IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CANDY WESTPHAL, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Connnissioner, Social Security 

Administration, 

Defendant. 

ACOSTA, Magistrate Judge: 

3:15-CV-01904-AC 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Candy Westphal ("Plaintiff') seeks judicial review of a final decision of the 

Commissioner of the Social Security Administration ("SSA") in which she denied Plaintiffs 

application for Disability Insurance Benefits ("DIB") under Title II and Supplemental Security 

Income ("SSI") under Title XVI of the Social Security Act. This coutt has jurisdiction to review the 

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

Following a review of the record, the court finds the decision of the Connnissioner is not 

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supported by substantial evidence in the record. 

Administrative History 

Plaintiff filed her applications on October 10, 2012, alleging a disability onset date of 

September 1, 2009, due to "severe depression with anxiety, fibromyalgia, high blood pressure, 

asthma, rheumatoid arthritis, hernias, irritable bowel syndrome, migraines, Bell's Palsy, twisted 

herniated intestine, [and] complications from gastric bypass." Tr. 245. 1 The applications were 

denied initially and on reconsideration. An Administrative Law Judge ("ALJ") held a hearing on 

December 1, 2014. Tr. 45-78. At the hearing Plaintiff was represented by an attorney. Plaintiff 

and a vocational expert ("VE") testified. 

The ALJ issued a decision on May 20, 2015, in which he found Plaintiff was not disabled. 

Tr. 18-44. That decision became the final decision of the Commissioner on August 26, 2015, when 

the Appeals Council denied Plaintiffs request for review. Tr. 1-6. 

On October 8, 2015, Plaintiff filed a Complaint in this court seeking review of the 

Commissioner's decision. 

Background 

Plaintiff was born in 1971 and was 43 years old at the hearing before the ALJ. She 

completed the twelfth grade. Tr. 50. Plaintiff has worked as a bmiender, server, short order cook, 

receptionist, leasing agent/clerk, retail manager, and deli counter worker. Tr. 37. 

Standards 

The initial burden of proof rests on the claimant to establish disability. Molina v. As true, 67 4 

1 Citations to the official transcript of record filed by the Commissioner on February 16, 

2016, are referred to as "Tr." 

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F.3d 1104, 1110 (9th Cir. 2012). To meet this burden, a claimant must demonstrate herinability "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)(l)(A). The ALJ must develop the record when there is ambiguous 

evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod 

v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)(quotingMayes v. Massanari, 276 F.3d453, 459-60 (9th 

Cir. 2001)). 

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

standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. 

§ 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 

Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to 

supp01t a conclusion." Molina, 674 F.3d. at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. 

Adm in., 574 F.3d 685, 690 (9th Cir. 2009)). It is more than a mere scintilla [of evidence] but less 

than a preponderance. Id. (citing Valentine, 574 F.3d at 690). 

The ALJ is responsible for determining credibility, resolving conflicts in the medical 

evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The 

court must weigh all of the evidence whether it supports or detracts from the Commissioner's 

decision. Ryan v. Comm 'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the 

evidence is susceptible to more than one rational interpretation, the comt must uphold the 

Commissioner's findings if they are supported by inferences reasonably drawn from the record. 

Ludwig v. Astrue, 681F.3d1047, 1051 (9th Cir. 2012). The court may not substitute its judgment 

for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006). 

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Disability Evaluation 

At Step One the claimant is not disabled if the Commissioner determines the claimant is 

engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(I). See also Keyser v. Comm 'r 

of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011). 

At Step Two the claimant is not disabled ifthe Commissioner determines the claimant does 

not have any medically severe impairment or combination of impairments. 20 C.F.R. § 

416.920(a)(4)(ii). See also Keyser, 648 F.3d at 724. 

At Step Three the claimant is disabled if the Commissioner determines the claimant's 

impairments meet or equal one of the listed impairments that the Commissioner acknowledges are 

so severe as to preclude substantial gainful activity. 20 C.F.R. § 4 l 6.920(a)( 4)(iii). See also Keyser, 

648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 

C.F.R. part 404, subpart P, appendix 1 ("Listed Impairments"). 

If the Commissioner proceeds beyond Step Three, she must assess the claimant's residual 

functional capacity ("RFC"). The claimant's RFC is an assessment of the sustained, work-related 

physical and mental activities the claimant can still do on a regular and continuing basis despite her 

limitations. 20 C.F.R. § 416.920(e). See also Social Security Ruling (SSR) 96-8p. "A 'regular and 

continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, 

at * 1. In other words, the Social Security Act does not require complete incapacity to be disabled. 

Taylor v. Comm 'r of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 201 l)(citingFair v. Bowen, 

885 F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the Commissioner determines the claimant retains 

the RFC to perfo1m work she has done in the past. 20 C.F.R. § 416.920(a)(4)(iv). See also Keyser, 

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648 F.3d at 724. 

