IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

GINA DUBRA WSKY, 

Plaintiff, 

vs. 

NANCY A. BERRYHILL, Acting 

Commmissioner of Social Security, 

Defendant. 

AIKEN, Judge: 

EUGENE DIVISION 

Case No. 3: 16-cv-00433-AA 

OPINION AND ORDER 

Plaintiff Gina Dubrawsky brings this action pursuant to the Social Security Act ("Act") to 

obtain judicial review of a decision of the Commissioner of Social Security ("Commissioner"). 

The Commissioner denied plaintiffs application for Title II disability insurance benefits 

("DIB"). For the reasons set forth below, the Court reverses the Commissioner's decision and 

remands for further proceedings consistent with this order. 

PROCEDURAL BACKGROUND 

On December 21, 2011, plaintiff applied for DIB. Tr. 14. After her application was 

denied initially on July 24, 2012 and upon reconsideration on January 25, 2013, plaintiff 

appeared and testified at a hearing on July 30, 2014 before an Administrative Law Judge 

("ALJ"). Id. On August 29, 2014, the ALJ issued a decision finding plaintiff not disabled within 

the meaning of the Act. Tr. 26. After the Appeals Council declined her request to find her 

disabled, plaintiff filed a complaint in this Court. Tr. 1. 

PAGE 1 - OPINION AND ORDER 
STATEMENT OF FACTS 

Born on June 7, 1974, plaintiff suffers from degenerative joint disease of both knees, 

degenerative joint disease of the left hip, depressive disorder, anxiety disorder, borderline 

intellectual function, and opiate dependence in pattial remission. 1 Tr. 9. Plaintiffs obesity 

compounds these impaitments. Tr. 258. Plaintiffs depression, memory, concentration, and 

other cognitive issues exacerbate her pain symptoms. Tr. 18. While evidence conflicts as to 

whether plaintiff completed the tenth or eleventh trade, Tr. 38, 77 & 158, it is undisputed 

plaintiff never graduated high school. She worked for eleven years as a mental health attendant 

for Oregon's Department of Human Services. Tr. 60 & 222. 

STANDARD OF REVIEW 

The Comt must affom the Commissioner's decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. 

It means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted). The comt must weigh "both the evidence that suppo1is and detracts from the 

[Commissioner's] conclusions." 1\1artinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986) (citation 

omitted). Variable interpretations of the evidence ai·e insignificant if the Commissioner's 

interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

The initial burden of proof rests upon the claimant to establish disability. Howard v. 

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must 

1 Plaintiffs treating physician, Dr. Prapong, also diagnosed plaintiff with fibromyalgia. 

Although that diagnosis was corroborated by pain specialists, the ALJ found it not "medically 

dete1minable" because the record does not document "fibromyalgia tender point testing or 

control point testing." Tr. 17 & 448. 

PAGE 2 - OPINION AND ORDER 
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 

the plaintiff is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. 

First, the Commissioner determines whether a plaintiff is engaged in "substantial gainful 

activity." Yuckert, 482 U.S. at 140; 20 C .F.R. § 404.1520(b). Ifso, the claimant is not disabled. 

At step two, the Commissioner evaluates whether the plaintiff has a "medically severe 

impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; accord 20 C.F.R. § 

404.1520(c). If the claimant does not have a severe impahment, she is not disabled. 

At step three, the Commissioner dete1mines whether the plaintiffs impairments, either 

singly or in combination, meet or equal "one of a number of listed impairments that the 

[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 

482 U.S. at 141; accord20 C.F.R. § 404.1520(d). Ifso, the claimant is presumptively disabled; if 

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

At step four, the Commissioner resolves whether the plaintiff can still perform "past 

relevant work." 20 C.F.R. § 404.1520(f). If the plaintiff can work, she is not disabled; if she 

cannot perform past relevant work, the burden shifts to the Commissioner. 

At step five, the Commissioner must establish that the plaintiff can perform other work 

existing in significant numbers in the national and local economy. Yuckert, 482 U.S. at 142; 20 

C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 

C.F.R. § 404.1566(b). 

II 

PAGE 3 - OPINION AND ORDER 
THE ALJ'S FINDINGS 

At step one of the five-step process outlined above, the ALJ assumed but did not decide 

that plaintiff had not engaged in substantial gainful activity since April 2, 2011. Tr. 16. The 

ALJ noted that the plaintiff appeared to retain a job beyond April 2, 2011, given that the State of 

Oregon issued a paycheck to plaintiff on September 1, 2011.2 Tr. 16, 158 & 217. Even though 

the "exact date the [plaintiff] last worked is unclear," the ALJ found plaintiff"not disabled ... at 

a later step" in the sequential analysis and continued to step two. Tr. 16. 

At step two, the ALJ found that plaintiff suffers from the following severe impairments: 

"[d]egenerative joint disease of both knees" and "of the left hip; a depressive disorder; an anxiety 

disorder; borderline intellectual functioning; and opiate dependence, in pattial remission." Id. 

At step three, the ALJ found that plaintiffs impaitments, whether considered singly or in 

combination, neither meet nor are the medical equivalent of a listed impairment. Id. 

The ALJ found that plaintiff has the residual functional capacity to perfo1m light work. 

The ALJ imposed the following additional limitations: plaintiff "can only occasionally engage in 

climbing[,]" "kneeling, crouching and crawl;" "needs to alternative between sitting and standing 

approximately once every hour;" and is "limited to simple, routine work." Tr. 18. The ALJ also 

found that plaintiff should only have "occasional contact with supervisors and coworkers" and 

"should not work with the public." Id. 

At step four, the ALJ found that plaintiff could not perfo1m her past relevant work as a 

mental health attendant. Tr. 25 & 61. At step five, the ALJ found that plaintiff could perform a 

significant number of jobs existing in the national and local economy despite her impaitments, 

based on the testimony of a vocational expert ("VE"). Tr. 25-26. For example, the VE testified 

2 The ALJ also noted plaintiffs receipt of $10,935.81 in 2012, but found that money was not 

earned income. Instead, the money was an arbitration award paid by her former employer, who 

fired her. Tr. 16. 

