UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

ROBERT JAMES CURTIS, Case No. 3:15-cv-00867-KI

Plaintiff, OPINION AND ORDER

v. 

NANCY A. BERRYHILL, Acting

Commissioner of Social Security,

1

Defendant.

1Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting

Commissioner Carolyn W. Colvin as the defendant in this suit.

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Robert J. Curtis

14114 SE Elderberry Ln.

Milwaukie, OR 97267

Plaintiff

Billy J. Williams

United States Attorney

District of Oregon

Janice E. Hebert

Assistant United States Attorney

1000 SW Third Ave., Suite 600

Portland, OR 97204-2902

Lars J. Nelson

Special Assistant United States Attorney

Office of the General Counsel

Social Security Administration

701 Fifth Ave., Suite 2900 M/S 221A

Seattle, WA 98104-7075

Attorneys for Defendant

KING, Judge:

Pro se plaintiff Robert Curtis brings this action pursuant to section 205(g) of the Social

Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the

Commissioner denying plaintiff’s application for disability insurance benefits (“DIB”) and

supplemental security income benefits (“SSI”). I affirm the decision of the Commissioner.

BACKGROUND

Curtis filed an application for a period of disability and DIB on May 18, 2011, and an

application for SSI on August 15, 2011. The applications were denied initially and upon

reconsideration. After a timely request for a hearing, Curtis, represented by counsel, appeared

and testified before an Administrative Law Judge (“ALJ”) on December 19, 2013.

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On January 2, 2014, the ALJ issued a decision finding Curtis was not disabled within the

meaning of the Act and therefore not entitled to benefits. This decision became the final decision

of the Commissioner when the Appeals Council declined to review the decision of the ALJ on

February 26, 2015. 

DISABILITY ANALYSIS

The Social Security Act (the “Act”) provides for payment of disability insurance benefits 

to people who have contributed to the Social Security program and who suffer from a physical or

mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security

income benefits may be available to individuals who are age 65 or over, blind, or disabled, but

who do not have insured status under the Act. 42 U.S.C. § 1382(a).

The claimant 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

cause death or to last for a continuous period of at least twelve months. 42 U.S.C.

§§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his

physical or mental impairments are of such severity that he is not only unable to do his previous

work but cannot, considering his age, education, and work experience, engage in any other kind

of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and

1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for

determining if a person is eligible for either DIB or SSI due to disability. The evaluation is

carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v.

Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ

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determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. 

§§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity, disability benefits are

denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a

medically severe impairment or combination of impairments. A severe impairment is one

“which significantly limits [the claimant’s] physical or mental ability to do basic work

activities[.]” 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe

impairment or combination of impairments, disability benefits are denied. 

If the impairment is severe, the ALJ proceeds to the third step to determine whether the

impairment is equivalent to one of a number of listed impairments that the Commissioner

acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d)

and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is

conclusively presumed to be disabled. If the impairment is not one that is presumed to be

disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the

claimant from performing work which the claimant performed in the past. If the claimant is able

to perform work she performed in the past, a finding of “not disabled” is made and disability

benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

If the claimant is unable to perform work performed in the past, the ALJ proceeds to the

fifth and final step to determine if the claimant can perform other work in the national economy

in light of his age, education, and work experience. The burden shifts to the Commissioner to

show what gainful work activities are within the claimant’s capabilities. Parra, 481 F.3d at 746. 

The claimant is entitled to disability benefits only if he is not able to perform other work. 20

C.F.R. §§ 404.1520(g) and 416.920(g). 

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STANDARD OF REVIEW

The court must affirm a denial of benefits if the denial is supported by substantial

evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion” and is more than a “mere scintilla” of the evidence but less

than a preponderance. Id. (internal quotation omitted). The court must uphold the ALJ’s

findings if they “are supported by inferences reasonably drawn from the record[,]” even if the

evidence is susceptible to multiple rational interpretations. Id.

