Barrett v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

William B.,1 No. 3:19-cv-01101-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Laurie B. Mapes

Attorney at Law

PO Box 1241

Scappoose, OR 97056-1241

Attorney for Plaintiff

Jeffrey E. Staples

Social Security Administration

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name

of the non-governmental party or parties in this case. Where applicable, this Opinion uses the

same designation for a non-governmental party’s immediate family member.

Renata Gowie

U.S. Attorney's Office District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff William B. brings this action seeking judicial review of the Commissioner’s

final decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant

to 42 U.S.C. § 405(g). The Court reverses the Commissioner’s decision and remands this case

for further administrative proceedings.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB November 7, 2014, alleging an onset date of September 22,

2014. Tr. 264, 205.2 Plaintiff’s date last insured (“DLI”) is December 31, 2019. Tr. 205. His

application was denied initially and on reconsideration. Tr. 184, 205.

On January 17, 2018, Plaintiff appeared with counsel for a hearing before an

Administrative Law Judge (“ALJ”). Tr. 114. On June 11, 2018, the ALJ found Plaintiff not

disabled. Tr. 105. The Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on hypertension, pacemaker to control heartbeat, type 2

diabetes, stroke, arthritis, spinal stenosis, back injury, headaches, broken right hand, and

congestive heart failure. Tr. 313. At the time of his alleged onset date, he was 49 years old. Tr.

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative

record, filed herein as Docket No. ECF 9.

205. He has a high school education and past relevant work experience as a security guard and a

trailer truck driver. Tr. 97, 104.

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which . . . has lasted or can

be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§§ 423(d)(1)(A), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step

procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases,

agency uses five-step procedure to determine disability). The claimant bears the ultimate burden

of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines

whether the claimant has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not

disabled. Id.

In step three, the Commissioner determines whether the claimant’s impairments, 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.” Id.; 20 C.F.R. §§

404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the

Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”

20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the

claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to

the Commissioner. In step five, the Commissioner must establish that the claimant can perform

other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the

Commissioner meets their burden and proves that the claimant can perform other work that

exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,

416.966.

THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity after his alleged onset date. Tr. 92. Next, at steps two and three, the ALJ determined that

Plaintiff has the following severe impairments: “spine disorder, obesity, congestive heart failure,

cardiac dysrhythmias.” Tr. 92. However, the ALJ determined that Plaintiff’s impairments did not

meet or medically equal the severity of a listed impairment. Tr. 95. At step four, the ALJ

concluded that Plaintiff has the residual functional capacity to perform light work as defined in

20 C.F.R. §§ 404.1567(b) with the following limitations:

he can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps

and stairs, stoop, kneel, crouch, and crawl. Balancing is not limited. He can

tolerate occasional exposure to fumes, odors, dusts, gases, and pulmonary

irritants, and hazards, such as moving mechanical parts and unprotected heights.

Tr. 96. Within these limitations, the ALJ concluded that Plaintiff could perform his past relevant

work as a security guard. Tr. 104. At step five, the ALJ found Plaintiff capable of performing

jobs that exist in significant numbers in the national economy including production assembler,

cleaner, housekeeping, and inspector and hand packager. Tr. 105. Thus, the ALJ concluded that

Plaintiff is not disabled. Id.

//

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings “are based on legal error or are not supported by substantial evidence

in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a

whole, including both the evidence that supports and detracts from the Commissioner’s decision.

Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is

susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”

Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s”) (internal

quotation marks omitted).

DISCUSSION

Plaintiff contends the ALJ erred by (1) failing to provide clear and convincing reasons for

rejecting his subjective symptom testimony, (2) rejecting assessments from three vocational

rehabilitation specialists and rejecting the functional limitations they described, (3) failing to

explain her reasons for finding that Plaintiff’s impairments did not meet the requirements of

Listing 1.04, and (4) crediting an examiner’s opinion that Plaintiff can work full time at “light”

exertion and rejecting the examiner’s limitation on stooping and bending. Pl.’s Opening Br. 4,

17, ECF 10. For the following reasons, the Court reverses the ALJ’s decision and remands this

case for further proceedings.

