PAGE 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KEVIN RICHARD BULGER, 

 Plaintiff, 

 v. 

CAROLYN W. COLVIN, 

Commissioner of Social Security, 

 Defendant. 

Case No. 6:15-cv-01873-SI 

OPINION AND ORDER

Kathryn Tassinari and Drew L. Johnson, 1700 Valley River Dr., Eugene, OR 97401. Of 

Attorneys for Plaintiff. 

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

Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, 

OR 97204; Jordan D. Goddard, Special Assistant United States Attorney, OFFICE OF THE 

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

Mailstop 221A, Seattle, WA 98104. Of Attorneys for Defendant. 

Michael H. Simon, District Judge.

Kevin Richard Bulger (“Plaintiff”) seeks judicial review of the final decision of the 

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

for supplemental security income (“SSI”) under Title XVI of the Social Security Act. For the 

following reasons, the Court REVERSES the Commissioner’s decision and REMANDS for 

further proceedings consistent with this opinion. 

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PAGE 2 – OPINION AND ORDER 

STANDARDS 

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 filed an application for SSI on May 15, 2012, alleging disability beginning 

September 22, 2011. AR 93. He was 45 years old at the alleged disability onset date. Id. He 

alleged disability due to back pain from a herniated disc. Id. The Commissioner denied the claim 

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initially and upon reconsideration; Plaintiff thereafter requested a hearing before an 

Administrative Law Judge (“ALJ”). AR 129. An administrative hearing was held on April 4, 

2014, and the ALJ subsequently ruled that Plaintiff was not disabled under the Social Security 

Act. AR 14-29. The Appeals Council denied Plaintiff’s request for review, making the ALJ’s 

decision the final decision of the Commissioner. AR 1-4. 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. 

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. 

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PAGE 4 – OPINION AND ORDER 

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 

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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PAGE 5 – OPINION AND ORDER 

C. The ALJ’s Decision 

 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 

since May 15, 2012, the date of application. AR 19. The ALJ noted that Plaintiff’s part-time 

work as a waiter for a small restaurant, which he began in April 2013, does not amount to 

substantial gainful activity based on Plaintiff’s earnings. Id. At step two, the ALJ found that 

Plaintiff had the following severe impairments: “degenerative disc disease of the lumbar spine 

with radiculopathy; thoracic neuritis; status post multiple arthroscopies to the knees; and major 

depression disorder.” Id. At step three, the ALJ ruled that Plaintiff did not have an impairment or 

combination of impairments that met or medically equals the severity of one of the listed 

impairments in the regulations. Id.

 The ALJ next determined Plaintiff’s RFC. The ALJ found that Plaintiff retained the 

capacity to perform light work as defined in 20 C.F.R. § 416.967(b), with the following 

limitations: “[Plaintiff] can stand and walk four hours in an eight-hour workday but needs 

freedom to shift between positions to manage pain; occasionally climb ladders, scaffolds, stairs 

and ramps; occasionally stoop, kneel, crouch and crawl; and he is limited to simple work tasks.” 

AR 21. In reaching this decision, the ALJ afforded substantial weight to the opinion of state 

agency medical consultants Dr. Leslie E. Arnold, Dr. Martin Kehrli, and Dorothy 

Anderson, Ph.D. AR 21. The ALJ also considered the medical testimony of Dr. Mary Gabriele, 

Dr. Andrew Kokkino, Dr. Gregory M. Phillips, and Scott Pengelly, Ph.D., and the lay witness 

testimony of Nancy Brown and Dirk Anderson. AR 22-24. Furthermore, the ALJ found that 

Plaintiff’s statements about the “intensity, persistence and limiting effects of [his] symptoms” 

were not entirely credible. AR 22. 

