IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LARAE L. CONNER, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner of Social Security, 

Defendant. 

PAP AK, Magistrate Judge: 

PORTLAND DIVISION 

Civil No. 6:15-cv-00017-PK 

OPINION AND ORDER 

Plaintiff Larae L. Conner ("Conner") filed this action Janua1y 5, 2015, seeking judicial 

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

Disability Insurance benefits under Title II and Supplemental Security Income under Title XVI of 

the Social Security Act. This court has jurisdiction over plaintiff's action pursuant to 42 U.S.C. 

§ 405(g) and 1383(c)(3). 

Page 1 - OPINION AND ORDER 
Conner argues that by erroneously rejecting medical evidence and her testimony 

regarding the extent of her impairments, the Commissioner failed properly to assess her residual 

functional capacity after completing step three of the five-step sequential process for analyzing a 

Social Security claimant's entitlement to benefits, and for that reason erred by finding Conner 

capable of performing work as a small products assembler, basket filler, and cleaner/maid at step 

five of the process. 

I have considered all of the parties' briefs and all of the evidence in the administrative 

record. For the reasons set foith below, the Commissioner's decision is reversed and this matter 

is remanded for the immediate calculation and 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 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 

Page 2 - OPINION AND ORDER 
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 

impairment is "severe" if it 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. § 

404.152l(b), 416.921(b); 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). Neve1iheless, it is well established that "the step-two inquiiy 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 if the 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 of 

listed 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 

Page 3 - OPINION AND ORDER 
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. §§ 

404.1520(a)( 4)(iii), 404.1520( d), 416.920(a)( 4)(iii), 416920(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, 1 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 SSR LEXIS 5 (July 2, 

1996). 

At the fourth 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(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. 

1 "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 
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 perform any jobs that exist in significant numbers in the national 

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 fourth 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 comt must affirm an Administrative Law Judge's decision ifthe ALJ applied 

proper legal standards and his or her findings are suppotted 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 

support 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 comt must review the record as a whole, "weighing both the evidence that suppmts 

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

Page 5 - OPINION AND ORDER 
Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court 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 court may not rely upon its own independent 

findings of fact in determining whether the ALJ's findings are suppotted by substantial evidence 

of record. 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 [ ofl 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 RECORD2 

Conner was 34 years old on her amended alleged onset date of August 1, 2008. Tr. 42.3 

She completed high school. Tr. 46. According to the evidence of record, prior to her claimed 

disability onset date Conner had substantial gainful activity as a fast food worker and home 

health aide. Tr. 29. 

I. The Medical Record 

The medical record is extensive and the parties are familiar with it. Accordingly, it will 

be set out below when as necessary. 

II. The Hearing Testimony 

2 The following recitation constitutes a summary of the evidence contained within the 

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

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

administrative record filed herein as Docket No. 8. 

Page 6 - OPINION AND ORDER 
On June 26, 2013, a hearing was conducted before an ALJ in connection with Conner's 

application. Tr. 37-93. Conner, her counsel, her mother, and a vocational expett were present. 

Tr. 37. 

A. Conner's Testimony 

Conner testified that she was 39 years old, and lives with her two children, ages 16 and 

20. Tr. 43. She has no earned income, and is not taking any classes or doing any volunteer work. 

She completed a dialectical behavior therapy class for emotional regulation about 18 months 

before the hearing. Conner graduated from high school in 2008. 

She last worked at Taco Bell as a line prep cook full-time for two years. Tr. 46. Her 

mother worked with her on the same schedule. Tr. 62. She was fired when "the lady who runs it 

happen to be a good family friend, so she put up with a lot of my behaviors, a lot of me walking 

out, and she just couldn't do it, at the end, anymore." Tr. 47. Conner testified that a family 

friend "ran the place, and they thought it'd be helpful if my mother came in and helped me, 

because my friend wanted to see me succeed, because I was newly clean. And she was quoteunquote, like, my sponsor. And so they brought in my mom." Tr. 63. Conner did not receive 

mental health counseling or medication while she was working. She did not believe counseling 

or medication would have been helpful. At the time of the hearing, she was receiving 

counseling, and taking medications including Xanax, Clonazepam, Propranolol, Lamotrigine, 

Prozac, and Metformin. 

