IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOSEPH ROBERT NEVILLE, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner, Social Security 

Administration, 

Defendant. 

DAVID G. HOSENPUD 

MASAYUKI YAMAGUCHI 

Lane Powell P.C. 

601 S.W. Second Avenue, Suite 2100 

Portland, OR 97204-3158 

(503) 778-2121 

Attorneys for Plaintiff 

Billy J. Williams 

Acting United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

(503) 727-1011 

SARAH L. MARTIN 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Avenue, Suite 2900, M/S 221A 

Seattle, WA 98104-7075 

(206) 615-3705 

Attorneys for Defendant 

l - OPINION AND ORDER 

1:14-CV-01654-BR 

OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 1 of 29
BROWN, Judge. 

Plaintiff Joseph Robert Neville seeks judicial review of a 

final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's applications for 

disability insurance benefits (DIB) under Title II and 

supplemental security income (SSI) under Title XVI of the Social 

Security Act. This Court has jurisdiction to review the 

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

Following a review of the record, the Court REVERSES the 

decision of the Commissioner and REMANDS this matter pursuant to 

sentence four of 42 U.S.C. § 405(g) for further administrative 

proceedings consistent with this Opinion and Order. 

ADMINISTRATIVE HISTORY 

Plaintiff protectively filed his applications on March 24, 

2009, and alleged a disability onset date of April 11, 2006. 

Tr. 231-43. 1 The applications were denied initially and on 

reconsideration. An Administrative Law Judge (ALJ) held a 

hearing on July 19, 2011. Tr. 38-57. At the hearing Plaintiff 

was represented by an attorney. Plaintiff and a vocational 

expert (VE) testified. 

The ALJ issued a decision on August 2, 2011, in which he 

1 Citations to the official transcript of record filed by 

the Commissioner on April 13, 2015, are referred to as "Tr." 

2 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 2 of 29
found Plaintiff is not disabled. Tr. 98-108. The Appeals 

Council granted Plaintiff's request for review and remanded this 

matter for a second hearing. An ALJ held a second hearing on 

April 15, 2013, and issued a decision on May 8, 2013, in which 

she found Plaintiff not disabled. Tr. 58-90, 13-23. That 

decision became the final decision of the Commissioner on August 

18, 2014, when the Appeals Council denied Plaintiff's request for 

review. Tr. 1-6. See Sims v. Apfel, 530 U.S. 103, 106-07 

(2000). 

On October 17, 2014, Plaintiff filed a Complaint in this 

Court seeking review of the Commissioner's decision. 

BACKGROUND 

Plaintiff was born in December 1959 and was 46 years old on 

his alleged onset date. He completed the ninth grade and later 

obtained a GED. Tr. 41, 63. Plaintiff has past relevant work 

experience as a kitchen helper, short-order cook, hose-maker, and 

courier. Tr. 63-64. 

Plaintiff alleges disability due to "bipolar, anxiety, PTSD, 

nervous disorder, arthritis, heart condition, vision problems in 

right eye, manic.n Tr. 281. 

STANDARDS 

The initial burden of proof rests on the claimant to 

3 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 3 of 29
establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th 

Cir. 2012). To meet this burden a claimant must demonstrate his 

inability "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). The ALJ must develop the record when there is 

ambiguous evidence or when the record is inadequate to allow for 

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d 

453, 459-60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision 

if it is based on proper legal standards and the findings are 

supported by substantial evidence in the record as a whole. 42 

u.s.c. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 

682 F.3d 1157, 1161 (9~ Cir. 2012). Substantial evidence is 

"relevant evidence that a reasonable mind might accept as 

adequate to support a conclusion." .Molina, 674 F.3d. at 1110-11 

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 

(9th Cir. 2009)). It is more than a mere scintilla [of evidence] 

but less than a preponderance. 

at 690). 

Id. (citing Valentine, 574 F.3d 

The ALJ is responsible for determining credibility, 

resolving conflicts in the medical evidence, and resolving 

4 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 4 of 29
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591. (9th Cir. 

2009). The court must weigh all of the evidence whether it 

supports or detracts from the Commissioner's decision. Ryan v. 

Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even 

when the evidence is susceptible to more than one rational 

interpretation, the court must uphold the Commissioner's findings 

if they are supported by inferences reasonably drawn from the 

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the 

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 

2006) . 

DISABILITY ANALYSIS 

Regulatory Sequential Evaluation 

At Step One the claimant is not disabled if the Commissioner 

determines the claimant is engaged in substantial gainful 

activity. 20 C.F.R. §§ 404.1520(a) (4) (I), 416.920(a) (4) (I). 

also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 

2011). 

