IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

SHAWN EDWARD BOATWRIGHT, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner of Social Security, 

Defendant. 

PAP AK, Magistrate Judge: 

Civil No. 3:14-cv-01658-PK 

OPINION AND ORDER 

Plaintiff Shawn Edward Boatwright filed this action May 27, 2011, seeking judicial 

review of the Commissioner of Social Security's final decision denying his applications for 

Disability Insurance benefits under Title II and Supplemental Security Income under Title XVI of 

the Social Security Act. This court has jurisdiction over plaintiffs action pursuant to 42 U.S.C. 

§ 405(g) and 1383(c)(3). 

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Boatwright argues that by erroneously rejecting his testimony regarding the extent of 

his impairments, and failing to give proper weight to lay witness evidence, the Commissioner 

failed properly to assess his residual functional capacity after completing step tln·ee of the fivestep sequential process for analyzing a Social Security claimant's entitlement to benefits, and for 

that reason erred by finding Boatwright capable of performing work at step five of the process. 

I have considered all of the parties' briefs and all of the evidence in the administrative 

record. For the reasons set forth below, the Commissioner's decision is reversed and this matter 

is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for fmther administrative 

proceedings consistent with this Opinion and Order. 

DISABILITY ANALYSIS FRAMEWORK 

To establish disability within the meaning of the Act, a 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 last for a continuous period of not 

less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step 

sequential process for determining whether a claimant has made the requisite demonstration. See 

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 404.1520(a)(4). At the first 

four steps of the process, the burden of proof is on the claimant; only at the fifth and final step 

does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 

(9th Cir. 1999). 

At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work 

activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 404.1520(a)(4)(i). If the ALJ 

finds that the claimant is engaged in substantial gainful activity, the claimant will be found not 

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disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b). 

Otherwise, the evaluation will proceed to the second step. 

At the second step, the ALJ considers the medical severity of the claimant's impairments. 

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is 

"severe" if it significantly limits the claimant's ability to perform basic work activities and is 

expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 

20 C.F.R. § 404.1520(c). The ability to perform basic work activities is defined as "the abilities 

and aptitudes necessmy to do most jobs." 20 C.F.R. § 404.1521(b); see also Bowen, 482 U.S. at 

141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration 

requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 

C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). Nevertheless, it is well established that "the step-two 

inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 

F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impairment or 

combination of impairments can be found 'not severe' only if the evidence establishes a slight 

abnormality that has 'no more than a minimal effect on an individual[']s ability to work." Id., 

quoting S.S.R. 85-28, 1985 SSR LEXIS 19 (1985). 

If the claimant's impairments are severe, the evaluation will proceed to the third step, at 

which the ALJ determines whether the claimant's impairments meet or equal "one of a number of 

listed impairments that the [Commissioner] acknowledges are so severe as to preclude 

substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 

404.1520(d). If the claimant's impairments are equivalent to one of the impairments enumerated 

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in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See 

Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). 

If the claimant's impairments are not equivalent to one of the enumerated impairments, 

between the third and the fourth steps the ALJ is required to assess the claimant's residual 

functional capacity ("RFC"), based on all the relevant medical and other evidence in the 

claimant's case record. See 20 C.F.R. § 404.1520(e). The RFC is an estimate of the claimant's 

capacity to perform sustained, work-related physical and/or mental activities on a regular and 

continuing basis, 1 despite the limitations imposed by the claimant's impairments. See 20 C.F.R. 

§ 404. l 545(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

At the fomih step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 

416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can 

still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 

482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(a)(4)(iv), 404.1520(£). In 

the event the claimant is no longer capable of performing his or her past relevant work, the 

evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first 

time, to the Commissioner. 

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's age, education, and work experience to determine whether a person with those 

characteristics and RFC could perform any jobs that exist in significant numbers in the national 

1 "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an 

equivalent work schedule." S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

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economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 

404.1560( c ), 404.1566. If the Commissioner meets her burden to demonstrate the existence in 

significant numbers in the national economy of jobs capable of being performed by a person with 

the RFC assessed by the ALJ between the third and fomih steps of the five-step process, the 

claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 

404.1520(a)(4)(v), 404,1520(g), 404.1560(c), 404.1566. A claimant will be found entitled to 

benefits ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 

142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g). 

