The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
BRIAN E. W.1 Case No. 6:18-cv-544-AC
Plaintiff, OPINION AND ORDER
v.
COMMISSIONER, Social Security
Administration,
Defendant.
___________________________________
ACOSTA, Magistrate Judge:
Plaintiff Brian E. W. (“Plaintiff”) filed this action under section 205(g) of the Social Security
Act (the “Act”) as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner
of Social Security (the “Commissioner”) who denied him supplemental security income benefits
(“SSI Benefits”). The court finds the Commissioner erred by not justifying his rejection of
1In the interest of privacy, this Opinion uses only the first name and the initial of the last
name of the non-governmental party in this case.
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Plaintiff’s treating physician’s opinion that Plaintiff is limited to occasional reaching and, as a result,
relying on vocational expert testimony based on an incomplete hypothetical. Accordingly, the
Commissioner’s final decision is reversed and remanded for further proceedings consistent with this
Opinion and Order.
Procedural Background
On or about March 13, 2014, Plaintiff protectively filed an application for SSI Benefits
alleging an onset date of July 27, 2013. The application was denied initially, on reconsideration, and
by the Administrative Law Judge (the “ALJ”) after a hearing. The Appeals Council denied review
and the ALJ’s decision became the final decision of the Commissioner.
Factual Background
Plaintiff is fifty-five years old. He obtained the equivalent of a high-school education. His
past relevant work experience includes farm worker, construction laborer, and agricultural packer.
Plaintiff has not been involved in a successful work attempt since July 27, 2013. Plaintiff alleges
disability because of back and leg problems, and chest and hip pain.
I. Testimony
Plaintiff claims he became disabled on July 23, 2013, the date of his last successful work
attempt. However, Plaintiff did not stop working for medical reasons in July 2013, but was laid off
when his employer retired. (Tr. of Social Security Administrative R., ECF No. 13 (“Admin. R.”),
at 174.) Shortly after his last day of work, Plaintiff fell fifty feet down a steep hill onto a concrete
pad and hurt his upper back.2 (Admin. R. at 36-37.) He did not seek medical treatment for his
2In 1992, Plaintiff broke six vertebrae in his lower back and currently has some issues in that
area, which he believes are likely due to arthritis. (Admin. R. at 53.)
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injuries, assuming they would just take some time to heal and medical care would not hasten or
temper the healing process. (Admin. R. at 229.) Plaintiff started having issues with his left shoulder
in February 2016, after attending an osteopathic manipulation session for his upper back and right
shoulder. (Admin. R. at 51-52.)
In his Function Report dated April 22, 2014, Plaintiff reported constant pain from his hips
to his shoulders regardless of his activity level. (Admin. R. at 179.) He indicated he intermittently
suffers from breathing problems, ringing in his ears, light-headedness, chest pains, and anxiety.
(Admin. R. at 179.) He is able to care for himself and between periods when he is resting, stretching,
or in pain, he prepares his meals; cleans the kitchen; loads the dishwasher; feeds, waters, picks up
after, and walks his dogs for fifteen to twenty minutes in nice weather; provides transportation and
runs errands for his roommate, who does not drive; and shops for groceries and does laundry on a
weekly basis. (Admin. R. at 180-82.)
Plaintiff enjoys playing with his dogs, although not as aggressively or for as long as before
his injury, watching television and movies, listening to the stereo, and socializing with friends a few
times a week. (Admin. R. at 183.) He is no longer able to pick up heavy items, walk long distances,
or stand or sit for long periods, and has difficulty sleeping. (Admin. R. at 180.) Plaintiff represented
his medical conditions prevent him from lifting more than fifteen pounds, walking more than twenty
minutes, standing more than an hour, sitting more than two hours, squatting or bending more than
a few moments, kneeling more than two minutes, or concentrating for more than short time.
(Admin. R. at 184.) In April 2014, Plaintiff’s medications were limited to Ibruprofen. (Admin. R.
at 185.)
At the time of the hearing in December 2016, Plaintiff lived with his girlfriend, Linda Davis,
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his friend, John Henparn, and nine dogs (two adult Pit Bulls, one adult German Shepherd, Pit Bull
mix, and six puppies. (Admin. R. at 42-44.) On a typical day, Plaintiff stretches each morning to
help with his back, hip and shoulder pain while drinking coffee, cleans up the kitchen while taking
regular rest breaks, lets the dogs outside, cleans up the dog’s mess inside, walks around the yard
cleaning up the mess outside, and then listens to music. (Admin. R. at 54-55.) He helps Davis with
the grocery shopping, using the cart for support while walking, drives home after stretching a bit in
the car, and, as much as possible, helps transport the groceries into the house. (Admin. R. at 55.)
He has difficulty sleeping at night and wakes up every two hours with hip and shoulder pain.
(Admin. R. at 55.)
