1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HOLLY HANSON, No. 3:15-cv-02237-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER SOCIAL 

SECURITY ADMINISTRATION, 

Defendant.

Merrill Schneider

Schneider Kerr Law Offices

P.O. Box 14490

Portland, OR 97293

Attorney for Plaintiff

Billy J. Williams

United States Attorney, District of Oregon 

Janice E. Hebert

Assistant United States Attorney

U.S. Attorney’s Office, District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

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2 - OPINION & ORDER

Alexis Toma

Social Security Administration 

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Holly Hanson brings this action for judicial review of the Commissioner’s final 

decision denying her application for Supplemental Security Income (SSI) under Title XVI of the 

Social Security Act and Disability Insurance Benefits (DIB) under Title II of the Social Security 

Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c) 

(3)). The Commissioner’s decision is reversed and remanded for further proceedings.

PROCEDURAL BACKGROUND

Plaintiff applied for SSI and DIB on February 17, 2012, alleging an onset date of May 30, 

2008. Tr. 62, 75.1 Her application was denied initially and on reconsideration. Tr. 62-114. On 

March 28, 2014, Plaintiff appeared, with counsel, for a hearing before an Administrative Law 

Judge (ALJ). Tr. 35-61. On June 11, 2014, the ALJ found Plaintiff not disabled. Tr. 29. The 

Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on glaucoma, Lyme disease, liver cirrhosis, depression, 

anxiety, muscle spasms, and insomnia. Tr. 62. Plaintiff was 48 years-old at the time of the 

administrative hearing. Id. Plaintiff has a high school diploma and a vocational history consisting 

mostly of office work. Tr. 40, 322. 

 

1 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, 

filed herein as Docket No. 13. 

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SEQUENTIAL DISABILITY ANALYSIS

A claimant is disabled if unable to “engage in any substantial gainful activity by reason 

of any medically determinable physical or mental impairment which . . . has lasted or can be 

expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). 

Disability claims are evaluated according to a five-step procedure. See, e.g., Valentine v. 

Comm’r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving 

disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in 

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 

137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner 

determines whether the claimant has a “medically severe impairment or combination of 

impairments.” Yuckert, 482 U.S. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, 

the claimant is not disabled.

In step three, the Commissioner determines whether the impairment meets or equals “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 141; 20 C.F.R. §§ 404.1520(d), 

416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner 

proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any 

impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§ 

404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot 

perform past relevant work, the burden shifts to the Commissioner. In step five, the 

Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 

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141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden 

and proves that the claimant is able to perform other work which exists in the national economy, 

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

THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful 

activity since May 30, 2008, the alleged onset date. Tr. 20. Next, at steps two and three, the ALJ 

determined that Plaintiff has the following severe impairments: lumbar stenosis and cervical 

radiculitis, degeneration in hands, right shoulder degenerative joint disease, supraspinatus tear, 

tendinopathy, and bursitis. Id. However, the ALJ determined that Plaintiff’s impairments did not 

meet or medically equal the severity of a listed impairment. Tr. 21-22. At step four, the ALJ 

concluded that Plaintiff has the residual functional capacity to perform light work as defined in 

20 C.F.R. § 404.1567(b) and § 416.967(b), with the following limitations:

[C]laimant is limited to lifting and carrying ten pounds with her right arm. She can never 

crouch, crawl, or climb ladders, ropes, or scaffolds. She can frequently balance and climb 

ramps and stairs. She can occasionally kneel. She should avoid even moderate exposure

to workplace hazards. [S]he can never perform overhead reaching with her dominant, 

right upper extremity. She can occasionally finger and handle bilaterally. She must be 

permitted to use a hand-held assistive device, such as [a] cane while standing and 

walking. 

Tr. 22. The ALJ concluded that Plaintiff is unable to perform any past relevant work. Tr. 27. 

However, at step five the ALJ found that there are jobs that exist in significant numbers in the 

national economy that Plaintiff can perform, such as gate guard, surveillance system monitor, 

and call out operator. Tr. 28. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 29. 

