PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RUSSELL WITT,

Plaintiff,

v.

CAROLYN W. COLVIN,

Acting Commissioner of Social Security,

Defendant.

Case No. 6:14-cv-01338-SI

OPINION AND ORDER

Kathryn Tassinari and Brent Wells, HARDER, WELLS, BARON & MANNING, P.C., 474 

Willamette, Suite 200, Eugene OR 97401. Attorneys for Plaintiff.

Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States 

Attorney, UNITED STATES ATTORNEYS OFFICE, District of Oregon, 1000 S.W. Third 

Avenue, Suite 600, Portland, OR 97201-2902; Jeffrey E. Staples, 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.

Russell Witt (“Plaintiff”) seeks judicial review of the final decision of the Commissioner 

of the Social Security Administration (“Commissioner”) denying his applications for 

supplemental security income (“SSI”) and disability insurance benefits (“DIB”) under Titles II

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and XIV of the Social Security Act. For the reasons discussed below, the Commissioner’s 

decision is reversed and remanded for further proceedings consistent with this opinion.

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper 

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means 

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

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

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 

(9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 

Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm 

simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 

630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) 

(quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a 

ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

BACKGROUND

A. Plaintiff’s Application

Plaintiff was born on September 28, 1955. AR 180. He dropped out of school in the 8th 

grade and later earned his GED. AR 58, 314. He has past work experience as a sweeper operator, 

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a maintenance worker, a woodworker, and a plumbing apprentice. AR 61. Plaintiff protectively 

filed applications for SSI and DIB on March 18, 2013, alleging disability as of September 28, 

2010 due to Alzheimer’s or dementia, major depressive disorder, osteoarthritis, diabetes mellitus, 

hepatitis C, and neuropathy. AR 180-94. Plaintiff later amended his alleged onset date to 

September 30, 2012. AR 42. Thus, Plaintiff was 57 years old as of his alleged onset date and is 

currently 60 years old. 

Plaintiff’s applications were denied initially and upon reconsideration, and he requested a 

hearing before an ALJ. AR 128-43, 146-47. An administrative hearing was held before ALJ John 

Michaelson on April 18, 2014. AR 37-67. On April 30, 2014, ALJ Michaelson issued a written 

decision denying Plaintiff’s applications. AR 18-36. The Appeals Council denied Plaintiff’s 

subsequent request for review on June 27, 2014, making the ALJ’s decision final. AR 1-13. This 

appeal followed. 

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 (DIB); 20 C.F.R. § 416.920 (SSI); 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 

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or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless 

expected to result in death, an impairment is “severe” if it significantly 

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted 

or must be expected to last for a continuous period of at least 12 months. 

20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe 

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 

416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds beyond step three. At that 

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

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. §§ 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).

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The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

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

After finding that Plaintiff met the insured status requirements of the Social Security Act, 

the ALJ performed the sequential analysis. AR 23. At step one, the ALJ determined that Plaintiff 

had not engaged in substantial gainful activity after September 28, 2010, the original alleged 

disability onset date.1Id. At step two, the ALJ found that Plaintiff has the following severe 

impairments: osteoarthritis, depression, and a history of learning disorder. AR 24. At step three,

the ALJ found that none of Plaintiff’s severe impairments met or equaled any impairment listed 

in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.

The ALJ next assessed Plaintiff’s RFC, and determined that Plaintiff can perform a range 

of medium work with limitations that he can frequently handle, grasp, finger, and feel with his 

right hand; and he can perform only simple, repetitive, routine tasks requiring no more than 

 

1

The ALJ’s opinion does not reference the amended alleged onset date.

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occasional interaction with the general public. AR 26. Proceeding to step four, the ALJ 

concluded that Plaintiff could perform his past work as a maintenance worker. AR 29. The ALJ 

therefore concluded that Plaintiff is not disabled. Id.

