PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

GINA M. COTE,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Case No. 3:15-cv-00103-SI

OPINION AND ORDER

Merrill Schneider, Schneider Kerr Law Offices, P.O. Box 14490, Portland, OR 97293. Of 

Attorneys for Plaintiff.

Billy J. Williams, Acting United States Attorney, and Janice E. Hebert, Assistant United States 

Attorney, United States Attorney’s Office, District of Oregon, 1000 SW Third Avenue, Suite 

600, Portland, OR 97201-2902; John C. Lamont, Special Assistant United States Attorney, 

Office of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 

M/S 221A, Seattle WA 98104-7075. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Gina Marie Cote (“Plaintiff”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”) denying her application 

for disability insurance benefits. For the following reasons, the Commissioner’s decision is 

REVERSED and this case is REMANDED for further proceedings.

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 1 of 21
PAGE 2 – OPINION AND ORDER

STANDARD OF REVIEW

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

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means 

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

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

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th 

Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 

1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 

F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 

Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the 

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 

F.3d at 1226.

BACKGROUND

A. Plaintiff’s Application

Plaintiff protectively filed an application for disability insurance benefits on May 18, 

2011, alleging disability beginning on August 31, 2009. AR 180-84. She was 38 years old at the 

alleged disability onset date. See AR 180. She alleges disability due to the following medical 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 2 of 21
PAGE 3 – OPINION AND ORDER

conditions: fibromyalgia, chronic fatigue syndrome, depression, anxiety, and hypothyroidism. 

AR 209. The Disability Determinations Service (“DDS”) denied her applications initially on 

November 9, 2011 and upon reconsideration on June 29, 2012. AR 64-80, 82-102. Plaintiff 

subsequently requested a hearing before an Administrative Law Judge (“ALJ”). AR 120-21. An 

administrative hearing was held on June 17, 2013. AR 43. After considering all the evidence in 

the record, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. 

AR 22-34. The Appeals Council considered the record but declined to review the decision, 

making the ALJ’s decision the final order of the Commissioner. AR 1-7. Plaintiff now seeks 

judicial review of that decision.

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which . . . has lasted or 

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. 

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act.” 

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is 

potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential 

process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two.

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 3 of 21
PAGE 4 – OPINION AND ORDER

2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An 

impairment or combination of impairments is “severe” if it significantly 

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, 

this impairment must have lasted or be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the 

claimant does not have a severe impairment, the analysis ends. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe 

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis continues. At that point, the ALJ must 

evaluate medical and other relevant evidence to assess and determine the 

claimant’s “residual functional capacity” (“RFC”). This is an assessment 

of work-related activities that the claimant may still perform on a regular 

and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis 

proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or 

she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 4 of 21
PAGE 5 – OPINION AND ORDER

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy, “taking into consideration the claimant’s residual functional 

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 

(describing “work which exists in the national economy”). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ began his opinion by noting that Plaintiff met the insured status requirements of 

the Social Security Act through December 31, 2014. AR 24. The ALJ then applied the sequential 

process. AR 24-34. At step one, the ALJ determined that Plaintiff has not engaged in substantial 

gainful activity since August 31, 2009. AR 24. At step two, the ALJ determined that Plaintiff has 

the following medically determinable impairments: pulmonary hypertension with aortic and 

mitral valve insufficiency, hypertension, Arnold-Chiari Syndrome, colitis, knee disorder, back 

disorder, headaches, personality disorder, anxiety disorder, and affective disorder. Id. The ALJ 

determined, however, that Plaintiff does not have a severe impairment or combination of 

impairments. AR 25. The ALJ made an alternative finding that Plaintiff had the residual 

functional capacity (“RFC”) to perform a full range of light work. AR 33. The ALJ concluded 

that, under this alternative finding, Plaintiff could perform past relevant work as a bookkeeper, 

customer service representative, receptionist, and broker. AR 33. Consequently, the ALJ 

determined that Plaintiff was not disabled. Id.

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 5 of 21
PAGE 6 – OPINION AND ORDER

DISCUSSION

Plaintiff argues that the ALJ erred by: (A) rejecting all of the medical opinion evidence 

and finding all impairments to be non-severe at step two; and (B) failing to follow the sequential 

evaluation process in his alternative findings.

A. Medical Opinion Evidence at Step Two

Plaintiff argues that the ALJ erred at step two by rejecting all medical opinion evidence 

and finding that Plaintiff does not have a severe impairment. The step-two inquiry is a de 

minimis screening device to dispose of groundless claims. Yuckert, 482 U.S. at 153-54; see Webb 

v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (establishing that a step two impairment “may be 

found not severe only if the evidence establishes a slight abnormality that has no more than a 

minimal effect on an individual’s ability to work”) (emphasis in original). 

