FINDINGS AND RECOMMENDATION – 1 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOSEPH SEBASTIAN HANSON, ) Civil No.: 3:15-cv-01974-JE 

 ) 

 Plaintiff, ) FINDINGS AND 

 ) RECOMMENDATION 

 v. ) 

 ) 

CAROLYN W. COLVIN, ) 

Acting Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

____________________________________ ) 

Merrill Schneider

 Schneider Kerr & Gibney Law Offices 

 P.O. Box 14490 

 Portland, OR 97293 

 

 Attorney for Plaintiff 

 Billy J. Williams, U.S. Attorney 

 Janice Hebert, Asst. U.S. Attorney 

 1000 S.W. 3rd Avenue, Suite 600 

 Portland, OR 97204 
FINDINGS AND RECOMMENDATION – 2 

 Erin F. Highland 

 Special Asst. U.S. Attorney 

 Office of the General Counsel 

 Social Security Administration 

 701 5th Avenue, Suite 2900 M/S 221 A 

 Seattle, WA 98104-7075 

 Attorneys for Defendants 

JELDERKS, Magistrate Judge: 

 Plaintiff Joseph Sebastian Hanson brings this action pursuant to 42 U.S.C. § 405(g) 

seeking judicial review of a final decision of the Commissioner of Social Security (the 

Commissioner) partially denying his application for a period of disability, disability insurance 

benefits, and Supplemental Security Income under Titles II and XVI of the Social Security Act 

(the Act). Plaintiff seeks an Order remanding the action to the Social Security Administration 

(the Agency) for an award of benefits. In the alternative, Plaintiff seeks a remand for further 

proceedings. 

 For the reasons set out below, the Commissioner’s decision should be AFFIRMED. 

Procedural Background 

 Plaintiff filed an application for a period of disability and disability insurance benefits on 

August 31, 2011. Plaintiff also filed an application for supplemental security income on August 

31, 2011. Plaintiff alleged disability beginning August 31, 2009 in both applications. 

 After his claims were denied initially and upon reconsideration, Plaintiff timely requested 

an administrative hearing. 

 On June 14, 2013, a hearing was held before Administrative Law Judge (ALJ) S. Andrew 

Grace. Plaintiff and Kay Wise, a Vocational Expert (VE), testified at the hearing. Plaintiff was 

represented by counsel. 
FINDINGS AND RECOMMENDATION – 3 

 On January 15, 2014, a second hearing was held before ALJ Grace. Plaintiff, Donald L. 

Plowman, M.D., a medical expert, and Gary Jesky, a VE, testified at the hearing. Plaintiff was 

represented by counsel. 

 In a decision dated March 4, 2014, ALJ Grace found that Plaintiff was disabled within 

the meaning of the Act from September 16, 2011 through November 11, 2013. Plaintiff was not 

disabled from August 31, 2009 to September 15, 2011 and disability ended on November 12, 

2013. 

 On August 18, 2015, the Appeals Council denied Plaintiff’s request for review, rendering 

the ALJ’s decision the final decision of the Commissioner. In the present action, Plaintiff 

challenges that decision. 

Background 

 Plaintiff was born in 1973 and was 41 years old at the time the ALJ issued his decision. 

He completed the 12th grade and has past relevant work as a night stocker, a gas station 

attendant, and a baker (head baker).1 

Disability Analysis 

 The ALJ engages in a five-step sequential inquiry to determine whether a claimant is 

disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. Below is a summary of 

the five steps, which are also described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 

1999). 

 Step One. The Commissioner determines whether the claimant is engaged in substantial 

gainful activity (SGA). A claimant engaged in such activity is not disabled. If the claimant is 

 

1 There is some dispute as to whether Plaintiff completed high school. This is addressed in 

section III.B. infra. 
FINDINGS AND RECOMMENDATION – 4 

not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s 

case under Step Two. 20 C.F.R. § 404.1520(b). 

 Step Two. The Commissioner determines whether the claimant has one or more severe 

impairments. A claimant who does not have such an impairment is not disabled. If the claimant 

has a severe impairment, the Commissioner proceeds to evaluate the claimant’s case under Step 

Three. 20 C.F.R. § 404.1520(c). 

 Step Three. Disability cannot be based solely on a severe impairment; therefore, the 

Commissioner next determines whether the claimant’s impairment “meets or equals” one of the 

presumptively disabling impairments listed in the Social Security Administration (SSA) 

regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has such an impairment 

is disabled. If the claimant’s impairment does not meet or equal an impairment listed in the 

regulations, the Commissioner’s evaluation of the claimant’s case proceeds under Step Four. 

20 C.F.R. § 404.1520(d). 

 Step Four. The Commissioner determines whether the claimant is able to perform 

relevant work he or she has done in the past. A claimant who can perform past relevant work is 

not disabled. If the claimant demonstrates he or she cannot do work performed in the past, the 

Commissioner’s evaluation of the claimant’s case proceeds under Step Five. 20 C.F.R. 

§ 404.1520(f). 

 Step Five. The Commissioner determines whether the claimant is able to do any other 

work. A claimant who cannot perform other work is disabled. If the Commissioner finds that the 

claimant is able to do other work, the Commissioner must show that a significant number of jobs 

exist in the national economy that the claimant can do. The Commissioner may satisfy this 

burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines, 20 
FINDINGS AND RECOMMENDATION – 5 

C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant 

number of jobs exist in the national economy that the claimant can do, the claimant is not 

disabled. If the Commissioner does not meet this burden, the claimant is disabled. 20 C.F.R. 

§ 404.1520(g)(1). 

 At Steps One through Four, the burden of proof is on the claimant. Tackett, 180 F.3d at 

1098. At Step Five, the burden shifts to the Commissioner to show that the claimant can perform 

jobs that exist in significant numbers in the national economy. Id.

Medical Record and Testimony 

 The Court has carefully reviewed the medical record and testimony and the parties are 

familiar with both. Accordingly, the details of that evidence will be set out below only as they 

are relevant to the issues before the Court. 

ALJ’s Decision 

 As an initial matter, the ALJ found that Plaintiff met the insured status requirements of 

the Act through January 30, 2012. 

 At the first step of his disability analysis, the ALJ found that Plaintiff had not engaged in 

substantial gainful activity since his alleged onset of disability on August 31, 2009. 

 At the second step, the ALJ found that Plaintiff had the following severe medical 

impairments: degenerative disc disease of the cervical spine, obesity, posttraumatic stress 

disorder (PTSD), and borderline intellectual functioning. 

