FINDINGS & RECOMMENDATION - 1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LISA CORINNE CHAVEZ, ) Civil No.: 3:14-cv-01178-JE 

 ) 

Plaintiff, ) FINDINGS AND 

 v. ) RECOMMENDATION 

 ) 

CAROLYN W. COLVIN, ) 

Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

__________________________________________) 

Tim Wilborn 

Wilborn Law Office, P.C. 

P.O. Box 370578 

Las Vegas, NV 89137 

 Attorney for Plaintiff 

Billy J. Williams, U.S. Attorney 

Janice E. Hébert, Asst. U.S. Attorney 

1000 S.W. 3rd Avenue, Suite 600 

Portland, OR 97204-2902 

Diana Andsager 

Special Assistant U.S. Attorney 

Social Security Administration 

701 5th Avenue, Suite 2900 M/S 221A 

Seattle, WA 98104-7075 

 Attorneys for Defendant 

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JELDERKS, Magistrate Judge: 

Lisa Corinne Chavez (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and 

1381a seeking judicial review of a final decision of the Commissioner of Social Security (“the 

Commissioner”) denying her applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) under the Social Security Act (“the Act”). For the reasons 

that follow, the Commissioner’s decision should be reversed, and this case remanded for further 

proceedings. 

Procedural Background

 Plaintiff filed applications for DIB and SSI in September 2009, alleging disability 

beginning June 1, 2007. Tr. 89, 243, 250. Plaintiff’s claims were denied initially and on 

reconsideration, and a hearing was held before administrative law judge (“ALJ”) S. Andrew 

Grace on August 2, 2012. Tr. 44-83. ALJ Grace, noting substance use disorder as a material 

contributing factor, found Plaintiff not disabled in his decision issued November 16, 2012. Tr. 

20-33. That decision became the final decision of the Commissioner on May 21, 2014, when the 

Appeals Council denied Plaintiff’s request for review. Tr. 1-3. Plaintiff now appeals to this Court 

for review of the Commissioner’s decision. 

Background

Born in 1960, Plaintiff was 46 years old on the alleged onset date. Tr. 26, 89. Plaintiff 

graduated from high school and attended two years of college and earned an HVAC certificate in 

vocational school. Tr. 313. Plaintiff has past relevant work as a certified nursing assistant, and 

also as a certified medical technician. Tr. 26, 48. Plaintiff alleges disability due to major 

depressive disorder, post-traumatic stress disorder (“PTSD”), degenerative disc disease, bipolar 

disorder, and alcoholism. Pl.’s Br. 2; tr. 104, 312. 

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Disability Analysis

 The ALJ engages in a five-step sequential inquiry to determine whether a claimant is 

disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. The five step sequential 

inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 

1999). 

 Step One. The Commissioner determines whether the claimant is engaged in substantial 

gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not 

engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s 

case under Step Two. 20 C.F.R. §§ 404.1520(b), 416.920(b). 

 Step Two. The Commissioner determines whether the claimant has one or more severe 

impairments. A claimant who does not have any such impairment is not disabled. If the claimant 

has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant’s 

case under Step Three. 20 C.F.R. §§ 404.1520(c), 416.920(c). 

 Step Three. Disability cannot be based solely on a severe impairment; therefore, the 

Commissioner next determines whether the claimant’s impairment “meets or equals” one of the 

presumptively disabling impairments listed in the Social Security Administration (“SSA”) 

regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that 

meets a listing is disabled under the Act. If the claimant’s impairment does not meet or equal an 

impairment listed in the listings, the Commissioner’s evaluation of the claimant’s case proceeds 

under Step Four. 20 C.F.R. §§ 404.1520(d), 416.920(d). 

 Step Four. The Commissioner determines whether the claimant is able to perform work 

he or she has done in the past. A claimant who can perform past relevant work is not disabled. If 

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the claimant demonstrates he or she cannot do past relevant work, the Commissioner’s 

evaluation of claimant’s case proceeds under Step Five. 20 C.F.R. §§ 404.1520(f), 416.920(f). 

 Step Five. The Commissioner determines whether the claimant is able to do any other 

work. A claimant who cannot perform other work is disabled. If the Commissioner finds 

claimant is able to do other work, the Commissioner must show that a significant number of jobs 

exist in the national economy that claimant is able to do. The Commissioner may satisfy this 

burden through the testimony of a VE, or by reference to the Medical-Vocational Guidelines, 20 

C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant 

number of jobs exist in the national economy that the claimant is able to do, the claimant is not 

disabled. If the Commissioner does not meet the burden, the claimant is disabled. 20 C.F.R. §§ 

404.1520(g)(1), 416.920(g)(1). 

 At Steps One through Four of the sequential inquiry, the burden of proof is on the 

claimant. Tackett, 180 F.3d at 1098. At Step Five, the burden shifts to the Commissioner to show 

the claimant can perform jobs that exist in significant numbers in the national economy. Id. 

 If the ALJ finds the claimant disabled, and there is medical evidence of a substance use 

disorder, the ALJ must determine if the substance use disorder is a contributing factor material to 

the determination of disability. See 20 C.F.R. § 423(d)(2)(C). Accordingly, the ALJ must 

evaluate the extent to which the claimant’s mental and physical limitations would remain if the 

substance use was discontinued. If the remaining limitations would not be disabling, the 

substance use disorder is considered a contributing factor material to the determination of 

disability, and as such, the claimant is not disabled under the Act. 20 C.F.R. §§ 404.1535, 

416.935; see also Social Security Ruling (“SSR”) 13-2p, 2013 WL 621536 (Feb. 20, 2013). 

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The ALJ’s Decision

 At the first step of the disability analysis, the ALJ found Plaintiff had not engaged in 

substantial gainful activity since June 1, 2007, the alleged onset date. 

 At the second step, the ALJ found plaintiff had the following severe impairments: 

“degenerative disc disease of the cervical spine, major depressive disorder, posttraumatic stress 

disorder (“PTSD”), and alcohol dependence.” Tr. 23. The ALJ also noted the non-severe 

impairment of diabetes and hyperlipidemia. Tr. 24. 

