IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CHERYL ANN COLTER,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of the Social Security 

Administration,

Defendant.

Case No. 3:14-cv-00896-SI

OPINION AND ORDER

Nancy J. Meserow, 7540 S.W. 51st Avenue, Portland, OR 97219. Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States 

Attorney, United States Attorney=s Office, District of Oregon, 1000 S.W. Third Avenue, Suite 600, 

Portland, OR 97204-2902; Jordan D. Goddard, Special Assistant United States Attorney, Office of 

the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, 

Seattle, WA 98104-7075. Attorneys for Defendant.

Michael H. Simon, District Judge.

Cheryl Ann Colter seeks judicial review of the final decision of the Commissioner of the 

Social Security Administration (“Commissioner”) denying her applications for Supplemental 

Security Income (“SSI”) under Title XVI and disability insurance benefits under Title II of the 

Social Security Act. For the following reasons, the Commissioner=s decision is reversed and this 

matter is remanded for the calculation and payment of benefits.

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 1 of 18
OPINION AND ORDER, Page 2

BACKGROUND

A. The Application

Ms. Colter filed applications for benefits on December 29, 2011, alleging disability 

beginning on October 24, 2004. Tr. 290. She alleged disability due to “severe depression, memory 

problems, and right shoulder-rotator cuff” issues. Tr. 295. The Commissioner denied her 

application initially and upon reconsideration; thereafter, she requested a hearing before an 

Administrative Law Judge (“ALJ”). Tr. 128-41; 145-60; 11. An administrative hearing was held 

on November 25, 2013. On December 31, 2013, the ALJ found Ms. Colter not disabled. Tr. 12-32.

The Appeals Council denied Ms. Colter=s request for review, making the ALJ=s decision the final 

decision of the Commissioner. Tr. 1-7. Ms. Colter now seeks judicial review of that decision.

B. The Sequential Analysis

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

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

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

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

whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm’r

Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (disability 

insurance benefits), 416.920 (supplemental security income); Bowen v. Yuckert, 482 U.S. 137, 140 

(1987). Each step is potentially dispositive. 20 C.F.R. '' 404.1520(a)(4); 416.920(a)(4). The 

five-step sequential process asks the following series of questions:

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.

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 2 of 18
OPINION AND ORDER, Page 3

'' 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

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; see also

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 3 of 18
OPINION AND ORDER, Page 4

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

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

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

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

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

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

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

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

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

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ applied the sequential process. Tr. 17-26. At step one, the ALJ found Ms. Colter 

had engaged in substantial gainful activity from the alleged onset date of October 24, 2004 until 

February 9, 2010.1Tr. 17. The ALJ found Ms. Colter met the insured-status requirement of the 

Social Security Act through June 30, 2015. At step two, the ALJ found that Ms. Colter’s 

depression, anxiety, chronic obstructive pulmonary disease (shortness of breath), narcotic abuse 

and dependence, and right shoulder issues were severe impairments. Id. At step three, the ALJ 

found that Ms. Colter did not have an impairment or combination of impairments that met or 

equaled one of the specific impairments listed in the regulations. Tr. 19.

 

1 Ms. Colter initially alleged her conditions became disabling in October 2004. She now seeks to 

amend her disability onset date to February 9, 2010, the date she was fired from Umpqua Bank. 

The Commissioner objects to the amendment. Ms. Colter offers no authority for the proposition 

that this Court may amend her disability onset date, and her request is denied.

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 4 of 18
OPINION AND ORDER, Page 5

The ALJ determined that from the date on which Ms. Colter stopped working through the 

date of the decision, Ms. Colter had the RFC to perform medium work with the following 

restrictions: she can lift 50 pounds occasionally, lift and carry 25 pounds occasionally, balance

frequently, climb stairs and ramps occasionally, stoop, kneel and crouch occasionally, and push, 

pull, and reach overhead with the right upper extremity occasionally; she can never crawl and 

never climb ladders, ropes, or scaffolds; she must avoid more than occasional exposure to extreme 

cold, extreme heat, vibration, and irritants such as fumes, odors, dust, gases, chemicals, and poorly 

ventilated spaces; she is fully capable of learning, remembering, and performing simple, routine, 

and repetitive work tasks, involving simple work instructions, which are performed in a routine, 

predictable, and low stress work environment (defined as one in which there is a regular 

production pace, few work place changes, and no “over the shoulder” supervision); and she may 

have occasional contact with supervisors, co-workers, and the public. Tr. 20. In reaching his 

conclusion, the ALJ considered Ms. Colter’s testimony, but found her not fully credible. Tr. 22.

