IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LISA WYSS, 3:16-cv-00023-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

MERRILL SCHNEIDER

Schneider Kerr Law Offices

P.O. Box 14490

Portland, OR 97293

(503) 255-9092

Attorney for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1011

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Case 3:16-cv-00023-BR Document 18 Filed 12/19/16 Page 1 of 31
DAVID MORADO

Regional Chief Counsel

LARS J. NELSON

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104-7075

(206) 615-2732

Attorneys for Defendant

BROWN, Judge.

Plaintiff Lisa Wyss seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff’s application

for Disability Insurance Benefits (DIB) under Title II of the

Act. 

This Court has jurisdiction to review the Commissioner’s

decision pursuant to 42 U.S.C. § 405(g). Following a thorough

review of the record, the Court REVERSES the decision of the

Commissioner and REMANDS this matter pursuant to sentence four of

42 U.S.C. § 405(g) for further administrative proceedings

consistent with this Opinion and Order.

ADMINISTRATIVE HISTORY

Plaintiff filed her application for DIB on May 14, 2012. 

Tr. 19, 176.1 Her application was denied initially and on

1

 Citations to the official transcript of record filed by

the Commissioner on June 3, 2016, are referred to as “Tr.”

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reconsideration. An Administrative Law Judge (ALJ) held a

hearing on May 29, 2014, at which Plaintiff was represented by an

attorney. Tr. 35. A vocational expert (VE) also testified at

the hearing. Tr. 35.

The ALJ issued a decision on June 25, 2014, in which he

found Plaintiff is not entitled to benefits. Tr. 19-29. That

decision became the final decision of the Commissioner on

November 9, 2015, when the Appeals Council denied Plaintiff’s

request for review. Tr. 1-3. See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND

Plaintiff was born on June 25, 1968; was 45 years old on the

date of the hearing; and has a high-school education with some

post-secondary technical education. Tr. 40, 160. Plaintiff has

prior relevant work experience as an administrative clerk, callcenter operator, receptionist, restaurant hostess, retail

salesperson, convenience-store cashier, truck driver, beautyproducts salesperson, makeup artist, and esthetician. Tr. 27-28.

Plaintiff alleges disability since May 8, 2012, due to

tendinitis, depression, “mood swings,” a head injury suffered in

a December 2011 motor-vehicle accident, low-back pain, and low

blood sugar. Tr. 180. Plaintiff’s date last insured was

September 30, 2016. Tr. 176.

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Except as noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 22-27.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden a claimant must demonstrate her

inability “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months.” 42 U.S.C. 

§ 423(d)(1)(A). 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)(quoting Mayes v. Massanari, 276 F.3d

453, 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, 682 F.3d 1157, 1161

(9th Cir. 2012). Substantial evidence is “relevant evidence that

a reasonable mind might accept as adequate to support a

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conclusion.” Molina, 674 F.3d. at 1110-11 (quoting Valentine v.

Comm’r Soc. Sec. Admin., 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 court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 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).

DISABILITY ANALYSIS

Social Security Regulations set out a five-step sequential

process for determining whether an applicant is disabled within

the meaning of the Social Security Act. Keyser v. Comm’r of 

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

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. 

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§ 404.1520. Each step is potentially dispositive. 

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser, 648

F.3d at 724.

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. Stout v. Comm’r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See also 20

C.F.R. § 404.1520(a)(4)(ii); Keyser, 648 F.3d at 724.

At Step Three the Commissioner must determine whether a

claimant’s impairments meet or equal one of the listed

impairments and are so severe that they preclude substantial

gainful activity. 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. 

§ 404.1520(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

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physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§ 404.1520(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. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). The assessment of a claimant’s

RFC is at the heart of Steps Four and Five of the sequential

analysis when the ALJ is determining whether a claimant can still

work despite severe medical impairments. An improper evaluation

of the claimant’s ability to perform specific work-related

functions “could make the difference between a finding of

‘disabled’ and ‘not disabled.’” SSR 96-8p, at *4. 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). 

See also Keyser, 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. § 404.1520(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

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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

forth 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. § 404.1520(g)(1).