 At the third step, the ALJ found Plaintiff did not have an impairment or combination of 

impairments that met or equaled a presumptively disabling impairment set out in the Listings, 20 

C.F.R. Part 404, Subpart P, App. 1. Id. 

 Before proceeding to the fourth step, the ALJ assessed Plaintiff’s residual functional 

capacity (“RFC”). He found Plaintiff retained the capacity to: 

[L]ift and/or carry up to 50 pounds occasionally and 25 pounds 

frequently, stand and/or walk up to six hours in an eight hour 

workday, and sit up to six hours in an eight hour workday. The 

claimant cannot reach above shoulder level bilaterally. The 

claimant is limited to simple, routine, repetitive tasks with one to 

two step instructions. The claimant is limited to work in a low 

stress environment, which is defined as an environment requiring 

few decisions and few changes. The claimant is limited to 

occasional interaction with the public and she will be absent 

approximately two times per month. 

Tr. 26. 

 At the fourth step of the disability analysis, the ALJ found Plaintiff unable to perform her 

past relevant work. Tr. 26. The ALJ next found Plaintiff was closely approaching advanced age, 

and her acquired job skills did not transfer to other occupations. Tr. 26-27. The ALJ further 

found that considering her age, education, work experience, RFC, and all of her impairments 

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including substance use disorders, Plaintiff was unable to perform any jobs existing in significant 

numbers in the national economy. Tr. 27. 

 Because the ALJ found medical evidence of substance abuse disorders, the ALJ 

continued to evaluate whether the substance abuse disorder was a contributing factor material to 

the determination of disability. Tr. 22, 27-28. 

 The ALJ found that if Plaintiff stopped her substance use, her remaining limitations 

would continue to cause more than a minimal impact on her ability to perform basic work 

activities, and therefore constituted severe impairment. Tr. 27-28. 

 Next, the ALJ found that if Plaintiff stopped her substance use, she would not have an 

impairment or combination of impairments that meets or medically equals a presumptively 

disabling impairment set out in the Listings, 20 C.F.R. Part 404, Subpart P, App. 1. Tr. 28. 

The ALJ then assessed Plaintiff’s RFC, assuming substance use had stopped. The ALJ 

found Plaintiff would retain the capacity to: 

[L]ift and/or carry up to 50 pounds occasionally and 25 pounds 

frequently, stand and/or walk up to six hours in an eight hour 

workday, and sit up to six hours in an eight hour workday. The 

claimant could not reach above shoulder level bilaterally. The 

claimant would be limited to simple, routine, repetitive tasks with 

one to two step instructions. The claimant would be limited to 

work in a low stress environment, which is defined as an 

environment requiring few decisions and few changes. The 

claimant would be limited to occasional interaction with the public. 

 

Tr. 28-29. In reaching this conclusion, the ALJ found that Plaintiff’s medically determinable 

impairments could reasonably be expected to cause some of the symptoms Plaintiff alleged, but 

that her statements concerning the intensity, persistence, and limiting effects of the symptoms 

were not entirely credible. Tr. 29. 

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 Continuing, the ALJ found Plaintiff would not be able to perform her past relevant work 

even if she stopped her substance use. Tr. 32. However, the ALJ determined that, based on the 

testimony of the VE, there was a significant number of other jobs in the national economy which 

Plaintiff would be able to perform if she discontinued her substance use. Id. 

Accordingly, the ALJ found Plaintiff’s substance use disorder was a contributing factor 

material to the determination of disability because she would not be disabled if she stopped the 

substance use. As such, she was determined to be not disabled within the meaning of the Act. Tr. 

33. 

Standard of Review

A claimant is disabled if he or she is unable “to engage in 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)(1)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66 

F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the 

burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), and 

bears the burden of establishing that a claimant can perform “other work” at Step Five of the 

disability analysis process. Tackett, 180 F.3d at 1098. 

 The district court must affirm the Commissioner’s decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record as a whole. 42 

U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial 

evidence means more than a mere scintilla but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews, 53 

F.3d at 1039. The court must weigh all of the evidence, whether it supports or detracts from the 

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Commissioner’s decision. Martinez v. Heckler, 807 F.2d 771, 771 (9th Cir. 1986). The 

Commissioner’s decision must be upheld, however, even if “the evidence is susceptible to more 

than one rational interpretation.” Andrews, 53 F.3d at 1039-40. 

Discussion

 Plaintiff assigns the following errors to the ALJ’s decision: (1) erroneously finding that 

substance use was a contributing factor material to the determination of disability; (2) improper 

rejection of her own testimony; (3) flawed evaluation of treating and examining physicians; (4) 

improper rejection of lay witness testimony; and (5) deficient hypothetical questions and 

erroneous identification of occupations at step five. 

1. Substance Use Materiality 

 Plaintiff argues the ALJ erroneously found her substance use disorder was a contributing 

factor material to the determination of disability. As noted in the background discussion above, 

the ALJ found Plaintiff disabled under the Act, but because the record contained evidence of a 

substance use disorder, the ALJ re-evaluated the evidence and determined that if she stopped her 

substance use, Plaintiff would not be considered disabled under the Act. 20 C.F.R. § 

423(d)(2)(C); tr. 22, 27, 33. The ALJ’s ultimate decision hinged on a single limitation included 

in Plaintiff’s RFC when she was using substances – “she will be absent approximately two times 

per month” – which the ALJ did not include in the RFC formulation assuming she was not using 

substances. Compare tr. 26 with tr. 28-29. The ALJ eliminated the absenteeism limitation 

because “there [wa]s insufficient evidence to show that the claimant’s depression is disabling, 

absent the effects of alcohol, particularly because there have been so few periods of sobriety to 

determine precise limitations of mental illness alone.” Tr. 30. Plaintiff argues the ALJ applied 

the incorrect legal standard in making the materiality determination. 

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 In support, Plaintiff focuses on a portion of SSR 13-2p, which provides that substance 

use “is not material to the determination of disability . . . if the record is fully developed and the 

evidence does not establish that the claimant’s co-occurring mental disorder(s) would improve to 

the point of non[-]disability” absent substance use. SSR 13-2p, 2013 WL 621536, at *9. 

