IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RAYMOND LEROY ROSA, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, Acting 

Commissioner of Social Security, 

Defendant. 

Arthur W. Stevens III 

Black, Chapman, Webber & Stevens 

221 Stewart Ave, Suite 209 

Medford, OR 97501 

Attorney for plaintiff 

Janice E. Hebert 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97201 

Page 1 - OPINION AND ORDER 

MEDFORD DIVISION 

Case No. 1 :15-cv-01180-AA 

OPINION AND ORDER 

Case 1:15-cv-01180-AA Document 19 Filed 08/01/16 Page 1 of 16
Heather L. Griffin 

Social Security Administration 

Office of General Counsel 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, Washington 98104 

Attorneys for defendant 

AIKEN, Judge: 

Plaintiff Raymond Leroy Rosa brings this action pursuant to the Social Security Act ("Act"), 

42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social 

Security ("Commissioner"). The Commissioner denied plaintiffs application for Title II disability 

insurance benefits. For the reasons set forth below, the Administrative Law Judge's ("ALJ") decision 

is reversed and this case is remanded for further proceedings. 

BACKGROUND 

Plaintiff was born June 29, 1970 and was 3 3 years old at the time the alleged disability began. 

Tr. 92. He completed high school and received an associates degree in computer science and general 

studies. Tr. 54-55. Plaintiff enlisted in the Navy in 1989 and was honorably discharged in 1992. Tr. 

345. From 2000 to 2003, plaintiff worked as a parts salesperson. Tr. 56. He alleges disability due to 

mixed adjustment anxiety; chronic fatigue syndrome; lower lumbar strain; fibromyalgia; nosebleeds; 

depression; gastroesophageal reflux disease; high blood pressure; memory loss; vision loss; joint 

swelling and throbbing; and irritable bowel syndrome ("IBS"). Tr. 183, 189. Plaintiff alleges his 

symptoms began during deployment to the Persian Gulf and increased in severity over time. See, e.g., 

Tr. 189, 591-92, 594. Plaintiff receives disability benefits from the U.S. Department of Veteran 

Affairs ("VA"). Tr. 348-49. Plaintiff had a VA disability rating of 100 percent on his alleged 

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Case 1:15-cv-01180-AA Document 19 Filed 08/01/16 Page 2 of 16
disability onset date of January 1, 2004. Tr. 164. As of February 2013, the VA rated plaintiff 

permanently and totally disabled. 1 Tr. 348. 

On February 8, 2013, plaintiff filed an application for disability insurance benefits, alleging 

a disability onset date of January 1, 2001. Tr. 163, 166-72. Plaintiff subsequently amended his 

disability onset date to January 1, 2004. Tr. 163. Plaintiff's date last insured was September 30, 

2004. Tr. 179. Plaintiff's claim was denied initially and upon reconsideration. See Tr. 110-13; 116-

18. Plaintiff was represented by counsel and testified atahearing on September 12, 2014. Tr. 47. The 

ALJ found plaintiff was not disabled, because although plaintiff could not perform past relevant 

work, he was capable of other work that existed in the national economy. Tr. 34-36. The Appeals 

Council denied plaintiff's request for review, rendering the ALJ' s findings final. Tr. 1. Plaintiff 

subsequently filed this appeal. 

STANDARD 

A district court must affirm the ALJ' s decision if it is based on proper legal standards and 

the findings are supported by substantial evidence in the record. Hammockv. 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 

"consider the record as a whole" and weigh "both the evidence that supports and detracts from the 

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

1

Plaintiff had a 90 percent disability rating in June 2002, Tr. 503, and February 2013, Tr. 

349. Even at a 90 percent rating, plaintiff receives 100 percent disability benefits because he was 

determined incapable of employment. 

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interpretations of the evidence are insignificant if the ALJ' s interpretation is rational. Burch v. 