PAGE 4 - OPINION AND ORDER 
that plaintiff could work as an office helper or mailroom sorter. Tr. 26. Accordingly, the ALJ 

found plaintiff not disabled within the meaning of the Act. Id 

DISCUSSION 

Plaintiff argues that the ALJ en-ed by: (1) finding plaintiffs symptom testimony not fully 

credible; (2) giving the opinion of a treating physician, Wijan Prapong, M.D., little weight; and 

(3) giving the opinion of examining psychologist, John Adler, Ph.D., some weight. 

I. Plaintiff's Symptom Testimony 

Plaintiff argues that the ALJ failed to articulate specific, "clear and convincing" reasons 

for rejecting plaintiffs testimony. Lester v. Chafer, 81 F.3d 821, 834 (9th Cir. 1995); Burrell v. 

Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (explaining that under evolving Ninth Circuit 

precedent, ALJs must support their adverse credibility determination with not only "clear and 

convincing" evidence but the support must also be "specific"). Defendant argues the ALJ 

supported by reasons with substantial evidence and should be affomed. 

To determine the appropriate standard for evaluating a plaintiffs symptom testimony, the 

Ninth Circuit applies a two-step test. First, courts consider "whether the claimant has presented 

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

produce the pain or other symptoms alleged." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 

2009). Second, "[i]f the [plaintiffJ meets the first test and there is no evidence of malingering, 

the ALJ can only reject the [plaintiffs] testimony about the severity of the symptoms if [the 

ALJ] gives specific, clear and convincing reasons for the rejection." Id.; see Orn v. Astrue, 495 

F.3d 625, 635 (9th Cir. 2007) (requiring ALJs to identify affirmative evidence of malingering 

before comts can review credibility determinations under a more forgiving standard of review). 

Ultimately, when determining whether clear and convincing reasons support the reason to 

PAGE 5- OPINION AND ORDER 
discredit plaintiffs symptom testimony, ALJs identify "what testimony is not credible and what 

evidence undermines the [plaintiffs] complaints" because "[g]eneral findings are insufficient." 

Lester, 81 F.3d at 834. 

SSR 16-3p, available at 2016 WL 1119029, clarifies the inquiry into plaintiffs 

subjective symptom testimony.3 See generally Bray v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 

1224 (9th Cir. 2009) (explaining that Social Security Rulings "do not cany the 'force oflaw,' but 

3 Effective March 16, 2016, the Social Security rescinded SSR 96-7p and adopted SSR 16-3p in 

its stead. Most of this Court's decisions since SSR 16-3p's found it unnecessary to decide 

whether the guidance applies retroactively because the ALJ' s treatment of the plaintiffs 

symptom testimony would be upheld whether or not SSR 16-3p applied. See, e.g., Upham v. 

Berryhill, 2017 WL 452007, at *7, n.2 (D. Or. Feb. 2, 2017); Hoy v. Comm'r of Soc. Sec., 2016 

WL 8198528, at *4 (D. Or. Dec. 16, 2016), report and recommendation adopted sub nom. 2017 

WL 462008 (D. Or. Feb. 2, 2017); Anderson v. Colvin, -F. Supp. 3d-, 2016 WL 7013472, at 

*10 n.8 (D. Or. Nov. 30, 2016); Willis v. Colvin, 2016 WL 4942000, at *3 n.3 (D. Or. Sept. 15, 

2016); Dunkel v. Colvin, 2016 WL 4034800, at *6 n.3 (D. Or. July 26, 2016); Chavez v. Colvin, 

2016 WL 8731796, at *6 n.1 (D. Or. July 25, 2016). The decisions that decide the question of 

retroactivity are split. Compare, e.g., 1Vfesecher v. Colvin, 2016 WL6666800, at *4 (D. Or. Nov. 

10, 2016); lvfessmer v. Colvin, 2016 WL 5339728, at *3 (D. Or. Sept. 23, 2016) (applying SSR 

16-3p to a 2013 denial of benefits without addressing retroactivity); and Bowlin v. Colvin, 2016 

WL 5339591, at *8 (D. Or. Aug. 18, 2016) (same), report and recommendation adopted, 2016 

WL 5339578 (D. Or. Sept. 21, 2016) with, e.g., Bahles v. Comm 'r Soc. Sec. Admin., 2017 WL 

1293982, at *3 (D. Or. Apr. 4, 2017) (determining that SSR 16-3p "does not apply retroactively 

because 42 U.S.C. § 405(g) does not contain any express authorization from Congress allowing 

the Commissioner to engage in retroactive rulemaking"); Spain v. Colvin, 2017 WL 517795, at 

*5 (D. Or. Feb. 8, 2017); and Colton v. Colvin, 2016 WL 7015669, at *4 (D. Or. Sept. 28, 2016), 

report and recommendation adopted, 2016 WL 6986504 (D. Or. Nov. 28, 2016). 

SSR 16-3p is applicable in this case for two reasons. First, SSR 16-3p's policy of eschewing 

global credibility determinations based on plaintiffs characteristics and propensities for 

truthfulness and directing ALJs to focus on plaintiffs subjective symptom testimony's 

consistency with the record is consistent with SSR 96-7p's policy proscription that "credibility 

of the individual's statements cannot be based on an intangible or intuitive notion about an 

individual's credibility." See Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993) (explaining that 

courts should apply rules retroactively that "simply clarify[] an unsettled or confusing area of the 

law" and do not reflect a substantive change in the law), overruled on other grounds by Johnson 

v. Apfel, 189 F.3d 561 (7th Cir. 1999); see also Smolen v. Chafer, 80 F.3d 1273, 1281 n.l (9th 

Cir. 1996) (declining to decide the issue of retroactivity of revised Social Security regulations 

because "the new regulations are consistent with the Commissioner's prior policies and with 

prior Ninth Circuit caselaw, both of which clearly apply here"). Second, defendant cites SSR 

16-3p as authority, effectively conceding that the newly clarified guidelines apply to the ALJs' 

treatment of plaintiffs symptom testimony. 

