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Plaintiff’s date of birth has been redacted in accordance with the General Order of the Court regarding Public Access

to Electronic Case Files, pursuant to the official policy on privacy adopted by the Judicial Conference of the United States.

ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JOHN D. SHAW,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of 

Social Security,

Defendant.

CASE NO. C05-5807KLS

ORDER REVERSING THE

COMMISSIONER’S DECISION

AND REMANDING FOR

FURTHER ADMINISTRATIVE

PROCEEDINGS

Plaintiff, John D. Shaw, has brought this matter for judicial review of the denial of his application for

disability insurance benefits. The parties have consented to have this matter be heard by the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Magistrates

Rule 13. After reviewing the parties’ briefs and the remaining record, the undersigned hereby finds and

ORDERS as follows:

FACTUAL AND PROCEDURAL HISTORY

Plaintiff currently is forty-six years old.1 Tr. 27. He has a high school education, completed two

years of college course work, and has past work experience as a firefighter, an emergency medical

technician, a chemical dependency counselor, a resident counselor, a case manager, a consultant, a

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coordinator-triage/schedule coordinator, and a homecare giver. Tr. 24, 64, 69, 72, 89. 

On September 20, 2002, plaintiff filed an application for disability insurance benefits, alleging

disability as of November 30, 2001, due to a seizure disorder, bilateral hand tremors, bipolar affective

disorder, and osteoporosis. Tr. 15-16, 56, 63. His application was denied initially and on reconsideration.

Tr. 15, 27-29, 34. A hearing was held before an administrative law judge (“ALJ”) on December 16, 2004,

at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. Tr. 328-71. 

On February 7, 2005, the ALJ issued a decision, determining plaintiff to be not disabled, finding

specifically in relevant part:

(1) at step one of the disability evaluation process, plaintiff had not engaged in

substantial gainful activity since his alleged onset date of disability; 

(2) at step two, the combined effect of plaintiff’s impairments was considered to be

“severe”; 

(3) at step three, none of plaintiff’s impairments met or equaled the criteria of any of

those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; and

(4) at step four, plaintiff had the residual functional capacity to perform a modified

range of light work, which did not preclude him from performing his past

relevant work. 

Tr. 25-26. Plaintiff’s request for review was denied by the Appeals Council on October 21, 2005, making

the ALJ’s decision the Commissioner’s final decision. Tr. 5; 20 C.F.R. § 404.981. 

On December 16, 2005, plaintiff filed a complaint in this Court seeking review of the ALJ’s

decision. (Dkt. #1). Specifically, plaintiff argues that decision should be reversed and remanded for further

administrative proceedings for the following reasons: 

(a) the ALJ erred in evaluating the rating of disability plaintiff received from the

Department of Veterans Affairs (“VA”);

(b) the ALJ erred in finding plaintiff’s mental and physical impairments to be not

severe;

(c) the ALJ erred in evaluating the medical evidence in the record regarding

plaintiff’s mental impairments;

(d) the ALJ erred in assessing plaintiff’s residual functional capacity;

(e) the hypothetical question the ALJ posed to the vocational expert was

insufficient; and

(f) the ALJ erred in assessing plaintiff’s credibility. 

For the reasons set forth below, the Court agrees the ALJ erred in determining plaintiff to be not disabled,

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and therefore hereby reverses the ALJ’s decision, and remands this matter to the Commissioner for further

administrative proceedings. 

DISCUSSION

This Court must uphold the Commissioner’s determination that 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). 

I. The ALJ Did Not Err in Evaluating the Department of Veterans Affairs’ Disability Rating

Although a determination by the Department of Veterans Affairs (“VA”) about whether a claimant is

disabled is not binding on the Social Security Administration (“SSA”), an ALJ must consider that

determination in reaching his or her decision. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002);

20 C.F.R. § 404.1504. Further, the ALJ “must ordinarily give great weight to a VA determination of

disability.” McCartey, 298 F.3d at 1076. This is because of “the marked similarity” between the two federal

disability programs:

Both programs serve the same governmental purpose--providing benefits to those

unable to work because of a serious disability. Both programs evaluate a claimant's

ability to perform full-time work in the national economy on a sustained and continuing

basis; both focus on analyzing a claimant's functional limitations; and both require

claimants to present extensive medical documentation in support of their claims. . . .