LEGAL STANDARD 

A reviewing court must affirm an Administrative Law Judge's decision ifthe ALJ applied 

proper legal standards and his or her findings are supported by substantial evidence in the record. 

See 42 U.S.C. § 405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 

(9th Cir. 2004). "'Substantial evidence' means more than a mere scintilla, but less than a 

preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 

support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing 

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 

The comi must review the record as a whole, "weighing both the evidence that supports 

and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddick v. 

Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of 

the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253 

F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent 

findings of fact in determining whether the ALJ's findings are supported by substantial evidence 

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of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chene1y 

Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is 

immaterial that the evidence may be "susceptible [of] more than one rational interpretation." 

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 

1450, 1453 (9th Cir. 1984). 

SUMMARY OF ADMINISTRATIVE RECORD2 

Boatwright was 39 years old on his alleged onset date of May 9, 2011. Tr. 138.3 He 

completed three years of college. Tr. 168. According to the evidence of record, prior to his 

claimed disability onset date Boatwright had substantial gainful activity as a rental clerk, a 

teacher's assistant, a cable technician, an institution attendant, an installer, and a meat boner. Tr. 

62-63, 209. He stopped working in May 2011. Tr. 167. Boatwright alleges he cannot work due 

to "decreased vision, headaches, diabetes, chronic headaches, decreased vision in left eye, 

diabetes, high blood pressure, high cholesterol, short-term mem01y loss, poor judgment or 

decision making, emotional outbursts, learning problems, depression." Tr. 167. 

I. The Medical Record 

A. Pre Onset Date of Disability 

On March 8, 2010, Boatwright was seen in the emergency room for low back pain. Tr. 

333-37. In March and April 2010, Boatwright had a series of physical therapy appointments for 

low back pain. Tr. 316-32. 

2 The following recitation constitutes a summaiy of the evidence contained within the 

Administrative Record, and does not reflect any independent finding of fact by the court. 

3 Citations to "Tr." refer to the page(s) indicated in the official transcript of the 

administrative record filed herein as Docket No. 14. 

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On August 20, 2010, Boatwright was seen in the emergency room having hit his head in 

the swimming pool a day earlier. Tr. 304-09. A CT scan of the head showed no fracture. Tr. 

348. On August 30, treating physician Royal B. Whine1y, M.D., noted dull headache, positional 

ve1tigo, decreased concentration, anxiety, high irritability and personality changes. Tr. 482. Dr. 

Whine1y diagnosed severe postconcussive syndrome, and referred Boatwright to a neurologist. 

Tr. 483. 

On October 12, 2010, neurologist Brent N. Hisey, M.D., examined Boatwright. Tr. 247-

48. Boatwright reported headaches, dizziness, forgetfulness, emotional !ability, and decreased 

visual acuity since he hit his head in the swimming pool. Tr. 247. Boatwright reported he 

suffered about ten concussions while playing college football. Id. A CT brain scan was within 

normal limits. Dr. Hisey said "I suspect this is a post-concussion syndrome. I suspect there is 

also some component of depression." Id. Dr. Hisey prescribed fioricet for headaches. Tr. 248. 

An October 2010 brain MRI showed that"moderate cerebral co1tical atrophy in the frontal 

lobes towards the vertex of the skull is greater than anticipated for this patient's age." Tr. 259. 

On October 26, November 11, and December 1, 2010, Boatwright was seen in the 

emergency room for postconcussive syndrome and received injections of morphine. Tr. 290-93, 

286-89, 298-303. 

A December 29, 2010, a Neuropsychological Evaluation Repmt was prepared by Mickey 

Ozolins, Ph.D, and Delmar Ozolins, Ph.D. Tr. 260-65. Boatwright reported he hit his head on 

the bottom of a swimming pool in August and when his wife helped him out of the pool he could 

not count her fingers and had trouble walking. He was agitated and had a headache. Tr. 260. 

The following day he went to the emergency room, where a CAT scan was negative and he was 

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Case 3:14-cv-01658-PK Document 22 Filed 10/29/15 Page 7 of 22
diagnosed with a concussion. Since then, Boatwright episodically sees stars and is "over reactive 

to small things." Id Boatwright reported he was moody, with low frustration tolerance, and 

inability to control his temper. His wife rep01ied his left pupil contracts and expands at times, 

with subjective associated blurred vision. Boatwright had shoti term memory loss. He worked 

full-time supervising juvenile delinquents in a detention center. Tr. 261. He was taking 

Ibuprofen and Fioricet eve1y eight hours, and Lisinopril, and received morphine with Phenergan 

injections eve1y three weeks. Id. 

