IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LISA ELLEFSON, 

Plaintiff, 

v. 

CAROLYNW. COLVIN, 

Acting Commissioner of the Social Security 

Administration, 

Defendant. 

PANNER, Judge: 

Civ. No. 3:15-cv-00464-PA 

OPINION AND ORDER 

Plaintiff Lisa Ellefson brings this action for judicial review of the final decision of the 

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

Disability Insurance Benefits under the Social Security Act ("Act"). For the reasons set forth 

below, the Commissioner's decision is reversed and this case is remanded for further 

proceedings. 

1 - OPINION AND ORDER 

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PROCEDURAL BACKGROUND 

On August 31, 2011, plaintiff applied for Disability Insurance Benefits. Tr. 140:-46. Her 

application was denied initially and upon reconsideration. Tr. 86-90, 92-95. On May 2, 2013, a 

hearing was held before an Administrative Law Judge ("ALJ"), wherein plaintiff was 

represented by her non-attorney friend and testified, as did a vocational expert ("VE"). Tr. 34-56. 

On June 24, 2013, the ALJ issued a decision finding plaintiff not disabled within the meaning of 

the Act. Tr. 22-29. After the Appeals Council denied her request for review, plaintiff filed a 

complaint in this Court. Tr. 1-4. 

STATEMENT OF FACTS 

Born on December 23, 1961, plaintiff was 48 years old on the alleged onset date of 

disability and 51 years old at the time of the hearing. Tr. 140. Plaintiff left school after 

completing the tenth grade. Tr. 38-39, 161. She worked previously in customer service at garden 

centers. Tr. 162. Plaintiff alleges disability as ofNovember 15, 2010, due to fibromyalgia, 

hepatitis C, depression, and degenerative disc disease of the shoulders, neck, and back. Tr. 160. 

STANDARD OF REVIEW 

The court must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record. Hammock v. 

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

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

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

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

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

2 - OPINION AND ORDER 

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

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

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

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

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

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

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

The Commissioner has established a five step sequential process for determining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, 

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

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

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

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

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

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

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

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

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

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

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

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

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

3 - OPINION AND ORDER 

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

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

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

THE ALJ'S FINDINGS 

At step one of the five step sequential evaluation process outlined above, the ALJ found 

that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 24. 

At step two, the ALJ determined plaintiff had the following medically determinable, severe 

impairments: "fibromyalgia, degenerative disc disease, and status post fusion." Id. At step three, 

the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the 

requirements of a listed impairment. Tr. 25. 

Because she did not establish presumptive disability at step three, the ALJ continued to 

evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff 

had the residual functional capacity ("RFC") to "perform the full range of light work." Id. 

At step four, the ALJ determined plaintiff could perform her past relevant work as a 

garden center worker and therefore was not disabled under the Act. Tr. 28. 

DISCUSSION 

Plaintiff argues that the ALJ erred by: (1) finding her not fully credible; (2) improperly 

weighing medical evidence from her treating doctor, Michael Bower, M.D.; and (3) rejecting lay 

testimony from her former employer, Brett Schoppert. 

I. Plaintiff's Testimony 

Plaintiff asserts that the ALJ wrongfully discredited her subjective symptom testimony 

concerning the severity of her impairments. When a claimant has medically documented 

4 - OPINION AND ORDER 

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impairments that could reasonably be expected to produce some degree of the symptoms 

complained of, and the record contains no affirmative evidence of malingering, "the ALJ can 

reject the claimant's testimony about the severity of ... symptoms only by offering specific, 

clear and convincing reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 

1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the 

ALJ must "state which ... testimony is not credible and what evidence suggests the complaints 

are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered 

must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not 

arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 

1995) (internal citation omitted). If the "ALJ' s credibility finding is supported by substantial 

evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 

F.3d 947, 959 (9th Cir. 2002) (citation omitted). 

At the hearing, plaintiff testified that she is primarily unable to work due to an inability to 

use her arms. Tr. 39, 46-47. Specifically, plaintiff endorsed pain due to calcium tendonitis in 

both shoulders; her doctor attempted to remove the bone spurs on the left shoulder but the 

surgery "went horribly wrong." Tr. 39-40. Additionally, plaintiff reported lingering pain in her 

neck following major fusion surgery that transpired in 2001, pain in her lower back related to 

degenerative disc disease, and "achy ankles and wrists [and] muscle pain [from] the 

fibromyalgia." Tr. 44. Plaintiff also described memory and concentration problems, which she 

attributed to "fibro fog" and medication side-effects. 1 Tr. 42, 48. 

