IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

SCOTT R. FRANK, 

Plaintiff, 

vs. 

CAROLYN W. COLVIN, 

Commissioner of Social Security, 

Defendant. 

RICHARD F. McGINTY 

McGinty & Belcher, Attorneys 

P.O. Box 12806 

Medford, OR 97301 

Attorney for plaintiff 

BILLY J. WILLIAMS 

Interim United States Attorney 

District of Oregon 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 SW Third Ave., Suite 600 

Portland, OR 97201-2902 

JORDAN D. GODDARD 

EUGENE DIVISION 

Special Assistant United States Attorney 

Office of the General Counsel 

Case No. 6:14-cv-01434-AC 

OPINION AND ORDER 

Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 1 of 16
Social Security Administration 

701 Fifth Ave., Suite 2900 MIS 221 A 

Seattle, WA 98104-707 5 

Attorneys for defendant 

ACOSTA, Magistrate Judge: 

Scott Frank ("plaintiff') seeks judicial review of a final decision by the Commissioner of 

Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") 

under Title II of the Social Security Act ("Act"). This court has jurisdiction to review the 

Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record, 

the Commissioner's decision is reversed and this case is remanded for futther proceedings. 

Procedural Background 

Plaintiff applied for DIB on November 14, 2011, alleging disability as of November 11, 

2011, due to a congestive heart condition. (Tr. 16, 55.) His application was denied initially and 

upon reconsideration. (Tr. 62, 65.) A hearing convened on April 30, 2013, before an Administrative 

Law Judge ("ALJ"). (Tr. 30-54.) On May 15, 2013, the ALJ issued a decision finding plaintiff not 

disabled. (Tr. 16-23.) Plaintiff timely requested review of the ALJ's decision and, after the Appeals 

Council denied review, plaintiff filed a complaint in this court. (Tr. 1-4.) 

Factual Background 

Born on August 31, 1964, plaintiff was 47 years old on the alleged onset date of disability 

and 48 years old at the time of the hearing. (Tr. 30-31, 55.) He is a high school graduate and later 

obtained a commercial driver's license. (Tr. 32-33, 55.) Plaintiff previously worked as a truck 

driver. (Tr. 36, 159.) 

II II/ 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 2 of 16
Standard of Review 

The court must affirm the Commissioner's decision if it is based on proper legal standards 

and the findings are suppotied 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 comi 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). "Where the evidence as a whole can support either 

a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 

486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted). 

The initial burden of proof rests upon the claimant to establish disability. Howardv. 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, 42 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the 

Commissioner determines whether a claimant is engaged in "substantial gainful activity;" if so, the 

claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). 

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

impairment or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520( c ). 

If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 3 of 16
At step three, the Commissioner evaluates whether the claimant's impairment meets or 

equals "one of a number of listed impairments that the Secretaty acknowledges are so severe as to 

preclude substantial gainful activity." Id.; 20 C.F.R. § 404.1520( d). If so, the claimant is presumed 

disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

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

relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404. l 520(i). If the claimant can work, he is 

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

Yuckert, 482 U.S. at 141. 

At step five, the Commissioner must establish that the claimant can perform other work 

existing in significant numbers in the national or local economy. Id. at 142; 20 C.F.R. § 

404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 

404.1566. 

The AL.J's Findings 

At step one of the five-step sequential evaluation process, the ALJ found plaintiff had not 

engaged in substantial gainful activity since November 11, 2011, the alleged onset date. (Tr. 18.) 

At step two, the ALJ found plaintiffhad the following severe impairment: "congestive heart failure." 

Id. At step three, the ALJ found plaintiffs impairment did not meet or equal the requirements of a 

listed impairment under 20 C.F.R. Pt. 404, Subpt. P, App. 1 ("the Listings"). Id. 

Accordingly, the ALJ continued the sequential evaluation process to determine how 

plaintiffs medical limitations affected his ability to work. The ALJ resolved that plaintiff had the 

following residual functional capacity ("RFC"): 

... [he can] perform less than the full range oflight work ... [h ]e can 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 4 of 16
(Tr. 18-19.) 

lift and carry 20 pounds occasionally and 10 pounds frequently; he 

can stand, walk and sit for 6 out of 8 hours each. 

