UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

CARI LEANNE NAVA, Case No. 3:14-cv-01348-AA 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner, Social 

Security Administration 

Defendant. 

Merrill Schneider 

Schneider Kerr Law Offices 

P.O. Box 14490 

Portland, OR 97293 

Attorney for plaintiff 

S. Amanda Marshall 

United States Attorney 

Ronald K. Silver 

Assistant United States Attorney 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204-2902 

Lars J. Nelson 

Special Assistant United States Attorney 

Social Security Administration 

1961 Stout St., Ste. 4169 

Denver, CO 80294-4003 

Attorneys for defendant 

OPINION AND ORDER - 1 

OPINION AND ORDER 
AIKEN, Chief Judge: 

Plaintiff brings this action seeking judicial review of a 

final decision of the Commissioner of the Social Security 

Administration (the Commissioner) denying her applications for 

supplemental security income benefits ( SSI) under Title XVI of 

the Social Security Act (the Act). This Court has jurisdiction 

under 42 U.S.C. §§ 405(g) and 1383(c) (3). For the reasons stated 

below, the Commissioner's decision is reversed and remanded for 

further proceedings. 

BACKGROUND 

On August 24, 2010, plaintiff filed an application for SSI; 

it was denied initially and on reconsideration. Tr. 151, 92, 

102. On Decemb~r 19, 2 012, plaintiff and a vocational expert 

appeared and testified before an administrative law judge (ALJ). 

Tr. 40-71. On January 31, 2013, the ALJ issued a decision 

finding plaintiff not disabled within the meaning of the Act. 

Tr. 27-35. On June 17, 2014, the Appeals Council denied review, 

rendering the ALJ' s decision as the final agency decision. Tr. 

1-6. Plaintiff now seeks judicial review. 

Plaintiff was f~fty-six years old at the time of the ALJ's 

decision, with some high school education, a high school 

equivalency diploma (GED), and past relevant work within the 

last 10 years. Tr. 44, 45-46, 48-52, 61-62. Plaintiff initially 

OPINION AND ORDER - 2 
claimed her disability began in December 2007, but amended her 

alleged onset date to August 2010. Tr. 27. Plaintiff alleges 

disability due to various physical and mental limitations. Tr. 

179. 

STANDARD OF REVIEW 

The 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. Hammock v. Bowen, 8 7 9 

F. 2d 4 98, 501 (9th Cir. 198 9) . Substantial evidence is "more 

than a mere scintilla. It means such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) 

(citation and internal quotations omitted). In reviewing the 

Commissioner's alleged errors, this Court must weigh "both the 

evidence that supports and detracts from the [Commissioner's] 

conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 

198 6) . Variable interpretations of the evidence are 

insignificant if the Commissioner's interpretation is rational. 

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

COMMISSIONER'S DECISION 

The ALJ evaluated plaintiff's allegation of disability 

pursuant to the relevant sequential process. See Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. At step 

OPINION AND ORDER - 3 
one, the ALJ found that plaintiff had not engaged in 

"substantial gainful activity" during the period of alleged 

disability. Tr. 29; 20 C.F.R. § 416.920(b). 

At step two, the ALJ found that plaintiff had medically 

determinable impairments of asthma/emphysema, depression, 

borderline personality disorder, post-traumatic stress disorder, 

and non-severe impairment of hepatitis C. Tr. 29-30; 20 C.F.R. § 

416.920(c). At step three, the ALJ found that these impairments 

did not meet or equal "one of a number of listed impairments 

that the [Commissioner] acknowledges are so severe as to 

preclude gainful activity." Tr. 30; 20 C.F.R. § 416.920(d). 

The ALJ then determined plaintiff's residual functional 

capacity (RFC) and found that plaintiff retained the RFC to 

perform light work with some restrictions. Tr. 31. The ALJ also 

found that plaintiff could remember, understand, and carry out 

instructions or tasks generally required by occupations with a 

specific vocational preparation (SVP) of 1-4. Tr. 31; 20 C.F.R. 

§§ 416.920 (e), 416.967 (b). 

At step four, the ALJ took into account the plaintiff's 

work history and her ability to function with certain symptoms 

while continuing to work in previous positions. Tr. 35. Thus, 

the ALJ found that plaintiff was capable of performing her past 

relevant work as a receptionist, general office clerk, and data 

OPINION AND ORDER - 4 
entry clerk. Tr. 35; 20 C.F.R. §§ 416.920(f), 416.965. 

Therefore, the ALJ found plaintiff not disabled under the 

meaning of the Act and did not proceed to step five. Tr. 35. 

