UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

LEE W. SALANT, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Acting Commissioner of Social Security, 

Defendant. 

Kathryn Tassinari 

Mark A. Manning 

Harder, Wells, Baron & Manning, P.C. 

474 Willamette, Suite 200 

Eugene, OR 97401 

Attorney for Plaintiff 

Billy J. Williams 

United States Attorney 

Janice E. Hebert 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

1 - OPINION AND ORDER 

Case No. 6:15-cv-01409-AA 

OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 1 of 9
Lars J. Nelson 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900, MIS 221A 

Seattle, WA 98104-707 5 

Attorneys for Defendant 

AIKEN, Judge: 

Plaintiff filed suit pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to 

obtain judicial review of the Commissioner's denial of his application for disability insurance 

benefits (DIB). Plaintiff argues that the case should be remanded for an award of benefits, or, 

alternatively, for further proceedings. After review of the record and the parties' submissions, the 

decision of the Commissioner is reversed and remanded for further proceedings. 

BACKGROUND 

On September 25, 2012, plaintiff protectively filed an application for DIB, alleging 

disability as of October 4, 2011. Tr. 104. His application was denied initially and on 

reconsideration. On February 21, 2014, plaintiff and a vocational expert (VE) appeared and 

testified before an Administrative Law Judge (ALJ). Tr. 118-67. On August 5, 2013, the ALJ 

issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 101-17. The 

Appeals Council denied plaintiffs request for review, rendering the ALJ's decision as the final 

decision of the Commissioner. Tr. 1-7. Plaintiff now seeks judicial review. 

Born in 1962, plaintiff was forty-nine years old as of the alleged onset date of disability, 

with a high school education and past relevant work as a painter helper, a fence builder, and a 

moving van helper. Tr. 112, 153-54. He alleges disability since October 4, 2011, due to mental 

limitations including cognitive disorders, depression, and anxiety, and shoulder and back pain. 

2 - OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 2 of 9
STANDARD OF REVIEW 

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

standards and the findings are supported by substantial evidence in the record. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted). The court must weigh "both the evidence that supports and detracts from the 

[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is 

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

COMMISSIONER'S DECISION 

The Commissioner evaluated plaintiffs allegation of disability pursuant to the relevant 

five-step evaluation process. See 20 C.F.R. § 404.1520(a)-(g). 

At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" 

since the alleged onset date of disability. Tr. 106; 20 C.F.R. § 404.1520(b). 

At steps two and three, the ALJ found that plaintiff has severe impairments of attention 

deficit hyperactivity disorder, generalized anxiety disorder, depression, and severe low back 

pain; but that plaintiffs impairments did not meet or equal the severity of a listed impairment 

which is considered "to be severe enough to prevent an individual from doing any gainful 

activity, regardless of his or her age, education, or work experience." Tr. 106-07; 20 C.F.R. § 

404.1525(a); id. § 404.1520(c),(d). 

3 - OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 3 of 9
The ALJ then assessed plaintiffs residual functional capacity (RFC) and found that 

plaintiff could perform a reduced range of light work, with limitations on climbing, stooping, 

kneeling, crouching, and crawling. Tr. 109; 20 C.F.R. § 404.1520(e). The ALJ also found that 

plaintiff "is limited to no more than occasional exposure to hazards," and "to simple and routine 

tasks that involve spoken, rather than written, instructions." Tr. 109. Finally, the ALJ found that 

plaintiff is "limited to occupations that avoid production pace (e.g. assembly-line work), but he is 

otherwise able to perform goal oriented work (e.g. office cleaner)." Tr. 109. Based on these 

findings, the ALJ found that plaintiff could not perform his past relevant work at step four. Tr. 

111; 20 C.F.R. § 404.1520(t). 

The ALJ proceeded to step five, where the burden of proof shifts to the Commissioner to 

demonstrate that the claimant is able to perform work that exists in the national economy, after 

taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F .R. § 

404.1520(g). Relying on the testimony of the VE, the ALJ found that plaintiff could perform 

other work as a ticket seller, small products assembler, and photocopy machine operator. Tr. 113. 

Accordingly, the ALJ found plaintiff not disabled under the Act. 

DISCUSSION 

Plaintiff argues that the ALJ erred by failing to adopt limitations found by an examining 

psychologist and by finding plaintiffs allegations not credible. As a result, plaintiff maintains 

that the ALJ' s RFC assessment is invalid and that he should be deemed disabled under the Act. 