At step four, the ALJ found plaintiff was unable to perform any past relevant work. (Tr. 21.) 

At step five, the ALJ determined plaintiff had the RFC to perform the following representative 

occupations: office helper, facility rental clerk, and cashier II. (Tr. 22.) Therefore, the ALJ 

concluded plaintiff was not disabled under the Act. (Tr. 22-23.) 

Discussion 

Plaintiff argues the ALJ erred by: (1) failing to find plaintiff meets or equals Listing 4.02; 

(2) etTOneously discrediting plaintiffs testimony; (3) erroneously discrediting lay witness testimony; 

( 4) improperly evaluating his functional abilities under the New York Heart Association ("NYHA") 

II rating system; and (5) failing to incorporate all of plaintiffs limitations into the RFC and 

hypothetical questions to the vocational expert ("VE"). 

I. Listing 4. 02 

Plaintiff argues the ALJ erred by finding plaintiff did not meet the criteria for Listing 4.02 

at step three of the sequential evaluation process. At step three, the ALJ evaluates whether a 

plaintiffs impairments meet or equal one of the listed impairments. 20 C.F.R. § 404.1525. If 

plaintiff produces sufficient medical evidence to satisfy a listing's requisites, the plaintiff is 

presumed disabled. Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003). At step two, the ALJ 

found plaintiff has the severe impairment of"congestive heatt failure." (Tr. 18.) Accordingly, the 

relevant Listing is 4.02 for "chronic heatt failure." 20 C.F.R. Pt. 404 Subpt. P, App. I § 4.02. In 

order to meet the Listing, plaintiff must satisfy one set of criteria in§ 4.02A and B. Plaintiff argues 

that he meets 4.02A(l) for systolic failure due to an ejection fraction of 30 percent or less during 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 5 of 16
a period of stability, and that he meets 4.02B(3) based on his inability to adequately perform on an 

exercise tolerance test at a workload equivalent to five metabolic equivalents ("METs") or less due 

to dyspnea, fatigue, palpatations, or chest discomfort. Pl.'s Br. 6; 20 C.F.R. Pt. 404, Subpt. P, App. 

1 § 4.02. 

The ALJ noted plaintiff had an ejection fraction of20 to 25 percent in Januaiy 2011. (Tr. 

19, 231.) The record reflects that plaintiff subsequently had a defibrillator implanted in May 2011. 

(Tr. 235.) The ALJ noted that although plaintiff continued having symptoms such as fatigue, 

shortness of breath, and coughing, a medical evaluator opined the symptoms were possibly related 

to an upper respiratory ailment such as chronic rhinitis. (Tr. 19, 324.) The ALJ further noted that 

despite plaintiffs symptom complaints, the medical record illustrated that the defibrillator was 

functioning normally and January 2013 chest x-rays showed no acute abnormalities. (Tr. 19, 318.) 

Defendant argues that in order to meet § 4.02A, plaintiff must demonstrate an ejection fraction of 

30 percent or less lasting at least twelve months. Def. 's Br. 5. If that was true, however, several 

of the requirements under § 4.02B would be redundant. See, e.g. § 4.02B(2) ([t]hree or more 

separate episodes of acute congestive heart failure within a consecutive 12 month period ... ). The 

statute states that although the longitudinal treatment record is important, twelve months is not 

necessarily a requirement for a low ejection fraction, as a record "covering a period of not less than 

3 months of observations and treatment is usually necessary, unless we can make a determination 

or decision based on the current evidence." See§ 4.00B(l ); see also § 4.00B( 4)(b) ([In cases where 

the impairment is not yet stable,] "we will obtain more evidence 3 months following the event 

before we evaluate your impairment."). Thus, §4.02 could presumably be met in less than 12 

months. The Listing's language bears this out: while§§ 4.02B(l) & (2) include variations ofa 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 6 of 16
twelve-month period, § 4.02B(3) requires only the inability to perform on an exercise tolerance test 

at a workload equivalent to five METs due to ce11ain symptoms/signs. 1 2 

However, the ALJ found, and plaintiff does not dispute, that there were no ejection fraction 

measurements taken after January 2011. (Tr. 19.) Fmiher, there is no evidence as to whether the 

