IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BILLY L. LITTLE, 

Plaintiff, 

V. 

CAROLYN W. COLVIN, 

Acting Commissioner of the Social Security 

Administration, 

Defendant. 

MCSHANE, Judge: 

Civ. No. 6:14-cv-01680-MC 

OPINION AND ORDER 

Plaintiff Billie Lee Little requests judicial review of a final decision of the Commissioner 

of Social Security that denied his application for disability insurance benefits (DIB) and 

supplemental security income payments (SSI) under Titles II and XVI of the Social Security Act 

(the Act). 

The issues presented to this Comt are (1) whether the Administrative Law Judge (ALJ) 

made a de facto reopening of Plaintiffs prior applications under Titles II and XVI of the Act; (2) 

whether the ALJ erred in failing to address Plaintiffs request to reopen his prior application for 

benefits due to Plaintiffs alleged physical and mental inability to appeal the denials; (3) whether 

the ALJ ened in failing to address the findings of Dr. Morrell or the opinion of Dr. Schmechel 

that Plaintiff was markedly impaired in his ability to accept supervision; (4) whether the ALJ 

failed to give clear and cqnvincing reasons for rejecting Plaintiffs testimony; (5) whether the 

ALJ ened in discrediting the lay witness testimony of Christina Little, Plaintiffs wife; and (6) 

1 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 1 of 19
whether the ALJ erred in finding there are jobs in significant numbers within the national 

economy that Plaintiff can perform. Because the ALJ failed to provide clear and convincing 

reasons for failing to consider the opinions and observations Dr. Scmechel, and failed to provide 

gennane reasons for rejecting Ms. Little's testimony in reaching his determination, the 

Commissioner's decision is REVERSED, and this matter is REMANDED for further 

proceedings. 

PROCEDURAL BACKGROUND 

Plaintiff applied for DIB on December 30, 2008, and for SSI on January 2, 2009. Tr. 84-

85, 166.1 These claims were denied on June 24, 2009. Tr. 85, 114. Plaintiff did not appeal, but 

re-applied for DIB January 6, 2011, alleging disability as of October 19, 2007. Tr. 204. Plaintiff 

requested a hearing after being denied initially and upon reconsideration, and appeared before 

the Honorable Anthony Johnson, Jr. on March 21, 2014. Tr. 119-22, 129-34. On April 16, 2013, 

Plaintiff requested the reopening of the prior applications, pursuant to SSR 91-5p. Tr. 165. 

Plaintiffs claim was ultimately denied on May 29, 2013. Tr. 14-31. Review of this decision was 

denied by the Appeals Council in August, 2014. Tr. 1-6. 

FACTUAL BACKGROUND 

Plaintiff was born in October 26, 1971. Tr. 204. He is a high school graduate and has 

worked most recently as a dryer supervisor. Tr. 72-73, 235. 

Plaintiff was diagnosed with major depression in 2006. Tr. 406-08. In October 2007, 

Plaintiff was found to have herniated discs in his back. Tr. 372. He had previously suffered a disc 

herniation that was successfully treated with surgery. Id Plaintiff had a microdiscectomy 

1 Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative record filed herein as 

ECFNo.8. 

2 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 2 of 19
perfo1med February 28, 2008, after less invasive treatment options failed. Tr. 389, 395. When his 

medication failed to control his pain, Plaintiff was reevaluated by Clyde Keys, M.D. Tr. 412. Dr. 

Keys noted that Plaintiff had gained 42 pounds and recommended that Plaintiff lose weight to 

decrease pain. Id. Less than one month later, on January 3, 2009, Dr. Keys noted that Plaintiff 

had gained an additional 12 pounds. Id. 

On May 20, 2009, Plaintiff was examined by Jennifer Micek, D.O., for back pain and 

depression. Tr. 432. During the examination, Plaintiff stated that he thought about suicide every 

morning and continued to suffer low back pain radiating into his right buttock. Id. Plaintiff also 

reported that after 30 minutes of walking he needed to lie down for a couple of hours. Id. 