If the Commissioner reaches Step Five, she must determine whether the claimant is able to 

do any other work that exists in the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also 

Keyser, 648 F.3d at 724-25. Here the burden shifts to the Commissioner to show a significant 

number of jobs exist in the national economy that the claimant can perform. Lockwood v. Comm 'r 

Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this burden 

through the testimony of a VE or by reference to the Medical-Vocational Guidelines set fo1ih in the 

regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner meets this burden, 

the claimant is not disabled. 20 C.F.R. § 416.920(g)(l). 

ALJ'S Findings 

At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since her 

September I, 2009, alleged onset date. Tr. 23. Her date last insured is December 31, 2014. Id. 

At Step Two the ALJ found Plaintiff has severe impairments offibromyalgia, hypothyroid, 

chronic obstructive pulmonary disease, anemia, edema, migraines, and "mental conditions described 

as anxiety and depression." Tr. 24. 

At Step Three the ALJ determined Plaintiffs impairments did not equal in severity a listed 

impairment, and found Plaintiff retained the RFC to perform sedentary work except she should never 

climb ladders, ropes or scaffolds; can occasionally stoop and balance and climb ramps and stairs; 

never kneel, crouch, or crawl; should avoid concentrated exposure to pulmonary hTitants and 

hazards; is limited to simple, routine repetitive tasks consistent with unskilled work; can perform 

at a standard or ordinaiy pace, but not a strict production rate or pace; and is limited to occasional 

contact with the public and coworkers. Tr. 28. 

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At Step Four the ALJ found Plaintiff was unable to perform her past relevant work. Tr. 37. 

At Step Five, the ALJ found Plaintiff retained the ability to perform a reduced range of sedentmy 

work, with representative occupations including document preparer and silver wrapper. The ALJ 

concluded that Plaintiff was not disabled between her onset date of September 1, 2009 and May 20, 

2015. Tr. 39. 

The Medical Evidence and Testimony 

1. The Medical Record. 

The parties are familiar with the extensive medical record. It will be set out below when 

relevant. 

IL The Janumy 3, 2013 Adult Function Repo1i. 

Plaintiff completed an Adult Function Report in January 2013. Tr. 261-70. She stated her 

conditions had worsened and were "unbearable at times." Tr. 261. Plaintiff lived with her mother 

and was unable "to complete the simplest tasks without my medications or assistance." Id. She 

described her daily activities as "just try[ing] to get from one time to the next while trying to control 

my physical pain." Tr. 262. She feeds and waters her cat, and her mother helps with the litter box. 

Plaintiff stated she needs assistance with simple tasks such as cooking and sometimes with 

bathing. She wakes eve1y two to three hours with pain, dressing takes longer than before, and she 

requires help to lift or move things to clean or reach items. Plaintiff loses track of time and writes 

herself notes to remind herself of things she needs to do. Her mother helps her remember to take her 

medications. Tr. 265. 

She makes simple meals with canned foods, sandwiches, and microwavable items. She can 

no longer prepare whole meals from scratch. Plaintiff can no longer mow the lawn. She seldom 

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goes out doors because she tires easily and is frustrated by her limitations. Tr. 266. She rarely goes 

out alone for fear of panic attacks. Plaintiff rarely drives due to anxiety attacks and the effects of her 

medications, and she shops for groceries a couple of times a month. People do not want to go to the 

grocery store with her becaus.e it takes her two hours to shop, but she cannot go alone for fear of an 

anxiety attack. 

Plaintiff avoids social situations as they cause anxiety and she becomes physically ill. Tr. 

268. She is in constant pain and fearful of going almost anywhere or being around people. 

Plaintiff used to craft and bead daily but no longer can because of pain and a tendency to drop 

things. Tr. 267. She rarely works on the computer. She can walk a couple of blocks before she 

needs to rest for a few minutes. She can pay attention "only for a short time before anxiety gets the 

best of me." Tr. 268. She takes notes when given oral instruction. She does not handle stress or 

changes in routine well. Sometimes she uses a motorized cart when shopping. 

Ill Testimony at December 1, 2014 Hearing. 

Plaintiff testified that she lived with her mother. She completed the twelfth grade. She last 

worked at Cabela's in 2009, but was terminated after four leaves of absence to try to get her medical 

conditions under control. Tr. 50. She has not worked or looked for work since she was terminated. 

In January 2014 Plaintiff had severe edema and was taken by ambulance to a hospital near 

her home in Tennessee. She has no recollection of the incident, but she was hospitalized for six days 

after which she was very weak and tired. She was told she had been in a thyroid coma. "I couldn't 

remember hardly anything. Even basic things." Tr. 51. Her mother cared for her until she was well 

enough to move to Oregon in Jnne 2014 where she has other family. Plaintiff went to urgent care 

to have her thyroid checked because there is "something ve1y wrong with that. And they didn't -

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were not able to figure out what yet. And that's still not controlled." Tr. 51-52. 

Plaintiff is on thyroid medication and she has her thyroid checked every six to eight weeks. 

Tr. 52. Her doctors have not been able to stabilize her thyroid levels, and they don't know why. 

