I 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RICKY ALLEN SMITH, SR., 

Plaintiff, 

V. 

CAROLYN W. COLVIN, 

ACTING COMMISSIONER OF 

SOCIAL SECURITY, 

Defendant. 

PANNER, District Judge. 

Civ. No. 3:14-cv-01210-PA 

OPINION & ORDER 

Plaintiff Ricky Allen Smith, Sr. ("Plaintiff'), seeks judicial review of the final decision of 

the Commissioner of Social Security ("Commissioner") denying disability benefits under Title II 

and supplemental security income under Title XVI. For the reasons set forth below, the decision 

of the Commissioner is REVERESED and this case is REMANDED for further administrative 

proceedings. 

BACKGROUND 

Born in July 1961, Plaintiff was 47 years old on the original alleged disability onset date 

of August 30, 2008. Tr. 31. Plaintiff now asserts an amended onset date of July 31, 2010. Pl.'s 

Br., at 1 n.1. Plaintiff has limited education and is able to communicate in English. Tr. 31. 

Plaintiff filed for disability insurance benefits on July 31, 2010 and for supplemental security 

income on November 19, 2010. Tr. 20. Plaintiffs claims were denied initially and upon review. 

Id. At Plaintiffs request, a hearing was held before Administrative Law Judge ("ALJ") Wayne 

Araki on December 18, 2012. Id. On January 24, 2013, the ALJ issued a decision finding 

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Plaintiff not disabled. Tr. 32. On July 3, 2014, the Appeals Council denied review, making the 

ALJ's decision the final agency decision. Tr. 1. 

DISABILITY 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)(l )(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, 648 F.3d 721, 724 (9th Cir. 2011). 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: 

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). Unless 

expected to result in death, an impairment 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). This impairment must have lasted 

or must 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 proceeds beyond step three. At that 

point, the ALJ must evaluate medical and other relevant evidence to assess 

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l 

1 

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. 

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. The 

Commissioner bears the burden of proof at step five. Id. at 953-54. 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." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 

1999); 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. 

THE ALJ'S FINDINGS 

The ALJ performed the sequential analysis. At step one, the ALJ found that Plaintiff had 

not performed substantial gainful activity since the original alleged onset date of August 30, 

2008. Tr. 22. At step two, the ALJ found that Plaintiff had the following severe impairments: 

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personality disorder, bipolar disorder, and back disorder. Id. At step three, the ALJ found that 

Plaintiffs impairments did not meet or medically equal a listed impairment. Tr. 22-23. 

In assessing Plaintiffs RFC, the ALJ found that Plaintiff had the residual functional 

capacity to perform light work with the following limitations: no climbing of ladders, only 

frequent stooping, crouching, kneeling, balancing, crawling, and climbing on stairs, only 

frequent fingering. Tr. 24. The ALJ found that Plaintiff was able to remember, understand, and 

carry out instructions or tasks generally required by occupations with a specific vocational 

preparation ("SVP") of one, two, or three. Id. Plaintiff was to have no more than occasional 

interaction with coworkers, supervisors, or the general public and Plaintiffs occupation cannot 

require more than limited reading as part of the job tasks. Id. 

At step four, the ALJ found that Plaintiff was unable to perform any of his past relevant 

work. Tr. 30. At step five, the ALJ found that Plaintiff had the RFC to perform work as a 

production assembler, car wash worker, and service station attendant. Tr. 31-32. Accordingly, 

the ALJ found Plaintiff not disabled. Tr. 32. 

STANDARD OF REVIEW 

The reviewing 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, 5 54 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. 

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

Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th 

Cir. 1982). 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. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, 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. As true, 495 F.3d 625, 630 (9th 

Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 

Even where findings are supported by substantial evidence, "the decision should be set 

aside if the proper legal standards were not applied in weighing the evidence and making the 

decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 

U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a 

judgment affirming, modifying, or reversing the decision of the Commissioner, with or without 

remanding the case for a rehearing. 

DISCUSSION 

Plaintiff argues the ALJ erred by: 1) failing to assess Plaintiffs sleep apnea and learning 

disorder as severe impairments; 2) failing to provide adequate grounds for discounting Plaintiffs 

testimony; 3) failing to properly assess and weigh the medical opinion evidence; and 4) failing to 

properly assess Plaintiffs RFC. 

I. Plaintiff's Credibility 

When gauging a claimant's credibility, an ALJ must engage in a two-step process. 20 

C.F.R. §§ 404.1529, 416.929. First, the ALJ must determine whether there is objective medical 

evidence of an underlying impairment that could reasonably be expected to produce some degree 

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of the alleged symptoms. Smolen v. Chafer, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, if such 

evidence exists, barring affirmative evidence of malingering, 1 the ALJ must give clear and 

convincing reasons for discrediting the claimant's testimony regarding the severity of the 

symptoms. Id. at 1284; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). A 

general assertion that the Plaintiff is not credible is insufficient. The ALJ must identify what 

testimony is not credible and what evidence undermines the claimant's allegations. Dodrill v. 

Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). Not every reason provided for discrediting a 

claimant's testimony must be upheld, so long as the remaining reasons are valid. Carmickle v. 

Comm 'r, 533 F.3d 1155, 1162-63 n.4 (9th Cir. 2008). 

