IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JENNIFER L. PHELPS, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

RUSSO, Magistrate Judge: 

Case No. 3:15-cv-00994-JR 

OPINION AND ORDER 

Plaintiff Jennifer Phelps brings this action for judicial review of the final decision of the 

Commissioner of Social Security ("Commissioner") denying her application for Title XVI Social 

Security Income ("SSI") under the Social Security Act ("Act"). All parties have consented to 

allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed. R. 

Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision 

is reversed and this case is remanded for further proceedings. 

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PROCEDURAL BACKGROUND 

On January 23, 2012, plaintiff applied for SSL Tr. 146-54. Her application was denied 

initially and upon reconsideration. Tr. 85, 91-93. On November 21, 2013, a hearing was held 

before an Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and 

testified, as did a vocational expert ("VE"). Tr. 26-53. On February 21, 2014, the ALJ issued a 

decision finding plaintiff not disabled within the meaning of the Act. Tr. 12-21. After the 

Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-3. 

STATEMENT OF FACTS 

Born on June 22, 1988, plaintiff was 23 years old on the amended alleged onset date of 

disability' and 25 years old at the time of the hearing. Tr. 28-29, 146. Plaintiff left high school 

during the twelfth grade but later joined the Job Corps and obtained her GED; she also attended, 

but did not complete, two terms of community college. Tr. 29-31. She worked previously as a 

caregiver. Tr. 32, 34, 168. Plaintiff alleges disability as of January 23, 2012, due to bipolar 

disorder, auditory learning disorder, and anxiety. Tr. 28, 167. 

STANDARD OF REVIEW 

The 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. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted). The court must weigh "both the evidence that supports and detracts from the 

1 Plaintiff initially alleged disability as of November 1, 2002, but amended her alleged onset date 

at the hearing to conform to the application date. Tr. 28, 146. 

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Case 3:15-cv-00994-JR Document 29 Filed 06/28/16 Page 2 of 9
[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is 

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

The initial burden of proof rests upon the claimant to establish disability. Howard v. 

Heckler, 782 F .2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must 

demonstrate an "inability to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected ... to last for a continuous 

period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). 

The Commissioner has established a five step sequential process for determining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First, 

the Commissioner determines whether a claimant is engaged in "substantial gainful activity." 

Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). If so, the claimant is not disabled. 

At step two, the Commissioner evaluates whether the claimant has a "medically severe 

impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 

416.920(c). If the claimant does not have a severe impairment, she is not disabled. 

At step three, the Commissioner determines whether the claimant's impairments, either 

singly or in combination, meet or equal "one of a number of listed impairments that the 

[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 

482 U.S. at 140-41; 20 C.F.R. § 416.920(d). If so, the claimant is presumptively disabled; if not, 

the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

At step four, the Commissioner resolves whether the claimant can still perform "past 

relevant work." 20 C.F.R. § 416.920(£). If the claimant can work, she is not disabled; if she 

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cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the 

Commissioner must establish that the claimant can perform other work existing in significant 

numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 416.920(g). 

If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.966. 

THE ALJ'S FINDINGS 

At step one of the five step sequential evaluation process outlined above, the ALJ found 

that plaintiff had not engaged in substantial gainful activity since the amended alleged onset date. 

Tr. 14. At step two, the ALJ determined plaintiff's bipolar disorder, anxiety, and learning 

disorder were severe impairments. Id. At step three, the ALJ found plaintiff's impairments, either 

singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 15. 

Because she did not establish presumptive disability at step three, the ALJ continued to 

evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff 

had the residual functional capacity ("RFC") to perform a full range of work at all exertional 

levels but with the following non-exertional limitations: "understanding and remember[ing] 1-2 

step instructions," "perform[ing] minimal reading and writing," "brief superficial public 

interaction," and "work[ing] in a small work setting with occasional co-worker interaction." Tr. 

16. 

At step four, the ALJ determined plaintiff had no past relevant work. Tr. 19. At step five, 

the ALJ concluded, based on the VE's testimony, there were a significant number of jobs in the 

national and local economy that plaintiff could perform despite her impairments, such as hand 

packager, basket filler, and laundry sorter. Tr. 19-20. 

