IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAWN J. WHITCHER, 2:15-cv-00393-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

TIM D. WILBORN

Wilborn Law Office. P.C.

P.O. Box 370578

Las Vegas, NV 89137

(702) 240-0184

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204

(503) 727-1011

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DAVID MORADO

Regional Chief Counsel

SARAH L. MARTIN

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

(206) 615-3705 

Attorneys for Defendant

BROWN, Judge.

Plaintiff Shawn J. Whitcher seeks judicial review of a final

decision of the Commissioner, Social Security Administration

(SSA), in which she denied Plaintiff’s application for Disability

Insurance Benefits (DIB) under Title II of the Act and

Supplemental Security Income (SSI) under Title XVI of the Act. 

This Court has jurisdiction to review the Commissioner’s

decision pursuant to 42 U.S.C. § 405(g). Following a thorough

review of the record, the Court REVERSES the final decision of

the Commissioner and REMANDS this matter for further

administrative proceedings consistent with this Opinion and

Order.

ADMINISTRATIVE HISTORY

Plaintiff filed his applications for DIB and SSI on 

November 21, 2011. Tr. 223.1 His applications were denied

1

 Citations to the official transcript of record filed by

the Commissioner on October 8, 2014, are referred to as “Tr.”

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initially and on reconsideration. An Administrative Law Judge

(ALJ) held a hearing on September 10, 2013. Tr. 29. At the

hearing Plaintiff was represented by an attorney. Plaintiff and

a vocational expert (VE) testified at the hearing. Tr. 29.

The ALJ issued a decision on October 30, 2013, in which he

found Plaintiff is not entitled to benefits. Tr. 14-24. That

decision became the final decision of the Commissioner on 

January 9, 2015, when the Appeals Council denied Plaintiff’s

request for review. Tr. 1-3. See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND

Plaintiff was born on December 19, 1976; was 36 years old on

the date of the hearing; and has a high-school diploma with some

college. Tr. 32, 182. Plaintiff has prior relevant work

experience as a prep cook, irrigation-system installer, truck

driver, and firefighter. Tr. 22.

Plaintiff alleges disability since April 16, 2011, due to

“neck, shoulder, and back injuries,” “limited mobility in right

ankle,” and “learning disability.” Tr. 185, 191.

Except as noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 16-22.

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STANDARDS

The initial burden of proof rests on the claimant to

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, 682 F.3d 1157, 1161

(9th 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. Id. (citing Valentine, 574 F.3d at 690). 

The ALJ is responsible for determining credibility,

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resolving conflicts in the medical evidence, and resolving

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

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 of 

Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). See also

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. 

§§ 404.1520, 416.920. Each step is potentially dispositive. 

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). See

also Keyser, 648 F.3d at 724.

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At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. Stout v. Comm’r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See also 20

C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); Keyser, 648 F.3d

at 724.

At Step Three the Commissioner must determine whether a

claimant’s impairments meet or equal one of the listed

impairments and are so severe that they preclude substantial

gainful activity. 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) 96-8p. “A ‘regular and continuing basis’ means 8 hours a

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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)). The assessment of

a claimant's RFC is at the heart of Steps Four and Five of the

sequential analysis when the ALJ is determining whether a

claimant can still work despite severe medical impairments. An

improper evaluation of the claimant's ability to perform specific

work-related functions "could make the difference between a

finding of ‘disabled’ and ‘not disabled.’” SSR 96-8p, at *4. 

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.

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

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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’S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since April 16, 2011, his alleged

onset date. Tr. 16.

At Step Two the ALJ found Plaintiff has the severe

impairments of right-ankle fracture and degenerative disc

disease. Tr. 16-18.

At Step Three the ALJ found Plaintiff’s impairments do not

meet or equal the criteria for any impairment in the Listing of

Impairments. Tr. 18-19. In his assessment of Plaintiff’s RFC

the ALJ found Plaintiff has the functional capacity to perform a

range of light work in which Plaintiff can lift and/or carry 20

pounds occasionally and 10 pounds frequently, can walk and/or

stand for two hours out of an eight-hour day, and can sit for six

hours in an eight-hour day. In addition, the ALJ found Plaintiff

is limited to occasional use of foot controls with the lowerright extremity; can occasionally climb ramps, stairs, ladders,

ropes, and scaffolds; can frequently balance, crouch, and kneel;

and should avoid even moderate exposure to hazards such as

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unprotected heights and dangerous machinery. Tr. 19-22.

At Step Four the ALJ found Plaintiff is unable to perform

his past relevant work as a prep cook, irrigation-system

installer, truck driver, and firefighter. Tr. 22.

At Step Five, however, the ALJ found Plaintiff is capable of

performing other work that exists in significant numbers in the

national economy, including work as a document scanner. Tr. 23-

24.

Accordingly, the ALJ found Plaintiff is not disabled and is

not entitled to benefits. Tr. 24.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) improperly

omitted Plaintiff’s mental conditions at Step Two of the

sequential evaluation and in his assessment of Plaintiff’s RFC;

(2) failed to provide legally sufficient reasons for rejecting

Plaintiff’s testimony; (3) failed to provide legally sufficient

reasons for rejecting lay-witness testimony; and (4) relied on VE

testimony that contradicted the Dictionary of Occupational Titles

without explaining the deviation.

I. Step Two

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. Stout v. Comm’r Soc.

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Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See also 20

C.F.R. § 416.920(a)(4)(ii); Keyser v. Comm’r of Soc. Sec. Admin.,

648 F.3d 721, 724 (9th Cir. 2011). A severe impairment

“significantly limits” a claimant’s “physical or mental ability

to do basic work activities.” 20 C.F.R. §§ 416.921(a), (b). 

Such abilities and aptitudes include walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying, handling, seeing,

hearing, and speaking; understanding, carrying out, and

remembering simple instructions; using judgment; responding

appropriately to supervision, co-workers, and usual work

situations; and dealing with changes in a routine work setting. 

Id. 

The Step Two threshold is low:

[A]n impairment can be considered as not severe only if

it is a slight abnormality which has such a minimal

effect on the individual that it would not be expected

to interfere with the individual’s ability to work 

. . . . [T]he severity regulation is to do no more

than allow the Secretary to deny benefits summarily to

those applicants with impairments of a minimal nature

which could never prevent a person from working. 

SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted). 

See also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)(at

Step Two the court “must determine whether the ALJ had

substantial evidence to find that the medical evidence clearly

established that Webb did not have a medically severe impairment

or combination of impairments.”).

Any error in failing to designate specific impairments as

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severe at Step Two is harmless if the ALJ, nonetheless, analyzes

the effects of the impairments when considering Plaintiff’s RFC. 

Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

With respect to the “paragraph B” criteria at Step Two, “the

claimant must produce evidence of at least two of the following:

marked restriction of activities of daily living; marked

difficulties in maintaining social functioning; marked

difficulties in maintaining concentration, persistence, or pace;

or repeated episodes of decompensation, each of extended

duration.” Wilson v. Comm’r Soc. Sec. Admin., No. 6:14-cv-01326-

HZ, 2015 WL 5919881, at *5 (Oct. 8, 2015). Accordingly, the

court “must determine whether the ALJ had substantial evidence to

find that the medical evidence clearly established” the plaintiff

did not meet the “paragraph B” criteria. Webb, 433 F.3d at 687.

The ALJ declined to include any mental limitations at Step

Two because he concluded Plaintiff did not meet the “paragraph B”

criteria of § 12.00C of the Listing of Impairments. See 20

C.F.R. part 404, subpart P, appendix 1. The ALJ specifically

found Plaintiff did not have any limitations in his activities of

daily living; mild limitation in social functioning; mild

limitation in concentration, persistence, and pace; and no

episodes of decompensation.

To support the finding that Plaintiff does not have any

severe mental impairments, the ALJ relied on the evaluation of

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Robert Patterson, Ed.D., in which Dr. Patterson noted in a

mental-status examination that Plaintiff presented as “logical

and coherent” and was able to “attend and concentrate quite

well.” Tr. 645. Dr. Patterson opined: “[I]t does not appear

that [Plaintiff] can be considered to have a learning

disability.” Dr. Patterson noted Plaintiff demonstrated average

skills in general language, reading, and written expression, and

weaknesses in “short-term auditory and visual memory” and some

mathematics. Tr. 648.

Aside from the brief observations during the mental-status

examination, however, Dr. Patterson did not conduct a

comprehensive psychological examination, and his assessment

focused on Plaintiff’s intellectual and academic functioning. 

Tr. 644-49. There is, however, evidence in the record both

before and during the alleged period of alleged disability that

Plaintiff suffered from depression, anxiety, and social and

thought disorders. See, e.g., Tr. 406, 416, 418, 420, 579, 650-

51, 654. Dr. Patterson’s opinion that Plaintiff does not have a

learning disability, therefore, does not support the ALJ’s

conclusion that Plaintiff is not suffering from other mental

impairments. In fact, in light of other evidence in the record

that Plaintiff suffers from depression, anxiety, and social and

thought disorders, the ALJ’s finding that “the medical evidence

clearly established” that Plaintiff did not meet the “paragraph

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B” criteria for any mental impairment is not supported by the

record.

The Court, therefore, concludes on this record that the ALJ

erred when he failed to include any mental impairments at Step

Two.

II. Plaintiff’s Testimony

Plaintiff contends the ALJ erred when he failed to provide

legally sufficient reasons for rejecting Plaintiff's testimony.

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009). The claimant, however, need not produce

objective medical evidence of the actual symptoms or their

severity. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 

See also Delgado v. Commissioner of Social Sec. Admin., 500 F.

App’x 570, 570 (9th Cir. 2012).

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant's pain testimony only if he provides clear and

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

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

(9th Cir. 1995)). General assertions that the claimant’s

testimony is not credible are insufficient. Id. The ALJ must

identify “what testimony is not credible and what evidence

undermines the claimant's complaints.” Id. (quoting Lester, 81

F.3d at 834).

At the hearing Plaintiff testified he was having

considerable difficulty keeping up in the college courses that he

was taking and had failed several courses despite classroom

accommodations. Tr. 33. Plaintiff stated he did not “deal with

people well” in his previous work, and he could not learn

workplace operations like how to work cash registers. Tr. 40. 

Plaintiff testified he has a “horrible memory,” depression, and

anxiety and that he has difficulty with verbal instructions but

does better with written instructions. Tr. 46-47. Plaintiff

also testified he has difficulty relating to people and does not

“associate with people anymore.” Tr. 48.

In addition, Plaintiff testified he suffers from back pain

as a result of having some vertebrae fused and suffering a back

injury in 2008. Tr. 34-35. Moreover, Plaintiff stated he must

walk with a cane as a result of a severe right-ankle injury

suffered in 2011, and, as a result, he can only walk for

approximately one-and-a-half blocks and stand for approximately

30 minutes before resting. Tr. 41-42. Plaintiff also testified

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he has difficulty sitting because of his back pain and cannot

drive as a result of his ankle injury. Tr. 43.

In his Adult Function Report dated February 16, 2012,

Plaintiff reported he can no longer walk, run, ride a bike, stand

for long periods of time, lift or carry items, or play sports,

and he is not mobile as a result of his limitations. Tr. 237. 

Plaintiff stated he experiences a variety of limitations in his

daily living as a result of his ankle and back limitations,

including difficulty with dressing, bathing, and cooking meals. 

Tr. 237-38. Plaintiff reported he cannot do any yard work and

requires assistance with many of his household chores. Tr. 238. 

Plaintiff indicated his conditions affect his ability to lift,

squat, bend, stand, reach, walk, sit, kneel, climb stairs, use

his hands, complete tasks, concentrate, and get along with

others. Tr. 241. Plaintiff reported he can walk approximately

two blocks before requiring rest and can pay attention for

between 15 and 30 minutes. Tr. 241. Plaintiff further stated

“sitting for a long time can cause cramps.” Tr. 244.

The ALJ discredited Plaintiff’s testimony because the

objective evidence regarding Plaintiff’s mental-health

limitations and ankle limitations do not support Plaintiff’s

contention that he cannot return to light work. In addition, the

ALJ discounted Plaintiff’s testimony because Plaintiff

discontinued mental-health treatment. Tr. 17, 18, 22. 

