PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARK EDWARD STINNETT,

Plaintiff,

v.

CAROLYN W. COLVIN

Acting Commissioner of Social Security,

Defendant.

Case No. 3:14-cv-906-SI

OPINION AND ORDER

Tim Wilborn, Wilborn Law Office, P.C., P.O. Box 370578, Las Vegas, NV 89137. Attorney for 

Plaintiff.

Billy J. Williams, Acting United States Attorney, and Ronald K. Silver, Assistant United States 

Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, 

Suite 600, Portland, OR 97204-2902; Alexis L. Toma, Special Assistant United States Attorney, 

Office of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 

M/S 221A, Seattle, WA 98104. Attorneys for Defendant.

Michael H. Simon, District Judge.

Mark Stinnett seeks judicial review of the final decision of the Commissioner of the 

Social Security Administration (“Commissioner”) denying his application for Disability 

Insurance Benefits. For the following reasons, the Commissioner’s decision is REVERSED and 

this case is REMANDED for further proceedings. 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 1 of 24
PAGE 2 – OPINION AND ORDER

STANDARD OF REVIEW

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

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

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

“‘more than a mere scintilla but less than a preponderance.’” Bray v. Comm’r Soc. Sec. Admin.,

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

(9th Cir. 1995)). It means “‘such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.’” Id. (quoting Andrews, 53 F.3d at 1039).

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 

(9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

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

for that of the Commissioner. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 

(9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not 

affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 

495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 

(9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the 

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray,

554 F.3d at 1226.

BACKGROUND

A. The Application

Mr. Stinnett was born on October 21, 1958. AR 169. He did not complete high school. 

AR 40-41. He worked as a hook tender for a logging company for seventeen years. AR 42. His 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 2 of 24
PAGE 3 – OPINION AND ORDER

last day of work was March 28, 2009. AR 194. He has been married to Sue Ann Stinnett 

since 1981. AR 168.

Mr. Stinnett filed an application for Disability Insurance Benefits on May 13, 2011, 

alleging disability beginning on June 29, 2009. AR 65. Mr. Stinnett alleges disability due to 

constant pain in his right knee following knee replacement surgery; numbness in his right heel; 

his left knee compensating for his right knee; lack of strength and agility; difficulty learning; and 

body aches and pains. Id. The Commissioner denied his application initially and upon 

reconsideration; thereafter, he requested a hearing before an Administrative Law Judge (“ALJ”). 

AR 94, 102, 105. An administrative hearing was held on January 28, 2013. AR 35. On 

February 13, 2013, the ALJ found Mr. Stinnett not disabled. AR 17-30. Mr. Stinnett appealed the 

ALJ’s decision to the Appeals Council but the appeal was denied, resulting in the ALJ’s 

February 13, 2013 decision becoming the final order of the agency. AR 1. Mr. Stinnett now 

seeks judicial review of that decision.

B. The Sequential Analysis

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

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

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

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for 

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

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is 

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

process asks the following series of questions:

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 3 of 24
PAGE 4 – OPINION AND ORDER

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

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

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

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

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

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

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An 

impairment or combination of impairments is “severe” if it significantly 

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

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, 

this impairment must have lasted or be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the 

claimant does not have a severe impairment, the analysis ends. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe 

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

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

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

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

the listed impairments, the analysis continues. At that point, the ALJ must 

evaluate medical and other relevant evidence to assess and determine the 

claimant’s “residual functional capacity” (“RFC”). This is an assessment 

of work-related activities that the claimant may still perform on a regular 

and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis 

proceeds to step four.

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

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

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

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

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

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

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

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

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

she is disabled. Id.

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 4 of 24
PAGE 5 – OPINION AND ORDER

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

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

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

numbers in the national economy, “taking into consideration the claimant’s residual functional 

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 

(describing “work which exists in the national economy”). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ began his opinion by noting that Mr. Stinnett met the insured status 

requirements of the Social Security Act through December 31, 2014. AR 22. The ALJ then 

applied the sequential process. At step one, the ALJ found that Mr. Stinnett had not engaged in 

substantial gainful activity since his alleged onset date of June 29, 2009. Id. At step two, the ALJ 

found that Mr. Stinnett had the following severe impairments: degenerative disc disease of the 

bilateral knees status post total right knee replacement; degenerative disc disease of the cervical 

spine with spondylosis; left shoulder pain/strain status post left distal clavicle fracture; obesity; 

borderline intellectual functioning/cognitive disorder NOS; major depressive disorder, 

generalized anxiety disorder; and reading disorder (by history). Id. The ALJ found that those 

impairments more than minimally affected Mr. Stinnett’s ability to perform basic work activities. 

Id.

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 5 of 24
PAGE 6 – OPINION AND ORDER

At step three, the ALJ found that Mr. Stinnett did not have an impairment or combination 

of impairments that meets or equals the severity of one of the listed impairments in 20 C.F.R. 

