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 Plaintiff’s date of birth is redacted back to the year of birth 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.

REPORT AND RECOMMENDATION RE:

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ROBERT L. WELCH,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner

of Social Security

Defendant.

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CASE NO. C06-0345-JLR

REPORT AND RECOMMENDATION

RE: SOCIAL SECURITY

DISABILITY APPEAL

Plaintiff Robert L. Welch proceeds through counsel in his appeal of a final decision of the

Commissioner of the Social Security Administration (Commissioner). The Commissioner partially

denied plaintiff’s application for Supplemental Security Income (SSI) benefits and Disability

Insurance (DI) benefits after a hearing before an Administrative Law Judge (ALJ).

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1955.1 He completed high school and took some welding

classes at a technical college. (AR 213-14) Plaintiff previously worked as a mockup mechanic,

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painter, production welder, and acid bath welder.

Plaintiff filed an application for SSI and DI benefits in May 2002, alleging disability since

January 15, 2002 due to knee problems. (AR 3, 61-64) His applications were denied initially and

on reconsideration, and he timely requested a hearing.

On March 21, 2005, ALJ Donald P. Krainess held a hearing, taking testimony from

plaintiff and vocational expert (VE) William Weiss. (AR 193-231) On May 27, 2005, ALJ

Krainess issued a decision finding plaintiff not disabled from January 15, 2002 to December 31,

2004 and disabled after January 1, 2005. (AR 19-26)

Plaintiff timely appealed. The Appeals Council denied plaintiff’s request for review on

January 17, 2006, making the ALJ’s decision the final decision of the Commissioner. (AR 6-9)

Plaintiff appealed this final decision of the Commissioner to this Court.

DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining

whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be

determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged

in substantial gainful activity since his alleged onset date. At step two, it must be determined

whether a claimant suffers from a severe impairment. The ALJ found plaintiff’s degenerative joint

disease of his right knee severe. Step three asks whether a claimant’s impairments meet or equal

a listed impairment. The ALJ found that plaintiff’s impairments did not meet or equal the criteria

for any listed impairments. If a claimant’s impairments do not meet or equal a listing, the

Commissioner must assess residual functional capacity (RFC) and determine at step four whether

the claimant has demonstrated an inability to perform past relevant work. The ALJ assessed

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plaintiff’s RFC and found him unable to perform his past relevant work. If a claimant

demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner

to demonstrate at step five that the claimant retains the capacity to make an adjustment to work

that exists in significant levels in the national economy. If a claimant is between fifty and fifty-four

years old, and has no transferable skills from past relevant work, the medical vocational rules

requires the claimant to be found disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.14. The

ALJ found plaintiff capable of making an adjustment to work existing in significant numbers in the

national economy, including work as a table sorter, semi conductor bonder, charge account clerk,

and call out operator. The ALJ also found plaintiff to have no transferable skills from past relevant

work. Thus, the ALJ found plaintiff not disabled prior to his fiftieth birthday, and disabled after

his fiftieth birthday.

This Court’s review of the ALJ’s decision is limited to whether the decision is in

accordance with the law and the findings supported by substantial evidence in the record as a

whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more

than a scintilla, but less than a preponderance; it means 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). “Where the evidence is susceptible to more than one rational interpretation, one

of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart,

278 F.3d 947, 954 (9th Cir. 2002).

Plaintiff argues that the ALJ erred by failing to consider the effect of plaintiff’s obesity,

making an adverse credibility finding, relying on VE testimony that was inconsistent with the

Dictionary of Occupational Titles (DOT), and rejecting two physicians’ assessments that plaintiff

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cannot stand or walk at work. In addition, plaintiff claims that a physician’s declaration submitted

only to the Appeals Council proves that the ALJ’s decision is not supported by substantial

evidence. Plaintiff requests remand for further administrative proceedings. The Commissioner

argues that the ALJ’s decision is supported by substantial evidence and should be affirmed.

Obesity

A claimant bears the burden of proving his disability and an ALJ will only consider

impairments raised by a claimant or about which the ALJ receives evidence. 20 C.F.R. §§

404.1512(a), 416.912(a). However, “[t]he ALJ always has a ‘special duty to fully and fairly

develop the record and to assure that the claimant's interests are considered ... even when the

claimant is represented by counsel.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)

(quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). “When a claimant is not

represented by counsel, this responsibility is heightened.” Id. (citing Higbee v. Sullivan, 975 F.2d

558, 561 (9th Cir. 1992)).

