1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DENISE WILSON,

No. 3:15-cv-00691-HZ

Plaintiff,

OPINION & ORDER

v.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

Bruce W. Brewer

Law Offices of Bruce W. Brewer, PC

P.O. Box 421

West Linn, OR 97068

Attorney for Plaintiff

//

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Billy J. Williams

United States Attorney, District of Oregon

Janice E. Hébert

Assistant United States Attorney

United States Attorney’s Office

1000 S.W. Third Avenue, Ste. 600 

Portland, OR 97201

John C. Lamont

Special Assistant United States Attorney

Social Security Administration

SSA Office of General Counsel

701 5th Avenue, Suite 2900

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Denise Wilson brings this action under the Social Security Act (“Act”), 42 

U.S.C. §§ 405(g) and 1383(c)(3), for judicial review of the Commissioner of Social Security’s 

final decision denying her application for disability insurance benefits (“DIB”) under Title II of 

the Act and supplemental security income (“SSI”) under Title XVI of the Act. Because the 

Administrative Law Judge (“ALJ”) failed to provide legally sufficient reasons for discounting 

evidence from one of Wilson’s treating physicians, failed to give clear and convincing reasons 

for discounting Wilson’s credibility, and erred in evaluating whether Wilson could perform her 

past relevant work, the Commissioner’s decision is reversed and this case is remanded for further 

administrative proceedings.

BACKGROUND

Wilson has applied for benefits under the Act several times. Her first application in 2001 

alleged that she was disabled due to “migraine headaches; cervical, thoracic, and lumbar pain; 

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right hip, arm, and shoulder pain; left shoulder and leg pain; and left foot drop.” Tr. 95 

(punctuation altered). An ALJ denied her claim in 2003, and subsequent review by the U.S. 

District Court for the District of Montana and the U.S. Court of Appeals for the Ninth Circuit 

affirmed the Commissioner’s decision. Wilson v. Barnhart, 204 F. App’x 639 (9th Cir. 2006). 

Wilson filed again for benefits in June and August of 2010, but after the Commissioner 

denied her claims on initial review, she re-applied (rather than seeking further administrative 

review) in April of 2011. Tr. 12, 317–330, 381. Wilson alleged a similar set of impairments as 

her previous applications: “[n]eck pain, leg drop foot, nerve damage, and migraines.” Tr. 385. 

The Commissioner denied her 2011 application initially and after reconsideration. Tr. 104–16.

After a hearing in April of 2013, ALJ Riley J. Atkins found Wilson was not disabled. Tr. 107–

16. Wilson appealed, and the Appeals Council remanded because the ALJ erred by failing to 

explain “which findings from the prior [2003] decision remain binding and which do not[,] as 

required by Acquiescence Ruling 97-4(9).” Tr. 12. ALJ Atkins held a second hearing with 

Wilson, and issued a new decision on October 29, 2014, in which he concluded that Wilson was 

not disabled because should could return to her past relevant work. Wilson again asked the 

Appeals Council to review the ALJ’s decision, but the Appeals Council denied her request, 

making ALJ Atkins’s 2014 decision the Commissioner’s final decision that Wilson now 

challenges in this Court. Tr. 1–5. 

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if 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)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine 

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v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Each step is potentially 

dispositive. At step one, the presiding ALJ determines whether the claimant is engaged in 

“substantial gainful activity.” If so, the claimant is not disabled; if not, the analysis continues. 20 

C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has

one or more severe impairments. If not, the claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 

416.920(c). At step three, the ALJ determines whether the impairment meets or equals one of the

impairments listed in the SSA regulations and deemed “so severe as to preclude substantial 

gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. §§ 404.1520(d), 

416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis moves to 

step four. 20 C.F.R. §§ 404.1520(d), 416.920(d). At step four, the ALJ determines whether the 

claimant, despite any impairments, has the residual functional capacity (“RFC”) to perform past 

relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant cannot perform his or her 

past relevant work, the analysis moves to step five where the ALJ determines whether the 

claimant is able to do any other work in the national economy considering the claimant’s RFC, 

age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g). 

The burden to show disability rests with the claimant at steps one through four, but if the 

analysis reaches step five, the burden shifts to the Commissioner to show that a significant 

number of jobs exist in the national economy that the claimant could perform. 20 C.F.R. §§ 

404.1520(e) & (f), 416.920(e) & (f); Tackett v. Apfel, 180 F.3d 1094, 1098–1100 (9th Cir.

1999). If the Commissioner demonstrates a significant number of jobs exist in the national 

economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 

404.1520(g)(1), 416.920(g).

//

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ALJ DECISION

The ALJ found that Wilson met the insured status requirement under the Act through 

December 31, 2014. Tr. 15. At step one, the ALJ found Wilson had not engaged in substantial 

gainful activity since December 30, 2009, her alleged onset date. Tr. 15. At step two, the ALJ 

found Wilson had “the severe impairments of degenerative disc disease at the cervical, thoracic, 

and lumbar levels; status post cervical spine fusion in 2001; arthritis of the right shoulder; and 

migraine headaches.” Tr. 16. At step three, the ALJ found Wilson’s impairments or combination 

of impairments did not meet or equal the severity of any listed impairments. Tr. 16–17. The ALJ 

next found that Wilson had the following RFC: 

[T]he claimant has the residual functional capacity to perform light work, with the 

ability to lift and carry 20 pounds occasionally and 10 pounds frequently; stand 

and or walk 6 hours in an 8 hour workday; sit without limitation in an 8 hour 

workday; no overhead work requiring or involving lifting or greater than 5 

pounds; avoiding concentrated exposure to extreme cold, vibration, and 

environmental irritants such as noxious gases and fumes.