I. Subjective Symptom Testimony

Plaintiff argues that the ALJ erred by failing to provide clear and convincing reasons to

reject his subjective symptom testimony. The ALJ is responsible for evaluating symptom

testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). Once a claimant shows an

underlying impairment and a causal relationship between the impairment and some level of

symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no

evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent

affirmative evidence that the plaintiff is malingering, “where the record includes objective

medical evidence establishing that the claimant suffers from an impairment that could reasonably

produce the symptoms of which he complains, an adverse credibility finding must be based on

clear and convincing reasons”) (quotation marks and citation omitted); see also Molina v. Astrue,

674 F.3d 1104, 1112 (9th Cir. 2012) (the ALJ engages in a two-step analysis for subjective

symptom evaluation: first, the ALJ determines whether there is “objective medical evidence of

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

symptoms alleged”; and second, “if the claimant has presented such evidence, and there is no

evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order

to reject the claimant's testimony about the severity of the symptoms.”) (quotation marks and

citations omitted).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a

claimant's testimony by simply reciting the medical evidence in support of his or her residual

functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and

must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (the reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ

did not arbitrarily discount the claimant's testimony.”). Factors the ALJ may consider when

making such determinations include the objective medical evidence, the claimant’s treatment

history, the claimant’s daily activities, and inconsistencies in the testimony. Ghanim v. Colvin,

763 F.3d 1154, 1163 (9th Cir. 2014). In addition, conflicts between a claimant’s testimony and

the objective medical evidence in the record can undermine a claimant’s credibility. Morgan v.

Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999).

Plaintiff testified that he has severe back and neck pain. Tr. 126. He noted that due to his

back pain he has to take breaks, rest, and adjust his position when he stands on his feet. Tr. 147.

He testified that he fatigues easily and sometimes “can’t make it through a day without having to

rest.” Tr. 126. He stated that he has to rest for two to four hours a day and that if he misses his

nap, the next day he “can’t function” and spends most of the day in bed. Tr. 143–144.

At the time of the hearing, Plaintiff lived in a camper behind an autobody shop without

running water or a bathroom. Tr. 128–129. He testified that to use running water he walks 700

yards to his friend’s house. Tr. 129. Plaintiff said that he is not able to walk the 700 yards every

day and depending on how badly he is hurting that day, he stops to rest two to three times. Tr.

148.

Plaintiff testified that he drops things, like his keys or a Gatorade bottle, when using his

left hand. Tr. 148. He does laundry on his own, very seldom does yard work, and buys prepared

and microwaveable foods for his meals. Tr. 132, 129. Before he lived in the camper, Plaintiff

lived with a friend. Tr. 135. He mowed his friend’s lawn but broke the job up over two to three

days. Tr. 136.

After his stroke, Plaintiff reports that he “has a hard time understanding” and does not

have the patience he used to with people. Tr. 150 He gets frustrated easily when he does not

understand things. Tr. 142.

The ALJ gave four reasons for rejecting Plaintiff’s subjective symptom testimony. First,

she found inconsistencies between the record and Plaintiff’s testimony that he lacked strength.

Tr. 100. Second, she found that Plaintiff had not presented evidence that linked his reported

tendency to tire easily to a specific physical impairment. Id. Third, she found inconsistencies

between the record and Plaintiff’s testimony that his back pain is constant. Fourth, she found that

Plaintiff’s back pain is not “impervious to treatment.” Id. The Court finds that the ALJ erred by

not providing clear and convincing reasons supported by substantial evidence to discount

Plaintiff’s testimony about his fatigue and treatment of his back pain, but did not err in

discounting his testimony related to strength and constant back pain.

A. Inconsistencies with the Medical Record

Inconsistency between Plaintiff’s testimony and the objective medical record is a valid

reason to discount Plaintiff’s testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.

2003) (affirming the ALJ’s credibility finding when the plaintiff’s testimony of weight

fluctuation was inconsistent with the medical record).

