IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOHN PAUL CRAIG, 3:15-CV-00529-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

TIM WILBORN

Wilborn Law Office, P.C.

P.O. Box 370578

Law Vegas, NV 89137

(702) 240-0184

Attorneys 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) 727-1011

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Case 3:15-cv-00529-BR Document 19 Filed 05/10/16 Page 1 of 27
DAVID MORADO

Regional Chief Counsel

GERALD J. HILL 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104-7075

(206) 615-2139

Attorneys for Defendant

BROWN, Judge.

Plaintiff John Paul Craig 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). 

Following a review of the record, the Court REVERSES the

decision of the Commissioner and REMANDS this matter pursuant to

sentence four of 42 U.S.C. § 405(g) for the immediate calculation

and payment of benefits to Plaintiff. 

ADMINISTRATIVE HISTORY

Plaintiff protectively filed his application on 

February 10, 2012, and alleged a disability onset date of 

June 19, 2010. Tr. 146-48, 156. 1 The application was denied

1

 Citations to the official transcript of record filed by

the Commissioner on April 13, 2015, are referred to as "Tr."

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initially and on reconsideration. An Administrative Law Judge

(ALJ) held a hearing on September 3, 2013. Tr. 34-66. At the

hearing Plaintiff was represented by an attorney. Plaintiff and

a vocational expert (VE) testified.

The ALJ issued a decision on September 19, 2013, in which he

found Plaintiff is not disabled. Tr. 15-29. Plaintiff submitted

additional evidence to the Appeals Council. That decision became

the final decision of the Commissioner on February 9, 2015, when

the Appeals Council denied Plaintiff's request for review. 

Tr. 1-6. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On March 31, 2015, Plaintiff filed a complaint in this Court

seeking review of the Commissioner’s decision.

BACKGROUND

Plaintiff was born in June 1964 and was 46 years old on his

alleged onset date. The record is not clear as to his

education.2 Tr. 39, 161. Plaintiff has past relevant work

experience as a superintendent of bridge construction,

construction welder, and structural-steel worker. Tr. 28.

Plaintiff alleges disability due to a “broken back and 

2 In March 2012 Plaintiff reported to the Social Security

Administration that he obtained a GED in 1980. Tr. 161. At the

hearing before the ALJ, however, Plaintiff testified he did not

obtain a GED but only completed the seventh grade. Tr. 39.

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messed up surgery to fuse my back, back injury, and medication[s]

they are giving me.” Tr. 160.

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." 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 (9th 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 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

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

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(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

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.

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

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impairment 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 *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

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

F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

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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 has not engaged 

in substantial gainful activity (SGA) since his June 19, 2010,

alleged onset date. Tr. 20. The ALJ found Plaintiff meets the

insured status requirements through December 31, 2014.

At Step Two the ALJ found Plaintiff has severe impairments

including degenerative disc disease of the spine with residual

chronic pain. Tr. 20. 

At Step Three the ALJ found Plaintiff’s impairments do not

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meet or equal any listed impairment. Tr. 22. The ALJ found

Plaintiff has the RFC for less than a full range of light work

and can lift and carry 20 pounds occasionally and 10 pounds

frequently; stand and walk for six hours; and sit for two hours

in an eight-hour work day. He can occasionally climb ramps and

stairs but should not climb ladders, ropes, or scaffolds. He

should not be exposed to hazards such as unprotected heights. He

can occasionally stoop, kneel, crouch, crawl, and occasionally

operate foot controls. Tr. 22.

At Step Four the ALJ found Plaintiff is unable to perform

any past relevant work. Tr. 28. 

At Step Five the ALJ found Plaintiff is able to perform the

occupations of production assembler, hand-packager, wafer breaker

semi-conductor, and taper circuit layout. Tr. 29. 

DISCUSSION

Plaintiff contends the Appeals Council erred by reviewing

but failing to include in the record a March 2014 medical source

statement from treating physician Marc. C. Rothgery, M.D.