Doctors Ozolins noted good motivation and consistent effort. Boatwright was 

tested in two sessions, five weeks apati, and was emotionally more stable in the second session. 

Tr. 262. Fine motor dexterity was in the Borderline range bilaterally. Tr. 263. His Verbal IQ 

was at the third percent, and Performance IQ was at the 53rd percent. Id. His Full Scale IQ was 

at the 14th percentile, in the Mildly Impaired range. "This performance is highly suggestive of a 

long standing developmental learning disability, but is not consistent with that typically seen in 

head i~ury." Id Boatwright read at the fomih grade level, or moderately impaired, spelled at a 

second grade level, or severely impaired, and had a borderline score in arithmetic. The doctors 

concluded: 

The patient endorsed only minimal depression and mild anxiety. 

However, on the MMPI, taken five weeks before he took the Beck 

Inventories, his profile suggested symptom exaggeration, patiicularly 

somatic symptoms. This pattern suggests that over time the patient 

has probably shown some improvements and that initially he was 

much more focused on the somatic complaints that included 

neurologic symptoms, head complaints, GI complaints and malaise. 

He continues, according to the MMPI, as well as his self report in 

the interview, however, to experience problems with memo1y and 

concentration, self doubt and anger and abe1rnnt thoughts and 

perceptions. He may have a long standing tendency to respond to 

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Tr. 264-65. 

stress by having difficulty with concentration. According to the 

patient's wife, however, even though he previously tended to anger 

before, he was never like this. His MMPI profile also suggests a long 

standing pattern of being prone to temper tantrums, holding grudges 

and to have a low frustration tolerance. Interpersonally, he may feel 

hostile toward others and to distrust others, being cynical and 

believing people are out for their own interests. He may also have a 

long standing tendency toward anxiety. 

On Janua1y 25, 2011, Douglas W. Kaplan, M.D., examined Boatwright in a neurological 

consultation. Tr. 269-71. Boatwright reported a constant headache since his August 19, 2010, 

swimming pool accident. He had nausea and photophobia, and episodes of bluny vision in his 

left eye and recurrent dizziness. He reported irritability and left hand numbness. Dr. Kaplan 

diagnosed chronic postconcussion syndrome and prescribed Lexapro. Tr. 271. In February 2011 

Boatwright was diagnosed with Anterior Ischemic Optic Neuropathy, with visual field defects 

and trauma to the occipital socket. Tr. 375, 377. He reported he lost vision in the left eye for 

periods of time. Tr. 380. 

Dr. Kaplan saw Boatwright again on February 14, when he continued to have daily 

headaches. Tr. 268. Neurontin was prescribed. Id By mid March, headaches were reduced to 

three to four times per week. Tr. 267. Neurontin was increased. 

On May 4, 2011, Dr. Kaplan noted three to four headaches per week. Tr. 266. 

Boatwright repotied some relief with Anaprox, but continued to have short term memory loss 

with symptoms of depression and irritability. He was taking Lexapro and Neurontin. Id. Dr. 

Kaplan diagnosed clU"onic postconcussion syndrome and refened him to a psychiatrist. 

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A May 4, 2011, brain MRI was essentially normal, but showed mild to moderate 

parenchymal volume loss which "could be related to multiple prior concussive events .... " Tr. 

272. A May 18 MRA of the brain was normal. Tr. 346. 

Boatwright alleges the onset of disability as of May 9, 2011. 

B. Post Onset Date of Disability 

On May 11, 2011, Boatwright was seen in the emergency room with dizziness, chest pain, 

and headache. Tr. 273-85. On May 26, Boatwright saw Dr. Whine1y to follow up on increased 

blood pressure. Tr. 480. Dr. Whine1y noted emotional !ability. 

On June 22, 2011, Boatwright began treatment with Leland W. Dennis, M.D., of Rivers 

Edge Mental Health. Tr. 497-514. Boatwright reported anger outbursts two to three times a week 

lasting from a few hours to several days. Tr. 497. Boatwright's mood was labile, his insight and 

judgment impaired. Tr. 499. Dr. Dennis noted symptoms of dementia. Id. 