Tr. 17. At step four, the ALJ found that Wilson was “capable of performing past relevant work 

as an assistant manager of an adult foster home, DOT 309.354-010, light and semiskilled SVP5, 

and as a home health worker, DOT 354.377-014, medium and semiskilled SVP3, and actually 

performed in the sedentary range of exertion (sic).” Tr. 22. “This work,” the ALJ continued, 

“does not require the performance of work-related activities precluded by [Wilson’s] residual 

functional capacity[.]” Tr. 22. Accordingly, the ALJ found that Wilson was not disabled. Tr. 23. 

STANDARD OF REVIEW

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 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial 

evidence means more than a mere scintilla but less than a preponderance; it is such relevant 

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evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The court

must weigh all of the evidence, whether it supports or detracts from the Commissioner’s 

decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). If the evidence is susceptible to 

more than one reasonable interpretation, the court must uphold the decision. Andrews, 53 F.3d at 

1039–40. A reviewing court must consider the entire record as a whole and cannot affirm the 

Commissioner by simply isolating a specific quantum of supporting evidence. Robbins v. Soc. 

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation omitted).

DISCUSSION

Wilson raises the following challenges to the ALJ’s decision:

1. Whether the ALJ’s conclusion that her mental impairment were not severe at step two 

is supported by substantial evidence;

2. Whether “changed circumstances” between Wilson’s 2003 and 2013 applications 

supported a less restrictive RFC in 2013;

3. Whether the ALJ properly considered and discounted medical opinion evidence from 

two of Wilson’s treating physicians;

4. Whether the ALJ gave sufficient reasons for discounting Wilson’s credibility; and

5. Whether the ALJ’s conclusion that Wilson could return to her past relevant work is 

supported by evidence. 

The Court addresses each in turn below. 

1. Severity at Step Two

Wilson contends that the ALJ erred at step two by concluding that her mental 

impairments were not severe. Pl. Brief at 19–20. Wilson claimed that she suffered from 

depression, posttraumatic stress disorder, personality disorder, and substance abuse. Tr. 16. The 

ALJ found those impairments were “medically determinable” but that they were “nonsevere” 

because they did “not cause more than minimal limitation in [Wilson’s] ability to perform basic 

mental work activities[.]” Tr. 16. Even assuming the ALJ erred in finding these impairments 

nonsevere, the error is a harmless one because the ALJ considered the potential effects of 

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Wilson’s mental impairments when evaluating her RFC. Lewis v. Astrue, 498 F.3d 909, 911 (9th 

Cir. 2007) (explaining that an error at step two is harmless where the sequential analysis 

continues and the ALJ considers a claimant’s nonsevere impairments in formulating the RFC); 

see also Tr. 18–21 (discussing throughout the medical evidence regarding Wilson’s claimed 

mental limitations). Thus, the Court finds no reversible error. 

2. Changed Circumstances

Wilson attributes error to ALJ Atkins’s “changed circumstances” analysis. Pl. Brief at

10–14. The Social Security Act provides that “[t]he findings and decisions of the Commissioner 

. . . after a hearing shall be binding upon all individuals who were parties to such hearing.” 42 

U.S.C. § 405(h). The Ninth Circuit recognizes that “[t]he principles of res judicata apply to 

administrative decisions, although the doctrine is applied less rigidly to administrative 

proceedings than to judicial proceedings.” Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). 

Accordingly, an “administrative law judge’s findings concerning [a] claimant’s residual 

functional capacity, education, and work experience are entitled to some res judicata

consideration in subsequent proceedings.” Id. at 694. “In the social security context, a previous 

finding that a claimant is not disabled creates a presumption of continuing nondisability.” 

Herbert v. Colvin, No. 3:13-CV-01888-BR, 2014 WL 4956448, at *3 (D. Or. Oct. 1, 2014)

(quoting Scott v. Colvin, No. 13–CV–1189 W(DHB), 2014 WL 3797491, at *13 (S.D.Cal. 

Aug.1, 2014). A claimant can overcome the presumption by showing a “changed circumstance” 

indicating a greater disability. Id. (quoting Scott, 2014 WL 3797491 at * 13). The Commissioner 

has instructed adjudicators to “adopt [the RFC] from the final decision on the prior claim in 

determining whether the claimant is disabled with respect to the unadjudicated period unless 

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there is new and material evidence relating to such a finding[.]” Acquiescence Ruling (“AR”) 

97–4(9), 1997 WL 742758 at *3.

In his 2013 decision, ALJ Atkins adopted a less restrictive RFC for Wilson than the ALJ 

adopted for her in 2003. Tr. 123–24. The Appeals Council concluded that the ALJ Atkins’s 2013 

decision did not comply with AR 97-4(9) because it did not explain the basis for departing from 

the 2003 RFC, and it remanded the case to ALJ Atkins to consider and explain, among other 

things, which of the 2003 findings remained binding. Tr. 123–24. In 2014, ALJ Atkins noted the 

Remand Order and explained, in accordance with AR 97-4(9), why he adopted a less restrictive 

RFC in 2013. The ALJ explained that new objective medical evidence demonstrated the absence 

of neurological symptoms that were the basis of some limitations in 2003. Tr. 22. The ALJ also 

noted that Wilson’s success in treating her back pain with a TENS unit and over-the-counter 

medication had decreased her use of narcotic medication, and thus restrictions from 2003 that 

were based on the side effects of those narcotics were no longer necessary. Tr. 22. 