Plaintiff testified he is unable to lift more than ten pounds from the ground without having
to push on something to straighten, stand for more than two hours due to lower hip pain and right
leg numbness, or walk for more than block due to upper back pain. (Admin. R. at 48-50.) Plaintiff
represented he used anti-inflammatories and nerve medications, as well as muscle relaxants when
he can afford them, only some of which provide some pain relief. (Admin. R. at 46-47.)
II. Medical Evidence
The earliest medical record offered in support of Plaintiff’s claim is the review of an x-ray
of Plaintiff’s lumbar spine dated June 30, 2014. (Admin. R. at 221.) The x-ray revealed
degenerative changes in “essentially all lumber levels with disc height loss and osteophyte
formation” leading to a diagnosis of “[m]ultilevel lumber discogenic degenerative changes at
essentially all lumber levels” but “most prominent at L3-L4.” (Admin. R. at 221.) The vertebral
body height and alignment, and posterior elements were intact; the sacrum and sacroiliac joints were
unremarkable, and there was no evidence of a significant compression deformity. (Admin. R. at
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221.)
On July 9, 2014, James E. Heder, M.D. examined Plaintiff at the request of the
Commissioner. (Admin. R. at 229.) Plaintiff reported back pain limited his ability to walk, reach,
and pull, and prevented him from getting a good night’s sleep. (Admin. R. at 229.) Plaintiff
informed Dr. Heder he was a regular smoker and enjoyed two to five beers per day, but he denied
using street drugs. (Admin. R. at 230.) Dr. Heder noted Plaintiff had no difficulty walking to the
examination room, removing his shoes, or transferring from the chair to the examination table.
(Admin. R. at 231.) He observed Plaintiff had a normal gait, no difficulty walking toe to heel,
hopping on both feet, or squatting, but did get shaky with tandem walking. (Admin. R. at 231-32.)
Dr. Heder indicated:
There are no paravertebral muscle spasms, tenderness, crepitus, or effusions. He
does have an “S” shape scoliosis of the thoracic lumbar spine. It is open to the left
in the lumbar area and open to the right in the thoracic area. His right shoulder
significantly drops off compared to the left, which appears to be due to the scoliosis.
* * *
Strength 5/5 in the upper and lower extremities bilaterally. Grip strength is 5/5
bilaterally. Normal muscle bulk and tone. No atrophy noted.
(Admin. R. at 233.) Dr. Heder diagnosed Plaintiff with “thoracic lumbar spine dysfunction” which
limited Plaintiff’s ability to stand, walk, or sit to a maximum of six hours. (Admin. R. at 233.) Dr.
Heder did not identify any additional restrictions, noting Plaintiff was not limited in his ability to lift,
carry, climb, balance, stoop, kneel, crouch, crawl, reach, handle, finger, and feel. (Admin. R. at 233.)
Later that month, Neal E. Berner, M.D., reviewed Plaintiff’s application and function report,
and Dr. Heder’s conclusions, and found Plaintiff’s residual functional capacity was limited to
“medium” exertion with additional limitations to account for Plaintiff’s reports of pain. (Admin. R.
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at 72-75.) Dr. Berner found Plaintiff could occasionally lift and carry fifty pounds; frequently lift
and carry twenty-five pounds; stand, walk, and sit for six hours in an eight-hour day with normal
breaks; and push and pull frequently, but not constantly, based on limitations in Plaintiff’s upper
extremities. (Admin. R. at 77.) Dr. Berner considered Plaintiff unlimited in his ability to climb
ramps or stairs, balance, stoop, kneel, and crouch, but restricted him to crawling frequently and
climbing ladders, ropes, and scaffolds occasionally. (Admin. R. at 77.) Richard Alley, M.D.,
performed a second review of Plaintiff’s records and in a report dated February 4, 2015, concurred
with the limitations identified by Dr. Berner. (Admin. R. at 88.)
The first report of Plaintiff’s treating physician, John R. Ward Jr., M.D., is dated April 22,
2015. (Admin. R. at 244.) Plaintiff sought medical assistance for his chronic back and neck pain.
(Admin. R. at 244.) Dr. Ward noted spasm and tenderness along the cervical and lower lumbar
paraspinous muscles, with strength intact in the upper extremities and some decreased sensation to
light touch along the right lateral thigh. (Admin. R. at 245.) Dr. Ward indicated “Plaintiff has not
had medical care in quite some time,”3 ordered x-rays, and prescribed salsalate. (Admin. R. at 247.)
The results of the x-rays of Plaintiff’s lumbar spine were “similar to that seen on the prior exam,”
with evidence of discogenic degenerative changes, disc loss, and osteophyte formation at all lumbar
levels, and slight anterolisthesis of L4 under L3 and L5 under L4. (Admin. R. at 278.) However,
there was “no significant compression deformity observed.” (Admin. R. at 278.) X-rays of
Plaintiff’s hip were found to be normal and x-rays of his thoracic spine revealed multilevel thoracic
degenerative changes with no significant compression deformity. (Admin. R. at 279-80.)
