IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

HEATHER RAE STUBBS-PRUITT, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner of Social Security 

Administration, 

Defendant 

YOU, Magistrate Judge: 

Case No. 6: 15-cv-00309-YY 

OPINION AND ORDER 

Heather Rae Stubbs-Pruitt ("plaintiff') seeks judicial review of the final decision by the 

Social Security Commissioner ("Commissioner") denying her applications for Disability 

Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI 

of the Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's 

decision pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the Commissioner's 

decision is reversed and remanded for fi.niher proceedings. 

Administrative Hist01y 

On November 17, 2011, plaintiff protectively applied for DIB and SSI, alleging a 

disability onset date of October 2, 2010. Tr. 13, 190-200. She later amended her onset date to 

Janumy 1, 2006. Tr. 192. Her applications were denied initially and on reconsideration. Tr. 131-

1 - OPINION AND ORDER 

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47. Plaintiff thereafter timely requested a hearing before an Administrative Law Judge ("ALJ"). 

Tr. 149-50. On October 9, 2013, ALJ John Michaelsen held a hearing, at which plaintiff was 

represented by counsel and testified, as did a vocational expert ("VE"). Tr. 3 7-71. On October 

31, 2013, ALJ Michaelsen issued a decision finding plaintiff not disabled within the meaning of 

the Act from January 1, 2006, through the date of the decision. Tr. 13-23. After the Appeals 

Council declined her request for review, plaintiff filed a complaint in this Court. Tr. 1-3. 

Background 

Born in 1974, plaintiff was 32 years old on the alleged onset date. Tr. 219. She graduated 

from high school and attended college for three years. Tr. 225. She has past relevant work 

experience as a caregiver in an adult foster home. Tr. 22, 63. Plaintiff alleges that she is unable to 

work due to fibromyalgia, post-traumatic stress disorder ("PTSD"), anxiety, and depression. Tr. 

224. 

Standard of Review 

The court must affom 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. 

Bm11en, 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 suppo1is and detracts from the 

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

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

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

2 - OPINION AND ORDER 

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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 impaitment 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. §§ 404.1502 and 

404.920. First, the Commissioner considers whether a claimant is engaged in "substantial gainful 

activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b) and 416.920(b). If so, the claimant 

is not disabled. 

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

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

404.1520(c) and 416.920(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) and 416.920(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 perfo1m "past 

relevant work." 20 C.F.R. §§ 404.1520(f) and 404.920(f). If the claimant can work, she is not 

disabled; if she camtot perform past relevant work, the burden shifts to the Commissioner. 

At step five, the Commissioner must demonstrate that the claimant can perform other 

work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-

3 - OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 3 of 19
42; 20 C.F.R. §§ 404. l 520(g) and 416.920(g). If the Commissioner meets this burden, the 

claimant is not disabled. 20 C.F.R. §§ 404.1566 and 416.966. 

The ALJ's Findings 

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

plaintiff had not engaged in substantial gainful activity since the alleged onset date, January 1, 

2006. Tr. 15. 

At step two, the ALJ determined plaintiff has the following severe impahments: 

fibromyalgia, obesity, anxiety disorder/PTSD, depressive disorder, and learning disorder (NOS). 

Id. 

At step three, the ALJ found that plaintiffs impairments, either singly or in combination, 

did not meet or equal the requirements of a listed impai1ment. Tr. 16. Because plaintiff did not 

establish disability at step three, the ALJ continued to evaluate how her impairments affected her 

ability to work during the relevant period. The ALJ found that plaintiff had the following 

residual functional capacity ("RFC"): 

Tr. 18. 

Tr. 22. 

[L]ight work ... [i]n addition, the claimant is limited to occasional stooping, 

crouching, crawling, and kneeling. She is also limited to understanding, 

remembering, and carrying out simple, repetitive tasks requiring no more than 

occasional interaction with the general public. 

At step four, the ALJ found that plaintiff was unable to perfotm her past relevant work. 

At step five, based on the testimony of the VE, the ALJ determined that plaintiff could 

perfotm other work existing in significant numbers in the national and local economy despite her 

impairments, such as office helper, library helper, and clerical helper. Tr. 23. Accordingly, the 

ALJ concluded that plaintiff was not disabled under the Act. Id. 

