IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RANDY W. SCHMIT, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

JAMES W. MOLLER 

8655 SW Citizens Dr., Ste. 104 

Portland, OR 97070 

(971) 224-4195 

Attorney for Plaintiff 

BILLY J. WILLIAMS 

Acting United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

(503) 727-1003 

1 - OPINION AND ORDER 

6:15-CV-00786-BR 

OPINION AND ORDER 

Case 6:15-cv-00786-BR Document 16 Filed 06/29/16 Page 1 of 15
DAVID MORADO 

Regional Chief Counsel 

JOHN C. LAMONT 

Special Assistant United States Attorney 

701 Fifth Avenue, Ste. 2900 M/S 221 A 

Seattle, WA 98104 

(206) 615-3703 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Randy W. Schmit seeks judicial review of a final 

decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for 

Disability Insurance Benefits (DIB) under Title II 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. 

ADMINISTRATIVE HISTORY 

Plaintiff filed an application for DIE in December of 2011 

and alleged a disability onset date of July 20, 2006. 

Tr. 127-28, 138, 142. 1 Plaintiff's application was denied 

initially and on reconsideration. Tr. 69-76. An Administrative 

Law Judge (ALJ) held a hearing on July 30, 2013, where Plaintiff 

1 Citations to the official transcript of record filed by 

the Commissioner on October 20, 2015, are referred to as "Tr." 

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appeared and testified along with Vocational Expert (VE) Frank 

Lucas. Tr. 29-68. Plaintiff was represented by attorney Mark 

Manning at the hearing. Tr. 29-68. 

On August 13, 2013, the ALJ issued an opinion in which she 

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

to benefits. Tr. 12-24. On March 3, 2015, that decision became 

the final decision of the Commissioner when the Appeals Council 

denied Plaintiff's request for review. Tr. 1-4. 

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

BACKGROUND 

Plaintiff was born in May, 1969. Tr. 138. 

See Sims v. 

He completed 

three years of college coursework in an accounting program. 

Tr. 36-37, 55, 143. Plaintiff has past relevant work experience 

as a yard supervisor for a lumber warehouse and as a truck 

driver. Tr. 143. 

Plaintiff stopped working on July 20, 2006, after injuring 

his right arm in an "intense overload injury" when he attempted 

to pull a 100-pound tarp bar out of a bed filled with wood chips. 

Tr. 39-40, 142, 207, 560. He was released to light-duty work 

(Tr. 553), but he never returned to work because his employer did 

not have light-duty work available. Tr. 39-40. Plaintiff 

alleges disability due to obesity, a heart problem, arthritis, 

and problems with his right elbow. Tr. 127-28, 138, 142. 

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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. 20-22. 

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.n 42 U.S.C. 

§ 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 (9~ 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 (9~ Cir. 2012). Substantial evidence is 

"relevant evidence that a reasonable mind might accept as 

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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 

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 

I. The Regulatory Sequential Evaluation 

At Step One the claimant is not disabled if the Commissioner 

determines the claimant is engaged in substantial gainful 

activity. 20 C.F.R. § 404.1520(a) (4) (I). See also Keyser v. 

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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. 

§ 404.1520(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. 

§ 404 .1520 (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 

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 his limitations. 20 C.F.R. 

§ 404 .1520 (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 *l. In other 

words, the Social Security Act does not require complete 

incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Adrnin., 

659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885 

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Case 6:15-cv-00786-BR Document 16 Filed 06/29/16 Page 6 of 15
F.2d597, 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. § 404 .1520 (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. § 404.1520(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 

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). 

ALJ' S FINDINGS 

At Step One the ALJ found Plaintiff met the insured status 

requirements and has not engaged in substantial gainful activity 

since his July 20, 2006, alleged onset date through his date last 

insured of December 31, 2011. Tr. 17. 

At Step Two the ALJ found Plaintiff has the severe 

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Case 6:15-cv-00786-BR Document 16 Filed 06/29/16 Page 7 of 15
impairments of morbid obesity, patellofemoral syndrome, 

osteoarthritis; migraines, sleep apnea, coronary artery disease, 

right elbow tendinitis, and cervicalgia. Tr. 17. 

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. 18. The ALJ gave "particular consideration to sections 

1.02, 1.04, 3.03, 3.10, 4.01, and 11.00" and specifically found 

(1) Plaintiff "is not unable to ambulate effectively or unable 

to perform fine and gross motor movements effectively"; 

(2) Plaintiff's "spinal impairment does not meet or medically 

equal listing 1.04 because [Plaintiff] lacks the requisite motor 

and sensory deficits and there is no evidence of spinal 

arachnoiditis or lumbar spinal stenosis resulting in 

pseudoclaudication"; and (3) none of Plaintiff's "respiratory, 

cardiovascular, or neurological (migraine) impairments are of 

listing-level severity." Tr. 18. 