3Dr. Ward specifically stated Plaintiff “hasn’t seen a doctor through adulthood.” (Admin.
R. at 244.)
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Plaintiff returned to Dr. Ward on May 6, 2015, and reported the salsalate was not providing
effective pain relief. (Admin. R. at 249.) Dr. Ward prescribed physical therapy, to which Plaintiff
appeared open, naproxen as a replacement for sasalate, and intermittent tramadol. (Admin. R. at
249.) Additionally, in light of Plaintiff’s continued reports of pain, Dr. Ward requested additional
testing to screen for inflammatory arthritis. (Admin. R. at 249.) A month later, Plaintiff indicated
the tramadol made him dizzy, the naproxen cause him to bleed more, and the physical therapy was
not very helpful. (Admin. R. at 251.) Dr. Ward discontinued the tramadol and naproxen, and
prescribed hydrocodone-acetaminophen. (Admin. R. at 251.) The recent blood work revealed a
minimally elevated ANA,4 which Dr. Ward found reassuring and not clinically significant. (Admin.
R. at 251.)
In early July 2015, Plaintiff informed Dr. Ward both he and his physical therapist did not feel
physical therapy was helpful . (Admin. R. at 254.) Plaintiff explained he continued to have trouble
sleeping on his sides and was having a burning sensation down his right leg. (Admin. R. at 254.)
Dr. Ward did not consider Plaintiff’s radicular symptoms consistent enough to warrant an MRI and
was interested in obtaining another opinion on pain management methods. (Admin. R. at 254.) He
referred Plaintiff to a back pain specialist and refilled the hydrocodone-acetaminophen prescription
with slight changes. (Admin. R. at 254.)
On September 4, 2015, Dr. Ward reported the specialist to which he referred Plaintiff
“doesn’t feel like he has a lot to add if patient continues to smoke marijuana and drink.” (Admin.
R. at 255.) He explained to Plaintiff the risks of taking pain medication while drinking and using
cannabis, and advised Plaintiff he should stop taking his hydrocodone. (Admin. R. at 256.) Plaintiff,
4ANA, or antinuclear antibodies, are an indication of rheumatoid arthritis.
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who expressed a desire to continue using the hydrocodone intermittently, committed to decreasing
his drinking and drug use when advised the failure to do so would result in the revocation of the
hydrocodone prescription. (Admin. R. at 256.) In November 2015, Plaintiff sought treatment for
rectal bleeding due to hemorrhoids. (Admin. R. at 239-40.) At that time, Plaintiff reported he drank
six or more beers daily and used cannabis twice daily. (Admin. R. at 239.)
In December 2015, Plaintiff informed Dr. Ward he was dismissed from treatment at a pain
clinic because he continued to drink six sixteen-ounce beers and smoke marijuana three times daily.
(Admin. R. at 257.) Plaintiff again reported he did not consider physical therapy or heat to be
helpful. (Admin. R. at 257.) He stated when his back “pops,” his right shoulder hurts, and that the
pain comes and goes fairly rapidly. (Admin. R. at 257.) He also reported difficulty sleeping and
occasional cramping in his hands and feet. (Admin. R. at 239.) Dr. Ward discontinued the
hydrocodone prescription and encouraged Plaintiff to decrease his alcohol intake but noted Plaintiff
did not seem ready to take that step. (Admin. R. at 258.) Dr. Ward suggested Plaintiff take
ibuprofen and use gabapentin at night. (Admin. R. at 258.) Two months later, Plaintiff was taking
ibruprofen and gabapentin up to three times a day and thought the gabapentin was moderating the
pain at night and helping him sleep. (Admin. R. at 259.) Dr. Ward increased the gabapentin
prescription and referred Plaintiff for osteopathic treatment. (Admin. R. at 260.)
By May 4, 2016, Plaintiff reported having issues with his left shoulder, which he attributed
to his osteopathic treatment. (Admin. R. at 260.) Plaintiff thought the osteopathic manipulations
were not helpful, but rather exacerbated his pain, describing a situation where he felt and heard a pop
in his back resulting in continuous grinding pain which would not subside. (Admin. R. at 260.) He
also reported little to no relief from the ibuprofen and gabapentin, despite doubling or tripling the
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prescribed dose. (Admin. R. at 261.) Dr. Ward prescribed meloxiam in place of ibuprofen and
recommended Plaintiff continue gabapentin. (Admin. R. at 239.) Dr. Ward also ordered additional
x-rays of Plaintiff’s thoracic spine, which were taken on May 4, 2016, and were consistent with the
prior x-rays. (Admin. R. at 262, 281.)