ALJ’S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since May 8, 2012, her alleged onset

date. Tr. 21.

At Step Two the ALJ found Plaintiff has the following severe

impairments: “cervical/lumbar strain,” tendinitis, hyperacusis,

post-traumatic stress disorder, depression, pain disorder with

psychological factors, and borderline personality disorder. 

Tr. 21.

At Step Three the ALJ found Plaintiff’s impairments do not

meet or equal the criteria for any impairment in the Listing of

Impairments. Tr. 21-22. 

In his assessment of Plaintiff’s RFC the ALJ found Plaintiff

has the functional capacity to perform a range of light work, but

the ALJ limited Plaintiff to “no overhead reaching bilaterally”;

not more than frequent reaching, handling, or fingering

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bilaterally; work environments that do not have more than

moderate noise levels; tasks that are simple, routine, and

repetitive consistent with unskilled work; low-stress work

environments that require few decisions and few changes in the

workplace; occasional, superficial contact with the public and

coworkers; and occasional contact with supervisors. Tr. 22-27.

At Step Four the ALJ found Plaintiff is unable to perform

her past relevant work as an administrative clerk, call-center

operator, receptionist, restaurant hostess, retail salesperson,

convenience-store cashier, truck driver, beauty-products

salesperson, makeup artist, or esthetician. Tr. 27-28.

At Step Five, however, the ALJ determined Plaintiff can

perform other occupations that exist in significant numbers in

the national economy, including mailroom sorter or office helper. 

Tr. 28-29.

Accordingly, the ALJ found Plaintiff is not disabled and,

therefore, is not entitled to benefits. Tr. 29.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) did not include

Plaintiff’s traumatic brain injury, vision changes, degenerative

joint disease, or fatigue at Step Two; (2) discredited

Plaintiff’s testimony; (3) discredited the medical and

psychological opinions of Wendy Newton, Psy.D.; Steven P. Barry,

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Ph.D.; Tricia Zigrang, Ph.D.; Shahana Koslofsky, Ph.D.; Christine

Jones, DC; and Kimberly Karlsgodt, DPT; and (4) discredited the

lay testimony of Jennifer Siri Rasch, Tim A. Huuki, and Joyce L.

Wyss.

I. Step Two

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. Stout v. Comm’r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See also 20

C.F.R. § 416.920(a)(4)(ii); Keyser v. Comm’r of Soc. Sec. Admin.,

648 F.3d 721, 724 (9th Cir. 2011). A severe impairment

“significantly limits” a claimant’s “physical or mental ability

to do basic work activities.” 20 C.F.R. §§ 416.921(a), (b). 

Such abilities and aptitudes include walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying, handling, seeing,

hearing, and speaking; understanding, carrying out, and

remembering simple instructions; using judgment; responding

appropriately to supervision, co-workers, and usual work

situations; and dealing with changes in a routine work setting. 

Id. 

The Step Two threshold is low:

[A]n impairment can be considered as not severe only if

it is a slight abnormality which has such a minimal

effect on the individual that it would not be expected

to interfere with the individual’s ability to work 

. . . . [T]he severity regulation is to do no more

than allow the Secretary to deny benefits summarily to

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those applicants with impairments of a minimal nature

which could never prevent a person from working. 

SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted). 

The Ninth Circuit has held when the ALJ has resolved Step

Two in a claimant’s favor, any error in designating specific

impairments as severe does not prejudice a claimant at Step Two

as long as the ALJ considers the omitted impairment in his

assessment of the claimant’s RFC. Burch v. Barnhart, 400 F.3d

676, 682-84 (9th Cir. 2005).

Plaintiff asserts the ALJ erred at Step Two because the ALJ

did not include Plaintiff’s traumatic brain injury symptoms,

vision changes, “degenerative joint disease,” and fatigue as

severe impairments. Plaintiff, however, fails to identify any

functional limitations caused by these conditions that are not

included in the ALJ’s assessment of Plaintiff’s RFC. For

example, references to Plaintiff’s vision loss are sporadic

throughout the record and do not specifically identify the degree

to which Plaintiff has suffered any permanent loss of visual

acuity. See Tr. 261 (“[Plaintiff] has suffered some . . . visual

changes.”). The primary symptoms associated with Plaintiff’s

traumatic brain injury suffered as a result of her December 2011

automobile accident were her memory and hearing loss, both of

which the ALJ considered in his assessment of Plaintiff’s RFC. 

