IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WALLACE L. OVERMAN, 6:14-CV-01659-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, Acting 

Commissioner, Social Security 

Administration,

Defendant.

KATHRYN TASSINARI

ROBERT BARON

Harder, Wells, Baron & Manning, P.C.

474 Willamette, Suite 200

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

BILLY J. WILLIAMS

Acting United States Attorney

JANICE E. HERBERT

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1011

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Case 6:14-cv-01659-BR Document 21 Filed 01/06/16 Page 1 of 30
DAPHNE BANAY 

Special Assistant United States Attorney

Social Security Administration

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

Seattle, WA 98104-7075

(206) 615-2113

Attorneys for Defendant

BROWN, Judge.

Plaintiff Wallace L. Overman seeks judicial review of a

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

disability insurance benefits under Title II and supplemental

security income (SSI) under Title XVI of the Social Security Act.

This Court has jurisdiction to review the Commissioner's final

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

Following a review of the record, the Court REVERSES the

decision of the Commissioner and REMANDS this matter pursuant to

sentence four of 42 U.S.C. § 405(g) for the immediate calculation

and payment of benefits to Plaintiff. 

ADMINISTRATIVE HISTORY

Plaintiff protectively filed his applications on April 4,

2011, and alleged a disability onset date of June 1, 2006. 

Tr. 177-86. 1 The applications were denied initially and on

1

 Citations to the official transcript of record filed by

the Commissioner on April 2, 2015, are referred to as "Tr."

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reconsideration. An Administrative Law Judge (ALJ) held a

hearing on May 22, 2013. Tr. 41-84. At the hearing Plaintiff

was represented by an attorney. Plaintiff and a vocational

expert (VE) testified.

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

found Plaintiff is not disabled. Tr. 19-29. That decision

became the final decision of the Commissioner on August 25, 2014,

when the Appeals Council denied Plaintiff's request for review. 

Tr. 1-3. See Sims v. Apfel, 430 U.S. 103, 106-07 (2000).

On October 20, 2014, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner’s decision.

BACKGROUND

Plaintiff was born in September 1961 and was 52 years old at

the time of the hearing. Tr. 45. He took special education

classes and completed the tenth grade. Tr. 45-6. Plaintiff has

past relevant work experience as a fast-food cook, maintenance

worker, and construction laborer. Tr. 75.

Plaintiff alleges disability due to “gout, hearing loss,

left shoulder problem, slow learner.” Tr. 214.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

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

inability "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months." 42 U.S.C. 

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

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

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

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision

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

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

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (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,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

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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

The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

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

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

Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

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

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Keyser, 648

F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

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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

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

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

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

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

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

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

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

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

If the Commissioner reaches Step Five, she must determine

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

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

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

burden shifts to the Commissioner to show a significant number of

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

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

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

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

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

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

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

416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity (SGA) since his June 1, 2006,

alleged onset date. Tr. 21. The ALJ found Plaintiff met the

insured status requirements through December 31, 2009.

At Step Two the ALJ found Plaintiff has severe impairments

including gout v. pseudo gout, major depressive disorder,

cannabis abuse, learning disorder NOS, intermittent explosive

disorder, generalized anxiety disorder, GERD, bilateral hearing

loss, and left-shoulder tendinosis. Tr. 21-22.

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

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meet or equal any listed impairment. Tr. 22. The ALJ found

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

except he can sit, stand, and walk for six hours each in an

eight-hour workday; can occasionally reach overhead bilaterally

and frequently reach bilaterally in all other directions; can

occasionally climb ladders, ropes, and scaffolds; and can

understand, remember, and carry out simple instructions that can

be learned in 30 days or less. The claimant can have occasional

contact with supervisors, coworkers, and the public. He cannot,

however, work in a job where excellent hearing is required. He

can perform frequent, but not repetitive, bilateral handling and

fingering. He must be able to briefly change positions every 30

minutes to one hour. Plaintiff should be given instructions

verbally and by demonstration. He cannot perform production-line

work. Tr. 23-24.

At Step Four the ALJ found Plaintiff was unable to perform

any past relevant work. Tr. 28. 

At Step Five the ALJ found Plaintiff is able to perform 

the occupations of auto detailer, laundry worker, and janitor. 

