1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JUAN LEONARDO FULLER,

Plaintiff, Case No. 6:15-cv-01896-MC

 v. OPINION AND ORDER

CAROLYN W. COLVIN, Acting 

Commissioner of the Social Security 

Administration,

Defendant.

_____________________________

MCSHANE, Judge:

Juan Leonardo Fuller challenges the Commissioner’s decision denying his application for 

supplemental security income (SSI). This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 

1383(c)(3). Mr. Fuller challenges the Administrative Law Judge’s (ALJ) determination of his 

residual functional capacity (RFC). Mr. Fuller argues the ALJ erred by discrediting the opinions 

of several medical providers and Mr. Fuller’s own testimony. Additionally, Mr. Fuller challenges 

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2 – OPINION AND ORDER

the ALJ’s determination at step five of the Social Security Administration’s (SSA) sequential 

disability evaluation. At step five, Mr. Fuller alleges the ALJ identified jobs with exertion 

requirements beyond what Mr. Fuller’s RFC would allow. Because the ALJ’s determination was 

based on proper legal standards and supported by substantial evidence in the record, this Court 

AFFIRMS the Commissioner’s decision finding Mr. Fuller not disabled.

STANDARD OF REVIEW

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

proper legal standards and the legal findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 

“Substantial evidence is ‘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.’” Hill 

v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 

(9th Cir. 1997)). To determine whether substantial evidence exists, this Court reviews the 

administrative record as a whole, weighing both the evidence that supports and that which 

detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the 

evidence can reasonably support either affirming or reversing, ‘the reviewing court may not 

substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 

740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 

1996)).

DISCUSSION

The SSA utilizes a five-step sequential evaluation to determine whether a claimant is 

disabled. 20 C.F.R. §§ 404.1520, 416.920 (2012). The claimant has the burden to prove the first 

four steps. If the claimant satisfies her burden with respect to the first four steps, the burden 

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3 – OPINION AND ORDER

shifts to the Commissioner for step five. Id. § 404.1520. At step five, the Commissioner must 

show the claimant is capable of adjusting to other work existing in significant numbers in the 

national economy, given the claimant’s residual functional capacity (RFC), age, education, and 

work experience. Id. If the Commissioner fails to meet this burden, the claimant is disabled. Id. 

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). However, if the Commissioner proves the claimant can

perform other work, the claimant is not disabled. Bustamante v. Massanari, 262 F.3d 949, 953-

54 (9th Cir. 2001).

As an initial matter, Mr. Fuller alleges the ALJ’s ex parte contact with Mr. Fuller requires 

remand. Mr. Fuller’s allegation comes from the following exchange at the beginning of Mr. 

Fuller’s hearing:

ALJ: All right. Mr. Fuller, I think we’ve met once before. I’m Judge O’Brien-Persons.

Mr. Fuller: Okay. Nice to meet you again.

Tr. 33.1

Mr. Fuller argues it was reversible error when the ALJ failed to unilaterally explain her

prior interaction with Mr. Fuller. Mr. Fuller argues this even though he, himself a party to the 

alleged contact, is unable to explain or describe it either. Although he describes the contact as 

“ex parte contact,” in fact there is no indication that the contact was made in the context of this 

case or any other case. We are left to speculate whether the ALJ had run into Mr. Fuller at a 

soccer game, a social event, or a grocery store. Or perhaps the ALJ simply mistook Mr. Fuller 

for someone else. The burden is on Mr. Fuller to show the ex parte contact, if it occurred at all, 

prejudiced the ALJ’s decision. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Mr. Fuller 

makes no attempt to do so, and his brief even seems to concede he cannot meet this burden. Pl.

Opening Br. 15, ECF No. 14. Though he now demands “full disclosure regarding this contact,”

 

1

“Tr.” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.

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4 – OPINION AND ORDER

his argument as to why this court should jump down that rabbit hole is as vague as the alleged 

contact itself. Even if Mr. Fuller attempted to argue prejudice here, and he does not, the 

argument would be meritless.

Mr. Fuller brings two additional claims. First, Mr. Fuller argues the ALJ, in assessing Mr. 

Fuller’s RFC, improperly discredited the testimony of Mr. Fuller, as well as the medical opinions 

of several health providers. Second, Mr. Fuller alleges the ALJ erred in finding Mr. Fuller 

capable other work at step five of the sequential evaluation. This Court rejects both arguments. 