single ejection fraction result was obtained "during a period of stability." Thus, the record does not 

contain objective evidence of an ejection fraction of30 percent or less during a period of stability, 

contrary to plaintiffs contention. See§ 4.02A(l ). Although the ALJ did not affirmatively find that 

plaintiff failed to establish the requisite stability-period ejection fraction, he did infer that plaintiffs 

ejection fraction was above the threshold level after the defibrillator was implanted and functioning 

normally, and based on the absence of imaging abnormalities. (Tr. 20). Given the lack of 

longitudinal evidence regarding plaintiffs ejection fraction, and considering the improved 

symptoms and absence of abnormalities in x-rays, the ALJ reasonably inferred the ejection fraction 

had improved to above 30 percent. See Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995) 

(the ALJ is responsible for resolving ambiguities in the record); see also Batson v. Comm 'r, 359 

F.3d 1190, 1193 (9th Cir. 2004) (the commissioner's findings are upheld if suppotied by inferences 

reasonably drawn from the record). 

Given that the ALJ reasonably found plaintiff did not establish the requisites for § 4.02A, 

the Listing inquiry is resolved. However, even if§ 4.02A was established by plaintiffs single 

1 Section4.02B(l) requires "[p]ersistent symptoms of heart failure .... " The Act defines 

"persistent" as when "the longitudinal record shows that, with few exceptions, the required 

finding( s) has been present, or is expected to be present, for a continuous period of at least 12 

months .... " 

2 Section 4.02B(2) requires "[t]hree or more separate episodes of acute congestive heart 

failure within a consecutive 12-month period .... " 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 7 of 16
ejection fraction reading, he also does not meet any of the§ 4.02B requirements. Plaintiff contends 

the ALJ failed to order a MET panel in order to determine if plaintiff met § 4.02B(3)(a) (inability 

to perform an exercise tolerance test at a workload equivalent of five METs or less due to dyspnea, 

fatigue, palpitations, or chest discomfort). Pl.'s Br. 6. The medical record does not contain any 

MET panel results. While the ALJ acknowledged that plaintiff had symptoms of fatigue, shortness 

of breath with exertion, and a persistent cough, he noted that those symptoms were attributed to an 

unidentified respirat01y condition such as chronic rhinitis, rather than heart issues, by Theodore 

Schultz, M.D. in March 2013. (Tr. 19, 324.) Dr. Schultz was aware of plaintiffs cardiac histo1y 

and viewed the negative chest x-ray from Januaiy 2013. (Tr. 324.) The ALJ recognized Dr. 

Schultz's observation, and plaintiffs testimony, that the cough symptoms were seasonal. (Tr. 19, 

44, 322). "An ALJ's duty to develop the record fmiher is triggered only when there is ambiguous 

evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes 

v. kfassanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citing Tonapetyan v. Halter, 242 F.3d 1144, 

1150 (9th Cir. 2001 )). Here, the ALJ reasonably determined that substantial evidence supported 

Dr. Schultz's opinion that plaintiffs bronchial symptoms were not related to a congestive heart 

impairment, and therefore was not obligated to order an MET panel. 

In sum, the ALJ did not err in determining plaintiff did not meet or equal Listing §4.02. 

IL Plaintiffs Credibility 

The Ninth Circuit relies on a two-step process for evaluating the credibility of a claimant's 

testimony about the severity and limiting effect of the stated symptoms. Vasquez v. Astrue, 572 

F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 503 F.3d 1028, 1035-36 (9th Cir. 

2007)). "First, the ALJ must determine whether the claimant has presented objective medical 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 8 of 16
evidence of an underlying impairment which could reasonably be expected to produce the pain or 

other symptoms alleged." Lingenfelter, 503 F.3d at 1036 (citation and quotation marks omitted). 

Second, absent 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." 

Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Further, anALJ "may consider ... ordinary 

techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent 

statements concerning the symptoms, ... [or] other testimony that appears less than candid .... " 

Id. at 1284. However, a negative credibility finding made solely because the claimant's symptom 

testimony "is not substantiated affirmatively by objective medical evidence" is legally insufficient. 

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Nevettheless, theALJ's credibility 

finding may be upheld even if not all of the ALJ's rationales for rejecting claimant testimony are 

upheld. See Batson, 359 F.3d at 1197. 