4 - OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 4 of 19
Discussion 

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

assessing the medical opinions of John Ward, M.D. and Connie Hume-Rodman, M.D.; and (3) 

failing to establish plaintiff retains the ability to perform work in the national economy. 

I. Plaintiffs Credibility 

Plaintiff asse1is that the ALJ failed to atiiculate a clear and convincing reason, supported 

by substantial evidence, for rejecting her subjective symptom statements concerning the extent 

and severity of her impairments. 

The Ninth Circuit relies on a two-step process for evaluating the credibility of a 

claimant's testimony about the severity and limiting effect of the stated symptoms. Vasquez v. 

Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingerifelter v. Astrue, 503 F.3d 1028, 1035-36 

(9th Cir. 2007)). "First, the ALJ must dete1mine whether the claimant has presented objective 

medical evidence of an underlying impairment which could reasonably be expected to produce 

the pain or other symptoms alleged." Lingenfelter, 503 F.3d at 1036 (citation and quotation 

marks omitted). Second, absent 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." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Fmther, an ALJ 

"may consider ... ordinary techniques of credibility evaluation, such as the claimant's reputation 

for lying, prior inconsistent statements concerning the symptoms, ... [or] other testimony that 

appears less than candid ... . "Id. at 1284. However, a negative credibility finding made solely 

because the claimant's symptom testimony "is not substantiated affirmatively by objective 

medical evidence" is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 

Cir. 2006). Neve1theless, the ALJ's credibility finding may be upheld even if not all of the ALJ's 

rationales for rejecting claimant testimony are upheld. See Batson, 359 F.3d at 1197. 

5 - OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 5 of 19
Plaintiff first argues the ALJ erred in evaluating her physical impairments related to her 

fibromyalgia. Pl.' s Br. 14-15. The ALJ found, "it appears from the record that the claimant is not 

as limited as she has alleged[,]" and proceeded to identify instances where plaintiffs 

examination findings were "unremarkable," aside from positive tender point testing and reports 

of muscle spasms. Tr. 19; see tr. 337, 364, 366, 422, 426, 438, 470, 477. Indeed, "[w]hile 

subjective pain testimony cannot be rejected on the sole ground that it is not fully c01rnborated 

by the objective medical evidence, the medical evidence is still a relevant factor in dete1mining 

the severity of the claimant's pain and its disabling effects." Rollins v. i\fassanari, 261 F.3d 853, 

857 (9th Cir. 2001). Here, the ALJ noted plaintiff had n01mal findings regarding muscle strength, 

reflexes, tone and symmetry, and normal imaging of her lumbar spine and hips. Tr. 19. Further, 

the ALJ observed that treating physician Yon Zhu, M.D. rep01ied mild fibromyalgia symptoms. 

Id. 

Plaintiff contends the ALJ erred to highlight "intact reflexes and full strength[,]" because 

the findings are not relevant to her fibromyalgia claim. Pl.' s Reply 1. Plaintiff explains, "normal 

neurological findings or minimal disc degeneration do not conflict with her testimony that she is 

impaired by fibromyalgia pain." Pl.'s Br. 14. The court agrees the findings do not necessarily 

conflict with plaintiffs testimony, but it is unclear why the ALJ's mention of them benefits 

plaintiffs position. The ALJ simply observed that despite plaintiffs positive tender point testing 

evincing the presence of fibromyalgia, the other examination findings were essentially n01mal 

from a functional standpoint. See tr. 19. Plaintiffs argument would be helpful if it was 

determined plaintiff did not have fibromyalgia based on the findings cited by the ALJ, but this 

was not the case - the ALJ recognized fibromyalgia as a severe impairment at step two, thereby 

acknowledging it "significantly limits [her] ability to perform basic work activities." Id.; 20 

C.F.R. §§ 404.1520(c) and 416.920(c). Even so, by definition, "severe impairment" does not 

6 - OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 6 of 19
necessarily preclude gainful work. Id. Thus, it was not inappropriate for the ALJ to note that 

although plaintiffs "primary alleged limitations" are due to fibromyalgia symptoms, her 

examinations are otherwise relatively benign. Tr. 19. 