DISCUSSION 

Plaintiff argues that the ALJ erred by: 1) improperly 

discounting plaintiff's subjective symptom testimony; and 2) 

making step four findings unsupported by substantial evidence. 

Pl.'s Br. 5. 

I. Plaintiff's Credibility 

Plaintiff contends that the ALJ failed to articulate a clear 

and convincing reason, supported by substantial evidence, for 

rejecting her subjective symptom statements concerning the 

extent and severity of her arm injury and mental impairments. 

Pl.'s Br. 5. 

Plaintiff and her daughter asserted that plaintiff was 

unable to cut with a knife, use tongs, grasp with her right 

hand, lift objects, write, or use a computer, and that plaintiff 

suffered from depression symptoms, had difficulty reaching, and 

dropped items frequently. Tr. 62, 65, 204, 208-09, 231. 

When a plaintiff has medically documented impairments that 

could reasonably be expected to produce some degree of the 

symptoms complained of, and the record contains no affirmative 

evidence of malingering, "the ALJ can reject the claimant's 

OPINION AND ORDER - 5 
testimony about the severity of symptoms only by offering 

specific, clear and convincing reasons for doing so." Smolen v. 

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation 

omitted). A general assertion that the plaintiff is not credible 

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

credible and what evidence suggests the complaints are not 

credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 

The reasons proffered must be "sufficiently specific to permit 

the reviewing court to conclude that the ALJ did not arbitrarily 

discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 

748, 750 (9th Cir. 1995) (internal citation omitted). 

In assessing credibility, the ALJ may review the 

plaintiff's daily activities and the observations of physicians 

and third parties with personal knowledge about the plaintiff's 

functional limitations. Smolen, 80 F.3d at 1284. The ALJ may 

also consider inconsistent or unexplained plaintiff testimony, 

failure to follow a course of treatment or recommendations of 

doctors, evidence of self-limiting behaviors, and a plaintiff's 

work history. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 

2012); Thomas v. Barnhart, 278 F. 3d 947, 959 (9th Cir. 2002). 

The ALJ found plaintiff not credible for several reasons. 

First, the ALJ found that the plaintiff's testimony was not 

"reasonably consistent" with the medical evidence. Tr. 32. While 

OPINION AND ORDER - 6 
an ALJ cannot reject the severity of subjective complaints 

solely on the lack of objective evidence, the ALJ may 

nonetheless look to the medical record for inconsistencies. 

Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th 

Cir. 1999). A contradiction with medical records is a sufficient 

basis for rejecting the plaintiff's subjective testimony, 

Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). 

Specifically, the ALJ noted only one medical record of 

plaintiff's arm injury was provided from a 2008 Department of 

Labor and Industry claim form. Tr. 283. The ALJ noted that no 

other objective indication of persistent pain or long-term 

damage to plaintiff's arm was documented in any of plaintiff's 

follow-up medical evaluations. Tr. 347, 353, 372, 405, 408, 410, 

414, 417, 455, 460, 469, 471, 473. As the ALJ noted, Dr. Sharon 

Eder' s 2011 opinion found that there was no indication of a 

right arm problem beyond a "non-severe" impairment. Tr. 35, 81-

88. 

Additionally, the ALJ noted that plaintiff's depression 

symptoms were found to be less than debilitating during multiple 

evaluations. Specifically, during a 2010 assessment, the 

plaintiff was found "alert, in no apparent distress, 

cooperative, healthy, and smiling." Tr. 32, 317, 345-346, 357. 

Moreover, a 2012 mental status examination by Dr. Wu found that 

OPINION AND ORDER - 7 
plaintiff's thought process was "organized and future focused 

with a congruent affect" and that "cognition was intact." Tr. 

32, 427-429, 461-462. 

The ALJ also noted that despite asthma diagnosis on the 

record, lung examinations revealed "no wheezes, rales or 

rhonchi", and CT chest scans "did not indicate significant 

findings." Tr. 32, 365' 372. The ALJ also noted that 

hypertension symptoms were "improved with medication and 

reduction of caffeine" and considered plaintiff's hypertension 

as "benign and well controlled." Tr. 32, 405, 488-504. 

Although plaintiff disagrees with the ALJ' s interpretation 

of the medical record, "[w] hen the evidence before the ALJ is 

subject to more than one rational interpretation, we must defer 

to the ALJ's conclusion." Batson v. Comm'r Soc. Sec. Admin., 359 

F.3d 1190, 1198 (9th Cir. 2004) Here, the ALJ provided clear 

and convincing reasons, supported by substantial evidence, for 

finding plaintiff's subjective complaints not reasonably 

consistent with the medical evidence. 

