1 – OPINION & ORDER

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION 

LORIE A. HAIGHT, Case No. 6:15-cv-02149-YY

Plaintiff, OPINION AND 

ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

YOU, Magistrate Judge: 

Plaintiff Lorie A. Haight (“Haight”) seeks judicial review of the final decision by the 

Social Security Commissioner (“Commissioner”) denying her application for Disability 

Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 USC §§ 401–33, 

and Supplemental Security Income (“SSI”) under Title XVI of the Act. 42 USC §§ 1381–83f. 

This court has jurisdiction to review the Commissioner’s decision pursuant to 42 USC §§ 405(g) 

and 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and 

judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). ECF #13. For the 

following reasons, the Commissioner’s decision is AFFIRMED. 

///

///

///
2 – OPINION & ORDER

ADMINISTRATIVE HISTORY

On November 20, 2012, Haight filed applications for DIB and SSI. Tr. 179, 181.

1

 Her 

alleged onset date of disability is April 1, 2009. Tr. 179, 181. Both claims were denied initially 

and on reconsideration. Tr. 117, 121, 127, 130. A hearing was held before Administrative Law 

Judge (“ALJ”) Robert Spaulding on June 11, 2014. Tr. 26, 149. The ALJ issued a decision on 

September 26, 2014, finding Haight was not disabled under the Act. Tr. 9, 20–21. The Appeals 

Council denied Haight’s request for review on September 11, 2015. Tr. 1. Therefore, the ALJ’s 

decision is the Commissioner’s final decision subject to review by this court. 20 CFR 

§§ 404.981, 422.210. The time period at issue is April 1, 2009, through December 31, 2014. Tr. 

12.

BACKGROUND

Born in 1971, Haight was 43 years old at the time of the disability hearing. Tr. 28, 179. 

She received a GED in 1991. Tr. 209. Her past relevant work experience is in janitorial 

services. Tr. 209. Haight alleges she is unable to work due to: a back injury, depression, 

deafness in her right ear, bi-polar disorder, major back problems, and hepatitis C. Tr. 208. Her 

treating physician diagnosed her with: degenerative disc disease/scoliosis; arthritis in the hands, 

back, and neck; mild-to-moderate bilateral hearing impairment at 250–8,000 Hertz in her right 

ear; and morbid obesity. Tr. 343. Haight also alleges that these impairments cause her pain and 

other symptoms. Tr. 208.

DISABILITY ANALYSIS

Disability is the “inability to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can be expected to result in death 

 1

 Citations “Tr.” refer to pages in the certified transcript of the administrative record filed on 

May 3, 2016. ECF #12.
3 – OPINION & ORDER

or which has lasted or can be expected to last for a continuous period of not less than 12 

months.” 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to 

determine whether a claimant is disabled within the meaning of the Act. Lounsburry v. 

Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098–

99 (9th Cir. 1999)); 20 CFR §§ 404.1520, 416.920.

At step one, the ALJ determines whether the claimant is performing substantial gainful 

activity. If so, the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i) & (b), 416.920(a)(4)(i) 

& (b).

At step two, the ALJ determines whether the claimant has “a severe medically 

determinable physical or mental impairment” or combination of impairments that meets the 12-

month durational requirement. Id. §§ 404.1520(a)(4)(ii) & (c), 416.920(a)(4)(ii) & (c). Absent a 

severe impairment or combination of impairments, the claimant is not disabled. Id.

At step three, the ALJ determines whether the impairment or combination of impairments 

meets or equals an impairment listed in 20 CFR Pt. 404 Subpt. P, App. 1 (Listing of 

Impairments). 20 CFR §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d). If the impairment

or combination of impairments is determined to meet or equal any listed impairment, the 

claimant is disabled. Id.

If adjudication proceeds beyond step three, the ALJ evaluates medical and other relevant 

evidence in assessing the claimant's residual functional capacity (“RFC”). The claimant's RFC is 

an assessment of work-related activities the claimant may still perform on a regular and 

continuing basis, despite the limitations imposed by her impairments. Id.

