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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PETER JASPER SCHULTE,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner,

Social Security Administration,

Defendant. ____________________________________

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Case No. C06-436-MJP-JPD

REPORT AND RECOMMENDATION

Plaintiff Peter Jasper Schulte appeals the final decision of the Commissioner of the

Social Security Administration (“Commissioner”), which denied plaintiff’s application for

Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C.

§ 1382(a), after a hearing before an Administrative Law Judge (“ALJ”). For the reasons set

forth below, the Court recommends that the Commissioner’s decision be REVERSED and

REMANDED for further proceedings consistent with the Court’s instructions.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff is a fifty-six year old divorced man with a high school education and an

unspecified amount of college credits towards a bachelor’s degree in computer science. 

Administrative Record (“AR”) at 68, 183. He has previously worked as a software developer,

lumberyard worker, community college tutor and teaching assistant, tile-setter, finish

carpenter, and a banquet server. AR at 112, 129. Plaintiff was last gainfully employed in

2002. AR at 104. He currently receives public assistant benefits. AR at 49. 

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On February 3, 1995, plaintiff was convicted of first degree child molestation, a crime

for which he spent eighty-nine months in prison. AR at 60-65. He was released on December

28, 2001, but later returned to prison in March and September through November, 2002, after

violating the conditions of his release. AR at 105-07, 219. Plaintiff is classified as a Level 3

Sex Offender, is unable to take jobs involving direct or indirect contact with vulnerable

populations or in a medical setting, and must inform any potential employment supervisors of

his sex offender status. AR at 80-81, 225-30, 257. 

Plaintiff has a past history of drug and alcohol abuse, but has participated in

rehabilitation programs and asserts that he no longer has a substance abuse problem. AR at

257-58, 433. Plaintiff lives alone and infrequently leaves his apartment. AR at 437, 439-41. 

Upon release from prison, plaintiff was placed into a community supervision program. AR at

225-30. Per the terms of this supervision, plaintiff must avoid locations where minors might

congregate, keep a masturbation log, dictate into a hand-held recorder his physical

whereabouts, and detail any sexual fantasies or impulses he experiences during a time certain. 

AR at 225-30, 257; see also AR at 78, 80-81 (sentencing court’s summary of community

placement requirements). Among other restrictions, he cannot drive unless accompanied by

an informed companion, and may use public transportation unless it becomes crowded with

children, upon which time he must promptly exit. AR at 257. Since March 2003, plaintiff has

attended a weekly mental health treatment program at Seattle Mental Health Center. AR at

433. 

On April 25, 2003, plaintiff applied for Title XVI benefits alleging an onset date of

December 1, 2002. AR at 47-50. He initially alleged the following impairments: pedophilia,

narcissistic personality disorder, obsessive compulsive disorder, and extreme anxiety. AR at

111. Plaintiff asserts that his mental impairments have kept him from obtaining and

maintaining employment of any kind. AR at 439-41. 

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The Commissioner denied plaintiff’s claim initially and on reconsideration. AR at 24-

26, 29-31. On August 2, 2005, a disability hearing was held before the ALJ, who concluded

that plaintiff was not disabled and denied benefits based on her finding that plaintiff could

perform both his past relevant work and work existing in significant numbers in the national

economy. AR at 7. Plaintiff’s administrative appeal of the ALJ’s decision was denied by the

SSA Appeals Council, AR at 6-8, making the ALJ’s November 8, 2005, ruling the “final

decision” of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On April 6,

2006, plaintiff timely filed the present action challenging the Commissioner’s decision. Dkt.

No. 1. 

II. JURISDICTION

Jurisdiction to review the Commissioner’s decision exists pursuant to 42 U.S.C. §§

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

III. STANDARD OF REVIEW

This Court, pursuant to 42 U.S.C. § 405(g), 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. Bayliss v. Barnhart, 427 F.3d 1211, 1214

(9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). “Substantial

evidence” is more than a scintilla, less than a preponderance, and is such relevant evidence that

a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales,

402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The

ALJ is responsible for determining credibility, settling conflicts in medical testimony, and

resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

Cir. 1995). While the Court is required to examine the record meticulously as a whole, it may

neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas

v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more

than one rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id.

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As to specific remedies, this Court has discretion to remand for further proceedings or

to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). Remand is

appropriate where additional proceedings would remedy defects in the ALJ’s decision,

Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989), and where the Commissioner is in a

better position to evaluate the evidence. Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.

1990). An award of benefits is preferred 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). 