Part 404, Subpart P, Appendix 1. AR 22-23. The ALJ found that Mr. Stinnett had a mild 

impairment in activities of daily living; a moderate impairment in social functioning; a moderate 

impairment in the area of concentration, persistence or pace; and no episodes of decompensation 

of extended duration. AR 23.

Next, the ALJ determined that Mr. Stinnett had the residual functional capacity (“RFC”) 

to perform light work as defined in 20 C.F.R. 404.1567(b). Id. The ALJ found that Mr. Stinnett

had the capacity to do the following: (1) lift and carry up to twenty pounds occasionally and up 

to ten pounds frequently; (2) stand and walk a combined total of four hours in an eight-hour 

work day; (3) occasionally climb ramps and stairs, stoop, kneel, and crouch; (4) occasionally 

engage in pushing, pulling, and repetitive foot pedal operation with the right lower extremity; 

(5) occasionally reach overhead with his non-dominant left upper extremity; (6) have occasional 

exposure to extreme cold, vibration, and hazards such as moving machinery and unsecured 

heights; and (7) and have occasional contact with the public. AR 23-24. The ALJ found that 

Mr. Stinnett was capable of learning, remembering, and performing simple, routine, and 

repetitive one to three step work tasks, involving one to three step instructions, performed in a 

static work environment with few work place changes. AR 24. The ALJ also found that 

Mr. Stinnett could sit or stand at thirty to forty-five minute intervals for two to five minutes, 

during which he could remain on task; had to use a cane in his dominant hand at all times; could

never climb ladders, ropes, or scaffolding; and could never crawl. Id.

In determining Mr. Stinnett’s RFC, the ALJ considered Mr. Stinnett’s testimony but 

found that Mr. Stinnett was not fully credible. AR 24-25. The ALJ gave little weight to the 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 6 of 24
PAGE 7 – OPINION AND ORDER

December 2011 assessment of Dr. Rinehart, Mr. Stinnett’s treating physician. AR 26. The 

opinions of several State Agency disability consultants were given some weight. AR 27. The 

ALJ gave minimal weight to the written lay testimony of Sue Ann Stinnett. Id.

At step four, the ALJ found that Mr. Stinnett was unable to perform any past relevant 

work. AR 28. At step five, the ALJ relied on the testimony of a vocational expert (“VE”) and 

found that based on Mr. Stinnett’s age, education, work experience, and RFC, he could perform 

the requirements of representative occupations such as bench assembler, cashier II/booth parking 

lot, and photo copier. AR 29. The ALJ relied on the VE’s testimony that these occupations are

available in significant numbers in the national economy. Id. In sum, the ALJ concluded that 

Mr. Stinnett was not disabled. Id.

DISCUSSION

Mr. Stinnett seeks review of the ALJ’s determination that he is not disabled. Mr. Stinnett

argues that the ALJ erred in making his determination by: (1) rejecting Dr. Rinehart’s opinion; 

(2) finding Mr. Stinnett’s testimony not fully credible; (3) rejecting Sue Ann Stinnett’s lay 

witness testimony; (4) improperly formulating the RFC; and (5) not supporting his step-five 

determination with substantial evidence. 

A. Dr. Rinehart’s Opinion

Mr. Stinnett argues that the ALJ improperly rejected Dr. Rinehart’s opinion. The opinion 

of treating physicians is generally given more weight than those of examining and nonexamining 

physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If a treating physician’s opinion is 

not contradicted by that of another doctor, it can only be rejected for “‘clear and convincing’ 

reasons.” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). If a treating 

physician’s opinion is contradicted by another doctor, it can only be rejected for “‘specific and 

legitimate reasons.’” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 7 of 24
PAGE 8 – OPINION AND ORDER

The ALJ gave little weight to Dr. Rinehart’s December 2011 opinion. AR 26. The ALJ 

provided two reasons for doing so: (1) the December 2011 opinion was inconsistent with 

Dr. Rinehart’s other recorded observations; and (2) it lacked support in the medical record. Id.1

The ALJ did not find that Dr. Rinehart’s December 2011 opinion was contradicted by that of 

another doctor, but found that it was contradicted by Dr. Rinehart’s 2012 opinion. As discussed 

further below, the Court does not agree that Dr. Rinehart’s 2012 opinion contradicts his 2011 

opinion. Thus, the Court applies the clear and convincing standard.

1. Dr. Rinehart’s recorded observations

Dr. Rinehart stated in his December 2011 opinion that Mr. Stinnett could lift and carry up 

to ten pounds occasionally; could sit for three hours, stand for one hour, and walk for one hour in 

an eight-hour workday, while spending the remaining three hours in a recliner or bed; could 

never reach, push, or pull; required the use of a cane when walking more than fifty feet; and

could not sort, handle, or use paper or files. AR 414-19. Dr. Rinehart found that Mr. Stinnett

could never climb stairs, ramps, ladders, or scaffolds; balance; stoop; kneel; crouch; or crawl. 