Tr. 28-29. 

DISCUSSION

Plaintiff contends the Commissioner erred by (1) improperly

finding Plaintiff was not fully credible, (2) improperly weighing

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medical evidence, and (3) failing to prove that Plaintiff retains

the ability to perform “other work” in the national economy. 

I. The ALJ erred when she found Plaintiff's testimony was

 less than fully credible.

 The ALJ is responsible for determining credibility,

resolving conflicts in medical testimony, and resolving

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

1995). See also Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir.

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

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

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

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

shows the claimant is malingering, the Commissioner's reason 

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

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

not credible and the evidence that undermines the claimant's

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

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

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

improvement) are an insufficient basis to support an adverse

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

Holohan, 246 F.3d at 1208.

When deciding whether to accept a claimant's subjective

symptom testimony, "an ALJ must perform two stages of analysis: 

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the Cotton analysis and an analysis of the credibility of the

claimant's testimony regarding the severity of her symptoms." 

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).

Under the Cotton test, a claimant who alleges

disability based on subjective symptoms "must 

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

expected to produce the pain or other symptoms

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

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

F.2d at 1407-08. The Cotton test imposes only 

two requirements on the claimant: (l) [he] must 

produce objective medical evidence of an 

impairment or impairments; and (2) [he] must 

show that the impairment or combination of 

impairments could reasonably be expected to

(not that it did in fact) produce some degree 

of symptom. 

Smolen, 80 F.3d at 1282. See also Carmickle v. Comm’r Soc. Sec.

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

If the claimant satisfies the above test and there is not 

affirmative evidence of malingering, the ALJ can reject the

claimant’s pain testimony only if she provides clear and

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

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

(9th Cir. 1995)). The ALJ’s findings must be “sufficiently

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

arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart,

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

A. Plaintiff’s Testimony

In his Adult Function Report dated April 28, 2011, Plaintiff

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stated he lived with his wife and stepson. Tr. 228. He has

“gout so bad that it flares up at night and day and last[s] 2-3

weeks at a time with meds.” Id. Plaintiff reported he sits on

the couch or lays down when his gout is active, and gout pain

prevents him from sleeping. Tr. 229-30. Plaintiff stated he

sometimes feeds the dog. He needs help with putting on his shoes

and socks and with remembering to take his medications. Although

he loves to cook, he cannot cook any more and instead prepares

sandwiches about twice a week. Tr. 230.

Plaintiff reported he puts dishes away for ten or 20

minutes, but he requires encouragement because of his pain. 

Tr. 231. He does not have a driver’s license. He grocery shops

about once a month for about one hour. He no longer fishes or

hunts, does not have regular social activities, and does not go

out.

Plaintiff estimated he can walk about ten minutes before

needing to stop and rest for about ten minutes. Tr. 233. He

stated he did not have any trouble paying attention for as long

as required, but he does not finish what he starts. He has been

laid off from work because of his difficulty in getting along

with other people. He does not handle stress or changes in

routine well. Tr. 234. 

At the May 2013 hearing Plaintiff testified he does not have

a driver’s license, yet he occasionally drives his ten-year-old

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stepson to school if he misses the bus. Tr. 45. Plaintiff went

to school through the tenth grade, and some of his classes were

special education. Plaintiff built fences in the summer of 2006. 

Tr. 46. He worked as a cook at Wendy’s for about six months in

2008.

Plaintiff said he could not work alone at a simple job for

eight hours a day five days a week because he would have “a hard

time paying attention.” Tr. 50. He smokes marijuana three or

four times a day for pain medication, and he takes Percocet. 

Plaintiff stated he does not think smoking marijuana impairs his

ability to pay attention. Tr. 51. He helps his stepson with

homework.

Plaintiff testified he “hurt all the time.” Id. He saw his

doctor in October 2012, but he discontinued his medications

against medical advice. Tr. 52. He stopped one medication

because it was not controlling his gout and he required help in

the bathroom. Tr. 52. He tried a new medication that was not

effective, but he ran out of that medication before the hearing. 

He has not been to the emergency room because of gout. Tr. 53. 

He is on the Oregon Health Plan and cannot afford to see a

psychologist or psychiatrist.

