1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CHRISTOPHER L. MANES,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of

Social Security,

Defendant.

CASE NO. C05-5653RJB

ORDER ADOPTING REPORT

AND RECOMMENDATION

This matter comes before the Court upon the Report and Recommendation of Judge Karen L.

Strombom, United States Magistrate Judge. Dkt. 16. The Court has considered the Report and

Recommendation (Dkt. 16), Plaintiff’s Objections to the Report and Recommendation of Magistrate Judge

(Dkt. 17), Defendant’s Response to Plaintiff’s Objections (Dkt. 18), and the file herein. 

I. FACTS

The procedural history and basic facts are related at length in the Report and Recommendation and

shall not be repeated here. After the Report and Recommendation was issued, Plaintiff filed objections

arguing that: a) the Administrative Law Judge’s (“ALJ”) residual functional capacity (“RFC”) assessment

was incorrect, b) the ALJ’s assessment of Plaintiff’s credibility was improper, and c) the ALJ’s

determination that Plaintiff was capable of other employment was in error. Dkt. 17. The Commissioner

contends that the ALJ’s RFC assessment and credibility assessments were proper and that substantial

evidence in the record indicates that Plaintiff is capable of performing other work existing in significant

numbers in the national economy. Dkt. 18. 

Case 3:05-cv-05653-RJB Document 19 Filed 06/12/06 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 2

II. DISCUSSION

This Court must uphold the Commissioner's determination that the Plaintiff is not disabled if the

Commissioner applied the proper legal standard and there is substantial evidence in the record as a whole

to support the decision. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). Substantial evidence

is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 

Richardson v. Perales, 402 U.S. 389, 401 (1971); Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir. 1985). 

It is more than a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119

n.10 (9th Cir. 1975); Carr v. Sullivan, 772 F. Supp. 522, 524-25 (E.D. Wash. 1991). If the evidence

admits of more than one rational interpretation, the Court must uphold the Commissioner's decision. Allen

v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 

A. RFC ASSESSMENT

An individual’s RFC is what that individual can still do despite his or her limitations. Social

Security Ruling (“SSR”) 96-8p. The ALJ is responsible for determining a plaintiff’s RFC. Id. The RFC

assessment must be based on all of the relevant evidence in the record, such as “medical history, medical

signs and laboratory findings, the effects of treatment, reports of daily activities, lay evidence, recorded

observations, medical source statements, effects of symptoms, evidence from attempts to work, need for a

structured living environment, and work evaluations if available.” Id.

Plaintiff argues, in his objections, that Judge Strombom erred in finding the ALJ’s RFC assessment

was proper. Dkt. 17. Plaintiff points to the opinions of Dr. Jens R. Chapman and Dr. Richard L. McLeod

II, each of whom opined that Plaintiff was more restricted in his ability to work than was found by the ALJ. 

Id. at 2. Plaintiff argues that each opinion was support by a physical examination and was supported by the

assessments made by two nurse practitioners. Id. 

Judge Strombom properly concluded that the ALJ’s RFC assessment was correct. The ALJ

rejected the opinions of Dr. Chapman and Dr. McLeod based on the scant objective medical evidence each

doctor provided to support their findings. Dkt. 16, at 6. Moreover, Judge Strombom notes that the

weight of the remaining objective medical evidence supports the ALJ’s assessment. Id., at 7. The opinions

of the two nurse practitioners were also properly rejected. Judge Strombom noted that ALJ provided

“germane” reasons for rejecting their opinions, including that the weight of the medical evidence did not

Case 3:05-cv-05653-RJB Document 19 Filed 06/12/06 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 3

support their findings, the forms they filled out were devoid of supporting objective medical evidence, and

the forms they filled out were check-off reports. 

B. CREDIBILITY ASSESSMENT

The ALJ is responsible for determining credibility, resolving conflicts in the medical testimony, and

resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If the ALJ’s credibility

finding is supported by substantial evidence in the record, the Court does not engage in second guessing. 

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 

Plaintiff argues that the ALJ’s credibility assessment was in error. Dkt. 17, at 4. Judge Strombom

found that both ALJs provided clear and convincing reasons upon which to discount Plaintiff’s credibility

including the objective medical evidence, his daily activities, infrequent medical treatment, his hearing

demeanor and appearance, and inconsistent statements. Dkt. 16, at 9-12. Plaintiff attacks two of the

several reasons the ALJs gave: 1) that ALJ Schellentrager stated that “I do not accept that it takes the

claimant several minutes to go from sitting to standing and walking” and 2) that there was no medical

documentation of loss of sensation in his legs or feet and no atrophy even though Plaintiff contends that

there was such documentation. Dkt. 17, at 4. The first basis which Plaintiff attacks is not a reason to

discount Plaintiff’s credibility but a statement that the ALJ did not find him credible. As to the second

basis which Plaintiff attacks, even if there was medical evidence of loss of sensation in Plaintiff’s legs

and/or feet, both ALJs provided several other reasons to find him not credible. The fact that some of the

reasons for discounting Plaintiff’s credibility were improper does not render the ALJ’s credibility

determination invalid, as long as that determination is supported by substantial evidence in the record, as it

is here. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 

C. DETERMINATION REGARDING PLAINTIFF’S ABILITY TO PERFORM

OTHER JOBS

In the last step of determining whether a claimant is entitled to benefits, the ALJ assesses the

claimant’s residual functional capacity, age, education, and work experience in order to determine if the

claimant can perform any other work that exists in significant numbers in the national economy. 20 C.F.R.

§ 404.1520 (a)(4)(v), 20 C.F.R. § 404.1520 (g). The Commissioner has the burden at this step and must

use a vocational expert to meet this burden if there is no other reliable evidence in the record of plaintiff’s

ability to perform specific jobs. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). 

Case 3:05-cv-05653-RJB Document 19 Filed 06/12/06 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 4

In his objections, Plaintiff argues that at no time did the vocational expert testify that a parking lot

attendant job was at the sedentary RFC level. Dkt. 17, at 5. However, the record indicates that the

vocational expert did indicate that there were 250 jobs as parking lot attendants at the sedentary level in

the State of Washington. Tr. 695-97. The undersigned agrees with Judge Strombom’s finding that in

light of the note in Barker v. Secretary of Health and Human Services , 882 F.2d 1474, 1478-79 (9th Cir.

1989), (regarding whether 250 jobs is “significant”) this Court can not find that the ALJ erred in finding

Plaintiff was capable of returning to other jobs existing in significant numbers in the national economy. 

III. ORDER

Accordingly, it is hereby ORDERED that:

(1) The Court ADOPTS the Report and Recommendation;

(2) The administrative decision is AFFIRMED; and

(3) The Clerk is directed to send copies of this Order to Plaintiff'’ counsel, Defendant’s counsel

and Magistrate Judge Karen L. Strombom.

DATED this 12th day of June, 2006.

ARobert J. Bryan

United States District Judge 

Case 3:05-cv-05653-RJB Document 19 Filed 06/12/06 Page 4 of 4