IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KENNETH DOUGLAS DAHL 

Plaintiff, 

V. 

COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION, 

Defendant. 

MARK D. CLARKE, Magistrate Judge. 

Civ. No. 3:14-CV-00904-CL 

REPORT 

& RECOMMENDATION 

Plaintiff Kenneth Douglas Dahl ("Plaintiff') seeks judicial review of the final decision of 

the Commissioner of the Social Security Administration ("Commissioner") denying his 

application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 

This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). Because the Commissioner's 

decision is not based on proper legal standards, the decision should be remanded. 

BACKGROUND 

Plaintiff was born on September 14, 1950. Tr. 322. Plaintiff suffers from multiple 

impairments in addition to drug and alcohol addiction, including bipolar disorder, major 

depressive disorder, and severe antisocial personality disorder. Tr. 26, 29. Doctors also 

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diagnosed Plaintiff with a degenerative disease of the lumbar spine in 1994. Tr. 512. Plaintiff 

holds a high school degree and a certificate from a one-year culinary arts program, and has 

previous work experience as a cook and a painter. Tr. 56-57. 

On August 31, 2010, Plaintiff applied for SSI benefits due to bipolar disorder, major 

depression, degenerative disc disease, chronic back pain, and suicidal ideation. Tr. 65-66. The 

Commissioner denied Plaintiffs application initially and upon reconsideration. At Plaintiffs 

request, a hearing was held before an Administrative Law Judge ("ALJ") on November 9, 2012. 

Tr. 41. On November 29, 2012, the ALJ issued a decision finding Plaintiff not disabled. Tr. 18. 

The Appeals Council denied Plaintiffs request for review, rendering the ALJ's denial the 

Commissioner's final decision. Tr. 1. This appeal followed. 

DISABILITY ANALYSIS 

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity 

' by reason of any medically determinable physical or mental impairment which ... has lasted or 

can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. 

§ 423( d)(l )(A). "Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act." 

Keyser v. Comm 'r Soc. Sec. Admin., 648 F .3d 721, 724 (9th Cir. 2011 ). Each step is potentially 

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks 

the following series of questions: 

1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). /If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two. 

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2. Is the claimant's impairment "severe" under the Commissioner's 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless 

expected to result in death, an impairment is "severe" if it significantly 

limits the claimant's physical or mental ability to do basic work activities. 

20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted 

or must be expected to last for a continuous period of at least 12 months. 

20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe 

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 

416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more 

of the listed impairments, the analysis proceeds beyond step three. At that 

point, the ALJ must evaluate medical and other relevant evidence to assess 

and determine the claimant's "residual functional capacity" ("RFC"). This 

is an assessment of work-related activities that the claimant may still 

perform on a regular and continuing basis, despite any limitations imposed 

by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 

416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, 

the analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 

404.1560(c); 416.960(c). If the claimant cannot perform such work, he or 

she is disabled. !d. 

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). 

The claimant bears the burden of proof at steps one through four. !d. at 953. The 

Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the 

Commissioner must show that the claimant can perform other work that exists in. significant 

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,. 

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numbers in the national economy, "taking into consideration the claimant's residual functional 

capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 

1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national 

economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant 

is able to perform other work existing in significant numbers in the national economy, the 

claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099. 

THE ALJ'S FINDINGS 

The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had not 

engaged in substantial gainful activity since August 31, 201 0, the date Plaintiff filed his 

application. Tr. 23, 148. At step two, the ALJ found Plaintiff suffered from severe impairments: 

degenerative changes of the lumbar spine, mood disorder, antisocial personality disorder, heroin 

dependence, and alcohol and other drug dependence. Tr. 23. At step three, the ALJ found, 

considered singly and in combination, Plaintiffs impairments did not meet or medically equal 

any listed impairments. Tr. 23-24. 

Next, the ALJ assessed Plaintiffs residual functional capacity ("RFC"). Tr. 24-32. He 

determined that Plaintiff could perform medium work except around hazards and heights with 

the following limitations: no more than simple, repetitive tasks and no more than incidental 

contact with the public and coworkers. Tr. 24-25. At step four, the ALJ found Plaintiff is unable 

to perform his past relevant work as a cook or painter, but can transition into other jobs that exist 

in significant numbers in the national economy, including garment marker, stock checker, and 

packager. Tr. 32-34. Therefore, he concluded Plaintiff was not disabled, as defined by the Social 

Security Act. Tr. 33. 

