alleged onset date. As set 

out above, substantial evidence does not support the ALJ's conclusion that Plaintiffs medications 

were effective inmanaging her pain. The ALJ's rejection of Mr. Mather's statement is not supported 

by germane reasons and should be found not suppotied by substantial evidence. 

RECOMMENDATION 

The ALJ's rejection of plaintiffs testimony, the treating physician's opinion, and lay 

testimony should be found erroneous for the reasons set out above. Because the ALJ found at Step 

Four that Plaintiff is capable of performing her past relevant work as an office manager, there is no 

evidence as to whether plaintiff has the ability to perform other work in the national economy. 

Therefore, outstanding issues must be resolved before a determination of disability can be made. 

Accordingly, this matter should be remanded pursuant to Sentence 4 of 42 U.S.C. § 405(g) 

for fu1iher proceedings in accordance with this Findings and Recommendation. 

II I 

II I 

II I 

I II 

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SCHEDULING ORDER 

The above Findings and Recommendation will be referred to a United States District Judge 

for review. Objections, if any, are due fourteen (14) days from service of the Findings and 

Recommendation. Ifno Objections are filed, review of the Findings and Recommendation will go 

under advisement on that date. If Objections are filed, a response to the objections is due fourteen 

(14) days after being served with a copy of the Objections, and the review of the Findings and 

Recommendation will go under advisement on that date. 

Ji DATED this(£ "day of September, 2016. 

Jolm!V\ Acosta 

Unit~(!_;States Magistrate Judge 

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