IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

RANDY D. HUBBARD, 

Plaintiff, 

v. 

NANCY A. BERRYHILL, Acting 

Commissioner of Social Security, 

Defendant. 

AIKEN, Judge: 

Case No. 6:16-cv-00032-AA 

OPINION AND ORDER 

PlaintiffRandy Dean Hubbard brings this action pursuant to the Social Security Act ("Act"), 

42 U.S.C. § 405(g), to obtain judicial review of the Commissioner's decision denying his 

application for disability benefits under Title II ("DIB") of the Act and supplemental security income 

payments under Title XVI ("SSI") of the Act. For the reasons set forth below, the Commissioner's 

decision is reversed and remanded for immediate payment of benefits. 

BACKGROUND 

Plaintiff, now over 50 years old, suffered a spinal and traumatic brain injury in September 

2003 because of a logging accident at work. Tr. 503. Prior to plaintiffs injmy, he worked as a 

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"rigging slinger" and truck driver. Tr. 83, 326. Since his injury, the closest thing plaintiff has had 

to gainful employment is volunteer work at the Eugene Mission ("the Mission"). Tr. 540, 598, 654. 

On July 16, 2012, plaintiff applied for DIB and SSI. Tr. 238-245. Originally, he alleged disability 

beginning in 2003, Tr. 238; he later amended the onset date to 2006, Tr. 66. His application was 

denied initially and again upon reconsideration. Tr. 163-72, 17. On April 21, 2014, a hearing was 

held before an Administrative Law Judge ("ALJ"). Tr. 62-89. Plaintiff was represented by an 

attorney and testified. Id. On June 16, 2014, the ALJ issued an unfavorable decision. Tr. 42. On 

November 5, 2015, the Appeals Court denied plaintiff's request for review, rendering the ALJ's 

decision the final decision of the Commissioner. Tr. 1. Plaintiff now seeks judicial review. 

STANDARD OF REVIEW 

The district court must affirm the ALJ's decision if it is based upon proper legal standards 

and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. 

Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere scintilla but 

less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion." Gutierrez v. Comm 'r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) 

(internal quotation marks omitted). The court must weigh "both the evidence that supports and the 

evidence that detracts from the ALJ's" decision. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 

2001). 

COMMISSIONER'S DECISION 

The initial burden of proofrests upon the plaintiff to establish disability. Howard v. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability 

to engage in any substantial gainful activity by reason of any medically determinable physical or 

mental impairment which can be expected ... to last for a continuous period of not less than 12 

months[.]" 42 U.S.C. § 423(d)(l)(A). 

The Commissioner employs a five-step sequential process to determine whether a person is 

disabled under the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. At step 

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one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged 

disability onset date. Tr. 47; 20 C.F.R. §§ 404.1520(b) & 416.920(b). At step two, the ALJ found 

plaintiff had the following medically severe impairments: traumatic brain injury, cognitive disorder, 

and C6/7 spinal injmy. Tr. 48; 20 C.F.R.§§ 404.1520(c) & 416.920(c). The ALJ acknowledged 

plaintiffs medically determinable impairments of major depressive disorder, anxiety disorder, and 

borderline intellectual functioning, but found those impairments nonsevere. Tr. 48. At step three, 

the ALJ found plaintiffs impairments did not meet or medically equal one of the listed impairments 

the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 48; 20 

C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, & 416.926. 

The ALJ found plaintiff retained the residual functional capacity ("RFC") to perform light 

work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). Tr. 49. The ALJ included some 

additional physical limitations in the RFC, but none of them are pertinent to this review because 

plaintiff does not challenge the ALJ' s findings regarding physical impainnent. Tr. 49. The ALJ 

included the following mental limitations in the RFC: plaintiff is limited to simple, routine, repetitive 

tasks; he should perfo1m no transactional skills; no monetary exchange; only occasional decision 

making and changes in the work setting; and no assembly work. Tr. 49. At step four, based on this 

RFC and the testimony of a vocational expe1t ("VE"), the ALJ found plaintiff was not able to 

perform his past relevant work as a rigging slinger and truck driver. Tr. 54; 20 C.F.R. §§ 

404.1520(±) & 416.920(±). At step five, however, the ALJ concluded that plaintiff was capable of 

making a successful adjustment to other work in the national economy, such as dishwasher and 

garment presser. Tr. 55; 20 C.F.R. §§ 404.1520(g) & 416.920(g). Accordingly, the AU found 

plaintiff not disabled. Tr. 55. 