Plaintiff’s pain complaints continued in August 2016. (Admin. R. at 264.) He described
continued pain in his left shoulder and increased pain in his hips. (Admin. R. at 264.) He was
unhappy with the meloxicam, explaining it was not as effective as the ibuprofen. (Admin. R. at
264.) Dr. Ward thought Plaintiff’s pain seemed “muscular in origin” and not “amendable to a trigger
point injection.” (Admin. R. at 264.) Dr. Ward recommended Plaintiff return to ibuprofen and
continue with baclofen and gabapentin. (Admin. R. at 264.) However, at an October 31, 2016
appointment, Plaintiff expressed dissatisfaction with the baclofen. (Admin. R. at 266.) He reported
a decrease in pain with hydrocodone prescribed by a dentist who performed some teeth extractions.
(Admin. R. at 266.) Dr. Ward again informed Plaintiff he did not consider narcotics a viable
treatment option for Plaintiff’s chronic pain. (Admin. R. at 266.) He encouraged Plaintiff to
“continue to be physically active” and continue his gabapentin at night, and recommended
discontinuing any medication that is not providing relief. (Admin. R. at 266.) Dr. Ward expressed
a desire for a second opinion on the cause of Plaintiff’s upper back and shoulder pain. (Admin. R.
at 266.)
On November 21, 2016, Dr. Ward completed a Physician’s Assessment of Physical
Capabilities for Plaintiff. (Admin. R. at 282.) Dr. Ward opined Plaintiff could sit or stand for two
hours at a time and a total of six hours in an eight-hour work day; walk less than an hour at a time
and an hour total in an eight-hour workday; lift up to five pounds frequently and ten pounds
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occasionally; and reach, bend, and climb occasionally. (Admin. R. at 282.) Dr. Ward noted “[d]ue
to multiple, complex pain complaints patient needs a full functional capacity exam.” (Admin. R. at
282.) That same day, Dr. Ward listed Plaintiff’s current medications as cyclobenzaprine, for muscle
spasms and shoulder pain, gabapentin, and ibuprofen. (Admin. R. at 283.) Dr. Ward asked Plaintiff
to “follow up with Dr. Potter to consider injections.” (Admin. R. at 283.)
III. Vocational Evidence
Jeffrey Tittelfitz (“Tittelfitz”) participated in the hearing by telephone and testified as a
vocational expert. The ALJ asked Tittelfitz if an individual approaching advanced age with a GED;
who is capable of performing a range of light work; and with the ability to lift, carry, push, or pull
twenty pounds occasionally from waist level and ten pounds from ground level; stand, sit and walk
six hours cumulatively in an eight-hour workday with a cumulative one-hour limit on walking at a
distance of a few blocks at a time; and occasionally stoop, crouch, and crawl, and climb ladders,
ropes, or scaffolding could perform substantial gainful activity. (Admin. R. at 61-62.) Tittelfitz
testified such individual would not be able to perform Plaintiff’s past relevant work. (Admin. R. at
62.) However, Tittelfitz testified an individual with such limitations could work as a marker,
assembler, or electronics worker, which he classified as light work requiring lifting of no more than
ten pounds with a sit-stand option and minimal walking. (Admin. R. at 62-63.) In response to a
question posed by Plaintiff’s counsel, Tittelfitz testified the addition of a restriction to only
occasional reaching in all directions would prevent the described individual from performing each
of the previously identified jobs, which all require the ability to frequently or constantly reach
forward, if not overhead. (Admin. R. at 64.)
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IV. ALJ Decision
In his decision issued March 27, 2017, the ALJ concluded Plaintiff had not been suffering
from a disability within the meaning of the Act since the March 13, 2014 filing date. (Admin. R. at
14.) The ALJ, who conceded Plaintiff had not engaged in substantial gainful activity since March
13, 2014, found Plaintiff suffered from the severe impairments of degenerative disc disease of the
lumbar and thoracic spine but retained the residual functional capacity to perform a reduced range
of light work, which included the ability to lift, carry, push or pull twenty pounds occasionally when
working from waist level and ten pounds when working from the ground; stand and sit for six hours,
and walk a few blocks at a time for a total of one hour, in an eight-hour workday; and occasionally
stoop, crouch, crawl, and climb ladders, ropes and scaffolding. (Admin. R. at 16-17.) The ALJ
believed Plaintiff was unable to perform his past relevant work of farm worker, construction worker,
and agricultural packer, but could perform other work identified by the vocational expert, such as
marker, small products assembler, or electronics worker, which exists in significant numbers in the
national economy. (Admin. R. at 20-21.) Accordingly, the ALJ concluded Plaintiff was not disabled
under the Act at any time since March 13, 2014. (Admin. R. at 22.)