DISCUSSION

Plaintiff argues that the ALJ erred by: (A) improperly rejecting Plaintiff’s credibility; 

(B) failing to incorporate standing and walking limitations into the RFC; (C) failing to order a 

consultative examination; (D) improperly evaluating the medical opinion evidence; and (E) 

failing to find Plaintiff’s Alzheimer’s or dementia to be “severe” at step two. Plaintiff also argues 

that the ALJ’s opinion is not supported by substantial evidence in the record when new evidence 

submitted to the Appeals Council after the ALJ’s decision is considered. For the reasons 

discussed below, the ALJ’s decision is reversed and remanded for further proceedings consistent 

with this opinion.

A. Plaintiff’s Credibility

Plaintiff first argues that the ALJ improperly rejected his 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) 

(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). “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, 504 F.3d at 1036 (quotation marks and citation omitted). 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).

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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 v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991)).

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, 1996 WL 374186 (Jul. 2, 1996).

Further, the Ninth Circuit has said that an ALJ “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 

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of treatment.” Smolen, 80 F.3d at 1284. The ALJ may not, however, make a negative credibility 

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

objective medical evidence.” Robbins, 466 F.3d at 883. The ALJ’s credibility decision may be 

upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s testimony are 

upheld. See Batson, 359 F.3d at 1197.

At the administrative hearing, Plaintiff testified that he is unable to work due to pain and 

memory problems. AR 49. He stated that these conditions prevented him from working before 

his amended onset date of September 30, 2012. AR 42, 44, 46. Plaintiff stated that he was

terminated from his job as a sweeper operator in 2013 because he was unable to follow verbal 

instructions. AR 47-48. He stated that although he applied for work after his alleged onset date, 

he could not sustain gainful employment due to memory problems. AR 53-54. He testified to 

numbness and tingling in his feet, and stated that he cannot walk more than one block at a time 

due to back pain, hip pain, and numbness in his feet. AR 54-55.

In 2008, Plaintiff enrolled in vocational school but was unable to complete training 

because of problems with memory, communication, and physical endurance. AR 64-65. He has 

difficulty remembering to perform exercises for physical therapy and keeping up with 

housework. AR 50, 64-65. He needs help and reminders to take medications, turn off the stove or 

oven, and pay bills. AR 53, 66.

The ALJ rejected Plaintiff’s testimony for several reasons. AR 27-28. First, he found that 

Plaintiff’s allegations of disabling limitations were not supported by the objective medical 

record. Id. Lack of support from the objective medical record is a relevant factor in “determining 

the severity of the claimant’s pain and disabling effects.” Rollins v. Massanari, 261 F.3d 853, 

857 (9th Cir. 2001). Here, for example, reports based on mental examinations did not support 

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Plaintiff’s allegations that he was unable to work due to depression and issues with memory and 

concentration. See AR 297, 299, 302, 311, 314-18, 352, 354, 357-58, 360-61 (treatment notes 

showing Plaintiff presented as alert and fully oriented; exhibited an appropriate mood and affect; 

was cooperative and showed no overt hostility despite claim of anger management issues; 

demonstrated logical reasoning processes with no conceptual disorganization, flight of ideas, or 

disturbance in thought progression; had intact judgment and insight and explained that he 

benefitted from antidepressant medication). Treating psychiatrist Robert Norvich, M.D. observed

reasonable attention span and focus, and examining physician Alison Prescott, Ph.D. noted that 

Plaintiff could perform several concentration tests. AR 317, 357, 360. The lack of corroborating 

objective evidence of Plaintiff’s allegations of mental limitations, while not a clear and 

convincing reason, provides some weight to the ALJ’s credibility determination. Rollins, 261 

F.3d at 857.