The ALJ addressed plaintiffs allegations of pain caused by her fibromyalgia condition by 

referencing a May 2013 examination by Dr. Zhu, a rheumatologist. Dr. Zhu found plaintiff had 

"[p]ositive fibromyalgia tender points, 16118, mild." Tr. 477. The ALJ interpreted the finding to 

mean Dr. Zhu reported "'mild' fibromyalgia symptoms." Tr. 19. Plaintiff contends the ALJ's 

interpretation is enoneous, arguing Dr. Zhu "did not say that [plaintiffs] condition was mild or 

dispute her pain reports, but only found, on that day, she had mild response to the tender points." 

Pl.'s Br. 14. In support, plaintiff asserts she need not show her impaiiment could reasonably be 

expected to cause the severity of the symptoms alleged, but only that it could reasonably have 

caused symptomatology to some degree. Id. (citing Lingenfelter, 504 F.3d at 1036. Indeed, an 

ALJ "may not reject subjective symptom testimony ... simply because there is no showing that 

the impairment can reasonably produce the degree of symptom alleged." Id. (citing Smolen, 80 

F.3d at 1282). 

Here, however, the ALJ did not reject the symptom allegations simply because there was 

no showing that plaintiffs fibromyalgia could reasonably produce the degree of her symptoms as 

alleged; rather, the ALJ merely indicated Dr. Zhu found her symptoms were mild. Tr. 19. As the 

Commissioner notes, it is appropriate for the ALJ to consider medical opinions when evaluating 

a claimant's credibility - particularly the opinion of a rheumatologist evaluating fibromyalgia. 

Def.'s Br. 5-6; '11!0/ina v. Astrue, 533 F.3d 1155, 1161 (9th Cir. 2012); Benecke v. Barnhart, 379 

F.3d 587, 594 n.4 (9th Cir. 2004). 

Ill 

7 - OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 7 of 19
The thrust of plaintiffs argument is the ALJ's interpretation of Dr. Zhu's "mild" notation 

is inconect. However, so long as the ALJ's finding is "supported by inferences reasonably drawn 

from the record[,]" the comt must uphold the findings. Batson, 359 F.3d at 1193. In the relevant 

chart note, Dr. Zhu clearly indicated plaintiffs tender point testing was "mild." Tr. 477. As such, 

the court finds it was at least rational for the ALJ to interpret the chmt note to mean plaintiffs 

fibromyalgia symptoms were mild. Moreover, although plaintiff contends the ALJ's 

interpretation is wrong, plaintiff does not provide any alternative explanation or evidence in 

suppott of her position. See Pl.'s Br. 14; Pl.'s Reply 3. Even if plaintiff presented an equally 

viable interpretation, the comt would nonetheless be obliged to defer to the ALJ's finding. Burch 

v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is susceptible to more than one 

rational interpretation, it is the ALJ's conclusion that must be upheld."). Accordingly, the ALJ's 

interpretation of Dr. Zhu's chart note is free of legal en·or. 

Plaintiff also disputes the import of Dr. Zhu's comment, "she does have improvement 

with marijuana[,]" regarding pain from fibromyalgia. Plaintiff contends that despite using 

marijuana, she continues to have "muscle aches, cramping, joint pain, and swelling." Pl.' s Reply 

3-4. However, as plaintiff concedes, she repotted to Dr. Zhu that marijuana use resulted in 

"significant pain relie[fj and improved sleep .... " Tr. 476. Although plaintiff argues medical 

marijuana did not fully alleviate her symptoms, the ALJ was within his authority to impugn 

plaintiffs credibility based on her reported pain relief. Warre v. Comm 'r of SSA, 439 F.3d 1001, 

1006 (9th Cir. 2006) (impaitments that are adequately controlled with treatment are not 

disabling). Again, while plaintiff proffers an alternative explanation, the ALJ's finding is not 

inational, as the apparent efficacy of marijuana use reasonably contradicts her cunent claims of 

nearly incapacitating pain. See tr. 19, 58-59, 253. Thus, the ALJ provided a valid interpretation 

of Dr. Zhu's findings and observations: plaintiffs fibromyalgia is mild, improves with treatment, 

8 - OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 8 of 19
and is not as limiting as alleged. Tr. 19. The findings impugn plaintiffs credibility to the degree 

she alleges her symptoms are nearly incapacitating, immune to treatment, and completely 

preclude her from work. 