An ALJ may also consider objective medical evidence in evaluating a plaintiff's

subjective symptom testimony, so long as the ALJ does not reject such testimony solely because

it is unsubstantiated by the objective medical evidence. 20 C.F.R. § 416.929(c); Rollins v.

Massanari, 261 F.3d 853, 856, 857 (9th Cir. 2001) (“Once a claimant produces objective

medical evidence of an underlying impairment, an ALJ may not reject a claimant's subjective

complaints based solely on a lack of objective medical evidence to fully corroborate the alleged

severity of pain[;] .... While subjective pain testimony cannot be rejected on the sole ground that

it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant

factor in determining the severity of the claimant's pain and its disabling effects.”) (internal

quotation and brackets omitted); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (The ALJ

could consider mild findings on MRIs and X-rays in discounting the plaintiff’s testimony as to

her back pain.); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004)

(“Graphic and expansive” pain symptoms could not be explained on objective, physical basis by

claimant's treating physician).

i. Strength

The ALJ found that multiple examinations that showed 5/5 strength in Plaintiff’s upper

and lower extremities contradicted Plaintiff’s testimony that he lacked strength. Tr. 100. Prior

inconsistent statements can support an ALJ's credibility determination. Ghanim, 763 F.3d at

1163 (citations omitted).

In Plaintiff’s February 9, 2015 Function Report, he wrote “I don’t have the strength I had

before, and I have problems with getting tired easy and shortness of breath.” Tr. 311. In his

November 25, 2015 Function Report he wrote “I don’t have strenth [sic] and I get tired very

easy. If I do hard work, I have to take a nap for several hours.” Tr. 341. In multiple clinical

settings, Plaintiff received a 5/5 on strength testing in his upper and lower extremities. Tr. 416,

470, 510, 546, 557, 833, 933. As the ALJ stated, these findings contradict Plaintiff’s written

statement in the November 2015 Function Report that he lacks strength.

Plaintiff urges the Court to read his November 2015 Function Report statement in context

and suggests that his statement is better characterized as a comment on his endurance. While this

may be a plausible interpretation of Plaintiff’s comments, especially in light of the February

2015 Function Report, the ALJ’s interpretation of Plaintiff’s plain statement in the November

2015 Function Report is rational. See Vasquez, 572 F.3d at 591 (“Where the evidence is

susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.”); see

also Batson, 359 F.3d at 1196 (“When evidence reasonably supports either confirming or

reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ.”).

Accordingly, the ALJ provided a clear and convincing reasons to discount Plaintiff’s testimony

related to strength.

ii. Fatigue

The ALJ found that Plaintiff had not “presented evidence that definitively link[ed]” his

reported tendency to tire easily to “a specific physical impairment.” Tr. 100. A claimant need not

produce “objective medical evidence of the pain or fatigue itself, or the severity thereof.”

Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273,

1282 (9th Cir.1996)). The ALJ determined that “the claimant’s medically determinable

impairments could reasonably be expected to cause the alleged symptoms.” Tr. 100. There is no

evidence that his multiple medically determinable impairments do not cause his alleged fatigue.

Accordingly, a lack of evidence linking his fatigue to one of his many medically determinable

impairments is not a clear and convincing reason to discount Plaintiff’s testimony. The ALJ does

not provide another reason for discounting his fatigue testimony. The ALJ erred in discounting

Plaintiff’s testimony regarding fatigue.

//

iii. Back Pain

Plaintiff testified that he was unable to work due to “severe back pain and neck pain.” Tr.

126. Plaintiff did not testify to constant back pain at his hearing, but at multiple medical visits he

complained of constant back pain. Tr. 448, 827, 870, 932. At other visits, providers reported that

Plaintiff was “negative for backpain.” Tr. 478, 502, 504, 538. The ALJ relied on these

inconsistencies to discredit Plaintiff’s subjective reports that his back pain is “constant.” An ALJ

may reject a plaintiff's subjective symptom testimony that does “not comport with objective

evidence in [his] medical record.” Bray v. Comm'r, 554 F.3d 1219, 1227 (9th Cir. 2009).