Each time her thyroid is tested doctors have increased the dose of medication. Tr. 53. She sees a 

blood doctor who "is trying to figure out why I've had the anemia for a number of years, and why 

I have no vitamins, no minerals left in my body, and it gets depleted the way it does, and the edema." 

Id. Plaintiff has had a blood transfusion. As a result of her thyroid problems her hair falls out and 

her scalp itches, she is tired and weak and has trouble remembering things. 

Her other conditions include pain management due to fibromyalgia, stomach issues, migraine 

headaches, depression and anxiety. Tr. 54. Plaintiffhas decreased her pain medication slightly. The 

medication does not ever eliminate her pain but allows her "to be able to semi function." Id. 

Plaintiff was not seeing a counselor. She saw several counselors years ago. Her doctors have 

suggested she see a counselor but she has not because she "get[ s J very overwhelmed fairly quickly, 

and if there's too much going on or too many appointments, I really have a hard time. And I know 

the commitment there is with a counselor, and it's just very hard starting basically from scratch with 

a new one." Tr. 55. 

Westphal and her mother moved from Oregon to Tennessee in 2009 for a warmer climate. 

She has trouble breathing at times but does "fairly well" with her inhaler and Spiriva. Tr. 56. 

Plaintiff has problems with her stomach for which she takes ulcer medications and modifies her 

eating habits. She spends a lot of time with her cat, reads, and tries to help with chores like cooking, 

cleaning and laundry, but she becomes overwhelmed. 

In July 2014 Plaintiffs mother was certified by the State of Oregon as Plaintiffs care giver 

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for which she is paid for 92 hours a month. Tr. 58-59, 420. Plaintiff does not go out alone "because 

I do get confused now, I am honestly too afraid to go by myself, because what seems like ten minutes 

to me can be two hours for somebody else." Tr. 60. Plaintiff has a driver's license. 

When she last worked Plaintiff took medical leave primarily because of fibromyalgia and 

anxiety. Tr. 61. At that time she took basic pain medication, Tylenol, and a Fentanyl patch for pain. 

She takes Hydrocodone for break through pain about four times a day. Her medications do not 

eliminate the pain but allow her to "function on most days in a limited capacity." Tr. 61-62. 

Plaintiff has had migraines since she was a teenager. She has at least two a week, and they 

last four to five hours if she catches them early and takes Imitrex, although sometimes they last a 

whole day even with the medication. When she has a headache Plaintiff cannot read a newspaper, 

watch television, or leave the house, and she lies down all day. Tr. 63. She take about 18 Imitrex 

each month. Plaintiff is easily confused and has to write down her medications and the dosing 

schedule. She can get very confused at the grocery store hying to determine the best value, and 

sometimes has to leave the store. She has trouble remembering what she reads, dates, times, and 

names. Tr. 64. 

Discussion 

Plaintiff contends the ALJ erred by (I) finding Plaintiff less than fully credible; and (2) 

failing to credit the opinions of the examining physician. In addition, Plaintiff contends the Appeals 

Council improperly rejected the testimony of her mental health counselor. 

1 Credibility. 

The Ninth Circuit has developed a two-step process for evaluating the credibility of a 

claimant's own testimony about the severity and limiting effect of the claimant's symptoms. 

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Vasquez, 572 F.3d at 591. First, the ALJ "must determine whether the claimant has presented 

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

produce the pain or other symptoms alleged." Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 

2007). When doing so, the claimant "need not show that her impairment could reasonably be 

expected to cause the severity of the symptom she has alleged; she need only show that it could 

reasonably have caused some degree of the symptom." Smolen, 80 F.3d at 1282. 

Second, "if the claimant meets the first test, and there is no evidence of malingering, " ' the 

ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, 

clear and convincing reasons for doing so.'" Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 

F.3d at 1281). It is "not sufficient for the ALJ to make only general findings; he must state which 

pain 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). Those reasons must be "sufficiently specific to permit 

the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." 

Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 1995)(citingBunnell v. Sullivan, 947 F.2d 341, 345-46 

(9th Cir. 1991)(en bane)). 

The ALJ may consider objective medical evidence and the claimant's treatment histmy, as 

well as the claimant's daily activities, work record, and the observations of physicians and third 

parties with personal knowledge of the claimant's functional limitations. Smolen, 80 F.3d at 1284. 

The Commissioner recommends assessing the claimant's daily activities; the location, duration, 

frequency, and intensity of the individual's pain or other symptoms; factors that precipitate and 

aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication, the 

individual receives or has received for relief of pain or other symptoms; and any measures other than 

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treatment the individual uses or has used to relieve pain or other symptoms. See SSR 96-7p, 

available at 1996 WL 374186. 

Further, the Ninth Circuit has said that an ALJ also "may consider ... ordinary techniques 

of credibility evaluation, such as the reputation for lying, prior inconsistent statements concerning 

the symptoms ... other testimony by the claimant that appears less than candid [and] unexplained 

or inadequately explained failure to seek treatment or to follow a prescribed course of treatment[.]" 