See 

At Step Two the claimant is not disabled if the Commissioner 

determines the claimant does not have any medically severe 

impairments or combination of impairments. 20 C.F.R. 

§§ 404 .1520 (a) (4) (ii), 416. 920 (a) (4) (ii). 

F.3d at 724. 

5 - OPINION AND ORDER 

See also Keyser, 648 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 5 of 29
At Step Three the claimant is disabled if the Commissioner 

determines the claimant's impairments meet or equal one of the 

listed impairments that the Commissioner acknowledges are so 

severe as to preclude substantial gainful activity. 20 C.F.R. 

§§ 404 .1520 (a) (4) (iii), 416. 920 (a) (4) (iii). See also Keyser, 648 

F.3d at 724. The criteria for the listed impairments, known as 

Listings, are enumerated in 20 C.F.R. part 404,· subpart P, 

appendix 1 (Listed Impairments). 

If the Commissioner proceeds beyond Step Three, she must 

assess the claimant's residual functional capacity (RFC). The 

claimant's RFC is an assessment of the sustained, work-related 

physical and mental activities the claimant can still do on a 

regular and continuing basis despite his limitations. 20 C.F.R. 

§§ 404.1520(e), 416.920(e). See also Social Security Ruling 

(SSR) 96-Sp. "A 'regular and continuing basis' means 8 hours a 

day, for 5 days a week, or an equivalent schedule.'' SSR 96-8p, 

at *1. In other words, the Social Security Act does not require 

complete incapacity to be disabled. Taylor v. Comm'r of Soc. 

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair 

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the 

Commissioner determines the claimant retains the RFC to perform 

work he has done in the past. 20 C.F.R. §§ 404.1520 (a) (4) (iv), 

416. 920 (a) (4) (iv). See also Keyser, 648 F.3d at 724. 

' 

6 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 6 of 29
If the Commissioner reaches Step Five, she must determine 

whether the claimant is able to do any other work that exists in 

the national economy. 20 C.F.R. §§ 404.1520(a) (4) (v), 

416. 920 (a) (4) (v). See also Keyser, 648 F.3d at 724-25. Here the 

burden shifts to the Commissioner to show a significant number of 

jobs exist in the national economy that the claimant can perform. 

Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th 

Cir. 2010). The Commissioner may satisfy this burden through the 

testimony of a VE or by reference to the Medical-Vocational 

Guidelines set forth in the regulations at 20 C.F.R. part 404, 

subpart P, appendix 2. If the Commissioner meets this burden, 

the claimant is not disabled. 20 C.F.R. §§ 404.1520(g) (1), 

416. 920 (g) (1). 

ALJ 1 S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity (SGA) since his April 11, 2006, 

alleged onset date. Tr. 15. The ALJ found Plaintiff met the 

insured status requirements through March 31, 2012. 

At Step Two the ALJ found Plaintiff has severe impairments 

including bipolar disorder; history of left-shoulder surgery; 

degenerative joint disease of the bilateral hips; degenerative 

joint disease of the bilateral knees; right-eye vision loss; and 

anxiety. Id. 

7 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 7 of 29
At Step Three the ALJ found Plaintiff's impairments do not 

meet or equal any listed impairment. Tr. 24. The ALJ found 

Plaintiff has the RFC for less than a full range of light work 

and is limited to frequent (as opposed to constant) overhead 

reaching with the left upper extremity. The claimant should 

avoid loud noises and hazards. He is limited to only frequently 

operating foot controls and has limited vision in the right eye. 

He is able to perform detailed instructions. Tr. 18. 

At Step Four the ALJ found Plaintiff is unable to perform 

any past relevant work. Tr. 21. 

At Step Five the ALJ found Plaintiff is able to perform the 

occupations of cashier, cleaner polisher, and fast-food worker. 

Tr. 22. 

DISCUSSION 

Plaintiff contends the Commissioner erred by (1) improperly 

finding Plaintiff was not fully credible, (2) failing to find 

Chronic Obstructive Pulmonary Disease a severe impairment at Step 

Two, (3) improperly weighing medical evidence, and (4) posing an 

incomplete hypothetical question to the VE. 

I. The ALJ did not err when she found Plaintiff's testimony was 

less than fully credible. 

The ALJ is responsible for determining credibility, 

resolving conflicts in medical testimony, and for resolving 

ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 

8 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 8 of 29
1995). See also Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir. 