1 In addition to prescription medications for depression, high cholesterol, and breast cancer, 

plaintiff takes eleven Methadone, four Oxycodone, four Soma, and four Valium per day. Tr. 43, 

163, 203-04. 

5 - OPINION AND ORDER 

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Plaintiff described her daily activities as follows: 

I wake up, and I'm - it's hard to get out of bed, and I'm very stiff. I'm in a lot of 

pain until I take my medication, and then I lay down until it takes effect. And then 

I get up, and, you know, I try to do a little housework. I take a lot of breaks. I sit 

down. I sweat a lot, and then I usually take a nap. I don't have much of an 

appetite [and am nauseous from my medications] ... I can't go to physical 

therapy because it's too painful. I've tried. I check the mail, I have a little 

Chihuahua dog that I walk down the street and back. 

Tr. 45-46, 48. In the afternoon she drives less than a mile to pick up her adult son from work and 

"make[s] dinner maybe twice a week." Tr. 40-42. Her husband does the remainder of the 

household chores, including all the shopping. Id 

Plaintiff explained that she last worked for approximately three weeks during the 2011 

holiday season, "tak[ing] money" at a Christmas tree lot in California "to help [her friend] 

because he didn't trust the guys that he hired." Tr. 42, 45. She did not get paid for this work but 

instead her friend gave her "a bunch of plants" from his nursery. Id 

After summarizing her hearing testimony, the ALJ determined that plaintiff's medically 

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

but her statements regarding the extent of these symptoms were not fully credible2 due to her 

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

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

symptom statements are consistent with the record as a whole. See SSR 16-39, available at 2016 

WL 1119029 (superseding SSR 96-7p). The ALJ's June 2013 decision was issued almost three 

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

ruling or whether it applies retroactively. Compare Ashlock v. Colvin, 2016 WL 3438490, *5 n. l 

(W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued prior to 

the effective date), with Lockwoodv. Colvin, 2016 WL 2622325, *3 n.1 (N.D. Ill. May 9, 2016) 

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

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

resolve this issue. 

6 - OPINION AND ORDER 

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work after the alleged onset date and activities of daily living, as well as the lack of 

corroborating medical evidence. Tr. 25-27. 

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

selling Christmas trees in California. Tr. 27. Yet plaintiff performed this work less than twenty 

hours per week, for a friend, for less than a month. Tr. 42, 45. Plaintiff was unable to continue in 

this position due to her alleged impairments and has not been to California since. Tr. 45, 47. 

Accordingly, because she earned less than substantial gainful levels (and may have been engaged 

in a sheltered workshop), it is undisputed that this work did not satisfy the ALJ' s step-one 

inquiry or qualify as past relevant work. Tr. 24, 28. The fact that plaintiff attempted to work parttime for less than one month, but was ultimately unsuccessful, does not impugn her credibility. 

Tr. 47, 175, 355; see also Lester v. Chafer, 81F.3d821, 833 (9th Cir. 1995) ("[o]ccasional 

symptom-free periods - and even the sporadic ability to work- are not inconsistent with 

disability"). 

The ALJ also found that plaintiffs activities of daily living belied her subjective 

symptom testimony. Tr. 27. In support of this conclusion, the ALJ cited to evidence 

demonstrating that plaintiff feeds her dog and takes it on short walks, engages in limited 

household chores with her husband's help, waters plants, drives a car, watches television, "had 

been pulling weeds," and "cared for two boys." Id. An ALJ may discredit a claimant's testimony 

when he or she reports activities of daily living that "are transferable to a work setting" or 

"contradict claims of a totally debilitating impairment." Molina v. Astrue, 674 F.3d 1104, 1113 

(9th Cir. 2012) (citations omitted). 