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if the Commissioner 

applied proper legal standards and the findings are supported by substantial evidence in the 

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record. 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 

Cir. 2004). “Substantial evidence” means “more than a mere scintilla, but less than 

preponderance.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) 

(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion.” Id.

The court must weigh the evidence that supports and detracts from the ALJ’s conclusion. 

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 

715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the 

Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see 

also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the 

evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also

Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not 

assert in affirming the ALJ’s findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 

332 U.S. 194, 196 (1947)).

DISCUSSION

Plaintiff contends that the ALJ erred by (1) rejecting the opinion of treating provider Dr. 

Laplante; (2) failing to assess whether Plaintiff meets or equals Listing 1.04; (3) failing to 

perform a psychiatric review technique in finding Plaintiff’s mental health impairments nonsevere; and (4) improperly discounting Plaintiff’s credibility. The Court upholds the ALJ’s 

credibility finding and otherwise agrees with Plaintiff that the ALJ erred.

I. Treating Provider Dr. Laplante

Social security law recognizes three types of physicians: (1) treating, (2) examining, and 

(3) nonexamining. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. 

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Chater, 81 F.3d 821, 830 (9th Cir. 1996). Generally, more weight is given to the opinion of a 

treating physician than to the opinion of those who do not actually treat the claimant. Id.; 20 

C.F.R. §§ 1527(c)(1)-(2), 416.927(c)(1)-(2).

If the treating physician's medical opinion is supported by medically acceptable 

diagnostic techniques and is not inconsistent with other substantial evidence in the record, the 

treating physician's opinion is given controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th 

Cir. 2007); Holohan, 246 F.3d at 1202. If a treating physician's opinion is not given “controlling 

weight” because it is not “well-supported” or because it is inconsistent with other substantial 

evidence in the record, the ALJ must still articulate the relevant weight to be given to the opinion 

under the factors provided for in 20 C.F.R. §§ 1527(d)(2), 416.927(d)(2); Orn, 495 F.3d at 631.

“If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ 

may only reject it by providing specific and legitimate reasons that are supported by substantial 

evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted).

Approximately two weeks after the administrative hearing, on April 16, 2014, Plaintiff 

sought treatment from Dr. Cheryl Laplante. Tr. 375. On May 1 and May 5, 2014, Dr. Laplante 

filled out disability questionnaires provided to her by Plaintiff’s counsel. The record does not 

include any actual treatment records from Dr. Laplante’s office.

In the May 1, 2014 form, Dr. Laplante stated that Plaintiff’s medical conditions include 

lumbar stenosis, osteoarthritis cervical radiculopathy, right shoulder degenerative disease with 

supraspinatus tendon tear, depression, anxiety, a history of Lyme disease, arthritis, and 

glaucoma. Id. Dr. Laplante noted that Plaintiff’s primary symptoms are low back pain radiating 

into her right leg, joint pain in her hands, right shoulder pain, and numb left fingers. Id.

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In response to questions regarding Plaintiff’s residual physical functional capacity, Dr. 

Laplante opined that Plaintiff can occasionally lift and/or carry less than 10 pounds; she cannot 

frequently lift and/or carry any weight; she can stand and/or walk for 15 minutes at a time; she 

can stand and/or walk for an hour in an eight-hour day; she can sit for 30 minutes at a time; she 

can sit for an hour in an eight-hour day; and any time she is not sitting, standing, or walking, 

Plaintiff should be lying down or in a recliner chair, due to her lower back pain, numbness, and 

weakness in her right leg. Tr. 376. Dr. Laplante also opined that Plaintiff is limited in her 

abilities to push and/or pull. Id. In a series of check-box assessments, Dr. Laplante opined that 

Plaintiff could never engage in the following activities: climbing, balancing, stooping, bending, 

kneeling, crouching, or crawling. Id. She also opined that Plaintiff could only occasionally 

engage in the following: reaching overhead with her left arm; reaching at shoulder height with 

her left arm; handling; fingering with her right hand (she could never finger with her left hand 

due to numbness); and feeling with her right hand. Id.