 At the third step, the ALJ found that from September 16, 2011 through November 11, 

2013 Plaintiff’s degenerative disc disease of the cervical spine met the criteria set out in Listing 

1.04A. 20 C.F.R. Part 404, Subpart P, App. 1. From August 31, 2009 through September 15, 

2011, Plaintiff did not have any impairment or combination of impairments that met or equaled a 
FINDINGS AND RECOMMENDATION – 6 

presumptively disabling impairment set out in the listings. Beginning November 12, 2013, 

Plaintiff did not have any impairment or combination of impairments that met or equaled a 

presumptively disabling impairment set out in the listings. 

 The ALJ next assessed Plaintiff’s residual functional capacity (RFC). He found that from 

August 31, 2009 through September 15, 2011, and again beginning on November 12, 2013, 

Plaintiff retained the capacity to perform less than the full range of sedentary work. Further: 

He should never climb ladders, ropes, or scaffolding, and should only 

occasionally climb ramps and stairs. He could occasionally balance, stoop, kneel, 

crouch, and crawl. He was/is limited to occasional overhead reaching bilaterally. 

He was/is limited to frequent handling and fingering with the non-dominant, left 

upper extremity. He should have no contact with the public and only occasional 

contact with coworkers. He was/is limited to simple, routine, and repetitive tasks. 

In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s statements concerning the 

intensity, persistence, and limiting effects of his symptoms were not entirely credible. 

 At the fourth step of his disability analysis, the ALJ found that Plaintiff was unable to 

perform past relevant work. 

 At the fifth step, the ALJ found that Plaintiff retained the functional capacity required to 

perform jobs that existed in significant numbers in the national economy. Based upon the VE’s 

testimony, the ALJ cited addresser, and mail sorter as examples of work Plaintiff could perform. 

Based upon the conclusion that Plaintiff could perform such work, the ALJ found that Plaintiff 

was not disabled, within the meaning of the Act, from August 31, 2009 through September 15, 

2011 and after November 12, 2013. 

Standard of Review

 A claimant is disabled if he or she is unable “to engage in 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. § 
FINDINGS AND RECOMMENDATION – 7 

423(d)(1)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66 

F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the 

burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), and 

bears the burden of establishing that a claimant can perform “other work” at Step Five of the 

disability analysis process. Tackett, 180 F.3d at 1098. 

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

Andrews, 53 F.3d at 1039. 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). The Commissioner’s decision must be upheld, however, even if “the evidence is 

susceptible to more than one rational interpretation.” Andrews, 53 F.3d at 1039-40. 

Discussion 

 Plaintiff contends that the ALJ improperly rejected the opinions of Donald Plowman, 

M.D. and Heather Bee, Psy.D; failed to properly credit Plaintiff’s statements; failed to present a 

hypothetical to the VE that fully reflected Plaintiff’s impairments; and improperly found medical 

improvement. 

I. Evaluating Medical Opinion 

 Plaintiff contends that the ALJ improperly rejected the opinions of Drs. Plowman and 

Bee. 

/// 
FINDINGS AND RECOMMENDATION – 8 

A. Standards 

The ALJ is required to consider all medical opinion evidence and is responsible for 

resolving conflicts and ambiguities in the medical testimony. Tommasetti v. Astrue, 533 F.3d 

1035, 1041 (9th Cir. 2008). In reviewing an ALJ's decision, the Court does not assume the role 

of fact-finder, but instead determines whether the decision is supported by substantial evidence 

in light of the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992). 

Because treating physicians have a “greater opportunity to know and observe” their 

patients, their opinions are given greater weight than the opinions of other physicians. Smolen v. 

Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). An ALJ must provide clear and convincing reasons 

for rejecting a treating physician's uncontroverted opinions, Lester v. Chater, 81 F.3d 821, 830–

31 (9th Cir. 1995); and must provide “specific, legitimate reasons . . . based upon substantial 

evidence in the record” for rejecting opinions of a treating physician which are contradicted. 

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989) (citations omitted). An ALJ may “reject 

the opinion of a non-examining physician by reference to specific evidence in the record.” Sousa 

v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). 

B. Dr. Plowman 

 Plaintiff contends that the ALJ improperly rejected the opinion of the non-examining 

medical expert, Dr. Plowman. Dr. Plowman appeared by phone at the second hearing on January 

15, 2014 as a non-examining expert witness. Tr. 89, 91. Dr. Plowman reviewed the record before 

offering his opinion. Tr. 92. 

Dr. Plowman opined that Plaintiff’s medically determinable impairments met listing 1.04. 

Tr. 96. He found that the onset date was January, 2011, primarily basing his opinion on an MRI 

and Raymond Golish, M.D.’s, subsequent observations. Tr. 93, 96. Dr. Plowman noted that in 
FINDINGS AND RECOMMENDATION – 9 

“February of 2011 [Plaintiff] had an MRI scan done which was significantly abnormal with the 

disk at 5–6 with some foraminal stenosis.” Tr. 93. Further, Dr. Plowman noted that Dr. Golish 

saw Plaintiff on July 7, 2011, finding that Plaintiff “had problems but [was] not a candidate for 

surgery . . . .” Tr. 94. Dr. Golish made a similar determination on July 29, 2011, but found 

Plaintiff’s left arm, left upper arm, thumb, and index pain were worse on September 16, 2011. 

Tr. 94. On September 16, 2011 Dr. Golish found that Plaintiff had a positive Spurling test, and 

pain that radiated down Plaintiff’s arm with extension and lateral bending in the left arm. Tr. 94. 

Plaintiff was a candidate for surgery on September 16, 2011. Tr. 94. 

 Dr. Plowman concluded that Plaintiff’s disability onset date was January, 2011. Tr. 96. 

He reasoned that ordering the MRI in February 2011, the subsequent doctor’s visits to evaluate 

whether Plaintiff had a “significant problem,” and later finding a “significant problem,” 

suggested that Plaintiff’s onset date was in January, 2011. Tr. 96. 

 Dr. Plowman found that Plaintiff was not disabled from August 31, 2009 to January, 

2011. Tr. 97. He reasoned that “[t]he only evidence in these records of that is several visits where 

he was complaining of shoulder pain, but there were no evaluations to indicate what was going 

on during that period of time.” Tr. 98. While Dr. Plowman noted that Plaintiff did have lower 

back problems during that period of time, Plaintiff also worked “as a filling station attendant.” 

Tr, 98. Plaintiff may have had some limitations but “trying to retroactively construct what was 

going on during that period of time” was difficult. Tr. 98. Dr. Plowman concluded that he did not 

“really have the objective findings in the records . . . to make a definite decision.” Tr. 98. 

 With respect to the time period after Plaintiff’s surgery on October 17, 2013, Dr. 