Wilson argues the ALJ erred in concluding that new objective evidence of Wilsons’s 

neurological conditions “warrant[ed] the elimination of associated limitations in [Wilson’s 2003] 

residual functional capacity.” Tr. 22. The ALJ in 2003 included a limitation that Wilson could 

only work at a job where she could “frequently alternative positions.” Tr. 101. ALJ Atkins did 

not include such a limitation in Wilson’s 2013 RFC because “[n]erve conduction studies of the 

left upper and lower limbs and need EMG of the left lower limb were normal and there was no 

EMG evidence of a peripheral neuropathy or a left lumbosacral radiculopathy.” Tr. 22. “This 

objective information,” ALJ Atkins wrote, “provides clear support for the current [RFC], 

demonstrating the absence of neurological factors that would have added limitations to the 2003 

[RFC].” Tr. 19. 

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Wilson asserts that this new EMG study could not possibly represent a “changed 

circumstance” because Wilson had never undergone an EMG study before. See Pl. Brief at 12 

(“In order for a normal EMG to be demonstrative of [changed circumstances] there would have 

to have been an abnormal EMG in the file at some point prior to the 2003 ALJ decision. Such 

evidence does not exist.”). But overcoming the presumption that attaches to prior RFC findings 

does not require the ALJ to find directly contradictory evidence in the record; the ALJ must 

simply find some evidence of a “changed circumstance” that warrants departing from the 

previous finding. See Herbert, 2014 WL 4956448 at *3 (explaining that the presumption of the 

validity of prior administrative finding can be overcome by showing a “changed circumstance.”). 

Moreover, the Commissioner instructs ALJs to “adopt [the RFC] from the final decision on the 

prior claim in determining whether the claimant is disabled with respect to the unadjudicated 

period unless there is new and material evidence relating to such a finding[.]” AR 97–4(9), 

1997 WL 742758 at *3 (emphasis added). The EMG study in this case is new and material 

evidence, and thus it is sufficient to support the ALJ’s adoption of a less restrictive RFC in 2013.

The ALJ’s conclusion that Wilson’s new RFC did not need to include the 2003 

limitations regarding the side effects of narcotic medications is also supported by substantial 

evidence. Wilson indicated on her 2011 disability report and her appeal report that she was not 

taking any narcotic medication. Tr. 387–88, 425. Wilson testified that the physician treating her 

back pain did not prescribe her narcotic medication. Tr. 39. Recent treatment records indicate 

that Wilson told her doctors she was tolerating her medications without suffering from side 

effects. Tr. 924, 1154. Thus, the ALJ’s conclusion that changed circumstances warranted lifting 

from the 2003 RFC any limitations related to the side effects of medication is supported by 

substantial evidence. 

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The ALJ also noted other factors supporting a departure from the 2003 RFC, including 

that Wilson’s age category had changed, and that one of Wilson’s treating physicians 

recommended that Wilson seek out vocational rehabilitation. As discussed below, the ALJ’s 

interpretation of this physician’s recommendation is a rational one supported by substantial 

evidence in the record. Taken together, along with the reasons discussed above, the Court finds 

that the ALJ’s “changed circumstance” analysis is well-supported and not in error. Although 

Wilson challenges other aspects of the ALJ’s decision on this point, given the multiple, legally 

sufficient reasons for finding a “changed circumstance” here, any other error would be a 

harmless one that would not warrant reversal. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 

2005). 

3. Medical Evidence

Wilson asserts that the ALJ erred in evaluating the medical evidence from two of her 

treating physicians, Dr. Melissa Quisano and Dr. Meg Devoe. Pl. Brief at 14, 18. There are three 

sources of medical opinion evidence in Social Security cases: treating physicians, examining 

physicians, and non-examining physicians. Valentine, 574 F.3d at 692 (citing Lester v. Chater, 

81 F.3d 821, 830 (9th Cir. 1995)). “As a general rule, more weight should be given to the 

opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Lester,

81 F.3d at 830. “The opinion of an examining physician is, in turn, entitled to greater weight than 

the opinion of a nonexamining physician.” Id. The ALJ can reject the uncontroverted opinion of 

a treating or examining physician only for “clear and convincing reasons” supported with 

substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (quoting 

Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Even if a treating or examining doctor’s 

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opinion is contradicted by another doctor, the ALJ can reject it only by providing “specific and 

legitimate reasons” that are supported by substantial evidence. Id.

a. Dr. Quisano

In 2010, Dr. Quisano opined that Wilson’s neck and lower back pain, along with her 

migraines caused a “[v]ery significant interference with [her] ability to perform one or more 

basic work-related activities.” Tr. 622. Dr. Quisano then stated that Wilson should be limited to 

sedentary work. Tr. 622. The ALJ’s 2014 decision does not address Dr. Quisano’s opinion, and 

the Commissioner concedes that the ALJ’s failure to discuss the weight afforded to Dr. 

Quisano’s opinion was an error. Def. Brief at 12. The Commissioner argues, however, that the 

error was harmless because the ALJ considered and properly discounted Dr. Quisano’s opinion 

in his 2013 decision. 

The Appeals Council vacated the ALJ’s 2013 decision because it failed to comply with 

AR 97-4(9), and remanded the case back to the ALJ with instructions to “issue a new decision”

that complied with AR 97-4(9), evaluated Wilson’s subjective complaints, and evaluated the 

treating and nontreating source opinions pursuant to applicable agency regulations. Tr. 124. 

When faced with a remand order from the Appeals Council, an ALJ sometimes incorporates by 

reference certain findings from the prior decision. See, e.g., Conejo v. Colvin, No. ED CV 10-

706-AS, 2014 WL 4264945, at *9 (C.D. Cal. Aug. 27, 2014); Alsyouf v. Astrue, No. EDCV 11-

1867 SS, 2013 WL 327794, at *12 (C.D. Cal. Jan. 29, 2013) (“The most recent ALJ decision 

incorporated by reference the prior decision.”). Such a practice is not necessarily improper.