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

ADMINISTRATIVE LAW JUDGE FINDINGS 

The initial burden of proof rests upon the plaintiff to establish disability. Howard v. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff must demonstrate an 

"inability to engage in any substantial gainful activity by reason of any medically determinable 

physical or mental impairment which can be expected ... to last for a continuous period of not less 

than 12 months." 42 U.S.C. § 423(d)(l)(A). 

"The [ ALJ] has established a five-step sequential evaluation process for determining whether 

a person is disabled." Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. At step 

one, the ALJ found plaintiff did not engage in substantial gainful activity during the alleged disability 

period. Tr. 26. At step two, the ALJ found plaintiff had the following severe impairments: 

adjustment disorder with depressed mood; personality disorder, NOS; fibromyalgia syndrome; carpal 

tunnel syndrome; and lumbar strain. Id. At step three, the ALJ found plaintiffs impairments, singly 

or in combination, did not equal the severity of a listed impairment. Tr. 27. At step four, the ALJ 

found plaintiff could not perform past relevant work. Tr. 28. At step five, the ALJ found plaintiff has 

the residual functional capacity to perform light work subject to the following conditions: 

[Plaintiff] is limited to standing and walking for 6 hours in an 8 hour workday, for 

one hour at a time. [Plaintiff] is limited to sitting for 6 hours in an 8 hour workday, 

for one hour at a time. [Plaintiff] is also limited to occasional climbing of ramps and 

stairs, ladders, ropes, and scaffolding, stooping, kneeling, crouching, and crawling. 

Due to intermittent carpal tunnel syndrome, the [plaintiff] is limited to frequent 

handing and fingering. Due to mental impairments, the [plaintiff] is further limited 

to less than occasional contact with the public, and structured, superficial contact 

with coworkers. 

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Tr. 29. The ALJ further found plaintiff was able to perform jobs existing in significant numbers in 

the national economy, specifically mail clerk, information router, and order filler. Tr. 35. 

DISCUSSION 

Plaintiff asserts the ALJ erred by (1) improperly evaluating plaintiff's subjective symptom 

testimony; (2) improperly rejecting the opinions of the plaintiff's treating physician and other 

medical providers; (3) failing to give proper weight to the VA disability rating; ( 4) improperly 

rejecting lay witness testimony; ( 5) failing to consider the combined effect of plaintiff's impairments 

in determining whether they equated in severity to a listed impairment; and ( 6) improperly evaluating 

testimony of the vocational expert ("VE"). 

I. Plaintiff's Symptom Testimony 

Plaintiff first argues the ALJ failed to state clear and convincing reasons to discredit his 

testimony regarding the severity of his medical impairments. When a claimant's medically 

documented impairments reasonably could be expected to produce some degree of the symptoms 

complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject 

the claimant's testimony about the severity of ... symptoms only by offering specific, clear and 

convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). A general 

assertion the claimant is not credible is insufficient; the ALJ must "state which ... testimony is not 

credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 

915, 918 (9th Cir. 1993 ). The reasons proffered must be "sufficiently specific to permit the reviewing 

court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. 

Shalala, 50 F.3d 748, 750 (9th Cir. 1995). If the "ALJ's credibility finding is supported by 

substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. 

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Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). The ALJ may also consider the claimant's daily 

activities, work record, and the observations of physicians and third parties with personal knowledge 

about the claimant's functional limitations. Smolen, 80 F.3d at 1284. Specifically, when a claimant's 

work history undercuts her assertions, the ALJ may rely on that contradiction to discredit the 

claimant. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). 

Plaintiff stated to the Social Security Administration ("SSA") he was unable to work on a 

regular basis due to his conditions. Plaintiff reported anxiety, stress and acid reflux affect his ability 

to sleep at night, despite compliance with medication. Tr. 190. Plaintiff also reported experiencing 

constant pain from the combination of his impairments, with particularly severe pain during bowel 

movements. Tr. 69, 189. At the hearing, plaintiff testified he sometimes would spend two hours in 

the bathroom and suffered from rectal bleeding. Tr. 69-70. Plaintiff testified he was let go from his 

job in 2004 because he spent too much time in the bathroom and had excessive absences due to the 

combination of his impairments. Tr. 57. Plaintiff stated his impairments effected his ability to lift, 

squat, bend, stand, reach, walk, sit, kneel, converse, hear, climb stairs, see, remember, complete 

tasks, concentrate, understand, follow instructions, use his hands, and get along with others. Tr. 194. 