Conner worked full-time in 2001 as a nurse's aide in an assisted living facility, and as a 

nurse's aide in a different facility in 2002. Tr. 50. In 1998 and 1999, she was a juvenile 

conectional officer at MacLaren Youth Correctional Facility. She worked patt-time on call. 

Page 7 - OPINION AND ORDER 
Conner used to play games and pursue social media on the computer, but discontinued that 

because of her addictive behavior. Tr. 51. She isolates herself. Tr. 52. She enjoys movies and 

reading, but her memo1y is bad and it is hard for her to remember what she read the day before. 

She rents movies from Redbox, and her daughter brings books from the libra1y. Her daughter 

usually goes with her if she leaves the house. Tr. 54. She groce1y shops once a month, and her 

brother or mother brings her fresh produce if necessaiy. 

Conner quit using methamphetamine six and a half or seven years before the hearing. 

She has not used marijuana since 2010, when she was hospitalized with a panic attack. Tr. 55. 

Conner testified that she takes 17 pills a day, and gets discouraged, discontinues her medications, 

and self-medicates with alcohol. Tr. 55. This last happened the summer before the hearing. 

Conner said she cannot work because she does not want to leave her house alone. Tr. 56. 

She gets "overwhelmed and frustrated with the simplest task. My mind goes elsewhere, and I 

want to isolate. I get frustrated ve1y easily." Id. She does not go out alone because she feels 

"more at ease when I have a suppo1i person with me, a family member." Id She only goes out 

for appointments and shopping. Conner gets frustrated with daily activities like dishes and 

laund1y, "!just staii them, and I get frustrated and overwhelmed .... And I usually isolate to my 

bedroom." Tr. 57. Her children usually finish the chore, and Conner takes medication which 

makes her drowsy and she goes to sleep. Her son does most of the laund1y. She can persist on a 

chore like washing dishes for 15 to 20 minutes before it becomes overwhelming. Tr. 58. 

Conner testified that her medication causes side effects including drowsiness and 

dizziness, and her anti-anxiety medication "knocks me out, basically." Tr. 59. She usually gets 

up around 3:00 p.m., and is back in bed by 9:00 p.m. Conner continues to have anger outbursts 

Page 8 - OPINION AND ORDER 
in social situations, like grocety shopping. She can shop for about 45 minutes before she gets 

hot, her vision blurs, she is unable to focus, and she yells and screams. Tr. 60. Her anxiety is 

provoked by loud noises and crowds, and she becomes aggressive. She was escorted out of 

Walmart by security when she had a confrontation with another customer in the check out line. 

Tr. 65. 

Conner checks her Facebook account about once a week. Tr. 64. At the time of the 

hearing, she had been offline for about a year. She quit using the computer because she thought 

it was addictive. Before she quit using the computer she would be on the computer five to seven 

hours a day. Tr. 64. 

B. Lay Testimony 

Conner's mother, Betty Conner, testified that she sees her daughter eve1y day. Tr. 67. 

She usually "check[ s] up on her in the morning and usually in the afternoon. Tr. 68. She believes 

Conner cannot work because of"[h]er inability to stay on task, her anxiety." Id. "We're always 

having to check to make sure things are done. She's - I go about once a week and make sure the 

house is good and clean. She tries, but she - she just gets off task, and sleeps, and goes to bed." 

Id. Conner does not finish the laundty and dishes, and her mother cleans out the refridgerator. 

Betty Conner attends her grandchildrens' appointments and school meetings. Tr. 69. She 

insures there is food in the house and clean clothes. Conner cannot attend her childrens' school 

events because she gets anxious and becomes emotional and irate. Id. Conner cries and says 

inappropriate things. Conner gets angry with her mother as well, when she feels that her mother 

is !tying to direct her or is being nosy. Tr. 70. Conner's mother checks Conner's paperwork 

because "it doesn't get done half the time," because Conner "forgets it, absolutely forgets it." Id. 

Page 9 - OPINION AND ORDER 
Conner has memo1y problems, has to be reminded to bathe, and becomes anxious if she has to 

make a decision. 

Betty Conner testified that her daughter has up and down days, with down days about 

four days a week. Tr. 72. She worked with her daughter at Taco Bell where she calmed her 

daughter down two or tln·ee times a day. Conner would get overwhelmed and "nasty." Tr. 73. 