In this case, the ALJ found that Plaintiffs medically determinable impairments could 

reasonably be expected to cause the alleged symptoms. Tr. 25. However, the ALJ found 

Plaintiffs testimony about the intensity, persistence, and limiting effects of those symptoms not 

credible for the following reasons: 1) the overall record does not support his claim of disability; 

2) lack of treatment for Plaintiffs back complaints; 3) lack of candor regarding Plaintiffs use of 

medical marijuana; 4) inconsistent statements regarding use of alcohol; 5) Plaintiffs drugseeking behavior; and 6) the record suggested that Plaintiff left his last job for reasons unrelated 

to disability. Tr. 25-27. 

On the first issue, the ALJ found that "[w]hile the claimant has some limitations due to 

back problems, the overall record does not support his claim of disability." Tr. 25. Plaintiff 

contends that the ALJ applied the wrong standard and that Plaintiff need only establish some 

causal connection between his back condition and some level of symptoms. The Ninth Circuit 

has held that "[w]hile subjective pain testimony cannot be rejected on the sole ground that it is 

not fully corroborated by objective medical evidence, the medical evidence is still a relevant 

1 The ALJ found no evidence of malingering in this case. 

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factor in determining the severity of the claimant's pain and its disabling effects." Rollins v. 

Massanari, 261 F.3d 853, 857 (9th Cir. 2001). In this case, the ALJ did not rely solely on the 

medical evidence, but considered it as a relevant factor in his broader credibility analysis. 

Plaintiff asserted disabling back pain contributed to his inability to work. Tr. 219. The ALJ 

noted a number of instances in the record where medical exams revealed relatively benign 

examination findings with regard to Plaintiffs back problems and determined that they did not 

corroborate Plaintiffs subjective symptom testimony. Tr. 25-26; 304; 366; 389. I conclude that 

it was not error for the ALJ to consider the objective medical evidence in assessing Plaintiffs 

credibility and that the ALJ's conclusions on this issue are supported by substantial evidence. 

On the issue of Plaintiffs lack of treatment for his back problems, Plaintiff asserts that 

the ALJ' s findings were not supported by substantial evidence. Lack of treatment is a valid 

consideration when assessing a claimant's credibility and can constitute "powerful evidence" 

regarding the extent of the claimant's pain. Burch, 400 F.3d at 681. Upon review of the record, 

I find no indication of Plaintiff receiving treatment for back pain after 2011. At the hearing, 

Plaintiff testified that he was not taking prescription medication for his back pain. Tr. 54. 

Furthermore, in May 2011, Plaintiff declined a referral for epidural injections to relieve his back 

pain. Tr. 400. I conclude that the ALJ's findings on this issue were supported by substantial 

evidence. 

On the issue of Plaintiffs use of marijuana, a "lack of candor" regarding the use of drugs 

and alcohol can be used to support a negative conclusion about a claimant's credibility with 

regard to testimony about his or her symptoms. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 

2002). In this case, Plaintiff testified that he was using medical marijuana to control his back 

pain. Tr. 53-54. The ALJ noted that there was no evidence in the record to indicate that Plaintiff 

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had ever been prescribed marijuana. Tr. 26. Plaintiff disputes this, pointing to medical records 

where providers recorded that Plaintiff had reported to them that he had a medical marijuana 

card. Tr. 362; 368; 393. This does not demonstrate that Plaintiff actually had a medical 

marijuana card. In fact, the record contains contrary evidence suggesting that Plaintiff wanted a 

medical marijuana card in 2011 and that his provider refused to sign it. Tr. 397-98 ("Wants 

medical mj card signed, smokes all day ... Cannot sign marijuana card. I also suggested that 

marijuana could be causing his poor appetite and recommended that he try to cut back."). The 

ALJ further noted that Plaintiff had reported using marijuana regularly for thirty years and that 

he had begun long before the onset of his back problems. Tr. 26; 368; 393. I conclude that the 

ALJ properly considered Plaintiffs inconsistent statements regarding his marijuana use and that 

his findings were supported by substantial evidence. 

Similarly, Plaintiffs inconsistent statements about his use of alcohol may be considered 

in assessing his credibility. See Thomas, 278 F.3d at 959. In this case, Plaintiff testified at the 

hearing that he last drank alcohol "over ten years" previously. Tr. 60. In 2010, Plaintiff reported 

to his physician that he used alcohol "occasionally." Tr. 278. In 2011, Plaintiff "insisted two or 

three times that he does not drink and has never had any alcohol," but "eventually admitted he 

drank either last Christmas or five years ago." Tr. 367-68. Plaintiff asserts that these 

inconsistencies are due to memory problems and not an intentional effort to deceive, but that 

explanation does not support the completely contradictory assertions Plaintiff made during the 

single examination in 2011. I find that the AL!' s conclusion on this issue is supported by 

substantial evidence in the record. 

The ALJ also noted that Plaintiff engaged in drug-seeking behavior. Tr. 26-27. Drugseeking behavior is a valid consideration in assessing a claimant's credibility. Lewis v. Astrue, 

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238 F. App'x 300, 302 (9th Cir. 2007); Coffman v. Astrue, 469 F. App'x 609, 611 (9th Cir. 