Second, the ALJ found plaintiff had worked in the past with 

her alleged ailments. When a plaintiff's work history undercuts 

her assertions, the ALJ may rely on that contradiction to 

discredit the plaintiff. Bruton v. Massanari, 2 68 F. 3d 8 2 4, 8 2 8 

(9th Cir. 2001). Specifically, the ALJ noted that plaintiff 

OPINION AND ORDER - 8 
reported working as a housekeeper, secretary, clerk, and for 

Goodwill Industries, even though she stated she had been treated 

for depression "off and on" all of her life. Tr. 33, 57, 42 0, 

422. The ALJ found that because plaintiff's impairments had not 

prevented her from working or caused her to cease working, this 

"strongly suggests that her impairments would not currently 

prevent work." Tr. 33, 420-426. 

Lastly, the ALJ noted that plaintiff's full range of daily 

activities were inconsistent with her subjective complaints. The 

ALJ noted that plaintiff performed activities including helping 

her father with paperwork, 

telephone, handling money, 

driving, 

mailing 

socializing on the 

items independently, 

preparing .simple meals, performing light household chores, 

shopping in stores, and using public transportation. Tr. 33, 

204-11, 223-30. 

Daily activities may serve as a basis for discrediting a 

plaintiff where they either "are transferable to a work setting" 

or "contradict claims of a totally debilitating impairment." 

Molina, 67 4 F. 3d at 1112-13. Here, plaintiff's daily activities 

conflict with the degree of disability she alleges. While 

variable interpretations of this evidence may exist, the ALJ' s 

analysis was nonetheless reasonable, 

upheld. Batson, 359 F.3d at 1198. 

OPINION AND ORDER - 9 

such that it must be 
Although the ALJ found that plaintiff's lack of compliance 

with medical advice detracted from her credibility, the 

Commissioner does not rely on that factor. Even if the ALJ erred 

in the evaluation of plaintiff 1 s alleged contribution to her 

symptoms, the ALJ 1 s additional reasons are nonetheless legally 

sufficient. See Carmickle v. Comm' r Soc. Sec. Admin., 533 F. 3d 

1155, 1161 n.2, 1162 (9th Cir. 2008) (noting that "so long as 

there remains 'substantial evidence supporting the ALJ's 

conclusions on credibility' the error is ... harmless and does 

not warrant reversal.") 

In sum, the ALJ provided clear and convincing reasons, 

supported by substantial evidence, for rejecting plaintiff's 

subjective symptom statements concerning the extent and severity 

of her impairments. As such, the ALJ' s credibility finding is 

affirmed. 

II. Step Four Findings 

Plaintiff argues that the ALJ's step four findings were not 

supported by substantial evidence. Pl.'s Br. 5, 12. Plaintiff 

first argues that the ALJ's RFC and step four finding are 

erroneous, because they do not account for the functional 

limitations resulting from her increased depression symptoms and 

the long-term effects of her right arm injury. 

OPINION AND ORDER - 10 
The RFC is the maximum a plaintiff can do despite her 

limitations. See 20 C.F.R. §§ 404.1545, 416.945. In determining 

the RFC, the ALJ must consider limitations imposed by all of a 

plaintiff's impairments, even those that are not severe, and 

evaluate "all of the relevant medical and other evidence," 

including the plaintiff's testimony. SSR 96-8p, available at 

1996 WL 37 4184. The ALJ is responsible for resolving conflicts 

in the medical testimony and translating the plaintiff's 

impairments into concrete functional limitations in the RFC. 

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 

Only limitations supported by substantial evidence must be 

incorporated into the RFC and, by extension, the dispositive 

hypothetical question posed to the VE. Osenbrock v. Apfel, 2 4 0 

F.3d 1157, 1163-65 (9th Cir. 2001). 

As discussed above, the ALJ did not erroneously discredit 

plaintiff's allegations regarding her arm limitations and 

depression symptoms. Further, the ALJ noted several conflicting 

psychological opinions regarding plaintiff's mental limitations. 