AR 417. Dr. Rinehart stated that Mr. Stinnett could perform activities like shopping, care for 

personal hygiene, and prepare a simple meal. AR 419.

The ALJ found that the December 2011 opinion was inconsistent with Dr. Rinehart’s

November 2012 opinion. AR 26. A discrepancy between a doctor’s opinion and his other 

recorded observations may be a “clear and convincing reason” to reject that doctor’s opinion. 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). In November 2012, Dr. Rinehart found 

 1 The ALJ also commented on the possibility that Dr. Rinehart’s medical opinion was 

inappropriately influenced by sympathy for Mr. Stinnett. AR 26 (“While difficult to confirm, the 

possibility always exists that a doctor may express an opinion in an effort to assist an individual 

with whom he or she sympathizes for one reason or another.”). The Commissioner concedes that 

this comment was improper. 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 8 of 24
PAGE 9 – OPINION AND ORDER

that Mr. Stinnett could no longer be a logger or do heavy work, but was “[n]ot educated for less 

demanding jobs.” AR 430-31. The ALJ asserted that this statement “seems to imply the claimant 

could do at least light work and work not requiring more than understanding and carrying out 

simple tasks and instructions.” AR 26. The ALJ found that this implication was in conflict with 

Dr. Rinehart’s December 2011 determination that Mr. Stinnett was limited to less than sedentary 

work activity. Id. A doctor’s statement that a patient is no longer able to perform his former work 

is not necessarily an endorsement of that patient’s ability to perform in a less demanding work 

environment. Thus, Dr. Rinehart’s November 2012 statement that Mr. Stinnett could no longer 

do heavy work is not in conflict with the December 2011 opinion. 

The ALJ also concluded that the December 2011 opinion was “entirely inconsistent” with 

Dr. Rinehart’s treatment notes. AR 26. The ALJ noted that on numerous occasions, Dr. Rinehart

observed that Mr. Stinnett was stable and functional on his current pain medication regimen and 

was able to do all his activities of daily living, such as caring for his grandchildren, engaging in 

therapeutic bike riding, and shopping. AR 25. These observations, however, are not in conflict 

with Dr. Rinehart’s December 2011 opinion. The December 2011 opinion specifically found that 

Mr. Stinnett was capable of shopping, preparing a simple meal, and caring for his personal 

hygiene. Further, the ability to ride a bike for rehabilitation therapy is not necessarily 

inconsistent with the limitations Dr. Rinehart described in his December 2011 opinion.

The ALJ also cited to several of Dr. Rinehart’s observations that Mr. Stinnett has “normal 

gait and station, and normal movement of all extremities” as conflicting with Dr. Rinehart’s

December 2011 opinion. AR 26. Yet Dr. Rinehart’s December 2011 opinion found that 

Mr. Stinnett was capable of walking up to fifty feet without a cane. AR 419. Those two 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 9 of 24
PAGE 10 – OPINION AND ORDER

conclusions are not inconsistent. Dr. Rinehart’s December 2011 opinion is not contrary to his 

other recorded observations.

2. The medical record

The ALJ also summarily concluded that Dr. Rinehart’s December 2011 opinion “finds 

very little support in the available medical record.” AR 26. The ALJ provided no discussion on 

this point. The Commissioner argues that the ALJ was referring to Dr. Rinehart’s

December 2011 claim that Mr. Stinnett required the use of a cane when walking for more than 

fifty feet. The Commissioner’s argument is not persuasive. In June of 2011, Mr. Stinnett

reported that though he was not using a cane, he could not walk very far without stopping to rest 

because of his knee pain. AR 213-15. And during an August 2011 psychological assessment, the 

examining physician stated that Mr. Stinnett exhibited pain behavior by walking with a limp and 

grimacing with pain. AR 325. Because Dr. Rinehart’s December 2011 opinion is supported by 

the medical record and is not inconsistent with his other recorded observations, the ALJ failed to 

identify a clear and convincing reason, supported by substantial evidence, for giving the 

December 2011 opinion only little weight. 

B. Mr. Stinnett’s Credibility

Mr. Stinnett challenges the ALJ’s finding that Mr. Stinnett was only partially credible. 

The Ninth Circuit has a two-step process for evaluating the credibility of a claimant’s own 

testimony about the severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 

572 F.3d 586, 591 (9th Cir. 2009). “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 v. Astrue, 504 F.3d 1028, 

1036 (9th Cir. 2007) (quoting Bunnell v. Sullival, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 

When doing so, the claimant “need not show that her impairment could reasonably be expected 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 10 of 24
PAGE 11 – OPINION AND ORDER

to cause the severity of the symptom she has alleged; she need only show that it could reasonably 

have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 

(9th Cir. 1996).