Plaintiff submits the document to this Court as Exhibit 1. 

Plaintiff also contends the Commissioner erred by (1) improperly

finding Plaintiff’s testimony was not fully credible, (2) failing

at Step Two to find pseudoarthrosis is a severe impairment, 

(3) improperly weighing medical evidence, and (4) posing an

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incomplete hypothetical question to the VE. 

I. The ALJ erred when he found Plaintiff was less than fully

 credible.

 Plaintiff contends the ALJ erred when he found Plaintiff’s

testimony was not fully credible. 

The ALJ is responsible for determining credibility,

resolving conflicts in medical testimony, and resolving

ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

1995). See also Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir.

2008). The ALJ's findings, however, must be supported by

specific, cogent reasons. Reddick v. Chater, 157 F.3d 715, 722

(9th Cir. 1998). See also Holohan v. Massanari, 246 F.3d 1195,

1202 (9th Cir. 2001). Unless there is affirmative evidence that

shows the claimant is malingering, the Commissioner's reason for

rejecting the claimant's testimony must be "clear and

convincing." Id. The ALJ must identify the testimony that is

not credible and the evidence that undermines the claimant's

complaints. Id. The evidence on which the ALJ relies must be

substantial. Id. at 724. See also Holohan, 246 F.3d at 1208. 

General findings (e.g., "record in general" indicates

improvement) are an insufficient basis to support an adverse

credibility determination. Reddick, 157 F.3d at 722. See also

Holohan, 246 F.3d at 1208.

When deciding whether to accept a claimant's subjective

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symptom testimony, "an ALJ must perform two stages of analysis: 

the Cotton analysis and an analysis of the credibility of the

claimant's testimony regarding the severity of her symptoms." 

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).

Under the Cotton test, a claimant who alleges

disability based on subjective symptoms "must 

produce objective medical evidence of an underlying impairment which could reasonably be 

expected to produce the pain or other symptoms

alleged." Bunnell, 947 F.2d at 344 (quoting 

42 U.S.C. § 423(d)(5)(A) (1988)); Cotton, 799 

F.2d at 1407-08. The Cotton test imposes only 

two requirements on the claimant:(l) she must 

produce objective medical evidence of an 

impairment or impairments; and (2) she must 

show that the impairment or combination of 

impairments could reasonably be expected to

(not that it did in fact) produce some degree 

of symptom. 

Smolen, 80 F.3d at 1282. See also Carmickle v. Comm’r Soc. Sec.

Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).

If the claimant satisfies the above test and there is not 

affirmative evidence of malingering, the ALJ can reject the

claimant’s pain testimony only if he 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)). The ALJ’s findings must be “sufficiently

specific to permit the court to conclude that the ALJ did not

arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart,

278 F.3d 947, 958 (9th Cir. 2002).

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A. Plaintiff’s Testimony

In his Adult Function Report dated May 7, 2012, Plaintiff

reported he lives with his family. He cares for his four-yearold daughter by feeding her and working on the computer with her. 

His wife bathes and cleans their daughter. Tr. 187. 

Plaintiff stated he cannot bend down to pick up anything and

is in constant severe pain. Tr. 186. Plaintiff reported pain

wakes him up whenever he turns over. He cannot put on his shoes

and socks or wash his feet. Tr. 188. His wife prepares most of

the meals. He does laundry once a week for a couple of hours,

but he does not do other house or yard work because of back pain. 

Tr. 189. He is no longer able to go fishing, but he plays some

computer games. He stopped attending weekly poker games because

of back pain. Tr. 191. Plaintiff cannot lift more than 20

pounds or bend. He can walk about 100 yards before requiring

rest. He uses a cane and has a back brace. Tr. 192. Plaintiff

takes Dilaudid, which causes fatigue. Tr. 192. 

