IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DONALD EDWARD SMOOT, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner of Social Security 

Administration, 

Defendant. 

EUGENE DIVISION 

MERRILL SCHNEIDER 

SCHNEIDER KERR LAW OFFICES 

P.O Box 14490 

Portland, Oregon, 97293 

Of Attorneys for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

District of Oregon 

1000 SW Third Ave., Suite 600 

Portland, OR 97204-1011 

DAVID BURDETT 

Special Assistant United States Attorney 

Office of the General Counsel 

701 Fifth Ave., Suite 2900 M/S 221 A 

Seattle, WA 98104-7075 

Of Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 3:15-cv-00708-PA 

OPINION AND ORDER 

Case 3:15-cv-00708-PA Document 21 Filed 08/08/16 Page 1 of 9
P ANNER, District Judge: 

Donald Edward Smoot ("Plaintiff') seeks judicial review of the final decision by the 

Social Security Commissioner ("Commissioner") denying his application for Disability 

Insurance Benefits ("DIB") under Title II of the Social Security Act ("SSA"). This Court has 

jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). 

Administrative History 

On October 25, 2011, Plaintiff applied for DIB. Tr. 20. Plaintiff alleged disability since 

June 30, 2005, which was later changed to December 30, 1999. Tr. 20, 39. Plaintiffs application 

was denied initially and on reconsideration. Tr. 20. Plaintiff requested a hearing before an 

Administrative Law Judge ("ALJ"), which took place on August 7, 2013 before ALJ Jo 

Hoenninger. Tr. 28. Plaintiff was represented by counsel and testified, as did a vocational expert 

("VE"). Tr. 35-84. On August 26, 2013, ALJ Hoenninger issued a decision finding Plaintiff not 

disabled. Tr. 28. Plaintiff requested review from the Appeals Council on October 21, 2013. Tr. 

15. The Appeals Council declined Plaintiffs request for review on February 23, 2015, and this 

action followed. Id. 

Background 

Born in 1949, Plaintiff was 50 years old on the alleged disability onset date. Tr. 149. 

Plaintiff alleges disability due to right both-column acetabular fracture, sciatic nerve pain, and 

arthritis. Tr. 23, 229. Plaintiff graduated from high school. Tr. 179. Plaintiff has past relevant 

work as a journeyman sign electrician, electrician, handyman, and store owner. Tr. 40-70. 

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. 

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Case 3:15-cv-00708-PA Document 21 Filed 08/08/16 Page 2 of 9
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 

[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. §§ 404.1502 and 

404.920. First, the Commissioner considers whether a claimant is engaged in "substantial gainful 

activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b) and 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. §§ 

404.1520(c) and 416.920(c). If the claimant does not have a severe impairment, he 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, 

3 OPINION AND ORDER 

Case 3:15-cv-00708-PA Document 21 Filed 08/08/16 Page 3 of 9
482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(d) and 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. §§ 404.1520(f) and 404.920(f). If the claimant can work, he is not 

disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. 

At step five, the Commissioner must demonstrate 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. §§ 404.1520(g) and 416.920(g). If the Commissioner meets this burden, the 

claimant is not disabled. 20 C.F.R. §§ 404.1566 and 416.966. 

The ALJ's Findings 

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

Plaintiff had not engaged in substantial gainful activity since the alleged onset date, December 

30, 1999 through his date last insured of June 30, 2005. Tr. 22. 

At step two, the ALJ determined Plaintiff has the severe impairment of right both-column 

acetabular fracture. Tr. 23. The ALJ identified other injuries and mental conditions that did not 

rise to the level of severe impairment. Tr. 23. 

At step three, the ALJ found that Plaintiffs impairments, either singly or in combination, 

did not meet or equal the requirements of a listed impairment. Tr. 23. Because Plaintiff did not 

establish disability at step three, the ALJ continued to evaluate how Plaintiffs impairments 

affected his ability to work during the relevant period. The ALJ found that Plaintiff had the 

residual functional capacity ("RFC") to perform light work except that: 

Tr. 24. 

[h]e could frequently climb ramps and stairs, but never climb ladders, ropes, and 

scaffolds. He could occasionally stoop, kneel, crouch, or crawl. 

4 OPINION AND ORDER 

Case 3:15-cv-00708-PA Document 21 Filed 08/08/16 Page 4 of 9
At step four, the ALJ found that Plaintiff was unable to perform his past relevant work as 

an electrician. Tr. 26-27. 