In one evaluation, Dr. Wicher found plaintiff had "mild to 

moderate" overall deficits in concentration, persistence, and 

pace. Tr. 34, 420-426. The ALJ found that cognitive testing 

conducted by Dr. Wicher was consistent with the record and 

objectively based, and this portion of Dr. Wicher' s assessment 

OPINION AND ORDER - 11 
was given more weight. Id. However, the ALJ gave less weight to 

Dr. Wicher's report indicating that plaintiff's psychological 

barriers precluded her from full-time employment, finding it 

based on "the plaintiff's subjective complaints." Id. "An 

opinion of disability premised to a large extent upon the 

claimant's own accounts of her symptoms and limitations may be 

disregarded, once those complaints have themselves been properly 

discounted." Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 

1995); see also Edlund v. Massanari, 253 F.3d 1152, 1157 (9th 

Cir. 2 001) (claimant's provision of misinformation, unbeknownst 

to a doctor, served as a legally sufficient reason for rejecting 

that doctor's opinion). Here, the ALJ found plaintiff not 

credible; therefore, the ALJ did not error in rejecting the 

portion of Dr. Wicher' s opinion that was based on plaintiff's 

subjective complaints. 

The ALJ also noted that Dr. Henning's assessment found "no 

severe psychological impairment." Tr. 35, 88-89. Given the 

conflicting medical evidence and the credibility findings, the 

ALJ did not err by failing to adopt the additional limitations 

alleged by plaintiff. 

As for plaintiff's right arm complaint, two non-examining 

physicians, 

impairment. 

Drs. Alley and Eder, found no severe physical 

Tr. 34-35, 73-79, 81-88. Due to the lack of 

OPINION AND ORDER - 12 
objective medical evidence of recurring pain or long-lasting 

effects of plaintiff's injury, as noted above, the Court finds 

the ALJ adequately addressed plaintiff's physical impairments in 

his RFC assessment by finding her able to perform light work 

with some restrictions. 

Plaintiff also challenges the ALJ's reliance on SVP ratings 

in his RFC assessment. Pl.'s Br. 12. Plaintiff argues that the 

SVP ratings do not assess her ability to perform certain job 

duties and that the ALJ' s findings constitute a limitation to 

simple tasks. Plaintiff also maintains that there is an inherent 

inconsistency between her limitation to jobs with SVP 1-4 

ratings and the requirement of Level 3 Reasoning necessary in 

her past relevant work that the ALJ specified she was capable of 

performing. Pl.'s Br. 12, 15. 

The Dictionary of Occupational Titles (DOT) defines SVP as 

the "amount of lapsed time required by a typical worker to learn 

the techniques, acquire the information, and develop the 

facility needed for average performance in a specific job-worker 

situation." DOT, Appx. C, § 2. The higher the. SVP rating, the 

more time it takes to equal average performance in that 

occupation. Id. For example, the DOT specifies that an 

occupation with an SVP rating of 4 generally requires "over 3 

OPINION AND ORDER - 13 
months and up to and including 6 months" of training to equal an 

average worker. Id. 

Plaintiff argues that the ALJ's reliance on SVP ratings 1-4 

necessarily limited her to occupations with "'simple' rather 

than 'complex' tasks." Pl.'s Br. 14. However, the Commissioner 

has concluded that SVP 1-2 ratings correspond· with "unskilled 

work," and SVP 3-4 ratings correspond to "semi-skilled" work. 

SSR 00-4P, 2000 WL 1898704, at *3. Unskilled work is defined, in 

part, as "work which needs little or no judgm_e[lt to do simple 

duties that can be learned on the job in a short period of time 

... and a person can usually learn to do the job in 3 0 days, and 

little specific vocational preparation and judgment are needed." 

20 C.F.R. § 416.968(a). Semi-skilled work is defined as "work 

which needs some skills but does not require doing the more 

complex work duties. Semi-s killed jobs may require types of 

activities which are similarly less complex than skilled work, 

but more complex than unskilled work." Id. at § 416. 968 (b) . 

Plaintiff fails to recognize that the definition of "semiskilled" work includes "activities which are similarly less 

complex than skilled work, but more complex than unskilled 

~ork." Id. Thus, by limiting plaintiff to jobs with SVP ratings 

of 1-4,. the ALJ did not limit plaintiff to "simple" work. 

OPINION AND ORDER - 14 
Furthermore, plaintiff does not provide any binding case 

law to support her argument that jobs with SVP levels of 1-4 

involve "simple" rather than "complex" tasks. In fact, the 

definition of "semi-skilled work" does not include the term 

"simple." Id. at § 416.968 (a)-(b). For these reasons, the Court 

finds plaintiff's arguments unpersuasive regarding a limitation 

to simple tasks. Accordingly, the Court similarly rejects 

plaintiff's argument that her limitation to simple work renders 

her incapable of meeting the demands of Reasoning Level 3 work. 

Pl.'s Br. 14; Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015). 