Here, the ALJ found plaintiff less than fully credible based on inconsistencies between the 

alleged severity of his impairment and the medical evidence, activities of daily living ("AD Ls"), 

and because plaintiff had been seeking employment. (Tr. 20, 21.) First, the ALJ found plaintiff's 

ADLs indicated that plaintiff was not as limited as he alleged. (Tr. 20.) The ALJ explained 

plaintiff was able to drive, cook, shop, wash dishes, vacuum, clean, take out the garbage, and mow 

the lawn. (Tr. 21.) However, activities such as light household chores, limited dog-walking, and 

occasional preparation of simple meals do not necessarily translate to a full-time work environment. 

Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Only if a plaintiff's level of activity is 

inconsistent with plaintiff's alleged limitations should such activities bear on credibility. Reddick 

v. Chafer, 157 F.3d 715, 723 n.l (9th Cir. 1998). Here, while plaintiff's activities reflect some 

Page 9 - OPINION AND ORDER 

Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 9 of 16
functionality, the ALJ failed to identify inconsistencies between plaintiff's activities and his alleged 

level of impairment; he merely articulated plaintiff's fairly low activity level. (Tr. 21.) As such, 

the ALJ's failure to explain why plaintiff's testimony was inconsistent with his ADLs was 

erroneous, and thus not a valid rationale for finding plaintiff less than credible. Garrison v. Colvin, 

759 F.3d 995, 1016 (9th Cir. 2014). 

Next, the ALJ found plaintiff not fully credible because despite alleging disability, he was 

still actively seeking employment. (Tr. 21.) During the hearing, the ALJ asked plaintiff if he could 

perform a job where he was able to sit down. Plaintiff responded that "I would accept it. I would 

tty." (Tr. 35.) Plaintiff continued, "I have to deal with my medication and the necessity of using 

the restroom quite often. I have a tough time staying concentrated." (Tr. 37.) Defendant argues 

that "continued receipt of unemployment benefits does cast doubts on a claim of disability, as it 

shows that an applicant holds himself out as capable of working." Ghanim v. Colvin, 763 F.3d 

1154, 1165 (9th Cir. 2014). However, the Ninth Circuit has also held that seeking employment 

does not necessarily undermine a plaintiff's impairment allegations. See Webb v. Barnhart, 433 

F.3d 683, 688 (9th Cir. 2005). Indeed, a plaintiff's credibility is commonly impugned in Social 

Security case law for/ailing to show adequate motivation to seek or attempt gainful employment. 

See, e.g., Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) ("[E]xtremelypoorworkhistory" 

showing "little propensity to work" was a clear and convincing rationale to discount subjective 

testimony.). The result of this inconsistency is an anamolous result: a plaintiff's credibility is 

negatively impacted whether he chooses to continue to seek work, or chooses to not seek work. In 

Ghanim, the court ultimately determined that because the plaintiff voluntarily discontinued 

unemployment benefits shortly after his onset date, it was inappropriate for the ALJ to find him not 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 10 of 16
credible. Id Another court addressing this issue determined that when a plaintiff alleges his 

impairments preclude all work yet holds himself out as able to perform some work by collecting 

unemployment benefits, that inconsistency was a valid credibility factor. See Shelebian v. Colvin, 

available at2015WL1006581 (C.D.Cal. March 5, 2015)(unpublished opinion). Indeed, the Ninth 

Circuit has continually explained that a claimant need not be relegated to vegetating in a dark room 

in order to be eligible for disability benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). 

Moreover, the standard for determining whether a plaintiff is disabled is not whether a plaintiff can 

perform any work, but rather whether a plaintiff can perform substantial gainful activity, which the 

Act defines as eight hours per day, five days per week. See Social Security Ruling ("SSR") 96-8p, 

available at 1996 WL 374185, *2. Thus, even if a plaintiff sincerely believes he can perform some 

amount of work, he could conceivably be found disabled under the Act. 

Here, plaintiff candidly answered that he was seeking work and indicated he was willing to 

attempt to maintain employment if provided the oppmiunity. (Tr. 35.) Plaintiff did not allege that 

he was completely incapacitated due to his impairment, but consistently atiiculated his ability to 

perform modest daily activities. On this record, the fact that plaintiff held himself out as willing to 

attempt to perform part or full-time work, without more, is not a compelling reason to find him not 

credible. 