2012). In this case, when a provider declined to prescribe narcotics for chronic pain, Plaintiff 

responded "that's fine .. i'll [sic] just buy it elsewhere." Tr. 354. On another occasion, Plaintiff 

reported to a physician that he needed a refill on his narcotic prescription because he was taking 

three times his prescribed dose. Tr. 315. On yet another occasion, Plaintiff became verbally 

abusive towards a treatment provider when she refused to prescribe more than four tabs of 

narcotics per day. Tr. 400. Plaintiff "stormed out" of the examination and was terminated by the 

provider. Id. Plaintiff does not assert that the ALJ erred in making this finding and I conclude 

that the finding is supported by substantial evidence in the record. 

Finally, the ALJ noted that the evidence suggests that Plaintiff left his job for reasons 

unrelated to his disability. If the record shows that a claimant left his or her last job because they 

were "laid off," rather than because of an injury, that is a sufficient reason to disregard the 

claimant's testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). In this case, 

Plaintiff reported to a physician that he had stopped working because "he couldn't stand the pain 

anymore." Tr. 361. However, Plaintiff told the agency that he left "for other reasons" because 

"I was layed [sic] off." Tr. 219. At the hearing, Plaintiff testified that he was laid off because 

"the job was winding down" and "there was no more work." Tr. 46-47. I conclude that the 

ALJ' s findings on this issue were supported by substantial evidence. 

In sum, the ALJ provided at least one clear and convincing reason supported by 

substantial evidence for rejecting Plaintiff's subjective symptom testimony. Accordingly, this 

Court need not discuss the ALJ's other reasons. See Carmickle, 533 F.3d at 1162-63. I conclude 

that the ALJ properly discounted Plaintiff's testimony. 

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II. Medical Opinion Evidence 

In general, the opinion of a treating physician is given more weight than the opinion of an 

examining physician, and the opinion of an examining physician is given more ·weight than the 

opinion of a non-examining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). 

"If a treating physician's opinion is well-supported by medically acceptable clinical and 

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in 

[the] case record, [it will be given] controlling weight." Orn, 495 F.3d at 632; 20 C.F.R. § 

404.1527(c). To reject the uncontroverted opinion of a treating or examining physician, the ALJ 

must present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 

2005). 

If a treating or examining physician's opinion is contradicted by another physician's 

opinion, it may be rejected by specific and legitimate reasons. Tonapetyan v. Halter, 242 F.3d 

1144, 1148 (9th Cir. 2001 ). When evaluating conflicting opinions, an ALJ is not required to 

accept an opinion that is not supported by clinical findings, or is brief or conclusory. Id. at 1149. 

In this case, Plaintiff contends that the ALJ erred in rejecting the opinions of Drs. 

Anderson and Rethinger, the State Agency psychological consultants; Dr. Adler, the State 

Agency examining psychologist; Dr. Ramsthel, an examining physician; Dr. Mason, a treating 

orthopedist; and Dr. Warrington, Plaintiffs treating physician. 

a. State Agency Psychological Consultants 

Dr. Dorothy Anderson is a State Agency psychological consultant who provided a Mental 

Residual Capacity Assessment for Plaintiff in March 2011. Tr. 100-01. Dr. Anderson opined 

that Plaintiff could carry out routine tasks that were "not complex [due to] learning [disorder]." 

Tr. 101. Dr. Anderson determined that Plaintiff could interact with a supervisor, but should have 

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I 

no contact with the public and only occasional contact with coworkers due to Plantiff s antisocial 

personality. Id. Dr. Paul Rethinger, another State Agency psychological consultant, also 

provided a Mental Residual Capacity Assessment for Plaintiff in June 2011. Tr. 115-16. Dr. 

Rethinger' s assessment of Plaintiff was identical to Dr. Anderson's in terms of Plaintiffs ability 

to carry out routine, "not complex" tasks, as well as in terms of Plaintiffs ability to interact with 

the public and coworkers. Id. 

The ALJ gave "great weight to the opinions of Dr. Anderson and Dr. Rethinger because 

they are consistent with the overall evidence." Tr. 30. The ALJ did not, however, credit Drs. 

Anderson and Rethinger's findings as to Plaintiffs ability to interact with the public. Id. 

Instead, the ALJ found that Plaintiff could have occasional interaction with the public "based on 

the claimant's social functioning," discussed elsewhere in the ALJ's opinion. Id. 

Plaintiff contends that the ALJ erred in rejecting the consultants' opinions about 

Plaintiffs ability to interact with the public. First, Plaintiff asserts that the ALJ's finding was 

vague and conclusory. Second, Plaintiff argues that the ALJ failed to recognize that no treating 

or examining psychologist disagreed with the consultant's restrictions on interaction with the 

public. Finally, Plaintiff contends that the ALJ's reasoning for discounting the assessed 

limitations is not supported by substantial evidence and that the ALJ impermissibly substituted 

his own lay opinion for that of the psychological experts. 

It is not necessary to determine whether the ALJ erred in rejecting the restriction on 

public interaction because the ALJ ultimately determined that Plaintiff could perform the duties 

of a production assembler, which does not require public interaction. Dictionary of 

Occupational Titles ("DOT") 706.687-101, available at 1991 WL 67907 4. The Commissioner 

argues that even if the other two possible jobs are eliminated, there are enough production 

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assembler jobs both in Oregon and in the national economy to constitute "significant numbers" 

and satisfy the Commissioner's burden at step five. Plaintiff concedes that "production 

assembler" does not require public interaction, but argues that the position still requires 

interaction with coworkers, but the record indicates that' both of the consulting psychologists 

found that Plaintiff was able to have occasional interaction with coworkers. Tr. 100-01; 115-16. 

