IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LAUREL ROXANNE JONES, 3:15-CV-00230-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

NANCY J. MESEROW

7540 S.W. 51st Ave.

Portland, OR 97219

(503) 560-6788 

Attorney for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

 - OPINION AND ORDER 1

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 1 of 18
DAVID MORADO

Regional Chief Counsel

MARTHA A. BODEN 

Special Assistant United States Attorney

Social Security Administration

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

Seattle, WA 98104

(206) 615-3710

Attorneys for Defendant

BROWN, Judge.

Plaintiff Laurel Roxanne Jones seeks judicial review of a

final decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's applications

for Supplemental Security Income (SSI) and Disability Insurance

Benefits (DIB) under Titles XVI and II of the Social Security

Act. 

This matter is now before the Court on Plaintiff’s Complaint

in which she seeks review of the Commissioner’s decision and the

Commissioner's Motion to Remand (#18) for further administrative

proceedings on the ground that the Administrative Law Judge (ALJ)

erred at Step Four. 

Following a review of the record, the Court REVERSES the

Commissioner's decision, DENIES the Commissioner's Motion to

Remand for further administrative proceedings, and REMANDS this

matter pursuant to sentence four of 42 U.S.C. § 405(g) for the

immediate calculation and award of benefits.

 - OPINION AND ORDER 2

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 2 of 18
ADMINISTRATIVE HISTORY

Plaintiff filed her applications for DIB and SSI on 

January 3, 2012. Tr. 232.1 Plaintiff alleged a disability onset

date of October 1, 2010. Her applications were denied initially

and on reconsideration. An ALJ held a hearing on October 31,

2013. Tr. 30-67. At the hearing Plaintiff and a vocational

expert (VE) testified. Plaintiff was represented by an attorney. 

On November 13, 2013, the ALJ issued an opinion in which he 

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 9-29. On December 22, 2014, that decision

became the final decision of the Commissioner when the Appeals

Council denied Plaintiff's request for review. Tr. 1-6. See

Sims v. Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND

Plaintiff was born on March 29, 1951. Tr. 233. Plaintiff

was 52 years old at the time of the hearing. Plaintiff has a

Masters Degree in Material Science and Engineering and a Masters

Degree in Electrical Engineering. Tr. 34-35. Plaintiff has past

relevant work experience as a Research Assistant. Tr. 24.

Plaintiff alleges disability due to Achondroplasia Dwarfism,

hearing loss, back pain, post-traumatic stress disorder (PTSD),

1 Citations to the official transcript of record filed by the

Commissioner on June 29, 2015, are referred to as "Tr."

 - OPINION AND ORDER 3

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 3 of 18
spinal lordosis and stenosis associated with dwarfism, loss of

balance, “lax ligaments in the knee and hip joints,” obesity, and

a rotator cuff injury. Tr. 235. 

Except when 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. 20-21.

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 her

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

 - OPINION AND ORDER 4

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 4 of 18
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.

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). 

 - OPINION AND ORDER 5

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 5 of 18
DISABILITY ANALYSIS

I. 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

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

 - OPINION AND ORDER 6

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 6 of 18
regular and continuing basis despite her 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 she 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

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),

 - OPINION AND ORDER 7

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 7 of 18
416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff had not engaged in

substantial gainful activity since her October 1, 2010, alleged

onset date. Tr. 14.

At Step Two the ALJ found Plaintiff has the severe

impairments of arthropathies, obesity, and an anxiety disorder. 

Tr. 15. The ALJ found Plaintiff’s impairments of Achondroplasia

Dwarfism, hearing loss, and chronic cough to be nonsevere. 

Tr. 15. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, appendix

1. Tr. 16. The ALJ found Plaintiff has the RFC to perform

sedentary work. Tr. 18. The ALJ found Plaintiff can frequently

lift and/or carry less than ten pounds and occasionally lift

and/or carry ten pounds. Tr. 18. The ALJ also found Plaintiff

can stand and/or walk for six hours in an eight-hour work day and

can sit for six hours in an eight-hour work day with “the option

to sit and [to] stand alternatively.” Tr. 18. The ALJ found

Plaintiff can occasionally stoop, kneel, crouch, crawl, and 

 - OPINION AND ORDER 8

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 8 of 18
perform bilateral lifting. Tr. 18. The ALJ also found Plaintiff

must avoid concentrated exposure to heights and machinery, and

she can work in “a quiet office environment.” 

