UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

JACQUELINE B. DOTZAUER, Case No. 6:13-cv-00829-HA 

Plaintiff, OPINION AND ORDER 

v. 

CAROLYN W. COL VIN, 

Acting Commissioner of Social Security, 

Defendant. 

HAGGERTY, District Judge: 

Plaintiff Jacqueline Dotzauer seeks judicial review of a final decision by the Acting 

Commissioner of the Social Security Administration denying her application for Disability 

Insurance Benefits (DIB). This court has jurisdiction to review the Acting Commissioner's 

decision under 42 U.S.C. § 405(g). After reviewing the record, this comi concludes that the 

Acting Commissioner's decision must be REVERSED AND REMANDED for an award of 

benefits. 

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STANDARDS 

A claimant is considered "disabled" under the Social Security Act if: (1) he or she is 

unable to engage in any substantial gainful activity (SGA) "by reason of any medically 

determinable physical or mental impairment which can be expected to result in death or which 

has lasted or can be expected to last for a continuous period of not less than twelve months," and 

(2) the impairment is "of such severity that he is not only unable to do his previous work but 

cannot, considering his age, education, and work experience, engage in any other kind of 

substantial gainful work which exists in the national economy." Hill v. As/rue, 688 F.3d 1144, 

1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackett v. Apfel, 180 F.3d 1094, 1098 

(9th Cir. 1999)); 42 U.S.C. § 423(d)(l)(A). 

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

determining if a person is eligible for benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a). In steps 

one through four, the Commissioner must determine whether the claimant ( 1) has not engaged in 

SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental 

impahments; (3) has severe impahments that meet or medically equal any of the listed 

impairments that automatically qualify as disabilities under the Social Security Act; and ( 4) has a 

residual functional capacity (RFC) that prevents the claimant from performing his or her past 

relevant work. Id. An RFC is the most an individual can do in a work setting despite the total 

limiting effects of all his or her impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l), and 

Social Security Ruling (SSR) 96-8p. The claimant bears the burden of proof in the first four 

steps to establish his or her disability. 

At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist 

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in a significant number in the national economy that the claimant can perfmm given his or her 

RFC, age, education, and work experience. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996). 

If the Commissioner cannot meet this burden, the claimant is considered disabled for purposes of 

awarding benefits. 20 C.F.R. §§ 404.1520(£)(1), 416.920(a). On the other hand, ifthe 

Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of 

determining benefits eligibility. Id. 

The Commissioner's decision must be affirmed if it is based on the proper legal standards 

and its findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 

405(g); Tackett, 180 F.3d at 1097; Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995). 

Substantial evidence is more than a scintilla but less than a preponderance; it is "such relevant 

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

Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted). 

When reviewing the decision, the court must weigh all of the evidence, whether it 

supports or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The 

Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the 

Commissioner's decision must be upheld in instances where the evidence supports either 

outcome. Reddick v. Chafer, 157 F.3d 715, 720-21 (9th Cir. 1998). If, however, the 

Commissioner did not apply the proper legal standards in weighing the evidence and making the 

decision, the decision must be set aside. Id. at 720. 

FACTUAL AND PROCEDURAL HISTORY 

Plaintiff was born in April 1951. Plaintiff protectively filed her application for DIB on 

January 6, 2011, alleging that she has been disabled since Januaty 1, 2009. The claim was 

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denied initially on January 10, 2011, and upon reconsideration. At plaintiffs request, an 

Administrative Law Judge (ALJ) conducted a video hearing on July 10, 2012. The ALJ heard 

testimony from plaintiff, who was represented by counsel, as well as an independent vocational 

expert (VE). 