At the September 2013 hearing before the ALJ, Plaintiff

testified he had completed the seventh grade. Tr. 39. He

dropped out of school to go to work. For the past 23 years he

worked in heavy highway and bridge construction. He had back

surgery in June 2010 and was scheduled to see another

neurosurgeon. Tr. 40. 

Plaintiff had a medical marijuana card at one time, but he

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has not used it for over a year and does not use amphetamines. 

Tr. 41. Plaintiff testified he takes four milligrams of

hydromorphine every four hours. Tr. 42. The medication is not

completely effective, but “it does numb it a bit.” Tr. 43. His

wife works, and he “stay[s] at home with [my daughter]. I don’t

know who takes care of who more. She takes care of me or I take

care of her.” Tr. 43. His pain is in his back rather than his

legs. He takes Requip, however, for restless-leg syndrome. His

physician is tapering him off gabapentin to see whether that will

stop his nightmares.

Plaintiff believes he could not maintain a job on an

assembly line because “[g]etting out of bed in the morning, for

one thing, and being able to sit there in one spot.” Tr. 45. 

His pain is worse in the morning. His daughter will start school

in the fall, and his wife will be getting her ready. Tr. 46. On

a normal day he plays on the computer with his daughter and is on

the couch or in bed most of the day. His daughter wakes him from

his naps. 

He testified he can sit upright for five or ten minutes. If

he reclines, he can sit for about an hour. Tr. 49. Sitting is

more difficult than standing. Tr. 48. He lies down flat on his

back every couple of hours during the day for 30 minutes to two

hours. Tr. 50. He can stand for one or two hours. He uses a

walking stick and a cane if he has to bend. He has not been able

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to put on socks for years and uses a grabber tool. Tr. 52. If

he reaches too far, his legs might buckle. He is about ten times

slower than he was before surgery. Tr. 53.

Plaintiff said getting out of bed in the morning is the

“hardest part.” Tr. 54. He does not believe he could sustain an

eight-hour work day “unless I got a lot more medication. I mean

that’s the only thing that’s been getting me through so far, just

the pain pills.” Id. Although his “pain contract” with Kaiser

precludes recreational drugs, his cold medicine caused false

positive methamphetamine results. 

He has difficulty getting along with people and is edgy,

frustrated, and depressed. He is impatient and has problems

coping with stress. Plaintiff believes the medication is

affecting his short-term memory. He has more bad days than good

days. A bad day is “not being able to get out of bed and have my

daughter come over and waking me up and asking for me to fix her

some breakfast.” Tr. 56. His wife has missed work because she

thought Plaintiff could not care for their daughter. Tr. 57. 

B. The ALJ’s Analysis

The ALJ found Plaintiff’s statements as to the severity of

his impairments were less than fully credible. Tr. 23. The ALJ

noted Plaintiff’s activities of daily living demonstrated greater

functional capacity than Plaintiff alleged, there were not any

obvious pain generators, there were positive drug screens,

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Plaintiff received unemployment insurance benefits, and Plaintiff

made inconsistent statements regarding his education. The ALJ

found all of these factors undermined Plaintiff’s credibility. 

Tr. 23.

1. Activities of Daily Living

As noted, the ALJ pointed out that Plaintiff stays home

and cares for his daughter, who was approximately two years old

on Plaintiff’s alleged onset date. The ALJ noted Plaintiff 

“testified that his daughter helps him more than he helps her,

but that is obviously nonsensical for a 2-year old child (who

only recently turned 5).” Tr. 23. Plaintiff testified his wife

was not working when their daughter was two and had only started

working “in the last couple years.” Tr. 23. The Ninth Circuit

“has repeatedly asserted that the mere fact that a plaintiff has

carried on certain daily activities, such as grocery shopping,

driving a car, or limited walking for exercise does not in any

way detract from her credibility as to her overall disability. 

One does not need to be ‘utterly incapacitated’ in order to be

disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.