Similarly, Plaintiff’s degenerative joint disease was most

frequently discussed in conjunction with the arm and back

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limitations that the ALJ incorporated into his assessment of

Plaintiff’s RFC. Finally, Plaintiff’s fatigue was only

sporadically mentioned throughout the medical record and was not

addressed in any way from which the ALJ could reasonably assess

functional limitations. See Tr. 321 (Plaintiff “[f]atigued very

quickly” during physical therapy). 

Accordingly, on this record the Court concludes the ALJ did

not commit harmful error at Step Two when he did not list

Plaintiff’s traumatic brain injury symptoms, vision changes,

“degenerative joint disease,” and fatigue as severe impairments.

II. Plaintiff’s Testimony

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009). The claimant, however, need not produce

objective medical evidence of the actual symptoms or their

severity. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 

See also Delgado v. Commissioner of Social Sec. Admin., 500 F.

App’x 570, 570 (9th Cir. 2012).

If the claimant satisfies the above test and there is not

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any affirmative evidence of malingering, the ALJ can reject the

claimant’s testimony only if he provides clear and convincing

reasons for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th

Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

1995)). General assertions that the claimant’s testimony is not

credible are insufficient. Id. The ALJ must identify “what

testimony is not credible and what evidence undermines the

claimant's complaints.” Id. (quoting Lester, 81 F.3d at 834).

At the May 29, 2014, hearing Plaintiff testified she was

“wrongfully terminated” from her previous job in 2012 and that

she later obtained a settlement as a result. Tr. 40. Plaintiff

stated she continued to look for employment until her

unemployment benefits ran out, but she has not looked for work

since that time. Tr. 41.

Plaintiff testified she is disabled as a result of her

“severe tendinitis” that makes it “impossible for [her] to do

jobs that involve using [her] hands and . . . arms.” Tr. 42. 

Plaintiff stated she is unable to complete tasks that require

repetitive movements and that she gets help cooking and

performing housework. Tr. 43.

In addition, Plaintiff reported she has a “very, very

horrible memory” and a hearing impairment. Tr. 42. Plaintiff

testified she is unable to hear a person talking “a few feet”

away from her when she is in an environment with background noise

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such as a restaurant. Tr. 44. Plaintiff stated one of her

medical treatment providers offered a therapy that would improve

her hearing, but she could not afford the treatment. Tr. 45-46. 

Plaintiff testified she also is unable to remember how to perform

basic work functions since her December 2011 automobile accident. 

Tr. 51. 

Plaintiff also testified she has mental-health problems that

cause her to be unable to control her anger, and she throws

objects and yells at people. Tr. 47-48. Plaintiff reported she

is able to maintain casual friendships and acquaintances, but she

is unable to maintain functional relationships on a daily basis

with people she works or lives with. Tr. 55. Plaintiff

testified she has sought counseling, but she has been unable to

locate any free or low-cost services and cannot afford to pay

full cost for consistent counseling or mental-health care. 

Tr. 49-50.

Plaintiff testified during a typical day she exercises by

walking and stretching and does “a lot of cooking” in order to

accommodate her food sensitivities. Tr. 52. Plaintiff states

her hobbies are reading and communicating with people on the

internet and text messaging. Tr. 52. 

In her June 26, 2012, Adult Function Report, Plaintiff

reported her mental-health problems cause her to “break down and

cry several times a week.” Tr. 211. Plaintiff stated her

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tendinitis causes her to be unable to lift her hands or arms

after she completes a task that requires repetitive motions. 

Tr. 211. Plaintiff stated she suffers from low-back pain that

limits her to 30 minutes of standing before she is forced to sit

down. Tr. 211. As a result of low blood sugar and food

allergies, Plaintiff reported she must eat eight times per day,

and if she eats any food with sugar, sugar substitutes,

chemicals, or preservatives, “it will literally throw [her] into

a rage.” Tr. 212.

