IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

SHERRI PURSER, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, Acting 

Commissioner of Social Security, 

Defendant. 

Merrill Schneider 

Schneider Kerr Law Offices 

P.O. Box 14490 

Portland, OR 97293 

Attorney for plaintiff 

Janice E. Hebe1t 

Assistant United States Attorney 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97204 

Jordan D. Goddard 

Special Assistant United States Attorney 

Office of General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, Washington 98104 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case No. 3:15-cv-00606-AA 

OPINION AND ORDER 

Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 1 of 13
AIKEN, Judge: 

Plaintiff Sherri Purser brings this action pursuant to the Social Security Act, 42 U.S.C. § 

405(g), to obtain judicial review of the Commissioner's decision denying her application for 

disability benefits under Title II of the Social Security Act. For the reasons set fotth below, the 

Commissioner's decision is reversed and remanded for further proceedings. 

BACKGROUND 

On July 26, 2011, plaintiff protectively filed an application for disability benefits, alleging 

disability beginning February 4, 2011 due to ve1tigo, reflex sympathetic dystrophy ("RSD"), 1 chronic 

stress, depression, anxiety, complex regional pain syndrome, and nerve damage. Tr. 160, 164. Her 

application was denied initially and on reconsideration. Tr. 90, 98. On August 20, 2013, plaintiff 

was represented by an attorney and testified at a hearing held by an Administrative Law Judge 

("ALJ"). Tr. 33. On September 25, 2013, the ALJ issued an unfavorable decision. Tr. 16. On 

February 11, 2015, the Appeals Council denied plaintiff's request for review, rendering the ALJ' s 

decision the final decision of the Commissioner. Tr. I. Plaintiff now seeks judicial review. 

STANDARD OF REVIEW 

The district coutt must affirm the Commissioner's decision if it is based upon proper legal 

standards and the findings are suppotted by substantial evidence in the record. 42 U.S.C. § 405(g); 

Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere 

scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion." Gutierrez v. Comm 'r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 

2014) (internal quotation marks omitted). The court must weigh "both the evidence that suppotts 

and the evidence that detracts from the ALJ's" decision. Mayes v. Massanari, 276 F.3d 453, 459 

(9th Cir. 2001). If the evidence is susceptible to more than one interpretation but the 

Commissioner's decision is rational, the Commissioner must be affirmed, because "the co mt may 

1 RSD "is a syndrome of burning pain, hyperesthesia, swelling, hyperhidrosis, and trophic 

changes in the skin and bone of the affected extremity." Knapp v. Sullivan, 1989 WL 138746, *2 

(D. Or. Nov. I, 1989). 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 2 of 13
not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 

1156 (9th Cir. 2001). 

COMMISSIONER'S DECISION 

The initial burden of proofrests upon the plaintiff to establish disability. Howardv. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff 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 employs a five-step sequential process to determine whether a person is 

disabled under the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. At step 

one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged 

disability onset date. Tr. 21. At step two, the ALJ found plaintiff has the following medically severe 

impairments: vertigo, RSD, and migraines. Tr. 21; 20 C.F.R. § 404.1520(c). The ALJ 

acknowledged plaintiffs medically detetminable impairments of posttraumatic stress disorder 

("PTSD"), major depressive disorder, and generalized anxiety disorder, but deemed those 

impairments nonsevere. Tr. 21. At step three, the ALJ found plaintiff's medically severe 

impairments did not meet or medically equal the severity of one of the listed impairments the 

Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 21; 20 

C.F.R. § 404.1520(d). 

At step four, the ALJ found plaintiff retained the residual functional capacity ("RFC") to 

perform light work as defined in 20 C.F.R. § 404. l 567(b ), subject to the following limitations: no 

more than occasional pushing and pulling with the right upper arm; no more than occasional 

stooping, kneeling, crouching, crawling, or climbing ramps/stairs; and no exposure to hazards such 

as machinety and heights. Tr. 23. Based on this RFC and the testimony of a vocational expe1i, the 

ALJ found plaintiff was able to perform her past relevant work as a call center worker and sales 

associate. Tr. 26. Accordingly, the ALJ found plaintiff not disabled. Tr. 27. 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 3 of 13
DISCUSSION 

Plaintiff contends the ALJ committed two significant legal eiTOrs in finding her not disabled. 

