IN THE UNITED STATES DISTRICT COURT 

STACEY J. RANDALL, 

Plaintiff, 

v. 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

CAROLYN W. COL VIN, Acting 

Commissioner of Social Security, 

Defendant. 

AIKEN, Judge: 

Case No. 1:15-cv-02187-AA 

OPINION AND ORDER 

Plaintiff Stacey J. Randall brings this action pursuant to the Social Security Act ("Act"), 42 

U.S. C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security 

("Commissioner"). The Commissioner denied plaintiff's applications for Supplemental Security 

Income ("SSI") and Disability Insurance Benefits ("DIB"). For the reasons set forth below, the 

Commissioner's decision is reversed and remanded for further proceedings. 

BACKGROUND 

On Februmy 16, 2012, plaintiff applied for SSI and DIB. Tr. 178, 180. She alleged disability 

beginning December 31, 1995 due to seizures, nerve pain, chronic pain, headaches, and problems 

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with her left eye. Tr. 211. Plaintiff's medical problems began in 1995, when she was struck by a 

car while she was walking. Tr. 40, 269. She was hospitalized and had brain surgery. Tr. 40. The 

accident led to the onset of a seizure disorder. Tr. 222, 429-34, 441. After cycling through several 

medications that made her feel "like a zombie," she now takes a medication that does not have 

serious side effects and stops the seizures. Tr. 40-43. Since the accident, she has difficulty 

maintaining concentration "sometimes" and her attention wanders. Tr. 44-45. Nonetheless, as long 

as she "concentrate[s) on what [she's] doing and stay[s] in front of what [she's] doing then [she] can 

continue doing it usually." Tr. 45. 

Although plaintiff never worked full-time after the accident, she worked part-time as a motel 

desk clerk and housekeeper from 1998 to 2005 and again from 2009 to 2012. Tr. 37-38, 212. She 

worked three to four days per week, for a total of twelve to twenty hours each week. Tr. 39. 

Plaintiff testified she knew the family that ran the hotel and the owners understood "what [she) had 

been through." Tr. 38. She worked in a team of three, which prevented the work from being 

"overwhelming." Tr. 38. When business slowed at the motel, one of the other employees was laid 

off. At that point, the work became "too much." Tr. 38. She quit the job due to "a lot of things" 

including seizures and physical pain. Tr. 39, 46. She asserts she left the job on doctor's orders. Tr. 

266. 

Plaintiff states she has difficulty with continuous activity. Tr. 237. She is able to pay 

attention for about thi1ty minutes at a time and can follow written instructions "pretty well." Tr. 242. 

She has no problems with personal care and needs no reminders or assistance regarding grooming 

or medication. Tr. 239. She washes clothes, cooks meals, shops, reads, watches movies, cares for 

her daughter, attends church, and volunteers by helping to feed the homeless. Tr. 239-41. She is 

able to pay bills, count change, handle a savings account, and use a checkbook. Tr. 241. She spends 

time with friends and family in person, at church, and on the phone. Tr. 241. She cannot go hiking 

or push herself too much physically. Tr. 242. 

Plaintiff's applications were denied initially and upon reconsideration. Tr. 73, 87, 103, 119. 

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On May 12, 2014, a hearing was held before an Administrative Law Judge ("ALJ"). Tr. 31. 

Plaintiff, represented by counsel, testified, as did a vocational expert ("VE"). Tr. 31. On June 13, 

2014, the ALJ issued an unfavorable decision. Tr. 25. After the Appeals Council denied her request 

for review, plaintiff filed a complaint in this Comt. Tr. I. 

STANDARD OF REVIEW 

The district court must affi1111 the Commissioner's decision if it is based upon proper legal 

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

Beny 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 mindmight accept 

as adequate to support a conclusion." Gutierrez v. Comm 'ro/Soc. Sec., 740 F.3d 519, 522 (9th Cir. 