At step five, the ALJ found that Plaintiff had acquired work skills from past relevant 

work as an electrician, including: planning and installing wiring, preparing sketches, following 

blueprints, using hand tools and power tools, testing continuity of circuits, repairing faulty 

equipment, and cutting and welding steel structural members. Tr. 27. The ALJ found that 

Plaintiff could perform the jobs of electrical instrument repairer and electrical assembler, which 

exist in significant numbers in the national economy. Tr. 28. 

Discussion 

Plaintiff alleges the ALJ erred by improperly assessing Plaintiffs: (1) sciatic nerve pain 

and arthritis; and (2) transferable skills. 

I. Sciatic Nerve Pain and Arthritis 

An impairment or combination of impairments may be rejected at step two only ifthe 

evidence establishes a slight abnormality that minimally affects a plaintiffs ability to work. 

Smolen v. Chafer 80 F.3d, 1273, 1290 (9th Cir. 1996). Step two is a de minimis threshold used to 

dispose of meritless claims. Id. An ALJ may find a plaintiff lacks a severe impairment or 

combination of impairments only when her conclusion is "clearly established by medical 

evidence." Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 

The ALJ considered the medical evidence and found Plaintiff to have the severe 

impairment of status post hip fracture repair. The ALJ found Plaintiffs obesity and hypertension 

to be non-severe impairments. Plaintiff argues the ALJ should have considered his sciatic nerve 

pain and arthritis severe impairments. 

The ALJ noted Plaintiff was diagnosed with mild sciatic nerve pain and mild arthritis by 

Dr. Duwelius in 2006, a year after his date last insured ("DLI"). Tr. 25. Such evidence is 

5 OPINION AND ORDER 

Case 3:15-cv-00708-PA Document 21 Filed 08/08/16 Page 5 of 9
probative, but not compelling. Turner v. Comm 'r of Soc. Sec., 613 F.3d 1217, 1228-29 (9th Cir. 

2010). More importantly, one year after Plaintiffs 1999 surgery and disability onset date, Dr. 

Duwelius assessed Plaintiff as "overall doing exceptionally well" with no pain, walking without 

assistive devices, and riding his bicycle. Tr. 476. The ALJ is responsible for resolving 

ambiguities and conflicts in the medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th 

Cir. 1989). Here, the ALJ reasonably relied on the opinion of Plaintiffs treating physician in 

interpreting the record. 

Plaintiff argues that William King Jr., a chiropractor, found tenderness and spams in 

various upper and lower back muscles in 2002 and 2005. Tr. 447. However, Plaintiff fails to 

argue the link between tenderness and muscle spasms in 2002 and 2005, and mild sciatic nerve 

pain in 2006. Plaintiff presents no evidence the alleged sciatic nerve pain caused the muscle 

spasms and tenderness, or that the two conditions affected Plaintiff concurrently. Additionally, 

William King Jr. did not indicate the muscle spasms and tenderness were due to arthritis or 

sciatic nerve pain. Tr. 447. 

Moreover, Plaintiff presents no evidence regarding how the muscle spasms and nerve 

pain affected him or his ability to sustain employment. Specifically, Plaintiff fails to argue any 

functional limitations resulting from the alleged conditions. Assuming, arguendo, the ALJ erred, 

the error was harmless because (1) Plaintiff prevailed at step two; and (2) because Plaintiff failed 

to allege any functional limitations relating to the alleged conditions, the RFC would remain the 

same. Burch, 400 F.3d at 682. Finally, a chiropractor's opinion, on its own, cannot be used to 

establish a medically determinable impairment; only acceptable medical sources can be used to 

establish severe impairments at step two, and a chiropractor is not an acceptable medical source. 

20 C.F.R. § 404.1513(a). 

6 OPINION AND ORDER 

Case 3:15-cv-00708-PA Document 21 Filed 08/08/16 Page 6 of 9
Plaintiff argues the ALJ failed to consider and discuss the treatment notes of William 

King Jr., the chiropractor. The ALJ is not required to discuss every piece of evidence; some 

evidence is neither significant nor probative. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 

1012 (9th Cir. 2003). The chiropractor did not assess any functional limitations regarding 

Plaintiff's muscle spasms and tenderness and did not state the condition lasted or was expected 

to last more than the required 12 months. Additionally, the chiropractor's notes show Plaintiff's 

condition was alleviated by various treatments, including heat packs and stretches. These factors 

show the chiropractor's notes were neither significant nor probative. 