In assessing Mr. Fuller’s RFC, the ALJ based her determinations on the proper legal standards;

substantial evidence in the record supports those determinations. At step five, the ALJ properly 

used a Vocational Expert (VE) to identify other work suitable for Mr. Fuller and confirmed the 

VE’s testimony was consistent with the Dictionary of Occupational Titles (DOT).

I. Mr. Fuller’s RFC

The ALJ determines the claimant’s RFC “based on all of the relevant medical and other 

evidence.” 20 C.F.R. § 404.1545(a)(3) (2016). After considering the entire record, the ALJ

determined Mr. Fuller’s RFC would allow him:

to lift/carry 20 pounds occasionally and 10 pounds frequently, to walk and/or 

stand for 2 hours in an 8-hour workday, and to sit for the remaining portion of the 

workday with the opportunity to adjust his position every hour for brief 

adjustment. The claimant can occasionally climb, bend, kneel, crouch, and crawl 

due to obesity and fatigue. The claimant must avoid concentrated exposure to 

pulmonary irritants and avoid moderate exposure to workplace hazards. The 

claimant can perform simple, routine, repetitive tasks and no assembly-line work.

Tr. 20. Mr. Fuller alleges the ALJ improperly weighed the opinions of treating physician Dr. 

Kristin Bradford, Family Nurse Practitioner (FNP) Paula Dalesky, and non-examining physician 

Dr. Michael Spackman. Mr. Fuller also alleges the ALJ improperly discredited Mr. Fuller’s own 

testimony regarding his physical limitations. Mr. Fuller’s arguments lack merit. Because the

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ALJ’s findings are based on proper legal standards and supported by substantial evidence in the 

record, the ALJ’s decision is AFFIRMED. 42 U.S.C. § 405(g); Batson, 359 F.3d at 1193.

A. Dr. Kristin Bradford’s Opinion

Dr. Kristin Bradford has been Mr. Fuller’s primary care provider since at least 2010. Dr. 

Bradford, a family general practitioner, wrote two letters in support of Mr. Fuller’s disability 

application. The first letter, dated August 15, 2013, was brief, conclusory, and lacked objective 

medical evidence. Dr. Bradford simply mentioned Mr. Fuller’s hospitalization and concluded, 

“Given [Mr. Fuller’s] combination of mental and physical diagnoses, he is precluded from any 

work at this time.” Tr. 687. The first letter was essentially just a statement that Mr. Fuller is 

disabled. Whether Mr. Fuller is disabled is the ultimate issue reserved to the Commissioner. SSR 

96-5p. The ALJ may not give controlling weight or special significance to statements on the 

ultimate issue, even if the statement comes from a treating physician. Id.

The second letter, written September 27, 2013, discussed in greater detail Dr. Bradford’s 

concerns regarding Mr. Fuller’s cognitive impairments. However, Dr. Bradford also wrote, 

“Cognitive testing was not pursued . . . .” Tr. 817. Dr. Bradford is a family practice physician

and Mr. Fuller’s cognitive limitations fall outside of her area of medical expertise. The ALJ may 

give less weight to portions of a treating physician’s opinion that fall outside of the doctor’s

expertise. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1203 n.2 (9th Cir. 2001) (citing 20 

C.F.R. § 404.1527(d)(5)) (“[A] treating physician’s opinion on some matter may be entitled to 

little if any weight. This might be the case . . . if the treating physician . . . offers an opinion on a 

matter not related to her or his area of specialization . . . .”). The ALJ gave more weight to the 

neuropsychological screening administered by licensed psychologist Dr. Douglas Smythe. Dr. 

Smythe found no mental impairments that would preclude Mr. Fuller from relatively simple 

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6 – OPINION AND ORDER

employment. Tr. 838–54. The results of the neuropsychological exam present more than a mere 

scintilla of evidence supporting the ALJ’s decision to give lesser weight to portions of Dr. 

Bradford’s opinion.

Regarding Mr. Fuller’s physical limitations, the ALJ gave specific, legitimate reasons for 

giving little weight to Dr. Bradford’s opinion. Although Dr. Bradford expressed concern over 

Mr. Fuller’s cardiopulmonary functioning, Mr. Fuller’s self-reported activities surpass the 

physical limitations Dr. Bradford described. For example, around the time Dr. Bradford wrote 

both letters, Mr. Fuller was riding his bike up to two miles a day, smoking marijuana “as often as 

he can,” and smoking up to five cigarettes a day. Id. at 48, 695. These activities contradict Dr. 