Betty Conner thought her daughter had worked a couple of months, pait time, when the elder 

Conner was asked to help manage the store. She continued to work after her daughter was fired. 

Tr. 75-76. 

On July 11, 2013, the ALJ issued a decision finding Plaintiff not disabled. Tr. 18-30. 

Conner requested review of the ALJ's decision, Tr. 13-14, and the Appeals Council denied her 

request on October 31, 2014. Tr. 1-4. In consequence, the ALJ's decision became the 

Administration's final order for purposes of judicial review. See 20 C.F.R. § 422.210(a); see 

also, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000). This action followed. 

SUMMARY OF ALJ FINDINGS 

At the first step of the five-step sequential evaluation process, the Administrative Law 

Judge found that Conner did not engage in substantial gainful activity at any time following her 

amended claimed disability onset date of August 1, 2008. Tr. 20. The ALJ found Conner's date 

last insured was December 31, 2011. She therefore proceeded to the second step of the analysis. 

At the second step, the ALJ found that Conner's impairments of personality disorder, 

affective disorder, anxiety disorder, obesity, astlnna, and sleep disorder were "severe" for 

purposes of the Act. Id Because an impairment was deemed severe, the ALJ proceeded to the 

third step of the analysis. 

Page 10 - OPINION AND ORDER 
At the third step, the ALJ found that none of Conner's impairments was the equivalent of 

any of the impairments enumerated in 20 C.F.R. § 404, subpt P, app. 1. Tr. 21. The ALJ 

therefore properly conducted an assessment of Conner's residual functional capacity. 

Specifically, the ALJ found Conner had the capacity to perform light work, except she could 

stand and walk for six hours and sit for six hours in an eight hour workday. Tr. 23. She could 

never climb ladders, ropes, or scaffolds, but could frequently stoop or crouch. She could 

occasionally kneel. She should avoid concentrated exposure to pulmonary irritants, such as 

fumes, odors, dusts, gases, and poor ventilation. Conner could perform simple, relative unskilled 

tasks. She could work around coworkers but should have only superficial interactions with the 

public and coworkers. 

At the fourth step of the five-step process, the ALJ found that Conner was unable to 

return to past relevant work as a fast food worker and home health aide. Tr. 29. The ALJ relied 

on the testimony of a Vocational Expert (VE) that an individual with the RFC set out above 

could perform other work, including small products assembler, basket filler, and cleaner/maid. 

Tr. 30. On that basis, the ALJ concluded that Conner was not disabled as defined in the Act at 

any time between August 10, 2011, and July 11, 2013. Id 

ANALYSIS 

Conner argues the Administrative Law Judge improperly (1) failed to credit Conner's 

own testimony regarding the severity of her symptoms; (2) evaluated the medical evidence; (3) 

posed an erroneous hypothetical question to the VE; and ( 4) failed to resolve a conflict between 

the VE and the Dictiona1y of Occupational Titles. Because the first two assettions are 

dispositive, the comt need not address the remaining arguments. 

Page 11 - OPINION AND ORDER 
I. Credibility 

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

testimony, and for resolving ambiguities. Andrews v. Shala/a, 53 F.3d 1035, 1039 (9'h Cir 1995). 

However, the ALJ's findings must be suppmied by specific, cogent reasons. Reddick v. Chafer, 

157 F.3d 715, 722 (9'h Cir 1998). Unless there is affirmative evidence showing that the claimant 

is malingering, the Commissioner's reason for rejecting the claimant's testimony must be "clear 

and convincing." Id. The ALJ must identify what testimony is not credible and what evidence 

undermines the claimant's complaints. Id The evidence upon which the ALJ relies must be 

substantial. Reddick, 157 F.3d at 724. See also Holohan v. Massinari, 246 F.3d 1195, 1208 (9'h 

Cir 2001). General findings (e.g., "record in general" indicates improvement) are an insufficient 

basis to support an adverse credibility determination. Reddick at 722. See also Holohan, 246 

F.3d at 1208. The ALJ must make a credibility determination with findings sufficiently specific 

to permit the couti to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. 

Thomas v. Barnhart, 278 F.3d 947, 958 (9'h Cir 2002). 