Second, “if the claimant meets the first test, and there is no 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.’” Lingenfelter, 504 F.3d at 1036 (quoting 

Smolen, 80 F.3d at 1281). “This is not an easy requirement to meet: ‘The clear and convincing 

standard is the most demanding required in Social Security cases.’” Garrison v. Colvin, 

759 F.3d 995, 1014 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 

278 F.3d 920, 924 (9th Cir. 2002)). It is “not sufficient for the ALJ to make only general 

findings; he must state which pain testimony is not credible and what evidence suggests the 

complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons 

must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not 

arbitrarily discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 

(9th Cir. 1995) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)).

The ALJ may consider objective medical evidence and the claimant’s treatment history, 

as well as the claimant’s daily activities, work record, and observations of physicians and third 

parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d 

at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location, 

duration, frequency, and intensity of the individual’s pain or other symptoms; factors that 

precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any 

medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other 

than medication, the individual receives or has received for relief of pain or other symptoms; and 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 11 of 24
PAGE 12 – OPINION AND ORDER

any measures other than treatment the individual uses or has used to relieve pain or other 

symptoms. See SSR 96-7p, available at 1996 WL 374186. The ALJ may not, however, make a 

negative credibility finding “solely because” the claimant’s symptom testimony “is not 

substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 

46 F.3d 880, 883 (9th Cir. 2006).

Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary 

techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 

statements concerning the symptoms, . . . other testimony by the claimant that appears less than 

candid [and] unexplained or inadequately explained failure to seek treatment or to follow a 

prescribed course of treatment.” Smolen, 80 F.3d at 1284. The ALJ’s credibility decision may be 

upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s testimony are 

upheld. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1997 (9th Cir. 2004).

The ALJ, applying the first step of the credibility framework, found that Mr. Stinnett’s

medically determinable impairments could reasonably be expected to cause “some” of 

Mr. Stinnett’s alleged symptoms and that Mr. Stinnett was credible “to the extent he suffers from 

some severe impairments.” AR 24 (emphasis added). The ALJ did not specify which of 

Mr. Stinnett’s alleged symptoms and impairments he was crediting and which he was not. In 

applying the second step, the ALJ found that Mr. Stinnett’s allegations concerning the severity of 

his impairments and their effect on his ability to perform basic work tasks were less than fully 

credible. AR 25. 

The ALJ offered two reasons for finding Mr. Stinnett only partially credible: 

(1) Mr. Stinnett’s daily living activities were inconsistent with his claim of disability; and

(2) Mr. Stinnett’s work history calls “into question the credibility of his allegations.” AR 25. 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 12 of 24
PAGE 13 – OPINION AND ORDER

1. Daily living activities

The ALJ found that Mr. Stinnett’s daily living activities were “not limited to the extent 

one would generally expect of a disabled individual.” AR 25. Daily activities can form the basis 

of an adverse credibility finding where the claimant's activities either contradict his or her other 

testimony or meet the threshold for transferable work skills. See Orn, 495 F.3d at 639; Molina, 

674 F.3d at 1112-13. For a credibility analysis, the ALJ “need not consider whether a claimant’s 

daily activities are equivalent to full-time work; it is sufficient that the claimant’s activities 

‘contradict claims of a totally debilitating impairment.’” Whittenberg v. Astrue, 

2012 WL 3922151, at * 4 (D. Or. Aug. 20, 2012) (quoting Molina, 674 F.3d at 1113); see also 

Denton v. Astrue, 2012 WL 4210508, at * 6 (D. Or. Sept. 19, 2012) (“While [the claimant’s] 

activities of daily living do not necessarily rise to the level of transferable work skills, they do 

contradict his testimony regarding the severity of his limitations.”). 

A claimant, however, need not be utterly incapacitated to receive disability benefits, and 

sporadic completion of minimal activities is insufficient to support a negative credibility finding. 

Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see also Reddick v. Chater, 

157 F.3d 715, 722 (9th Cir. 1998) (requiring the level of activity to be inconsistent with the 

claimant’s claimed limitations in order to be relevant to his or her credibility). The Ninth Circuit 

has “repeatedly warned that ALJs must be especially cautious in concluding that daily activities 

are inconsistent with testimony about pain, because impairments that would unquestionably 

preclude work and all the pressures of a workplace environment will often be consistent with 

doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 995, 1016 

(9th Cir. 2014) (citing cases). 