 At step four, the ALJ determined that Plaintiff is unable to perform any past relevant 

work. AR 24. At step five, relying on the testimony of a vocational expert (“VE”), the ALJ 

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concluded that Plaintiff was “able to perform the requirements of representative occupations”—

such as dispatcher, information clerk, and stationary cashier for ticket sales that are 

intermittent—that exist in significant numbers in the national economy. AR 25-26. The ALJ 

noted that the VE testified that the “nature and independence” of the three jobs would afford 

Plaintiff “quite a bit of flexibility or opportunity to shift between positions to manage pain.” AR 

25. Thus, the ALJ ruled that Plaintiff is not disabled. AR 26. 

DISCUSSION 

Plaintiff argues the ALJ erred by: (A) failing to credit the medical opinion of his treating 

neurosurgeon; (B) failing to give clear and convincing reasons for rejecting Plaintiff’s testimony; 

(C) failing to develop the record regarding Plaintiff’s mental impairments; and (D) making an 

improper step five determination. 

A. Medical Opinion Evidence 

 On March 15, 2012, Dr. Andrew Kokkino, Plaintiff’s treating neurosurgeon, conducted 

an examination of Plaintiff’s back and lower extremities. AR 251. In the “subjective” section of 

his opinion (“Opinion”) documenting Plaintiff’s complaints, Dr. Kokkino noted that Plaintiff 

reported continued pain in his lower back and right leg that rendered him “unable to return to 

work at Amtrak.” Id. In the “plan” section of his Opinion, Dr. Kokkino stated, “Given the fact 

that he has a lumbar radiculopathy that is not resolving, obviously he cannot work.” Id. The ALJ 

characterized Dr. Kokkino’s Opinion as follows: “Dr. Kokkino reported that [Plaintiff] was 

unable to return to his job with Amtrak.” AR 23. 

Plaintiff argues that the ALJ failed to give clear and convincing reasons for rejecting the 

uncontradicted Opinion of Dr. Kokkino that Plaintiff “obviously [] cannot work.” Specifically, 

Plaintiff asserts that the ALJ mischaracterized Dr. Kokkino’s Opinion by limiting it to Plaintiff’s 

employment at Amtrak when Dr. Kokkino made no such qualification. The Commissioner 

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PAGE 7 – OPINION AND ORDER 

responds that the ALJ’s interpretation was a rational one. The Commissioner points out that in 

the “subjective” section of the medical report documenting Plaintiff’s complaints, Dr. Kokkino 

noted that Plaintiff alleged only that he was “unable to return to work at Amtrak.” The 

Commissioner argues that it was rational for the ALJ to consider Plaintiff’s subjective 

complaints when interpreting Dr. Kokkino’s Opinion and, given this context, to limit that 

Opinion to Plaintiff’s work at Amtrak. 

It is the ALJ’s responsibility to resolve ambiguities in the record and conflicts in medical 

evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). “Where evidence is 

susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 

upheld.” Burch, 400 F.3d at 679; see also Tackett, 180 F.3d at 1098 (“If the evidence can support 

either outcome, the court may not substitute its judgment for that of the ALJ.”). Here, the ALJ’s 

interpretation of Dr. Kokkino’s March 2012 Opinion is a rational one. The ALJ’s decision shows 

the ALJ did not reject Dr. Kokkino’s Opinion, as Plaintiff alleges; instead, the ALJ interpreted it 

to mean Plaintiff was unable to continue work at Amtrak, not in general. The context in which 

Dr. Kokkino opined that Plaintiff could not work—after Plaintiff reported he was unable to 

return to his job at Amtrak—supports the ALJ’s interpretation. Although Plaintiff’s interpretation 

of Dr. Kokkino’s Opinion may also be a reasonable one, the Court must uphold the ALJ’s 

interpretation if it is rational. Thus, the ALJ did not err by interpreting Dr. Kokkino’s Opinion to 

mean that Plaintiff was unable to return to work at Amtrak. 