Therefore, argues Plaintiff, because the record is “at most” ambiguous as to whether Plaintiff’s 

co-occurring major depressive disorder and PTSD were still disabling when Plaintiff abstained 

from alcohol, the ALJ necessarily could not establish that her mental disorders would improve to 

the point of non-disability. Accordingly, Plaintiff maintains that the ALJ is compelled to find 

disability on the equivocal record. Pl.’s Br. 12-13; Pl.’s Reply 3-4. 

 The Commissioner provides several counter-arguments. First, the Commissioner 

contends the record is not ambiguous, and cites findings by the ALJ that Plaintiff “largely 

functioned normally . . . had adequate concentration and attention . . . was able to follow a threestep command . . . [and demonstrated] only a mild cognitive impairment” during a period of 

sobriety between August 2010 and June 2011. Def.’s Br. 2-3; see tr. 712-14. Further, Plaintiff 

was described as “alert, pleasant, self-motivated and cooperative,” and reported “doing very 

well” after seven months of sobriety. Def.’s Br. 3; see tr. 719, 728, 798. 

Plaintiff acknowledges the Commissioner’s observations, but contends the medical 

experts were unable to establish whether Plaintiff’s limitations would persist during periods of 

sobriety. For example, the ALJ observed that in September 2012, “Dr. Kaper noted he could not 

tell whether the claimant’s persistent anxiety was secondary to PTSD or alcohol dependence, or 

whether alcohol use is the source of deficits in cognitive processing.” Tr. 30, 1751-52. Dr. 

Goodale indicated in August 2010 that Plaintiff “has some mild cognitive impairment which may 

relate to her symptoms of depression and alcohol use. . . . [and] Her continual use of substances 

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and depressive symptoms will make it difficult for her [to obtain or sustain employment].” Tr. 

714. Similarly, Dr. Marcel did not disentangle substance use disorder and depressive disorder 

symptoms in opining Plaintiff was unlikely to sustain employment. Tr. 806. Accordingly, argues 

Plaintiff, because the evidence is at best ambiguous regarding the limiting effects of her 

depressive disorder in the absence of alcohol use, the Commissioner failed to carry the burden of 

proof to establish her co-occurring depression would improve to the point of non-disability 

absent alcohol. 

 The Court is obliged to follow Ninth Circuit precedent, which has addressed the burden 

of proof in cases where medical evidence is ambiguous regarding the effects of impairments 

absent substance use. The court has held: “[w]e thus make explicit what was intimated by our 

earlier cases, that the claimant bears the burden of proving that drug or alcohol addiction is not a 

contributing factor material to his disability.” Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007). 

In so holding, the Parra court explained that a medical expert stated “there was no way for me to 

know” whether the claimant’s condition would improve absent alcohol. Id. at 749. Similar to the 

case at bar, the plaintiff in Parra argued that inconclusive testimony was sufficient to carry his 

burden of proof. Id. The court rejected Parra’s contention, however, finding, “Parra bore the 

burden of proving that his alcoholism was not a contributing factor material to his . . . disability.” 

Id. at 750. The court explained that Parra’s interpretation was not persuasive because it 

contradicted the purpose of the statute regarding the material contribution of a substance abuse 

disorder. Id. Specifically, the court opined, “[a]n alcoholic claimant who presents inconclusive 

evidence of materiality has no incentive to stop drinking, because abstinence may resolve his 

disabling limitations and cause his claim to be rejected or his benefits terminated.” Id. The 

Commissioner reiterates these arguments in the case at bar, and the Court agrees that a policy 

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allowing inconclusive evidence of materiality to carry Plaintiff’s burden of proof essentially 

incentivizes continued substance use. See Def.’s Br. 3.

Plaintiff further argues that SSR 13-2p supersedes the holding in Parra. Pl.’s Reply 3-4. 

The argument fails for the following reasons. First, Ninth Circuit case law is binding on this 

Court; second, SSR’s are statements the Commissioner uses to explain and clarify policies, and 

as such, do not carry the “full force” of law. Third, SSR 13-2p expressly states: 

“[t]he claimant has the burden of proving disability throughout the 

sequential evaluation process. Our only burden is limited to 

producing evidence that work the claimant can do exists in the 

national economy at step 5 . . . [w]hen we apply the steps . . . to 

determine whether the claimant would be disabled if he or she was 

not using drugs or alcohol, it is our longstanding policy that the 

claimant continues to have the burden of proving disability 

throughout the DAA [drug addiction and alcoholism] materiality 

analysis.”

 

SSR 13-2p, at *4 (emphasis added). Finally, the Ninth Circuit and several courts in this district 

have determined the passage from SSR 13-2p cited by Plaintiff does not shift the burden of proof 

to the Commissioner. See, e.g., Garner v. Colvin, 626 Fed.Appx. 699, 701 (9th Cir. 2015) 

(unpublished opinion); Cothrell v. Colvin, No. 3:13-cv-00276-HA, available at 2016 WL 

3436409, at *4 (D.Or. June 15, 2016) (unpublished opinion); Mustoe v. Colvin, No. 3:14-cv00857-AC, available at 2015 WL 9487990, at *3 (D.Or. Nov. 15, 2015) (citing Parra, 481 F.3d at 

748) (unpublished opinion); Hall v. Colvin, No. 3:14-cv-00277-SI, available at 2015 WL 

882106, at *5 (D.Or. Mar. 2, 2015) (same) (unpublished opinion). 

Based on the foregoing, the ALJ did not err in determining Plaintiff’s substance use was a 

contributing factor material to the determination of non-disability. Parra, 481 F.3d at 748. 