§§ 404.1520(e), 416.920(e); Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184 (July 2, 

1996).
4 – OPINION & ORDER

At step four, the ALJ uses the RFC to determine whether the claimant can perform past 

relevant work. 20 CFR §§ 404.1520(a)(4)(iv) & (e), 416.920(a)(4)(iv) & (e). If the claimant 

cannot perform past relevant work, then at step five the ALJ determines whether the claimant can 

perform other work in the national economy. Id. §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) 

& (g).

The claimant bears the initial burden of establishing disability. Lockwood v. Comm'r of 

Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010) (quoting Tackett, 180 F.3d at 1100)). If 

the process reaches step five, however, the burden shifts to the Commissioner to show that jobs 

exist in the national economy within the claimant's RFC. Id. If the Commissioner meets this 

burden, then the claimant is not disabled; otherwise, the claimant is disabled. 20 CFR 

§§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g).

ALJ’S FINDINGS

At step one, the ALJ determined that Haight has not engaged in substantial gainful 

activity since her alleged onset date, April 1, 2009. Tr. 14. 

At step two, the ALJ determined that Haight had the following severe impairments: 

“degenerative disc disease/scoliosis, morbid obesity, and mild-to-moderate hearing impairment 

bilaterally at 250-8000 Hz.” Id.

At step three, the ALJ determined that Haight did not have an impairment or combination 

of impairments that met or equaled any listed impairment. Tr. 15. The ALJ found there was a

lack of medical evidence showing Haight’s degenerative disc disease/scoliosis met or medically 

equaled listing 1.04, Disorders of the Spine, because there was “no evidence of nerve root 

compression, limitation of motion of the spine, and motor loss . . . accompanied by sensory or 

reflex loss.” Id. He found Haight’s bilateral, mild-to-moderate hearing loss in her right ear did 
5 – OPINION & ORDER

not meet or medically equal listing 2.08 as the medical evidence did not indicate a speech 

discrimination score of 40 percent or less in her left ear. Id. The ALJ also acknowledged that, 

while there is no medical listing for morbid obesity, SSR 02-1p requires its effects to be 

considered when evaluating Haight’s limitations. Tr. 15; SSR 02-1p, 2002 WL 34686281 (Sept. 

12, 2002) (Titles II and XVI: Evaluation of Obesity). 

The ALJ next determined Haight’s RFC:

[Haight] has the residual functional capacity to perform light work as defined in 

20 CFR 404.1567(b) and 416.967(b), except that she requires a sit/stand option at 

will. She is limited to no exposure to workplace noise in excess of that allowable 

under OSHA regulations at 29 CFR without the use of appropriate hearing 

protection. When occupational noise is less than proscribed by 29 CFR, the 

individual’s exposure is limited to occasional.

Tr. 15.

At step four, the ALJ determined that Haight’s RFC prevented her from performing her 

past relevant work. Tr. 19.

At step five, based on Haight’s age, education, RFC, and the testimony of a vocational 

expert (“VE”), the ALJ determined that Haight was capable of performing work as a basket 

filler, bench assembler, or assembler, electrical accessories. Tr. 19–20. Accordingly, the ALJ 

concluded that Haight was not disabled under the Act and rejected Haight’s claims for DIB and 

SSI. Tr. 20.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if it is based on proper 

legal standards and is supported by substantial evidence in the record. 42 USC § 405(g); Lewis 

v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). “Substantial evidence means more than a mere 

scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Valentine v. Comm’r Soc. Sec. Admin., 574 
6 – OPINION & ORDER

F.3d 685, 690 (9th Cir. 2009) (internal quotation marks and citation omitted). Substantial 

evidence is determined from the entire record. Gutierrez v. Comm’r Soc. Sec. Admin., 740 F.3d 

519, 523 (9th Cir. 2014). In making this decision, the ALJ does not have to discuss all the 

evidence in the record. Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (quoting Howard ex 

rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.2003)).