Plaintiff argues that the ALJ mischaracterized the record because on several other

occasions he reported symptoms of back pain. Plaintiff’s records do support a long history of low

and mid-back pain. Tr. 415, 463, 465, 470, 876, 932. However, the ALJ did not discredit

Plaintiff’s testimony related to back pain generally, only his complaints of “constant” backpain.

The ALJ identified a specific inconsistency between Plaintiff’s subjective reports and the

medical record. As a result, the ALJ did not err in discounting his testimony regarding constant

back pain.

B. Treatment

The ALJ found that Plaintiff’s backpain was not “impervious to treatment” and

discounted his testimony on this basis. Tr. 100. The ALJ cited a chart note from Dr. Jessica

Lorenz from April 15, 2016 for this proposition, suggesting that Plaintiff could “lose weight and

engage in physical therapy.” Id; Tr. 886.

The ALJ may consider medical evidence of improvement in evaluating a claimant's

symptom testimony. Morgan, 169 F.3d at 599-600. The ALJ may also rely on “inadequately

explained failure to seek treatment or to follow a prescribed course of treatment.” Molina, 674

F.3d at 1113 (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)) (internal

quotation marks omitted).

The ALJ does not cite medical evidence of improvement, only a suggestion by Dr.

Lorenz that weight loss and physical therapy could improve Plaintiff’s back pain. The record

shows that Plaintiff has sought physical therapy for his back pain and that he “failed PT.” Tr.

446-447, 885-886, 889, 875. As for weight loss, in 2017, Plaintiff underwent bariatric surgery to

address his diagnosed morbid obesity. Tr. 998. Before the surgery, his weight was 329 pounds.

Tr. 1001. At his January 2018 hearing, Plaintiff reported his weight as 235 pounds. Tr. 128.

Despite this significant weight loss, Plaintiff testified to continued back pain. Tr. 126. Rather

than improvement, the record shows that Plaintiff has sought regular and aggressive treatment

for his back pain without success. Dr. Lorenz’s chart note does not constitute a clear and

convincing reason to reject Plaintiff’s testimony related to his backpain.

In sum, the ALJ erred by discounting Plaintiff’s testimony about his fatigue and treatment

of his back pain but did not err in discounting his testimony related to strength and constant back

pain.

II. Medical Testimony

Plaintiff argues that the ALJ erred by according insufficient weight to three vocational

specialists: Claudia von Hammerstein, PT, Colleen Carney, RN CRRN CMC, and Mary Lee

Nichols, Ph.D. She also argues the ALJ erred by improperly evaluating the testimony of Kim

Webster, M.D. “The ALJ is responsible for determining credibility, resolving conflicts in

medical testimony, and for resolving ambiguities.” Reddick, 157 F.3d at 722. Where medical

evidence is inconclusive, “questions of credibility and resolution of conflicts in the testimony are

functions solely of the Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)

(citation omitted).

A. Claudia von Hammerstein, PT

Ms. von Hammerstein conducted a Functional Capacity Evaluation (FCE) of Plaintiff

over two days. Tr. 1144. The purpose of the FCE was to assess Plaintiff’s “overall physical

ability to work at any occupation and provide symptom follow-up and reinforcement of physical

therapy education.” Id. The FCE stated how long throughout a workday Plaintiff could sustain

certain physical activities. It also described residual functional deficits, abilities, and made work

modification recommendations. Tr. 1144–1145. The FCE found Plaintiff able to work in the light

medium category and recommended a “graded re-entry to work . . . starting at 15-20 hours per

week and increasing hours as tolerated.” Tr. 1147.