Conejo, 2014 WL 4264945 at *9 (citing Walker v. Astrue, No. EDCV08-971DSF(FFM), 2010 

WL 2305849, at *11 (C.D. Cal. June 4, 2010)). 

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Here the ALJ did not expressly incorporate any findings from the 2013 opinion. Instead, 

ALJ Atkins explained that, upon remand from the Appeals Council, his task was to “address[] . . 

. the inconsistent residual functional capacity findings” between the 2003 and the 2013 decisions 

by including “language explaining which findings from the [2003] decision remain binding and 

which do not.” Tr. 12. By cabining the 2014 analysis in this way, it could be argued that the ALJ 

impliedly incorporated his 2013 findings, including his conclusions about Dr. Quisano’s opinion, 

into his 2014 opinion because it was not necessary to re-visit Dr. Quisano’s report to comply 

with that portion of the Appeals Council remand order.

1

The Court is not prohibited from 

drawing reasonable inferences from the ALJ’s opinion, Magallanes v. Bowen, 881 F.2d 747, 755 

(9th Cir. 1989), and it would make little practical sense to remand the case to the Commissioner 

on this point—essentially requiring the ALJ to add one line expressly incorporating the 

applicable findings from the 2013 opinion.2

But even assuming the ALJ properly incorporated his 2013 analysis of Dr. Quisano’s 

opinion into his 2014 decision, the ALJ’s analysis is still flawed because he did not provide 

sufficient reasons for discounting her report in 2013. The ALJ gave “[s]ome weight . . . to Dr. 

Quisano’s opinion, because MRIs of [Wilson’s] spine show mild to moderate degenerative disc 

disease which causes some limitations. However, on examination, [Wilson’s] gait is normal and 

her strength and sensation are also normal, which is inconsistent with a finding [Wilson] is 

limited to sedentary exertion activity.” Tr. 114. Furthermore, the ALJ wrote, Wilson’s migraines 

 

1 The Court makes no judgment about whether the ALJ’s analysis here actually complied with the 

Appeals Council remand order. A remand order is not a “final agency action,” and thus the Court does not 

have jurisdiction to review the ALJ’s compliance with it. Schuessler v. Astrue, No. 09-CV-3065-BR, 

2010 WL 3326729, at *13 (D. Or. Aug. 23, 2010) (explaining that whether an ALJ complied with a 

Appeals Council remand order was not subject to judicial scrutiny because the “Court’ s review . . . is 

limited to the final decision of the Commissioner rather than prior decisions and orders that may have 

gone into the creation of that final decision.).

2 Additionally, the Appeals Council reviewed the ALJ’s 2014 decision and did not identify the failure to 

“re-address” Dr. Quisano’s opinion as a reversible error. 

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appeared to improve with medication because “the record [did] not show the claimant had any 

complaints of migraines after staring Topamax . . . .” Tr. 114. 

There are two problems with the ALJ’s reasoning regarding Dr. Quisano’s opinion of 

Wilson’s back and neck pain. First, it is not supported by substantial evidence in the record. The 

ALJ does not cite to any particular medical evidence in the record to support his finding that 

Wilsons’s gait, strength, and sensation are “normal.” See Tr. 114. A review of Dr. Quisano’s 

treatment records contradict the ALJ’s findings. Dr. Quisano wrote that Wilson’s neck was 

“tender” at nearly every cervical level, and that Wilson exhibited “[d]ecreased [range of motion] 

especially with backwards movement.” Tr. 608. Wilson had “[p]araspinal muscle tenderness 

along the length of her spine,” and that she had “[d]ecreased [range of motion] with forward and 

backward flexion. Tr. 609. Wilson had a “[s]lightly antalgic gait, but [did] not favor one side.” 

Tr. 609. She had “grossly normal sensation,” and “5/5 muscle strength [in her] upper and lower 

extremities,” but had “some give-away weakness due to pain.” 

Second, even assuming there is other evidence in the record showing that Wilson’s gait, 

sensation, and strength were “normal,” the ALJ does not explain how such evidence undermines 

Dr. Quisano’s opinion that Wilson’s back pain limited her to sedentary work. That she may have 

performed within a “normal” range on these brief tests does not necessarily mean she is capable 

of performing at a job above the sedentary exertion level, which may require her to be on her feet 

for up to six of eight hours per day. See 20 C.F.R. § 404.1567 (noting that a job is in the “light 

work “when it requires a good deal of walking or standing, or when it involves sitting most of 

the time with some pushing and pulling of arm or leg controls.”). 

The ALJ’s conclusions about Wilson’s migraines are similarly not supported by 

substantial evidence in the record. The ALJ wrote that “[c]ontrary to [Wilson’s] testimony of 

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continued migraines on Topamax, the record does not show the claimant had any complaints of 

migraines after starting Topamax prophylactically.” Tr. 114. The ALJ cites to a collection of 

Wilson’s medical record from March of 2013, and it is true that these records do not reflect that 

Wilson suffered from migraines while taking Topamax. Tr. 789–801. However, just two months 

later, Wilson reported that “Topamax does not help migraines.” Tr. 1066. The next day, on May 

9, 2013, she reported that she had been suffering from a migraine for three days. Tr. 1061. A 

week later she still had the migraine. Tr. 1057. All the while, she was taking 100 milligrams of 

Topamax daily. E.g., Tr. 1065. Doctors instructed her to increase her dose to 100 milligrams 

twice daily, and on June 14, 2013, Wilson reported that her migraines had improved. Tr. 1046. In 

September of that year, Wilson was still taking 200 milligrams of Topamax daily, but again 

reported to her doctor complaining of three-day long migraine. Tr. 1013. Two weeks later, she 

reported a “severe migraine,” and doctors increased her dose to 200 milligrams up to twice daily. 