In deciding whether to accept a claimant's subjective symptom testimony, "an ALJ must 

perform two stages of analysis: the Cotton analysis and an analysis of the credibility of the 

claimant's testimony regarding the severity of her symptoms." [Footnote omitted.] Smolen v. 

Chafer, 80 F.3d 1273, 1281 (9'h Cir 1996). 

Under the Cotton test, a claimant who alleges disability based on subjective 

symptoms "must produce objective medical evidence of an underlying 

impairment which could reasonably be expected to produce the pain or other 

symptoms alleged .... " Bunnell, 947 F.2d at 344 (quoting 42 U.S.C. § 423 

(d)(5)(A) (1988)); Cotton, 799 F.2d at 1407-08. The Collon test imposes 

only two requirements on the claimant: (I) she must produce objective 

medical evidence of an impairment or impairments; and (2) she must 

Page 12 - OPINION AND ORDER 
show that the impairment or combination of impairments could 

reasonably be expected to (not that it did in fact) produce some degree 

of symptom. 

Smolen, 80 F.3d at 1282. 

The ALJ found Conner less than fully credible as to the extent of her symptoms. Tr. 24. 

Conner contends that the ALJ found her less than fully credible because the ALJ found her 

mental health symptoms were stable with medication and therapy. An impairment that can be 

controlled effectively with treatment is not disabling for Social Security purposes. Warre v. 

Comm'r of soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The ALJ noted multiple 

instances where Conner's symptoms improved with treatment, and times when her mood was 

good. Tr. 24-25, 611. 

The ALJ found Conner's allegations inconsistent with her daily activities. Tr. 25. A 

claimant's daily activities can form the basis of an adverse credibility finding when they 

contradict a claimant's testimony. Molina, 674 F.3d at 1113. Conner testified that she had anger 

outbursts in social situations, even when taking her medications, and she became overwhelmed at 

even the simplest task. Tr. 56-57, 59-60. However, as the ALJ noted, she was able to perform 

numerous social activities, including shopping, eating at a restaurant, going to the mall, going to 

church, attending family gatherings, and taking a cooking class. Tr. 25, 323, 373, 611, 627, 633, 

647, 748, 757. 

The ALJ found Conner's allegation of diminished cognitive ability inconsistent with the 

record. Plaintiff testified she became overwhelmed and frustrated with small tasks daily, and she 

could not persist more than 15-20 minutes on any task. Tr. 56-59. However, on examination, 

Conner had normal concentration and memoty. Tr. 25, 486, 493, 510, 652, 680, 686. IQ testing 

Page 13 - OPINION AND ORDER 
showed average cognitive ability. Tr. 25, 423-25. She performed normally on the trail making 

tests, testing for visual attention and task switching. Tr. 25, 425. Conner testified that she used 

to spend at lease five hours a day on the computer, and enjoyed reading books. Tr. 26, 51-53, 64. 

Her other daily activities, including cooking, helping with homework, managing her self care, 

cleaning, and laundty contradict her assertions that she could not perform the mental demands of 

simple work. Tr. 322-24, 371-74, 541-42, 653. 

The ALJ found Conner made inconsistent statements. Tr. 26. Conner reported she took 

a month off from counseling to drive her son to his new job, but also said she does not drive 

because she cannot afford to renew her license plates. Tr. 26, 418, 420. Conner testified her 

mother was hired to help control her behavior, but her mother testified she was hired for other 

reasons. Tr. 26, 63, 72-73. 

The ALJ found Conner had a tendency to exaggerate her symptoms. Tr. 26. This is a 

specific and convincing reason to discount a claimant's credibility. Tonapetyan, 242 F.3d at 

1148. A personality assessment inventory suggested Conner attempted to pot1ray herself in a 

negative or pathological manner in certain areas. Tr. 26, 425-26. A score on a malingering test 

was moderately elevated. Tr. 26, 543-44. 

On this record, the ALJ identified clear and convincing reasons, supported by substantial 

evidence, for finding Conner less than fully credible. 

II. The Medical Evidence 

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

416.927(e)(l). Ifno 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. 

Page 14- OPINION AND ORDER 
Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). More weight is given to the opinion of a 

treating physician because the person has a greater oppotiunity to know and observe the patient 

as an individual. Orn v. Astrue, 495 F.3d 625, 632 (9'h Cir. 2007). 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 1063, 1067 (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 1066. The opinion of a non-examining physician, by itself, is insufficient 

to constitute substantial evidence to reject the opinion of a treating or examining physician. 