The reviewing court must weigh the evidence that supports and detracts from the ALJ's 

conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal citation 

omitted). Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from 

the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal quotation 

marks and citation omitted). Importantly, the reviewing court “may not substitute its judgment 

for that of the Commissioner.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

DISCUSSION

Haight contends the ALJ erred by: 1) failing to provide sufficient reasons to discredit her

symptom testimony; 2) failing to provide sufficient reasons to reject her treating physician’s 

opinion; and 3) failing to base the step-five findings on substantial evidence. Each argument is 

addressed in turn below:

A. Symptom Testimony

The Act allows consideration of a claimant’s symptom testimony. However, allegations 

of pain must correspond to a medical impairment “which could reasonably be expected to 

produce the pain or other symptoms alleged . . . .” 42 USC § 423(d)(5)(A).

The ALJ performs a two-step analysis in deciding whether to accept a claimant’s 

subjective pain or symptom testimony. First, the claimant must provide objective medical 
7 – OPINION & ORDER

evidence of an impairment that could reasonably produce the pain or symptom. Lingenfelter,

504 F.3d at 1035–36; 20 CFR §§ 404.1529(a), 416.929(a). The claimant needs to show only that 

the impairment “could reasonably have caused some degree of the symptom,” and not that the 

impairment “could reasonably be expected to cause the severity . . . she has alleged.” Garrison 

v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (internal quotation marks and citation omitted). 

Second, the ALJ must assess the credibility of the claimant’s testimony regarding the 

severity of her pain and symptoms. Lingenfelter, 504 F.3d at 1036. The ALJ must provide 

“specific, clear and convincing reasons” to discount a claimant’s testimony. Id.; see 

also Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically 

identify the testimony she or he finds not to be credible and must explain what evidence 

undermines the testimony.”); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (“General 

findings are insufficient; rather, the ALJ must identify what testimony is not credible and what 

evidence undermines the claimant’s complaints.”).2

 

Haight argues the ALJ failed to provide clear and convincing reasons for rejecting her 

symptom testimony in three respects. Plaintiff’s Opening Brief, ECF #20, at 13. First, she 

argues the medical record does not support the ALJ’s conclusion that there was not objective 

evidence supporting her pain symptoms. Id. at 15–16. Second, she argues two of the ALJ’s 

conclusions—that her receipt of unemployment benefits and her potential pecuniary motive in

applying for DIB and SSI were damaging to her credibility—were improper. Id. at 15–16. 

Third, she argues the ALJ incorrectly considered her activities of daily living as damaging to her 

 2

 The Commissioner disagrees that the “clear and convincing” standard should control the 

analysis; instead, arguing “the deferential substantial evidence standard” should control. ECF 

#22, at 5, n.1. The Ninth Circuit has rejected this argument. See Burrell v. Colvin, 775 F.3d 

1136–37 (9th Cir. 2014) (holding that absent evidence of malingering, the ALJ must provide 

“specific, clear and convincing reasons” to reject a claimant’s subjective testimony).
8 – OPINION & ORDER

credibility. Id. at 16. Although the ALJ indeed erred in some respects, he otherwise provided

clear and convincing reasons to find Haight’s testimony was less than fully credible. 

1. Medical Record

While a claimant’s statements regarding symptom severity “may not be disregarded 

solely because they are not substantiated by objective medical evidence,” the ALJ may use a lack 

of medical evidence in determining credibility. Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 

1219, 1227 (9th Cir. 2009) (internal quotation marks omitted); SSR 96-7p, 1996 WL 374186 

(July 2, 1996); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

3

 

Here, the ALJ’s conclusion that the medical record lacked objective evidence of Haight’s 

pain and symptom testimony is supported by substantial evidence. The ALJ exhaustively 

summarized Haight’s hearing testimony and her medical records from her alleged onset date of 

April 1, 2009, through her examination by Disability Determination Services (“DDS”) 

physicians on June 30, 2013. Tr. 15–19. The ALJ provided dates, Haight’s medical complaints, 

objective test results, diagnoses, and prescriptions, and importantly, he noted gaps in treatment 

and an inconsistent prescription history. Tr. 15–19.