The ALJ gave little weight to plaintiffs statements regarding the intensity, severity and 

limiting effect of his impairments. The ALJ found plaintiffs statements were inconsistent with (1) 

statements to his medical provider; (2) objective medical findings; and (3) his work history. While 

the ALJ's characterization of plaintiffs statements to his provider and SSA give an appearance of 

a conflict, returning to the record, it is clear the supposed conflict rests on mischaracterizations and 

cherry-picked evidence. 

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Case 1:15-cv-01180-AA Document 19 Filed 08/01/16 Page 6 of 16
A. Statements to Medical Providers 

The ALJ identified three "candid statements" to medical providers that were allegedly 

inconsistent with statements to SSA: (1) plaintiffs April 4, 2002 pain statement; (2) plaintiffs July 

2004 report of improved functioning on Lansoprazole; and (3) plaintiffs report in July 2004 of 

improved IBS symptoms. Tr. 31. 

i. April 4 Statements to Medical Providers 

The ALJ found plaintiffs symptom testimony to SSA conflicted with his April 4, 2002 report 

to his medical provider "that he only experienced severe pain, or 10/10 pain 'once in awhile' and that 

he used Tylenol rarely, and 'Ibuprofen only a few times a week.'" Id. During the same visit, plaintiff 

reported he was continuing to have "significant" anal pain and swelling, with 1Oil0 pain 

"occasionally." Tr. 505. Plaintiff stated he used Tylenol 3 with codeine "rarely," taking it once in the 

past week; took ibuprofen a few times a week; and used lidocaine jelly and hydrocortisone enemas 

for pain associated with IBS. Id. 

The ALJ found the April 4 statements conflicted with plaintiffs report on a SSA 

questionnaire that he experienced constant pain from the combination of his impairments. Tr. 29, 

189. That statement does not conflict with the April 4 statements. The April 4 statements were 

limited to pain associated with IBS and not generalized statements about all of his impairments (i.e. 

IBS, back pain, fibromyalgia, nosebleeds, carpal tunnel, acid reflux, etc.). See Tr. 505. Furthermore, 

the ALJ ignored statements plaintiff made to his provider corroborating his generalized pain 

testimony, including statements made one day earlier on April 3. E.g. Tr. 506 (plaintiff reports 

chronic pain is interfering with his relationship with his wife and admits experiencing "passive 

suicidal ideations due to the pain"); Tr. 503 (plaintiff experiencing chronic back pain and reports he 

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Case 1:15-cv-01180-AA Document 19 Filed 08/01/16 Page 7 of 16
is limited to walking for twenty minutes). The ALJ erred by taking a statement about pain associated 

with one specific condition out of context and concluding it conflicted with plaintiffs general pain 

testimony to his provider. See Ghanim v. Colvin, 763F.3d1154, 1164 (9th Cir. 2014) (disapproving 

ALJ' s "cherry-pick[ing]" medical provider's characterizations of plaintiffs "rapport and demeanor 

instead of considering these factors" in the broader context of the provider's diagnoses and 

observations of impairment). 