7 - OPINION AND ORDER 

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As a preliminary matter, the Court notes the majority of evidence that the ALJ relied on 

is entirely consistent with plaintiffs hearing testimony and, as such, does not support a negative 

credibility finding. Tr. 176-85, 294, 400-10; see also Reddick v. Chafer, 157 F.3d 715, 722 (9th 

Cir. 1998) ("claimants should not be penalized for attempting to lead normal lives in the face of 

their limitations"). The remainder of the evidence was mischaracterized by the ALJ - namely, 

that plaintiff "had been pulling weeds" and "cared for two boys" - and accordingly also fails to 

support a negative credibility finding. See Reddick, 157 F.3d at 722-23 (ALJ's "paraphrasing of 

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

not support an adverse credibility finding). Significantly, plaintiffs two sons were adults as of 

the alleged onset date and there is evidence in the record evincing that they are self-sufficient. Tr. 

40, 226, 414-16. Further, plaintiff has constantly reported that when she feels able, she spends 

time in her garden; however, these activities are not frequent, let alone daily, and of short 

duration.3 Tr. 181, 406, 412. Therefore, activities such as plaintiffs - i.e., occasionally 

gardening, engaging in an unsuccessful work attempt within a year of the alleged onset date, and 

taking several hours, with frequent breaks, to complete relatively limited chores - are neither 

transferable to a work setting nor contradict claims of a totally debilitating impairment. See 

Morgan v. Colvin, 2013 WL 6074119, *5-6 (D. Or. Nov. 13, 2013) (reversing the ALJ's 

credibility finding under analogous circumstances). 

3 There is only a single chart note in the 430 page record that mentions plaintiff pulling weeds. 

See Tr. 417 (plaintiff reporting an "exacerbation" of her "chronic pain from [degenerative disc 

disease in her] lumbar spine [which] started while she was pulling weeds 2 weeks ago"). This 

sole reference does not constitute substantial evidence. 

8 - OPINION AND ORDER 

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Finally, the ALJ found that "the objective medical evidence does not support [plaintiffs] 

allegations of a disabling level of physical functioning." Tr. 26. "[W]hether the alleged 

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

cannot reject a claimant's subjective pain or symptom testimony simply because the alleged 

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

Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (citations omitted). In other words, the ALJ may not 

rely exclusively on the lack of corroborating medical evidence to discount a claimant's testimony 

where, as here, the ALJ' s other reasons for finding the claimant un-credible are not supported by 

substantial evidence. 

In any event, the ALJ once again mischaracterized the record in recounting the objective 

medical evidence. For instance, the ALJ recognized that "[i]maging of [plaintiffs] right should 

from August 2010 showed calcification tendonitis," a condition that is characterized by severe 

pain and stiffness. See, e.g., American Academy of Orthopaedic Surgeons, Why is calcific 

tendinitis so painful? New research highlights how damaged tissue may foster cell, blood vessel 

and pain receptor growth, causing chronic inflammation in common shoulder condition, 

www.sciencedaily.com/releases/2016/02/160203161105.htm (Feb. 3, 2016). Nevertheless, the 

ALJ disregarded plaintiffs shoulder pain complaints because she had "5 out of 5 strength in her 

upper and lower extremities bilaterally [and] intact sensation and reflexes," and had "been on 

chronic pain medications [from which] she does get relief." Tr. 26-27. 

However, the fact that plaintiff had intact strength, sensation, and reflexes in her arms has 

no bearing on whether she suffers from shoulder pain or stiffness; these are rote observations 

recorded in plaintiffs medical record based on a one-time examination and, thus, in no way 

9 - OPINION AND ORDER 

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undercut her diagnosis of calcific tendinitis or the fact that she has consistently endorsed 

symptoms associated therewith.4 Tr. 305, 309. 

Moreover, the ALJ's finding concerning plaintiff's medications fails to take into 

consideration the degree to which pain control was achieved. As evinced by plaintiff's daily 

activities, she does not obtain complete pain control from her medications and also experiences 

adverse side-effects, including fatigue, concentration and memory problems, and nausea. See, 

e.g., Tr. 46-48, 183-84, 338, 373, 409; see also Tr. 305 (plaintiff reporting "marked" and "acute" 

shoulder pain to Dr. Bower despite the "significant relief' she gets from methadone), 417 

(plaintiff noting to Dr. Bower that her medications only "[t]ake ... the edge off pain" such that it 

is "[h]ard to do chores at home"). 