Smolen, 80 F.3d at 1284. 

The ALJ found Plaintiff's statements concerning the intensity, persistence, and limiting 

effects of her symptoms not entirely credible. Tr. 29. The ALJ noted that although Plaintiff alleged 

disability beginning in September2009 there is no medical evidence of treatment between June 2009 

and June 2011. Tr. 29-30. Chris Maynard, M.D., stated that he began treating Plaintiff in December 

2010, but there are no medical records in the administrative record before June 2011. Tr. 403, 546. 

A claimant's "statements may be less credible ifthe level or frequency of treatment is inconsistent 

with the level of complaints." SSR 96-7p. Assuming that Dr. Maynard began treating Plaintiff in 

December 2010, there is no evidence of medical treatment from the alleged onset date in September 

2009 until December 2010, a period of over a year. Plaintiffs failure to obtain treatment is a clear 

and convincing reason to find her less than fully credible. 

The ALJ stated that the objective medical evidence indicated that Plaintiffs symptoms are 

less limiting than she alleges. Tr. 29. When the ALJ reasonably relies on multiple reasons to 

discount a claimant's symptom testimony, one permissible reason is the absence of objective medical 

evidence. Burch v. Barnhart, 400 F.3d 676, 691 (9th Cir. 2005). Plaintiff testified that she has 

chronic severe pain due to fibromyalgia. Tr. 54. The ALJ noted that Plaintiffs fibromyalgia 

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diagnosis is not documented by the requisite number of positive tender points. Tr. 30, 379, 630. The 

ALJ pointed to the evidence of Plaintiffs ability to transfer onto and off of examination tables (Tr. 

30, 629), her intact strength (Tr. 30, 352, 364, 379, 471, 634), her full range of motion (Tr. 30, 471, 

487, 630), and the absence of joint abnormalities (Tr. 30, 491) in determining that the evidence does 

not support the severity of her complaints. The lack of objective evidence is a specific, clear and 

convincing reason for the ALJ to find Plaintiff less than fully credible. 

The ALJ stated that Plaintiff was treated with high doses of strong narcotics for her pain, 

although treating physician John Ramsey, M.D., noted in August 2014 that he did not treat 

fibromyalgia and anxiety with narcotics and benzodiazepines, and would taper Plaintiff off those 

medications. Tr. 31, 487. The type and dosage of medication a claimant takes is relevant to 

evaluation of a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv). The fact 

that treating physicians had different opinions regarding prescriptions is not a specific, clear or 

convincing reason to find Plaintiff less credible. 

The ALJ found that, despite Plaintiffs complaints of debilitating fatigue, most healthcare 

providers noted Plaintiff was not in distress and did not appear tired or fatigued. Tr. 30, 352, 354, 

363, 367, 369, 394, 396. In March 2013 Kimberly Borris, PA-C, noted Plaintiff was "frail 

appearing." Tr. 392. One year later Dr. Maynard noted Plaintiff was "weak." Tr. 585. In 

November 2014 Christie J. Moore, D.O., noted Plaintiff was "cln·onically ill appearing." Tr. 464. 

The same month Clu·istine D. Gray, M.D. stated Plaintiff"appears far older than stated age" while 

treating her for an acute sinus infection. Tr. 459. The ALJ noted these observations and adequately 

accounted for them by limiting Plaintiff to sedentary work. Tr. 30. 

The ALJ cited Plaintiffs March 2015 assertion to examining physician Tatsuro Ogisu, M.D., 

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that she can sit for ten minutes to one hour at worst, and for two to three hours at best. Tr. 29, 628. 

Plaintiff told Dr. Ogisu she could stand for five minutes up to one hour. Id After examination, Dr. 

Ogisu concluded Plaintiff was able to sit for two hours at a time without inten-uption, stand for one 

hour at a time without intenuption, and walk for 20 minutes at a time. Tr. 622. Dr. Ogisu found 

Plaintiff could sit for seven hours in an eight-hour workday, stand for six hours in an eight-hour 

workday, and walk for five hours in an eight-honr workday. Id Dr. Ogisu stated Plaintiff did not 

need an assistive device except on rough, uneven, or sloped surfaces. The ALJ' s determination that 

Plaintiff was less than fully credible as to her ability to sit, stand, and walk is a specific, clear and 

convincing reason to find her less than fully credible. 

The ALJ cited evidence ofintermittent significant edema, resolved in October and November 

2014. Tr. 31, 459, 464. The edema returned by Dr. Ogisu's March 2015 examination, and the 

doctor assessed limitations less restrictive than those in Plaintiffs RFC. Tr. 35, 622. Plaintiff points 

to no limitations arising from edema inconsistent with the RFC. 

Plaintiff testified she has headaches at least twice a week, lasting between four and five hours 

if she takes medication early. Tr. 62. The headaches last a whole day or more if she misses the 

warning signs or wakes up with the headache. The ALJ noted Plaintiff has rarely, if ever, rep01ied 

that her medication for headaches was not effective. Tr. 32. The ALJ reasonably determined that 

Plaintiffs lack of treatment for headaches undermine her credibility. 