Nonetheless, I agree with plaintiff that the ALJ's reliance 

on SVP ratings failed to adequately assess her non-exertional 

limitations and resulted in a deficient RFC. The ALJ found that 

plaintiff is able to "remember, understand and carry out 

instructions and tasks generally required by occupations with an 

SVP 1-4." Tr. 31. The ALJ made no other RFC findings regarding 

plaintiff's limitations or ability to remember, understand, and 

carry out instructions. Specifically, the ALJ made no RFC 

findings regarding plaintiff's limitations in concentration, 

persistence or pace, even though the ALJ' s decision suggests 

that plaintiff had some degree of limitation in those areas. 

As plaintiff emphasizes, the ALJ gave some weight to Dr. 

Wicher's finding that plaintiff had mild to moderate limitations 

OPINION AND ORDER - 15 
in concentration, persistence, and pace; however, no such 

limitation was included in the RFC. Tr. 34, 420-426. Defendant 

argues that while the ALJ identified these limitations noted by 

Dr. Wieber, he did not incl'ude them while determining 

plaintiff's RFC and therefore rejected them. However, because. 

the ALJ relied solely on SVP ratings in assessing plaintiff's 

non-exertional limitations, this Court is unable to decipher 

whether the ALJ accepted or rejected the limitations in 

concentration, persistence, and pace noted by Dr. Wieber. 

The Court also notes that in discussing plaintiff's RFC, 

the ALJ explicitly stated that he found sufficient evidence to 

"establish severe impairments, mentioned above," without 

identifying the impairments to which he referred or any 

limitations resulting from such impairments. Tr. 35. 

Consequently, this Court finds the RFC insufficient in 

clarifying plaintiff's limitations. 

Notwithstanding these deficiencies, defendant argues that 

the ALJ's RFC assessment should be upheld, because the ALJ's SVP 

findings limited her to semi-skilled work, and given her GED 

certification, she is "presumed" to have the capacity to perform 

semi-skilled work. See Def. 's Br. 24. However, defendant fails 

to recognize 

inappropriate 

that 

for 

this 

this 

OPINION AND ORDER - 16 

Court's 

Court to 

role is limited; it is· 

"presume" findings not 
articulated by the ALJ. Regardless, SVP ratings of 1-4 

essentially indicate a claimant's readiness to perform the full 

range of semi-skilled and unskilled work; such ratings do not 

assess a claimant's non-exertional limitations and the record is 

unclear whether the ALJ found limitations in concentration, 

persistence, or pace. Thus, by relying solely on SVP ratings in 

the RFC assessment, the ALJ failed to clarify plaintiff's nonexertional limitations. 

Finally, while the VE testified that plaintiff's past work 

correlates with SVP 4, the ALJ elicited no VE testimony and made 

no findings regarding the specific duties of such jobs and 

whether a claimant with plaintiff's RFC could perform them. In 

fact, the ALJ failed to provide any hypothetical RFC to the VE. 

Consequently, the VE did not testify that a claimant with 

plaintiff's RFC could perform her past relev-ant work as it was 

generally performed. Further, the ALJ did not make findings as 

to how the work was generally performed. Rather, the ALJ simply 

compared "the claimant's [RFC] with the physical and mental 

demands of this work" and found that she was "able to perform it 

as actually and generally performed." Tr. 35. 

Critically, the ALJ did not discuss any of the specific 

mental and physical demands required by plaintiff's past 

relevant work, and he failed to explain how her RFC satisfied 

OPINION AND ORDER- 17 
those specific demands, aside from the correlation with SVP 

ratings. Thus, the ALJ failed "to make the requisite factual 

findings to support his conclusion" that plaintiff is able to 

perform her past relevant work. Pinto v. Massanari, 249 F.3d 

840, 844 (9th Cir. 2001). 

In sum, the ALJ's findings at step four are not supported 

by the record, and the case must be remanded for further 

administrative proceedings. On remand, the ALJ shall assess the 

relevant mental and non-exertional limitations of plaintiff and 

provide an RFC assessment consistent with plaintiff's specific 

physical and mental limitations. Further, the ALJ shall present 

the relevant RFC to the VE in an appropriate hypothetical to 

support any findings made at step four and step five. 

CONCLUSION 

The ALJ' s finding that plaintiff was not disabled is not 

supported by substantial evidence in the record. Accordingly, 

the Commissioner's decision is REVERSED AND REMANDED for further 

proceedings. 

IT IS so ORDERED. 1V'- GJvia»L--

DATED this ~ day of ~eptember, 2015. 

Ann Aiken 

United States District Judge 

OPINION AND ORDER - 18