PAGE 6 - OPINION AND ORDER 
they are binding on ALJs nonetheless"). ALJs can properly consider the consistency of the 

symptoms with objective medical evidence and with the plaintiffs own statements, recognizing 

that "individuals may experience symptoms differently and may be limited by symptoms to a 

greater or lesser extent than other individuals." SSR 16-3p, 2016 WL 1119029 at *4. However, 

as SSR 16-3p clarifies, ALJs "will not asses an individual's overall character or truthfulness in 

the manner typically used during an adversarial court litigation" because the weight ALJ s give 

symptom testimony does not turns on whether plaintiff "is a truthful person." Id. at * 10. As 

such, "pursuant to SSR 16-3p, the ALJ is no longer tasked with making an overarching 

credibility determination." Anderson, 2016 WL 7013472 at *10 n.8. Instead, ALJs "must limit 

their evaluation to the individual's statements about his or her symptoms and the evidence in the 

record that is relevant to the individual's impairments[,]" SSR 16-3p, 2016 WL 1119029 at * 10, 

and "more closely follow [SSA] regulatory language regarding symptom evaluation." id. At * 1 

n. l. "[I]t is not sufficient for our adjudicators to make a single, conclusory statement that 'the 

individual's statements about his or her symptoms have been considered" because the ALJs' 

reasons must be "clearly aiiiculated so the individual and any subsequent review can assess how 

the adjudicator evaluated the individual's symptoms." Id. at *9. Specifically, the Commissioner 

recommends assessing: 

(1) the claimant's statements made to the Commissioner, medical providers, and 

others regarding the claimant's location, frequency and duration of symptoms, the 

impact of the symptoms on daily living activities, factors that precipitate and 

aggravate symptoms, medications and treatments used, and other methods used to 

alleviate symptoms; (2) medical source opinions, statements, and medical reports 

regarding the claimant's history, treatment, responses to treatment, prior work 

record, effmis to work, daily activities, and other information concerning the 

intensity, persistence, and limiting effects of an individual's symptoms; and (3) 

non-medical source statements, considering how consistent those statements are 

with the claimant's statements about his or her symptoms and other evidence in 

the file. 

Hoy, 2016 WL 8198528 at *3 (summarizing SSR 16-3p, 2016 WL 1119029 at *6-7). 

PAGE 7 - OPINION AND ORDER 
Applying the traditional two-step standard for determining the ALJ's treatment of 

subjective symptom testimony, the ALJ found that the objective medical evidence could support 

the symptoms plaintiff asserts. Tr. 20. The ALJ did not explicitly find and defendant does not 

argue that plaintiff malingered. Therefore, the ALJ was required to support his decision to give 

plaintiffs subjective symptom testimony less than full weight with specific, clear and convincing 

reasons. 

Although the ALJ does not explicitly identify what weight he accorded plaintiffs 

subjective symptom testimony, he accorded plaintiffs testimony "diminished" weight. Tr. 22. 

The ALJ only found plaintiffs subjective symptom testimony credible to the extent that it 

supported plaintiffs "need to alternate between sitting and standing approximately every hour." 

Tr. 23. The ALJ cited several justifications for giving plaintiffs testimony less weight, 

including: (1) plaintiffs "history of opioid dependence", Tr. 21; (2) plaintiffs "focus on 

obtaining pain medication rather than on treatment," id.; (3) plaintiffs inconsistent statements 

regarding her activities of daily living, Tr. 22; (4) plaintiffs testimony that "she felt capable of 

some type of work activity," Tr. 23; (5) plaintiffs signs of improvement with treatment, Tr. 20; 

( 6) the lack of support for plaintiffs "allegations of disabling pain" in the "treatment records and 

objective evidence," id.; and (7) plaintiffs "lack of cooperation with the disability process," Tr. 

22.4 The Comt considers each justification in turn, recognizing that the Court may still uphold 

4 The ALJ also noted plaintiffs work history. Although it is not entirely clear whether the ALJ 

relied on it in evaluating plaintiffs subjective symptom testimony, the Court finds plaintiffs 

work history does not convincingly bears on ability to maintain gainful employment. Plaintiff 

left her employment with Oregon's Department of Human Services after she took unauthorized 

sick time and at first, her employer reduced her salary for three months. Tr. 22-23. Plaintiff 

negotiated her resignation in the context of disciplinary charges. Tr. 23. At best, the Court could 

construe the ALJ' s comments as highlighting an inconsistency with plaintiffs testimony to her 

doctor that she was unsure why her employer fired her. Without more of an explanation of how 

this observation affects the reliability of plaintiffs symptom testimony, the Comt cannot find the 

ALJ's reason a specific, convincing, or clear justification to give plaintiffs testimony less than 

PAGE 8 - OPINION AND ORDER 
the ALJ's decision to accord plaintiffs subjective symptom testimony less than full weight even 

if some of the ALJ's reasons are not specific, clear, and convincing. Tonapetyan v. Halter, 242 

F.3d 1144, 1148 (9th Cir. 2001). For the reasons set out below, the Couti finds substantial 

evidence and specific, clear, and convincing reasons support the ALJ' s detetmination to give 

little weight to plaintiffs subjective symptom testimony. 

First, the ALJ found plaintiffs history of drug use justified putting diminished weight on 

plaintiffs subjective symptom testimony. Plaintiff argues that the ALJ may only consider a 

history of drug use when determining whether it is a material factor contributing to plaintiffs 

disability. As such, plaintiff asserts the ALJ's finding was premature, unnecessary, aud 

prejudicial. Defendant responds by citing Edlund v. kfassanari, 253 F.3d 1152 (9th Cir. 2001), 

as amended on reh'g (Aug. 9, 2001), for the proposition that drug-seeking behavior alone 

justifies discrediting a plaintiffs subjective symptom testimony. Neither patiy correctly states 

the law because plaintiffs drug use could be relevant to determining how much weight to assign 

plaintiffs testimony. However, drug-seeking behavior alone is insufficient to justify an adverse 

credibility detetmination. Under SSR 16-3p, ALJs may not consider character evidence or a 

plaintiffs general tendencies towards truthfulness in weighing subjective symptom testimony. 

See Anderson, 2016 WL 7013472, at *10, n.8 ("[T]he ALJ is no longer tasked with making an 

overarching credibility detetmination."). 