In June 2009, Plaintiff was examined by Linda Schmechel, Ph.D., at the request of the 

Oregon Disability Determination Services (ODDS). Tr. 435. Dr. Schmechel noted that Plaintiff 

had an angry look during examination. Id. Dr. Schmechel thought that Plaintiffs behavior 

throughout his life reflected aspects of a personality disorder, including compulsive computer 

gaming; paranoid thinking; and rigid expectations of others. Dr. Schmechel believed that the 

combination of a lack of work and pain from physical injuries may have exacerbated this 

personality disorder. Tr. 439. Dr. Schmechel noted that Plaintiff retained full ability to carry out 

and understand both simple and complex instructions, but he would "not fare well in work that 

requires cooperation with others or highly interpersonal work." Tr. 439. She also found that his 

ability to accept supervision seemed "markedly impaired at present." Id. Plaintiffs "capacity to 

manage funds was questionable" as he was "so preoccupied with proving himself not abusive to 

children he might not attend payment deadlines." Tr. 440. Dr. Schmechel noted that, during the 

examination, Plaintiffs personal subjective distress was extremely high. Id. Dr. Schmechel 

diagnosed depression, adjustment disorder with anxiety, and mixed personality disorder 

3 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 3 of 19
(obsessive-compulsive and paranoid traits). Tr. 440. She assigned Plaintiff a Global Assessment 

Functioning (GAF) score

2 of 46. Id 

The following day, Plaintiff was examined by Kuti Brewster, M.D., P.C., C.l.M.E., at the 

request of the ODDS. Tr. 441. Dr. Brewster noted that Plaintiff was in mild distress, walked with 

an antalgic gait, and transfe1Ted on and off of the examination table with difficulty. Tr. 447. Dr. 

Brewster also noted that Plaintiff"perfotms all activities of self-care" such as bathing and 

washing his hair. Tr. 445. Dr. Brewster further noted that Plaintiff performs one hour of yard 

work per day. Tr. 446. Dr. Brewster diagnosed low back pain status post multiple discectomies, 

recurrent herniation, and lumbar degenerative disc disease. Tr. 450. He found decreased 

sensation at S 1 distribution on the right. Id. Dr. Brewster found Plaintiff generally credible with 

clinical documentation supp01iing the recurrence of pain and no d1ug-seeking behavior. Id Dr. 

Brewster stated Plaintiff could walk for two hours in an eight-hour day, had no restrictions in 

sitting, and could lift a maximum of ten pounds frequently. Tr. 450-51. 

On June 2 and July 6, 2009, Eric Morrell, Ph.D., examined Plaintiff at the request of 

Child Welfare Social Services. Plaintiff reported some mild symptoms of panic-like anxiety and 

some paranoia. Tr. 705. Plaintiff received a 1-2/2-1 profile code, suggesting a tendency to 

"exhibit physical symptoms with little demonstrable medical pathology." T.R. 711. According to 

Dr. Monell, this profile code also suggests the use of subjective physical complaints "for selfserving gains." Id. The MMPI-2 was deemed "questionably valid," and Dr. Morrell noted that 

Plaintiffs "[n]arcissistic indicators approach but fall shy of clinical significance, as do antisocial, 

2 A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to 

reflect the individual's need for treatment." Vargas v. Lambert, 159 F .3d 1161, 1164 n.2 (9th Cir.1998) (citing 

Diagnostic and Statistical Manual of Mental Disorders 20 (rev. 3d ed. 1987)). A GAF score includes two 

components: symptom severity and functioning. See Diagnostic and Statistical Manual of Mental Disorders 32 (rev. 

4th ed. 2000). 

4 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 4 of 19
schizoid, schizotypal, and paranoid tendencies." Id. Dr. Monell diagnosed dysthymic disorder; 

history of alcohol and cannabis abuse in sustained full remission, per self-report; histo1y of 

adjustment disorder with disturbance of conduct in adolescents; perpetrator of childhood 

physical abuse; and personality disorder NOS (obsessive compulsive, aggressive, 

schizotypal/paranoid, narcissistic) with a GAF of 49-50. Tr. 713. Plaintiff appeared to have a 

low-grade chronic depression. Tr. 714. Plaintiffs therapist thought his mental state was 

improving, but Dr. Morrell noted that Plaintiff was not capable of "acknowledging his issues 

with [Dr. M01Tell] during the evaluation" and presented as "suspicious, prone to blame others, 

and concretely focused on trivial details such as his medication as the culprit." Tr. 716. 