At step four, the ALJ found Ms. Colter was not able to perform her past relevant work as a 

bookkeeper. Tr. 25. At step five, the ALJ found Ms. Colter retained the RFC to perform 

occupations including kitchen helper, hand packager, and lab helper. Tr. 26.

STANDARD OF REVIEW

The Court must affirm the Commissioner’s decision if it is free of legal error and its

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 of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th 

Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Substantial evidence 

is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 5 of 18
OPINION AND ORDER, Page 6

Id. (quoting Andrews, 53 F.3d at 1039). Where the evidence is susceptible of more than one 

rational interpretation, the Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 

F.3d 676, 679 (9th Cir. 2005).

In reviewing the Commissioner’s decision, the Court “must consider the entire record as a 

whole.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation marks omitted). The Court 

may not affirm the Commissioner “simply by isolating a specific quantum of supporting 

evidence”; nor may the Court affirm the Commissioner on a ground upon which the Commissioner 

did not rely. Id. (quotation marks omitted); see also Bray, 554 F.3d at 1226. But as long as “the 

agency’s path may reasonably be discerned,” the Court must affirm the agency’s decision, even 

though the agency may have explained it with “less than ideal clarity.” Molina v. Astrue, 674 F.3d 

1104, 1121 (9th Cir. 2012) (quotation marks omitted).

DISCUSSION

Ms. Colter seeks review of the ALJ’s determination that she was not disabled from 

February 9, 2010 through December 31, 2013. She argues the ALJ erred by (1) finding her less 

than fully credible; (2) failing to find cholecystectomy syndrome, spondylosis, osteoarthritis, and 

sacroiliitis to be severe impairments at step two; (3) improperly weighing medical evidence; (4)

failing to assess an accurate RFC; and (5) relying on the VE testimony.

A. Credibility

There is a two-step process for evaluating the credibility of a claimant’s own testimony 

about the severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 

586, 591 (9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented 

objective medical evidence of an underlying impairment ‘which could reasonably be expected to 

produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 6 of 18
OPINION AND ORDER, Page 7

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

so, the claimant “need not show that her impairment could reasonably be expected to cause the 

severity of the symptom she has alleged; she need only show that it could reasonably have caused 

some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the 

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting 

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must 

state which pain testimony is not credible and what evidence suggests the complaints are not 

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be “sufficiently 

specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the 

claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell, 947 

F.2d at 345-46).

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

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

parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d at 1284. 

The Commissioner recommends assessing the claimant’s daily activities; the location, duration, 

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

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

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

the individual receives or has received for relief of pain or other symptoms; and any measures 

other than treatment the individual uses or has used to relieve pain or other symptoms. See SSR 

96-7p, available at 1996 WL 374186. The ALJ may not, however, make a negative credibility 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 7 of 18
OPINION AND ORDER, Page 8

finding “solely because” the claimant’s symptom testimony “is not substantiated affirmatively by 

objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

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

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

concerning the symptoms, . . . other testimony by the claimant that appears less than candid [and] 

unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of 

treatment.” Smolen, 80 F.3d at 1284.

The ALJ found Ms. Colter less than fully credible based on her activities of daily living, 

her work history, and her narcotic-seeking behavior. Tr. 22. Ms. Colter testified that she lost her 

job in February 2010 because depression due to her son’s death caused her to miss work—but she 

started that job in 2006, two years after her son’s death. Ms. Colter testified that she did not apply 

for work while receiving unemployment benefits, then admitted that she had applied for at least 

one position. The ALJ also cited multiple instances of what can reasonably be construed as 

drug-seeking behavior. Tr. 22-23. That behavior and the inconsistencies in Ms. Colter’s testimony 

about her work history are clear and convincing reasons to find Ms. Colter less than fully credible.

The ALJ’s credibility determination is, therefore, supported by substantial evidence. 

B. Step Two—Severe Impairments

At step two, the claimant bears the burden to show the existence of a severe impairment or 

combination of impairments—medically determinable conditions that have more than a minimal 

effect on the claimant’s ability to perform work-related activities. 20 C.F.R. ' 404.1520(a)(4)(ii); 

Tackett, 180 F.3d at 1099; Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). A physical or 

mental impairment must be established by medical evidence consisting of signs, symptoms, and 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 8 of 18
OPINION AND ORDER, Page 9

laboratory findings, and cannot be established on the basis of a claimant’s symptoms alone. 20 

C.F.R. ' 404.1508.