On September 28, 2012, the ALJ issued a decision finding that plaintiff was not disabled 

under the Act. At step one of the sequential analysis, the ALJ found that plaintiff had not 

engaged in SGA since January 1, 2009, her alleged onset date. Tr. 22, Finding 2. 1 At step two, 

the ALJ found that plaintiff suffers from the following medically determinable severe 

impairments: degenerative disc disease of the cervical spine. Tr. 22, Finding 3. After 

considering plaintiffs severe and non-severe impairments, the ALJ determined that plaintiff does 

not have an impahment or combination of impairments that meets or equals a listed impairment 

in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23, Finding 4. After consideration of the 

entire record, the ALJ found that plaintiff has the RFC to perform light work as defined in 20 

C.F.R. § 404.1567(b); specifically she can lift, cany, push, and pull twenty pounds occasionally 

and ten pounds frequently, stand and/or walk for six hours in an eight hour workday and sit at 

least six hours in an eight hour workday. Her ability to climb ramps and stairs is unlimited. She 

can occasionally climb ladders, ropes, and scaffolds, occasionally balance and crawl. Her ability 

to stoop, crouch and kneel is unlimited. She can occasionally perform overhead reaching 

bilaterally. She is unable to work at unprotected heights. Tr. 23-24. Based on plaintiffs RFC 

and the testimony of the VE, the ALJ found that plaintiff is capable of performing past relevant 

1 "Tr." refers to the Transcript of the Administrative Record. 

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work as a realtor, because this work does not require the performance of work-related activities 

precluded by plaintiffs RFC. Tr. 28, Finding 5. Therefore, the ALJ concluded that plaintiff is 

not disabled. Tr. 28, Finding 6. 

On March 14, 2013, the Appeals Council denied plaintiffs request for review, making the 

ALJ's decision the final decision of the Acting Commissioner. Plaintiff subsequently initiated 

this action seeking judicial review. 

DISCUSSION 

Plaintiff set forth the following arguments: the ALJ e11·ed by (1) improperly rejecting the 

opinion of treating physician Jeffrey K. Bert, M.D; (2) improperly rejecting the opinion of 

treating physician Hasan Astahr, M.D.; and (3) improperly rejecting plaintiffs testimony. The 

court will address each of plaintiffs argument below. 

1. Opinion of Dr. Bert. 

Doctor Be1i completed medical statements on August 4, 2011, six weeks after plaintiffs 

neck surgery, and on March 2, 2012. In two separate medical source statements, Dr. Bert opined 

that plaintiff would require one or two unscheduled breaks during a typical work day, would 

likely be absent two days per month; would have occasional difficulty with attention and 

concentration, would need to sit or stand at will, and would not be able to sit or stand for more 

than f01iy-five minutes at a time. Tr. 310-15, 349-54. Doctor Bert also opined, in his first 

statement, that plaintiff could perform light work, and that he expected plaintiffs condition to 

improve. Tr. 310-15. During the hearing, the VE testified that an individual who is absent two 

days per month could not perfonn any job in competitive employment. Tr. 80. 

The ALJ assigned great weight to Dr. Be1i's opinion that plaintiff can perform work at a 

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light exe1iional level; however, the ALJ rejected Dr. Bert's opinion that plaintiff would likely 

miss work two days per month. The ALJ reasoned that Dr. Be1i's treatment notes "do not contain 

findings that corroborate the severity of the disabling limitations to justify the prediction that 

[plaintiff! would be absent from work twice per month." Tr. 25. 

An ALJ must give clear and convincing reasons supported by substantial evidence to 

reject uncontradicted opinions from treating or examining doctors. Bayliss v. Barnhart, 427 F.3d 

1211, 1216 (9th Cir. 2005) (citation omitted). If an opinion is contradicted, an ALJ must give 

specific and legitimate reasons suppmied by substantial evidence to reject it. Id. An ALJ may 

satisfy this burden by summarizing the conflicting evidence in detail and interpreting it. lvlorgan 

v. Comm'r a/Soc. Sec. Admin., 169 F3d 595, 600 (9th Cir. 1999). 

In this case, the ALJ did not explain why the majority of Dr. Be1i's opinion was consistent 

with the medical evidence but only the limitation regarding absences was unsuppo1ied. "Merely 

to state that medical opinion is not supported by enough objective findings does not achieve the 

level of specificity our prior cases have required, even when the objective factors are listed 

seriatim." Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (citation and quotations 

omitted). By failing to provide any reason as to why the medical evidence does not suppo1i a 

conclusion that plaintiff will be absent twice per month, the ALJ failed to provide specific and 

legitimate reasons for rejecting Dr. Bert's opinion. 

