OPINION & ORDER – 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSEPH D. MONTI,

Plaintiff,

Case No. 6:15-cv-01499-SI

OPINION AND ORDER

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Kathryn Tassinari and Robert Baron, HARDER, WELLS, BARON, & MANNING, P.C.,

474 Willamette Street, Suite 200, Eugene, OR 97401. Of Attorneys for Plaintiff.

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

Attorney, UNITED STATES ATTORNEY’S OFFICE, DISTRICT OF OREGON, 1000 S.W. Third Avenue, 

Suite 600, Portland, OR 97204; Daphne Banay, Special Assistant United States Attorney, OFFICE 

OF THE GENERAL COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, Suite 2900 

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

Michael H. Simon, District Judge.

Joseph D. Monti (“Plaintiff”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”) denying his applications

for Social Security Income and Children’s Disability Insurance Benefits. For the reasons set forth 

below, the Commissioner’s decision is reversed and this case is remanded for further 

proceedings.

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OPINION & ORDER – 2

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 applied for Social Security Income and Children’s Disability Insurance Benefits 

in June and July 2009, respectively, alleging disability as of February 23, 2006. AR 47, 178-93, 

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OPINION & ORDER – 3

211.

1 Born in 1989, Plaintiff was 16 years old on the alleged disability onset date and 25 years 

old at the time of the second administrative hearing. AR 178, 744. He alleges disability due to 

“[d]ifficulty walking with nerve damage to the left foot due to a gun shot wound to the back,” 

posttraumatic stress disorder (“PTSD”), attention deficit/hyperactivity disorder (“ADHD”), 

depression, learning disorder, and mathematics disorder. AR 214; Pl.’s Opening Br. 1. The 

Commissioner denied his application initially and upon reconsideration, and he requested a 

hearing before an Administrative Law Judge (“ALJ”). AR 79-80, 83-92, 95-99, 103. After an 

administrative hearing, an ALJ issued an adverse decision on February 24, 2012. AR 21-75. The 

Appeals Council denied Plaintiff’s timely request for review, and Plaintiff filed a judicial 

complaint. AR 1-6.

On April 28, 2014, the Honorable Malcolm F. Marsh affirmed the ALJ’s treatment of

Plaintiff’s subjective symptom testimony and the medical evidence relating to Plaintiff’s 

physical functioning. AR 816-25. Judge Marsh, however, found that the ALJ erred regarding the

opinion of examining doctor Judith Eckstein, Ph.D. AR 825-29. Accordingly, Judge Marsh

remanded the matter for further proceedings. AR 828-29.

On February 24, 2015, a second administrative hearing was held. Plaintiff was 

represented by counsel and testified, as did a vocational expert (“VE”). AR 743-86. On April 16, 

2015, the ALJ issued a second decision, again finding Plaintiff not disabled. AR 720-33. Plaintiff 

now seeks review in this Court. 

 

1

The record before the Court constitutes nearly 1,200 pages, but with multiple incidences of 

duplication. Where evidence occurs in the record more than once, the Court generally will cite 

only to the transcript page or pages on which that information first appears.

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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, 416.920; 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.

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 

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OPINION & ORDER – 5

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 

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.

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OPINION & ORDER – 6

C. The ALJ’s Decision

The ALJ performed the sequential analysis. AR 720-33. At step one, the ALJ found that 

Plaintiff had not engaged in substantial gainful activity since the alleged onset date. AR 722. At 

step two, the ALJ concluded Plaintiff had the following severe impairments: “status post gunshot 

wound in the back, attention deficit hyperactivity disorder, learning disorder, mathematics 

disorder, dysthymia, depressive disorder NOS, rule out bi-polar disorder (most recent episode 

depressed), port-traumatic stress disorder, and cannabis dependence.” AR 723. At step three, the 

ALJ determined that Plaintiff did not have an impairment or combination of impairments that 

met or equaled a listed impairment. AR 724. 

The ALJ next assessed Plaintiff’s RFC and found that he could perform sedentary work 

with the following exceptions:

the claimant is limited to occasional climbing of ramps and stairs, although 

precluded from climbing ladders and scaffolds. The claimant is also limited to 

occasional balancing, stooping, kneeling, crouching, and crawling. In addition, he 

is limited to no exposure to hazards, such as unprotected heights and moving 

mechanical parts. The claimant is limited to simple and routine tasks consistent 

with unskilled work, as defined by the Dictionary of Occupational Titles. The 

claimant is further limited to occupations that do not require the use of 

mathematics. He is further limited to occasional interaction with supervisors and 

coworkers and superficial interaction with the public (defined as perfunctory).

AR 726. At step four, the ALJ found Plaintiff had no past relevant work. AR 731. At step five, 

the ALJ concluded that, based on the testimony of a VE, Plaintiff could perform jobs existing in 

significant numbers in the national and local economy, including small products assembler, 

electronics assembler, and computer controlled color photo printer operator. AR 731-32. Thus, 

the ALJ found Plaintiff not disabled. AR 733.

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OPINION & ORDER – 7

DISCUSSION

Plaintiff argues the ALJ erred by: (1) improperly assessing the medical opinion evidence; 

and (2) rendering an invalid RFC and step five finding.

A. Medical Opinion Evidence

Plaintiff contends that the ALJ erred in weighing the medical opinions of Dr. Eckstein 

and examining psychologist Scott Alvord, Psy.D. The ALJ is responsible for resolving conflicts 

in the medical record, including conflicts among physicians’ opinions. Carmickle v. Comm’r, 

Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit distinguishes between 

the opinions of three types of physicians: treating physicians, examining physicians, and nonexamining physicians. Generally, “a treating physician’s opinion carries more weight than an 

examining physician’s, and an examining physician’s opinion carries more weight than a 

reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). An 

examining doctor’s opinion that is not contradicted by the opinion of another physician can be

rejected only for “clear and convincing” reasons. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 

1990). If the opinion of an examining physician is contradicted by another physician’s opinion, 

the ALJ must provide “specific, legitimate reasons” for discrediting the examining physician’s 

opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 

1. Dr. Eckstein

Dr. Eckstein examined Plaintiff in November 2009. AR 517-22. Her evaluation consisted 

of a clinical interview, administration of the Wechsler Adult Intelligence Scale, and the review of 

records from Brain Goldman, M.D., dated June 1, 2004. AR 517. Dr. Eckstein assessed 

borderline intellectual functioning and diagnosed Plaintiff with ADHD, dysthymia, cannabis 

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OPINION & ORDER – 8

dependence, mathematics disorder, and learning disorder. AR 519-22. She recommended that 

Plaintiff undergo counseling. AR 522.

In September 2012, Dr. Eckstein wrote a letter at the request of Plaintiff’s attorney.

AR 1133-35. Although Dr. Eckstein did not re-examine Plaintiff, she reviewed her original 

report as well as additional documents, including Plaintiff’s school records and written lay 

statements from Plaintiff’s friend and mother. Id. In the “Discussion” section of her letter, Dr. 

Eckstein wrote: 

Mr. Monti’s homelessness as well as avoidance of people since he was shot with 

reported paranoia and anxiety while he is in groups would likely make it difficult 

for Mr. Monti to work around others without being distracted as well as the 

likelihood of Mr. Monti becoming easily irritated and displaying outbursts of 

temper as have been adequately documented in his past.

While neither of Mr. Monti’s disabilities, physical and psychological, may by 

themselves result in the likelihood of him being determined disabled, the 

combination of both his chronic pain and limited mental capabilities [given his] 

borderline range of intellectual functioning, will very likely make it difficult for 

Mr. Monti to ever be financially self supporting on a sustained basis. Counseling 

is recommended for Mr. Monti to deal with the Post-Traumatic sequelae from his 

shooting as well as to learn better executive functioning skills to handle his 

emotional difficulties.

AR 1135.

In a corresponding “Mental Residual Function Capacity Report,” Dr. Eckstein checked 

boxes reflecting that Plaintiff would be “markedly limited”

2

in his ability to carry out detailed 

instructions, maintain attention and concentration for extended periods, perform activities within 

a schedule, work in coordination with or proximity to others without being distracted by them,

complete a normal workday and workweek without interruptions from psychologically-based 

symptoms, perform at a consistent pace without an unreasonable number and length of rest 

 

2

The form defined “markedly limited” as “[a] limitation which precludes the ability to perform 

the designated activity on a regular and sustained basis, i.e., 8 hours a day, five days a week, or

an equivalent work schedule.” AR 1136.

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OPINION & ORDER – 9

periods, accept instructions and respond appropriately to criticism from supervisors, get along 

appropriately with co-workers or peers without distracting them or exhibiting behavioral 

extremes, and set realistic goals and make plans independently of others. AR 1136-37.

