IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LISA LEWIS, 3:15-CV-02307-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

NANCY J. MERSEROW

7540 S.W. 51st Avenue

Portland, OR 97219

(503) 560-6788 

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) 727-1003

DAVID MORADO

Regional Chief Counsel

GERALD J. HILL 

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2139 

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:15-cv-02307-BR Document 17 Filed 01/19/17 Page 1 of 27
BROWN, Judge.

Plaintiff Lisa Lewis seeks judicial review of the final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's applications

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

Social Security Act and Supplemental Security Income (SSI) under

Title XVI of the Social Security Act. This Court has jurisdiction to review the Commissioner's final decision pursuant to

42 U.S.C. § 405(g). 

For the reasons that follow, the Court REVERSES the decision

of the Commissioner and REMANDS this matter.

ADMINISTRATIVE HISTORY

Plaintiff protectively filed her application for DIB and

application for SSI on November 23, 2011. Tr. 21.1 Plaintiff

alleged a disability onset date of February 7, 2010. Tr. 21.

Plaintiff’s applications were denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a 

hearing on April 2, 2014. Tr. 46-92. Plaintiff; James Gentile,

a third-party witness; and a vocational expert (VE) testified. 

Plaintiff was represented by an attorney at the hearing. 

1

 Citations to the official transcript of record filed by

the Commissioner on January 20, 2016, are referred to as "Tr."

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On May 16, 2014, the ALJ issued an opinion in which he 

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 21-37. On July 7, 2014, Plaintiff requested

review by the Appeals Council and submitted new evidence to the

Appeals Council, including medical records from March 31, 2014,

through August 5, 2014. Tr. 312-15, 744-71. On November 18,

2015, the Appeals Council denied Plaintiff’s request to review

the ALJ’s decision, and the ALJ’s decision became the final

decision of the Commissioner. Tr. 1-6. See Sims v. Apfel, 530

U.S. 103, 106-07 (2000).

On December 10, 2015, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner’s decision.

BACKGROUND

Plaintiff was born on August 18, 1962. Tr. 51. Plaintiff

was 52 years old at the time of the hearing. Plaintiff has a

two-year degree in early-childhood education and a bachelor’s

degree in human development. Tr. 28. The ALJ found Plaintiff

has past relevant work experience as “a child welfare/family case

worker, social services worker, interviewer/eligibility worker,

and community college teacher/parent trainer/teacher for home

therapy.” Tr. 35. 

Plaintiff alleges disability due to fibromyalgia, migraine

headaches, aneurysm, general anxiety disorder, and personality

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disorder with borderline and histrionic traits. Tr. 23, 98. 

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. 23-26.

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 of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

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“relevant evidence that a reasonable mind might accept as

adequate to support a 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 evaluating a claimant’s

testimony, 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

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial 

5 - OPINION AND ORDER

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gainful activity (SGA). 20 C.F.R. §§ 404.1520(a)(4)(I),

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 if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii), 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. 

§§ 404.1520(a)(4)(iii), 416.920(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.

§§ 404.1520(e), 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,

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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)). 

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),

416.920(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),

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 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),

416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

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substantial gainful activity since her February 7, 2010, alleged

onset date. Tr. 23.

At Step Two the ALJ found Plaintiff has the severe

impairments of fibromyalgia, migraine headaches, aneurysm,

general anxiety disorder, and personality disorder with

borderline and histrionic traits. Tr. 23. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, 

appendix 1. Tr. 26. The ALJ found Plaintiff has the RFC to

perform light work; cannot climb ladders, ropes, or scaffolds;

can occasionally climb ramps and stairs; can occasionally

balance, stoop, kneel, crouch, or crawl; must avoid concentrated

exposures to hazards; is limited to the performance of simple,

routine, repetitive tasks consistent with unskilled work; cannot

have contact with the public; can have superficial contact with

coworkers; is limited to low-stress work, which is defined as

requiring few decisions and few changes; and can work at a

standard or ordinary pace but cannot work at a strict

“production-rate” pace. Tr. 28. 