The ALJ found Plaintiff has the RFC to perform sedentary 

work with the following limitations: He may use a cane or walker 

as needed for ambulation; he should be allowed to alternate 

sitting or standing positions as needed throughout the day while 

remaining on task; he can engage in occasional bilateral pushing 

or pulling and occasional bilateral foot control operation; he 

can never climb ramps, stairs, ladders, ropes, or scaffolds; he 

8 - OPINION AND ORDER 

Case 6:15-cv-00786-BR Document 16 Filed 06/29/16 Page 8 of 15
can never stoop, kneel, crouch, or crawl; he may frequently 

rotate, flex, or extend his neck; he should avoid concentrated 

exposure to extreme heat and humidity and irritants such as 

fumes, odors, dust, gases, and poorly ventilated areas; he should 

avoid moderate exposure to operational control of moving 

machinery, unprotected heights, and hazardous machinery; he would 

be absent less than two days per month due to his conditions; and 

he would be off-task outside normal work breaks less than five 

percent of the workday due to his conditions. Tr. 18. 

At Step Four the ALJ found Plaintiff is unable to perform 

any of his past relevant work as a truck driver or forklift 

operator. Tr. 22. 

At Step Five the ALJ concluded Plaintiff could perform jobs 

that exist in the national economy, including stuffer, bench 

hand, and table worker. Tr. 23. Accordingly, the ALJ found 

Plaintiff is not disabled. Tr. 24. 

DISCUSSION 

Plaintiff contends the ALJ erred when she (1) rejected his 

subjective symptom testimony and (2) improperly omitted 

limitations from his RFC. 

I. The ALJ properly rejected Plaintiff's testimony. 

Plaintiff alleges the ALJ erred by failing to provide clear 

and convincing reasons for finding Plaintiff's testimony was not 

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fully credible. 

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). The claimant, however, need not produce objective 

medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284. 

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 administrative hearing Plaintiff maintained that he 

could not perform even sedentary work because of his conditions. 

He testified he takes high doses of morphine throughout the day 

with Norco for breakout pain and is unable to perform repetitive 

motion with his right arm. He is unable to type at an adequate 

10 - OPINION AND ORDER 

Case 6:15-cv-00786-BR Document 16 Filed 06/29/16 Page 10 of 15
speed because of his arm condition. Tr. 42-43. He testified he 

could not sit at a computer due to his knee condition and needs 

to lie down and take naps during the day. Tr. 49, 56, 59-60, 

171. Plaintiff also alleged he could not work due to headaches 

and fatigue. 

The ALJ provided several reasons for rejecting Plaintiff's 

testimony. First, in his application for unemployment benefits 

in Washington Plaintiff represented himself as able to work. The 

Ninth Circuit has stated the receipt of unemployment benefits 

does not necessarily contradict a claimant's allegations of 

disability because the claimant may be holding himself out as 

capable of performing only part-time work. Carmickle v. Comm'r, 

533 F.3d 1155, 1161-62 (9'" Cir. 2008). The claimant in 

Carmickle, however, applied for benefits in Oregon; the 

provisions of the Washington unemployment regulations require an 

applicant to certify that he is "willing to work full-time, parttime, and accept temporary work during all of the usual hours and 

days of the week" as well as being "capable of accepting and 

reporting for any suitable work." WAC 192-170-010(1) (a) and (b) 

Plaintiff argues this case resembles Dellomes v. Colvin in 

which a district judge from the Western District of Washington 

adopted the Report and Recommendation of Magistrate Judge 

Donohue, who wrote in a footnote that "[t]he parties agree 

the ALJ should not have relied upon plaintiff's receipt of 

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unemployment benefits because there is no evidence in the record 

that he held himself out as available for full-time, as opposed 

to part-time, work.n No. C14-425-JLR, 2014 WL 6908527 (W.D. 

Wash. Dec. 8, 2014). This Court follows the reasoning in 

Dellomes and concludes Plaintiff's unemployment application to 

the State of Washington does not reflect negatively on his 

credibility because it is possible that Plaintiff intended to 

hold himself out as only capable of part-time work. The Court, 

therefore, finds the ALJ's first reason for rejecting Plaintiff's 

credibility fails to meet the clear and convincing standard. 

Second, the ALJ found the circumstances under which 

Plaintiff stopped working undermined his credibility. The ALJ 

may assign less weight to a claimant's testimony when the 

claimant stopped working for reasons other than disability. 