The ALJ acknowledged Plaintiff’s medically determinable impairments could reasonably
cause some of the symptoms and limitations described by Plaintiff, but found the Plaintiff’s
statements with regard to the intensity, persistence, and extent of the resulting limitations were not
entirely consistent with the evidence in the record. (Admin. R. at 17-18.) The ALJ noted that while
Plaintiff claimed to be disabled as of July 27, 2013, Plaintiff stopped working at that time because
he was laid off, not because of his medical impairments. (Admin. R. at 18.) He also commented on
Plaintiff’s failure to seek medical treatment for nearly two years after his alleged onset date, which
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the Plaintiff attributed to a lack of insurance. (Admin. R. at 18.) When Plaintiff did seek treatment
in April 2015, Dr. Ward prescribed routine and conservative treatment methods, such as
manipulative and physical therapy, which apparently provided little relief of Plaintiff’s pain and
other symptoms. (Admin. R. at 18.) While Plaintiff reported some pain relief with hydrocodone,
he elected to discontinue his use of the medication in favor of continued enjoyment of alcohol and
marijuana. (Admin. R. at 18.) Moreover, Dr. Ward encouraged Plaintiff to engage in physical
activities in 2016, despite Plaintiff’s reports of ongoing back pain. (Admin. R. at 18.) Dr. Ward did
not consider Plaintiff’s symptoms consistent enough to warrant an MRI or surgery and Plaintiff was
never hospitalized. (Admin. R. at 18-19.) Finally, the ALJ noted that despite Plaintiff’s allegations
he was unable to work due to his medical limitations, Plaintiff reported he was able to independently
maintain his personal care, prepare meals, perform household chores, shop, manage finances, taxi
his roommate around town, care for nine dogs, and socialize with friends. (Admin. R. at 19.) The
ALJ concluded the inconsistencies between Plaintiff’s alleged onset date, work history, objective
findings, treatment records and recommendations, and daily activities all undermined Plaintiff’s
allegations regarding the intensity, persistence, and limiting effects of his pain and symptoms.
(Admin. R. at 18-19.)
The ALJ essentially agreed with the limitations described by Dr. Ward in his Physician’s
Assessment of Physical Capabilities with the exception of the weight limitation for lifting, carrying,
pushing, and pulling from the waist level and above. (Admin. R. at 19.) The ALJ explained:
In November 2016, Dr. Ward filled out a medical source statement indicating that the
claimant could lift and carry 10 pounds occasionally and 5 pounds frequently (Ex.
6F.) He could sit and stand, each for two hours at a time for a total of 6 hours each
in an 8-hour workday. He could walk for less than 1 hour at a time for a total of 1
hour in an 8-hour workday. Although Dr. Ward admits that his opinion is based
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largely on the claimant’s subjective reports of pain, the record documents severe
spinal disease that could reasonably cause the claimant’s pain. Furthermore, Dr.
Ward has a longstanding treating relationship with the claimant, and his opinion
about the nature, diagnoses, and severity of the claimant’s impairments is generally
consistent with the overall medical evidence of record. However, based on the
claimant’s testimony, I find the claimant is able to lift, carry, push, and pull up to 20
pounds occasionally from waist level and above.
(Admin. R. at 19.) The ALJ rejected the limitations identified by Dr. Heder and the State agency
medical consultants to the extent they were not as severe as those he identified based on the
additional evidence received at the hearing level, including recent treatment records and Dr. Ward’s
assessment. (Admin. R. at 19-20.)
Standard of Review
The Act provides for payment of SSI Benefits to individuals who are age sixty-five or over,
blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a) (2019).
The burden of proof to establish a disability rests upon the claimant. Drouin v. Sullivan, 966 F.2d
1255, 1257 (9th Cir. 1992). To meet this burden, the claimant must demonstrate an inability to
engage in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to cause death or to last for a continuous period of at least twelve
months. 42 U.S.C. § 1382c(a)(3)(A) (2019). An individual will be determined to be disabled only
if there are physical or mental impairments of such severity that the individual is not only unable to
do previous work but cannot, considering his or her age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §
1382c(a)(3)(B) (2019).
The Commissioner has established a five-step sequential evaluation process for determining
if a person is eligible for SSI Benefits because he or she is disabled. 20 C.F.R. § 416.920 (2019);
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Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). First, the Commissioner determines
whether the claimant is engaged in “substantial gainful activity.” If the claimant is engaged in such
activity, SSI Benefits are denied. Otherwise, the Commissioner proceeds to step two and determines
whether the claimant has a medically severe impairment or combination of impairments. A severe
impairment is one “which significantly limits [the claimant’s] physical or mental ability to do basic
work activities.” 20 C.F.R. § 416.920(c). If the claimant does not have a severe impairment or
combination of impairments, SSI Benefits are denied.
If the impairment is severe, the Commissioner proceeds to the third step to determine whether
the impairment is equivalent to one of a number of listed impairments that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 416.920(d). If
the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed
to be disabled. If the impairment is not one that is presumed to be disabling, the Commissioner
proceeds to the fourth step to determine whether the impairment prevents the claimant from
performing work which the claimant has performed in the past. If the claimant is able to perform
work which he or she has performed in the past, a finding of “not disabled” is made and SSI Benefits
are denied. 20 C.F.R. § 416.920(e).