Further, the ALJ explained that just prior to having his defibrillator implanted, plaintiff was 

able to walk two-to-three miles at a slow pace. (Tr. 20.) However, following the successful 

procedure and corresponding medical evidence of improvement in cardiac function, plaintiff 

indicated he could no longer walk more than 20 minutes at a time without becoming fatigued and 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 11 of 16
out of breath. Id.; see (Tr. 46-47.) Substantial evidence supports the ALJ's finding. See (Tr. 264-

67, 274-75, 282, 299-301, 320-21.) Moreover, plaintiff does not dispute the finding. 

Thus, the ALJ articulated three primary rationales for finding plaintiffless than fully credible, 

and of the three, two do not meet the clear-and-convincing legal standard. While the ALJ did not 

commit legal error in finding plaintiff's allegation that he cannot walk as far without difficulty as he 

could prior to his heart surgery, the rationale is not particularly strong in isolation. As mentioned 

above, the record contains evidence that although plaintiffs cardiac function was improved 

following his heart treatments, consultative examining physician Dr. Shultz reported plaintiff was 

breathless with exertion in conjunction with a persistent cough, which the doctor opined was caused 

by an upper respirato1y tract etiology. (Tr. 322-25.) Viewing the record as a whole, while it is 

possible plaintiffs decreased ability to exert himself even after successful heart treatment is due to 

exaggeration as the ALJ infers, the objective evidence also supports at least one other legitimate 

medical reason. Because the ALJ' s remaining reasons are not supported by substantial evidence, and 

because this reason is weak on this record, the court concludes that the ALJ erred in discrediting 

plaintiffs testimony. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (a single weak 

reason for discrediting a plaintiffs credibility may be insufficient to meet the specific, clear and 

convincing standard even if the reason is technically valid); see also Lingenfelter 504 F.3d at l 035 

(The court "must consider the entire record as a whole, weighing both the evidence that suppotts and 

... detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific 

quantum of supporting evidence."). 

//Ill 

II I I I 

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III. Lay Witness Testimony 

Plaintiff argues the ALJ erroneously discredited the testimony of his wife, Ms. Lisa Frank. 

The ALJ indicated he accorded Ms. Frank's testimony "some weight," though he found the 

limitations Ms. Frank noted "do not support a conclusion" that plaintiff is disabled. (Tr. 21.) Lay 

witness testimony is competent evidence which an ALJ must take into account unless the ALJ 

provides specific, germane reasons for disregarding it. Dodrill v. Sha/ala, 12 F .3d 915, 919 (9th Cir. 

1993); see also Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). Ms. Frank presented 

information regarding plaintiffs AD Ls that were generally consistent with plaintiffs own repo1ts. 

Compare (Tr. 165-70) to (Tr. 173-78). She further repmted plaintiff is easily fatigued and has 

shortness of breath. (Tr. 168.) Also of note, Ms. Frank indicated that as a side-effect to plaintiffs 

furosemide heart medication, he needed to visit the restroom every half hour. (Tr. 170.) 

The ALJ failed to provide a reason germane to Ms. Frank to discount her testimony. The 

ALJ chose to not credit Ms. Frank to the extent her testimony was consistent with plaintiffs 

testimony regarding his ability to perform ce1tain AD Ls, and that he searched for work. (Tr. 21.) 

Under Molina, an ALJ may reject lay witness testimony without providing reasons germane to the 

witness when the ALJ has already provided germane reasons for rejecting similar testimony. Molina 

v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012). However, as explained supra, the ALJ's rejection 

of similar testimony from plaintiff was legally insufficient. Because the ALJ's assessment of 

plaintiffs credibility was erroneous, it cannot be relied upon to also reject testimony of the lay 

witness. To the extent the he failed to credit the testimony of Ms. Frank, the ALJ erred. 

///// 

///// 

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IV. RFC Formulation 

Plaintiff alleges two errors in the formulation of the RFC. First, plaintiff argues that because 

his medical record consistently classifies his symptoms on the New York Heart Association 

("NYHA") scale at II, his RFC was erroneous. The NYHA II classification states that: "Patients with 

cardiac disease resulting in slight limitation of physical activity. They are comfortable at rest. 