Moreover, Dr. Be1i's clinical findings do suppo1i his conclusion. Doctor Bert's treatment 

notes indicate severe limitations in the range of motion in plaintiffs neck, as well as marked 

spondylosis in the cervical spine and foraminal stenosis. Tr. 310, 299-300. Although the ALJ 

highlighted Dr. Bert's statement on August 4, 2011 that plaintiffs condition would improve in 

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two to three months, plaintiffs condition did not improve as anticipated. While Dr. Bert's March 

2, 2012 report did note that plaintiffs neck had stabilized, plaintiff had dizziness with an 

undiagnosed cause, and Dr. Be1i still predicted that her symptoms would prevent her from 

working twice per month. Therefore, Dr. Be1i's objective findings supported his opinion and the 

ALJ erred in rejecting this opinion. 

2. Opinion of Dr. Aktahr 

Doctor Aktahr began treating plaintiff in October of 2011. In February 2012, Dr. Aktahr 

diagnosed plaintiff with chronic low back pain, unspecified idiopathic peripheral neuropathy, 

chronic neck pain, status/post surgery for spinal stenosis at C5-C6-C7, a balance problem, and 

hypothyroidism. Tr. 318. On February 21, 2012, Dr. Aktahr completed a RFC questionnaire for 

plaintiff. In that questionnaire, he opined that plaintiff could walk half of a block and could sit or 

stand with support for about fifteen minutes at a time. Tr. 340. He opined that plaintiff required 

scheduled breaks throughout most of the day, Tr. 341, and that her pain would constantly 

interfere with her attention and concentration in performing tasks, Tr. 340. Doctor Aktahr opined 

that plaintiff should rarely lift weights of less than ten pounds and should never look down due to 

her dizziness. Tr. 341. He also explained that plaintiff should rarely twist, stoop, bend, crouch, 

or climb, and that plaintiffs impairments would likely cause her to be absent from work more 

than four days per month. He concluded that, in his opinion, plaintiff is unable to perform any 

gainful employment, pennanently. Tr. 342. 

The ALJ rejected Dr. Aktahr's opinion, explaining that conclusions regarding a claimant's 

ability to work are not medical findings, but administrative findings. He reasoned that such 

conclusions are reserved for the Commissioner, because they are beyond the scope of a doctor's 

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medical expertise. While this is true, Dr. Aktahr did not offer his conclusion as to plaintiffs 

disability in a vacuum. Rather, he completed a functional analysis which listed all of plaintiffs 

limitations. Only after that assessment did Dr. Aktahr conclude that the listed limitations would 

prevent plaintiff from working. In addition to the RFC questionnaire, Dr. Akhtar supported his 

opinion with treatment notes, which document plaintiffs neck pain and balance problems. The 

ALJ did not address any portion of Dr. Aktahr's opinion other than that ultimate conclusion. 

Therefore, the ALJ failed to give specific and legitimate reasons supp01ied by substantial 

evidence to reject Dr. Aktaln"s opinion. 

3. Plaintiffs Testimony 

Plaintiff testified that her symptoms severely limited her capability to perfo1m work. The 

Ninth Circuit has established a two-part test for evaluating subjective symptom testimony. First, 

the plaintiff must produce objective medical evidence of an underlying impairment which could 

reasonably be expected to produce the symptoms alleged. Smolen v. Chafer, 80 F.3d 1273, 1281 

(9th Cir. 1996). Second, if there is no evidence that pla\ntiffis malingering, the ALJ may reject 

the claimant's testimony regarding the severity of her symptoms only if he makes specific 

findings stating clear and convincing reasons for doing so. Id. at 1284. In this case, it is clear 

that plaintiffs impairments could cause some of the alleged symptoms and there is no evidence 

of malingering. Tr. 350, 340. Therefore, the ALJ had to provide clear and convincing reasons 

for rejecting plaintiff's testimony. 