Dr. Laplante estimated that, for 20% of a standard workweek, Plaintiff’s attention and 

concentration would be impaired to such a degree that she could not be expected to perform even 

simple work tasks. Id. Further, Dr. Laplante would expect Plaintiff to miss 16 hours or more a 

month because of her impairments, symptoms, medications, and their side effects. Id.

On May 5, 2014, Dr. Laplante completed another form provided by Plaintiff’s counsel. 

Dr. Laplante made a checkmark indicating that Social Security Listed Impairment 1.04(A), 

Disorders of the Spine, applied to Plaintiff. Tr. 379. Specifically, Dr. Laplante indicated that 

Plaintiff had evidence of nerve root compression characterized by neuro-anatomic distribution of 

pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or 

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muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the 

lower back, positive straight-leg raising test (sitting and supine). Id.

The ALJ afforded “little weight” to Dr. Laplante’s opinions. He found that the level of 

limitation Dr. Laplante proposed was not supported by the longitudinal record, “including the 

objective imaging studies, treatment notes from Dr. Nyrone and Mr. Njenga, and the objective 

observations of Drs. Yuen and Ellison[.]” Tr. 27.

Plaintiff argues that the ALJ’s reasoning falls short of Ninth Circuit standards because the 

ALJ “simply alleged inconsistency with objective findings and treatment notes in the record 

without actually identifying any inconsistencies.” Pl. Br. 6, ECF 17. The Court agrees. 

An ALJ errs when he assigns little weight to a medical opinion “while doing nothing 

more than . . . asserting without explanation that another medical opinion is more persuasive, or 

criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.” 

Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014). Here, the ALJ’s recitation of 

boilerplate language finding that Dr. Laplante’s opinions are not supported by the longitudinal 

record does not form a substantive basis for his decision to afford little weight to Dr. Laplante’s 

opinion. The fact that the ALJ included examples of this “longitudinal record,” such as treatment

notes and observations from other doctors, does not remedy the error because he does not point 

to any specific notes or observations that conflict with Dr. Laplante’s opinion. In essence, he 

asserts without explanation that other doctors’ opinions are more persuasive. This is not enough 

to constitute specific and legitimate reasons supported by substantial evidence.

Defendant points to evidence in the imaging studies, treatment notes, and objective 

observations that allegedly conflict with Dr. Laplante’s opinions. Because this evidence was 

cited by the ALJ elsewhere in his decision, Defendant argues that “the agency’s path may be 

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reasonably discerned,” and, thus, the Court should affirm the ALJ’s decision. Def.’s Br. 5, ECF 

19 (quoting Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012)). 

The lesson of Molina, however, is not applicable here. In Molina, the Ninth Circuit 

concluded that an ALJ’s failure to comment upon lay witness testimony is harmless where the 

same evidence that the ALJ referred to in discrediting the claimant’s claims also discredits the 

lay witness’s claims. Id. at 1121-22. In other words, even though the ALJ in Molina had failed to 

provide germane reasons for rejecting a witness’s testimony, the Court could reasonably discern 

the reasons because they were the same as those used to discredit the claimant’s testimony. Id.

Here, Defendant asks the Court to find that, even though the ALJ did not provide 

sufficiently specific reasons to discount Dr. Laplante’s testimony, the ALJ’s reasoning may be 

reasonably discerned by reviewing the ALJ’s summary of other medical opinions and evidence. 

Defendant’s attempt to rehabilitate the ALJ’s decision exceeds the bounds of the guidance 

provided by Molina and, instead, impermissibly enters the realm of post-hoc rationalization. See

Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (court cannot affirm finding based on 

reasons or evidence that the ALJ did not discuss); see also Mai Chang v. Comm'r of Soc. Sec. 