Both programs have a detailed regulatory scheme that promotes consistency in

adjudication of claims. Both are administered by the federal government, and they share

a common incentive to weed out meritless claims. The VA criteria for evaluating

disability are very specific and translate easily into SSA’s disability framework. 

Id. However, “[b]ecause the VA and SSA criteria for determining disability are not identical,” the ALJ

“may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so

that are supported by the record.” Id. (citing Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). 

Although plaintiff argues otherwise, the ALJ properly did so here. 

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As noted previously, “a VA rating of disability does not necessarily compel the [SSA] to reach an

identical result.” Id. (citing 20 C.F.R. § 404.1504). Section 404.1504 of the Commissioner’s regulations

provides in relevant part:

A decision by . . . any other governmental agency about whether you are disabled . . . is

based on its rules and is not our decision about whether you are disabled . . . We must

make a disability . . . determination based on social security law. Therefore, a

determination made by another agency that you are disabled . . . is not binding on us.

20 C.F.R. § 404.1504. Thus, because, as discussed above, “the criteria applied by the two agencies” are not

identical, “[a] VA rating of total and permanent disability is not legally binding on the Commissioner.”

Chambliss, 269 F.3d at 522. 

In this case, the ALJ found as follows:

In reaching this decision, the undersigned has considered the VA’s determination of

service-connected disability. The VA’s rating does not, however, necessarily compel the

undersigned to reach an identical outcome under the Social Security Regulations. This

is especially true where, as here, each impairment has no more than a marginal effect on

the claimant’s ability to perform household chores, walk every other day, hike, and

occasionally work on the computer. S.S.R. [Social Security Ruling] 86-8. Notably, the

VA did not base its disability finding on the claimant’s inability to secure and follow a

substantially gainful occupation, but on the relationship between his tremors and

osteoporosis, and his service-connected seizure disorder. On this point, the VA decision

specifically noted that the claimant’s grip strength was good, despite his tremors, and he

had no motor loss. 12E/5. Moreover, the VA decision also found “no evidence of

painful or limited motion” in the claimant’s joints, and a recent DEXA scan showed that

the claimant’s bone mineralization is within “normal limits.” 12E/6. 

Tr. 22. The Court finds the ALJ’s determination here to be supported by substantial evidence. 

Plaintiff argues the ALJ erred by failing to consider the fact that the VA found his hand tremors

were “present all the time” (Tr. 119), as well as the VA medical documentation of those tremors contained

in the record. The VA rating decision, however, merely contains a “reasons and bases” section, which

consists of a brief summary of the medical and other evidence upon which the decision is founded. That is,

the rating decision itself does not contain any original diagnostic or clinical notes, and thus does not alone

constitute objective medical evidence. Regardless, the mere fact that plaintiff’s hand tremors were noted at

one point to always be present, does not alone establish disability. See Moncada v. Chater, 60 F.3d 521,

523 (9th Cir. 1995) (mere diagnosis of impairment does not establish disability); Matthews v. Shalala, 10

F.3d 678, 680 (9th Cir. 1993). 

Indeed, the medical evidence in the record does not show those hand tremors prevent plaintiff from

performing all work, as is required for a finding of disability under the Social Security Act. Tr. 127, 142,

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148, 155-56, 160, 163, 167, 201, 234, 252-54, 278-79, 288, 290, 295, 302; Tackett v. Apfel, 180 F.3d

1094, 1098 (9th Cir. 1999) (plaintiff must establish inability to engage in substantial gainful activity by

reason of medically determinable impairment); 42 U.S.C. § 423(d)(1)(A). Further, the ALJ did consider the

medical and other evidence in the record regarding plaintiff’s hand tremors. Tr. 20-21. Although, as

discussed below, the Court agrees the ALJ erred in finding plaintiff’s hand tremors to be non-severe, that

does not mean the ALJ was required to find him disabled based on that impairment, especially in light of the

fairly unremarkable objective medical evidence noted above. 

Lastly, plaintiff argues the ALJ erred in finding his seizures and osteoporosis also to be non-severe,

despite the VA’s disability rating. As explained below, however, the substantial evidence in the record

supports the ALJ’s non-severity findings regarding those two impairments. In addition, plaintiff does not

explain how, even if the ALJ had erred in finding them to be non-severe, that would require the ALJ to

adopt the VA’s disability rating. As noted by the ALJ above, the VA did not base its disability finding on

plaintiff’s inability to secure and follow a substantially gainful occupation, which is required under the

Commissioner’s regulations before a disability determination can be made. Accordingly, the undersigned

finds the ALJ did not err in rejecting the VA’s rating decision. 