At step two, the claimant bears the burden to show the existence of a medically severe 

impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii); Hoopai v. Astrue, 

499 F.3d 1071, 1074-75 (9th Cir. 2007). In order to meet this burden, the claimant must show 

“medical evidence consisting of signs, symptoms, and laboratory findings, not only [a 

claimant’s] statement of symptoms[.]” 20 C.F.R. § 404.1508. An impairment is “not severe” if 

the medical evidence shows that the impairment “does not significantly limit [a claimant’s] 

physical ability to do basic work activities,” which includes the “abilities and aptitudes necessary 

to do most jobs.” 20 C.F.R. § 404.1521(a)-(b). After an ALJ finds any of a claimant’s 

impairments to be severe, the ALJ must continue with the sequential analysis and consider the 

effects of all of the claimant’s impairments, severe and non-severe. SSR 96-9p, available at 1996 

WL 374184, at *5.

When determining whether the medical evidence supports a finding of severity at step 

two, an ALJ is responsible for resolving conflicts in the medical record, including conflicts 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 6 of 21
PAGE 7 – OPINION AND ORDER

among medical source opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164

(9th Cir. 2008). The Ninth Circuit distinguishes between three types of medical source opinions: 

treating sources, examining sources, and reviewing sources, which are non-treating, nonexamining sources that only review a claimant’s file. Holohan v. Massanari, 246 F.3d 1195, 

1201 (9th Cir. 2001); 20 C.F.R. § 404.1527(c). Generally, a treating source opinion carries more 

weight than an examining source opinion and an examining source opinion carries more weight 

than a reviewing source opinion. Holohan, 246 F.3d at 1202; 20 C.F.R. § 404.1527(c). An ALJ 

may reject an uncontradicted medical opinion of a treating source only for “clear and 

convincing” reasons supported by substantial evidence in the record. Holohan, 246 F.3d at 1202 

(citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). If a treating source’s medical 

opinion is contradicted, however, an ALJ may reject the treating source’s medical opinion for 

“specific and legitimate” reasons supported by substantial evidence in the record. Id.

Similarly, although an ALJ is not bound by a treating source’s disability opinions, the 

ALJ cannot reject an uncontradicted treating source opinion on disability without presenting 

clear and convincing reasons for doing so. Reddick, 157 F.3d at 725. A contradicted treating 

source’s opinion on disability can only be rejected with specific and legitimate reasons supported 

by substantial evidence in the record. Id. “In sum, reasons for rejecting a treating doctor’s 

credible opinion on disability are comparable to those required for rejecting a treating doctor’s 

medical opinion.” Id.

An example of a clear and convincing reason for rejecting a medical source’s opinion is 

reliance on a claimant’s discredited subjective complaints. Costa v. Comm’r of Soc. Sec., 2013 

WL 2421700, at *1 (9th Cir. 2013) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th 

Cir. 2008)). An ALJ may also reject a medical source opinion that has internal inconsistencies 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 7 of 21
PAGE 8 – OPINION AND ORDER

within the source’s opinion statement or report. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 

Cir. 2005); Gabor v. Barnhart, 221 Fed. App’x 548, 550 (9th Cir. 2007). Additionally, an ALJ is 

not required to accept a medical source opinion that is brief, conclusory, or inadequately 

supported by clinical findings. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ properly 

rejected check-off reports that did not contain any explanation of bases for conclusions).

Here, despite finding that Plaintiff has some medically determinable impairments, the 

ALJ concluded that these impairments, individually or combined, are not severe. AR 24-25. The 

ALJ arrived at this conclusion after considering Plaintiff’s testimony regarding her symptoms, as 

well as the medical opinion evidence. AR 25. After determining that Plaintiff’s statements and 

allegations “have little to no credibility,” the ALJ discussed the medical opinion evidence. 

AR 26, 29-31. Specifically, the ALJ addressed the opinions of six doctors, all of whom found 

that Plaintiff had at least one severe impairment.

1 AR 29-32. Despite all six doctors finding that 

Plaintiff had a severe impairment or combination of impairments, the ALJ rejected these 

opinions and concluded that Plaintiff did not have a severe impairment or combination of 

impairments. AR 29-33.

1. Dr. Rania Shammas

Dr. Rania Shammas, M.D., provided the ALJ with two statements on Plaintiff’s behalf. 