The Ninth Circuit has determined that a job exists in "significant numbers" when there 

are 2,500 in the claimant's state and 25,000 nationally. Gutierrez v. Comm 'r, 740 F.3d 519, 527-

29 (9th Cir. 2014); see also Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986) (a job exists 

in significant numbers if there are between 3,750 and 4,250 such jobs). In this case, the VE 

testified that there were 6,600 production assembly positions in Oregon and 315,000 in the 

national economy. Tr. 75. Accordingly, I conclude that any error in rejecting the psychological 

consultants' restriction on public interaction was harmless because the ALJ identified a job 

which does not require public interaction and which exists in significant numbers in both Oregon 

and the national economy. 

b. Dr. Adler 

Dr. John Adler performed a psychological examination of Plaintiff in June 2012. Tr. 

367-71. Dr. Adler expressed some doubt about Plaintiffs bipolar diagnosis and suggested that 

anti-social personality disorder might be a more correct assessment. Tr. 370. Dr. Adler also 

noted "signs consistent with [Plaintiffs] report of cognitive skill impairments" and assessed 

Plaintiff as having a "[l]earning disorder, unspecified." Tr. 370-71. 

The ALJ gave "partial weight" to Dr. Adler's opinion for two reasons. First, the ALJ 

determined that Dr. Adler's opinion was vague as to the severity of Plaintiffs limitations. Tr. 

30. Second, Dr. Adler assessed Plaintiff as having a learning disorder and ruled out bipolar 

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disorder, despite the fact that "the claimant performed generally well on the mental status 

examination." Id. The ALJ noted that he had accounted for Plaintiffs cognitive limitations by 

restricting him to jobs with an SVP of three or less and require no more than limited reading. Id. 

1. Learning Disorder 

Plaintiff asserts that the ALJ erred in rejecting Dr. Adler's diagnosis of a learning 

disorder in favor of his own lay opinion. The ALJ is not a medical expert and may not make his 

own medical assessment beyond that demonstrated by the record. Day v. Weinberger, 522 F.2d 

1154, 1156 (9th Cir. 1975). In this case, the Commissioner provides no support for the ALJ's 

finding that Plaintiff performed "generally well" on the mental examination. It appears to be 

based solely on the ALJ's own lay assessment of Dr. Adler's report. Furthermore, Dr. Adler was 

not alone in assessing Plaintiff with a learning disability. The psychological consultants Drs. 

Anderson and Rethinger also included a learning disorder in their assessment of Plaintiffs 

limitations. Tr. 100; 115. The ALJ gave "great weight" to Drs. Anderson and Rethinger's 

assessment of Plaintiffs cognitive limitations. Tr. 30. 

Based on this record, I conclude that the ALJ failed to provide clear and convincing 

reasons for rejecting Dr. Adler's uncontradicted opinion. As noted by the ALJ, however, Dr. 

Adler's opinion is vague with regard to how limited Plaintiff was as a result of the assessed 

cognitive limitations. Tr. 30; 369-71. I will address whether the ALJ properly accounted for any 

limitations imposed by Plaintiffs learning disorder in my discussion of the ALJ' s step two 

findings. 

2. Math Restriction 

Plaintiff asserts that the ALJ erred in rejecting Dr. Adler's opinion as to Plaintiffs 

cognitive limitations with mathematical calculations. Plaintiff asserts that this was harmful error 

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because the VE identified car wash attendant, DOT 915.667-101, available at 1991 WL 687869, 

as a possible occupation. Car wash attendant requires a level 2 math ability. Plaintiff contends 

that level 2 math would have been precluded by Dr. Adler's assessment of Plaintiffs cognitive 

limitations. See Tr. 273; 370-71. 

It is not necessary to determine if the ALJ erred in assigning only partial weight to Dr. 

Adler's opinion regarding Plaintiffs math limitations because, as previously noted, the VE 

identified production assembler, which only requires level 1 math.2 DOT 706.687-010, available 

at 1991 WL 679074. As previously discussed, production assembler jobs exist in significant 

numbers both in Oregon and in the national economy. Any error in assessing Plaintiff as able to 

perform level 2 math is therefore harmless. 

c. Dr. Ramsthel 

Dr. Donald Ramsthel examined Plaintiff in March 2011. Tr. 361-64. Dr. Ramsthel 

opined that Plaintiff could walk or stand for one hour at a time, translating to four hours out of an 

eight-hour shift, and that Plaintiff could sit for two hours, or five to six hours in an eight-hour 

shift. Tr. 364. Dr. Ramsthel also determined that Plaintiff could lift and carry ten pounds 

frequently and ten to twenty pounds infrequently. Id. 

The ALJ gave "significant weight" to Dr. Ramsthel' s opinion regarding Plaintiffs ability 

to lift and sit. Tr. 28. The ALJ did not credit Dr. Ramsthel's opinion as to Plaintiffs ability to 

stand or walk because it appeared to be based on Plaintiffs subjective report. Id. The ALJ also 

noted that Dr. Ramsthel did not have the benefit of reviewing Plaintiffs x-rays, which showed 

only minimal degenerative joint disease in Plaintiffs lumbar spine. Id. Plaintiff contends that 

2 The VE also identified sales attendant, DOT 299.677-0 l 0, available at 1991 WL 672643, as a possible occupation 

under Plaintiff's RFC. Like production assembler, sales attendant requires only level I math. Sales attendant does 

require public interaction, however. 