On July 5, 2011, Dr. Dennis noted labile mood, physical aggression, and perceptual 

disturbance. Tr. 495. He prescribed Aricpet. The next day Boatwright's wife left a message 

with Dr. Dennis, stating Boatwright had argued with his eight year old child, and locked the child 

out of the home. Tr. 492. Mrs. Boatwright went home, removed the children from the home, 

and returned later to take Boatwright to get lab work done. They stopped in a park to talk, 

Boatwright became ang1y, jumped on the hood of the car, and asked his wife to run him over. 

Later that day Boatwright was brought by police to the emergency room where he was 

evaluated by Dukheh Ahn, M.D., a psychiatrist, after taking his shotgun to the backyard and 

contemplating suicide. Tr. 414. Boatwright was depressed, anxious, and sad with poor 

judgment. Tr. 415. Boatwright was taking Lisinopril, Nuedextra, Neuron tin, Metform, 

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Imiprazole, and Doxycycline. Tr. 417. Boatwright was placed in a mental health stabilization 

unit and released on July 11. Tr. 420-21. Clinicians noted Boatwright had regressed to about age 

ten since the accident with severe anger issues and no impulse control. Id He was assessed a 

GAF of35. 4 Dr. Dennis recorded, on July 19, that Boatwright's wife no longer left him alone 

with the children. Tr. 490. 

On July 20, 2011, Savannah Burghardt, M.S., examined Boatwright for Red Rock 

Behavioral Health Services. Tr. 437-38. Ms. Burghardt noted Boatwright felt unwanted 

because he was not working, he was depressed and hopeless with anger outbursts four to five 

times per week. She noted Boatwright "has regressed to about age 10 since accident; he has 

severe anger problems; Dr. felt he is high risk of harm to self and others at this point." Tr. 437. 

She assessed a GAF of39. Tr. 427, 437. Boatwright did not drive because of peripheral vision 

issues. 

On July 29, 2011, Walter W. Bell, M.D., reviewed Boatwright's medical records, 

completed a Physical Residual Functional Capacity Assessment, and concluded he was not 

disabled. Tr. 401-08. 

4 The GAF scale is a tool for "reporting the clinician's judgment of the individual's 

overall level of functioning." American Psychiatric Ass'n., Diagnostic and Statistical Manual of 

Mental Disorders 32 ( 4•h ed. 2000)). It is essentially a scale of zero to 100 in which the clinician 

considers "psychological, social, and occupational functioning on a hypothetical continuum of 

mental health-illness," not including impairments in functioning due to physical or environmental 

limitations. Id at 34. A Global Assessment of Functioning ("GAF") score between 31 and 40 

indicates "Some impairment in reality testing or communication (e.g., speech is at times illogical, 

obscure, or irrelevant) or major impairment in several areas, such as work or school, family 

relations, judgement, thinking, or mood (e.g. depressed man avoids friends, neglects family, and 

is unable to work .... )" Id at 34. 

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On August 17, Dr. Whine1y examined Boatwright for complaints of headaches, sh011ness 

of breath, and fatigue. Tr. 478. On August 18, Dukheh Ahn, M.D., at Red Rock Behavioral 

Health, recorded a constricted affect and anxious mood. Tr. 547. 

The next day Richard D. Kahoe, Ph.D., conducted a mental status examination of 

Boatwright at the request of the SSA. Tr. 444-48. Dr. Kahoe described Boatwright as obese, 

tense, apprehensive, worried and uneasy. Tr. 444. His mood was depressed, with markedly 

variable appetite, sleep disturbance, and fatigue. Dr. Kahoe found Boatwright's attention and 

concentrations skills were mildly impaired, with deficits in short term memo1y. Tr. 445. Dr. 

Kahoe diagnosed dementia due to traumatic head injmy with behavioral disturbance, adjustment 

disorder with depressed mood and irritability, and assessed a GAF of 52. Tr. 448. Dr. Kahoe 

opined that Boatwright was "marginally" able to manage benefit payments. Tr. 443. 