Widmark, 454 F.3d at 1066 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). 

A. Caleb Bums, Ph.D. 

Dr. Burns performed a psychological evaluation of Conner in September 2010. Tr. 415-

28. He conducted a mental status evaluation, interview, and testing, including the Wechsler 

Adult Intelligence Scale-IV (WAIS-IV), potiions of the Wechsler Mem01y Scale-III, Trail 

Making A and B, potiions of the Wide Range Achievement Test-4, the Mood Assessment Scale, 

the Personality Assessment Screener and Personality Assessment lnvent01y. Dr. Burns 

concluded Conner was not employable in any work setting for the next 12 months due to her 

mental health issues, and would be unable to complete a normal workday without interruptions 

Page 15 - OPINION AND ORDER 
from psychologically based symptoms. Tr. 427. Dr. Burns stated Conner would be unable to 

interact appropriately with the general public or accept supervision. He completed a Mental 

Residual Function Capacity Repmi in which he found Conner had numerous moderate and 

marked mental limitations. Tr. 429-33. 

The ALJ gave Dr. Burns' opinion "little weight." The ALJ noted that Dr. Burns' opinion 

relied heavily on Conner's subjective complaints. Tr. 27. An ALJ is not required to accept a 

medical opinion based in large pati upon the claimant's self-reports which the ALJ found not 

credible. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The Commissioner notes 

that Dr. Burns cited Conner's self-repmis, including her comments that her house is messy and 

she avoids crowds, in suppmi of the limitations he assessed. Tr. 431. 

Conner emphasizes that Dr. Burns relied on the objective tests he administered. The 

Commissioner points to the fact that the results of those objective tests were generally normal. 

On the WAIS-IV her full scale IQ was average. Dr. Burns commented that "[ o ]verall she is not 

showing extreme deficits in the major areas assessed by this instrument." Tr. 425. On the 

Wechsler Memory Scale-III, Conner scored in the average range. Dr. Burns noted "she did quite 

well on this Auditmy Immediate portion of the Wechsler Memoty Scale-III." Id On Trail 

Making Patis A and B Dr. Burns stated "[t]hese scores are quite good and they do not indicate 

neuropsychological deficits." Id. On the Wide Range Achievement Test-4, Conner's scores 

indicated mild deficits in reading and greater deficits in math computation, though "[ o Jn the 

whole her deficits in these areas are not extreme." Id. On the Personality Assessment Inventmy, 

Dr. Burns noted Conner "achieved a valid profile but 'there are subtle suggestions that the client 

attempted to potiray herself in a negative or pathological manner in particular areas."' Tr. 425-

Page 16- OPINION AND ORDER 
26. These normal test results support the ALJ's conclusion that Dr. Burns' opinion was based 

primarily on Conner's self-reports. 

However, Dr. Burns observed Conner cried at least twice during the interview. Tr. 416, 

419. Her gaze was avoidant through most of the interview. Tr. 423. Dr. Burns noted Conner's 

sentences were "quite short and often emotional." Id On intake Conner was "in substantial 

distress and came to tears quickly about four times. There were no signs of symptom 

exaggeration or of malingering." Id Her affect was tearful, depressed, and anxious, and her 

attention and concentration were impaired by her emotionality. Dr. Burns noticed that Conner 

became increasingly emotional during the administration of the Mood Assessment Scale. Tr. 

426. He recorded that Conner was "quite volatile and quick to anger." Id 

An ALJ does not provide clear and convincing reasons for rejecting an examining 

physician's opinion by questioning the credibility of the patient's complaints where the doctor 

does not discredit those complaints and supp01is his ultimate opinion with his own observations. 

Ed/undv. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001), Ryan v. Comm'r of Soc. Sec., 528 

F.3d 1194, 1199 (9th Cir. 2008). Dr. Burns clearly relied upon his own observations to reach his 

opinion. Therefore, the ALJ erred by rejecting Dr. Burns' opinion based on Conner's lack of 

credibility. 