The ALJ fm1her discredited plaintiff for using a cane that was not prescribed to her. An 

ALJ may find that a claimant's use of non-prescribed assistive device detracts from her 

credibility. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Plaintiff presumably 

concedes the cane was not prescribed at the time of the administrative heming, but explains her 

use of a cane was legitimate because Dr. Ward prescribed a cane two weeks thereafter. Pl.' s Br. 

15; see tr. 506. The Commissioner notes the "interesting timing" of the prescription, infen'ing the 

cane prescription was procured in response to the adverse disability decision. Def.' s Br. 7-8. 

Fmther, the Commissioner contends plaintiff did not develop an abnormal gait until after the 

October 31, 2013 decision. Id.; tr. 523-5. The record supports the Commissioner's position. 

Compare tr. 530-32 (Oct. 3, 2013) to 523-35 (Nov. 8, 2013). Moreover, although he prescribed 

the cane, Dr. Ward noted plaintiff was more symptomatic on the left side, which did not correlate 

to her known conditions because her MRI showed a disc protrusion only on the right side. Tr. 

524. Nevertheless, while the sudden appearance of the abnomml gait diagnosis may suggest an 

ulterior motive, the cou11 also notes plaintiff reported decreased sensation in her left leg prior to 

the receiving the decision. Tr. 495, 531. 

On balance, and considering the record as a whole, the court finds the ALJ did not legally 

el1' regarding the cane issue for the following related reasons. First, the ALJ utilized an 

acceptable method of credibility evaluation pursuant to Chaudh1y and other Ninth Circuit 

precedent, which recognizes the ALJ's rationale as clear-and-convincing. See Chaudh1y, 688 

F.3d at 671 n.9 ("cane was prescribed only at Chaudhry's request"); see also Thomas v. 

Barnhart, 278 F.3d 947, 959 (9th Cir. 2001) ("record contains conclusory statements that Ms. 

9 - OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 9 of 19
Thomas needed a cane"). Next, the ALJ's decision only addressed plaintiffs disability status 

tln·ough the date of the decision, and there was nothing to suggest a medical necessity for the 

cane prior to the post-decision development of abnonnal gait. Tr. 23, 523. 

Fmiher, as mentioned above, Dr. Ward did not identify any medically dete1minable 

condition which necessitated the cane; the only associated diagnosis was "abnormality of gait." 

See tr. 506 ("Cane .... Dx 781.2 [abno1mality of gait]"); tr. 524 ("the MRI findings do not 

specifically correlate to her cun·ent symptoms"); see also Social Security Ruling ("SSR") 96-9p 

available at 1996 WL 374185 at *7 ("To find that a hand-held assistive device is medically 

required, there must be medical documentation establishing the need . . . and describing the 

circumstances for which it is needed."). The court also notes plaintiffs treating and examining 

physicians regularly recommended plaintiff increase her activity level, which suggests that 

plaintiffs gait abno1mality is not severe enough to cause disability and/or be expected to persist 

for the statutory duration requirement. See, e.g., tr. 471 ("increase your activity level"), 478 

("encouraged her to exercise regularly"), 498 ("reiterated imp011ance of trying to be as 

physically active as possible"). 

Additionally, plaintiff never alleged having the condition of, or disability due to 

"abno1mality of gait." See Pl.'s Br. 1 ("[plaintiff] is disabled by fibromyalgia pain, anxiety, 

depression, PTSD, a learning disorder and obesity"); Pl.'s Reply 1 ("[p]laintiff does not have a 

neurological condition"); tr. 224. Plaintiff has the initial burden to establish disability that can be 

expected to last at least twelve months, and the prescription of an assistive device, without more, 

does not meet this tln·eshold. Howard, 782 F.2d at 1486; 42 U.S.C. § 423(d)(l)(A). Based on all 

10- OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 10 of 19
of the foregoing, the ALJ's stated rationale was valid, notwithstanding the post-decision 

evidence. 1 

The ALJ also found plaintiff provided inconsistent statements regarding her activities of 

daily living ("ADLs"). The ALJ noted that in her 2012 functional report, plaintiff indicated she 

was predominantly independent in self-care, able to prepare simple meals, go shopping, and 

drive a car; which he found contrary to her testimony during the hearing. Tr. 20, 254-55. During 

the hearing, however, plaintiff testified she required help getting out of bed, that her daughter 

prepares most meals, that she can shop but is exhausted for days afterward, and normally doesn't 

drive, but is able to do so when required. Tr. 46, 48-49, 52. 