II. The ALJ’s Step Two Analysis

To determine whether a claimant is entitled to disability benefits, the ALJ engages in a five-step

sequential evaluation process. 20 C.F.R. § 404.1520. At step two of that process, the ALJ must determine

if an impairment is “severe.” Id. An impairment is “not severe” if it does not “significantly limit” a

claimant’s mental or physical abilities to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(iii), ( c);

Social Security Ruling (“SSR”) 96-3p, 1996 WL 374181 *1. Basic work activities are those “abilities and

aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b); SSR 85- 28, 1985 WL 56856 *3. 

An impairment is not severe only if the evidence establishes a slight abnormality that has “no more

than a minimal effect on an individual[’]s ability to work.” See SSR 85-28, 1985 WL 56856 *3; Smolen v.

Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.1988). Plaintiff

has the burden of proving that his “impairments or their symptoms affect [his] ability to perform basic work

activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001); Tidwell v. Apfel, 161 F.3d 599,

601 (9th Cir. 1998). The step two inquiry described above, however, is a de minimis screening device used

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to dispose of groundless claims. Smolen, 80 F.3d at 1290. 

Plaintiff argues the ALJ erred in finding his hand tremors, seizures and osteoporosis to be nonsevere. The ALJ found these impairments to be non-severe, because plaintiff’s seizures were “wellcontrolled by medication,” and because his hand tremors and osteoporosis did “not significantly limit” his

ability to engage in work-related activities. Tr. 22. As indicated above, the ALJ erred in finding plaintiff’s

tremors to be non-severe. Specifically, the opinion of Dr. Robert G. Hoskins, a non-examining consulting

physician, which the ALJ found to be “well-supported” and on which he based his assessment of plaintiff’s

residual functional capacity (Tr. 24), found plaintiff to be limited to only occasional bilateral handling and

fingering (Tr. 201). Such limitations constitute an abnormality that would have more than a minimal effect

on a claimant’s ability to perform basic work activities, and thus they are severe. 

With respect to plaintiff’s seizures and osteoporosis, however, the medical evidence in the record

supports the ALJ’s findings of non-severity. That evidence shows plaintiff’s seizures are well-controlled on

medication. Tr. 127, 142, 148, 156, 160, 163, 165, 167-68, 174, 200, 234, 259, 275-76, 278, 288, 295,

302. Nor does that evidence show his osteoporosis to have had more than a minimal effect on his ability to

perform basic work activities. Tr. 140, 155-56, 236. Even if the ALJ could be said to have erred in finding

these individual impairments to be non-severe, furthermore, the ALJ found “the combined effect of his

multiple impairments,” including his mental impairments, to be severe, and thus proceeded on to step three

and four of the disability evaluation process. Tr. 22. Any such error, therefore, would be harmless. See

Batson v. Commissioner of the Social Security Administration, 359 F.3d 1190, 1197 (9th Cir. 2004)

(applying harmless error standard); Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990) (holding ALJ

committed harmless error). 

Plaintiff also challenges the ALJ’s findings that his mental impairments were not severe. The ALJ

determined plaintiff’s bipolar disorder and depression to be non-severe because they were “well-controlled

by medication” and did “not significantly limit his ability to engage in basic work activities,” specifically

finding as follows:

Although the claimant has recently experienced homelessness, joblessness, and divorce,

his mental impairments have not precluded his willingness or ability to work, and he

continues to make laudable efforts to find work in a difficult job market. In addition, the

medical evidence establishes the claimant has remained goal-oriented (1F/3), exercises

regularly, maintains a routine, and takes care of his daughter. In view of the claimant’s

functional abilities, Dr. [Lance] Harris’ December 2002 PRTF specifically rated the

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claimant has [sic] having “no limitations” in his activities of daily living, social

functioning, or concentration, pace, or persistence, and no episodes of decompensation.

3F/11. This led Dr. Harris to conclude that that [sic] the claimant’s “condition appears

to be non-severe.” 3F/13. 

Tr. 20. 