The ALJ then explained why this objective evidence did not support Haight’s symptom 

statements, and that the lack of support damaged Haight’s credibility regarding those statements. 

Tr. 18. The ALJ noted that the objective medical evidence was “extremely sparse” and 

inconsistent with Haight’s subjective testimony. Tr. 18. Specifically, the ALJ pointed to four 

 3 Haight argues this court should apply SSR 16-3p, 2016 WL 1119029 (March 16, 2016) instead 

of SSR 96-7p in reviewing the ALJ’s credibility determination. ECF #20, at 14–15. However, 

SSR 16-3p does not apply to ALJ decisions made before it went into effect. See Garner v. 

Colvin, 626 F. App'x 699, 701 (9th Cir. 2015) (“[W]e cannot assign error to the ALJ for failing 

to comply with a regulation that did not exist at the time.”); see also Spain v. Colvin, No. 6:15-

CV-01647-SB, 2017 WL 517795, at *5 (D. Or. Feb. 8, 2017) (declining to apply SSR 16-3p 

retroactively).
9 – OPINION & ORDER

issues. First, Haight’s hearing was “accommodated and improved with hearing aids . . . [despite] 

no loss of speech discrimination.” Id. Second, there was “no objective evidence that is 

consistent with [Haight’s] alleged 9/10 level [of] back pain.” Id. Third, nothing in the record 

suggested that Haight had been “referred for imaging studies, physical therapy, or recently 

prescribed opiates for pain by her physician” as proof of the lack of consistency between the 

medical evidence and Haight’s testimony. Id. And fourth, no imaging substantiating Haight’s 

diagnosis of degenerative disc disease/scoliosis was in the record. Tr. 16. While the record is 

open to other reasonable interpretations, this court cannot substitute its judgment that of the 

Commissioner. Parra, 481 F.3d at 746.

2. Unemployment Benefits

Receipt of unemployment benefits can damage a claimant’s credibility if the record

shows that she held herself out for full-time work, as doing so is inconsistent with claiming

disability under the Act. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161–62 (9th 

Cir. 2008). Holding oneself out for part-time work, however, is consistent with receipt of DIB 

and SSI, which only require the inability to work full-time. Id. 

The distinction is immaterial in this case, however, because it was Haight’s inconsistent 

statements that the ALJ took issue with, specifically that Haight claimed she was unable to work 

in order to obtain disability benefits, yet she represented she was able to work in order to obtain 

unemployment benefits:

The claimant testified that she lost her job –she did not stop 

working due to any impairment. However, the claimant also 

testified that she was, in fact, unable to work as of the alleged 

onset date, but held herself out as able to work in order to collect 

unemployment benefits for a year-and-a-half. Thus, the claimant 

has admitted to willfully and intentionally misleading a state 

agency in order to obtain economic benefits, or, she actually was 

able to work and is misrepresenting her functional ability at this 
10 – OPINION & ORDER

hearing. Either way, this is significantly damaging to her 

credibility.

Tr. 18. 

The record supports this conclusion. Haight testified she was laid off in April 2009 due 

to a change in management and that she applied for and received unemployment benefits from 

Oregon for a year and a half afterwards. Tr. 45–46. To maintain her benefits, Haight testified 

that she had to go online and provide proof that she was looking for work, including names and 

phone numbers of employers she contacted.4 Tr. 46. Further, Haight testified that she was able 

to work for the 78 weeks she was receiving unemployment benefits. Tr. 47. However, Haight’s 

application for disability benefits dated November 20, 2012, includes an affirmation that she 

stopped working on April 1, 2009, due to her “disabling condition.” Tr. 179. This kind of 

inconsistency is a clear and convincing reason to find Haight’s testimony less than fully credible. 

Tommasetti, 533 F.3d at 1039–40. As such, the ALJ’s reliance on it was not in error.

3. Pecuniary Motive

The ALJ stated that Haight’s application for benefits was “driven by financial 

considerations – as apparently her application for unemployment was.” Tr. 18. The ALJ based 

this conclusion on the fact that Haight’s medical records did not begin until May 13, 2011, over 

two years after her alleged onset date. Tr. 16, 179, 181, 303–05. Further, the ALJ stated that the 

May 13, 2011 date coincided with the time period when Haight lost her unemployment benefits. 