The ALJ found that Mr. Stinnett’s claims of physical limitations were inconsistent with 

reports he made to treatment providers about his regular physical activities, particularly his 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 13 of 24
PAGE 14 – OPINION AND ORDER

therapeutic bike riding. AR 25. The ALJ noted that Mr. Stinnett repeatedly told his treatment 

providers that he was riding his bike for physical therapy up to twenty miles per day after his 

knee replacement. Id. At the hearing, however, Mr. Stinnett clarified that he exaggerated the 

extent to which he was riding his bike for therapeutic purposes. AR 51 (“Well, that’s what I told 

him [Dr. Rinehart] I was doing, but I really wasn’t doing it that far.”). Mr. Stinnett also clarified 

that he would predominately use his left leg and let the right leg float when riding his bike for 

rehabilitation. AR 52. Looking at the record as a whole, the Court finds that Mr. Stinnett

provided a reasonable explanation, which the ALJ failed to address, for why Mr. Stinnett’s

reports of therapeutic bike riding were not inconsistent with his claims of physical limitations. 

Those reports are thus not a clear and convincing reason to discredit Mr. Stinnett’s subjective 

symptom testimony. Further, although Mr. Stinnett’s admitted exaggeration to his doctor 

regarding the amount of exercise and physical therapy Mr. Stinnett was performing may 

diminish his credibility, that admission was not a reason cited by the ALJ.

The ALJ also found that Mr. Stinnett’s ability to care for his personal grooming and 

hygiene, cook and prepare meals, do yard work, run errands, and care for his grandsons was

inconsistent with his claim of physical limitations. AR 25. An ALJ, however, may not penalize 

disability claimants “for attempting to lead normal lives in the face of their limitations.” 

Reddick, 157 F.3d at 722. Engaging in activities such as light household chores, preparing simple

meals, and grocery shopping do not weigh against a plaintiff’s credibility. Vertigan, 260 F.3d at 

1050 (“This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain 

daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not 

in any way detract from her credibility as to her overall disability. One does not need to be 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 14 of 24
PAGE 15 – OPINION AND ORDER

‘utterly incapacitated’ in order to be disabled.”) (quoting Fair v. Bowen, 885 F.2d 597, 603 

(9th Cir. 1989)). 

Mr. Stinnett reported that he makes himself sandwiches once a day for lunch. AR 211. He 

is unable to stand in one spot long enough to cook and prepare a more complicated meal. Id. He 

tries to do yard work a couple of times a week, but can only clip a few blackberry “stickers”

before he has to stop. AR 212. He does sometimes go grocery shopping with his wife, but “not 

very often.” Id. Mr. Stinnett does not cook, clean, or do laundry. AR 326. This level of minor 

activity does not contradict Mr. Stinnett’s claims regarding his limitations. See Vertigan, 260 

F.3d at 1050. Thus, Mr. Stinnett’s daily living activities do not constitute a clear and convincing 

reason, supported by substantial evidence, for discounting his credibility.

2. Work history

The ALJ also found that Mr. Stinnett’s work history called into question his subjective 

symptom testimony. AR 25. The ALJ gave three reasons in support of this finding: 

(a) Mr. Stinnett’s onset date corresponded to the date of his layoff; (b) many of Mr. Stinnett’s

alleged impairments were present prior to his onset date; and (c) Mr. Stinnett was receiving 

unemployment benefits and looking for work after his layoff but before filing for disability 

benefits. Id. The Commissioner concedes that the ALJ erroneously relied on Mr. Stinnett’s

receipt of unemployment benefits as a factor weighing against Mr. Stinnett’s credibility. 

a. Alleged Onset Date

The ALJ asserted that “[w]hen asked to explain his alleged onset date, the claimant 

responded during the hearing that he was ‘laid off’ from work.” AR 25. The ALJ’s assertion is 

incorrect—Mr. Stinnett expressed confusion about the significance of the June 29, 2009 date at

the hearing. The exchange went as follows: 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 15 of 24
PAGE 16 – OPINION AND ORDER

Q: What date, what does the date June 29, 2009 represent to you, is 

that the last day you worked or what does that date mean? 

A: June 29, 2009? 

Q: Yes. 

A: I don’t know, I don’t know if that’s when I had my surgery or 

the last day I worked. 

Q: Okay. 

A: Is it?

AR 50. According to Mr. Stinnett’s Initial Disability Determination Explanation, June 29, 2009 

represents his alleged onset date, and the last date he worked was March 28, 2009. AR 66. 

Notably, June 29, 2009 was the date of Mr. Stinnett’s knee replacement surgery, suggesting that 

it was his knee surgery that triggered his onset date. Thus, Mr. Stinnett’s alleged onset date is not 

the date he was laid off and the ALJ erroneously concluded otherwise.

b. Presence of impairments prior to onset date

The ALJ asserted that many of Mr. Stinnett’s impairments were present prior to his 

alleged onset date of June 29, 2009, suggesting that he had been performing work adequately 

despite those impairments. AR 25. The medical record indicates, however, that Mr. Stinnett’s

alleged disability predominately stems from his June 29, 2009 knee replacement surgery. In 

Mr. Stinnett’s May 26, 2011 disability report, six out of the nine physical and mental conditions 

that Mr. Stinnett claimed limited his ability to work related to his knee replacement surgery. 