Plaintiff argues his mental impairments “clearly” were severe. Plaintiff’s Opening Brief, p. 12. He

asserts that it “flies in the face of reason” that the ALJ based his findings on Dr. Harris’ report, when the

medical records from his treating physician “clearly indicate that his bipolar disorder” was “ongoing,” and

that he experienced “cycling moods.” Id. Once more as explained above, however, the mere fact that a

claimant experiences the symptoms of a mental impairment does not alone mean the impairment is severe. 

That is, the impairment must have more than a minimal effect on the claimant’s ability to perform basic

work-related activities. Here, the medical evidence in the record, including the diagnostic and treatment

notes from plaintiff’s treating physician, fails to establish plaintiff’s mental impairments have had such an

effect on his ability to work. 

In early November 2001, plaintiff’s treating physician, Dr. Robert F. Barnes, noted that plaintiff’s

symptoms were “mild” and that he was “coping at work.” Tr. 175. Plaintiff’s mental status examinations

overall were fairly remarkable as well. Tr. 135, 144, 150, 152-53, 158-59, 161, 170, 242, 282, 285-86, 294,

299, 301. While he was “[s]ituationally depressed,” he remained “fairly functional” and continued to cope

“appropriately.” Tr. 159, 162. Dr. Barnes felt his mood probably would “get better” as his circumstances

improved. Tr. 159. Plaintiff’s mood also began to improve on medication. Tr. 144. Indeed, in late October

2002, and again in March 2003, plaintiff’s depression was noted to be “consistently less” and his “mood

better” due to his medication. Tr. 135, 299, 301. In early May and late September 2003, Dr. Barnes noted

that his mood continued “to be improved and more stable.” Tr. 285-86, 294. Plaintiff’s condition remained

essentially the same until July 2004, when he ran out of medication. Tr. 240, 242, 282. 

Dr. Lolita Velmer, who evaluated plaintiff in late November 2002, like Dr. Harris, essentially found

no limitations in plaintiff’s ability to work due to his mental impairments. Tr. 124-25, 185, 195-97. While

plaintiff asserts these reports are too old to be reliable, plaintiff alleges an onset date of disability at least a

year prior to the dates of these reports. Further, Dr. Barnes’ diagnostic and treatment records, upon which

plaintiff relies, also date back to more than a year prior to those reports as well. Finally, a third examining

physician, Dr. Laura C. Ferguson, evaluated plaintiff in early May 2004, and her findings show his mental

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status examination to have been fairly unremarkable as well. Tr. 246. 

Most significantly though, and contrary to plaintiff’s assertion, as shown above both Dr. Velmer’s

and Dr. Harris’ reports are largely consistent with the findings of Dr. Barnes. That is, none of the medical

sources in the record, including Dr. Barnes, have opined that plaintiff suffers from mental impairments

which have had more than a minimal effect on his ability to perform basic work-related activities. Plaintiff

points to the fact that Dr. Barnes assessed him with a global assessment of functioning (“GAF”) score of 50

and 53 in early September 2002 and late February 2003, respectively, to show that the record supports a

finding of severity. Tr. 145, 299. However, Dr. Velmer found he had a much higher GAF score of 70 in

late November 2002. Tr. 124, 135. 

As such, even taking into account plaintiff’s assessed GAF scores, the substantial evidence in the

record supports the ALJ’s finding of non-severity. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)

(where evidence in record is not conclusive, resolution of conflicts are solely function of ALJ). That is,

plaintiff has not shown why the lower GAF scores assessed by Dr. Barnes, even though he is a treating

physician, are more valid than the higher one assessed by Dr. Velmer. Nor has he shown why the lower

GAF scores in themselves are sufficient to overcome the other very mild clinical and diagnostic findings set

forth above, which constitute the majority of the medical evidence in the record concerning his mental

impairments. Regardless, as with the seizures and osteoporosis, the ALJ found the combined effect of

plaintiff’s impairments to be “severe.” As such, any error on the part of the ALJ regarding his mental

impairment severity findings would be harmless as well. 

III. The ALJ Properly Evaluated the Medical Evidence in the Record Concerning Plaintiff’s Mental

Impairments

The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the

medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the medical evidence in the

record is not conclusive, “questions of credibility and resolution of conflicts” are solely the functions of the

ALJ. Sample, 694 F.2d at 642. In such cases, “the ALJ’s conclusion must be upheld.” Morgan v.