Admin., 507 F. App'x 698, 699 (9th Cir. 2013) (“we cannot affirm based on a rationale the ALJ 

never specifically articulated”)(citing Bray v. Comm'r, 554 F.3d 1219, 1226 (9th Cir. 2009)). 

Further, even if this Court looked to the evidence cited by Defendant, it is not clear that it 

contradicts Dr. Laplante’s opinion. 

In sum, while there may be reasons to discount Dr. Laplante’s opinion embedded in the 

ALJ’s summary of other medical evidence, the ALJ must discuss those reasons and link such 

evidence to his conclusion that Dr. Laplante’s findings are unsupported. This Court may not 

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remedy the ALJ’s error by making its own independent findings regarding Dr. Laplante’s 

opinion. 

II. Listing 1.04

According to Plaintiff, the ALJ erred at step three of the analysis because he failed to 

address whether Plaintiff’s impairments are equivalent to Social Security Listing 1.04(A). Dr. 

Laplante opined that Plaintiff meets the listing requirements. Tr. 379.

A claimant bears the burden of proving she meets or equals a listing. Bowen, 482 U.S. at 

146 n.5. To establish that an impairment is medically equivalent to a listed impairment, it is the 

claimant's burden to show that her impairment “is at least equal in severity and duration to the 

criteria of any listed impairment.” 20 C.F.R. § 416.926(a). For an impairment or combination of 

impairments to equal a listing, the claimant “must present medical findings equal in severity to 

all the criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531

(1990), superseded by statute on other grounds as stated in Kennedy v. Colvin, 738 F.3d 1172, 

1174 (9th Cir. 2013); see 20 C.F.R. § 416.926(a)-(b). “[A]n ALJ must evaluate the relevant 

evidence before concluding that a claimant's impairments do not meet . . . a listed impairment.” 

Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). “A boilerplate finding is insufficient[.]” Id.

Within the “Musculoskeletal System-Adult” category, there are several types of specific 

musculoskeletal impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1. Listing 1.04 addresses 

disorders of the spine resulting in compromise of a nerve root or the spinal cord. Id. Listing 1.04 

contains three different types of spine disorders. Id. At issue in this case is Listing 1.04(A) which 

requires evidence of “nerve root compression characterized by neuro-anatomic distribution of 

pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or 

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muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the 

lower back, positive straight-leg raising test (sitting and supine).” Id.

In response to a form provided by Plaintiff’s counsel, Dr. Laplante indicated that Plaintiff 

meets the requirements of Listing 1.04(A). Dr. Laplante also provided a narrative explanation in 

which she wrote: “Pt. has moderately severe lumbar stenosis with right radiculopathy. Uses a 

straight cane to walk. Has some numbness, weakness of right leg.” Tr. 380. 

The ALJ reviewed the listings and concluded that the objective medical evidence does 

not support a finding of disability under the Musculoskeletal System or Neurological System 

listings. Tr. 22. While the ALJ provided this overall reference to the Musculoskeletal System 

listings, he did not provide any explanation as to whether Plaintiff meets Listing 1.04(A). 

The Court agrees with Plaintiff that the ALJ did not give an adequate explanation for why 

Dr. Laplante’s opinion did not suffice to find that Plaintiff met the listing requirement of Listing 

1.04(A). Defendant’s argument rests upon the assumption that the ALJ properly discounted Dr. 

Laplante’s opinion and, therefore, Dr. Laplante’s conclusion that Plaintiff meets Listing 1.04(A)

can be disregarded. See Def.’s Br. 8 (“Plaintiff’s assertion is essentially a re-statement of her 

previous argument that the ALJ improperly rejected Dr. Laplante’s check-box form. Because the 

ALJ properly discounted that evidence, Plaintiff’s evidence is not persuasive.”). However, as 

discussed above, the Court finds that the rejection of Dr. Laplante’s opinion was not supported 

by substantial evidence. Therefore, the ALJ erred by not addressing Dr. Laplante’s opinion 

regarding Listing 1.04(A).