At Step Four the ALJ concluded Plaintiff is incapable of

performing her past relevant work. Tr. 35.

At Step Five the ALJ found Plaintiff could perform other

jobs that exist in the national economy. Tr. 35-36. 

8 - OPINION AND ORDER

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Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends (1) the ALJ erred when he improperly

rejected the opinions of examining and treating physicians, 

(2) the ALJ erred when he failed to properly evaluate Plaintiff’s

fibromyalgia, (3) the Appeals Council erred when it failed to

remand this matter for the ALJ’s consideration of new evidence,

(4) the ALJ failed to evaluate properly Plaintiff’s RFC at Step

Three, (5) the ALJ improperly rejected Plaintiff’s subjective

symptom testimony, and (6) the ALJ improperly relied on the VE’s

testimony.

I. The ALJ erred in part in his evaluation of the medical

opinion evidence.

Plaintiff contends the ALJ erred when he failed to properly

evaluate the opinions of Jane Starbird, Ph.D.; Neal Musselman,

D.O.; and Suzanne Castro, Psy.D., and “de facto” rejected their

opinions without providing legally sufficient reasons supported

by substantial evidence in the record for doing so.

A. Standards.

The opinion of a treating physician is generally

accorded greater weight than the opinion of an examining

physician, and the opinion of an examining physician is accorded

greater weight than the opinion of a reviewing physician. Ghanim

9 - OPINION AND ORDER

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v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). To reject an

uncontradicted opinion of a treating physician, the ALJ must

provide “clear and convincing reasons that are supported by

substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216

(9th Cir. 2005). Sufficient reasons for rejecting an examining

physician's opinion may include the physician’s reliance on a

claimant's discredited subjective complaints, inconsistency with

the medical records, inconsistency with a claimant's testimony,

and inconsistency with a claimant's daily activities. Tommasetti 

v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).

Medical sources are divided into two categories: 

"acceptable" and "not acceptable." 20 C.F.R. § 416.902. 

Acceptable medical sources include licensed physicians and

psychologists. 20 C.F.R. § 416.902. Medical sources classified

as "not acceptable" include, but are not limited to, nurse

practitioners, therapists, licensed clinical social workers, and

chiropractors. SSR 06-03p, at *2. Factors the ALJ should

consider when determining the weight to give an opinion from

those "important" sources include the length of time the source

has known the claimant and the number of times and frequency that

the source has seen the claimant, the consistency of the source's

opinion with other evidence in the record, the relevance of the

source's opinion, the quality of the source's explanation of his

opinion, and the source's training and expertise. SSR 06-03p, at

10 - OPINION AND ORDER

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*4. On the basis of the particular facts and the above factors,

the ALJ may assign a “not acceptable” medical source opinion

either greater or lesser weight than that of an acceptable

medical source. SSR 06-03p, at *5-6. The ALJ, however, must

explain the weight assigned to such sources to allow the claimant

or subsequent reviewer to follow the ALJ's reasoning. SSR 06-

03p, at *6.

B. Dr. Starbird.

Plaintiff contends the ALJ failed to give clear and

convincing reasons supported by substantial medical evidence in

the record for “de facto” rejecting the opinion of Dr. Starbird,

an examining psychologist, that Plaintiff is moderately limited

in her ability to interact with supervisors.

On December 23, 2013, Dr. Starbird examined Plaintiff

at the request of the Commissioner. Tr. 590-98. On January 6,

2014, Dr. Starbird completed a Medical Source Statement of

Ability to do Work-Related Activities (Mental) on which she

checked the box that indicated Plaintiff was “moderately” limited

in her ability to work with co-workers and supervisors. Tr. 596-

98. Dr. Starbird stated: “[Plaintiff] has poor tolerance to

confusion or stress. Her intellectual function is normal but her

tolerance for interactions with other people is limited. This is

based on characterological features.” Tr. 597.