The Social Security Regulations and Rulings, as well as case law applying 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. § 404.1521(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. § 404.1521(b). 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.” Yuckert v. Bowen, 841 F.2d 

303, 306 (9th Cir. 1988). The step-two inquiry is a de minimis screening device to dispose of 

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

Plaintiff contends the ALJ erred by failing to find at step two that her cholecystectomy 

syndrome, chronic low back pain, and left hip sacroiliitis were severe. 

1. Cholecystectomy Syndrome

In 2002, Ms. Colter had a laparoscopic cholecystectomy. Tr. 451. About one year later she 

had a gallstone surgically excised. On July 7, 2008, Ms. Colter reported to Franklyn Dornfest, 

M.D., that she had had “3-4 episodes of her epigastric ‘gall bladder’ attacks” lasting for five to ten 

minutes each. Tr. 372. An abdominal ultrasound was negative for choledocholithiasis. Tr. 373. She 

was prescribed hydrocodone-acetaminophen.

On July 3, 2009, Ms. Colter was seen by Susan Orloff, M.D., for a hepatobiliary 

consultation. Tr. 451. Ms. Colter described chronic right upper quadrant pain and “‘gallbladder 

attacks’ about every one to two weeks that last about one minute.” Id. The attacks were not 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 9 of 18
OPINION AND ORDER, Page 10

associated with food or activity, and sometimes they woke her. She was on vicodin and tramadol.

There was mild tenderness in the right upper quadrant. Tr. 453. A CT scan of the abdomen and 

laboratory results were normal. Tr. 454. 

On December 9, 2009, Ms. Colter was examined by Sarah A. Rodriguez, M.D. Tr. 431.

Ms. Colter described “fairly constant right upper quadrant and epigastric pain” that was “always 

present, sometimes better and sometimes worse.” Id. Her abdomen was not tender and a CT scan 

and ultrasounds from 2008 were both normal. Dr. Rodriguez concluded that “[t]he only GI tract 

pathology that would be possible with this history is chronic pancreatitis not picked up on 

cross-sectional imaging. Alternatively, this may be musculoskeletal, as she does report 

exacerbation of pain with movement and lifting.” Tr. 433. Dr. Rodriguez recommended exercise 

and tapering off narcotics.

On March 21, 2012, Ms. Colter reported gallbladder pain one or two times per month since 

her gallbladder was removed, with a “pulling sensation” occasionally after a fatty meal. Tr. 955.

Tramadol was prescribed. Dr. Allers noted some tenderness in the right upper quadrant. On March 

28, 2012, Ms. Colter reported upper right quadrant abdominal pain and pulling “about 1 or 2 times 

per month which lasts for 10 sec[onds]” since her cholecystectomy. Tr. 954. 

On May 16, 2012, Ms. Colter reported “vague [right] upper quad[rant] pain intermittently, 

sensation of tearing. Pain limits ability to walk.” Tr. 953. On June 20, Ms. Colter reported pain 

occurring “almost weekly.” Tr. 952. A CT scan of the abdomen on July 16, 2012, showed “mild 

intra- and extra-hepatic biliary dilation, similar to CT scan from 10/13/2008.” Tr. 960. On July 23,

2012, Ms. Colter reported “cont[inuing] to have pain in r[ight] u[pper] q[uadrant],” that she “uses 

ibu[profen] daily (‘wh[ich] doesn’t help’),” and that she “gets pain when walking on occasion and 

awakens her from sleep, crippling when it occurs.” Tr. 949. Dr. Allers diagnosed 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 10 of 18
OPINION AND ORDER, Page 11

postcholecystectomy syndrome, stating “unclear what this is but is chronic and has not changed for 

years, [tramadol] helps.” Id.

The ALJ noted Ms. Colter’s complaints of abdominal pain, the reports of Dr. Orloff and 

Dr. Rodriguez, and found that this gastrointestinal impairment did not cause lasting functional 

impairment. As the ALJ correctly observed, “there is nothing to show that [Ms. Colter’s 

gastrointestinal pain symptoms] are more than transient or cause significant vocational 

limitations.” Tr. 18. Ms. Colter’s intermittent gastrointestinal pain has “no more than a minimal 

effect on [her] ability to work.” See Yuckert, 841 F.2d at 306. The ALJ’s determination on this 

issue is therefore supported by substantial evidence.

