Hertel v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Ronald H.,1 No. 3:22-cv-00715-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Caitlin S. Laumaker

George J. Wall

Law Offices of George J. Wall

825 NE 20th Ave Ste 330

Portland, OR 97232

Attorney for Plaintiff

Kevin Danielson

Assistant United States Attorney

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

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.

Lars J. Nelson

Special Assistant United States Attorney

Social Security Administration

Office of the General Counsel

6401 Security Blvd

Baltimore, MD 21235

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Ronald H. 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 on March 20, 2019, alleging an onset date of May 9, 2017. Tr.

13.2 Plaintiff’s date last insured (“DLI”) is December 31, 2022. Tr. 15. His application was

denied initially and on reconsideration. Tr. 13.

On January 11, 2021, Plaintiff appeared with counsel for a hearing before an

Administrative Law Judge (“ALJ”). Tr. 13. On April 15, 2021, the ALJ found Plaintiff not

disabled. Tr. 26. The Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff originally alleged disability based on inflammatory arthritis. Tr. 228. At the time

of his alleged onset date, he was 55 years old. Tr. 23. He has at least a high school education and

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

record, filed herein as Docket No. 7.

past relevant work experience as a machinist, retail manager, sheet metal worker, heating and air

conditioning installer/servicer, sheet metal supervisor, and project manager. Tr. 22-23.

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.” Yuckert, 482 U.S. at 141;

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. 15. Next, at steps two and three, the ALJ determined that

Plaintiff has the following severe impairments: “obesity, right carpal tunnel syndrome status post

surgery, sleep apnea treated with CPAP, fibromyalgia syndrome, and a left meniscal tear.” Tr.

15. However, the ALJ determined that Plaintiff’s impairments did not meet or medically equal

the severity of a listed impairment. Tr. 16. 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:

the claimant can frequently climb ramps and stairs and occasionally climb ladders,

ropes or scaffolds and can occasionally balance, stoop, kneel, crouch, and crawl,

and can frequently handle and finger with right upper extremity and avoid

concentrated exposure to vibration and work hazards, such as moving machinery

and unprotected heights.

Tr. 17. Because of these limitations, the ALJ concluded that Plaintiff could not perform his past

relevant work. Tr. 22-23. But at step five, the ALJ found that there are jobs that exist in

significant numbers in the national economy that Plaintiff can perform, such as “distributing

clerk,” “returns clerk,” “sales representative, hardware,” and “sales person, general hardware.”

Tr. 25. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 26.

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 asserts that the ALJ erred by (1) improperly rejecting his subjective symptom

testimony, (2) failing to fully address the medical opinion of Dr. Elisabeth Jappay, (3) failing to

include all supported limitations in the RFC, and (4) failing to properly conduct a transferable

skills analysis. Pl. Op. Br. 5, ECF 25. The Court concludes that this case must be remanded for

further administrative proceedings.

I. Subjective Symptom Testimony

The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL

5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom

evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (superseded on other

grounds). 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.” Id. (internal quotations omitted). 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.” Id. (internal quotations 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.”).

Plaintiff was part-owner of a business until approximately February 2017, when he sold

his shares over disagreements with the other owners. Tr. 41. He testified that he wakes up around

6:30 in the morning and cannot sleep longer because of pain in his legs, hips, and back. Tr. 74.

He described the pain as “pretty widespread.” Tr. 74. Plaintiff testified that after getting up, he

takes his medications and sits in his recliner until they take effect. Tr. 74. He testified that he

cannot do anything until his medications dull the pain. Tr. 74. Plaintiff wrote in his function

report that he can manage his personal care, but it takes twice as long as it used to. Tr. 262. He

stated that he prepares meals three times per week. Tr. 262. He testified that he does chores

around the house. Tr. 74. These chores include cleaning, mopping, mowing, and household

repairs. Tr. 263. Plaintiff stated that he goes outside two or three times daily and shops for

groceries and clothes in stores once or twice a week. Tr. 263.

Plaintiff testified that the combination of his pain, fatigue, and shortness of breath was the

most debilitating for him. Tr. 76. He testified that he gets fatigued, and it worsens his breathing.