The ALJ gave “significant weight” to Dr. Starbird’s

11 - OPINION AND ORDER

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opinions “because they are consistent with the objective medical

evidence.” Tr. 31. The ALJ subsequently determined Plaintiff

had the RFC to perform light work subject to the limitation that

she have “superficial contact with co-workers.” Tr. 28. The ALJ

specifically noted Dr. Starbird’s Medical Source Statement “is

consistent with moderate limitations in social functioning.” 

Tr. 27. 

In Rounds v. Commissioner of Social Security

Administration the court found the ALJ did not reject a

physician’s opinion that the plaintiff had moderate limitations

in her ability to accept instructions and to respond

appropriately to criticism when the physician’s opinion was part

of a checkbox form in the physician’s summary report and the ALJ 

specifically referred to it in evaluating the plaintiff’s RFC. 

807 F.3d 996, 1005 (9th Cir. 2015). See also Smith v. Colvin,

No. 3:15-cv-00267-MC, 2016 WL 1065816, at *3 (D. Or. March 15,

2016)(“Moreover, an ALJ’s RFC findings are not required to

address a physician’s checked-box opinion regarding a moderate

limitation, where the ALJ notes this opinion and gives it great

weight as a whole.”)(citing Rounds, 807 F.3d at 1005)).

When an ALJ’s findings are consistent with but not

identical to a physician's assessed limitations of the claimant,

those findings do not constitute a rejection of the physician’s

opinion. Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217,

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1222-23 (9th Cir. 2010). See also Thomas v. Colvin, No.

3:14-cv-00667-CL, 2015 WL 4603376, at *5 (D. Or. July 29, 2015). 

In other words, when the ALJ evaluates a claimant's RFC, his

findings must merely be consistent with the physician’s

conclusions rather than a carbon copy of the physician’s opinion. 

Smith, 2016 WL 1065816, at *3. Otherwise the ALJ is required to

provide legally sufficient reasons for rejecting part of the

physician's opinion.

Here, as noted, the ALJ did not reject Dr. Starbird’s

opinion. In fact, the ALJ generally agreed with Dr. Starbird

regarding Plaintiff's inability to interact in the workplace with

co-workers and supervisors. Tr. 27. Although the ALJ did not

expressly incorporate a supervisory limitation in his evaluation

of Plaintiff’s RFC, the ALJ’s opinion, nonetheless, is consistent

with Dr. Starbird’s opinion that Plaintiff is still able to

“function satisfactorily” in the workplace with limited

interaction with other employees, including supervisors. 

Tr. 596. 

On this record the Court concludes the ALJ did not 

reject Dr. Starbird’s opinion because the limitations included 

in the ALJ’s evaluation of Plaintiff’s RFC were consistent with

Dr. Starbird’s opinion.

C. Dr. Musselman.

Plaintiff next contends the ALJ erred when he failed to

13 - OPINION AND ORDER

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address the opinion of Neal Musselman, D.O., Plaintiff’s treating

psychiatrist, that Plaintiff is disabled as a result of her

combined anxiety disorders. 

On January 9, 2012, Dr. Musselman submitted a form to

the New Mexico Department of Human Services indicating Plaintiff

had been unable to work for the previous six months due to 

post-traumatic stress (PTSD) and chronic anxiety symptoms. 

Dr. Musselman stated the duration of Plaintiff’s inability to

work was “not known” at that time. Tr. 227. 

Plaintiff contends Dr. Musselman’s report was 

consistent with the June 9, 2010, report of David Durham, M.D.,

an examining physician, in which Dr. Durham noted “evidence to

indicate a chronic psychiatric illness that may be rendering

[Plaintiff] disabled.” Tr. 348. 

Although the Commissioner concedes the ALJ did not

specifically address Dr. Musselman’s report, the Commissioner

contends the ALJ did not err because Dr. Musselman’s opinion does

not satisfy the 12-month duration requirement to establish a

disability, the ALJ credited more reliable medical evidence that

covered the entire period of Plaintiff’s alleged disability

beginning in February 2010, and Plaintiff has not been prejudiced

by the ALJ’s failure to consider specifically Dr. Musselman’s

opinion.

