IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

SAMUEL NERVEZA, JR., 

Plaintiff, 

V. 

COMMISSIONER, SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

MARK D. CLARKE, Magistrate Judge. 

Civ. No. 3:14-cv-02045-CL 

REPORT 

& RECOMMENDATION 

Plaintiff Samuel Nerveza, Jr., ("Plaintiff') seeks judicial review of the final decision of 

the Commissioner of the Social Security Administration ("Commissioner") denying his 

application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") 

under the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). 

Because the Commissioner's decision is not supported by substantial evidence, it should be 

REVERSED and REMANDED. 

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BACKGROUND 

Plaintiff was born on July 31, 1964. Tr. 241. He is a high school graduate with prior work 

experience as a senior service technical engineer, plant engineer, maintenance worker, and 

woodworker. Tr. 56-59. Each of these positions involved heavy, physically demanding work. Tr. 

79. Plaintiff was injured in a head-on car accident on November 16, 2007. Tr. 53, 255. Since 

then, he has struggled with significant pain Tr. 303-04. As a result of that pain, Plaintiff has 

become sedentary, gained weight, and developed diabetes. Tr. 249-50. 

On May 6, 2011, Plaintiff filed an application for benefits alleging disability since 

November 16, 2007 - the date of his car accident - due to a hip injury, lower back injury, and 

diabetes. Tr. 20, 297. The Commissioner denied Plaintiffs application initially and on 

reconsideration. Tr. 20. At Plaintiff's request, a hearing was held before an Administrative Law 

Judge ("ALJ) on June 26, 2013. Tr. 20. On July 26, 2013, the ALJ issued a decision finding 

Plaintiff not disabled. Tr. 28. The Appeals Counsel denied Plaintiff's request for review, 

rendering the ALJ's denial the final decision of the Commissioner Tr. 1. This appeal followed. 

DISABILITY ANALYSIS 

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which ... has lasted or 

can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. 

§ 423( d)(l )(A). "Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act." 

Keyser v. Comm 'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§ 404.1520 (DIB); 20 C.F.R. § 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each 

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step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4). The five-step 

sequential process asks the following series of questions: 

1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner's 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless 

expected to result in death, an impairment is "severe" if it significantly 

limits the claimant's physical or mental ability to do basic work activities. 

20 C.F.R. §§ 404.1521(a); 416.92l(a). This impairment must have lasted 

or must be expected to last for a continuous period of at least 12 months. 

20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe 

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 

416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds beyond step three. At that 

point, the ALJ must evaluate medical and other relevant evidence to assess 

and determine the claimant's "residual functional capacity" ("RFC"). This 

is an assessment of work-related activities that the claimant may still 

perform on a regular and continuing basis, despite any limitations imposed 

by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 

416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, 

the analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

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significant numbers in the national economy? If so, then the claimant is 

not disabled. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 

416.960(c). If the claimant cannot perform such work, he or she is 

disabled. Id. 

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). 

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F .3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy, "taking into consideration the claimant's residual functional 

capacity, age, education, and work experience." Id.; see also 20 C.F.R. §§ 404.1566; 416.966 

(describing "work which exists in the national economy"). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099. 

THE ALJ'S FINDINGS 

The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had not 

engaged in substantial gainful activity since his alleged disability onset date. Tr. 22. At step two, 

the ALJ found Plaintiff suffered from the following severe impairments: "[ d]iabetes, status-post 

right shoulder AC separation, disc protrusion at L4-5, residuals from a motor vehicle accident, 

and obesity." Tr. 22. At step three, the ALJ found, considered singly and in combination, 

Plaintiffs impairments did not meet or medically equal the severity of any listed impairments. 

Tr. 23. 