Second, the ALJ noted that Plaintiff’s statements regarding his physical limitations were 

inconsistent with the medical evidence. AR 28. The ALJ may consider “testimony from 

physicians ... concerning the nature, severity, and effect of the symptoms of which [the 

claimant] complains” when assessing credibility. Thomas v. Barnhart, 278 F.3d 947, 958–59 

(9th Cir. 2002). Here, while Plaintiff testified to debilitating diabetic neuropathy, consultative 

examining physician Andrea Marshall, D.O. found Plaintiff’s complaints of numbness and 

sensation in his hands to be inconsistent and random. AR 335. Although Plaintiff complained of 

numbness in his feet that prevented him from walking more than one block, Dr. Marshall 

reported that Plaintiff denied any numbness in his feet or problems with ambulation. AR 332. By 

contrast with Plaintiff’s allegations of debilitating physical limitations, Dr. Marshall noted 

Plaintiff could perform tandem heel-to-toe walk, hop, and squat, exhibited full strength in his 

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lower extremities, and did not require an assistive device. AR 334. The inconsistency between 

Plaintiff’s testimony regarding his debilitating diabetic neuropathy and the objective medical 

evidence provides a clear and convincing reason for rejecting his credibility. Thomas, 278 F.3d 

at 958-59. 

Third, the ALJ found that Plaintiff’s symptoms for diabetes improved with treatment. 

AR 27. Impairments that can be controlled with medication are not disabling. Warre v. Comm’r, 

439 F.3d 1001, 1006 (9th Cir. 2006). An April, 2013 treatment note reveals that Plaintiff was 

“feeling much better,” “more stable,” and “clear headed” on his diabetes medication. AR 296.

Plaintiff also reported to a treatment provider that his depression medication “worked well.” Id. 

Plaintiff’s positive response to treatment for his allegedly disabling conditions provides 

additional weight to the ALJ’s credibility finding. Ware, 439 F.3d at 1006. Although Plaintiff 

provides an alternative interpretation of this evidence, the ALJ’s reasoning is rational and must 

therefore be upheld. Burch, 400 F.3d at 679.

Fourth, the ALJ found that Plaintiff’s daily activities undermined his credibility as to the 

severity of his limitations. AR 27, 29. Evidence of an active lifestyle can undermine a disability 

claimant’s credibility, Bray, 554 F.3d at 1226-27, and daily activities that are inconsistent with 

alleged symptoms are a relevant credibility consideration. Rollins, 261 F.3d at 857. Although 

Plaintiff testified that he could not walk more than one block due to pain and physical limitations

(AR 54-55), the record shows that Plaintiff was able to operate a 30-pound backpack blower 

in 2013, build a small shed, regularly walk to the library, manage his personal care, and perform 

chores around his house. AR 56-57, 258-59, 316. Further, while Plaintiff testified that his 

concentration and memory limitations prevented him from working, he was able to focus 

sufficiently to upgrade his computer using spare parts and build a shed. AR 44-45, 51, 316. 

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Dr. Marshall also noted that Plaintiff was independent in his activities of daily living. AR 333. 

On this record, it was reasonable for the ALJ to conclude that Plaintiff had exaggerated his 

physical and mental limitations. Bray, 554 F.3d at 1226-27; Rollins, 261 F.3d at 857. In sum, the 

ALJ’s credibility determination is supported by substantial evidence in the record.

B. Standing and Walking Limitations

Plaintiff next argues that the ALJ failed to incorporate his standing and walking 

limitations into the RFC. The ALJ acknowledged Plaintiff’s complaints of diabetic neuropathy in 

his feet, but credited the opinion of consultative examiner Dr. Marshall, who opined that Plaintiff 

had no walking or standing limitations. AR 28, 334, 336. The record also shows that Plaintiff 

was able to walk to the library and operate a 30-pound backpack blower in 2013. AR 27, 51, 56-

57, 397. Because the ALJ is not required to incorporate limitations into the RFC that are not 

substantiated by the record, on this record the ALJ did not err in failing to incorporate standing 

and walking limitations into the RFC.

