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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ANTHONY W. RUIZ,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner 

of Social Security Administration,

Defendant. ____________________________________

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Case No. C05-1535-MJP-JPD

REPORT AND RECOMMENDATION

INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff, Anthony Ruiz, proceeds through counsel in his appeal of a final decision of

the Commissioner of the Social Security Administration (“Commissioner”). The

Commissioner denied plaintiff’s applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act

after a hearing before an administrative law judge (“ALJ”). For the reasons set forth below,

the Court recommends reversing this case and remanding for further administrative

proceedings.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff is a forty-six-year-old man who lives in Marysville, Washington, with his

daughter. AR 65, 425. He has a high-school education with eight months of electronic

vocational training. AR 97, 439. Plaintiff has past work experience as an aircraft mechanic,

construction worker, rulerman, and laborer. AR 92.

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1

The applications were signed on June 10, 2002, but are stamped as “received” by the

Social Security Administration on June 17, 2002. AR 65-67, 424-26.

2

Gastroparesis is “paralysis of the stomach.” Mosbey’s Medical, Nursing, & Allied

Health Dictionary 726 (6th Ed. 2002). Its most common symptoms include nausea, vomiting,

and bloating. The Mayo Clinic’s website provides a straightforward explanation of the

causes, symptoms, and treatment of gastroparesis. See http://www.mayoclinic.com/

health/gastroparesis/DS00612.

REPORT AND RECOMMENDATION

PAGE -2

On June 10, 2002, plaintiff filed applications for SSI and DIB.1

 AR 65-67, 424-26. 

He alleged disability beginning on February 28, 1998, as a result of diabetes, stomach

problems, an unspecified visual impairment, and gastroparesis.2 AR 91. The chief symptoms

of which plaintiff complains are severe nausea and vomiting, which he alleges occur three to

four times per week. AR 450-52. Plaintiff was prescribed Marinol to control these

symptoms, but also admits to smoking marijuana regularly, believing the marijuana to be more

effective in treating the problems. AR 449-50. Plaintiff’s applications were denied both

initially and upon reconsideration. AR 33-41, 428-35. Plaintiff requested a hearing before an

administrative law judge, and on October 14, 2004, a hearing was held. AR 42, 436-72. 

On February 3, 2005, the ALJ issued a decision that found plaintiff not disabled. AR

18-30. In particular, at step four the ALJ found that plaintiff’s residual functional capacity did

not preclude him from performing his past relevant work as a rulerman. AR 29. The ALJ did

not proceed to step five of the sequential evaluation process.

The Appeals Council denied plaintiff’s request to review the ALJ’s decision. AR 5-7. 

Therefore, the ALJ’s February 3, 2005, decision serves as the Commissioner’s final decision

for purposes of judicial review. On September 29, 2005, plaintiff timely filed this action

challenging the ALJ’s decision.

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REPORT AND RECOMMENDATION

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II. JURISDICTION

The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. §§

405(g) and 1383(c)(3) (2005).

III. STANDARD OF REVIEW

The court may set aside the Commissioner’s denial of social security benefits when the

ALJ’s findings are based on legal error or not supported by substantial evidence in the record

as a whole. See 42 U.S.C. § 405(g); Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993);

Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Substantial evidence is defined as

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.” Magallanes v. Bowen,

881 F.2d 747, 750 (9th Cir. 1989) (internal citations and quotations omitted). The ALJ is

responsible for determining credibility, resolving conflicts in medical testimony, and resolving

ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Where the evidence is

susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that

must be upheld. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citations

omitted).

IV. EVALUATING DISABILITY

As the claimant, Mr. Ruiz bears the burden of proving that he is disabled within the

meaning of the Social Security Act. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) 

(internal citations omitted). Disability is defined as the “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment, which

can be expected to result in death, or which has lasted or can be expected to last for a

continuous period of not less than twelve months[.]” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A). A claimant is disabled only if his impairments are of such severity that he is

unable to do his previous work, and cannot, considering his age, education, and work

experience, engage in any other substantial gainful activity existing in the national economy. 