DISCUSSION 

Plaintiff contends the ALJ committed three significant legal errors in finding him not 

disabled. First, plaintiff asserts that the ALJ effed by not crediting the opinion of Scott D. Alvord, 

PsyD. Second, plaintiff argues that the ALJ erred by not giving clear and convincing reasons for 

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rejecting plaintiffs testimony. Finally, plaintiff maintains that the ALJ did not meet her burden of 

proof regarding plaintiffs ability to perform other work in the national economy. I start with 

plaintiffs second allegation because the adverse credibility finding against plaintiff impacted the 

ALJ's decision not to credit Dr. Alvord, which ultimately determines the outcome of this case. 

I. Plaintiff's Testimony 

Plaintiff argues that the ALJ did not give legally sufficient reasons for rejecting plaintiffs 

testimony. Pl. 's Br. 15. An ALJ must provide "clear and convincing" reasons to reject a plaintiffs 

allegations of disabling symptoms and limitations. Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 

685, 693 (9th Cir. 2009). The ALJ can determine that a plaintiff lacks credibility by identifying 

contradictions between complaints and self-reported activity and by refuting complaints with medical 

evidence. Beny v. Astrue, 622 F.3d 1228, 1234-35 (9th Cir. 2010). When evidence is open to 

multiple interpretations, the court must uphold theALJ's decision. Burch v. Barnhart, 400 F.3d 676, 

680-81 (9th Cir. 2005). However, plaintiffs should not be "penalized for attempting to lead normal 

lives in the face of their limitations." Reddick v. Chafer, 157 F.3d 715, 722 (9th Cir. 1998). 

Relatedly, "many home activities are not easily transferable to what may be the more grueling 

environment of the workplace, where itmight be impossible to periodically rest or take medication." 

Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 

Plaintiff alleges that he is disabled and unable to work due to both his physical and mental 

impairments, specifically neck, shoulder and arm pain, as well as depression and anxiety. Tr. 74-78. 

Specifically, plaintiff testified that he finds it hard to concentrate during his four-hour shifts at the 

Mission's intake desk. Tr. 75. As he works, the anxiety builds. Tr. 76. His able to complete fourhour shifts by taking hourly breaks of about ten minutes each. Tr. 76. He cannot work full-time or 

without frequent breaks because the anxiety "builds up." Tr. 76. 

The ALJ found plaintiffs ability to drive, his participation in a vocational rehabilitation 

program, his work at the Mission, his independence with his daily activities, and his walking and 

bike riding, were "not consistent" with plaintiffs alleged symptoms. Tr. 52. I find no inconsistency 

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between plaintiff's activities and symptom testimony. Plaintiff should not be penalized for being 

able to drive on occasion, attempting vocational rehabilitation, or working a few hours per day in 

exchange for room and board at a homeless shelter and recovery house (where he has stayed clean 

and sober for three years). Tr. 71. Nor should plaintiff be penalized for maintaining some 

independence in his daily living, and for occasionally walking or riding his bike. Further, the record 

shows plaintiff's ability to do each of the above activities is limited. Plaintiff testified he was unable 

to continue driving as a part of his volunteer work at the Mission, volunteers only four hours per day 

and cannot work a full day, needs hourly breaks, only goes for short walks, and rests often even 

during a four-block walk. Tr. 73-76, 78-81. The only one of these limitations the ALJ addressed 

was the limited nature of plaintiff's work at the Mission, by pointing out that when plaintiff first 

started volunteering there he worked as a driver and did longer shifts than he CUITently works. Tr. 

52. However, plaintiff explained how his limitations rendered him unable to continue driving and 

unable to continue working longer shifts. Tr. 73-74. Accordingly, the ALJ erred in finding 

contradictions between plaintiff's complaints and self-reported activity. 

TheALJ also refuted plaintiff's complaints with medical evidence. Tr. 49-54. However, the 

evidence cited by the ALJ only relates to plaintiff's allegations of physical disability, not mental. 