IV. EVALUATING DISABILITY

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

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

Cir. 1999) (internal citations omitted). The Act defines disability as the “inability to engage in

any substantial gainful activity” due to a physical or mental impairment which has lasted, or is

expected to last, for a continuous period of at least twelve months. 42 U.S.C. §§

423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). A claimant is disabled

under the Act 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. 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 Commissioner has established a five-step sequential evaluation process for

determining whether a person is disabled within the meaning of the Act. See 20 C.F.R. §§

404.1520, 416.920. The claimant bears the burden of proof for steps one to four. At step

five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled or not

disabled at any step in the sequence, the inquiry ends without need to consider subsequent

steps. 

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1

 Substantial gainful activity is work activity that is both substantial, i.e., involves

significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R.

§ 404.1572.

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Step one determines whether the claimant is presently engaged in substantial gainful

activity. 20 C.F.R. §§ 404.1520(b), 416.920(b).1

 If he is, disability benefits are denied. If he

is not, 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 does

have 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), 416.920(d). A claimant whose impairment meets or equals a listing

for the 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). Here, the

Commissioner evaluates the physical and mental demands of the claimant’s past relevant work

to determine whether he can still perform that work. Id. If the claimant is able to perform his

past relevant work, he is not disabled; if the opposite is true, 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(f), 416.920(f). If the

Commissioner finds the claimant is unable to perform other work, the claimant is disabled and

benefits may be awarded. 

V. DECISION BELOW

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2

 Social Security Rulings do not have the force of law. Nevertheless, they “constitute

Social Security Administration interpretations of the statute it administers and of its own

regulations,” and are given deference “unless they are plainly erroneous or inconsistent with

the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989).

REPORT AND RECOMMENDATION

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In her decision of November 8, 2005, the ALJ found that although plaintiff satisfied

the first two disability steps, his severe impairments did not equal or exceed a listing at step

three. She further found that plaintiff could return to his former job as a finish carpenter, and

that, in the alternative, plaintiff retained an RFC capable of performing unskilled jobs at all

levels, with mental demands comprising of “the ability to manage simple instructions, tasks,

and usual work situations, and respond appropriately to co-workers, supervisors, and changes

in routine.” AR at 20 (citing SSR 85-15, 1985 WL 56857).2

 The ALJ further noted that such

jobs “ordinarily involve working with objects rather than data or people,” and thus would

likely not involve the general public or vulnerable populations. AR at 20. Because she

concluded that there were jobs in the economy that a person with plaintiff’s RFC could

perform, the ALJ found that the plaintiff was not disabled by application of MedicalVocational Rule 204.00. Specific findings included the following:

1. The claimant has not engaged in substantial gainful activity since the

alleged onset date [of disability].

2. The claimant has pedophilia; and anxiety disorder NOS; and a

personality disorder with narcissistic and antisocial features. These

impairments are severe, but do not meet or equal the criteria of any of

the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix No.

1.

3. The claimant’s statements concerning his impairments and limitations

are not entirely credible. 

4. The claimant retains the residual functional capacity to a residual

functional capacity without physical limitations. He is somewhat

limited at interaction with supervisors, but he is able to do so

sufficiently well to maintain employment.

5. The claimant’s past relevant work as a finish carpenter did not require

work functions precluded by his limitations, and the claimant’s

impairments do not prevent him from performing his past relevant

work.

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6. The claimant was born on May 29, 1949, and he has at least a high

school education.

7. If the claimant could not do his past relevant work, 20 C.F.R. §

416.969, and rule 204.00 of Appendix II would direct a conclusion that

he is not disabled.

8. Although claimant has additional non-exertional limitations, they do not

substantially erode the broad occupational base of unskilled work. His

medical and vocational factors coincide with the framework of rule

204.00 and he is capable of performing other work that exists in

substantial numbers. He is therefore not disabled on that ground as

well.

9. The claimant is not under a disability, as defined in the Social Security

Act.

AR at 24-25.

VI. ISSUES ON APPEAL

The plaintiff’s opening brief raises a number of complaints about the decision below. 