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REPORT AND RECOMMENDATION

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See 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094,

1098-99 (9th Cir. 1999). 

The Social Security regulations set out a five-step sequential evaluation process for

determining whether a claimant is disabled within the meaning of the Social Security Act. See

20 C.F.R. §§ 404.1520, 416.920 (2005). At step one, the claimant must establish that he is

not engaging in any substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the

claimant establishes that he has not engaged in any substantial gainful activity, the

Commissioner proceeds to step two. At step two, the claimant must establish that he has one

or more medically severe impairments, or combination of impairments, that limit his physical

or mental ability to do basic work activities. If the claimant does not have such impairments,

he is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant has a severe

impairment, the Commissioner moves to step three to determine whether the impairment

meets or equals any of the listed impairments described in the regulations. 20 C.F.R. §§

404.1520(d), and 416.920(d). A claimant who meets or equals one of the listings for the

required twelve-month duration requirement is disabled. Id.

When the claimant’s impairment neither meets nor equals one of the impairments listed

in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s

residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). The

Commissioner then uses the RFC to determine whether the claimant can still perform the

physical and mental demands of his past relevant work. 20 C.F.R. §§ 404.1520(f),

416.920(f). If the claimant is not able to perform his past relevant work, the burden shifts to

the Commissioner at step five to show that the claimant can perform some other work that

exists in significant numbers in the national economy, taking into consideration the claimant’s

RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett,

180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other

work, then the claimant is found disabled and benefits may be awarded. 

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3

In addition to the step four error, plaintiff’s brief argues that the ALJ erred by: (1)

erroneously rejecting the medical opinion of treating gastroenterologist Dr. Michael

McDonnell; (2) erroneously applying drug and alcohol abuse analysis without first finding

REPORT AND RECOMMENDATION

PAGE -5

V. DECISION BELOW

On February 3, 2005, the ALJ issued a decision finding:

1. The claimant meets the nondisability requirements for a period of

disability and Disability Insurance Benefits set forth in Section 216(i) of

the Social Security Act and was insured for benefits through March 31,

2004.

2. The claimant has not engaged in any substantial gainful activity since

the alleged onset of disability.

3. The claimant’s diabetes and gastroparesis are considered “severe”

impairments under the regulations.

4. None of the claimant’s impairments meets or equals the criteria of any

impairment included in the Listings of Impairments.

5. The claimant’s allegations regarding his limitations are not totally

credible for the reasons set forth in the body of the decision.

6. The claimant has the following residual functional capacity: to lift 20

pounds occasionally, 10 pounds frequently; to sit, stand, and/or walk

about six hours out of an eight hour day; with an unlimited capacity to

push and/or pull the above weights. The claimant has no postural,

manipulative, visual, communicative, or environmental limitations.

7. The claimant’s past relevant work as a rulerman in paper manufacturing

did not require the performance of work-related activities precluded by

his residual functional capacity.

8. The claimant’s diabetes and gastroparesis do not prevent the claimant

from performing his past relevant work.

9. The claimant was not under a “disability,” as defined in the Social

Security Act, at any time through the date of the decision.

AR 29.

VI. ISSUES ON APPEAL

The parties agree that the ALJ erred at step four by failing to identify applicable past

relevant work, and to determine whether plaintiff could actually perform that work. The

parties, however, disagree over the appropriate remedy.3 Plaintiff requests remand for an

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plaintiff disabled; (3) misapplying the failure to follow treatment analysis by first failing to find

plaintiff disabled; and (4) depriving plaintiff of his due-process rights by applying the

substantial evidence standard of review at the administrative determination phase. Dkt. No.

15. Plaintiff concedes in his reply that his fourth assignment of error is moot in light of the

ALJ’s consent to remand. Dkt. No. 18.

