IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AMOS L. MCLEMORE, 3:15-cv-00743-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

TIM WILBORN

Wilborn Law Office, P.C.

P.O. Box 370578

Las Vegas, NV 89137

(702) 240-0184

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

DAVID MORADO

Regional Chief Counsel

LISA GOLDOFTAS 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900

Seattle, WA 98104

(206) 615-3858

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:15-cv-00743-BR Document 14 Filed 04/21/16 Page 1 of 17
BROWN, Judge.

Plaintiff Amos L. McLemore seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff’s application

for 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). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter with prejudice.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for SSI on September 1, 2011,

and alleged a disability onset date of January 1, 2008. Tr. 23,

208.1 His application was denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on

November 4, 2013. Tr. 31. At the hearing Plaintiff and a

vocational expert (VE) testified. Plaintiff was represented by

an attorney. 

On November 18, 2013, the ALJ issued an opinion in which she 

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

to benefits. Tr. 23-32. On February 25, 2015, that decision

became the final decision of the Commissioner when the Appeals

1 Citations to the official transcript of record filed by

the Commissioner on July 21, 2015, are referred to as “Tr."”

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Council denied Plaintiff’s request for review. Tr. 1-4. See

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

BACKGROUND

Plaintiff was born on December 23, 1970. Tr. 44, 165. 

Plaintiff was 42 years old at the time of the hearing. Plaintiff

has a high-school equivalency degree. Tr. 44, 223. Plaintiff

has not performed past relevant work. Tr. 30, 65. 

Plaintiff alleges disability due to his “c-spine surgery,”

sciatic nerve pain, and a “slipped” disc in his lower back. 

Tr. 222.

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. 27-30.

STANDARDS

The initial burden of proof rests on the claimant to

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

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

inability “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

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

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

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§ 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.

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

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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

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 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. 

§ 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. 

§ 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

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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 her limitations. 20 C.F.R.

§ 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. § 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. § 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

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forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since his September 1, 2011,

application date. Tr. 25.

At Step Two the ALJ found Plaintiff has the severe

impairments of degenerative disc disease with fusion, anxietyrelated disorder, below-average intellectual functioning, and

attention-deficit hyperactivity disorder. Tr. 25-26. 

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. 26-27. 

In her assessment of Plaintiff’s RFC, the ALJ found

Plaintiff can perform light work as defined in 20 C.F.R. 

§ 416.967(b). The ALJ specified Plaintiff can stand and walk for

six hours in an eight-hour workday, sit for six hours in an

eight-hour workday. The ALJ found Plaintiff can frequently climb

ramps and stairs and can occasionally climb ladders and

scaffolds, stoop, kneel, crouch, and crawl. The ALJ concluded

Plaintiff can understand, remember, and carry out unskilled,

7 - OPINION AND ORDER

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routine and repetitive work that requires only occasional

interaction with supervisors and that does not require a team or

cooperative effort with coworkers. The ALJ also found Plaintiff

cannot perform work that requires “interaction with the general

public as an essential element of the job, but other contact with

the general public is not precluded.” Tr. 27-30.

At Step Four the ALJ concluded Plaintiff does not have any

past relevant work. Tr. 30. 

At Step Five the ALJ concluded Plaintiff is capable of

performing other jobs existing in the national economy as a

housekeeper, electronic assembler, laundry folder, and cannery

worker. Tr. 31-32. Accordingly, the ALJ found Plaintiff is not

disabled.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) discredited

Plaintiff’s testimony without providing legally sufficient

reasons for doing so; (2) discredited the opinion of Keli J.

Dean, Psy.D., without providing legally sufficient reasons for

doing so; (3) failed to find that Plaintiff is disabled at Step

Three based on his intellectual impairments; and (4) concluded

Plaintiff is not disabled based on an assessment of Plaintiff’s

RFC that did not fully account for the limitations identified by

Plaintiff and Dr. Dean.

8 - OPINION AND ORDER

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I. Plaintiff’s Testimony

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

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

or combination of impairments could reasonably be expected to

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

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

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

objective medical evidence of the actual symptoms or their

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

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

App’x 570, 570 (9th Cir. 2012).

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant’s pain testimony only if 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)). General assertions that the claimant’s

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

identify “what testimony is not credible and what evidence

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

F.3d at 834).

At the hearing Plaintiff testified he takes care of his

9 - OPINION AND ORDER

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daughter by cooking simple meals and helping her with homework. 

Tr. 52. Plaintiff stated he began to suffer depression and

anxiety while he was incarcerated, and he has had difficulty

being around large groups of people since that time. Tr. 53-54,

62. Plaintiff reported he cannot stand for extended periods of

time and has difficulty carrying his grandchildren due to his

back pain. Tr. 54. 