Tr. 18-19. 

At Step Four the ALJ concluded Plaintiff could perform her

past relevant work as a research assistant. Tr. 24. 

Accordingly, the ALJ found Plaintiff is not disabled. 

DISCUSSION

Plaintiff contends the ALJ erred (1) at Step Two when he

failed to find Plaintiff’s impairments of sleep apnea, hearing

loss, PTSD, and dwarfism were severe conditions; (2) when he

failed to adequately evaluate the medical opinions of reviewing

psychologists Dorothy Anderson, Ph.D., and Luahna Ude, Ph.D.; 

(3) when he failed to adequately evaluate the medical opinion of

reviewing physician K. McAuliffe, M.D.; (4) when he failed to

adequately evaluate the opinion of examining physician Heather

Mikes, D.O.; (5) when he failed to adequately evaluate the

opinion of examining psychologist Molly McKenna, Ph.D.; 

(6) when he improperly failed to address the lay-witness

statement of Noah Mickens; (7) when he failed to include all of

Plaintiff’s impairments in his assessment of Plaintiff’s RFC; and

(8) when he improperly posed hypotheticals to the VE that did not

include all of Plaintiff’s impairments. 

 - OPINION AND ORDER 9

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 9 of 18
In her Motion to Remand the Commissioner concedes the ALJ

failed to evaluate adequately the medical opinions of 

Drs. Anderson and Mikes; improperly failed to address the

opinions of Drs. Ude, McAuliffe, and McKenna; and improperly

failed to address Mikens’s lay-witness statement. Thus, the

Commissioner moves the Court to remand this matter for further

proceedings.

I. The ALJ erred when he failed to include limitations

identified in the opinions of Drs. Mikes and Anderson in

Plaintiff’s RFC and failed to address the opinions of 

Drs. Ude, McAuliffe, and McKenna.

An ALJ may reject an examining or treating physician's

opinion when it is inconsistent with the opinions of other

treating or examining physicians if the ALJ makes "findings

setting forth specific, legitimate reasons for doing so that are

based on substantial evidence in the record." Thomas, 278 F.3d

at 957 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

1989)). When the medical opinion of an examining or treating

physician is uncontroverted, however, the ALJ must give "clear

and convincing reasons" for rejecting it. Thomas, 278 F.3d at

957. See also Lester v. Chater, 81 F.3d 821, 830-32. 

A nonexamining physician is one who neither examines nor

treats the claimant. Lester, 81 F.3d at 830. "The opinion of a

nonexamining physician cannot by itself constitute substantial

evidence that justifies the rejection of the opinion of either an

 - OPINION AND ORDER 10

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 10 of 18
examining physician or a treating physician." Id. at 831. When

a nonexamining physician's opinion contradicts an examining

physician's opinion and the ALJ gives greater weight to the

nonexamining physician's opinion, the ALJ must articulate his

reasons for doing so. See, e.g., Morgan v. Comm'r of Soc. Sec.

Admin, 169 F.3d 595, 600-01 (9th Cir. 1999). A nonexamining

physician's opinion can constitute substantial evidence if it is

supported by other evidence in the record. Id. at 600. 

A. Dr. Mikes

In March 2012 Dr. Mikes conducted a consultative

examination of Plaintiff and assessed her with Achondroplasia

Dwarfism, obesity, and decreased range of motion in the left

shoulder due to a remote injury. Tr. 347. Dr. Mikes noted

Plaintiff’s “compensation for short stature is starting to wear

[her] down given demonstrated decreased range of motion of her

joints, obesity, and symptoms of arthritis.” Tr. 347. Dr. Mikes

opined Plaintiff’s maximum sitting capacity was less than two

hours 

based on the awkwardness and degree of discomfort

appreciated even within our limited time together

this morning. It is possible with more

ergonomically appropriate furniture that supports

the claimant’s body stature that she . . . could

be able to tolerate sitting for longer periods of

time.