In January 2010, Leslie Morey, Ph.D., administered a Personality Assessment Inventory 

(PAI) upon Plaintiff, and noted that ce1iain indicators fell out of the normal range, suggesting 

that Plaintiff "may not have answered in a completely forthright manner." Tr. 539, 544. The PAI 

suggested the following diagnoses: adjustment disorder, unspecified; rule out dysthymic 

disorder; and personality disorder NOS (mixed personality disorder, with borderline, antisocial, 

paranoid, and schizoid features). Tr. 547. Dr. Morey noted that Plaintiffs self-description 

indicated "significant suspiciousness and hostility in his relations with others." Tr. 544. 

In April 2011, Plaintiff saw Theresa Lundy, M.D., and repo1ied constant back pain and 

left knee pain "occurring constantly with an intensity at [six]" out often. Tr. 670-71. Dr. Lundy 

noted that Plaintiff had done well on amitriptyline and did not know why he had quit taking the 

medication. Dr. Lundy diagnosed post laminectomy syndrome, and prescribed amitriptyline. Tr. 

670. 

Later in April 2011, Plaintiff was examined by Anthony Glassman, M.D., a physical 

medicine and rehabilitation specialist. Tr. 658. Plaintiffrepmied being depressed but not 

5 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 5 of 19
suicidal, and he refused antidepressants. Id. Plaintiff reported that Naprosyn gave him 50% pain 

relief and that his pain was "decreased by lying down and exacerbated by any kind of 

loadbearing." Id. Dr. Glassman noted that his gait was antalgic on the right. Tr. 659. Dr. 

Glassman diagnosed degenerative disc disease status post laminectomy with residual scar tissue 

and recmrnnt hemiation, producing sciatic symptoms and obesity. Id. Objective evidence led to a 

showing of decreased sensation in Plaintiffs right lateral foot and an absent Achilles tendon 

reflex. Id. Dr. Glassman stated that Plaintiff was capable of lifting 35 pounds occasionally and 20 

pounds frequently, and could walk up to one half hour at a time or a total of two hours in an 

eight-hour day. Id. 

In June 2011, Plaintiff again visited Dr. Lundy and reported Naprosyn and amitriptyline 

were no longer helping his symptoms and that he was still very depressed and frustrated with his 

"lack of ability to get disability" during a medical visit at the UCHC Roseburg Clinic. Tr. 698. 

In March 2012, Plaintiff was examined by Kelli Gaffield, a nurse practitioner in Dr. 

Lundy's office who noted he leaned to the right and was not able to sit more than five or ten 

minutes, and could walk about fifteen minutes before needing to rest. Tr. 693-94. Plaintiff 

reported to Gaffield that he was able to do much more walking and stretching until falling in 

April 2012, requiring an injection oflidocaine and kenalog. Tr. 689. In July 2012, Plaintiff 

reported worsening right leg and sciatic pain, stating that he was perfo1ming "all the stretching 

and feels good relief from that," but that walking was "excrnciating." Tr. 685. Gaffield noted that 

sitting was very difficult for Plaintiff and he could only tolerate standing if not bearing weight on 

his right leg. Tr. 686. She gave Lyrica samples which, as Plaintiff later reported to Gaffield in 

August 2012, "worked wonders" for the sciatic pain." Tr. 682-83. Gaffield noted that the status 

of his depression was "[c]ontrolled," and that Plaintiffs obesity and sciatica were improving. Tr. 

6 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 6 of 19
682. During this period, Plaintiff was "able to walk one and one half miles per day and do all the 

chores and activities he was previously unable to do." Tr. 683. 

In February 2013, Plaintiff sought urgent care for an acute lower back flare up. Tr. 718. 

He reported that his pain was usually well-maintained with medication, but that he had done 

extra walking that day. Id 

DISABILITY ANALYSIS FRAMEWORK 

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

by reason of any medically dete1minable physical or mental impahment 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). The Social Security Administration utilizes a five-step sequential evaluation to 

determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of 

proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden 

with respect to those steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 

404.1520. At step five, the Commissioner bears the burden of demonstrating that the claimant is 

capable of making an adjustment to other work after considering the claimant's RFC, age, 

education, and work experience. Id. "If the Commissioner fails to meet this burden, then the 

claimant is disabled. If, however, the Commissioner proves that the claimant is able to perfmm 

work that exists in significant numbers in the national economy, then the claimant is not 

disabled." Carrollv. Colvin, No. 6:12-cv-02176-MC, 2014 WL4722218, at *2 (D. Or. Sep. 19, 

2014). 