In an Adult Function Report dated November 4, 2011,

Plaintiff reported he is limited because of his leg and back

pain. Tr. 244. Plaintiff stated his depression causes sleep

disturbance, and he experiences paranoia and difficulty leaving

the house. Tr. 244, 246, 249. Plaintiff reported on some days

he cannot bend over because of his back and leg pain, which makes

it difficult for him to stand up from a seated position. He also

walks with a cane. Tr. 245, 249. 

In an undated “Disability Report-Appeal” Plaintiff reported

he is “progressively getting worse” and is in “constant pain

daily.” Tr. 252. In addition, Plaintiff stated: “On 12/6/11 my

surgeon Dr. Darrell C. Brett, M.D., P.C., deemed me as permanent

[sic] disabled due to my lumbar spine surgery not working.” 

Tr. 255.

The ALJ discredited Plaintiff’s testimony because Plaintiff

has a poor work history, Plaintiff’s allegations are inconsistent

with his activities of daily living, and records from Dr. Brett

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contradicted Plaintiff’s allegations.

The ALJ is correct that records from Dr. Brett supported the

ALJ’s conclusion that Plaintiff is capable of light work. 

Contrary to Plaintiff’s report that Dr. Brett stated on December

6, 2011, that Plaintiff was “permanent[ly] disabled”, Dr. Brett

noted on that date that Plaintiff “has no objective neurologic

deficit”; “is medically stationary”; and “will have a moderate

permanent partial disability in that he should not lift or carry

more than 25 lbs., perform any repetitive lifting, bending or

stooping, or sit or stand in a stationary position for more than

two consecutive hours.” Tr. 504. Accordingly, on December 6,

2011, Dr. Brett released Plaintiff to perform work consistent

with those limitations. Tr. 502.

Moreover, the ALJ reasonably concluded Plaintiff’s reported

activities (including caring for his daughter, helping with

homework, and successfully taking classes to obtain his GED) were

inconsistent with Plaintiff’s allegations that he had disabling

intellectual impairments and ADHD. Finally, the ALJ reasonably

found Plaintiff’s lack of work history over an extended period of

time suggested “reasons other than medical conditions explain why

the claimant is not working.” Tr. 28, 186.

Accordingly, on this record the Court concludes the ALJ did

not err when she discredited Plaintiff’s testimony because the

ALJ provided legally sufficient reasons for doing so.

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II. Dr. Dean’s Opinion

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. Taylor v. Comm'r of

Soc. Sec., 659 F.3d 1228, 1232 (9th Cir. 2011). When the medical

opinion of an examining or treating physician is uncontroverted,

however, the ALJ must give “clear and convincing reasons” for

rejecting it. Turner v. Comm'r of Soc. Sec., 613 F.3d 821, 830-

31 (9th Cir. 2010)(quoting Lester v. Chater, 81 F.3d 821, 830-31

(9th Cir. 1995)). The opinion of a treating physician is “given

greater weight than the opinions of other physicians.” Kelly v.

Astrue, 471 F. App'x 674, 676 (9th Cir. 2012)(quoting Smolen v.

Chater, 80 F.3d 1273, 1285 (9th Cir. 1996)).

A nonexamining physician is one who neither examines nor

treats the claimant. Lester, 81 F.3d at 830. See also Garrison

v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “The opinion of a

nonexamining physician cannot by itself constitute substantial

evidence that justifies the rejection of the opinion of either an

examining physician or a treating physician.” Taylor, 659 F.3d

at 1233 (quoting Lester, 81 F.3d 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

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opinion, the ALJ must articulate her reasons for doing so with

specific and legitimate reasons supported by substantial

evidence. See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1198 (9th Cir. 2008). “An ALJ may reject a . . . Physician's

opinion if it is based to a large extent on a claimant's selfreports that have been properly discounted as incredible.” 

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)

(internal quotation marks omitted)(citing Morgan v. Comm'r of

Soc. Sec., 169 F.3d 595, 602 (9th Cir. 1995)). See also Andrews

v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)(“[A]n opinion of

disability premised to a large extent upon the claimant's own

accounts of his symptoms and limitations may be disregarded, once

those complaints have themselves been properly discounted.”). 

Dr. Dean conducted a “cognitive and psychological

evaluation” on February 19, 2013, in which she administered

several tests and conducted an interview, but she did not have

Plaintiff’s medical records to review. Tr. 528. Although 

Dr. Dean noted in several instances that Plaintiff’s responses

were unusual and that Plaintiff “may not have answered in a

completely forthright manner” during some tests, Dr. Dean found

Plaintiff had a “low level of cognitive functioning” and that

Plaintiff’s “verbal comprehension abilities, working memory

issues, and impaired processing speed all suggest Amos likely has

difficulty learning new job tasks, following multistep

13 - OPINION AND ORDER

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instructions, and with working at a speed commensurate of that of

his peers.” Tr. 531-41. Dr. Dean also noted Plaintiff’s

“intellectual scores falls [sic] in the range which would qualify

him for a diagnosis of borderline intellectual functioning. His

low intellectual functioning will be a significant barrier to

future training and employment.” Tr. 540.