B. Plaintiff’s Credibility 

 Plaintiff contends that the ALJ erred in finding some of Plaintiff’s statements regarding 

the severity of his symptoms and their resulting limitations not to be fully credible. The 

Commissioner concedes that the ALJ failed to provide sufficient reasons for discounting 

Plaintiff’s symptom testimony. The Commissioner argues, however, that the error is harmless 

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because the ALJ accounted for Plaintiff’s symptom complaints in the RFC assessment. The 

Court disagrees. 

An ALJ’s legal error is harmless when it is “inconsequential to the ultimate nondisability 

determination.” See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). For example, “[a]n 

ALJ’s failure to take into account a severe impairment is harmless where the ALJ considers 

resulting limitations at a later part of the sequential analysis.” Schwanz v. Colvin, 2014 WL 

4722214 (D. Or. Sept. 22, 2014). The harmless error analysis is fact-intensive, and harmlessness 

must be analyzed in light of the circumstances of the case, viewing the record as a whole. See id.; 

Robbins, 466 F.3d at 885. 

Plaintiff asserts that the ALJ failed to consider several of Plaintiff’s symptom statements 

when making the RFC finding. The Court addresses each in turn. 

1. Walking and standing limitations 

Plaintiff disputes the ALJ’s finding that Plaintiff could engage in a total of four hours of 

walking and standing per day. Plaintiff’s testimony, however, establishes a stand-and-walk 

limitation of between two and four hours in an eight-hour workday. When asked how long he 

could stand or walk before needing to get off his feet, Plaintiff testified, “I work the four hour 

shifts at the restaurant, can I do that, yes, yes, I can.” AR 63. Other testimony by Plaintiff makes 

his conclusions about a four-hour stand-and-walk limitation less clear. For example, Plaintiff 

indicated that working the four-hour shifts does cause him some pain and that he did not believe 

he would last the eight-hour workday were he on his feet for four hours. Id. It is clear, however, 

that Plaintiff agreed with the ALJ that the state agency medical consultant’s two-hour limitation 

was reasonable. AR 64. 

Plaintiff’s testimony establishes that he could engage in between two and four hours per 

day of standing and walking. Even if Plaintiff’s testimony unequivocally established a two-hour 

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PAGE 9 – OPINION AND ORDER 

limitation, however, any error that may have occurred due to a stand-and-walk limitation of four 

hours is harmless. The VE identified the same jobs for both two-hour and four-hour stand-andwalk limitations. AR 84-88. Therefore, the disparity is inconsequential to the ultimate 

determination and any error is harmless. 

2. Need for breaks 

Plaintiff challenges the ALJ’s RFC finding regarding Plaintiff’s need to rest or take 

breaks. Plaintiff testified that after his four-hour shifts at the restaurant, he goes home to stretch 

and lie down. AR 76. Additionally, Plaintiff asserts in his brief that he was able to rest on the job 

due to the small size and slow pace of the restaurant. As the Commissioner points out, however, 

Plaintiff did not testify that he was allowed to “rest” at his restaurant job. Rather, Plaintiff 

asserted that he is “not constantly going” during his shifts. AR 75. 

The ALJ’s findings account for Plaintiff’s testimony by affording him “freedom to shift 

between positions to manage pain.” AR 21. Additionally, the jobs identified by the VE based on 

the ALJ’s RFC finding incorporate these restrictions. The VE testified that all three jobs 

identified—dispatcher, information clerk, and stationary cashier for ticket sales—accommodate 

the RFC limitations due to their “nature,” “flexibility,” and the “independence of their work and 

their work environment.” AR 86-88. Furthermore, the VE described the work for the ticket sales 

job—with 2,900 jobs existing in Oregon and 305,000 in the national economy—as “intermittent” 

with “some flexibility” and “[n]ot this constant, constant on task.” AR 87. Thus, this job 

(stationary cashier for ticket sales) meets Plaintiff’s need to take breaks as it does not require 

Plaintiff to be constantly on task. Therefore, even if the RFC failed to account for all of 

Plaintiff’s symptom statements related to his need to rest and take breaks, that error is harmless; 

substantial evidence supports the ALJ’s finding that Plaintiff could perform at least one job that 

exists in significant numbers in the national economy. See Volkerts v. Comm’r of Soc. Sec. 