Independent review of the records cited by the ALJ reveal they are generally consistent 

with plaintiffs hearing testimony. For example, in 2012, plaintiff indicated she was not fully 

independent in personal care or meal preparation. Tr. 254-55. Additionally, it is unclear why the 

ALJ inferred plaintiff is no longer able to drive, as she testified to she driving herself to the 

hearing. Tr. 45-46. While her ability to drive may suggest greater functionality than alleged, it 

was nonetheless erroneous for the ALJ to find she provided inconsistent statements about her 

ability to do so. However, even assuming the ALJ's ADLs analysis did not meet the appropriate 

legal standard, other rationales provided were clear-and-convincing, and therefore the error is 

harmless. Carmickle, 533 F.3d at 1163. 

The ALJ discredited plaintiffs testimony regarding her alleged limitations due to her 

mental impairments, including memory, completing tasks, concentration, understanding, 

following instructions, and getting along with others. Tr. 257. The ALJ found that her allegations 

were "inconsistent with the longitudinal medical evidence." Tr. 20. In support, the ALJ noted 

1 Even if the court \Vere to find the ALJ erred in light of the post-decision prescription of the cane, the error \vould be harmless, 

as the ALJ identified other valid reasons to discredit plaintiff's testimony. Cannickle v. Conun 'r, Soc. Sec. Ad1nin., 533 F.3d 

1155, 1162-63 n.4 (9lh Cir. 2008). 

11 - OPINION AND ORDER 

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plaintiff performed intellectual testing in the average to high average range. Id., 303-04. Testing 

also indicated plaintiff had mild depression symptoms and moderate anxiety symptoms. Tr. 302-

03. The ALJ further noted plaintiff was able to attend school full time while working and 

parenting, she interacted appropriately with her treatment providers, and that she frequently uses 

online social media. Tr. 20. 

Plaintiff argues that despite her average scores, she also was assessed in the low-average 

range for reading fluency, and assessed a GAF score of 55. Pl. 's Br. 15. Plaintiff fmiher contends 

the testing is not completely relevant because she is not alleging an intelligence deficit. Pl.'s 

Reply 2; tr. 308-09. However, plaintiff alleges she has difficulty understanding, concentrating, 

and following directions, but her overall reading scores in reading, math, written language, and 

academic skills, applications, and fluency are all within the average range. Tr. 303-04. As such, 

the ALJ's reasoning is specific, clear and convincing, even if the test results could be 

alternatively interpreted. Batson, 359 F.3d at 1198. (ALJ's reasonable findings must be upheld, 

even where the evidence is capable of more than one rational interpretation). 

Plaintiff also asserts that "[a]lthough [she] has been observed to be pleasant, her 

providers have noted obvious signs of mental and physical distress that affect her social 

functioning." Pl.'s Br. 16. She alleges this would also "make it difficult to respond appropriately 

to supervision and co-workers." Pl.'s Reply 3. While some of her providers noticed symptoms of 

depression and/or anxiety at times, the ALJ noted none of the providers indicated her behaviors 

would preclude her from social interaction. Tr. 20. The ALJ also noted plaintiff regularly used 

online social media, which impugns the veracity of her claims of very limited social 

functionality. Id. Again, while plaintiff has an alternative interpretation of the evidence, the ALJ 

provided a legally sufficient reason to discredit allegations of severely diminished ability to 

socially function and interact with individuals at work. 

12 - OPINION AND ORDER 

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In addition, although the ALJ did not specifically invoke the opinions of the mental 

health providers who administered her intellectual testing, the comi notes their opinion that her 

"communication skills should serve her well in the career of her choice." Tr. 306. Plaintiffs 

argument that her strong interpersonal communication skills are not inconsistent with having 

difficulty responding appropriately to supervision and co-workers is not persuasive. Pl. 's Reply 

3. Thus, although the comi may not rely on grounds the ALJ did not address in his opinion, 

plaintiff has nonetheless failed to rebut the ALJ's reasonable interpretation of her mental 

limitations. Rollins v. lvfassanari, 261 F.3d 853, 857 (9th Cir. 2001) (citation omitted). The 

ALJ' s credibility finding is therefore affirmed. 