Physical therapists are not considered acceptable medical sources. See Huff v. Astrue, 275

Fed.Appx. 713, 716 (9th Cir. April 28, 2008) (noting that physical therapists are “other”

sources). Information from medical sources other than “acceptable medical sources” may

provide insight into “the severity of the impairment(s) and how it affects the individual's ability

to function.” SSR 06–03p. The ALJ must consider several factors when evaluating the opinion of

such sources, including: (1) length of relationship and frequency of contact; (2) consistency of

opinion with other evidence; (3) quality of source's explanation for opinion; (4) any specialty or

expertise related to impairment; and (5) any other factors tending to support or refute the

opinion. See SSR 06–03p; 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Under Ninth Circuit law,

evidence from “other sources” is considered under the same standard as that used to evaluate lay

witness testimony, meaning the ALJ may reject it for reasons germane to the witness. Molina,

674 F.3d at 1111 (because physician's assistant was not an acceptable medical source, ALJ could

discount physician's assistant's opinion for germane reasons). “Further, the reasons germane to

each witness must be specific.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009).

The ALJ found that Ms. von Hammerstein “overstates the claimant’s stand/walk limits”

and gave little weight to the work modification recommendations because they were

“recommendations, not functional limits.” Tr. 103. The ALJ explained that she prefers “the State

agency determinations because the consultants are medically acceptable sources with greater

education and expertise than a physical therapist.” Id. None of these reasons are germane to the

witness.

The ALJ’s finding on Ms. von Hammerstein’s stand/walk recommendation is not a

germane reason to discount her testimony. “One reason for which an ALJ may discount lay

testimony is that it conflicts with medical evidence.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.

2001). While a conflict with the medical evidence could be a germane reason to discount Ms.

von Hammerstein’s testimony, the ALJ does not explain how the stand/walk limits were

overstated compared to the other medical evidence in the record. The ALJ’s general description

of the medical evidence does not identify a contradiction either. Without weighing the evidence

and scouring the record, the Court cannot determine whether this finding is supported by

substantial evidence. Thus, it cannot serve as a germane reason for discounting Ms. von

Hammerstein’s opinion.

Additionally, a finding that the FCE included recommendations versus functional

limitations is not a germane reason to discount Ms. von Hammerstein’s opinion. Ms. von

Hammerstein’s opinion does translate findings from objectives tests into functional limitations,

they are just styled as “recommendations” in her report. And, importantly, the FCE developed by

Ms. von Hammerstein includes a functional limitation to “Light Medium Category” work. Tr.

1146.

Given that the previous two reasons do not serve as a proper basis to discount Ms. von

Hammerstein’s opinion, preferring an “acceptable medical source” over a non “acceptable

medical source” is not a germane reason to discredit a witness. “The fact that a medical opinion

is from an ‘acceptable medical source’ is a factor that may justify giving that opinion greater

weight than an opinion from a medical source who is not an ‘acceptable medical source.’” SSR

06-03P, 2006 WL 2329939, at *5 (Aug. 9, 2006). However, it is not “an independently

permissible germane reason to discount” the opinion of a non-acceptable medical source. See

James B. v. Berryhill, No. 6:17-CV-1888-SI, 2018 WL 5786218, at *9 (D. Or. Nov. 5, 2018)

“An ALJ may not reject an opinion solely on the basis that it is proffered by a non-acceptable

medical source.” Id. (citing Lori S. v. Berryhill, 2018 WL 4742511, at *11 (D. Or. Oct. 2, 2018)

and Tully v. Astrue, 2013 WL 1314197, at *7 (D. Ida. Mar. 27, 2013) (“The ALJ cannot discount

the opinion of [a treating nurse practitioner] simply because it falls into the category of ‘not an

acceptable medical source’ for some purposes.”)). Without more, this was not a germane reason

to discount Ms. von Hammerstein’s opinion.

B. Colleen Carney, RN CRRN CMC

Nurse Carney issued an assessment of Plaintiff’s functional limitations after reviewing

Plaintiff’s medical records. Tr. 1139. She found several functional limitations including that he

has “very limited range of lift/carry; needs to be waist to mid chest, short distances.

Stand/walk/sit maximum consecutive time l hours; needs ability to change positions frequently.

Given his level of fatigue; may need ability to lay down after a few hours work with 1/2-1 hr.

rest before resuming work.” Tr. 1140.