Plowman opined that the surgery’s expected outcome was “quite good” in eighty to ninety 
FINDINGS AND RECOMMENDATION – 10 

percent of people. Tr. 97. Plaintiff’s “neurological symptoms should improve significantly.” Tr. 

97. Dr, Plowman did not have any follow-up evidence to justify his conclusion. Tr. 97. 

 The ALJ gave some weight to Dr. Plowman’s opinion, finding that Plaintiff’s 

degenerative disc disease of the cervical spine began to meet listing 1.04A on September 16, 

2011, rather than January, 2011. Tr. 37. As stated by Plaintiff, the ALJ may reject the opinion of 

a non-examining medical expert by reference to specific evidence in the medical record. Pl.’s Br. 

at 7 (citing Sousa, 143 F.3d at 1244). The ALJ met this standard. 

 First, addressing the time period between January 2011 and September 16, 2011, the ALJ 

discounted Dr. Plowman’s opinion by citing several pieces of specific evidence in the medical 

record. Tr. 37. A 1.04A listing is in part characterized by “motor loss (atrophy with associated 

muscle weakness or muscle weakness) accompanied by sensory or reflex loss . . . .” 20 C.F.R. 

Part 404, Subpart P, App. 1. The ALJ stated that in January 2011 Matthew Rose, D.O., “noted 

that on examination, the claimant’s reflexes were normal and his strength was 5/5 bilaterally in 

the upper and lower extremities.” Tr. 37 (discussing Tr. 1008). In April 2011, Dr. Rose found 

that Plaintiff’s neck had a normal range of motion and his neurological examination was normal. 

Tr. 1006–07. In June 2011, medical notes state that Plaintiff was helping a friend move and 

attempted to lift a heavy box. Tr. 777. In July 2011, Dr. Golish found that Plaintiff had “5/5 

strength in shoulder abduction, elbow flexion, elbow extension, wrist extension, finger flexion, 

finger abduction, bilaterally with symmetric biceps, triceps, and brachioradialis . . . .” Tr. 888. 

Dr. Golish also noted in July 2011 that Plaintiff’s subjective pain reports were “nondermitomal 

and only partially consistent [with his] herniated disc.” Tr. 889. Finally, the ALJ observed that 

Mr. Abraham Abu, PA-C, found that in August 2011 Plaintiff had 5/5 strength in “upper 

extremities and also lower extremities bilaterally.” Tr. 883. 
FINDINGS AND RECOMMENDATION – 11 

 Contrary to Plaintiff’s assertions, the ALJ rejected Dr. Plowman’s opinion by reference to 

specific evidence in the medical record. Tr. 37. Plaintiff cherry picks findings in Drs. Rose and 

Golish’s examinations to argue that Dr. Plowman’s findings should not have been discounted. 

Pl.’s Reply Br. at 1–2. But the Court finds the ALJ’s discussion of Drs. Rose and Golish’s 

findings sufficient to meet the specific evidence standard even if some of their findings may 

support giving weight to Dr. Plowman’s opinion. See Veira v. Berryhill, No. 2:15–cv–1685 DB, 

2017 931808, at *6 (E.D. Cal. Mar. 9, 2017) (finding that ALJ properly discounted nonexamining medical expert’s onset opinion by noting that claimant played softball and that 

treating physician opined that claimant could work after alleged onset date); Nabhani v. Colvin, 

Case No.:C–13–0211 JSC, 2014 WL 940546, at *10 (N.D. Cal. Mar. 5, 2014) (finding that ALJ 

properly discounted non-examining medical expert’s onset opinion by referencing specific 

evidence that there was no ongoing problem with panic attacks). To the extent that the ALJ 

relied on Mr. Abu’s medical notes—a physician’s assistant’s notes and an “other” source under 

the rules—Plaintiff does not argue that this invalidates the ALJ’s otherwise valid references to 

specific evidence in the medical record. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1055 

(9th Cir. 2006) (nonprejudicial or irrelevant mistakes harmless); 20 C.F.R. § 404.1513(d). 

Moreover, while Social Security Ruling (SSR) 83-20 requires an ALJ to rely upon a medical 

opinion to determine onset date, this does not mean that an ALJ may not discount that opinion 

using specific evidence. See Nabhani, 2014 WL 940546, at *10. In short, the ALJ properly 

discounted Dr. Plowman’s opinion with regard to the time period between January 2011 and 

September 16, 2011. 

 Second, addressing the time period before January 2011, the ALJ properly discounted Dr. 

Plowman’s opinion that Plaintiff “might not have been able to perform a job where he would 
FINDINGS AND RECOMMENDATION – 12 

have needed to extend his neck repetitively on more than an occasional basis . . . [as] extremely 

equivocal.” Tr. 38. Dr. Plowman offered a “supposition” that Plaintiff may have had limitations 

“about 2010 I think.” Tr. 98. These limitations would have included not being able to work a job 

that involved extending his neck and issues looking up and down or side to side. Tr. 98–99. But 

as the ALJ recognized, Dr. Plowman himself stated that he did not “really have the objective 

findings in the records to, to make a definite decision.” Tr. 98. 

 Considering Dr. Plowman’s statements together, the Court agrees with the ALJ’s 

assessment and finds that the ALJ referenced specific evidence in the medical record. Plaintiff 

attempts to cite portions of the record that support finding neck limitations prior to January 2011. 

Pl.’s Br. at 7–8. But, in doing so, Plaintiff asks the Court to not only invalidate the ALJ’s 

assessment but to invalidate Dr. Plowman’s assessment. Dr. Plowman found that he could not 

“make a definite decision” with respect to the limitations prior to January 2011. Tr. 98. The ALJ 

has referenced specific evidence in the record and appropriately considered Dr. Plowman’s nonexamining medical opinion. 

C. Dr. Bee 

 Plaintiff also contends that the ALJ improperly rejected the opinion of Plaintiff’s 

examining psychologist, Dr. Bee. Dr. Bee examined Plaintiff on January 13, 2013. Dr. Bee’s 

evaluation included a structured clinical interview, WAIS IV test, 21 Item Test, 

Neuropsychological Assessment Battery (NAB) Memory Module, Trials A and B, Stroop Color 

and Word Test, PTSD Checklist, Personality Assessment Inventory (PAI), and reviewed a 

psychological evaluation done by James B. Powell, Psy.D. in September 2006. Tr. 1028. 

