PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JEFFREY JAYE BARNES,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Case No. 3:15-cv-01424-SI

OPINION AND ORDER

Merrill Schneider, Schneider Kerr Law Offices, P.O. Box 14490, Portland, OR 97293. Attorney 

for Plaintiff.

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

Attorney, UNITED STATES ATTORNEY’S OFFICE, District of Oregon, 1000 S.W. Third Avenue, 

Suite 600, Portland, OR 97201-2902; Erin F. Highland, Special Assistant United States Attorney,

OFFICE OF THE GENERAL COUNSEL COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth 

Avenue, Suite 2900 M/S 221A, Seattle, WA 98104-7075. Attorneys for Defendant.

Michael H. Simon, District Judge.

Mr. Jeffrey Barnes (“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 

Case 3:15-cv-01424-SI Document 18 Filed 08/12/16 Page 1 of 12
PAGE 2 – OPINION AND ORDER

Titles II and XIV of the Social Security Act. For the reasons discussed below, the 

Commissioner’s decision is AFFIRMED.

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 in 1966. AR 541. He speaks English and completed the twelfth grade. 

AR 246. He has past work experience as a machinist and a manufacturing technician. AR 237. 

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Plaintiff protectively filed applications for SSI and DIB on March 5, 2012, alleging disability as

of May 11, 2011, due to chronic obstructive pulmonary disease (“COPD”) and a broken left 

ankle. AR 212-24, 246. 

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

hearing before an ALJ. AR 118-25, 133-37, 139-42. An administrative hearing was held before 

ALJ John Rolph on December 31, 2013. AR 36-69. On January 15, 2014, ALJ Rolph issued a 

written decision denying Plaintiff’s applications. AR 16. The Appeals Council denied Plaintiff’s 

subsequent request for review on June 4, 2015, making the ALJ’s decision final. AR 1. 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 

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.

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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).

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 

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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 18. At step one, the ALJ determined that Plaintiff 

had not engaged in substantial gainful activity after May 11, 2011, the alleged disability onset 

date. Id. At step two, the ALJ found that Plaintiff has the following severe impairments: morbid 

obesity; chronic obstructive pulmonary disease; obstructive sleep apnea with fatigue; left ankle 

or leg problems with edema or pain; status-post surgery; hypertension; depression; anxiety; and 

alcohol abuse. Id. At step three, the ALJ found that none of Plaintiff’s severe impairments met or 

equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 19.

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

of sedentary work with the following limitations:

[h]e may lift and carry 10 pounds occasionally and a negligible 

amount of weight frequently; stand and walk up to 30 minutes at a 

time; for a total of 2 hours in an 8 hour day; sit for 6 hours in an 8 

hour day; must be allowed to sit or stand for 2 to 3 minutes at a 

time at 30 to 45 minute intervals, during which period he may 

remain on task; may occasionally engage in pushing, pulling, and 

foot pedal operations and crawl, but may never climb ladders, 

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ropes or scaffolds; must avoid more than occasional contact with 

extreme cold, vibration, and hazards such as moving machinery 

and unsecured heights; must avoid even moderate exposure to 

irritants such as fumes, odors, dust, gases, chemicals, and poorly 

ventilated spaces; is fully capable of learning, remembering, and 

performing simple and detailed work tasks, which are performed at 

a routine and predictable work pace; and may have occasional 

contact with supervisors, coworkers, and the public.

AR 22.

Proceeding to step four, the ALJ concluded that Plaintiff could not perform any of his

past work. AR 28. At step five, the ALJ found that Plaintiff could perform jobs that exist in 

significant numbers in the national economy, including semi-conductor assembler and 

production clerk. AR 29. The ALJ therefore concluded that Plaintiff is not disabled. AR 29-30.

DISCUSSION

Plaintiff argues that the ALJ erred by: (A) rejecting Plaintiff’s testimony; (B) rejecting 

the lay witness testimony; and (C) failing to make findings regarding transferability of Plaintiff’s 

job skills. For the reasons discussed below, the ALJ’s decision is affirmed.

A. Plaintiff’s Testimony

Plaintiff first argues that the ALJ improperly rejected his testimony regarding his 

subjective symptoms and limitations. There is a two-step process for evaluating a claimant’s 

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 

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reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 

(9th Cir. 1996)

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)).