Commissioner of the Social Security Administration, 169 F.3d 595, 601 (9th Cir. 1999). Determining

whether inconsistencies in the medical evidence “are material (or are in fact inconsistencies at all) and

whether certain factors are relevant to discount” the opinions of medical experts “falls within this

responsibility.” Id. at 603. 

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In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings “must be

supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this “by setting out a

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

thereof, and making findings.” Id. The ALJ also may draw inferences “logically flowing from the evidence.”

Sample, 694 F.2d at 642. Further, the Court itself may draw “specific and legitimate inferences from the

ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d 747, 755, (9th Cir. 1989). 

The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of

either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Even when a

treating or examining physician’s opinion is contradicted, that opinion “can only be rejected for specific and

legitimate reasons that are supported by substantial evidence in the record.” Id. at 830-31. However, the

ALJ “need not discuss all evidence presented” to him or her. Vincent on Behalf of Vincent v. Heckler, 739

F.3d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in the original). The ALJ must only explain

why “significant probative evidence has been rejected.” Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07

(3d Cir. 1981); Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984). 

In general, more weight is given to a treating physician’s opinion than to the opinions of those who

do not treat the claimant. Lester, 81 F.3d at 830. On the other hand, an ALJ need not accept the opinion of

a treating physician, “if that opinion is brief, conclusory, and inadequately supported by clinical findings” or

“by the record as a whole.” Batson v. Commissioner of Social Security Administration, 359 F.3d 1190,

1195 (9th Cir.,2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242

F.3d 1144, 1149 (9th Cir. 2001). An examining physician’s opinion is “entitled to greater weight than the

opinion of a nonexamining physician.” Lester, 81 F.3d at 830-31. A nonexamining physician’s opinion may

constitute substantial evidence if “it is consistent with other independent evidence in the record.” Id. at 830-

31; Tonapetyan, 242 F.3d at 1149. 

Plaintiff argues the ALJ accorded inadequate weight to the opinions of Dr. Barnes. Plaintiff asserts

that the ALJ erred in finding the opinion of Dr. Velmer to be consistent with those of Dr. Barnes, and that

the ALJ should have given Dr. Barnes’ opinions controlling weight. It is not clear, however, what opinions

of Dr. Barnes to which he believes the ALJ should have given controlling weight. Plaintiff does state the

ALJ failed to provide specific and legitimate reasons for rejecting both Dr. Barnes’ opinion that his mental

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impairments were severe and the GAF score of 53 with which Dr. Barnes assessed him in late February

2003. Dr. Barnes though never specifically stated or opined that plaintiff’s mental impairments were in fact

severe. In addition, as discussed above, plaintiff does not explain why the ALJ was required to adopt this

GAF score, as opposed to the higher score with which he also was assessed by Dr. Velmer around the same

time, particularly in light of the other very mild objective findings in the record. 

Plaintiff further argues the ALJ had a duty to obtain the testimony of plaintiff’s VA physician or to

submit questions to him. It is true that the ALJ has the duty “to fully and fairly develop the record and to

assure that plaintiff’s interests are considered.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)

(citations omitted). However, it is only where the record contains “[a]mbiguous evidence” or the ALJ has

found “the record is inadequate to allow for proper evaluation of the evidence,” that the ALJ’s duty to

“conduct an appropriate inquiry” is triggered. Id. (citations omitted); Mayes, 276 F.3d at 459. Here, as

discussed above, the medical evidence was neither ambiguous regarding the severity of plaintiff’s mental

impairments, nor was the record inadequate to allow for a proper evaluation of that evidence. 

Plaintiff again refers to the timing of Dr. Velmer’s report, but, also as discussed above, that report

was fairly contemporaneous with the majority of Dr. Barnes’ diagnostic and treatment notes. Plaintiff also

finds fault with the ALJ’s reliance on the report of Dr. Harris, asserting such reliance alone is inadequate to

constitute substantial evidence. Plaintiff’s point might be valid were Dr. Harris’ findings not consistent with

other independent evidence in the record. Here, however, the non-severity opinion of Dr. Harris, as

discussed above, was consistent with the majority of the medical evidence concerning plaintiff’s mental

impairments and limitations, including the findings of Dr. Barnes and Dr. Velmer. 