First, she asse1ts the ALJ erred by failing to categorize her mental health problems as severe 

impairments at step two, leading to prejudicial enor at step five. Second, plaintiff avers the ALJ 

gave little weight to the opinion of Dr. Lee, the physician who treats her for vertigo and migraines, 

without legally sufficient justification. 

I. Step Two Analysis 

Plaintiff first challenges the ALJ's finding her PTSD, depression, and anxiety, either singly 

or in combination, were not severe impairments. 

The Social Security Regulations and Rulings, as well as case law applying them, 

discuss the step two severity determination in terms of what is "not severe." 

According to the Commissioner's regulations, "an impairment is not severe ifit does 

not significantly limit [the plaintiffs] physical ability to do basic work activities[.]" 

Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996) (quoting 20 C.F.R. §§ 401.1520(c), 

404.1521 (a)). Step two is a "de minimis screening device to dispose of groundless claims." Id. As 

a result, a finding of"not severe" is appropriate "only if the evidence establishes a slight abnormality 

that has 'no more than a minimal effect on an individual[']s ability to work."' Id. (quoting SSR 85-

28). To support a finding an impairment is not severe, the ALJ must (1) carefully evaluate the 

medical findings that describe the impairment, which include "the objective medical evidence and 

any impairment-related symptoms"; and (2) make "an informed judgment about the limitations and 

restrictions the impairment(s) and related symptom(s) impose on the individual's physical and 

mental ability to do basic work activities." SSR 96-3P. 

Plaintiff argues the ALJ found her mental impairments nonsevere only by ignoring the weight 

of the evidence and discrediting the opinions of three physicians without sufficient justification. The 

ALJ discussed five portions of the medical record in deeming plaintiffs mental impahments 

nonsevere: the opinion and treatment records of Stephen Huggins, Psy.D., plaintiffs treating mental 

health provider from May 2011 to March 2012; intake notes from Cascadia Behavior Healthcare, 

a clinic plaintiff visited in Januaiy 2013; two letters from William Madison, Ph.D., plaintiffs 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 4 of 13
treating mental health provider from Februaty 2013 through at least September 2013; and the 

opinions of agency reviewing physicians Michael J. Dennis, Ph.D, and Paul Rethinger, Ph.D. The 

ALJ discredited the opinions of Dr. Huggins, Dr. Madison, and Dr. Rethinger; gave great weight to 

the opinion of Dr. Dennis; and concluded the Cascadia health record supported the conclusion 

plaintiffs mental impairments were nonsevere. After a careful review of the relevant portions of 

the record and the ALJ' s opinion, I conclude the ALJ erred in weighing the medical evidence 

regarding plaintiffs mental impairments. 

First, in his decision, the ALJ made several statements about the medical source opinions that 

are plainly incorrect. For example, the ALJ stated Dr. Dennis deemed plaintiffs mental impairments 

nonsevere, but Dr. Dennis categorized both anxiety and affective disorder as severe impairments. 

Compare Tr. 23 with Tr. 67. The ALJ also declared Dr. Rethinger assessed both "mild limitations 

in social functioning" and "no social limitations"; these statements cannot simultaneously be true, 

and the record shows Dr. Rethinger in fact assessed mild limitations in this area. Compare Tr. 23 

with Tr. 81. Finally, the ALJ summarized Dr. Huggins's treatment notes as opining plaintiff had 

"mild to minimal impairment in marital, family, and interpersonal functioning." Tr. 22. Although 

this is an accurate characterization of some isolated treatment notes, e.g. Tr. 419, the full record 

shows Dr. Huggins generally assessed mild to moderate impairment in these areas, with one 

treatment note indicating serious impairment of family functioning. See generally Tr. 401-28, 4 73-

89. These errors raise serious questions about whether the ALJ's decision at step two rested on a 

complete and cot1'ect understanding of the record. 