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Next, the ALJ assessed Plaintiffs residual functional capacity ("RFC"). Tr. 24. She 

determined that Plaintiff could perform light work with the following qualifications: 

( 1) The clamant is limited to occasional climbing of ramps and stairs and no 

climbing of ladders, ropes, and scaffolds; (2) the claimant is limited to 

occasional balancing, stooping, kneeling, crouching, and crawling; and (3) 

the claimant should avoid exposure to hazards such as unprotected heights 

and dangerous machinery. 

Tr. 24. At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. Tr. 

26. Considering Plaintiffs age, education, experience, and RFC, the ALJ determined Plaintiff 

was capable of performing jobs that exist in significant numbers in the national economy, 

including assembly worker and cashier. Tr. 27. Therefore, the ALJ concluded Plaintiff had not 

been under a disability, as defined by the Social Security Act, since the date of his application. 

Tr. 27-28. 

ST AND ARD OF REVIEW 

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

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means 

"more than a mere scintilla, but less than a preponderance." Bray v. Comm 'r, 554 F.3d 1219, 

1222 (9th Cir. 2009) (quoting Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means 

"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 

Id. 

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th 

Cir. 1982). Variable interpretations of the evidence are insignificant if the Commissioner's 

interpretation is a rational reading of the record, and this court may not substitute its judgment 

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for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, a 

reviewing court must consider the entire record as a whole and may not affirm simply by 

isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th 

Cir. 2007) (quoting Robbins v. Soc. Sec. Adm in., 466 F .3d 880, 882 (9th Cir. 2006) (quotation 

marks omitted)). The reviewing court, however, may not affirm the Commissioner on a ground 

upon which the Commissioner did not rely. Orn, 495 F.3d at 630; see also Bray, 554 F.3d 

at 1226-26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). 

DISCUSSION 

Plaintiff argues the ALJ erred by: ( 1) discrediting his testimony without providing clear 

and convincing reasons for doing so, and (2) dismissing lay testimony for less than germane 

reasons. In addition, Plaintiff asserts the Appeals Council erred in its treatment of evidence 

submitted after the ALJ' s decision was issued. 

I. The ALJ Invalidly Discredited Plaintiff. 

Plaintiff contends the ALJ improperly discredited his testimony. When gaugmg a 

claimant's credibility, an ALJ must engage in a two-step process. 20 C.F.R. §§ 404.1529, 

416. 929. First, the ALJ must determine whether there is objective medical evidence of an 

underlying impairment that could reasonably be expected to produce some degree of symptoms. 

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, if such evidence exists, barring 

affirmative evidence of malingering, 1 the ALJ must give clear and convincing reasons for 

discrediting the claimant's testimony regarding the severity of the symptoms. Id. at 1283-84. 

Clear and convincing reasons for rejecting a claimant's testimony "include conflicting medical 

evidence[;] effective medical treatment[;] medical noncompliance[;] inconsistencies in the 

1 The ALJ found no evidence of malingering in this case. 

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claimant's testimony or between her testimony and her conduct[;] daily activities inconsistent 

with the alleged symptoms[;] and testimony from physicians and third parties about the nature, 

severity[,] and effect of the symptoms complained of." Bowers v. As true, No. 6: 11-cv-583-SI, 

2012 WL 2401642, at *9 (D. Or. June 25, 2012). An ALJ may also consider (1) "ordinary 

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

statements concerning the symptoms, and other testimony by the claimant that appears less than 

candid[,]" and (2) "unexplained or inadequately explained failure to seek treatment or to follow a 

prescribed course of treatment[.]" Smolen, 80 F.3d at 1284. A general assertion that the Plaintiff 

is not credible is insufficient. The ALJ must identify what testimony is not credible and what 

evidence undermines the claimant's allegations. Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 

1993). If the ALJ's credibility finding is supported by substantial evidence in the record, this 

Court may not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 

2002). 

Here, the ALJ found Plaintiff's impairments could reasonably be expected to cause some 

of his alleged symptoms. Tr. 24. However, she found Plaintiff's statements regarding the 

intensity, persistence, and limiting effects of his symptoms were not fully credible. Tr. 24-25. 