Under the regulations applicable to this claim, Nurse Carney is a “non-acceptable”

medical source and thus to properly discount her testimony the ALJ must give specific reasons

germane to the witness. Hale v. Berryhill, No. 3:17-CV-00697-HZ, 2018 WL 2221675, at *9 (D.

Or. May 15, 2018).

The ALJ rejected the exertional limits identified by Nurse Carney as “not supported by

the overall record.” Tr. 103. She stated that Nurse Carney’s findings related to the need to lie

down, fatigue, part-time work, and absenteeism are not supported by the medical record. Id. In

analyzing Nurse Carney’s opinion, the ALJ does not explain how these findings are not

supported by the medical record and does not cite specific contradictions within the record.

Additionally, the general description of the medical evidence does not elucidate how these

findings are not supported by evidence in the record. The Commissioner points to the ALJ’s

findings related to backpain and strength but the ALJ did not discount Nurse Carney’s testimony

related to back pain and strength. Without more, the Court cannot determine whether these were

germane reasons to discount Nurse Carney’s testimony.

The ALJ also found that Nurse Carney overstated Plaintiff’s ability to work with other

people. Tr. 103. The ALJ properly discounted Nurse Carney’s opinion on this basis. The ALJ

identified an inconsistency between the medical evidence and Nurse Carney’s finding. As the

ALJ stated, Plaintiff did not self-report “problems getting along with others.” Tr. 346. In other

parts of the opinion, the ALJ highlighted Plaintiff’s participation in group activities such as

attending church and Bible study. Tr. 94. Participation in these activities and Plaintiff’s self-

report contradict Nurse Carney’s opinion on Plaintiff’s ability to work with others. The Court

finds that the ALJ provided a germane reason, supported by substantial evidence in the record,

for discounting Nurse Carney’s opinion related to Plaintiff’s ability to work with other, but not as

related to his physical limitations.

C. Mary Lee Nichols, Ph.D.

Dr. Nichols reviewed Plaintiff’s OVR file to conduct her assessment. Tr. 1137. She

identified several functional limitations. Id. She stated that Plaintiff was “[g]uarded/poor for full-

time (or initially even half-time) employment due to limited stamina and endurance,

becoming easily mentally, emotionally, and cognitively fatigued and leading to becoming

overwhelmed and hopeless.” Id.

The ALJ gave Dr. Nichols’ opinion little weight because it was “vague” and failed to

identify specific functional limitations. She also found that the opinion was not consistent with

Plaintiff’s self-report.

The weight given to the opinion of a physician depends on whether the physician is a

treating physician, an examining physician, or a non-examining physician. See Orn v. Astrue,

495 F.3d 625, 632 (9th Cir.2007). A non-examining physician is one who neither examines nor

treats the claimant. Lester, 81 F.3d at 830. “The Commissioner may reject the opinion of a non-

examining physician by reference to specific evidence in the medical record.” Sousa v. Callahan,

143 F.3d 1240, 1244 (9th Cir. 1998).

The Court finds that the ALJ's gave specific reasons supported by substantial evidence in

the record to accord Dr. Nichols’ opinion little weight. Citing the record, the ALJ noted that

Plaintiff “does a lot of reading” and reported that he can pay attention “a good wile (sic).” Tr.

94, 346. He responded “yes” to the question, “Do you finish what you start?” Id. These reports

contradict Dr. Nichols’ identified functional limitations and provide a basis to reject her opinion.

The ALJ also properly rejected the opinion as vague, giving the specific example of the finding

“has difficulty trusting others.” Tr. 101. A physician’s reports should show how a claimant’s

symptoms translate into specific functional deficits which preclude certain activities. Morgan,

169 F.3d at 601. Much of Dr. Nichols opinion fails to make connections to specific functional

limitations. The ALJ properly discounted her testimony on this basis.

D. Kim Webster, M.D.

Dr. Webster performed a comprehensive musculoskeletal evaluation of Plaintiff. Tr. 827.

Dr. Webster recommended “limiting lifting and carrying to 20 pounds occasionally and 20

pounds frequently” and a “limit on repetitive bending and stooping.” Tr. 835. She recommended

no other functional limitations. Id.