 Dr. Bee diagnosed Plaintiff with PTSD, Undifferentiated Somatoform Disorder (Rule 

Out), and Borderline Intellectual Functioning. Tr. 1041. Dr. Bee opined that Plaintiff had a 
FINDINGS AND RECOMMENDATION – 13 

personal weakness in processing speed, and that reasoning and comprehension would be far 

more difficult for Plaintiff than his peers. Tr. 1042. Plaintiff’s health complaints were likely to be 

chronic and accompanied by fatigue and weakness. Tr. 1042. His health complaints would leave 

him unable to perform minimal role expectations. Tr. 1042. Plaintiff would “function best in a 

quiet, predictable, low stress environment.” Tr. 1044. He needs tasks to be broken into individual 

steps that can be completed one at a time, rather than being given a series of instructions that 

must be remembered and followed one after another. Tr. 1044. 

 The ALJ gave very little weight to Dr. Bee’s opinion. Tr. 38. Plaintiff takes issue with the 

ALJ’s determination, arguing that the ALJ failed to provide clear and convincing reasons 

supported by substantial evidence for rejecting Dr. Bee’s opinion. Putting aside whether the ALJ 

validly discounted Dr. Bee’s opinion, the Commissioner argues that the RFC appropriately 

reflects all necessary limitations in Dr. Bee’s opinion. 

 The Court agrees with the Commissioner in so far as Plaintiff has failed to identify how 

Dr. Bee’s opinion conflicts with the RFC. See Ryan-Werry v. Colvin, 641 Fed. Appx. 684, 688 

(9th Cir. 2015) (finding harmless error where Plaintiff failed to identify how or why improperly 

discredited testimony would alter the ALJ’s RFC determination); Stout, 454 F.3d at 1055 (noting 

that harmless error applies where the improper findings were “inconsequential to the ultimate 

nondisability determination”). First, an ALJ need not incorporate limitations phrased equivocally 

into the RFC. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009) 

(finding that where doctor’s recommendation did not indicate that claimaint was incapable of 

working except under the recommended conditions the recommendation was neither a diagnosis 

nor a statement of claimant’s functional capacity); Glosenger v. Comm’r of Soc. Sec. Admin., No. 

3:12–cv–1774–ST, 2014 WL 1513995, at *6 (D. Or. Apr. 16, 2014) (“Dr. Dean’s list of 
FINDINGS AND RECOMMENDATION – 14 

accommodations were couched as mere ‘recommendations,’ which, while useful in determining 

Glosenger’s ideal work environment, are distinct from her functional capacity which the RFC is 

designed to capture”). 

 Here, as the Commissioner points out, a number of Dr. Bee’s recommendations address 

Plaintiff’s ideal work environment rather than his functional capacity. Dr. Bee states that 

Plaintiff “will function best in a quiet, predictable, low stress environment.” Tr. 1044 (emphasis 

added). Plaintiff’s “work should be completed independent of reliance on coworkers.” Tr. 1044 

(emphasis added). “Provisions may be needed for flexible breaks to control stress and anger 

levels.” Tr. 1044 (emphasis added). Plaintiff “may need to avoid multitasking, or doing several 

things at once.” Tr. 1044 (emphasis added). The Court finds that Dr. Bee’s equivocal 

recommendations need not be incorporated into the RFC. 

 Second, the Court finds that Dr. Bee’s other limitations are consistent with the RFC. 

Plaintiff argues that two limitations were not reflected in the RFC: Plaintiff’s need for extra time 

to satisfactorily complete tasks, and Plaintiff’s limited ability to understand, remember, and carry 

out complex instructions. The Commissioner argues that these limitations are consistent with the 

ALJ’s limitation to simple, routine, and repetitive tasks. 

 The Court agrees with the Commissioner. As in Stubbs-Danielson v. Astrue, the Court 

finds that the RFC’s limitation to simple, routine, and repetitive tasks is consistent with the 

limitations identified in the medical testimony. 539 F.3d 1169, 1174 (9th Cir. 2008) (finding that 

an RFC limitation to simple tasks adequately captured restrictions related to concentration, 

persistence, or pace where the assessment was consistent with the medical evidence). Further, as 

the Commissioner points out, an RFC need not parrot Dr. Bee’s assessed limitations, only be 

consistent with them. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010). 
FINDINGS AND RECOMMENDATION – 15 

 The Court finds that, even if the ALJ improperly discounted Dr. Bee’s medical opinion, 

the ALJ’s error was harmless given that Plaintiff has failed to identify how Dr. Bee’s opinion is 

inconsistent with the RFC. See Ryan-Werry, 641 Fed. Appx. at 688; Stout, 454 F.3d at 1055. 

II. Credibility Determination 

Plaintiff contends that the ALJ failed to articulate clear and convincing reasons, 

supported by substantial evidence, for finding that his allegations were not fully credible. 

A. Standards

Where a claimant has alleged disability based on subjective symptoms and produced 

objective medical evidence of an underlying impairment which could reasonably be expected to 

produce the alleged pain “the ALJ can reject the claimant’s testimony about the severity of her 

symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d 

at 1281. 

 As Plaintiff points out, under SSR 16-3p, available at 2016 WL 1119029 (Mar. 16, 2016) 

(superseding SSR 96-7p), ALJs are no longer tasked with making an overarching credibility 

determination, and must assess instead whether a claimant’s subjective symptom statements are 

consistent with the record as a whole. The ALJ’s decision in this case was made long before SSR 

16-3p became effective, raising the question of whether SSR 16-3p applies retroactively. 

 While district court rulings are inconsistent, I have held that SSR 16-3p is a clarification 

of sub-regulatory policy—rather than a new policy—making SSR 16-3p’s clarification relevant 

to the case at hand. Kunkle v. Colvin, Civil No.: 6:14–cv–01605–JE, 2016 WL 8229041, at *4 

(D. Or. Dec. 13, 2016) (applying SSR 16-3p retroactively); Mesecher v. Colvin, Civil No.: 6:14–

cv–01578–JE, 2016 WL 6666800, at *4 (D. Or. Nov. 10, 2016) (same); Andre v. Colvin, 6:14–

cv–02009–JE (D. Or. Oct. 13, 2016) (same). Compare Ashlock v. Colvin, CASE NO. 3:15-cv-
FINDINGS AND RECOMMENDATION – 16 

05767 DWC, 2016 WL 3438490, at *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 

16-3p to an ALJ decision issued prior to the effective date), with Lockwood v. Colvin, No. 15 C 

192, 2016 WL 2622325, at *3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p retroactively to a 

2013 ALJ decision). 

 The new SSR clarifies that “subjective symptom evaluation is not an examination of an 

individual’s character.” SSR 16-3p at *1. In other words, “[t]he focus of the evaluation of an 

individual’s symptoms should not be to determine whether he or she is a truthful person.” Id. at 

*10. Rather, “[a]djudicators must limit their evaluation to the individual’s statements about his or 

her symptoms and the evidence in the record that is relevant to the individual’s impairments.” Id.