On September 13, 2011, Dr. Dennis noted Boatwright had headaches and dizziness, and 

had fallen down the previous day. Tr. 488. His GAF was assessed as 55. Id. Two days later, 

Dr. Whine1y saw Boatwright for headache and loss of balance, and he received an injection for 

temporal pain. Tr. 476, 475. Boatwright requested a work release, but admitted he would not be 

able to complete tasks. Id. Boatwright also saw Dr. Dennis, and reported he was getting a 

divorce, and was sleeping better. Tr. 489. The same day, Boatwright saw Dr. Ahn who 

recorded an unkept appearance, with a constricted affect and anxious mood. Tr. 545. 

On October 7, 2011, Dr. Whine1y completed a Statement for Long Term Disability 

Benefits for Standard Insurance Company in which he stated Boatwright could not work, was 

unable to sustain concentration or perform adequate reasoning, and had short term memo1y loss. 

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Case 3:14-cv-01658-PK Document 22 Filed 10/29/15 Page 12 of 22
Tr. 589. Dr. Whinety opined that Boatwright was unable to manage insurance benefits and 

anticipated no change in Boatwright' s condition. Id 

Boatwright saw Dr. Dennis the following week, reporting headaches that woke him from 

sleep, and depressed mood. Tr. 486. Dr. Dennis prescribed Celexa. On November 10, 2011, 

Dr. Dennis recorded continuing headaches with a GAF of60. Tr. 584. 

On December 6, 2011, Dr. Dennis assessed a GAF of 70. Tr. 583. On December 12, Dr. 

Whinery noted continuing headaches but with a decrease in intensity. Tr. 586. Boatwright's 

short term memoty was no better, but no worse. On December 14, a brain CT scan was normal. 

Tr. 585. 

On December 15, 2011, Beth Klein, Ph.D., completed a Mental Residual Functional 

Capacity Assessment ("MRFCA"), concluding Boatwright was not disabled. Tr. 516-18. On 

Januaty 10, 2012, Karen Schnute M.D., reviewed Boatwright's medical records and found him 

not disabled. Tr. 534. 

In March 2013, Grant D. Aaker, M.D., of the Casey Eye Institute, noted daily headaches 

and a generalized restriction of the left eye visual field. Tr. 598. In addition, Yen Tibayan, 

M.D., diagnosed cardiomyopathy. Tr. 602. 

II. The Hearing Testimony 

On April 4, 2013, a hearing was conducted before an ALJ in connection with 

Boatwright's applications. Tr. 31-66. Boatwright, his counsel, his ex-wife Tammy Boatwright, 

and a vocational expett were present. Tr. 32. 

Boatwright testified he was five foot nine and one-half inches tall and about 330 pounds. 

Tr. 36. He lived with his aunt and uncle for the past nine months. Before that he lived in Elk 

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Case 3:14-cv-01658-PK Document 22 Filed 10/29/15 Page 13 of 22
City, Oklahoma. Tr. 37. He moved here to be closer to family and because his aunt and uncle 

are helping him. Id. He has completed some college. In his last job he was a teacher's aide in a 

prison school where his job was to protect the teacher from the students. Tr. 38. The job ended 

when Dr. Whinery told him he could no longer drive or work because another concussion might 

kill him. Tr. 39. He has not worked since. Tr. 40. 

Boatwright has been diagnosed with cardiomyopathy, and gets left-sided chest pain about 

every other day. Tr. 41. His uncle reminds him to take his medication sometimes. Tr. 42. His 

blood sugar is controlled by medication, but he ran out two weeks ago and had no money to 

purchase more. Tr. 43. He has sleep apnea and uses a CPAP machine. He sleeps tlu·ee to four 

hours at a time "because my head hutts so bad, I hurt." Tr. 44. Boatwright has peripheral vision 

loss in his left eye. Tr. 45. About once a day he loses vision in his left eye for 15 to 30 seconds. 

Tr. 46. He is not allowed to drive. He has a headache "24/7." Tr. 47. Boatwright testified that 

"some days it's worse than other days but I always have a headache. I mean there are some days 

it'll bring me down to my knees crying it hutts that bad." Id. He gets a shot or morphine every 

three weeks if he wants it, and a shot of Demerol and something else. Id. When he gets the shots 

he sleeps for tiu·ee days. Tr. 48. "But then after that I will go back to maybe two to three hours a 

day of sleep and maybe three but my head will hurt tlu·ee times as bad as it did before because 

I'm coming off it and my head hurts." Id. Between shots he takes Oxycodone. He has the most 

intense headache pain once or twice a week. Tr. 49. It lasts about an hour, but varies. 