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DISCUSSION 

Plaintiff argues that the ALJ erred by: (1) discrediting her subjective symptom 

statements; (2) rejecting the lay testimony of her mother, Mary Prindiville; (3) affording less 

weight to opinion evidence from treating doctor Robert Vandiver, M.D., and examini~g doctor 

Emil Slatick, Ph.D.; and ( 4) failing to include all of her limitations in the RFC, such that the 

VE's testimony was invalid. 

The Commissioner concedes that reversal of the ALJ' s decision is warranted. Def.' s 

Resp. Br. 1-2. Specifically, the Commissioner acknowledges that the ALJ committed harmful 

legal error by "misread[ing]" Dr. Vandiver' s opinion. Id. at 6. Thus, the sole issue on review is 

whether this case should be remanded for further proceedings or for the payment of benefits. 

The decision whether to remand for further proceedings or for the immediate payment of 

benefits lies within the discretion of the court. Harman v. Apfel, 211 F .3d 11 72, 117 6-78 (9th 

Cir.), cert. denied, 531 U.S. 1038 (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 of the Soc. Sec. 

Admin., 635 F.3d 1135, 1138-39 (9th Cir. 2011) (citation omitted). The court may not award 

benefits "unless [the record demonstrates that] the claimant is, in fact, disabled." Id. at 1138. 

Pursuant to the discretionary credit-as-true doctrine, evidence should be credited and an 

immediate award of benefits directed where: (1) the ALJ 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 

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required to find the claimant disabled were such evidence credited. Id.; Connett v. Barnhart, 340 

F.3d 871, 876 (9th Cir. 2003). 

Here, plaintiff contends that remand for the immediate payment of benefits is proper 

based on the VE's testimony, which indicated a hypothetical individual that was unable to 

remain productive in the workplace for at least 85% of the time or could not sustain simple, 

routine tasks without supervision was not competitively employable. Pl.'s Opening Br. 19-20 

(citing Tr. 52-53); Pl.'s Reply Br. 8. Conversely, the Commissioner asserts that remand for 

further proceedings is required because the record is ambiguous in light of plaintiffs activities of 

daily living. Def.' s Resp. Br. 10-14. 

Initially, the Court need not resolve whether the ALJ improperly rejected the medical 

opinion of Dr. Slatick because, even if credited as true, it is not clear based on this evidence that 

the ALJ would be required to find plaintiff disabled. This is because Dr. Slatick's report did not 

contain any concrete functional restrictions. Tr. 276-86. Rather, Dr. Slatick's one-time 

examination - which assessed plaintiff with a full scale IQ in the low-average range, with 

memory abilities largely commensurate with intellectual functioning - resulted in certain 

diagnoses and a narrative summary containing a number of "recommendations ... that can be 

helpful for individuals with difficulties similar to [plaintiff's]." Tr. 284-85; see also Valentine v. 

Comm'r Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009) (recommendations or 

suggestions from medical providers are not work-related limitations of function that must be 

reflected in the RFC); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 

1999) (ALJ can disregard a medical report that does "not show how [a claimant's] symptoms 

translate into specific functional deficits which preclude work activity"). 

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Likewise, it is not clear from Dr. Vandiver' s opinion that plaintiff is disabled. 

Significantly, all the work-related limitations of function outlined in Dr. Vandiver's report are 

phrased equivocally. See Tr. 372 ("I suspect [plaintiff] would insist upon absences from any job 

and would require a lot of time and attention in order to succeed. Perhaps if she was in a 

sheltered workshop she might be successful but anything resembling an actual employment 

environment would probably be met with failure"); see also Glosenger v. Comm'r of Soc. Sec. 

Admin., 2014 WL 1513995, *6 (D. Or. Apr. 16, 2014) (ALJ need not accept a doctor's opinion 

that uses "speculative (or] equivocal language ('might do better' and 'would also likely 

require')"). In addition, plaintiff did not receive any counseling and the remainder of her relevant 

treatment consisted of visiting her primary care doctor, typically every three months, for 

medication management; during these visits, plaintiff frequently denied the existence of any 

psychiatric symptoms. Tr. 35, 260-69, 316, 320-29, 365-71. As a result, although her treating 

providers noted her "reluctant" or "passive" affect, they nonetheless described plaintiff as "doing 

well" on her current medication and consistently assigned her a global assessment of functioning 

("GAF") score of 60, reflecting mild to moderate symptoms.2 Tr. Tr. 260-69, 320-29, 365-70; 

Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). 