REPORT AND RECOMMENDATION

PAGE -6

immediate award of benefits, while defendant requests remand for further administrative

proceedings.

VII. DISCUSSION

The Court may direct an award of benefits where “the record has been fully developed

and further administrative proceedings would serve no useful purpose.” McCartey v.

Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). The Court may find that this occurs when: 

(1) the ALJ has failed to provide legally sufficient reasons for rejecting the

claimant’s evidence; (2) there are no outstanding issues that must be resolved

before a determination of disability can be made; and (3) it is clear from the

record that the ALJ would be required to find the claimant disabled if he

considered the claimant’s evidence.

Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that

erroneously rejected evidence may be credited when all three elements are met). 

A. The ALJ Committed Legal Error.

The first step for determining whether this case should be remanded for an immediate

award of benefits or for further administrative proceedings requires the Court to assess

whether the ALJ provided legally sufficient reasons for rejecting plaintiff’s evidence. 

McCartey, 298 F.3d at 1076. The Commissioner has conceded that the ALJ erroneously

found that plaintiff could perform his past relevant work as a rulerman. Dkt. No. 17 at 6. 

Hence, the parties agree that the ALJ committed legal error, thus satisfying the first step of

the remand analysis. The parties, however, disagree as to whether the ALJ committed the

additional legal errors asserted in plaintiff’s opening brief. Although the ALJ’s step four error

is sufficient to satisfy the first step of the remand analysis, the Court will address plaintiff’s

remaining assertions of error to clarify additional issues to be considered on remand.

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REPORT AND RECOMMENDATION

PAGE -7

1. The ALJ Inadequately Evaluated the Medical Opinion of Dr.

McDonnell.

Dr. Michael McDonnell is a gastroenterologist who has treated plaintiff from October

2001 until the present. AR 420. In a post-hearing declaration provided by plaintiff’s counsel,

Dr. McDonnell reiterated his diagnoses of diabetes, diabetic gastroparesis, and pancreatitis. 

Id. He also stated that he believed plaintiff’s testimony regarding his symptoms. AR 423. 

According to Dr. McDonnell, “the severity of [plaintiff’s’] reported symptoms” would cause

him to “miss a lot of work, probably weekly.” AR 423. Dr. McDonnell stated that he could

not “see how [plaintiff] could do his job,” and opined that “he would not be a reliable

employee.” Id. 

Although the ALJ adopted Dr. McDonnell’s diagnoses of diabetes and gastroparesis,

the ALJ “disagree[d] with [his] opinion regarding [plaintiff’s] ability to function in the

workplace stating that his conclusions were based solely on the [plaintiff’s] report of his

functioning,” and which the ALJ found to be “less than fully credible.” AR 28. The ALJ also

stated that the “opinion was not given any special weight.” Id. Plaintiff argues that the ALJ’s

evaluation of Dr. McDonnell’s opinion was erroneous. Dkt. No. 15.

Generally, the opinions of treating physicians, particularly when those opinions relate

to medical areas within their area of specialization, are to be given great consideration. 20

C.F.R. §§ 404.1527(d)(5); 416.927(d)(5); Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th

Cir. 2004). A treating physician’s opinion, however, is not necessarily conclusive as to either

a physical condition or the ultimate issue of disability. Tonapetyan v. Halter, 242 F.3d 1144,

1148 (9th Cir. 2001). When a treating physician’s opinion is contradicted by other opinions,

as it is here, the ALJ must provide “specific and legitimate reasons supported by substantial

evidence in the record” in order to reject it. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.