7 ~OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 7 of 19
SUMMARY OF ALJ FINDINGS 

At the first step of the five-step sequential evaluations process, the ALJ found that 

Plaintiff did not engage in substantial gainful activity at any time following his alleged onset date 

of October 20, 2007. Tr. 18. The ALJ then proceeded to the second step of the analysis. 

At the second step, the ALJ found that Plaintiff suffers from the following impairments: 

degenerative disc disease status-post laminectomy, failed back syndrome, obesity, depression, 

anxiety, and a personality disorder. Id. 

At the third step, the ALJ found that none of Plaintiffs impai1ments were the equivalent 

of any of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. Tr. 18. The ALJ therefore 

properly conducted an assessment of Plaintiffs residual fi.mctional capacity (RFC). 

Specifically, the ALJ found that Plaintiff retains 

The residual functional capacity to lift/cany al least 10 pounds, 

walk and stand for a total of two hours of an eight-hour workday, 

and sit for six hours of an eight-hour workday. These functional 

abilities are consistent with sedentary work. The claimant's 

subjective complaints of lower back and leg pain and other 

subjective symptoms may limit him to only sedentary exertion. He 

may also require work allowing alternating sitting/standing due to 

his allegations that he is unable to sit for prolonged periods. 

Tr. 23. The ALJ further limited Plaintiffs RFC to unskilled jobs. 

At the fomih step of the five-step process, the ALJ found that Plaintiff was unable to 

perfonn any of his past relevant work. Tr. 23. 

At the fifth step, after considering the Plaintiffs RFC, age, education, and work 

experience in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, 

app. 2m, the ALJ found there were jobs existing in significant numbers in the national and local 

economy that Plaintiff was able to perform. Tr. 24. The vocational expert (VE) indicated, given 

8 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 8 of 19
Plaintiffs limitations, that he could perform the occupations of stuffer, polisher, and final 

assembler. Tr. 24. On that basis, the ALJ concluded that Plaintiff was not disabled as defined in 

the Act at any time between October 20, 2007, and May 29, 2013. Tr. 24-25. 

STANDARD OF REVIEW 

The reviewing court shall affirm the Commissioner's decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

See 42 U.S.C. § 405(g); Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 

2004). To determine whether substantial evidence exists, this Court reviews the administrative 

record as a whole, weighing both the evidence that supports and that which detracts from the 

ALJ's conclusion. lvfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "If the evidence can 

reasonably support either affinning or reversing, 'the reviewing comt may not substitute its 

judgment' for that of the Commissioner."' Gutierrez v. Comm'r a/Soc. Sec. 740 F.3d 519, 523 

(9th Cir. 2014) (quoting Reddick v. Chat er, 157 F.3d 715, 720-21 (9th Cir. 1998)). 

DISCUSSION 

Plaintiff contends that the ALJ' s decision is not supported by substantial evidence and is 

based on an application ofinco1Tect legal standards. In pmticular, Plaintiff argues that: (1) the 

ALJ made a de facto reopening of Plaintiffs prior applications under Titles II and XVI of the 

Act; (2) absent a de facto reopening, the ALJ failed to address Plaintiffs request to reopen his 

prior application for benefits due to his physical and mental inability to timely appeal the denials; 

(3) the ALJ failed to address the findings of Dr. Morell or the opinion of Dr. Schmechel that 

Plaintiff was markedly impaired in his ability to accept supervision; ( 4) the ALJ e1Ted in failing 

to give clear and convincing reasons for rejecting Plaintiffs testimony; (5) the ALJ e1Ted in 

9 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 9 of 19
failing to credit a lay witness's testimony; and (6) the ALJ eiTed in finding that there are jobs in 

significant numbers within the national economy that Plaintiff can perform. 