IV. The ALJ’s Assessment of Plaintiff’s Residual Functional Capacity

If a disability determination “cannot be made on the basis of medical factors alone at step three of

the evaluation process,” the ALJ must identify the claimant’s “functional limitations and restrictions” and

assess his or her “remaining capacities for work-related activities.” SSR 96-8p, 1996 WL 374184 *2. A

claimant’s residual functional capacity assessment is used at step four to determine whether he or she can do

his or her past relevant work, and at step five to determine whether he or she can do other work. Id. It thus

is what the claimant “can still do despite his or her limitations.” Id. 

A claimant’s residual functional capacity is the maximum amount of work the claimant is able to

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perform based on all of the relevant evidence in the record. Id. However, a claimant’s inability to work

must result from his or her “physical or mental impairment(s).” Id. Thus, the ALJ must consider only those

limitations and restrictions “attributable to medically determinable impairments.” Id. In assessing a

claimant’s residual functional capacity, the ALJ also is required to discuss why the claimant’s “symptomrelated functional limitations and restrictions can or cannot reasonably be accepted as consistent with the

medical or other evidence.” Id. at *7. 

Here, the ALJ assessed plaintiff with the following residual functional capacity:

[T]he claimant retains the residual functional capacity to perform light work, with some

postural limitations with respect to balancing and crawling, and occasional limitations

with respect to handling and fingering. . . . the evidence shows the claimant is able to

stand or walk about 6 hours in an 8-hour workday, and is able to sit up to 8 hours in an

8-hour workday, with periodic alternate sitting and standing to relieve discomfort. The

claimant should never engage in climbing ramps/stairs or ladders/ropes/scaffolding, and

has occasional limitations with respect to handling and fingering. 

Tr. 23-24. Plaintiff argues the above findings are not supported by the medical evidence in the record, and

the ALJ failed to provide adequate reasons for rejecting that evidence. The Court disagrees. 

First, plaintiff does not point to any specific medical evidence in the record that contradicts those

findings. Plaintiff asserts the ALJ did not thoroughly discuss and analyze the medical and other evidence in

the record regarding his mental and physical impairments. The ALJ, however, spent eight pages of his

decision doing so. See Tr. 17-24. Plaintiff further asserts the ALJ did not resolve inconsistencies in the

evidence, set forth a logical explanation regarding the effects of his symptoms, or assess his work-related

abilities on a function-by-function basis. Again though, plaintiff does not point to the inconsistencies in the

evidence the ALJ was supposed to have resolved. As just discussed, furthermore, the ALJ did provide a

detailed discussion and analysis of the evidence in the record regarding his impairments and limitations. 

Finally, as clearly can be seen, the above residual functional capacity assessment sets forth plaintiff’s workrelated abilities on a function-by-function basis. 

Plaintiff next argues he is limited in his ability to respond appropriately to supervision, co-workers

and work situations and to carry out work instructions on a sustained basis, and has difficulty during

stressful times in reporting to work regularly. The medical evidence in the record that actually discusses

plaintiff’s mental work-related capabilities, however, largely contradicts that argument. See Tr. 124-25,

185, 195, 197. Nowhere in Dr. Barnes’ diagnostic and treatment notes, furthermore, is there any indication

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plaintiff has such limitations, other than the two lower GAF scores, which the Court, as discussed above,

found the ALJ properly did not adopt. 

Lastly, plaintiff argues the above alleged mental functional limitations, along with his bilateral hand

tremors, constitute further evidence that he would be severely limited in his ability to perform full-time light

work on a regular and continuing basis. Once more, however, plaintiff points to no specific medical

evidence in the record that this is so. Nor does the Court’s own review of that evidence indicate plaintiff’s

combined limitations rise to that level of severity. The Court does find re-consideration of the ALJ’s

assessment of plaintiff’s residual functional capacity to be warranted on remand, however, in light of the

deficiencies in the ALJ’s credibility determination discussed below. 

V. The ALJ Erred in Finding Plaintiff Capable of Performing His Past Relevant Work

At the hearing, the ALJ posed the following hypothetical question to the vocational expert:

[L]et me ask you about an individual that I’m going to describe to you which would

coincide with that of Mr. Shaw, same age, same educational background and same

impairments as have been testified to by Mr. Shaw. Let me also ask you to consider that

I find Mr. Shaw’s testimony credible and believe every word he tells me and find him

capable of doing a light exertional capability of work. 

Tr. 363. In response, the vocational expert testified that plaintiff would be capable of returning to his past

relevant work. Tr. 363-64. Based on the vocational expert’s testimony, the ALJ found plaintiff capable of

returning to his past relevant work. Tr. 25-26. 

Plaintiff argues the above hypothetical question was incomplete, and therefore the Commissioner did

not carry her burden of proof at step four of the disability evaluation process, because all of his mental and

physical limitations were not given to the vocational expert. It is plaintiff and not the Commissioner, 

however, who has the burden at step four to show he is unable to return to his past relevant work. Tackett

v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). Nevertheless, the Court agrees that the ALJ erred in

finding plaintiff capable of returning to his past relevant work here. 

As pointed out by plaintiff, and as noted previously, the ALJ included in his residual functional

capacity assessment a limitation to only occasional handling and fingering. As can be seen above though,

the ALJ failed to include this limitation in the hypothetical question he posed to the vocational expert. As

such, the hypothetical question did not include all of the limitations the ALJ himself found plaintiff to have,

and to that extent the ALJ erred. In addition, based on the vocational expert’s testimony, it appears that

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plaintiff’s handling and fingering limitation would preclude him from being able to return to his past relevant

work. That is, the vocational expert testified that all of plaintiff’s past jobs required the ability to handle and

finger frequently, which obviously is greater than occasional. Tr. 366-67. 

Plaintiff’s assertion that the hypothetical question also did not include all of his mental limitations

because that question was based on the erroneous determination that those limitations were well-controlled

by medication, however, is without merit. As discussed above, the medical evidence in the record supports

the ALJ’s finding that plaintiff’s mental impairments were non-severe due in part to their being controlled

by his medication. As such, the ALJ did not err in finding those limitations to be non-severe. On the other

hand, the Court does find the hypothetical question to be incomplete in light of the ALJ’s statement therein

that the vocational expert assume he found plaintiff’s testimony to be “credible” and believed “every word”

plaintiff told him. Tr. 363. While plaintiff testified as to having limitations beyond those found by the ALJ

(Tr. 340-47, 359-60), the ALJ did not include them all in his hypothetical question. 

VI. The ALJ’s Assessment of Plaintiff’s Credibility

Questions of credibility are solely within the control of the ALJ. Sample v. Schweiker, 694 F.2d

639, 642 (9th Cir. 1982). The court should not “second-guess” this credibility determination. Allen, 749

F.2d at 580. In addition, the court may not reverse a credibility determination where that determination is

based on contradictory or ambiguous evidence. Id. at 579. That some of the reasons for discrediting a

claimant’s testimony should properly be discounted does not render the ALJ’s determination invalid, as long

as that determination is supported by substantial evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th

Cir. 2001). 

To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent reasons for the

disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (citation omitted). The ALJ “must identify

what testimony is not credible and what evidence undermines the claimant’s complaints.” Id.; Dodrill v.

Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence shows the claimant is malingering,

the ALJ’s reasons for rejecting the claimant’s testimony must be “clear and convincing.” Lester, 81 F.2d at

834. The evidence as a whole must support a finding of malingering. O’Donnell v. Barnhart, 318 F.3d 811,

818 (8th Cir. 2003). 

In determining a claimant’s credibility, the ALJ may consider “ordinary techniques of credibility

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evaluation,” such as reputation for lying, prior inconsistent statements concerning symptoms, and other

testimony that “appears less than candid.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ

also may consider a claimant’s work record and observations of physicians and other third parties regarding

the nature, onset, duration, and frequency of symptoms. Id. 

With respect to the ALJ’s credibility determination in this case, the ALJ stated in the body of his

decision that plaintiff’s “own assessment” of his residual functional capacity was consistent with the report

of Dr. Hoskins, who found plaintiff to be capable of performing essentially the full range of light work, with

certain limitations on balancing, crawling, handling and fingering. Tr. 24, 199-203. The ALJ further stated

it was “[f]or this reason” that he found plaintiff “to be credible.” Tr. 24. In the “Findings” section of his

decision, the ALJ stated that plaintiff’s “allegations regarding his limitations” were “credible insofar as they”

were “consistent with the objective medical evidence in the record.” Tr. 25. 