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The Court, however, concludes these reasons are not legally

sufficient reasons to reject Plaintiff’s testimony. For example,

Plaintiff’s ankle limitations are not fundamentally inconsistent

with his testimony. The evidence is clear that Plaintiff

suffered a serious ankle injury and that he was not expected to

make a full recovery after surgery. In addition, the record

contains some evidence (both objective and subjective) that

Plaintiff suffers from mental-health limitations. Although

Plaintiff’s stated mental limitations may be arguably greater

than those limitations supported by the medical record, the ALJ’s

finding that there was not any objective evidence of mental

impairment is incorrect. Finally, although Plaintiff terminated

mental-health treatment in February 2013, he re-entered treatment

in July of that year. Tr. 660-61.

On this record, therefore, the Court concludes the ALJ erred

when he failed to provide legally sufficient reasons for

rejecting Plaintiff’s testimony.

III. Lay-Witness Testimony

Plaintiff contends the ALJ erred by failing to provide any

reasons for rejecting the lay-witness testimony of Dr. Kami

Fischbach (Plaintiff’s math professor), Joe Parsley (Plaintiff’s

math tutor), Doris Stusiak (the Director of Disability Services

at Northern State University), Britt M. Loren (the “TRiO SSS

Program Director” at Northern State University), and Joshua

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Frachiseur (Plaintiff’s theater professor). Tr. 287-92. 

Lay-witness testimony regarding a claimant's symptoms is

competent evidence that the ALJ must consider unless he

“expressly determines to disregard such testimony and gives

reasons germane to each witness for doing so.” Lewis v. Apfel, 

236 F.3d 503, 511 (9th Cir. 2001). The ALJ's reasons for

rejecting lay-witness testimony must also be “specific.” Stout

v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). 

Nevertheless, an ALJ is not required to address each lay-witness

statement or testimony on an “individualized, witness-by-witnessbasis. Rather if the ALJ gives germane reasons for rejecting

testimony by one witness, the ALJ need only point to those

reasons when rejecting similar testimony by a different witness.” 

Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)(quotation

omitted).

Germane reasons for discrediting a witness’s testimony

include inconsistency with the medical evidence and the fact that

the testimony “generally repeat[s]” the properly discredited

testimony of a claimant. Bayliss v. Barnhart, 427 F.3d 1211,

1218 (9th Cir. 2005). See also Williams v. Astrue, 493 Fed.

App’x 866 (9th Cir. 2012).

The letters written by Dr. Fischbach, Parsley, Stusiak,

Loren, and Frachiseur appear to have been originally submitted to

Northern State University in May 2013 for purposes of an appeal

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to reinstate Plaintiff’s financial-aid eligibility. Tr. 284-93. 

The letters describe Plaintiff’s functioning in the classroom

setting and his ability to keep up with his college courses. 

The ALJ did not address any of the letters submitted to Northern

State University. Moreover, the Court does not find this error

is harmless because the ALJ did not assign any limitations based

on Plaintiff’s mental impairments when he assessed Plaintiff’s

RFC.

On this record, therefore, the Court concludes the ALJ erred

when he failed to consider the lay-witness testimony.

IV. Step Five

Finally, Plaintiff contends the ALJ erred when he relied on

testimony from the VE that varied from the DOT without

explanation. In particular, Plaintiff contends the ALJ erred

when he relied on the VE’s testimony that Plaintiff could perform

jobs that fall within the range of light work even though the ALJ

found Plaintiff can only stand or walk for two hours per day,

which represents a degree of functioning less than is generally

required to perform light work.

Although the DOT is presumptively authoritative regarding

job classifications, the presumption is rebuttable. Johnson v.

Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). “[A]n ALJ may rely

on expert testimony which contradicts the DOT, but only insofar

as the record contains persuasive evidence to support the

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deviation.” Id. Thus, before he may rely on the VE’s testimony,

an ALJ “must first determine whether a conflict exists.” 

Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). In

accordance with SSR 00-4p, the ALJ must ask the VE whether his

testimony is consistent with the DOT. Id. at 1152-53. If “there

is an apparent unresolved conflict between VE . . . evidence and

the DOT, the [ALJ] must elicit a reasonable explanation for the

conflict.” SSR 00-4p. See also Massachi v. Astrue, 486 F.3d at

1153-54.

Each of the occupations that the VE provided in his

testimony and that the ALJ relied on to carry the Commissioner’s

burden at Step Five are classified as “light work.” Tr. 65. 

After the ALJ spelled out his findings regarding Plaintiff’s RFC

in a hypothetical question to the VE and after the VE responded

that Plaintiff would be able to perform the work that the ALJ

ultimately accepted, the ALJ asked the VE whether his testimony

was consistent with the DOT. Tr. 65-66. The VE responded that

his testimony was consistent with the DOT. Tr. 66. The ALJ then

followed up as follows: “Now the DOT doesn’t, doesn’t break down

light jobs between the lifting and sitting or standing

requirements, do they?” Tr. 66. The VE responded: “That’s

correct. I should have; [sic] however, mentioned that I’ve had a

chance to observe these workers doing these jobs and so that part

of my testimony is based on my professional experience in the

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field.” Tr. 66.

Although the exchange between the ALJ and the VE is not

optimally clear, the VE’s testimony, considered as a whole,

indicates Plaintiff may not be able to satisfy the full

requirements of light work generally, but he could, nonetheless,

perform those jobs identified by the VE based on the VE’s

professional experience observing those occupations in the

workplace. The VE’s explanation, therefore, is reasonable as to

why his testimony varied somewhat from the occupational

description in the DOT. The Court, therefore, finds the ALJ did

not err when he relied on the VE testimony.

Nonetheless, because the ALJ’s assessment of Plaintiff’s RFC

is not supported by substantial evidence in the record for the

reasons stated above, the Court concludes the ALJ erred at Step

Five.

V. Remand

The decision whether to remand for further proceedings or

for immediate payment of benefits is within the discretion of the

court. Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000). 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. Strauss v. Comm’r, 635

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F.3d 1135, 1138-39 (9th Cir. 2011)(quoting Benecke v. Barnhart,

379 F.3d 587, 593 (9th Cir. 2004)). The court may not award

benefits punitively and must conduct a “credit-as-true” analysis

to determine whether a claimant is disabled under the Act. Id.

at 1138.

Under the “credit-as-true” doctrine, evidence should be

credited and an immediate award of benefits directed when: 

(1) the ALJ has failed to provide legally sufficient

reasons for rejecting such evidence, (2) there are not

any 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 if such evidence were

credited.

Id. The reviewing court should decline to credit testimony when

“outstanding issues” remain. Luna v. Astrue, 623 F.3d 1032, 1035

(9th Cir. 2010). 

When the reviewing court finds the elements of the “creditas-true” rule have been satisfied, however, the court may only

remand for further proceedings if “an evaluation of the record as

a whole creates serious doubt that the claimant is, in fact,

disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir.

2014).

Although the “credit-as-true” doctrine is not a mandatory

rule in the Ninth Circuit, it leaves the court with the

flexibility to determine whether to enter an award of benefits

upon reversing the Commissioner’s decision. Connett v. Barnhart,

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Case 2:15-cv-00393-BR Document 14 Filed 02/04/16 Page 21 of 22
340 F.3d 871, 876 (9th Cir. 2003)(citing Bunnell v. Sullivan, 947

F.2d 871 (9th Cir. 1991)(en banc)).

The Court concludes there are outstanding issues that remain

unresolved before a determination of disability can be made. For

example, the ALJ must determine the extent of Plaintiff’s

limitations based on his mental impairments. Moreover, the ALJ

must determine the effect the testimony of Plaintiff and the lay

witnesses have on the ALJ’s assessment of Plaintiff’s RFC,

including Plaintiff’s mental impairments. 

Accordingly, on this record the Court remands this matter to

the Commissioner for further proceedings consistent with this

Opinion and Order.

CONCLUSION

For these reasons, the Court REVERSES the final 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.

IT IS SO ORDERED.

DATED this 4th day of February, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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