Second, the ALJ failed to address relevant medical evidence. Because a finding an 

impairment is nonsevere is appropriate only if that nonseverity is "clearly established by medical 

evidence," an ALJ is bound to consider all relevant medical evidence at step two. See Webb v. 

Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting SSR 85-28). The record contains two letters 

from Dr. Madison: a one-page letter dated June 27, 2013 ("June Letter"), Tr. 521, and a three-page 

supplemental letter dated September 13, 2013 ("September Letter"), Tr. 583-85. In the June Letter, 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 5 of 13
Dr. Madison explained plaintiff was "very overwhelmed by her mental and physical issues" and 

opined symptoms caused by those issues were "among the worst [he had] witnessed in [his] 24 years 

in mental health." Tr. 521. Dr. Madison concluded plaintiffs "right[ful] pre-occup[ ation] with these 

issues ... would preclude herability to think clearly on the job and even follow simple instructions." 

Tr. 521. After the disability hearing, the ALJ asked Dr. Madison to submit treatment notes 

supp01ting his conclusions. Tr. 231. Dr. Madison explained he did "not keep detailed clinic notes, 

so there are none to send." Tr. 231. He offered instead "to write a letter stating [plaintiffs] 

symptoms and prognosis." Tr. 231. The ALJ responded "another letter ... would not be helpful." 

Tr. 231. 

Dr. Madison submitted the September Letter anyway. The September Letter summarizes Dr. 

Madison's treatment histoty with plaintiff, describing in some detail the focus of twenty-one 

individual visits. Tr. 583-84. Dr. Madison opined plaintiff"did not exaggerate" and "[i]f anything, 

... under reports her symptoms." Tr. 583. He also repeated his opinion from the June Letter 

regarding symptom severity and predicted she would be absent from work "definitely ... more than 

2 or 3 days ... a month, perhaps even in a week." Tr. 584-85. 

The ALJ gave little weight to the June Letter because it was "conclusoty" and because 

"[o]ther treatment notes do not suggest the severity opined by Dr. Madison." Tr. 22. The ALJ 

further noted Dr. Madison's failure to provide "treatment notes to suppott his conclusion despite my 

request." Tr. 22. The ALJ expressed skepticism regarding Dr. Madison's explanation for the 

absence of treatment notes, characterizing it as "contraty to my understanding of regular medical 

protocol and standards of practice to document sessions and keep notes." Tr. 22. The ALJ did not 

mention the September Letter. 

The ALJ permissibly discredited the June Letter as conclus01y. See Thomas v. Barnhart, 278 

F.3d 947, 957 (9th Cir. 2002) ("The ALJ need not accept the opinion of any physician, including a 

treating physician, if that opinion is brief, conclusoty, and inadequately supported by clinical 

findings."). The September Letter, however, contained substantially more detail than the June Letter 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 6 of 13
and described a course of treatment. The ALJ' s failure to even consider the contents of the 

September Letter, and apparent determination its contents would not inform his decision before even 

seeing the letter, was eTI'or. 

Third, the ALJ did not provide legally sufficient reasons to reject the opinions of Dr. Huggins 

and Dr. Rethinger. There are three types of medical opinions in social security cases: treating 

physicians, examining physicians, and non-examining physicians. Lester v. Chater, 81 F.3d 821, 

830 (9th Cir. 1995). "Generally, a treating physician's opinion carries more weight than an 

examining physician's, and an examining physician's opinion can'ies more weight than a reviewing 

physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(d). 

"When there is conflicting medical evidence, the [ALJ] must determine credibility and resolve the 

conflict." Thomas, 278 F.3d at 956-57 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 

1992)). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, it 

may be rejected only for specific and legitimate reasons. Lester, 81 F.3d at 830-31. "The opinion 

of a nonexamining physician cannot by itself constitute substantial evidence that justifies the 

rejection of the opinion of either an examining physician or a treating physician." Id. at 831. 

Dr. Huggins treated plaintiff for anxiety and depression. Tr. 425. His treatment notes also 

regularly mention plaintiffs vetiigo. See, e.g., Tr. 401, 405-08, 413, 425. In a check-the-box 

portion of his treatment notes, he consistently opined plaintiff could not function in a job setting. 