Plaintiff reported she is no longer able to lift greater

than ten pounds as a result of her conditions, and she requires

help grocery shopping. Tr. 213. Plaintiff stated it takes her

one to two hours to prepare meals and that she does laundry,

irons clothes, vacuums, dusts, and cleans dishes. Tr. 215. 

Plaintiff, however, noted she performs her chores less frequently

as a result of her conditions. Tr. 215. Plaintiff indicated her

conditions also limit her abilities to lift, squat, bend, stand,

reach, sit, climb stairs, see, remember, concentrate, understand,

follow instructions, use her hands, and get along with others. 

Tr. 217. Plaintiff reported she can walk for approximately an

hour before needing to stop and rest for approximately ten

minutes. Tr. 217. Plaintiff stated she has difficulty getting

along with her bosses and has noticed “strange obsessive

compulsive behaviors,” including compulsive cleaning and

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organizing. Tr. 217-18. 

The ALJ discredited Plaintiff’s testimony on the grounds

that (1) Plaintiff’s testimony was inconsistent with her medical

treatment history; (2) Plaintiff only sought conservative

treatment options for her conditions; (3) Plaintiff’s alleged

limitations were inconsistent with her activities of daily

living; (4) Plaintiff’s most recent past employment ended for

nondisability reasons; and (5) Plaintiff demonstrated secondary

gain motives (i.e., Plaintiff’s subjective reporting of symptoms

was not designed to assist medical and psychological treatment,

but was, in fact, motivated to obtain Social Security benefits). 

After a thorough review of the record the Court concludes

the ALJ provided clear and convincing reasons supported by

substantial evidence for rejecting Plaintiff’s testimony. 

The ALJ noted the medical record did not support Plaintiff’s

allegations of significant memory impairments. Although

Plaintiff testified she has a “horrible memory,” testing

performed by Steven P. Barry, Ph.D., indicated Plaintiff had only

“[m]ild, clinically insignificant, [memory] impairment.” Tr. 46,

677-78. Moreover, Dr. Barry noted he did “not find evidence of

clinically significant memory concerns” and there was “the

appearance of some level of secondary gain . . . from her

complaints related to memory and pain.” Tr. 680. Similarly, the

ALJ pointed out that Plaintiff’s allegations that her arm pain

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was caused by tendinitis were inconsistent with the evaluation of

James T. Nolan, M.D., who found there was “no evidence of any

tendinitis present” and “no evidence of inflammation anywhere.” 

Tr. 330. The Court finds the inconsistencies identified by the

ALJ between Plaintiff’s testimony and the medical record are

compelling reasons to discredit Plaintiff’s testimony.

As noted, Plaintiff testified she was wrongfully terminated

from her previous employment at Stark’s Vacuums and received a

settlement as a result of the wrongful termination. Tr. 40. 

Plaintiff’s supervisor at Stark’s, however, stated Plaintiff was

terminated as a result of a company-wide restructuring rather

than because she was unable to work. Tr. 556. On this record

the ALJ concluded Plaintiff left her employment for nondisability

reasons immediately preceding her alleged onset date of

disability. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.

2001)(noting an ALJ may discredit a claimant’s assertion of onset

of disability by reference to the fact that the claimant left her

immediately preceding employment for nondisability reasons). See

also Page v. Colvin, No. 14–35243, 2015 WL 6153597, at *1 (9th

Cir. Oct. 20, 2015). 

Finally, the ALJ’s finding that Plaintiff demonstrated

secondary-gain motives is supported by substantial evidence in

the record. As noted, Dr. Barry indicated Plaintiff demonstrated

“some level of secondary gain” in her subjective reporting. 

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Tr. 680. Dr. Barry also noted “[n]either [Plaintiff] nor her

chiropractor expect success at [vocational rehabilitation], if

success is defined as returning to work; instead, the expectation

is that [vocational rehabilitation] will find her unemployable

and this will assist her in her application for Social Security

Disability.” Tr. 679. In addition, on September 11, 2013,

Plaintiff’s vocational rehabilitation case worker noted Plaintiff

“has limited what she can and wants to do,” and “[w]hen we do

find a goal [that Plaintiff is] agreeable to[, Plaintiff] finds

some reason why it won’t work.” Tr. 653. 