I. De Facto Reopening of2008 and 2009 Applications 

When an ALJ reopens a prior adjudication by considering "on the merits" whether a 

claimant was disabled during an already-adjudicated period, the Commissioner's decision 

regarding the prior period is subject to judicial review. Lester v. Chafer, 81 F.3d 821, 827 n. 3 

(9th Cir. 1995). Plaintiff argues that the ALJ made a de facto reopening of Plaintiffs previous 

denials because the ALJ failed to note Plaintiffs previous applications, did not address reopening in his decision, and accepted Plaintiffs alleged onset date of October 20, 2007, without 

comment. The Commissioner responds that references to October 2007 are insufficient to 

constitute a reopening of a previously adjudicated period, and amounts to nothing more than a 

harmless e11'0r. 

Generally, when the Commissioner does not expressly reopen a decision as to an earlier 

period, that decision is not subject to judicial review. Id. at 827. There is an exception to this 

general rule, however, where the Commissioner considers the issue of a plaintiffs disability 

during the already-adjudicated period "on the merits." Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir. 

2011). 

The ALJ knew of the previous denial of Plaintiffs applications for the period of October 

19, 2007-January 6, 2011, yet he nonetheless considered evidence of disability on June 16, 2009, 

which fell within an already-adjudicated period of that date range. Tr. 21, 434. By considering a 

period of disability that included an already-adjudicated period, the ALJ de facto reopened the 

previous proceedings. See Lewis, 236 F.3d at 510. Moreover, the ALJ's decision explicitly 

dete1mines the Plaintiff"has not been under a disability ... from October 20, 2007, through 

10- OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 10 of 19
[May 29, 2013]." Tr. 24-25. When an ALJ considers evidence of disability that predates a 

previous denial of disability, and the ALJ accepts "without comment the alleged onset date," it is 

appropriate to treat the ALJ's actions as a de facto reopening. Lewis, 236 F.3d at 510. I find that 

the ALJ reopened the two prior claims by considering evidence related to an already-adjudicated 

period. On remand, the Commissioner must consider all evidence relevant to Plaintiffs case 

from October 20, 2007, onward. 

II. Plaintiff's Mental Capacity and Alleged Inability to Appeal 

Plaintiff contends that the ALJ erred in failing to reopen the 2009 denials of his prior 

application because he lacked mental capacity to contest the denials. In response, Defendant 

argues that Plaintiff failed to present a colorable constitutional claim that he lacked the mental 

and physical capacity to appeal the denials of his prior applications. The Comi has already 

determined that the ALJ de facto reopened Plaintiff's prior denials. This argument is therefore 

largely moot. This issue is nonetheless relevant to the extent Plaintiff may attempt to reasse1i his 

allegations. Accordingly, I address them below. 

The Act limits judicial review of Commissioner's decisions to those considered final 

decisions made after a hearing. 42 U.S.C. § 4059(g). A decision to not reopen a prior final 

decision is discretionary and not considered a final decision, and is therefore not subject to 

judicial review. Califano v. Sanders, 430 U.S. 99, 107-09, 51 L. Ed. 2d 192, 97 S. Ct. 980 

(1977). In Sanders, the Supreme Court recognized an exception to the general rule where a 

colorable constitutional claim is made. Id. at 109. The Sanders exception applies to any colorable 

constitutional claim that implicates the right to a meaningful oppmiunity to be heard. Evans v. 

Chafer, 110 F.3d 1480 (9th Cir. 1997). 

11 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 11 of 19
In this case, Plaintiff asse1ts that he missed deadlines due to his alleged lack of mental 

capacity to understand the procedures for requesting review. In making a determination as to 

whether Plaintiff lacked mental capacity to understand the procedures for requesting review, four 

factors must be considered: (1) inability to read or write; (2) lack of facility with the English 

language; (3) limited education; and ( 4) any mental or physical condition which limits the 

claimant's ability to do things for him/herself. SSR 91-Sp, available at 1991WL208067. The 

adjudicator will "resolve any reasonable doubt in favor of the claimant." Id. 

Understanding appointment times and dates are not dissimilar to complying with filing 

deadlines. On June 6, 2009, Plaintiff was able to drive himself to a psychological evaluation. Tr. 