In July 2012, David Northway, Ph.D, examined plaintiff at the request of plaintiffs 

defense attorney. Dr. Northway reviewed multiple medical and background reports, evaluated 

plaintiff, and administered a series of tests over multiple days. Tr. 321-22. Dr. Northway found 

4 - OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 4 of 9
that plaintiff had significant impairments in attention, concentration and mental efficiency and 

opined that plaintiff displayed deficits "seen in individuals who have a hard time sustaining 

focused attention." Tr. 325. Dr. Northway noted that plaintiff demonstrated "poor vigilance" and 

that plaintiffs test results fit the ADHD "clinical population." Tr. 325. Plaintiffs scores for 

"tasks assessing immediate attention for auditory material" approached the "severely impaired 

range," while his scores on tests "associated with assessing mental efficiency or processing 

speed" were "in the moderately impaired" range. Tr. 325. 

Dr. Northway also found that plaintiffs intelligence scores rated him in the "low average 

to borderline intellectually disabled range," and that plaintiffs "fine motor dexterity" was "in the 

moderately to severely impaired range" for both his dominant and non-dominant hands. Tr. 326. 

Dr. Northway further found severe impairment with plaintiffs visual memory, moderate 

impairment with plaintiffs auditory memory, with his "ability to process information is 

approaching the severely impaired range." Tr. 327, 329. Plaintiffs area of "strength" included 

nonverbal abstract problem-solving and visual spatial skills. Tr. 326. Dr. Northway concluded: 

He is unlikely to comprehend things as quickly as a typical peer and may need 

repetition and multiple approaches to learn new information. He may not openly 

admit to not understanding what is being asked of him. Strategies which include 

use of his comparatively stronger perceptual reasoning skills for comprehension, 

will be somewhat diminished by weaker visual spatial or nonverbal memory 

abilities. 

Tr. 330. 

Dr. Northway's findings were consistent with those made by another exammmg 

psychologist. On February 5, 2012, psychologist Steven Mussack, Ph.D. evaluated plaintiff and 

performed a mental assessment. Dr. Mussack found that plaintiff "demonstrated deficits in 

immediate, recent and remote memory at levels which interfere with some day-to-day 

5 - OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 5 of 9
functioning." Tr. 318. Dr. Mussack also opined that plaintiff "experiences a number of mental 

health problems which appear directly related to repetitive instances of having failed to register 

as a sex offender," including difficulty "interacting with authority figures, generalized anxiety, 

anger management difficulties, and chronic memory difficulties." Tr. 319. Dr. Mussack 

recommended that plaintiff be referred for mental health treatment and neurological testing. Tr. 

319-20. 

The ALJ accepted certain limitations noted by Dr. Northway and included them in his 

RFC assessment, such as plaintiffs lack of processing speed. Tr. 111. 1 Nonetheless, the ALJ 

ultimately relied on two non-examining psychologists and gave their opinions greater weight, 

because they "are highly qualified psychologists who are also experts at Social Security 

disability evaluation." Tr. 111. I do not find this to be a clear or convincing, or specific and 

legitimate, reason to discount the opinions of two examining psychologists who found significant 

impairment with plaintiffs memory and his ability to process, understand, and remember 

information. The "opinion of a nonexamining physician cannot by itself constitute substantial 

evidence that justifies the rejection of the opinion of either an examining physician or a treating 

physician." Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996). Instead, the opinion of a nonexamining physician must be supported by other, substantial evidence in the record. Morgan v. 

Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Here, those opinions are not. 

Unlike the non-examining psychologists, Dr. Northway conducted extensive neurological testing 

over multiple days. Moreover, the ALJ did not provide "a detailed and thorough summary of the 

1 At the same time, however, the ALJ found that plaintiff could perform other work as a 

small parts assembler, a job that requires production-pace capabilities. The Commissioner 

concedes that this finding is erroneous and that plaintiff could not perform this type of work. 

Def.' s Brief at 17. The Commissioner thus relies on the ALJ' s finding that plaintiff can perform 

other work as a ticket seller and photocopy machine operator. 

6 - OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 6 of 9
facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." 

Id. at 600-01. 