Tr. 74. He testified that he can do one hour of strenuous activity per day, “a couple hours” of

moderate activity per day, or “about four hours” of light activity per day. Tr. 74. He testified that

he needs to take breaks. Tr. 74. He has pain in his knees and thinks it is getting worse. Tr. 79. He

has arthritis in multiple joints. Tr. 80. He has pain with certain movements, such as holding a

phone or twisting. Tr. 81. He testified that he works in the garden during the summer but cannot

garden and go for a walk in the same day. Tr. 74. He stated, “if I do too much, the next day is

worse.” Tr. 74. He testified that his doctor told him he needed to rest every other day. Tr. 75. He

testified that when he is fatigued, he cannot do anything other than sit. Tr. 75. He stated that on

some days he could climb a ladder and on other days he could not. Tr. 75-76.

Plaintiff also testified to other symptoms. He testified that his medications affect his

thinking. Tr. 75. He stated that sometimes he had trouble finding the right words. Tr. 75. He also

testified that one of his medications made him dizzy. Tr. 75. Plaintiff testified that he was losing

muscular control and that “I drop stuff all the time.” Tr. 75. He stated that he had trouble opening

the bottles for his medications. Tr. 78. He stated that he would drop or spill things when cooking.

Tr. 262. However, he also testified he could shoot a gun and turn a wrench for a short period of

time. Tr. 78.

Plaintiff testified that when he went on recent hunting trips, his brothers had to carry his

gun and his backpack for him. Tr. 75. He stated that he did not hunt two days in a row. Tr. 77.

He limited himself to one hour of hiking every other day. Tr. 77. He cannot hike up a hill longer

than one hour. Tr. 77. If he works on his car, he takes a break between tasks. Tr. 77. Plaintiff

testified that sometimes he will feel better and then the next month he will feel worse. Tr. 80.

Plaintiff also stated, “I probably try harder at things I like than I don’t like.” Tr. 85.

The ALJ found that Plaintiff’s medically determinable impairments could reasonably be

expected to cause the symptoms Plaintiff alleged, but concluded that Plaintiff’s “statements

concerning the intensity, persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence in the record[.]” Tr. 18. In reaching this

conclusion, the ALJ relied on Plaintiff’s daily activities, reason for leaving work, improvement

with treatment, and the objective medical record. Tr. 18.

A. Activities of Daily Living

The ALJ found that Plaintiff’s testimony was inconsistent with some of his activities of

daily living. Tr. 18. Contradiction with a claimant’s activities of daily living is a clear and

convincing reason for rejecting a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035,

1039 (9th Cir. 2008). There are two grounds for using daily activities to support an adverse

credibility determination: (1) when activities meet the threshold for transferable work skills, and

(2) when activities contradict a claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th

Cir. 2007). In order to impact a claimant’s credibility, the activity has to be “inconsistent with

claimant’s claimed limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ

cannot mischaracterize statements and documents in the record or take these out of context in

order to reach his or her conclusion on the claimant’s credibility. Id. at 722-23. In addition, the

claimant’s ability to perform limited basic daily activities is not a clear and convincing reason to

reject a claimant’s testimony. See id. at 722 (“[D]isability claimants should not be penalized for

attempting to lead normal lives in the face of their limitations.”); Webb v. Barnhart, 433 F.3d

683, 688 (9th Cir. 2005) (“The mere fact that a plaintiff has carried on certain daily activities,

such as grocery shopping, driving a car, or limited walking for exercise, does not in any way

detract from [his] credibility as to [his] overall disability. One does not need to be utterly

incapacitated in order to be disabled.”) (internal quotation omitted).

The ALJ found that Plaintiff’s symptom testimony was inconsistent with his activities:

“travel, hunting, fishing, car maintenance, gardening, and walking.” Tr. 18. Plaintiff argues that

the ALJ ignored his testimony that while he could do these activities, he could only do them for

short periods of time with breaks, and he could only do physical activity every other day. Pl. Op.

Br. 7-8. The Court concludes that Plaintiff’s activities contradict his assertion that he can only

exercise every other day, but they do not contradict his testimony that he needs breaks

throughout the day between physical activities.

Plaintiff testified that when he went on hunting trips, he only hunted or hiked every other

day. Tr. 77. The ALJ also noted that Plaintiff reported going for a walk every evening. Tr. 20.

Plaintiff told his primary care provider in February 2020 that he was in the habit of going for a

walk every evening. Tr. 821. On the other hand, Plaintiff told his primary care provider that

when he tried to do both yard work and regular walks in the same day, he was “in severe pain.”

Tr. 813. Ultimately, the ALJ did not err in concluding that Plaintiff’s activities undermined his

assertion that he could only engage in physical activity every other day.