See generally Tr. 401-28, 473-89; but see Tr. 405, 407, 412, 421, 474-76, 478-80, 482-83, 486 

("NI A" box checked for job-related ability to function); Tr. 420 (indicating "serious impairment" 

in job functioning); Tr. 423 (indicating "moderate impairment" in job functioning); Tr. 477 

(checking both "NIA" and "cannot function" in job category). As explained above, he also assessed 

mild to moderate problems with marital, family, and interpersonal relationships. The ALJ 

discredited Dr. Huggins's opinion because it was "unclear" what objective findings supported his 

assessment of plaintiffs limitations, Dr. Huggins' s treatment notes "suggest[ ed] mild symptoms, and 

stress related to various interpersonal issues," and plaintiff stopped treatment with Dr. Huggins in 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 7 of 13
March 2012. Tr. 22. The ALJ also found the limitations assessed by Dr. Huggins unsupp01ted by 

the treatment notes of other mental health providers. Tr. 22. Finally, the ALJ interpreted Dr. 

Huggins' opinion about plaintiff's ability to function in a work setting as resting on plaintiff's 

complaints about her vertigo, and thus irrelevant to determining whether her mental health 

impairments were severe. Tr. 22. 

Dr. Huggins's notes do not tie his work-restriction opinion to any paiticular ailment. In 

addition, when the notes mention work, they relate to plaintiff's vertigo. See, e.g., Tr. 481 ("Went 

& resigned at work as not able to work w/ vettigo. ") The ALJ rationally linked this portion of Dr. 

Huggins's opinion to plaintiff's physical limitations. Accordingly, this Coutt must defer to that 

finding. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) ("[I]f 

evidence exists to supp01t more than one rational interpretation, [the comt] must defer to the 

Commissioner's decision[.]") 

Dr. Huggins's treatment notes on plaintiff's depression and anxiety do contain significant 

discussion of interpersonal problems. But that is not a sufficient reason to support the ALJ's 

determination plaintiff's mental problems were not severe. Situational depression may be chronic 

and is regularly categorized as a severe limitation at step two. See, e.g., Spelatz v. Astrue, 2011 WL 

4544085, *5 (D. Or. Sept. 28, 2011); Fennen v. As/rue, 2010 WL 605251, *4 (E.D. Wash. Feb. 18, 

2010). Defendants cite Gates v. Astrue, 627 F.3d 1080, I 082 (8th Cir. 2010) for the proposition that 

"situational depression is not disabling." Def. 's Br. 17. In Gates, the Eighth Circuit affirmed the 

ALJ' s finding the plaintiff's situational depression was nonsevere because the record revealed the 

depression had improved with a regimen of medication and counseling. Gates, 627 F.3d at 1082. 

At step two, the appropriate focus for any impairment, including situational depression, is whether 

the impairment meets the durational and severity requirements. Here, Dr. Huggins continued to 

assess mild to moderate limitations related to anxiety and depression throughout his treatment 

relationship with plaintiff. That plaintiff's depression was situational is not a legitimate reason to 

discount Dr. Huggins's opinion. 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 8 of 13
The ALJ also erred to the extent he took the end of plaintiffs treatment with Dr. Huggins in 

March 2012 as evidence her mental health problems were mild, as the record clearly shows she 

stopped treatment because she lost her health insurance. Tr. 473, 516. Moreover, the ALJ did not 

specify which portions of other mental health providers' notes were inconsistent with or 

unsupportive of the difficulties Dr. Huggins assessed with interpersonal relationships. The only 

inconsistency apparent to the court is the assessment agency reviewing physicians' assessment of 

mild difficulties with social functioning. See Tr. 67, 81. As explained above, the opinion of a 

nonexamining physician, standing alone, does not justify rejecting the opinion of a treating 

physician. Lester, 81 F.3d at 831. TheALJ's decision to discredit Dr. Huggins's assessment of mild 

to moderate difficulties in family, marital, and interpersonal relationships is not supported by 

substantial evidence. 