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2. Plaintiff’s Testimony

The ALJ found Plaintiff’s symptom allegations were less than fully credible insofar as 

they were not consistent with the objective evidence, and also because she worked after the 

alleged onset date. Tr. 30. The Ninth Circuit relies on a two-step process for evaluating the 

credibility of a claimant’s testimony about the severity and limiting effect of the stated 

symptoms.1

 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 

503 F.3d 1028, 1035-36 (9th Cir. 2007)). “First, the ALJ must determine whether the claimant 

has presented objective medical evidence of an underlying impairment which could reasonably 

be expected to produce the pain or other symptoms alleged.” Lingenfelter, 503 F.3d at 1036 

(citation and quotation marks omitted). Second, absent evidence of malingering, “the ALJ can 

reject the claimant’s testimony about the severity of her symptoms only by offering specific, 

clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 

1996). An ALJ “may consider . . . ordinary techniques of credibility evaluation, such as the 

claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, . . . [or] 

other testimony that appears less than candid . . . .” Id. at 1284. However, a negative credibility 

finding made solely because the claimant’s symptom testimony “is not substantiated 

affirmatively by objective medical evidence” is legally insufficient. Robbins v. Soc. Sec. 

 

1 The Court notes that, although the two-step process remains operative, pursuant to SSR 16-3p, 

the ALJ is no longer tasked with making an overarching credibility determination and instead 

assesses whether the claimant’s subjective symptom statements are consistent with the record as 

a whole. See SSR 16-3p, available at 2016 WL 1119029 (superseding SSR 96-7p). The ALJ’s 

decision was issued before SSR 16-3p became effective and there is no binding precedent 

interpreting this new ruling or whether it applies retroactively. Compare Ashlock v. Colvin, 2016 

WL 3438490, *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ 

decision issued prior to the effective date), with Lockwood v. Colvin, 2016 WL 2622325, *3 n.1 

(N.D. Ill. May 9, 2016) (applying SSR 16-3p retroactively to a 2013 ALJ decision). Because the 

ALJ’s findings in regard to this issue pass do not muster irrespective of which standard governs, 

the Court need not resolve this issue. 

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Admin., 466 F.3d 880, 882 (9th Cir. 2006). Nevertheless, the ALJ’s credibility finding may be 

upheld even if not all of the ALJ’s rationales for rejecting claimant testimony are upheld. See 

Batson, 359 F.3d at 1197. 

The ALJ explained that “[a]lthough that work activity did not constitute disqualifying 

substantial gainful activity, it does indicate that the claimant’s activities have, at least at times, 

been somewhat greater than the claimant has generally reported.” Id. In support of the ALJ’s 

finding, the Commissioner contends that daily activities can form the basis of an adverse 

credibility finding when they contradict allegations of completely disabling impairment, citing 

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 

Plaintiff argues the Commissioner’s reasoning is misplaced because Plaintiff did not 

allege she was so disabled as to preclude all activity. Pl.’s Br. 16. Rather, Plaintiff’s position is 

that although she can perform some work-related activities, she is not able to perform them on a 

sustained, full-time basis. As the Ninth Circuit, in Garrison v. Colvin, 759 F.3d 995, 1016 (9th 

Cir. 2014), explained: 

The critical differences between activities of daily living and 

activities in a full-time job are that a person has more flexibility in 

scheduling the former than the latter, can get help from other 

persons . . . , and is not held to a minimum standard of performance, 

as she would be by an employer. The failure to recognize these 

differences is a recurrent, and deplorable, feature of opinions by 

[ALJs] in social security disability cases. 

Id. (citation omitted). Although the ALJ did not specifically identify which of Plaintiff’s 

activities were inconsistent with her allegations, the ALJ noted elsewhere that she was able to 

attend to personal hygiene, do household chores, and care for a cat. Tr. 24. Plaintiff also reported 

having trouble doing activities due to pain in her right arm, and that after waking, eating, and 

completing basic hygiene, she spent much of the day watching television, and then would clean 

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and grocery shop in the evening. Tr. 25. Based on that testimony, the ALJ made a finding of mild 

restriction in activities of daily living. Id. 

However, nowhere in the ALJ’s decision does he identify any work activities performed 

by Plaintiff that belie her allegations. Rather, the ALJ found Plaintiff’s activities “have, at least at 

times, been somewhat greater than [she] reported.” Tr. 30. As such, the ALJ’s rationale stands in 

contrast to the applicable clear-and-convincing legal standard, which requires the ALJ establish 

something beyond specific-and-legitimate reasons to impugn a Plaintiff’s allegations. Here, the 

ALJ not only failed to identify specific activities contradicting Plaintiff’s allegations, but also 

failed to identify the allegations at issue. The Ninth Circuit has long held that it is not adequate 

for an ALJ to provide boilerplate rationales that “generally apply” to a claimant’s testimony; 

rather, the ALJ must make specific findings relating to the daily activities and their 

transferability to work in order to make an adverse finding. See Orn v. Astrue, 495 F.3d 625, 639 

(9th Cir. 2007). 

 Although the Commissioner argues the ALJ’s rationale was adequate because 

“[a]ctivities do not need to equate to a sustained job in order to qualify as evidence to discount 

limitations” (see Def.’s Br. 9), the argument lacks merit because there was no identification of 

the allegations the ALJ purported to discount. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 

1998) (general findings insufficient to support negative credibility finding). The ALJ’s stated 

rationale fails for lack of specificity, and therefore should not be upheld on review. 

 The ALJ also found Plaintiff not credible insofar as the objective medical evidence did 

not support her allegations of physical and mental impairment. In the Ninth Circuit, a negative 

credibility finding as to the severity of symptoms cannot be sustained when it is based solely 

upon purported inconsistency with the objective medical evidence. Lingenfelter, 504 F.3d at 

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1036 (quoting Reddick, 157 F.3d at 722). The ALJ indicated, “images in the record show mild to 

moderate degenerative changes in the cervical spine,” which he found did not comport with 

Plaintiff’s allegations of “disabling” back, shoulder, and neck pain. Tr. 30. The ALJ did not 

provide any other valid rationale for discrediting Plaintiff’s physical symptom allegations, 

however, and therefore the singular finding is legally deficient. Rollins, 261 F.3d at 857; 

Lingenfelter, 504 F.3d at 1036. 