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

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

II. Medical Opinion Evidence 

Plaintiff contends that the ALJ improperly discredited Dr. Bower's medical opinion. 

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

treating, examining, and non-examining doctors. Lester, 81 F.3d at 830. Generally, '"the opinions 

of examining non-treating physicians are afforded less weight than those of treating physicians." 

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

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

entitled to the greatest weight and should be adopted, even if it does not meet the test for 

4 During the same evaluation, examining doctor Richard Gil, M.D., diagnosed plaintiff with 

"[ s ]evere left shoulder pain due to chronic rotator cuff tendinopathy" and observed that her "left 

shoulder is significantly decreased in range of motion and tender to palpitation." Tr. 342. 

10 - OPINION AND ORDER 

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controlling weight"). To reject the uncontroverted opinion of a treating or examining doctor, the 

ALJ must present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 

Cir. 2005) (citation omitted). If a treating or examining doctor's opinion is contradicted by 

another doctor's opinion, it may be rejected by specific and legitimate reasons. Id. 

Dr. Bower has been plaintiffs treating physician since 2009. Tr. 310. In October 2012, 

Dr. Bower completed a medical source statement. Tr. 368-73. The doctor indicated that plaintiff 

would have lifting/carrying and positional restrictions due to her underlying physical 

impairments. Id. In particular, Dr. Bower opined that plaintiff could not: lift or carry more than 

ten pounds, stand or walk for more than two hours total in an eight hour workday, reach 

overhead, climb ladders or scaffolds, or stoop, kneel, crouch, or crawl. Tr. 368-71. 

The ALJ did not afford any particular weight to Dr. Bower's opinion. Tr. 27. Rather, the 

entirety of the ALJ's discussion of Dr. Bower is as follows: 

Tr. 27. 

Dr. Bower's opinion oflimiting [plaintiff] to less than light lifting is not 

supported by the objective medical evidence of record. His own notes indicate 

that limitations were [ d]ue to only diffuse weakness and degenerative disc 

disease. However, the MRI following the fusion does not show significant 

decompensation. 

Nevertheless, the ALJ assigned "significant weight" to the January 2012 opinion of Dr. 

Gil, who opined that plaintiff could stand/walk for six hours in an eight hour workday, and lift 20 

pounds occasionally and ten pounds frequently, with no reaching restrictions. Id. In support of 

this conclusion, the ALJ summarized portions of Dr. Gil's findings and noted that his opinion "is 

based on actual physical testing, not subjective pain complaints." Id. 

11 - OPINION AND ORDER 

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The Court finds that the ALJ committed harmful legal error in evaluating the medical 

evidence in three respects. First, contrary to the ALJ's assertion, Dr. Bower made clear that his 

opinion was based on more than plaintiff's degenerative disc disease and diffuse weakness. See 

Tr. 368-73 (Dr. Bower pointing to, amongst other impairments, plaintiff's "cervical arthritis," 

"lumbar arthritis," "calcific tendinitis," and "chronic fatigue" as the "clinical findings [that] 

support [his assessed] limitations"). Indeed, in other portions of his opinion, the ALJ 

acknowledged objective medical evidence which establishes that plaintiff suffers from calcific 

tendinitis. Tr. 26-27. 

Second, the ALJ misreads plaintiff's April 2013 MRI. This screening was intended as a 

comparison to her lumbar 2006 MRI. Tr. 430. While the 2013 findings revealed "[n]o major 

change[s] seen from the prior exam," the fact remains that there are several areas of plaintiff's 

lumbar spine that have undergone "moderately" severe degeneration and "significant" disc 

protrusion. Id The ALJ accepted this evidence in determining that plaintiff had the medically 

determinable, severe impairment of "degenerative disc disease" at step two. 5 Tr. 24. 

Furthermore, Dr. Gil did not review any imaging studies relating to plaintiff's lumbar or cervical 

spine, or Dr. Brown's medical source statement, in rendering his opinion. Tr. 338. As such, there 

is no objective medical evidence in the record regarding plaintiff's spine that detracts from or 

contradicts this aspect of Dr. Bower's report. See Tr. 341-42 (Dr. Gil noting decreased range of 

motion and tenderness upon examination in plaintiff's lumbar and cervical spine). 