In response, the Commissioner concedes error as to step four, agreeing with the plaintiff that

the ALJ did not adequately develop the record to assess the physical and mental demands of

plaintiff’s past work as a finish carpenter when determining whether plaintiff could return to

that prior relevant work. Because this error is not harmless, the Court orders that it be

corrected on remand. This in turn necessitates a reassessment of plaintiff’s RFC. As a result,

three primary allegations of error remain contested:

1. Did the ALJ properly evaluate the medical evidence of record?

2. Did the ALJ err in her analysis of plaintiff’s credibility?

3. Did the ALJ err by failing to call a vocational expert at step five?

VII. DISCUSSION

A. The ALJ Erred in Her Evaluation of the Medical Evidence 

Plaintiff asserts that the ALJ failed to give proper weight to the opinions of the

Commissioner’s examining physician, Dr. Marcia Davenport Kent, and rejected her opinions

without a specific or legitimate basis. Dkt. No. 15 at 8-11. The Commissioner disagrees, and

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 The Diagnostic and Statistical Manual of Mental Disorders IV defines pedophilia

as a paraphilia—that is, a disorder causing “clinically significant distress or impairment in

social, occupational, or other important areas of functioning.” AMERICAN PSYCHIATRIC

ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 535 (Text. Rev., 4th

ed. 2000). 

REPORT AND RECOMMENDATION

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argues that the ALJ’s reasons for rejecting Dr. Kent’s conclusions were specifically outlined

and supported by substantial evidence—namely, Dr. Kent’s actual conclusions, plaintiff’s

admissions during mental health therapy, plaintiff’s 30-year employment history, and the

contrary opinions of state agency non-examining psychologists Kent Reade and Harry Nelson. 

See, e.g., Dkt. No. 17 at 8 (“The ALJ properly rejected Dr. Kent’s opinion that Plaintiff was

unable to work because of intrusive fantasies and deviant thoughts because it was inconsistent

with the record as a whole.”).

“[G]reater weight is accorded to the opinion of an examining physician than a

non-examining physician.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); see also

20 C.F.R. § 416.927(d)(1). However, under certain circumstances, an examining physician’s

opinion can be rejected, whether or not that opinion is contradicted. Magallanes, 881 F.2d at

751. If an ALJ rejects the opinion of a treating or examining physician, the ALJ must give

clear and convincing reasons for doing so if the opinion is not contradicted by other evidence,

and specific and legitimate reasons if it is. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.

1998). Such reasons must at all times be supported by substantial evidence. Id. 

Dr. Kent conducted a detailed evaluation of Mr. Schulte on June 30, 2003, which

included a review of eighteen treatment and court related documents. Dr. Kent diagnosed

plaintiff with pedophilia,3 voyuerism, poly-substance dependence in long term remission,

anxiety NOS, and cluster B traits including narcissistic and antisocial personality traits. AR at

260. While Dr. Kent noted that plaintiff “should be able to do repetitive tasks as well as

detailed and complex tasks with ease,” she found that plaintiff would “have significant

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difficulty interacting with the public and supervisors.” AR at 261. Dr. Kent further opined as

follows:

In the absence of sexual deviancy which puts him at risk to the community, he

may have significant job skills. However his risk for re-offense and constant

obsession with sexuality, masturbation, voyeurism, and pedophilia pose

significant barriers to functioning successfully in the work place.

. . . .

Mr. Schulte’s work day and work week will be interrupted by fantasies, sexual

deviancy, difficulty with honesty and communication with others. 

Id. (emphasis added).

The ALJ first rejected Dr. Kent’s conclusion that plaintiff would have significant

barriers to functioning in the workplace because, in the opinion of the ALJ, that conclusion

was limited to plaintiff’s “label as a sex offender and his probation restrictions, rather than the

limitations imposed by his impairments.” AR at 18. 

The ALJ erred. Dr. Kent did not limit her functional assessment opinions to plaintiff’s

sex offender label, stigma, or probation restrictions. To the extent this limitation was made by

the ALJ herself, it must be corrected upon remand, for an ALJ cannot substitute her own

opinion for that of a medical expert by disregarding or manipulating the evidence of record. 

Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). In fact, Dr. Kent did not base her

opinion solely on her diagnosis of the mental illness known as pedophilia. Rather, Dr. Kent’s

opinion states that plaintiff’s risk of re-offense “and constant obsession with sexuality,

masturbation, voyeurism, and pedophilia” presented significant barriers to functioning in the

workplace. AR at 261 (emphasis added). The fact that the same mental impairments which

might prevent plaintiff from maintaining employment may have also contributed to his

incarceration does not minimize those impairments for the purposes of determining disability

under the Act. Dr. Kent’s report links plaintiff’s mental impairments—later found to be severe

by the ALJ—to the resulting functional limitations quoted above. “[O]nly by . . . 