On appeal, plaintiff does not challenge the ALJ' s decision with respect to physical limitations. With 

regard to plaintiff's mental limitations, the ALJ's analysis of plaintiff's symptom testimony is not 

supported by substantial evidence. 

II. The ALJ's Rejection of Dr. A/vord's Opinion 

Plaintiff next contends the ALJ erred by not crediting Dr. Alvord's opinion. PL 's Br. 13-15. 

When the opinion of an examining physician is contradicted by other evidence in the record, the ALJ 

may only reject the opinion for "specific and legitimate" reasons supported by "substantial 

evidence." Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Lester v. Chater, 81 F.3d 821, 

830 (9th Cir. 1995). Here, the ALJ based her rejection of Dr. Alvord's opinion on: (1) 

inconsistencies in Dr. Alvord's report regarding plaintiff's memo1y; (2) Dr. Alvord's failure to 

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"explain the basis of his opinion"; (3) the fact that Dr. Alvord's evaluation took place in 2014, eight 

years after the alleged onset of disability; ( 4) Dr. Alvord's reliance on plaintiffs subjective 

complaints; (5) Dr. Alvord's failure to provide functional limitations; (6) the fact that Dr. Alvord's 

evaluation was psychiatric in nature; and (7) plaintiff telling Dr. Alvord that he worked "crowd 

control" at the Mission. Tr. 53-54. After laying out Dr. Alvord's opinion, I address each of the 

ALJ's bases for rejecting it. 

A. Dr. Alvord 's Opinion 

Dr. Alvord's opinion was the result of a clinical interview, a mental status examination, 

review of limited medical records from 2011-2012, the Wechsler Adult Intelligence Scale and 

Memory Scale (both fourth edition), and a Trail Making Test. Tr. 652. Dr. Alvord's diagnostic 

impression included the following: that plaintiff suffers from a "Cognitive Disorder NOS" (i.e., a 

cognitive disorder from a direct physiological cause); that his memory is "quite poor"; that he has 

issues with attention, concentration, and focus; that abstract thinking is impaired; that his"[ m Jedi cal 

issues prevent him from functioning at his previous capacity''; that he will "struggle to be retrained" 

and "concentrate/persist"; that he will struggle with "pace in an occupational setting requiring 

minimal cognitive capacities"; that he suffers from a "Major Depressive Disorder, recurrent, that 

may be secondary to the traumatic brain injury"; that he "meets the diagnostic criteria for an Anxiety 

Disorder NOS"; that PTSD should be ruled out; that his "adaptive functioning" is in the "moderate 

to severe range of impairment"; that cognitive issues are "chronic and unlikely to respond to 

treatment"; that "[ m]ore intensive psychiatric care" is needed; and that he should be "monitored 

closely for increasing mood symptoms, especially in the domain of suicidal ideation." Tr. 657. 

On Axis I (clinical disorders1), Dr. Alvord diagnosed Cognitive Disorder NOS, Major 

Depressive Disorder, and Anxiety Disorder NOS. Tr. 657. On Axis II (personality disorders and 

intellectual disabilities), Dr. Alvord' s diagnosed Borderline Intellectual Functioning (below average 

1 Parenthetical explanations of terms in Dr. Alvord's diagnosis are from the American 

Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 25 (4th ed. 1994) 

("DSM-IV"). 

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cognitive ability, i.e., anIQ between 70-85). Tr. 657. On Axis III (general medical conditions), Dr. 

Alvord diagnosed a "history" ofTBI (traumatic brain injury), and chronic neck and back pain based 

on Dr. Alvord's "deferr[al]" to plaintiff's medical records. Tr. 657. On Axis IV (psychosocial and 

environmental problems), Dr. Alvord determined that plaintiff's "psychosocial stressors" include: 

limited social interactions, financial strain, occupational limitations, and relationship stress. Tr. 657. 

Finally, on Axis V (global assessment of functioning, or "GAF"), Dr. Alvord assessed a score of 

"50" (placing plaintiff at the high-end of the middle of the scale, where the symptoms indicate 

antisocial behavior or an inability to keep a job2

). 