Thus, “it is not sufficient for our adjudicators to make a single, conclusory statement that ‘the 

individual’s statements about his or her symptoms have been considered . . . .’” Id. at *9. Instead, 

the finding “must contain specific reasons for the weight given to the individual’s symptoms, be 

consistent with and supported by the evidence, and be clearly articulated so the individual and 

any subsequent review can assess how the adjudicator evaluated the individual’s symptoms.” Id. 

In evaluating a claimant’s subjective symptom testimony, an ALJ must consider the 

entire record and consider several factors, including the claimant's daily activities; the location, 

duration, frequency, and intensity of the claimant’s pain or other symptoms; medications taken 

and their effectiveness; treatment other than medication; measures other than treatment used to 

relieve pain or other symptoms; and “other factors concerning the individual's functional 

limitations and restrictions due to pain or other symptoms.” 20 C.F.R. § 404.1529(c). If 

substantial evidence supports the ALJ's determination, it must be upheld, even if some of the 

reasons cited by the ALJ are not correct. Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 

(9th Cir. 2008). 
FINDINGS AND RECOMMENDATION – 17 

B. Analysis 

In a pain and fatigue questionnaire dated November 16, 2009, Plaintiff reported that he 

had persistent aching, burning, stabbing, and shooting pain. Tr. 339. Moving around made the 

pain worse and, at times, he had to rest for several hours. Tr. 339. He was only able to be up and 

active for twenty minutes before he needed to rest. Tr. 339. 

At the hearing on June 14, 2013, Plaintiff testified that while he had back problems his 

whole life, they became much worse in August of 2009. Tr. 60–62. In August 2009 his shoulders 

were weak and then in 2010 he began to have difficulty standing up. Tr. 62. He later had 

problems bending his neck and his ability to lift things has “cut in half or even more.” Tr. 63. He 

had difficulty going outside with his child because of his problems standing. Tr. 63. “It just feels 

like somebody is sitting on [his] shoulders squeezing them.” Tr. 63. 

On October 17, 2013, Plaintiff underwent a C5-6 anterior cervical discectomy and fusion, 

anterior fixation, machined 6-mm lordotic allograft with demineralized bone matrix. Tr. 1099. At 

the hearing following surgery, Plaintiff reported that the surgery “fixed the problems in [his] 

hand” and the “main pain.” Tr. 100–01. However, he stated “I mean it fixed the problems in my 

hand, you know, now I got this tingling and stuff going all the way from my neck down to my 

arm and I got it under my shoulder blade now and I got it on the back like this lump right here.” 

Tr. 100. He reported pain on the top of his shoulder, his neck, and pain into his arm. Tr. 101–02. 

He had difficulty lifting a quart of milk, difficulty going on walks, and he wore out easily. Tr. 

100–01. His activity was “a little more limited then it was and it just seem[ed] like [he] tired out 

eas[ily].” Tr. 104. He stated, “It – when I’m like up I mean I do do cooking and stuff of course 

and I have to go sit down after about five minutes, it just feels like somebody’s bearing, just 

sitting on my shoulders.” Tr. 104. 
FINDINGS AND RECOMMENDATION – 18 

The ALJ found the Plaintiff was not credible and accorded his statements very little 

weight. The ALJ offered several reasons in support of his finding that Plaintiff’s statements 

regarding the intensity, persistence, and limiting effects of his symptoms were inconsistent with 

the record as a whole. 

First, the ALJ cited Plaintiff’s drug-seeking behavior, and the possibility that he had 

engaged in such behavior for secondary gain. Tr. 39. In January of 2009, William R. Fraser, MD, 

noted that “[t]his patient is very well known to our facility.” Tr. 808. Plaintiff “has a history of 

very frequent emergency department visits for various pain related problems.” Tr. 808. Plaintiff 

has “been discharged from some of the practices in the community and has a history such that it 

is extremely risky . . . to continue with narcotic prescribing for him.” Tr. 808. In July of 2009, a 

physician’s assistant noted, “[r]eview of the patient’s past medical history reveals recurrent visits 

to multiple providers in the area with requests for narcotic prescriptions for several complaints, 

including back injuries as well as dental pain, et cetera.” Tr. 437. Plaintiff reported that “he was 

recently discharged from Debra Minchow’s office for drug-seeking behavior.” Tr. 437. In 

September of 2009, Tavis Cowan, MD, found that Plaintiff “frequently requests narcotic pain 

medication-especially hydrocodone.” Tr. 459. He was “quite focused on pain issues . . . [and] 

allude[d], multiple times to ‘something for [his] pain.” Tr. 460–61. That same month, Richard B. 

Ismach, MD, noted that Plaintiff had been to the emergency department sixteen times in the last 

year in Dr. Ismach’s hospital system. Tr. 788. In August of 2010, Helen Le Vann, MD 

confronted Plaintiff with “7 pages of ER visits” related to Plaintiff’s shoulder and neck pain, 

after Plaintiff had denied being seen for shoulder and neck pain. Tr. 473. Dr. Le Vann told 

Plaintiff she would not prescribe narcotics for Plaintiff’s complaints because she “felt strongly 

that he was a drug seeker.” Tr. 473. There are notations related to drug seeking behavior 
FINDINGS AND RECOMMENDATION – 19 

throughout the record. See e.g. Tr. 593 (dated April 27, 2009); Tr. 586 (dated July 27, 2010); Tr. 

947 (dated November 19, 2010); Tr. 582 (dated February 22, 2011); Tr. 581 (dated February 28, 

2011); Tr. 615 (dated March 2, 2011). 

 Further, with respect to the time period after the ALJ found Plaintiff’s impairments no 

longer met Listing 1.04A, Plaintiff was prescribed oxycodone by Martin Degroot, PAC, on 

November 11, 2013. Tr. 1126. The oxycodone was supposed to last one week. Tr. 1126. Plaintiff 

returned the next day to request additional pain medication. Tr. 1111. Plaintiff stated that he had 

been taking his hydrocodone but it was not covering his pain.2

 Tr. 1111. Plaintiff was reminded 

that his prescription was intended to last one week. Tr. 1112. The record does not contain 

treatment records after this visit. 

 As noted by the ALJ, there is also some evidence that Plaintiff has engaged in drug 

seeking behavior for secondary gain. On April 1, 2013, Philip Grasso, ND, noted that the clinic 

received a message that Plaintiff had been selling his prescription medications. Tr. 1055. The 

DEA was contacted. Tr. 1055. Further, on April 19, 2013, a drug screen found that Plaintiff 

tested positive for marijuana and methadone, but negative for his prescribed oxycodone. Tr. 

1051. Dr. Grasso subsequently refused to continue prescribing Plaintiff narcotics for his pain. Tr. 

1051. 

