UNITED STATES DISTRICT COURT 

THANH VAN DINH, 

Plaintiff, 

v. 

CAROLYN COL VIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

Merrill Schneider 

Schneider Kerr Law Offices 

P.O. Box 14490 

Portland, OR 97293 

Attorney for Plaintiff 

Billy J. Williams 

United States Attorney 

Janice E. Hebert 

DISTRICT OF OREGON 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

1 - OPINION AND ORDER 

Case No. 3:15-cv-01588-AA 

OPINION AND ORDER 

Case 3:15-cv-01588-AA Document 17 Filed 08/09/16 Page 1 of 8
Jordan D. Goddard 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900, MIS 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

AIKEN, Chief Judge: 

Plaintiff filed suit pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to 

obtain judicial review of the Commissioner's denial of his application for disability insurance 

benefits (DIB). Plaintiff argues that the case should be remanded for an award of benefits, or, 

alternatively, for further proceedings and vocational testimony. The decision of the 

Commissioner is reversed and remanded for futiher administrative proceedings. 

BACKGROUND 

On January 9, 2012, plaintiff protectively filed an application for DIB, alleging disability 

beginning August 1, 2011. Tr. 16. His application was denied initially and on reconsideration. 

On January 2, 2014, plaintiff and a vocational expert (VE) appeared and testified before an 

Administrative Law Judge (ALJ). Tr. 31-46. On January 16, 2014, the ALJ issued a decision 

finding plaintiff not disabled within the meaning of the Act. Tr. 13-30. The Appeals Council 

denied plaintiffs request for review, rendering the ALJ's decision as the final decision of the 

Commissioner. Tr. 1-6. Plaintiff now seeks judicial review. 

At the time of the ALJ's decision, plaintiff was fifty-two years old with a high school 

education and past relevant work as an auto mechanic and an order filler. Tr. 24. He alleges 

disability since August 1, 2011, due to chronic obstructive pulmonary disease, heati disease, 

kidney problems, and diabetes. Tr. 134. 

2 - OPINION AND ORDER 

Case 3:15-cv-01588-AA Document 17 Filed 08/09/16 Page 2 of 8
STANDARD OF REVIEW 

The couti 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, 879 F.2d 498, 501 (9th Cir. 1989). 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). The couti must weigh "both the evidence that supports and detracts from the 

[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

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 Commissioner evaluated plaintiffs allegation of disability pursuant to the required 

five-step sequential evaluation process for determining whether a claimant is disabled. See 20 

C.F.R. § 404.1520(a)-(g). 

At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" 

since the alleged onset date of disability. Tr. 18; 20 C.F.R. § 404.1520(b). 

At steps two and three, the ALJ found that plaintiff has severe impairments of chronic 

obstrnctive pulmonmy disease, ischemic hemi disease, and diabetes, but that plaintiffs 

impairments did not meet or equal the severity of a listed impairment which is "considered 

severe enough to prevent a person from doing any gainful activity." Tr. 18; 20 C.F.R. § 

404.1520( c ),( d). 

3 - OPINION AND ORDER 

Case 3:15-cv-01588-AA Document 17 Filed 08/09/16 Page 3 of 8
The ALJ then assessed plaintiffs residual functional capacity (RFC) and found that 

plaintiff could perfo11n light work, except that he could stand and walk for a total of three hours a 

day, could not climb ladders, ropes, or scaffolds, could climb ramps and stairs less than 

occasionally, and should avoid exposure to noxious fumes. Tr. 19; 20 C.F.R. § 404.1520(e). 

Based on these findings, at step four, the ALJ found that plaintiff could not perform his past 

relevant work. Tr. 24; 20 C.F.R. § 404.1520(±). 

The ALJ proceeded to step five, where the burden of proof shifts to the Commissioner to 

demonstrate that the claimant is able to perform work that exists in the national economy, after 

taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. § 

404. l 520(g). Relying on the testimony of the VE, the ALJ found that plaintiff could perform 

other work as an electronics worker and small products assembler. Tr. 25-26. Accordingly, the 

ALJ found plaintiff not disabled under the Act. 

DISCUSSION 

Plaintiff argues that the ALJ erred by rejecting the opinion of Dr. Ellison, an examining 

physician, without providing legally sufficient reasons to do so. 

On November 2, 2013, Dr. Ellison examined plaintiff and completed a functional 

assessment. Dr. Ellison diagnosed chronic obstructive pulmonary disease; coronary artery 

disease, status post five coronary mtery bypasses in 2003; Type 2 diabetes mellitus, not perfectly 

controlled; abnormal liver, possibly nodular; and chronic depression caused by "his inability to 

work and the resulting apparent conflict with his wife." Tr. 330. Dr. Ellison opined that plaintiff 

could lift up to 20 pounds occasionally and 10 pounds frequently, carry up to 10 pounds 

occasionally, sit for 4 hours at a time for a total of 8 hours in a workday, stand for 30 minutes at 

4 - OPINION AND ORDER 

Case 3:15-cv-01588-AA Document 17 Filed 08/09/16 Page 4 of 8
a time for a total of 2 hours in a workday, and walk for 10 minutes at a time for a total of 1 hour 

in a workday. Tr. 331-32. Dr. Ellison also found that plaintiff had some restrictions in reaching, 

feeling, handling, pushing and pulling, and in postural activities such as stooping and crouching. 

Tr. 333-34. 