///

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III. Step Two Review of Plaintiff’s Mental Health Impairments

Plaintiff contends that the ALJ erred in his step two analysis of the severity of Plaintiff’s 

mental health impairments because he failed to perform a psychiatric review technique. 

Defendant responds that the ALJ’s error was harmless. 

When evaluating psychiatric impairments, the ALJ must follow a “special psychiatric 

review technique” and document his findings and conclusions in his decision. Chaudhry v. 

Astrue, 688 F.3d 661, 670 (9th Cir. 2012) (quoting Keyser v. Comm'r Soc. Sec. Admin., 648 

F.3d 721, 725 (9th Cir. 2011)). 

[A]n ALJ must determine whether the claimant has a medically severe impairment or 

combination of impairments. In making this determination, an ALJ is bound by 20 C.F.R. 

§ 404.1520a. That regulation requires those reviewing an application for disability to 

follow a special psychiatric review technique. Specifically, the reviewer must determine 

whether an applicant has a medically determinable mental impairment, rate the degree of 

functional limitation for four functional areas, determine severity of the mental 

impairment (in part based on the degree of functional limitation), and then, if the 

impairment is severe, proceed to step three of the disability analysis to determine if the 

impairment meets or equals a specific listed mental disorder.

Keyser, 648 F3d at 725 (citations omitted). An ALJ’s failure to follow the psychiatric review 

technique is harmless if the claimant does not present sufficient evidence to demonstrate a 

“colorable claim of mental impairment.” Id. at 726. 

Plaintiff filed her disability claim based on depression and anxiety, among other illnesses, 

injuries, and conditions. Tr. 62. The record contains several treatment notes and diagnoses 

regarding Plaintiff’s mental health. For example, in February of 2010, treating physician Dr. 

Nyone noted that Plaintiff presented with complaints of panic attacks and anxiety, although she 

denied depression. Tr. 269. In May of 2012, consultative examiner Dr. Stradinger diagnosed 

Plaintiff with generalized anxiety disorder, per history; rule out alcohol-induced anxiety disorder, 

with panic attacks; mood disorder NOS; and rule out alcohol dependence. Tr. 325. Dr. Stradinger 

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found that Plaintiff has a “moderate impairment for interacting with co-workers and the public, 

given her anxiety.” Id. In June of 2013, treating physician Dr. Njenga noted that Plaintiff’s 

symptoms included “anxiety, depressed mood, difficulty concentrating, fatigue and somatic 

symptoms.” Tr. 350. In November of 2013, Plaintiff presented for follow-up of depression and 

stated that Zoloft had stabilized her condition. Tr. 340. In April of 2014, consultative examiner 

Dr. Ellison diagnosed Plaintiff with “[c]hronic depression and anxiety helped by treatment.” Tr. 

366. 

Defendant argues that the evidence supports a finding that Plaintiff’s mental health 

impairments are non-severe and, therefore, the ALJ’s failure to conduct a psychiatric review 

technique is harmless. In support of its argument, Defendant notes that the ALJ discounted Dr. 

Stradinger’s opined limitation regarding Plaintiff’s ability to interact with co-workers and the 

public, Dr. Njenga’s treatment notes contain only one complaint of anxiety symptoms over at 

least 10 visits, and Plaintiff generally had normal psychiatric findings during her visits to Dr. 

Nyone’s clinic. Def.’s Br. 10-11, ECF 19. In addition, Defendant points to Plaintiff’s testimony 

that Zoloft helped treat her mental health symptoms. See Tr. 52 (testifying that “[Zoloft is] 

working fine. I still have episodes [of anxiety and depression], but I take it daily. Sometimes I 

have to take an extra one during the day.”). 

Defendant’s argument regarding the severity of Plaintiff’s mental health impairments is 

compelling. However, it is the ALJ’s role, not this Court’s, to weigh the medical evidence and 

determine the severity of Plaintiff’s impairments. This is not like other cases from the Ninth 

Circuit where the duty to develop the record regarding a mental impairment was not triggered 

because the claimant failed to point to any objective medical evidence of a mental impairment. 