Next, the ALJ found plaintiffs April 4 statements were inconsistent with hearing testimony 

"that he experienced severe and disabling pain in addition to rectal bleeding, when using the 

bathroom for bowel movements." Tr. 30, 69-70. Plaintiffs testimony regarding experiencing 

"disabling" pain and "rectal bleeding" was confined to his experience with severe IBS episodes 

while working at as an auto parts salesman. See Tr. 69-70. Plaintiff never testified every bowel 

movement caused that level of pain and it would be irrational to construe plaintiffs statements in 

that way. Furthermore, the ALJ failed to mention or simply ignored medical reports corroborating 

plaintiffs hearing testimony regarding the severity of his JBS symptoms. E.g. Tr. 519-22 (plaintiff 

experiencing severe pain and bleeding due to rectal abscess). The ALJ erred in relying on 

mischaracterizations of plaintiffs statements to conclude there was a conflict in the record. 

Lastly, the ALJ determined plaintiffs April 4 statements conflicted with his report "disabling 

pain affected his ability to sleep unimpaired." Tr. 30, 190. Plaintiff actually wrote on his SSA 

questionnaire, "constant tossing and turning because my body aches and gets stiff[,] rolling all night, 

insomnia from anxiety and stress and constant acid reflux even with medicine ... "Tr. 190. It is not 

reasonable to interpret this statement as saying pain from IBS alone caused plaintiffs insomnia. 

Furthermore, the record supports plaintiffs statements. See Tr. 491, 495, 500 (plaintiff reports 

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Case 1:15-cv-01180-AA Document 19 Filed 08/01/16 Page 8 of 16
difficulty sleeping due to acid reflux). The ALJ's failed to provide substantial evidence to support 

a conflict between the April 4 statements to providers and statements to SSA. 

ii. July 2004 Report of Improved Functioning on Lansoprazole 

The ALJ found plaintiffs functional impairments were inconsistent with "reported 

improvement in symptoms when he changed his eating habits, and used Lansoprazole instead of 

Omeprazole." Tr. 31. However, the ALJ failed to take into account earlier medical reports showing 

plaintiff continued to suffer from reflux during the day and severe reflux at night, despite taking 

Lansoprazole. See, e.g., Tr. 491, 494. In addition, the ALJ failed to explain how some improvement 

in reflux symptoms conflicted with plaintiffs testimony about the cumulative effect of his 

impairments. Plaintiffs statement, in light of other medical records, does not conflict with 

plaintiffs alleged functional impairments. 

iii. July 2004 Report of Improved JBS Symptoms 

Finally, the ALJ found a conflict between plaintiffs statement to his provider in July 2004 

that his IB S symptoms were improving and a letter dated September 15, 2014 to SSA describing the 

severity of his IBS symptoms between 2002 and 2004. In the letter, plaintiff reported between 2002 

and 2004 he would need to be in the bathroom "no less than 30 minutes at a time" and "45 minutes 

to a hour on average" due to lower colon inflammation and bleeding. Tr. 30 -31, 238. The ALJ 

found plaintiffs statement was inconsistent with plaintiffs July 14, 2004 statement to his nurse 

practitioner he was suffering from "occasional inflammation with proctitis." Tr. 488. During the 

same visit plaintiff reported he was taking iburprofen once a day for swelling and was administering 

hydrocortisone cream once a week. Id. 

The purpose of plaintiffs letter to the ALJ was to clarify hearing testimony regarding severe 

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IBS episodes he experienced between "2002 and 2004" while working at "Lithia and at the auto 

recyclers." See Tr. 238-39. The record shows plaintiff was employed at Lithia Motors from 2000 to 

2002 and employed at Peach Street Enterprises from 2003 to 2004. Tr. 175-176. The plaintiff only 

earned nine hundred dollars during 2004. Tr. 176. At plaintiffs hearing he testified in 2004 he was 

"let go" because "[he] spent most of [his] time in the bathroom just like [he] did when [he] worked 

at Lithia, unfortunately." Tr. 57. The ALJ unreasonably concluded improvement of symptoms in 

July 2004 conflicted with plaintiffs statements regarding severe episodes ofIBS between 2002 and 

early 2004. After review of the record, none of the three conflicts the ALJ perceived constitute a 

clear and convincing reasons to support an adverse credibility finding. 