THE ALJ’S DECISION

 The ALJ identified Curtis’ severe impairments as post-traumatic epilepsy; multifocal

encephalomalacia of the brain, status post-craniotomy; and cognitive dysfunction. The ALJ found

that these impairments, either singly or in combination, did not meet or medically equal the

requirements of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The

ALJ concluded Curtis retained the residual functional capacity (“RFC”) to perform a full range of

work, with the following limitations: he could frequently climb ramps and stairs, balance, stoop,

kneel, crouch and crawl; he could not climb ladders, ropes, or scaffolds; he must avoid all

exposure to hazards such as dangerous machinery and unsecured heights; he can read, write, and

calculate numbers; and he can learn, remember, and perform simple, routine and repetitive work

tasks requiring simple work instructions, in an environment that is routine, predictable, and low

stress with few work place changes and no “over the shoulder” supervision. Tr. 18. Given this

residual functional capacity (“RFC”), the ALJ determined Curtis could not perform his past

work, but could perform other work in the national economy such as industrial cleaner,

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dishwasher, and motel cleaner.

FACTS

Curtis, who was 41 years old on his alleged disability onset date of February 1, 2009, left

high school at 14 years old. He last worked as a security guard, but the job lasted less than one

month. Prior to that job, he worked for many years as a service station attendant.

Well before his alleged disability onset date, Curtis suffered a traumatic brain injury

(“TBI”) as a result of a car accident in 1989. He recovered after a lengthy period of

rehabilitation. Curtis was then diagnosed with a seizure disorder in 2005. It was “well

controlled” until he experienced a partial seizure in May 2013. Tr. 204. After the May 2013

seizure, he was alert, attentive, fully oriented, with normal speech and language. His motor,

coordination and sensory examinations were unremarkable. He had a limping gait, which was

normal for him. He was told to increase his anti-seizure medication dosage. At a follow-up

appointment a month later, he was alert, attentive, fully oriented, with normal speech and

language, and no gross cognitive deficits. He could stand without pushing off. His gait and

station were normal. A CT scan showed encephalomalacia in the anterior inferior right temporal

lobe, and in the inferior right frontal lobe, and a left high frontal craniotomy. There was no

evidence of acute infarction or acute intracranial hemorrhage. He was told to increase his antiseizure medication. 

In November 2013, Christopher Ginocchio, M.D., treated Cutis again, after not having

seen him since December 2010. Dr. Ginocchio commented that “the patient has been doing

fairly well although it sounds like he did have a partial complex seizure in May of this year.” Tr.

225. Curtis and the friend accompanying him to the visit reported that Curtis had been working,

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but could not keep up as a security guard. Curtis and his friend described cognitive difficulties,

especially with memory and staying on task. Curtis also reported square dancing two to three

times a week. Curtis performed 28/30 on a mental status test, missing two on serial sevens. He

had previously scored 29/30 in 2006. Dr. Ginocchio continued to prescribe anti-seizure

medication. Dr. Ginocchio noted that although Curtis scored well on the mental status

examination, his complaints about memory and distractibility “definitely ring true with my

experience.” Tr. 226. Dr. Ginocchio commented on Curtis’ inability to follow through on tasks,

an inability to multitask, and that he was not really surprised Curtis had lost his job. 

Additionally, he thought Curtis’ use of marijuana was not helpful in obtaining employment. He

thought Curtis qualified for Social Security disability. 

DISCUSSION

I. Representation

Curtis complains that the ALJ referred to his attorney at the hearing by the name

Schneider, when Jared Stromer represented him.2

 According to Curtis, Stromer did not correct

the ALJ. Curtis also suggests his representative did not present evidence or argument on the

right impairment–Curtis does not believe his primary impairment is epilepsy but is instead

2Curtis also asserts that the audio recording of the hearing demonstrates the ALJ called

his representative by the wrong name, an error the representative did not correct and an error not

reflected in the written transcript. The regulations applicable to hearings require that “[t]he

record be prepared as a typed copy of the proceedings” and that is what I review. 20 C.F.R. 