The ALJ afforded “[p]artial weight” to Dr. Eckstein’s opinion for five reasons: (1) “[s]he 

combines an opinion regarding physical conditions (‘chronic pain’) with mental health issues

[and] such a determination is not within the scope of her expertise”; (2) it “is not supported by 

any explanation”; (3) she “fails to put her statements in terms of functional limitations”; (4) it 

“was made before the claimant engaged in fairly consistent, although non-SGA, employment in 

2013 and in 2014”; and (5) it “lacks consistency with the overall medical record as it is based on 

third party reports that are written to advocate for the claimant, rather than being impartial 

observations.” AR 729.

As a preliminary matter, the ALJ’s decision does not distinguish between Dr. Eckstein’s 

2009 and 2012 reports. Thus, it is unclear whether the ALJ reviewed the record in its entirety. Id.

This is significant because neither the prior ALJ nor Judge Marsh reviewed or otherwise 

discussed Dr. Eckstein’s September 2012 letter on appeal, as it was not in existence at the time 

of the prior ALJ’s February 2012 decision. AR 18-36, 811-29. In addition, the ALJ failed to 

acknowledge the “Mental Residual Function Capacity Report.” Compare AR 729 (the ALJ 

concluding that Dr. Eckstein’s opinion is not phrased “in terms of functional limitations”3or 

“supported by any explanation”), with AR 517-22, 1133-38 (Dr. Eckstein’s November 2009 

 

3

The ALJ’s rejection of Dr. Eckstein’s opinion for this reason is especially curious given that “it 

is the responsibility of the ALJ, not the claimant’s physician, to determine [the RFC] and the 

ALJ’s findings of RFC need not correspond precisely to any physician's findings.” Davis v. 

Astrue, Case No. 1:10-cv-01452-CL, 2012 WL 4005553, *9 (D. Or. June 12), adopted by 2012 

WL 3614310 (D. Or. Aug. 21, 2012) (citations and internal quotations omitted); see also StubbsDanielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (the ALJ is responsible for resolving 

ambiguities in the record and translating the claimant’s impairments into concrete functional 

limitations in the RFC).

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OPINION & ORDER – 10

examination findings and objective test results, which expressly formed the basis of her

September 2012 “Mental Residual Function Capacity Report”); see also Garrison v. Colvin, 759 

F.3d 995, 1014 n.17 (9th Cir. 2014) (reversing the ALJ’s rejection of medical opinion evidence 

where “[t]he check-box forms did not stand alone: they reflected and were entirely consistent 

with the hundreds of pages of treatment notes”). Given these circumstances, the Court cannot 

conclude that the ALJ properly evaluated the medical evidence. See Vincent v. Heckler, 739 F.3d 

1393, 1395 (9th Cir. 1984) (the ALJ must explain the rejection of all relevant and probative

evidence). This reason is sufficient to conclude that the ALJ erred in regard to the consideration 

of Dr. Eckstein’s opinion.

Moreover, the ALJ’s conclusion that Dr. Eckstein’s opinion lacks consistency with the 

medical record and does not relate to her area of expertise is not supported by substantial 

evidence. AR 729. Outside of attending assessments with Drs. Eckstein and Alvord, and one 

counseling session in 2013 through Douglas County Mental Health, Plaintiff did not seek any 

treatment for his allegedly disabling mental impairments, and the ALJ relied on this as a basis to 

find Plaintiff not fully credible. AR 728. Regardless, the little medical evidence that does exist is 

largely consistent with both Dr. Eckstein’s report and the lay witness testimony of Plaintiff’s 

friend.

4

See, e.g., AR 222-29, 880, 1145-56, 1157-70. Further, the fact that Dr. Eckstein noted, 

but did not formally evaluate, Plaintiff’s physical problems does not invalidate her opinion. See

AR 1135 (Dr. Eckstein describing Plaintiff’s “chronic pain issues [as] beyond the scope of this 

evaluation to address”). This is especially true given that her “Mental Residual Function 

Capacity Report” was based exclusively on Plaintiff’s mental impairments. AR 1137-38. 

 

4 As the ALJ noted, the lay evidence from Plaintiff’s mother provides “[v]ery little 

information . . . about any limitations,” as it instead “appears to [be] a litany of complaints about 

various issues unrelated to disability, such as complaints against an attorney, the illness of her 

mother, and the release of her son’s shooter from jail.” AR 730-31; see also AR 329-32, 345-71.