Tr. 17, 45–46. 

 4 In Oregon, eligibility for unemployment benefits requires an individual to be “able to work, is 

available for work, and is actively seeking and unable to obtain suitable work.” ORS 

§ 657.155(c) (2007). Due to the Oregon Revised Statutes (ORS) publication schedule, the 2007 

edition was in effect in 2009 when Haight applied for unemployment benefits. The quoted 

language appears unaltered in the ORS’s 2009 edition—which was in effect while Haight 

received unemployment benefits in 2010 and 2011—and the 2011 edition.
11 – OPINION & ORDER

The delay between Haight’s alleged onset date and the start of her medical records is a 

factor that the ALJ may consider when determining credibility, as discussed further below. 

However, whether Haight’s motive for her disability claim was pecuniary is immaterial and an 

improper basis to discredit her subjective testimony. Hann v. Comm’r Soc. Sec. Admin., No. 

6:15-CV-01754-HZ, 2016 WL 6647933, at *3 (D. Or. Nov. 9, 2016); Ratto v. Sec’y, Dep't of 

Health & Human Servs., 839 F. Supp. 1415, 1428–29 (D. Or. 1993). “By definition, every 

claimant who applies for Title II benefits does so with the knowledge—and intent—of pecuniary 

gain. That is the very purpose of applying for Title II benefits.” Ratto, 839 F.Supp. at 1428. As 

such, the ALJ’s reliance on Haight’s pecuniary motive was in error.

4. Activities of Daily Living

An ALJ should consider activities of daily living “that are transferable to a work setting” 

in determining a claimant’s credibility. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 

(9th Cir. 1999). However, “[t]he ALJ must make specific findings relating to [the daily] 

activities and their transferability to conclude that a claimant’s daily activities warrant an adverse 

credibility determination.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (internal quotation 

marks and citation omitted); see also Morgan, 169 F.3d at 600 (the ALJ must make “a specific 

finding” regarding transferability in order to properly discredit a claimant’s testimony). 

Here, the ALJ did not make the required specific findings. Haight’s daily activities were 

caring for her daughter, cooking, cleaning, performing other household chores, watching 

television, listening to music, reading, and walking around the mobile home park. Tr. 17–18,

50–55. Haight testified she could walk around outside for at least half an hour. Tr. 40. 

However, she had to take frequent breaks due to her alleged pain while cleaning and cooking. 

Tr. 40, 51–52. 
12 – OPINION & ORDER

The ALJ stated only that Haight’s activities of daily living “indicate[] that she is far more 

capable” than alleged. Tr. 18. At no point did the ALJ draw a connection between Haight’s

daily activities and her ability to work, nor is there any discussion regarding the transferability of 

Haight’s daily activities to a work setting. This general conclusion does not meet the specificity 

requirement set out by the Ninth Circuit in Morgan v. Commissioner, 169 F.3d 595 (9th Cir. 

1999), and Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007). As such, the ALJ erred.

5. Frequency and Extent of Treatment

The Commissioner argues that the ALJ offered another reason for finding Haight’s 

testimony less than fully credible: the difference between the “frequency and extent of 

treatment” that Haight sought. ECF #22, at 8. In support, the Commissioner points to: (1) the 

discrepancy between Haight’s alleged onset date and the start of the medical record, and (2) the 

fact that Haight did not seek additional treatment for her back pain for over a year after her initial 

complaint. Id.; Tr. 16, 18. 

In determining credibility, the ALJ may rely on the claimant’s “unexplained or 

inadequately explained failure to seek treatment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th 

Cir. 2012); see also Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (the ALJ’s 

consideration of claimant waiting nine months after being laid off to seek medical aid was a 

sufficient reason for disregarding the claimant’s testimony). 