The ALJ gave weight to the lift/carry limits identified by Dr. Webster, rejected the other

postural limitations, and rejected her limitation on “stooping and bending” finding the degree of

limitation unclear. Tr. 101.

Dr. Webster conducted a one-time evaluation of Plaintiff and is thus an “examining

physician.” If another physician does not contradict an examining physician, the ALJ may reject

it only for clear and convincing reasons. Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir.

2006).

Plaintiff argues that the ALJ erred by not rejecting Dr. Webster’s opinion because from

his perspective she “reviewed limited records.” Pl. Brief at 32. How well a medical opinion

considers all pertinent evidence is one factor the ALJ can consider in deciding the weight to give

a medical opinion. 20 C.F.R. § 404.1527(c)(3). Dr. Webster conducted her own evaluation of the

Plaintiff, including several objective tests. Tr. 827-835. The ALJ gave a detailed description of

this evaluation and appears to weigh Dr. Webster’s opinion on that basis. An alleged limited

review of records is not a clear and convincing reason to discount Dr. Webster’s testimony given

that she is an examining physician.

Next Plaintiff argues that the ALJ erred by rejecting Dr. Webster’s limitation on bending

and stooping. Pl.’s Opening Br. 33. Dr. Webster’s recommendation on bending and stooping is

contradicted by the State’s examining physicians. As a result, the ALJ must provide specific and

legitimate reasons supported by substantial evidence to reject it. Garrison, 759 F.3d at 1012. The

ALJ rejected this recommendation because the degree of limitation was “unspecific.” Tr. 101.

An ALJ may discount medical opinion that are not specific enough. See Darden v. Saul, No. 19-

35696, 2021 WL 1329036, at *1 (9th Cir. Apr. 9, 2021) (“Lack of specificity regarding

functional limitations is a specific and legitimate reason to discount an opinion.”). Thus, the

Court finds that the ALJ provided a specific and legitimate reason, supported by substantial

evidence in the record, for discounting Dr. Webster’s opinion.

III. Step Three: Meeting or Equaling Listings 1.04

Plaintiff alleges that the ALJ erred at step three of the sequential analysis by finding that

his back impairment did not meet or equal Listing 1.04 Disorders of the Spine. The SSR's

“Listing of Impairments” generally describes impairments that are so severe as to be considered

presumptively disabling. 20 C.F.R. §§ 404.1520(d), 416.920(d). “The mere diagnosis of an

impairment listed in 20 C.F.R. Appendix 1, Subpart P ... is not sufficient to sustain a finding of

disability.” Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.1990); 20 C.F.R. § 404.1525(d)

(same). “To meet the requirements of a listing, [a claimant] must have a medically determinable

impairment ... that satisfies all of the criteria in the listing.” E.g., 20 C.F.R. § 404.1525(d). “If a

claimant has more than one impairment, the Commissioner must determine whether the

combination of [the] impairments is medically equal to any listed impairment.” Lewis, 236 F.3d

at 514 (citation and quotation marks omitted); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th

Cir.1999). “Listed impairments are purposefully set at a high level of severity because ‘the

listings were designed to operate as a presumption of disability that makes further inquiry

unnecessary.’” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v.

Zebley, 493 U.S. 521, 531 (1990)). “Listed impairments set such strict standards because they

automatically end the five-step inquiry, before residual functional capacity is even considered.”

Id.

Listing 1.04 provides:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal stenosis,

osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting

in compromise of a nerve root (including the cauda equina) or the spinal cord.

With:

A. Evidence of nerve root compression characterized by neuro-anatomic

distribution of pain, limitation of motion of the spine, motor loss (atrophy with

associated muscle weakness or muscle weakness) accompanied by sensory or reflex

loss and, if there is involvement of the lower back, positive straight-leg raising test

(sitting and supine)....

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. The ALJ found that “the record does not show

degenerative disc disease has caused compromise of a nerve root including the cauda equina with

evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in

pseudoclaudication.” Tr. 95.