II. Medical Opinion Evidence 

Plaintiff argues the ALJ improperly rejected the medical opinions provided by treating 

physicians Dr. Ward and Dr.Hume-Rodman. The ALJ is responsible for resolving ambiguities 

and conflicts in the medical testimony. lvfaga/lanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 

The ALJ must provide clear and convincing reasons for rejecting the uncontradicted medical 

opinion of a treating or examining physician, or specific and legitimate reasons for rejecting 

contradicted opinions, so long as they are suppotied by substantial evidence. Bayliss v. Barnhart, 

427 F.3d 1211, 1216 (9th Cir. 2005). Nonetheless, treating or examining physicians are owed 

deference and will often by entitled to the greatest, if not controlling, weight. Orn, 495 F.3d at 

633 (citation and internal quotation omitted). An ALJ can satisfy the substantial evidence 

requirement by setting out a detailed summary of the facts and conflicting evidence, stating his 

interpretation, and making findings.1'.Jorgan v. Comm 'r Soc. Sec. Adm in., 169 F.3d 595, 600-01 

(9th Cir. 1999). However, "the ALJ must do more than offer his conclusions. He must set forth 

his own inte1pretations and explain why they, rather than the doctors', are correct." Reddick v. 

Chafer, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). On this record, Drs. Ward and 

13 - OPINION AND ORDER 

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Hume-Rodman's opinions were contradicted by the non-examining state agency medical 

examiners.2 Accordingly, the ALJ's reasons for rejecting the treating physicians must be specific 

and legitimate, and supp01ied by substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1012 

(9th Cir. 2014); Lester, 81 F.3d at 830. Specific, legitimate reasons for rejecting a physician's 

opinion may include its reliance on a claimant's discredited subjective complaints, inconsistency 

with the medical record, prior inconsistent testimony, or inconsistency with a claimant's ADLs. 

Tommasetti v. Astrue, 533 F.3d 1035, 1040-41 (9th Cir. 2008). 

The ALJ accorded "little weight" to treating provider Dr. Ward's opinion that plaintiff 

could not maintain full-time employment and would likely miss more than two days per month 

due to pain issues. Tr. 20. In support, the ALJ noted Dr. Ward's opinion is "inconsistent with the 

objective evidence, including the physical findings ... [and] claimant's own reported ability to 

do household chores, such as laundry and mowing the lawn, as well as her reported ability to be 

independent in self-care, to prepare simple meals, and to go shopping." Id. 

The ALJ' s first rationale is eirnneous. The Commissioner concedes that a lack of 

objective medical evidence is insufficient to discredit a medical opinion regarding fibromyalgia. 

Def.'s Br. 12 n.6 (citing Benecke, 379 F.3d at 594). Even though the ALJ proffered other reasons 

for discrediting Dr. Ward's opinion, the Commissioner declines to defend the ALJ's rationale, 

which generally may be valid so long as other valid rationales are also provided. Id. The 

Commissioner's choice to abandon the argument is presumably due to the ALJ's lack of 

specificity. The general asse1iion that a treating physician's opinion is "inconsistent with the 

objective evidence" is insufficient. The ALJ has a duty to provide more than a conclusion; "[h]e 

must set f01ih his own interpretations and explain why they, rather than the doctor', are con·ect." 

2 The parties dispute \vhether Dr. Zhu's opinion contradicts those of Drs. 'Vard and Hume-Rodman. See Def.'s Br. 11; Pl. 's 

Reply 5. The ALJ's decision does not indicate \vhether Dr. Zhu's opinion is included in the weighing of medical opinion 

evidence. Ho\vever, neither party's arguments hinge on the medical opinion or evidence produced by Dr. Zhu. Therefore, the 

court declines to specifically determine \vhether Dr. Zhu's opinion contradicts those ofDrs. \Vard and Hu1ne-Rodman. 

14 - OPINION AND ORDER 

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Orn, 495 F.3d at 632 (quoting Reddick, 157 F.3d at 725). Moreover, Dr. Ward noted "multiple 

areas of significant tenderness to palpitation, consistent with trigger points[,]" in other words, 

objective evidence consistent with fibromyalgia. See tr. 497. Additionally, to the extent the 

ALJ's rationale is premised on Dr. Ward's "abnormal gait" diagnosis, the ALJ's explanation is 

too vague to uphold on review. 