5 The Commissioner's assertion that plaintiff's 2013 MRI is, alone, a basis to reject Dr. Bower's 

assessed limitations - i.e., because Dr. Bower's opinion was "more severe than what an MRI" 

showed - is unpersuasive. Def.' s Resp. Br. 4. Even "mild degenerative disc disease can have 

disabling effects." Dahl v. Comm 'r, 2015 WL 5772060, *5 (D. Or. Sept. 30, 2015) (collecting 

cases). In other words, mild degenerative changes do not necessarily equate to mild functional 

limitations. 

12 - OPINION AND ORDER 

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Third, the ALJ' s decision is silent as to several salient aspects of Dr. Bower's opinion 

and therefore the requisite analysis is lacking.6 See Def.'s Resp. Br. 4 (recognizing that "the ALJ 

did not specifically address the other limitations opined by Dr. Bower"); see also Lester, 81 F.3d 

at 830 (9th Cir. 1996) ("[e]ven ifthe treating doctor's opinion is contradicted by another doctor, 

the Commissioner may not reject this opinion without providing specific and legitimate reasons 

supported by substantial evidence"). Contrary to the Commissioner's assertion, this error was not 

harmless in light of plaintiffs "mild degenerative changes [and] full strength in her shoulder 

despite some objective evidence of calcific tendonitis." Def. 's Resp. Br. 4. As discussed herein, 

plaintiffs 2013 MRI does not undermine Dr. Bower's opinion and plaintiffs intact strength has 

no bearing on whether she suffers from debilitating shoulder pain. The ALJ's evaluation of Dr. 

Bower's opinion is reversed. 

III. Lay Testimony 

Plaintiff argues that the ALJ neglected to provide a legally sufficient reason to reject the 

statements of Mr. Schoppert. Lay testimony concerning a claimant's symptoms or how an 

impairment affects the ability to work is competent evidence that an ALJ must take into account. 

Molina, 674 F.3d at 1114 (citation omitted). The ALJ must provide "reasons germane to each 

witness" in order to reject such testimony. Id (citation and internal quotation omitted). 

6 The ALJ' s implication that Dr. Bower's opinion was afforded less weight because it was based 

on plaintiffs "subjective pain complaints" is neither sufficiently specific nor supported by the 

record. See Ritchotte v. Astrue, 281 Fed.Appx. 757, 759 (9th Cir. 2008) (reversing the ALJ's 

evaluation of the medical opinion evidence under analogous circumstances). As discussed above, 

the ALJ erred in assessing plaintiffs credibility. In any event, it is clear from both the record 

before the Court and the plain language of Dr. Bower's medical source statement that an 

objective basis existed for the limitations he assessed. 

13 - OPINION AND ORDER 

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Mr. Schoppert offered written testimony relating to plaintiffs impairments in April 2013. 

Tr. 205. Mr. Schoppert explained that plaintiff was employed at his "store in the nursery position 

in 2010." Id. He did not rehire her the following season "because of her physical limitations, 

which included a bad back and bad shoulders." Id. As a result of these conditions, Mr. Schoppert 

observed that plaintiff "could not lift anything over 10 lbs.," which was problematic because "the 

nursery has a lot of trees and shrubs that weigh in excess of 50 lbs." Id. He also observed that 

plaintiff was "sick a lot, due to side effects" from her medications. Id. 

The ALJ discredited Mr. Schoppert's statements because he "is not an acceptable medical 

source" and his "statement is inconsistent with the opinions of Dr. Gil and Dr. Eder." Tr. 28. 

Initially, the fact that Mr. Schoppert is not an acceptable medical source is not a legally 

sufficient reason to reject his testimony. As plaintiff denotes, "[t]his reasoning is axiomatically 

invalid; no lay witness could ever be an acceptable medical source trained in making exacting 

clinical judgments." Pl.'s Opening Br. 11 (internal citation and ellipses omitted). Nevertheless, 

inconsistency with the medical evidence is a germane reason to discredit the testimony of a lay 

witness. Bayliss, 427 F.3d at 1218. 