1. Standards

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For a claimant to be “disabled” for purposes of

receiving benefits, the claimant’s inability to engage in

substantial gainful employment must last or be expected to last

at least 12 months. Barnhart v. Wilson, 535 U.S. 212 (2012). 

The ultimate determination of “disability” is reserved

to the Commissioner. 20 C.F.R. § 404.1527(d)(1), (3). A

physician may render opinions limited to the issue of the

claimant’s ability to perform work. Garrison v. Colvin, 759 F.3d

995, 1012 (9th Cir. 2012). Although “[t]he administrative law

judge is not bound by the uncontroverted opinions of the

claimant’s physicians on the ultimate issue of disability . . .,

he cannot reject [those opinions] without presenting clear and

convincing reasons for doing so.” Reddick v. Chater, 157 F.3d

715, 725 (9th Cir. 1998).

2. Dr. Musselman’s opinion.

 Dr. Musselman, Plaintiff’s treating physician,

concluded Plaintiff was temporarily unable to work. 

Dr. Musselman opined as of February 2012 Plaintiff suffered from

PTSD and other chronic anxiety symptoms that prevented her from

working for the previous six months, and she was “not able to

pursue competent employment” for an unknown duration. Tr. 227. 

The ALJ failed to address Dr. Musselman’s opinion. 

As noted, if the ALJ disregards a treating physician’s

medical opinion, the ALJ must set forth specific and legitimate

15 - OPINION AND ORDER

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reasons that are supported by substantial evidence in the record

for doing so even if that opinion is controverted. Garrison, 759

F.3d at 1012. Although the ALJ failed to address 

Dr. Musselman’s report, the Commissioner, nevertheless, maintains

the ALJ’s failure is harmless error on the grounds that Plaintiff

has not shown any prejudice and that Dr. Musselman’s report is

not entitled to any special significance.

In Hill v. Astrue the Commissioner, as in this case,

conceded the ALJ did not address the treating physician’s

opinion. The Hill court noted the conclusion of the plaintiff’s

treating physician that the plaintiff’s “combination of mental

and medical problems makes the likelihood of sustained full time

competitive employment unlikely.” 698 F.3d 1153, 1160 (9th Cir.

2102). The Commissioner asserted such a disability opinion was

an issue reserved to the Commissioner and, therefore, not

binding. See 20 C.F.R. § 404.1527(d)(1). The court stated the

treating physician’s statement that the plaintiff would be

“unlikely” to work full-time was not a conclusory statement that

the plaintiff was disabled as described in the regulation, but

instead was an assessment based on objective medical evidence of

the plaintiff’s likelihood of being able to sustain full-time

employment. Thus, the court concluded the ALJ’s disregard for

the treating physician’s medical opinion was not harmless error. 

Id. at 1160.

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Here the ALJ relied on and gave greater weight to the

opinions of Drs. Starbird, Castro, and Anderson, who were all

examining psychiatrists or psychologists. Thus, the ALJ was

required to provide specific and legitimate reasons for

disregarding the opinion of Dr. Musselman, Plaintiff’s treating

physician, and for giving greater weight to the opinions of the

examining psychiatrists and psychologists. As noted, however,

the ALJ failed to even address Dr. Musselman’s opinion. 

Following the reasoning of the Hill court, this Court concludes

the ALJ’s disregard for Dr. Musselman’s opinion is not harmless

error.

Accordingly, on this record the Court concludes the ALJ

erred when he did not address Dr. Musselman’s opinion and did not

provide specific legitimate reasons supported by substantial

evidence in the record for his “de facto” rejection of Dr.

Musselman’s opinion.

D. Dr. Castro.

Plaintiff contends the ALJ erred when he “de facto”

rejected the opinion of Dr. Castro that Plaintiff was limited to

employment that did not require more than “intermittent

interaction with others.”