2. Chronic Low Back Pain

Ms. Colter reported back pain on July 2, 2012. Tr. 950. On August 11, 2012, she was seen 

in the emergency room reporting back pain between her shoulder blades for one month. Tr. 908.

She had “minimal tenderness to palpation over right thoracic paraspinal muscles, with visible 

spasm.” Tr. 909. Her range of motion in her neck and back were normal. Id.

On January 31, 2013, Ms. Colter was seen in the emergency room for left lumbar pain after 

a fall. Tr. 910. There was no tenderness on palpation and normal range of motion. Tr. 912. On 

March 6, 2013, she was seen in the emergency room with thoracic back pain after a fall. Tr. 913.

Examination showed mild tenderness of the right tibial tuberosity, and there was muscular 

tenderness and firmness consistent with mild spasm medial to the right scapula. Tr. 914. Flexeril 

and ibuprofen were prescribed.

On May 29, 2013, Ms. Colter reported shoulder, hip, and chest pain and walked with a 

slight limp. Tr. 939. On June 19, 2013, Ms. Colter reported low-back pain when walking and 

getting out of bed, and occasional paresthesia in the foot. Tr. 938.

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 11 of 18
OPINION AND ORDER, Page 12

On October 21, 2013, x-rays of the lumbar spine showed “some mild disc space narrowing 

predominantly at the L3-4 through L5-S1 levels. There is facet arthropathy especially on the right 

at the L5-S1 level.” Tr. 926. The radiologist’s impression was “[n]o acute osseous pathology.” Id.

On October 29, 2013, an MRI of the lumbar spine showed lower lumbar facet 

osteoarthritis, with mild degenerative hypertrophy most pronounced on the right at L4-5 and 

L5-S1. Tr. 926. The radiologist’s impression was “L4-5 mild spondylosis, with a left posterolateral 

disc bulge that mildly deflects the peripheral foraminal component of left L4 nerve root and 

slightly deflects the traversing left L5 nerve root in the lateral aspect of the central canal.” Tr. 927.

There was “[n]o sign of frank neural compression.” Id. The MRI showed “L3-4 mild spondylosis 

with deflection of the peripheral foraminal component of the left L3 nerve root by a far lateral 

bulge.” Id. There was “[m]ild lower lumbar facet osteoarthritis, more pronounced on the right.” Id.

The Commissioner points out that radiologist Ben Jacobson, M.D., described all of the 

abnormalities in Ms. Colter’s back as “mild” or “minimal.” See Tr. 926-27. Mild impairments are 

properly found “not severe” at step two. Ball v. Massanari, 254 F.3d 817, 822 (9th Cir. 2001).

Although a medical determination of mildness rests on different criteria than an administrative 

determination of mildness, a medically mild impairment is unlikely to have more than a minimal 

effect on an individual’s ability to work. See McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2010) 

(discussing analogous issues in the ultimate question of disability). Accordingly, the ALJ’s 

determination that Ms. Colter’s chronic low back pain is not a severe impairment is supported by 

substantial evidence.

3. Sacroiliitis

In September 2013, Ms. Colter was seen in the emergency room for left hip pain for the 

prior six months. Tr. 921. There was tenderness to palpation and limited range of motion. An 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 12 of 18
OPINION AND ORDER, Page 13

October 29, 2013, MRI of the pelvis showed localized fluid along the lateral aspect of the left 

greater trochanter “which could be related to . . . prior injury or . . . to gluteal tendinosis.” Tr. 927.

The MRI showed a partial-thickness tearing of the hamstring tendon. The radiologist concluded 

there was no acute osseous pathology. Tr. 928.

Although Ms. Colter presented sufficient evidence of a medically determinable 

impairment in her hip, there was no evidence that that impairment affected her ability to work. 

Accordingly, the ALJ’s determination that Ms. Colter’s sacroiliitis is not a severe impairment is 

supported by substantial evidence.