Finally, the ALJ did not adequately explain his decision to discredit the opinion of Dr. 

Rethinger while crediting the opinion of Dr. Dennis. Dr. Dennis reviewed the medical records and 

assessed no restrictions in activities of daily living; mild restrictions in social functioning; and mild 

restrictions in concentration, persistence, or pace. Tr. 67. On reconsideration, Dr. Rethinger 

assessed no restrictions in activities of daily living; mild restrictions in social functioning; and 

moderate restrictions in concentration, persistence, or pace. Tr. 81 (emphasis added). Dr. Rethinger 

also recommended restricting plaintiff to jobs requiring no more than one- to two-step instructions, 

opining she would "be incapable of understanding/remembering more complex instructions d/t sxs 

of depression." Tr. 85. The ALJ gave significant weight to Dr. Dennis' s opinion because he found 

it consistent with the treatment record, and little weight to Dr. Rethinger's opinion because he found 

it inconsistent with the treatment record. Tr. 23. The ALJ did not explain which portions of the 

record, other than Dr. Dermis's opinion, were inconsistent with the concentration, persistence, or 

pace limitations in Dr. Rethinger's opinion. Moreover, that restriction is consistent with other 

evidence in the record, most notably Dr. Madison's opinion plaintiff would have trouble "think[ing] 

clearly on the job and even follow[ing] simple instructions." Tr. 585. Accordingly, substantial 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 9 of 13
evidence does not support the ALJ' s decision to discredit Dr. Rethinger' s opinion. 

Considering the record as a whole, I find the evidence establishes plaintiffs mental 

impairments "constituted more than a 'slight abnormality' that had 'no more than a minimal effect 

on [plaintiffs] ability to do work."' Smolen, 80 F .3d at 1290. Accordingly, the ALJ erred at step two 

in failing to designate those impairments as severe. Because the ALJ resolved step two in plaintiffs 

favor, however, that e1rnr is harmless unless it prejudiced plaintiff at step three (listing impairment 

determination) or step five (formulation of RFC and assessment of plaintiffs ability to perform 

particular jobs). Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Plaintiff does not point to 

any prejudice at step three. Accordingly, the question is whether plaintiff was prejudiced at step five 

by the error at step two. 

On the current record, I cannot conclude the error at step two was harmless. First, some of 

the restrictions in the discredited opinions clearly would exclude the jobs the ALJ found plaintiff 

could do. Both call center worker and sales associate require Level Three Reasoning.2 The Ninth 

Circuit has held there is an apparent conflict between a restriction to simple, repetitive work and the 

demands of Level Three Reasoning. Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015). 

Moreover, the Ninth Circuit recently found an apparent conflict between a one- to two-step task 

limitation and the lower demands of Level Two Reasoning. Rounds v. Comm 'r Soc. Sec. Admin., 

807 F.3d 996, 1003 (9th Cir. 2015). Dr. Rethinger and Dr. Madison both identified restrictions 

related to simple, repetitive work, and Dr. Rethinger specifically recommended a one- to two-step 

task limitation. The apparent conflict between these restrictions and the reasoning requirements of 

call center worker and sales associate prevents me from determining whether the ALJ' s step five 

finding was suppmted by substantial evidence. 

Second, the RFC contains no adjustments for plaintiffs mental limitations regarding social 

functioning. In the section of the opinion addressing RFC, the only discussion oflimitations tied to 

2 The Dictionary of Occupational Titles assigns each job a General Educational 

Development score, one component of which is Reasoning Development. Dictionaiy of 

Occupational Titles app. C §III (4th ed. 1991), 1991WL688702. 

Page 10 - OPINION AND ORDER 

Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 10 of 13
depression, anxiety, or PTSD is the ALJ's reiteration these problems are not severe. Tr. 24. In 

assessing RFC, an ALJ is bound to consider limitations and restrictions imposed by all of an 

individual's impairments, even those deemed not severe. Burch, 400 F.3d at 683 (citing Social 

Security Ruling 96-8p); 20 C.F.R. § 404.1545(a)(2). A proper function-by-function analysis must 

explain why the RFC contains no limitations related to a medically determinable impairment. It is 

not clear how moderate limitations in social functioning (as reflected in the Dr. Huggins's opinion) 

or severe limitations in social functioning (as reflected in Dr. Madison's opinion) would translate 

into RFC limitations or restrict plaintiffs ability to perform the identified jobs. Because I cannot 

conclude the step two error was harmless, the Commissioner's decision must be remanded. 