Bruton v. Massanari, 268 F.3d 824, 833 (9t" Cir. 2001). 

Plaintiff testified he stopped working because he could not 

return to his work as a truck driver, a position that required 

medium-to-heavy exertion. Tr. 61, 142, 207. The medical 

evidence indicates Plaintiff was capable of performing light duty 

or sedentary work after his alleged onset date. Tr. 408, 522, 

524, 553. It was reasonable, therefore, for the ALJ to conclude 

that Plaintiff stopped working because his employer did not have 

light-duty work available rather than because of Plaintiff's 

impairments. Thus, the Court finds the ALJ provided a clear and 

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convincing reason for according less weight to Plaintiff's 

testimony. See Bruton, 268 F.3d at 833. 

Third, the ALJ noted Plaintiff's testimony conflicted with 

his own statements and with the medical evidence in the record. 

Specifically, while Plaintiff testified he could not perform even 

sedentary work because he could not sit and needs to take naps 

during the day, these allegations are inconsistent with 

Plaintiff's own account of the findings of his treating physician 

who released him to light-duty work after his alleged onset date. 

Tr. 49, 56, 59-60, 171. Medical evidence throughout the record 

confirms Plaintiff could perform light-duty or sedentary work. 

See, e.g., Tr. 408 (treatment note from David Van Scoy, M.D., 

indicating Plaintiff is capable of performing clerical work); 

Tr. 524 (note from Richard Abraham, M.D., releasing Plaintiff to 

"light sedentary work"); Tr. 553 (note from John Feldman, M. D., 

releasing Plaintiff to "[l]ight duty work if available"). The 

medical evidence, therefore, overwhelmingly contradicts 

Plaintiff's contention that he was completely disabled as of his 

alleged onset date. The Court finds, therefore, that the ALJ 

provided a second clear and convincing reason for rejecting 

Plaintiff's testimony. 

Fourth, the ALJ found Plaintiff consulted with a vocational 

expert, who identified jobs that Plaintiff could perform after 

his alleged onset date including bookkeeper, office clerk, and 

13 - OPINION AND ORDER 

Case 6:15-cv-00786-BR Document 16 Filed 06/29/16 Page 13 of 15
accounting clerk. Tr. 53, 523, 528. This evidence also weighs 

in favor of the ALJ's finding that Plaintiff was not as severely 

limited after his alleged onset date as he asserts. 

On this record the Court concludes the ALJ provided legally 

sufficient reasons for rejecting Plaintiff's subjective symptom 

testimony. To the extent that the ALJ erred in her analysis, 

such error is harmless because she provided legally sufficient 

reasons supported by substantial evidence in the record that 

support her credibility determination. Molina, 674 F.3d at 1117 

(the court shall not reverse an ALJ's decision for errors that 

are inconsequential to the ultimate nondisability determination). 

II. The ALJ did not err in her assessment of Plaintiff's RFC. 

Plaintiff also argues the ALJ's assessment of Plaintiff's 

RFC was defective because it failed to account for Plaintiff's 

headaches and right arm impairment. These alleged limitations, 

however, are substantiated only by Plaintiff's testimony, which 

the ALJ properly found was not credible. Because the ALJ need 

not incorporate limitations into the RFC properly found not to be 

credible, the ALJ did not err in his assessment of Plaintiff's 

RFC. 

Nevertheless, the ALJ considered Plaintiff's statements 

regarding his headaches and arm impairment in her written 

decision. She accommodated Plaintiff's headaches in the RFC by 

allowing for limited absences each month. Tr. 18, 21. The ALJ 

14 - OPINION AND ORDER 

Case 6:15-cv-00786-BR Document 16 Filed 06/29/16 Page 14 of 15
also noted Plaintiff was advised to avoid "forceful repetitive 

right gripping,u but that his limitations were consistent with 

the job requirements of bookkeeper, office clerk, and accounting 

clerk. Tr. 22. The physical demands of this work are also 

consistent with the jobs that the ALJ identified at Step Five. 

Compare Accounting Clerk, DOT 216.482-010, 1991 WL 671993 with 

Stuffer, DOT 731.685-041, 1991 WL 679811. 

On this record the Court concludes the ALJ's opinion is 

supported by substantial evidence and, therefore, is affirmed. 

CONCLUSION 

For these reasons, the Court AFFIRMS the decision of the 

Commissioner and DISMISSES this matter. 

IT IS SO ORDERED. 

~ DATED this0:,i_q day of June, 2016. 

ANNA J. BROWN 

United States District Judge 

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