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STANDARD OF REVIEW 

The reviewing court must affirm the Commissioner's decision if it is based on the proper 

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means 

"more than a mere scintilla, but less than a preponderance." Bray v. Comm 'r Soc. Sec. Admin, 

554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995)). It means "such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion." !d. 

Where the evidence 1s susceptible to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th 

Cir. 1982). Variable interpretations of the evidence are insignificant if the Commissioner's 

·interpretation is a rational reading of the record, and this court may not substitute its judgment 

for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, 

a reviewing court must consider the entire record as a whole and may not affirm simply by 

isolating a 'specific quantum of supporting evidence."' Orn v. Astrue, 495 F.3d 625, 630 (9th 

Cir. 2007) (quoting Robbins v. Comm 'r Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 

Even where findings are supported by substantial evidence, "the decision should be set 

aside if the proper legal standards were not applied in weighing the evidence and making the 

decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 

U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a 

judgment affirming, modifying, or reversing the decision of the Commissioner, with or without 

remanding the case for a rehearing. 

I I I 

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DISCUSSION 

Plaintiff argues the ALJ erred by: (1) improperly rejecting the opinion of examining 

psychologist Steven P. Barry, Ph.D.; (2) improperly discrediting the opinion of treating 

physician, Valerie Krause, M.D.; and (3) failing to find Plaintiffs obesity constituted a severe 

impairment that limits his RFC. 

I. The ALJ Improperly Discounted an Examining Psychologist's Opinion. 

Plaintiff argues that the ALJ improperly discredited an examining psychologist's 

testimony. On September 8, 2010, Steven P. Barry, Ph.D., evaluated Plaintiff. Tr. 310. Dr. 

Barry diagnosed Plaintiff with Bipolar II Disorder and an antisocial personality disorder, and 

calculated that his Global Assessment of Functioning score is between 4 7 and 50, indicating 

severe psychological symptoms. Tr. 321. Dr. Barry recognized Plaintiffs credibility issues, 

observing that Plaintiff "presents history and details in a manner which suits the moment." Id. 

Dr. Barry determined that Plaintiffs personality disorder is the "underlying drive" for his alcohol 

and drug problems. Id. Ultimately, Dr. Barry concluded that Plaintiff is disabled and not 

expected to improve. Id. 

The ALJ assigned little weight to Dr. Barry's testimony because of "overwhelming 

evidence of problems in the claimant's veracity." Tr. 29. The ALJ expressed concern that Dr. 

Barry reached his conclusion in spite of Plaintiffs inconsistent testimony about his drug and 

alcohol use, legal history, and hospitalizations as well as Plaintiffs "significant criminal 

history." Tr. 29. An ALJ may discredit an examining physician's opinion if it is largely based on 

uncritically accepted, incredible, and subjective claimant reports rather than objective medical 

findings. Cotton v. Astrue, 374 Fed. Appx. 769, 771 (9th Cir. 2010). Here, rather than premising 

his findings on Plaintiffs self-reports, Dr. Barry relied on independent clinical work to conclude 

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Plaintiff is disabled. This case is similar to Regennitter v. Comm 'r Soc. Sec. Admin., 166 F .3d 

1294 (9th Cir. 1999). There, the Ninth Circuit found the ALJ erred by faulting an examining 

psychologist for taking the claimant's statements at "face value." Id. at 1300. In light of the 

psychologist's clinical interview, mental status examination, and psychological testing, the court 

found the record supported the examining psychologist's opinion. I d. Here, Dr. Barry conducted 

a clinical interview, reviewed Plaintiffs files, and administered a Personality Assessment 

Inventory and Test of Memory Malingering. Tr. 310. Further, like in Regennitter, Barry's 

opinion is consistent with the record. A consultative examiner concluded that Dr. Barry's 

opinion deserves "great weight" and did not dispute Dr. Barry's opinion that Plaintiffs 

psychological disorders drive his drug and alcohol dependency. Tr. 69, 79, 80, 205. It does not 

appear that Dr. Barry uncritically accepted Plaintiffs self-representations or based his opinion 

largely on subjective complaints. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) 

(An ALJ properly discredited a treating physician's opinion that was based on "little independent 

analysis or diagnosis."). Accordingly, the ALJ erred in assigning little weight to Dr. Barry's 

opinion on that basis. The ALJ's error is not harmless because, if appropriately credited, Dr. 