If the claimant is unable to do work performed in the past, the Commissioner proceeds to the
fifth and final step to determine if the claimant can perform other work in the national economy in
light of his or her age, education, and work experience. The burden shifts to the Commissioner to
show what gainful work activities are within the claimant’s capabilities. Drouin, 966 F.2d at 1257.
The claimant is entitled to SSI Benefits only if he or she is not able to perform other work. 20 C.F.R.
§ 416.920(f).
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When an individual seeks SSI Benefits because of disability, judicial review of the
Commissioner’s decision is guided by 42 U.S.C. § 405(g). 42 U.S.C. § 1383(c)(3) (2019). The
reviewing court must affirm the Commissioner’s decision if the Commissioner applied proper legal
standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g)
(2006); Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” means “more than a mere scintilla, but less than a preponderance.” Robbins
v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). It is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Tylitzki v. Shalala, 999 F.2d 1411, 1413
(9th Cir. 1993).
The reviewing court may not substitute its judgment for that of the Commissioner. Robbins,
466 F.3d at 882; Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Thus, where the
evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion must be
upheld, even where the evidence can support either affirming or reversing the ALJ’s conclusion.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The ALJ is responsible for determining
credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala,
53 F.3d 1035, 1039 (9th Cir. 1995). In determining a claimant’s residual functioning capacity, an
ALJ must consider all relevant evidence in the record, including, inter alia, medical records, lay
evidence, and “the effects of symptoms, including pain, that are reasonably attributed to a medically
determinable impairment.” Robbins, 466 F.3d at 883, citing SSR 96-8p, 1996 WL 374184, at *5;
20 C.F.R. §§ 404.1 545(a)(3), 416.945(a)(3); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996).
However, the reviewing court must consider the entire record as a whole, weighing both the evidence
that supports and detracts from the Commissioner’s conclusion, and may not affirm simply by
PAGE 15 - OPINION AND ORDER
isolating a specific quantum of supporting evidence. Lingenfelter v. Astrue, 504 F.3d 1028, 1035
(9th Cir. 2007).
Discussion
Plaintiff asserts the ALJ erred by: 1) improperly rejecting the functional limitation of
occasional reaching identified by Dr. Ward, Plaintiff’s treating physician; 2) improperly discounting
Plaintiff’s testimony regarding his pain and resulting limitations; and 3) relying on vocational
testimony based on an incomplete hypothetical. Plaintiff asks the court to credit the testimony
improperly rejected by the ALJ and remand this action to the Commissioner for an award of SSI
Benefits. The Commissioner contends the ALJ properly considered the evidence presented to him
in accordance with the terms of the Act and related regulations, and that his decision should be
affirmed.
I. Dr. Ward’s Reaching Limitation
The weight attributable to the opinion of a medical source depends, in part, on the
professional relationship between the physician and the claimant. Generally, a treating physician’s
opinion carries more weight than an examining physician’s opinion, and an examining physician’s
opinion carries more weight than that of a physician who did not examine the claimant but formed
an opinion based on a review of the claimant’s medical records. Holohan v. Massanari, 246 F.3d
1195, 1201-1202 (9th Cir. 2001).
The ALJ can reject a treating or examining physician’s opinion that 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 based on substantial evidence in the record. Thomas v.
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Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). An uncontradicted opinion may be rejected only for
clear and convincing reasons. Thomas, 278 F.3d at 956-957.
The opinion of a non-examining physician by itself does not constitute substantial evidence
to reject the opinion of a treating or examining physician. Lester v. Chater, 81 F.3d 821, 831 (9th
Cir. 1996). It may constitute substantial evidence if it is consistent with other evidence in the record.
Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989). Furthermore, an ALJ need not accept a
physician’s opinion that is brief, conclusory or inadequately supported by clinical findings. Bayliss
v. Barnhart, 427 F.3d 1211, 1216. Additionally, if a claimant is found not credible, an ALJ may
appropriately disregard statements the claimant made to his physicians. Tonapetyan v. Halter, 242
F.3d 1144, 1148 (9th Cir. 2001).
The ALJ gave “substantial weight” to Dr. Ward’s November 2016 medical source statement
that identified numerous restrictions, including occasional lifting, carrying of no more than ten
pounds, and occasional reaching. The ALJ expressly rejected the examining and reviewing
physician’s opinions on Plaintiff’s limitations to the extent they were not a severe as the limitations
identified by Dr. Ward and found Dr. Ward’s longstanding treatment of Plaintiff and his “opinion
about the nature, diagnoses, and severity of the [Plaintiff’s] impairments is generally consistent with
the overall medical evidence of record” which document “severe spinal disease that could reasonably
cause the claimant’s pain.” The ALJ’s only express modification of Dr. Ward’s assessment was an
increase in the weight Plaintiff was able to lift, carry, push, and pull up to twenty pounds
occasionally from waist level and up, based on Plaintiff’s testimony. However, the ALJ also omitted
Dr. Ward’s limitation on occasional reaching in his description of Plaintiff’s residual functional
capacity without providing an explanation for such omission. The ALJ’s failure to explain the
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reasons for this omission is clear error.