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 The Court is unsure from exactly where the ALJ extracted this information, because

she made no specific citation to the administrative record when doing so.

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mischaracterizing [Dr. Kent’s] statements can one create any apparent inconsistency” or

limitation in her diagnosis. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996).

The ALJ also rejected Dr. Kent’s functional limitations assessment by simply ignoring

the evidence of record. Specifically, although Dr. Kent found that claimant’s work would be

interrupted by his mental impairments, the ALJ rejected this finding, concluding that “there is

no evidence that the claimant’s fantasies and deviant sexual thoughts have ever interrupted his

work activities.” AR at 18. Again, the ALJ erred. The record shows that plaintiff has been

arrested in the past for committing a sex crime—child molestation—while at work. AR at

181-82 (Department of Corrections Records). 

Finally, the ALJ rejected Dr. Kent’s opinions based in part on the findings of Drs. Kent

Reade and Harry Nelson of the State Disability Determination Service. These state agency

psychologists concurred in Dr. Kent’s diagnoses of pedophilia, voyeurism, poly- substance

abuse in remission, and cluster B traits, although to a lesser extent. AR at 374-90. Drs.

Reade and Nelson found that plaintiff was moderately limited in his ability to respond to

supervisors, moderately limited in maintaining social functioning, and mildly limited in

maintaining concentration, persistence, or pace. AR at 375, 388. Nevertheless, the ALJ

rejected the application of a moderate limitation in social functioning by once again attributing

to himself or the state agency physicians the conclusion that “the assessment of a moderate

limitation in social functioning relates to [plaintiff’s] problems with sexually abusing children

and the inability to be exposed to children.” AR at 19.4 

This, too, constitutes error. First, the report of the state agency physicians, like that of

Dr. Kent, simply does not limit the “moderate” social functional limitation findings in both

criteria A and criteria B to criminal sexual abuse and the physical restrictions resulting

therefrom. That statement refers to Dr. Kent’s finding of “significant barriers to

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functioning . . . in the workplace”—a finding in which the state agency physicians did not

concur—and must be read in conjunction with Dr. Reade and Dr. Nelson’s RFC ultimate

determination that plaintiff was moderately limited in his “ability to accept instructions and

respond appropriately to criticism from supervisors.” AR at 375, 376. Second, even

assuming that Drs. Reade and Nelson did read Dr. Kent’s social functioning assessment as

limited to legal and not psychiatric consequences, the Court finds that such a determination

does not contain the specificity necessary to outweigh the opinions of Dr. Kent. A nonexamining physician’s nonspecific rejection of an examining physician’s opinions cannot later

become, absent other evidence, the “specific and legitimate” reasons of the ALJ. Cf. Reddick,

157 F.3d at 725 (“ALJ may not reject [contradicted] opinion [of examining physician] without

providing specific and legitimate reason supported by substantial evidence in the record.”); see

also Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006) (“The opinion of a

nonexamining physician cannot by itself constitute substantial evidence that justifies the

rejection of the opinion of . . . an examining physician.”) (internal quotation omitted). 

In sum, the ALJ’s reasons for rejecting Dr. Kent’s conclusions were neither specific

nor legitimate. Nor were such reasons supported by substantial evidence. Additional

arguments offered in defendant’s brief were not made by the ALJ, and thus will not be

addressed by this Court. Because the ALJ’s errors in this regard led to an adverse disability

finding, they were not harmless. On remand, the ALJ should credit and fully incorporate the

opinions of Dr. Kent when reviewing the medical opinions of record and reassessing the

plaintiff’s RFC. Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (“[B]ecause the

ALJ fail[ed] to provide adequate reasons for rejecting the opinion of [an] examining physician,

we credit that opinion as a matter of law.”) (first and third alterations added). Furthermore,

the ALJ should not attempt to contradict the functional limitation assessments of examining

and non-examining physicians by unsupported statements or medical evidence of his own. 

Lester v. Chater, 63 F.3d 1453, 1463-64 (9th Cir. 1995).

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B. The ALJ Should Re-evaluate the Plaintiff’s Subjective Symptom Testimony on

Remand

Plaintiff argues that the ALJ improperly discredited his subjective complaints and

found plaintiff not credible based on insufficient “general findings.” Dkt. No. 15 at 16-17.

Defendant argues that the ALJ properly found that plaintiff’s subjective allegations of

disability were not entirely credible based on plaintiff’s documented history of deceptive

behavior and manipulation during treatment, inconsistent testimony, and reported effectiveness

of medical treatment. 