Haight’s claims her alleged onset date is April 1, 2009, but the medical record began on 

May 13, 2011. Tr. 16. Haight does not remember how the April 2009 date became the alleged 

onset date in her DIB or SSI applications. Tr. 48. The fact that Haight did not seek treatment 

between April 2009 and May 2011 is “powerful evidence” that Haight’s pain was not severe. 

See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (it is “powerful evidence” against 
13 – OPINION & ORDER

claimant’s symptom severity testimony when the claimant did not seek some treatment). Haight

failed to seek treatment again for her back pain between May 13, 2011, and October 3, 2012, and

provided no explanation for her failure to do so. Tr. 288–90, 303–05. These unexplained 

failures to seek treatment are clear and convincing reasons for rejecting Haight’s testimony. 

In sum, although the ALJ erred in considering Haight’s activities of daily living and 

should not have considered Haight’s motive of pecuniary gain in seeking DIB and SSI, he 

provided additional clear and convincing reasons to find Haight’s testimony was less than fully 

credible. Carmickle v. Commissioner, 583 F.3d 1155, 1163 (9th Cir. 2008). Therefore, this 

court accords deference to the ALJ’s conclusion that Haight’s testimony was less than fully 

credible.

5

 See Carmickle, 533 F.3d at 1162–64 (when the ALJ provides valid reasons supported 

by substantial evidence, despite also relying on invalid reasons, the ALJ will have shown that he 

“had a proper basis” to make a negative credibility determination).

B. Treating Physician’s Opinion

The Ninth Circuit distinguishes medical opinions based on whether a treating physician, 

examining physician, or reviewing physician is the author. Garrison, 759 F.3d at 1012; 20 CFR 

§§ 404.1527(c), 416.927(c). A treating physician’s opinion is granted greater weight than an 

examining physician’s, which is granted greater weight than a reviewing physician’s opinion. Id. 

The ALJ may rely on a nontreating physician’s opinion when it conflicts with the treating 

physician’s opinion if he provides “specific and legitimate reasons supported by substantial 

evidence in the record.” Holohan, 246 F.3d at 1202 (internal quotation marks omitted). In doing 

 5 The court also notes that, although the ALJ did not consider Haight’s testimony fully credible, 

he did not discount it entirely and incorporated Haight’s testimony in the RFC determination

Haight’s RFC requires that she be allowed to sit or stand whenever needed and not be exposed to 

excessive noise without hearing protection, and limits her exposure to noise that is not excessive 

without hearing protection. Tr. 15.
14 – OPINION & ORDER

so, the ALJ is not required to discuss all the evidence in the record. Hiler, 687 F.3d at 1212. 

However, the ALJ is required to provide “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Valentine, 574 F.3d at 690 (internal quotation 

marks and citation omitted). 

On May 20, 2014, Dr. Sarver completed a RFC questionnaire in which he opined that

Haight would miss three to four workdays per month due to her symptoms, that she would need 

unscheduled breaks during the workday to relieve her symptoms, and that she would be off task 

up to 25% on a typical workday. Tr. 343–44. The ALJ gave Dr. Sarver’s questionnaire 

responses little weight because they were “inconsistent with his medical records” and Dr. 

Sarver’s examination of Haight “found little to no objective limitations due to [her] degenerative 

disc disease, obesity, or other non-severe impairment.” Tr. 19. In comparison, the ALJ granted 

some weight to the opinion of DDS’ reviewing physician Dr. Richard Alley, M.D., because it 

accounted for Haight’s physical impairments, despite not including any environmental 

limitations for Haight’s hearing loss. Tr. 18. Dr. Alley opined that Haight could: sit, stand, or 

walk for six hours, with normal breaks, in an eight-hour workday; occasionally lift and carry up 

to 20 pounds, and frequently lift and carry up to 10 pounds in an eight-hour workday; and had no 

postural, manipulative, visual, communicative, or environmental limitations. Tr. 100.

Haight argues that the ALJ’s reasoning was not sufficiently specific because he “did not 

state which medical records, which examinations, and what objective limitations were missing” 

from Dr. Sarver’s opinion. ECF #20, at 11. To the contrary, the ALJ specifically stated that Dr. 