The ALJ detailed two reasons for this determination. Plaintiff asserts they are neither clear nor 

convmcmg. 

First, the ALJ found Plaintiff's "allegations of extreme fatigue and disability" were not 

consistent with his daily activities. Tr. 26. In particular, the ALJ noted that Plaintiff takes care of 

his own personal hygiene and grooming, prepares simple meals, maintains his house and yard, 

drives a car, shops, attends a weekly writer's group, is enrolled in school, watches his son's 

football practices, cares for his 10-year-old daughter, and goes fishing. Tr. 26. The Ninth Circuit 

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"has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities ... 

does not in any way detract from [his] credibility as to [his] overall disability." Orn v. Astrue, 

495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 

2001)). An ALJ can weigh a claimant's daily activities against his credibility only if they (1) 

contradict his other testimony or (2) constitute transferable work skills. Id. Neither ground is 

present here. The ALJ did not identify testimony she deemed to be at odds with Plaintiffs 

reported activities. Her finding that Plaintiffs "activities of daily living" "support the conclusion 

that [he] is able to return to work" is not sufficiently specific to permit this Court's review. Tr. 

26; Bunnell v. Sullivan, 94 7 F .2d 341, 345-46 (9th Cir. 1991) (an ALJ' s findings "must be 

sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the 

claimant's testimony on permissible grounds"). The ALJ did not detail why she concluded 

Plaintiffs activities were transferable to a work setting. It is not apparent from the record how 

Plaintiffs ability to groom himself, for example, shows he is qualified for competitive 

employment. Without this information, the Court cannot confidently conclude that the ALJ 

properly weighed Plaintiffs day-to-day activities against him. 

Second, the ALJ found that objective evidence showed Plaintiffs impairments did not 

preclude him "from engaging in all basic work activity[.]" Tr. 25. The ALJ cited various medical 

records that suggest Plaintiff can work despite the "musculoskeletal residual effects" of his car 

accident. Tr. 25. Plaintiff was released to light duty in August of 2008. Though he claims that he 

has "severe issues with lifting his arm to shoulder height," this condition is not mentioned in 

some provider notes. Tr. 25. His chief complaints have focused on his back, groin, and hip area. 

The ALJ also cited treatment notes that support her conclusion that Plaintiffs obesity and 

diabetes respond well to his prescribed treatment. When evaluating a claimant's statements, an 

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ALJ must "determine the extent to which [his] alleged functional limitations and restrictions ... 

can reasonably be accepted as consistent with the medical signs and laboratory findings[.]" 24 

C.F.R. § 404. l 529(a). The ALJ properly considered Plaintiff's statements regarding his alleged 

physical impairments together with his medical records. However, this is not sufficient to uphold 

her ultimate credibility determination. In the Ninth Circuit, a lack of medical evidence is relevant 

to a claimant's credibility but cannot form the "sole basis" for discounting his testimony. Burch 

v. Barnhart, 400 F .3d 676, 681 (9th Cir. 2005) ("Although lack of medical evidence cannot form 

the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his 

credibility analysis."). As discussed above, the ALJ's only other proffered reason for doubting 

Plaintiff was erroneous. Therefore, even though the ALJ validly weighed the objective record 

against Plaintiff, she erred when she discredited Plaintiff's testimony. 

II. The ALJ Erroneously Disregarded Lay Testimony. 

Plaintiff's friend and roommate, Patricia Mason, submitted a letter on Plaintiff's behalf. 

Tr. 249. She explained that she helps Plaintiff "in all areas of daily life, save toileting and 

bathing." Tr. 250. Most simple chores, like shopping, involve some twisting motion of the spine 

which gives Plaintiff painful spasms. Tr. 249. Scar tissue "binds him up and causes him more 

pain." Tr. 250. Plaintiff has been largely sedentary since his accident. Tr. 250. He has gained 

weight and developed diabetes. Tr. 250. Ms. Mason described Plaintiff as an accomplished 

musician who can no longer hold or strum a guitar. Tr. 249. He cannot play with his young 

daughter, and he struggles to sit through her soccer games because of muscle spasms and pain. 