 The ALJ properly considered Plaintiff’s drug seeking behavior and this behavior was a 

clear and convincing reason to discount Plaintiff’s credibility supported by substantial evidence. 

See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) (a claimant’s drug seeking 

behavior may be a clear and convincing reason to discount the claimant’s testimony). Plaintiff 

 

2

 It is unclear why Plaintiff was prescribed oxycodone, but Plaintiff complained about his 

hydrocodone the following day. 
FINDINGS AND RECOMMENDATION – 20 

argues that the ALJ rejected Plaintiff’s subjective statements because the ALJ found that 

Plaintiff’s drug seeking behavior was demonstrative of untruthfulness—an improper reason for 

rejecting claimant statements under SSR 16-3p. Pl.’s Br. 14. However, SSR 16-3p clarifies that 

“adjudicators will not assess an individual’s overall character or truthfulness in the manner 

typically used during an adversarial court litigation.” Id. at 10 (emphasis added). Plaintiff’s drug 

seeking behavior was not an assessment of Plaintiff’s overall character but, as the ALJ put it, 

directly “undermine[d] [Plaintiff’s] descriptions of his pain to both treating and examining 

providers.” Tr. 39; see also SSR 16-3p at 10 (“Adjudicators must limit their evaluation to the 

individual’s statements about his or her symptoms and the evidence in the record that is relevant 

to the individual’s impairments.”). 

 Plaintiff’s attempts to address the ALJ’s drug seeking behavior determination on its 

merits are equally unavailing. Plaintiff points to an instance prior to Plaintiff’s onset date where 

Plaintiff “stormed out of the exam room” after he was denied pain treatment; an instance prior to 

Plaintiff’s onset date where a clinic determined that Plaintiff exhibited drug seeking behavior; 

and an instance where Dr. Poolman assessed Plaintiff with drug seeking behavior only to have a 

subsequent MRI determine that Plaintiff had some spinal issues. Pl.’s Reply Br. at 6. Plaintiff 

argues these three instances reflect genuine efforts to get treatment rather than drug-seeking 

behavior. Id. at 6. But even if these instances do not reflect drug-seeking behavior, the Court 

cannot ignore the numerous other instances where Plaintiff exhibited drug-seeking behavior. See 

e.g. Tr. 459, 473, 616, 947, 1051. Plaintiff’s drug seeking behavior was a clear and convincing 
FINDINGS AND RECOMMENDATION – 21 

reason to discount his testimony and supported by substantial evidence. See Edlund, 253 F.3d at 

1157.3

 

 Second, the ALJ cited numerous inconsistencies in the record. Tr. 39. In particular, the 

ALJ noted that Plaintiff’s “reports regarding the onset of his shoulder pain vary dramatically 

throughout the record.” Tr. 39. In October of 2010, Plaintiff complained of shoulder and neck 

pain that started one month prior. Tr. 781. In November of 2010, Plaintiff complained of 

shoulder pain that started a year prior. Tr. 947. In February of 2011, Plaintiff complained of 

shoulder pain starting at least two years prior. Tr. 934. In August of 2011, Plaintiff complained 

of neck pain that started seven years prior. Tr. 881. Then in September of 2013, Kim Webster, 

MD, observed that there was some evidence of poor effort, there were inconsistencies in 

Plaintiff’s range of motion, and Plaintiff engaged in pain behavior. Tr. 39. 

 The ALJ’s consideration of Plaintiff’s varying descriptions of his pain was a clear and 

convincing reason to discount Plaintiff’s credibility. SSR 16-3p at 8. While “inconsistencies in 

an individual’s statements made at varying times do[] not necessarily mean they are inaccurate” 

the record as a whole support’s the ALJ’s determination. Id. Plaintiff’s varying statements 

coupled with Dr. Webster’s pain behavior finding, amount to a clear and convincing reason to 

discount Plaintiff’s credibility. Id.; Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) 

(noting that self-limiting behaviors strongly suggest a lack of credibility). 

 Third, the ALJ noted that “the record contains multiple references to activities of the 

claimant which are highly inconsistent with his allegations.” Tr. 40. Plaintiff fell off a skateboard 

 

3

 Plaintiff’s attempts to distinguish Edlund are also unavailing as Edlund does not suggest that it 

is limited to its specific facts. See Morreo v. Colin, No. CV 13–00668 RZ, 2013 WL 5966768, at 

*2 (C.D. Cal. Nov. 7, 2013) (“nothing in Edlund suggests that Carl Edlund’s credibility in ‘overreporting’ his pain could only be discounted because he traded his prescription pain pills for 

Valium”). 
FINDINGS AND RECOMMENDATION – 22 

in August, 2010. 786. Shortly thereafter, Plaintiff helped a friend move a refrigerator. Tr. 781. In 

November 2010, Plaintiff fell off a ladder. Tr. 947. In June 2011, Plaintiff helped a friend move a 

heavy box. Tr. 777. In March, 2013, Plaintiff reported walking sixteen miles in a single day. Tr. 

1058. These activities permit the ALJ to infer that Plaintiff was not as physically limited as his 

allegations suggested. Tommasetti, 533 F.3d at 1040. 

 Based upon careful review of the ALJ’s decision and the record, I conclude that the ALJ 

provided clear and convincing reasons supporting his decision to not fully credit Plaintiff’s 

subjective symptom testimony. However the ALJ also provided other reasons that were not 

legally sufficient. First, while much of the ALJ’s discussion of inconsistencies in the record went 

directly to Plaintiff’s pain and limitations—as discussed above—some of the ALJ’s discussion 

improperly addressed Plaintiff’s overall truthfulness. For example, the ALJ noted that Plaintiff 

testified that he had no friends while he stated at another point in time that he had two friends. 

Tr. 39. The ALJ also noted that Plaintiff testified that he used marijuana up to three times a week 

but the record showed that Plaintiff was “inconsistent in his reporting of his illicit drug history.” 

Tr. 39. The ALJ’s truthfulness analysis was improper under SSR 16-3p. 

Second, the ALJ cited Plaintiff’s history of declining alternative modalities of treatment. 

Tr. 39. In February of 2011, Plaintiff declined neurontin for his pain. Tr. 581. In August of 2011, 

Plaintiff was given the option of spinal injections and physical therapy but he declined these 

treatments focusing instead on “monotherapy with the use of opioid analgesics.” Tr. 883. In 

November of 2013, Plaintiff was offered “NSAID options and neurological pain reliever, [but 

he] deferred.” Tr. 1112. 