Sarver’s questionnaire responses were “inconsistent with his medical records.” Tr. 19. In

particular, the ALJ noted that at Haight’s July 2013 exam, she complained of 9/10 pain, yet Dr. 

Sarver did not prescribe narcotics for her, refer her to physical therapy, or prescribe any 
15 – OPINION & ORDER

treatment at all for that matter.6

 Id. The ALJ concluded “[t]his is inconsistent with [Dr. 

Sarver’s] opinion that the claimant would require all of the restrictions listed” by Dr. Sarver. Id.

Inconsistency with the medical record is a specific and legitimate reason to give less weight to a 

treating physician’s opinion. Tommasetti, 533 F.3d at 1040–41. 

Haight also argues the ALJ failed to consider the medical record as a whole. ECF #20, at 

13. The ALJ, however, did consider and discuss other medical records in an earlier part of his 

decision. The ALJ noted that the first instance of Haight’s back pain symptoms occurred in May 

2011, but was accompanied by normal posture and back range of motion, and Haight passed a 

straight leg test. Tr. 16, 304. He further noted that Haight’s diagnosis of a degenerative disk 

disease/scoliosis in October 2012 was not accompanied by supporting imaging. Tr. 16, 285–90. 

Haight’s back pain did not resurface in the medical record again until July 2013. Tr. 17, 336–37. 

However, the ALJ pointed out that Haight’s physical exam at that time showed normal gait and

posture, normal bilateral lower extremity strength, and no lower extremity tenderness, deformity 

or mass. Tr. 17. As the ALJ observed, “[t]here were no objective signs consistent with the 

claimant’s extreme pain allegations,” and Haight “had no additional complaints regarding her 

back through April 25, 2014. Id.

Because the ALJ provided specific and legitimate reasons for rejecting Dr. Sarver’s 

opinion, and those reasons are supported by substantial evidence in the record, the ALJ did not 

err in rejecting Dr. Sarver’s opinion.

///

 6

 The ALJ noted that “Dr. Sarver’s objective exam was normal. Tr. 17. This is not entirely 

accurate, as the medical record shows a “spine/ribs/pelvis” abnormality. Tr. 17, 336–37. It does 

not change the analysis, as there are other inconsistencies in Dr. Sarver’s medical records that 

support the ALJ’s decision.
16 – OPINION & ORDER

C. The ALJ’s Step-Five Findings

At step five, the Commissioner has the burden of proving there are jobs the claimant may 

perform based on her RFC in a “significant number” in the national economy. If not, then the 

claimant is disabled. Bowen v. Yuckert, 482 U.S.137, 141–42 (1987); 20 CFR 

§§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g). The ALJ can meet this burden by relying on 

the Medical Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2, or a VE’s testimony. 

20 CFR §§ 404.1566, 416.966. A VE’s testimony involves answering hypothetical questions 

involving an individual with the claimant’s impairments and RFC to determine: (1) if there are 

jobs the claimant can do given her limitations and RFC; and (2) the availability of those jobs

national economy. Garrison, 759 F.3d at 1011 (quoting Tackett, 180 F.3d at 1101).

Here, the ALJ relied on a VE’s testimony. Tr. 20. The ALJ presented the VE with a 

hypothetical individual with a high-school education. Tr. 67. The ALJ further limited the 

hypothetical individual in various ways based on the evidence in the record: the level of work 

that could be performed, a noise-level restriction based on OSHA regulations, and a sit/stand 

option, among other limitations. Tr. 67–70. In response, the VE provided two jobs the 

hypothetical person could perform at light work: bench assembler and assembler, electrical 

accessories. Tr. 68. The VE also mentioned a third job at light work—basket filler—but 

eliminated that job when the ALJ added the at-will sit/stand option. Tr. 68, 72 (Haight’s RFC 

required this option).

Haight argues that the ALJ’s inclusion of the basket-filler job in his decision was in error 

because the VE’s testimony eliminated that position with the sit/stand limitation. ECF #20, at 

18. The Commissioner agrees that the ALJ incorrectly included the basket-filler job, but argues 
17 – OPINION & ORDER

that the inclusion was harmless because the ALJ included two other occupations with a 

significant number of jobs. ECF #22, at 17–18.