Finally, the ALJ did not err to the extent he did not fully credit the testimony of plaintiff 

and Ms. Prindiville. As the ALJ noted, plaintiffs activities of daily living are inconsistent with 

her and her mother's claims that she "could not work primarily because of mental limitations." 

2 The only other GAF score in the record was assessed by Dr. Slatick and is at odds with Dr. 

Vandiver's coterminous chart notes. Compare Tr. 285 (Dr. Slatick assigning plaintiff a GAF of 

45 in December 2011), with Tr. 260 (plaintiff reporting "[n]o complaints" and that "(t]hings are 

okay" in January 2012), 261 (plaintiff remarking that "[e]verthing is going well," with "[n]o 

complaints," in October 2011). 

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Tr. 17, 19; see also Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (activities may be 

used to discredit a claimant where they either "are transferable to a work setting" or "contradict 

claims of a totally debilitating impairment"); Valentine, 574 F.3d at 694 (ALJ may reject lay 

testimony on the same basis as the claimant's discredited subjective reports). The record before 

the Court demonstrates that plaintiff engages in a wide slate of daily activities. Namely, she has 

sole custody of her young daughter,3 with whom she lives independently. Tr. 38-39, 188. 

Tuesday through Friday, from 8:30am to 1 :OOpm, her daughter attends a Head Start program; the 

remainder of the time, plaintiff takes care of and does activities with her daughter, such as 

reading, watching movies, riding bikes, doing crafts, and going to the park. Tr. 39, 189, 192, 200. 

"Occasionally" - i.e., approximately "a couple of times a week" - plaintiff experiences 

symptoms from her mental impairments, such that she will "need a break" and "call [her] mom 

[to babysit] for a couple of hours." Tr. 36, 39-40, 189. Nevertheless, plaintiff reported that being 

a parent caused her depression to improve. Tr. 38. Plaintiff is also independent in her self-care, 

manages her own funds, occasionally talks on the phone or texts with friends, drives her mother 

to work two to four times per week, shops, cleans her house and shops weekly, prepares several 

meals daily, and attends her daughter's family nights and field trips.4 Tr. 40, 45-47, 189-92, 198-

99. 

3 Plaintiffs daughter was four years old at the time of the hearing. Tr. 38. 

4 Plaintiffs hearing testimony was often imprecise. See, e.g., Tr. 30, 42 (plaintiff "honestly can't 

remember" what her symptoms were like prior to treatment or what prevented her from 

performing her previous caregivingjob); see also Coaty v. Colvin, 2015 WL 1137189, *3 (D. Or. 

Mar. 11, 2015) ("an adverse credibility finding is a determination that a claimant's testimony is 

not reliable, as opposed to dishonest") (citations omitted). Nevertheless, this evidence belies 

plaintiffs implication that her depression prevented her from maintaining a schedule or leaving 

the house to complete necessary activities. Tr. 30-33. 

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Accordingly, the VE's testimony is not dispositive in the case at bar. See Osenbrock v. 

Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (dispositive hypothetical questions posed to the 

VE must only include limitations that are supported by substantial evidence); see also Pl.' s 

Opening Br. 19 (plaintiff recognizing that the VE was "not asked to address [the] specific work 

limitations [identified by Dr. Slatick]"). Moreover, there is a dearth of medical evidence 

concerning plaintiff's psychological functioning; as noted above, plaintiff did not obtain 

treatment, other than medication management, for her underlying mental impairments and, 

perhaps as a result of those impairments, generally failed to endorse the existence of psychiatric 

symptoms. See, e.g., Tr. 283 (Dr. Slatick noting that plaintiff's personality traits and 

psychopathology may result in "an underestimation of [her] psychological issues"). Given these 

circumstances, the Court finds that testimony from a medical expert ("ME") is appropriate. 

Therefore, this case is remanded for further proceedings. Upon remand, the ALJ must 

consult an ME to define any functional limitations associated with plaintiff's mental impairments 

and, if necessary, reformulate plaintiff's RFC and obtain additional VE testimony. 

CONCLUSION 

For the reasons stated above, the Commissioner's decision is REVERSED and 

REMANDED for further proceedings consistent with this opinion. 

IT IS SO ORDERED. 

"'G-iJ\.. DATED this~ day of June 2016. 

J11Wb~v 

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