In Celaya, the Ninth Circuit remanded for further administrative proceedings when an ALJ

failed to consider the effect of the claimant’s obesity, despite the fact that the claimant never

mentioned her obesity or claimed that it impaired her functioning. Id. at 1181-83. The court gave

three reasons for doing so. First, the court stated that obesity was “implicitly” raised in the

claimant’s report of symptoms because her reported height and weight revealed a Body Mass

Index (BMI) of at least 44, which qualified as “extremely obese.” Id. at 1179, 1182. Second, at

the time of the hearing, obesity still qualified as a listed impairment, and it was clear from the

record that the claimant’s weight was close to qualifying as a listed impairment, and was a

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2

 Obesity is no longer a listed impairment. Revised Medical Criteria for Determination of

Disability, Endocrine System and Related Criteria, 64 Fed. Reg. 46,122 (Aug. 24, 1999).

3

 BMI from tables at http://www.nhlbi.nih.gov/guidelines/obesity/bmi_tbl.htm.

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condition that would exacerbate her reported illnesses.2 Id. at 1182. Third, the claimant was not

represented by counsel and the ALJ bore a heightened responsibility to develop the record as a

result. Id. at 1182-83.

Despite the fact that he never mentioned his obesity or claimed that it impaired his

functioning, plaintiff argues that the ALJ erred by failing to consider the aggravating or combined

effect of his obesity on his knee condition. See Social Security Ruling (SSR) 02-1p at *6 (“The

combined effects of obesity with other impairments may be greater than might be expected without

obesity.”); 20 C.F.R. §§ 404.1523, 404.1545(e) (requiring consideration of the effect of

combination of impairments). Plaintiff is seventy or seventy-one inches tall (AR 124, 138), and

weighed between 240 and 279 pounds during the period between January 15, 2002 and December

31, 2004 (AR 73, 176). This equates to a BMI between thirty-three and forty.3

 A BMI of thirty

or greater indicates obesity and a BMI of forty or greater indicates “extreme” obesity. SSR 02-1p

at *2. Thus, plaintiff varied from obesity to extreme obesity during the period in question.

The Commissioner argues that Celaya does not apply in the instant case. The

Commissioner cites the Ninth Circuit’s decision distinguishing Celaya in Burch v. Barnhart, 400

F.3d 676 (9th Cir. 2005). In Burch, the court declined to remand for further administrative

proceedings, despite the fact that the ALJ had failed to address the claimant’s obesity, because

there was no evidence that the claimant’s obesity exacerbated her other impairments, and because

the claimant was represented by counsel at her hearing. See id. at 681-83. The court placed

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 Because the undersigned concludes that the ALJ did not err in failing to address plaintiff’s

obesity, this Court need not address the Commissioner’s alternative argument that the ALJ’s

failure to consider plaintiff’s obesity is harmless because the ALJ implicitly accommodated the

condition by limiting plaintiff to sedentary work where he may sit or stand at his will.

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particular significance on the presence of counsel. Id. at 682.

Neither plaintiff, nor any reporting physician raised plaintiff’s obesity as an issue with

respect to plaintiff’s impairment. The record is devoid of any evidence that plaintiff’s impairment

has been adversely affected by his obesity. Also, the ALJ concluded that the claimant did have a

knee impairment, which was the only impairment there was any medical evidence of, that was

severe and which restricted him to sedentary work. Given plaintiff’s failure to raise the issue of

obesity himself, the lack of medical evidence suggesting plaintiff’s obesity affected his impairment,

and the fact that plaintiff was represented by counsel, the ALJ did not err in failing to address

plaintiff’s obesity.4

Credibility

Absent evidence of malingering, an ALJ must provide clear and convincing reasons to

reject a claimant’s testimony. See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In

finding a social security claimant’s testimony unreliable, an ALJ must render a credibility

determination with sufficiently specific findings, supported by substantial evidence. “General

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

evidence undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

1995). “We require the ALJ to build an accurate and logical bridge from the evidence to her

conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate findings.”

Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). “In weighing a claimant’s credibility, the

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ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between

his testimony and his conduct, his daily activities, his 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).

In this case, the ALJ rendered the following credibility determination:

The weight of the objective evidence demonstrates that the claimant’s allegations of

limitation due to right knee osteoarthritis from January 15, 2002 to December 31,

2004 are not entirely credible considering the criteria set forth in Social Security

Ruling 96-7p. 

...

The claimant testified at the hearing that due to continued problems with the right

knee, he had difficulty standing, he lied down 2-3 hours in the afternoon, and he was

limited to driving 15 minutes at a time, and walking 1⁄2 - 3/4 of a block. Treatment for

the knee prior to establishing care by Dr. Roter in February 2004 is minimal. The

objective evidence confirmed functional difficulties because of the knee, but he was

not precluded from all work-related activities. According to his own statements, he

remained capable of lifting and carrying 10 pounds, preparing his own meals,

shopping for groceries, cleaning his house, washing dishes, and doing laundry. In

fact, he independently provided care for an elderly sister who lived with him.

Evidence from his treating physician and his ability to engage in said daily activities

indicates that the claimant was not limited to the degree he alleges. 

(AR 22 (internal citations to record omitted))

Plaintiff challenges the ALJ’s adverse credibility finding by stating that “Welch’s minimal

daily activities interspersed with rest did not disprove her [sic] claim of disability.” (Dkt. 10 at 18)

Plaintiff also cites Vertigan, 260 F.3d at 1050, which states: “This court has repeatedly asserted

that 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 her credibility as

to her overall disability.”

The ALJ, however, did not rely on the mere fact of ordinary daily activities in making his

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 In response, plaintiff argues that the Commissioner misstates the ALJ’s rationale in

arguing that the ALJ found plaintiff “untruthful.” A review of the Commissioner’s response brief,

however, indicates that the Commissioner’s argument was limited to an assessment of plaintiff’s

credibility, which does not necessarily infer lack of truthfulness.

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credibility determination. He relied upon three additional pieces of evidence. First, he relied upon

plaintiff’s minimal treatment prior to establishing care with Dr. Roter in 2004. C.f. Burch, 400

F.3d at 681 (“The ALJ is permitted to consider lack of treatment in his credibility determination.”).

The only treatment during that time appears to be a single meeting with Dr. Medina in January

2002. (AR 135) Also, plaintiff took only Tylenol for his pain. (AR 206) This level of treatment

appears inconsistent with plaintiff’s reported symptoms. Second, the ALJ relied upon the

inconsistency of plaintiff’s testimony with the opinion of Dr. Roter, his treating physician. See

SSR 96-7p at *5 (“One strong indication of the credibility of an individual's statements is their

consistency, both internally and with other information in the case record.”). Plaintiff’s reported

limitations are inconsistent with Dr. Roter’s opinion that plaintiff could do sedentary work. (AR

156, 163) Third, the ALJ relied upon plaintiff’s provision of care for his elderly sister.

Accordingly, the ALJ’s credibility determination is supported by substantial evidence and should

be upheld.5

Vocational Expert Testimony

If a VE’s testimony conflicts with the DOT, the ALJ must “obtain a reasonable explanation

for the apparent conflict.” SSR 00-4p at *4. An ALJ may rely on VE testimony that conflicts

with the DOT only if there is “persuasive evidence to support the deviation.” Johnson v. Shalala,

60 F.3d 1428, 1435 (9th Cir. 1995).

Plaintiff alleges that the VE’s testimony was inconsistent with the DOT. Plaintiff identifies

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the alleged inconsistency as follows: “The vocational expert purported to identify three (or four)

‘sedentary’ DOT jobs that allowed a claimant to sit or stand at his option. However, a ‘sedentary’

DOT job requires sitting for prolonged periods of two hours: ‘In order to perform a full range of

sedentary work, an individual must be able to remain in a seated position for approximately 6

hours of an 8-hour workday, with a morning break, a lunch period, and an afternoon break at

approximately 2-hour intervals. . . .’ SSR 96-9p.” (Dkt. 10 at 17 (internal citations to record

omitted))

However, plaintiff fails to identify any inconsistency between the VE’s testimony and the

DOT. Plaintiff recites the sitting requirement for a full range of sedentary work. See SSR 96-9p

at *6. Yet, the ALJ explicitly disclaimed a finding that plaintiff could perform a full range of

sedentary work. (AR 25 (“[T]he claimant’s exertional limitations do not allow him to perform the

full range of sedentary work[.]”)) Moreover, in accordance with the ALJ’s hypothetical, the VE

only purported to identify a subset of sedentary jobs that would allow plaintiff to sit or stand at

will. (AR 225) In fact, SSR 96-9p clarifies that when a claimant cannot do the sitting or standing

required by sedentary work a VE should be consulted to determine what jobs would be

appropriate, which is precisely what was done here. See SSR 96-9p at *7. Plaintiff also fails to

identify any inconsistency between the VE’s testimony and the DOT job descriptions for the

positions identified. See DOT 739.687-182,6

 726.685-066, 205.367-014. Accordingly, the ALJ’s

decision should be upheld.

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Physicians’ Opinions

In general, more weight should be given to the opinion of a treating physician than to a

non-treating physician, and more weight to the opinion of an examining physician than to a nonexamining physician. Lester, 81 F.3d at 830. Where not contradicted by another physician, a

treating or examining physician’s opinion may be rejected only for “‘clear and convincing’”

reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where

contradicted, a treating or examining physician’s opinion may not be rejected without “‘specific

and legitimate reasons’ supported by substantial evidence in the record for so doing.” Id. at 830-

31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Where the opinion of the

treating physician is contradicted, and the non-treating physician’s opinion is based on independent

clinical findings that differ from those of the treating physician, the opinion of the non-treating

physician may itself constitute substantial evidence. See Andrews v. Shalala, 53 F.3d 1035, 1041

(9th Cir. 1995). It is the sole province of the ALJ to resolve this conflict. Id.

A. Dr. Roter’s and Dr. Wilson’s Standing and Walking Assessments

Plaintiff alleges that the ALJ erred by not giving legally sufficient reasons for rejecting the

opinions of treating physician Dr. Brad Roter and examining physician Dr. Clyde Wilson that

plaintiff could not do the standing and walking required by sedentary work. The ALJ found that

“claimant’s exertional limitations do not allow him to perform the full range of sedentary work[.]”

(AR 25) However, the ALJ found plaintiff’s RFC to be the following: “lift and carry 20 pounds

occasionally; lift and carry 10 pounds frequently; stand and/or walk at least 2 hours in 8-hour

workday; sit about 6 hours in an 8-hour workday; push and/or pull without limitation; climb ramps

and stairs occasionally; and balance occasionally.” (AR 25 (emphasis added)) “The full range of

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sedentary work requires that an individual be able to stand and walk for a total of approximately

2 hours during an 8-hour workday.” SSR 96-9p.

Plaintiff’s argument fails with respect to Dr. Roter. Dr. Roter wrote on his June and

November 2004 opinions that plaintiff’s “overall work level” was “sedentary work.” (AR 156,

163) He wrote this just above the following definition for sedentary work: “the ability to lift 10

pounds maximum and frequently lift and/or carry such articles as files and small tools. A sedentary

job may require sitting, walking and standing for brief periods.” (AR 156, 163) This portion of

the opinions is consistent with the ALJ’s findings. In fact, the ALJ stated that he concurred with

Dr. Roter’s conclusions and afforded them great weight. (AR 22)

However, plaintiff emphasizes a different section of Dr. Roter’s opinions, where Dr. Roter

indicated that plaintiff’s knee condition was “severe” and lists standing, walking, and lifting as

“affected work activities.” (AR 156, 163) Just above this section, “severe” is defined as

“[i]nability to perform one or more basic work-related activities[.]” (AR 156, 163) Plaintiff

interprets this section as indicating that he was unable to stand, walk, or lift, thus rendering Dr.

Roter’s opinions inconsistent with the ALJ’s findings concerning plaintiff’s RFC. (Dkt. 10 at 14)

The ALJ’s decision will not be overturned unless there is no rational interpretation of the

evidence that supports the ALJ’s decision. Thomas, 278 F.3d at 954. Here, it would be rational

for the ALJ to interpret Dr. Roter’s opinions as indicating that plaintiff was capable of sedentary

work, as that is what Dr. Roter explicitly wrote, while regarding the other notations as indicating

that plaintiff’s knee condition affects plaintiff’s ability to walk, stand and lift, and is severe enough

to render plaintiff unable to perform some work-related activities. This is particularly reasonable

in light of the fact that there is no evidence that plaintiff is unable to stand or walk and there are

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 Plaintiff attacks as a post hoc rationalization the Commissioner’s alleged claim that the

ALJ properly rejected Dr. Roter’s opinion because it was internally inconsistent. However, the

Commissioner merely stated that, if plaintiff’s interpretation were true, Dr. Roter’s report would

be internally inconsistent.

8

 It should be noted that Dr. Wilson examined plaintiff again in January 2004 and clearly

indicated that plaintiff was capable of sedentary work, without mention of the standing and

walking limitations described in his July 2003 opinion. (AR 168)

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repeated references in the record to plaintiff walking. (AR 124, 137-38, 207) Thus, the ALJ’s

decision with respect to Dr. Roter’s June and November 2004 opinions should be upheld.7

The ALJ’s treatment of Dr. Wilson’s July 2003 opinion is a more difficult issue. In the

section where the physician is asked to check a box indicating the exertional level the person can

perform, Dr. Wilson put a bracket around the boxes for “sedentary work” and “severely limited,”

defined as “unable to lift at least 2 pounds or unable to stand and/or walk,” and checked “severely

limited.” (AR 177) Thus, it is ambiguous what exertional level Dr. Wilson selected. Immediately

following this section, Dr. Wilson wrote: “Standing/walking limited to 5 minutes every 2 hours.

May not drive as part of job duties. No stairs.”8

 (Id.) Dr. Wilson is not mentioned anywhere in

the ALJ’s opinion. While Dr. Wilson’s opinion is contradicted by other physicians’ opinions,

plaintiff correctly argues that this is error because an ALJ may only reject a contradicted examining

physician’s opinion if he gives specific, legitimate reasons supported by substantial evidence. See

Lester, 81 F.3d at 830-31.

The Commissioner appears to argue that the ALJ did not need to consider Dr. Wilson’s

reports because they were inauthentic and unsupported. However, his argument is an improper

post hoc rationalization. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The

Commissioner also argues that an ALJ does not need to accept a treating physician’s opinion that

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 While the Stout court applied harmless error in the context of disregarded lay testimony,

it recognized that harmless error was not limited to that area, as it relied on Ninth Circuit cases

finding harmless error with respect to credibility determinations, findings regarding a claimant’s

age, applications of medical-vocational tables, among others. See Stout, 454 F.3d at 1054-55.

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is conclusory, brief, and unsupported by clinical findings. See Tonapetyan v. Halter, 242 F.3d

1144, 1149 (9th Cir. 2001). While this is true, the ALJ in the instant case gave no reason for

rejecting Dr. Wilson’s opinion, and thus this argument is also an improper post hoc rationalization.

See Connett, 340 F.3d at 874. Finally, the Commissioner argues that the failure to explicitly

discuss Dr. Wilson’s opinion was harmless error. See Burch, 400 F.3d at 679 (“A decision of the

ALJ will not be reversed for errors that are harmless.”)

 The Ninth Circuit recently addressed at length its treatment of harmless error in Stout v.

Commissioner, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006). After reviewing Ninth Circuit

law on harmless error in the social security context, the Stout court noted two common threads

in cases where an ALJ’s error was held harmless. First, it noted that the ALJ’s error in each case

“was inconsequential to the ultimate nondisability determination.” Id. at 1055. Second, it stated

that the Ninth Circuit had never found an ALJ’s “silent disregard of lay testimony about how an

impairment limits a claimant’s ability to work,” which was the error at issue, to be harmless. Id.

at 1055-56. As a result, the court held: “[W]here the ALJ’s error lies in a failure to properly

discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the

error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the

testimony, could have reached a different disability determination.”9

 Id. at 1056. The court then

explained why the ALJ’s error was not harmless. One reason of particular significance to the

instant case was:

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[W]e cannot say the ALJ’s error here was nonprejudicial to [claimant]. Based on his

RFC determination and the VE’s response to a hypothetical–which both failed to

account for lay testimony about how [claimant’s] impairments negatively affect his

ability to work–the ALJ found [claimant] could return to his previous work and was,

therefore, not disabled.

Id. at 1056 (emphasis added).

While the Ninth Circuit has not directly addressed harmless error with respect to the

improper handling of a physician’s opinion, other circuits have. The Sixth Circuit has held that

an ALJ’s failure to explicitly consider a treating physician’s opinion was harmless error because

the hypothetical posed to the VE by the ALJ included the limitations found by the physician. See

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001). Similarly, the Seventh Circuit

has held that an ALJ’s improper rejection of a treating physician’s opinion is not reversible error

if the ALJ included that physician’s limitations in his hypothetical to the VE. See Shramek v.

Apfel, 226 F.3d 809, 814-15 (7th Cir. 2000).

At the hearing in the instant case, the ALJ concluded his hypothetical to the VE by asking:

“So can you identify any sedentary work like that that would be unskilled and permit the individual

to sit or stand at will?” (AR 225) This question accommodated Dr. Wilson’s opinion that plaintiff

could stand and walk for only five minutes every two hours. The VE responded by identifying the

three positions relied upon by the ALJ at step five to determine that plaintiff was not disabled.

(AR 24, 225-26) The ALJ later asked the VE with respect to one of the positions: “And this can

be done efficiently either from a standing or sitting position?” (AR 225) The VE responded

affirmatively. (AR 226) Thus, while the ALJ failed to address Dr. Wilson’s opinion, this omission

was harmless, as the positions the ALJ relied upon at step five were consistent with the limitations

found by Dr. Wilson. Accordingly, the ALJ’s decision should be upheld with respect to Dr.

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Wilson’s July 2003 opinion.

B. Dr. Roter’s July 2005 Declaration

After the ALJ’s partially favorable decision on May 27, 2005, plaintiff submitted a

declaration by Dr. Roter dated July 13, 2005 to the Appeals Council in support of plaintiff’s

appeal. (AR 184-92) Dr. Roter’s declaration stated that it would be reasonable to find that

plaintiff’s limitations have prevented him from engaging in full time sedentary work since January

2002. (AR 188) The Appeals Council rejected the declaration because Dr. Roter did not examine

plaintiff until February 2004 and the July 2005 declaration conflicts with his statements in June and

November 2004 that plaintiff could do sedentary work, and because Dr. Roter’s comments that

plaintiff needed to elevate his legs appeared inconsistent with Dr. Roter’s previous reports and

reports by other physicians that plaintiff could not extend or straighten his right knee. (AR 7)

As an initial matter, the Commissioner argues that this Court may not remand for further

administrative proceedings due to new evidence because the requirements of “sentence six” of 42

U.S.C. § 405(g) are not met. Under sentence six, a court “may at any time order additional

evidence to be taken before the Commissioner of Social Security, but only upon a showing that

there is new evidence which is material and that there is good cause for the failure to incorporate

such evidence into the record in a prior proceeding[.]” 42 U.S.C. § 405(g). However, the cases

the Commissioner cites in support of her claim that Dr. Roter’s July 2005 declaration may only

be reviewed under sentence six are inapposite. See Mayes v. Massanari, 276 F.3d 453, 461 n.3

(9th Cir. 2001) (declining to decide whether good cause is required for submission of new

evidence because claimant conceded that good cause was required); Key v. Heckler, 754 F.2d

1545, 1551 (9th Cir. 1985) (applying sentence six where claimant submitted new evidence to the

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Ninth Circuit); Burton v. Heckler 724 F.2d 1415, 1416-18 (9th Cir. 1984) (applying sentence six

and remanding for further consideration of new evidence submitted to the Appeals Council as well

as additional new evidence submitted to the district court). In none of these cases did the Ninth

Circuit hold that new evidence submitted to the Appeals Council must meet the requirements of

sentence six to be reviewed by the District Court.

While the Ninth Circuit has not directly addressed the issue, it appears appropriate for this

Court to review evidence submitted to the Appeals Council under “sentence four” of § 405(g),

which states that “[t]he court shall have power to enter, upon the pleadings and transcript of the

record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social

Security, with or without remanding the cause for a rehearing,” rather than sentence six. See

Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (“We properly may consider the additional

materials because the Appeals Council addressed them in the context of denying Appellant's

request for review.”; remanding for further consideration of the evidence, including that submitted

to the Appeals Council, without mention of whether such evidence must be new, material, or

previously omitted for good cause); Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993)

(“Although the ALJ’s decision became the Secretary’s final ruling when the Appeals Council

declined to review it, the government does not contend that the Appeals Council should not have

considered the additional report submitted after the hearing, or that we should not consider it on

appeal. Moreover, although the Appeals Council ‘declined to review’ the decision of the ALJ, it

reached this ruling after considering the case on the merits; examining the entire record, including

the additional material; and concluding that the ALJ's decision was proper and that the additional

material failed to ‘provide a basis for changing the hearing decision.’ For these reasons, we

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consider on appeal both the ALJ's decision and the additional material submitted to the Appeals

Council.”). Given the absence of any discussion or consideration of good cause or materiality,

both Ramirez and Harman can be read to implicitly allow for consideration of Appeals Council

evidence pursuant to sentence four. Accordingly, this Court shall consider Dr. Roter’s July 2005

declaration.

The Commissioner then appears to argue that the Appeals Council’s decision to reject Dr.

Roter’s July 2005 declaration is supported by substantial evidence. (Dkt. 12 at 10-12) As

indicated above, the Appeals Council noted: “Dr. Roter did not examine [plaintiff] until February

2004 and this opinion conflicts with his statements in June and November 2004 that [plaintiff]

could do sedentary work.” (AR 7) The Commissioner appears to argue that retrospective

opinions based on the notes of another physician are entitled to less weight. (Dkt. 12 at 10)

Plaintiff correctly points out that Dr. Roter examined him during the relevant time period (January

15, 2002 to December 31, 2004), and that retrospective opinions are neither improper, nor

irrelevant, see Smith v. Bowen, 849 F.2d 1222, 1225-26 (9th Cir. 1988). However, Dr. Roter’s

July 2005 declaration is inconsistent with his prior opinions. As stated above, in June and

November 2004, Dr. Roter completed opinion forms indicating that plaintiff was capable of

sedentary work. (AR 156, 163) In his July 2005 declaration, Dr. Roter was asked: “Since January

15, 2002, do you believe that Mr. Welch was capable of sedentary work, which involves standing

or walking two out of eight hours, sitting up six out of eight hours, and lifting up to 10 pounds

during one-third of the day?” (AR 188) Dr. Roter answered negatively. (AR 188) Plaintiff

argues that the opinions are consistent because Dr. Roter never explicitly stated in the June and

November 2004 opinions how long plaintiff could sit. Yet, the June and November 2004 opinions

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indicated that Dr. Roter believed plaintiff was capable of sedentary work, which necessarily

implied how long plaintiff could sit. (See AR 156, 163)

Additionally, Dr. Roter checked boxes on the June and November 2004 opinion forms

indicating plaintiff had restricted mobility, agility, or flexibility in the following areas: balancing,

bending, climbing, crouching, kneeling, pulling, pushing, and stooping. (AR 156, 163) Dr. Roter

did not check the boxes for handling, reaching, or sitting (AR 156, 163), thus indicating Dr. Roter

believed plaintiff could sit without limitation. However, in his July 2005 declaration, Dr. Roter

was asked: “[Plaintiff] also reports that he cannot sit for more than an hour at a time due to his

knee pain causing him to have to elevate his legs tow [sic] waist height for 30 minutes at a time.

Is that reasonable?” (AR 186) Dr. Roter responded affirmatively. (AR 186) The July 2005

declaration is, thus, also inconsistent with the June and November opinions regarding plaintiff’s

ability to sit.

The Appeals Council also stated: “Dr. Roter’s comments that you need to elevate your legs

with the knees extended also appears inconsistent with his previous reports and those by other

physicians that you could not extend or straighten your knee.” (AR 7) Plaintiff does not challenge

the Appeals Council’s statement that plaintiff could not extend or straighten his knee. Rather,

plaintiff takes issue with the Appeals Council and Commissioner’s alleged claim that “a person

cannot elevate a leg if the person cannot extend or straighten that extremity.” (Dkt. 13 at 6)

The Appeals Council and Commissioner make no such claim. Instead, they point out that

Dr. Roter’s statement in his July 2005 declaration that plaintiff needed to relieve the swelling in

his knee after sitting for thirty minutes “by elevating his legs and extending the knees,” (AR 186),

is inconsistent with Dr. Ho’s February 2003 examination report, which states: “The claimant is

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unable to straighten his right knee” (AR 139). In addition, no other physician report, including

Dr. Roter’s earlier reports, indicated that plaintiff needed to elevate or extend his left leg or knee.

Also, as mentioned above, Dr. Roter had previously indicated that plaintiff could sit without

limitation. (AR 156, 163) Accordingly, Dr. Roter’s July 2005 declaration is inconsistent with

prior medical evidence concerning plaintiff’s ability and need to elevate and extend his knee.

Given the above inconsistencies, plaintiff fails to demonstrate that the Appeals Council erred in

finding that Dr. Roter’s July 2005 declaration did not provide a sufficient basis for changing the

ALJ’s decision.

CONCLUSION

For the reasons described above, this matter should be AFFIRMED. A proposed order

accompanies this Report and Recommendation.

DATED this 1st day of September, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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