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\ 

I 

Dr. Ramsthel based his opinion on objective findings and a review of Plaintiffs medical records, 

rather than on Plaintiffs subjective symptom complaints. 

As previously discussed, the ALJ properly discounted Plaintiffs subjective symptom 

testimony. "If a treating provider's opinions are based 'to a large extent' on an applicant's selfreports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may 

discount the treating provider's opinion." Ghanim, 763 F.3d at 1162. "However, when an 

opinion is not more heavily based on a patient's self-reports than on clinical observations, there 

is no evidentiary basis for rejecting the opinion." Id 

In this case, the ALJ noted that Dr. Ramsthel's clinical findings were not substantial. Tr. 

28. Dr. Ramsthel noted that Plaintiff stood with level shoulders and hips and that he had a 

"normal tandem pain free and reciprocating gait." Tr. 363. He could rise on his heels and toes 

and perform a full squat. Id Hips, knees, ankles, shoulders, wrists, fingers, and thumbs were all 

normal. Tr. 363-64. Plaintiff had normal flexion, extension, and lateral flexion in his 

dorsolumbar spine, but lacked 2" of touching the floor and there was "shaking involved with 

each end range of motion." Tr. 363. There was some restriction on Plaintiffs straight leg 

raising, "with tightness in the hamstrings as the limiting factor." Id 

Because these clinical observations are not consistent with the level of restriction found 

by Dr. Ramsthel, the ALJ reasonably concluded that the level of restriction was based on 

Plaintiffs subjective complaints. Plaintiff also asserts that Dr. Ramsthel based his opinion on a 

detailed review of Plaintiffs medical records. That conclusion is not supported by Dr. 

Ramsthel's report, which contains only a cursory recitation of Plaintiffs medical history. Tr. 

361. I conclude that the ALJ did not err in weighing Dr. Ramsthel's opinion. 

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d. Dr. Mason 

Dr. Jeff Mason wrote three letters regarding Plaintiffs ability to work in January, 

February, and July 2006. Tr. 403-408. Dr. Mason opined that Plaintiff was "not suitable for 

moderate or heavy work" and that he would "benefit from finding some guidance in finding 

employment in the sedentary-to-light category." Tr. 404. 

"Medical opinions that predate the alleged onset date of disability are of limited 

relevance." Carmickle, 533 F.3d at 1165. The ALJ gave Dr. Mason's opinion little weight, 

noting that it was issued two years before the then-alleged onset date. 3 Tr. 28 n. 3. 

Furthermore, as the Commissioner points out, Dr. Mason's opinion was undermined by 

Plaintiffs subsequent work history. From March 2007 to August 2008, Plaintiff reported that he 

worked as a "painter/laborer," during which time he which time he would stand and walk for 

eight hours per day and lift 100 pounds. Tr. 229. I conclude that the ALJ gave adequate reasons 

to discount the opinion of Dr. Mason. 

Even if the ALJ did err in rejecting Dr. Mason's opinion, any error was harmless. Dr. 

Mason opined that Plaintiff would benefit from finding work in the "sedentary-to-light 

category." Tr. 404. All of the potential jobs identified by the VE fell within the light category. 

Tr. 31-32. 

e. Dr. Warrington 

Dr. Tom Warrington was Plaintiffs treating physician from August 2010 to November 

2010 and again from March 2012 through at least December 2012. Tr. 409. Dr. Warrington 

diagnosed Plaintiff with chronic back pain, gastroesophageal reflux disease, obstructive sleep 

apnea, restless leg syndrome, diabetes, status-post video-assisted thoracocscopic surgery, chronic 

3 Plaintiff now asserts an amended onset date of July 31, 2010. Dr. Mason's most recent letter was issued on July 

13, 2006, more than four years prior to Plaintiffs currently alleged onset date. Tr. 403. 

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obstructive pulmonary disease, bipolar disorder, and memory problems. Tr. 29; 409. Dr. 

Warrington assessed Plaintiff as having the following limitations: he can lift no more than 10 

pounds, occasionally; he can stand or walk for fifteen minutes at a time or one hour in an eighthour shift; he can sit for one to two hours at a time or five hours in an eight hour shift; he can 

never climb, balance, stoop/bend, kneel, crouch, crawl, or reach; he can only occasionally 

handle; and frequently finger and feel. Tr. 410. Dr. Warrington opined that Plaintiff had marked 

limitations in concentration, persistence, and pace, as well as social functioning and activities of 

daily living. Tr. 411. Dr. Warrington also found that Plaintiffs attention and concentration 

would be impaired for 3 0-40% of the work day and that his impairments would cause him to 

miss at least two full workdays per month. Tr. 412. 

In the opinion, the ALJ stated that Dr. Warrington had not examined Plaintiff since 

October 2010. Tr. 30. This finding was consistent with the record before the ALJ, but the 

Appeals Council accepted additional medical reports from Dr. Warrington which are now part of 

the record. See Brewes v. Comm 'r, 682 F.3d 1157, 1163 (9th Cir. 2012). Accordingly, I 

consider these new exhibits, which establish that Dr. Warrington was Plaintiffs treating 

physician in November 2010 and again from March 2012 through at least December 2012, in my 

review of the ALJ' s decision. 