B. Objective Medical Findings 

The ALJ also found plaintiffs symptom testimony inconsistent with "unremarkable" 

objective medical findings. Tr. 31. However, the ALJ failed to identify specific medical findings in 

the record that were inconsistent with plaintiffs alleged limitations. Thus, this is not a clear and 

convincing reason to discredit plaintiffs symptom testimony. 

C. Work History 

Finally, the ALJ found plaintiffs symptom testimony inconsistent with his work history. 

Plaintiff first alleged a disability onset date of January 1, 2001. Tr. 163, 166-72. Plaintiff only 

amended his disability onset date after learning SSA regulations precluded a finding of disability 

from 2001 to 2003 due to his substantial gainful activity. Tr. 163. The ALJ concluded plaintiffs 

work history between 2001 and 2003 undermined plaintiffs statements about the severity of his 

functional limitations. The ALJ' s reasoning is not convincing. First, plaintiff has amended his onset 

date and does not allege disability while he was working. Second, plaintiff explained he was under 

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pressure financially to continue working from 2001 to 2004 despite immense difficulty and that his 

impairments eventually led to him losing his job. See, e.g., Tr. 72, 525, 592, 598. The plaintiff 

should not be punished because he attempted and failed to maintain a job. To the contrary, a 

plaintiffs unsuccessful attempts to work may actually favor a finding of disability. Lingenfelter v. 

Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007). The fact that plaintiff worked from 2001 to 2004 does 

not constitute a clear and convincing reason to discredit plaintiffs symptom testimony. Id. 

II. Opinions of Treating and Examining Physicians 

Plaintiff next alleges the ALJ erred by discrediting the medical opinions of Dr . Robert C. 

Gerber, Dr. Richard Swanson, Dr. John A. Melson, Dr. William E. Matthews, Dr. Robert E. 

Ransmeier, Dr. Andrew Mebane, Nurse Practitioner Cynthia Miller, and Nurse Practitioner Carolyn 

Weeks Bartlett without providing sufficient reasons for doing so. 

An ALJ must consider all medical opinions in the record. 20 C.F.R. § 404.1527(b). When 

a treating or examining physician's opinion is uncontroverted, an ALJ may only reject the opinion 

for clear and convincing reasons. Lester v. Chater, 81F.3d821, 830 (9th Cir. 1995). The ALJ is not 

required to accept a physician's opinion that is brief, conclusory, and inadequately supported by 

clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). "Where anALJ does not 

explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical 

opinion over another, he errs." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 

A. Dr. Robert C. Gerber's opinion plaintiff could not work 

Dr. Gerber was plaintiffs examining physician on October 4, 2004. Dr. Gerber reviewed 

Plaintiffs military and VA medical records. Tr. 591. Dr. Gerber found plaintiffs medical records 

supported a diagnosis ofIBS. Id. Dr. Gerber also diagnosed plaintiff with fibromyalgia. Tr. 594. Dr. 

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Gerber opined plaintiff is "not capable of gainful employment given combination of symptoms 

reported above. Indeed, I would not want him to be an employee of mine." Tr. 594. 

The ALJ reasonably found Dr. Gerber's opinion plaintiff could not work to be conclusory, 

which constitutes a clear and convincing reason to assign Dr. Gerber's opinion little weight. 

Furthermore, the ALJ owes no deference to Dr. Gerber's opinion regarding disability. Disability 

determinations are reserved solely for the ALJ. 20 C.F.R.§ 404.157(d)(l); McLeod v. Astrue, 640 

F.3d 881, 885 (9th Cir. 2010). Thus, substantial evidence supports the ALJ's decision not to credit 

Dr. Gerber's opinion plaintiff could not work. 

B. Other medical evidence 

The ALJ failed to mention numerous treatment notes by Dr. Gerber, Dr. Swanson, Dr. 