Tr. 998. Then again in May of 2014, Wilson report another multiple day migraine. Tr. 943. This 

evidence contradicts the ALJ’s conclusion that there was no evidence that Wilson had a migraine 

after starting Topamax. 

b. Dr. Devoe

Next, Wilson attributes error to the ALJ’s interpretation of a statement from her primary 

treating physician, Dr. Meg Devoe. In a chart note from a visit in May of 2014, Dr. Devoe wrote 

in her instructions to Wilson to “[p]lease check out vocation rehab services or Employment 

Access services at CCC.” Tr. 1097. “This comment,” the ALJ wrote, “clearly indicates that the 

physician wants [Wilson] to get vocational training and seek work. Consequently, it is also clear 

that she does not consider the claimant to be disabled. This information is given great weight.” 

Tr. 21. Wilson “objects to the ALJ’s treatment” of Dr. Devoe’s statement. Pl. Brief at 18. Dr. 

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Devoe “did not opine that Wilson can work full time,” but rather she “suggested that vocational 

rehabilitation might be beneficial or that [Wilson] might avail herself of employment access 

services at CCC.” Pl. Brief at 18. “This is not,” Wilson argues, “a release to full time 

employment.” Pl. Brief at 18. 

The ALJ analyzed Dr. Devoe’s recommendation that Wilson seek vocational 

rehabilitation as part of a collection of evidence that Wilson submitted after the hearing. Tr. 20–

21. The ALJ reviewed this new evidence, which included questionnaires completed by Dr. 

Devoe. On the questionnaires, the ALJ explained, Dr. Devoe indicated that Wilson could 

“occasionally lift and carry 10 to 15 pounds and frequently lift and carry 5 to 10 pounds, and . . . 

that there are no clear limitations on how long the claimant is able . . . to stand, and walk or sit” 

in an eight-hour work day. Tr. 20. The ALJ noted that Dr. Devoe “[c]uriously . . . advises 

deferring to mental health for this information” about Wilson’s physical limitations. Tr. 20. The 

ALJ examined the related mental health records and the opinion of Wilson’s mental health 

treatment provider, and correctly found that there was no relevant information about Wilson’s 

physical limitations in those records. Tr. 20–21. Then, the ALJ analyzed Dr. Devoe’s 

recommendation to Wilson that she “check out vocational rehab services,” and concluded that “it 

is . . . clear that [Dr. Devoe] does not consider the claimant to be disabled.” Tr. 21. 

When viewed in this context, the ALJ’s interpretation of Dr. Devoe’s recommendation to seek 

vocational rehabilitation as indicative of the doctor’s belief that Wilson was not disabled is 

supported by substantial evidence, and therefore the Court finds no error. It is certainly plausible 

that the statement from Dr. Devoe could be interpreted differently, but the ALJ’s conclusion is 

supported by “inferences reasonably drawn from the record,” and thus the Court is bound to 

uphold it. Rounds v. Comm’r, 807 F.3d 996, 1002 (9th Cir. 2015) (“[I]f the evidence is 

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susceptible to more than one rational interpretation, [the court] must uphold the ALJ's findings if 

they are supported by inferences reasonably drawn from the record.”).

4. Wilson’s Credibility

Wilson next asserts that the ALJ gave insufficient reasons for rejecting her subjective 

complaints about the intensity, persistence, and limiting effects of her symptoms. An ALJ 

analyzes the credibility of a claimant’s testimony regarding her subjective pain and other 

symptoms in two steps. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). “First, 

the ALJ must determine whether the claimant has presented objective medical evidence of an 

underlying impairment which could reasonably be expected to produce the pain or other 

symptoms alleged.” Id. at 1036 (citation and internal quotation omitted). “The claimant, 

however, need not show that her impairment could reasonably be expected to cause the severity 

of the symptom she has alleged; she need only show that it could reasonably have caused some 

degree of the symptom.” Id. (citation and internal quotation omitted). Second, if the claimant 

meets the first test, and there is no evidence of malingering, the ALJ can reject her testimony 

about the severity of her symptoms only by offering specific, clear and convincing reasons for 

doing so. Id. (citation and internal quotation omitted). 

The ALJ may consider objective medical evidence and the claimant’s treatment history, 

as well as the claimant’s daily activities, work record, and observations of physicians and third 

parties with personal knowledge of the claimant’s functional limitations. Smolen v. Chater, 80 

F.3d 1273, 1283 (9th Cir. 1996). The ALJ may additionally employ ordinary techniques of 

credibility evaluation, such as weighing inconsistent statements by the claimant. Id.

At step one, the ALJ found that Wilson’s “medically determinable impairments could be 

expected to cause some of the alleged symptoms.” Tr. 18. The ALJ found at step two that 

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Wilson’s statements about the intensity and limiting of effects of his symptoms were not entirely 

credible. Tr. 19. The ALJ noted that Wilson had some success in the past treating her back pain 

with a TENS unit. 3She first began using a TENS unit in 2002 to treat her back pain, with good 

results. Tr. 18. However, that unit was stolen and in the interim, Wilson lost her job and her 

health insurance, and could not afford to purchase a new unit. Tr. 52, 54. Wilson eventually 

secured insurance and got a new TENS unit in 2014, though she testified that the new unit “has 

not helped with the pain.” Tr. 18. At the hearing, she explained that she was only able to use two 

pads instead of the full four pads, because someone had apparently stolen one of the unit’s wires. 