2001). Moreover, a claimant’s activities of daily living may

discredit his testimony about symptoms only when either (1) the

activities “meet the threshold for transferable work skills” or

(2) the activities contradict his testimony. Orn v. Astrue, 495

F.3d 625, 639 (9th Cir. 2007). Here, the Court notes,

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Plaintiff’s activities do not contradict his testimony nor meet

the threshold for transferable work skills.

On this record the Court concludes the ALJ’s reliance

on Plaintiff’s daily activities is not a legally sufficient

reason for finding Plaintiff’s testimony less than fully

credible. 

2. Obvious Pain Generators

The ALJ found Plaintiff less than fully credible

because “[t]here are no obvious pain generators.” Tr. 23. The

ALJ, however, found Plaintiff’s degenerative disk disease is a

severe impairment. In addition, Plaintiff was diagnosed with

pseudoarthrosis or failed back syndrome, which are also obvious

pain generators. 

On this record the Court concludes the ALJ’s reasoning

for finding Plaintiff’s testimony less than fully credible on

this basis does not constitute a legally sufficient reason for

doing so. 

3. Positive Drug Screens

Plaintiff testified he did not use methamphetamines. 

Tr. 41, 55. Plaintiff’s physicians noted any positive drug

screens for methamphetamine were caused by cold medications. 

Tr. 363, 405. 

On this record the Court concludes the ALJ’s assertion

that he “did not find the claimant’s testimony in that regard

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credible” does not constitute a legally sufficient reason for

finding Plaintiff’s testimony was less than fully credible. 

Tr. 23. 

4. Unemployment Insurance Benefits

The ALJ found Plaintiff’s credibility was impugned by

the fact that he received unemployment insurance benefits. The

ALJ, however, acknowledges he did “not explore the claimant’s

receipt of unemployment benefits.” Tr. 23. In August 2010

Plaintiff’s surgeon, Timothy Treible, M.D., released Plaintiff

for light-duty work for four hours a day lifting no more than ten

pounds. Tr. 227. 

A Social Security claimant is considered disabled if he

is unable to perform full-time work on a regular and continuing

basis; i.e., eight hours a day, five days a week. SSR 96-8p. 

Eligibility for unemployment insurance benefits from the State 

of Washington (which Plaintiff received) requires a worker to 

“be ready, able, and willing, immediately to accept any 

suitable work.” Wash. Rev. Code § 50.20.010(1)(c)(ii). 

“Suitable work” may be less than full-time. Wash. Admin. Code

192-170-010(1(a)(2), 192-170-050(1)(b). Only full-time work is

inconsistent with Plaintiff’s disability (see Carmickle v.

Comm’r. Soc. Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir.

2008)), and the record does not indicate whether Plaintiff

asserted he was available for full-time or part-time work when he

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applied for unemployment benefits. 

On this record the Court concludes the ALJ’s reliance

on Plaintiff’s application for unemployment insurance benefits

does not constitute a legally sufficient reason for the ALJ to

find Plaintiff’s testimony was less than fully credible.

5. Inconsistent Statements Regarding Education

Plaintiff testified he quit school in the seventh grade

because “I was going to work.” Tr. 39. The ALJ, however,

pointed out that Plaintiff’s work record from age 15 to 23

reflected little in earnings. 

As noted, in March 2012 Plaintiff reported to the

Social Security Administration that he obtained a GED in 1980. 

Tr. 161. At the hearing before the ALJ, however, Plaintiff

testified he did not obtain a GED. Tr. 39. Although this

inconsistency is a reason to question a Plaintiff’s credibility,

standing alone it does not constitute substantial evidence to

support the ALJ’s finding that Plaintiff’s testimony was not

credible in light of the totality of the evidence.

In summary, the Court concludes on this record that the ALJ

erred when he found Plaintiff’s testimony was less than fully

credible because his conclusions are not supported by substantial

evidence in the record.

II. The ALJ did not err at Step Two.

Plaintiff contends the ALJ erred at Step Two by failing to

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include lumbar spine pseudoarthrosis and/or failed back syndrome

as a severe impairment.