The ALJ rejected the plaintiff's testimony, explaining that it was not suppo1ied by the 

medical records. However, as discussed above, the medical records demonstrate that plaintiff 

was incapable of light work. The ALJ also reasoned that plaintiff's testimony regarding her 

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limitations was inconsistent with her daily activities. Specifically, the ALJ relied on the fact that 

plaintiff performs self-care activities independently, shops, prepares meals, does chores, reads, 

drives a car, uses a computer, talks on the phone, watches television, eats dinners out, attends 

church, and participates in women's group meetings. Tr. 27. However, these activities are not 

inconsistent with the limitations that plaintiff described. While plaintiff testified that she shops, 

she also explained that she does not place anything heavy in her cart, she asks for assistance in 

loading her car, and is unable to carry the groceries into her house. Tr. 56. While she testified 

that she does household chores, she requires the assistance of her boyfriend in completing most. 

Tr. 69-70. She testified that she needs to rest after performing a task for ten minutes. Tr. 70. 

While she testified that she watches television and reads, she explained that she can do so only if 

she is able to switch positions frequently. Tr. 57, 70-71. She also testified that she may have 

three days per week in which her symptoms are less severe and she can perform some of the 

more strenuous activities listed. Tr. 50. In consideration of plaintiffs entire testimony, the 

activities that the ALJ listed are not inconsistent with plaintiffs alleged limitations. Moreover, 

the fact that plaintiff can perform some tasks is not determinative of disability. "The Social 

Security Act does not require that claimants be utterly incapacitated to be eligible for benefits." 

Fair v. Bowen, 885 F2d 597, 604 (9th Cir. 1989) (citations omitted). Therefore, the ALJ failed to 

provide clear and convincing reasons for rejecting plaintiffs testimony. 

" [A] remand for further proceedings is unnecessaiy if the record is fully developed and it 

is clear from the record that the ALJ would be required to award benefits." Holohan v. 

}vfassanari, 246 F.3d 1195, 1210 (9th Cir. 2001). The rule recognizes "the importance of 

expediting disability claims." Id. "[I]n cases in which it is evident from the record that benefits 

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should be awarded, remanding for further proceedings would needlessly delay effectuating the 

primmy purpose of the Social Security Act, 'to give financial assistance to disabled persons 

because they cannot sustain themselves.'" Id. (quoting Gamble v. Chafer, 68 F.3d 319, 322 (9th 

Cir. 1995)). 

Under these standards, remand for a finding of disability and an award of benefits 

is appropriate here. Each treating doctor opined that plaintiff's symptoms would cause her to be 

absent from work at least twice per month. The VE testified that such a condition would make 

plaintiff unable to sustain gainful employment. It is clear that the ALJ would be required to find 

plaintiff disabled if all her limitations were incorporated in her RFC. The record is fully 

developed, and fmiher proceedings would serve no useful purpose. The record establishes that 

plaintiff cannot perfo1m ally substantial gainful work that exists in the national economy, and the 

case need not be returned to the ALJ. Benecke, 379 F.3d at 595. "Allowing the Commissioner to 

decide the issue again would create an unfair 'heads we win; tails, let's play again' system of 

disability benefits adjudication." Id. (citations omitted). As the Benecke court summed up: 

Remanding a disability claim for further proceedings can delay much 

needed income for claimants who m·e unable to work and are entitled to benefits, 

often subjecting them to tremendous financial difficulties while awaiting the 

outcome of their appeals and proceedings on remand. Requiring remand for 

further proceedings ally time the vocational expe1i did not answer a hypothetical 

question addressing the precise limitations established by improperly discredited 

testimony would contribute to waste and delay and would provide no incentive to 

the ALJ to fulfill [his or] her obligation to develop the record. 

Benecke, 379 F.3d at 595 (citations and internal quotations omitted). 

CONCLUSION 

For the reasons provided, this court concludes that the decision of the Acting 

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Commissioner denying Jacqueline Dotzauer's application for DIB must be REVERSED and 

REMANDED for an award of benefits. 

IT IS SO ORDERED. 

DATED this J1l day of June, 2014. 

~.!!_~· Ancer L. Hagger 

United States District Judge 

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