On this record, therefore, the Court concludes the ALJ

provided legally sufficient reasons for discrediting Plaintiff’s

testimony.

III. Medical Testimony

As noted, Plaintiff contends the ALJ erred when he

discredited the medical and psychological opinions of 

Drs. Newton, Koslofsky, Barry, Zigrang, Jones, and Karlsgodt.

An ALJ may reject a treating physician’s opinion when it is

inconsistent with the opinions of other treating or examining

physicians if the ALJ makes findings setting forth specific,

legitimate reasons for doing so that are supported by substantial

evidence in the record. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1232 (9th Cir. 2011). When the medical opinion of

a treating physician is uncontroverted, however, the ALJ must

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give “clear and convincing reasons” for rejecting it. Turner v.

Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010)(quoting

Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)). The

opinion of a treating physician is “given greater weight than the

opinions of other physicians.” Kelly v. Astrue, No. 10–36147,

2012 WL 767306, at *1 (9th Cir. 2012)(quoting Smolen v. Chater,

80 F.3d 1273, 1285 (9th Cir. 1996)).

A nonexamining physician is one who neither examines nor

treats the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th

Cir. 1995). See also Garrison v. Colvin, No. 12-CV-15103, 2014

WL 3397218, at *13 (9th Cir. 2014). “The opinion of a

nonexamining physician cannot by itself constitute substantial

evidence that justifies the rejection of the opinion of either an

examining physician or a treating physician.” Taylor, 659 F.3d

at 1233 (quoting Lester, 81 F.3d at 831). When a nonexamining

physician's opinion contradicts an examining physician's opinion

and the ALJ gives greater weight to the nonexamining physician’s

opinion, the ALJ must articulate her reasons for doing so with

specific and legitimate reasons supported by substantial

evidence. See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1198 (9th Cir. 2008). A nonexamining physician's opinion can

constitute substantial evidence if it is supported by other

evidence in the record. Morgan v. Comm’r of Soc. Sec. Admin.,

169 F.3d 595, 600 (9th Cir. 1999). See also Simpson v. Astrue,

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No. 10-cv-06399-BR, 2012 WL 1340113, at *5 (D. Or. Apr. 18,

2012).

A. Dr. Newton

Dr. Newton treated Plaintiff briefly between November 2012

and February 2013. Plaintiff had four appointments with 

Dr. Newton. Dr. Newton neither submitted a formal opinion to the

Social Security Administration nor conducted any comprehensive

evaluation of Plaintiff’s mental impairments and functional

limitations that could be viewed as the equivalent of medical

testimony. Tr. 576-80. Instead the “opinion” from Dr. Newton

that Plaintiff relies on to support her contention that the ALJ

improperly discredited Dr. Newton’s testimony are merely the four

treatment notes from Plaintiff’s appointments with Dr. Newton. 

The treatment notes from Dr. Newton, however, do not qualify as

medical testimony that requires special consideration by the ALJ,

but instead merely represent a part of the general record.

The ALJ summarized Dr. Newton’s treatment notes, but he

ultimately concluded “[t]he difficulty with evaluating the

claimant’s mental health concerns is that there is effectively no

longitudinal history of mental health diagnosis, treatment, or

response to treatment to accurately assess the severity of the

claimant’s condition.” Tr. 25. The ALJ, therefore, considered

Dr. Newton’s treatment notes together with the rest of the record

relating to Plaintiff’s mental impairments; correctly concluded

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the record regarding Plaintiff’s mental impairments was sparse;

and, therefore, reasonably approached evaluation of Plaintiff’s

mental-health conditions with caution.

Accordingly, on this record the Court concludes the ALJ did

not err in his consideration of Dr. Newton’s treatment notes.

B. Drs. Koslofsky and Barry

Dr. Barry conducted a psychological evaluation of Plaintiff

on April 24, 2013, in relation to Plaintiff’s participation in

vocational rehabilitation. Tr. 668. Dr. Barry conducted an

extensive clinical interview and several psychological tests. 