Plaintiff did not complete his program at St. Vincent de

Paul because he could not afford the gas to go back and forth. 

Tr. 54. He also stated he did not receive any telephone calls

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from his counselor. He stopped counseling with Hugh McCauley,

M.S.W., because he could not afford to continue. Tr. 55. The

ALJ asked Plaintiff to respond to comments from St. Vincent de

Paul to the effect that Plaintiff’s lack of motivation was the

main barrier to his employment. Plaintiff responded: “I have no

clue.” Tr. 55.

Plaintiff gets free marijuana from friends who grow medical

marijuana. Tr. 56. He visits friends and helps with dinner, the

dishes, and taking out the trash. He feeds his dog, watches

NASCAR, and plays video games. Tr. 57. He can walk about a

block and stand 15 to 20 minutes before his feet start to hurt

and he has to sit down. He stated he gets up about three or four

times an hour when sitting. Tr. 58. He can pick up a 20-pound

object two or three times, but “then I’d just be pushing my body

to the limit because I pay for it afterwards. It doesn’t

immediately swell up that same day, but during the night when I’m

resting is when it starts really attacking my body and by the

time I wake up, . . . I’m in so much pain that it’s unbearable.” 

Id. He can kneel and walk up and down one flight of stairs. 

Tr. 59. He can only reach above his head for a short period of

time before his hands become numb. He has reported this numbness

to his doctors.

Plaintiff last fished or hunted about four years before the

hearing. Tr. 60. He would fish and hunt now if he had licenses. 

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Tr. 61. He plays video games for about 20 minutes at a time. 

He stated he lost his job at Wendy’s after swearing at his

supervisor, and he lost a construction job after throwing a

sledge hammer at his supervisor. His father beat him when he was

young. Tr. 66, 70. 

Plaintiff testified he was unable to return to see 

Counselor McCauley because he could not afford the counseling,

and he did not attempt to get help for his anger issues with

another provider because he did not know or trust anyone else. 

Tr. 71.

Plaintiff stated he was “always slow. . . . It’s just so

hard for me to get motivated in the jobs because some jobs I just

don’t do. I just don’t have no clue what they want me to do.” 

Tr. 72. Plaintiff said he could not do a simple job if he was

not around people because “I would lose interest in it.” Id.

Plaintiff clarified that he “has a problem keeping focused on

stuff” and could focus on a two-hour long NASCAR race for only

about 30 minutes. Tr. 73. He has never had a job where he did

not have a conflict with a supervisor. Plaintiff has a hearing

aid and reads lips. Tr. 74.

B. The ALJ’s Finding that Plaintiff’s Testimony Was Not

Fully Credible

1. Inconsistency of Plaintiff's Statements

The ALJ found Plaintiff's testimony was less than fully

credible because Plaintiff "asserts that he was fired from a fast

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food restaurant in 2008 after hurting his hand; he stated to

another source, however, that he had excessive absences and was

fired.” Tr. 24. The ALJ does not cite the source or to whom

Plaintiff reported he was fired for excessive absences nor does

the ALJ identify any evidence in the record to support such a

finding.

In April 2011 Plaintiff completed a Work Activity

Report in which he stated he left a grill-cook position in June

2008. Plaintiff stated in the report: “I hurt my hand on the

job and went to the doctor. The next day the manager told me

since I hurt my hand that my hours was going to be cut. I told

him that I needed the hours and was terminated instead.” 

Tr. 199. 

In April 2011 Plaintiff also completed a Disability

Report in which he reported: “I was terminated because my hours

was going to be cut because I hurt my hand on the job. The

manager stated that my hours was going to be cut due to my

injury. Told the manager that I needed the hours and he said

then your terminated.” Tr. 214. 

The Commissioner cites the March 2013 report of Ryan

Scott, Ph.D., to whom Plaintiff reported that he left a job in

2009 “after his wife kicked him out of the house and he was

homeless and apparently this interfered with his ability to

attend work regularly.” Tr. 460. 

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At his May 2013 hearing Plaintiff testified:

Q Can you describe any problems that you

had with bosses in any jobs and when and

what happened?

A It always turned into an argument and a

fight.