The ALJ' s second rationale for according limited weight to Dr. Ward's opinion is 

inconsistency with plaintiffs repo1ied AD Ls. Tr. 20. As noted above, inconsistency with AD Ls 

may be a valid reason to accord a medical opinion limited weight. Tommasetti, 533 F.3d at 1040. 

Although the ALJ notes plaintiff retains the ability to perfo1m household chores, prepare simple 

meals, self-care, and go shopping, such activities are not particularly strenuous, pmiicularly in a 

non-work setting where they can be perforn1ed at a slower pace, and presumably not eight hours 

per day, five days per week. See, e.g., Fair, 885 F.3d at 603 (many home activities are not easily 

transferable to the workplace environment, where it may not be possible to rest). Fmiher, Dr. 

Ward specifically opined plaintiff would be unable to maintain a full-time job with "normal 

break periods." Tr. 501. Thus, while plaintiffs ability to perform ce1iain ADLs may suggest nondisability, the ALJ failed to identify how and why the ADLs cited impugn Dr. Ward's 

assessment. Accordingly, the ALJ en-ed in weighing Dr. Ward's opinion. 

The ALJ also accorded "little weight" to the opinion of Dr. Hume-Rodman, citing 

inconsistency with the medical record, and plaintiffs abilities to attend school full-time, care for 

her children, and work. Tr. 20. For the reasons discussed above, the ALJ's rationale regarding 

inconsistency with the medical record is erroneous. The activities cited by the ALJ, however, are 

somewhat different than those invoked to reject Dr. Ward's opinion, and therefore wmrnnt 

further consideration. 

15 - OPINION AND ORDER 

Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 15 of 19
Dr. Hume-Rodman, identified as the associate director of clinical health services at 

Oregon State University, opined plaintiff"suffers from a number of medical issues that make it 

impossible for her to work 20 hours per week," in the context of a request the university waive a 

work requirement in order to receive food stamps. Tr. 435. The Commissioner argues Dr. HumeRodman appears to be assetting plaintiff could not work 20 hours per week while also attending 

classes. Def.' s Br. 11. However, as plaintiff accurately contends, the ALJ did not invoke this 

reasoning in his decision, and therefore this coutt may not now rely upon it. See Bray v. Comm 'r 

of Soc. Sec. Admin, 554 F.3d 1219, 1225-26 (9th Cir. 2009); see also Pinto v. lvfassanari, 249 

F.3d 840, 847 (9th Cir. 2007). 

However, the ALJ's finding that plaintiffs ability to attend school full-time, work, and 

care for children is inconsistent with a limitation to a less than 20-hour work week is valid. In 

support, the ALJ cited Exhibit 6F, which consists of73 pages of chart notes completed by Dr. 

Hume-Rodman between 2010 and 2012, when plaintiff was a full-time student. See Pl.'s Reply 

6; tr. 314, 336, 386 Although plaintiff argues her activities are "very limited," the ALJ's 

conclusion that plaintiffs ability to raise three children while attending school full-time and 

working patt-time is supported in the record, and reasonably contradicts the doctor's assettion 

that she is unable to work 20 hours per week. The ALJ is the appropriate arbiter of conflicts 

and/or ambiguity in the medical record. Morgan, 169 F.3d at 603 (citations omitted). As such, 

the ALJ's rational interpretation of the record must be upheld. Batson, 359 F.3d at 1198. 

III. Step Five and Remand for Further Proceedings 

Plaintiff alleges the ALJ incorporated erroneous step three findings into her RFC which 

resulted in futther errors at step five. Essentially, plaintiff restates her earlier arguments 

regarding the ALJ's evaluation of her credibility and the weight accorded to her treating 

physicians. See Pl.'s Br. 18-19; Pl.'s Reply 7. However, as the comt finds the ALJ did not err in 

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Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 16 of 19
assessing plaintiffs credibility or the medical opinion of Dr. Hume-Rodman, plaintiffs step five 

allegations are inapposite. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 

2008). 