Bradford’s opinion that Mr. Fuller’s cardiopulmonary limitations prevent him from working.

Treatment notes from other physicians discuss Mr. Fuller’s improved physical condition around 

the time of Dr. Bradford’s two letters. E.g., id. at 700 (“Patient does not appear short of breath. 

He is breathing easily.”). The record provides more than a mere scintilla of evidence supporting 

the ALJ’s decision to give less weight to Dr. Bradford’s opinion. Therefore, this Court may not

second-guess the ALJ’s decision. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

B. FNP Paula Dalesky’s Opinion

FNP Paula Dalesky worked with Dr. Bradford as part of the interdisciplinary team giving 

primary medical care to Mr. Fuller. On December 13, 2011, Ms. Dalesky filled out a physical 

capacity statement on behalf of Mr. Fuller. In the capacity statement, Ms. Dalesky described 

limitations that could preclude Mr. Fuller from work. For example, Ms. Dalesky opined Mr. 

Fuller’s impairments would render him unable to complete even simple, two-step tasks up to a 

third of the work day. Tr. 483.

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7 – OPINION AND ORDER

The timing of the capacity statement explains the limited weight given to it by the ALJ. 

When Ms. Dalesky filled out the capacity statement, Mr. Fuller had just been released from an 

extended hospitalization where he essentially died, was resuscitated, and then spent a lengthy 

amount of time in the intensive care unit. The ALJ explained that, while the capacity statement 

may have accurately described Mr. Fuller’s limitations at the time, there was no evidence Mr. 

Fuller’s more severe symptoms lasted longer than the twelve months required to show disability.

A nurse practitioner’s opinion is an “other source.” 20 C.F.R. § 404.1513(d). The ALJ 

may reject “other source” opinions if the ALJ provides germane reasons for doing so. Nguyen v. 

Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Despite the temporal limitations of the capacity 

statement, the ALJ mostly accepted Ms. Dalesky’s opinion. The ALJ used Ms. Dalesky’s 

assessment of Mr. Fuller’s lifting and movement capabilities almost exactly. Compare Tr. 20 

with Tr. 481–83. The ALJ only rejected Ms. Dalesky’s opinion on the duration of Mr. Fuller’s 

most severe limitations. Id. at 21–22. Mr. Fuller’s current, improved condition is a germane 

reason to reject parts of Ms. Dalesky’s opinion. As evidence of Mr. Fuller’s current, improved 

condition, the ALJ noted Mr. Fuller’s self-reported daily activities and the neuropsychological 

evaluation performed by Dr. Smythe. Mr. Fuller’s activities and Dr. Smythe’s assessment 

provide more than a mere scintilla of evidence supporting the limited weight the ALJ gave parts 

of Ms. Dalesky’s opinion. Therefore, this Court may not second-guess the ALJ’s decision.

Thomas, 278 F.3d at 959.

C. Dr. Michael Spackman’s Opinion

Mr. Fuller alleges the ALJ failed to address the opinion of non-examining physician Dr. 

Michael Spackman. However, the ALJ addressed the opinions of non-examining state 

physicians, including Dr. Spackman, and gave them partial weight. Tr. at 23. The ALJ actually 

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8 – OPINION AND ORDER

imposed greater limitations on Mr. Fuller’s ability to work than those suggested by Dr. 

Spackman. For example, Dr. Spackman opined Mr. Fuller has absolutely no postural limitations.

Id. at 66. The ALJ rejected this portion of the opinion and incorporated postural limitations into 

Mr. Fuller’s RFC. Mr. Fuller does not challenge the ALJ’s introduction of postural limitations 

into his RFC.

Mr. Fuller’s allegation focuses on Dr. Spackman’s 2012 Disability Determination 

Explanation, which was part of Mr. Fuller’s original, rejected claim for disability benefits. Id. at 

58–68. Specifically, Mr. Fuller alleges Dr. Spackman intended to limit Mr. Fuller to sedentary 

work. Mr. Fuller bases this allegation on Dr. Spackman’s application of the Medical-Vocational 

Rules. It is true Dr. Spackman listed “sedentary” as Mr. Fuller’s maximum sustained work 

capability, id. at 67, but he did so in the context of finding Mr. Fuller “not disabled,” id. at 68.