Dr. Barry “did not find evidence of clinically significant memory

concerns,” but he, nonetheless, found Plaintiff “isn’t a good

candidate for rehabilitation and employment” based on her

personality disorder. Tr. 680. Dr. Barry recommended employment

that limits “contact with co-workers”; “day-to-day, moment-tomoment contact with supervisors”; and “the amount of time she has

to stay involved with customers.” Tr. 680.

Dr. Koslofsky also conducted a psychological evaluation of

Plaintiff on April 8, 2014, in relation to Plaintiff’s

participation in vocational rehabilitation. Tr. 639-43. After

conducting an interview and completing a Personality Assessment

Inventory, Dr. Koslofsky found Plaintiff’s “profile suggests that

she is likely to be quite emotionally labile, manifesting fairly

rapid mood swings.” Tr. 641. Dr. Koslofsky diagnosed Plaintiff

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with chronic post-traumatic stress disorder and found Plaintiff

experiences symptoms of hyper-arousal including irritable or

aggressive behavior as well as self-destructive behavior. 

Tr. 642.

Although the ALJ summarized the opinions of Drs. Barry and

Koslofsky, the ALJ merely stated “[t]he difficulty with

evaluating the claimant’s mental health concerns is that there is

effectively no longitudinal history of mental health diagnosis,

treatment, or response to treatment to accurately assess the

severity of the claimant’s condition.” Tr. 25. The ALJ,

therefore, did not provide specific and legitimate reasons for

discrediting the opinions of Drs. Barry and Koslofsky.

On this record, therefore, the Court concludes the ALJ erred

when he failed to provide legally sufficient reasons for

discrediting the opinions of Drs. Koslofsky and Barry.

C. Dr. Zigrang

Dr. Zigrang completed a Mental Status Report on June 26,

2016. Plaintiff saw Dr. Zigrang on a weekly basis from March 16,

2012, until May 30, 2012. Tr. 324. Dr. Zigrang diagnosed

Plaintiff with “major depression” that caused Plaintiff to

experience depressed moods, hopelessness, poor concentration, and

difficulty controlling her anger. Tr. 324. Dr. Zigrang did not

perform any psychological tests on Plaintiff. Tr. 324. 

Dr. Zigrang stated Plaintiff’s mood swings had improved as a

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result of dietary changes and that her depression had improved

through the course of psychotherapy. Tr. 325. Dr. Zigrang also

stated Plaintiff has difficulty concentrating both as a result of

her depression and after her injuries from the motor-vehicle

accident. Tr. 326.

The ALJ gave “some weight” to Dr. Zigrang’s assessment, but

he partially discredited her opinion because she did not perform

any psychological testing and her statements were “very general

and provided little specific opinion regarding the severity of

limits.” Tr. 25, 324. In light of the fact that the ALJ

properly discredited Plaintiff’s subjective reporting, the lack

of psychological testing undermines Dr. Zigrang’s opinion. In

addition, the ALJ reasonably noted Dr. Zigrang’s opinion was

general and contained few specific functional limitations beyond

those which the ALJ incorporated into his assessment of

Plaintiff’s RFC.

Accordingly, on this record the Court concludes the ALJ

provided legally sufficient reasons for discrediting the opinion

of Dr. Zigrang.

D. Dr. Jones

Some medical sources, including nurse-practitioners,

physicians’ assistants, naturopaths, chiropractors, audiologists,

and therapists, are considered “other sources” under 20 C.F.R. 

§ 404.1513(d)(1), and their opinions are not entitled to the same

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consideration as the “acceptable medical sources” listed in 20

C.F.R. § 404.1513(a). In order to reject the opinion of an

“other source” the ALJ must provide “‘reasons germane to each

witness for doing so.’” Molina, 674 F.3d at 1111 (quoting Turner

v. Comm’r Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). 

Dr. Jones, Plaintiff’s chiropractor, submitted a letter to

the Social Security Administration dated March 15, 2013. 

Dr. Jones stated she had treated Plaintiff for over 12 years. 