It was on the basis of the above impressions and diagnoses that Dr. Alvord concluded that 

plaintiff is "unable to perform independently, appropriately, effectively and on a sustained basis 7 .5 

hours per day, five days per week, in a regular, competitive work setting" 35-45% of the time. Tr. 

662. 

B. The ALJ's Bases for Rejecting Dr. Alvord's Opinion 

First, the ALJ found internal inconsistencies in Dr. Alvord's report regarding plaintiff's 

memory. Tr. 53. Looking to the report, Dr. Alvord did indeed opine that "long term memory was 

somewhat impaired," but that "short term memory was intact," after testing and finding that 

plaintiff's "working memory'' was in the sixth percentile for impairment, that his auditory was in the 

first, that his visual was in the fourth, that his immediate was in the second, and that his delayed was 

in the second. Tr. 656. It is difficult to reconcile Dr. Alvord's conclusions with his test findings. 

The inconsistency is a specific, legitimate reason to discredit Dr. Alvord's opinion regarding 

plaintiff's memory. But the contradiction is not a reason to reject all of Dr. Alvord's opinion.3 

Second, the ALJ found that Dr. Alvord did not explain the basis of his opinions. But Dr. 

Alvord relied on a clinical interview of plaintiff, a review of some of plaintiff's medical records, and 

2 DSM-IV at 32. 

3 Moreover, the ALJ's limitation of plaintiff to "simple, routine, repetitive tasks" arguably 

addressed any memory problems. Tr. 49. 

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the administration of psychological tests. Tr. 652, 657. Accordingly, Dr. Alvord's opinion should 

not have been discredited by the ALJ on this basis. 

Another reason the ALJ concluded that Dr. Alvord should not be credited was that Dr. 

Alvord's examination took place in 2014, that is, eight years after plaintiffs amended onset of 

disability in 2006, and eleven years after plaintiffs initial alleged onset in 2003. Tr. 53. Ordinarily, 

an ALJ may afford "little weight" to medical opinions provided "well after" an injury or the 

expiration of a plaintiffs disability status. Marci v. Chater, 93 F.3d 540, 544-45 (9th Cir. 1996). 

However, the ALJ cannot cheny-pick the record. Ghanim, 763 F.3d at 1165. Here, the ALJ chose 

to discredit Dr. Alvord's opinion because his examination took place in 2014, but credited the 

opinions of State agency consultants in 2012. Tr. 52-53. The agency consultants did not review any 

mental health evaluations that post-dated Dr. Alvord's examination. Because the State agency 

consultations also took place after a significant time lapse (six years), and because the agents did not 

actually examine the plaintiff(whereasDr. Alvord did), this is cheny-picking. Dr. Alvord's opinion 

should not have been discredited on this basis. 

Next, the ALJ did not credit Dr. Alvord because the ALJ found he "largely based" his 

opinion on plaintiffs subjective complaints. Tr. 54. This is clearly not !tue; Dr. Alvord performed 

a comprehensive examination. Additionally, as explained, the ALJ erred in rejecting plaintiffs 

testimony regarding mental limitations. The ALJ therefore erred by rejecting Dr. Alvord's opinion 

for being based in part on plaintiffs subjective complaints. 

Another reason the ALJ did not credit Dr. Alvord was that Dr. Alvord offered no "specific 

functional limitations." Tr. 54. That is not correct. Dr. Alvord completed a mental RFC form that 

offered many functional limitations, such as plaintiffs inability to canyout short, simple instructions 

ten percent of a workday, or plaintiffs inability to work in coordination with or proximity to others 

without being distracted by them fifteen percent ofa workday. Tr. 658, 659. Defendant objected 

to the limitations Dr. Alvord provided in his mental RFC, calling them part of a "check-box form," 

and "of limited vocational relevance" because they "contained an assessment of the ability to 

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perform tasks over the course of a 7.5 hour workday." Def.'s Br. 8-9. I find defendant's argument 

confusing. It is the ALJ' s job to determine whether a disability claimant can perfo1m tasks over the 

course of a full workday. Moreover, I am reviewing the ALJ's findings, not defendant's arguments. 

The ALJ erred in finding that Dr. Alvord's opinion should not be credited for failing to provide 

specific functional limitations. 