C. Failure to Order a Consultative Examination 

Plaintiff also contends that the ALJ erred because he failed to order a consultative 

neurocognitive examination. Plaintiff points to several treatment notes documenting mental 

difficulties. First, Janjan Reforma, M.D. recommended a neurocognitive examination after 

observing that Plaintiff had to read notes to communicate and exhibited impaired immediate and 

recent memory. AR 363, 397, 399. Second, a nurse reported concern for Plaintiff’s level of 

confusion and memory difficulty in November 2013. AR 402. Third, Dr. Norvich opined it was 

probable that Plaintiff showed early to middle signs of Alzheimer’s, noting disorientation as to 

the date and cognitive impairment with markedly impaired memory. AR 363. Plaintiff argues 

that the record is therefore ambiguous and contains insufficient evidence regarding Plaintiff’s 

cognitive limitations.

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The ALJ has “broad latitude in ordering a consultative examination.” Reed v. 

Massanari, 270 F.3d 838, 842 (9th Cir. 2001). Here, the record contains a psychological 

examination. AR 314-18. Alison Prescott, Ph.D. administered a psychodiagnostic evaluation on 

May 20, 2013.2Id. Dr. Prescott diagnosed major depressive disorder and reading disorder. Id.

Dr. Norvich also noted Plaintiff retained the mental capacity to sustain a “reasonable” attention 

span and be “fairly focused” on examination. AR 357, 360. The ALJ reviewed the medical 

records, including Dr. Prescott’s report, and incorporated the credible medical evidence into the 

RFC by limiting plaintiff to simple, repetitive, routine tasks with only occasional interactions 

with co-workers and the public. AR 26-28. The record contains sufficient evidence for the ALJ 

to formulate a correct RFC. The ALJ did not abuse his discretion by declining to order further 

consultative examinations. Reed, 270 F.3d at 842. 

D. Medical Opinion Evidence

Plaintiff next argues that the ALJ erred in evaluating the medical evidence in the record. 

The ALJ is responsible for resolving conflicts in the medical record, including conflicts among 

physicians’ opinions. Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth 

Circuit distinguishes between the opinions of three types of physicians: treating physicians, 

examining physicians, and non-examining physicians. The opinions of treating physicians are 

generally accorded greater weight than the opinions of non-treating physicians. Lester v. Chater, 

81 F.3d 821, 830 (9th Cir. 1995). A treating doctor’s opinion that is not contradicted by the 

 

2

In addition to Dr. Prescott’s evaluation, further psychological assessments exist in the 

record and document Plaintiff’s mental symptoms and limitations. See AR 297, 299, 302, 305, 

311, 314-18, 352, 354, 357, 360, 363, 387, and 393. Notes from these examinations reveal 

Plaintiff to be alert and fully oriented, exhibit appropriate mood and affect, be cooperative, show 

no overt hostility, demonstrate logical reasoning processes, and have intact judgment and insight. 

Id.

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opinion of another physician can be rejected only for “clear and convincing” reasons. Baxter v. 

Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991).

If a treating doctor’s opinion is contradicted by the opinion of another physician, the ALJ 

must provide “specific, legitimate reasons” for discrediting the treating doctor’s opinion. Murray 

v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). In addition, the ALJ generally must accord greater 

weight to the opinion of an examining physician than that of a non-examining physician. 

Lester, 81 F.3d at 830. As is the case with the opinion of a treating physician, the ALJ must 

provide “clear and convincing” reasons for rejecting the uncontradicted opinion of an examining 

physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an examining 

physician is contradicted by another physician’s opinion, the ALJ must provide “specific, 

legitimate reasons” for discrediting the examining physician’s opinion. Lester, 81 F.3d at 830. 

Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance on a 

claimant’s discredited subjective complaints, inconsistency with medical records, inconsistency 

with a claimant’s testimony, and inconsistency with a claimant’s daily activities. Tommasetti v. 

Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1039. It is error to ignore an 

examining physician’s medical opinion without providing reasons for doing so. An ALJ 

effectively rejects an opinion when he ignores it. Smolen, 80 F.3d at 1286.

