IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CHERYLL. REAVES, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

Defendant. 

Richard F. McGinty 

McGinty & Belcher, PC 

P.O. Box 12806 

Salem, Oregon 97309 

Attorney for plaintiff 

Billy J. Williams 

Janice E. Hebeit 

U.S. Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97204 

Franco L. Becia 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, Washington 98104 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case No. 6:14-cv-01154-AA 

OPINION AND ORDER 
AIKEN, Judge: 

Plaintiff Che1yl L. Reaves brings this action pursuant to the Social Security Act ("the Act"), 

42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner. The 

Commissioner denied plaintiffs application for Title XVI Supplemental Security Income ("SSI") 

disability benefits under the Act. For the reasons explained below, the decision is reversed and this 

case is remanded for further proceedings. 

BACKGROUND 

On April 20, 2011, plaintiff applied for SSI benefits, alleging disability beginning Janumy 

8, 2006. 1 Tr. 630. Plaintiffs claim was denied initially and on reconsideration, after which plaintiff 

filed a written request for a hearing. Tr. 539. Plaintiff appeared and testified at the hearing on June 

28, 2012. Tr. 539. The ALJ found plaintiff not disabled and capable ofperfonning both past work 

and other work existing in the national economy. Tr. 539, 548-50. The Appeals Council denied 

plaintiffs request for review, rendering the ALJ's findings the final agency decision. Tr. 528. 

Plaintiff filed this appeal on October 5, 2015. 

Born on December 14, 1961, plaintiff was forty-four years on the alleged disability onset date 

and fifty years old at the time of the hearing. Tr. 630, 1063. Plaintiff completed the tenth grade. Tr. 

1066. Her previous jobs include service station attendant, fast food worker, cabinet maker, and care 

1 The administrative law judge ("ALJ") incorrectly stated in his decision that the 

application date was April 4, 2011, and the alleged disability onset date was August 11, 2002. Tr. 

539. The application summary sent to plaintiff by the Social Security Administration states she 

applied for SSI benefits on April 20, 2011 and her disability allegedly began on January 8, 2006. 

Tr. 630. While the ALJ erred in his statement of the application and disability onset dates, this 

error was hmmless because the ALJ still considered the entire alleged disability period. See Stout 

v. Comm 'r, Soc Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an ell'or is harmless "where 

the mistake was nonprejudicial to the claimant or i1Televant to the ALJ's ultimate disability 

conclusion"). 

Page 2 - OPINION AND ORDER 
provider. Tr. 1098. Plaintiff alleges she suffers from regular mood swings, poor mem01y, distraction, 

overwhelm, loud ringing in her ears, difficulty sitting still for more than twenty minutes, and 

occasional meltdowns. Tr. 1080, 1086-91. 

STANDARD 

A court must affitm the Commissioner's decision if it is based on proper legal standards and 

the findings are supp01ied by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 

501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. 

Perales, 402 U.S. 389, 401 (1971) (citation and quotations marks omitted). A couti must weigh 

"both the evidence that supports and detracts from the [ ALJ' s] conclusion." Martinez v. Heckler, 807 

F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the ALJ's 

interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

The initial burden ofproofrests upon the plaintiff to establish disability. Howardv. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff must demonstrate she is 

"unable to engage in any substantial gainful activity by reason of any medically determinable 

physical or mental impairment which can be expected ... to last for a continuous period of not less 

than twelve months." 42 U.S.C. § 1382c(a)(3)(A). 

"The [Commissioner] has established a five-step sequential evaluation process for 

determining whether a person is disabled." Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. 

§ 416.920. First, the ALJ determines whether a plaintiff is engaged in "substantial gainful activity." 

Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). Ifso, the plaintiff is not disabled. 

At step two, the ALJ evaluates whether the plaintiff has a "medically severe impaiiment or 

Page 3 - OPINION AND ORDER 
combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(c). If the plaintiff 

does not have a severe impai1ment or combination of impairments, she is not disabled. 

At step three, the ALJ determines whether the plaintiffs impairments, either singly or in 

combination, meet or equal "one of a number oflisted impairments that the [ALJ] acknowledges are 

so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. § 

416.920(d) (list of impairments in Appendix 1 ). If so, the plaintiff is presumptively disabled; if not, 

the ALJ proceeds to step four. Yuckert, 482 U.S. at 141. 