B. Mental Health Treatment 

The ALJ found Dr. Burns' opinion was inconsistent with treatment notes indicating 

Conner's mental health was stable and improved with treatment. Tr. 27. The ALJ cited several 

instances where counselors rep01ied Conner was "stable" or improving. 

Page 17 - OPINION AND ORDER 
Conner began mental health treatment at New Perspectives Center for Counseling and 

Therapy on October 2, 2009. Tr. 672. Conner began individual counseling with Belinda Pearl, 

LC.S.W., M.S.G., M.A.C. On November 4, Pearl noted Conner made good eye contact and was 

engaged, but she sat on the edge of her seat and was tearful, highly anxious, and self-conscious. 

Tr. 666. On December 17, Pearl stated Conner was "stable per baseline," but was tearful with a 

"highly anxious affect" with worsening panic attacks. Tr. 662. The following week Pearl 

reported Conner was "stable per baseline," but had anger outbursts with her children and was 

rocking back and fotih. Tr. 661. 

On Janumy 7, 2010, Conner began attending two hour long group therapy sessions with 

Lara Jellesed, M.A., Q.M.H.P. Tr. 660. Conner appeared anxious but patiicipated. On Januaty 

15 Pearl rep01ied Conner was "stable" but felt like she was getting worse. Her affect was "highly 

anxious." Tr. 658. The following week Conner was worse. Tr. 657. Conner met Celia Forno, 

P.M.H.N.P. on Janumy 28, who described Conner as hypervigilent and anxious. Tr. 652. Nurse 

Forno diagnosed PTSD, Major Depressive Disorder with Anxiety, and rule-out Anxiety Disorder, 

and noted "anxiety so severe that pt is non-functional." Id 

On Februaty 4, 2010, Pearl described Conner as angty, discouraged, and anxious. Tr. 

649. Jellesed noted Conner was upset and ctying. Tr. 650. The following week Pearl said 

Conner was "stable per baseline," made good eye contact, was engaged, but struggled not to cry. 

Tr. 648. On Februmy 11 Jellesed reported Conner was practicing mindfulness while eating at a 

restaurant, and noted "[t]herapist is confident she is receiving some benefits from the group .... " 

Tr. 647. 

Page 18 - OPINION AND ORDER 
On March 4, 2010, Jellesed reported Conner was not doing well after her nephew 

accidentally killed one of his friends. Tr. 644. The following week Pearl reported Conner was 

tearful with an anxious affect. Tr. 643. On March 11 Nurse Forno repotied Conner felt about 

20% better on Wellbutrin, had "acute PTSD,'' and was labile and tearful. Tr. 641. By March 22 

Pearl described Conner as "stable," screened her for suicide risk, and noted she was tearful. Tr. 

637. Four days later Nurse Forno increased Conner's Wellbutrin and added Vistaril for anxiety 

Tr. 636. 

On Aprill, 2010, Jellesed said Conner was a "great seller of dialectical behavior 

therapy." Tr. 634. One week later Jellesed recorded that Conner was proud of getting through 

the Easter family gathering without utilizing anti-anxiety agents. Tr. 633. In mid-April Nurse 

Forno recorded increased depression and hypersonmia, nightmares, and adverse medication 

effects of"agitation/anxiety/aggression." Tr. 629. Conner's affect was ang1y and agitated. A 

week later Jellesed reported Conner had gone to the mall for the first time in 15 years. Tr. 627. 

On April 22, Pearl noted Conner was "stable, having a hard time." Tr. 626. 

In mid-May, 2010, Pearl noted Conner was "stable, but struggling emotionally," and 

made eye contact but was "highly tearful." Tr. 622. On May 14, 2010, Pearl completed a 

Functional Limits Assessment for the Department of Human Services Self Sufficiency Program. 

Tr. 414. Pearl stated that Conner could participate in the JOBS program, and was capable of 

pmticipating in classroom activities including job readiness classes, but was not able to 

participate in job searches. Id Pearl noted Conner could participate in work experience for five 

hours per week, and could pa1ticipate in vocational rehabilitation "only when [patient] has 

achieved stable emotional regulation per mental health and related treatment goals." Id Pearl 

Page 19- OPINION AND ORDER 
stated Conner would need to take emotional breaks for 10 to 15 minutes in order to achieve 

emotional stability. 