At Step Two the ALJ determines whether the claimant has a

medically severe impairment or combination of impairments. 

Keyser, 648 F.3d at 724. The Social Security Regulations and

Rulings, as well as the case law that applies them, discuss the

Step Two severity determination in terms of what is "not severe." 

According to the regulations, "an impairment is not severe if it

does not significantly limit [the claimant's] physical ability to

do basic work activities." 20 C.F.R. § 404.1521(a). Basic work

activities are "abilities and aptitudes necessary to do most

jobs, including, for example, walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying or handling." 20

C.F.R. § 404.1521(b). 

The Step Two inquiry is a de minimis screening device to

dispose of groundless claims. Keyser, 648 F.3d at 724. An

impairment or combination of impairments can be found "not

severe" only if the evidence establishes a slight abnormality

that has "no more than a minimal effect on an individual's

ability to work." SSR 85-28. See also Yuckert v. Bowen, 841

F.2d 303, 306 (9th Cir. 1988)(adopting SSR 85-28). A physical or

mental impairment must be established by medical evidence

consisting of signs, symptoms, and laboratory findings and cannot

be established on the basis of a claimant's symptoms alone. 20

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C.F.R. § 404.1508.

The ALJ noted the pseudoarthrosis diagnosis, but he did not

include it as a severe impairment. Because Plaintiff has not

identified functional limitations that specifically arise from

this condition or that differ from the limitations arising from

severe degenerative disc disease, the Court concludes the ALJ’s

error is harmless.

III. The Medical Evidence

Plaintiff contends the ALJ erred by improperly weighing the

medical evidence. Disability opinions are reserved for the

Commissioner. 20 C.F.R. §§ 404.1527(e)(1); 416.927(e)(1). If

there is not a conflict between medical source opinions, the ALJ

generally must accord greater weight to the opinion of a treating

physician than that of an examining physician. Lester, 81 F.3d

at 830. More weight is given to the opinion of a treating

physician because the person has a greater opportunity to know

and to observe the patient as an individual. Orn v. Astrue, 495

F.3d 625, 632 (9th Cir. 2007). In such circumstances the ALJ

should also give greater weight to the opinion of an examining

physician over that of a reviewing physician. Id. If a treating

or examining physician’s opinion is not contradicted by another

physician, the ALJ may only reject it for clear and convincing

reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d

1063, 1067 (9th Cir. 2006)(examining physician). Even if one

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physician is contradicted by another physician, the ALJ may not

reject the opinion without providing specific and legitimate

reasons supported by substantial evidence in the record. Orn, 

495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of a

nonexamining physician by itself is insufficient to constitute

substantial evidence to reject the opinion of a treating or

examining physician. Widmark, 454 F.3d at 1066 n.2. The ALJ may

reject physician opinions that are “brief, conclusory, and

inadequately supported by clinical findings.” Bayliss v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

 A. Treating Physician Timothy Treible, M.D.

The ALJ noted Dr. Treible did not assess Plaintiff with 

any long-term physical functional limitations. Tr. 26. In 

August 2010 Dr. Treible released Plaintiff to perform light work

for up to four hours a day lifting no more than ten pounds. 

Tr. 227. In September 2010 Dr. Treible continued the work

restrictions. Tr. 229. The ALJ noted both records and then

stated the work restrictions “appear to have been lifted” in

October (citing Transcript 231-32). Tr. 24-25. The parts of the

record cited by the ALJ, however, do not reflect the work

restrictions were lifted but instead indicate “faxed disability

forms to union” and subsequent records indicate “continue light

duty work only.” Tr. 233. 

On this record the Court concludes the ALJ erred when he

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rejected Dr. Treible’s opinion because the ALJ did not provide

legally sufficient reasons supported by substantial evidence in

the record for doing so.