 The ALJ erred by not fully evaluating Plaintiff’s history of declining alternative 

modalities to treatment in determining adverse credibility. An ALJ may consider a claimant’s 
FINDINGS AND RECOMMENDATION – 23 

failure to seek treatment. Smolen, 80 F.3d at 1284. However, under SSR 16-3p, an ALJ “will not 

find an individual’s symptom’s inconsistent with the evidence in the record on this basis without 

considering possible reasons he or she may not comply with treatment or seek treatment 

consistent with the degree of his or her complaints.” Id. at 8. For example, “[a]n individual may 

not be able to afford treatment and may not have access to free or low-cost medical services.” Id.

at 9. There is at least some evidence of Plaintiff’s inability to afford treatment in the record. Tr. 

600 (Plaintiff informed a healthcare worker via phone that “he could not afford to pay for 

[appointments] himself”). There is also some evidence that Plaintiff may not be able to tolerate 

NSAIDs. Tr. 1060. As the ALJ failed to fully consider reasons why Plaintiff did not seek 

treatment via alternative modalities, the ALJ erred. 

 Nonetheless, the ALJ’s inclusion of insufficient reasons does not invalidate his finding 

that Plaintiff’s subjective symptom testimony should be discounted. Where, as here, substantial 

evidence supports the ALJ’s determination despite the inadequacy of some of an ALJ’s reasons, 

that determination will be upheld. See Carmickle, 533 F.3d at 1162. 

III. Hypothetical to the VE 

Plaintiff contends that the ALJ failed to present a hypothetical to the VE that fully 

reflected Plaintiff’s impairments. 

A. Standards

At step five “the Commissioner has the burden to identify specific jobs existing in 

substantial numbers in the national economy that a claimant can perform despite his identified 

limitations.” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (internal quotations and 

citations omitted). The ALJ assesses the claimant’s RFC and then considers potential 

occupations that the claimant may be able to perform. See 20 C.F.R. § 416.969. To make this 
FINDINGS AND RECOMMENDATION – 24 

determination, “the ALJ relies on the Dictionary of Occupational Titles (“DOT”), which is the 

SSA’s primary source of reliable job information regarding jobs that exist in the national 

economy.” Zavalin, 778 F.3d at 845–46 (internal quotations and citations omitted). Among other 

things, the DOT sets out the reasoning ability required to perform each job, “ranging from Level 

1 (which requires the least reasoning ability) to Level 6 (which requires the most).” Id. at 846. 

“In addition to the DOT, the ALJ relies on the testimony of [VEs] who testify about 

specific occupations that a claimant can perform in light of his [RFC].” Zavalin, 778 F.3d at 846. 

The ALJ presents a vocational hypothetical to the VE, which must set out all of a claimant’s 

impairments and limitations. E.g., Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). The 

ALJ’s depiction of a claimant’s limitations must be “accurate, detailed, and supported by the 

record.” Tackett, 180 F.3d at 101. If the assumptions set out in the hypothetical are not supported 

by the record, a VE’s conclusion that a claimant can work does not have evidentiary value. 

Gallant, 753 F.3d at 1456. 

 Further, “[w]hen there is an apparent conflict between the [VE’s] testimony and the 

DOT—for example, expert testimony that a claimant can perform an occupation involving DOT 

requirements that appear more than the claimant can handle—the ALJ is required to reconcile the 

inconsistency.” Zavalin, 778 F.3d at 846 (citing Massachi v. Astrue, 486 F.3d 1149, 1153–54 

(9th Cir. 2007)). The ALJ must have the VE explain the conflict and determine whether the VE’s 

explanation is reasonable prior to relying on the VE’s testimony to reach a disability 

determination. Id. The ALJ’s failure to resolve any inconsistency may preclude the Court from 

determining whether the ALJ’s decision is supported by substantial evidence. Id. 

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FINDINGS AND RECOMMENDATION – 25 

B. Analysis 

 Plaintiff makes three arguments related to the vocational hypothetical that the Court will 

address in turn. First, Plaintiff argues that the hypothetical question to the VE did not accurately 

reflect Plaintiff’s limitations because it assumed that Plaintiff graduated high school. In a 

disability report completed in September 2009, Plaintiff stated that he did not graduate from high 

school. Tr. 321; see also Tr. 1030 (stating that Plaintiff did not complete high school). But the 

ALJ found that Plaintiff had at least a high school education. Tr. 40. Plaintiff testified before the 

ALJ that he completed 12th grade, and the hypothetical presented to the VE was based on this 

testimony. Tr. 55–56, 83. Plaintiff also told Dr. Webster that he had a 12th grade education. Tr. 

1085. 

 Even assuming that the ALJ improperly equated “completing 12th grade” with 

“graduating high school,” and that the hypothetical presented to the VE did not accurately reflect 

Plaintiff’s education level, the inaccurate hypothetical was harmless error. A claimant’s 

educational level can be a determinative element in applying the Medical Vocational Guidelines. 

But here, applying a grid rule for a younger individual who did not graduate high school and who 

can communicate in English would result in a non-disability finding. 20 C.F.R. Pt. 404, Subpt. P, 

App. 2. Moreover, the addresser job the VE identified (DOT code 209.587-010, SVP 2 unskilled 

work) is unskilled and does not require a high school education. Terry v. Sullivan, 903 F.2d 

1273, 1276 (9th Cir. 1990) (SVP 2 corresponds with unskilled work); DOT 209.587-010, 

available at 1991 WL 671797; Tr. 41; cf. 20 C.F.R. § 416.964(b)(4) (noting that high school 

graduates can generally do semi-skilled or skilled jobs). Thus, the ALJ’s possible error in stating 

that Plaintiff completed high school was harmless. Tommasetti, 533 F.3d at 1038 (harmless error 

exists when the ALJ’s error was inconsequential to the ultimate nondisability determination); 
FINDINGS AND RECOMMENDATION – 26 

Stenson v. Astrue, No. 11CV1054–BEN (BLM), 2012 WL 1154400, at *7 (S.D. Cal. 2012) 

(finding harmless error even though a limitation was omitted from the hypothetical presented to 

the ALJ). 

 Second, Plaintiff alleges that the hypothetical did not include the limitation to occasional 

neck bending assessed by Dr. Plowman or the workplace limitation identified by Dr. Bee. 

However, as the Court has already found that the ALJ properly considered Dr. Plowman’s 

assessment of Plaintiff’s neck bending limitations and Dr. Bee’s assessment of Plaintiff’s work 

limitations, Plaintiff’s argument fails. See Stubbs-Danielson, 539 F.3d at 1175–76 (finding step 

five finding valid where plaintiff “simply restate[d] her argument that the ALJ’s RFC finding did 

not account for all her limitations because the ALJ improperly discounted . . . the testimony of 

medical experts”). 