Tr. 18. The ALJ noted Wilson’s trouble with the wires, but concluded that Wilson had “been 

using [the TENS unit] effectively for the past several weeks.” Tr. 18. The ALJ does not cite to 

any evidence in the record that the TENS unit was working “effectively” in the weeks leading up 

to the hearing, and, in fact, Wilson’s testimony contradicts the ALJ’s conclusion:

BY THE CLAIMANT’S ATTORNEY:

Q: [A]nd has [the new] TENS unit helped with your pain? 

A: No, it hasn’t.

. . . 

BY THE ALJ:

Q: There is a reference in the more recent records that your weren’t using 

it because it didn’t have a wire attached to it. 

A: Right. 

Q: When did you get the wire? 

A: A couple weeks ago. 

. . . 

Q: It’s not operational without the wire?

 

3 A Transcutaneous Electrical Nerve Stimulation (TENS) unit is a small, hand-held battery operated 

device that when activated administers a continuous mild electrical charge to stimulate muscles. TENS 

units are used to treat chronic pain. Thompson v. Lampert, No. CV-02-135-HU, 2004 WL 1673102, at *1 

(D. Or. July 27, 2004), report and recommendation adopted, No. CIV. 02-135-HU, 2004 WL 2059523 (D. 

Or. Sept. 14, 2004) (citing The Merck Manual of Diagnosis & Therapy 1370 (Mark H. Beers & Robert 

Berkow eds., 17th ed.1999). 

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A: No I had two wires. One was stolen off it. So it was operational with 

one wire, but you can operate it with two wires and have four pads 

. . . . So I had only one wire, but two pads were running. I could have 

four pads running.

Q: Which is not the way you normally use it; is that what you’re saying?

A: Yes, I usually run it with four pads. 

Q: So from January to June, did you have the four pads? You had both 

wires?

A: Yes. 

Q: Okay. Was the TENS Unit helping then?

A: A little bit, but not like my old one. It’s different. 

Tr. 39–40. Even when she had both wires, Wilson testified that the new unit was not as effective 

as the unit she used in 2002. The ALJ’s conclusion about the TENS unit’s effectiveness is not 

supported by substantial evidence and thus cannot be a legitimate reason for discounting 

Wilson’s credibility. 

The ALJ also noted that “[t]he records also showed the claimant using minimal narcotic 

pain medication.” Tr. 18. The cited medical record does, in fact, reflect that Wilson was treating 

her back pain and migraines with ibuprofen. Tr. 818. And while treating a condition with overthe-counter medication could be a legitimate reason to discount Wilson’s credibility, the ALJ did 

not mention that Wilson was apparently taking 1000–2000 milligrams of ibuprofen two to three 

times per week to treat her symptoms. Tr. 812. Wilson told her doctors that she used such high 

doses of over-the-counter medication in part because she lost her insurance and could not afford 

the more effective prescription medication for her migraines. Tr. 812. When Wilson reported to 

the emergency room in November of 2012 complaining of bloody stools, doctors suspected that 

her long term, high-dose use of ibuprofen could have given her “colonic ulcers” that caused the 

bleeding. Tr. 828. Doctors then instructed her to avoid NSAIDS like ibuprofen altogether. Tr. 

821. The ALJ did not mention this evidence, much less explain how the full context of Wilson’s 

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ibuprofen use undermined the credibility of her claims about her back pain or migraines. This too 

is not a clear and convincing reason for discounting Wilson’s claims. 

The ALJ mentioned that Wilson claimed to walk three times a week, and that “this 

reported level of activity is inconsistent with the hearing testimony, but supported by the 

objective evidence.” Tr. 21. Again, this conclusion is not supported by the record. The only 

hearing testimony about walking is from 2013. Tr. 43, Tr. 64. The ALJ asked if Wilson has 

difficulties walking, and she said she did on most days. Tr. 64. Wilson claimed to be able to walk 

about a block before her back pain flared, and that three blocks was about the limit of her ability 

to walk. Tr. 64. The testimony then moves on to Wilson’s difficulty lifting or carrying items. Tr. 

64–65. There is no mention about the number of times she walks per week. The ALJ’s 

mischaracterization of Wilson’s testimony is obviously not a clear and convincing reason for 

discounting her credibility.

Finally, the ALJ found that “[t]he majority of emotional problems addressed are not 

mental health issues but unfortunate or unwise lifestyle choices.” Tr. 19. On June 14, 2013, the 

ALJ found a treatment record where Wilson “reported the new problem of depression and 

anxiety, as well as fatigue, malaise, headache, and difficulty sleeping after an assault in her 

apartment building where a man grabbed her and started kissing her.” Tr. 19. “The comments of 

[Wilson’s] mental health provider . . . included indications that some of these problems are the 

result of claimant behavior.” Tr. 19. The ALJ then notes another treatment record which reported 

“self-harm as life style; poor choices, blaming, poor self-care, violent relationships, . . . does not 

take responsibility for behaviors, past significant and current trauma, intimate partner violence 

present and past, lonely, acts out, no healthy relationships, and poor choices lead to bad 

situations.” Tr. 19, Tr. 965. The ALJ fails to explain how any of the facts about Wilson’s 

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“lifestyle choices” are relevant to analyzing the credibility of her testimony regarding her 

symptoms and limitations. Whatever the source of her mental and emotional stress, the ALJ 

points to no evidence suggesting that Wilson did not actually suffer from the symptoms she 

claimed, or that Wilson is exaggerating the limiting effects that her mental symptoms have on 

her ability to work. Thus, the ALJ’s “lifestyle choice” rationale is not a convincing reason for 

discounting Wilson’s credibility. 