435. The record reflects Plaintiff is capable of understanding appointment times and dates and 

has, on occasion, "arrived a half hour early" for appointments. Tr. 436. Plaintiff asse1ts that he 

was severely limited at the time his disability claim was denied due to being "preoccupied with 

proving he was not abusive to children." Tr. 440. The Court does not find emotional 

preoccupation sufficient to rise to the level of incapacity. 

Plaintiff also argues that Dr. Schmechel's observations that Plaintiff had an angry look 

and constantly wrung his hands throughout the session are indicative of Plaintiffs mental 

incapacity. Tr. 436. The coutt does not find that anger or nervous ticks such as wringing one's 

hands rise to the level of incapacity. Plaintiffs alleged inability to manage funds cannot 

reasonably be equated to a complete incapacity or inability to make a filing for extension of time. 

Moreover, Plaintiffs extreme drive to prove himself a worthy parent points to capability more so 

than incapacity. If Plaintiff can, as he contends, care for his children, his claim that he cannot 

take care of himself is contradictory. 

12 - OPINION AND ORDER 

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On this record, the Court concludes Plaintiff does not allege a colorable constitutional 

claim that he lacked the mental capacity to understand the procedures for requesting review. 

III. The Testimony of Doctors Schmechel and Morell 

Plaintiff next claims the ALJ etTed in failing to address the opinions ofDrs. M01Tell and 

Schmechel. The Commissioner responds that the opinions and findings of the two doctors are 

outside the relevant time period, and thus the probative value of the two opinions is insignificant. 

The Court rejects Commissioners response, as the opinions of the doctors fall well within the 

alleged disability stait date beginning October 20, 2007. Tr. 17. However, while the Comt finds 

that the ALJ eITed in failing to address the opinion and findings of Dr. Schmechel, he did not err 

in failing to address the opinion and findings of Dr. Morrell as it is consistent with the ALJ's 

opinion. 

Where there is conflicting medical evidence in the record, "the ALJ is charged with 

determining credibility and resolving any conflicts." ChaudhlJ' v. As true, 688 F .3d 661, 671 (9th 

Cir. 2012). "An ALJ may reject a treating physician's opinion ifit is based 'to a large extent' on 

a claimant's self-reports that have been prope1ty discounted as incredible." Tommasetti v. Astrue, 

533 F.3d 1035, 1041 (9th Cir. 2008). An ALJ may only reject an uncontradicted examining 

doctor's opinion for clear and convincing reasons. Lester, 81 F.3d at 830. 

Plaintiff contends that Dr. Morrell' s psychological assessment was not accounted for in 

the ALJ's opinion. After careful review of the record, I find that the ALJ appropriately 

considered Dr. MotTell's opinion. As Dr. Morell noted, Plaintiffs narcissistic indicators 

"approach but fall shy of clinical significance, as do [his] antisocial, schizoid, schizotypal, and 

paranoid tendencies." Tr. 711. Dr. Morrell's opinion is consistent with the ALJ's findings as both 

conclude that Plaintiffs indicators fell short of clinical significance. If a doctor's repo1ts are not 

13 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 13 of 19
probative, the ALJ is not duty-bound to discuss them. See Vincent ex rel. Vincent v. Heckler, 739 

F.2d 1393, 1394-95 (9th Cir. 1984). I find no error in the ALJ's treatment of Dr. Monell's 

opinion. 

Plaintiff fmiher contends that Dr. Schmechel 's opinion was not accounted for in the 

ALJ's determination. This contention is well taken. In order to properly reject Dr. Schmechel's 

opinion, the ALJ needed to provide clear and convincing reasons for doing so. Lester, 81 F.3d at 

830. 

During the ALJ's discussion with the VE, the ALJ asks ifthere are jobs available to a 

hypothetical individual who is "limited to working with things rather than people or data." This 

minor allusion to Dr Schmeckel' s opinion that Plaintiff would not fare well in a setting requiring 

cooperation with others or highly interpersonal work does not serve as a rejection of her opinion. 

The ALJ failed to provide specific and legitimate reasons for rejecting the opinion and findings 

of Dr. Schmechel supported by substantial evidence. On remand, the ALJ must consider the 

opinions and findings of Dr. Schmechel. 