Barry's opinion could impact the ALJ's ultimate disability determination. Molina v. Astrue, 674 

F.3d 1104, 1115 (9th Cir. 2012). 

II. The ALJ Improperly Discounted a Treating Physician's Opinion. 

Plaintiff argues the ALJ improperly discredited a treating physician's testimony. Valerie 

Krause, M.D., began treating Plaintiff in July 2011 and reviewed all his medical records since 

December 2008. Tr. 737. Based on her observations, she found that Plaintiff could not bend, 

reach overhead, twist, crouch, stoop, push, or pull. Tr. 736. In addition to warning Plaintiff that 

he could not carry more than ten pounds, Dr. Krause concluded Plaintiff must alternate between 

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sitting and standing every fifteen to twenty minutes and rest between four and six hours in an 

eight hour workday. Tr. 734-735. Dr. Krause suggested that Plaintiff would be unable to 

maintain a low stress job because muscular back pain, degenerative disc disease, and severe 

psychological disorders disrupt Plaintiffs attention and concentration for more than two-thirds 

ofthe day. Tr. 736-737. Dr. Krause expects Plaintiffs conditions to worsen with age. Tr. 737. 

The ALJ assigned no weight to Dr. Krause's testimony for four reasons. First, the ALJ 

concluded her assessment is "entirely inconsistent" with clinical evidence that shows the Plaintiff 

only has mild degenerative disc disease. Tr. 27. Second, the ALJ held that Dr. Krause's opinion 

"does not square with" evidence of Plaintiffs history of drug abuse. I d. Third, the ALJ found 

that inconsistent statements about Plaintiffs work history contradict Dr. Krause's conclusion. Id. 

Fourth, the ALJ asserted Dr. Krause's conclusion that Plaintiff should limit his upper body 

movement is unsupported. Id. 

Customarily, a treating physician's opinion is given controlling weight because she has a 

greater opportunity than most to know, observe, and cure the claimant. Ramirez v Shalala, 8 F.3d 

1449, 1453 (9th Cir. 1993). Generally, an ALJ must supply clear and convincing reasons for 

discrediting a treating physician's opinion. Orn, 495 F.3d at 632. Even if a treating physician's 

testimony is contradicted, the ALJ may not reject it "without providing 'specific and legitimate 

reasons' supported by substantial evidence in the record for so doing." Lester v. Chater, 81 F.3d 

821, 830 (9th Cir. 1995). An ALJ may also reject a physician's opinion that is brief, conclusory, 

or unsupported by clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

Here, Plaintiff and Defendant dispute whether Dr. Krause's opinion is contradicted and, 

therefore, whether the ALJ needs clear and convincing or specific and legitimate reasons for 

discrediting Dr. Krause's findings. Because reviewing courts must defer to the ALJ wherever 

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evidence is susceptible to two rational interpretations, this Court assumes arguendo that the ALJ 

must provide specific and legitimate reasons to discount Dr. Krause's opinion. Andrews, 53 F.3d 

at 1040. 

a. The ALJ erred in finding that a treating physician's opinion is inconsistent with 

mild degenerative disc disease. 

The ALJ erred by holding that Dr. Krause's testimony that Plaintiff suffers from a severe 

impairment is "entirely inconsistent with" objective medical evidence that Plaintiff only has 

"mild degenerative disc· disease." Tr. 27. An ALJ may discredit a treating physician's opinion 

that is inconsistent with the record as a whole. Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 

1190, 1195 (9th Cir. 2004). Here, the record contains multiple contradictory diagnoses regarding 

the severity of Plaintiffs degenerative disc disease. As the ALJ noted, imaging findings from 

2011 show mild degenerative disc disease. Tr. 552. However, a medical report from 1994 

indicates Plaintiff suffers from "moderate degenerate disc disease." Tr. 512. Moreover, 

radiology results from 2011 state Plaintiff has "advanced degenerative disk disease." Tr. 473. 