The Commissioner points to other portions of ALJ’s decision that could support an 

adverse credibility finding, such as a passing reference to a job application Wilson completed, or 

that the ALJ seemed to suggest that the objective medical evidence was inconsistent with 

Wilson’s testimony. Def. Brief at 15–16. But the Court declines to uphold the ALJ’s credibility 

findings on those grounds, because the ALJ did not even attempt to apply any reasoning to these 

facts in assessing Wilson’s credibility. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 

1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the 

ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post hoc

rationalizations that attempt to intuit what the adjudicator may have been thinking.”) (citation 

omitted). For instance, the ALJ noted that Wilson “often exhibits decreased range of motion in 

all direction due to pain, reports significant physical deficits.” Tr. 18. The ALJ then summarized 

some medical imaging evidence that did not reveal any acute physical injury. Tr. 18. “The 

precipitating event,” the ALJ wrote, “was that [Wilson] here 55 years of age, had tripped when 

playing tag with her boyfriend and others.” Tr. 18. The ALJ does not explain the significance of 

these facts, and the Court is left to speculate about how the ALJ believes they bear on Wilson’s 

credibility. While the Court can draw reasonable inferences from an ALJ’s opinion, the ALJ’s 

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passing reference here to a small collection of records from a single emergency room visit is not 

sufficient to infer anything about the ALJ’s reasoning regarding Wilson’s credibility. 

In sum, the ALJ erred by failing to provide clear and convincing reasons for discounting 

Wilson’s credibility. 

5. Past Relevant Work

Finally, Wilson asserts that the ALJ erred at step four in concluding that Wilson was 

capable of performing her past relevant work as an assistant manager of an adult foster home and 

as a home health worker, both as those jobs are generally performed in the national economy and 

as Wilson actually performed them. Tr. 22–23. At step four of the sequential analysis, the 

claimant has the burden to prove that she cannot perform her past relevant work “either as 

actually performed or as generally performed in the national economy.” Carmickle v. Comm’r,

533 F.3d 1155, 1166 (9th Cir. 2008). Although the burden lies with the claimant here, the ALJ 

still has a duty to make the requisite factual findings to support a conclusion that the claimant is 

capable of performing his or her past work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir.

2001) (citations omitted). This is done by looking at the claimant’s RFC and the physical and

mental demands of the claimant’s past relevant work. Id. at 844–45 (citations omitted). The 

claimant must be able to perform:

1. The actual functional demands and job duties of a particular past relevant job; 

or

2. The functional demands and job duties of the occupation as generally required 

by employers throughout the national economy.

Id. at 845. This determination requires “specific findings as to the claimant’s residual functional 

capacity, the physical and mental demands of the past relevant work, and the relation of the 

residual functional capacity to the past work.” Id. Social Security Regulations name two sources 

of information that may be used to define a claimant’s past relevant work as actually performed: 

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a properly completed vocational report, and the claimant's own testimony. Id. at 845 (internal 

citations omitted). The Dictionary of Occupational Titles (“DOT”) is the best source for how a 

job is generally performed. Rickman v. Colvin, No. 6:12-CV-01201-SI, 2013 WL 4773627, at 

*10 (D. Or. Sept. 4, 2013) (citing Carmickle, 533 F.3d at 1166).

The Commissioner concedes that the “evidence does not support the ALJ’s conclusion 

with respect to Wilson’s ability to return to work as a home health worker or to return to work as 

a[n] adult foster home assistance manager as she actually performed it.” Def. Brief at 7. Thus, 

the only question is whether the ALJ supported with substantial evidence his conclusion that 

Wilson could return to her work as an assistant manager for an adult foster home as that work is 

generally performed. 

The vocational expert testified at the 2013 hearing that Wilson’s job as an “assistant 

manager for an adult foster care home” matched with DOT code 309.354-010. Tr. 70. The ALJ 

then posed a hypothetical to the VE based on Wilson’s RFC, and the VE testified that “[t]he 

prior work activity that would be consistent with [the ALJ’s] hypothetical based on the DOT and

the claimant’s description would be assistant manager of an adult foster care facility.” Tr. 71. 

The DOT code the VE relied on describes the job of “Homemaker” and includes the 

following work tasks:

Advises family in private home in dealing with problems, such as nutrition, 

cleanliness, and household utilities: Advises and assists family members in 

planning nutritious meals, purchasing and preparing foods, and utilizing 

commodities from surplus food programs. Assists head of household in training 

and disciplining children, assigns and schedules housekeeping duties to children 

according to their capabilities, and encourages parents to take interest in 

children’s schoolwork and assist them in establishing good study habits. Explains 

fundamental hygiene principles and renders bedside care to individuals who are 

ill, and trains other family members to provide required care. Participates in 

evaluating needs of individuals served, and confers with Caseworker (social ser.) 

to plan for continuing additional services.

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DOT 309.354-010, 1991 WL 672663. 

Wilson asserts that the ALJ erred because the “Homemaker” job title listed at the DOT 

code does not match the job title of Wilson’s relevant work as an assistant manager of an adult 

foster home. The thrust of the analysis at this step is not simply a “blind matching of job titles.” 

Mills v. Sullivan, 804 F. Supp. 1048, 1056 (N.D. Ill. 1992). Rather, the question is whether the 

claimant’s job duties are consistent with the job duties described in the DOT, such that the ALJ 

can rely on the DOT to determine whether the claimant can perform her past work as generally 

performed in the national economy. See Otto v. Comm’r Soc. Sec. Admin., No. 3:14-CV-01028-

MA, 2015 WL 4066684, at *8 (D. Or. July 2, 2015) (examining whether the job duties listed for 

a DOT code, whose job title did not match plaintiff’s job title, were sufficiently similar to the 

type of work the plaintiff performed at past job to support the ALJ’s step four finding); Scansen 

v. Comm’r Soc. Sec. Admin., No. 6:12-CV-00992-MA, 2013 WL 3754853, at *6 (D. Or. July 

15, 2013) (comparing job duties in DOT to claimant’s work history and testimony to determine if 

ALJ’s conclusion regarding plaintiff’s past relevant work was supported by substantial 

evidence). 