 Similarly, the ALJ found Plaintiff’s allegations regarding her mental impairments were 

not fully credible. Tr. 30. The ALJ noted “insufficient evidence to show that the claimant’s 

depression is disabling, absent the effects of alcohol, particularly because there have been so few 

periods of sobriety . . . .” Id. The legal standard for assessing the veracity of symptom allegations 

is not, however, whether there was sufficient evidence to show that a mental impairment was 

disabling. Rather, the ALJ may only reject the claimant’s testimony about the severity of her 

symptoms by offering specific, clear and convincing reasons for doing so. Smolen, 80 F.3d at 

1281. 

 The ALJ noted that some physicians of record expressed difficulty in determining 

whether Plaintiff’s psychosocial symptoms were caused by substance use, even during periods 

where Plaintiff was allegedly sober. Tr. 30. However, such determinations are germane to the 

weight the ALJ should accord the physicians’ medical opinions, not to Plaintiff’s symptom 

allegations. In other words, whether the physicians are uncertain regarding the cause of 

Platiniff’s alleged symptoms is an altogether different issue than whether Plaintiff’s allegations 

about the severity of her symptoms are credible. Essentially, the ALJ’s conclusion regarding the 

veracity of Plaintiff’s mental symptom allegations amounts to no more than a finding the 

allegations were inconsistent with the objective evidence. 

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 For example, the ALJ noted that during periods of alleged sobriety, Plaintiff did not 

require hospitalization and appeared to “generally maintain a normal level of functioning.” Tr. 

30. In support, the Commissioner argues that when sober, Plaintiff had adequate concentration 

and attention, and appeared “alert, pleasant, self-motivated and cooperative and stated she would 

like to work.” Def.’s Br. 8. However, Plaintiff expressly contradicted this finding during the 

hearing, stating her depression was “actually kind of worse” during a stint of sobriety from 

August 2010 to June 2011. Tr. 64. Aside from purported inconsistency with the objective 

evidence, however, neither the ALJ nor the Commissioner provide any valid reason to find 

Plaintiff’s statement not credible. 

 Thus, absent any other valid specific, clear, and convincing rationales, the ALJ’s stated

rationale alone is insufficient to uphold the credibility finding. Rollins, 261 F.3d at 857; 

Lingenfelter, 504 F.3d at 1036. 

3. Medical Opinion Evidence 

 Plaintiff argues the ALJ failed to evaluate the medical opinion evidence of her treating 

physician and an examining physician. The ALJ is responsible for resolving conflicts in the 

medical record, including conflicting physicians’ opinions. Carmickle v. Comm’r, Soc. Sec. 

Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit distinguishes between the 

opinions of three types of physicians: treating physicians, examining physicians, and nonexamining physicians. The opinions of treating physicians are generally accorded greater weight 

than the opinions of non-treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 

A treating physician’s opinion that is not contradicted by the opinion of another physician can be 

rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th 

Cir. 1991). If, however, a treating physician’s opinion is contradicted by the opinion of another 

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physician, the ALJ must provide “specific, legitimate reasons” for discrediting the treating 

physician’s opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Specific, legitimate 

reasons for rejecting a physician’s opinion may include its reliance on a claimant’s discredited 

subjective complaints, inconsistency with the medical records, inconsistency with a claimant’s 

testimony, or inconsistency with a claimant’s activities of daily living (“ADLs”). Tommasetti v. 

Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). 

A. Dr. Marcel 

 Plaintiff contends the ALJ failed to properly weigh the medical opinion evidence of 

treating psychiatrist Leonard J. Marcel, M.D. In a letter dated June 26, 2008, Dr. Marcel wrote: 

[Plaintiff] has been under the care of Kaiser Permanente Mental 

Health and Addiction Medicine Departments since January 2004 for 

treatment of recurrent major depression and chronic alcoholism. 

During the years 2006 and 2007, she was unemployed and 

unemployable due to these conditions which required multiple 

hospitalizations and intensive outpatient treatment. 

Tr. 806. As the Commissioner concedes, the ALJ erroneously failed to mention Dr. Marcel’s 

medical opinion in his decision. See Def.’s Br. 6. Plaintiff argues the omission constitutes 

harmful error, contending the ALJ failed to give reasons for rejecting the “limitations” ascribed 

by Dr. Marcel, and further that Dr. Marcel’s opinion “establishes that Plaintiff is/was ‘disabled’ 

for Social Security’s purposes.” Pl.’s Br. 14. 

The Commissioner argues the error was harmless because the doctor’s statement was not 

a “medical opinion” as defined in the Act. Def.’s Br. 6. In support, the Commissioner contrasts 

the SSA definition of a medical opinion, 

[S]tatements . . . that reflect judgments about the nature and 

severity of your impairment(s), including your symptoms, 

diagnosis and prognosis, what you can still do despite 

impairment(s), and your physical or mental restrictions. 

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20 C.F.R. §§ 404.1527(a)(2) and 416.927(a)(2), with non-medical opinions: 

A statement by a medical source that you are “disabled” or “unable 

to work” does not mean that we will determine that you are 

disabled . . . . [w]e will not give any special significance to the 

source of an opinion on issues reserved to the Commissioner. 

20 C.F.R. §§ 404.1527(d)(1), (2) and 416.927(d)(1), (2). Nowhere in Dr. Marcel’s note does he 

indicate the severity of Plaintiff’s impairments, specific symptoms, prognosis, or what Plaintiff is 

able to do despite her impairments as required under (a)(2). See id. Instead, Dr. Marcel’s opinion 

is focused on prior employment and prospective employability, which is an issue reserved to the 

Commissioner. Id. 