On June 4, Pearl repotted Conner had "significant anxiety" about her daughter's birthday 

party, as well as anxiety about saying the wrong thing in group sessions. Tr. 618. Conner was 

tearful and sobbing. Two weeks later Conner repotted she was in a better mood. Tr. 616. On 

June 23, Conner said she was almost arrested at Walmart after a confrontation with a woman. 

Tr. 615. Her children were with her and she was embarrassed. The next day Nurse Bowling 

recorded that Conner had discontinued her medications, and restarted buproprion and started 

Seroquel. Tr. 614. 

On July 8, Conner reported to Jellesed that her mood was I 0/10. Tr. 611. On July 26 

Pearl reported Conner was "stable/improving," she graduated from the group therapy class, was 

taking her medications, and not as angty. Tr. 608. Her affect was anxious, and she picked at her 

nails. 

In mid August, 2010, Conner reported to Nurse Bowling that she was "doing bad. I got in 

a couple of physical altercations last week, I've just been wound, I just couldn't stop myself, I 

was out of control." Tr. 605. Conner said she was fine in a controlled environment but when she 

went out she wanted to hurt someone. Nurse Bowling noted Conner was evasive, with minimal 

eye contact, sat on the edge of the couch, and had rapid, pressured speech. Nurse Bowling 

prescribed Lorazepam and Depakoke. 

In October 2010, Conner reported to Pearl high anxiety, irritability, and panic attacks. Tr. 

602. Pearl noted a "highly anxious affect," and assessed "pervasive cognitive disto1tions about 

feeling like a failure." Id Pearl noted Conner was stable per baseline. The following month 

Page 20 - OPINION AND ORDER 
Pearl wrote "stable but experiencing severe physiological reactivity, had a severe panic attack, 

wound up in hospital." Tr. 601. Pearl noted a tearful, highly anxious affect, and assessed 

significant anxiety, shame and confusion. Later that month, Conner reported to Nurse Bowling 

daily panic attacks, anxiety at 9/10, and depression at 7/10. Tr. 599. Conner was gasping for air 

on the edge of the couch wringing her hands. 

In December 2010, Nurse Bowling prescribed Risperdone and increased Lamotriguine. 

Tr. 596. A few days later, Pearl noted Conner was highly anxious, sobbing and rocking. Tr. 

595. By December 13, Conner was less tearful. Tr. 594. 

On Janumy 11, 2011, Pearl noted Conner was "stable, doing okay." Tr. 591. Her affect 

was anxious but less so than usual, and she was less tearful than usual. By early March, Nurse 

Bowling noted Conner had quit using the internet because it was addictive, and rated her anxiety 

as 9/10, with increasing depression. Conner sat on the edge of her chair, gasping for breath. 

Fluoxetine was prescribed. On March 9, Conner was tearful, with depressed affect. Tr. 585. 

The following week Pearl described Conner as "stable but is emotionally dysregulated." Tr. 584. 

In April 2011, Conner repmied she stayed in bed most of the time, and she had poor 

hygiene. Tr. 582. She told Nurse Bowling her depression was "worse than ever." Tr. 581. By 

the end of the month Conner told Nurse Bowling that she was "doing awesome" since starting 

Abilify, she was not as angry or aggressive, and was sleeping well. Tr. 578. Pearl repo1ied 

Conner was doing well in May 2011. 

In June 2011 Conner was better and looking into applying to school. Tr. 573. In July 

Pearl described her as "stable," and Nurse Bowling noted Conner was better on Clonazepam with 

Page 21 - OPINION AND ORDER 
anxiety "under control mostly for first time in a long time." Tr. 569. Conner was taking 

Lamatrgine, Alprazolam, Clonazepam, Fluxotine, and Abilify. 

On August 2, 2011, Pearl described Conner as "stable per baseline," with significant 

anxiety and less tearful. Tr. 566. Through August Pearl described Conner as stable, improving, 

and less anxious and tearful. Tr. 564. 

On October 2, 2011, Pearl completed an Annual Update form in which she noted Major 

Depressive Disorder evidenced by low mood most of the time, significant weight gain, 

psychomotor retardation, fatigue, feelings of wotthlessness and guilt, and trouble concentrating. 