The ALJ also denied Dr. Alvord' s opinion because Dr. Alvord's evaluation was "psychiatric 

in nature." Tr. 54. I find no problem with Dr. Alvord performing a psychiatric evaluation of 

plaintiff because Dr. Alvord is a psychiatrist. Tr. 662. The ALJ should not have rejected Dr. 

Alvord' s opinion because it was psychiatric in nature. Further, on appeal plaintiff only asks the 

Court to credit Dr. Alvord's conclusions regarding plaintiffs mental limitations. 

Finally, the ALJ did not credit Dr. Alvord because supposedly plaintiff told him he worked 

"crowd control" at the Mission, which the ALJ determined "was not consistent with [Dr. Alvord's] 

opinion that claimant was unable to work." Tr. 54. Reviewing the records of Dr. Alvord's reports 

regarding plaintiff, I find that plaintiff at no time told Dr. Alvord that he did "crowd control" at the 

Mission. 4 Tr. 652-662. Rather, he described to Dr. Alvord the same sort of part-time work he 

testified to at the hearing. Tr. 654. Because the ability to do part-time work is not inconsistent with 

a finding of disability, this is not a valid basis for rejecting the opinion of Dr. Alvord. 

Only one oftheALJ's reasons for discrediting Dr. Alvord's opinion stands up to review. The 

ALJ permissibly rejected Dr. Alvord's opinion about memory limitations, but otherwise erred in 

rejecting Dr. Alvord's opinion. 

4 There is a reference to "crowd control" elsewhere in the record, in notes from a 

December 6, 2012 visit with Andrea Marshall, D.O. Tr. 598. At the hearing, plaintiff testified 

that as part of his volunteer duties he "walk[ ed] around the Mission and sat in chapel and made 

sure people behaved themselves." Tr. 74. As far as I can tell, the closest plaintiff came to telling 

Dr. Alvord he had done "crowd control" at the Mission was when Dr. Alvord repmted plaintiff 

"is triggered to anxiety from crowds 'and loud noises."' Tr. 654. 

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III. Credit-as-True 

In the interests offairness and expediency, and at plaintiff's request, I apply the credit-as-true 

doctrine to plaintiff's case. Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). The first step 

under this doctrine is to determine whether the ALJ made a legal effor. Dominguez v. Colvin, 808 

F.3d 403, 407 (9th Cir. 2015). The second step is to review the "record as a whole" to see "whether 

it is fully developed, is free from conflicts and ambiguities, and 'all essential factual issues have been 

resolved."' Id. (quoting Treichler v. Comm 'r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 

2014)). Finally, the Court must dete1mine whether the ALJ would be required to find the claimant 

disabled on remand if the improperly discredited evidence were credited as true. Id. 

An ALJ commits a legal effor whenever she or he fails to provide legally sufficient evidence 

for rejecting claimant testimony or medical opinion. Id. The ALJ failed to provide legally sufficient 

evidence for rejecting plaintiffs testimony and Dr. Alvord's opinion regarding plaintiff's mental 

limitations. This is a legal effor. 

I have reviewed the record as a whole and find it is fully developed. Plaintiff is not getting 

any younger or closer in time to his alleged onset of disability. Accordingly, Dr. Alvord's thorough 

examination is the best we are going to get regarding plaintiffs mental limitations during the period 

of disability, and there is no purpose to further proceedings. 

Dr. Alvord concluded on the basis of his opinion that plaintiff would be unable to work 

independently, appropriately, and on a sustained basis, 7.5 hours per day, five days per week, in a 

regular, competitive work setting, 35-45% of the time. Tr. 662. Had Dr. Alvord's opinion regarding 

plaintiffs mental limitations been credited as true, it would have eliminated all other employment. 

This is true according to the VE himself, who responded to plaintiffs attorney's positing of Dr. 

Alvord' s conclusion by saying that they "would exclude all jobs I identified and all other work, Your 

Honor." Tr. 85 (emphasis added). Crediting Dr. Alvord's opinion as tlue, the ALJ would be 

required to find plaintiff disabled. 

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CONCLUSION 

The decision of the Commissioner is REVERSED and REMANDED for an immediate 

payment of benefits. 

IT IS SO ORDERED. 

Dated this E-jday of~~ 7. 

Ann Aiken 

United States District Judge 

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