IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

LEWIS LEO POTTER, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Acting Commissioner of Social Security, 

Defendant. 

AIKEN, Judge: 

Case No. 1: 15-cv-01809-AA 

OPINION AND ORDER 

For over ten years, plaintiff Lewis Leo Potter has been petitioning the Social Security 

Administration for disability benefits due to chronic pain. Plaintiff claims that this pain is so intense 

that he cannot lift more than ten pounds, walk for more than a block, and cannot sit or stand for long 

periods of time. Tr. 269. Plaintiff alleges this chronic pain prevents him from doing something as 

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simple as a load of laund1y without requiring several hours of rest and recuperation. Tr. 159. This 

is the third time his case has been appealed to this Court. This Court first remanded the case for 

further proceedings in 2009. Tr. 325. The ALJ denied plaintiffs claim for disability again, and this 

Court affirmed that decision. Tr. 319. The Ninth Circuit Court of Appeals reversed that decision and 

remanded for further proceedings. Tr. 438. TheALJ denied benefits yet again on this second remand. 

Tr. 424. The government concedes there were several errors in this decision now on appeal and urges 

yet another remand for further proceedings. Def. Br. and Mot. for Remand at 2 (doc. 21). For the 

reasons stated below, this case is instead remanded for an immediate award of benefits. 

BACKGROUND 

In 2002, plaintiff began experiencing chronic pain in his right chest wall and sought medical 

attention for this condition. Tr. 260. The pain became so persistent and intense that he quickly gave 

up his search for work and began to limit his daily activities to those of minimal exe1iion. Id. He has 

testified that he is unable to sit, stand, or lie down for prolonged periods of time without having to 

get up, sit down, or otherwise adjust himself until the pain subsides. Tr. 269, 273. His treating 

physician, Dr. Kahn, diagnosed him with chronic costrochondritis, an inflammation of the caiiilage 

between the ribs and the sternum, for which plaintiff has been taking Vicodin and Lidocane patches. 

This treatment has had limited success, but often renders plaintiff unable to concentrate or function. 

Tr. 261. 

After three hearings spanning eight months, plaintiffs initial request for benefits was denied 

on the grounds that his testimony wasn't entirely credible and was inconsistent with "any objective 

medical finding." Tr. 19. This Comi then granted a stipulated motion to remand for fu1iher 

proceedings in 2009 with instructions to reevaluate plaintiffs testimony and to further develop the 

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medical record. Tr. 325. 

A fourth hearing took place in August 2010. Afterwards, plaintiff was denied benefits again 

on the grounds that his testimony and that of his treating physician were not credible and "not 

suppo1ted by medically acceptable clinical and laboratmy diagnostic technique[ s]." Tr. 317. The ALJ 

also found plaintiffs pain testimony inconsistent with his ability to do yard work and basic 

household chores. Tr. 314. This Court affirmed, but the Ninth Circuit reversed and remanded for 

further proceedings in April 2014. Specifically, the Ninth Circuit held that symptoms such as the 

intensity of pain are subjective and cannot be measured in an objective fashion. Tr. 440. The Ninth 

Circuit also requested that the ALJ develop the record concerning plaintiffs refusal to undergo a 

nerve block procedure, which could potentially cure his condition. Tr. 442. The case was remanded 

to the ALJ for reevaluation of the credibility of plaintiffs subjective symptom testimony, particularly 

the reasoning behind his refusal to undergo a nerve block procedure. Tr. 441. 

The fifth hearing before the ALJ took place in June 2015. The hearing went much as the 

previous four had with one notable exception. The Vocational Expert ("VE") noted plaintiff was 

only capable of working as a Surveillance System Monitor, an occupation with approximately 300 

positions in Oregon statewide. Tr. 613. "Other than that," the VE testified, "my opinion would be 

that work in the sedentary work range would be precluded[.]" Id. Nonetheless, the ALJ determined 

plaintiff was not disabled. This appeal followed. 

STANDARDS 

Both patties to this appeal concede the ALJ committed several errors and that the case should 

be remanded. The only issue on appeal is whether fmther proceedings are required, or whether the 

case ought to be remanded for an immediate award of benefits. The Ninth Circuit precludes a district 

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coutt from remanding a case for an award of benefits unless certain prerequisites are met. Burrell 

v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). The district court must first determine the ALJ made 

a legal e1rnr, such as failing to provide legally sufficient reasons for rejecting evidence. Id Second, 

ifthere was legal error the Court then reviews the record as a whole to determine whether it is fully 

developed and "all essential factual issues have been resolved." Treichler v. Comm'r of Soc. Sec. 

Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). In conducting this review, the district coutt must 

consider whether there are "inconsistencies between [the plaintiffs] testimony and the medical 

evidence in the record," id. at 1105, or whether the government has pointed to evidence in the record 

"that the ALJ overlooked" and explained "how that evidence casts into serious doubt" the plaintiffs 

claim to be disabled, Burrell, 775 F.3d at 1141. Unless the district coutt concludes that further 

administrative proceedings would serve no useful purpose, it may not remand with a direction to 

provide benefits. Id Third, ifthe coutt concludes that "if the improperly discredited evidence were 

credited as true, the ALJ would be required to find the claimant disabled on remand," then a remand 

for immediate award of benefits is appropriate. Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 

2015) (citing Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014)). 

Since both patties concede that hatmful errors have been committed by the ALJ, this Coutt 

need only determine whether the record is fully developed, if fu1ther proceedings would serve any 

useful purpose, and ifthe record as a whole creates serious doubt as to whether the plaintiff is, in 

fact, disabled. 

DISCUSSION 

I. The ALJ's Errors 

The Government concedes the ALJ committed the following errors: 

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1. The ALJ erred when he claimed to give "great weight" to the opinion of doctor Scott 

Pritchard, while simultaneously discounting it because it was inconsistent with the residual 

functional capacity determination. The ALJ also offered no explanation for discounting this 

opinion. Def. Br. and Mot. for Remand at 4 (doc. 21) 

2. The ALJ erred in rejecting opinion testimony of treating physicians Dr. Heather Kahn and 

Dr. Grego1y Grunwald. The ALJ also discounted other medical evidence without further 

explanation. Id 

3. The ALJ erred when he failed to discuss the opinion testimony of plaintiffs mother-in law 

altogether. Id 

4. The ALJ erred by failing to discuss the medical opinion of Dr. Martin Kehrli, a State agency 

consultant. Id. 

5. The ALJ did not discuss the nerve-block procedure which could potentially cure plaintiffs 

condition despite the Ninth Circuit's express instructions to address this issue. Id at 5. 

The government asserts that no error was committed in the ALJ' s evaluation of plaintiffs 

credibility. I disagree, and instead I find that the ALJ erred in evaluating plaintiffs statements about 

his pain as well as discussed further below. 

II. The Record is Fully Developed 

The government's main argument for further proceedings is that the record is not fully 

developed in terms of the weight given to various medical opinions and that ALJ' s failure to explain 

why some opinions were accepted and others were rejected. Fmthermore, the government argues 

remand is necessmy to resolve evidentiary conflicts in the record. Def. Br. and Mot. for Remand at 

3. I do not find either of these arguments compelling. After ten years and five hearings, the record 

is more than adequately developed. There are no outstanding issues at hand that could be resolved 

through further proceedings. While opinions vmy about the exact severity of plaintiffs symptoms, 

only the opinion of one non-examining physician found that plaintiff was not disabled. Fmthermore, 

eve1y medical opinion in the record shows that plaintiff experiences clu·onic pain. Tr. 430-31. As the 

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Ninth Circuit noted in its remand order, "[b ]ecause the disabling effects of pain cannot be confirmed 

by objective medical evidence, [plaintiffs] RFC depends on his subjective complaints." Tr. 440. 

Thus there are no outstanding issues of fact to resolve through further proceedings. 

The ALJ gave little or no weight to the testimony of Dr. Kahn, asserting that her opinion 

"clearly is based upon the subjective complaints of the claimant." Tr. 430. Dr. Kahn's asse1tion that 

plaintiff suffers from chronic pain is uncontradicted in the record and thus should only be discounted 

for clear and convincing reasons. 1 Even for the po1tions of Dr. Kahn's opinion that are contradicted, 

the ALJ still has not provided any specific and legitimate reasons to disregard her testimony. Because 

chronic pain is "a disease that eludes such [objective] measurement," Dr. Kahn was correct to base 

her opinion upon the plaintiffs subjective complaints. Green-Younger v. Barnhart, 335 F .3d 99, 108 

(2d Cir. 2003). Sheer disbelief of the severity of the plaintiffs symptoms "is no substitute for 

substantial evidence." Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). Fu1ther proceedings 

would do nothing to fmther develop this ah'eady extensive record. 

III. Plaintiff's Pain Testimony Ought to be Credited as True 

Plaintiff has consistently rep01ted severe pain throughout these proceedings. Such symptoms 

are subjective in nature and elude objective measurement. Benecke, 379 F.3d at 594 (citing GreenYounger, 335 F.3d at 108). In order to evaluate a plaintiffs subjective symptom testimony, his 

impairment must "reasonably be expected to produce the pain or other symptoms," Lingenfelter v. 

1 Other medical opinions in the record are that of Dr. Grunwald ("there is considerable 

pain in the anterior chest wall," Tr. 382), Dr. Savier (noting pain in plaintiffs right chest wall, 

though disagreeing with others as to the cause of it, Tr. 248), Dr. Jensen, a consulting physician 

(Plaintiff has "pain and tenderness at the junction of the front right ribs," Tr. 287), Dr. Pritchard, 

a state agency physician (noting plaintiff cannot sustain a 40 hour work week due to chronic pain, 

Tr. 393) and Dr. Kehrli (confirming diagnosis ofcostochondritis, Tr. 196). 

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Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007), and his testimony regarding the severity of his pain 

must be credible, Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). 

A. Plaintiff's Impairment Could Reasonably Produce Chronic Pain 

As the Ninth Circuit noted, it is undisputed that plaintiffs costochondritis can reasonably be 

expected to produce pain. Tr. 441. This is consistently reflected in the record. While there has been 

some disagreement about the severity of plaintiffs pain, five separate doctors (treating physician, 

examining physicians, and non-examining physicians alike) have all concluded that plaintiffs 

condition causes him chronic pain. Tr. 430-432. The severity of this pain is a subjective matter, and 

therefore hinges on the credibility of the plaintiffs testimony in regards to his symptoms. Benecke, 

379 F.3d at 594; Green-Younger, 335 F.3d at 108. 

B. The ALJ Erred in Finding that Plaintiff's Testimony Was Not Credible 

In order to support a finding that a claimant is not credible, the ALJ must provide clear and 

convincing reasons for rejecting the claimant's testimony. Smolen, 80 F.3d at 1281. Appropriate 

considerations for determining a claimant's credibility include: 

(1) ordinaiytechniques of credibility evaluation, such as the claimant's reputation for 

lying, prior inconsistent statements concerning the symptoms, and other testimony 

by the claimant that appears less than candid; (2) unexplained or inadequately 

explained failure to seek treatment or to follow a prescribed course of treatment; and 

(3) the claimant's daily activities. 

Id at 1284. Here, the ALJ used evidence regarding plaintiffs daily activities to determine that his 

testimony was not credible. Specifically the ALJ found that "claimant admits that he can mow the 

lawn, help with household chores, drive, shop, prepare meals, watch television, hunt and fish." Tr. 

428. The ALJ cites no evidence in the record to supp01t this conclusion, and what evidence there is 

on these matters supports a finding that plaintiffs pain testimony is credible. 

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In "admitting" that he could mow the lawn, plaintiff said that he could mow an "area of 23 

x 40," but that it would take up an entire day "due to the pain [he is] in." Tr. 159. At multiple 

hearings, plaintiff and lay witnesses both testified that he was no longer capable of even doing this. 

At the first hearing in 2006, plaintiff was asked ifhe could mow the law at any time during the past 

three summers. "Three summers ago, yes," plaintiff replied, "this summer, last summer, no." Tr. 268. 

Plaintiffs wife corroborated this statement in her own testimony at the same hearing. Tr. 277. 

Nothing in the record contradicts plaintiffs testimony that he was able to mow the lawn with great 

difficulty in 2003, but now needs the aid of his neighbors to do yard work. 

There is a great deal of testimony in the record that the plaintiff can, in fact, help with the one 

household chore of doing laundry, so long as he has two to three hours to recuperate afterward. At 

the 2010 hearing, plaintiff testified that doing a load of laund1y required him to rest for most of the 

day. Tr. 410. This is consistent with testimony at the 2006 hearing in which plaintiffs wife said "He 

does a load oflaund1y. Then he's down for two, three hours." Tr. 277. Plaintiff also "admitted" he 

could, with great difficulty, drive the 15 minutes it takes to get his son to and from school, though 

sometimes not even managing that. Tr. 263. After the short drive to drop his son off at school, 

plaintiff testified that he would require anywhere from one to three hours of rest due to the pain 

caused by the drive. Tr. 274. The only cooking he is capable of is boiling pasta, cooking frozen 

pizza, and assembling sandwiches, all of which require two to six hours of recove1y. Tr. 159. 

Nothing in the record supp mis the claim that plaintiff was able to hunt or fish at any point since two 

years prior to filing for benefits. Tr. 267. Finally, while the record does suppo11 a finding that 

plaintiff is capable of watching television (provided he has not taken his medication, Tr. 261) this 

has no bearing on how credible his testimony regarding the severity of his symptoms is. As several 

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courts have noted a plaintiff"need not be completely bedridden or unable to perform any household 

chores to be considered disabled." Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 1988) (citing 

Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir. 1974)). Thus I see no contradiction between 

plaintiff's daily activities and his subjective pain testimony and no clear or convincing reason for 

discounting said testimony. 

As for the ordinary techniques for evaluating plaintiff's credibility, the ALJ cites no evidence 

to indicate that plaintiff has any reputation for lying, no inconsistent statements plaintiff has made 

about his symptoms, and no evidence to indicate that plaintiff has ever been less than candid over 

the ten years this case has been going on. The ALJ does bring up the fact that plaintiff quit his last 

job for reasons not related to his chronic pain, that he looked for work for some months after 

quitting, and that he provided no rationale for his onset date. Tr. 428. The ALJ is correct that "[t]he 

inability to secure employment is not the same as the inability to perform basic work activities if 

hired." Id. However, it is just as true that the inability to find work is not evidence of the ability to 

do work. Thus this is not clear or convincing evidence for discounting plaintiff's subjective pain 

testimony. 

The only remaining ground for doubting plaintiff's credibility is his failure to pursue the 

nerve block procedure which could potentially cure his symptoms. Tr. 407. This was the primary 

concern the Ninth Circuit had when remanding this case. Tr. 442. The plaintiff has introduced new 

evidence from Dr. Kahn explaining the plaintiff's reluctance to undergo this procedure, and Dr. 

Kahn has corroborated these concerns. Tr. 500. Despite clear instructions to address plaintiff's 

decision to forego the procedure on remand and the plaintiff's introduction of this new evidence, 

there was hardly any mention of the nerve block procedure at the fifth hearing and the procedure was 

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not discussed at all in the ALJ' s third decision denying plaintiff benefits. Having reviewed this new 

evidence, I find that the plaintiff has adequately explained his reluctance to undergo this procedure. 

Plaintiff explained in 2010 that he did not want to have this procedure because he feared it could 

worsen his condition, cause his pain merely to migrate, and render him unable to detect the onset of 

heart attacks. Tr. 408. These fears were corroborated by new evidence from his treating physician, 

Dr. Kahn, who stated "[i]f we do a block in the thoracic spinal ganglion ... he may very well not 

experience atypical chest pain on the right side of his body, as the rest of his family has done." Tr. 

500. Thus there is no clear or convincing reason to discount plaintiffs pain testimony. 

The ALJ erred in failing to follow the Ninth Circuit's instructions regarding plaintiffs 

credibility. After examining the thoroughly developed record, I find no outstanding issues of fact to 

be resolved through further proceedings. Moreover, if plaintiffs testimony regarding the severity of 

his pain is credited as true, it compels a finding of disability. Furthermore, if Dr. Kahn's testimony 

that the plaintiff"could not sustain light work" (Tr. 430) were credited as true, the ALJ would also 

be required to find plaintiff disabled. Therefore, after finding that nothing in the record creates 

serious doubt that the plaintiff is in fact disabled, I now remand this case for the immediate award 

of benefits. 

IV. Plaintiff's Field of Employment is Severely Diminished 

Even if neither Dr. Kahn's opinion nor plaintiffs testimony is credited as true, the VE's 

testimony at the fifth hearing compels a finding of disability. Setting all of the above discussion 

aside, the ALJ erred in determining that plaintiff could find other gainful employment. 20 C.F .R. § 

404.1512(g). 

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"Under the regulations, 'sedentary work' represents a significantly restricted range 

of work. Individuals who are limited to no more than sedenta1ywork by their medical 

impairments have vety serious functional limitations ... the ability to do even a 

limited range of sedentaty work does not itself establish disability in all individuals, 

although a finding of' disabled' usually applies when the full range of sedentatywork 

is significantly eroded." 

Social Security Ruling 96-9p (emphasis in original). At the 2015 hearing the VE identified one job, 

and one job alone that plaintiff might be capable of performing. The VE testified that plaintiff was 

capable of working as a Surveillance System Monitor, a job with only 300 positions in Oregon. Tr. 

613. "Other than that," the VE said, "my opinion would be that work in the sedentaty work range 

would be precluded[.]" Id. This alone suppotts a finding that plaintiff is disabled because the full 

range of sedentaty work has been significantly eroded. See Social Security Ruling 96-9p. With only 

one job available which exists in vety limited numbers in the national economy, finding that the full 

range of sedentaty work is not eroded here would negate the purpose behind SSR 96-9p. The 

Commissioner has not contested this argument in her briefing. This separate rationale a decision to 

award benefits to the plaintiff. 

CONCLUSION 

For the foregoing reasons, the Commissioner's decision is REVERSED and the case is 

REMANDED for the immediate award of benefits. 

IT IS SO ORDERED~ 

Dated this g}___ of November 2016. 

AnnAiken 

United States District Judge 

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