In finding plaintiff not disabled, the ALJ found that plaintiff retained the RFC to perfom1 

light work, "except the claimant is limited to standing and walking about three hours a day. He 

can sit without limitation. He cannot climb ladders, ropes, and scaffolds. He can less than 

occasionally climb ramps and stairs. He should avoid exposure to noxious fumes." Tr. 19. In 

making this RFC assessment, the ALJ omitted several limitations noted by Dr. Ellison. The ALJ 

stated: 

Dr. Ellison examined [plaintiff] and proffered an opm10n that is generally 

objective medical evidence. While the residual functional capacity found in this 

decision incorporates elements of Dr. Ellison's assessment, the undersigned finds 

that the longitudinal record does not supp01i all of the limitations proposed by Dr. 

Ellison, such as the many manipulative, postural, and environmental limitations 

included in his medical source statement. Accordingly, his opinion receives 

pmiial weight. 

Tr. 23. Plaintiff argues that the ALJ erred by failing to provide specific and legitimate reasons to 

reject the reaching, manipulative, and postural limitations found by Dr. Ellison. I agree. 

Notably, the ALJ did not explain why he rejected Dr. Ellison's opinion regarding a 

sit/stand option or the noted manipulative, postural, and reaching limitations, and the ALJ did not 

explain what pati of the longitudinal record did not supp01i the findings of Dr. Ellison. See 

Lester v. Chafer, 81 F.3d 821, 830-31 (9th Cir. 1996) (the ALJ must provide either "clear and 

convincing" or "specific and legitimate" reasons to reject the opinion of a treating or examining 

physician). Though the ALJ recited plaintiffs medical history, Tr. 19-22, he did not identify the 

5 - OPINION AND ORDER 

Case 3:15-cv-01588-AA Document 17 Filed 08/09/16 Page 5 of 8
specific evidence that contradicted Dr. Ellison's opinion or make any other factual findings. 

Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) ("the ALJ still has a duty to make the 

requisite factual findings to support his conclusion"). In response to plaintiffs argument, the 

Commissioner provides several reasons to suppo1i the ALJ's rejection of Dr. Ellison's opinion. 

Def.'s Br. 6-8. However, in these circumstances I decline to rely on the Commissioner's post hoc 

rationalization to affim1 the ALJ's decision; it is the role of the ALJ, not this court, to make such 

findings. Pinto, 249 F.3d at 847 ("we cannot affirm the decision of an agency on a ground that 

the agency did not invoke in making its decision"); see also Connett v. Barnhart, 340 F.3d 871, 

874 (9th Cir. 2003) (the comi is "constrained to review the reasons the ALJ asserts"). Therefore, 

I find that the ALJ failed to provide specific and legitimate reasons to discount the opinion of Dr. 

Ellison. 

Plaintiff also argues that the ALJ mischaracterized plaintiffs RFC as consistent with light 

work, even though he cannot perform the full range of light work. For example, as noted above, 

the ALJ found that plaintiff can stand and walk for a total of three hours in an eight-hour day. Tr. 

19. Light work requires standing and walking for a total of six hours in an eight-hour workday, 

while sedentary work involves standing and walking for no more than a total of two hours. SSR 

83-10, 1983 WL 31251, at *5-6; 20 C.F.R. § 404.1567. Thus, plaintiff argues that his RFC is 

more closely aligned with sedentary work. Plaintifffmiher maintains that if his RFC is limited to 

sedentary work and he does not have transferable skills, 1 he is presumptively disabled under the 

Medical-Vocational Guidelines (the grids). See 20 C.F.R. Part 404, Subpt. P, App. 2, § 201.10; 

Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989) ("where application of the grids directs 

1

Plaintiff emphasizes that the vocational expert erroneously testified that plaintiffs skills 

were transferrable to the jobs identified at step five. 

6 - OPINION AND ORDER 

Case 3:15-cv-01588-AA Document 17 Filed 08/09/16 Page 6 of 8
a finding of disability, that finding must be accepted"). In fact, the ALJ remarked that plaintiff 

"would grid at sedentary." Tr. 45. 

Nonetheless, as noted by the Commissioner, the grids are not dispositive· when a 

claimant's exertional limitations fall between exertional levels. In such situations, an ALJ should 

obtain vocational testimony, as the ALJ did in this case. See SSR 83-12, 1983 WL 31253, at *3 

(in situations where the grids "direct different conclusions, and the individual's exertional 

limitations are somewhere 'in the middle'. .. [of] exertional ranges of work, more difficult 

judgments are involved ... [and vocational] assistance is advisable"). Thus, I cannot find that the 

ALJ eiTed by relying on the VE's testimony when plaintiffs assessed exe1iional limitations fall 

between sedentary and light. At the same time, if the limitations noted by Dr. Ellison were 

accepted, plaintiffs exertional capacity could be considered sufficiently close to sedentary to 

justify a finding of disabled under the grids. Id. at *2. 

In light of the limitations found by Dr. Ellison and the nature of plaintiffs exertional 

capacity, outstanding issues remain and it is unclear from the record whether plaintiff is disabled 

within the meaning of the Act. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). 

Accordingly, remand for additional proceedings is warranted. Vasquez v. Astrue, 572 F.3d 586, 

597 (9th Cir. 2009). On remand, the ALJ shall review Dr. Ellison's opinion, develop the record 

as necessary, assess whether plaintiffs exertional limitations are more consistent with sedentary 

work, and reevaluate plaintiffs ability to perform other work. 

CONCLUSION 

The ALJ's finding that plaintiff was not disabled under the Act is not supported by 

substantial evidence in the record. Accordingly, the decision of the Commissioner is 

7 - OPINION AND ORDER 

Case 3:15-cv-01588-AA Document 17 Filed 08/09/16 Page 7 of 8
REVERSED and REMANDED for further administrative proceedings consistent with this 

opinion. 

IT IS SO ORDERED. 

DATED this Cf day of August, 2016. 

AnnAiken 

United States District Judge 

8 - OPINION AND ORDER 

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