Mr. Fuller does not attempt to explain how or why Dr. Spackman’s application of the MedicalVocational Rules should have changed the ALJ’s determination. Instead, Mr. Fuller simply 

argues the ALJ failed to address Dr. Spackman’s opinion at all. As explained above, that 

allegation is false, and the ALJ in fact imposed more limitations than Dr. Spackman suggested.

D. Mr. Fuller’s Testimony

The ALJ found less than credible Mr. Fuller’s testimony on his own limitations.

2

The 

ALJ is not “required to believe every allegation of disabling pain, or else disability benefits 

would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina 

v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th 

Cir.1989)). The ALJ “may consider a wide range of factors in assessing credibility.” Ghanim v. 

 

2

Effective March 16, 2016, the Commissioner superseded Social Security Rule (“SSR”) 96-7p governing the 

assessment of a claimant’s “credibility” and replaced it with a new rule, SSR 16-3p. See SSR 16-3p, available at 

2016 WL 1119029. SSR 16-3p eliminates the reference to “credibility,” clarifies that “subjective symptom 

evaluation is not an examination of an individual’s character,” and requires the ALJ to consider of all of the 

evidence in an individual’s record when evaluating the intensity and persistence of symptoms. Id. at *1-2. 

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Colvin, 12-35804, 2014 WL 4056530, at *7 (9th Cir. Aug. 18, 2014). These factors can include 

“ordinary techniques of credibility evaluation,” id., as well as:

(1) whether the claimant engages in daily activities inconsistent with the alleged 

symptoms; (2) whether the claimant takes medication or undergoes other 

treatment for the symptoms; (3) whether the claimant fails to follow, without 

adequate explanation, a prescribed course of treatment; and (4) whether the 

alleged symptoms are consistent with the medical evidence. 

Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.2007). Here, the ALJ supported her

credibility determination with references to several of the above factors. Specifically, the ALJ 

noted Mr. Fuller’s daily activities and the objective medical evidence in the record that 

contradicts Mr. Fuller’s testimony.

Mr. Fuller testified his cardiopulmonary function is so limited he has difficulty walking

up the ten steps to his apartment without getting winded. Tr. 40. However, Mr. Fuller’s selfreported daily activities include riding his bike up to two miles and walking around town. 

Despite Mr. Fuller’s testimony on his of shortness of breath, he smokes marijuana “as often as he 

can” and smokes up to five cigarettes a day. Id. at 48, 695. These are “specific, clear and 

convincing reasons” for rejecting portions of Mr. Fuller’s testimony. Vasquez v. Astrue, 572, 

F.3d 586, 591 (9th Cir. 2009) (quoting Smolen v. Charter, 80 F.3d 1273, 1282 (9th Cir. 1996)).

Third-party reports in the record confirm his daily activities. E.g., Tr. 208–15. Additionally, 

objective medical reports in the record describe Mr. Fuller’s improved cardiopulmonary 

functioning. E.g., Tr. 1003 (“He denies any . . . shortness of breath.”). Although Mr. Fuller 

would interpret the record differently, the ALJ’s rational conclusion must be upheld. Burch v. 

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (where the evidence is susceptible to more than one 

rational interpretation, the Commissioner’s conclusion must be upheld).

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II. The ALJ’s Step-Five Burden

At step five, the ALJ has the burden “to identify specific jobs existing in substantial 

numbers in the national economy claimant can perform despite [the claimant’s] identified 

limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). The ALJ may enlist 

testimony from a VE to help identify potential suitable employment opportunities for the 

claimant. 20 C.F.R. § 404.1566(e). If the ALJ uses a VE, the ALJ must ask the VE if the expert’s 

testimony conflicts with the DOT. SSR 00-4p. If the VE’s testimony conflicts with the DOT, the 

ALJ must obtain “a reasonable explanation for any deviation.” Massachi v. Astrue, 486 F.3d 

1149, 1153 (9th Cir. 2007).

Mr. Fuller’s Opening Brief claims, “The ALJ did not ask, nor did the VE testify that his 

[sic] testimony was either consistent nor [sic] inconsistent with the [DOT].” Pl. Opening Br. 4, 

ECF No. 14. During Mr. Fuller’s administrative hearing, however, the ALJ specifically asked the 

VE, “has your testimony been in accordance with the DOT . . . ?” Tr. 56. The VE answered, 

“Yes, your Honor.” Id. The ALJ thus satisfied the requirements of SSR 00-4p. Beyond the 

requirements of SSR 00-4p, Mr. Fuller essentially argues the VE was wrong about her 

testimony’s consistency with the DOT.