On March 20, 2012, Dr. Castro, an examining

psychologist, completed a Mental Residual Functional Capacity

Assessment in which she indicated “[Plaintiff] is capable of

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understanding, remembering, and following simple, routine tasks

in a setting where interaction with others is superficial and

intermittent.” Tr. 421. Although the ALJ included in his

evaluation of Plaintiff’s RFC the limitation that Plaintiff “have

superficial contact with coworkers,” Tr. 28, Plaintiff contends

the ALJ’s failure to include the requirement that Plaintiff’s

interaction with others also must be “intermittent” as well as

superficial constitutes a “de facto” rejection of Dr. Castro’s

opinion. In addition, Plaintiff asserts the ALJ’s error resulted

in the ALJ posing an inadequate hypothetical to the VE at Step

Five.

As noted, the ALJ’s assessment of Plaintiff’s RFC must

merely be consistent with the medical evidence rather than a

carbon copy. See Smith, 2016 WL 1065816, at *3. See also

Turner, 613 F.3d at 1222-23. Here Dr. Castro included the term

“intermittent” in her narrative description of Plaintiff’s

limitations. In the “social interaction” portion of her report,

however, she indicated Plaintiff’s ability to “interact with the

general public” was “moderately limited” and her ability to “get

along with coworkers or peers without distracting them or

exhibiting behavioral extremes” was “not significantly limited.” 

Tr. 420. In his assessment of Plaintiff’s RFC the ALJ included a

“no contact” limitation with the public and “superficial” contact

with coworkers. Tr. 28. Thus, the ALJ’s assessment of

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Plaintiff’s RFC adequately reflected the limitations stated in

Dr. Castro’s report.

On this record the Court concludes the ALJ did not err in

his consideration of Dr. Castro’s opinion when he evaluated

Plaintiff’s RFC nor did the ALJ omit from his hypothetical posed

to the VE the conclusions of Dr. Castro as to Plaintiff’s

limitations.

II. The ALJ did not fail to consider Plaintiff’s fibromyalgia.

Plaintiff contends the ALJ erred when he failed to account

for the repeated manifestations of Plaintiff’s fibromyalgia when

evaluating Plaintiff’s RFC.

The Commissioner, in turn, asserts the ALJ noted Plaintiff

had fibromyalgia and, accordingly, included in his assessment of

Plaintiff’s RFC a limitation to light-exertion work in

consideration of Plaintiff’s condition.

On December 6, 2012, Sharon B. Eder, M.D., a state agency

consultant, reviewed Plaintiff’s records and assessed Plaintiff

with “light exertional limitations” based on Plaintiff’s

fibromyalgia. Tr. 31, 575. The ALJ gave “great weight” to 

Dr. Eder’s assessment and found it to be consistent with the

medical records.

On December 23, 2012, Kim Webster, M.D., an examining

physician, found “no objective evidence” that Plaintiff had any

work-related limitations. Tr. 31, 577-83. Nevertheless, the ALJ

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gave “little weight” to Dr. Webster’s opinion because “some

limits are necessary to prevent exacerbation of the [Plaintiff’s]

headaches and in recognition of her diffuse fibromyalgia.” 

Tr. 31. 

The ALJ concluded Plaintiff’s fibromyalgia is a “severe”

impairment diagnosed by “an “acceptable medical source, . . .

lasted for a continuous period of 12 months, and . . . caused

more than a minimal effect” on Plaintiff’s ability to perform

work-related activities. Tr. 23-24. When evaluating Plaintiff’s

RFC, the ALJ noted: “Treatment records indicate [Plaintiff] has

diffuse pain and a fibromyalgia diagnosis, but this appears to be

less limiting than her headaches and anxiety.” Tr. 29. 

The ALJ concluded Plaintiff’s allegations that “she suffers

from dizziness, buzzing in her ears, fatigue, and heart

palpitations,” Tr. 25, did not meet the definitional requirements

of 20 C.F.R. § 416.905 to qualify as disabilities. Nevertheless, 

Plaintiff contends these conditions constitute “somatic symptoms”

of fibromyalgia that should have been considered by the ALJ.