2014) (internal quotation marks omitted). The comt must weigh "both the evidence that suppo1ts 

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

(9th Cir. 2001 ). If the evidence is susceptible to more than one interpretation but the 

Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may 

not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 

1156 (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 has established a five-step sequential process for determining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502(a)(4). At 

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

disability onset date. Tr. 18; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found 

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plaintiff had the following severe impairments: degenerative disc disease of the cervical spine, 

seizure disorder, neurocognitive disorder secondaty to a closed head injury in 1995, and anxiety 

disorder not otherwise specificied. Tr. 18; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). At step three, the 

ALJ dete1111ined plaintiffs impairments, whether considered singly or in combination, did not meet 

or equal "one ofa number oflisted impairments that the [Commissioner] acknowledges are so severe 

as to preclude substantial gainful activity." Tr. 19; 20 C.F.R. §§ 404. l 520(a)( 4)(iii), ( d). 

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

to perform a range of light work as defined in 20 [C.F.R. §] 404.1567(b) and 

4 l 6.067(b) except she is further limited to tasks that involve no more than occasional 

climbing of ladders, ropes, or scaffolds. She must avoid concentrated exposure to 

workplace hazards, such as unprotected heights or dangerous machinery. She can 

perform simple, routine tasks that involve less than occasional interaction with the 

public and strnctured, superficial interactions with co-workers. She is limited to 

structured, low-stress work tasks that avoid fast-paced production work and 

persuasive communication tasks. She can tolerate few changes in the work setting 

or work progress. 

Tr. 21; 20 C.F.R. § 404.1520(e). At step four, the ALJ found plaintiff had no past relevant work. 

Tr. 24; 20 C.F.R. §§ 404. l 520(a)(4)(iv), (f). At step five, the ALJ found plaintiff could perform a 

number of jobs that exist in significant numbers in the national economy, specifically mail clerk, 

information router, and order filler. Tr. 24. Accordingly, the ALJ found plaintiff not disabled and 

denied her application for benefits. Tr. 25. 

DISCUSSION 

Plaintiff asserts the ALJ committed three errors. First, plaintiff contends the ALJ erred in 

weighing the medical opinion evidence. She avers that error, in turn, led to harmful errors at step 

three (when the ALJ concluded plaintiff does not suffer from a listed impairment), in the formulation 

of the RFC (when the ALJ omitted certain limitations in the improperly discredited evidence), and 

at step five (when the ALJ failed to include those limitations in his hypothetical questions to the VE). 

Second, plaintiff contends the ALJ erred in assigning little weight to her subjective symptom 

testimony. And third, plaintiff argues the ALJ erred at step five because the jobs identified by the 

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ALJ require abilities inconsistent with her assessed RFC. I address each argument in turn. 1 

I. Evaluation of Medical Evidence 

Plaintiff challenges the ALJ's decision to give little weight to the opinions of treating 

neurologist Dr. Slater and examining psychologist Dr. Trneblood. When a treating or examining 

physician's opinion conflicts with other evidence in the record, an ALJ may only reject the opinion 

for specific, legitimate reasons supported by substantial evidence. Lester v. Chafer, 81 F .3d 821, 830 

(9th Cir. 1995). 

A. Dr. Slater 

Dr. Slater, a neurologist, treated plaintiffs seizure disorder. In a Febrnaty 2012 letter, he 

stated plaintiff sustained "permanent injuries" from the car accident, leading to "cognitive and 

language loss." Tr. 768. Dr. Slater opined plaintiff would be unable to "successfully compete in the 

open job market." Tr. 768. The ALJ gave little weight to Dr. Slater's opinion because plaintiff was 

able to work part-time after her injury, Dr. Slater's subsequent treatment notes indicate plaintiffs 

seizures are well-controlled with medication, and in 2012 plaintiff presented as alert, fully oriented, 

and in no acute distress. Tr. 22. 