C. Medical Evidence

An ALJ may properly reject a treating physician's uncontradicted medical opinion only for 

“clear and convincing reasons.” Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). When the 

treating physician’s opinion has been contradicted, however, it may be rejected for “specific and 

legitimate reasons that are supported by substantial evidence in the record.” Carmickle v. Comm’r 

Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). This can be done by setting out a detailed 

and thorough summary of the facts, providing an appropriate interpretation thereof, and making 

findings. See Megallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 

1. Kay Stradinger, Psy.D.

Dr. Stradinger examined Ms. Colter on December 13, 2010. Tr. 596-601. Ms. Colter 

complained to Dr. Stradinger regarding her concentration and memory, stating that she “had not 

gotten over [her] son’s death.” Tr. 596. Ms. Colter reported that she sits and stares, forgets her 

passwords, and forgets that she is going to the grocery store. Id. She told Dr. Stradinger this 

happens every day. Ms. Colter stated she had been deeply depressed since 2004, would stay in bed 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 13 of 18
OPINION AND ORDER, Page 14

with decreased appetite, and slept only two to three hours a night. Tr. 597. She was at the time

taking Fluoxetine, Bupropion, Risperidone, Clonazepam, Hydrocodone, and Temazepam.

Dr. Stradinger noted that “[t]he claimant had somewhat of a difficult time concentrating 

today. Her persistence was adequate and the pace was generally average.” Tr. 598. Dr. Stradinger 

wrote that Ms. Colter “was generally cooperative, but seemed to be somewhat removed in her 

concentration. . . . She did appear to be somewhat sluggish, perhaps related to substances or 

perhaps she is in a state of derealization or depersonalization.” Tr. 598-99. Dr. Stradinger stated 

the “claimant is focused on her son’s death.” Tr. 599. On memory testing, Ms. Colter’s 

performance was below average, as was her fund of knowledge, information, and concentration.

Tr. 599-600. Dr. Stradinger diagnosed chronic adjustment disorder with depressed mood and

benzodiazepine and opiate dependence. Tr. 600. Dr. Stradinger assessed a GAF of 50.

Dr. Stradinger thought Ms. Colter was “unlikely” to recover. Tr. 601. She concluded that 

Ms. Colter is “capable, cognitively of performing simple and repetitive work type tasks,” but 

“would have a difficult time interacting independently, effectively, appropriately and on a 

sustained basis, with supervisors, co-workers and the public . . . . She seems to have problems with 

social functioning, as well as concentration and attention.” Id.

The ALJ noted Dr. Stradinger’s opinion and gave it “some weight” “regarding the 

claimant’s ability to perform simple tasks” as consistent with other evidence. Tr. 24. The ALJ gave 

the GAF rating little weight as “inconsistent with the claimant’s daily activities and her ability to 

work for free housing.” Id. Dr. Allers noted on October 9, 2013, that Ms. Colter “has free housing 

in hotel for working there.” Tr. 935. In December 2012, however, Dr. Allers noted that Ms. Colter 

was “homeless,” writing that her “son pays for [motel] charges with day lab[or].” Tr. 943. 

Consistent with this latter observation, in April 2013, Dr. Allers noted that Ms. Colter lived at the 

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 14 of 18
OPINION AND ORDER, Page 15

Beaverton Budget Hotel with her son and that her “son works in security as needed.” Tr. 942. 

Similarly, at the hearing, Ms. Colter testified that she lived with her son, who received a free room 

for working at the hotel. Tr. 45-46, 57.

With the exception of a single sentence fragment of ambiguous meaning, all relevant 

evidence in the record indicates that Ms. Colter does not, in fact, work for free housing. The ALJ 

could not, therefore, reject Dr. Stradinger’s opinion on that basis. Nor could the ALJ permissibly 

rely on the fact that Ms. Colter was not “utterly incapacitated,” but could perform minimal 

activities of daily living. See Vertigan v. halter, 260 F.3d 1044, 1050 (9th Cir. 2001). Therefore, 

the ALJ’s rejection of Dr. Stradinger’s opinion was not supported by clear, convincing, specific, 

and legitimate reasons.

2. Gregory L. Allers, D.O.

On October 21, 2013, Dr. Allers completed a form prepared by counsel in which he stated

that Ms. Colter had been a patient in his clinic for four years and under his direct care for two years.

Dr. Allers listed Ms. Colter’s medical conditions as depression, COPD, hypertension, history of 

chronic homelessness, grief, and chronic pain in the shoulder and lower back. Tr. 901. Dr. Allers 

wrote her primary symptoms were poor energy, poor memory, poor concentration, poor sleep, and 

poor motivation. Id. The doctor opined that Ms. Colter could frequently lift/carry five to ten 

pounds, and stand or walk one hour at a time for a total of two to three hours in an eight-hour day.