Q Can you give any examples of specific 

jobs, particularly in the last 15, 18 years?

A The last one at Wendy’s, I was supposed to 

show up at 6:00 in the morning to put things 

up and get everything turned on or ready

to go that morning. I got there. The people

that was opening up with me, the assistant

manager told me I wasn’t supposed to touch

stuff until the manager got there. He didn’t

get there until 10:00 that morning. Okay.

That meant they had to call somebody else in

to do my job that I was already there for. 

So when he shows up at 10:00, I asked him what 

was going on and he said that I was fired. So

I had a few choice words with him.

Q After you were fired?

A Before I got fired because–

Q What were those words?

A I shouldn’t say them in front of women.

Q Did you swear at your supervisor?

A Yes, sir, I did.

Tr. 65-66.

Plaintiff contends these reports are not mutually

exclusive and that it is unlikely that an employer would fire him

for having an injury unless there were other issues such as

attendance problems. On this record Plaintiff’s statements are

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plausible; i.e., Plaintiff’s injury, his homeless status, his

absenteeism, and his swearing at his boss may have contributed to

losing his job. Thus, the Court agrees Plaintiff’s statements

are not mutually exclusive and, therefore, are not inconsistent.

The Court concludes on this record that Plaintiff’s

statements made over a period of two years about events that

occurred seven years ago are not inconsistent to a degree that

would support a finding that Plaintiff's testimony was less than

credible and, therefore, do not constitute a clear and convincing

reason for the ALJ's finding to that effect.

2. Cannabis Abuse and Driving Without a License

The ALJ found Plaintiff’s testimony was less than fully

credible on the ground that Plaintiff “acknowledges daily

repeated use of marijuana, does not have a medical marijuana

card, and says he gets the drug from a friend for free” and

Plaintiff does not have a driver’s license and yet he drives his

stepson to and from school when the child misses the bus. 

Tr. 24. Although Plaintiff’s conduct may constitute more than

poor judgment, the Court concludes these are not clear and

convincing reasons to find Plaintiff's testimony as to his

physical and mental limitations was less than fully credible. 

3. Compliance with Treatment

The ALJ found Plaintiff’s subjective complaints were

not fully credible because “[t]he medical evidence of record

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shows that [Plaintiff] is rarely compliant with treatment.”

Tr. 27. An ALJ may permissibly infer that a claimant’s pain is

not as disabling as the claimant reported when the claimant did

not seek treatment. Tommasetti v. Astrue, 533 F.3d 1035, 1039

(9th Cir. 2008). An ALJ, however, should not discredit a

claimant for not obtaining treatment he cannot afford. Orn v.

Astrue, 495 F.3d 625, 638 (9th Cir. 2007). 

The ALJ specifically rejected Plaintiff’s complaints

about pain from gout as not entirely credible because even though

Plaintiff complained of gout in his left foot, left elbow, and

right finger, “[m]ost of the claimant’s symptoms and history are

self-reported, as he had not seen a doctor in over 20 years when

he appeared at a medical clinic in early 2010.” Tr. 25.

Plaintiff, however, argues he was unable to afford treatment at

the time and did not have access to free or low-cost medical

services. Although the Commissioner points out that Plaintiff

failed to apply for the Oregon Health Plan as recommended by

Counselor McCauley in November 2007 and Plaintiff testified in

May 2013 that he had not been able to afford a psychiatrist or

psychologist, Plaintiff had insurance in April 2011 and was on

the Oregon Health Plan and receiving treatment for gout by the

time of the May 2013 hearing. Tr. 362, 407-09.

In March 2010 Certified Physician’s Assistant (PA)

Kristi Skoog noted redness and swelling in both of Plaintiff's

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feet, diagnosed “acute arthritis, suspect gout,” and prescribed

Indocin. Tr. 368. In February 2011 Neema Reddy, M.D., diagnosed

Plaintiff with gout in his right foot and left ring finger. 

Tr. 363. In September 2011 PA Skoog found redness and warmth in

Plaintiff's left foot and pain with movement of his elbow. 