Furthermore, the ALJ did not discuss Dr. Northway's finding that plaintiffs motor skills 

are severely impaired or the opinion that plaintiff has moderate to severe visual and auditory 

memory impairments. Tr. 325-26. In fact, the ALJ found that plaintiff could work at jobs 

requiring verbal instructions, even though Dr. Northway found that his ability to process auditory 

material was approaching severely limited. Tr. 111, 326-27. While the ALJ recognized Dr. 

Northway's opinion that plaintiff "exhibited deficits in working memory, processing speed, low 

levels of general intelligence, and difficulty in coping with a number of aspects of independent 

functioning," the ALJ discounted the these findings because "Dr. Northway nevertheless found 

noted the claimant could compensate for his memory problems by 'writing multiple calendars 

and notes on business cards, etc."' Tr. 110. However, as plaintiff contends, Dr. Northway did not 

make that finding; he simply noted that plaintiff reportedly tried to remember appointments and 

other matters by taking writing notes and keeping a calendar. Tr. 329. Moreover, plaintiffs 

efforts were not always successful; Dr. Mussack opined that plaintiffs "chronic memory 

difficulties" contributed to the criminal charges against him. Tr. 319. Therefore, I find that the 

ALJ erred by failing to consider the breadth of Dr. Northway's findings and opinion. 

The ALJ also discredited plaintiffs allegations about his memory, noting that plaintiff 

was able to recall certain facts during his testimony. Tr. 111. However, the ALJ did not conduct 

psychological or neurological testing, and an ALJ cannot substitute his own opinion for that of a 

medical professional. Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999); Jackson v. 

Comm'r Soc. Sec. Admin., 2016 WL 1670963, at *4 (D. Or. Apr. 26, 2016). The ALJ also noted 

7 - OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 7 of 9
that plaintiffs memory problems were long-standing and had not always interfered with his 

ability to work, plaintiff had attempted to obtain employment, and plaintiff left his previous job 

for reasons other than disability. Tr. 110. It is questionable whether these reasons are legally 

sufficient to discredit plaintiffs testimony given the evidence of record. See Ramirez v. Colvin, 

2014 WL 1716087, at 6 (C.D. Cal. Apr. 29, 2014). Plaintiffs past work was manual labor 

performed at a higher exertional level than his assessed RFC, and Dr. Northway noted that 

plaintiff was inclined to repress his difficulties and "may not openly admit to not understanding" 

what is being asked of him. Tr. 330. Further, the record is not clear why plaintiff was released 

from his last job. Finally, the ALJ noted the findings of malingering and symptom exaggeration 

made by an examining physician and suggested that plaintiff could be motivated by "secondary 

gain." Tr. 111. However, the ALJ ultimately rejected the findings of the physician, and an ALJ's 

concern about secondary gain is generally insufficient to justify an adverse credibility finding. 

See Burrell v. Colvin, 775 F.3d 1133, 1139-40 (9th Cir. 2014). 

Plaintiff maintains that if the court credits the opinions of Drs. Northway and Mussack 

along with his testimony, the record establishes that he is unable to sustain competitive 

employment due to his cognitive deficits. Accordingly, plaintiff argues that the case should be 

remanded for benefits. Though I find that the ALJ failed to adequately consider the 

psychological evidence and Dr. Northway's findings, I cannot find that "the record has been 

fully developed and further administrative proceedings would serve no useful purpose." 

Dominguez v. Colvin, 808 F .3d 403, 408 (9th Cir. 2015). This is particularly true in light of the 

supplemental evidence submitted to the Appeals Council. See Tr. 6, 397-432; Def. 's Brief at 10-

12. 

8 - OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 8 of 9
On remand, the ALJ shall reassess plaintiffs RFC in light of Dr. Northway' s opinion 

regarding plaintiffs memory, attention, and motor skill deficits. Further, the ALJ shall reevaluate 

plaintiffs testimony and allegations in light of the record as a whole. 

CONCLUSION 

The ALJ's finding that plaintiff was not disabled under the Act is not supported by 

substantial evidence in the record. Accordingly, the decision of the Commissioner is 

REVERSED and REMANDED for further administrative proceedings. 

I 

I 

I 

IT IS SO ORDERED. 

DA TED this ~ ./t;;y;;; October, 2016. 

Ann Aiken 

United States District Judge 

9 - OPINION AND ORDER 

Case 6:15-cv-01409-AA Document 18 Filed 10/06/16 Page 9 of 9