Plaintiff argues that the record contains medical evidence that he meets the criteria of

Listing 1.04A. He also complains that the ALJ did not explain her rationale. The record does not

support a finding that Plaintiff satisfies all the criteria of the listing. For example, Listing 1.04A

requires “motor loss (atrophy with associated muscle weakness or muscle weakness).” 20 C.F.R.

Pt. 404, Subpt. P, App. 1, § 1.04. Although Plaintiff alleges motor loss, the record does not

support the requisite muscle weakness. The ALJ discussed medical evidence related to strength

in Plaintiff’s lower and upper extremities and appropriately discounted his testimony regarding

strength. Tr. 100. As for Plaintiff’s low back, he did not report discomfort with straight leg raises

while sitting, which is required to meet Listing 1.04A. Tr. 832. Additionally, the ALJ’s general

discussion of the medical record related to Plaintiff’s spine disorder and other symptoms were

sufficient to support her finding that Plaintiff’s condition does not meet Listing 1.04A. See

Despinis v. Comm'r Soc. Sec. Admin., No. 2:16-CV-01373-HZ, 2017 WL 1927926, at *3 (D. Or.

May 10, 2017) (“the Ninth Circuit has explained that, while an ALJ must discuss and evaluate

the evidence that supports her conclusion, it is not required that she do so under the heading

‘Findings.’”) (citing Kennedy, 738 F.3d at 1178).

Next, Plaintiff argues the ALJ erred by failing to evaluate medical equivalence. “An ALJ

is not required to discuss the combined effects of a claimant's impairments or compare them to

any listing in an equivalency determination, unless the claimant presents evidence in an effort to

establish equivalence.” Burch, 400 F.3d at 683; see also Gonzalez v. Sullivan, 914 F.2d 1197,

1201 (9th Cir. 1990) (“It is unnecessary to require the [Commissioner], as a matter of law, to

state why a claimant failed to satisfy every different section of the listing of impairments.”).

Plaintiff failed to offer a plausible theory as to how his combination of impairments medically

equaled the severity of a Listed impairment. Accordingly, the ALJ did not err at step three.

IV. Remand

Plaintiff asks the Court to credit the above-described testimony as true and remand this

case for payment of benefits of for further proceedings. To determine which type of remand is

appropriate, the Ninth Circuit uses a three-part test. Garrison, 759 F.3d at 1020; Treichler v.

Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014). First, the ALJ must fail to

provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical

opinion. Garrison, 759 F.3d at 1020. Second, the record must be fully developed, and further

administrative proceedings would serve no useful purpose. Id. Third, if the Court remands the

case and credits the improperly discredited evidence as true, the ALJ would be required to find

the claimant disabled. Id. To remand for an award of benefits, each part must be satisfied. Id. The

“ordinary remand rule” is “the proper course,” except in rare circumstances. Treichler, 775 F.3d

at 1101.

Plaintiff asserts that remand for an award of benefits is appropriate here. Pl.’s Op. Br. 34–

35. He argues that when credited as true the opinions of the vocational rehabilitation consultants

require a finding that he is disabled because he cannot sustain fulltime work.

As explained above, the ALJ did fail to articulate legally sufficient reasons for rejecting

the opinions of two of the vocational rehabilitation consultants who are non-acceptable medical

sources. As such, the ALJ failed to properly consider the limitations contained therein when

proceeding through the steps of the sequential evaluation. However, the Court finds that further

proceedings, rather than a remand for benefits, would be useful because it is unclear from the

record that the ALJ would need to credit the vocational rehabilitation consultants opinions if she

had properly considered the other evidence. Exercising its discretion, the Court finds it is

appropriate to remand this case for further proceedings so that the ALJ may properly consider

and evaluate the evidence.

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CONCLUSION

Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED

for administrative proceedings.

IT IS SO ORDERED.

DATED:________A_u_g_u_s_t_ 1_6__, 2__0_2_1_ _.

__________________________________

MARCO A. HERNÁNDEZ

United States District Judge