Effective March 16, 2016, the Commissioner superseded Social Security Rule 

(“SSR”) 96-7p governing the assessment of a claimant’s “credibility” and replaced it with a new 

rule, SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the 

reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination of 

an individual’s character,” and requires the ALJ to consider of all of the evidence in an 

individual’s record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The 

Commissioner recommends that the ALJ examine “the entire case record, including the objective 

medical evidence; an individual’s statements about the intensity, persistence, and limiting effects 

of symptoms; statements and other information provided by medical sources and other persons; 

and any other relevant evidence in the individual’s case record.” Id. at *4. The Commissioner 

recommends assessing: (1) the claimant’s statements made to the Commissioner, medical 

providers, and others regarding the claimant’s location, frequency and duration of symptoms, the 

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impact of the symptoms on daily living activities, factors that precipitate and aggravate 

symptoms, medications and treatments used, and other methods used to alleviate symptoms; 

(2) medical source opinions, statements, and medical reports regarding the claimant’s history, 

treatment, responses to treatment, prior work record, efforts to work, daily activities, and other 

information concerning the intensity, persistence, and limiting effects of an individual’s 

symptoms; and (3) non-medical source statements, considering how consistent those statements 

are with the claimant’s statements about his or her symptoms and other evidence in the file. See 

id. at *6-7. 

The ALJ’s opinion was issued before the Social Security Administration changed the 

rules regarding the assessment of the Plaintiff’s claimed limitations in SSR 16-3p. Because the 

ALJ’s findings in regard to this issue are appropriate even under the new rules, the Court does 

not reach the issue of whether SSR 16-3p applies retroactively.

Plaintiff broke his left ankle in the late 1990s and underwent four surgeries that failed to 

resolve his ankle impairment. AR 318, 321, 324, 396. At the administrative hearing, Plaintiff

testified that he ceased working primarily due to pain in his left lower extremity. AR 43-44. 541. 

Plaintiff alleges that he suffers from chronic leg pain caused by “any movement,” which prevents 

him from walking long distances, and is alleviated only by lying down and resting. AR 273. He 

states that his leg pain prevents him from standing, sitting, or walking for any length of time, and 

that he is only able to prepare rudimentary meals because he can only stand for 15 minutes at a 

time. AR 267, 274. Plaintiff reported that he is unable to do any household chores or yard work, 

that he does not go out alone, and that he is unable to drive or shop. AR 268. He also reported 

that he can walk only 35 feet before needing to rest. AR 270. 

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The ALJ rejected Plaintiff’s testimony attesting to his limitations for several reasons. 

AR 24, 26. First, the ALJ found that Plaintiff was noncompliant with treatment 

recommendations. AR 24. Unexplained noncompliance with treatment can provide a reason for 

rejecting a claimant’s testimony. Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012); 

Tommasetti v Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Here, although Plaintiff was advised1

to use a CPAP machine and testified that it helped his sleep apnea, he was nevertheless 

noncompliant and appeared to have lost his CPAP machine in July of 2012. AR 636-37, 758. 

Further, Plaintiff was apprised of but did not seek financial assistance to obtain medications. 

AR 745, 748, 754, 764. Finally, although Plaintiff was counseled on the dangers of his alcohol 

use, he failed to comply with his treatment plan to quit drinking and regularly consumed one pint 

to one fifth of vodka daily. AR 547, 553, 558, 580, 641, 645 (treatment note stating Plaintiff “is 

not interested in stopping his consumption of alcohol or ceasing his dependency”). Plaintiff’s 

noncompliance with treatment recommendations provides a clear and convincing reason 

supporting the ALJ’s credibility finding. Tommasetti, 533 F.3d at 1039.

The ALJ also found that Plaintiff’s daily activities undermined the claimed severity of his 

limitations. AR 26. Evidence of an active lifestyle can undermine the credibility of a disability 

claimant’s alleged limitations, Bray, 554 F.3d at 1226-27, and daily activities that are 

inconsistent with alleged symptoms are a relevant credibility consideration. Rollins v. Massanari,

261 F.3d 853, 857 (9th Cir. 2001). Although Plaintiff stated that he is unable to stand longer 

than 15 minutes due to his impairments, treatment notes reveal that he had no difficulty with 

personal care, prepared simple meals and washed dishes daily, did laundry once a week, and 

 

1

The medical evidence indicates that Plaintiff suffers from additional impairments to 

those alleged in his application, including reactive airway disease, sleep apnea, hypertension, 

depression, and anxiety. See AR 349-50, 506-08. 