The ALJ reasonably presumed that Dr. Slater's opinion regarding plaintiffs ability to work 

rested in part on concerns about her seizure disorder. Medical records and plaintiffs testimony both 

support a conclusion that disorder is now well-controlled with medication. That is a specific, 

legitimate reason to discount Dr. Slater's opinion. See Warre v. Comm 'r of Soc. Sec. Admin., 439 

F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication 

are not disabling for the purpose of detern1ining eligibility for SSI benefits."). Moreover, the letter 

assesses no specific workplace limitations and instead broadly concludes plaintiff is unable to work. 

The ALJ was not required to defer to Dr. Slater's opinion on that "ultimate issue of disability." 20 

1 Plaintiff focuses on the ALJ's treatment of her seizure disorder and limitations regarding 

social functioning and concentration, persistence, or pace. Because she does not challenge the 

ALJ's other findings regarding her physical limitations, this opinion leaves those findings 

undisturbed. 

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C.F.R. § 404.1527(e). The ALJ erred in relying on plaintiffs ability to work at the motel, as 

discussed in more detail below. But that error was harmless with respect to Dr. Slater's opinion 

because the ALJ's decision to discredit that opinion remains suppmted by substantial evidence even 

without relying on plaintiffs work histmy. See Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 

1155, 1163 (9th Cir. 2008). 

B. Dr. Trueblood 

With respect to examining psychologist Dr. Trueblood's opinion, the key inqui1y concerns 

the extent of plaintiffs problems with social functioning and with concentration, persistence, and 

pace. Dr. Trneblood assessed marked limitations in both areas. Crediting Dr. Trueblood's 

assessment as true, plaintiff would be found disabled at step three because she would satisfy the 

"Part B" criteria oflisting 12.02, which addresses organic mental disorders. 20 C.F.R. § 404, subpt. 

P, app. 1, 12.02. Plaintiff also asserts the ALJ erred by omitting specific limitations assessed by Dr. 

Trueblood from the RFC. I conclude the ALJ erred in discrediting Dr. Trueblood's opinion, and that 

the error was harmful in the formulation of the RFC and at step five of the analysis. 

In Janumy 2014, Dr. Trueblood performed a neuropsychological screening exam. Dr. 

Trueblood reported plaintiff demonstrated "[s)ignificant weakness in maintaining attention" and 

"significant impulsiveness" likely to lead to "disinhibited behavior" in social settings. Tr. 796, 799. 

Dr. Trueblood concluded plaintiffs ''.area of greatest weakness" was executive functioning, noting 

plaintiff showed "substantial weakness in planning, exercising foresight ... [and] self-monitoring 

of her perfonnance accuracy." Tr. 799. Dr. Trneblood predicted plaintiff would have "marked" 

difficulty in the areas of social functioning and concentration, persistence or pace. Tr. 804. He 

"lean[ ed] towards the conclusion that it would be unlikely that [plaintiff] would attain and maintain 

employment[.]" Tr. 800. Dr. Trueblood was surprised plaintiff had been able to work at the motel 

for so long and "wonder[ed] ifthere was some extra support in that work setting[.]" Tr. 800. 

Dr. Trneblood' s opinion conflicts with the opinions of three other psychologists in the record. 

First, it conflicts with the opinion of Dr. Cole, another examining psychologist. In September 2012, 

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Dr. Cole performed a consultative psychodiagnostic evaluation to assess plaintiffs cognitive 

abilities. Dr. Cole found no significant problems in the areas of attention and concentration, and 

above average immediate and delayed memoty. Tr. 442-43. Dr. Trneblood's opinion also conflicts 

with the opinions of the non-examining agency psychologists. In September 2012, reviewing 

psychologist Dr. Hennings concluded plaintiffs cerebral trauma and anxiety disorders were "non 

severe." Tr. 68. Dr. Hennings assessed mild restrictions in social functioning with no other 

significant cognitive limitations. Tr. 68. On reconsideration in March 2013, reviewing psychologist 

Dr. Anderson generally agreed with Dr. Hennings's assessment, but also concluded plaintiff had 

mild restrictions in the area of concentration, persistence, or pace. Tr. 98. 