AR 451-52, 458-64. First, on April 25, 2011, Dr. Shammas provided a letter “opin[ing] that 

[Plaintiff’s] impairments ‘make it very difficult for her to carry out normal daily functions.’”

AR 30 (citing AR 452). Second, in June 2011, Dr. Shammas submitted a chronic fatigue 

 

1 Because all six doctors found at least one impairment to be severe and each doctor’s 

findings are not inconsistent with the others, the Court treats their opinions as uncontradicted 

medical opinions. Thus, the ALJ must provide “clear and convincing” reasons for rejecting each 

medical opinion. The Court notes, however, that it would reach the same decision regarding the 

ALJ’s reasons if the standard were “specific and legitimate” because none of the ALJ’s reasons 

are “specific and legitimate” but not “clear and convincing.”

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 8 of 21
PAGE 9 – OPINION AND ORDER

syndrome questionnaire “indicating that [Plaintiff] is limited to less than sedentary work.” Id.

(citing AR 458-64). The ALJ “g[a]ve these statements zero weight.” Id. The ALJ came to this 

conclusion for three reasons: Plaintiff’s clinical findings are mild and not supportive of severe 

functional limitations; Dr. Shammas’s statements rely heavily on Plaintiff’s subjective reports, 

which are not reliable; and Plaintiff’s “demonstrated attitudinal problems . . . cloud the issue of 

how freely given this assessment might be.” Id.

On April 25, 2011, Dr. Shammas met with Plaintiff for the first time. See AR 459. On 

that date, Dr. Shammas wrote a general letter addressed “To whom it may concern,” stating that 

Plaintiff “has active depression, hypothyroidism and fibromyalgia that make it very difficult for 

her to carry out normal daily functions . . . .” AR 452. Dr. Shammas appears to have arrived at 

that conclusion after completing a rheumatologic evaluation of Plaintiff that same day. AR 456. 

Although there are no chart notes or records from Dr. Shammas relating to Plaintiff’s April 25, 

2011 visit, Dr. Shammas wrote a letter to her colleagues that same day describing Plaintiff’s visit 

and explaining the results of Dr. Shammas’s evaluation of Plaintiff. Id. As described in 

Dr. Shammas’s letter, Plaintiff’s statements to Dr. Shammas appear to be the basis for most of 

Dr. Shammas’s conclusions. AR 456-57 (discussing Plaintiff’s reports of pain and other 

symptoms, such as difficulty sleeping). Plaintiff’s physical exam showed that her “[h]eart and 

lung exams were unremarkable[,] [s]he had severe diffuse myofascial pain, no tender joints, no 

synovitis[,] [and] [s]he had intact strength.” AR 457. Dr. Shammas also discussed some lab 

results from November 2010, all of which were normal or negative. Id. Based on the examination 

of Plaintiff, her history, and her lab results, Dr. Shammas determined that Plaintiff’s myofascial 

pain was “consistent with fibromyalgia.” Id. Dr. Shammas also took x-rays of Plaintiff’s “Cspine, lumbar spine, hips and knees, to rule out underlying arthritis.” Id.

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 9 of 21
PAGE 10 – OPINION AND ORDER

On April 27, 2011, the lab results regarding Plaintiff’s lumbar spine, hips and pelvis, and 

knees all yielded mild, minimal, or normal findings and impressions. AR 500, 502, 503.

Plaintiff’s next visit with Dr. Shammas was on June 1, 2011. AR 455. At that visit, Plaintiff and 

Dr. Shammas discussed Plaintiff’s improvement from medication and the possibility of reducing 

the dose of that medication. Id.

Dr. Shammas subsequently completed a “Chronic Fatigue Syndrome Questionnaire” on 

June 29, 2011. AR 459-64. In this questionnaire, Dr. Shammas indicated that Plaintiff was 

diagnosed with fibromyalgia due to chronic sleep disorder, depression, anxiety, and 

hypothyroidism. AR 459. Dr. Shammas then determined that Plaintiff could sit for two hours in 

an eight-hour day, stand or walk for two hours in an eight-hour day, occasionally lift or carry 

zero to twenty pounds, and never lift or carry items greater than twenty pounds. AR 462. 

Additionally, Dr. Shammas found that Plaintiff has difficulty with information processing due to 

decreased memory and is “incapable of even low stress.” AR 462-63.