§§ 404.951, 416.1451 (explaining the recording is prepared as a typed copy of the proceedings if

the claimant seeks judicial review); 42 U.S.C. § 405(g) (“the Commissioner . . . shall file a

certified copy of the transcript of the record including the evidence upon which the findings and

decision complained of are based.”). Curtis has not submitted the audio recording. Further, in

his Amended Complaint, Curtis asserts the ALJ referred to his attorney as Kevin Kerr. In any

event, Curtis does not explain how he was prejudiced by any error made by the ALJ.

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traumatic brain injury and side effects of his anti-seizure medication. He asserts he was

“bamboozled” by the hearing and “cheated out of clear representation[.]” Pl.’s Br. 1.

Curtis has no Sixth Amendment right to counsel in a social security hearing. See Holland

v. Heckler, 764 F.2d 1560, 1562 (11th

 Cir. 1985) (a claimant has “no constitutional right to

counsel at a disability benefits hearing”). In any event, there is no indication, either in the

transcript or in the decision itself, that any inadequate representation affected the outcome here. 

The ALJ included cognitive dysfunction (whether as a result of epilepsy, TBI, or side effects of

medication) as a severe impairment and assessed the residual functional capacity limitations

resulting from such a severe impairment. Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981)

(even “[l]ack of counsel does not affect the validity of the hearing . . . unless the claimant can

demonstrate prejudice or unfairness in the administrative proceedings”).3

II. Credibility

Curtis writes that he has always been a hard worker, pointing out that he worked from age

17. He writes that he quit working in 2009 because he believed his TBI and the side effects of

his anti-seizure medication “caught up with me.” Pl.’s Am. Compl. 3. (Notably, he reports later

that he was dismissed because of his use of marijuana. Id. at 8.) Curtis explains that he

attempted to work at a security job, but he had trouble remembering routes and procedures. He

applied for other jobs but was not hired. He describes various symptoms–such as his

unpredictable vomiting, his inability to drive, and his anger–but it is unclear whether these are his

current symptoms or those in existence at the time of the hearing. He agrees he has not had any

3

I note Curtis has a statutory right to appoint a representative, if desired. 42 U.S.C. § 406;

20 C.F.R. §§ 404.1700, 416.1500 (“You may appoint someone to represent you in any of your

dealings with us.”).

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seizures for more than two years.

At the hearing, Curtis testified that his seizures began in 2005. He last had a seizure in

May 2013, and the one before that had been in 2007.4 Curtis explained the anti-seizure

medication caused him to be forgetful and fatigued. He testified that he liked to jet ski in the

summer and square dance a couple of times a week, and ride his bicycle. In his pain and fatigue

questionnaire, Curtis reported that he needed to rest twenty minutes, or nap for one to two hours

daily. He then wrote that he needed to rest between activities such as playing basketball and

running. He reported feeling forgetful, had difficulty controlling his temper, and had trouble

focusing, reading, writing, and getting along with other people. He wrote that he spent his day

dressing, grooming, eating, exercising, walking the dog, watching television, reading the

newspaper, riding his bicycle, visiting with friends and family, and napping. He also did his

laundry, took out the garbage, and performed yard work.

The ALJ found Curtis’ description of his impairments not supported by the objective and

clinical findings, his own activities of daily living, or his work history. When deciding whether

to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage

analysis. In the first stage, the claimant must produce objective medical evidence of one or more

impairments which could reasonably be expected to produce some degree of symptom. 

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant is not required to show

that the impairment could reasonably be expected to cause the severity of the symptom, but only

to show that it could reasonably have caused some degree of the symptom. In the second stage of

4Other evidence in the record indicates the last seizure was in February 2008. Curtis went

to the emergency room for treatment. The seizure was witnessed. Tr. 44. Curtis reported to Dr.

Ginocchio that he had decreased his anti-seizure medication dosage and then missed a dose.

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the analysis, the ALJ must assess the credibility of the claimant’s testimony regarding the

severity of the symptoms. Id. The ALJ “must specifically identify the testimony she or he finds

not to be credible and must explain what evidence undermines the testimony.” Holohan v.