At step four, the ALJ resolves whether the plaintiff can still perfo1m "past relevant work." 

20 C.F.R. § 416.920(f). If the plaintiff can work, she is not disabled; if she cannot perform past 

relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 141-42. At step five, the 

ALJ must establish the plaintiff can perforn1 other work existing in significant numbers in the local 

and national economy. Id.; 20 C.F.R. § 416.920(g). If the Commissioner meets this burden, the 

plaintiff is not disabled. 20 C.F.R. § 416.966(b). 

ADMINISTRATIVE LAW JUDGE'S FINDINGS 

At step one, the ALJ found the plaintiff had not engaged in substantial gainful activity since 

the application date and had no earnings since 2002. Tr. 541. At step two, the ALJ found plaintiff 

had several severe impairments: post-concussion syndrome; status post frontal craniotomy (postbrain surge1y symptoms); hist01y of meningitis; tinnitis (ringing in the ears); adjustment disorder 

with mixed anxiety and depressive mood; polysubstance abuse; and personality disorder. Tr. 541. 

At step three, the ALJ found plaintiffs combination of symptoms did not meet or medically equal 

the severity of impairments listed in Appendix 1. Tr. 542. At step four, the ALJ found plaintiff had 

the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, 

Page 4 - OPINION AND ORDER 
subject to the following nonexertional limitations: "no climbing of ladders, ropes, and scaffolds; 

avoid even moderate exposure to noise and hazards (such as heights and dangerous equipment); 

perfonn only simple, repetitive work; and limited to occasional public and co-worker interaction." 

Tr. 543. The ALJ also found plaintiff was not disabled because she had the RFC to perfo1m past 

work as a care provider. Tr. 548. At step five, the ALJ alternatively found plaintiff had the RFC to 

perform other work existing in significant numbers in the local and national economy as a mail sorter 

and as an office helper. Tr. 549. 

DISCUSSION 

Plaintiff asserts the ALJ made four errors when he found plaintiff not disabled. First, plaintiff 

argues the ALJ erred by discrediting plaintiffs testimony. Second, plaintiff contends the ALJ erred 

when he evaluated the medical evidence presented by Dr. Tihanyi, Nurse Harlan, and Dr. Kruger. 

Third, plaintiff challenges the ALJ's decision on the ground that he failed to fully credit the 

observations of lay witnesses Chris Curtis and Cecil Reaves. Finally, plaintiff avers the ALJ erred 

because the ALJ's findings about work plaintiff could perform were not supported by substantial 

evidence. 

l Plaintiff's Credibility 

Plaintiff argues the ALJ erred when he did not find her fully credible because the ALJ' s only 

reason for discrediting her testimony was her mental health symptoms have been stable with 

medication and therapy. Plaintiff contends this reason is not suppo1ted by substantial evidence and 

is not sufficiently specific because the ALJ did not identify which testimony was credible and which 

testimony was undem1ined. 

The ALJ must consider a plaintiffs symptom testimony, including testimony regarding 

Page 5 - OPINION AND ORDER 
workplace limitations. 20 C.F.R. § 416.929. The ALJ is responsible for evaluating the credibility of 

that testimony. Andrews v. Sha/ala, 53 F.3d 1035, 1039 (9th Cir. 1995). "[T]he ALJ must identify 

what testimony is not credible and what evidence undennines the [plaintiffs] complaints." Reddick 

v. Chafer, 157 F.3d 715, 722 (9th Cir. 1998). Unless affitmative evidence exists showing the 

plaintiff is malingering, the ALJ must present clear and convincing reasons for rejecting the 

plaintiffs testimony.2 Burch, 400 F.3d at 680. 