Credibility determinations are particularly the province of the ALJ. Andrews, 53 F.3d

at 1043. Nevertheless, when an ALJ discredits a claimant’s subjective testimony, she must

articulate specific and adequate reasons for doing so. Greger v. Barnhart, 464 F.3d 968, 972

(9th Cir. 2006). The determination of whether to accept a claimant’s subjective symptom

testimony requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at

1281; SSR 96-7p. First, the ALJ must determine whether there is a medically-determinable

impairment that reasonably could be expected to cause the claimant’s symptoms. 20 C.F.R.

§§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82; SSR 96-7p. 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. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc).

Absent affirmative evidence that the claimant is malingering, the ALJ must provide “clear and

convincing” reasons for rejecting the claimant’s testimony. Smolen, 80 F.3d at 1284; Reddick,

157 F.3d at 722. 

When evaluating a claimant’s credibility, the ALJ “must specifically identify what

testimony is credible and what testimony undermines the claimant’s complaints.” Greger, 464

F.3d at 972 (internal quotation omitted). General findings are insufficient. Smolen, 80 F.3d at

1284; Reddick, 157 F.3d at 722. The ALJ may consider “ordinary techniques of credibility

evaluation” including the claimant’s reputation for truthfulness, inconsistencies in his

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testimony or between his testimony and conduct, his daily activities, work record, and

testimony from physicians and third parties concerning the nature, severity, and effect of the

symptoms of which claimant complains. Smolen, 80 F.3d at 1284. 

Here, there are no allegations that plaintiff was malingering, so the ALJ was required

to provide clear and convincing reasons for rejecting his testimony. Reddick, 157 F.3d at 722. 

The ALJ failed to meet her “clear and convincing” burden when she discredited the plaintiff’s

testimony and medical records regarding his impairments in social functioning because “he

[testified] that he occasionally attends church and visits neighbors or his landlord,” and is “able

to read, cook, exercise, and socialize.” AR at 18. The ALJ apparently found plaintiff’s

statements concerning his impairments “not entirely credible” because she believed that the

above-quoted activity was inconsistent with plaintiff’s alleged inability to maintain social

functioning, concentration, persistence or pace in a work environment. However, these

categories are not necessarily mutually exclusive. The fact that plaintiff can infrequently

attend church, cook meals once a week, grocery shop once a month, or engage in an

occasional conversation with his landlord does not mean he is capable of continuously and

consistently performing in a structured work environment. See 20 C.F.R. § 404, Subpt. P.,

App. 2, § 200.00(c) (defining RFC as “the maximum degree to which the individual retains

the capacity for sustained [work].”) (emphasis added). Such reasons offered by the ALJ are

insufficient for rejecting plaintiff’s testimony. On remand, the ALJ should be required to

evaluate plaintiff’s testimony properly, or provide clear and convincing reasons for rejecting it.

C. ALJ Erred by Failing to Call a Vocational Expert at Step Five

Plaintiff argues that the ALJ erred by failing to hear testimony from a Vocational

Expert (VE) at step five of the sequential evaluation process despite the presence of significant

non-exertional impairments. Dkt. No. 15 at 15-16; Dkt. No. 18 at 2-3. The Commissioner

responds that the ALJ was not required to call a VE and was permitted to rely on the

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framework of the Medical-Vocational Guidelines because she properly found plaintiff capable

of performing unskilled work. Dkt. No. 17 at 11-13.

When a clamaint has established he suffers from a severe impairment that prevents him

from performing any work he has done in the past, the claimant has made a prima facie

showing of disability. “At this point—step five—the burden shifts to the Commissioner 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 residual functional capacity, age,

education, and work experience.” Tackett, 180 F.3d at 1100 (citing 20 C.F.R. §

404.1560(b)(3)). Ordinarily, the Commissioner can meet this burden in one of two ways: (a)

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

Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2 (“Guidelines”).

The Guidelines are a matrix system used to determine whether substantial gainful work

exists for claimants with substantially uniform levels of impairment. Tackett, 180 F.3d at

1101. The Guidelines categorize work by exertional level (sedentary, light, or medium) and

contain various factors relevant to a claimant’s ability to find work, including age, education,

and work experience. When a claimant’s qualifications correspond to job requirements, the

Guidelines direct a conclusion of whether work exists that the claimant could perform, and if

such work exists, the claimant is considered not disabled.