Tr. 361. Plaintiff reported anti-inflammatories made him ill,

and PA Skoog prescribed Prednisone and Percocet. In January 2012

Certified Physician’s Assistant (PA) Christy Hakala noted extreme

erythema and swelling in Plaintiff’s left hand with decreased

range of motion, diagnosed Plaintiff with acute arthralgias, and

referred Plaintiff to rheumatology. Tr. 448. By June 2012

William A. Hinz, M.D., noted mild erythema and pain to palpation

in Plaintiff’s left foot. Tr. 419. He diagnosed Plaintiff with

gout despite low serum uric acid levels. In July Dr. Hinz

observed mild erythema of the right elbow with slight reduction

in range of motion and found Plaintiff had “a persistent

inflammatory arthropathy concerning for gout versus pseudo-gout

versus an inflammatory arthritis.” Tr. 415. Thus, the medical

record supports Plaintiff's testimony as to his symptoms

attributable to gout or pseudo-gout.

The ALJ noted Plaintiff stopped taking his gout

medication seven months before the hearing and had not been to

the emergency room for gout treatment. Tr. 25. Plaintiff,

however, points to his medical records that indicate anti19 - OPINION AND ORDER

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inflammatory medications caused him to experience nausea. 

Tr. 361. Plaintiff also testified other medications prescribed

for gout either increased his pain or were not effective; for

example, he quit taking Mobic because it caused itching. 

Tr. 52-53, 431. In October 2012 Plaintiff also reported to 

Dr. Hinz that he had stopped taking allopurinol and colchicine

after sudden pain and swelling. Tr. 407. Although the ALJ may

consider an unexplained or an inadequately explained failure to

follow prescribed treatment when determining whether a claimant’s

symptom testimony is credible (see Smolen v. Chater, 80 F.3d

1273, 1284 (9th Cir. 1996)), the ALJ must consider medication

side effects when assessing compliance with treatment. SSR 96-

7p, at *8. Here Plaintiff’s reports of side effects from his

medications are a valid reason for him to have ceased taking

those medications. 

On this record the Court concludes Plaintiff’s failure

to seek earlier treatment for gout does not constitute a clear

and convincing reason to find that Plaintiff's testimony was not

fully credible. 

The ALJ also found Plaintiff's testimony was not

credible because, among other things, Plaintiff does not wear

recommended hearing aids even though he has hearing loss. 

Tr. 24. The Commissioner concedes the ALJ erred when he failed

to consider the fact that Plaintiff actually had a hearing aid

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and needed another one, but insurance would not cover it. 

Tr. 73, 354. Nevertheless, the Commissioner contends the ALJ’s

finding that Plaintiff was not wearing the hearing aids that were

recommended was harmless error because the ALJ articulated other

reasons that were sufficient to support her finding that

Plaintiff’s testimony was not credible such as inconsistency in

Plaintiff’s statements, Plaintiff’s cannabis abuse, driving

without a license, and failure to seek treatment. As noted,

however, the Court has concluded the ALJ’s “other reasons” are

not legally sufficient under the circumstances of this case to

support her finding that Plaintiff’s testimony was not credible.

The Court concludes under the circumstances reflected

in this record that Plaintiff’s failure to follow prescribed

treatment is not a legally sufficient reason to support the ALJ’s

finding that Plaintiff’s testimony was not credible as to his

limitations. 

4. Plaintiff’s Verbal IQ Score 

Plaintiff contends the ALJ erred by failing to consider

his Verbal IQ score of 75. Plaintiff cites to the December 2006

evaluation of Plaintiff by Steve Pethick, Ph.D., to support his

contention. Tr. 385-90. 

Dr. Pethick conducted a clinical interview and

administered the Beck Depression Inventory, the Beck Anxiety

Inventory, the Wechsler Adult Intelligence Scale-Third Edition,

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and the Woodcock Johnson Psycho-Educational Test of AchievementThird Edition. Testing indicated Plaintiff had a Verbal IQ score

of 75, a Performance IQ score of 95, and a Full-scale IQ score of

83. Tr. 387. Dr. Pethick noted

[t]he Full Scale IQ is the aggregate of the

Verbal and Performance scores and is usually

considered to be the most representative 

measure of global intellectual functioning.