In considering the ALJ’s explanation for rejecting Dr. Shammas’s letter and 

questionnaire, the Court finds that the ALJ provided clear and convincing reasons supported by 

substantial evidence in the record for discounting Dr. Shammas’s opinion. First, the ALJ rejected 

Dr. Shammas’s letter and questionnaire because they were inconsistent with Plaintiff’s clinical 

findings, which were mild and not supportive of severe limitations. AR 30. Regarding the letter, 

Dr. Shammas wrote it after her first meeting with Plaintiff and before obtaining any laboratory 

tests or imaging results, yet Dr. Shammas concluded that Plaintiff’s impairments “make it very 

difficult for her to carry out normal daily functions.” AR 452. Dr. Shammas did not provide any 

clinical findings to support that conclusion. Id. Regarding the questionnaire, the record indicates 

that Dr. Shammas found that Plaintiff had such severe limitations despite the clinical findings 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 10 of 21
PAGE 11 – OPINION AND ORDER

being either normal or mild and minimal. AR 462-63 (discussing Plaintiff’s limitations); 

AR 500, 502, 503 (clinical findings). Because Dr. Shammas wrote the letter without referencing 

any clinical findings and because she completed the questionnaire even though the clinical 

findings were normal, mild, or minimal, the Court finds that this reason proffered by the ALJ to 

reject Dr. Shammas’s letter and questionnaire is clear and convincing and supported by 

substantial evidence in the record. See Bayliss, 427 F.3d at 1216 (“The ALJ need not accept the 

opinion of any physician . . . inadequately supported by clinical findings.”) (quoting 

Thomas, 278 F.3d at 957).

Second, the ALJ rejected the letter and questionnaire because Dr. Shammas’s statements 

rely heavily on Plaintiff’s subjective complaints, which the ALJ found to be not credible. AR 26, 

30. The ALJ’s credibility finding with respect to Plaintiff has not been challenged. Both the letter 

and the questionnaire rely heavily on Plaintiff’s subjective complaints. See AR 452 (letter), 459-

64 (questionnaire). A plaintiff’s credibility is crucial to diagnoses of fibromyalgia, depression, 

and anxiety, because such diagnoses are based on subjective complaints. See Benecke v. 

Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) (“[Fibromyalgia] is diagnosed entirely on the basis 

of patients’ reports of pain and other symptoms.”). Therefore, the Court finds that the ALJ’s 

rejection of Dr. Shammas’s letter and questionnaire because they rely heavily on Plaintiff’s 

symptom complaints is a second clear and convincing reason supported by substantial evidence 

in the record.2See Tommasetti, 533 F.3d at 1040. Because the ALJ offered clear and convincing 

 

2

The ALJ also stated that “the demonstrated attitudinal problems of the claimant cloud 

the issue of how freely given this assessment might be.” AR 30. The Court finds that this reason 

is neither clear and convincing nor supported by substantial evidence because nothing in the 

record suggests that Plaintiff negatively influenced Dr. Shammas’s assessments. Because the 

ALJ provided two other clear and convincing reasons, however, the Court finds that the ALJ 

properly rejected Dr. Shammas’s letter and questionnaire. Carmickle v. Comm’r, Soc. Sec. 

Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 11 of 21
PAGE 12 – OPINION AND ORDER

reasons supported by substantial evidence in the record, the Court upholds the ALJ’s conclusion 

regarding Dr. Shammas’s letter and questionnaire.

2. Dr. Elizabeth Whelchel

Dr. Elizabeth Whelchel, Ph.D., completed a Comprehensive Psychiatric Evaluation of

Plaintiff on September 12, 2011, at the request of DDS. AR 465-470. Dr. Whelchel diagnosed 

Plaintiff with post-traumatic stress disorder, bipolar affective disorder, moderate depression, and 

personality disorder. AR 469. Dr. Welchel also diagnosed Plaintiff with a Global Assessment of 

Functioning (“GAF”) score of 70, which indicates mild symptoms or some difficulty in social or 

occupational functioning. Id. Based on this diagnosis and examination, Dr. Whelchel determined

that Plaintiff had some limitations, notably that Plaintiff’s “[a]bility to relate and interact with 

co-workers and the public is moderately impaired” and that Plaintiff’s “[ability] to perform work 

activities without special or additional supervision is moderately impaired.” AR 469-70.

The ALJ stated that he gave Dr. Whelchel’s opinion “significant weight.” AR 30. 

Although the ALJ claimed that he gave Dr. Whelchel’s opinion “significant weight,” the ALJ 

actually gave Dr. Whelchel’s GAF score diagnosis significant weight but rejected 

Dr. Whelchel’s other diagnoses and findings. AR 30-31. The ALJ credited the GAF score, 

claiming it was “consistent with [Dr. Whelchel’s] clinical findings.” AR 30. The ALJ then 

determined, however, that “Dr. Whelchel’s clinical finding that [Plaintiff] has moderate 

difficulties getting along with co-workers and the public is not adopted, as this is inconsistent 

with the GAF score of 70 or Dr. Whelchel’s observation that [Plaintiff] established rapport and 

was cooperative.” AR 30. Additionally, the ALJ acknowledged Dr. Whelchel’s diagnoses of 

post-traumatic stress disorder, bipolar affective disorder, moderate depression, and personality 

disorder, but determined that these impairments could not be severe because a GAF score of 70

would be inconsistent with a finding of severe impairment. AR 31. Thus, the ALJ gave 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 12 of 21
PAGE 13 – OPINION AND ORDER

significant weight to Dr. Whelchel’s GAF score diagnosis but rejected the other diagnoses and 

clinical findings in Dr. Whelchel’s evaluation because those diagnoses and findings were 

inconsistent with the GAF score.

An ALJ may discredit a source opinion if that source’s opinion statement or report has 

internal inconsistencies. Melton v. Comm’r of Soc. Sec. Admin., 442 Fed. App’x 339, 341 (9th 

Cir. 2011); Gabor, 221 Fed. App’x at 550. For example, in Melton, the Ninth Circuit upheld the 

ALJ’s decision to rely upon an internal inconsistency for discrediting a doctor. Melton, 442 Fed. 

App’x at 341. Specifically, the ALJ discredited the doctor based on an evaluation form in which 

the doctor diagnosed the claimant with a GAF score of 55, which indicates “moderate” 

difficulties in social, occupational, or school functioning, but found “marked” limitations, which 

is more severe than moderate. Id. Based on the inconsistency, the ALJ discredited the doctor’s 

opinion. Id.; see also Gabor, 221 Fed. App’x at 550 (rejecting a doctor’s entire medical opinion

based on internal inconsistencies in a report).

Unlike Melton, however, here the ALJ found that Dr. Whelchel’s opinion is internally

inconsistent but still credited part of the inconsistency. The ALJ then relied on the credited part, 

namely the GAF score, to discredit the other part of the inconsistency, namely the findings of 

moderate impairments and the diagnosis of multiple disorders. The Court finds that the ALJ 

erred by crediting the GAF score but rejecting Dr. Whelchel’s diagnoses and findings based on 

an internal inconsistency with the GAF score.

The Court notes that, even if the ALJ did not err by rejecting one part of an internal 

inconsistency and crediting the other part of the inconsistency, the ALJ erred by specifically

accepting the GAF score rather than Dr. Whelchel’s diagnoses and findings. The Ninth Circuit 

has stated that a “GAF scale ‘does not have a direct correlation to the severity requirements in 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 13 of 21
PAGE 14 – OPINION AND ORDER

the [Commissioner’s] mental disorder listings.’” Doney v. Astrue, 485 Fed. App’x 163, 165 (9th 

Cir. 2012) (quoting McFarland v. Astrue, 288 Fed. App’x 357, 359 (9th Cir. 2008); see Skelton 

v. Comm’r of Soc. Sec., 2014 WL 4162536, at *10 (D. Or. Aug. 18, 2014). Moreover, although 

the GAF scale was part of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) at 

the time of Dr. Whelchel’s examination, the DSM has subsequently “dropped the GAF scale for 

‘several reasons,’ including ‘its lack of conceptual clarity’ and ‘questionable psychometrics in 

routine practice . . . .’” Skelton, 2014 WL 4162536, at *10 (quoting American Psychiatric 

Association, Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013)). “These 

facts cast doubt on the evidentiary value of GAF scores.” Schopp v. Colvin, 2014 WL 4722524, 

at *4 (D. Or. Sept. 22, 2014). Because GAF scores have suspect evidentiary value, if it were 

proper for the ALJ to reject one part of Dr. Whelchel’s internal inconsistency and credit another 

part, the ALJ should have rejected the GAF score, which “does not have a direct correlation to 

severity,” and credited the diagnoses and findings of “moderate” limitations, which Dr. Whelchel 

determined based on her examination of Plaintiff. See Doney, 485 Fed. App’x at 165.

3. Drs. K. Rudito and B. Morgan

Drs. K. Rudito, M.D., and Beverley Morgan, M.D., are state agency reviewing doctors. 

They reviewed Plaintiff’s physical impairments and completed Disability Determination 

Explanations for DDS. AR 64-102. Dr. Rudito completed an initial assessment on October 13, 

2011, and Dr. Morgan completed a reconsideration assessment on June 7, 2012. AR 80, 97.

Regarding physical impairments, both doctors opined that Plaintiff’s disorders of muscle, 

ligament, and fascia were severe. AR 72, 92. 

In determining Plaintiff’s physical RFC, Dr. Rudito concluded that Plaintiff could 

occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand and walk for a 

total of two hours, and sit for a total of six hours in an eight-hour workday. AR 74-75. Dr. Rudito 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 14 of 21
PAGE 15 – OPINION AND ORDER

noted that the two hour standing and walking limitation was restricted “[f]or the benefit of the 

doubt.” AR 75. Dr. Rudito determined that these physical limitations restricted Plaintiff to 

sedentary work. AR 79. Dr. Rudito explained the limitations, largely relying on Dr. Shammas’s 

notes and diagnoses, and focused on Plaintiff’s fibromyalgia, hypothyroidism, and chronic 

fatigue syndrome. AR 75. Dr. Rudito ultimately concluded that Plaintiff was not disabled 

because Plaintiff “has the ability to adjust to other work” that exists in significant numbers in the 

national economy. AR 79-80. Dr. Morgan agreed with Dr. Rudito, except Dr. Morgan found that 

Plaintiff could stand and walk for a total of six hours in an eight-hour workday. AR 94-95. 

Dr. Morgan then affirmed Dr. Rudito’s original determination. AR 96.

The ALJ gave “little weight” to these opinions. AR 29. The ALJ did so because “the 

evidence of record does not show that any of the claimant’s physical impairments cause more 

than minimal functional limitations.” Id.

The Court finds that the ALJ provided a clear and convincing reason supported by 

substantial evidence in the record for rejecting the opinions of Drs. Rudito and Morgan. As 

discussed above, the ALJ did not err in rejecting Dr. Shammas’s opinions. Because Drs. Rudito 

and Morgan relied upon Dr. Shammas’s notes regarding Plaintiff’s symptoms of fibromyalgia, 

hypothyroidism, and chronic fatigue syndrome, the Court finds that the ALJ did not err in 

rejecting the opinions of Drs. Rudito and Morgan.

4. Drs. VanderPlate and Hawkins

Drs. Cal VanderPlate, Ph.D., and Pamela Hawkins, Ph.D., are state agency reviewing 

doctors. They reviewed Plaintiff’s mental impairments and completed Disability Determination 

Explanations for DDS. AR 64-102. Dr. VanderPlate completed an initial assessment on 

October 18, 2011, and Dr. Hawkins completed a reconsideration assessment on June 29, 2012. 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 15 of 21
PAGE 16 – OPINION AND ORDER

AR 78, 101. Regarding mental impairments, both doctors opined that Plaintiff’s affective, 

anxiety, and personality disorders were severe. AR 72, 92. 

In determining Plaintiff’s mental RFC, Dr. VanderPlate concluded that Plaintiff had 

“sustained concentration and persistence limitations.” AR 76. Specifically, Dr. VanderPlate 

determined that Plaintiff was moderately limited in her “ability to maintain attention and 

concentration for extended periods [and] . . . ability to complete a normal workday and 

workweek without interruptions from psychologically based symptoms and to perform at a 

consistent pace without an unreasonable number and length of rest periods.” AR 76-77.

Dr. VanderPlate also concluded that Plaintiff had “social interaction limitations,” specifically in 

her “ability to interact appropriately with the general public [and] . . . ability to accept 

instructions to respond appropriately to criticism from supervisors.” AR 77. Finally, 

Dr. VanderPlate concluded that Plaintiff had an adaptation limitation because her “ability to 

respond appropriately to changes in the work setting” was moderately limited. Id.

Dr. VanderPlate further explained Plaintiff’s RFC as follows:

Sustained Concentration and Persistence:

Claimant can carry out detailed and complex tasks. Pace and 

concentration are adequate and claimant can usefully perform 

tasks, attend and concentrate for . . . two hours, and complete a 

normal work week.

Social Interactions:

Claimant can adequately deal with the public, accept supervision, 

and work in proximity with coworkers.

Adaption:

Claimant has no problems with stress tolerance and adaptive skills, 

and is able to adequately adjust to a task setting and deal with 

change.