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PAGE 10 – OPINION AND ORDER 

Admin., 158 F. App’x 916, 917 (9th Cir. 2005) (holding that the ALJ did not err in finding the 

plaintiff not disabled based on the VE’s testimony that the plaintiff’s skills were transferable to 

at least one other job in the national economy); Thomas v. Barnhart, 278 F.3d 947, 950 (9th Cir. 

2002) (finding that the existence of 1,300 jobs in Oregon and 622,000 jobs in the national 

economy is a significant number of jobs); Barker v. Sec’y of Health & Human Servs., 882 F.2d 

1474, 1479 (9th Cir. 1989) (holding that 1,266 jobs regionally is a significant number of jobs); 

King v. Colvin, 2014 WL 5092216, at *11 n.3 (D. Or. Oct. 8, 2014) (asserting that where the 

plaintiff is unable to perform all jobs identified by the VE, that error is harmless if substantial 

evidence supports the finding that the plaintiff could perform at least one job in the national 

economy). 

3. Concentration, persistence, and pace 

Plaintiff argues that the ALJ erred by not incorporating his step three finding that Plaintiff 

has “moderate difficulties” with regard to “concentration, persistence or pace”—specifically, 

interference with “his ability to focus and concentrate” due to constant pain—into the RFC. 

AR 20. Plaintiff contends that the error was not harmless because a limitation to simple work 

does not account for the fact that his chronic pain does not only limit his ability to understand a 

task, but also limits his ability to stay focused on a task. See Amanti v. Commissioner, 2012 

WL 5879530, *7 (D. Or. Nov. 19, 2012) (“The question with regard to [the simple work] 

limitation is not whether Plaintiff can understand instructions, but whether she has the mental 

capacity to stay on task such that employment is available.”). This argument is well taken. 

When an ALJ makes a finding of moderate limitations in concentration, persistence, or 

pace in step three, those limitations must be reflected in the RFC assessment. Saucedo v. Colvin, 

2014 WL 4631225, at *17-18 (D. Or. Sept. 15, 2014) (failure to include limitations regarding 

concentration, persistence, or pace in the RFC is reversible error if the ALJ found such 

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PAGE 11 – OPINION AND ORDER 

limitations at step three); see also Lubin v. Comm’r Soc. Sec. Admin., 507 F. App’x 709, 712 (9th 

Cir. 2013) (“The ALJ must include all restrictions in the [RFC] determination . . . including 

moderate limitations in concentration, persistence, or pace”). An ALJ’s assessment may 

“adequately capture[ ] restrictions related to concentration, persistence, and pace where the 

assessment is consistent with restrictions identified in the medical testimony.” Stubbs–Danielson 

v. Astrue, 539 F.3d 1169, 1174 (9th Cir.2008). The medical testimony relied upon by the ALJ in 

Stubbs–Danielson found that the plaintiff retained the ability to perform simple tasks, 

notwithstanding some evidence that the plaintiff had deficiencies in pace. Id. Stubbs–Danielson

is inapplicable, however, to cases where the medical evidence establishes that the plaintiff has 

restrictions in concentration, persistence, or pace that are not captured in the RFC. See Brink v. 

Comm’r Soc. Sec. Admin., 343 F. App’x 211, 212 (9th Cir.2009) (“The medical testimony in 

Stubbs–Danielson, however, did not establish any limitations in concentration, persistence, or 

pace. Here, in contrast, the medical evidence establishes, as the ALJ accepted, that Brink does 

have difficulties with concentration, persistence, or pace. Stubbs–Danielson, therefore, is 

inapposite.”); Graybeal v. Astrue, 2011 WL 6019434, at *4 (D. Or. Nov. 2, 2011) (“[W]here 

medical testimony identifies more significant restrictions related to concentration, persistence or 

pace, an ALJ errs by formulating an RFC limiting claimant only to simple, repetitive work.”). 