Plaintiff first argues that the ALJ improperly rejected the opinion of treating primary care 

physician Janjan Reforma, M.D, who opined in a March, 2014 letter that Plaintiff is unable to 

work due to his physical and mental impairments. AR 347. The ALJ rejected Dr. Reforma’s 

opinion that Plaintiff was disabled, but acknowledged Dr. Reforma’s opinion that Plaintiff’s 

memory is “poor” and limited Plaintiff’s RFC to simple, repetitive, routine work. AR 29.

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The ALJ is not required to accept a medical opinion on the ultimate issue of disability. 

McLeod v. Astrue, 640 F.3d 881, 884 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1527(d)(3), 

416.927(d)(3). Further, the ALJ need not accept a medical opinion that is “brief, conclusory, or 

inadequately supported by clinical findings.” Bayliss, 427 F.3d at 1216. Dr. Reforma’s 2014 

letter does not articulate symptoms and limitations that compel the conclusion that Plaintiff is 

unable to sustain gainful employment. AR 347. Dr. Reforma’s clinical findings also fail to 

support this conclusion. For example, in contrast with his 2014 diagnosis of dementia and 

depression, Dr. Reforma observed in February 2014 that Plaintiff exhibited normal judgment and 

was in no distress. AR 387. Earlier treatment notes reveal normal judgment, appropriate dress, 

normal eye contact, and normal speech. AR 393, 399. 

The ALJ also noted that Dr. Reforma’s March, 2014 opinion was undermined by 

evidence of Plaintiff’s activities. The ALJ may reject a physician’s opinion if it conflicts with a 

claimant’s activities. Morgan v. Comm’r, 169 F.3d 595, 602 (9th Cir. 1999). The record shows

Plaintiff was able to manage his personal needs, care for his dog, perform household chores, 

shop for groceries, prepare meals, walk to the library, read the newspaper, and perform various 

odd jobs during the relevant period. AR 51, 257-60, 316. Although the ALJ’s conclusion that 

these activities were inconsistent with Dr. Reforma’s opinion that Plaintiff was completely

disabled may be subject to debate, it was rational. AR 29. On this record, the ALJ was not 

required to accept Dr. Reforma’s March, 2014 opinion. Bayliss, 427 F.3d at 1216. The ALJ’s 

rejection of Dr. Reforma’s disability opinion was supported by substantial evidence and is 

affirmed. Morgan, 169 F.3d at 601-02.

Plaintiff also argues that the ALJ failed to discuss the opinion of treating psychiatrist 

Dr. Norvich that it was “quite probable” that Plaintiff was showing early signs of Alzheimer’s, 

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and that his memory was “markedly impaired.” AR 363. Although the ALJ is “not required to 

discuss every piece of evidence” in the record, Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 

1012 (9th Cir. 2003), he or she must explain why “significant probative evidence has been 

rejected.” Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 2003). Here, the 

ALJ cited to Dr. Norvich’s treatment notes in the ALJ’s written opinion, but did not mention

Dr. Norvich by name or specifically address whey Dr. Norvich’s opinion was not being credited. 

AR 28. Dr. Norvich’s opinion was contradicted by Dr. Prescott’s more moderate assessments of 

Plaintiff’s mental limitations (AR 314-19), thus the ALJ was required to provide specific, 

legitimate reasons for rejecting Dr. Norvich’s controverted opinion. Lester, 81 F.3d at 830. The 

ALJ did not do so. Because he failed to provide a legally sufficient reason for rejecting 

Dr. Norvich’s assessment of marked impairments in memory, the ALJ committed harmful error. 

Howard, 341 F.3d at 1012; Vincent, 739 F.2d at 1394-95. This case is therefore reversed and 

remanded for the ALJ to consider the assessment of Dr. Norvich. 

E. Step Two Findings—Alzheimer’s and Dementia

Plaintiff also argues that the ALJ erred by failing to find Plaintiff’s Alzheimer’s and 

dementia “severe” at step two of the sequential evaluations, causing further error at step four. At 

step two, the ALJ determines whether the claimant has a medically severe impairment or 

combination of impairments; step two findings must be based upon medical evidence. 20 C.F.R. 