Sometimes he lies in a darkened room with a damp cloth on his head. His doctors told him the 

headaches are related to his brain injuries, and advised him to quit taking Ibuprofen. Id. The 

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Case 3:14-cv-01658-PK Document 22 Filed 10/29/15 Page 14 of 22
headaches statied after his last concussion. Tr. 50. His headache pain has increased since he quit 

taking the Ibuprofen about two months ago. 

After the August 2010 accident Boatwright noticed he "will lose my temper faster. I have 

a sh011 fuse. I have anger, I'll yell at people, I will scream. I will throw tantrums. I don't trust 

people that much. I don't, I don't know I mean it's just, it's just changed." Tr. 51. He believes 

this caused his divorce. Id Boatwright said he had a temper before the accident, but "I had that 

switch I could turn on and off at will. But I can't do it now." Tr. 52. He has wanted to kill 

himself a couple of times. A doctor in Oklahoma City wants to examine Boatwright's brain 

when he dies. 

Boatwright said he doesn't pay attention as much since the accident. Tr. 53. He 

continued working until early 2011 but had difficulty in the workplace. It was hard for him to 

stay in his chair, he walked around a lot, and was mean to the students. Tr. 54. He was 

involuntarily committed to a crisis unit after a suicide attempt. Tr. 55. He wants to see a 

counselor but has no insurance and no money. Id. He gets confused about directions. Tr. 57. 

He can no longer read a book. He believes he has Alzheimer's disease or dementia. He has daily 

short term memory problems. "I remember stuff when I was a kid and stuff but I can't remember 

what I did yesterday or I can't remember what I ate." Tr. 58. 

Boatwright has intermittent burning in his left eye. Id. He gets dizzy when his headaches 

are bad, once or twice a week. Id. He lies down when the headaches are bad because he falls 

down from the dizziness and his left leg gives out. 

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ALJ FINDINGS 

The ALJ applied the sequential disability determination process described above. At step 

one, the ALJ found Boatwright has not engaged in substantial gainful activity since the alleged 

onset date of May 9, 2011. Tr. 13. 

At step two, the ALJ found Boatwright had the severe impairments of traumatic brain 

injmy ("TBI") with dementia, clu·onic post-concussion syndrome, headaches, cardiomyopathy, 

obesity, adjustment disorder, anterior ischemic optic neuropathy ("AION"), and optic nerve 

drusen. Id. 

At step three, the ALJ concluded that Boatwright's impairments do not meet or equal the 

criteria for any condition in the Listing oflmpairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1. Tr. 

15. The ALJ found that Boatwright had the RFC to perform medium work, except he can 

frequently balance and climb ramps and stairs, and occasionally stoop, kneel, crouch, and crawl. 

Boatwright cannot climb ladders, ropes, or scaffolds. The claimant can perform simple, routine, 

repetitive tasks with one to two-step instructions. He is limited to low stress work, which is 

defined as work requiring few decisions and few changes. He can have occasional superficial 

contact with co-workers, regarding trivial matters, but cannot have contact with the public. 

Boatwright should avoid even moderate exposure to hazards. Tr. 16. 

At step four, the ALJ concluded Boatwright was unable to perform his past relevant 

work. Tr. 23. However, at step five, the ALJ found jobs exist in significant numbers in the 

national economy that Boatwright can perform, including scale operator, fruit washer, and 

electrode cleaner. Tr. 24. As a result, the ALJ concluded Boatwright has not been disabled from 

May 9, 2011, through the date of his decision. Id 

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DISCUSSION 

I. Plaintiff Failed to Preserve His Allegations of Error Regarding Credibility 

Boatwright contends the ALJ erred when he found Boatwright less than fully credible, 

and argues in his Opening Brief that the ALJ ell'ed by finding his activities of daily living 

inconsistent with his assertion of disability. Plaintiffs Opening Brief, pp. 16-19. 

The ALJ identified five reasons to support his credibility finding. Tr. 18-21. The ALJ 

found: (1) Boatwright's symptoms improved with treatment; (2) examination findings were 

inconsistent with debilitating symptoms; (3) he embellished his symptoms; (4) he sought 

minimal treatment for his allegedly disabling symptoms; and (5) Boatwright's daily activities 

were inconsistent with the limitations he endorsed. 