In this case, the medical evidence establishes, and the ALJ accepted, that Plaintiff has 

moderate limitations in concentration, persistence, and pace. See AR 20, 108, 112. The issue, 

then, is whether the ALJ’s RFC assessment sufficiently translates the medical evidence into 

functional limitations in the RFC. The RFC limits Plaintiff to “simple work tasks” without a 

further limitation related to concentration, persistence, and pace. AR 21. An RFC that limits 

Plaintiff to simple work does not incorporate Plaintiff’s moderate difficulty with concentration, 

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persistence, and pace. Therefore, the ALJ failed fully to capture Plaintiff’s limitations as the jobs 

identified by the VE (dispatcher, information clerk, and stationary cashier for ticket sales) may 

still require focus and concentration despite being “simple work tasks.” See Brink, 343 F. App’x 

at 212 (“The hypothetical question to the vocational expert should have included not only the 

limitation to “simple, repetitive work,” but also Brink’s moderate limitations in concentration, 

persistence, or pace.”).

Because the ALJ failed to incorporate the accepted limitations in concentration, 

persistence, and pace into Plaintiff’s RFC and the subsequent hypothetical questions posed to the 

VE, the ALJ erred in relying upon the VE testimony that there were significant jobs in the 

economy that Plaintiff could perform. See Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995) 

(finding that a hypothetical question posed to a vocational expert must “include all of the 

[plaintiff’s] functional limitations, both physical and mental”); Matthews v. Shalala, 10 F.3d 678, 

681 (9th Cir. 1993) (“If a vocational expert’s hypothetical does not reflect all the [plaintiff’s] 

limitations, then the . . . testimony has no evidentiary value . . . .”). 

C. Record Development 

 Plaintiff argues that the ALJ failed adequately to develop the record regarding Plaintiff’s 

mental limitations and should have requested further testing to clarify certain medical evidence. 

The Court disagrees and finds that the record was not sufficiently ambiguous so as to require 

further development. 

The ALJ has an affirmative duty to ensure the adequate development of the record. 

Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). The duty to fully and fairly to develop the 

record ensures that the claimant’s interests are considered, even when the claimant is represented 

by counsel. Smolen, 80 F.3d at 1283. The responsibility to develop the record “rests with the ALJ 

in part because disability hearings are inquisitorial rather than adversarial in nature.” Loeks v. 

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Astrue, 2011 WL 198146 (D. Or. Jan. 18, 2011) (citing Sims v. Apfel, 530 U.S. 103, 110–11 

(2000)). The ALJ’s duty to develop the record is triggered only by “ambiguous evidence or when 

the record is inadequate for proper evaluation of the evidence.” Mayes v. Massanari, 276 

F.3d 453, 459–60 (9th Cir. 2001). The evidence is “insufficient when it does not contain all the 

information [the SSA] need[s] to make [its] determination or decision.” 20 C.F.R. § 416.920b. 

Moreover, 20 C.F.R. § 416.920b does not mandate that an ALJ request further testing. Rather, 

the regulation gives an ALJ the discretion to develop the record further by requesting a 

consultative examination, among other approaches. See id.

Here, the ALJ reviewed the medical evidence and opinions, including the psychological 

evaluation by Scott Pengelly, Ph.D. and the opinions of state agency non-examining medical 

consultants, which included that of psychological consultant Dorothy Anderson, Ph.D. AR 24. 

