IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

THOMAS F. DELLES, 6:15-CV-00674-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

SHERWOOD J. REESE

Drew L. Johnson, P.C.

Eugene, OR 97401

(541) 434-6466

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) 727-1011

DAVID MORADO

Regional Chief Counsel

CATHERINE ESCOBAR 

Special Assistant United States Attorney

Social Security Administration

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

Seattle, WA 98104-7075

(206) 615-2531

Attorneys for Defendant

1 - OPINION AND ORDER

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BROWN, Judge.

Plaintiff Thomas F. Delles 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 (Act) and for Supplemental Security Income (SSI)

under Title XVI of the 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 to the

Commissioner pursuant to sentence four, 42 U.S.C. § 405(g), for

the immediate calculation and payment of benefits. 

ADMINISTRATIVE HISTORY

Plaintiff protectively filed his applications on March 6,

2012, and alleged a disability onset date of March 1, 2008. 

Tr. 137-44.1 The applications were denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on December 10, 2013. Tr. 26-48. At the hearing

Plaintiff was represented by an attorney. During the hearing

Plaintiff amended his disability onset date to May 21, 2010. 

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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Tr. 13. Plaintiff and a vocational expert (VE) testified.

The ALJ issued a decision on December 20, 2013, in which he

found Plaintiff is not disabled. Tr. 10-25. That decision

became the final decision of the Commissioner on March 13, 2013,

when the Appeals Council denied Plaintiff's request for review. 

Tr 1-4. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On April 21, 2015, Plaintiff filed a Complaint in this Court

seeking review of the Commissioner’s decision.

BACKGROUND

Plaintiff was born on May 21, 1960, and was 50 years old on

the alleged amended onset of disability. He completed a GED and

has past relevant work experience in construction as a gutter

installer. Tr. 32, 74, 163.

Plaintiff alleges disability due to “avulsion injury to

right heel, right arm problems.” Tr. 163. 

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

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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

(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

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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), 416.920(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

impairment or combination of impairments. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(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), 416.920(a)(4)(iii). See also Keyser, 648

F.3d at 724. The criteria for the listed impairments, known as

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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) 416.920(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

work he has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(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),

416.920(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. 

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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),

416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity (SGA) since his May 21, 2010,

alleged onset date. Tr. 15. Plaintiff met the insured status

requirements of the Social Security Act through March 31, 2015.

At Step Two the ALJ found Plaintiff has severe impairments

of left foot pain/left plantarateral foot mass, status post left

heel latissimus dorsi graft, and right hip pain secondary to

antalgic gait. Tr. 15. 

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

meet or equal any listed impairment. Tr. 16. The ALJ found

Plaintiff has the RFC for a full range of light work and can lift

and carry 20 pounds frequently and ten pounds occasionally. He

can sit, stand, and walk for six hours each in an eight-hour day. 

He requires the option to sit or stand at will while still

performing essential tasks. Tr. 16.

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At Step Four the ALJ found Plaintiff is incapable of

performing past relevant work as a construction worker, but

Plaintiff retains the ability to perform other jobs that exist in

the national economy and, therefore, is not disabled. Tr. 19. 

DISCUSSION

Plaintiff contends the Commissioner erred by (1) failing at

Step Two to find degenerative changes at the lumbosacral junction

is a severe impairment; (2) improperly finding Plaintiff’s

testimony was not fully credible; (3) erroneously finding a

significant number of positions exist at the light-exertion level

that allow for an at-will sit/stand option; and (4) failing to

provide a legally sufficient explanation for an inconsistency

between the Dictionary of Occupational Titles and VE’s testimony. 

Because the second issue is dispositive, the Court need not

address the latter assertions.

I. Step Two

 Plaintiff contends the ALJ erred at Step Two by failing to

find moderate degenerative changes at the lumbrosacral junction

is 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

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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

C.F.R. § 404.1508.

The ALJ noted the diagnosis of moderate degenerative change

at the lumbosacral junction, but he did not find the change was

severe and did not identify any functional limitations arising

from the diagnosis. Tr. 18, 268. Plaintiff argues the

degenerative changes caused him to experience back pain, which

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further supports his testimony that he sits and lies down to

relieve pain. Plaintiff, however, did not assert he suffers from

back pain, did not mention back pain at his hearing, and did not

identify any functional limitations arising from back pain. 

On this record the Court concludes the ALJ did not err at

Step Two.