Massanari, 246 F.3d 1195, 1208 (9th

 Cir. 2001). General findings are insufficient to support an

adverse credibility determination and the ALJ must rely on substantial evidence. Id. “[U]nless

an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may

only find an applicant not credible by making specific findings as to credibility and stating clear

and convincing reasons for each.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.

2006).5

The ALJ gave clear and convincing reasons to reject Curtis’ testimony. As an initial

matter, Curtis has been taking anti-seizure medication since 2005, and was able to continue

working until 2009. His employment was terminated in 2009 for reasons other than his

impairments. He continued to look for work after losing his job. Gregory v. Bowen, 844 F.2d

664, 666-67 (9th

 Cir. 1988) (ALJ found plaintiff’s “lengthy history of lower back problems did

not render her disabled” where the condition remained unchanged and her “back problems had

not prevented her from working over that time”); Bruton v. Massanari, 268 F.3d 824, 828 (9th

Cir. 2001) (proper consideration is that the claimant left his job for reasons other than his alleged

impairment). 

Additionally, the ALJ thought Curtis’ extensive daily activities undermined his

5The Commissioner disagrees that the clear and convincing standard controls the analysis,

encouraging application of the more deferential regulatory requirement for specific reasons

supported by substantial evidence. Def.’s Br. 10, n.4. The Ninth Circuit has rejected her

argument. See Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014) (reasserting that the ALJ must

provide “specific, clear and convincing reasons” to support a credibility analysis).

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testimony. Although Curtis testified to problems with balance and fatigue, he rode a bicycle,

square danced, and jet skied in the summer. Curtis asserted problems with reading, paying

attention, and anger, but he reported in his questionnaire that he read the newspaper daily and

visited with friends and family. He could use public transportation and shop in stores. These

activities tend to undermine his testimony about the extent of his symptoms. The ALJ’s reading

of the record is “supported by inferences reasonably drawn from the record[.]” Molina, 674 F.3d

at 1110.

Finally, although the ALJ cannot reject testimony solely because it was not fully

corroborated by objective medical evidence, medical evidence is still a relevant factor in

determining the severity of the impairment and its disabling effects. Rollins v. Massanari, 261

F.3d 853, 857 (9th Cir. 2001) (discussing pain testimony). The ALJ pointed out that after Curtis’

seizure in 2013, he was fully oriented, with normal speech and language, and with no gross

cognitive deficits. Additionally, Dr. Ginocchio tested his mental status (while he was on

medication) and scored him at 28/30, missing only serial sevens. He was awake, alert,

interactive, with a good sense of humor. He had previously scored a 29/30 in 2006, while he was

still working. 

In sum, the ALJ gave clear and convincing reasons, supported by substantial evidence in

the record, to find Curtis’ testimony about the extent of his symptoms less than credible.

III. Dr. Ginocchio’s Opinion

To the extent Curtis challenges the ALJ’s assessment of Dr. Ginocchio’s opinion, I note

the weight given to the opinion of a physician depends on whether the physician is a treating

physician, an examining physician, or a nonexamining physician. More weight is given to the

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opinion of a treating physician because the person has a greater opportunity to know and observe

the patient as an individual. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). If a treating or

examining physician’s opinion is not contradicted by another physician, the ALJ may only reject

it for clear and convincing reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d

1063, 1067 (9th

 Cir. 2006) (examining physician). Even if it is contradicted by another physician,

the ALJ may not reject the opinion without providing specific and legitimate reasons supported

by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The

opinion of a nonexamining physician, by itself, is insufficient to constitute substantial evidence

to reject the opinion of a treating or examining physician. Widmark, 454 F.3d at 1066 n.2. 