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regularly went shopping for groceries with his wife. AR 267, 543. The ALJ’s determination that 

plaintiff was less limited than alleged based on this evidence was rational, even though the 

evidence may be susceptible to several rational interpretations. See Burch, 400 F.3d at 679 

(where the evidence is susceptible to more than one rational interpretation, the Commissioner’s 

conclusion must be upheld). It was a rational interpretation of the evidence in the record 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.

Although Plaintiff alleges errors in the ALJ’s credibility determination, 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. Batson, 359 F.3d at 1196-97. Because the ALJ provided legally 

sufficient reasons supported by substantial evidence in the record in his credibility determination, 

it is affirmed.

B. Lay Witness Testimony

Plaintiff next argues that the ALJ erroneously rejected the lay testimony of Plaintiff’s 

relatives, friends, and coworkers. Although the ALJ must provide “germane reasons” for 

rejecting the testimony of lay witnesses, he need not “clearly link his determination to those 

reasons.” Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001); see also Molina, 674 F.3d at

1114.

The record contains lay statements from Plaintiff’s wife (AR 307); friend and former coworker Mike Roberts (AR 274, 309); former coworkers Roger Semenak (AR 304) and Mitchell 

Keppinger (AR 308); and children Justin Barnes (AR 305) and Sarah Barnes (AR 306). The lay 

testimony indicates that Plaintiff has difficulty walking, standing, and sitting due to swelling in 

his leg and difficulty breathing, and is therefore unable to work. AR 274, 304-09. Mr. Roberts 

reported that Plaintiff could walk only 25 feet before having to stop and rest for 10 minutes. 

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AR 274. Plaintiff’s children reported that he coughs and wheezes when he attempts to walk 

quickly, and that he has been to the hospital multiple times. AR 305-06. 

The ALJ considered the lay testimony and assigned it little weight. AR 27-28. The ALJ

found that the limitations alleged in the lay testimony were inconsistent with the medical record. 

Id. Inconsistency with medical evidence is a valid reason to discount lay statements. Bayliss v. 

Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Here, the medical record indicates that Plaintiff 

is not as limited as alleged in the lay testimony in his ability to walk, stand, and sit. For example, 

state agency medical consultant Mary Ann Westfall, M.D., opined that Plaintiff could stand and 

walk for four hours in an eight-hour day and sit for six hours in an eight-hour day. AR 77-78. 

ALJ credited Dr. Westfall’s opinion, providing a germane reason for rejecting the lay testimony. 

AR 27; Bayliss, 427 F.3d at 1218. The ALJ’s evaluation of the lay witness testimony was 

supported by germane reasons and is affirmed.

C. Failure to Consider Transferability of Job Skills

Plaintiff also alleges that the ALJ erred at step five in finding that transferability of job 

skills was not material to this case. The Court rejects this argument. Based on Plaintiff’s age and 

education, the ALJ applied Rules 201.28 and 201.21 and determined that transferability of job 

skills was not material to the determination of disability because the Medical-Vocational Rules 

(“the Grids”) direct a finding of “not disabled” regardless of whether Plaintiff had transferable 

skills. AR 29; see 20 C.F.R. Pt. 404, Subpt.P. App.2 §§ 201.28 and 201.29 (directing a finding of 

not disabled for a “younger individual age 18-44” with a high school education where previous 

work is skilled—skills not transferrable or skills transferable). Because the Grids direct a finding 

of “not disabled” regardless of whether Plaintiff has transferable skills, the ALJ was not required 

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to decide whether Plaintiff’s job skills were transferable.

2

See Applegate v. Comm’r, 2015 WL 

1825405 (D. Or. Apr. 22, 2015) (finding transferability of skills was not material; therefore, ALJ 

was not required under SSR 82-41 to make specific findings of transferable skills); James v. 

Colvin, 2013 WL 6145297, *3-4 (D. Or. Nov. 21, 2013) (same). The ALJ’s conclusion at step 

five is therefore affirmed.

CONCLUSION

The ALJ’s decision is supported by substantial evidence and is AFFIRMED.

IT IS SO ORDERED.

DATED this 12th day of August, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

 

2

Further, nothing in SSR 82-41 or 20 C.F.R. §§ 404.1568, 416.968 requires the ALJ to 

make specific written findings of transferable skills in order to find a claimant able to perform 

semi-skilled work when transferability of skills is not material to the ultimate nondisability 

determination. See SSR 82-41, available at 1982 WL 31389; see also Craft v. Colvin, 2015 WL 

4673601, *7-8 (D. Or. Aug. 6, 2015) (“There is no implication [in the Regulations] that a 

claimant can only be found able to perform semi-skilled work if the claimant has transferable 

skills from a previous position.”).

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