See, e.g., Spence v. Colvin, 617 F. App’x 752, 754 (9th Cir. 2015) (finding ALJ’s failure to 

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address the limitation factors under 20 C.F.R. § 404.1520 harmless error because there was no 

objective evidence of a mental impairment and comments by medical providers suggesting that 

claimant talked incessantly and had trouble staying on track were insufficient); Alekseyevets v. 

Colvin, 524 F. App’x 341, 343 (9th Cir. 2013) (finding that utilization of the psychiatric review 

technique was not required because the ALJ correctly determined that claimant failed to present 

a colorable claim of mental impairment); Moore v. Comm'r of Soc. Sec., 500 F. App’x 638, 640 

(9th Cir. 2012) (ALJ’s failure to follow the psychiatric review technique was harmless because 

there was no evidence of an impairment of claimant’s ability to do basic work activities). 

Here, Plaintiff presented several pieces of evidence and testimony regarding her alleged 

mental impairments. In such a case, the Court must “reject the [] Commissioner's contention that 

even if the ALJ erred in this regard, [Plaintiff] has nonetheless failed to establish the existence of 

any mental impairments. It is not for [the Court] to gauge on appeal the extent and severity of 

[Plaintiff’s] mental impairments. Rather, that task falls to the ALJ in the first instance, and must 

be completed through the application of the special psychiatric review technique.” Angevine v. 

Colvin, 542 F. App’x 589, 591 (9th Cir. 2013). Accordingly, the ALJ’s error was not harmless.

IV. Plaintiff’s Credibility

Plaintiff contends that the ALJ failed to provide clear and convincing reasons for 

rejecting her testimony about her impairments and their limiting effects. In assessing the 

credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the 

ALJ engages in a two-step analysis. 20 C.F.R. § 404.1529. First, the ALJ determines whether 

there is objective medical evidence of an underlying impairment that could reasonably be 

expected to produce some degree of symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 

1996). If such evidence exists, and barring affirmative evidence of malingering, the ALJ must 

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give clear and convincing reasons for discrediting the claimant's testimony regarding the severity 

of the symptoms. Id. at 1284; see also Lingenfelter, 504 F.3d at 1036. If the record contains 

affirmative evidence of malingering, the ALJ need only provide specific and legitimate reasons 

for an adverse credibility finding. Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999).

The ALJ may consider many factors in weighing a claimant’s credibility, including: (1) 

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

inconsistent statements concerning the symptoms, and other testimony by the claimant that 

appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or 

to follow a prescribed course of treatment; and (3) the claimant’s daily activities. Tommasetti v. 

Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). In addition, conflicts between a claimant’s 

testimony and the objective medical evidence in the record can undermine a claimant's 

credibility. Morgan, 169 F.3d at 600. Where the ALJ's credibility findings are supported by 

substantial evidence in the record, the reviewing court “may not engage in second-guessing.” 

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). However, a general assertion that 

plaintiff 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. Shalala, 12 F.3d 915, 918 

(9th Cir.1993); see also Morgan, 169 F.3d at 599.

Plaintiff testified that she last worked in 2008 and that she can no longer work because of 

her pain. Tr. 40. According to Plaintiff, her hands hurt all of the time and she cannot close her 

pinkie finger on her left hand. Tr. 41. Plaintiff testified that she cannot type, open jars, snap her 

bra, or grab items. Tr. 40, 42, 45. Plaintiff testified that she can only lift her shoulder “up so far” 

because of pain. Id. Plaintiff wears wrist braces and walks with a cane to help with balance. Tr. 

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45, 46, 48. Lifting a gallon of milk would be very difficult and she would not be able to do it 

with one hand only. Tr. 47.

Plaintiff also testified that the side effects from her medication make her sleepy. Tr. 42.

In addition, she suffers from anxiety attacks for a variety of reasons, such as stress, “being 

uncomfortable,” and menopause. Tr. 51. 