AR 194. And on his June 29, 2011 function report, Mr. Stinnett stated that he could no longer 

work following his knee replacement surgery. AR 209. The fact that the ALJ found that 

Mr. Stinnett also suffered from a variety of other severe impairments, including degenerative 

disc disease of the cervical spine, left shoulder pain and strain due to a fracture, and borderline 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 16 of 24
PAGE 17 – OPINION AND ORDER

intellectual functioning, does not contradict the Mr. Stinnett’s testimony that his knee surgery 

caused his inability to return to work. AR 22.

The ALJ also stated that “[t]here are no allegations or evidence in the record that the 

claimant was terminated from his employment as a result of any alleged disability or that his job 

was sheltered or accommodated work.” AR 25. Mr. Stinnett’s hearing testimony, however, does 

suggest that he was having difficulty performing his work duties at the time of his dismissal. The 

logging company transitioned Mr. Stinnett from heavy work to a lighter job before finally laying 

him off. AR 49. Mr. Stinnett’s supervisor told him that in order for Mr. Stinnett to come back to 

work, the logging company would have to buy new equipment to accommodate Mr. Stinnett’s

impairments. AR 50. Mr. Stinnett’s testimony, therefore, is evidence that he was not performing 

his work adequately at the time of his layoff. Moreover, Mr. Stinnett was laid off months before 

his knee surgery and thus even if he could adequately perform work at the time of his layoff, that 

would not show that he could adequately perform work after his knee surgery such as to 

undermine Mr. Stinnett’s testimony regarding his limitations. Finally, the ALJ specifically

concluded that Mr. Stinnett could not perform his past relevant work, so Mr. Stinnett’s testimony 

regarding his limitations with respect to his past work is consistent with the ALJ’s own findings.

c. Seeking employment before filing for disability

Mr. Stinnett applied for jobs while he was drawing unemployment through the first part 

of 2012. AR 50-51. Seeking employment, however, is not necessarily inconsistent with disability 

allegations. See Lopez v. Massanari, 23 F. App’x 667, 669-70 (9th Cir. 2001) (concluding that 

claimant’s search for work was not a clear and convincing reason to reject her testimony).

Mr. Stinnett applied mostly for logging jobs because “he thought he could try it,” but when he 

attempted to work, he only lasted a day and a half because it was too painful. AR 51; AR 323. 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 17 of 24
PAGE 18 – OPINION AND ORDER

Mr. Stinnett’s failed attempt at returning to fulltime work is consistent with his symptom 

testimony. 

Mr. Stinnett’s work history does not call into question the credibility of his allegations. 

None of the reasons relied on by the ALJ related to Mr. Stinnett’s work history are clear and 

convincing reasons, supported by substantial evidence, to reject his subjective symptom 

testimony. 

C. Sue Ann Stinnett’s Lay Witness Testimony

Mr. Stinnett argues that the ALJ improperly weighed the written lay testimony of his 

wife, Sue Ann Stinnett. Social Security regulations require the ALJ to consider all relevant 

evidence. 20 C.F.R. § 416.945(a)(3). This includes evidence submitted by family members. 

20 C.F.R. § 404.1513(d)(4); Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (“[W]e have 

held that friends and family members in a position to observe a claimant’s symptoms and daily 

activities are competent to testify as to her condition.”). Opinions from lay witnesses, such as 

family members, may be accorded less weight than opinions from acceptable medical sources. 

Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). An ALJ, however, may not disregard lay 

witness testimony “unless he or she expressly determines to disregard such testimony and gives 

reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

An inconsistency between the medical evidence and a lay witness’s testimony is a germane 

reason to discredit such testimony. Bayliss, 427 F.3d at 1218.

The ALJ gave minimal weight to the written lay testimony of Sue Ann Stinnett. AR 27. 

Sue Ann Stinnett submitted a third-party function report on June 15, 2011. AR 201. Her report 

stated that Mr. Stinnett did not fully recover from his knee surgery. Id. She stated that 

Mr. Stinnett still had a lot of pain with the knee and often woke up at night because of that pain. 

Id. She stated that Mr. Stinnett could not get in and out of his chair very well, and that he could 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 18 of 24
PAGE 19 – OPINION AND ORDER

not “do much of anything” other than sit in the chair. AR 201-02. Mr. Stinnett was able to 

perform personal care and hygiene, though sometimes he had trouble putting on his socks. AR 

202. Mr. Stinnett was able to make himself sandwiches for lunch while she was at work. AR 

203. Mr. Stinnett rode his bike for physical therapy even though “it hurt[ ] him.” AR 204. Sue 

Ann Stinnett noted that Mr. Stinnett could walk for no longer than five minutes before needing to 

stop and rest. AR 206.

