IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BOYD C. STONE, 

Plaintiff, Civ. No. 6:14-CV-01007-CL 

V. 

COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION, 

Defendant. 

MARK D. CLARKE, Magistrate Judge. 

ORDER 

Plaintiff Boyd C. Stone ("Plaintiff') seeks judicial review of the final decision of the 

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

for disability insurance benefits under Title II and supplemental security income under Title XVI 

of the Social Security Act. The Commissioner concedes error and moves this Court to reverse its 

decision and remand for further proceedings. Plaintiff seeks a remand for immediate payment of 

benefits. Because no purpose would be served by further proceeqings, the decision is remanded 

for an immediate award of benefits. 

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BACKGROUND 

Plaintiff was born in 1953. Tr. 108. He is a high school graduate who attended 

community college for two years. Tr. 58. Plaintiff has prior work experience as a truck driver 

and security guard. Tr. 83-84. While employed as a commercial truck driver, Plaintiff had a 

mishap with a jack that injured his left shoulder. Tr. 323-24. 

Plaintiff filed for benefits on April 24, 2012. Tr. 11. He alleged disability since October 

12, 2009 due to his left shoulder injury, high blood pressure, diabetes, and high cholesterol. Tr. 

11, 96. The Commissioner denied Plaintiffs application initially and upon reconsideration. Tr. 

11. At Plaintiffs request, a hearing was held before an Administrative Law Judge ("ALJ") on 

October 28, 2013. Tr. 11. Plaintiff appeared and testified. Tr. 11. He was represented by counsel. 

Tr. 11. On November 22, 2013, 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 

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

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

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

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

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

impairment, the analysis ends. 20 C.P.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.P.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.P.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.P.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.P.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.P.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. Id. 

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

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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. !d. at 953-54. At step five, the 

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

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

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

1999); see also 20 C.P.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.P.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 P.3d at 953-54; Tackett, 180 P.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 his alleged onset date of October 12, 2009. Tr. 13. 

At step two, the ALJ found Plaintiff has the following severe impairments: "left biceps tendon 

tear and rotator cuff tear of the left shoulder." Tr. 13. At step three, the ALJ found Plaintiff did 

not have an impairment or combination of impairments that met or medically equaled any listed 

impairments. Tr. 14. Next, the ALJ assessed Plaintiff's residual functional capacity ("RFC"). She 

determined Plaintiff could perform less than the full range of light work as defined in 20 C.P.R. 

404.1567(b) and 416.967(b). Tr. 14. The ALJ specified that Plaintiff"is able to lift and/or carry 

up to 20 pounds occasionally and 10 pounds frequently with the right upper extremity" 

but "is limited to lifting five pounds with the left upper extremity." Tr. 14-15. Plaintiff can stand 

and/or walk for a total of about six hours and sit for about six hours in an eight-hour workday 

with normal breaks. Tr. 15. He can frequently climb ramps and stairs but can never climb 

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ladders, ropes, or scaffolds. Tr. 15. Plaintiff"should not engage in any overhead reaching and no 

more than occasional reaching in other directions with his non-dominant left upper extremity." 

Tr. 15. Moreover, he should "avoid concentrated exposure to operational control of moving 

machinery, hazardous machinery, and unprotected heights." Tr. 15. At step four, the ALJ found 

Plaintiff was capable of performing his past relevant work as a security guard. Tr. 17. Therefore, 

she concluded Plaintiff was not disabled, as defined by the Social Security Act, from his alleged 

onset date through the date ofthe decision. Tr. 18. 

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, 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 is 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. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 

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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. 

DISCUSSION 

The Commissioner concedes that the ALJ erred in her evaluation of a treating surgeon's 

opinion and that remand is appropriate. The only issue before this Court is what kind of remand 

is appropriate. Under the Social Security Act, "courts are empowered to affirm, modify, or 

reverse a decision by the Commissioner 'with or without remanding the cause for a rehearing."' 

Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014) (emphasis in original) (quoting 42 U.S.C. 

§ 405(g)). The decision whether to remand for further proceedings or for immediate payment of 

benefits is within the discretion ofthe Court. Treichler v. Comm'r, 775 F.3d 1090, 1099-1100 

(9th Cir. 2014). The issue turns on the utility of further proceedings. A remand for an award of 

benefits is appropriate when no useful purpose would be served by further administrative 

proceedings or when the record has been fully developed and the evidence is insufficient to 

support the Commissioner's decision. !d. at 1100-01. The Court may not award benefits 

punitively, and must conduct a "credit-as-true" analysis to determine if a claimant is disabled 

under the Act. Strauss v. Comm 'r, 635 F.3d 1135, 1138 (9th Cir. 2011). 

Under the "credit-as-true" doctrine, evidence should be credited and an immediate award 

of benefits directed where: (1) tl}e ALJ has failed to provide legally sufficient reasons for 

rejecting such evidence; (2) there are no outstanding issues that must be resolved before a 

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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. !d. The second and third 

prongs of the test often merge into a single question: Whether the ALJ would have to award 

benefits if the case were remanded for further proceedings. Harman v. Apfel, 211 F.3d 1172, 

11 78 n. 7 (9th Cir. 2000). Even if the requirements are met, the Court retains flexibility in 

determining the appropriate remedy. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). The 

reviewing court may decline to credit testimony when "outstanding issues" remain or where "the 

record as a whole creates serious doubt as to whether the claimant is, in fact, disabled." !d.; Luna 

v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 

There is no dispute that the ALJ erred by failing to address a treating orthopedic 

surgeon's opinion that Plaintiff is limited to "very sedentary work." Tr. 301-02. When the 

erroneously discounted medical opinion is credited and incorporated into Plaintiffs RFC, the 

Court finds no outstanding issues that must be resolved before a disability determination can be 

made. The Vocational Expert ("VE") testified that none of Plaintiffs' prior positions were 

sedentary. Tr. 83-84. Thus, a limitation to sedentary work precludes Plaintiff from performing 

his past relevant work and necessitates step five analysis. At step five, Plaintiff contends he 

should be found disabled under Medical-Vocational Rule 201.06 (20 CFR § 404, Subpt. P, App. 

2, Table 1 ). The Rule directs a finding of "disabled" for individuals who: (1) are of "advanced" 

age; (2) have a high school education or more, but do not have skills that provide for direct entry 

into skilled work; and (3) who previously performed skilled or semiskilled work but whose skills 

are not transferrable. The Commissioner does not dispute that, at all relevant times, Plaintiff has 

been of "advanced age" for Social Security purposes. 20 CFR § 404.1563(e). As the VE's 

testimony reveals, none of the skills Plaintiff acquired in his past work are directly transferrable 

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to sedentary work. Tr. 84. Accordingly, Medical-Vocational Rule 201.06 directs a finding that 

Plaintiff is disabled. 

The Commissioner asks the Court to use its discretion to remand for further proceedings. 

It asserts that an ALJ must resolve inconsistencies between the treating surgeon's opinions and 

those of reviewing medical consultants. Specifically, while the treating provider concluded 

Plaintiff was incapable of "lifting away from his body or above waist height," non-examining 

providers opined Plaintiff could reach overhead minimally and laterally occasionally. Tr. 104-05, 

131. Further proceedings are not necessary to address these contradictory conclusions. "The 

opinion of a non-examining medical advisor cannot by itself constitute substantial evidence that 

justifies the rejection of the opinion of a treating physician." Morgan v. Comm 'r, 169 F.3d 595, 

602 (9th Cir. 1999) (emphasis added). Without more, the treating surgeon's opinion is due 

controlling weight. This is because she had a greater opportunity to know and observe Plaintiff 

than those who merely reviewed his medical records. Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th 

Cir. 1993). 

The Commissioner also argues further proceedings are necessary because "the record as a 

whole creates serious doubt that [Plaintiff] is, in fact, disabled." Garrisa·n, 759 F.3d at 1021. In 

support of this statement, the Commissioner cites to evidence that Plaintiff (1) engaged in a wide 

range of daily activities and (2) expressed a desire to work in a "TSA type job[]" in Alaska or 

build a Christian retreat in Eastern Oregon. Tr. 259-60, 332. However, Plaintiffs daily activities 

are not obviously inconsistent with his alleged limitations. Nor are his aspirations indicative of 

I I I 

I I I 

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actual ability. This evidence does not cast serious doubt on Plaintiffs entitlement to benefits. 

Therefore, no purpose would be served by further consideration of it. 

ORDER 

Based on the foregoing, the Commissioner's decision is REVERSED and REMANDED 

pursuant to 42 U.S.C. § 405(g) for an immediate award of benefits. 

DATED this 

MARK D. CLARKE 

United States Magistrate Judge 

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