Tr. 343. She reported Plaintiff “has struggled with pain during

any repetitive motion” since 2000. Tr. 343. Dr. Jones also

reported Plaintiff’s “tendinitis pain” has “disabled her from

carrying out simp[le acts of daily living such as lifting a

gallon jug, or cleaning her home, or drying her hair.” Tr. 343. 

Dr. Jones stated Plaintiff’s “memory might impair her ability to

return to work” and that a psychological evaluation revealed

Plaintiff “was suffering from a personality disorder or mental

illness.” Tr. 344. Dr. Jones opined Plaintiff suffers mood

swings as a result of her mental impairments, and she ruled out

blood sugar as a cause for Plaintiff’s mood instability. 

Tr. 344. Dr. Jones concluded “[t]he combination of disabling

tendonitis, a concussion, back pain and a personality disorder

will make it formidable, and in my opinion, impossible for her to

have any successful employment. Due to pain and memory problems,

she has less reserves than ever before to gait [sic] her mood and

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emotions.” 

The ALJ discredited Dr. Jones’s opinion because Dr. Jones is

not an “acceptable medical source” within the meaning of Social

Security regulations, Dr. Jones’s opinion regarding tendinitis

was inconsistent with objective evidence in the medical record,

and Dr. Jones’s opinions regarding Plaintiff’s mental health were

outside of her expertise as a chiropractor. Tr. 26.

As noted, Dr. Jones, a chiropractor, is not an “acceptable

medical source” within the meaning of 20 C.F.R. § 404.1513(a) and

is considered an “other source” under § 404.1513(d). The ALJ,

therefore, may discredit Dr. Jones’s opinion if “the ALJ ‘gives

reasons germane to each witness for doing so.’” See Molina, 674

F.3d at 1111 (quoting Turner, 613 F.3d at 1224.

The lack of objective evidence in the record supporting 

Dr. Jones’s opinion is a germane reason for the ALJ to discredit

Dr. Jones’s assessment of Plaintiff’s functioning. For example,

although Dr. Jones appears to assume that Plaintiff’s arm pain is

caused by tendinitis, there is not any objective evidence in the

record that supports that diagnosis, and, in fact, Dr. Nolan

expressly ruled out tendinitis. Tr. 330.

Accordingly, on this record the Court concludes the ALJ

provided legally sufficient reasons for discrediting Dr. Jones’s

opinion.

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E. Dr. Karlsgodt

Dr. Karlsgodt, a physical therapist, treated Plaintiff from

April 18, 2012, through May 2, 2012. Tr. 320-22. Dr. Karlsgodt

stated in a letter to the Oregon Department of Human Services

that:

Ms. Wyss-Bardsley was showing some progress during her

[physical therapy] sessions, but was unable to

continue. Therefore I am unable to advise if she would

continue to show improvement with regular [physical

therapy] care. Based on my assessment of her current

condition, she is unable to tolerate prolonged sitting

and any sort of activity that requires repetitive

motions or any upper body lifting and carrying.

Tr. 323.

Because Dr. Karlsgodt is an “other source” within the

meaning of 20 C.F.R. § 404.1513(d), the ALJ was required to

provide reasons germane to Dr. Karlsgodt’s opinion to discount

her assessment of Plaintiff’s functional limitations. The ALJ,

however, failed to address Dr. Karlsgodt’s opinion. Accordingly,

the ALJ failed to provide germane reasons for discounting 

Dr. Karlsgodt’s opinion. 

Accordingly, on this record the Court concludes the ALJ

erred when he failed to provide legally sufficient reasons for

discrediting Dr. Karlsgodt’s opinion. Because Dr. Karlsgodt’s

opinion regarding Plaintiff’s sitting limitations were not

included in the ALJ’s assessment of Plaintiff’s RFC, the ALJ’s

error is not harmless.