 Nevertheless, an ALJ may not simply ignore potentially probative evidence in rendering 

a non-disability decision. Reddick, 157 F.3d at 725 (ALJ is not bound by physician’s opinion on 

ultimate issue of disability but it cannot be ignored unless legally sufficient rationales are 

provided) (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)); see also SSR 98-5p, 

1996 WL 374183, at *3 (“[O]pinions from any medical source on issues reserved to the 

Commissioner must never be ignored.”). Thus, while the Court agrees Dr. Marcel’s opinion 

concerned an issue reserved to the Commissioner, the ALJ was obligated to at least recognize the 

opinion and, if applicable, provide appropriate reasons to reject it. See SSR 98-5p (ALJ should 

apply applicable factors in 20 C.F.R. §§ 404.1527(d) and 416.927(d)). Had the ALJ properly 

considered Dr. Marcel’s note, it may have lent credence to the testimony of Plaintiff and the lay 

witness, and similar opinions of other physicians of record, therefore affecting the ultimate 

outcome. Accordingly, the Court does not agree the error was necessarily harmless. 

B. Dr. Murphy 

 Plaintiff further argues the ALJ did not adequately evaluate the medical opinion of 

consultative physician David Murphy, M.D. The doctor performed a one-time examination and 

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prepared a report date September 10, 2010, in which he opined Plaintiff was limited to lift/carry 

“20 pounds on the left hand only; no lift or carry using the right hand . . . limit gripping with the 

right hand to an occasional basis and fine manipulation of the right hand to occasional basis.” Tr. 

721. However, as a caveat, Dr. Murphy indicated, “[the] current physical limitations appear to be 

secondary to a recent right shoulder injury. The findings suggest a rotator cuff tear . . . her 

current physical limitations should diminish over time.” Id. The ALJ accorded Dr. Murphy’s 

opinion “little weight,” because there was “no definitive diagnosis of a rotator cuff tear or 

diagnostic imaging to support this assertion, and little treatment for shoulder problems 

throughout the medical record.” Tr. 30-31. The ALJ further stated, “[e]ven Dr. Murphy’s 

evaluation notes the recent shoulder injury improving and limitations should diminish.” Tr. 31.

 Plaintiff contends that in rejecting Dr. Murphy’s opinion, the ALJ erroneously 

disregarded various medical imaging and other records evincing shoulder pain and treatment. 

Pl.’s Br. 14-15. However, Dr. Murphy indicated Plaintiff’s rotator cuff tear was due to a discrete 

injury occurring six weeks prior to the examination. Tr. 718. Thus, the records and imaging from 

2008 identified by Plaintiff would not be relevant to any “recent” shoulder cuff tear. See Pl.’s Br. 

14; tr. 478. Further, while Plaintiff highlights treatment records for neck pain and right arm 

weakness in January 2012, there is no indication that those injuries were related to a shoulder 

cuff injury as opposed to Plaintiff’s degenerative cervical spine condition, which the ALJ 

identified at step two of the sequential evaluation process. See tr. 23, 932-45; Pl.’s Br. 14-15. 

Plaintiff also cites complaints of shoulder pain at a physician’s visit in April 2012, but it appears 

the physician attributed Plaintiff’s shoulder complaints to her cervical spine condition, as he did 

not list a shoulder problem aside from neck pain. Tr. 1626. 

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 In any event, the ALJ accounted for reduced range of motion in the shoulder and neck in 

his RFC formulation, finding Plaintiff cannot “reach above shoulder level bilaterally.” Tr. 28. 

Moreover, Plaintiff has not presented evidence that her alleged shoulder cuff injury is ongoing, 

lasted or was expected to last for more than 12 months, or is causing more limitation than 

contemplated by the RFC. As such, although Plaintiff provides an alternative interpretation of 

the evidence, the ALJ’s rational interpretation, supported by specific records in the evidence, 

should be upheld. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 

The ALJ did not err in evaluating Dr. Murphy’s opinion regarding Plaintiff’s shoulder cuff 

allegations. 

4. Lay Testimony 

 Plaintiff contends the ALJ did not provide legally sufficient reasons to disregard the lay 

testimony of her mother, Diane Gilbert. Lay testimony regarding a claimant’s symptoms or how 

an impairment affects claimant’s ability to work is competent evidence that an ALJ must take 

into account. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citations omitted). The 

ALJ must provide “reasons germane to each witness” in order to reject such testimony. Lewis v. 

Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (citations omitted). 

The ALJ found Ms. Gilbert’s testimony was of little probative value because it was 

inconsistent with the objective medical record, based on self-interest, and based on Plaintiff’s 

subjective complaints. Review of the record reveals that the ALJ’s finding is supported by a 

scintilla of evidence in the record: although Ms. Gilbert indicated Plaintiff had limitations in 

squatting, bending, standing, walking, and kneeling, Dr. Murphy expressly indicated Plaintiff 

had no standing or walking limitations. Tr. 721. 

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However, Ms. Gilbert provided many other observations regarding Plaintiff’s 

impairments and daily activities which are consistent with the medical evidence, including 

crying spells, inability to handle stress effectively, difficulty with social interactions and fear of 

others, some memory problems, needing reminders to attend to basic tasks, and confusion as a 

side-effect of Seroquel taken for depression. See tr. 331-38. It is undisputed on this record that 

Ms. Gilbert lives with Plaintiff and therefore presumably has extensive first-hand experience 

with Plaintiff’s activities and limitations. See Nguyen, 100 F.3d at 1467; SSR 06-03p available at 

2006 WL 2329939, at *6 (Aug. 9, 2006). 

Ms. Gilbert’s observations were also generally consistent with findings by Scott Kapel, 

Ph.D., who diagnosed major depressive disorder and alcoholism, noted concentration deficits, 

avoidance of others, hypervigilance and exaggerated startle response, and posttraumatic stress 

disorder (“PTSD”); Kim Goodale, Psy.D., who diagnosed major depressive disorder and 

alcoholism, noted memory deficits, and cognitive impairment; Dr. Marcel, who diagnosed major 

depression and alcoholism; and the state agency reviewing physicians, who noted limitations in 

activities of daily living, social functioning, understanding and memory, and concentration, 

persistence, and pace. See tr. 97, 99-100, 113-15, 713-14, 720-21, 806, 1746, 1752. Thus, 

considering the record as a whole, inconsistency with the medical evidence is not a germane 

reason to discredit Mr. Gilbert’s testimony. 