2008). The ALJ's findings, however, must be supported by 

specific, cogent reasons. Reddick v. Chater, 157 F.3d 715, 722 

(9th Cir. 1998). See also Holohan v. Massanari, 246 F.3d 1195, 

1202 (9th Cir. 2001). Unless there is affirmative evidence that 

shows the claimant is malingering, the Commissioner's reason 

for rejecting the claimant's testimony must be "clear and 

convincing." Id. The ALJ must identify the testimony that is 

not credible and the evidence that undermines the claimant's 

complaints. Id. The evidence upon which the ALJ relies must be 

substantial. Id. at 724. See also Holohan, 246 F.3d at 1208. 

General findings (e.g., "record in general" indicates 

improvement) are an insufficient basis to support an adverse 

credibility determination. Reddick, 157 F.3d at 722. See also 

Holohan, 246 F.3d at 1208. 

When deciding whether to accept a claimant's subjective 

symptom testimony "an 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. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). 

Under the Cotton test, a claimant who alleges 

disability based on subjective symptoms "must 

produce objective medical evidence of an underlying impairment which could reasonably be 

expected to produce the pain or other symptoms 

alleged." Bunnell, 947 F.2d at 344 (quoting 

42 U.S.C. § 423(d) (5) (A) (1988)); Cotton, 799 

9 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 9 of 29
F.2d at 1407-08. The Cotton test imposes only 

two requirements on the claimant: (1) she must 

produce objective medical evidence of an 

impairment or impairments; 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. See also Carmickle v. Comm'r Soc. Sec. 

Admin., 533 F. 3d 1155, 1160 (9th Cir. 2008). 

If the claimant satisfies the above test and there is not 

affirmative evidence of malingering, the ALJ can reject the 

claimant's pain testimony only if she provides clear and 

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 

750 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 834 

(9th Cir. 1995)). The ALJ's findings must be "sufficiently 

specific to permit the court to conclude that the ALJ did not 

arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 

278 F.3d 947, 958 (9th Cir. 2002). 

A. Plaintiff's Testimony 

In his Adult Function Report dated May 28, 2009, Plaintiff 

reported he was homeless, living in shelters and on the street, 

and "couch surfing." Tr. 299. He reported during a normal day 

he walks around a lot and goes to the shelter to shower although 

he does not have clean clothes. He visits with friends, watches 

television, helps his ex-wife shop, and does "things around her 

house." Id. Plaintiff reported he sleeps a lot because of his 

10 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 10 of 29
medications. 

Plaintiff stated he is no longer able to handle stress or 

to maintain focus, and he asserted he has severe memory loss. 

Tr. 300. He wakes several times in the night, has trouble going 

back to sleep, and is tired when he wakes. 

Plaintiff stated his clothes are not clean, his hair is 

often dirty, and he has not shaved in "a long time." Id. He has 

some problems with his hands and very poor dentation. He needs 

help remembering when to eat, to shower, and to cut his nails. 

Tr. 301. 

He eats foods like sandwiches and potato chips that do not 

have to be cooked although he usually goes to a shelter or to a 

friend's place to eat. He cannot remember how to cook some 

things, and his pace is very slow. He does not have any 

household chores or yard work. Plaintiff's hobbies are short 

walks and watching television. Tr. 303. He has a hard time 

concentrating and staying focused on what he is doing and 

difficulty reading and watching television. The places he 

regularly goes include shelters and churches, "but it is becoming 

increasingly hard to do these things." Id. It is also difficult 

to be around other people. Tr. 304. 

Plaintiff said he could walk for six-to-eight blocks before 

needing to rest for 10 or 15 minutes. It is also difficult for 

him to stand for long periods of time, and he becomes short of 

11 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 11 of 29
breath when climbing stairs. He can pay attention for 25-45 

minutes, "sometimes less." Id. He has trouble following spoken 

instructions because he forgets easily. He does not handle 

stress or change well. Tr. 305. His mind "races so fast that 

it's hard to do anything and at times I think that the world is 

crashing around me." Tr. 305. 

Plaintiff completed a Pain & Fatigue Questionnaire on 

May 28, 2009, in which he stated he had "aching" pain in his 

shoulders, knees, elbows, ankles, hands, and back. Tr. 307. It 

occurs often and can last for days; is caused by walking, 

climbing, and sitting; and is relieved by lying down. 

Plaintiff reported he has suffered from fatigue for 15 

years, and it has increased over the past three years because of 

medication that makes him tired. He naps once a day for about 

two hours and rests between activities. For example, if he walks 

to the store he rests before beginning to shop. He can be active 

for about two or three hours before requiring rest. 