The ALJ presented clear and convincing reasons for rejecting plaintiffs testimony. First, the 

ALJ found plaintiffs activities of daily living ("AD Ls") were inconsistent with the alleged severity 

of her limitations. Tr. 544. Plaintiff gardens, shops, cooks, cleans, does laundry, feeds her pets, and 

takes a yearly camping trip to Crater Lake. Tr. 544. Second, the ALJ found inconsistency between 

plaintiffs statements and her conduct. Tr. 544. Plaintiff stated she does not use drugs, but tested 

positive for marijuana and methamphetamine in 2008. Tr. 544-45. Third, the ALJ found plaintiffhad 

improved with medication. Tr. 545. Plaintiff made improvements in focus, depression, task 

accomplishment by taking her medication. Tr. 545. Finally, the ALJ found plaintiffs work history 

was limited. Tr. 544. Plaintiffs longest job tenure was three years as a part-time cabinet maker and 

plaintiff stopped working in 2001, before the alleged disability onset date. Tr. 544. These are clear 

and convincing reasons to discredit plaintiffs testimony. See Tommaselfi v. As/rue, 533 F.3d 1035, 

1039-40 (9th Cir. 2008) (discussing inconsistencies between alleged symptoms and ADLs, 

2 While affirmative evidence of malingering exists in the record and is discussed 

elsewhere in the ALJ's decision, Tr. 542, 546, the ALJ did not expressly discuss the evidence of 

malingering when he discredited plaintiffs testimony. See Tr. 544-45. Because this Court is 

"constrained to review the reasons the ALJ asserts," Connett v. Barnhart, 340 F.3d 871, 874 (9th 

Cir. 2003), this Court will review the ALJ's reasons for discrediting plaintiffs testimony under 

the clear and convincing standard. 

Page 6 - OPINION AND ORDER 
inconsistencies in the plaintiffs testimony or between the plaintiffs testimony and conduct, effective 

medical treatment, and limited work history as clear and convincing reasons for an adverse 

credibility finding). 

II Medical Opinion Evidence 

Plaintiff fmiher contends the ALJ erred because he did not properly evaluate the medical 

evidence provided by Dr. Tihanyi, Nurse Harlan, and Dr. Kruger. Dr. Tihanyi and Nurse Harlan were 

plaintiffs treating physician and nurse practitioner. Tr. 545-46, 1037. The treating relationship began 

in 2004. Tr. 546, 103 7. Dr Tihanyi and Nurse Harlan wrote aj oint statement ("Statement"), in which 

they opined plaintiff "is unable to function in a work situation" because "[ s ]he has impairment of 

cognitive functioning, limited short term memory, poor focus and concentration, and is very 

disorganized.'' Tr. 1011. The Statement was supported with Nurse Harlan's treating notes. See Tr. 

1012-27. Dr. Tihanyi and Nurse Harlan also signed and completed an attorney-supplied 

questionnaire ("Questionnaire") in June 2012. Tr. 1037-40. 

Plaintiff asserts the ALJ erred when he gave little weight to the opinions expressed by Dr. 

Tihanyi and Nurse Harlan in the Statement. Because Dr. Tihanyi is plaintiffs treating physician, her 

opinion is generally given deference. Morgan v. Comm 'r of Soc. Sec. Adm in., 169 F .3d 595, 600 (9th 

Cir. 1999). "However, the opinion of the treating physician is not necessarily conclusive as to either 

the physical condition or the ultimate issue of disability." Id. If the treating physician's opinion is 

uncontrove1ied, the ALJ must provide clear and convincing reasons for rejecting it. Thomas v. 

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). However, ifthe treating physician's opinion conflicts 

with another medical opinion, the ALJ may reject the treating physician's opinion in favor of a 

conflicting opinion "ifthe ALJ makes 'findings setting fmth specific, legitimate reasons for doing 

Page 7 - OPINION AND ORDER 
so that are based on substantial evidence in the record."' Id. (quoting Afaga/lanes v. Bm11en, 881 F .2d 

747, 751 (9th Cir. 1989)). Conflict between evidence of AD Ls and the treating physician's opinion 

of the plaintiffs limitations is a specific and legitimate reason to reject a treating physician's opinion 

in favor of another medical opinion. See Rollins v. }dassanari, 261 F.3d 853, 856 (9th Cir. 2001); 

Fisher v. Astrue, 429 F. App'x 649, 652 (9th Cir. 2011). 