Plaintiff testified that “every day activities are hard” for her. Tr. 44. She watches 

television, reads, does a small amount of chores, and rests a lot. Tr. 44, 52. Plaintiff spends time 

with her daughter, who visits her frequently. Tr. 52. Plaintiff does not drive because of the pain 

in her hands and her blurry vision. Tr. 53. 

The ALJ found Plaintiff “not entirely credible” because her allegations of disability are 

unsupported by the medical record and treatment history. While the ALJ found that the objective 

medical evidence, including x-rays and MRI images, lend some credibility to her allegations of 

pain and physical limitations, “the objective observations of Dr. Nyrone and Mr. Njenga, 

combined with [Plaintiff] only having a prescription for Tramadol, an opioid analgesic, are 

stronger persuasive evidence that the limitations are not so severe as to preclude her from all 

work.” Tr. 24. The ALJ noted that Plaintiff’s treatment history has been “sporadic, routine, and 

conservative.” Tr. 24. 

For example, at an October 2010 appointment with Dr. Nyrone, Plaintiff presented with 

complaints of pain in her elbows, hands, and feet. Tr. 285. However, upon examination, her 

shoulders, wrists, hands, feet, and elbows were normal, except for “minimal” tenderness over the 

bilateral lateral epicondylar areas. Id. At appointments throughout 2013, Plaintiff’s mood, affect, 

attention, and orientation were normal. Tr. 345, 350-51. Plaintiff reported that Tramadol worked 

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well for her pain. Tr. 339. She was also prescribed Sertraline and Trazodone for depression and 

insomnia, respectively. Tr. 340. 

The ALJ provides sufficient reasons, supported by substantial evidence, to discount 

Plaintiff’s credibility. The Court disagrees with Plaintiff’s characterization of the ALJ’s 

credibility finding as nothing more than a longitudinal review of the record, followed by a 

blanket statement discounting her credibility. See Brown-Hunter v. Colvin, 806 F.3d 487, 494 

(9th Cir. 2015) (“General findings are insufficient; rather, the ALJ must identify what testimony 

is not credible and what evidence undermines the claimant's complaints.”). While the ALJ’s 

analysis regarding Plaintiff’s credibility could have been more detailed and specific, the ALJ 

provides two clear and convincing reasons—conflicts with the medical record and Plaintiff’s 

treatment history—to discount her testimony. The ALJ’s credibility finding is affirmed.

V. Remand for Further Administrative Proceedings

The Court may remand this case “either for additional evidence and findings or to award 

benefits.” Smolen, 80 F.3d at 1292. Benefits may be awarded where “the record has been fully 

developed” and “further administrative proceedings would serve no useful purpose.” Id.

However, generally, when an ALJ's decision is reversed, “the proper course, except in rare 

circumstances, is to remand to the agency for additional investigation or explanation.” Benecke 

v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004) (citations omitted). Thus, it is “the unusual case in 

which it is clear from the record that the claimant is unable to perform gainful employment in the 

national economy,” and “remand for an immediate award of benefits is appropriate.” Id.

Here, issues remain regarding the proper weight to assign the opinion of Dr. Laplante and 

whether application of the special psychiatric review technique would result in a finding of a 

severe mental health impairment. Plaintiff concedes that the proper remedy is to remand for 

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further proceedings. See Pl.’s Br. 10 (“The ALJ’s decision must be remanded for full and fair 

consideration.”).

CONCLUSION 

The Court affirms the ALJ’s credibility finding but reverses and remands the case for 

further administrative proceedings because the ALJ erred by rejecting the opinion of treating 

provider Dr. Laplante; failing to assess whether Plaintiff meets or equals listing 1.04; and failing 

to perform a psychiatric review technique in finding Plaintiff’s mental health impairments nonsevere. 

IT IS SO ORDERED. 

Dated this ________ day of __________________________, 

_______________________________________________

MARCO A. HERNÁNDEZ 

United States District Judge 

12 January

2017

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