At the April 2013 hearing before the ALJ Plaintiff testified 

he had worked as a courier, a builder of hydraulic hoses, a cook, 

and a dishwasher. Tr. 63. He has not worked since November 

2008 and was living in a shelter. Plaintiff received treatment 

at the Veteran's Hospital for arthritis, degenerative disk 

disease, and Chronic Obstructive Pulmonary Disease (COPD). 

Tr. 66. He also received psychological treatment and 

12 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 12 of 29
medications. Plaintiff took acetaminophen, Benzotrate, Serzan, 

Fluroside, Albuterol, and Tramadol on a regular basis, and the 

medications were helpful. Tr. 66-67. 

Plaintiff spends his day walking "a little bit when I can, 

but I try not to be around a lot of people." Tr. 67. He watches 

television, but he does not read. He also goes to church. He 

does not use a computer, he crochets as a hobby, and he smokes 

cigarettes. He does not drink alcohol, but he smokes marijuana 

for pain once or twice a week. Tr. 69. He was last arrested in 

Medford Oregon for harassment in 2005. 

Plaintiff testified he cannot work because he cannot stand 

or sit very long. He has a problem using his hands, he can only 

see with one eye, he has severe arthritis on his left side, and 

he requires a cane to be able to stand up. Tr. 70. 

He also has arthritis in his hands and can use them only for 

a ~hort period before they become stiff and painful. Tr. 71. He 

uses a prescribed cane when walking. He cannot sit for long 

without changing positions to relieve stress on his hip. He can 

lift less than ten pounds. 

Plaintiff testified he can sit for about 45 minutes without 

standing up. Tr. 72. He can stand for about 30 minutes before 

his left knee and hip cause him to change positions. Tr. 73. He 

cannot lift or carry more than ten pounds "because of the pain 

that I get when I try to raise my left arm over my head." Id. 

13 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 13 of 29
He holds the cane with his right hand and leans on it to relieve 

pain and stress on his left side. He uses the cane when 

standing. 

Plaintiff had left-shoulder surgery in 1997 and cannot lift 

his left arm over his head without severe pain nor hold his left 

arm out without pain. Tr. 77. COPD causes him to become out of 

breath after walking three or four blocks. Tr. 77-78. It is 

difficult for him to climb stairs because of pain in his left 

knee and hip, and he experiences shortness of breath. Tr. 78. 

He limps and drags his left leg when walking. Tr. 80. 

The ALJ found Plaintiff's statements as to the severity of 

his impairments were less than fully credible. Tr. 18-19. The 

ALJ found Plaintiff's assertions of disabling symptoms was not 

fully credible based on the objective medical evidence, which, 

according to the ALJ, failed to support Plaintiff's allegations 

of disabling symptoms and limitations. Tr. 19. The ALJ cited 

Plaintiff's "wide range of reported activities from his testimony 

and function reports," the normal findings on objective 

diagnostic imaging, the lack of corroboration relating to 

Plaintiff's upper left extremity, and the reports of stable 

mental-health symptoms. Tr. 21. 

Plaintiff contends the ALJ erred by failing to identify the 

specific testimony that she found not credible and by failing to 

identify the evidence that undermines the specific testimony by 

14 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 14 of 29
Plaintiff. 

B. The Relevant Objective Medical Evidence 

As noted, the ALJ found Plaintiff's complaints were not 

supported by the objective medical evidence. Tr. 19. Although 

an ALJ may not rely solely on a lack of objective medical 

evidence to discredit a claimant, it is one factor that may be 

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

2001) (citing 20 C.F.R. § 404.1529(c) (2)). 

The ALJ stated Plaintiff had a full range of motion in his 

joints with no swelling, no muscle weakness, full motor strength, 

no muscle atrophy, and a normal gait in examinations from July to 

October 2007 despite Plaintiff's claims of disabling hip and knee 

pain. Tr. 19, 411, 536, 547. The ALJ cited Plaintiff's 

September 2007 report that he walked about two miles daily and 

denied significant musculoskeletal problems. Tr. 19, 415-16. 

The ALJ noted September 2007 normal imaging studies of the left 

hip and knee and December 2010 images showing minimal symmetric 

degenerative changes in the knees and hips. Tr. 19, 397, 399, 

637, 638. The ALJ also noted the March 2011 MRI of the left knee 

with no evidence of a meniscal tear. Tr. 19, 665. 