Under Edlund, 253 F.3d at 1157, inconsistent statements about the severity of plaintiffs 

symptoms may be evidence of symptom exaggeration, a specific, clear, and convincing reason to 

diminish the weight of plaintiffs testimony. See id. Here, treatment notes from Dr. Prapong 

full weight, particularly in light of the unclear extent to plaintiffs mental health and cognitive 

limitations. Moreover, as SSR 16-3p clarifies, plaintiffs character or overall truthfulness is not 

specifically or convincingly relevant to the symptom evaluation ALJs perfotm to determine 

plaintiffs RFC. 

PAGE 9- OPINION AND ORDER 
suppmi the inference that plaintiff exaggerated her pain symptoms to receive pain medication. 

Tr. 347 & 440. Further, two other pain specialists were unable to conclude the true extent of her 

pain symptoms and questioned the authenticity of plaintiffs pain testimony. Tr. 400 & 451. 

The Comt accordingly finds the ALJ articulated a clear, convincing, and specific reason to give 

the extent of plaintiffs pain testimony less than full weight. 

Second, the ALJ explained he did not fully credit plaintiffs testimony because plaintiff 

did not fully cooperate with the disability process by missing three of her consultative exams. 

Under 20 C.F.R. § 404.1518, ALJs may deny benefits where plaintiffs fail or refuse to take patt 

in a consultative examination that the Social Security Administration atTanges. However, before 

making an adverse decision on a plaintiffs failure to attend an examination, the ALJ must 

consider whether plaintiff had a good reason, including whether plaintiffs "plaintiffs physical, 

mental, educational, and linguistic limitations" contributed to the absence. Id. 

Here, plaintiff missed her first scheduled appointment with Dr. Adler on July 12, 2012, 

even though the Commissioner accommodated plaintiff and arranged travel to Dr. Adler's office. 

Tr. 70. Plaintiff cancelled her November 20, 2012, appointment with Dr. Adler because the 

appointment was never confirmed and instead saw Dr. Adler on December 10, 2012. Tr. 296-97 

& 303. Finally, plaintiff missed her January 22, 2013, follow-up for additional testing. Tr. 300. 

Plaintiff argues there is evidence in the record that shows she missed appointments due to her 

cognitive limitations. On slightly different facts, that argument might have been persuasive. See 

Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir. 1992) ("[I]t would be contrary to the purpose of 

the S.S.I. program to affirm the Secretary's decision as based on [plaintiffs] failure to cooperate, 

when the record suggests the failure may be due to the very mental illness that rendered 

[plaintiff] eligible for benefits."). Had plaintiff missed only one exam, the ALJ likely would 

PAGE 10 ~OPINION AND ORDER 
have had an obligation to reschedule pursuant to the dnty to "develop [a] complete medical 

history" in Social Security disability cases. 20 C.F.R. § 404.1512(b )(1 ). Here, however, 

plaintiffs persistent absences thwarted accurate testing, limiting the evidence available to the 

ALJ. The ALJ permissibly concluded this pattem constituted a failure to cooperate within the 

meaning of§ 404.1518. See Chase v. Colvin, 665 F. App'x 583, 586 (9th Cir. 2016) (missing 

two consultative exams without good reason exhausts the ALJ's duty to develop the record). 

Plaintiffs failure to cooperate is a clear, convincing, and specific ground for discrediting her 

testimony as it relates to her mental health and cognitive limitations. Thomas v. Barnhart, 278 

F.3d 947, 959 (9th Cir. 2002). 

Third, the ALJ discredited plaintiffs testimony based on her focus on retrieving pain 

medication rather than making lifestyle changes to mitigate her symptoms. Defendant argues 

plaintiffs conservative treatment suggests her symptoms are as not as severe as she alleges. As 

the Ninth Circuit explained, "if a claimant complains about disabling pain but fails to seek 

treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a 

basis for finding the complaint unjustified or exaggerated." Orn, 495 F.3d at 638. While the 

failure to seek treatment in all contexts is not a legitimate reason for discrediting a plaintiffs 

subjective symptom testimony, it is where plaintiffs allegedly suffer from severe pain because "a 

person's n01mal reaction is to seek relief from pain[.]" Id By contrast, "where the stimulus to 

seek relief is less pronounced, and where medical treatment is very unlikely to be successful, the 

approach to credibility makes little sense." Id 

The Court first notes that the ALJ's finding that plaintiff was focused on obtaining pain 

medication and had a conservative treatment plan largely rested on ambiguous evidence. For 

example, the ALJ found that plaintiffs failure to pick up a Cymbalta prescription is inconsistent 

PAGE 11 - OPINION AND ORDER 
with plaintiffs claims of severe pain and depression. The record contains evidence both that 

Cymbalta helped plaintiff manage her pain and that plaintiff felt Cymbalta made things worse. 

Compare Tr. 22 & 342 with Tr. 347. There is also evidence plaintiff had difficulty affording 

Cymbalta. Tr. 336-37. Given this evidence, the Court cannot conclude this is a specific, clear, 

and convincing reason to discredit plaintiffs testimony. The ALJ also cited plaintiff turning 

down her insurance company's offer for to provide free chiropractic and massage care. Tr. 22 & 

78. But because this is not a doctor's prescription or offer for treatment for pain, it is not a 

specific, clear, and convincing reason to discredit plaintiffs testimony. See Fair v. Bowen, 885 

F.2d 597, 603 (9th Cir. 1989) (explaining that "unexplained, or inadequately explained, failure to 

seek treatment or follow a prescribed course of treatment" may support an adverse credibility 

finding) (emphasis added). Substantial evidence does, however, support the ALJ's finding that 

despite the fact that multiple physicians urged plaintiff to attend pain management classes, 

plaintiff attended only one pain management session. Tr. 322, 326-28, 450, 453-54 & 460; see 

also Tr. 399 (explaining plaintiff "recognizes [her] lifestyle contributions to her pain" and "is 

excessively relying upon passive coping strategies"). 