Because the Statement conflicts with other medical evidence,3 the ALJ only needed to 

provide a specific and legitimate reason for giving Dr. Tihanyi' s opinion little weight. The ALJ gave 

Dr. Tihanyi's opinion little weight because "the [plaintiffs] [ADLs] show that she is far more 

functional than described in these written opinions." Tr. 545. As previously noted, plaintiff shops, 

cooks, cleans, does laundry, feeds her pets, and gardens. Tr. 542, 544. As of April 2009, plaintiff also 

babysat her grandson twenty-four hours per week. Tr. 542, 544. The ALJ rationally concluded these 

AD Ls show plaintiff is far more functional than described by Dr. Tihanyi. Therefore, the ALJ did 

not err by giving Dr. Tinhanyi' s opinion in the Statement little weight because he provided a specific 

and legitimate reason suppotted by substantial evidence.4 

3 The Statement opines that plaintiff "is unable to function in a work situation" because 

"[s ]he has impairment of cognitive functioning, limited shot1 term memoty, poor focus and 

concentration, and is very disorganized." Tr. 1011. In contrast, examining physician Dr. Kruger 

found plaintiff had a full-scale IQ of85 (low average), could perform basic arithmetic, had intact 

memoty, showed good attention on repetitive and routine tasks, and had fair abstraction ability. 

Tr. 546. 

4

To reject Nurse Harlan's opinion, the ALJ only needed to provide a getmane reason. 

Nurse practitioners are considered "other sources" of medical evidence. 20 C.F.R. § 416.913(d). 

"The ALJ may discount testimony from[] 'other sources' ifthe ALJ 'gives reasons getmane to 

each witness for doing so."' }1!0/ina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting 

Turner v. Comm 'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)).The ALJ's specific and 

legitimate reason for rejecting the Statement necessarily satisfies the less demanding germane 

reason standard. Therefore, the ALJ also did not err when he gave Nurse Harlan's opinion little 

weight. 

Page 8 - OPINION AND ORDER 
Plaintiff also argues the ALJ did not review the Questionnaire and, therefore, did not provide 

a legally sufficient reason to discredit its contents. To the contraiy, the ALJ expressly discussed the 

Questionnaire in his decision. Tr. 546. The ALJ gave the Questionnaire little weight because Nurse 

Harlan's "treating notes do not support the limitations on lifting" and because plaintiffs AD Ls and 

other examining physicians' opinions did not support the limitations indicated in the Questionnaire. 

Tr. 546. These reasons are specific, legitimate, and supported by substantial evidence in the record. 5 

The ALJ did not ell' by giving the Questionnaire little weight. 

Finally, plaintiff asserts the ALJ incorrectly gave Dr. Kruger's opinion significant weight. 

Dr. Kruger was an examining physician. Tr. 546, 860-67. Dr. Kruger administered several tests in 

his examination of plaintiff, including the Test ofMemmy Malingering and the Structured Inventmy 

of Malingered Symptomatology. Tr. 546, 860, 865. The ALJ gave Dr. Kruger's opinion significant 

weight because it was "based on comprehensive testing and evaluation, and it [was] consistent with 

the [plaintiffs] reported [ADLs]." Tr. 546. 

Plaintiff contends the ALJ ell'ed when he gave Dr. Kruger's opinion significant weight 

because Dr. Kruger's opinion was internally inconsistent and ambiguous. Specifically, plaintiff 

argues the ALJ needed to resolve the conflict between Dr. Kruger's opinion plaintiff may have 

exaggerated her symptoms, his finding plaintiff answered truthfully in other instances, and his 

diagnosis of plaintiff based on her responses. However, there is no internal conflict in Dr. Kruger's 

testimony. The possibility of malingering does not mean plaintiff answered untruthfully in all other 

'Because it is unclear from the record whether Dr. Tihanyi or Nurse Harlan completed the 

Questionnaire, it is questionable whether the ALJ needed to provide a specific and legitimate 

reason for giving the Questionnaire little weight, or only a germane reason. The distinction, 

however, is inconsequential here because the ALJ's reasons satisfy both standards. 

Page 9 - OPINION AND ORDER 
instances or that her responses were invalid for diagnosis. Dr. Kruger advised caution in reviewing 

plaintiffs statements; he did not disregard her responses entirely. The ALJ did not err by giving Dr. 

Kruger's opinion significant weight. 