However, in Mr. Overman’s case, there is a 

highly significant discrepancy between his 

verbal skills and his nonverbal skills, thus

his Full-scale IQ is not a valid indicator of

his overall ability. The 20-point difference

between Mr. Overman’s Verbal IQ and Performance

IQ is highly significant, with differences of

this magnitude found in only 7% of the population. In cases such as this, it is more 

important to examine the individual sub-scale

scores that comprise each major index score.

Id. (emphasis in original). 

Dr. Pethick concluded Plaintiff “clearly has a more

difficult time with language-based problem solving” and “clearly

has a learning disability related to language-based problem

solving.” Tr. 387-88. Dr. Pethick found Plaintiff’s ability to

solve verbally-based problems and his short-term memory were

within the “borderline” range. He concluded Plaintiff qualified

for worksite accommodations that include, among other things,

extra time to complete tasks; clear, simple, written instructions

for job tasks; the opportunity to ask questions; demonstration of

tasks as verbal instruction is given; and eye contact before

verbal instruction. Tr. 388-90. Dr. Pethick diagnosed Plaintiff

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with Major Depressive Disorder, recurrent, severe; Intermittent

Explosive Disorder; Generalized Anxiety Disorder; and Learning

Disorder NOS with specific limitations in auditory processing and

short-term memory. Tr. 389. 

Plaintiff contends Dr. Pethick’s assessment supports

Plaintiff's testimony that he sometimes “just doesn’t have a

clue” what an employer wants him to do. Tr. 72. The ALJ

accepted Dr. Pethick’s opinions, stating that “[t]he residual

functional capacity assessed in this decision accommodates 

Dr. Pethick’s recommendations.” Tr. 26. In his evaluation of

Plaintiff’s RFC, however, the ALJ did not include Dr. Pethick’s

opinion that Plaintiff required worksite accommodations that

include, among other things, extra time to complete tasks; clear,

simple, written instructions for job tasks; the opportunity to

ask questions; demonstration of tasks as verbal instruction is

given; and eye contact before verbal instruction. Tr. 388-90. 

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

erred when he failed to provide clear and convincing reasons for

finding Plaintiff’s testimony was less than fully credible. 

II. The Medical Evidence

Disability opinions are reserved for the Commissioner. 20

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

arise between medical source opinions, the ALJ generally must

accord greater weight to the opinion of a treating physician than

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

weight is given to the opinion of a treating physician because

the person has a greater opportunity to know and to observe the

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

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

greater weight to the opinion of an examining physician over that

of a reviewing physician. Id. If a treating or examining

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

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

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

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

contradicted by another physician, the ALJ may not reject the

opinion without providing specific and legitimate reasons

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

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

physician by itself is insufficient to constitute substantial

evidence to reject the opinion of a treating or examining

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

physician opinions that are “brief, conclusory, and inadequately

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

1211, 1216 (9th Cir. 2005).

A. Dr. Pethick

As noted, the ALJ states her RFC assessment of Plaintiff

“accommodates Dr. Pethick’s recommendations.” Tr. 26. The

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Commissioner reiterates the ALJ adequately addressed 

Dr. Pethick’s opinion because the ALJ limited Plaintiff to only

occasional contact with supervisors, coworkers, and the public in

a job where excellent hearing is not required, where he is given

instructions verbally and by demonstration, and where he does not

perform production-line work. 

As noted, however, the record reflects Dr. Pethick also

found Plaintiff qualified for accommodations in the worksite that

included extra time to complete tasks; clear, simple, written

instructions; the opportunity to ask questions; the ability to

complete only one task at a time or to break larger tasks into

shorter, more manageable tasks; paired visual and spoken

instruction; and establishment of eye contact before verbal

instruction. Tr. 388-89. None of these limitations, which are

uncontradicted in the medical record, are addressed in the ALJ’s

evaluation of Plaintiff’s RFC assessment nor included in the

ALJ’s hypothetical to the VE. Tr. 23-24, 75-83. 

In any event, the Commissioner asserts the ALJ need 

not include “recommendations” in her RFC findings. Although 

Dr. Pethick’s list of worksite accommodations occurs under the

heading of “Recommendations,” Dr. Pethick explicitly states

Plaintiff “qualifies for the following accommodations” in an

educational setting and in a workplace setting. Tr. 389-90. 