The ALJ noted Plaintiffs work history, which showed sporadic and limited work prior to the 

disability onset date. Tr. 35, 236. A poor work hist01y before the alleged onset date is a valid 

credibility factor. Marsh v. Colvin, 792 F.3d 1170, 1174 (9th Cir. 2015). 

On this record, the ALJ's credibility determination is supp01ied by specific, clear and 

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convincing reasons and should be affirmed. 

II. Opinion of the Treating Physician. 

Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(l); 

416. 927 ( e )(1 ). If no conflict arises between medical source opinions, the ALJ generally must accord 

greater weight to the opinion of a treating physician than that of an examining physician. Lester v. 

Chafer, 81F.3d821, 830 (9th Cir. 1995). More weight is given to the opinionofa treating physician 

because the person has a greater oppottunity to know and observe the patient as an individual. Orn 

v. Astrue, 495 F.3d 625, 632 (9'h Cir. 2007). In such circumstances the ALJ should also give greater 

weight to the opinion of an examining physician over that of a reviewing physician. Id. If a treating 

or examining physician's opinion is not contradicted by another physician, the ALJ may only reject 

it for clear and convincing reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d I 063, 

I 067 (9'h Cir. 2006) (examining physician). Even if one physician is contradicted by another 

physician, the ALJ may not reject the opinion without providing specific and legitimate reasons 

supported by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at I 066. 

The opinion of annonexamining physician, by itself, is insufficient to constitute substantial evidence 

to reject the opinion of a treating or examining physician. Widmark, 454 F.3d at I 066 n.2. The ALJ 

may reject physician opinions that are "brief, conclusory, and inadequately supported by clinical 

findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

Dr. Maynard began treating Plaintiff in December 2010. On April 24, 2013, Dr. Maynard 

hand wrote a letter "To Whom it May Concern" in which he stated it was his opinion that Westphal 

was unable to work "due to multiple chronic medical problems and this will continue for the 

remainder of her life." Tr. 399. Dr. Maynard listed Plaintiffs ongoing problems as major 

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anxiety/depression, chronic abdominal pain due to adhesions, fibromyalgia, migraine headaches, 

symptoms resulting from gastric bypass, history of bowel obstruction, incisional hernias, restless leg 

syndrome, irritable bowel syndrome, esophagitis, COPD, and tobacco abuse. 

In October 2013 Dr. Maynard completed a "Multiple Impairment Questionnaire" in which 

he listed Plaintiffs diagnoses as fibromyalgia, depression with uncontrollable crying, COPD, 

migraine headaches, and chronic pain syndrome. Tr. 403, 408. Her prognosis was poor. Dr. 

Maynard said Plaintiff had daily pain everywhere and fatigue of moderate severity. Tr. 405. He 

estimated Westphal could sit, stand, or walk for up to one hour in an eight hour workday, and must 

get up and move around hourly. Dr. Maynard said Plaintiff would have significant limitations in 

repetitive reaching, handling, or fingering because of poor coordination and concentration. Tr. 406. 

Dr. Maynard stated Plaintiff was unable to maintain a full time competitive job, and her experience 

of pain constantly interfered with her ability to pay attention and concentrate. Tr. 408. Plaintiff was 

not capable of tolerating even low stress. Dr. Maynard opined Plaintiffs limitations had existed 

prior to his first examination of Plaintiff in December 2010. Tr. 409. 

Dr. Maynard signed an undated letter "To Whom it May Concern" in which he states "It is 

my opinion [Plaintiff! cannot now nor will she be able in the future to be employed and should 

receive disability benefits." Tr. 412. Dr. Maynard lists "hypothyroidism with myxedema; 

malnourished state post gastric bypass, fibromyalgia, chronic abdominal pain likely due to adhesions, 

tobacco abuse and COPD, migraine headaches, and restless leg syndrome." Id 

The ALJ gave Dr. Maynard's opinion "little weight." Tr. 36. The ALJ rejected the two 

letters as offering a conclusion on an issue reserved to the Commissioner. The ALJ gave no weight 

to Dr. Maynard's opinion that Westphal was "unable to work," because the issue of disability is 

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reserved to the Commissioner. Tr. 36. However, a physician's assessment regarding the ability to 

sustain employment, based on objective medical evidence, must be considered by the ALJ. Hill v. 

Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012). The factthatthe ultimate issue of disability is reserved 

to the Commissioner is an accurate statement of the law, but it is not a clear and convincing, or 

specific and legitimate, reason to reject a treating physician's opinion. 

The ALJ stated that "Dr. Maynard appears to have relied heavily on the claimant's subjective 

allegations [which are] not persuasive." Tr. 36. An ALJ does not provide clear and convincing 

reasons for rejecting a treating physician's opinion by questioning the credibility of the patient's 

complaints where the doctor does not discredit those complaints and supports his ultimate opinion 

with his own observations. Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001); Ryan v. 