 B. Examining Physician Donald D. Ramsthel, M.D. 

The ALJ gave “little weight” to Dr. Ramsthel’s opinion on

the grounds that it was inconsistent with the objective findings,

medical records, and opinions from Drs. Treible; Samuel H.

Hughes, M.D.; and Jeffrey Sy, M.D. 

Dr. Ramsthel examined Plaintiff on July 13, 2013. Tr. 367-

76. Dr. Ramsthel found Plaintiff had full bilateral motor

strength except his strength was only 4/5 in his bilateral hip

flexors. Tr. 368. Dr. Ramsthel diagnosed chronic low-back pain,

status post surgery failed back syndrome, and restless-leg

syndrome. Tr. 368. The doctor completed a Medical Source

Statement of Ability to do Work Related Activities in which he

opined Plaintiff was able to stand or to walk for only 25 minutes

at a time and up to two hours total in an eight-hour workday and

to sit for only five hours in an eight-hour workday. Tr. 372. 

Dr. Ramsthel found Plaintiff could never lift or carry more than

10 pounds. Tr. 371. Plaintiff could occasionally reach in any

direction, but “reaching movements aggravate his low back pain.” 

Tr. 373. He could never operate foot controls because of failed

back syndrome. Tr. 373. For the same reason Plaintiff could

never climb ladders or scaffolds, stoop, kneel, crouch, or crawl. 

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Tr. 374. Dr. Ramsthel concluded Plaintiff’s impairments were

present for “at least” the past 12 months. Tr. 376. 

 Dr. Hughes examined Plaintiff in August 2012 in a

neurological consultation. He diagnosed Plaintiff with failed

back surgery syndrome and recommended palliative procedures such

as nerve blockade or ablation. Tr 331-34. Neither Dr. Hughes

nor Dr. Sy assessed Plaintiff’s functional limitations. 

Dr. Ramsthel found Plaintiff had a reduced range of motion

in the dorsolumbar region. The ALJ rejected this assessment and

stated none of the treating doctors found a limited range of

motion. Tr. 27. The record, however, reflects Dr. Jenkins 

found Plaintiff had a reduced range of motion “in all planes.” 

Tr. 287.

The ALJ also found Dr. Ramsthel “appears to rely primarily

on the claimant’s anecdotal claims.” The record, however,

reflects Dr. Ramsthel performed a full examination, and, in any

event, this Court has concluded the ALJ erred when he found

Plaintiff’s testimony was less than fully credible.

On this record the Court concludes the ALJ erred when he

rejected Dr. Ramsthel’s opinion because the ALJ did not provide

legally sufficient reasons supported by substantial evidence in

the record for doing so. 

 C. Examining Physician Loren Jenkins, M.D.

The ALJ noted Dr. Jenkins’s report, but the ALJ did not

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specify what weight, if any, he gave it. Tr. 25. 

In April 2012 Plaintiff was seen by Dr. Jenkins for a spine

consultation. Tr. 286-87. Dr. Jenkins noted Plaintiff “had a

L4-S1 laminectomy, PSIF/TLIF. Post op the numbness and left

radicular pain went away but he has had severe unrelenting Low

Back Pain at surgical site. Not working. Cable Lumbo-Sacral

Orthosis (brace) helps, walking helps. The pain is worse with

standing, bending, lifting, activities of daily living.” 

Tr. 286.

Dr. Jenkins examined Plaintiff and found his spine as

“nontender to palpation, ramrod straight spine with hypokyphosis

and hypolordosis, pain with palpation at low lumbar spine at

surgical site, range of motion limited in all planes and pain w

motion in all planes.” Tr. 287. Radiographs showed “L4-S1 two

level tlif/psif. Fusion not clear. Implants intact.” Tr. 287.

Dr. Jenkins diagnosed Plaintiff with chronic pain syndrome

and restless-leg syndrome and noted Plaintiff’s history of

lumbosacral spine surgery. Dr. Jenkins stated: “Severe pain,

disabled at this time by report. Counseling related to

diagnosis, treatment options, and prognosis. Also discussed

difficulty in diagnosis. . . . We have come to the conclusion

that the best approach will be to get more info and help in

management.” Tr. 287. 