The ALJ gave minimal weight to Sue Ann Stinnett’s June 2011 report, asserting that it 

was inconsistent with the medical record. AR 27. The ALJ provided no discussion on this point. 

The Commissioner argues that Sue Ann Stinnett’s statement that Mr. Stinnett could walk for no 

longer than five minutes before needing to stop and rest was in conflict with an emergency room 

visit in which Mr. Stinnett had a “steady gait.” AR 287. The emergency room report, however, 

does not state for how long Mr. Stinnett walked.

The Commissioner also argues that Sue Ann Stinnett’s June 2011 statement is

inconsistent with Mr. Stinnett’s testimony at the January 2013 hearing, as he told the ALJ that he 

could walk around for “probably 20 minutes, half hour, maybe.” AR 45. Sue Ann Stinnett’s 

June 2011 report is consistent, however, with Mr. Stinnett’s June 2011 report stating that he 

could only walk for five minutes before needing to stop and rest. AR 214. The fact that 

Mr. Stinnett was able to walk for about fifteen additional minutes one and a half years later does 

not mean that Sue Ann Stinnett’s statement lacks credibility. 

The ALJ also gave minimal weight to Sue Ann Stinnett’s report because “her opinions 

appear to be colored by an affection for the claimant” and she had a “possible lack of motivation 

to offer an objective assessment.” AR 27. The ALJ did not provide any evidence to support these 

assertions. The mere fact that a lay witness is an “interested party” is not sufficient to reject that 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 19 of 24
PAGE 20 – OPINION AND ORDER

witness’s testimony. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 

(9th Cir. 2009) (“[I]nsofar as the ALJ relied on characteristics common to all spouses, she ran 

afoul of our precedents. . . . [E]vidence that a specific spouse exaggerated a claimant’s symptoms 

in order to get access to his disability benefits, as opposed to being an ‘interested party’ in the 

abstract, might suffice to reject that spouse’s testimony.”). Though a lay witness’s close 

relationship with the claimant, when combined with inconsistency with the medical record, is a 

germane reason for discounting the witness’s testimony, see Grisel v. Colvin, 2014 WL 1315894, 

at *15 (C.D. Cal. April 2, 2014), Sue Ann Stinnett’s June 2011 third-party function report is not 

inconsistent with the medical record. Thus, the ALJ failed to provide a germane reason for 

giving her statements only minimal weight.

D. The RFC Formulation 

Mr. Stinnett argues that the ALJ committed reversible error by failing to include all of his 

impairments in the RFC. The RFC is the most that a claimant can do despite his or her 

limitations. 20 C.F.R. § 404.1545(a)(1). In determining the RFC, the ALJ must consider 

limitations imposed by all of a claimant’s impairments, even those that are not severe; the ALJ 

evaluates “all of the relevant medical and other evidence,” as well as a claimant’s testimony, in 

making this assessment. SSR 96-8p; 20 C.F.R. § 404.1545(a)(1); see also Robbins v. Soc. Sec. 

Admin., 466 F.3d 880, 883 (9th Cir. 2006). 

In this case, the ALJ did not provide legally sufficient reasons for discrediting 

Mr. Stinnett’s subjective symptom testimony, Dr. Rinehart’s December 2011 opinion, and Sue 

Ann Stinnett’s written lay witness testimony. Mr. Stinnett and Dr. Rinehart testified to 

limitations that the ALJ did not include in the RFC. For example, Mr. Stinnett reported that he 

was unable to kneel or squat, AR 209, but the ALJ found that Mr. Stinnett was capable of 

kneeling and crouching occasionally, AR 24. Additionally, Dr. Rinehart stated that Mr. Stinnett

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 20 of 24
PAGE 21 – OPINION AND ORDER

was capable of standing and walking for a combined total of two hours in an eight-hour 

workday, AR 415, but the ALJ found that Mr. Stinnett could stand and walk a combined total of 

four hours in an eight-hour workday, AR 23. Because the RFC does not account for the 

additional limitations that Mr. Stinnett and Dr. Rinehart described, the RFC assessment is 

erroneous. 

E. The Step-Five Determination

Mr. Stinnett argues that the ALJ’s step-five determination is invalid because the ALJ 

failed to include all of Mr. Stinnett’s limitations in the hypotheticals posed to the VE. An ALJ 

may rely on a VE’s response to vocational hypotheticals when determining a claimant’s 

disability. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). If the hypothetical posed to 

the VE does not reflect all of the claimant’s properly supported limitations, however, the VE’s 

opinion lacks evidentiary value. Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993). In this case, 

because the ALJ erred in disregarding the testimony of Mr. Stinnett, Dr. Rinehart, and Sue Ann 

Stinnett, the hypothetical given to the VE did not include all of Mr. Stinnett’s restrictions and 

limitations. Thus, the hypothesis was invalid and the VE’s testimony has no evidentiary value. 