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OPINION & ORDER – 11

Similarly, the fact that Plaintiff worked part-time after Dr. Eckstein authored her 

September 2012 letter is not a legally adequate basis to reject her opinion. As the ALJ 

acknowledged, Plaintiff worked from 2008 through 2011, and again in 2013 and 2014, but not at 

substantial gainful levels. AR 723, 729. Plaintiff testified that he was employed by a temporary 

agency during 2013 and 2014, but was terminated from each position due to his inability to 

sustain the requisite pace, operate within a set schedule, or take instruction from supervisors. AR

755-56, 758-69. As noted above, although the ALJ found Plaintiff not fully credible and Plaintiff 

does not challenge that finding in this appeal, there is no evidence in the record that contradicts 

the Plaintiff’s statements made during the hearing on this issue. Accordingly, without more, the 

ALJ’s conclusion that Plaintiff’s subsequent part-time work undermines Dr. Eckstein’s opinion 

is insufficient. Therefore, the ALJ erred in affording less weight to Dr. Eckstein’s opinion. 

2. Dr. Alvord

In August 2014, Dr. Alvord performed a single evaluation of Plaintiff, which consisted of 

a clinical interview, a mental status examination, and a review of Dr. Goldman’s June 2004 

report. AR 1145. Dr. Alvord diagnosed Plaintiff with PTSD, “ADHD by history,” and 

depression; Dr. Alvord also listed bi-polar disorder as a rule out possibility. AR 1149. Dr. Alvord

opined that Plaintiff would be “mildly to moderately impaired [in his] ability to follow 

instructions [and] to concentrate, persist and pace.” AR 1147. The doctor explained that Plaintiff 

would “struggle to maintain consistency in an occupational setting given anxiety, as well as 

deferred pain issues and emotional lability, irritability, anger, etc.” AR 1149. On a corresponding 

“Medical Source Statement Of Ability To Do Work-Related Activities (Mental),” Dr. Alvord 

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OPINION & ORDER – 12

endorsed “marked” limitation in only one category, the ability to interact appropriately with 

supervisors.5 AR 1152-56.

The ALJ gave “little weight” to Dr. Alvord’s opinion because it was “internally

inconsistent.” AR 729. Specifically, the ALJ found that the marked limitation assessed by Dr. 

Alvord was unwarranted because Plaintiff “referred to only doing work ‘under the table,’ which 

is inconsistent with his posting of earnings,” and “nothing in Dr. Alvord’s examination relates to 

the claimant’s interactions with supervisors, as compared to coworkers or the public.” Id.

Initially, the fact that Plaintiff reported to Dr. Alvord that he “sometimes [does] under the 

table stuff” does not establish, as the ALJ implies, that Dr. Alvord’s opinion was premised on 

incomplete information. AR 1146. Notably, Dr. Alvord did not appear to request a full work 

history from Plaintiff; rather, his examination focused on whether Plaintiff was “currently 

working” and, if not, what issues contributed to his lack of employment. AR 1146. Dr. Alvord

examined Plaintiff in the latter part of 2014; Plaintiff posted $2,427.45 in earnings that year, 

which equates to less than two weeks of full-time, minimum wage labor. AR 723, 1145. As such, 

nothing in the record contradicts Plaintiff’s statement to Dr. Alvord that he was not currently 

working or otherwise undermines the accuracy of Dr. Alvord’s findings. 

Additionally, substantial evidence does not support the ALJ’s determination that 

Dr. Alvord failed to solicit information regarding Plaintiff’s ability to interact with supervisors. 

AR 729. Indeed, Plaintiff “endorsed a history of irritability, opposition to authority, peer 

conflicts and academic struggles,” as well as being “frequently triggered to anger and panic.” 

AR 1146-47. Dr. Alvord also noted that Plaintiff’s records revealed that “he was frequently 

 

5

This form defines “marked” as “serious limitation [and] a substantial loss in the ability to 

effectively function.” AR 1152. Dr. Alvord also checked boxes reflecting moderate restriction in 

some areas; however, per the form, a moderately limited individual is “still able to function 

satisfactorily.” Id.

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OPINION & ORDER – 13

disciplined” while in school and “fired, a lot.” AR 1146. This evidence pertains to Plaintiff’s 

ability to interact with supervisors and reinforces Dr. Alvord’s marked limitation.

In sum, the ALJ committed legal error that was not harmless in weighing the medical 

opinion evidence from Drs. Eckstein and Alvord. See Stout v. Comm’r, Soc. Sec. Admin., 454 

F.3d 1050, 1054 (9th Cir. 2012) (only mistakes that are “nonprejudicial to the claimant or 

irrelevant to the ALJ’s ultimate disability conclusion” are harmless). 