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 16 of 21
PAGE 17 – OPINION AND ORDER

AR 78. Dr. VanderPlate noted that Plaintiff could not perform her past relevant work as a 

bookkeeper, customer service representative, receptionist, or broker due to her moderate mental 

limitations, but Dr. VanderPlate ultimately agreed with Dr. Rudito that Plaintiff was not disabled 

because Plaintiff “has the ability to adjust to other work” that exists in significant numbers in the 

national economy. AR 78-80. Dr. Hawkins agreed with Dr. VanderPlate’s RFC and explanation, 

affirming Dr. VanderPlate’s determination. AR 98-99.

The ALJ gave the opinions of Drs. VanderPlate and Hawkins “little weight.” AR 30. The 

ALJ explained that although Drs. VanderPlate and Hawkins found that Plaintiff’s mental health 

impairments are severe and cause some moderate limitations, they “opined that [Plaintiff] can 

perform detailed and complex tasks adequately and can sustain social interactions.” Id. The ALJ 

also stated that the RFC assessed by Drs. VanderPlate and Hawkins “includes no significant 

limitations, and is not consistent [with] the presence of a severe mental impairment.” Id.

The Court finds that the ALJ’s reasons for giving the opinions of Drs. VanderPlate and 

Hawkins little weight are neither clear and convincing nor supported by substantial evidence in 

the record. The ALJ states that Drs. VanderPlate and Hawkins “opined that [Plaintiff] can 

perform detailed and complex tasks adequately and can sustain social interaction.” AR 30. The 

ALJ fails to note, however, that Drs. VanderPlate and Hawkins further explained that Plaintiff 

can perform complex tasks but can only “perform tasks, attend and concentrate for . . . two 

hours.” AR 78, 99. Additionally, although Drs. VanderPlate and Hawkins indicated that Plaintiff 

can “adequately deal with the public, accept supervision, work in proximity with coworkers,” 

they did so to clarify Plaintiff’s capabilities because they determined that Plaintiff was 

moderately limited in interacting appropriately with the public and accepting instructions and 

responding appropriately to criticism from supervisors. AR 77-78, 98-99. For example, although 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 17 of 21
PAGE 18 – OPINION AND ORDER

Plaintiff is limited in her ability to respond appropriately to criticism from supervisors, she could 

still accept some supervision. Id.

Finally, contrary to the ALJ’s conclusion that the RFC includes “no significant 

limitations, and is not consistent [with] the presence of a severe mental impairment[,]”

Drs. VanderPlate and Hawkins determined that Plaintiff was “moderately limited” in five areas. 

AR 30, 76-77, 97-99. Moderate limitations are frequently consistent with the presence of a 

severe mental impairment. See 20 C.F.R. § 404.1520a(c)(4), (d)(1) (discussing the five-point 

scale for functional limitations as none, mild, moderate, marked, and extreme and noting that 

“[i]f we rate the degree of your limitation in the first three functional areas as ‘none’ or ‘mild’ 

and ‘none’ in the fourth area, we will generally conclude that your impairment(s) is not severe, 

unless the evidence otherwise indicates that there is more than a minimal limitation in your 

ability to do basic work activities”); see also Allen v. Comm’r of Soc. Sec., 498 Fed. App’x 696, 

697 (9th Cir. 2012) (“A moderate limitation in [functional areas] tends to show the presence of a 

severe mental impairment.”); see, e.g., Ropp v. Comm’r Soc. Sec. Admin., 2014 WL 2567175,

at *4-5 (D. Or. 2014) (discussing whether the ALJ adequately captured the plaintiff’s limitations 

in the RFC after determining that the plaintiff’s moderate mental limitations were severe at step 

two). Moreover, based on these moderate limitations, Drs. VanderPlate and Hawkins determined 

that Plaintiff could not perform her past relevant work, indicating that these limitations are 

significant and consistent with the presence of a severe mental impairment. Thus, the Court finds 

that the ALJ’s reasons for rejecting the opinions of Drs. VanderPlate and Hawkins are not clear 

and convincing and are not supported by substantial evidence in the record.

5. Conclusion

The Court finds that the ALJ erred by rejecting the medical opinion evidence of 

Drs. Whelchel, VanderPlate, and Hawkins at step two because the ALJ’s reasons are neither

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 18 of 21
PAGE 19 – OPINION AND ORDER

clear and convincing nor supported by substantial evidence in the record. Holohan, 246 F.3d 

at 1202.