The ALJ also considered lay witness testimony. AR 20, 22. The ALJ specifically discussed 

Dr. Pengelly’s notes opining that Plaintiff showed some cognitive deficits and would benefit 

from pain coping skills training and spinal cord stimulation. AR 24. The ALJ also noted that he 

gave substantial weight to state agency medical consultants—which include Dr. Anderson—

regarding the impact of both medical and mental impairments on Plaintiff’s ability to work. 

AR 24. Dr. Anderson opined that Plaintiff suffered from an affective disorder that limited him to 

simple tasks. AR 108, 112. In forming her opinion, Dr. Anderson relied on Dr. Kokkino’s 

neurology examination reports, Dr. Phillips’ mental status examinations, and Dr. Pengelly’s 

surgical psychological examination. AR 107-08. 

The ALJ ultimately found that Plaintiff suffers from major depressive disorder and 

adopted Dr. Anderson’s opinion that Plaintiff was limited to simple work tasks. TR 19, 21. An 

ALJ may rely on a non-examining medical consultant’s translation of mental impairments into 

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RFC restrictions. See Stubbs-Danielson, 539 F.3d at 1174 (“The ALJ translated [Plaintiff’s] 

condition, including the pace and mental limitations, into the only concrete restrictions available 

to him—[the state agency non-examining medical consultant’s] recommended restriction to 

‘simple tasks.’”). The ALJ did not express any concern about ambiguity in the evidence. 

Additionally, Plaintiff points to nothing in Dr. Pengelly’s notes that raises an ambiguity 

sufficient to trigger the ALJ’s duty to develop the record further. Plaintiff bears the burden of 

proving his disability and does not have “an affirmative right to have a consultative examination 

performed.” Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001). The ALJ is not required to 

request clarification of a medical examination if he finds no ambiguity. See 20 CFR 416.920b. 

D. Step Five Findings and Remand 

 After the ALJ determines Plaintiff can no longer perform past relevant work, the burden 

shifts to the Commissioner to show that the claimant can perform other work that exists in 

significant numbers in the national economy, “taking into consideration the [plaintiff]’s residual 

functional capacity, age, education, and work experience.” Tackett, 180 F.3d at 1100; see also 20 

C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the 

ALJ calls a VE at this step, the ALJ “must propose a hypothetical [to the VE] that is based on 

medical assumptions supported by substantial evidence in the record that reflects each of the 

[plaintiff’s] limitations.” Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001).

Because the Court has found that the ALJ’s RFC and hypothetical posed to the VE did 

not address Plaintiff’s difficulty with concentration, persistence, and pace, the Commissioner 

erred at Step Five. Plaintiff argues that this error requires a remand for an award of benefits 

because Plaintiff’s counsel posed a hypothetical to the VE incorporating a limitation of a person 

being off-task for two hours each day and the VE testified that such a person was not 

employable. See AR 89. But Plaintiff has provided no evidence—at the hearing or otherwise—

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PAGE 15 – OPINION AND ORDER 

that two hours off task per day is an accurate estimate of Plaintiff’s limitation. See Magallanes v. 

Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (“The ALJ is not bound to accept as true the 

restrictions presented in a hypothetical question propounded by a claimant’s counsel.”). 

Therefore, further administrative proceedings are necessary to account appropriately for 

Plaintiff’s moderate limitations in concentration, persistence, and pace and then to determine 

whether those limitations preclude him from meeting the demands of competitive work. See 

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (“Administrative 

proceedings are generally useful where the record has not been fully developed, there is a need to 

resolve conflicts and ambiguities, or the presentation of further evidence may well prove 

enlightening in light of the passage of time.”). 

CONCLUSION 

The Court REVERSES the Commissioner’s decision that Mr. Bulger is not disabled 

and REMANDS for further proceedings consistent with this opinion. 

IT IS SO ORDERED. 

DATED this 28th day of November, 2016. 

 /s/ Michael H. Simon 

Michael H. Simon 

 United States District Judge 

Case 6:15-cv-01873-SI Document 17 Filed 11/28/16 Page 15 of 15