Although the ALJ concluded there was not any “evidence from

an acceptable medical source to establish the existence of a

medically determinable impairment” as to these specific symptoms,

the ALJ, nonetheless, found Plaintiff has the severe impairment

of fibromyalgia and included limitations in his assessment of

Plaintiff’s RFC “in recognition of [Plaintiff’s] diffuse

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fibromylagia pain.” Tr. 31, 32.

On this record the Court concludes the ALJ properly assessed

Plaintiff’s fibromyalgia and included the appropriate limitations

in his evaluation of Plaintiff’s RFC.

III. Appeals Council.

Plaintiff contends the Appeals Council erred when it failed

to remand this case to the ALJ for consideration of the new

evidence submitted by Plaintiff to the Appeals Council after the

ALJ’s decision. 

Plaintiff timely provided the Appeals Council with

additional evidence that included a questionnaire completed2

 on

August 2, 2014, by Leslie Gellert, a licensed clinical social

worker (LCSW), who was Plaintiff’s mental-health provider since

November 2013. Tr. 763-769. The Appeals Council reviewed 

LCSW Gellert's opinion but declined to review the ALJ’s decision

on the ground that the additional evidence “does not provide a

basis for changing the Administrative Law Judge’s decision.” 

Tr. 2.

Plaintiff argues the new evidence demonstrates Plaintiff is

markedly limited in her ability to accept instructions and to 

2

 The questionnaire was sent by Plaintiff’s counsel to 

LCSW Gellert on February 18, 2014, and Plaintiff requested

completion of the form prior to the scheduled hearing in April

2014. Gellert went into labor in March 2014 and, therefore, was

unable to complete the questionnaire until August 2, 2014, when

she returned from maternity leave. Tr. 770-71.

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Case 3:15-cv-02307-BR Document 17 Filed 01/19/17 Page 21 of 27
respond appropriately to criticism from supervisors, and,

therefore, she is more restricted than the ALJ’s finding of

“moderate” social function limitations that did not limit

Plaintiff’s interactions with supervisors. 

The Commissioner contends the opinions in the record by 

Drs. Starbird, Castro, and Anderson, examining psychiatrists or

psychologists, constitute substantial medical evidence sufficient

to support the RFC determined by the ALJ. 

When a claimant “submits evidence for the first time to the

Appeals Council and the Appeals Council considers that evidence

in denying review of the ALJ’s decision, the new evidence is part

of the administrative record, which the district court must

consider in determining whether the Commissioner’s decision is

supported by substantial evidence.” Brewes v. Comm’r. of Soc.

Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012). New

evidence is material if it bears “directly and substantially on

the matter in dispute.” Luna v. Astrue, 623 F.3d 1378, 1380 (9th

Cir. 2010). Remand is necessary when the material evidence gives

rise to a “reasonable possibility” that the new evidence might

change the outcome of the administrative hearing.” Booz v. Sec'y

of Health & Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1984). 

See also Borrelli v. Comm’r. of Soc. Security, 570 F. App’x 651,

652 (9th Cir. 2014). The Court, therefore, considers 

LCSW Gellert’s opinion. See Brewes, 682 F.3d at 1159-60, 1162-

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63. 

The ALJ concluded Plaintiff had “moderate” difficulties with

regard to concentration, persistence, or pace. Tr. 27. The

ALJ’s determination was based on Dr. Starbird’s opinion that

Plaintiff could not carry out complex instructions and lacked an

ability to make judgments on complex work-related decisions and

that Plaintiff’s concentration would be impaired under stress. 

Tr. 27, 596-98.

LCSW Gellert reported Plaintiff has “marked” limitation as

to concentration, persistence, or pace because “physical and

mental health symptoms significantly impact her pace and

completion of tasks due to trouble concentrating.” Tr. 764. 

Thus, LCSW Gellert’s opinion is consistent with Dr. Starbird’s

assessment of Plaintiff.