Further, although the ALJ found Ms. Gilbert’s observations were predominantly based on 

Plaintiff’s self-reports, he did not provide any support for the finding, aside from the purported 

inconsistency with the medical record. Although the Commissioner argues Ms. Gilbert’s 

inability to articulate specific limitations and inconsistencies in her own report are grounds to 

discredit her testimony, the argument is not persuasive. See Def.’s Br. 11. It is not mutually 

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exclusive that Ms. Gilbert would observe Plaintiff’s impairment affects her walking ability, but 

not know precisely how far she is able to walk without needing to stop and rest. See tr. 337. 

Similarly, it is not unreasonable that Ms. Gilbert would recognize that although Plaintiff 

apparently has difficulty paying attention, she could retain the ability to follow a simple recipe. 

Id. Indeed, Dr. Kaper, whom the ALJ accorded “great weight,” expressly noted Plaintiff can 

follow “simpler recipes, and finds that she has to read and re-read the recipe in order to complete 

the meal.” Tr. 1751. At the same time, Dr. Kaper found mild impairment in following simple 

instructions, and moderate difficulty in understanding, remembering, and carrying out complex 

instructions. Id. 

Finally, the ALJ chose to accord Ms. Gilbert’s testimony little weight because of her 

close relationship with Plaintiff, inferring a shared interest in procuring benefits. Tr. 30. The 

Commissioner argues that pursuant to Greger v. Barnhart, 464 F.3d 968 (9th Cir. 2006), a close 

personal relationship and the possibility of undue influence of a desire to help Planitiff are valid 

reasons to disregard lay witness testimony. Def.’s Br. 10-11. However, the lay witness in Greger 

was found to have made statements inconsistent with Greger’s presentation to physicians and his 

failure to participate in treatment. Greger, 464 F.3d at 968. Contrary to the Commissioner’s 

assertion, the Greger court did not hold that the lay witness’s personal and/or pecuniary interest 

alone was a sufficient reason germane to Ms. Gilbert to disregard her testimony. See Def.’s Br. 

10-11. 

As is often the case, close family and/or friends are often in the unique position to 

observe a claimant and provide probative testimony regarding how a claimant’s limitations might 

affect their ability to work. 20 C.F.R. § 404.1513(d)(4); Dodrill v. Shalala, 12 F.3d 915, 918-19 

(9th Cir. 1993). Accordingly, while a personal or pecuniary interest may be one factor in 

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assessing the credibility of lay witness, a familial relationship does not necessarily engender noncredible testimony. Thus, absent specific support in the record, the ALJ’s rationale cannot simply 

rest on the existence of a close familial relationship and be said to be germane to the witness. 

Based on all of the foregoing, the ALJ erred in rejecting the testimonial evidence of Ms. 

Gilbert. 

5. Step Five Errors 

Plaintiff argues the ALJ erred by failing to address all of Plaintiff’s limitations when 

posing hypothetical questions to the VE during the administrative hearing. The RFC and 

corresponding hypothetical question at step five must include all of the limitations supported by 

the administrative record. Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001). The 

Commissioner contends questions to the VE were properly based on the ALJ’s RFC, which was 

properly formulated according to the findings at steps one through four. However, because the 

ALJ’s findings throughout the sequential evaluation process included legal error, the 

hypothetical questions were incomplete, and therefore of no evidentiary value. Gallant v. 

Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 

Plaintiff further contends the ALJ failed to establish Plaintiff could perform a significant 

number of jobs in the national economy because the occupations identified at step five were 

incompatible with the RFC. Specifically, Plaintiff argues that because the RFC included a 

limitation to jobs requiring no more than “one to two step instructions” (with few decisions and 

few changes), Plaintiff is precluded from performing the four occupations the ALJ identified at 

step five. Pl.’s Br. 10-11; Pl.’s Reply 1-2; see tr. 26, 28-29. Based on the prior finding that the 

hypothetical questions were legally deficient, the Court does reach the question of whether the 

RFC comports to the occupations identified at step five. However, assuming arguendo the 

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hypothetical questions were otherwise valid, the ALJ nonetheless failed to identify appropriate 

occupations at step five. 

In determining what occupations a claimant is able to perform, an ALJ relies on the 

Dictionary of Occupational Titles (“DOT”), which is the agency’s primary source for 

information regarding various requirements for each listed occupation. 20 C.F.R. 

§§416.966(d)(1), 416.969; Terry v. Sullivan, 903 F.2d 1273, 1286 (9th Cir. 1990). One requisite 

the DOT includes is the General Educational Development (“GED”) level, which describes the 

“aspects of education (formal and informal) . . . required of the worker for satisfactory job 

performance.” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (quoting DOT, App. C, 1991 

WL 688702 (4th ed. 1991)). The GED levels for “Reasoning Development” are organized on an 

ascending scale from Level 1 to Level 6. Id. 

The first three GED Reasoning Development levels are defined as follows: 

LEVEL 1: Apply commonsense understanding to carry out simple 

one- or two-step instructions. Deal with standardized situations 

with occasional or no variables in or from these situations 

encountered with the job. 

LEVEL 2: Apply commonsense understanding to carry out 

detailed but uninvolved written or oral instructions. Deal with 

problems involving a few concrete variables in or from 

standardized situations. 

LEVEL 3: Apply commonsense understanding to carry out 

instructions furnished in written, oral, or diagrammatic form. Deal 

with problems involving several concrete variables in or from 

standardized situations. 

Id. 

Here, the ALJ identified four occupations, that, when not using substances, Plaintiff’s 

RFC allowed her to perform: kitchen helper, linen room worker, mail room clerk, and office 

helper. Tr. 33. However, Plaintiff’s RFC limits her to “simple, routine, repetitive tasks . . . . .” Tr. 

28-29. Thus, as the Commissioner concedes, because the jobs of linen worker and mail room 

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clerk are classified as GED Level 3 Reasoning, Plaintiff’s limitation to “simple, routine, 

repetitive tasks” precludes linen worker and mail room clerk. See Zavalin, 778 F.3d at 847 

(joining Tenth Circuit in holding an “apparent” conflict between the RFC to perform simple, 

repetitive tasks and the demands of GED Level 3 Reasoning); Def.’s Br. 13.