Ill Lay Witness Testimony 

Plaintiff avers the ALJ en-ed because he did not properly evaluate the evidence from lay 

witnesses Chris Curtis and Cecil Reaves. Plaintiff contends the ALJ should have fully credited their 

testimony because the ALJ considered both witnesses' statements "credible to the extent they are 

based on personal observations" and did not otherwise indicate the weight accorded to their 

testimony. Tr. 547-48. 

"Lay testimony as to a [plaintiffs] symptoms is competent evidence that an ALJ must take 

into account." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2011) (citing Nguyen v. Chafer, 100 F.3d 

1462, 1467 (9th Cir. 1996)). "If the ALJ wishes to discount the testimony of the lay witnesses, he 

must give reasons that are germane to each witness." Dodrill v. Shala/a, 12 F.3d 915, 919 (9th Cir. 

1993). 

The ALJ gave germane reasons for discounting the testimony of Mr. Curtis and Mr. Reaves. 

The ALJ discounted Mr. Curtis' testimony because the ADLs Mr. Curtis described show plaintiff 

is not as limited as alleged. Tr. 547. The ALJ discounted Mr. Reaves' testimony for similar reasons. 

Tr. 548. Inconsistency with AD Ls is a germane reason to discount lay witness testimony. See March 

v. Comm 'r of Soc. Sec. Adm in., 462 F. App'x 671, 672 (9th Cir. 2011). Because he provided reasons 

germane to each witness, the ALJ did not err in discounting the lay witness testimony. 

JV. Past Work and Other Work Existing in the Economy 

Finally, Plaintiff asserts the ALJ erred because the ALJ's conclusions regarding the work she 

Page 10- OPINION AND ORDER 
could perform were inconsistent with her limitations. When determining the work the plaintiff could 

perform, the ALJ must determine the plaintiffs RFC, "a summary of what the [plaintiff! is capable 

of doing." Valentine v. Comm 'r Soc. Sec. Adm in., 574 F.3d 685, 689 (9th Cir. 2009). Based on the 

RFC, the ALJ then evaluates the work the plaintiff could perfonn. Zavalin v. Colvin, 778 F.3d 842, 

846 (9th Cir. 2015). The ALJ routinely relies on the Dictionaiy of Occupational Titles ("DOT") in 

this evaluation. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). The DOT gives each job a 

General Educational Development score; one component of that score is Reasoning Development. 

Dictionmy of Occupational Titles app. C §III (4th ed. 1991 ), 1991 WL 688702. The ALJ may also 

consider vocational expeti ("VE") testimony when he evaluates what work the plaintiff could 

perfo1m. Zavalin, 778 F.3d at 846. 

Reasoning Development is divided into six levels. Dictionary of Occupational Titles app. 

C § III, 1991 WL 688702. Level One Reasoning requires the plaintiff to "[a ]pply commonsense 

understanding to cany out simple one- or two-step instructions." Id. Level Two Reasoning requires 

the plaintiff to"[ a ]pply commonsense understanding to carry out detailed but uninvolved written or 

oral instructions." Id. Level Three Reasoning requires the plaintiff to "[a]pply commonsense 

understanding to cany out instructions furnished in written, oral, or diagrammatic fomi." Id. 

The ALJ found plaintiff had the RFC to perform: 

[A] full range of work at all exe1iional levels, but with the following nonexe1iional 

limitations: no climbing of ladders, ropes, and scaffolds; avoid even moderate 

exposure to noise and hazards (such as heights and dangerous equipment);pe1for111 

only simple, repetitive work; and limited to occasional public and co-worker 

interaction. 

Tr. 543 (emphasis added). The ALJ concluded plaintiff could perform past relevant work as a care 

provider (DOT 354.377-014) and other work existing in the national economy as a mail smier (DOT 

Page 11 - OPINION AND ORDER 
209.687-026) and office helper (DOT 239.567-010). Tr. 548-49. The care provider and mail s01ier 

jobs require Level Three Reasoning. Dictionwy of Occupational Titles§ 209.687-026, 1991 WL 

671813 (mail clerk); id.§ 354.377-014, 1991WL672933 (home attendant). The office helper job 

requires Level Two Reasoning. Id. § 239.567-010, 1991 WL 672232 (office helper). Plaintiff 

contends her limitations restrict her to Reasoning Level One work. Therefore, plaintiff argues the 

ALJ ened when he concluded plaintiff could perform past Reasoning Level Three work and other 

work existing in the local and national economy that requires Level Two or Level Three Reasoning. 