B. Sequential Analysis in the ALJ’s Alternative Findings

Plaintiff next argues that the ALJ failed to follow the sequential evaluation process when 

making his alternative findings. After finding that Plaintiff did not have a severe impairment at 

step two, the ALJ made an alternative finding regarding Plaintiff’s RFC and ability to perform 

past relevant work. Specifically, regarding Plaintiff’s physical limitations, the ALJ determined 

that Plaintiff had the RFC “to perform a full range of light work.” AR 33. The ALJ did not find 

that Plaintiff had any mental limitations. Id. The ALJ then concluded that Plaintiff could 

“perform past relevant work as a bookkeeper, customer service representative, receptionist, and 

broker.” Id. The ALJ noted that these jobs are either skilled or semi-skilled. Id.

In light of the Court’s decision regarding the opinions of Drs. Whelchel, VanderPlate, 

and Hawkins, the Court finds that the ALJ’s RFC inadequately reflects Plaintiff’s mental 

limitations. For example, Dr. Whelchel determined that Plaintiff’s “[a]bility to relate and interact 

with co-workers and the public is moderately impaired” and that Plaintiff’s “[ability] to perform 

work activities without special or additional supervision is moderately impaired.” AR 469-70. 

Additionally, Drs. VanderPlate and Hawkins determined that Plaintiff was “moderately limited” 

in at least five areas. AR 76-77, 97-99. The ALJ’s RFC for Plaintiff did not reflect any of these 

limitations. AR 33. Because the ALJ’s reasons for discrediting Drs. Whelchel, VanderPlate, and 

Hawkins are not clear and convincing, the ALJ must consider their opinions, including their 

suggested limitations, and determine Plaintiff’s RFC accordingly.

C. Remand for Benefits or for Further Proceedings and Credit-As-True Doctrine

Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to

remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210. 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 19 of 21
PAGE 20 – OPINION AND ORDER

Although a court should generally remand to the agency for additional investigation or 

explanation, a court has discretion to remand for immediate payment of benefits. Treichler v. 

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the 

utility of further proceedings. A remand for an award of benefits is appropriate when no useful 

purpose would be served by further administrative proceedings or when the record has been fully 

developed and the evidence is insufficient to support the Commissioner’s decision. Id. at 1100. A

court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence 

that has been improperly rejected by the ALJ to determine if a claimant is disabled under the Act. 

Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court. 

Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014).

[The Ninth Circuit has] devised a three-part credit-as-true standard, 

each part of which must be satisfied in order for a court to remand 

to an ALJ with instructions to calculate and award benefits: (1) the 

record has been fully developed and further administrative 

proceedings would serve no useful purpose; (2) the ALJ has failed 

to provide legally sufficient reasons for rejecting evidence, 

whether claimant testimony or medical opinion; and (3) if the 

improperly discredited evidence were credited as true, the ALJ 

would be required to find the claimant disabled on remand.

Id. at 1020.

Ordinarily, if all three of these elements are satisfied, a district court must remand for a 

calculation of benefits. Id. If, however, “an evaluation of the record as a whole creates serious 

doubt that a claimant is, in fact, disabled,” the district court retains the “flexibility” to remand for 

further proceedings even when these elements are satisfied. Id. at 1021; see Burrell v. 

Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (remanding for further proceedings without 

analyzing whether the three factors are met “because, even assuming that they are, we conclude 

that the record as a whole creates serious doubt as to whether Claimant is, in fact, disabled”). 

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 20 of 21
PAGE 21 – OPINION AND ORDER

Moreover, when remanding for further development of the record, the district court has the 

discretion to remand on an open record or with the directive that the claimant’s testimony be 

credited as true. See Burrell, 775 F.3d at 1141 (observing that a court’s “flexibility” includes the 

option to “remand on an open record for further proceedings”) (citing Garrison, 759 F.3d 

at 1021).

As explained above, the ALJ failed to provide legally sufficient reasons for discrediting 

the opinions of Drs. Whelchel, VanderPlate, and Hawkins in analyzing whether Plaintiff has a 

severe impairment. Upon remand, the ALJ must consider these opinions, determine Plaintiff’s 

severe impairments, and proceed with the sequential analysis beyond step two. Outstanding 

issues remain, however, regarding the extent of Plaintiff’s limitations caused by her severe and 

non-severe impairments, Plaintiff’s appropriate RFC, and whether Plaintiff can perform past 

relevant work or other work that exists in sufficient numbers in the national economy.

Accordingly, this matter is remanded for further proceedings.

CONCLUSION

The Commissioner’s decision that Plaintiff is not disabled is REVERSED and 

REMANDED for further proceedings as set forth herein.

IT IS SO ORDERED.

DATED this 4th day of December, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 3:15-cv-00103-SI Document 21 Filed 12/04/15 Page 21 of 21