Mr. Schoppert' s comment that plaintiff could only lift 10 pounds is directly contradicted 

by the opinions of Dr. Gil and Sharon Eder, M.D., the state agency consulting source who based 

her opinion on Dr. Gil's report. Tr. 78, 343. Conversely, nothing in the record contravenes Mr. 

Schoppert's statement regarding plaintiffs medication side-effects; neither Dr. Gil nor Dr. Eder 

address this issue. Tr. 78-80, 338-43; see also Tr. 373 (Dr. Bower opining that plaintiffs 

medications affect her functioning). The ALJ erred in rejecting this aspect of Mr. Schoppert's 

testimony. 

14 - OPINION AND ORDER 

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IV. Remand 

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

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

Cir.), cert. denied, 53 l U.S. 1038 (2000). The issue turns on the utility of further proceedings. A 

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

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

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

775 F.3d 1090, 1100 (9th Cir. 2014). A court may not award benefits punitively and must 

conduct a "credit-as-true" analysis on evidence that has been improperly rejected by the ALJ to 

determine if a claimant is disabled under the Act. Strauss v. Comm 'r of the Soc. Sec. Admin., 635 

F.3d 1135, 1138 (9th Cir. 2011). 

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

Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The United States Court of Appeals for 

the Ninth Circuit articulates the rule as follows: 

The district court must first determine that the ALJ made a legal error, such as 

failing to provide legally sufficient reasons for rejecting evidence. If the court 

finds such an error, it must next review the record as a whole and determine 

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

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

court must consider whether there are inconsistencies between the claimant's 

testimony and the medical evidence in the record, or whether the government has 

pointed to evidence in the record that the ALJ overlooked and explained how that 

evidence casts into serious doubt the claimant's claim to be disabled. Unless the 

district court concludes that further administrative proceedings would serve no 

useful purpose, it may not remand with a direction to provide benefits. 

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

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

consider whether the ALJ would be required to find the claimant disabled on 

remand if the improperly discredited evidence were credited as true. Said 

15 - OPINION AND ORDER 

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

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

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

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

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

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

marks omitted). 

In this case, the ALJ erred by failing to provide a legally sufficient reason, supported by 

substantial evidence, for rejecting plaintiffs testimony that she cannot work due to pain and 

concentration problems. Likewise, the ALJ neglected to furnish a legally sufficient reason, 

supported by substantial evidence, for discrediting treating Dr. Bower's opinion that plaintiff 

cannot perform light exertion work, and for discounting Mr. Schoppert's observation that 

plaintiff experienced frequent interruptions due to her medication side-effects. Indeed, the record 

consistently demonstrates that plaintiff is unable to lift or carry more than ten pounds, stand or 

walk for extended periods, or maintain concentration. In addition, the Commissioner has not 

pointed to, and an independent review of the record does not reveal, any evidence that casts into 

serious doubt the debilitating extent of plaintiffs impairments. See Def.' s Resp. Br. 12 (citing 

only to the opinion of Dr. Gil). Lastly, there is no indication that plaintiffs conditions, at least 

one of which is degenerative in nature, improved after the ALJ' s decision but prior to the date 

last insured, which lapsed in June 2015. 

Thus, the record has been fully developed and there are no outstanding issues left to be 

resolved. Plaintiff turned fifty approximately one year after the alleged onset date, thereby 

placing her within the "closely approaching advanced age" category. 20 C.F .R. § 404.1563( d). 

Under the Medical-Vocational Guidelines, she would be disabled as of that date if she could 

16 - OPINION AND ORDER 

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perform less than light exertion work. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 201.10; Tr. 

53-54. Moreover, the VE testified that a hypothetical individual whose ability to concentrate was 

impacted fifteen to twenty percent of the time would not be able to maintain competitive 

employment. Tr. 55. As such, the Court, in its discretion, credits the improperly rejected 

evidence as true and finds that plaintiff is disabled. 

CONCLUSION 

For the foregoing reasons, the Commissioner's final decision is REVERSED and this 

case is REMANDED for the immediate payment of benefits. 

IT IS SO ORDERED. 

DATED this _if-day of July 2016. 

~l/i~ Owen M. Panner 

United States District Judge 

17 - OPINION AND ORDER 

Case 3:15-cv-00464-PA Document 29 Filed 07/14/16 Page 17 of 17