Here, because Dr. Ginocchio’s opinion was contradicted by the State agency medical

consultants, the ALJ was required to give specific and legitimate reasons to discount the doctor’s

opinion. The ALJ gave three reasons for discounting Dr. Ginocchio’s opinion. First, his opinion

that Curtis “qualifies for needing Social Security disability” is just a statement that Curtis would

benefit from disability benefits. In any event, the ALJ commented, the issue of disability is

reserved to the Commissioner. Additionally, and more importantly, Dr. Ginocchio’s opinion

about Curtis’ mental limitations is not supported by the doctor’s own objective findings. Curtis

performed very well on the mental status examination. The ALJ also commented that Dr.

Ginocchio had not seen Curtis for three years; in other words, the doctor had a limited treating

relationship with Curtis. An ALJ is not required to accept the opinion of a physician, even a

treating physician, if the opinion is “ conclusory, brief, and unsupported by the record as a

whole[.]” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ

did not err.

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IV. Vocational Expert Testimony

Curtis argues that he has undertaken internet searches to find jobs such as “industrial

cleaner,” and learned that they all require a high school diploma, GED, or education beyond

grade school. He also argues that the jobs are almost always less than full time.

I cannot consider evidence Curtis has submitted to the Court. My task is to assess the

ALJ’s decision and I may not consider evidence outside the record. See 42 U.S.C. § 406(g)

(“The court shall have power to enter, upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the Commissioner”). In any event, the

ALJ“may take administrative notice of any reliable job information, including information

provided by a VE.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); see also Wright v.

Massanari, 321 F.3d 611, 616 (9th Cir. 2003) (holding that the ALJ may rely on the testimony of

the vocational expert). As a result, the ALJ did not err.

V. Medical records since the ALJ’s decision

Curtis submitted to the Court, as an attachment to his Amended Complaint, a

neuropsychological evaluation written seven months after the ALJ issued his decision but before

the Appeals Council denied review. Am. Compl. Ex. 14. In the evaluation, Julia Wong-Ngan,

Ph.D., sets out the results of extensive testing of Curtis’ verbal skills, abstract reasoning,

conceptual thinking, attention and concentration, mental tracking, learning and memory, problem

solving, fine motor dexterity, anxiety and depression. She opined that his moderate memory

deficit, and mental tracking difficulties, along with his severely impaired fine motor dexterity,

would affect Curtis’ ability to learn new information, follow instructions, and perform at a

normal pace. There is no indication Dr. Wong-Ngan’s report was provided to the Appeals

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Council. Tr. 4 (listing additional evidence made a part of the record). As such, I am precluded

from considering

When a claimant submits evidence to the district court that is not in the administrative

record, the district court must determine whether to remand the case to the ALJ for

reconsideration under 42 U.S.C. § 405(g). That section provides for remand where there was a

“failure to incorporate [the new] evidence into a prior proceeding.” 42 U.S.C. § 405(g). To

justify a remand, Curtis must demonstrate “that there is new evidence which is material and that

there is good cause for the failure to incorporate such evidence into the record in a prior

proceeding . . . .” Id. To be material, the new evidence offered must bear directly and

substantially on the matter in dispute. Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984). 

Good cause may be established if the evidence became available after the Commissioner’s final

decision and the claimant could not have obtained the evidence earlier. Key v. Heckler, 754 F.2d

1545, 1551 (9th Cir. 1985) (no explanation for late solicitation of information).

I am inclined to view the new evidence as “material.” Curtis, however, has failed to

establish good cause for his failure to obtain such an opinion at the time of the administrative

hearing or to submit it to the Appeals Council prior to its review of his case. Both Curtis and his

attorney were aware at the time of the hearing of Curtis’ cognitive impairments and neither

alerted the ALJ to the necessity of a neuropsychological evaluation. Additionally, Curtis did not

attempt to provide the neuropsychological evaluation to the Appeals Council prior to its decision

denying review. See Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001) (“A claimant does

not meet the good cause requirement by merely obtaining a more favorable report once his or her

claim has been denied.”).

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CONCLUSION

The findings of the Commissioner are based upon substantial evidence in the record and

the correct legal standards. For these reasons, the court affirms the decision of the

Commissioner.

IT IS SO ORDERED.

DATED this 24th day of January, 2017. 

 /s/ Garr M. King 

Garr M. King

United States District Judge

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