A. Simple, Repetitive Work Limitation and Reasoning Level Two and Three Work 

The ALJ considered and relied on VE testimony in finding Reasoning Level Two and Three 

work compatible with plaintiffs simple, repetitive work limitation. See Tr. 549, 1098-1110. While 

the ALJ may consider VE testimony in evaluating the work the plaintiff could perform, "[ w ]hen 

there is an apparent conflict between the vocational expert's testimony and the DOT[,] ... the ALJ 

is required to reconcile the inconsistency." Zavalin, 778 F.3d at 846 (citing i'vfassachi v. Astrue, 486 

F.3d 1149, 1154 (9th Cir. 2007)); see also SSR 00-4p, 2000 WL 1898704, *2 (Dec. 4, 2000). The 

ALJ may rely on VE testimony that contradicts the DOT, but only ifthe record contains persuasive 

evidence to supp01i the deviation. Johnson v. Shala/a, 60 F.3d 1428, 1436 (9th Cir. 1995). 

The ALJ erred when he found Reasoning Level Three work compatible with plaintiffs 

simple, repetitive work limitation. As the Ninth Circuit recently held, "there is an apparent conflict 

between the [RFC] to perform simple, repetitive tasks, and the demands of Level 3 Reasoning." 

Zavalin, 778 F.3d at 847. In Zavalin, the couti held that the ALJ ened by failing to reconcile this 

apparent conflict when the ALJ "failed to recognize [the] inconsistency" and "did not ask the [VE] 

to explain." Id. The same facts exist here: The ALJ did not recognize or ask the VE to explain the 

Page 12 - OPINION AND ORDER 
inconsistency between plaintiffs simple, repetitive work limitation and the Reasoning Level Three 

work recommended by the VE. See Tr. 1098-1110. Because the ALJ failed to reconcile this 

inconsistency, the ALJ erred when he relied on the VE's testimony to find plaintiffs RFC 

compatible with Reasoning Level Three work as a care provider and as a mail s01ter. 

In contrast, the ALJ did not err when he found Reasoning Level Two work compatible with 

plaintiffs simple, repetitive work limitation. As this Court previously held, "Reasoning Level 2 jobs 

are not inconsistent with simple, routine work." Gilbert v. Colvin, 2015 WL 1478441, *7 (D. Or. 

Mar. 31, 2015); see also Chalmers v. Colvin, 2014 WL 5488908, *9 (D. Or. Oct. 28, 2014). The 

Ninth Circuit alluded to the same finding in Zavalin and has expressly stated it in unpublished 

memoranda. Zavalin, 778 F.3d at 847;Abrewv. Astrue, 303 F. App'x 567, 569 (9th Cir. 2008); Lara 

v. Astrue, 305 F. App'x 324, 326 (9th Cir. 2008). Because there is no apparent conflict between 

Reasoning Level Two work and plaintiffs simple, repetitive work limitation, the ALJ did not need 

to seek further explanation from the VE. Instead, the ALJ could and did rely on the VE's affirmation 

that his testimony was consistent with the DOT. Tr. 1100. Therefore, while the ALJ ened when he 

found Reasoning Level Three work compatible with the simple, repetitive work limitation in 

plaintiffs RFC, he did not en when he found Reasoning Level Two work compatible with that 

limitation. The ALJ's error eliminates the care provider and mail sorter jobs from the list of jobs 

plaintiff could perform; the only remaining job is the Reasoning Level Two officer helper job. 

B. One- to Two-Step Task Limitation and Reasoning Level Two Work 

Even though the ALJ did not err in finding Reasoning Level Two work compatible with the 

simple, repetitive work limitation, the ALJ erred when he concluded plaintiff could perform the 

Reasoning Level Two office helper job. The ALJ erred because his determination was based on an 

Page 13 - OPINION AND ORDER 
incomplete RFC finding. In dete1mining plaintiffs RFC, the ALJ relied in part on the opinion of Dr. 