1998) (internal citations and quotations omitted). “This can be done by setting out a detailed

and thorough summary of the facts and conflicting clinical evidence, stating his interpretation

thereof, and making findings.” Id. (citing Magallanes, 881 F.2d at 751). The ALJ must do

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The ALJ may consider ordinary techniques of credibility evaluation including a

reputation for truthfulness, inconsistencies in testimony, or between testimony and conduct,

REPORT AND RECOMMENDATION

PAGE -8

more than merely state his conclusions. “He must set forth his own interpretations and explain

why they, rather than the doctors’, are correct.” Id. (citing Embrey v. Bowen, 849 F.2d 418,

421-22 (9th Cir. 1988)).

In this case, the ALJ did not evaluate Dr. McDonnell’s opinion relating to the severity

of plaintiff’s alleged symptoms. The primary reason the ALJ gave for rejecting Dr.

McDonnell’s work-related limitations was that they were based on plaintiff’s self-reports,

rather than objective medical evidence. AR 28. This observation is accurate. Dr. McDonnell

testified that his diagnoses were supported by a magnetic radiologic cholangiogram performed

on November 11, 2003, but acknowledged that a subsequent gastric emptying study

performed in June 2000, had “very little value because it was not completed.” AR 421. Thus,

there was objective evidence to support the existence of plaintiff’s condition but, as Dr.

McDonnell acknowledged, there was no objective medical evidence as to the severity of

plaintiff’s alleged symptoms. Instead, he relied on plaintiff’s “reported symptoms” for his

severity determination. AR 422-23. Because an ALJ may discount an opinion based upon

unreliable plaintiff testimony, the issue is whether the ALJ properly evaluated plaintiff’s

credibility. Tonapetyan, 242 F.3d at 1149.

2. The ALJ Inadequately Assessed Plaintiff’s Credibility.

Once a claimant produces medical evidence of an underlying impairment, the ALJ may

not discredit the claimant's testimony as to the severity of symptoms solely because they are

unsupported by objective medical evidence. Reddick, 157 F.3d at 722 (internal citations

omitted). Absent affirmative evidence showing that the claimant is malingering, the ALJ must

provide clear and convincing reasons for rejecting the claimant's testimony. Id. “General

findings are insufficient; rather, the ALJ must identify what testimony is not credible and what

evidence undermines the claimant's complaints.”4

 Id. 

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daily activities, work record, and testimony from physicians and third parties concerning the

nature, severity, and effect of the symptoms of which he complains. Light v. Social Sec.

Admin., 119 F.3d 789, 792 (9th Cir. 1997) (internal citations omitted). 

REPORT AND RECOMMENDATION

PAGE -9

The ALJ’s credibility analysis failed to comply with this standard. The ALJ stated that

plaintiff “exaggerated his symptoms to his providers and to [the Social Security

Administration].” AR 27. Therefore, he found plaintiff’s allegations as to the severity of his

limitations “not totally credible.” AR 29. The ALJ did not specifically identify the noncredible testimony, nor provide sufficient examples of the evidence relied upon, to impugn the

plaintiff’s testimony. He did note that plaintiff had inconsistently reported his alcohol

consumption to care providers, which he believed “may have contributed to [plaintiff’s]

gastrointestinal problems.” AR 27. He pointed out that when plaintiff visited the emergency

room in August 1998, he reported to doctors that he drank three beers the day before, but

generally did not drink “very much.” AR 27 (citing AR 127). When he returned to the same

ER nearly a year later complaining of similar symptoms, he admitted to alcohol abuse. Id. It

is not clear that this observation was part of the ALJ’s credibility analysis, but even if it were,

it does not rise to the level of providing clear and convincing reasons for rejecting plaintiff’s

testimony.

The ALJ also appears to have believed that plaintiff’s failure to follow all medical

treatment regularly impugned his credibility. He noted that in April 2002, plaintiff reduced his

Marinol dosage in half without consulting Dr. McDonnell, apparently because he was feeling

quite well. AR 27. He further noted that plaintiff later reported discontinuing the Marinol

altogether, though he continued to smoke marijuana. Id. Unexplained, or inadequately

explained, failure to follow medical treatment can serve as a sufficient reason for disbelieving

a plaintiff’s subjective symptom testimony. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 

It is not evident from the ALJ’s opinion that he was using this incident to support an adverse

credibility determination. As a result, the ALJ’s credibility analysis is, at best, muddled. On

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remand, the ALJ should re-examine plaintiff’s credibility on the weight to be given to Dr.