Accordingly, the Court concludes the Appeals Council

properly declined to remand this matter to the ALJ on the basis

of LCSW Gellert’s report submitted after the ALJ’s decision. 

IV. The ALJ did not err when he found Plaintiff’s testimony was

not fully credible.

Plaintiff alleges the ALJ erred when he found Plaintiff’s

testimony was not entirely credible.

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 and must show the impairment or combination of

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Case 3:15-cv-02307-BR Document 17 Filed 01/19/17 Page 23 of 27
impairments could reasonably be expected to produce some degree

of symptom. Cotton, 799 F.2d 1403, 1407 (9th Cir. 1986). The

claimant, however, need not produce objective medical evidence of

the actual symptoms or their severity. Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is not

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).

The ALJ concluded “[a]lthough some limitations are to be

expected, the record contradicts [Plaintiff’s] testimony with

regard to their nature and extent.” Tr. 32. The ALJ, however,

did “not reject[] [Plaintiff’s] statements about the intensity

and persistence of symptoms solely because the available

objective medical evidence does not substantiate the statements.” 

Tr. 32. Instead the ALJ considered “any medically determinable

impairment resulting in symptom-related functional limitations

. . . which [could] reasonably be accepted as consistent with the

objective medical evidence and other evidence.” Tr. 32. The ALJ

cited Plaintiff’s medical records when he determined the evidence

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Case 3:15-cv-02307-BR Document 17 Filed 01/19/17 Page 24 of 27
did not support Plaintiff’s allegations. Tr. 33-34. For

example, although Plaintiff reported limitations in her daily

activities, she told Dr. Starbird in December 2013 that she did

laundry, washed dishes, vacuumed, read, and watched movies. 

Tr. 592. Plaintiff also participated in activities at her

synagogue and joined the choir for a brief time. Tr. 687. 

Plaintiff noted her anxiety began as a child, and she experienced

symptoms, including headaches, “off and on.” Tr. 702. Her

mental status in 2012 was “relative[ly] stable” with counseling

treatment. Tr. 533-37. 

On this record the Court finds the ALJ did not err when he

found Plaintiff was not fully credible because the ALJ provided

clear and convincing reasons supported by substantial evidence in

the record for doing so.

REMAND

The Court must determine whether to remand this matter for

further proceedings or to remand for the calculation of benefits.

The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely

utility of further proceedings. Id. at 1179. The court may

"direct an award of benefits where the record has been fully

developed and where further administrative proceedings would

serve no useful purpose." Smolen, 80 F.3d at 1292. 

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Case 3:15-cv-02307-BR Document 17 Filed 01/19/17 Page 25 of 27
The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman v. Apfel, 211 F.3d 1172,

1178 (9th Cir. 2000). The court should grant an immediate award

of benefits when

(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 second and third prongs of the test often merge into a 

single question: Whether the ALJ would have to award benefits if 

the case were remanded for further proceedings. Id. at 1178 n.2.

Here the ALJ specifically stated in his findings that “[t]he

record does not contain any opinion from a treating or examining

physician indicating that [Plaintiff] is disabled.” Tr. 32. The

ALJ, however, did not address the opinion of Dr. Musselman,

Plaintiff’s treating psychiatrist, that Plaintiff was not able to

pursue employment, and the ALJ failed to provide specific and

legitimate reasons for disregarding Dr. Musselman’s opinion in

favor of the opinions of examining psychiatrists and

psychologists. 

The Court concludes on this record that a remand for further

proceedings consistent with this Opinion and Order is required to

permit the ALJ to consider and to address Dr. Musselman’s opinion

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Case 3:15-cv-02307-BR Document 17 Filed 01/19/17 Page 26 of 27
and, in light of Dr. Musselman's opinion, to reassess Plaintiff’s

RFC and the hypothetical posed to the VE if necessary.

CONCLUSION

For these reasons, 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.

IT IS SO ORDERED.

DATED this 19th day of January, 2017.

 /s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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