Tr. 249. 

Lay testimony regarding a claimant's symptoms is competent evidence that the 

Commissioner must take into account. Stout v. Comm 'r, 454 F .3d 1050, 1053 (9th Cir. 2006). "If 

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an ALJ disregards the testimony of a lay witness, the ALJ must provide reasons that are germane 

to each witness [and] ... the reasons germane to each witness must be specific." Bruce v. Astrue, 

557 F.3d 1113, 1115 (9th Cir. 2009) (internal quotation marks omitted). Here, the ALJ found 

Ms. Mason's letter "supports the conclusion that [Plaintiff] is able to work within the limitations 

provided in the [RFC)" but discredited her testimony to the extent it suggested Plaintiff cannot 

work. Tr. 26. The ALJ viewed Ms. Mason's testimony with skepticism because her "close 

relationship" with Plaintiff "likely influenced her opinion[.]" Tr. 26. 

The Commissioner concedes the ALJ's treatment of Ms. Mason's lay testimony was 

erroneous. Def.'s Br., at 10. Ms. Mason described limitations in excess of the RFC. Her 

relationship with Plaintiff does not qualify as a germane reason for disqualifying her testimony. 

To the contrary, her proximity to, and regular interactions with, Plaintiff make her a particularly 

valuable witness. Smolen, 80 F.3d at 1289. The Commissioner maintains that this error was 

inconsequential to the ultimately disability determination because Ms. Mason's testimony 

mirrored Plaintiffs testimony and, therefore, the ALJ's reasons for rejecting Plaintiffs 

testimony "apply with equal force" to Ms. Mason's testimony. See Molina v. Astrue, 674 F.3d 

1104, 1122 (9th Cir. 2012) (and ALJ' s failure to discuss lay testimony was harmless where the 

lay witness "did not describe any limitations beyond those [the claimant] herself described, 

which the ALJ discussed at length and rejected based on well-supported, clear and convincing 

reasons."). However, as discussed above, the ALJ erroneously discredited Plaintiff. The ALJ's 

treatment of Plaintiffs testimony does not quell the Court's concerns regarding the ALJ' s flawed 

rejection of Ms. Mason's letter. 

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III. New Evidence Alters the Weight of the Evidence on the Record. 

On August 14, 2013, Plaintiffs primary treating physician, Dr. Beverley De La Bruere, 

completed a statement on Plaintiffs behalf. Tr. 236, 423-25. Dr. De La Bruere described 

Plaintiffs primary symptoms as pain, muscle spasms, stiffness, and poor endurance. She wrote 

that Plaintiff could stand and/or walk for 20 minutes at one time and for 1 hour total in an 8-hour 

day. Tr. 423. She indicated that Plaintiff could sit for 2 hours at one time and 4 hours total. Tr. 

423. She opined that he would need to spend the rest of his time reclining with his feet up. Tr. 

424. However, she noted that sometimes pain prevents Plaintiff from reclining for long. Tr. 424. 

In a standard workweek, Dr. De La Bruere estimated that pain would impair Plaintiffs ability to 

sustain the basic attention and concentration necessary to perform simple tasks more than 50 

percent of the time. Tr. 425. She opined that Plaintiff would miss 16 hours or more a month from 

a simple and routine sedentary job because of his impairments. Tr. 425. She explained, "[ e ]ven 

carrying out simple home tasks like shopping or cleaning are difficult. Any twisting or turning 

can trigger worsening of pain." 