II. Credibility of Plaintiff’s Testimony

 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 for 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

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adverse credibility determination. Reddick, 157 F.3d at 722. 

See also Holohan, 246 F.3d at 1208. The ALJ must make a

credibility determination with findings sufficiently specific to

permit the court to conclude that the ALJ did not arbitrarily

discredit the claimant's testimony. Thomas v. Barnhart, 278 F.3d

947, 958 (9th Cir. 2002).

When deciding whether to accept a claimant's subjective

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). 

A. Plaintiff’s Function Report and Pain Questionnaire

Plaintiff completed an Adult Function Report on April 17,

2012. Tr. 181-89. He asserted he could not walk or stand for

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more than 10-15 minutes. Tr. 181. Plaintiff lives alone, 

cooks, does dishes and laundry, and watches television. Tr. 182. 

He prepares daily meals, which takes two or three hours, and does

cleaning and laundry for one to two hours daily. Tr. 183-84. 

Plaintiff does not have a driver’s license and travels by

bicycle. He shops for groceries once a month for two or three

hours.

Plaintiff has trouble lifting, squatting, bending, standing,

reaching, walking, and stair climbing. Tr. 186. He “cannot be

on [his] feet for more than 10-15 min. at a time without sitting

to relieve the pain.” Tr. 186. He uses a prescribed cane when

walking. Tr. 187.

On April 24, 2012, Plaintiff completed a Pain and Fatigue

Questionnaire. Tr. 190. He described aching pain in his left

foot, right hip, and right shoulder when standing and walking,

which is relieved by sitting. He stated he does not require

daily rests or naps, but he needs to rest between activities. He

can be active for 10-15 minutes before requiring rest.

B. Plaintiff’s Testimony

At the December 2013 hearing Plaintiff testified he last

worked in November 2010 in a gutter installation shop. Tr. 32. 

He bent “elbows,” swept the floor, and put away inventory. He

lifted 25-30 pounds and was on his feet most of the time. He

held various positions in the company and had worked as a gutter

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installer for the company since 1994. He worked about two months

in the shop full-time before he was laid off because he could not

stand long enough to do the work. Tr. 33.

Plaintiff takes “aspirin every now and then.” Id. He was

in a motorcycle accident in 1988 and had muscle and skin grafts

to his left heel. One leg is shorter than the other, and it

causes him to walk in a way that resulted in bursitis in his

right hip. Tr. 34. He has had daily pain in his left foot and

right hip for three or four years. His average pain level is

seven or eight out of ten, but he takes only aspirin because

“all’s I have to do is sit down, get – put the weight – get the

weight off of my feet and my hip.” Tr. 34. 

He has discussed surgery with his doctors, but they don’t

know whether the skin graft will take again. Tr. 35. He has

over-the-counter orthotics that do not provide relief. Although

he has a customized shoe, “there’s no way I can keep the weight

off my foot if I’m standing on it. No matter what the shoe is,

or what the padding is.” Tr. 36. He thinks he can lift 50

pounds and carry ten. He uses a cane (which is not prescribed)

if he is going to be walking a lot. He can sit for about 30

minutes before he needs to stand or to move to relieve his hip

pain. Tr. 37. He can stand or walk for ten to fifteen minutes. 

He spends a “couple hours” a day lying down because “[t]ired I

guess, the pain too, from the hip and to keep the weight off the

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foot. It’s either sit down or lay down. I do both.” Id.

Plaintiff lives in a trailer on a friend’s property and does

not pay any rent. Tr. 38. He drives three blocks daily to get

cigarettes. Tr. 37, 40. He does not have any income except from

buying items at garage sales and reselling them at flea markets. 

Tr. 38. He spends about two hours a week buying and selling

things. He receives food stamps and medical insurance under the

Oregon Health Plan, which was effective the month after the

hearing. Tr. 39.

Plaintiff has a growth on his left foot about the size of a

marble. Doctors are not sure if they can help him. Tr. 40. He

has been referred to physical therapy. He does not want pain

medication because his foot is numb, and he is concerned that he

would not know if he hurt it. Tr. 41. 

C. The ALJ’s Findings Regarding the Credibility of 

 Plaintiff’s Testimony

The ALJ found Plaintiff’s testimony was not entirely

credible regarding the intensity, persistence, and limiting

effects of his symptoms. The ALJ relied on Plaintiff’s lack of

treatment; the opinion of Daniel Lincoln, M.D.; Plaintiff’s daily

activities; and Plaintiff’s inconsistent statements. Tr. 17-18.