Tr. 901-02. Dr. Allers stated Ms. Colter could sit for one hour at a time and for five hours in an 

eight hour day. He described limitations in her ability to use her right upper extremity. Dr. Allers 

opined that Ms. Colter had markedly impaired concentration, and her symptoms would interfere 

with her ability to sustain simple work tasks. Tr. 904. Dr. Allers thought Ms. Colter’s

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 15 of 18
OPINION AND ORDER, Page 16

concentration would be impaired more than 20 percent of the time. Id. Treatment had not improved 

her depression.

The ALJ gave Dr. Allers=s opinion “little weight.” Tr. 24. “It appears to be based on 

subjective statements,” the ALJ held, because “treating evidence shows minimal limitations 

caused by physical problems.” Tr. 24. This is not a valid reason to discredit Dr. Allers’s opinion 

regarding Ms. Colter’s mental ability to sustain concentration and other mental symptoms, 

particularly when those opinions are directly corroborated by the opinion of Dr. Stradinger as 

described above.

The ALJ said Dr. Allers’s opinion was not credible because he quoted Ms. Colter as saying 

she could not handle workplace stress. Id. But Dr. Allers went on to independently assess that Ms. 

Colter had “[p]oor ability to learn new tasks,” and that “time limits and routines [were] too 

stressful” for her.

The ALJ found that the “objective medical evidence does not show marked restriction on 

concentration, persistence and pace. . . . [T]here is no support for a 20% reduction in concentration

and attention on work tasks.” Tr. 24. As the treating physician, however, Dr. Allers is in the best 

position to assess Ms. Colter=s ability to concentrate. Moreover, his medical opinion is fully 

supported by that of Dr. Stradinger.

Finally, the ALJ rejected Dr. Allers’s opinion on the basis that he “did not address the 

effects of narcotic use.” Tr. 24. This not a valid reason to discount Dr. Allers’s opinion, however,

because by the time of the cited analysis, Ms. Colter’s narcotic pain medication had been limited 

for two years, since October 2011. Tr. 628.

On this record, the ALJ failed to identify clear, convincing, specific and legitimate reasons 

to reject Dr. Allers’s opinion.

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 16 of 18
OPINION AND ORDER, Page 17

D. Remand

The “decision whether to remand for further proceedings or for an award of benefits” is 

within the Court’s discretion under 42 U.S.C. § 405(g). Holohan v. Massanari, 246 F.3d 1195, 

1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to the agency 

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

payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 

2014). The issue turns on the utility of further proceedings. A remand for an award of benefits is 

appropriate when no useful purpose would be served by further administrative proceedings or 

when the record has been fully developed and the evidence is insufficient to support the 

Commissioner’s decision. Id. at 1100. A court may not award benefits punitively and must conduct 

a “credit-as-true” analysis on evidence that has been improperly rejected by the ALJ to determine 

if a claimant is disabled under the Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 

1138 (9th Cir. 2011).

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

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

States Court of Appeals for the Ninth Circuit:

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

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

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

record has been fully developed and further administrative 

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

to provide legally sufficient reasons for rejecting evidence, whether 

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

discredited evidence were credited as true, the ALJ would be 

required to find the claimant disabled on remand.

Id. at 1020.

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 17 of 18
OPINION AND ORDER, Page 18

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

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

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

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

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

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

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

The ALJ’s failure to credit the examining and treating providers is erroneous for the 

reasons set out above. The Vocational Expert testified that if Dr. Allers’s opinion is credited, there 

is no work that exists in significant numbers in the national economy that Ms. Colter can perform.

Tr. 63-64. Thus, the record has been fully developed and further administrative proceedings would 

serve no useful purpose: Ms. Colter is disabled. Accordingly, this matter is remanded for the 

calculation and award of benefits.

CONCLUSION

The Commissioner’s decision is not supported by substantial evidence. For these reasons, 

the decision of the Commissioner is reversed and this matter is remanded to the Commissioner 

pursuant to Sentence Four, 42 U.S.C. ' 405(g) for the immediate calculation and payment of 

benefits.

IT IS SO ORDERED.

Dated this 13th day of May, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 3:14-cv-00896-SI Document 18 Filed 05/13/15 Page 18 of 18