A plaintiff challenging the Commissioner's final decision regarding disability must 

specifically and directly argue issues in his or her opening brief. See Carmickle v. Comm 'r, Soc. 

Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir. 2008)(comt "ordinarily will not consider matters 

on appeal that are not specifically and distinctly argued in an appellant's opening brief.")( citation 

and internal quotations omitted). To the extent Boatwright contends in his reply briefthat the 

ALJ ell'ed in finding that he lacked credibility overall, the Commissioner has not had an 

opp01tunity to respond to this argument and for that reason the court deems the argument waived. 

See, e.g., Shopp v. Colvin, 2014 WL 4722524 (D. Or.); Luttrell v. Comm 'r of Soc. Sec., 2014 WL 

878845 (D. Or). 

The ALJ is responsible for determining credibility, resolving conflicts in medical 

testimony, and for resolving ambiguities. Andrews v. Shala/a, 53 F.3d 1035, 1039 (9'h Cir 1995). 

However, the ALJ's findings must be supp01ied by specific, cogent reasons. Reddick v. Chafer, 

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157 F.3d 715, 722 (9'h Cir 1998). Unless there is affirmative evidence showing that the claimant 

is malingering, the Commissioner's reason for rejecting the claimant's testimony must be "clear 

and convincing." Id. The ALJ must identify what testimony is not credible and what evidence 

undermines the claimant's complaints. Id The evidence upon which the ALJ relies must be 

substantial. Reddick, 157 F.3d at 724. See also Holohan v. Massinari, 246 F.3d 1195, 1208 (9'h 

Cir 2001). General findings (e.g., "record in general" indicates improvement) are an insufficient 

basis to support an adverse credibility determination. Reddick at 722. See also Holohan, 246 

F.3d at 1208. The ALJ must make a credibility determination with findings sufficiently specific 

to permit the coutt to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. 

Thomas v. Barnhart, 278 F.3d 947, 958 (9'h Cir 2002). 

Regardless of whether the ALJ improperly assessed Boatwright' s activities of daily living 

in his credibility analysis, as argued by Boatwirught' s counsel, he identified four other 

unchallenged reasons to find him less than fully credible. The ALJ' s determination regarding 

credibility is thus suppotted by substantial evidence. 

II. Lay Testimony 

The ALJ has a duty to consider lay witness testimony. 20 C.F.R. § 404.1513( d); 

404.1545(a)(3); 416.945(a)(3); 416.913(d); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 

Friends and family members in a position to observe the claimant's symptoms and daily activities 

are competent to testify regarding the claimant's condition. Dodrill v. Shala/a, 12 F.3d 915, 918-

19 (9th Cir. 1993). The ALJ may not reject such testimony without comment and must give 

reasons germane to the witness for rejecting her testimony. Nguyen v. Chafer, 100 F.3d 1462, 

1467 (9th Cir. 1996). However, inconsistency with the medical evidence may constitute a 

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germane reason. Lewis, 236 F.3d at 512. The ALJ may also reject lay testimony predicated upon 

the testimony of a claimant properly found not credible. Valentine v. Astrue, 574 F.3d 685, 694 

(9th Cir. 2009). 

Tammy Lynne Boatwright completed a Third Paiiy Function Report in June 2011. Tr. 

177-84. She reported that Boatwright's left eye vision was poor, and that the eye "goes black" 

once or twice a day for periods of up to four and a half hours. Tr. 177. He has "constant 

headaches" and "sho1i term memory loss and problems with judgment." Id Mrs. Boatwright 

said her husband "gets up takes meds, eats breakfast, watches TV, sometimes goes with me to the 

store, plays video games with the kids, supervises the children when I'm not home." Tr. 178. 

She noted he helped watch over the children, ages 16, 13, and 8, while she works at night. She 

said she "help( s) him take care of the kids. They mostly care for themselves but he is here if they 

have questions .... " Id She reported her husband could no longer drive, coach sports, work, 

make good decisions or remember things he did or said the day before. 