In a Mental Residual Functional Capacity Report Dr. Dean

opined Plaintiff would be markedly limited in his abilities to

understand and to remember detailed instructions, to carry out

detailed instructions, and to maintain attention and

concentration for extended periods. Tr. 545-46. Dr. Dean also

noted, however, that Plaintiff was not significantly limited in

his abilities to understand, to remember, and to carry out short

and simple instructions; to sustain an ordinary routine without

special supervision; to make simple work-related decisions; and

to interact appropriately with the general public. Tr. 545-46.

 Dr. Dean’s opinion was contradicted by the reviewing

opinion of Joshua J. Boyd, Psy.D. Tr. 87-89. Accordingly, the

ALJ was required to provide specific and legitimate reasons for

discrediting Dr. Dean’s opinion. See Taylor, 659 F.3d at 1232. 

The ALJ gave Dr. Dean’s opinion “limited weight” because her

opinion was inconsistent with the record as to Plaintiff’s

activities of daily living, was inconsistent with Plaintiff’s

past educational and occupational activities, and was based on

14 - OPINION AND ORDER

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Plaintiff’s subjective self-reporting. Tr. 30. The ALJ noted,

however, that Dr. Dean’s assessment was “taken into account in

the RFC, where the claimant is limited to unskilled, routine and

repetitive work and occasional social interactions.” Tr. 30.

The ALJ reasonably rejected the full extent of the mental

limitations outlined in Dr. Dean’s opinion on the basis that her

conclusions as to Plaintiff’s significant intellectual deficits

were inconsistent with Plaintiff’s history of performing

landscaping work during his time in prison, completing his GED,

and maintaining independent activities of daily living. 

Moreover, the record reflects the ALJ correctly found Dr. Dean

relied on Plaintiff’s self-reporting both in an interview and

during some of the testing. Because, as noted, the ALJ provided

legally sufficient reasons for discrediting Plaintiff’s

testimony, the ALJ could also discredit Dr. Dean’s testimony on

this basis. 

Accordingly, on this record the Court concludes the ALJ did

not err when she partially discredited Dr. Dean’s opinion because

the ALJ provided legally sufficient reasons for doing so.

III. Step Three

At Step Three the Commissioner must determine whether a

claimant’s impairments meet or equal one of the listed

impairments and are so severe that they preclude substantial

gainful activity. The claimant is disabled if the Commissioner

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determines the claimant’s impairments meet or equal one of these

requirements. 20 C.F.R. § 416.920(a)(4)(iii). See also Keyser

v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). 

The criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). SSR 96-6p provides in pertinent part:

[L]ongstanding policy requires that the judgment of a

physician (or psychologist) designated by the

Commissioner on the issue of equivalence on the

evidence before the administrative law judge or the

Appeals Council must be received into the record as

expert opinion evidence and given appropriate weight.

In addition, the Ninth Circuit has held generalized

assertions of functional problems are insufficient to establish

that a claimant meets or equals a Listing at Step Three. See,

e.g., Reed-Goss v. Astrue, 291 F. App’x 100, 101 (9th Cir.

2008)(“‘To meet a listed impairment, a claimant must establish

that he or she meets each characteristic of a listed impairment

relevant to his or her claim.’” (quoting Tackett v. Apfel, 180

F.3d 1094, 1099 (9th Cir. 1999)). 

Plaintiff contends Dr. Dean’s assessment of Plaintiff’s

intellectual functioning demonstrates Plaintiff meets or equals

the criteria of Listing 12.05C. As noted, however, the ALJ

appropriately discredited Dr. Dean’s findings regarding

Plaintiff’s intellectual functioning. Dr. Dean’s opinion,

therefore, could not provide the basis for a Step Three finding

that Plaintiff is disabled.

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Accordingly, on this record the Court concludes the ALJ did

not err at Step Three.

IV. RFC Error

Finally, Plaintiff contends the ALJ erred in her evaluation

of Plaintiff’s RFC because the ALJ failed to account for all of

the limitations contained in Plaintiff’s testimony and the

opinion of Dr. Dean. Because the Court concludes the ALJ did not

err when she discredited the testimony of Plaintiff and Dr. Dean,

however, the ALJ did not err when she formulated her evaluation

of Plaintiff’s RFC without including the full extent of

limitations that were part of that testimony.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter with prejudice.

IT IS SO ORDERED.

DATED this 21st day of April, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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