Plaintiff further argues that her additional RFC limitation of “one or two step 

instructions” also precludes the occupations of kitchen helper and office helper, which require 

GED Level 2 Reasoning as defined by the DOT. Plaintiff contends that because Level 2 

Reasoning requires “detailed but uninvolved written or oral instructions,” it is necessarily more 

rigorous than Level 1, which requires the ability to “carry out one- or two-step instructions.”

Accordingly, argues Plaintiff, her limitation to carry out “one or two step instructions” precludes 

the more demanding reasoning development of GED Level 2 Reasoning occupations. 

At the time the parties submitted their written arguments, the Ninth Circuit had not 

addressed this specific issue. However, in August 2015, the Ninth Circuit held that there is an 

apparent conflict between an RFC limitation of performing one- and two-step tasks and the 

requirements set forth for GED Level 2 Reasoning occupations. Rounds v. Comm’r Soc. Sec. 

Admin., 807 F.3d 996, 1003 (9th Cir. 2015) (holding that an RFC limitation to one to two-step 

tasks precluded Level 2 occupations requiring the ability to follow one- to two-step instructions). 

Here, as in Rounds, neither the ALJ nor VE addressed the apparent conflict between the RFC 

limiting Plaintiff to jobs with one- to two-step instructions and the demands of the Level 2 

Reasoning. See id. at 1004. Accordingly, the ALJ’s step five findings cannot be said to be 

supported by substantial evidence. Id. 

Therefore, even if the Court were to find the step five questions to the VE were not 

insufficient because of the ALJ’s erroneous RFC formulation, none of the occupations identified 

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at step five are valid pursuant to the Ninth Circuit’s decision in Rounds. Accordingly, the ALJ’s 

decision is not supported by substantial evidence and should be, therefore, reversed. 

6. Remand 

 Plaintiff argues that this case be remanded for an award of benefits, or as a lesser 

alternative, further proceedings. When a court determines the Commissioner’s ultimate disability 

decision includes legal error and/or is unsupported by substantial evidence, the court may affirm, 

modify, or reverse the decision by the Commissioner “with or without remanding the case for a 

rehearing.” 42 U.S.C. § 405(g); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 

(9th Cir. 2014). However, where it is clear from the record that an ALJ’s error was 

“inconsequential” to the ultimate decision, the error is considered harmless and the decision must 

be upheld. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1055-56 (9th Cir. 2006). Here, the ALJ 

failed to provide clear and convincing reasons to discredit Plaintiff’s symptom allegations, did 

not consider the medical opinion of Dr. Marcel, did not provide legally sufficient reasons to 

disregard the lay testimony of Ms. Gilbert, and committed further errors of law at step five. 

Because any of these errors may have affected the ultimate determination of non-disability, 

remand is appropriate. 

In determining whether to remand for immediate payment of benefits, the Ninth Circuit 

employs the "credit-as-true" standard when the following requisites are met: (1) the ALJ has 

failed to provide legally sufficient reasons for rejecting evidence, (2) the record has been fully 

developed and further proceedings would serve no useful purpose, and (3) if the improperly 

discredited evidence were credited as true, the ALJ would be required to find the plaintiff 

disabled on remand. Garrison, 759 F.3d at 1020. Even if all of the requisites are met, however, 

the court may still remand for further proceedings, “when the record as a whole creates serious 

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doubt as to whether the claimant is, in fact, disabled[.]” Id. at 1021. “Serious doubt” can arise 

when there are “inconsistencies between the claimant’s testimony and the medical evidence,” or 

if the Commissioner “has pointed to evidence in the record the ALJ overlooked and explained 

how that evidence casts into serious doubt” whether the claimant is disabled under the Act. 

Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir 2015) (citing Burrell v. Colvin, 775 F.3d 1133, 

1141 (9th Cir. 2014) (internal quotation marks omitted)). 

As discussed at length above, the ALJ’s RFC and hypothetical questions based thereon 

were premised on erroneous findings regarding Plaintiff’s symptom testimony, observations of 

the lay witness, and apparently without considering the medical opinion of treating physician Dr. 

Marcel. The ALJ committed further error by failing to identify appropriate occupations in the 

national economy consistent with the (deficient) RFC. 

Although Plaintiff argues the case should be remanded for immediate payment of 

benefits, the record before the court requires further development in order to determine whether 

Plaintiff is, in fact, disabled under the Act. Accounting for the ALJ’s errors, the record remains 

somewhat equivocal as to the specific limitations the testimonial evidence describes. 

Additionally, although the ALJ erroneously disregarded the medical opinion of Dr. Marcel, the 

ALJ did not err in evaluating the medical opinion of Dr. Murphy. 

Further, although the ALJ did not produce valid evidence of substantial numbers of 

appropriate jobs in the national economy, there were not questions (or answers) as to whether 

Plaintiff can perform other jobs in the national economy of the GED Level 1 Reasoning 

classification. 

Finally, because Plaintiff has a substance disorder diagnosis that has been adjudged as 

being a contributing factor material to the ultimate disability decision, serious doubt remains as 

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to whether Plaintiff would be considered disabled under the Act if she were to discontinue 

overuse of alcohol. See 42 U.S.C. § 423(d)(2)(C). 

Thus, on this mixed record, the disability determination is not straightforward, even if the 

Court were to credit all of the discredited evidence as true. It is beyond the Court’s purview to 

reevaluate and re-weigh the evidence, formulate a corresponding RFC, and attempt to establish 

whether Plaintiff can perform work, in order to determine whether Plaintiff is disabled. Further 

administrative proceedings are necessary. 

Conclusion

 A judgment should be entered REVERSING the Commissioner’s decision and 

REMANDING this action to the SSA for further proceedings. 

Scheduling Order

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

any, are due August 11, 2016. If no objections are filed, then the Findings and Recommendation 

will go under advisement on that date. 

 If objections are filed, then a response is due within 14 days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

 DATED this 25th day of July, 2016. 

 _/s/ John Jelderks_________________________ 

 John Jelderks 

 U.S. Magistrate Judge 

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