Comm 'r a/Soc. Sec., 528 F.3d 1194, 1199 (9th Cir. 2008). Dr. Maynard clearly relied upon his own 

observations to reach his opinion. Therefore, the ALJ erred by rejecting Dr. Maynard's opinion 

based on Plaintiffs lack of credibility. 

The ALJ rejected Dr. Maynard's assessed functional limitations as inconsistent with other 

evidence in the record and unsupported by Dr. Maynard's own treatment notes. Id. Dr. Maynard 

saw Westphal in June 2011 for abdominal pain. Tr. 375. She was taking alprazolam, albuterol, 

buspar, clonazepam, cymbalta, lasix, levothyroxine, lisinopril, norvasc, oxycodone, prozac, requip, 

and trazodone. Dr. Maynard diagnosed intestinal or peritoneal adhesions with obstrnction 

(postoperative, post infection), anxiety, depression, myalgia and myositis unspecified, and 

fibromyalgia. The following month Dr. Maynard noted "no acute pain or distress tearful at times," 

and diagnosed myalgia and myositis unspecified, depression, and abdominal pain "probably 

aggravated by narcotic tolerance and psych.issues" and referred her for a psychological referral and 

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Case 3:15-cv-01904-AC Document 19 Filed 12/27/16 Page 16 of 24
iron testing. Tr. 373. In August 2011 Plaintiff reported increased pain uncontrolled by medication. 

Tr. 3 71. On August 23, 2011, Dr. Maynard noted increased wheeze and fatigue and diagnosed acute 

bronchitis and COPD. Tr. 369. He increased Plaintiffs duragesic pain patch from 50 milligrams 

to 75. 

In mid-September 2011 Plaintiff reported better pain control but wearing off by the third day. 

Tr. 367. Dr. Maynard increased the dose of her duragesic patch to 100 milligrams, and diagnosed 

chronic abdominal pain and intestinal or peritoneal adhesions with obstruction and myalgia and 

myositis. The following month Plaintiff reported she could not afford the 100 milligram patch and 

Dr. Maynard prescribed the 75 milligram patch and prescribed acetaminophen-hydrocodone. Tr. 

365. 

On November 17, 2011, Dr. Maynard noted symptoms of Bell's Palsey, including facial 

wealmess and numbness. Plaintiff reported weakness and decreased grip in her left hand and all over 

soreness and weakness. Tr. 363. Dr. Maynard diagnosed Bell's Palsey, fibromyalgia, COPD, 

depression/anxiety-dysthymia, and refe!Ted her to neurology. Tr. 364. 

In January 2012 Plaintiff reported she had stopping taking multiple medications, and Dr. 

Maynard noted she was "more alert and clear of speech." Tr. 361. He discontinued clonazepam. 

The following month Plaintiff reported pain recurring on the third day of the pain patch, and 

that she had felt foggy on day one and two. Tr. 359. Dr. Maynard reduced the patch to 75 

milligrams. 

In March 2012 Dr. Maynard noted Plaintiff was "overall better but took xanax early and now 

out." Tr. 357. He prescribed Fioricet and discontinued Esgic. 

In May 2012 Dr. Maynard presecribed flexeril and a 75 milligram duragesic patch eve1y 48 

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Case 3:15-cv-01904-AC Document 19 Filed 12/27/16 Page 17 of 24
hours for fibromyalgia, gastric bypass, abdominal hernia, chronic abdominal pain due to adhesions, 

COPD, and migraines. Tr. 354. On July 5 Plaintiff reported a migraine for the past week with 

increased fibromyalgia pain and depression. Tr. 352. By September 2012 Plaintiff repmied 

increased fibromyalgia pain, and Dr. Maynard prescribed Vitamin B 12 and Lorcet, noting Plaintiff 

was "not tearful today." Tr. 350. In November 2012 Plaintiff had "increased anxiety and 

tearfulness, confusion with cymbalta and taking more than prescribed," and Dr. Maynard prescribed 

Fioricet and Zoloft. Tr. 348. In December 2012 Dr. Maynard noted Plaintiff was "ale1i and less 

tearful." Tr. 346. 

On Janumy 29, 2013, Plaintiff was examined by Robert A. Blaine, M.D. Tr. 377-80. Dr. 

Blaine noted 3+ pitting edema of the left lower extremity from the knee to the foot, and 1 + pitting 

edema on the right lower extremity. Tr. 378-79. Strength in both upper and lower extremities was 

515. Plaintiffs gait was antalgic and stiff, but heel and toe walk were normal. She was tender in 8 

of 18 fibromyalgia points. 

Dr. Blaine concluded Plaintiff could walk or stand for two hours in an eight hour day, carry 

up to 20 pounds infrequently, and sit for eight hours. Tr. 379. He concluded it should "be noted that 

the claimant was extremely anxious when she presented for her examination .... " Id 

The followingweekAnnM. Ramsey, M.S., conducted a psychological evaluation of Plaintiff 

with which Jeffrey W. Erickson, Ph.D., concurred. Tr. 381-87. Ms. Ramsey had no medical records 

to review. Ms. Ramsey noted it was "difficult sometimes to understand [Plaintiff] through the 

tearfulness and the high pitched wine in her voice. The examiner asked her at times to calm down 

and speak clearly." Tr. 385. 