While Dr. Ward’s restrictions were more limited than those identified by Dr. Heder, Dr.
Berner, and Dr. Alley and, to that extent, were contradicted, the ALJ specifically rejected the lesser
limitations in favor of Dr. Ward’s stated limitations. Consequently, the ALJ was required to, at a
minimum, “make findings setting forth specific, legitimate reasons . . . based on substantial evidence
in the record” if he rejected Dr. Ward’s opinion. He failed to do so.
The Commissioner argues because the ALJ gave Dr. Ward’s opinion substantial, not
controlling, weight, he did not need to include all of the limitations identified by Dr. Ward in the
residual functional capacity assessment. Similarly, the Commissioner contends that because
determining the residual functional capacity is an administrative assessment reserved for the ALJ,
medical opinions are not controlling on this issue and the ALJ did not need to incorporate all of the
limitations described by Dr. Ward in his description of Plaintiff’s residual functional capacity. Even
so, the ALJ is not free to ignore limitations supported by the medical record. If the ALJ omits a
limitation from his residual functional capacity determination, that omission must be justified. Here,
after finding Dr. Ward’s opinion was supported by his longstanding treatment of Plaintiff and
Plaintiff’s medical record, the ALJ failed to discuss why he omitted Dr. Ward’s occasional reaching
limitation from his residual functional capacity assessment. The ALJ was not free to simply
disregard the limitation, especially considering the probative weight he gave Dr. Ward’s opinion.
The Commissioner alternatively argues the ALJ’s rejection of the reaching limitation, after
specifically noting Dr. Ward’s opinion that Plaintiff could reach only occasionally and hearing the
hypothetical including the limitation, establishes the ALJ clearly discounted the limitation as
inconsistent with the overal medical record. Conceding the ALJ’s explanation of his thought process
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with regard to the limitation could have been better, the Commissioner, relying on Molina v. Astrue,
674 F.3d 1104, 1121 (9th Cir. 2012), asserts the court must uphold the ALJ’s decision if his “path
may reasonably be discerned.” In Molina, the court explained “if an ALJ has provided well-
supported grounds for rejecting testimony regarding specific limitations, we cannot ignore the ALJ’s
reasoning and reverse the agency merely because the ALJ did not expressly discredit each witness
who described the same limitations.” Id. The sole reference in the ALJ’s opinion to Plaintiff’s
ability to reach was with regard to the limitation imposed by Dr. Ward. The ALJ did not discuss
testimony or other evidence regarding the reaching limitation and failed to provide well-supported
grounds for rejecting the limitation with regard to any witness. Consequently, Molina is
distinguishable and inapposite to the matter at hand. Moreover, “[l]ongstanding principles of
administrative law require us to review the ALJ’s decision based on the reasoning and factual
findings offered by the ALJ – not post hac rationalizations that attempt to intuit what the adjudicator
may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F3d. 1219, 1225 (9th Cir. 2009).
II. Plaintiff’s Testimony
To determine whether a claimant’s testimony regarding subjective pain or symptoms is
credible, an ALJ must perform two stages of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th
Cir. 2017); 20 C.F.R. § 416.929 (2019). The first stage is a threshold test in which the claimant must
produce objective medical evidence of an underlying impairment that could reasonably be expected
to produce the symptoms alleged. Molina, 674 F.3d at 1112; Tommasetti v. Astrue, 533 F.3d 1035,
1039 (9th Cir. 2008). At the second stage, absent affirmative evidence the claimant is malingering,
the ALJ must provide clear and convincing reasons for discrediting the claimant’s testimony
regarding the severity of the symptoms. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,
PAGE 19 - OPINION AND ORDER
1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make sufficiently specific findings to permit the reviewing court to conclude
the ALJ did not arbitrarily discredit the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d
487, 493 (9th Cir. 2015). Factors the ALJ may consider when making such credibility
determinations include the objective medical evidence, the claimant's treatment history, the
claimant's daily activities, and inconsistencies in testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163
(9th Cir. 2013); Tommasetti, 533 F.3d at 1039.
Plaintiff identifies Dr. Ward’s heavy reliance on Plaintiff’s subjective testimony as a possible
justification for the ALJ’s rejection of the reaching limitation. However, in his responsive brief, the
Commissioner asserts the ALJ did not conclude Dr. Ward improperly relied on Plaintiff’s reports
of his symptoms. Rather, the Commissioner identifies medical records which support Plaintiff’s
subjective pain testimony and notes the ALJ relied on Plaintiff’s reports as a justification for
crediting Dr. Ward’s testimony. In light of the Commissioner’s concession, and the court’s
determination the ALJ erred when he failed to provide legally sufficient reasons to reject the
reaching limitation identified by Dr. Ward, the arguments regarding Plaintiff’s subjective pain
testimony are moot and need not be addressed.