F. Credit as True and Remand

Mr. Stinnett argues that the Court should credit Dr. Rinehart’s December 2011 

assessment, Mr. Stinnett’s subjective symptom testimony, and Sue Ann Stinnett’s written lay 

witness testimony as true and remand for an award of benefits. 

Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to 

remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 

246 F.3d 1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally 

remand to the agency for additional investigation or explanation, a court has discretion to remand 

for immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 21 of 24
PAGE 22 – OPINION AND ORDER

1099-1100 (9th Cir. 2014). The issue turns on the utility of further proceedings. A remand for an 

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

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

insufficient to support the Commissioner’s decision. Id. at 1100. A court may not award benefits

punitively and must conduct a “credit-as-true” analysis on evidence that has been improperly 

rejected by the ALJ to determine if a claimant is disabled under the Act. Strauss v. Comm’r Soc. 

Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court. 

Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). It was recently described by the United 

States Court of Appeals for the Ninth Circuit:

[The Ninth Circuit has] devised a three-part credit-as-true standard, 

each part of which must be satisfied in order for a court to remand 

to an ALJ with instructions to calculate and award benefits: (1) the 

record has been fully developed and further administrative 

proceedings would serve no useful purpose; (2) the ALJ has failed 

to provide legally sufficient reasons for rejecting evidence, 

whether claimant testimony or medical opinion; and (3) if the 

improperly discredited evidence were credited as true, the ALJ 

would be required to find the claimant disabled on remand.

Id. at 1020.

Ordinarily, if all three of these elements are satisfied, a district court must remand for a 

calculation of benefits. Id. If, however, “an evaluation of the record as a whole creates serious 

doubt that a claimant is, in fact, disabled,” the district court retains the “flexibility” to remand for 

further proceedings even when these elements are satisfied. Id. at 1021; see also Burrell v. 

Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (remanding for further proceedings without 

analyzing whether the three factors are met “because, even assuming that they are, we conclude 

that the record as a whole creates serious doubt as to whether Claimant is, in fact, disabled”). 

Moreover, when remanding for further development of the record, the district court has the 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 22 of 24
PAGE 23 – OPINION AND ORDER

discretion to remand on an open record or with the directive that the claimant’s testimony be 

credited as true. See Burrell, 775 F.3d at 1141 (observing that a court’s “flexibility” includes the 

option to “remand on an open record for further proceedings”) (citing Garrison, 759 F.3d 

at 1021).

As explained above, the ALJ failed to provide legally sufficient reasons for giving little 

weight to Dr. Rinehart’s December 2011 opinion, finding Mr. Stinnett partially credible, and 

giving minimal weight to Sue Ann Stinnett’s written lay testimony. Mr. Stinnett argues that had 

the ALJ properly credited this testimony, a finding of disability would be required under the 

medical-vocational guidelines because Mr. Stinnett was approaching advanced age at all relevant 

times, had limited education, and his previous work experience was unskilled and without 

transferable skills. See 20 C.F.R. § 404, Subpt. P, App’x 2. The VE testified, however, that 

Mr. Stinnett’s previous work was skilled. AR 57. Nor has it been shown that Mr. Stinnett does 

not have transferable skills. Even crediting the improperly discounted testimony as true, the 

evidence does not indicate that Mr. Stinnett meets the medical-vocational guidelines and 

outstanding issues remain.

Additionally, although Mr. Stinnett’s counsel posed a hypothetical to the VE that 

included some of the limitations described by Dr. Rinehart, counsel also added additional 

limitations not supported by Dr. Rinehart’s opinion. AR 62-63. Thus, the implications of 

properly crediting the testimony of Dr. Rinehart, Mr. Stinnett, and Sue Ann Stinnett are 

unknown. 

Upon remand, the ALJ shall accept as true Dr. Rinehart’s December 2011 opinion, 

Mr. Stinnett’s subjective symptom testimony, and Sue Ann Stinnett’s lay witness testimony. The 

ALJ shall formulate a new RFC and consider whether medical-vocational guidelines apply. If the 

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 23 of 24
PAGE 24 – OPINION AND ORDER

medical-vocational guidelines do not apply, the ALJ shall determine whether work exists in 

significant numbers in the national economy for a person with Mr. Stinnett’s limitations. 

CONCLUSION

The Commissioner’s decision that Mr. Stinnett is not disabled is REVERSED and this 

case is REMANDED for further proceedings.

IT IS SO ORDERED.

DATED this 29th day of September, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 3:14-cv-00906-SI Document 20 Filed 09/29/15 Page 24 of 24