B. RFC and Step Five Finding

Plaintiff argues that the ALJ’s RFC and step five finding are erroneous because the 

dispositive hypothetical question posed to the VE did not account for all of his limitations. This 

argument is well-taken. As discussed herein, the ALJ wrongfully rejected the opinion of Drs. 

Eckstein and Alvord. Because the ALJ failed to account for the concrete work-related limitations

of function described by these medical sources in Plaintiff’s RFC, the ALJ erred in relying upon 

the VE’s testimony. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (if a VE’s 

“hypothetical does not reflect all the claimant’s limitations, then the . . . testimony has no 

evidentiary value”) (citations and internal quotation marks omitted). As a result, the ALJ’s 

ultimate decision is not supported by substantial evidence and remand is necessary. 

C. Remand

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 (citation 

omitted). 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 

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OPINION & ORDER – 14

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, 759 F.3d at 999. The United States Court of Appeals for the Ninth Circuit articulates 

the rule as follows:

The district court must first determine that the ALJ made a legal error, such as 

failing to provide legally sufficient reasons for rejecting evidence. If the court 

finds such an error, it must next review the record as a whole and determine 

whether it is fully developed, is free from conflicts and ambiguities, and all 

essential factual matters have been resolved. In conducting this review, the district 

court must consider whether there are inconsistencies between the claimant’s 

testimony and the medical evidence in the record, or whether the government has 

pointed to evidence in the record that the ALJ overlooked and explained how that 

evidence casts into serious doubt the claimant’s claim to be disabled. Unless the 

district court concludes that further administrative proceedings would serve no 

useful purpose, it may not remand with a direction to provide benefits.

If the district court does determine that the record has been fully developed and 

there are no outstanding issues left to be resolved, the district court must next 

consider whether the ALJ would be required to find the claimant disabled on 

remand if the improperly discredited evidence were credited as true. Said 

otherwise, the district court must consider the testimony or opinion that the ALJ 

improperly rejected, in the context of the otherwise undisputed record, and 

determine whether the ALJ would necessarily have to conclude that the claimant 

were disabled if that testimony or opinion were deemed true. If so, the district 

court may exercise its discretion to remand the case for an award of benefits. A 

district court is generally not required to exercise such discretion, however. 

District courts retain flexibility in determining the appropriate remedy and a 

reviewing court is not required to credit claimants’ allegations regarding the 

extent of their impairments as true merely because the ALJ made a legal error in 

discrediting their testimony.

Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation 

marks omitted). 

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OPINION & ORDER – 15

As discussed in this Opinion and Order, the ALJ erred by failing to provide legally 

sufficient reasons, supported by substantial evidence, for disregarding Dr. Eckstein’s and 

Dr. Alvord’s opinions. The record before this Court, however, is ambiguous regarding the extent 

of Plaintiff’s allegedly disabling mental impairments. On the one hand, Plaintiff endorsed 

debilitating social anxiety and problems focusing; Plaintiff’s school records show longstanding 

issues with maintaining concentration and impulse control, and the traumatic shooting that 

Plaintiff sustained on the alleged onset date supports the existence of ongoing psychological 

conditions, such as PTSD and depression. AR 517-22, 588-600, 808, 933-1140, 1145-70. On the 

other hand, Plaintiff was consistently employed, to an extent, during 2013, engaged in a wide 

slate of daily activities, and regularly socialized with friends and engaged in romantic 

relationships. AR 222-37, 359, 508-09, 518, 521, 573, 927, 1145, 1147. In fact, although the ALJ 

did not rely on this reasoning as part of his decision, the Court notes that Plaintiff’s employment 

records demonstrate that, between May and November 2013, he worked full-time, sometimes in 

excess of 60 hours per week. AR 927. Plaintiff also testified at the hearing that “if I tell myself to 

do something, then I usually get it done.” AR 773. This evidence suggests that Plaintiff is

capable of maintaining a routine, engaging in socially appropriate behavior, taking instruction, 

and staying on task when he wants to or believes he needs to.

In light of these ambiguities, further proceedings are required to resolve this case. Upon 

remand, the ALJ must consult a medical expert to review the entire record and determine the 

onset date of any functional limitations, and, if necessary, reformulate Plaintiff’s RFC and obtain 

additional VE testimony. 

Case 6:15-cv-01499-SI Document 23 Filed 08/18/16 Page 15 of 16
OPINION & ORDER – 16

CONCLUSION

The Commissioner’s decision is REVERSED and this case is REMANDED for further 

proceedings.

IT IS SO ORDERED.

DATED this 18th day of August, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 6:15-cv-01499-SI Document 23 Filed 08/18/16 Page 16 of 16