Moreover, Dr. Pethick’s opinions are corroborated by Dr. Scott’s

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opinion as set out below.

 Accordingly, on this record the Court concludes the

ALJ erred when she failed to consider all of the limitations set

out in Dr. Pethick’s opinion, to include those limitations in her

evaluation of Plaintiff’s RFC, and to include those limitations

in her hypothetical to the VE without providing legally

sufficient reasons supported by substantial evidence in the

record for doing so. 

B. Ryan Scott, Ph.D.

In March 2013 Dr. Scott completed a Mental Residual

Functional Capacity form in which he indicated Plaintiff was at

“Category IV” (precludes performance for 15% or more of the 7.5

hour workday) in his ability to accept instructions, to respond

appropriately to criticism from supervisors, and to travel in

unfamiliar places or use public transportation. Tr. 469, 471. 

He indicated Plaintiff was at “Category III” (precludes

performance for 10% of the 7.5 hour workday) in several areas:

the ability to remember locations and work-like procedures; to

understand, to remember, and to carry out short and simple

instructions; to maintain attention and concentration for

extended periods; to perform activities within a schedule, to

maintain regular attendance, and to be punctual within customary

tolerances; to sustain an ordinary routine without special

supervision; to work in coordination with or in proximity to

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others without being distracted by them; to make simple workrelated decisions; to interact appropriately with the general

public; and to get along with coworkers or peers without

distracting them or exhibiting behavioral extremes. Tr. 469-71. 

Dr. Scott concluded within a reasonable degree of medical

certainty that Plaintiff would be unable to perform

independently, appropriately, effectively, and on a sustained

basis for 7.5 hours per day, five days per week in a competitive

work setting. Tr. 472. Moreover, when questioned by Plaintiff’s

counsel at the hearing before the ALJ, the VE testified the

limitations identified by Dr. Scott, specifically the inability

to respond appropriately to criticism from supervisors or accept

instruction, would result in the hypothetical claimant’s

inability to “keep employment.” Tr. 81.

The ALJ noted Dr. Scott’s opinion that Plaintiff has

moderate difficulty in carrying out simple instructions, has

moderate difficulty making simple judgments and work decisions,

and has moderate social limitations. Tr. 26. Although the ALJ

gave some weight to Dr. Scott's opinion, the ALJ found the

limitations set out by Dr. Scott were based on Plaintiff’s

subjective complaints and self-reported anger issues that the ALJ

did not find credible or consistent with Plaintiff's work at 

St. Vincent de Paul or with the medical record as a whole even

though Dr. Pethick’s opinion corroborated Dr. Scott’s opinion. 

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Tr. 27. The ALJ failed to address specifically Dr. Scott’s

Mental Residual Functional Capacity Assessment or the limitations

identified in that Assessment. When questioned by Plaintiff’s

counsel, the VE testified the limitations identified by Dr. Scott

would probably end in termination. Tr. 80-81, 83.

On this record the Court concludes the ALJ erred when she

gave little weight to Dr. Scott’s opinion regarding Plaintiff’s

limitations without providing legally sufficient reasons

supported by substantial evidence in the record for doing so.

 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 1172, 1179 (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

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.

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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 . . . evidence, (2) there are no

outstanding issues that must be resolved before a

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

clear from the record that the ALJ would be required to

find the claimant disabled were such evidence credited.

Id. The reviewing court should decline to credit testimony when

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

(9th Cir. 2010). If the reviewing court finds the conditions of

the “credit-as-true” rule are 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).

The Court has concluded the ALJ erred when she rejected the

opinions of Drs. Pethick and Scott, examining doctors. If

credited, those opinions establish that Plaintiff is disabled

under the credit-as-true doctrine. Thus, the Court concludes

Plaintiff is disabled based on this medical record and that no

useful purpose would be served by a remand of this matter for

further proceedings. See Harman, 211 F.3d at 117.

CONCLUSION

For these reasons, the Court REVERSES the decision of the

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Commissioner and REMANDS this matter to the Commissioner pursuant

to Sentence Four, 42 U.S.C. § 405(g), for the immediate

calculation and payment of benefits to Plaintiff.

IT IS SO ORDERED.

DATED this 6th day of January, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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