Mrs. Boatwright indicated her husband was able to care for his personal needs, but 

sometimes had to be reminded to care for his hair or change his clothes. Tr. 179. He required 

reminders to take his medication. He fixed small meals like sandwiches and scrambled eggs 

about once a day, though it took longer than it used to. He does laund1y for three to four hours 

once or twice a month, with help from his wife and children. He does yai·d work one or two days 

about eve1y three weeks with help. 

Mrs. Boatwright said it was not safe for him to drive because the vision in his left eye will 

go bad, he has trouble with depth perception, and headaches made it hard for him to concentrate. 

Tr. 180. He shops for groceries weekly with his wife or 16 year old daughter. He is not able to 

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pay bills or use a checkbook, and she handles all of the money. He forgets when he has spent 

money. Tr. 181 

Mrs. Boatwright stated her husband has problems getting along with others, he gets upset 

about "little things and acts like eve1yone is out to get him." Tr. 182. They argue all the time 

and she has to "constantly break up argument[ s] between him and the children." Id. It hurts his 

back to lift over 20 pounds. Sometimes he has trouble talking, hearing, and seeing. He is easily 

confused, does not understand instrnction, and gets upset if he thinks you are treating him like he 

is dumb. He can walk about one half mile before resting, and can pay attention for five to ten 

minutes. He does not finish what he stmts. Id. He "usually gets along OK [with authority 

figures] at first but then he thinks they are out to get him." Tr. 183. Stress upsets him, but he can 

handle small changes. "He thinks a lot about dying and he is always afraid I don't love him and 

that I want to leave him." Id. 

The ALJ noted the lay witness statements, and said "they are not given significa11t weight 

because they are not entirely suppo1ted by objective findings and were likely based in large patt 

on the claimant's subjective reports, which are not fully credible for the reasons discussed 

above." Tr. 22-23. 

However, Mrs. Boatwright' s observations that Boatwright cannot "make good decisions 

and remember things he did or said the day before" are not based on Boatwright's subjective 

repmts. Similarly, her observations that he fails to take care of personal grooming, forgets to 

take his medications, and is unable to handle money are not based on her husband's subjective 

repo1ts. Mrs. Boatwright's statements regarding the claimant's tendency to be upset over little 

things and to be argumentative with her and their children are based on her own observations. 

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Her statement that he is easily confused and cannot follow direction are likewise based on 

personal observation and not on Boatwright's subjective complaints. 

In addition, Mrs. Boatwright' s observations are supported by the medical record. Drs. 

Ozolins noted the MMPI, as well as Boatwright's selfreports, indicated problems with memoty, 

concentration, anger, and perception in December 2010. Tr. 264-65. Dr. Whinery noted 

emotional !ability in May 2011. Tr. 480. Dr. Dennis noted symptoms of dementia, labile mood, 

aggression, and impaired judgment and insight in June and July 2011. Tr. 499, 495. Dr. Ahn 

noted poor judgment. Tr. 415, 490. Clinicians observed severe anger issues and lack of impulse 

control. Tr. 420-21. In August 2011 Dr. Kahoe recorded mildly impaired attention and 

concentration skills, with short term mem01y deficits, and diagnosed dementia due to traumatic 

head injmy with behavioral disturbance. Tr. 445, 448. In October 2011 Dr. Whine1y opined 

that Boatwright was unable to work due to inability to sustain concentration or perform adequate 

reasoning, with short term memo1y loss. Tr. 589. 

On this record, the ALJ failed to give germane reasons to reject Mrs. Boatwright's 

observations, and the ALJ's determination on this issue is not supported by substantial evidence. 

When an ALJ errs by failing to properly discuss competent lay witness testimony favorable to the 

claimant, a reviewing court cannot consider the error harmless "unless it can confidently 

conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a 

different disability determination." Stout v. Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th 

Cir. 2005). Here, the court cannot "confidently conclude" no reasonable ALJ, when fully 

crediting the testimony, could reach a different disability determination if Mrs. Boatwright's 

testimony were fully credited. 

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III. Residual Functional Capacity 

Because this matter is remanded, the court need not address the RFC assessment. 

CONCLUSION 

For these reasons, the court reverses the decision of the Commissioner and remands this 

matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings 

consistent with this Opinion and Order. 

IT IS SO ORDERED. 

DA1ED thfa 29th <illy or<Mob~. 20I L) • . ) 

(~J-c;::,r,P Bonorable Paul Papa 

United States Magistrate Judge 

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