Dr. Jenkins read and reviewed Plaintiff’s CT scan and found

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Case 3:15-cv-00529-BR Document 19 Filed 05/10/16 Page 23 of 27
spinal pseudoarthrosis at L4-5 and L5-S1. He stated: “I do not

see any type of revision surgery moving this man back into the

physical work force. He would always be restricted in lifting

and activities even with the best outcome.” Tr. 289.

Although the ALJ found Dr. Jenkins did not assess Plaintiff’s

long-term physical functional limitations, the record reflects

Dr. Jenkins concluded Plaintiff would “always be restricted in

lifting and activities.” Tr. 26, 289.

On this record the Court concludes the ALJ erred when he

rejected Dr. Jenkins’s opinion because the ALJ did not provide

legally sufficient reasons supported by substantial evidence in

the record for doing so.

 D. Treating Physician Marc C. Rothgery, M.D.

The ALJ did not review Dr. Rothgery’s opinion because it was

submitted to the Appeals Council after Plaintiff’s hearing. The

Appeals Council rejected the opinion as relating to a time after

the September 19, 2013, decision by the ALJ. Tr. 2. 

This Court can consider a physician’s opinion rejected by

the Appeals Council to determine whether, in light of the record

as a whole, the ALJ’s decision was supported by substantial

evidence and free of legal error. Ramirez v. Shalala, 8 F.3d

1449, 1451 (9th Cir. 1993). 

Dr. Rothgery began treating Plaintiff in June 2013. 

Tr. 362-65. In documents submitted to and reviewed by the

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Case 3:15-cv-00529-BR Document 19 Filed 05/10/16 Page 24 of 27
Appeals Council, Dr. Rothgery reported he reviewed Dr. Ramsthel’s

July 2013 assessment and concurred with those findings as to

Plaintiff’s functional limitations. Pl.’s Ex. 1. 

Thus, on this record and in light of this Court’s findings

as to the ALJ’s errors, the Court concludes the ALJ’s decision is

not supported by legally sufficient reasons or substantial

evidence in the record. 

 REMAND

The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely

utility of further proceedings. Harman v. Apfel, 211 F.3d 1172,

1179 (9th Cir. 2000). When "the record has been fully developed

and further administrative proceedings would serve no useful

purpose, the district court should remand for an immediate award

of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004). 

The decision whether to remand this case for further

proceedings or for the payment of benefits is a decision within

the discretion of the court. Harman, 211 F.3d 1178.

The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman, 211 F.3d at 1178. The 

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Case 3:15-cv-00529-BR Document 19 Filed 05/10/16 Page 25 of 27
Court should grant an immediate award of benefits when:

(1) the ALJ has 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

required to find the claimant disabled were

such evidence credited.

Id. The second and third prongs of the test often merge into a

single question: Whether the ALJ would have to award benefits if

the case were remanded for further proceedings. Id. at 1178 n.2.

The Court has determined the ALJ erred when he found

Plaintiff’s testimony was less than fully credible. In addition,

the Court has concluded the ALJ erred when he rejected the

opinions of Drs. Treible, Jenkins, Ramsthel, and Rothgery. If

credited, those opinions establish Plaintiff is disabled. Thus,

the Court concludes Plaintiff is disabled based on this medical

record and no useful purpose would be served by a remand of this

matter for further proceedings. See Harman, 211 F.3d at 117.

Accordingly, the Court remands this matter for the immediate

calculation and award of benefits.

CONCLUSION

For these reasons, the Court REVERSES the decision of the

Commissioner and REMANDS this matter to the Commissioner pursuant

to sentence four, 42 U.S.C. § 405(g), for the immediate

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calculation and payment of benefits to Plaintiff.

IT IS SO ORDERED.

DATED this 10th day of May, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

 

 

 

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