Third, Plaintiff argues that the ALJ erred because the hypothetical to the VE did not 

include a limitation to simple, routine, repetitive tasks, while the RFC finding did. Defendant 

responds by arguing that Plaintiff has failed to show harmful error because a claimant’s 

limitation to simple, routine, and repetitive tasks encompasses GED reasoning Levels of 2 and 

the addresser job identified by the VE has a GED reasoning Level of 2. 

 Rulings in the Ninth Circuit suggest that an RFC limitation to “simple,” “routine,” or 

“repetitive” tasks is consistent with Level 2 reasoning. See Rounds v. Comm’r Soc. Sec. Admin., 

807 F.3d 996, 1004 n.6 (9th Cir. 2015) (noting that “[u]npublished decisions of panels of this 

Court and opinions from some of our sister circuits have concluded that an RFC limitation to 

‘simple’ or ‘repetitive’ tasks is consistent with Level Two reasoning”); Watkins v. Comm’r Soc. 

Sec. Admin., 2016 WL 4445467, at *7 n.2 (D. Or. Aug. 22, 2016) (“The District of Oregon 

repeatedly has held that the limitation to perform simple and routine tasks is not inconsistent 
FINDINGS AND RECOMMENDATION – 27 

with Reasoning Level 2 jobs.”); Maxwell v. Comm’r Soc. Sec. Admin., No. 3:12–cv–00475–HU, 

2013 WL 4087758, at *19 (D. Or. Aug. 12, 2013) (finding limitations to “simple, routine 

instructions and procedures,” and “simple, routine tasks” not inconsistent with Level 2 

reasoning); Patton v. Astrue, No. 6:11–cv–06423, 2013 WL 705909, at *1 (D. Or. Feb. 25, 2013) 

(same). In contrast, the Ninth Circuit has found that “there is an apparent conflict between the 

residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 

Reasoning.” Zavalin, 778 F.3d at 847. 

 The ALJ did not err given that he identified at least one job requiring only Level 2 

reasoning and given that there are a significant amount of these positions in the regional 

economy. The addresser job identified by the VE has a reasoning Level of 2. DOT 209.587-010, 

available at 1991 WL 671797. Thus, the VE’s testimony that Plaintiff was able to perform the 

job of addresser despite his limitations to “simple, routine, repetitive work” was not harmful 

error and constituted substantial evidence. See Watkins, 2016 WL 4445467, at *7 (finding that 

the ALJ did not err in failing to resolve any conflict between the DOT and the VE’s testimony 

where the RFC limitation to simple work tasks was consistent with Level 2 reasoning and at least 

one job identified by the VE only required Level 2 reasoning). Further, the VE testified that there 

are 1,400 addresser positions in the regional economy (Oregon) and 187,000 addresser positions 

in the national economy. Tr. 84. The court finds that this is a significant amount of work. See 

Thomas, 278 F.3d at 960–61 (upholding the ALJ’s finding that 1,300 jobs in Oregon constituted 

significant work). 

IV. Medical Improvement

Plaintiff contends that the ALJ improperly found medical improvement. 

/// 
FINDINGS AND RECOMMENDATION – 28 

A. Standards

Generally, the claimant bears the burden of proving disability. Meanel v Apfel, 172 F.3d 

1111, 1113 (9th Cir. 1999). However, “[o]nce the claimant has been found to be disabled . . . a 

presumption of continuing disability arises in her favor.” Bellamy v. Sec. of Health and Human 

Servs., 755 F.2d 1380, 1381 (9th Cir. 1985). “The [Commissioner] then bears the burden of 

producing evidence sufficient to rebut this presumption of continuing disability.” Id. 

 A claimant is “no longer entitled to benefits when substantial evidence demonstrates (1) 

there has been any medical improvement in the claimant’s impairment and (2) the claimant is 

now able to engage in substantial gainful activity.” Attmore v. Colvin, 827 F.3d 872, 873 (9th 

Cir. 2016) (internal quotations and citations omitted). In cases where the ALJ finds in a single 

decision that the claimant was disabled for a period of time but subsequently improved—such as 

here—“an ALJ should compare the medical evidence used to determine that the claimant was 

disabled with the medical evidence existing at the time of asserted medical improvement.” Id. at 

874. 

B. Analysis 

The Court finds that the ALJ has cited substantial evidence supporting the ALJ’s finding 

of medical improvement, overcoming the presumption of continuing disability. The ALJ noted 

Martin Degroot, PAC’s, examination of Plaintiff on November 11, 2013, and Plaintiff’s 

testimony at the second hearing. Tr. 35. Mr. Degroot stated that Plaintiff reported that his 

symptoms of upper extremity paresthesias and weakness had significantly improved since his 

surgery on October 17, 2013. Tr. 1125. Plaintiff requested an extension of his narcotic 

medication and felt that his pain was controlled well with hydrocodone. Tr. 1125. Plaintiff 

agreed to taper his medication after one week. Tr. 1126. 
FINDINGS AND RECOMMENDATION – 29 

 Only one day after assuring Mr. Degroot that his pain had significantly improved and that 

his pain was controlled with hydrocodone, Plaintiff returned to Mr. Degroot “to discuss pain 

medications.” Tr. 1111. After being issued 40 tabs of pain medication the day prior—enough to 

last a week—Plaintiff stated that his pain medication was not covering his pain. Tr. 1111, 1126. 

Plaintiff did not report any recent “accident, trauma or acute exacerbation of pain.” Tr. 1111. Mr. 

Degroot reminded Plaintiff that he would not be prescribing him any further refills. Tr. 1112. 

The record does not contain any treatment records after this visit. 

Furthermore, Plaintiff testified at the second hearing that “prior to surgery, his primary 

problems were pain and a weak grip.” Tr. 35. “However, he testified that after surgery his 

primary symptom was tingling down the left arm into the hand.” Tr. 35. The “main pain” in his 

hand and his grip problems had improved. Tr. 101. The ALJ found that this supported a finding 

of medical improvement related to the ability to work. Tr. 35. 

 Substantial evidence supports the ALJ’s finding of medical improvement. 

Conclusion 

 For the reasons set out above, a judgment should be entered AFFIRMING the 

Commissioner’s decision. 

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FINDINGS AND RECOMMENDATION – 30 

Scheduling Order

 This Findings and Recommendation will be referred to a district judge. Objections, 

if any, are due May 16, 2017 . If no objections are filed, then the Findings and 

Recommendation will go under advisement on that date. 

 If objections are filed, then a response is due within 14 days after being served with 

a copy of the objections. When the response is due or filed, whichever date is earlier, the 

Findings and Recommendation will go under advisement. 

 DATED this 2nd day of May, 2017. 

 

 /s/ John Jelderks 

 John Jelderks 

 U.S. Magistrate Judge