Even assuming that the ALJ' s finding that plaintiff was focused on obtaining medication 

is supported by substantial evidence, however, the ALJ erred by failing to comply with Social 

Security rules prohibiting ALJs from drawing any inferences from the plaintiffs failure to follow 

prescribed treatment without first providing an opportunity for the plaintiff to explain or provide 

additional info1mation. As SSR 16-3p provides, the Commissioner "will not find an individual's 

symptoms inconsistent with the evidence in the record on this basis without considering possible 

reasons he or she may not comply with treatment or seek treatment consistent with the degree of 

his or her complaints." SSR 16-3p, 2016 WL 1119029 at *8. 

PAGE 12 - OPINION AND ORDER 
Possible considerations include side effects of medication, inability to pay, and the effect of a 

plaintiffs mental impairments on her ability to appreciate the need for treatment. Id. at *9; see 

lvfolina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (explaining that plaintiffs have good 

reasons for failing to follow prescribed treatment when noncompliance is attribute to mental 

illness as opposed to mere "personal preference"); 20 C.F.R. § 416.930( c) (providing examples 

of "[a]cceptable reasons for failure to follow prescribed treatment"). There is no evidence the 

ALJ considered alternative explanations of plaintiffs conservative treatment, such as plaintiffs 

inability to pay for treatment or plaintiffs mental health. See Tr. 314 & 402 (indicating the poor 

state of plaintiffs finances). Therefore, plaintiffs supposedly conservative treatment is not a 

convincing reason to discredit plaintiffs testimony. 

Fourth, the ALJ discredited plaintiffs testimony on the basis that she allegedly made 

inconsistent statements about her activities of daily living. Before finding home activities 

suggest that a plaintiff is not actually disabled, the ALJ must explain how the skills are 

transferrable to the world environment. Fair, 885 F.2d at 603 ("[M]any home activities are not 

easily transferable to ... the more grueling enviromnent of the workplace, where it might be 

impossible to periodically rest or take medication."). Statements regarding activities of daily can 

also justify affording plaintiffs subjective symptom testimony less than full weight if they 

"contradict [the plaintiffs] other testimony." Orn, 495 F.3d at 639. 

The Court finds no inconsistency suppo1ted by substantial evidence. A doctor's note 

indicates that plaintiff tries to walk multiple times each day, but because neither the note nor 

other evidence indicates whether plaintiff is successful or how long her walks are, it is unclear 

how this statement indicates plaintiff is capable of working or is inconsistent with her symptom 

testimony. Tr. 388. Even doctors who received plaintiffs testimony on her activities of daily 

PAGE 13 - OPINION AND ORDER 
living found the extent of her activity vague. Id. While plaintiff gave statements that she tries 

walking elsewhere in the record, the record is equally ambiguous there as well. See Tr. 357 & 

394. 

For a similar reason, there is no inconsistency between plaintiffs indication that she can 

help with laundry for ten minutes and her testimony that she is unable to work an eight hour day. 

Tr. 165; Reddick v. Chafer, 157 F.3d 715, 722 (9th Cir. 1998) (recognizing "that disability 

claimants should not be penalized for attempting to lead n01mal lives in the face of their 

limitations" and underscoring that "sporadic" activity "punctuated with rest" do not conflict with 

a disability finding). Furthermore, helping with laundry for a short period of time is not 

transferable to a work environment. Plaintiff need not be "utterly incapacitated[,]" Vertigan v. 

Halter, 260 F.3d 1044, 1050 (9th Cir. 2001), or "vegetate in a dark room[,]"Cooper v. Bowen, 

815 F.2d 557, 561 (9th Cir. 1987), to qualify for disability benefits. 

The ALJ identified no clear inconsistency between plaintiffs daily activities and her 

symptom statements. The ALJ also failed to explain how plaintiffs activities are transferable to 

work environment. See l'vlitchell v. Colvin, 584 F. App'x 309, 313 (9th Cir. 2014) (caring for 

children and tending to household chores are "so undemanding that they cannot be said to bear a 

meaningful relationship to the activities of the workplace") (quoting Orn, 495 F.3d at 639). 

Therefore, the Court finds the ALJ' s fourth reason for discrediting plaintiffs testimony 

unpersuasive. 

Fifth, the ALJ discredited plaintiffs testimony because she indicated "she felt capable of 

some type of work activity." Tr. 23. The ALJ points to a September 8, 2011 doctor's visit 

where plaintiff hoped that "she can find alternative work." Tr. 286. The ALJ also noted that 

plaintiff received unemployment benefits in 2011, and that to qualify for such benefits 

PAGE 14- OPINION AND ORDER 
"applicants must typically affirm that they are capable of working." Tr. 23. Neither piece of 

evidence directly and convincingly bears on plaintiffs symptom testimony because it is unclear 

whether the work plaintiff hoped to find would have been substantial gainful activity within the 

meaning of the Act. Cf Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 

2008) (holding that an ALJ ens by discrediting symptom testimony based receipt of 

unemployment benefits when the record does not reveal whether the plaintiff was looking for 

full- or part-time work). 

Sixth, the ALJ found plaintiffs testimony of disabling limitation inconsistent with 

plaintiffs signs of symptom improvement after taking certain medications and regimens. 

Because plaintiff testified that her pain symptoms improved after starting a rigorous methadone 

treatment, the ALJ provides a clear, convincing, and specific reason to afford plaintiffs previous 

pain testimony less weight. However, to the degree that the ALJ was referring to improvements 

due to plaintiffs change from Effexor to Cymbalta, he erred. The fact that "symptoms may vary 

in their intensity, persistence, and functional effects, or may worsen or improve with time" does 

not justifying making the global determination plaintiffs subjective symptom testimony deserves 

diminished weight. SSR 16-3p, 2016 WL 1119029 at *8. Indeed, even "symptom-free periods 

may be consistent with disability." Carlson v. As/rue, 682 F. Supp. 2d 1156, 1166 (D. Or. 201 O); 

accord Lester, 81 F.3d at 833. Moreover, the cited medical records indicate that plaintiff 

consistently suffered from "high anxiety" and depression. Tr. 363 & 416; see Holohan v. 

ivfassanari, 246 F.3d 1195, 1205 (9th Cir. 2001) ("That a person who suffers from severe panic 

attacks, anxiety, and depression makes some improvement does not mean that the person's 

impairments no longer seriously affect her ability to function in a workplace" because ALJs must 

read these reports "in context of the overall diagnostic picture"). The ALJ erred by citing 

PAGE IS-OPINION AND ORDER 
sporadic and slight improvements in plaintiff's mental health symptoms without explaining how 

those improvements conflicted with plaintiff's testimony. 