But Plaintiff consistently reported that he took breaks throughout the day. He testified

that he can do one hour of strenuous activity per day, “a couple hours” of moderate activity per

day, or “about four hours” of light activity per day. Tr. 74. He testified that he needs to take

breaks during that time. Tr. 74. He testified at his hearing that he has to take breaks when

working on his car. Tr. 77. He testified that when he went on hunting trips, he limited himself to

one hour of hiking every other day. Tr. 77. His brothers carried his gun and backpack for him.

Tr. 75. His testimony is consistent with his report to his doctor that he could not garden and do

yard work in the same day without experiencing severe pain. Tr. 813.

The ALJ stated, “The claimant is an avid bird hunter and works on cars, so he can clearly

fire a shotgun, absorb a shotgun blast and hold a gun without harming anyone.” Tr. 18. At the

hearing, the ALJ told Plaintiff that he saw an inconsistency between Plaintiff’s testimony about

having trouble gripping things and pain in his shoulders and Plaintiff’s testimony that he was still

hunting. Tr. 83. The ALJ stated that firing a gun required handling the weapon and “the

reverberation from the gun into your shoulder.” Tr. 84. Plaintiff’s testimony is consistent in that

he reported being able to do his activities with breaks, and that some days were more difficult

than others. This is normal for individuals diagnosed with fibromyalgia, as the Commissioner

has recognized. Soc. Sec. Ruling, Ssr 12-2p; Titles II & Xvi: Evaluation of Fibromyalgia, SSR

12-2P, 2012 WL 3104869, at *6 (S.S.A. July 25, 2012) (“For a person with FM, we will consider

a longitudinal record whenever possible because the symptoms of FM can wax and wane so that

a person may have ‘bad days and good days.’”). The ALJ erred in discounting Plaintiff’s pain

testimony based on his ability to hunt. But the ALJ reasonably concluded that if Plaintiff felt he

could safely handle a firearm, his manipulative limitations were less severe than he claimed.

In sum, the ALJ reasonably relied on Plaintiff’s activities in discounting his testimony

that he could only exercise every other day and in discounting Plaintiff’s testimony about his

manipulative limitations. But Plaintiff’s activities do not undercut his testimony that he needs

frequent breaks between his activities each day or that he cannot engage in more rigorous

activities such as hunting and hiking more often than every other day.

B. Reason for Leaving Work

The ALJ stated that “the claimant appears to have left his last job because he sold his

share of the business secondary to a dispute over how much debt to carry rather than related to

his medically determinable impairments.” Tr. 18. An ALJ may consider evidence that the

claimant stopped working for a reason other than disability. Tommasetti v. Astrue, 533 F.3d

1035, 1040 (9th Cir. 2008) (holding that ALJ did not err in concluding that claimant may not

have been motivated to work because he had $97,000 in savings); Bruton v. Massanari, 268 F.3d

824, 828 (9th Cir. 2001), as amended (Nov. 9, 2001) (holding that ALJ reasonably discounted

claimant’s testimony where claimant stated at the hearing and in a doctor’s appointment that he

left his job because he was laid off, not because he was injured).

Plaintiff testified that he left his most recent job around February 2017 because of a

disagreement with the other owners of the business he co-ran. Tr. 41. He explained that “[t]hey

wanted to borrow a couple million dollars and put more machinery on the floor and I wanted to

pay off all our existing million” in loans. Tr. 41. He then sold his shares and left the business. Tr.

41. In his disability report, Form SSA-3368, Plaintiff stated that he stopped working because of

his conditions and because of other reasons. Tr. 228. In the explanation section, he wrote, “Sold

my business Relocated to new state, unable to work due to pain, shortness of breath and

stamina.” Tr. 228. The ALJ did not err in concluding that Plaintiff left his job because of a

business dispute. This finding reasonably undercuts Plaintiff’s testimony about the severity of his

symptoms during the early period of his alleged disability. To the extent that Plaintiff alleges

worsening symptoms over time, the reason for leaving his job ceases to be a clear and

convincing reason to discount his symptom testimony.

C. Effects of Medication

The ALJ relied on treatment notes showing that Plaintiff’s fibromyalgia pain improved

with medication. Tr. 18. Relevant factors for the ALJ to consider when evaluating symptom

testimony include “[t]he type, dosage, effectiveness, and side effects of any medication” the

plaintiff takes to alleviate symptoms. 20 C.F.R. § 404.1529(c)(3)(iv). “[E]vidence of medical

treatment successfully relieving symptoms can undermine a claim of disability.” Wellington v.

Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). See also Perry H. v. Saul, No. 1:19-CV-00050-AA,

2020 WL 2764614, at *5 (D. Or. May 27, 2020).

In February 2020, Plaintiff reported to his primary care provider that with Lyrica, his

tendon pain had decreased by about 50%, going from “horrible” to “mild.” Tr. 821. But he also

reported that Lyrica did not help his hip, shoulder, right elbow, or left knee pain at all. Tr. 821.

He reported that he was stiff in the morning when he woke up. Tr. 821. At an appointment with a

different provider later that month, Plaintiff reported his pain worsened to a 7/10 with physical

activity and improved to a 3/10 with medications and moving. Tr. 834. He reported that a

combination of walking, Tylenol, anti-inflammatory medication, and narcotics reduced his pain.

Tr. 834. The record reflects that Plaintiff’s medications were partially effective. This is

consistent with Plaintiff’s testimony that he waits for his medications to take effect in the

morning and that he can do physical activities with breaks.

The ALJ also noted that while Plaintiff testified that Lyrica affected his thinking, the

medical record showed only minor mental impairment. Tr. 18. At the hearing, Plaintiff said,

“The drugs affect my thinking. I have difficulty finding the right words sometimes.” Tr. 75.

Plaintiff’s primary care provider recorded after an October 2019 appointment that Plaintiff had

“noticed some mild cognitive side effects on the Lyrica, but is willing to tolerate those in

exchange for the pain benefit.” Tr. 682. Occasional searching for words is a mild cognitive side

effect. Plaintiff’s testimony is consistent with the side effects reported to his physician. In sum,

the ALJ erred in relying on the effects (positive and negative) of Plaintiff’s medication in

discounting his symptom testimony.

D. Objective Medical Evidence

The ALJ found that some of Plaintiff’s testimony was unsupported by or inconsistent

with the medical record. Tr. 18. An ALJ may discount a claimant’s testimony based on a lack of

support from objective medical evidence, but this may not be the sole reason. See Burch v.

Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (holding that “an ALJ may not reject a claimant’s

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

severity of pain.”); Taylor v. Berryhill, 720 F. App’x 906, 907 (9th Cir. 2018) (explaining that a

“lack of objective medical evidence cannot be the sole reason to discredit claimant’s testimony,”

and therefore holding that the ALJ failed to provide clear and convincing reasons for discounting

the claimant’s testimony) (citation omitted); Heltzel v. Comm’r of Soc. Sec. Admin., No. 19-

1287, 2020 WL 914523, at *4 (D. Ariz. Feb. 26, 2020) (stating that “[b]ecause the ALJ’s other

reasons for rejecting Plaintiff’s testimony were legally insufficient, a mere lack of objective

support, without more, is insufficient to reject Plaintiff’s testimony.”). However, “[w]hen

objective medical evidence in the record is inconsistent with the claimant’s subjective testimony,

the ALJ may indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489,

498 (9th Cir. 2022).

The ALJ relied on findings that Plaintiff had normal strength and gait. Tr. 18. A medical

exam in March 2018 showed strength of 5/5. Tr. 476. Plaintiff’s gait was described as normal in

February 2020. Tr. 823. At a medical exam in October 2020, Plaintiff’s gait was described as

“efficient nonantalgic.” Tr. 773. Defendant points to similar findings throughout the medical

record. Def. Br. 6, ECF 27 (citing Tr. 439, 473, 483, 494, 602, 605, 675, 679, 683, 760, 768, 814,

818, 823). Defendant also points to imaging results showing “only mild degeneration and

negative laboratory testing,” on which the ALJ also relied. Id. (citing Tr. 798, 826, 828-32, 487,

825). The ALJ also relied on the results of musculoskeletal exams such as Spurling’s testing. Tr.

19.

The ALJ’s reliance on this evidence is inconsistent with his recognition of Plaintiff’s

fibromyalgia as a severe impairment. Tr. 15. The Ninth Circuit has emphasized that fibromyalgia

is an unusual disease. Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017). “What is unusual

about the disease is that those suffering from it have muscle strength, sensory functions, and

reflexes [that] are normal.” Id. (internal quotations omitted). Joints will appear normal, and

exams do not show objective joint swelling. Id. Plaintiff’s primary care provider wrote in

November 2018, “I think it’s becoming clearer that the majority of the patient’s pain is fibro.”

Tr. 823. The ALJ recognized that according to Plaintiff’s physician, most of Plaintiff’s

symptoms were due to fibromyalgia pain, not another condition such as inflammatory arthritis.