Ms. Ramsey diagnosed major depression, recuITent, moderate-to-severe without psychotic 

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Case 3:15-cv-01904-AC Document 19 Filed 12/27/16 Page 18 of 24
features, anxiety disorder, NOS rule out panic disorder NOS, and alcohol dependence in full 

remission by report, and assessed a GAF of 55-60. Tr. 386. Performance on mental status 

examination indicated mild-to-moderate problems with recall, as well as on remote, and immediate 

events or dates. She had a mild degree of"inefficiency and concentration." Id. "Concentration on 

simplistic tasks appears to be minimally-to-mildly restricted and moderately restricted on complex 

tasks. Interaction with coworkers and supervisors was moderately restricted. Problem solving skills 

were mildly restricted. Tr. 387. 

On February 15, 2013, Dr. Maynard noted Plaintiff was "doing better less tearful," with 

chronic edema left greater than right. Tr. 394. In March 2013 Plaintiff requested Lyrica "or 

something to help her all over pain. Her legs are sore and she is unable to sleep at night. She 

becomes tearful when we talk about medications." Tr. 392. She was "frail appearing" and 

"frequently closes eyes." Id. Gabapentin was prescribed. In April 2013 Dr. Maynard noted 

continuing pain although neurontin was helping her leg symptoms. Tr. 593. He diagnosed gastric 

bypass with dumping syndrome, and two weeks later wrote the April 24, 2013 letter stating Plaintiff 

was unable to work. Tr. 399. 

In June 2013 Dr. Maynard noted neurontin seems to help with pain and depression 

symptoms, and stated her "mood seems slightly more stable." Tr. 591. Plaintiff had increasing left 

upper abdominal pain relieved several days later with a bloody bowel movement and pain relief. He 

diagnosed gastric bypass with dumping syndrome. Four months later Dr. Maynard noticed increased 

stress with decreased concentration, and crying. Plaintiff stopped Cymbalta due to cost and the 

belief that it was not working. Tr. 589. Her affect was slowed. Tr. 590. Two days later Dr. 

Maynard completed the Multiple Impairment Questionnaire in which he assessed multiple marked 

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Case 3:15-cv-01904-AC Document 19 Filed 12/27/16 Page 19 of 24
functional impairments. Tr. 403-10. 

In November 2013 Plaintiff had an allergic reaction to doxycycline with increased periorbital 

edema and edema in her legs. Tr. 5 88-89. She was prescribed Lasix. In February 2014 Dr. Maynmd 

saw Plaintiff in follow-up after hospitalization for malnourishment and low protein. Tr. 587. 

Plaintiff was weak and her mother was controlling her medications and diet, and Dr. Maynard 

described her as a "weak cachectic individual [with] atrophied muscle mass." Id. She was told to 

drink four to five cans of Ensure per day. Tr. 588. The following month Dr. Maynard noted Plaintiff 

was tiying to eat but had a two hour transit time to diarrhea. Tr. 585. She was still weak with 

"severe cln·onic swelling [lower extremities J now worse," and Dr. Maynard described her as a 

"cachectic female." Id. Two weeks later Plaintiffs swelling was "no better" but she was tolerating 

thyroid replacement. Tr. 584. Dr. Maynard noted she was "emotional but alert." Id. She had severe 

weeping edema of myxedema. Her synthroid was increased to 100 milligrams. 

In April 2014 Plaintiffs thyroid was again low, with increased edema and leg pain. Tr. 582. 

She gained 22 pounds in one month. On May 1 Plaintiff still had "great pain in legs" and weeping 

edema. Tr. 581. In June 2014 Plaintiff moved to Oregon, and one month later she was seen in the 

emergency room for fatigue and thyroid disease. Tr. 564-67. 

Dr. Maynard's opinion as to Plaintiffs physical and mental limitations is supported by his 

treatment notes. The Commissioner argues that Dr. Maynmd's opinion is inconsistent with the 

physical limitations assessed by examining physicians Robert Blaine, M.D., and Tatsuro Ogisu, M.D. 

Dr. Blaine's January 2013 examination is set-out above. Dr. Ogisu examined Plaintiff in March 

2015 and concluded Plaintiff could sit for seven-out-of-eight hours and stand for six-of-eight hours. 

Tr. 621-26. However, neither Dr. Blaine nor Dr. Ogisu evaluated Plaintiffs mental health or 

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Case 3:15-cv-01904-AC Document 19 Filed 12/27/16 Page 20 of 24
capacity to sustain work. In addition, Dr. Maynard's opinion is fully corroborated by the treating 

mental health specialist, as set out below. 