III. Incomplete Hypothetical
“While the claimant has the burden of proof at steps one through four, the burden of proof
shifts to the [Commissioner] at step five to show that the claimant can do other kinds of work.”
Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (citations omitted). The
Commissioner shows that a claimant is capable of working by determining the claimant’s residual
functional capacity and posing hypothetical questions to a vocational expert that incorporate the
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claimant’s limitations. Id. The vocational expert lists jobs the hypothetical claimant is capable of
performing, and the ALJ determines, “given the claimant’s [residual functional capacity], age,
education, and work experience,” if there are jobs in the national economy the claimant can perform.
Id. The Commissioner must identify “specific jobs existing in substantial numbers in the national
economy that [a] claimant can perform despite [his] limitations.” Johnson v. Shalala, 60 F.3d 1428,
1432 (9th Cir. 1995). To have any evidentiary value, vocation expert testimony must be based upon
a complete hypothetical incorporating the entirety of a claimant’s impairments. Embrey v. Bowen,
849 F.2d 418, 422 (9th Cir. 1988).
The hypothetical posed by the ALJ to Tittelfitz did not include a limitation on Plaintiff’s
ability to reach. Because the court finds the ALJ failed to provide specific and legitimate reasons
for rejecting Dr. Wade’s opinion that Plaintiff was limited to occasional reaching, the ALJ failed to
incorporate all of Plaintiff’s limitations into his description of Plaintiff’s residual functional capacity.
Thus, the questions posed to the vocational expert by the ALJ at step five were not based on
substantial evidence, and the vocational expert’s answers to the ALJ’s hypothetical are of no
evidentiary value. Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). The ALJ relied on
Tittelfitz’s answer to the incomplete hypothetical in finding Plaintiff retained the ability to perform
the jobs of marker, small products assembler, or electronics worker. Consequently, the
Commissioner failed to meet its burden to show Plaintiff was capable of performing jobs existing
in substantial numbers in the national economy despite his limitations.5 This is particularly true in
5In a similar case, the Commissioner conceded the ALJ erred when he failed to include in the
hypothetical posed to the vocational expert a reaching limitation identified by the treating physician
despite giving the treating physician’s testimony and opinion significant weight. Woods v. Comm’r
Soc. Sec. Admin., No. 6:14-cv-01766-HZ, 2015 WL 8780538, at *3 (D. Or. Dec. 14, 2015).
PAGE 21 - OPINION AND ORDER
light of Tittelfitz’s testimony Plaintiff could not perform the jobs identified by the ALJ if he was
limited to occasional reaching.
IV. Remand
Plaintiff asks the court to credit the evidence wrongly rejected by the ALJ and remand this
matter to the Commissioner for an immediate award of SSI Benefits. The Commissioner argues
substantial evidence in the record supports the ALJ ’s decision to omit a reaching limitation from
the hypothetical and the ALJ properly relied on Tittelfitz’s answer to the hypothetical in finding
Plaintiff retained the ability to perform the jobs of marker, small products assembler, or electronics
worker.
The decision whether to remand for further proceedings or for immediate payment of benefits
is within the discretion of the court. Harmen v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000), cert.
denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A remand for
an award of benefits is appropriate when no useful purpose would be served by further administrative
proceedings or when the record has been fully developed and the evidence is insufficient to 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 if a claimant is disabled under
the Act. Id. at 1138.
Under the “credit-as-true” doctrine, evidence should be credited and an immediate award of
benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such
evidence; (2) there are no outstanding issues that must be resolved before a determination of
disability can be made; and (3) it is clear from the record that the ALJ would be required to find the
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claimant disabled were such evidence credited. Id. The “credit-as-true” doctrine is not a mandatory
rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award
of benefits upon reversing the Commissioner’s decision. Connett, 340 F.3d at 876 (citing Bunnell
v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en banc)). The reviewing court should decline to
credit testimony when “outstanding issues” remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir.
2010).
Here, the first element of the credit-as-true doctrine is satisfied, as the ALJ erred in his
rejection of Dr. Ward’s occasional reaching limitation. However, the error is based solely on the
ALJ’s failure to provide his reasons for rejecting the limitation, not a lack of available contrasting
evidence in the record with regard to the existence, extent, or duration of the limitation. On remand,
the ALJ should examine the record and expressly accept or reject Dr. Ward’s opinion with regard
to Plaintiff’s ability to reach. If the ALJ rejects the opinion, he must explain his reasons for doing
so.
Conclusion
The Commissioner erred in rejecting Dr. Ward’s opinion on Plaintiff’s ability to reach
without providing reasons for doing so and, as a result, relying on vocational expert testimony based
on an incomplete hypothetical. Accordingly, the Commissioner’s final decision is REVERSED and
REMANDED for further proceedings consistent with this Opinion and Order.
DATED this 30th day of July, 2019.
/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge
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