IL Treatment of Dr. Lee's Opinion 

Plaintiff also asserts the ALJ ened in giving little weight to the opinion of Harold G. Lee, 

M.D. Dr. Lee treated plaintiff over the course of more than two years, primarily for complaints 

related to ve1tigo and migraines. Tr. 429-48, 566-7 5. In the months preceding plaintiffs resignation 

from her job, Dr. Lee authorized time off from work as a result of these conditions. E.g. Tr. 566. 

Dr. Lee completed a medical source statement in August 2013. He explained plaintiff suffers from 

"frequent" and "unpredictable" migraine and ve1tigo attacks. Tr. 581. He opined these attacks 

would preclude her from "sustaining even a simple routine and sedentmy job on an ongoing basis," 

and predicted the attacks would cause "more than three to four" absences per month. Tr. 581. The 

ALJ found Dr. Lee's opinion "inconsistent with the clinical findings" and gave it little weight. Tr. 

25. 

To reject the uncontested opinion of a treating or examining doctor, the ALJ must present 

elem· and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing 

Lester, 81 F.3d at 830-31). If the opinion is contradicted by another doctor's opinion, it may be 

rejected only for specific and legitimate reasons. Lester, 81 F.3d at 830-31. Assuming without 

deciding there is a conflict between Dr. Lee's opinion and other medical evidence in the record, the 

ALJ's blanket statement regarding inconsistency with other evidence is insufficiently specific. The 

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Case 3:15-cv-00606-AA Document 20 Filed 03/21/16 Page 11 of 13
ALJ did not point to any specific portions of the record that conflicted with Dr. Lee's opinions 

regarding plaintiffs vetiigo and migraines, and no such conflicts are apparent to this Court. To the 

extent the ALJ relied on clinical findings demonstrating mild problems with balance, he failed to 

address the episodic nature of plaintiffs vetiigo as documented in Dr. Lee's treatment notes. 

Plaintiff asks this Court to credit as true Dr. Lee's opinion she would be absent from work 

more than three to four days per month and remand for an immediate award of benefits. The 

"ordinary remand rule" requires a court to remand for further proceedings unless a ce11ain set of 

criteria are met. Treichler v. Comm. of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). In 

this case, remand for further proceedings is the correct course because I caIB1ot conclude "further 

administrative proceedings would serve no useful purpose." Brown-Hunter v. Colvin, 806 F.3d 487, 

495 (9th Cir. 2015). It is unclear how Dr. Lee assessed plaintiffs level of absenteeism. Nothing in 

his treatment notes documents the frequency of attacks, and Dr. Lee did not disaggregate absences 

due to migraines (which, as the ALJ noted, plaintiff appears to treat with over-the-counter 

medication, Tr. 49) from absences due to vertigo. I conclude remand on an open record is 

appropriate to assess the credibility of Dr. Lee's absenteeism prediction. 

CONCLUSION 

The decision of the Commissioner is REVERSED and REMANDED for further proceedings. 

On remand, the ALJ must (1) at step two, deem plaintiffs PTSD, anxiety, and depression a "severe" 

combination of impairments; (2) address and resolve conflicts in the medical evidence regarding the 

extent of limitations stemming from plaintiffs mental impairments, including specifically 

discussing Dr. Madison's September Letter; (3) in formulating the RFC, expressly consider the 

limitations caused by the mental impaitments; (4) adequately address Dr. Lee's opinion, including 

supplementing the record if necessary; and (5) at step five, resolve any conflicts between Reasoning 

Level and limitations in the RFC related to concentration, persistence, or pace. 

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IT IS SO ORDERED. 

Dated thi~ day of March 2016. 

Ann Aiken 

United States District Judge 

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