For the reasons articulated above, the ALJ did not err in evaluating Plaintiff's sciatic 

nerve pain and arthritis. 

II. Transferable Skills 

The Commissioner bears the burden of showing the plaintiff can perform other work that 

exists in significant numbers in the national economy at step five. Tackett v. Apfel, 180 F.3d 

1094, 1098-99 (9th Cir. 1999). "When the issue of skills and their transferability must be 

decided, the ... ALJ is required to make certain findings of fact and include them in the written 

decision. Findings should be supported with appropriate documentation." Bray v. Comm 'r of 

Soc. Sec., 554 F.3d 1219, 1223 (9th Cir. 2009) (quoting SSR 82-41). 

The ALJ found Plaintiff possessed transferable work skills based on his past work as an 

electrician. Tr. 27. The ALJ then claimed Plaintiff possessed the skills the DOT lists in the job 

9escription of electrician, including "planning and installing wiring, preparing sketches, 

following blueprints, using hand tools and power tools, testing continuity of circuits, repairing 

faulty equipment, and cutting and welding steel structural members." Tr. 27. The ALJ used these 

transferable skills as support for Plaintiff being able to perform the jobs of electrical instrument 

repairer and electrical assembler. Tr. 28. Plaintiff argues the ALJ committed harmful error 

7 OPINION AND ORDER 

Case 3:15-cv-00708-PA Document 21 Filed 08/08/16 Page 7 of 9
because her transferable skills analysis was not supported by substantial evidence. The 

Commissioner concedes the ALJ erred by not asking the VE to identify Plaintiff's transferable 

skills, but submits it was harmless error. 

The ALJ erred by failing to support her transferable skills analysis with substantial 

evidence. Although the Commissioner concedes the ALJ erred by failing to elicit testimony from 

the VE identifying Plaintiff's transferrable skills, this was not necessarily error. ""(C]onsultation 

with a [VE] may be necessary to ascertain" whether a given skill or set of skills are transferable 

in a claimant's particular case." Bray 554 F.3d at 1225 (quoting SSR 82-41) (emphasis added). 

By phrasing the transferable skills assessment as permissive the SSR seemingly gives discretion 

to ALJs to make findings based on other evidence, including the VE or testimony from Plaintiff. 

However, the ALJ failed to support her transferable skills finding with substantial 

evidence. "Findings should be supported with appropriate documentation." Bray 554 F.3d at 

1223. Here, the ALJ did not provide appropriate documentation to support her findings. 

Plaintiff's testimony does not evince the skills listed by the ALJ, and the ALJ did not provide 

any evidence showing Plaintiff actually possesses the skills listed in the DOT description of an 

electrician. Plaintiff likely possesses at least some of these skills, and the court notes Plaintiff 

was cagey in answering the ALJ' s questions regarding his past work, but the ALJ needed to 

obtain specific factual information from Plaintiff or the VE and include it in the written opinion. 

Because the ALJ failed to include supporting evidence showing Plaintiff actually possessed these 

transferable skills, the ALJ erred. That error was not harmless because the ALJ used the 

unsubstantiated transferable skills to assign Plaintiff the jobs of electrical instrument repairer and 

electrical assembler. Tr. 28. 

The court may remand this case either for additional evidentiary findings and gathering 

information or to award benefits. Smolen, 80 F.3d at 1292. Generally, remand is warranted where 

8 OPINION AND ORDER 

Case 3:15-cv-00708-PA Document 21 Filed 08/08/16 Page 8 of 9
additional administrative proceedings could remedy defects in the ALJ's decision. Harman v. 

Apfel, 211F.3d1172, 1179 (9th Cir. 2000). Here, the ALJ erred and remand is appropriate for 

the ALJ to remedy the factual ambiguities regarding Plaintiffs transferable work skills. 

Conclusion 

Based on the foregoing, the Commissioner's decision denying Plaintiffs application for 

disability insurance benefits is REMANDED for further consideration based on this opinion. 

IT IS SO ORDERED. 

DATED this __0day of August, 2016. 

~anner~ United States District Judge 

9 OPINION AND ORDER 

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