Tr. 550. Pearl cited a diagnosis of PTSD with physiological reactivity and severe avoidance of 

triggers, noted Conner isolated herself, and wanted to go to school and find work but "is too 

anxious to do so." Id. She assessed a GAF of 55. A few days later Conner repotted increased 

anxiety and Propranolol was prescribed. Tr. 558. She was "stable, improving," in late October 

and was anxious and tearful. Tr. 556. Abilify was increased. 

Through January 2012, Conner was described as improving, anxious and tearful. Tr. 764-

65. In February she was "stable per baseline," with high anxiety and tearful. Tr. 763. She was 

attending church. The following month she had poor hygiene, but was less tearful. Tr. 760. In 

April she repotted she woke daily with panic attacks, but going to church calmed her and she did 

not display her usual signs of anxiety. Tr. 757. In May 2012 Conner was "not doing well," 

staying in bed, and tearful. Tr. 756. By September her depression had increased, she was out of 

medication and anxious with poor hygiene. Tr. 751. By the end of September her depression 

was 7/10, anxiety was 8/10, and she was gasping for air. Tr. 750. 

Page 22 - OPINION AND ORDER 
On October 2, 2012, Pearl completed an Annual Update form in which she noted 

diagnoses of Major Depressive Disorder and PTSD. Tr. 738. Pearl stated Conner wanted to go 

to school and work but was "too anxious to do so." Id She assessed a GAF of 50. The record 

indicates that Pearl's assessment of Conner's mental health was that it was at best stable or with 

some increase of mental health symptoms over the course of her treatment. On October 11 Pearl 

described Conner as intensely anxious and tearful. Tr. 747. 

On this record, the ALJ's determination that the treatment notes show that Conner's 

mental health was stable and improved with treatment is not supported by substantial evidence. 

The balance of the mental health evidence suppotts Dr. Burns' opinion. 

The ALJ gave little weight to the assessed marked limitations in Conner's ability to 

perform daily activities and in social functioning as inconsistent with the record. Tr. 27. The 

ALJ notes Conner was able to grocery shop, but does not credit the evidence that she did this 

once a month and required family to accompany her. Tr. 323, 373. The ALJ notes Conner's 

hygiene and grooming were normal on examination. Tr. 27. However, the evidence is that 

Conner required reminders to bathe, and was often malodorous. Tr. 310, 322, 372, 582, 760, 

751. 

The ALJ cited Conner's participation in group therapy sessions as evidence of her ability 

to function socially, contradicting Dr. Burns' opinion that Conner would have a marked 

limitation in the ability to get along with co-workers or peers without distracting them or 

exhibiting behavioral extremes. Conner's ability to participate in weekly two hour group therapy 

sessions does not contradict Dr. Burns' opinion that she would be unable to sustain that ability to 

get along for eight hours a day, five days a week. 

Page 23 - OPINION AND ORDER 
The ALJ failed to identify clear and convincing, or specific and legitimate, reasons to 

reject the opinion of the examining physician. The ALJ erred in rejecting Dr. Bum's opinion and 

the ALJ' s decision is not supported by substantial evidence. 

The evidence shows that Conner's suffers from major depression, PTSD, and anxiety 

disorder causing marked limitations in numerous areas of mental functioning. Tr. 430, 414. The 

ALJ erred by failing to include the limitations arising from Conner's mental impairments into the 

residual functional capacity assessment at step four. Because the ALJ excluded mental health 

functional limitations, the RFC determination was not supported by substantial evidence. 

REMAND 

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

benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 172, 1178 (9'h Cir. 

2000), cert. denied, 531 U.S. 1038 (2000). The issue turns on the utility of further 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 Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-

39 (9'h Cir. 201 l)(quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9'h 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:(!) 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 

Page 24 - OPINION AND ORDER 
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 comt 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 (9'h Cir. 

2003)(en bane)). The reviewing cou1t should decline to credit testimony when "outstanding 

issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9'h Cir. 2010). 

The ALJ's failure to credit the opinion of the examining physician is erroneous for the 

reasons set out above. The Vocational Expett testified that, if Dr. Bum's opinion is credited, 

Conner would be unable to maintain employment. Tr. 86-90. 

Accordingly, this matter is remanded for the calculation and award of benefits. 

IT IS SO ORDERED. 

Honorable Paul Pap k 

United States Magistrate Judge 

Page 25 - OPINION AND ORDER