Tr. 16. Indeed, the ALJ found inflammatory arthritis non-medically determinable because

fibromyalgia was the correct diagnosis. Tr. 16. It follows that the ALJ erred in relying on

objective findings involving strength, gait, and inflammation, which would be relevant if

Plaintiff’s pain were due to inflammatory arthritis, but are not relevant to Plaintiff’s

fibromyalgia. The ALJ likewise erred in relying on musculoskeletal exams, because such exams

do not yield reliable results for patients suffering from fibromyalgia. See Revels, 874 F.3d at 656.

The objective medical record was not a clear and convincing reason to reject Plaintiff’s

testimony about his pain and stiffness.

The ALJ noted that Plaintiff’s shortness of breath had “no autoimmune or inflammatory

etiology.” Tr. 20. It is unclear whether the ALJ discounted Plaintiff’s testimony about shortness

of breath, given how briefly he addressed this symptom. To the extent he did, this was erroneous

because there was no other clear and convincing reason to discount the testimony. Thus, a lack of

clear etiology in the medical record cannot serve as a clear and convincing reason to discount

this testimony.

In sum, substantial evidence supports the ALJ’s conclusion that Plaintiff is not limited to

physical activity every other day. But substantial evidence does not support the ALJ’s rejection

of Plaintiff’s testimony that he needs frequent breaks throughout the day between chores and

physical activities. The ALJ did not address Plaintiff’s testimony about his need for such breaks

in posing the hypothetical to the vocational expert (“VE”). It is unclear whether Plaintiff can

perform light work for 40 hours per week.

II. Medical Opinion Evidence

Plaintiff argues that the ALJ failed to address the medical opinion of his treating

provider, Dr. Elisabeth Jappay. Pl. Op. Br. 8. For claims filed on or after March 27, 2017, ALJs

are no longer required to give deference to any medical opinion, including treating source

opinions. Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg.

5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. Instead, the agency considers

several factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are: supportability, consistency,

relationship to the claimant, specialization, and “other factors.” 20 C.F.R. §§ 404.1520c(c)(1)-

(5), 416.920c(c)(1)-(5). The “most important” factors in the evaluation process are supportability

and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

Under this framework, the ALJ must “articulate . . . how persuasive [they] find all of the

medical opinions” from each doctor or other source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b)(2).

In doing so, the ALJ is required to explain how supportability and consistency were considered

and may explain how the other factors were considered. 20 C.F.R §§ 404.1520c(b)(2),

416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the

same issue are both equally well-supported . . . and consistent with the record . . . but are not

exactly the same,” the ALJ is required to explain how the other factors were considered. 20

C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). “Even under the new regulations, an ALJ cannot

reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing

an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th

Cir. 2022).

Dr. Jappay did not perform a formal functional assessment of Plaintiff. Rather, in her

treatment notes, she made recommendations about Plaintiff’s activity level. Dr. Jappay stated

that “Fibro[myalgia] pain is greatly improved with exercise, which needs to be paced, such as

every other day.” Tr. 603. In another treatment note, she stated, “I recommend an exercise

program every other day, such as swimming in a heated pool.” Tr. 684. In a third treatment note,

Dr. Jappay stated, “I recommend physical activity every other day, and not more activity than

what will raise pain levels by more than 2/10.” Tr. 814.

Defendant argues that the ALJ did not need to address Dr. Jappay’s exercise

recommendations because they do not meet the regulatory definition of a medical opinion. Def.

Br. 9-10. Even if Dr. Jappay’s recommendations qualify as a medical opinion under the

regulations, the ALJ did not err because Dr. Jappay did not state that Plaintiff should not exercise

more frequently than every other day—she recommended exercising every other day. The

limitation Dr. Jappay recommended was not to engage in activity that would raise Plaintiff’s pain

levels by more than 2/10. Tr. 814. The ALJ did not err in his handling of Dr. Jappay’s treatment

notes.

III. RFC Assessment

Plaintiff argues that the ALJ failed to include all functional limitations in the RFC. Pl.

Op. Br. 10. The RFC is the most a person can do, despite his or her physical or mental

impairments. 20 C.F.R. § 404.1545(a). In formulating an RFC, the ALJ must consider all

medically determinable impairments, including those that are not “severe,” and evaluate “all of

the relevant medical and other evidence,” including the claimant’s testimony. Id.; SSR 96-8p,

available at 1996 WL 374184. In determining a claimant’s RFC, the ALJ is responsible for

resolving conflicts in the medical testimony and translating the claimant’s impairments into

concrete functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th

Cir. 2008). Only limitations supported by substantial evidence must be incorporated into the

RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v.

Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). An “RFC that fails to take into account a

claimant’s limitations is defective.” Valentine, 574 F.3d at 690.

Plaintiff argues that the ALJ failed to include a limitation of engaging in physical activity

no more than every other day. Pl. Op. Br. 10. He argues that with this limitation, the finding that

he could perform light work is erroneous. Id. Plaintiff relies on his symptom testimony and Dr.

Jappay’s exercise recommendation. Id. As discussed above, Dr. Jappay’s treatment notes do not

show that Plaintiff can only engage in physical activity every other day, and the ALJ reasonably

discounted Plaintiff’s testimony that he could only engage in physical activity every other day.

Thus, the ALJ did not err in omitting such a limitation from the RFC. But it is not clear from the

record whether a lesser limitation should have been included. The ALJ erred in rejecting

Plaintiff’s testimony that he needed to take breaks between activities throughout the day. In light

of this, it is unclear whether Plaintiff could perform light work for 40 hours per week. This issue

requires a remand to resolve.

IV. Transferable Skills Analysis

Plaintiff argues that the ALJ erred in conducting the transferable skills analysis. Pl. Op.

Br. 10. The ALJ found that Plaintiff had acquired work skills from his past relevant work. Tr. 23.

At step five, the ALJ considers the “vocational factors” of the claimant’s age, education, and past

work experience, along with the claimant’s RFC, to determine whether the claimant is capable of

performing other jobs existing in significant numbers in the national economy. Barnhart v.

Thomas, 540 U.S. 20, 25 (2003); 20 C.F.R. §§ 404.1520(g), 416.920(a)(4)(v), 416.960(c).

“There are two ways for the Commissioner to meet the burden of showing that there is other

work in ‘significant numbers’ in the national economy that claimant can perform: (a) by the

testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20

C.F.R. pt. 404, subpt. P, app. 2.” Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999).

For an individual with Plaintiff’s vocational factors—age, education, work experience,

and inability to perform past relevant work—and a light RFC, whether they are disabled depends

on whether Plaintiff’s skills are “readily transferable to a significant range of semi-skilled or

skilled work.” 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 202.00(c), 202.07; see also Lounsburry v.

Barnhart, 468 F.3d 1111, 1116-17 (9th Cir. 2006), as amended (Nov. 7, 2006) (finding under

these rules that the plaintiff would be disabled if their skills “are not readily transferable to a

significant range of semi-skilled or skilled work”). The regulations define transferable skills as:

[S]kills that can be used in other jobs, when the skilled or semi-skilled work

activities you did in past work can be used to meet the requirements of skilled or

semi-skilled work activities of other jobs or kinds of work. This depends largely on

the similarity of occupationally significant work activities among different jobs.

20 C.F.R. § 404.1568(d)(1). Transferability is more likely among jobs that require the same or a

lesser degree of skill, use the same or similar tools and machines, and involve the same or similar

raw materials, products, processes, or services. Id. at (d)(2). “A complete similarity of all three

factors is not necessary for transferability.” Id. at (d)(3). Skills are not considered transferable

when they “are so specialized or have been acquired in such an isolated vocational setting (like

many jobs in mining, agriculture, or fishing) that they are not readily usable in other industries,

jobs, and work settings.” Id. The ALJ must make specific findings on transferable skills even

when relying on the testimony of a VE. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,

1225 (9th Cir. 2009).

Plaintiff has a work history as a machinist. Between 2006 and 2007, Plaintiff worked as a

project superintendent at Overlake Hospital. Tr. 37. He ran the sheet metal division on the job

site. Tr. 37. His duties included hiring and firing, making sure materials were delivered, and

laying the material for installation, as well as participating in the installation. Tr. 37. He stated

the job was 50% or more physical work. Tr. 38. He managed about 16-20 people. Tr. 45. In

2008, Plaintiff worked for Harrison & Hart as an installer. Tr. 38. Plaintiff worked at TI

Northwest Corp. as a sheet metal installer and also a superintendent or foreman. Tr. 38-39. He

also sometimes worked as a project management estimator. Tr. 39. Plaintiff left TI Northwest

and joined Killer Innovations in or about 2013, and remained until 2017. Tr. 39. He became a

one-third owner. Tr. 39. He worked six days per week at the machine shop in the beginning. Tr.