IV. Plaintifrs Testimony 

Plaintiff contends that the ALJ erred in evaluating his credibility. In response, the 

Commissioner argues that Plaintiffs testimony regarding the limiting effects of his impairments 

were not fully credible and was contradicted by the evidence in the record. The Commissioner 

highlights Plaintiffs generally normal examination resnlts as well as evidence in the record that 

Plaintiff was able to care for his own needs. 

An ALJ must consider a claimant's symptom testimony, including statements regarding 

pain. See 20 C.F.R. §§ 404.1529, 416.929. The extent to which such testimony is probative and 

14- OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 14 of 19
can be relied upon "depends on the credibility of the statements." SSR 96-7p available at l 996 

WL374186. 

In making a dete1mination regarding Plaintiffs testimony, the ALJ was required to 

provide "specific, clear and convincing reasons" for rejecting Plaintiffs testimony. Vasquez v. 

Astrue, 572 F.3d 586, 591 (9th Cir. 2009). An ALJ may consider the claimant's tendency to 

exaggerate symptoms, Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001), and may 

discount a claimant's complaints of pain when the ALJ reasonably infened from the medical 

record that claimant's pain symptoms are well-controlled by medical treatment. Celaya v. Halter, 

332 F.3d 1177, 1181 (9th Cir. 2003). An ALJ may also consider a claimant's "reputation for 

truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his 

daily activities, his work record, and testimony from physicians and third parties concerning the 

nature, severity, and effect of the symptoms of which he complains." Light v. SSA, 119 F.3d 789, 

792 (9th Cir. 1997). 

The ALJ's credibility findings must be "sufficiently specific to permit the reviewing 

court to conclude the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. 

Shala/a, 50 F.3d 748, 750 (9th Cir. 1995) (citing Brunell v. Sullivan, 947 F.2d 341, 345-56 (9th 

Cir. 1991) (en bane)). In deciding whether to credit Plaintiffs testimony, the ALJ "must perform 

two stages of analysis: the Cotton analysis and an analysis of the credibility of the claimant's 

testimony regarding the severity of her symptoms." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th 

Cir. 1996). Barring evidence of malingering, ifa claimant meets the Cotton analysis,3 "the ALJ 

can reject the claimant's testimony about the severity of [his] symptoms by offering clear and 

3 The Collon analysis "imposes only two requirements on the claimant: (1) [he] must produce objective medical 

evidence of an impairment or impaitments; and (2) she must show that the impairment or combination of 

impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom." Smolen, 80 

F.3d at 1282 (citing Cotton v. Bowen, 799 F.2d 1403, 1407-08 (9th Cir. 1986)). 

15 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 15 of 19
convincing reasons for doing so." Id. (citing Dodrill v. Shala/a, 12 F.3d 915, 918. (9th Cir. 

1993). This Court "must uphold the ALJ's decision where the evidence is susceptible to more 

than one rationable interpretation," Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995), 

and "may not engage in second-guessing," Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 

2002). 

Here, the ALJ noted that the evidence could reasonably "be expected to cause some of 

the alleged symptoms; however the claimant's statements and witness testimony concerning the 

intensity, persistence and limiting effects of these symptoms [were] not entirely credible." Tr. 22. 

In coming to this conclusion, the ALJ noted that Plaintiffs pain was greatly improved with 

medication, and he was able to walk a mile and a half per day and do "all the chores ... he was 

previously unable to do.'' Tr. 22, 682-83. Plaintiff testified his medications continue to help with 

pain. Testimony that Plaintiffs medication continues to help with pain directly contradicts 

Plaintiffs testimony that his pain, on a one to ten scale, was an eight out often "all the time." Tr. 

50. The ALJ noted that a consultative medical exam in April 2011 "was generally within normal 

limits except for right leg neurological findings" and that Plaintiff was able to heel walk and toe 

walk without difficulty. Tr. 22, 669. Plaintiff was able to take care of his basic needs, as well as 

use a computer and drive a car. Tr. 22, 317-19. When his pain is properly medicated, Plaintiff is 

able to walk a mile and a half. Tr. 682-83. Plaintiff has not recently required any hospitalizations 

or surgeries. Tr. 22. 