Plaintiff argues the ALJ selectively chose medical records 

that minimize Plaintiff's limitations. Plaintiff cites the 

September 2009 examination by Robin Rose, M.D., in which Dr. Rose 

found Plaintiff's "left lower extremity is externally rotated, 

15 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 15 of 29
decreased lordosis and decreased arm swing drags left leg 

slightly." Tr. 554. Dr. Rose noted Plaintiff's tandem gait was 

"imbalanced but attempts." Id. Plaintiff's knee bend was 75% of 

normal, lateral flexion of the back was painful to the right and 

normal on the left, range of motion in the hip joints was 95% of 

normal, there was pain in the knee joints w~th extension and 

flexion, and the left shoulder joint was painful anteriorly with 

flexion 120 degrees left and 140 degrees right. Tr. 555. 

Dr. Rose found cervical and lumbar paravertebral muscle spasm 

with palpable tenderness and crepitus. Tr. 556. Dr. Rose also 

found Plaintiff's knees crepitus, left shoulder stiff and painful 

to mobilize, and motor strength 5/5 in the lower extremities and 

4/5 in the left upper extremity with weakness at the shoulder. 

Id. Dr. Rose diagnosed Plaintiff with generalized arthritis with 

lumbar disease and left-shoulder pain, undiagnosed heart 

condition symptomatic with syncope and chest pain, decreased 

vision on right, and bipolar disorder. Tr. 557. Dr. Rose 

concluded Plaintiff was able to walk and to stand for four hours 

in an eight-hour workday with breaks every 30 minutes for 

position change due to lumbar and leg pain. Dr. Rose found 

Plaintiff was able to sit for four hours in an eight-hour workday 

with breaks for position change every 45 minutes. Tr. 558. 

Plaintiff could lift or carry 20 pounds frequently and 40 pounds 

occasionally, but he could never lift his left arm above his 

16 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 16 of 29
head. 

In addition, Plaintiff cites the January 2013 examination by 

Steven E. Gerson, D.O. Tr. 781-86. Dr. Gerson noted Plaintiff's 

gait without his cane was with a moderate limp and abnormal 

weight-bearing favoring the left leg. Tr. 784. Dr. Gerson 

reported Plaintiff had moderate difficulty getting on and off the 

examination table, and he declined to tandem walk, to walk on 

toes, or to squat. Tr. 785. Dr. Gerson observed Plaintiff had 

good range of motion in both arms without any obvious pain or 

distress even when both arms were almost fully overhead. 

Tr. 785. 

Both Drs. Rose and Gerson found Plaintiff had mobility 

issues with his left lower extremity. They differ, however, on 

whether Plaintiff's left upper extremity is as limited as he 

claims. On this conflicting record the ALJ's reliance on the 

objective medical evidence to find Plaintiff less than fully 

credible is one specific, clear, and convincing reason for 

finding Plaintiff not fully credible. 

C. Plaintiff's Activities of Daily Living 

The ALJ found Plaintiff's complaints of disabling pain were 

contradicted by the fact that Plaintiff worked for two years 

after his alleged onset date of April 2006. Tr. 18. Plaintiff 

argues he worked part-time as a laborer from April 2006 until 

November 2007 and worked as a dishwasher from December 2007 to 

17 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 17 of 29
April 2008. The ability to work with allegedly disabling 

impairments is a valid reason to discount the veracity of a 

claimant's allegations of disability. 

F.2d 1255, 1258 (9th Cir. 1992). 

Drouin v. Sullivan, 966 

The ALJ cited Plaintiff's ability to go to church, to engage 

in social activities, and to crochet. Tr. 18. Contrary to his 

April 2013 testimony that he could not stand for very long or 

without a cane, Plaintiff reported in May 2009 that he spent "a 

lot of time" walking around. Tr. 18, 299. The ALJ pointed out 

that Plaintiff reporting walking "about two miles a day" in 

September 2007. Tr. 19, 443. 

The ALJ properly found the contradiction between Plaintiff's 

alleged limitations and his activities is a specific, clear, and 

convincing reason to find Plaintiff less than fully credible. 

D. Upper Left Extremity 

The ALJ cited the lack of corroboration regarding 

Plaintiff's allegation of left-shoulder limitations as a reason 

to find Plaintiff less than fully credible. Tr. 21. The 

evidence, however, conflicts on this issue. Dr. Rose found leftshoulder limitations, but Dr. Gerson observed behaviors 

contradicting those limitations. Tr. 77, 555, 785. The lack of 

corroboration regarding left shoulder limitations, therefore, is 

a specific, clear, or convincing reason to find Plaintiff less 

than fully credible. 

18 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 18 of 29
E. Mental-Health Symptoms 

The ALJ found Plaintiff less than fully credible in part 

because Plaintiff's mental-health symptoms were well-controlled. 