The ALJ gave a number of reasons for discounting Dr. Warrington's opinion. First, the 

ALJ found that "while I agree that the claimant has some back problems, the record contains no 

evidence of any significant treatment, complaints, or limitations due to gastroesophageal reflux 

disease, obstructive sleep apnea, restless leg syndrome, diabetes, or chronic obstructive 

pulmonary disease." Tr. 29. Next, the ALJ found that Dr. Warrington's treatment notes did not 

support the degree of limitation assessed. Id. Third, the ALJ determined Dr. Warrington's 

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I 

l 

l 

opm10n was inconsistent with the imaging from March 2011 that showed only minimal 

degenerative changes in Plaintiffs back. Id. Fourth, the ALJ found that Dr. Warrington's 

opinion was inconsistent with the overall examination findings in the record. Id. Fifth, the ALJ 

found that Dr. Warrington's opinion relied on Plaintiffs subjective complaints, which were not 

reliable. Tr. 29-30. Next, the medical record did not support Dr. Warrington's finding of 

marked limitations in concentration, persistence, pace, social function, or activities of daily 

living. Tr. 30. Finally, the ALJ found that there was minimal evidence supporting Dr. 

Warrington's conclusion that Plaintiffs attention and concentration would be impaired for 30-

40% of the time and Dr. Warrington provided no basis for opinion that Plaintiff would miss at 

least two workdays per month. Tr. 30. 

Plaintiff asserts that the ALJ erred in two principal ways. First, Plaintiff asserts that the 

ALJ erred in rejecting Dr. Warrington's assessment of sleep apnea and COPD. In particular, the 

ALJ noted that Plaintiff "has not undergone a workup for sleep apnea and there is no evidence 

that he requires a CPAP machine." Tr. 29. This conclusion is not supported by substantial 

evidence. The record indicates that Plaintiff underwent a sleep study in November 2011 which 

resulted in a recommendation that Plaintiff use a CPAP machine. Tr. 441; 443. The record also 

shows that Plaintiff received the CPAP machine and was committed to using it. Tr. 432. These 

records were not before the ALJ, although they were submitted to the Appeals Council. Tr. 5. 

Dr. Warrington's treatment notes reflect an ongoing concern with Plaintiffs difficulty sleeping. 

Tr. 416; 418; 429; 431; 432; 434; 437; 439; 441; 443. Dr. Warrington opined that Plaintiffs 

conditions result in an inability to sleep, which leaves him somnolent during the day. Tr. 412. 

Dr. Warrington believed that this somnolence would result in severe limitations to Plaintiffs 

attention and concentration. Id. These additional records undermine the ALJ's justifications for 

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rejecting Dr. Warrington's opinion. Both Plaintiff and the Commissioner present contradictory 

interpretations of this new evidence that should be resolved by the ALJ on remand. See Harman 

v. Apfel, 211 F .3d 1172, 1180 (9th Cir. 2000). 

Plaintiff also argues that the ALJ inappropriately "cherry-picked" portions of Dr. 

Warrington's opinion regarding Plaintiffs manipulative limitations. An ALJ may not "cherrypick" statements in a physician's evaluations, but must consider the entire diagnosis and 

observations of impairment. Ghanim, 763 F.3d at 1164. In this case, Dr. Warrington assessed 

Plaintiff as being limited to frequent fingering and occasional handling. Tr. 410. This was 

consistent with Plaintiffs testimony that his hands frequently shake and he has trouble holding 

on to objects. Tr. 57; 237. In his opinion, the ALJ accepted Plaintiffs testimony that his hands 

frequently shake as a result of his medication, and accordingly limited Plaintiff to only frequent 

fingering, but assessed no limitations to Plaintiffs handling. Tr. 24; 28. 

Plaintiff asserts that the ALJ failed to provide specific and legitimate reasons for rejecting 

Dr. Warrington's opinion that Plaintiff should be limited to only occasional handling. The ALJ's 

reasons for rejecting Dr. Warrington's opinion, set forth above, do not directly address why the 

ALJ rejected the handling limitation. To the extent that the ALJ's reason for rejecting might be 

encompassed by his finding that Dr. Warrington's treatment notes are inconsistent with the 

assessed degree of limitation, that conclusion is not supported the record. See Tr. 316 (noting 

that Plaintiff was "slightly tremulous[ ]"); 322 (noting prior "contracture release" surgery on 

Plaintiffs fingers); 414 ("tremors at times"); 417 (noting "Tremulousness at rest"); 434 and 443; 

("Clubbing of the fingers, bilaterally,"). Nor does the record support the ALJ's finding that Dr. 

Warrington's opinion was inconsistent with the rest of the medical evidence regarding Plaintiffs 

manipulative limitations. See Tr. 278 (Dr. Flaming notes "weakness, numbness/tingling"); Tr. 