Finally, the ALJ gave plaintiff's pain testimony less than full weight because the ALJ 

found that objective evidence does not fully support the severity of plaintiff's condition. 

However, the ALJ does not identify what testimony the objective evidence does not suppo1t or 

how that testimony is inconsistent with the record as a whole. The ALJ's proffered reason is not 

clear, specific, or convincing because "[g]eneral findings are insufficient[.]" Lester, 81 F.3d at 

834. Instead, the ALJ must identify "what testimony is not credible and what evidence 

undermines" plaintiff's pain testimony. Id; see Vasquez, 572 F.3d at 592 ("[T]he ALJ made no 

specific findings in supp01t of her conclusion that [plaintiff's] claims were not credible, other 

than the vague allegation that they were 'not consistent with the objective medical evidence."'). 

Because the ALJ does not provide an explanation for his conclusion, the Court finds the ALJ 

erred by failing to "be sufficiently specific to allow a reviewing court to conclude the adjudicator 

rejected the [plaintiff's] testimony on pe1missible grounds[.]" Bunnell v. Sullivan, 947 F.2d 341, 

345 (9th Cir. 1991). 

Even though the Co mt found several of the ALJ' s reasons to discredit claimant's 

testimony unavailing, the record evidence of symptom exaggeration, failure to cooperate in the 

disability process, and diminished pain due to methadone treatment are specific, clear, and 

convincing reasons to give less than full weight to plaintiff's testimony about her symptoms. 

The ALJ's errors in evaluating plaintiff's symptom testimony were therefore harmless and the 

ALJ's treatment of that testimony will not be disturbed. 

II 

II 

PAGE 16 - OPINION AND ORDER 
II. Crediting Dr. Prapong's Opinion 

Plaintiff argues that the ALJ impermissibly gave Dr. Prapong's medical opinion little 

weight by failing to provide sufficiently specific and legitimate reasons for discrediting Dr. 

Prapong. Defendant responds that the ALJ appropriately discounted Dr. Prapong's opinion 

based on substantial evidence in the record. 

Traditionally, "a treating physician's opinion is generally afforded the greatest weight in 

disability cases[.]" Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) 

(quoting Tonapetyan, 242 F.3d at 1149). This is so because a treating physician "is employed to 

cure and has a greater oppo1tunity to know and observe the patient as an individual." Sprague v. 

Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). As such, "[i]f a treating physician's opinion is 

well-supp01ted by medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling 

weight." Orn, 495 F.3d at 631 (internal quotations omitted) (alterations in original). Fmther, 

even if "the treating physician's medical opinion is inconsistent with other substantial evidence 

in the record, '[t]reating source medical opinions are still entitled to deference and must be 

weighted using all the factors provided in 20 CFR [§] 404.1527."' Holohan, 246 F.3d at 1202 

(quoting SSR 96-2p) (alterations in original. Even if the ALJ declines to accord the treating 

physician's opinion "controlling weight," in "many cases, a treating source's medical opinion 

will be entitled to the greatest weight and should be adopted[.]" Id. "However, the opinion of 

the treating physician is not necessarily conclusive as to either the physical condition or the 

ultimate issue of disability." Morgan v. Comm 'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 

1999). 

PAGE 17 - OPINION AND ORDER 
"To reject the uncontrove1ied opinion of a claimant's physician, the ALJ must present 

clear and convincing reasons for doing so." !Yfagallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 

1989). Because neither the ALJ nor defendant identify a conflicting physician testimony and the 

Comi is unable to find a clearly contradictory testimony from a physician, the Comi finds the 

ALJ must identify specific, clear, and convincing reasons to discredit Dr. Prapong's testimony of 

plaintiffs limiting conditions. 

Dr. Prapong established care with plaintiff on April 4, 2013 and saw claimant every three 

to six months. Tr. 21 & 41. Dr. Prapong opined that a "mental impai1ment" that began in 2007 

"is expected to be of long-continued and indefinite duration [and] substantially impedes" 

plaintiff. Tr. 307. Because of claimant's severe depression, chronic pain, fibromyalgia, 

patellofemoral syndrome, opioid dependence, reliance on a cane for walking, impaired cognition, 

anxiety that results in anhedonia, low energy, poor motivation, and scattered concentration, Dr. 

Prapong concluded claimant would likely miss more than two days of work every month and 

"almost ce1iainly ... would not show up to work with any regularity." Tr. 478. Dr. Prapong 

also found that plaintiff could not stand for more than two hours a day, sit for more than three 

hours a day, or continue standing or sitting for more than 30 minutes at a time. Tr. 476. In 

addition to identifying mobility issues with her upper and lower extremities, Dr. Prapong also 

explained that plaintiff is markedly limited in interacting with others, maintaining her attention, 

and reliably conducting routine tasks. Tr. 476-77. The ALJ considered two different documents 

containing Dr. Prapong's opinion. First, the ALJ gave little weight to a U.S. Depmiment of 

Housing & Urban Development's Safe Home Verification of Disability fo1m because it "was not 

accompanied by any rep01i of objective examination findings or additional documentation 

explaining the nature of the claimant's impairments." Tr. 23 & 307. "[T]he ALJ need not accept 

PAGE 18 - OPINION AND ORDER 
the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, 

and inadequately supported by clinical findings." Bray, 554 F.3d at 1228. Here, Dr. Prapong 

opined that plaintiff suffered a severe mental impairment that qualifies her for higher priority in 

finding affordable housing by checking a box. The ALJ did not elT in rejecting this checkbox 

form and its conclusory statement that plaintiff suffers a disabling mental impairment. 

The ALJ also gave little weight to Dr. Prapong's April 7, 2014 questionnaire for three 

reasons. Tr. 23 & 475-78. The ALJ explained that (I) Dr. Prapong primarily treated plaintiff 

for pain and opioid dependence rather than a full panoply of health issues and only treated 

plaintiffs depression with trials of medication; (2) plaintiff showed improved pain symptoms 

once her doctors treated her with methadone; and (3) plaintiffs depression improved with 

Prozac. 