Plaintiff argues that while the ALJ stated he found him to be credible, the ALJ actually rejected his

subjective complaints, as the ALJ did not consider them in assessing his residual functional capacity, nor did

the ALJ include them in the hypothetical question posed to the vocational expert. Defendant argues the

ALJ did properly consider plaintiff’s subjective complaints by detailing his activities of daily living and

description of his own physical abilities, and by illustrating that those activities and that description were

inconsistent with a person who is as impaired as plaintiff alleges himself to be. 

It is true that the ALJ provided a detailed summary of plaintiff’s activities and description of his own

physical abilities. Tr. 23. If the ALJ had stated he was discounting plaintiff’s credibility based upon that

summary, defendant’s argument might be well-taken. Smolen, 80 F.3d at 1284 (to determine whether

claimant’s symptom testimony is credible, ALJ may consider his or her daily activities). In this case,

however, the ALJ specifically stated he found plaintiff to be credible. One certainly could infer that the ALJ

meant he was finding plaintiff credible only to the extent plaintiff’s statements and testimony were consistent

with the residual functional capacity opined by Dr. Hoskins. Magallanes, 881 F.2d at 755 (court may draw

specific and legitimate inferences from ALJ’s opinion). 

Even so, it is difficult to square that finding with the ALJ’s more general subsequent statement that

he found plaintiff’s “allegations regarding his impairments” to be credible insofar as they were “consistent

with [the] objective medical evidence in the record.” Tr. 25. That is, one also might argue that it would be

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reasonable for the Court to infer that in making this latter statement, the ALJ found plaintiff’s statements

and testimony regarding his mental impairments and limitations to be credible only insofar as they were

consistent with the medical evidence in the record as well. Such an inference, however, would not be

legitimate. This is because the ALJ gave no indication in the body of his decision that he specifically was

discounting plaintiff’s credibility on this basis. 

The Court notes, furthermore, that, as discussed above, in the hypothetical question the ALJ posed

to the vocational expert, the ALJ expressly requested that the vocational expert assume he found plaintiff to

be credible and that he believed “every word” plaintiff told him. Tr. 363. In other words, it is not at all clear

the extent to which the ALJ found plaintiff to be credible, if at all, and the Court thus is left to guess as to

the actual findings of the ALJ regarding this issue. Accordingly, on remand, the Commissioner shall make a

new determination regarding plaintiff’s credibility, which contains the requisite level of specificity and more

clearly sets forth which of plaintiff’s subjective complaints are deemed not credible. 

VII. This Matter Should Be Remanded For Further Administrative Proceedings

The Court may remand this case “either for additional evidence and findings or to award benefits.”

Smolen, 80 F.3d at 1292. Generally, when the Court reverses an ALJ’s decision, “the proper course,

except in rare circumstances, is to remand to the agency for additional investigation or explanation.”

Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Thus, it is “the unusual case in

which it is clear from the record that the claimant is unable to perform gainful employment in the national

economy,” that “remand for an immediate award of benefits is appropriate.” Id. 

Benefits may be awarded where “the record has been fully developed” and “further administrative

proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v. Massanari, 246 F.3d

1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where:

(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 were such evidence credited.

Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). Because,

as discussed above, issues still remain concerning plaintiff’s credibility, his residual functional capacity, and

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Plaintiff asserts that when his mental, handling and fingering limitations were posed to the vocational expert, that expert

testified that he would be unable to maintain any employment. This assertion, however, is without merit. First, with respect to

the handling and fingering limitations, the vocational expert indicated that individuals who could perform such tasks only

occasionally would not be precluded from all other work. Tr. 370. Second, the mental limitations that were posed to the vocational

expert, and to which plaintiff refers here, are based solely on a finding that all of plaintiff’s statements and testimony are fully

credible. See Tr. 367-70. As explained above, however, it is not at all clear the ALJ actually intended to adopt such a finding.

In addition, also as explained above, the medical evidence in the record shows plaintiff’s mental impairments to be far less severe

than he has alleged. As such, it remains far from certain that plaintiff is incapable of performing all work. 

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his ability to perform other work existing in significant numbers in the national economy,2 remand of this

matter to the Commissioner for further administrative proceedings is more appropriate. 

CONCLUSION

Based on the foregoing discussion, the Court finds the ALJ improperly determined plaintiff was not

disabled. Accordingly, the ALJ’s decision hereby is REVERSED and REMANDED to the Commissioner

for further administrative proceedings in accordance with the findings contained herein. 

DATED this 19th day of July, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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