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Case 3:14-cv-01210-PA Document 26 Filed 02/19/16 Page 19 of 25
388 (Dr. Sosa note's Plaintiffs report of chronic hand numbness and dropping things); Tr. 362 

(Dr. Ramsthel observes "intention tremors"); Tr. 393 (Dr. Sosa assesses Plaintiff for numbness 

and tingling). The record contains numerous instances of pr. Warrington and other medical 

providers directly observing Plaintiffs tremors, which does not support the ALJ's conclusion 

that Dr. Warrington based his assessment of Plaintiffs manipulative limitations on Plaintiffs 

subjective complaints. Tr. 316; 414; 417; 362. As Plaintiff notes, the ALJ's rejection of a 

handling limitation is inconsistent with his acceptance of Plaintiffs testimony that his hands 

frequently shake and the ALJ' s finding that these tremors do impose from manipulative 

limitations. I conclude that the ALJ erred in his assessment of Dr. Warrington's opinion of 

Plaintiffs manipulative limitations. On remand, the ALJ should either credit Dr. Warrington's 

assessment of Plaintiffs handling limitations, or provide clear and convincing reasons why he 

rejected that opinion. 

III. Severe Impairments 

At step two of the sequential analysis, the ALJ determines if the claimant has a "severe" 

impairment. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is "severe" if it "significantly limits 

your physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c); 20 C.F.R. 

§ 404.1521. Such an impairment must last, or be expected to last, twelve months. 20 C.F.R. § 

404.1509. However, the ALJ's analysis at steps four and five must consider all of a claimant's 

impairments, both severe and non-severe, 20 C.F.R. § 404.1545(a)(2). When the ALJ proceeds 

beyond step two and considers all of a claimant's impairments in formulating his RFC analysis, 

any omission at step two is harmless error. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 

To establish reversible error at step two, a claimant must show that the ALJ's RFC analysis did 

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Case 3:14-cv-01210-PA Document 26 Filed 02/19/16 Page 20 of 25
not consider the contested step two impairment. Id. Mere demonstration of error in the ALJ' s 

step two analysis does not establish reversible error. Id. 

In this case, Plaintiff asserts that the ALJ failed to properly assess his sleep apnea and 

learning disorder as severe at step two and that the ALJ failed to account for the limitations 

imposed by those conditions in formulating Plaintiffs RFC. 

a. Sleep Apnea 

Dr. Warrington diagnosed Plaintiff with sleep apnea and opined that the condition would 

leave him somnolent during the day. Tr. 412. Dr. Warrington believed that this daytime 

somnolence would adversely affect Plaintiffs concentration and attention, limiting his ability to 

perform even simple work tasks. Id. As previously discussed, the ALJ rejected Dr. 

Warrington's diagnosis of sleep apnea and CO PD because Plaintiff "has not undergone a workup 

for sleep apnea and there is no evidence that he requires a CPAP machine." Tr. 29. The records 

subsequently submitted to the Appeals Council show that Plaintiff did, in fact, undergo a sleep 

study and was directed to use a CPAP machine to treat his sleep apnea. Tr. 441; 443. 

The Commissioner contends that even if the ALJ erred in failing to include Plaintiffs 

sleep apnea at step two, Plaintiff cannot demonstrate any harm because the record shows that 

Plaintiff was receiving effective treatment for his sleep apnea and the only medical source who 

found that Plaintiffs sleep difficulties resulted in limitations was Dr. Warrington, whose opinion 

the ALJ rejected. As previously discussed, however, the ALJ failed to provide adequate reasons 

for rejecting Dr. Warrington's opinion as to Plaintiffs sleep apnea and its effect on Plaintiffs 

concentration and attention in light of the later-submitted medical records. Nor am I persuaded 

by the Commissioner's assertion that Plaintiffs sleep apnea did not result in limitations because 

he was able to get 4-6 hours of sleep with the assistance of a CP AP machine. The laterPage 21 - ORDER 

Case 3:14-cv-01210-PA Document 26 Filed 02/19/16 Page 21 of 25
submitted records indicate that Dr. Warrington was concerned by Plaintiff getting only 4-5 hours 

of sleep per night and that he was continuing to adjust Plaintiffs medications in an effort to 

improve Plaintiffs sleep. Tr. 418; 429 (noting that adjustments to medication might result in 

"longer stretches of sleep--however inadequate"). 

The ALJ did not consider Plaintiffs sleep apnea or the resulting somnolence in his 

assessment of Plaintiffs RFC. I cannot, therefore, conclude that the ALJ's decision to exclude 

sleep apnea as a severe impairment at step two was harmless error. 

b. Learning Disorder 

Plaintiff contends that the ALJ erred by failing to include Plaintiffs learning disorder as a 

severe impairment at step two. As previously discussed, the ALJ erred in discounting Dr. Adler's 

opinion about Plaintiffs learning disability. The Commissioner argues that any that error was 

harmless because the ALJ included Plaintiffs cognitive limitations in the RFC, but Plaintiff 

contends that a restriction to SVP three or less does not adequately address Plaintiffs cognitive 

limitations. 

Dr. Adler assessed Plaintiff with a "learning disorder, unspecified" based on "signs 

consistent with [Plaintiffs] report of cognitive skill impairments such as with verbal skills and 

math calculations." Tr. 370-71. As the ALJ noted, Dr. Adler was vague when it came to what 

limitations were imposed by Plaintiffs learning disorder. Tr. 30. The State Agency 

psychological consultants Dr. Anderson and Dr. Rethinger also assessed Plaintiff as having a 

learning disorder. Tr. 100; 115. Drs. Anderson and Rethinger opined that Plaintiff was able to 

understand "simple instructions," provided that they were "not detailed," and limited Plaintiff to 

"routine" tasks that were "not complex." Tr. 100-01; 115-16. 