Ordinary physical activity results in fatigue, palpitation, dyspnea or angina! pain." Pl.'s Br. 7. 

Plaintiff argues the NYHA II classification constrains him to do less than the RFC, such as the ability 

to "stand, walk, and sit for 6 out of 8 hours each," and for light positions which predominantly 

involve sitting, "pushing and pulling of arm and leg controls." Id.; (Tr. 18-19.) However, the court 

cannot conclude that plaintiffs NYHA II classification precludes the level of activity set out in the 

RFC, as the NYHA II limitations are not facially inconsistent with the RFC. To the extent no facial 

discrepancy exists, the comi declines to disturb the ALJ's finding. See Batson, 359 F.3d at 1193 

(if evidence exists to support more than one rational interpretation, the court must defer to the 

Commissioner's decision). The court further notes that despite recognizing plaintiffs NYHA II 

classification, reviewing physicians Drs. Kerhli and Berner both indicated plaintiff was able to 

perform light work. (Tr. 59-60, 70-71.) Accordingly, the ALJ reasonably accounted for plaintiffs 

NYHA II classification in formulating the RFC. 

Second, plaintiff argues the ALJ failed to incorporate his need to use the bathroom many 

times throughout the workday. During the hearing, plaintiff stated that one of the things preventing 

him from working was "the necessity of using the restroom quite often." (Tr. 3 7 .) Plaintiff further 

described needing to use the restroom "every 15 to 20 minutes." (Tr. 45.) When asked to clarify, 

plaintiff stated that his need to use the restroom decreased until he took his twice-daily dose ofheati 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 14 of 16
medication. (Tr. 45-46.) The ALJ did not include any reference to extra breaks in the RFC. (Tr. 

18-19.) 

Defendant argues the comt can infer the ALJ rejected plaintiffs restroom requirement 

allegation on credibility grounds. Def.'s Br. 8. Because the ALJ's credibility finding is inadequate, 

however, defendant's argument is unavailing. Despite plaintiff's testimony, as well as allegations 

in his disability application form and testimony from the lay witness, the ALJ did not address 

plaintiff's asserted restroom requirements. See (Tr. 170, 172, 173). Because additional restroom 

breaks throughout a workday may preclude regular work, the ALJ erred by failing either to proffer 

a clear and convincing reason for rejecting the testimony, or reasonably incorporating plaintiff's 

potential need for extra breaks into the RFC. 

Because the ALJ erred in assessing plaintiff's credibility and thereby potentially failing to 

incorporate limitations regarding extra breaks into the RFC, the questions posed to the VE at step 

five were not based on substantial evidence, and thus the VE's answers are of no evidentiary value. 

Accordingly, this case must be remanded for further proceedings. 

V. Remand 

As discussed above, the ALJ's decision contains legal errors. Courts may affirm, modify, 

or reverse the decision by the Commissioner "with or without remanding the case for a rehearing." 

42 U.S.C. § 405(g). Remand for the calculation of benefits is one possible remedy. Benecke v. 

Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(citations omitted). The Ninth Circuit employs the 

"credit-as-true" standard when the following requisites are met: (1) the record has been fully 

developed and further proceedings would serve no useful purpose, (2) the ALJ has failed to provide 

legally sufficient reasons for rejecting evidence, and (3) if the improperly discredited evidence were 

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Case 6:14-cv-01434-AC Document 21 Filed 10/19/15 Page 15 of 16
credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison, 759 

F.3d at 1020. 

Here, plaintiff concedes the proper course is to remand for further proceedings. The comi 

agrees. Further proceedings are required in order to reassess plaintiffs credibility, fu11her develop 

the extent of plaintiffs limitations, and to procure guidance from a VE. An ALJ is the appropriate 

arbiter to disambiguate these remaining issues. See Lingenfelter, 504 F.3d at 1044. 

Conclusion 

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

REMANDED for further proceedings consistent with this Opinion and Order. 

IT rs so ORDERED. 

DATED this ~)~October 2015. 

c (; J Q_, ____ ~ V.ACOSTA 

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