III. New Evidence to the Appeals Council. 

Plaintiff submitted additional medical evidence to the Appeals Council after the ALJ's 

decision. Tr. 636-43. The Appeals Council considered the additional evidence, but found the 

information did not provide a basis for changing the ALJ's decision. Tr. 2. The court considers this 

evidence because it is part of the administrative record even if not part of the record before the ALJ. 

Brewes, 682 F.3d at 1163, citing Lingenfelter, 504 F.3d at 1030 n.2 (9th Cir. 2007)(when Appeals 

Council considers new evidence in denying a claimant's request for review, the reviewing court 

considers both the ALJ' s decision and the additional evidence submitted to the Council). 

Plaintiff contends the Appeals Council was required to explain why it rejected the additional 

evidence, citing Schneider v. Comm 'r Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000). The 

Schneider court, however, found that the ALJ erred at step three when he failed to consider five 

letters the claimant's friends and former employers had submitted in making the Part B 

determination as to whether claimant's mental impairments satisfied severity requirements. 

Schneider, 223 F.3d at 975. The Commissioner correctly cites Leir v. Colvin, No. 12-35545, 2013 

WL 5879443 (9th Cir. Nov. 4, 2013)(citing Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 

1231-32 (9th Cir. 2011) for the proposition that the Appeals Council does not need to make any 

evidentimy findings about the new evidence. 

The new evidence submitted to the Appeals Council consists of a five page Mental 

Impairment Questionnaire completed on May 15, 2015, by Paula Casner, MS, CADC III. Tr. 639-

43. Ms. Casner is Plaintiffs case manager with the State of Oregon Department of Human 

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Resources, Aging and People with Disabilities. Ms. Casner has seen Plaintiff every two months 

since July 2014. Ms. Casner diagnosed Major Depressive Disorder secondary to severe arthritis and 

intractable pain, Bell's Palsy, and hypothyroidism corrected to only 50% of function with 

medication. Tr. 639. Ms. Casner noted Plaintiffs reports of back pain, migraines, and inability to 

access health care services, and assessed a GAF of 50. Plaintiff was despairing, hopeless, 

overwhelmed by pain, and dependant on others to manage. Ms. Casner opined that Plaintiff was not 

amalingerer. As signs and symptoms supporting her opinion, Ms. Casner endorsed depressed mood, 

persistent or generalized anxiety, abnormal affect either constricted or labile, feelings of guilt or 

worthlessness, tearful frequently with every interaction, anhedonia and or pervasive loss ofinterests, 

appetite disturbances, decreased energy because of pain, slowed speech, social withdrawal or 

isolation because of pain, difficulty thinking or concentrating because of pain, distractability, poor 

memory (immediate and recent), and sleep disturbance with resulting fatigue. Tr. 640. Ms. Casner 

stated Plaintiff would experience episodes of decompensation in a work or work-like setting causing 

an exacerbation of symptoms. Tr. 641. Ms. Casner checked boxes indicating Plaintiff would be 

markedly impaired in 20 out of23 mental limitations, including the ability to carry out simple, oneto-two step instructions and to perform activities within a schedule and consistently be punctual. Tr. 

642. Ms. Casner found Plaintiff would likely be absent more than three times per month, and opined 

that Plaintiffs limitations existed since at least April 1, 2009. Tr. 643. 

Remand 

The decision whether to remand for further proceedings orfor immediate payment ofbenefits 

is within the discretion of the court. Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000), cert. 

denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A remand for 

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Case 3:15-cv-01904-AC Document 19 Filed 12/27/16 Page 22 of 24
an award ofbenefits is appropriate when no useful purpose would be served by futther administrative 

proceedings or when the record has been fully developed and the evidence is insufficient to suppott 

the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-39 (9th Cir. 2011)(quoting 

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 mandatory 

rule in the Ninth Circuit, but leaves the co mt flexibility in determining whether to enter an award 

of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F.3d 871, 876 

(citing Bunnell v. Sullivan, 947 F.2d 871(9th Cir. 2003)(en bane)). The reviewing comt should 

decline to credit testimony when "outstanding issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 

(9th Cir. 2010). 

The ALJ' s rejection of the opinion of the treating physician should be found etToneous for 

the reasons set-out above. Accordingly, this matter should be remanded for the calculation and 

award of benefits. 

Scheduling 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Comt of Appeals. Any notice of appeal pmsuant to Rule 4(a)(l), Federal Rules of Appellate 

23- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-01904-AC Document 19 Filed 12/27/16 Page 23 of 24
Procedure, should not be filed until entry of the district court's judgment or appealable order. The 

parties shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the court. Thereafter, the parties shall have 

fomieen (14) days within which to file a response to the objections. Failure to timely file objections 

to any factual determination of the Magistrate Judge will be considered as a waiver of a paiiy' s right 

to de novo consideration of the factual issues and will constitute a waiver of a paiiy's right to 

appellate review of the findings of fact in an order or judgment entered pursuant to this 

recommendation. 

DATED thi~fy of December, 2016. 

V. Acosta 

United S ates Magistrate Judge 

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