Wilson described her job duties at the adult foster home as follows: “meds, cook, clean, 

dress, bathe (sic).” Tr. 395. The job required her to walk or stand for eight hours, and did not 

involve any lifting. Tr. 50, 395. There is some overlap between Wilson’s description of her job

and the “Homemaker” code above, but the ALJ’s conclusion that the “Homemaker” is a 

description of how Wilson’s job was generally performed in the national economy is not 

supported by substantial evidence. 

Although Wilson’s description of her job is lacking in detail, even a cursory review of 

Wilson’s work history reveals that the vast majority of her work in the fifteen years prior to her 

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alleged onset date was in the medical field, including stints as a certified nursing assistant, and a 

medication aide. Tr. 393. The VE recognized this when matching the DOT job titles to Wilson’s 

other work— he listed Nurse Assistant, DOT 355.674-014, Home Health Aide, DOT 354.477-

014, and Medication Aide, DOT 355.374-014. Tr. 69–70. 

The description Wilson gave of her job at the adult foster home, when viewed in context 

of the record as a whole, strongly suggested that job was also in health care and was similar in 

many respects to the CNA or “Nurse Aide” position she previously held. Compare Tr. 395 

(wherein Wilson describes her job at the foster home as “meds, cook, clean, dress, bathe (sic).”) 

with DOT 355.674-014 Nurse Assistant (“Performs any combination of following duties in care 

of patients in hospital, nursing home, or other medical facility[:] . . . Bathes, dresses, and 

undresses patients. Serves and collects food trays and feeds patients requiring help. Transports 

patients, using wheelchair or wheeled cart, or assists patients to walk. Drapes patients for 

examinations and treatments, and remains with patients, performing such duties as holding 

instruments and adjusting lights. Turns and repositions bedfast patients, alone or with assistance, 

to prevent bedsores. Changes bed linens, runs errands, directs visitors, and answers telephone. 

Takes and records temperature, blood pressure, pulse and respiration rates, and food and fluid 

intake and output, as directed. Cleans, sterilizes, stores, prepares, and issues dressing packs, 

treatment trays, and other supplies. Dusts and cleans patients’ rooms. . . .”).

The Homemaker code, by contrast, describes a dramatically different job. The only 

arguably “health care” related duty in the Homemaker description is “explain[ing] fundamental 

hygiene principles and render[ing] bedside care to individuals who are ill, and trains other family 

members to provide required care.” The other parts of the Homemaker job deal primarily with 

family social dynamics and child rearing. The Homemaker’s primary duties as described 

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encompass a largely “advisory” or training role, and the evidence about Wilson’s job, while 

limited, suggested a much stronger emphasis on actually performing tasks rather than directing 

others to perform them. Finally, a substantial number of the Homemaker duties are related to 

children and child care, while Wilson’s job was at an adult foster home.

Neither the VE nor ALJ even mentioned that the DOT code they relied on to match the 

adult foster home job was for “Homemaker,” or offer any explanation for the decision to use a 

non-health care code to describe a job for a person who had only worked in the health care field 

for over a decade. To the extent that there was some ambiguity about what Wilson’s job at the 

adult foster home actually entailed, it was the ALJ’s duty to further develop the factual record on 

that point. See Pinto, 249 F.3d at 844 (explaining that is the ALJ’s “duty to make the requisite 

factual findings to support a conclusion that the claimant is capable of performing his or her past 

work.”). Therefore, the ALJ erred by relying on the “Homemaker” entry in the DOT to evaluate 

whether Wilson could return to her past relevant work. 

6. Remand

Having established that the ALJ committed legal error in analyzing the medical evidence, 

discounting Wilson’s credibility, and at step four, the final question is whether to remand for 

additional proceedings or an award of benefits. Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 

2014) (explaining that if “additional proceedings can remedy defects in the original 

administrative proceeding, a social security case should be remanded,” but “in appropriate 

circumstances courts are free to reverse and remand a determination by the Commissioner with 

instructions to calculate and award benefits”) (internal quotation marks omitted); Banks v. 

Colvin, No. 3:14-CV-01306-HZ, 2015 WL 4628031, at *6 (D. Or. Aug. 3, 2015) (quoting

Treicher v. Comm’r, 775 F.3d 1090, 1101 (9th Cir. 2014)).

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Wilson asks that the Court remand her case for further proceedings, and the Court finds 

that such a remand is appropriate here. Skelton v. Comm’r of Soc. Sec., No. 06:13-CV-01117-

HZ, 2014 WL 4162536, at *14 (D. Or. Aug. 18, 2014) (explaining the question whether to 

remand for additional proceedings turns on the utility of further analysis) (citing Harman, 211 

F.3d at 1178). It is not clear from the record that Wilson is disabled. Treichler, 775 F.3d at 

1103–04 (explaining that a remand for an award of benefits is only appropriate where “the record 

as a whole is free from conflicts, ambiguities, or gaps, . . . all factual issues have been resolved, 

and . . . the claimant’s entitlement to benefits is clear under the applicable legal rules.”).

Additionally, the ALJ did not complete the sequential analysis and thus never inquired whether 

there were jobs in that national economy that Wilson could perform given her limitations. 

Therefore, a remand for additional proceedings is required. 

CONCLUSION

The Commissioner’s decision is reversed and remanded for additional proceedings. 

IT IS SO ORDERED.

Dated this _________ day of _______________________, 2016.

__________________________________ 

MARCO A. HERNÁNDEZ

United States District Judge

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