Finally, plaintiff argues the court should reverse and remand this case for immediate 

payment of benefits. Courts may affirm, modify, or reverse the decision by the Commissioner 

"with or without remanding the case for a rehearing." 42 U.S.C. § 405(g); Treichler v. Comm 'r 

or Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). Remand for the calculation of benefits 

is one possible remedy. Benecke, 379 F.3d at 593. As discussed above, the ALJ did not provide 

legally adequate reasons to accord Dr. Ward's medical opinion little weight. Although not all 

ALJ eU"ors require remand, the comi can confidently conclude that no reasonable ALJ, when 

fully crediting Dr. Ward's opinion that plaintiff would be expected to miss more than two days 

per month due to her impairments, could have reached a different disability dete1mination. Stout 

v. Comm 'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006) (citations omitted). Thus, 

remand is required. 

On remand, the Ninth Circuit employs the "credit-as-true" standard when the following 

requisites are met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting 

evidence, (2) the record has been fully developed and farther proceedings would serve no useful 

purpose, and (3) ifthe improperly discredited evidence were credited as true, the ALJ would be 

required to find the plaintiff disabled on remand. Garrison v. Colvin, 759 F.3d atl020. Even ifall 

of the requisites are met, however, the court may still remand for fu1iher proceedings "when the 

record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]" Id at 

1021. "Serious doubt" can arise when there are "inconsistencies between the claimant's 

testimony and the medical evidence," or if the Commissioner "has pointed to evidence in the 

record the ALJ overlooked and explained how that evidence casts into serious doubt" whether 

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Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 17 of 19
the claimant is disabled under the Act. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir 2015) 

(citing Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (internal quotation marks omitted). 

The first requisite is met based on the ALJ's inadequate rejection of Dr. Ward's opinion. 

Next, the court must determine whether "the record has been fully developed and futiher 

administrative proceedings would serve no useful purpose." Garrison, 759 F.3d at 1020. 

Although the ALJ erred by providing inadequate reasons for according little weight to Dr. 

Ward's opinion, the record nonetheless raises crucial questions about the extent to which 

plaintiffs various symptoms and impaitments affect her ability to function in the workplace. 

For example, despite plaintiffs testimony that her pain is incessant and severely limits 

her ability to sleep, she also reported receiving significant pain relief and improved sleep using 

medical marijuana. Tr. 259, 476. Next, as discussed above, plaintiffs providers did not report 

any abnormality in plaintiffs gait until after the ALJ questioned her credibility because her cane 

was not medically prescribed. Tr. 23, 258, 476, 506, 525. Further, as Dr. Ward noted, plaintiffs 

MRI findings did not correlate to her left-sided symptoms, although her disc protrusion is rightsided. Tr. 524. 

Other inconsistencies also give the comi pause. Although plaintiff alleges mental 

impairments including limited reading fluency, she was nevertheless able to adequately navigate 

two years of college courses, and even held a job tutoring other college students for a time. Tr. 

42, 249. Fmiher, plaintiff testified that she spends up to three hours per day using online social 

media, which clearly requires a certain level of reading fluency. Tr. 50-51, 256. While plaintiff 

alleges having a limited ability to respond appropriately to supervision and co-workers due to 

emotional distress, mental health evaluators indicated plaintiff demonstrated strong interpersonal 

communication skills, "that would serve her well in the career of her choice." Tr. 306; Pl.'s Br. 

16. Fmiher, despite allegations of significantly limited ability to perform basic AD Ls, plaintiff 

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Case 6:15-cv-00309-YY Document 22 Filed 05/05/16 Page 18 of 19
was able to attend school full-time for approximately two years, while raising three children and 

apparently working part-time. Finally, the comt reiterates that although the ALJ did not provide 

legally sufficient reasons to discredit one treating physician's somewhat conclusory opinion that 

plaintiff would miss at least two days per month, the ALJ's negative credibility finding and 

rejection of the other treating physician's opinion were legally valid. 

For all of the foregoing reasons, despite legal error in the ALJ's decision, serious doubt 

remains whether plaintiff is disabled under the Act. Thus, remand for an award of benefits is not 

appropriate. Treichler, 77 5 F .3d at 1101. Fmther proceedings are necessary. 

Conclusion 

Based on the foregoing, the Commissioner's decision is REVERSED and this case 

REMANDED for fu1ther proceedings consistent with this Opinion. 

DATED this 5th day of May, 2016. 

I //fl: ~\ (/1----

Youlee Yim You 

United States Magistrate Judge 

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