Tr. 21. Impairments that can be controlled effectively with 

treatment are not disabling for the purpose of determining 

eligibility for Social Security benefits. Warre v. Comm'r of 

Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The 

treatment notes show Plaintiff's bipolar disorder was stable with 

medication treatment. Tr. 20, 501, 528, 531, 533, 729, 740. 

Plaintiff testified he was unable to work due to physical 

limitations. Tr. 70. The fact that Plaintiff's mental-health 

issues were well-controlled by medication is not a specific, 

clear, or convincing reason to find him less than fully credible. 

When there is more than one reasonable interpretation of the 

evidence, however, the reviewing court should not substitute its 

judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 

1098 (9th Cir. 1999). Here the ALJ articulated specific, clear, 

and convincing reasons for finding Plaintiff's symptom testimony 

less than fully credible. 

In summary, on this record the Court finds the ALJ did not 

err when she concluded Plaintiff's testimony was not fully 

credible because she provided legally sufficient reasons 

supported by substantial evidence in the record for doing so. 

19 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 19 of 29
II. The ALJ erred when she evaluated Plaintiff's RFC. 

Plaintiff contends the ALJ erred at Step Two by failing to 

include chronic obstructive pulmonary disorder as a severe 

impairment. 

At Step Two the ALJ determines whether the claimant has a 

medically-severe impairment or combination of impairments. Bowen 

v. Yuckert, 482 U.S. 137, 140-41 (1987). The Social Security 

Regulations and Rulings, as well as the case law that applies 

them, discuss the Step Two severity determination in terms of 

what is ''not severe." According to the regulations, "an 

impairment is not severe if it does not significantly limit [the 

claimant's ] physical ability to do basic work activities." 20 

C.F.R. § 404.152l(a). Basic work activities are ''abilities and 

aptitudes necessary to do most jobs, including, for example, 

walking, standing, sitting, lifting, pushing, pulling, reaching, 

carrying or handling.'' 20 C.F.R. § 404.152l(b). 

The Step Two inquiry is a de minimis screening device to 

dispose of groundless claims. Yuckert, 482 U.S. at 153-54. An 

impairment or combination of impairments can be found "not 

severe" only if the evidence establishes a slight abnormality 

that has "no more than a minimal effect on an individual's 

ability to work.'' See SSR 85-28. See also Yuckert v. Bowen, 841 

F.2d 303, 306 (9~ Cir 1988) (adopting SSR 85-28). A physical or 

mental impairment must be established by medical evidence 

20 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 20 of 29
consisting of signs, symptoms, and laboratory findings and cannot 

be established on the basis of a claimant's symptoms alone. 20 

C.F.R. § 404.1508. 

The ALJ noted the COPD diagnosis and, citing a June 2007 

examination, found the COPD did not cause more than minimal 

functional limitations. Tr. 16, 422. Plaintiff, however, 

contends the ALJ ignored more recent records documenting 

increased symptoms and severity. Plaintiff points to a July 2007 

emergency-room record in which he presented with shortness of 

breath. Tr. 497. In September and October 2007 Plaintiff also 

complained of shortness of breath. Tr. 443, 757. Plaintiff 

cites a February 2011 letter to Plaintiff from Melinda Spolski, 

F.N.P.-C., that states pulmonary function tests indicate 

Plaintiff has COPD, "which explains your symptoms of shortness of 

breath," and she recommends a prescription inhaler. Tr. 809. 

Plaintiff also points to the November 2012 report of treating 

physician Alex Min, M.D., who advised Plaintiff that a CT scan 

revealed emphysema [a form of COPD] and dependent atelectasis 

[gravity dependent partial lung collapse] in his lung. Tr. 744. 

Plaintiff cites a December 2012 form in which he lists Albuterol 

as prescribed for COPD. Tr. 386. Plaintiff testified at the 

April 2013 hearing that he "can't walk very far without having to 

sit down and rest, because I'm a little out of breath" and that 

he has trouble climbing stairs because he becomes short of 

21 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 21 of 29
breath. Tr. 77-78. 

The record reflects objective medical evidence and pulmonary 

function testing that show Plaintiff becomes short of breath, 

which significantly limits his physical ability to perform basic 

work activities like walking. See 20 C.F.R. 404.152l(a), (b). 

The ALJ nevertheless found Plaintiff had the RFC to perform 

light work, which 20 C.F.R. § 404.1567(b) defines as follows: 

Light work involves lifting no more than 20 

pounds at a time with frequent lifting or 

carrying of objects weighing up to 10 pounds. 