The ALJ' s first reason for discrediting Dr. Prapong' s testimony appears to be based on 

plaintiffs limited treatment relationship with Dr. Prapong. Under 20 C.F.R. § 416.927(c)(ii), 

ALJs consider the "[n]ature and extent of the treatment relationship" when detennining how 

much weight to accord physician testimony. Here, however, the ALJ unfairly mischaracterizes 

the record by ignoring Dr. Prapong's treatment of plaintiffs mental health limitations, like her 

depression and anxiety. See e.g., Tr. 336-37, 346, 352, 361, 416. Further, the ALJ failed to 

explain which portions of Dr. Prapong's opinion are unrelated to his treatment relationship with 

plaintiff. 

Substantial evidence supports the ALJ' s second reason for giving Dr. Prapong' s 

testimony less than full weight. By her own admission, plaintiffs pain has subsided and her 

current methadone treatment helps manage her physical symptoms. Tr. 40 & 57-58. Plaintiffs 

testimony suggests that she is no longer as limited by pain as she once was. To the degree that 

PAGE 19 - OPINION AND ORDER 
Dr. Prapong's 2014 assessment conflicts with that testimony, the ALJ atiiculated a clear, 

convincing, and specific reason to afford Dr. Prapong's testimony about plaintiff's pain and 

accompanying physical limitations less than full weight. This inconsistency does not, however, 

justify discrediting Dr. Prapong's testimony concerning the severity of plaintiff's mental and 

cognitive symptoms, because there is no evidence methadone alleviates those symptoms. 

Third, the ALJ's finding that plaintiff's improved depression symptoms contradict Dr. 

Prapong's testimony is unpersuasive. The ALJ misconstrued plaintiff's remarks at the hearing. 

Contrary to the ALJ's suggestion, plaintiff testified Prozac is not providing much relief. Tr. 42. 

Moreover, Dr. Prapong specifically opined that even though Prozac helps with plaintiff's mood, 

plaintiff still suffers from "high anxiety" and depression. Tr. 363. This indicates that Dr. 

Prapong took Prozac' s effects into account when f01ming his opinion. 

The ALJ provided a sufficient reason to give little weight to Dr. Prapong's opinion about 

plaintiff's physical limitations. But with respect to plaintiff's cognitive limitations none of the 

three reasons the ALJ cited support affording Dr. Prapong's testimony little weight. 

III. Crediting Dr. Adler's Opinion 

Plaintiff argues that the ALJ erred by according Dr. Adler's opinion only "some weight." 

Tr. 24. Defendant responds that the ALJ properly discredited Dr. Adler's testimony given the 

state agency medical consultant's finding that his opinion was "an overestimate of the severity" 

of plaintiff's restrictions and limitations were "based only on a snapshot of her functioning." Tr. 

82. Because the opinion of Dr. Adler, an examining physician, conflicts with the opinion of the 

state agency medical consultant, the ALJ was required to provide specific and legitimate reasons 

for affording it less weight. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

PAGE 20 - OPINION AND ORDER 
On December 10, 2012, Dr. Adler perfom1ed a consultative exam. Tr. 296. After 

reviewing plaintiffs medical records and performing multiple exercises testing plaintiffs 

concentration, memo1y, and cognitive skills, he opined that "[t]he evidence for cognitive skill 

problems was much clearer and suggested that this is a significant" and "primary impairment, 

followed closely by her depression." Tr. 298. While the ALJ characterized Dr. Adler's report as 

diagnosing only a "moderate ... borderline, intellectual functioning," Tr. 22, Dr. Adler did not 

characterize plaintiffs cognitive impairment as "moderate" in his report, Tr. 296-98. 

While the ALJ credited Dr. Adler's opinion that plaintiff suffers from "cognitive and 

social functioning," the ALJ listed four reasons for giving the opinion only some weight. Id. 

The ALJ found Dr. Adler's opinion (1) is inconsistent with the "record as a whole," which the 

ALJ suggests shows an ability "to sustain work activity;" (2) is based on only one encounter with 

plaintiff; (3) is not based on foimal intelligence testing; and ( 4) mistakes symptoms of poor 

hearing for cognitive impahment issues. Id. The Court finds that the ALJ failed to identify 

specific, legitimate reasons for discrediting Dr. Adler's testimony. 

First, the ALJ found Dr. Adler's opinion is inconsistent on the basis of the record as a 

whole because the ALJ found the record showed plaintiff was able to sustain work. However, 

the conclusion that plaintiff is not disabled cannot serve as a specific, legitimate reason to 

discredit Dr. Adler's testimony. The tautology does not address the evidence before the ALJ and 

suggests motivated reasoning, rather than the evidence, drove the ALJ's conclusion. Bunnell, 

947 F.2d at 345 (explaining the ALJ's rationale "must be sufficiently specific to allow a 

reviewing comi to conclude the adjudicator rejected the claimant's testimony on permissible 

grounds"). Moreover, contrary to the ALJ's suggestion, the fact that plaintiff worked before her 

PAGE 21 - OPINION AND ORDER 
alleged disability onset date is not substantial evidence that plaintiff has an ability to sustain 

work six years later. 

Second, the ALJ discredited Dr. Adler's opinion because Dr. Adler based his conclusions 

on one encounter with plaintiff. Endorsing that reasoning "would have the result of discrediting 

examining physician opinions practically as a matter of definition" because by definition, many 

examining physicians only meet claimants only once. Sorrell v. Colvin, 2015 WL 1152781, at 

*7 (N.D. Cal. Mar. 13, 2015) (citation and quotation marks omitted); see Sorg v. Astrue, 2009 

WL 4885184, at *18 (W.D. Wash. Dec. 16, 2009) (noting that ALJs can "properly rely on the 

findings and opinions of an examining medical source who has seen and evaluated a claimant 

only one time"). "The fact of a one-time examination, without any analysis or assessment as to 

the nature and quality of that examination, is not a sufficient basis for the ALJ's decision[.]" 

Williams v. Colvin, 24 F. Supp. 3d 901, 914 (N.D. Cal. 2014). 