Tr. 347-48.

The ALJ gave “great weight” to Dr. Mikes’s opinion

 - OPINION AND ORDER 11

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 11 of 18
because it was “based on a thorough face-to-face examination and

. . . consistent with the objective medical evidence.” Tr. 20. 

Nevertheless, in his assessment of Plaintiff’s RFC the ALJ did

not consider Dr. Mikes’s opinion that Plaintiff is limited to

sitting for less than two hours. Instead the ALJ found Plaintiff

could sit for six hours in an eight-hour work day with the option

to sit and to stand. In addition, the VE opined Plaintiff was

capable of performing her past relevant work as a research

assistant both as that job is generally and actually performed

based on Plaintiff’s RFC as set out by the ALJ. The research

assistant job, however, is classified as sedentary, and,

therefore, it requires “prolonged sitting.” 20 C.F.R. 

§§ 404.1567(a), 416.967(a). See also SSR 83-12. The research

assistant job, therefore, appears to be incompatible with the

sitting limitation identified by Dr. Mikes.

On this record the Court concludes and Defendant

concedes the ALJ erred when he gave great weight to Dr. Mikes’s

March 2012 opinion but, nevertheless, failed to include

Plaintiff’s sitting limitation in Plaintiff’s RFC.

B. Dr. Anderson

In May 2012 Dr. Anderson completed a Mental Residual

Functional Capacity assessment of Plaintiff after reviewing the

medical record and opined in pertinent part that Plaintiff was

moderately limited in social functioning due to anxiety

 - OPINION AND ORDER 12

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 12 of 18
disorders. Tr. 118. Dr. Anderson noted Plaintiff “will not be

able to manage frequent public contact or contact with coworkers

that requires ongoing close cooperation or coordination of

effort. She will require a supervisor who will be understanding

and help her deal with her interpersonal conflicts on a regular

basis.” Tr. 122. The ALJ gave Dr. Anderson’s opinion “some

weight,” but he did not include in Plaintiff’s RFC assessment the

social restrictions identified by Dr. Anderson. 

On this record the Court concludes and Defendant

concedes the ALJ erred when he gave some weight to Dr. Anderson’s

May 2012 opinion but, nevertheless, failed to include in

Plaintiff's RFC the social restrictions identified by 

Dr. Anderson.

C. Drs. McKenna, McAuliffe, and Ude

The ALJ failed to address the opinions of Drs. McKenna,

McAuliffe, and Ude. 

On March 3, 2012, Dr. McKenna conducted a consultative

psychodiagnostic examination of Plaintiff. Dr. McKenna opined

Plaintiff’s “primary impediments to returning . . . to gainful

employment are . . . interpersonal and related to mild anxiety.” 

Tr. 340. Dr. McKenna noted Plaintiff’s “interpersonal concerns

and the extent to which these problems might interfere with

attention and concentration are likely to restrict her employment

and her success in some types of work environments.” Tr. 340. 

 - OPINION AND ORDER 13

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 13 of 18
In February 2012 Dr. McAuliffe conducted a review of

Plaintiff’s medical records and noted Plaintiff’s prognosis was

“unclear” because she “is at increased risk of orthopedic

problems on the basis of achondroplasia, which would be

exacerbated with inappropriate work environments.” Tr. 359. 

Dr. McAuliffe concluded Plaintiff would need an ergonomic

workstation and adaptive equipment to avoid exacerbation of her

orthopedic problems.

In April 2012 Dr. Ude conducted a review of Plaintiff’s

psychological records and noted Plaintiff has an “impairment in

social functioning. . . . Almost anything done by others in a

work environment is annoying to her and is perceived a[s]

threatening her ability to function.” Tr. 361. Dr. Ude noted

Plaintiff “will need physical accommodations in the workplace to

be able to feel confident, and to work quickly and efficiently.” 

Tr. 361. 