Even though the weight lifted may be very 

little, a job is in this category when it 

requires a good deal of walking or standing, 

or when it involves sitting most of the time 

with some pushing and pulling of arm or leg 

controls. To be considered capable of performing a full or wide range of light work, 

you must have the ability to do substantially 

all of these activities. If someone can do 

light work, we determine that he or she can 

also do sedentary work, unless there are 

additional limiting factors such as loss of 

fine dexterity or inability to sit for long 

periods of time. 

On this record the Court finds there is evidence that 

Plaintiff has shortness of breath with any exertion, including 

walking. Thus, the ALJ's failure to include COPD as a severe 

impairment at Step Two was not harmless error because the ALJ did 

not include Plaintiff's limitations arising from COPD when 

evaluating Plaintiff's RFC. 

In summary, the Court concludes on this record that the ALJ 

erred when she evaluated Plaintiff's RFC by failing to include 

22 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 22 of 29
Plaintiff's physical limitations arising from COPD. 

III. The Medical Evidence 

Disability opinions are reserved for the Commissioner. 20 

C.F.R. §§ 404.1527(e) (1)) 416.927(e) (1). If a conflict does not 

arise between medical-source opinions, the ALJ generally must 

accord greater weight to the opinion of a treating physician than 

that of an examining physician. Lester, 81 F.3d at 830. More 

weight is given to the opinion of a treating physician because 

the person has a greater opportunity to know and observe the 

patient as an individual. Orn v. Astrue, 495 F.3d 625, 632 (9th 

Cir. 2007). In such circumstances the ALJ should also give 

greater weight to the opinion of an examining physician over that 

of a reviewing physici~n. Id. If a treating or examining 

physician's opinion is not contradicted by another physician, the 

ALJ may only reject it for clear and convincing reasons. Id. 

(Treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 

(9th Cir. 2006) (examining physician). Even if one physician is 

contradicted by another physician, the ALJ may not reject the 

opinion without providing specific and legitimate reasons 

supported by substantial evidence in the record. Orn, 495 F.3d 

at 632; Widmark, 454 F.3d at 1066. The opinion of a nonexamining 

physician by itself is insufficient to constitute substantial 

evidence to reject the opinion of a treating or examining 

physician. Widmark, 454 F.3d at 1066 n. 2. The ALJ may reject 

23 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 23 of 29
physician opinions that are "brief, conclusory, and inadequately 

supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 

1211, 1216 (9th Cir. 2005). 

A. Dr. Rose 

As noted, Dr. Rose examined Plaintiff on September 22, 2009. 

Tr. 549-59. Dr. Rose diagnosed Plaintiff with generalized 

arthritis with lumbar disease and left-shoulder pain as well as 

undiagnosed heart condition with syncope and chest pain, 

decreased vision in the right eye, and bipolar disorder. 

Tr. 557. Dr. Rose opined Plaintiff was able to walk or to stand 

for up to four hours in an eight-hour workday with breaks for 

position changes every 30 minutes and was able to sit for four 

hours with breaks every 45 minutes for position change. Tr. 558. 

Dr. Rose found Plaintiff could lift 20 pounds frequently and 40 

pounds occasionally, but Plaintiff was unable to reach above his 

head with his left arm, was never able to crawl, rarely able 

to kneel, and occasionally able to stoop, crouch, or climb. 

Dr. Rose found Plaintiff was limited to never reaching, pushing, 

or pulling with the upper left extremity with manipulative 

limitations due to left-shoulder pain and his weakened grip in 

his left hand. Dr. Rose concluded Plaintiff should avoid extreme 

cold and heat, wetness, humidity, vibrations, pulmonary 

irritants, and hazards and noise. Dr. Rose also concluded 

Plaintiff's bipolar disorder created communication limitations 

24 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 24 of 29
that would interfere with working with others and following 

employer requests. 

The ALJ gave "partial weight" to Dr. Rose's opinion that 

Plaintiff should avoid hazards and noise. Tr. 19. The ALJ found 

Plaintiff more limited in lifting and carrying than Dr. Rose 

determined. 

The ALJ gave "little weight" to Dr. Rose's remaining 

limitations "because they are excessive in light of the 

claimant's wide range of reported activities, including his 

ability to continue working for two years after the onset date 

and walk up to two miles per day." Id. The limitations assessed 

by Dr. Rose, however, do not preclude the possibility of 

Plaintiff working part-time or walking up to two miles in a day. 

The Commissioner also contends Dr. Rose's opinion is 

contradicted by the October 26, 2009, report of state agency 

reviewing physician Neal Bern, M.D. Tr. 582-89. Dr. Bern 

examined records, included Dr Rose's report, and opined Plaintiff 

could perform a limited range of light work with occasional 

overhead reaching on the left and only occasional hand or foot 

controls with the left upper and lower extremities. 