Because the Guidelines categorize jobs by their physical exertion requirement, their use

is appropriate when it is established that a claimant suffers from exertional impairments. Thus,

when a plaintiff suffers from significant non-exertional impairments, resort to the Guidelines is

inappropriate, and the ALJ may not mechanically apply them to direct a finding of disability. 

See Widmark, 454 F.3d at 1069 (“[T]he ALJ may rely on the Guidelines alone ‘only when the

[Guidelines] accurately and completely describe the claimant’s abilities and limitations.’”)

(quoting Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985)); Bruton v. Massanari, 268 F.3d

824, 827 (9th Cir. 2001) (same). Instead, the ALJ must use the principles in the appropriate

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 The Commissioner may meet this step five burden by propounding to the VE a

hypothetical question that, at the very least, adequately reflects all the claimant’s impairments

and limitations supported by substantial evidence in the record. Magallanes, 881 F.2d at 756-

57. Using the VE, the ALJ must determine whether plaintiff is capable of his past relevant

work, and if not, whether his relevant work skills are transferable to other jobs. If such skills

are not transferable, the ALJ must then determine whether the plaintiff is capable of

performing any unskilled work. SSR 85-15.

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sections of the regulations to determine whether the claimant is disabled. Tackett, 180 F.3d at

1101-02; SSR 85-15, 1985 WL 56857, at *1. Furthermore, when an ALJ uses the Guidelines

as a framework to evaluate non-exertional limitations not specifically contemplated by the

Guidelines, she must call upon a VE. Tackett, 180 F.3d at 1102. In such a scenario, the ALJ

must provide the VE with an accurate and detailed description of the claimant’s impairments,

as reflected by the medical evidence of record. Id. at 1101.5

 

Here, the ALJ failed to call a VE at step five after finding plaintiff suffered from severe

non-exertional impairments at step two. AR at 16, 20. Instead, and without any assistance,

citation, or explanation, the ALJ concluded that plaintiff’s “non-exertional limitations . . . do

not substantially erode the occupational base of unskilled work.” AR at 21. Because

plaintiff’s severe impairments were purely non-exertional, the ALJ should have called a VE to

determine exactly what work plaintiff was capable of performing. Rather than doing so, it

appears that the ALJ summarily discounted the effects of plaintiff’s severe impairments and

instead used the Guidelines to make her own quasi-expert determination that plaintiff was not

disabled.

The ALJ’s failure to call a VE constitutes reversible error. Tackett, 180 F.3d at 1102. 

In light of the deficiencies associated with the ALJ’s decision at step five, the Court makes no

finding on the propriety of the ALJ’s conclusion that plaintiff’s non-exertional limitations

would not significantly erode the occupational base considered in section 204.00 of the

Medical-Vocational Guidelines. Although the Court is skeptical that a VE could find, in light

of the conclusions of Dr. Kent and the balance of medical evidence, that claimant’s

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impairments do not substantially erode the occupational base of unskilled work, enabling

performance of various types of work that exists in significant numbers in the national

economy, this determination lies first with the ALJ on remand. Thomas, 278 F.3d at 954.

On remand, the ALJ must require a VE to provide testimony concerning the full

vocational impact of all plaintiff’s impairments, including his difficulties maintaining

concentration, persistence or pace, his ability to respond to supervisors, and his ability to

maintain social functioning. The VE should also testify as to the availability of jobs in the

economy, if any, for which plaintiff is qualified. 

VIII. CONCLUSION

Because the ALJ erred in her evaluation of medical evidence, erred in her step four

analysis, erred by failing to hear testimony from a vocational expert at step five, and

improperly discredited plaintiff’s subjective symptom complaints, this case should be

REVERSED and REMANDED for further proceedings not inconsistent with this report and

recommendation. In particular, the ALJ should reevaluate the medical evidence, reassess

plaintiff’s credibility, apply the “special technique” for evaluating mental impairments under 20

C.F.R. § 416.920a, give proper weight to the opinions of Dr. Kent, and finally, hear testimony

from a VE concerning the full vocational impact of all plaintiff’s impairments based on, among

other things, a reassessment of plaintiff’s RFC. This testimony shall include answering a

hypothetical that takes into account all of plaintiff’s limitations found after considering this

additional evidence. With this information, the ALJ should then apply all appropriate steps of

the sequential evaluation process to determine whether plaintiff’s severe impairments render

him disabled for purposes of Title XVI of the Social Security Act, 42 U.S.C. § 1382(a). A

proposed order accompanies this report and recommendation. 

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DATED this 9th day of November, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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