40. Plaintiff testified that between 2013 and 2015, he “was doing nothing but machine shooting”

for 10 hours per day. Tr. 42. In 2015, the business hired more workers and Plaintiff worked in

the office with finance and purchasing part-time and in the shop part-time. Tr. 42. His office

duties included delivering orders to and accepting orders from clients, inputting orders on the

computer, and ensuring the shop had all the necessary materials. Tr. 44. He also wrote purchase

orders and approved checks and payments. Tr. 44. Plaintiff sold his shares in 2017 over a

disagreement with the other partners about incurring additional debt. Tr. 41.

The VE concluded that some of Plaintiff’s positions were composite jobs. Tr. 49.

Plaintiff’s job at Killer Innovations was best captured by the positions of machinist and retail

manager. Tr. 49-50. His other composite job was a composite of sheet metal worker, heating and

air conditioning installer and servicer, and project manager. Tr. 49-52. See also Tr. 58-59

(summarizing findings). The VE found the position of heating and air conditioning installer and

servicer an imperfect fit, but could not find anything closer. Tr. 53-54. The ALJ relied on the

VE’s testimony in characterizing Plaintiff’s past relevant work. Tr. 22-23. Based on the VE’s

testimony, the ALJ found that Plaintiff’s skills transferred to the following four jobs: Distributing

Clerk, DOT 222.587-018; Returns Clerk, DOT 209.587-042; Sales Representative, Hardware,

DOT 274.357-034; and Sales Person, General Hardware, DOT 279.357-050. Tr. 23.

Plaintiff argues that the ALJ did not adequately specify what skills Plaintiff acquired

from his past work that are readily transferable to the identified jobs. Pl. Op. Br. 11. With respect

to the Distributing Clerk and Returns Clerk jobs, the ALJ stated that Plaintiff “has experience

taking merchandise or products and putting orders together.” Tr. 23. The ALJ stated that Plaintiff

“would see work orders and prepare tools and materials for a job, which is similar to Distributing

Clerk work.” Tr. 23. The ALJ stated that the same skills and experience would permit Plaintiff to

work as a Returns Clerk. Tr. 23. The ALJ did specify which skills Plaintiff had acquired that

would allow him to work as a Distributing Clerk or Returns Clerk. Plaintiff’s argument that the

specified abilities do not qualify as skills lacks merit. See Renner v. Heckler, 786 F.2d 1421,

1423 (9th Cir. 1986) (skills at issue included completing receipts, inventorying and ordering, and

inspecting merchandise). The ALJ also found that Plaintiff’s past relevant work gave him skills

transferable to work as a Sales Representative, Hardware, and Sales Person, General Hardware.

Tr. 23. The ALJ stated that Plaintiff “has acquired sales work with customers and clients,

explained products, and applied his own knowledge of various types of hardware.” Tr. 23. He

also noted that the Sales Person, General Hardware position involves estimating, and Plaintiff

did estimating work at TI Northwest. Tr. 23. In sum, the ALJ specified Plaintiff’s transferable

skills. The Court now turns to whether those skills are adequately transferable to the identified

occupations.

Plaintiff argues that the jobs the ALJ identified are substantially different from his past

relevant work and thus would require more vocational adjustment than permitted under the

regulations. Pl. Op. Br. 14. The ALJ instructed the VE in the various standards of transferability.

Tr. 62-64. The ALJ correctly stated that industry-specific skills are less likely to transfer with

only minimal vocational adjustment. Tr. 63. But the ALJ did not directly state that for someone

with Plaintiff’s vocational characteristics, skills must be able to readily transfer to the identified

jobs. Tr. 63-64. In his decision, the ALJ stated that he asked the VE for occupations that “require

skills acquired in the claimant’s past relevant work but no additional skills.” Tr. 25. He then

found the VE’s testimony consistent with the DOT and concluded that Plaintiff could perform

the four occupations the VE identified. Tr. 25. It is unclear what standard of vocational

adjustment the ALJ applied. With respect to the transferability factors, the ALJ noted that the

jobs the VE identified are less complex than Plaintiff’s prior work. Tr. 23. This finding is not

contested. It is the similarity of equipment and processes that is at issue here.

Plaintiff makes two arguments against the suitability of the hardware sales positions.