The Court cannot confidently conclude that the ALJ considered the record as a whole when he 

discredited Dr. Krause's opinion for being inconsistent with one imaging finding when other 

medical reports contradict that finding. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) 

(quoting Scott v. Astrue, 647 F.3d 734, 739-40 n.23 (7th Cir. 2011)) ("The ALJ was not 

permitted to 'cherry-pick' from those mixed results to support a denial of benefits"). 

Even if the ALJ is correct that Plaintiff suffers from only mild degenerative disc disease, 

it is unclear why the ALJ concludes this diagnosis cannot severely limit Plaintiff. Courts have 

found that mild degenerative disc disease can have disabling effects. Page v. Comm 'r Soc. Sec. 

Admin., 304 Fed. Appx. 520, 521 (9th Cir. 2008) (The ALJ erred in rejecting a physician's 

opinion as inconsistent with "mild clinical and examination findings" because the record 

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established the claimant's degenerative disc disease caused persistent pain); Brown v. Astrue, 

No. CIV. 11-953-AC, 2012 WL 3922696, at *8 (D. Or. Aug. 20, 2012), report and 

recommendation adopted, No. 3:11-CV-00953-AC, 2012 WL 3909290 (D. Or. Sept. 7, 2012) 

(The claimant's mild degenerative disc disease was consistent with disabling pain). In Kershner 

v. Massanari, 16 Fed. Appx. 606, 608 (9th Cir. 2001), the Ninth Circuit found that an ALJ 

committed reversible error when he asked whether minor degenerative disc disease could 

produce "the symptoms of extreme pain that the claimant alleges" rather than simply asking 

whether it could produce the type of pain alleged. The Court is concerned the ALJ erroneously 

concluded that mild degenerative disc disease can cause only mild functional limitations. 

b. The ALJ did not commit harmless error. 

An ALJ's error in reaching his conclusion is immaterial if he provided other legally 

sufficient reasons supporting that conclusion. Carmickle v. Comm 'r Soc. Sec. Admin., 533 F.3d 

1155, 1162 (9th Cir. 2008). Whether an error is harmless turns on the Court's confidence that 

the ALJ's decision to entitle no weight to Dr. Krause's opinion remains valid. !d. at 1163. It 

does not matter whether "the ALJ would necessarily reach the same result on remand." !d.. 

The ALJ provided four reasons to discredit Dr. Krause's testimony. The Court 

recommends rejecting one reason. Plaintiff does not challenge the ALJ's remaining three 

reasons. These reasons include Plaintiffs inconsistent statements about his drug use, Plaintiffs 

inconsistent statements about his work history, and Dr. Krause's unsupported conclusion that 

Plaintiff is unable to reach. Tr. 27. Because Plaintiff does not distinctly and specifically address 

the ALJ' s other reasons in his opening brief, the Court will not decide whether they are specific 

and legitimate. Carmickle, 533 F.3d. at 1161, n.2. Instead, the Court will review them to 

determine whether they could justify discrediting Dr. Krause's testimony in its entirety. 

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On balance, the Court is not confident that the ALJ' s unchallenged reasons support his 

decision. Plaintiffs dubious credibility does not undermine Dr. Krause's findings to the extent 

they are based on chart reviews and physical examinations. Petty v. Colvin, 20 F. Supp. 3d 770, 

775 (D. Or. 2014) (The ALJ improperly discredited an examining physician for relying on 

incredible claimant self-reports when the doctor conducted a chart review that supported 

claimant's disability); see Lester, 81 F.3d at 832 (The ALJ erred in dismissing the testimony of 

an examining psychologist because he did not arrive at "an independent conclusion" and instead 

relied on another examining psychologist). It is not clear to what degree Dr. Krause relied on 

subjective evidence. As such, the Court is unable to conclude Dr. Krause relied on Plaintiffs 

self-reports "to a large extent" to make all of her findings. Andrews, 53 F.3d, at 1043. Moreover, 

the ALJ's conclusion that one of Dr. Krause's findings is unsupported is insufficient to discredit 

her testimony in its entirety. See Boardman v. Astrue, 286 F. App'x 397, 399 (9th Cir. 2008) (An 

isolated doctor's finding that is unsupported by evidence "makes little difference" when deciding 

to accept or reject his testimony as a whole). Accordingly, the Court is not confident that the 

ALJ's~treatment of Dr. Krause's opinion is valid despite his error. The Court cannot call the 

error harmless. This is especially true given the relevance of Dr. Krause's opinion to Plaintiffs 

RFC. The ALJ' s erroneous treatment of the medical evidence could have impacted his ultimate 

disability determination. Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 

2014). 