Mr. Fuller alleges the VE identified jobs with exertion requirements that Mr. Fuller’s 

RFC will not allow. Each job identified for Mr. Fuller is “light work” according to the DOT. The 

DOT defines “light work” as follows:

Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force 

frequently, and/or a negligible amount of force constantly (Constantly: activity or 

condition exists 2/3 or more of the time) to move objects. Physical demand 

requirements are in excess of those for Sedentary Work. Even though the weight 

lifted may be only a negligible amount, a job should be rated Light Work: (1) 

when it requires walking or standing to a significant degree; or (2) when it 

requires sitting most of the time but entail pushing and/or pulling of arm or leg 

controls; and/or (3) when the job requires working at a production rate pace 

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11 – OPINION AND ORDER

entailing the constant pushing and/or pulling of materials even though the weight 

of those materials is negligible. NOTE: The constant stress and strain of 

maintaining a production rate pace, especially in an industrial setting, can be and 

is physically demanding of a worker even though the amount of force exerted is 

negligible.

DOT Appendix C. Comparing the above definition with Mr. Fuller’s RFC, there is nothing 

incompatible about the two. Nevertheless, Mr. Fuller alleges “light work” requires more standing 

and walking than his RFC would allow.

Mr. Fuller’s RFC allows him to stand or walk for up to two hours per eight-hour 

workday. The DOT does not specify how many hours per day an employee will be expected to 

stand or walk. “Light work” may frequently require standing or walking, but “light work” can

also involve sitting most of the time. Mr. Fuller’s RFC allows him to sit most of the time.

Curiously, Mr. Fuller does not cite the DOT to support his argument that the DOT’s 

definition of “light work” conflicts with his RFC. Instead, Mr. Fuller cites the glossary at the end 

of SSR 83-10, which clarifies the way judges should approach step five. According to SSR 83-

10, light work “requires a good deal of walking or standing” and the ability to frequently lift or 

carry objects up to ten pounds. SSR 83-10’s definition of “frequent” adds, “[T]he full range of 

light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-

hour workday.” Mr. Fuller argues these definitions together mean “light work” requires at least 

six hours of standing or walking each workday. Even assuming Mr. Fuller’s interpretation is 

correct, his argument fails because SSR 83-10’s definitions are not controlling in this case.

SSRs deserve “some deference,” but only if they remain consistent with the Social 

Security Act and its implementing regulations. Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th 

Cir. 2006). To the extent SSR 83-10’s definitions apply at all, they merit deference only as far as 

they mirror the SSA’s regulations. The SSA’s regulations and the DOT omit any specific 

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12 – OPINION AND ORDER

enumeration of the hours one must stand or walk during the workday. Mr. Fuller’s interpretation 

of SSR 83-10 would have this Court read six-hours-per-day standing and walking requirements 

into the DOT where they do not currently exist. Therefore, even if correct, Mr. Fuller’s 

interpretation of SSR 83-10 departs from the regulations and deserves no deference in this case.

VE testimony cannot realistically avoid every conceivable implicit conflict with the 

DOT. Put convincingly by the Fifth Circuit, “[C]laimants should not be permitted to scan the 

record for implied or unexplained conflicts between the specific testimony of an expert witness 

and the voluminous provisions of the DOT.” Carey v. Apfel, 230 F.3d 131, 147–46 (5th Cir. 

2000). Mr. Fuller’s argument is exactly the type described by the Fifth Circuit. Mr. Fuller 

correctly points out minor inconsistencies between the regulations, the DOT, SSR 83-10, and

other administrative documents. However, Mr. Fuller’s RFC is fully compatible with the DOT’s 

definition of “light work.” Therefore, when the ALJ ascertained the VE’s testimony was 

consistent with the DOT, the ALJ satisfied her step-five burden.

CONCLUSION

The ALJ based her decision on the proper legal standards and supported her findings with

substantial evidence in the record. Therefore, this Court AFFIRMS the Commissioner’s final 

decision denying Mr. Fuller SSI disability benefits.

IT IS SO ORDERED.

DATED this 15th day of December, 2016.

 _______/s/ Michael McShane______

Michael McShane

United States District Judge

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