Herny, a disability services psychological consultant. See Tr.547. Dr. Herny opined in his assessment 

that plaintiff was limited to performing simple one- to two-step tasks. Tr. 547, 566. While the ALJ 

gave Dr. Hemy' s opinion significant weight, the ALJ did not include the one- to two-step task 

limitation in plaintiffs RFC. Tr. 543, 547. Instead, the ALJ included the simple, repetitive work 

limitation. Tr. 54 3. The ALJ did not state in his decision why he included the simple, repetitive work 

limitation in plaintiffs RFC instead of the one- to two-step task limitation. See Tr. 547. 

A plaintiffs RFC must include all limitations and restrictions. Valentine, 574 F.3d at 690. 

When reviewing opinion evidence for an RFC determination, the ALJ "must consider findings and 

other opinions of State agency medical and psychological consultants." 20 C.F.R. § 416.927( e)(2)(I). 

"Unless a treating source's opinion is given controlling weight, the [ALJ] must explain in the 

decision the weight given to the opinions of a State agency medical or psychological consultant .. 

. . "Id. § 416.927( e)(2)(ii). "RFC assessments by State agency medical or psychological consultants 

. . . are to be considered and addressed in the [ ALJ' s] decision as medical opinions from 

nonexamining sources." SSR 96-6p, 1996 WL 374180, *4 (July 2, 1996). "If the RFC assessment 

conflicts with an opinion from a medical source, the [ ALJ] must explain why the opinion was not 

adopted." SSR 96-Sp, 1996 WL 374184, *7 (July 2, 1996). 

The ALJ implicitly rejected the one- to two-step limitation when he omitted it from plaintiffs 

RFC. The ALJ erred when he failed to explain why he rejected that portion of Dr. Berny's opinion.6 

6

The District Court for the Central District of California faced a substantially similar set 

of facts and likewise found the ALJ erred. See Cardoza v. Astrue, 2011WL1211469, *1 (C.D. 

Cal. Mar. 29, 2011) ("the Court concurs with plaintiff that the ALJ erred in his RFC 

determination because he failed to explain why he implicitly rejected the opinion of [] one of the 

Page 14- OPINION AND ORDER 
This error is not harmless. The difference between a simple, repetitive work limitation and a oneto two-step task limitation is significant: while there is no apparent conflict between a simple, 

repetitive work limitation and the demands of Level Two Reasoning, Gilbert, 2015 WL 1478441, 

at *7, there is an apparent conflict between Level Two Reasoning and a one- to two-step task 

limitation, Rounds v. Comm 'r Soc. Sec. Adm in., 807 F.3d 996, 1003 (9th Cir. 2015). If the ALJ fails 

to reconcile the apparent conflict between the demands of Level Two Reasoning and a one- to twostep task limitation, the court cannot determine whether the ALJ's step five findings are supported 

by substantial evidence. Id at 1004. 

Because the ALJ excluded the one- to two-step task limitation from plaintiffs RFC without 

explanation and neither recognized nor explained the conflict between the limitation and Level Two 

Reasoning, this Comt carmot determine whether the office helper job is a viable option. Therefore, 

this Court remands the Commissioner's decision for fmther proceedings. See Taylor v. Comm 'r of 

Soc. Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) ("Remand for further proceedings is 

appropriate where there are outstanding issues that must be resolved before a disability determination 

can be made, and it is not clear from the record that the ALJ would be required to find the [plaintiff] 

disabled if all the evidence were properly evaluated."). Before a disability determination can be 

made, the ALJ must resolve whether plaintiffs RFC should include a one- to two-step task limitation 

or a simple, repetitive work limitation. If plaintiffs RFC should include a one- to two-step 

limitation, the ALJ also must reconcile the apparent conflict between the limitation and the 

Reasoning Level Two officer helper job, or find Reasoning Level One work plaintiff can perform 

State agency medical and psychological consultants"). 

Page 15 - OPINION AND ORDER 
given the other nonexetiional limitations in her RFC, to meet his step five burden of proof. 

CONCLUSION 

The Commissioner's decision is REVERSED and this case is REMANDED for further 

proceedings. 

IT IS SO ORDERED. 

Dated this~ofFebrnmy 2016. 

AnnAiken 

United States District Judge 

Page 16- OPINION AND ORDER