§ 404.1520(a). An impairment is “not severe” if it “does not significantly limit [the claimant’s] 

ability to do basic work activities.” Id. “Omissions at step two are harmless if the ALJ’s 

subsequent evaluation considered the effect of the impairment omitted at step two.” Harrison v. 

Astrue, 2011 WL 2619504, *7 (D. Or. July 1, 2011) (citing Lewis v. Astrue, 498 F.3d 909, 911 

(9th Cir. 2007)).

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PAGE 16 – OPINION AND ORDER

To the extent that Plaintiff argues that the ALJ committed harmful error by omitting 

marked mental limitations in the RFC, the success of such an argument depends on the weight 

given to Dr. Norvich’s assessment of marked mental limitations. Because the ALJ did not 

properly discount Dr. Norvich’s assessment of marked mental limitations, and the ALJ did not 

properly address such limitations in the RFC, the ALJ’s treatment of Plaintiff’s mental 

limitations in the RFC is not supported by substantial evidence in the record. On remand, the 

ALJ should consider all the evidence regarding Plaintiff’s mental limitations and, if necessary, 

address them at Step Two and formulate an alternative RFC. 

F. New Evidence Submitted to the Appeals Council

Plaintiff further argues that a remand is appropriate because of new evidence submitted to 

the Appeals Council, including a 2014 evaluation by Scott Alvord, Psy.D. (Dkt. 16, Ex. A) and a 

subsequent determination of eligibility for benefits from the Social Security Administration 

(Dkt. 16, Ex. B). The Commissioner’s regulations provide that “[i]f new and material evidence is 

submitted, the Appeals Council shall consider the additional evidence only where it relates to the 

period on or before the date of the administrative law judge hearing decision.” 20 C.F.R 

§ 404.970(b). The Ninth Circuit has interpreted this to include medical evaluations made after 

the date of the ALJ’s decision where they concern the claimant’s condition during the time 

period before the ALJ’s decision. See Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 

1232 (9th Cir. 2011). Newly submitted records are, however, immaterial to a claimant’s 

application for benefits if they pertain to a period after the date of the ALJ’s decision. Carlson ex 

rel. Carlson v. Astrue, No. 09-6344, 2010 WL 5071234 at *3 (D. Or. Dec. 7, 2010) (new 

evidence was not material because the records pertained to plaintiff's functioning one year after 

the ALJ’s decision). 

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Here, the Social Security Administration’s determination that Plaintiff was eligible for 

benefits was explicitly based on medical records from August to December, 2014. Dkt. 16, Ex. B 

at 1. Thus, this determination relates to Plaintiff’s condition after the date of the ALJ’s opinion. 

Similarly, the newly submitted records from Dr. Alvord were rendered nearly a year and a half 

after the ALJ issued his written decision and a review of Dr. Alvord’s evaluation shows that he

did not offer a functional assessment of Plaintiff’s condition on or before the ALJ’s decision 

date. Accordingly, Dr. Alvords’ findings do not pertain to the period under review. Therefore, 

the new evidence submitted to the Appeals Council does not provide ground for reversal. 

Carlson, 2010 WL 5071234 at *3.

G. Remand

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. 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 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).

[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 

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PAGE 18 – OPINION AND ORDER

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.

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, 1141-42 (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”).

Here, further development of the record is necessary to support a finding of disability. On 

remand, the ALJ should be given the opportunity to address the medical evidence relating to 

Plaintiff’s mental limitations, formulate a revised RFC as needed that includes Plaintiff’s mental 

limitations, and, if necessary, take new testimony from a vocational expert regarding Plaintiff’s 

capacity to perform jobs that exist in the national economy. The case is therefore reversed and 

remanded for further proceedings consistent with this opinion. Garrison, 759 F.3d at 1020.

CONCLUSION

The Commissioner’s decision that Plaintiff is not disabled is REVERSED and 

REMANDED for further proceedings consistent with this Opinion and Order. 

IT IS SO ORDERED.

DATED this 11th day of April, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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