Melson, Dr. Matthews, Dr. Ransmeier, Dr. Mebane, Nurse Practitioner Miller, and Nurse 

Practitioner Bartlett. There is no way for the court to know whether the ALJ properly weighed these 

medical providers treatment notes or simply chose to ignore them. If taken as true, many of the 

reports from plaintiffs medical providers would conflict with the ALJ's RFC determination. See, 

e.g., Tr. 595-96 (Dr. Swanson opines plaintiffs frequent nosebleeds which last a few minutes to 

three hours are likely due to an exposed and thinly covered artery); Tr. 595 (Dr. Swanson notes 

plaintiff is suffering from frontal headaches of moderate intensity occurring one to two times a week 

for four to eight hours); Tr. 596 (Dr. Melson notes plaintiffs headaches occur three time a week, 

prostrating two times a month, lasting for a few hours to all day); Tr. 598 (Dr. Melson diagnoses 

plaintiff with probable frequent migraine headaches); Tr. 599-600 (Dr. Mathews diagnoses plaintiff 

with chronic muscular strain and mild chronic synovitis and opined orthopedic difficulties are likely 

worsened by stress and depression). On remand, the ALJ must consider all medical opinions. This 

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includes consideration of Dr. Gerber's clinical observations and assessments. E.g. Tr. 592 (Dr. 

Gerber observing plaintiff was unable to sit through his two hour medical exam due to knee pain, 

back pain, and stiffness). If the ALJ assigns an opinion less weight, he must provide specific reasons 

for doing so. 

III. Lay Witness Testimony 

Plaintiff also argues the ALJ improperly discredited statements by his girlfriend, Angela 

Nottingham, in determining plaintiffs credibility and plaintiffs functioning between March 2012 

and March 2013. On March 25, 2013, Nottingham reported she has known plaintiff for one year and 

currently lived with him. Tr. 203. Nottingham reported plaintiffs back and body pains prevent him 

from engaging in many activities; acid reflux keeps him awake at night; his anxiety makes it difficult 

to be around people; he needs assistance with basic tasks such as dressing, cooking, bathing, and 

grooming; and his conditions affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, 

hear, climb stairs, see, remember, complete tasks, concentrate, understand, follow instructions, and 

get along with others. See Tr. 203, 204, 208. 

Generally, lay witness testimony describing a plaintiffs symptoms is "competent evidence 

that the ALJ must take into account." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). "[I]n 

order to discount competent lay witness testimony, the ALJ 'must give reasons that are germane to 

each witness."' Id. (citing Dodrill, 12 F.3d at 919). Here, the ALJ provided a germane reason to 

discredit the lay witness. The ALJ did not give Nottingham's testimony weight because she did not 

know plaintiff during the relevant period. An ALJ may discredit the testimony of a lay witness if that 

witness did not have sufficient contact with the plaintiff during the relevant time frame. Crane v. 

Shalala, 7 6 F. 3 d 251, 254 (9th Cir. 1996). Nottingham did not have any contact with plaintiff for the 

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eight years between the alleged onset date of January 1, 2004 and March 2012. Thus, the ALJ 

provided a sufficient reason to discredit Nottingham's testimony. It is not necessary to address other 

reasons the ALJ gave to discredit the lay witnesses testimony. The temporal separation between 

plaintiffs date last insured and Nottingham's observation is, standing alone, a sufficient reason to 

discredit her testimony. 

IV. Department of Veteran Affairs 

Plaintiff asserts the ALJ should have given great weight to plaintiffs VA disability rating of 

100 percent. The ALJ "must ordinarily give great weight to a VA determination of disability," 

because the agencies share a similar purpose, process, and criteria in evaluating claims. McCartey 

v. Massanari, 298 F .3d 1072, 1076 (9th Cir. 2002). However, since the agencies' evaluation criteria 

are not identical, the ALJ may give a VA disability rating less weight if he provides "persuasive, 

specific, valid reasons for doing so that are supported by the record." Id. For example, the ALJ may 

assign little weight to a VA determination if the ALJ has new evidence that was unavailable to the 

VA. Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009). 