There is no bright-line rule regarding what is and is not a significant number of jobs in 

the Ninth Circuit, but “a comparison to other cases is instructive.” Beltran v. Astrue, 700 F.3d 

386, 389 (9th Cir. 2012). For example, in other cases, the Ninth Circuit has held that 1,266 and 

1,300 regional jobs are significant. Thomas v. Barnhart, 278 F.3d 947 (9th Cir.2002); Barker v. 

Secretary of Health & Human Services, 882 F.2d 1474, 1479 (9th Cir.1989). Here, by 

comparison, there are 4,400 Oregon and 137,000 national jobs for bench assembler and 3,500 

Oregon and 140,900 national jobs for assembler, electrical accessories. Even if the 1,550 

Oregon and 187,135 national jobs for basket filler are excluded, the remaining number of jobs is 

significant. The ALJ’s erroneous inclusion of the basket filler job, therefore, is harmless. See 

Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (harmless error exists if 

“the mistake was . . . irrelevant to the ALJ’s ultimate disability conclusion”).

Haight also contends that the noise intensity levels listed in the DOT for bench assembler 

and assembler, electrical accessories, are not consistent with her RFC. Id. at 19. The RFC states 

that Haight “is limited to no exposure to workplace noise in excess of that allowable under 

OSHA regulations at 29 CFR without the use of appropriate hearing protection. When 

occupational noise is less than that proscribed by 29 CFR, [Haight’s] exposure is limited to 

occasional.”7

 Tr. 15 (emphasis added). 

 7 OSHA regulations limit occupational noise exposure to 90 decibels (dBa) per hour in an 8-hour 

workday. 29 CFR § 191095(a). If occupational noise exceeds that limit, employers must 

provide hearing protection. In addition, employers must administer a hearing conservation 

program when occupational noise exposure exceeds 85 dBa per hour in an 8-hour workday—this 

program also requires employers to provide hearing protection. 29 CFR § 1910.95(c) & (i)(1).
18 – OPINION & ORDER

The RFC does not, as Haight contends, “call[] for exposure to any occupational noise to 

less than occasional.” ECF #20, at 19 (emphasis added). Nor does it state Haight cannot use 

hearing protection when occupational noise is under the limit set by OSHA regulations. Instead, 

the RFC mandates when Haight must use hearing protection. Whether or not the noise levels of 

bench assembler or assembler, electrical accessories, exceed the limit set by OSHA is 

immaterial. If occupational noise in either line of work exceeds the OSHA limit, then Haight 

must use hearing protection. If occupational noise does not exceed the OSHA limit, then 

Haight’s exposure to occupational noise without hearing protection is limited to occasional.

In sum, the ALJ relied on the VE’s opinion, which was based on 30 years of professional 

experience. Tr. 70. The VE certified his testimony was consistent with the Dictionary of 

Occupational Titles (“DOT”). Id.; Massachi v. Astrue, 486 F.3d 1149, 1150 (9th Cir. 2007) (an 

ALJ may not rely on a VE’s testimony regarding the requirements of a particular job without 

first inquiring whether the testimony conflicts with the DOT). The VE testified that the jobs of 

bench assembler and assembler, electrical accessories, would allow for a sit/stand option and fell 

within the other hypothetical limitations. Tr. 68–71. The ALJ’s inclusion of bench assembler 

and assembler, electrical accessories, in step five is based on substantial evidence, and is 

therefore accorded deference.

///

///

///

///

///

///
19 – OPINION & ORDER

CONCLUSION

Because the ALJ gave specific, clear and convincing reasons for discrediting Haight’s 

testimony, provided specific and legitimate reasons for rejecting the medical opinion of Haight’s 

treating physician, and did not err at step five of the sequential analysis, he did not err. The 

Commissioner’s final decision denying Haight’s DIB and SSI applications is therefore 

AFFIRMED.

IT IS SO ORDERED.

DATED this 14th day of April, 2017.

 /s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge