IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KATIE GONZALES, 

Plaintiff, 

v. 

NANCY A. BERRYHILL, 

Acting Commissioner of Social Security, 

Defendant. 

PAP AK, Magistrate Judge: 

3: 16-CV-00432-PK 

OPINION AND 

ORDER 

Plaintiff Katie Gonzales ("Gonzales") filed this action June 25, 2009, seeking judicial 

review of the Commissioner of Social Security's final decision denying her application for 

disability insurance benefits ("DIB") and Supplemental Security Income ("SS!") under Titles II 

Page I - OPINION AND ORDER 
and XVI of the Social Security Act (the "Act"). This comi has jurisdiction over Gonzales' action 

pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). I have considered all of the parties' briefs and all 

of the evidence in the administrative record. For the reasons set forth below, the Commissioner's 

final decision should be REVERSED and REMANDED for the immediate payment of benefits. 

DISABILITY ANALYSIS FRAMEWORK 

To establish disability within the meaning of the Act, a claimant must demonstrate an 

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

physical or mental impairment which can be expected ... to last for a continuous period of not 

less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step 

sequential process for determining whether a claimant has made the requisite demonstration. See 

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4), 

416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only 

at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. 

Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 

At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work 

activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 

416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the 

claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 

404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will 

proceed to the second step. 

At the second step, the ALJ considers the medical severity of the claimant's impairments. 

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An 

Page 2 - OPINION AND ORDER 
impairment is "severe" ifit significantly limits the claimant's ability to perform basic work 

activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. 

at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work 

activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 

404.1521(b), 416.921(b) 1

; see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's 

impairments are not severe or do not meet the duration requirement, the claimant will be found 

not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 

416.920(a)( 4)(ii), 416.920( c ). Neve1theless, it is well established that "the step-two inquiry is a 

de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273, 

1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impairment or combination of 

impairments can be found 'not severe' only ifthe evidence establishes a slight abnormality that 

has 'no more than a minimal effect on an individual[']s ability to work."' Id., quoting S.S.R. 85-

28, 1985 SSR LEXIS 19 (1985). 

If the claimant's impairments are severe, the evaluation will proceed to the third step, at 

which the ALJ determines whether the claimant's impairments meet or equal "one of a number 

oflisted impairments that the [Commissioner] acknowledges are so severe as to preclude 

substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 

404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one 

of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will 

conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 

1

Effective March 27, 2017, updates were made to the regulations. The C.F.R. sections 

referenced here have been renumbered and the citations listed here are the versions of the C.F.R. 

that were in effect at the time Gonzales requested judicial review. 

Page 3 - OPINION AND ORDER 
404.1520(a)( 4)(iii), 404.1520( d), 416.920(a)( 4)(iii), 416.920(d). 

If the claimant's impairments are not equivalent to one of the enumerated impairments, 

between the third and the fourth steps the ALJ is required to assess the claimant's residual 

functional capacity ("RFC"), based on all the relevant medical and other evidence in the 

claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of 

the claimant's capacity to perform sustained, work-related physical and/or mental activities on a 

regular and continuing basis, 2 despite the limitations imposed by the claimant's impairments. 

See 20 C.F.R. §§ 404.1545(a), 416.945(a); see also S.S.R. No. 96-8p, 1996 SSRLEXIS 5 (July 

2, 1996). 

At the foutih step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 

404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that 

the claimant can still perform his or her past relevant work, the claimant will be found not 

disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 

416.920(a)( 4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or 

her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden 

of proof shifts, for the first time, to the Commissioner. 

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's age, education, and work experience to determine whether a person with those 

characteristics and RFC could perfotm any jobs that exist in significant numbers in the national 

2 "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an 

equivalent work schedule." S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

Page 4 - OPINION AND ORDER 
economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 

404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner 

meets her burden to demonstrate the existence in significant numbers in the national economy of 

jobs capable of being performed by a person with the RFC assessed by the ALJ between the third 

and fomih steps of the five-step process, the claimant is found not to be disabled. See Bowen, 

482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 

416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits 

ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see 

also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g). 

LEGAL STANDARD 

A reviewing court must affirm an Administrative Law Judge's decision ifthe ALJ applied 

proper legal standards and his or her findings are supp01ied by substantial evidence in the record. 

See 42 U.S.C. § 405(g); see also 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 a 

preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 

suppoti a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing 

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 

The court must review the record as a whole, "weighing both the evidence that supp01is 

and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddick v. 

Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The comi may not substitute its judgment for that of 

the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253 

F.3d 1152, 1156 (9th Cir. 2001). Moreover, the comi may not rely upon its own independent 

Page 5 - OPINION AND ORDER 
findings of fact in determining whether the ALJ' s findings are supported by substantial evidence 

ofrecord. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chene1y 

Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is 

immaterial that the evidence may be "susceptible [of] more than one rational interpretation." 

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 

1450, 1453 (9th Cir. 1984). 

SUMMARY OF ADMINISTRATIVE RECORD' 

Gonzales was born on February 18, 1982. Tr. 41, 169, 176.4 On June 25, 2009, Gonzales 

filed applications for DIB and SSI benefits based on bipolar disorder, depression, migraines, and 

asthma. Tr. 169-79, 199. Both applications alleged a disability onset date of October 30, 2008. 

Tr. 169, 176. Both claims were denied initially on November 19, 2009, and upon reconsideration 

on April 13, 2010. Tr. 91, 96. Gonzales is a high school graduate, and has completed some 

college credits. Tr. 45-46, 206. She worked as a waitress, cab dispatcher, telemarketer, and 

customer service representative. Tr. 50-53, 77-78, 200. 

On May 26, 2011, Gonzales appeared and testified before ALJ Rudy Murgo, and on 

August 17, 2011, the ALJ issued a decision finding Gonzales was not disabled at any time from 

October 30, 2008 through the date of the decision. Tr. 30. Gonzales appealed her decision to the 

United States District Court, which reversed the ALJ's decision on July 18, 2014, and remanded 

the case for further administrative proceedings. Tr. 1496-1512. In the interim, Gonzales filed a 

3 The following recitation constitutes a summa1y of the evidence contained within the 

Administrative Record, and does not reflect any independent finding of fact by the comi. 

4

Citations to "Tr." refer to the page(s) indicated in the official transcript of the 

Administrative Record filed herein as docket no. 15, 16, 17, and 18. 

Page 6 - OPINION AND ORDER 
subsequent claim for SSI on June 5, 2013, and the State Agency determined she was disabled as 

of that date. Tr. 1489. 

On December 17, 2015, a second ALJ hearing was held before ALJ Murga. Tr. 1369-88. 

On January 6, 2016, the ALJ issued his decision finding Gonzales has not been disabled from 

October 30, 2008 tluough the date of the decision. Tr. 1404. Gonzales timely appealed the 

ALJ' s decision. 

I. The Medical and Administrative Record 

The medical and administrative record is extensive and the parties are familiar with it. 

Accordingly, it will be set out below only as relevant. 

II. The Hearing Testimony - May 26, 2011 

On May 26, 2011, Gonzales appeared for a hearing conducted before an ALJ in 

connection with her DIB and SSI applications. Tr. 37-86. Gonzales, her father, her counsel, and 

a VE were present and testified. Id. Gonzales testified that she cared for her two children, an 

eleven year old son, and a six year old daughter and had completed high school and some 

college, but did not have a college degree. Tr. 43, 45. She described her past employment as a 

taxi cab dispatcher, waitress, telemarketer, and customer service representative. Tr. 50-53. She 

explained she could not maintain employment because she cannot stay focused and is pain, 

noting that she gets "out of whack" because of her medical conditions, which she described as 

pseudotumor cerebri, significant headaches, and vision problems. Tr. 53, 55, 60. Gonzales 

described her daily activities include caring for her children, doing laund1y, and cooking, but that 

she relies on her parents for reminders to complete tasks and to help if her headaches become 

debilitating. Tr. 65-69, 71. 

Page 7 - OPINION AND ORDER 
Mr. Daniel Raymond Gonzales ("Mr. Gonzales") testified on behalf of his daughter. Tr. 

73-75. He explained that she does not "get it" when supervisors try to explain rules and policies 

to her. Tr. 75. 

Next, the ALJ questioned VE Hanoch Livneh. Tr. 78. The ALJ asked the VE to consider 

an individual of the claimant's 

age, education, and work experience who has the following RFC: no limits 

on lifting, walking, standing, sitting; no postural limits, no manipulative 

limitations, no visual limits but must avoid concentrated exposure to 

noise, concentrated exposure to fumes, [odors], due, gases, and poor 

ventilation, and must expose [sic] concentrated exposure to hazards and 

heights. Could such a hypothetical perform any of the claimant's past 

work? Tr. 78. 

Based on this RFC, the VE testified that a hypothetical person could perform all of claimant's 

past relevant work. Id. 

Next, the ALJ asked the VE to consider an individual with the added limitations that they 

can remember and cany out simple one or two step instructions, but would 

have difficulty or may have difficulty remembering and canying out 

complex three plus step instructions; may have difficulty concentrating for 

extended periods of time; but with normal work breaks is able to sustain a 

normal work day, work week; occaional public contact and occasional coworker contact. Tr. 79. 

For this hypothetical, the VE testified that a person with this RFC could not perform any of 

Gonzales' patt relevant work, but other jobs existed in the national economy that could be 

performed, which included photocopying machine operator, assembler of small products, and 

produce sorter. Tr. 79-80. 

Next, the ALJ asked the VE to consider an individual with the same RFC, but who has no 

vision in the right eye. Tr. 81. The VE testified that this would reduce the number of jobs 

Page 8 - OPINION AND ORDER 
available, but that there are "really no restrictions in the DOT." Tr. 81. Then, the ALJ asked if a 

person who is absent two or more days a month was employable in the national economy, to 

which the VE testified that they could not maintain employment. Tr. 82. Finally, the ALJ asked 

the VE whether an individual who was unavailable to work or off task "10 percent or more of the 

time in a work day, work week, work month, over time" was employable. Tr. 82. The VE 

testified that he did not think an employer would tolerate that. Tr. 82. Based on this testimony, 

the ALJ concluded that Gonzales was capable of performing work in the national economy, and 

was therefore not disabled. Tr. 30. 

III. The Hearing Testimony- December 17, 2015 

On December 17, 2015, a second hearing was conducted before ALJ Murgo in 

connection with Gonzales' DIB and SSI application. Tr. 1369-1388. Gonzales, her counsel, a 

VE, and a medical expe1i ("ME") were present and testified. Tr. 1369. Dr. Quincy Gordy ("Dr. 

Gordy"), the medical expe1i testified that Gonzales had "diagnostic categories" that would fall 

under attention deficit disorder, major depressive disorder, bipolar disorder, depressive disorder 

not otherwise specified, and personality disorder not otherwise specified, but it was her opinion 

that none of these "independently or in combination equal or meet a listing." Tr. 1373. Dr. Gordy 

also testified that with respect to the paragraph B criteria, Gonzales would have mild limitations 

in activities of daily living, moderate difficulties in social functioning, moderate difficulties in 

concentration and pace, and no episodes of decompensation. Tr. 1374. Dr. Gordy opined 

Gonzales could perform simple, routine tasks, but would need "limited contact with coworkers 

and the general public." Id. Finally, Dr. Gordy commented that she would recommend Gonzales 

be evaluated and receive psychiatric treatment. Tr. 1377-78. 

Page 9 - OPINION AND ORDER 
Next, Gonzales testified that she was living with her three children, after giving birth to a 

third child, and had no additional schooling since the previous ALJ hearing on May 26, 2011. 

Tr. 1380. She also testified that she was taking the medications Tramadol, Percocet, Seroquel, 

Trazadone, ibuprofen, and ventilin. Tr. 1380-81. Gonzales testified that she is not in any 

counseling, has no upcoming surgeries, and has no illegal drug use. Tr. 13 81-82. Gonzales 

futiher testified that she continued to have headaches a couple times a week that vary in duration 

from a couple hours to a couple days or weeks. Tr. 1382. She explained that in the past she had 

a shunt placed, but it was eventually replaced, and then removed in 2010 after the tubing failed. 

Tr. 1383. 

Finally, the ALJ asked VE Gary Jesky to consider an individual who "doesn't have 

lifting, walking, standing limitations but must avoid concentrated exposure to noise ... fumes, 

dust, gases, pulmonary irritants, poor ventilation, smoke, dust, odors. Must avoid concentrated 

exposure to heights, hazards, and heavy equipment," can "perform simple routine tasks, SVP-1 

or 2 type tasks," and "[i]s limited to occasional public and coworker contact." Tr. 1385. The ALJ 

asked whether "such a hypothetical person [could] perform any of the claimant's past [work]?," 

to which the VE replied "no." Id. Next, the ALJ asked whether there were any "medium work 

such a hypothetical person could perform in the national economy?" Id. The VE testified that 

the hypothetical person could perform the jobs of laundry worker and cleaning jobs. Tr. 1386. 

Next, the ALJ posed a third hypothetical where he asked the VE to consider an individual with a 

"light level" restriction, but all other limitations the same. Id. At the light level, the VE testified 

that a person with those limitations could perform small products assembly jobs, and packaging 

and sotiing jobs. Id. Finally, the ALJ asked whether a person who is "absent two or more days a 

Page 10- OPINION AND ORDER 
month," or is "off-task 20 percent or more in a workday, work week, [or] work month" is 

employable in the national economy, to which the VE answered no. Id. Based on the VE's 

testimony, the ALJ found Gonzales could perform other work in the national economy and was 

therefore not disabled. Tr. 1404-05. 

SUMMARY OF ALJ FINDINGS4 

At the first step of the five-step sequential evaluation process, the ALJ found Gonzales 

did not engage in substantial gainful activity since October 30, 2008, the alleged onset date. Tr. 

1394. 

At the second step, the ALJ found that Gonzales' impairments of pseudotumor cerebri, 

migraines, anemia, an affective mood disorder, a personality disorder, depression, obesity, and an 

organic mental disorder were "severe" for purposes of the Act. Tr. 1394-96. Because an 

impairment was deemed severe, the ALJ proceeded to the third step of the analysis. 

At the third step, the ALJ found that none of Gonzales' impairments were the equivalent 

of any of the impairments enumerated in 20 C.F.R. § 404, subpt P, app. 1. Tr. 1396-98. The 

ALJ therefore conducted an assessment of Gonzales' residual functional capacity. Specifically, 

the ALJ found that Gonzales has the RFC to 

perform a full range of work at all exertional levels but with the following 

nonexertional limitations: the claimant must avoid concentrated exposure to 

noise, fumes, dust, gases, poor ventilation and other pulmonary irritants as well 

as hazards, heights and heavy equipment. The claimant is limited to simple, 

routine SVP 1-2 step tasks. The claimant can have no more than occasional 

contact with the general public and coworkers. Tr. 1398-1403. 

At the foutth step of the five-step process, the ALJ found Gonzales was unable to perform any 

4 The Summaty of ALJ Findings describes the ALJ's findings issued on January 6, 2016 

after the second ALJ hearing held on December 17, 2015. 

Page 11 - OPINION AND ORDER 
past relevant work as a customer service representative, dispatcher, telemarketer, and waitress. 

Tr. 1403. The ALJ relied on the testimony of a VE that an individual with the RFC set out above 

could perform other work, including laundry worker, cleaner, small product assembly, and 

packaging and sorting. Tr. 1403-04. On that basis, the ALJ concluded that Gonzales was not 

disabled as defined in the Act at any time from October 30, 2008, through January 6, 2016, the 

date of his decision. Tr. 1404. 

ANALYSIS 

Gonzales argues the ALJ ened by (1) reopening her award for benefits for less than good 

cause; (2) improperly rejecting the medical opinions of Dr. Keli Dean ("Dr. Dean"), and Dr. 

James Bryan ("Dr. Bryan"); (3) improperly rejecting the medical opinion of treating nurse 

practitioner, Vera Vos ("FNP Vos"); and (4) improperly rejecting her subjective symptom 

testimony. Pl.'s Opening Br. 7-20. 

The Commissioner concedes that reversal of the ALJ's decision is warranted. Def.'s Br. 

6-7. Specifically, the Commissioner acknowledges that the ALJ etTed by improperly reopening 

the subsequent June 5, 2013, favorable determination that Gonzales was disabled without 

providing any explanation. Id Thus, the sole issue on review is whether this case should be 

remanded for further proceedings or for the payment of benefits. 

The decision whether to remand for fmiher proceedings or for immediate payment of 

benefits is within the discretion of the court. Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985.) 

The issue turns on the utility of fmiher proceedings. A remand for an award of benefits is 

appropriate when no useful purpose would be served by further administrative proceedings or 

when the record has been fully developed and the evidence is insufficient to suppo1i the 

Page 12 - OPINION AND ORDER 
Commissioner's decision. Strauss v. Comm'r, 635 F.3d 1135, 1138-39 (9th Cir. 2011)(citing 

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The court may not award benefits 

punitively and must conduct a "credit-as-true" analysis to determine if a claimant is disabled 

under the Act. Id. at 1138. 

Under the "credit-as-true" doctrine, evidence should be credited and an immediate award 

of benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for 

rejecting such evidence; (2) there are no outstanding issues that must be resolved before a 

determination of disability can be made; and (3) it is clear from the record that the ALJ would be 

required to find the claimant disabled were such evidence credited. Id. The "credit-as-true" 

doctrine is not a mandatoty rule in the Ninth Circuit, but leaves the court flexibility in 

determining whether to enter an award of benefits upon reversing the Commissioner's decision. 

Connett, 340 F.3d at 876 (citing Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en 

bane)). The reviewing court should decline to credit testimony when "outstanding issues" 

remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 

Here, Gonzales contends that remand for the immediate payment of benefits is proper 

because her statements and the medical opinions should be fully credited and suppott a disability 

determination. Pl.' s Reply Br. 1-7. Conversely, the Commissioner asserts that remand for fmther 

proceedings is required because the ALJ reasonably assessed the statements of Gonzales, Dr. 

Dean, Dr. Btyan, and FNP Vos, such that the only umesolved issue is the ALJ's improper 

reopening of Gonzales' award for benefits. Def.' s Br. 6-7. 

Of the remaining four issues, I find only two determinative of disability: the rejection of 

Gonzales' subjective symptom testimony and the medical opinion ofFNP Vos. Namely, I need 

Page 13 - OPINION AND ORDER 
not address whether the ALJ improperly rejected the medical opinions of consultative examiner, 

Dr. Keli Dean, or Dr. James Bryan because, even if credited as true, it is not clear based on this 

evidence that the ALJ would be required to find Gonzales disabled. 

First, Dr. Dean wrote that Gonzales' overall intellectual score was within the "Average 

range" and that her symptoms were "prominent enough to support a diagnosis of ADHD, 

Combined Type." Tr. 355-56. Dr. Dean recommended Gonzales be referred to an individual 

counselor to help her manager her depression and ADHD. Tr. 356. At the end of her 

assessment, Dr. Dean included a list of Employment Recommendations and Employment 

Accommodations, which I find suggest Gonzales has the ability to work despite her limitations. 

Tr. 358. 

Additionally, it is not clear based on the medical opinion of Dr. Btyan that Gonzales is 

disabled. Although Dr. Btyan opined that Gonzales would have marked difficulties responding 

appropriately to usual work situations and changes in routine work settings, he also found 

Gonzales' "neuropsychological profile cannot be accurately interpreted." Tr. 1352, 1362. Dr. 

Bryan found "[w]idely variable levels of performance between related cognitive tests" and 

"[i]nconsistency between similar trials." Tr. 1362. Overall, Dr. Btyan diagnosed Gonzales with a 

pain disorder associated with psychological factors and a general medical condition, and 

malingering. Tr. 1364. Based on the inconsistent test results found by Dr. Btyan, it is not clear 

whether Gonzales would be found disabled if Dr. Bryan's medical opinions were fully credited. 

Accordingly, I tum to the two issues that are determinative of disability: Gonzales' 

subjective symptom testimony and the medical opinion evidence ofFNP Vos. 

A. Gonzales' Subjective Symptom Testimony 

Page 14- OPINION AND ORDER 
First, the ALJ erred by failing to provide a clear and convincing reason for rejecting 

Gonzales' subjective symptom testimony. 

If"there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's 

testimony about the severity of her symptoms only be offering specific, clear and convincing 

reasons for doing so."' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citing 

Smolen, 80 F.3d at 1281, 1283-84). A general assertion that the claimant is not credible is 

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

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

reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the 

ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 

(9th Cir. 1995) (internal citation omitted). 

Here, the ALJ did not affirmatively accept Dr. Bryan's diagnosis of malingering, so he 

was required to provide a clear and convincing reason for discrediting Gonzales' subjective 

symptom testimony. In discrediting Gonzales' subjective symptom testimony the ALJ found the 

"course of medical treatment and the use of medication in this case are not consistent with the 

claimant's alleged conditions." Tr. 1399. Specifically, the ALJ found Gonzales did not follow 

recommendations that she seek mental health treatment and psychological counseling. Id. 

However, this is not a clear and convincing reason to discredit Gonzales' subjective symptom 

testimony because her failure to seek treatment was related to minimizing her mental health 

impairments. Tr. 1363. See Garrison v. Colvin, 759 F.3d 995, 1018, n. 24 (9th Cir. 2014) (citing 

Nguyen v. Colvin, 100 F.3d 1462, 1465 (9th Cir. 1996) (It was error for the ALJ to discredit 

claimant's subjective symptom testimony when her depaiture from prescribed treatment was 

Page 15 - OPINION AND ORDER 
related to her underlying mental impairments.) 

Next, the ALJ discredited Gonzales' subjective symptom testimony because her alleged 

limitations are not supported by the record. Tr. 1399. The ALJ noted that her intellectual 

abilities fell within the average range, and that her pain symptoms decreased with medication, 

noting her use ofTopamax, caffeine, Benadtyl, and Botox injections to relieve headache pain. Id. 

Although her intellectual abilities fell within the average range, there is evidence in the record 

that suggests she would not be able to maintain employment despite her average intellect, 

specifically, with respect to her ability to maintain focus and complications with her headaches. 

See Tr. 53, 73-75, 214-25, 226, 315, 334-37, 970, 1021. Additionally, although the ALJ 

correctly notes that Gonzales' headache pain was controlled effectively with medication, an 

independent review of the entire record shows these improvements eventually stopped. Indeed, 

despite initial improvement, Gonzales continued to suffer from debilitating headaches and 

complained to doctors that Botox treatments were no longer effective. See Tr. 2033, 2064, 2071, 

2083, 2093, 2108, 3052, 3137. Therefore, I find these are not clear and convincing reason to 

discredit Gonzales' subjective symptom testimony. 

Next, the ALJ discredited Gonzales' subjective symptom testimony because her 

functional limitations are not as significant or limiting as alleged, noting that Gonzales lives on a 

second floor apartment, goes groce1y shopping, travels, gave bitih to a child, drives, and watches 

television. Tr. 1399-1400. Although Gonzales did occasionally perform these activities they are 

not inconsistent with her allegations that she could not spend a substantial part of her day 

performing work activities. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (the mere fact 

that a claimant can cany out certain minimal activities such as reading or watching television 

Page 16- OPINION AND ORDER 
does not detract from credibility as to overall disability.) Although Gonzales testified to being 

able to complete these activities she explained that she needs constant reminders from her parents 

to complete them, and receives help from them whenever she suffers from a disabling headache. 

See Tr. 68, 70-71, 211, 226-28. Based on the entire record, the comi finds the ALJ's reliance on 

Gonzales' ability to perform ce1iain activities of daily living is not a clear and convincing reason 

for discrediting Gonzales' subjective symptom testimony. 

Next, the ALJ discredited Gonzales' subjective symptom testimony based on her past 

work history, noting that her work history "shows she has not put fmih a good faith effo1i to 

support herself' and that "she lost her previous jobs for reasons not related to her conditions." Tr. 

1400. I disagree. Gonzales attempted to work at multiple positions, but was fired because she 

did not follow directions, arrived late, and broke company rules. Tr. 1400. However, none of 

these reasons for losing her job are inconsistent with her impairments, which she described as an 

inability to focus. Tr. 51-53. If anything, the fact that Gonzales continued to lose positions for 

her inability to follow directions or company rules fmiher supports her claim for disability and 

the presence of mental impairments that affect her ability to work. I find this was not a clear and 

convincing reason to discredit Gonzales' subjective symptom testimony. 

Finally, the ALJ discredited Gonzales' subjective symptom testimony because there were 

inconsistencies in the medical record that the ALJ found reflected "unfavorably on the claimant's 

credibility." Tr. 1400. Specifically, the ALJ noted the medical opinions of Dr. Dean who found 

Gonzales exaggerated her symptoms on her MMPI test, the medical opinion of Dr. Ryan 

Brevard, who wrote that Gonzales's allegations regarding her headaches was not entirely 

credible, and the opinion of Dr. B1yan, who noted Gonzales' test results varied widely. Id. 

Page 17 - OPINION AND ORDER 
Although these medical records were inconsistent, the majority of the medical evidence suggests 

that Gonzales had suffered from debilitating headaches for years, and was limited by her mental 

health impairments, given her inability to maintain employment, as discussed above. See Tr. 51-

53, 272-319, 363-84, 970, 1021, 1066,2033,2120,2142,2848,3023,3386,3392. The court 

finds the ALJ failed to provide a clear and convincing reason to reject Gonzales' subjective 

symptom testimony. 

B. Rejection of Opinion of Other Medical Source; FNP Vera Vos 

Finally, with respect to the medical opinion of FNP Vos, the ALJ erred in giving it little 

weight. 

Evidence from "other sources," including "nurse practitioners, physicians' assistants, 

naturopaths, chiropractors, audiologists, therapists," "[e]ducational personnel (for example, 

school teachers, counselors, early intervention team members, developmental center workers, and 

daycare workers)," "[p]ublic and private social welfare agency personnel," and other nonmedical sources, such as spouses, parents, caregivers, relatives, friends, neighbors, and clergy, 

may be used to show the severity of a claimant's impairments and how they affect her ability to 

work. 20 C.F.R. §§ 404.1513(d), 416.913(d).5 In order to reject evidence from "other sources," 

the ALJ must give germane reasons for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 

2012). 

Here, the ALJ noted that FNP Vos completed a check-box questionnaire in May 2011 

concerning Gonzales's impairments. Tr. 1402. The ALJ gave FNP Vos' medical opinion little 

weight because she was not a medical source under the regulations and because the ALJ found 

5 See Footnote 1. 

Page 18- OPINION AND ORDER 
FNP Vos' opinions were based on Gonzales' subjective complaints and not on objective medical 

testing. Tr. 1402. First, although FNP Vos is not a "medical source under the regulations" this is 

not a legally sufficient reason to reject her medical opinion. Second, the court disagrees with the 

ALJ's finding that FNP Vos' opinions were based Gonzales' subjective complaints and not 

objective medical images or testing. An independent review of the record shows FNP Vos 

treated Gonzales over the years and wrote many of the medical rep01is after examining Gonzales. 

See Tr. 875-76, 1057-72. This comi finds FNP Vos' medical opinions were based on objective 

medical images or testing, and therefore rejects the ALJ's finding that FNP Vos' medical opinion 

was based entirely on Gonzales' subjective complaints. Given the ALJ provided no other reason 

for rejecting FNP Vos' medical opinion, the ALJ erred in failing to provide a legally sufficient 

reason for rejecting FNP Vos' medical opinion. 

C. REMAND 

The ALJ's failure to credit Gonzales' subjective symptom testimony and FNP Vos' 

medical opinion is erroneous for the reasons set out above. The VE testified that if an individual 

missed two or more days of work a month she would be unable to maintain employment. Tr. 

1386. On this record, FNP Vos wrote that she expected Gonzales to miss two or more days of 

work per month based on her long treatment of Gonzales for complications with her headaches. 

Tr. 1349. If credited, that opinion establishes that Gonzales is disabled. Additionally, Gonzales 

testified that she can't focus or stay on task, which the VE testified would prevent an individual 

from being gainfully employed. Tr. 53, 70. Gonzales also testified that she has debilitating 

headaches about four times a month. Tr. 71. When crediting Gonzales and FNP Vos' testimony 

and medical opinion as trne, this court concludes Gonzales is disabled based on this medical 

Page 19- OPINION AND ORDER 
record and no useful purpose would be served by a remand of this matter for further proceedings. 

See Harman v. Apfel, 211 F.3d 1172, 1178-79 (9th Cir. 2000). 

CONCLUSION 

For the reasons set fmih above, the Commissioner's final decision denying Gonzales' 

application for disability insurance benefits and supplemental security income is reversed and 

remanded for the immediate payment of benefits. 

IT IS SO ORDERED. 

Dated this 5th day of June, 2017. 

~-

' ) ,U ( 

Honorable Paul Papak 

United States Magistrate Judge 

Page 20 - OPINION AND ORDER