1. Lack of Treatment

 It is not proper to discredit a claimant for not

obtaining treatment he cannot afford. Orn v. Astrue, 495 F.3d

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625, 638 (9th Cir. 2007). The ALJ noted Plaintiff sought little

medical treatment during the period of his alleged disability. 

Tr. 17. Plaintiff, however, testified he had minimal income, and

he did not obtain medical insurance until three weeks posthearing. Tr. 39. He received some care from Urgent Care through

financial aid. Tr. 40. He was able to relieve his pain by

sitting or lying down. Tr. 37, 40, 234.

On this record the Court concludes Plaintiff’s lack of

treatment is not a clear or convincing reason for the ALJ to find

Plaintiff's testimony was less than fully credible.

2. Dr. Lincoln’s Opinion

Dr. Lincoln examined Plaintiff on May 12, 2012. 

Tr. 234-38. Dr. Lincoln noted Plaintiff “walks with an abnormal

gait, only bearing weight on the ball of his left foot.” 

Tr. 235. Plaintiff was able to stand from a seated position and

walk to the examination table without difficulty. Dr. Lincoln

noted Plaintiff reported he experiences pain within 10-15 minutes

of walking or standing, which is relieved by rest and elevation. 

Tr. 238, 234. Dr. Lincoln found Plaintiff had normal motor

strength and no limitations in walking or standing. Tr. 238. 

Dr. Lincoln concluded he could not “find an objective

justification for limiting [Plaintiff’s] standing or walking.” 

Tr. 238. 

The ALJ pointed out that Dr. Lincoln “did not note any

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objective clinical basis for the claimant not to be able to bear

weight on his left heel.” Tr. 18. A claimant, however, need not

present clinical or diagnostic evidence to support the severity

of his pain. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.

1990)(“. . . it is the very nature of excess pain to be out of

proportion to the medical evidence.”).

On this record the Court concludes the lack of medical

support for the severity of Plaintiff’s pain is not a clear and

convincing reason for the ALJ to find Plaintiff’s testimony was

less than fully credible. See Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995).

3. Plaintiff’s Daily Activities

The ALJ found Plaintiff’s “activities show that he

would be capable of working” with his RFC. Tr. 18. The

activities include cooking, doing chores, personal care, driving,

visiting garage sales, riding a bicycle, and shopping monthly. 

There are two grounds permitted for using daily

activities to form the basis of an adverse credibility

determination: 1) because the activities contradict other

testimony or 2) because the activities meet the threshold for

transferable work skills. Orn, 495 F.3d at 639. Sporadic

activities “punctuated with rest” are not inconsistent with

disability. Reddick, 157 F.3d at 722-23. Neither the ALJ nor

the Commissioner points to any contradiction with other testimony

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nor does the record reflect Plaintiff’s daily activities meet the

threshold for transferable skills. 

On this record the Court concludes Plaintiff’s daily

activities are not clear or convincing reasons for the ALJ to

find Plaintiff’s testimony was less than fully credible.

4. Inconsistent Statements

 When assessing credibility the ALJ is allowed to

consider the consistency of a claimant’s statements. SSR 96-7p, 

at *5. See also Thomas, 278 F.3d at 958. The ALJ, however,

noted Plaintiff’s December 2013 testimony that he lies down for a

couple of hours daily because he is tired and experiencing pain. 

The ALJ found Plaintiff’s testimony was contradicted by

Plaintiff’s April 2012 assertion that he does not require daily

rests or naps. Tr. 18. Plaintiff, however, also stated in his

April 2012 Pain Questionnaire that he can be active for 10-15

minutes before requiring rest between activities. 

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

when he found Plaintiff's testimony was less than fully credible

because the ALJ failed to provide legally sufficient reasons

convincing reasons for doing so.

 REMAND

 The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely

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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

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 concluded the ALJ erred when he rejected 

Plaintiff’s testimony. If credited, that testimony establishes

that Plaintiff is disabled. Thus, the Court concludes Plaintiff

is disabled based on this medical record and no useful purpose

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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

calculation and payment of benefits to Plaintiff.

IT IS SO ORDERED.

DATED this 20th day of April, 2016.

 /s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

 

 

 

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