The ALJ failed to provide a sufficient reason to assign plaintiffs VA disability rating less 

weight. The only reason the ALJ gave for discrediting the VA disability rating is that plaintiff had 

a ninety percent VA disability rating from 2001 to 2003, when he was still working. Social Security 

regulations preclude an award of disability benefits during any period of substantial gainful activity. 

See 20 C.F.R. § 404.1520(b) ("If you are working and the work you are doing is substantial gainful 

activity, we will find that you are not disabled regardless of your medical condition or your age, 

education, and work experience." (emphasis added)). Medical records demonstrate the healthcare 

providers plaintiff saw through the VA were aware he was working, yet still found him disabled. 

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See, e.g., Tr. 503. This suggests the rules governing work activity are different from the VA and the 

SSA. However, the ALJ did not explain how the VA and Social Security disability criteria for 

medical conditions differed such that the VA's disability finding was not entitled to great weight. 

The ALJ also did not cite any evidence that was unavailable to the VA. On remand, the ALJ must 

give great weight to the VA's disability finding or provide a persuasive, specific, and valid reason 

for giving the rating less weight. 

V. Combined Effects 

Plaintiff contends the ALJ erred by not properly evaluating the combined effect of plaintiff's 

impairments in determining whether they net or equaled a listed impairment. At step three, plaintiff 

bears the burden of proving the combined effect of his impairments are equivalent to a listed 

impairment. Burch, 400 F.3d at 683. The ALJ is not required to discuss how the combined effects 

of the plaintiff's impairments compare to a listed impairment unless the plaintiff presented evidence 

in an effort to establish equivalence. Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). Plaintiff did 

not specify a listed impairment that is allegedly equal in duration and severity to the combination of 

his impairments before the ALJ or in his brief to the court. Therefore, the ALJ permissibly concluded 

at step three the combined effect of plaintiff's impairment were not equivalent to a listed impairment. 

VI. Instructions on Remand 

Having found the ALJ erred in discrediting plaintiff's testimony and by not properly 

weighing the medical evidence, and giving little weight to the VA' s disability rating, I must 

determine whether plaintiff's claim will be remanded for further proceeding or an immediate 

payment of benefits. When the ALJ errs in denying a plaintiff's disability claim, the typical remedy 

is a remand for further proceedings. Garrison, 759 F .3d at 1020. Further proceeding are appropriate 

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when the record has not been fully developed; ambiguities and conflicts remain that need to be 

resolved; or additional evidence would be useful "in light of the passage of time." Treichler v. 

Comm 'rofSoc. Sec. Admin., 775F.3d1090, 1101 (9th Cir. 2014). In evaluating what sortofremand 

is appropriate in a given case, the district court must "review the record as a whole and determine 

whether it is fully developed, is free from conflicts and ambiguities, and all essential factual issues 

have bene resolved." Dominguezv. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (quotation marks and 

citation omitted). 

In this case, further proceeding are necessary to resolve ambiguities and conflicts in the 

medical record. It is the job of the ALJ, not the court, to weigh the medical evidence. 20 C.F.R.§ 

404.157( d). The ALJ must evaluate the medical opinions he failed to mention in his decision. On 

remand, the ALJ is directed to (1) properly weigh the opinions of Dr. Gerber, Dr. Swanson, Dr. 

Melson, Dr. Matthews, Dr. Ransmeier, Dr. Mebane, Nurse Practitioner Miller, and Nurse 

Practitioner Bartlett; (2) reevaluate how to weigh plaintiffs subjective symptom testimony; (3) 

properly weigh plaintiffs VA disability rating; ( 4) redetermine plaintiffs RFC; and ( 5) reevaluate 

whether plaintiff is capable of performing a significant number of jobs in the national economy. 

CONCLUSION 

The Administrative Law Judge's decision is REVERSED and REMANDED for further 

proceedings. 

IT IS SO ORDERED. 

Dated this 

Ann Aiken 

United States District Judge 

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