I 

I 

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Case 3:14-cv-01210-PA Document 26 Filed 02/19/16 Page 22 of 25
The ALJ gave "great weight" to the opm10ns of Drs. Anderson and Rethinger, 

particularly as to Plaintiffs cognitive function. Tr. 30. The ALJ assigned only partial weight to 

Dr. Adler's opinion, particularly with regard to the diagnosis of a learning disorder because 

"Plaintiff performed generally well on the mental status examination." Id. Nevertheless, the 

ALJ incorporated Plaintiffs cognitive limitations into the RFC by restricting him to jobs with an 

SVP of three or less and which required only limited reading. Id. 

The Social Security regulations separate a claimant's ability to understand and remember 

things and to concentrate into "short and simple instructions" and "detailed" or "complex" 

instructions, 20 C.F.R. § 416.969a(c)(l)(iii), while the DOT uses a graduated and "finely tuned" 

scale. Meiss! v. Barnhart, 403 F. Supp.2d 981, 984 (C.D. Ca. 2005). Courts in this district have 

previously recognized that a job's simplicity is better addressed by its GED (reasoning level) 

ratings, rather than by its SVP rating. Soto-Rojas v. Comm 'r, No. 09-6218-KI, 2011 WL 39141, 

at *7-8 (D. Or. Jan. 6, 2011). In Soto-Rojas, the court noted that the SVP level in a DOT listing 

indicating unskilled work does not address whether a job entails only simple tasks and the ALJ' s 

assessment limiting the claimant to "blunt, easy steps" was "not defined by, or even necessarily 

consistent with, an SVP of 2." Id. In this case, as in Soto-Rojas, the ALJ conflated two separate 

vocational considerations in formulating the RFC and in his hypothetical to the VE: the SVP 

level and the simplicity or complexity of the task. 

Any error by the ALJ was likely harmless, however, because the VE identified a possible 

occupation which was consistent with the limitations identified by the state agency consultants 

and credited by the ALJ. Courts should not confuse the Social Security regulation's use of 

"detailed" in describing instructions, with the "detailed" instructions as described in the DOT. 

Meiss!, 403 F. Supp.2d at 983-84. Rather, the weight of persuasive authority suggests that a 

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Case 3:14-cv-01210-PA Document 26 Filed 02/19/16 Page 23 of 25
claimant's limitation to simple or routine instructions and tasks encompasses GED reasoning 

levels of 1 or 2. See Xiong v. Comm 'r, No. 1 :09-cv-00398-SMS, 2010 WL 2902508, at *6 (E.D. 

Ca. July 22, 2010)(collecting district court cases); Meiss!, 403 F. Supp.2d at 984; Soto-Rojas, 

2011 WL 39141, at *8. A GED reasoning level of 2 requires that the claimant be able to 

"[a]pply commonsense understanding to carry out detailed but uninvolved written or oral 

instructions. Deal with problems involving a few concrete variables in or from standardized 

situations." Soto-Rojas, 2011 WL 39141, at *8. 

In this case, the psychological consultants limited Plaintiff to simple, not detailed 

instructions, and routine, not complex tasks. As in Xiong, Miessl, and Soto-Rojas, I conclude 

that this is consistent with a GED reasoning level of 1 or 2. At the hearing, the VE identified 

production assembler, DOT 706.687-010, available at 1991 WL 679074, as a possible job. 

Production assembler requires a reasoning level of only 2, which is within the limits identified by 

the psychological consultants and given "great weight" by the ALJ.4 As previously discussed, 

the position of production assembler exists in significant numbers. 

However, as I have determined that this case must be remanded to assess the additional 

medical records as they relate to the opinion of Dr. Warrington, the ALJ should also reformulate 

Plaintiffs RFC and the VE hypothetical to more accurately account for the cognitive limitations 

identified by Drs. Anderson and Rethinger and accepted by the ALJ. 

CONCLUSION 

In sum, the ALJ erred in rejecting Dr. Warrington's opinion as to Plaintiffs sleep apnea 

and handling limitations. The ALJ also erred in accounting for Plaintiffs cognitive limitations 

4 The VE also identified car wash attendant, DOT 915.667-010, available at 1991WL687869, which similarly 

requires a reasoning level of2. Car wash attendant does, however, require interaction with the public. The third 

task identified by the VE was sales attendant, DOT 299.677-010, available at 1991 WL 672643, which requires 

both public interaction and a reasoning level of 3. 

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Case 3:14-cv-01210-PA Document 26 Filed 02/19/16 Page 24 of 25
as identified by Drs. Anderson and Rethinger in his formulation of Plaintiff's RFC and the VE 

hypothetical. As these errors resulted, at least in part, from the fact that some of Dr. 

Warrington's medical reports were not before the ALJ, I conclude that a remand is justified in 

order to permit the ALJ to consider the additional records, rebuttal by the Commissioner, and 

any additional testimony needed. 

Based on the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision 

of the Commissioner is REVERSED and REMANDED for further administrative proceedings 

consistent with this opinion. 

Page 25 - ORDER 

DATEDthis .,,# day of February, 2016. 

OWEN M. PANNER 

United States District Judge 

Case 3:14-cv-01210-PA Document 26 Filed 02/19/16 Page 25 of 25