Third, the ALJ discredited Dr. Adler's testimony on the basis that he did not rely on 

formal intelligence testing. However, even if this is a legitimate reason to give Dr. Adler's 

opinion less weight, the reason is not specific enough to credit the ALJ's holding. See Embrey v. 

Bowen, 849 F.2d 418, 421 (9th Cir. 1988) ("To say that medical opinions are not supported by 

sufficient objective findings does not achieve the level of specificity our prior cases have 

required."). 

Finally, the ALJ gives less weight to Dr. Adler's opinion because Dr. Adler "questioned 

whether the claimant's problems with attention were related to a hearing deficit." Tr. 24. In Dr. 

Adler's initial examination, Dr. Adler reported that plaintiff had difficulty understanding and 

responding to his simple questions. Dr. Adler had to repeat multiple questions before plaintiff 

was able to respond. If there were any evidence in the record that plaintiff suffered from a 

PAGE 22-0PINION AND ORDER 
hearing impai1ment, this might be a reason to discredit Dr. Adler's opinion. But even defendant 

recognizes "the record did not reveal any such impahment," Def.'s Br. 16 (doc. 17), and a 

consultative examiner noted plaintiffs "allegations of hearing difficulties are not supported" by 

medical evidence. Tr. 77. Plaintiffs alleged hearing problems therefore are not a legitimate 

reason to disregard Dr. Adler's opinion. 

Defendant's argues that the opinion of Dr. Westfall, a reviewing physician, justifies 

affording Dr. Adler's opinion less weight. That argument is unavailing. Here, Dr. Westfall 

rejects Dr. Adler's findings as "less persuasive" and opines Dr. Adler overestimates plaintiffs 

symptoms, although Dr. Westfall points to no clinical evidence of her own. Tr. 82. The opinion 

of an examining physician cannot, by itself, justify rejecting the opinion of an examining or 

treating physician. }Jorgan, 169 F.3d at 602. This reflects long-standing precedent that the 

"opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a 

nonexamining physician." Lester, 81 F.3d at 830. Moreover, the ALJ did not rely on Dr. 

Westfall's opinion in discrediting Dr. Adler's opinion, and this Court is "constrained to review 

the reasons the ALJ asserts[.]" Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 

2006) (quotation marks omitted). As such, the Court finds the ALJ has not atiiculated specific or 

legitimate reasons to give Dr. Adler's testimony little weight. 

IV. Harmful Error 

The Comi's inquiry does not stop when it finds that the ALJ erred. "[T]he [C]ourt will 

not reverse an ALJ's decision for harmless error." Tommasetti, 533 F.3d at 1038. In order to 

reverse an ALJ' s decision, the Court must find that the ALJ' s error was consequential to the 

ultimate disability determination. Id. As such, where a comi can "confidently conclude that no 

reasonable ALJ ... could have reached a different disability determination," the ALJ' s error is 

PAGE 23 - OPINION AND ORDER 
harmless and, therefore, not reversible. Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 

1056). 

Here, the ALJ did not harmlessly discredit Dr. Prapong and Dr. Adler's testimony. The 

ALJ failed to provide sufficient reasons to discredit Dr. Prapong' s opinions about plaintiffs 

severe mental health and cognitive disorders. In patticular, Dr. Prapong opined that plaintiff 

would be unable to regularly attend work and would experience marked difficulties in 

completing routine tasks. Dr. Adler assessed similar mental limitations. The VE testified at the 

hearing that a person with plaintiffs RFC would not be able to find and maintain gainful 

employment if she were 20% less productive than the average worker. Tr. 65. The Coutt cannot 

conclude that no reasonable ALJ would have reached a different disability determination. 

V. Type of Remand 

In some cases, it is appropriate to credit as true evidence that the ALJ improperly 

disregarded and remand for the immediate award of benefits. Lester, 81 F.3d at 834 ("Where the 

Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or 

examining physician, we credit that opinion 'as a matter of law."'). Before comts may exercise 

their discretion to credit improperly rejected testimony as true and remand for an immediate 

award of benefits, the plaintiff must show that: 

(1) the record has been fully developed and further administrative proceedings 

would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 

reasons for rejecting evidence, whether claimant testimony or medical opinion; 

and (3) if the improperly discredited evidence were credited as true, the ALJ 

would be required to find the claimant disabled on remand. 

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even if these tln·ee requirements are 

met, remand for fmther proceedings is still the proper course if "the record as a whole creates 

serious doubt that a [plaintiff! is, in fact, disabled." Id at 1021. 

PAGE 24 - OPINION AND ORDER 
Plaintiff does not meet these three preconditions. As the Ninth Circuit explained, in 

administrative proceeding "the proper course, except in rare circumstances, is to remand to the 

agency for additional investigation or explanation." !Yfoisa v. Barnhart, 367 F.3d 882, 886 (9th 

Cir. 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)). While the Court found the ALJ 

improperly discredited two physicians' opinions, the Court is unsure if plaintiff is disabled under 

the Act. Garrison, 759 F.3d at 1022. Particularly in light of plaintiffs new methadone treatment 

that reduces her pain symptoms, new proceedings would be useful to incorporate the current 

status of her symptoms and effects of her treatment into the RFC. Additionally, should plaintiff 

be found disabled on remand, the ALJ will need to revisit step one of the analysis and determine 

when she last performed work at the substantial gainful activity level. 

While it is possible to credit as true improperly discredited physicians' opinions even 

when immediate award of benefits is improper, the Court declines to exercise its discretion to do 

so in this case because plaintiff is not "of advanced age and" has not "already experienced a 

severe delay in her application." Vasquez, 572 F.3d at 593; see also Garrison, 759 F.3d at 1021 

(explaining courts should balance the "efficiency and fairness" of further proceedings against the 

certainty plaintiff is disabled under the Act). Therefore, the Court remands for further 

proceedings consistent with this order. 

CONCLUSION 

The Court REVERSES AND REMANDS the ALJ's decision for further proceedings. 

IT IS SO ORDERED. ~ 

(/\&fa!\( 

Dated this ~)ri.fiiy of ApriL2017. . l () 

QAA..~cA ... \d./"1,,!/}/"__/ 

AnnAiken 

United States District Judge 

PAGE 25 - OPINION AND ORDER