Dr. De La Bruere drafted this statement weeks after the ALJ issued her unfavorable 

decision. Tr. 28. Therefore, the ALJ did not have the opportunity to consider it. The statement 

was, however, available on appeal. The Appeals Counsel accepted it into the record, but 

concluded that it did not provide a basis for changing the ALJ' s decision. Tr. 1, 4. Because the 

statement is part of the record on which the ALJ' s decision became final, this Court must 

consider it when assessing whether the denial is supported by substantial evidence. Brewes v. 

Comm 'r, 682 F.3d 1157, 1163 (9th Cir. 2012) ("[W]hen the Appeals Council considers new 

evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the 

administrative record, which the district court must consider when reviewing the 

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Commissioner's final decision for substantial evidence."). If the new evidence creates a 

reasonable possibility that it would change the outcome of the ALJ's decision, then remand is 

appropriate to allow the ALJ to consider the evidence. Mayes v. Massanari, 276 F.3d 453, 462 

(9th Cir. 2001). 

The Court finds it reasonably probable the ALJ would have reached a different decision if 

given the opportunity to consider Dr. De La Bruere's statement. Specifically, the statement 

undermines the ALJ's conclusion that Plaintiff could maintain sufficient attendance to retain a 

job. At the ALJ's hearing, a Vocational Expert testified that a person who missed 16 hours of 

work per month would not be able to sustain competitive employment. Tr. 82. In her new 

statement, Dr. De La Bruere estimated that Plaintiff would miss at least 16 hours a month from a 

simple, sedentary job. Tr. 425. Reading this evidence together, it is reasonable to conclude that 

Plaintiff's poor attendance would prevent him from continued employment. Moreover, the 

Vocational Expert testified that a person would struggle to keep his job if he took unscheduled 

half hour breaks in the morning and afternoon. Tr. 81-82. Dr. De La Bruere opined that 

Plaintiff's concentration would be impaired more than 50 percent of a typical work day, and that 

he would need to recline with his feet up for a substantial portion of any day. Tr. 423-24. These 

statements are not readily agreeable with one another. Remand is appropriate to allow the ALJ to 

iron out these inconsistencies and consider the record in light of Dr. De Le Bruere's new 

statement. 

IV. The Court Should Remand for Additional Proceedings. 

Having determined that reversal is necessary, the Court must determine whether to 

remand Plaintiff's case for further proceedings or immediate payment of benefits. "The decision 

whether to remand a case for additional evidence, or simply to award benefits is within the 

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discretion of the court." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. 

Heckler, 761 F.2d 530 (9th Cir. 1985)). Generally, when a court reverses an administrative 

decision, "the proper course, except in rare circumstances, is to remand to the agency for 

additional investigation or explanation." Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) 

(quoting INS v. Ventura, 537 U.S. 12, 16 (2002)). The issue turns on the utility of further 

proceedings. A remand for an award of benefits is appropriate when no useful purpose would be 

served by further administrative proceedings. Smolen, 80 F.3d at 1292. Here, for the reasons 

outlined above, remand is warranted for further development of the record and the consideration 

of new evidence. 

RECOMMENDATION 

For the foregoing reasons, the Commissioner's final decision should be REMANDED. 

In further proceedings, the ALJ should: 

1. Review Plaintiffs testimony regarding the severity of his symptoms, and either accept it 

as true or provide clear and convincing reasons for rejecting it. 

2. Consider Ms. Mason's letter, and either accept it as competent evidence or provide 

specific and germane reasons for rejecting it. 

3. Reconsider Plaintiffs application in light of Dr. De La Bruere's new statement. 

This Report and Recommendation will be referred to a district judge. Objections, if any, 

are due no later than fourteen (14) days after the date this recommendation is filed. If objections 

are filed, any response is due within fourteen (14) days after the date the objections are filed. See 

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FED. R. C1v. P. 72, 6. Parties are advised that the failure to file objections within the specified 

time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 

(9th Cir. 1991). 

United States Magistrate Judge 

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