As noted, the ALJ did not address, weigh, or reject the

opinions of Drs. McKenna, McAuliffe, and Ude nor did the ALJ

include in Plaintiff’s RFC the limitations identified by 

Drs. McKenna, McAuliffe, and Ude. On this record the Court finds

and Defendant concedes the ALJ erred when he failed to address or

to weigh the opinions of Drs. McKenna, McAuliffe, and Ude.

II. This matter is remanded for the immediate calculation and 

award of benefits.

The decision whether to remand for further proceedings or

 - OPINION AND ORDER 14

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 14 of 18
for immediate payment of benefits generally turns on the likely

utility of further proceedings. Harman v. Apfel, 211 F.3d 1172,

1179 (9th Cir. 2000). When "the record has been fully developed

and further administrative proceedings would serve no useful

purpose, the district court should remand for an immediate award

of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004). 

The decision whether to remand this case for further

proceedings or for the payment of benefits is a decision within

the discretion of the court. Harman, 211 F.3d 1178.

The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely

utility of further proceedings. Id. at 1179. The court may

"direct an award of benefits where the record has been fully

developed and where further administrative proceedings would

serve no useful purpose." Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman, 211 F.3d at 1178. The

Court should grant an immediate award of benefits 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.

 - OPINION AND ORDER 15

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 15 of 18
Id. The second and third prongs of the test often merge into a

single question: Whether the ALJ would have to award benefits if

the case were remanded for further proceedings. Id. at 1178 n.2.

The Court has determined the ALJ erred when he improperly

failed to include Plaintiff’s sitting limitation contained in 

Dr. Mikes’s opinion, failed to include Plaintiff’s social

limitations contained in Dr. Anderson’s opinion, and failed to

address the opinions of Drs. McKenna, McAuliffe, and Ude. As

noted, the ALJ found Plaintiff is not disabled based in part on a

finding that Plaintiff is capable of standing and/or walking six

hours in an eight-hour work day. Dr. Mikes, however, opined

Plaintiff is able to sit for less than two hours in an eight-hour

work day, and the ALJ purportedly gave “great weight” to 

Dr. Mikes’s opinion. When all of Dr. Mikes’s opinion is given

great weight, however, Plaintiff is not capable of any

combination of sitting, standing, or walking for eight hours in

an eight-hour work day. The VE testified at the October 31,

2013, hearing that an individual who could not sit, stand, or

walk for eight hours in an eight-hour work day could not sustain

competitive employment. Tr. 66. Accordingly, after actually

giving Dr. Mikes’s opinion the weight required by law, the Court

concludes Plaintiff cannot work on a regular and continuing

basis, and, therefore, Plaintiff is disabled. See 20 C.F.R. 

§§ 404.1545(b), 416.945(b)(RFC is ability to work on “regular and

 - OPINION AND ORDER 16

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 16 of 18
continuing basis”). See also SSR 96-8p (“regular and continuing

basis” is “8 hours a day, for 5 days a week, or an equivalent

work schedule”). Thus, even assuming without deciding that

further development of the record is required related to the

opinions of Drs. McKenna, McAuliffe, and Ude, the Court concludes

Plaintiff must be found disabled when Dr. Mikes’s opinion is

given the weight required by law. The Court, therefore,

concludes this matter should not be remanded for further

proceedings. See Schneider v. Comm’r, 223 F.3d 968 (9th Cir.

2000). See also Reddick, 157 F.3d at 729 ("We do not remand this

case for further proceedings because it is clear from the

administrative record that Claimant is entitled to benefits.");

Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989)(if remand

for further proceedings would only delay the receipt of benefits,

judgment for the claimant is appropriate). 

Accordingly, the Court remands this matter for the immediate

calculation and award of benefits to Plaintiff.

CONCLUSION

For these reasons, the Court REVERSES the decision of the

Commissioner, DENIES the Commissioner's Motion (#14) to Remand

for further administrative proceedings, and REMANDS this matter

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

 - OPINION AND ORDER 17

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 17 of 18
calculation and award of benefits.

IT IS SO ORDERED.

DATED this 18th day of April, 2016.

 /s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

 - OPINION AND ORDER 18

Case 3:15-cv-00230-BR Document 20 Filed 04/18/16 Page 18 of 18