The ALJ noted Dr. Bern's opinion and accorded it partial 

weight, accepting his assessment that Plaintiff was limited to 

light-exertion work and had limited right-eye vision. Tr. 20. 

The ALJ, however, rejected the remainder of Dr. Bern's opinion as 

25 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 25 of 29
inconsistent with the objective medical evidence. 

On this record the Court concludes the ALJ erred when she 

partially rejected Dr. Rose's opinion because the ALJ did not 

provide specific and legitimate reasons supported by substantial 

evidence in the record for doing so. 

B. Dr. Gerson 

Dr. Gerson examined Plaintiff on January 9, 2013. Tr. 781-

87. Dr. Gerson found Plaintiff had full bilateral motor 

strength. He observed Plaintiff's gait "without the cane is with 

a moderate limp, weight bearing is abnormal with the claimant 

favoring the left leg, and the posture is normal. There is 

a mild lumbering gait, negative swaying and negative instability 

of the gait.n Tr. 784. He opined Plaintiff was able to stand or 

to walk for four hours in an eight-hour workday, and was unable 

to climb a few steps at a reasonable pace with the use of a hand 

rail or to walk a block at a reasonable pace on rough or uneven 

surface. Tr. 794. 

The ALJ cited Dr. Gerson's report, found his lifting 

restrictions were insufficient, and rejected his limiting 

Plaintiff to standing and to walking for four hours per day and 

limiting Plaintiff's frequent use of his right hand "because 

[those limitations] are unsupported by the clinical exam 

findings, including the full bilateral lower extremity motor 

strength and negative instability of gait exhibited by the 

26 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 26 of 29
claimant.n Tr. 20. 

Both of the examining physicians found Plaintiff was able to 

stand or to walk for four hours in an eight-hour workday, and 

both examining physicians found Plaintiff had full bilateral 

lower-extremity motor strength. The ALJ's assertion that 

Plaintiff's lower-extremity motor strength contradicts the 

medical .assessment of the length of time that Plaintiff can stand 

or walk is erroneous .. 

Accordingly, on this record the Court concludes the ALJ 

erred when she rejected Dr. Gerson's opinion regarding 

Plaintiff's limitations because she did not provide legally 

sufficient reasons supported by substantial evidence in the 

record for doing so. 

REMAND 

The decision whether to remand for further proceedings or 

for inunediate payment of benefits generally turns on the likely 

utility of further proceedings. Harman v. Apfel, 211 F.3d 1172, 

1179 (9~ Cir. 2000). When ''the record has been fully developed 

and further administrative proceedings would serve no useful 

purpose, the district court should remand for an inunediate award 

of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 

2004) . 

The decision whether to remand this case for further 

27 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 27 of 29
proceedings or for the payment of benefits is a decision within 

the discretion of the court. Harman, 211 F.3d 1178. 

The Ninth Circuit has established a three-part test "for 

determining when evidence should be credited and an immediate 

award of benefits directed." Harman, 211 F.3d at 1178. The 

Court should grant an immediate award of benefits when: 

(1) the ALJ has failed to provide legally 

sufficient reasons for rejecting . 

evidence, (2) there are no outstanding issues 

that must be resolved before a determination 

of disability can be made, and (3) it is 

clear from the record that the ALJ would be 

required to find the claimant disabled were 

such evidence credited. 

Id. The second and third prongs of the test often merge into a 

single question: Whether the ALJ would have to award benefits if 

the case were remanded for further proceedings. Id. at 1178 n.2. 

The Court has determined the ALJ erred when she failed to 

include limitations arising from COPD in Plaintiff's RFC. In 

addition, the Court has concluded the ALJ erred when she rejected 

the opinions of Drs. Rose and Gerson because the ALJ did not 

provide legally sufficient reasons supported by substantial 

evidence in the record. The Court, therefore, concludes this 

matter must be remanded. 

Accordingly, the Court remands this matter for further 

administrative proceedings consistent with this Opinion and Order 

specifically to allow the ALJ to determine Plaintiff's 

limitations arising from his COPD and to evaluate properly the 

28 - OPINION AND ORDER 

Case 1:14-cv-01654-BR Document 33 Filed 11/30/15 Page 28 of 29
opinions of the examining physicians. 

CONCLUSION 

For these reasons, the Court REVERSES the decision of the 

Commissioner and REMANDS this matter pursuant to sentence four, 

42 U.S.C. § 405(g), for further administrative proceedings 

consistent with this Opinion and Order. 

IT IS SO ORDERED. 

DATED this 30th day of November, 2015. 

A~ United States District Judge 

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