Based on this record, the Court finds that the ALJ did not en in discrediting Plaintiffs 

statements related to the intensity, persistence, and limiting effects of his symptoms. The ALJ 

did not arbitrarily discredit Plaintiff, and provided clear and convincing reasons for disregarding 

Plaintiffs testimony. 

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IV. Lay Witness Testimony 

Plaintiff contends that the ALJ erred in failing to address the lay witness testimony of 

Christina Little, Plaintiffs wife. In response, the Commissioner argues that the lay witness 

testimony of Plaintiffs wife was neither probative nor material. The Commissioner also argues 

that the lay witness testimony does not fall within the relevant time period. As a preliminary 

matter, I reject the latter argument, as the lay witness testimony occured after October 20, 2007, 

Plaintiffs alleged disability onset date. I analyze the former argument below. 

The ALJ need not "discuss every witness's testimony on an individualized, witness-bywitness basis ... ifthe ALJ gives ge1mane reasons for rejecting testimony by one witness, the 

ALJ need only point to those reasons when rejecting similar testimony by a different witness." 

lvlolina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (citations omitted). 

During the administrative hearing, Christina Little testified that Plaintiff, during certain 

periods, was "constantly in pain" and was unable to "keep up with the housework." Tr. 62-63. 

Ms. Little testified that her husband is only able to sit in a straight back chair for "15 minutes 

tops." Tr. 64. Ms. Little has to remind Plaintiff to dress, bathe, and groom himself. Tr. 66. 

The Comt finds Ms. Little's testimony probative and material. The ALJ failed to provide 

germane reasons for rejecting the Ms. Little's testimony, which was contradictory to the ALJ's 

finding. On remand, the ALJ must consider Ms. Little's testimony and factor it into his disability 

analysis or, alternatively, provide germane reasons for rejecting Ms. Little's testimony. 

V. Plaintiffs Ability to Work in the National Economy 

In order to meet the burden placed on Commissioner in step five of the of the five-step 

sequential evaluations process, Commissioner must prove that claimant can perform a significant 

number of other jobs in the national economy either through: 1) the testimony of a VE; or 2) by 

17 - OPINION AND ORDER 

Case 6:14-cv-01680-MC Document 19 Filed 02/22/16 Page 17 of 19
reference to the Medical Vocational Guidelines in 20 C.F.R. pt. 404, subpt. P, app. 2. See Tacket 

v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). Work that exists in the national economy is 

defined as "work which exists in significant numbers either in the region where such individual 

lives or in several regions of the country." 42 U.S.C. §1382(a)(3)(B). The VE is asked to identify 

other work a hypothetical individual could perform that has the same age, education, 

background, and work history as the claimant. In order for the testimony of a VE to be 

determined to be reliable, the hypothetical posed must include "all of the claimant's functional 

limitations, both physical and mental" that are supported by the record. Flores v. Shala/a, 49 

F.3d 562, 570-71 (9th Cir. 1995). 

I need not address this argument because it is rendered moot by my above findings. 

However, Ninth Circuit precedent defers to an ALJ's suppo1ted finding that a particular number 

of jobs in the claimant's region was "significant." See Valentine v. Comm'r Soc. Sec. Admin., 574 

F.3d 685, 690 (9th Cir. 2009) (holding a reviewing court must uphold the ALJ's decision ifit is 

suppo1ted by "substantial evidence ... a highly deferential standard ofreview"); Martinez, 807 

F.2d 775 (Whether a significant number of jobs exist that claimant is able to perform "is a 

question of fact to be determined by ajudicial officer." (emphasis added)). In Thomas, the Ninth 

Circuit upheld an ALJ decision that a claimant was not disabled because claimant could perform 

"one of 622,000 jobs in the national economy and 1,300 jobs in Oregon." 278 F.3d at 960. 

I II 

I II 

Ill 

II I 

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CONCLUSION 

For these reasons, the Commissioner's final decision is REVERSED and this matter is 

REMANDED for fmiher proceedings. Upon remand, the ALJ shall consider evidence and 

testimony in the record from October 20, 2007, onward, and must consider the opinions and 

observations of Dr. Schmechel and the lay witness testimony of Ms. Little. 

IT IS SO ORDERED. 

Dated this __ day of February, 2016. 

19 - OPINION AND ORDER 

Michael J. McShane 

United States District Judge 

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