First, he points out that the two hardware sales positions require selling different hardware

supplies from the ones he was familiar with from his prior work. Tr. 14. Plaintiff’s argument has

merit. He worked in the sheet metal field. Tr. 37-39. The machine shop he co-owned built and

sold gun parts. Tr. 42. At one of Plaintiff’s other jobs, he “was in charge of just the sheet metal”

and did not work with plumbing or heating systems. Tr. 45. Plaintiff testified, “I was doing large

commercial jobs, almost my entire career.” Tr. 51. He did not do home-level projects such as

installing furnaces in residences. Tr. 51. He testified that he had not done refrigeration and did

not know about running copper pipe or refrigerants or wiring thermostats. Tr. 51. Plaintiff

developed specialized skills with particular tools and processes, and the ALJ did not follow up to

confirm how easily Plaintiff’s skills acquired from his work would transfer to the general

hardware setting. In light of Plaintiff’s testimony, this was error.3 Second, Plaintiff argues that

3 For example, while the ALJ correctly noted that Plaintiff has experience estimating and that the

Salesperson, General Hardware position involves estimating, Plaintiff’s experience appears to be

dissimilar. The general hardware sales position description mentions “estimating amount of paint

required to cover given area.” U.S. Department of Labor, Dictionary of Occupational Titles #

279.357-050 Salesperson, General Hardware, 1991 WL 672547 (4th ed. 1991). Plaintiff worked

“the ALJ admitted that Mr. Hertel did not have experience as a sales person, where persuading

prospective clients to buy particular products was involved, but merely filled and kept track of

purchase orders.” Pl. Op. Br. 13. Defendant counters that the job descriptions for the two sales

positions do not require persuading. Def. Br. 14-15. Defendant is correct. Id. at 15 n.2. The ALJ

did not err in concluding that Plaintiff had relevant experience in sales. General wholesale sales

skills would transfer between occupations. However, given the specialized nature of Plaintiff’s

prior work, it is unclear whether Plaintiff would be able to readily transfer to a job selling general

hardware, even if the job is less complex than his past relevant work. A remand is necessary to

address this issue.

For the Distributing Clerk and Returns Clerk jobs, Plaintiff provides a description of the

positions and then states that they are not similar to his past work. Pl. Op. Br. 14. Plaintiff does

not explain why his work inspecting and preparing orders for customers is significantly

dissimilar to preparing materials for shipment or processing returns of orders, which are

variations of the same process. The Dictionary of Occupational Titles states that a Returns Clerk

examines merchandise and records information about it and prepares invoices and letters related

to the return. Dictionary of Occupational Titles # 209.587-042, Return-to-Factory Clerk, 1991

WL 671803. Plaintiff performed very similar tasks in his past work, and the ALJ did not err in

concluding that Plaintiff had transferable skills. Nor did the ALJ err in concluding that Plaintiff’s

experience handling customer orders gave him skills transferable to the position of Distributing

Clerk. This position entails assembling and preparing printed materials for mailing, recording

what has been sent, and requisitioning materials. Id. # 222.587-018, Distributing Clerk, 1991 WL

in the sheet metal industry, and it is unclear whether his estimating experience in that context

would readily transfer into estimating paint amounts.

672117. Plaintiff testified that at Killer Innovations, “I would actually deliver in post to the

clients and I would accept the orders from the clients[.]” Tr. 44. Plaintiff has experience

assembling items to specification for customers, keeping records of sales, and ordering materials.

The ALJ did not err in concluding that Plaintiff had skills that transferred to the occupations of

Distributing Clerk and Returns Clerk. However, “two occupations do not constitute a significant

range of work.” Maxwell v. Saul, 971 F.3d 1128, 1131 (9th Cir. 2020) (internal quotations

omitted). It is thus unclear whether Plaintiff’s skills are readily transferable to a significant range

of work.

Plaintiff also argues that a higher age category should apply in his case. Pl. Op. Br. 15-

16. The Commissioner considers whether to use the older age category in borderline situations,

which are those where the claimant is “within a few days to a few months of reaching an older

age category.” 20 C.F.R. § 404.1563(b). Plaintiff was born on April 18, 1962. Tr. 200. The ALJ

issued his decision on April 15, 2021. Tr. 26. Thus, Plaintiff turned 59 three days after the ALJ

issued his decision, meaning he was a year away from falling into a higher age category. This is

not a borderline situation. The ALJ applied the proper age category.

In conclusion, the ALJ erred in rejecting Plaintiff’s testimony that he needed regular

breaks between active tasks, and it is unclear whether Plaintiff can perform light work for 40

hours per week. The ALJ also partially erred in his transferable skills analysis because it is

unclear whether the skills Plaintiff acquired in his specialized industry are readily transferable to

the general hardware sales context. The Court therefore remands this case for the ALJ to address

these issues.

CONCLUSION

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

for administrative proceedings.

IT IS SO ORDERED.

DATED:______J_u_ly_ _5_,_ 2_0_2_3________.

__________________________________

MARCO A. HERNÁNDEZ

United States District Judge