McDonnell’s opinion.

3. The ALJ Did Not Err by Failing to Apply Drug and Alcohol

Abuse Analysis.

Plaintiff argues that the ALJ “erroneously evaluated [his] marijuana use.” Dkt. No.

15. He states that the ALJ misapplied the proper drug and alcohol abuse (“DAA”) analysis

outlined in Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001), by finding that plaintiff’s

cannabis addiction was a factor material to disability without first finding that plaintiff was

disabled. Id. 

Plaintiff misapprehends the ALJ’s analysis. The ALJ did not perform the DAA

analysis, nor did he find that plaintiff’s marijuana addiction was a factor material to disability. 

Indeed, no such finding is included in the decision. See AR 29. Rather, the ALJ noted that

plaintiff’s admitted marijuana abuse may have contributed to what appeared to be a lack of

motivation. AR 28. The decision, however, mentions plaintiff’s marijuana abuse in other

instances as well, which raises concern about what role, if any, it did have on the ALJ’s

analysis. Though the Court declines to find that the ALJ misapplied the DAA analysis on this

record, upon remand, he should make explicit what role, if any, DAA plays in his analysis.

4. The ALJ Did Not Misapply the Failure to Follow Treatment

Analysis.

Plaintiff also argues that the ALJ “misapplied 20 C.F.R. § 404.1530 (2005), the

failure-to-follow-prescribed-treatment regulation.” Dkt. No. 15. He argues that the ALJ

erred in applying this regulation because first he did not find plaintiff to be disabled. Id. Once

again, no such finding is included in the decision. On remand, however, the ALJ should

explicitly clarify the extent to which plaintiff’s failure to follow treatment, if any, impacts the

ALJ’s analysis.

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B. Outstanding Issues Still Remain.

The second step for determining whether this case should be remanded for an

immediate award of benefits, or for further administrative proceedings, requires the court to

assess whether there are any outstanding issues that must be resolved before a determination

of disability can be made. McCartey, 298 F.3d at 1076. Here, several outstanding issues

remain. First, the assignment of error on which the parties agree must still be properly

determined, e.g., what plaintiff’s past relevant work consists of, and whether he can still

perform that work. Depending on the outcome of that analysis, the ALJ also may be required

to proceed to step five. Additionally, as discussed above, there is an outstanding issue as to

whether plaintiff’s marijuana and alcohol abuse impacted his alleged disability. Similarly, there

is a question about whether, or to what extent, plaintiff’s failure to follow consistent treatment

impacted the ALJ’s analysis. These are outstanding issues that preclude an award of benefits

at this time. Harman, 211 F.3d at 1180-81 (noting that uncertainty as to whether plaintiff

abused alcohol required remand for further administrative proceedings). 

C. It Is Not Clear From the Record That Plaintiff Would Be Found

Disabled.

The final step for determining whether this case should be remanded for an immediate

award of benefits or for further administrative proceedings requires the Court to assess

whether the ALJ would be obligated to find the claimant disabled if he considered his

erroneously rejected evidence. McCartey, 298 F.3d at 1076. The plaintiff has not established

that the ALJ would be obligated to make such a finding if he were to credit Dr. McDonnell’s

opinions as true, because a denial of benefits may still be proper at steps four and five. 

VIII. CONCLUSION

For the reasons discussed above, this case should be reversed and remanded for

further administrative proceedings not inconsistent with this Report and Recommendation. A

proposed Order accompanies this report and recommendation.

DATED this 1st day of May, 2006.

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REPORT AND RECOMMENDATION

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AJAMES P. DONOHUE

United States Magistrate Judge 

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