III. There is No Evidence the ALJ Failed to Account for the Effects of Obesity. 

Plaintiff argues that the ALJ erred by failing to address whether obesity limits his RFC. 

Under the Social Security Rules, an ALJ must "do an individualized assessment of the impact of 

obesity on an individual's functioning" based on the information in the record. Titles II & XVI: 

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Evaluation of Obesity, SSR 02-lP, at *6 (S.S.A. Sept. 12, 2002); Burch, 400 F.3d at 682 (Social 

Security Rules caution ALJs from making assumptions about how claimants' obesity aggravate 

functional limitations). Obesity can affect an individual's physical and mental ability to sustain 

work activity by making it more difficult to sit, stand, walk, lift, carry, push, and pull. SSR 02-

lP, at *6. If the claimant's obesity diagnosis is ambiguous or unclear, the ALJ is responsible for 

clarifying the record. Id. at *4. However, the burden of proof remains on the Plaintiff to satisfy 

steps one through four of the sequential evaluation of disability and provide information 

regarding his abilities. Bray, 554 F.3d at 1222. 

One circuit decision suggests an ALJ's failure to conduct an individualized obesity 

assessment constitutes reversible error at steps three and four of the sequential evaluation 

process. Celaya v. Halter, 332 F.3d 1177, 1184 (9th Cir. 2003). The plaintiff in Celaya 

implicitly reported that her weight affected her RFC and the ALJ had a "special duty to fully and 

fairly develop the record and to assure that the claimant's interests are considered" because of 

the plaintiffs pro se status. I d. at 1182-1183. The present case is distinguishable from Celaya in 

two respects. First, Plaintiff offered evidence that his height and weight often qualify him as 

obese, but he failed to provide the ALJ with evidence of how his obesity interacts with his 

functional limitations. Tr. 51, 60, 702, 717, 725, 727. It would be unreasonable for the ALJ to 

conclude that Plaintiffs obesity aggravates his functional limitations absent substantial evidence 

in the record. See Orn, 495 F.3d at 630 (An ALJ makes a reversible error if he makes a finding 

unsupported by substantial evidence). Second, Plaintiff is represented by an attorney. Because 

the ALJ cannot be faulted for failing to consider evidence Plaintiff and Plaintiffs counsel never 

presented, Plaintiffs request for reversal on that basis should be denied. 

I I I 

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IV. It is Appropriate to Remand for Further Administrative Proceedings. 

Upon finding prejudicial errors, courts generally follow the ordinary remand rule to hold 

further agency proceedings to develop the record and determine whether the claimant is disabled. 

Treichler, 775 F.3d at 1099. Courts may also provide for the immediate award of benefits in the 

"rare case" when: 

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

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. 

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). The present case does not satisfy all 

three conditions to immediately award benefits. While this Court recommends that the ALJ 

improperly discredited physicians' testimony, outstanding issues remain for the ALJ to resolve. 

From the record, it is unclear whether Plaintiff is disabled. Therefore, it is appropriate to remand 

for further administrative proceedings. 

RECOMMENDATION 

For the foregoing reasons, the Commissioner's final decision should be REMANDED. 

In further proceedings, the ALJ should: 

1. Re-assess Dr. Barry's and Dr. Krause's testimony and either accept them as true, 

applying their contents forward into Plaintiffs RFC, or properly reject them. 

2. Make a determination concerning Plaintiffs disability application after 

conducting the analysis outlined above. 

This Report and Recommendation will be referred to a district judge. Objections, if any, 

are due no later than fourteen (14) days after the date this recommendation is filed. If objections 

are filed, any response is due within fourteen (14) days after the date the objections are filed. See 

FED. R. Crv. P. 72, 6. Parties are advised that the failure to file objections within the specified 

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time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 

(9th Cir. 1991). 

MARK D. CLARKE 

United States Magistrate Judge 

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