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IV. Lay Testimony

Lay-witness testimony regarding a claimant's symptoms is

competent evidence that the ALJ must consider unless he

“expressly determines to disregard such testimony and gives

reasons germane to each witness for doing so.” Lewis v. Apfel, 

236 F.3d 503, 511 (9th Cir. 2001). The ALJ’s reasons for

rejecting lay-witness testimony must also be “specific.” Stout

v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th

Cir. 2006). Nevertheless, an ALJ is not required to address each

lay-witness statement or testimony on an “individualized,

witness-by-witness-basis. Rather if the ALJ gives germane

reasons for rejecting testimony by one witness, the ALJ need only

point to those reasons when rejecting similar testimony by a

different witness.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th

Cir. 2012)(quotation omitted). Germane reasons for discrediting

a witness’s testimony include inconsistency with the medical

evidence and the fact that the testimony “generally repeat[s]”

the properly discredited testimony of the claimant. Bayliss v.

Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). See also Williams

v. Astrue, 493 Fed. App’x 866 (9th Cir. 2012).

Jennifer Siri Rasch, Plaintiff’s former coworker; Tim A.

Huuki, Plaintiff’s roommate; and Joyce L. Wyss, Plaintiff’s

sister-in-law, submitted letters to the Social Security

Administration on Plaintiff’s behalf setting out their

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observations of Plaintiff’s functionality. Tr. 249-52. The ALJ

partially discredited the opinions of Rasch, Huuki, and Wyss

because “none of these individuals are knowledgeable in the

medical and/or vocational fields and thus are unable to render

opinions on how the claimant’s physical activities and mental

impairments impact her overall abilities to perform basic work

activities among various occupations.” Tr. 27.

The ALJ, however, may not reject lay testimony on the basis

that the lay witnesses lack medical or vocational expertise. 

Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). Although

there were minor portions of the lay-witness opinions that

discussed Plaintiff’s diagnoses, the primary focus of the laywitness testimony consisted of observations of Plaintiff’s dayto-day functionality. The ALJ, therefore, did not provide

reasons germane to the lay witnesses for discrediting their

testimony. 

Accordingly, on this record the Court concludes the ALJ

erred when he discredited the lay opinions of Rasch, Huuki, and

Wyss. Because it does not appear the ALJ’s assessment of

Plaintiff’s RFC adequately accounts for the observations of the

lay witnesses, the ALJ’s error was not harmless.

V. Remand

The decision whether to remand for further proceedings or

for immediate payment of benefits is within the discretion of the

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court. Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 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 support 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 whether 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 when: 

(1) the ALJ has failed to provide legally sufficient

reasons for rejecting such evidence, (2) there are not

any 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 if such evidence were

credited.

Id. The reviewing court should decline to credit testimony when

“outstanding issues” remain. Luna v. Astrue, 623 F.3d 1032, 1035

(9th Cir. 2010). When the reviewing court finds the elements of

the “credit-as-true” rule have been satisfied, however, the court

may only remand for further proceedings if “an evaluation of the

record as a whole creates serious doubt that the claimant is, in

fact, disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th

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Cir. 2014). 

As noted, the Court concludes the ALJ erred when he

discredited the opinions of Drs. Koslofsky, Barry, and Karlsgodt

as well as the lay testimony of Rasch, Huuki, and Wyss. The

Court, however, declines to credit these opinions as true because

it is unclear how the opinions would affect the ALJ’s assessment

of Plaintiff’s RFC, and, therefore, outstanding issues remain

that must be resolved before a determination of disability can be

made. See Strauss, 635 F.3d at 1138. Moreover, in light of the

ALJ’s adverse credibility finding as to Plaintiff’s testimony and

the fact that many of Plaintiff’s alleged impairments inherently

lack objective medical evidence to support those impairments, the

Court concludes the “record as a whole creates serious doubt that

the claimant is, in fact, disabled.” See Garrison, 759 F.3d at

1021.

Accordingly, on this record the Court remands this matter to

the Commissioner for further proceedings consistent with this

Opinion and Order. 

CONCLUSION

For these reasons, the Court REVERSES the decision of the

Commissioner and REMANDS this matter pursuant to sentence four of 

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42 U.S.C. § 405(g) for further administrative proceedings

consistent with this Opinion and Order. 

IT IS SO ORDERED.

DATED this 19th day of December, 2016.

 /s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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