The ALJ acknowledged the conflict among the medical opinions. He concluded that Dr. 

Trneblood's opinion was entitled to less weight than Dr. Cole's because (1) Dr. Trneblood had 

limited access to medical records and so did not have the benefit ofreviewing Dr. Cole's assessment; 

(2) the limitations assessed by Dr. Trneblood are inconsistent with plaintiffs ability to work parttime at the motel for so long after the accident; and (3) the limitations assessed by Dr. Trneblood are 

inconsistent with plaintiffs self-reported activities of daily living. 

The ALJ erred in rejecting Dr. Trueblood 's assessment because he never reviewed Dr. Cole's 

assessment. Access to medical records often is a permissible consideration - for example, if the 

plaintiffhas a relationship with a treating provider or when multiple examining sources have reached 

similar conclusions. Here, however, the conflicting records are both the result of single-day 

evaluations by consultative psychologists, neither of whom had the benefit ofreviewing the other's 

work. The fact that Dr. Trueblood did not read Dr. Cole's evaluation does not undermine the validity 

of Dr. Trneblood 's report. 

The ALJ also erred in citing plaintiffs work at the motel as a reason for discrediting Dr. 

Trneblood's opinion. Plaintiff argues the record shows she was given special accommodations and 

support to permit her to continue working at the motel. The Commissioner disagrees and contends 

the record does not compel the conclusion plaintiffs work was sheltered. I agree with the 

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Commissioner that the record does not compel a conclusion plaintiff's work was sheltered or 

supported. The direct evidence on this point consists entirely of plaintiff's testimony, which itself 

does not provide many specifics. That testimony is arguably corroborated by Dr. Trueblood's 

surprise that plaintiff was able to work and his supposition that she may have received special 

employment accommodations. 

Even though the evidence suggesting plaintiff had special work suppo1is at the motel is 

limited, the ALJ erred by failing to address that evidence. Similarly, although the ALJ 

acknowledged that plaintiff never worked at the substantial gainful activity level at the motel, he did 

not address in any detail the fact that she worked limited hours. If plaintiff was only able to work 

part-time with significant accommodations, that work does not suggest she would be able to compete 

for full-time work in the open job market. Without information about whether or how the ALJ 

considered the evidence plaintiff's work was sheltered or limited, I cannot conclude the motel work 

is a legitimate reason to discount Dr. Trueblood 's opinion. 

Finally, the ALJ partially erred in his assessment of plaintiff's self-reported activities of daily 

living. The ALJ reasonably considered plaintiff's testimony that she takes her daughter to various 

activities, socializes frequently with family and friends, attends church, volunteers serving meals to 

the homeless, and has never been laid off from a job due to conflict with coworkers or supervisors 

to be inconsistent with Dr. Trneblood's assessment of marked difficulties in social functioning. 

However, the same cannot be said of plaintiff's difficulties with concentration, persistence or pace. 

Plaintiff's testimony regarding her own limitations in this area was mixed. Compare Tr. 44 ("When 

I start something I tend to go off onto something else.") and Tr. 50 (plaintiff explaining she 

sometimes burns food when she walks away from the burner and forgets about it) with Tr. 45 ("[A]s 

long as I concentrate on what I'm doing and stay in front of what I'm doing then I can continue doing 

it usually.") and Tr. 239 (plaintiff stating she needs no special reminders or help with medications 

or grooming). Dr. Trueblood specifically stated that plaintiff likely has limited insight into her own 

functioning and thus may significantly underreport difficulties. Tr. 794. Dr. Trueblood also 

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explained in detail test results demonstrating problems with concentration and persistence. Tr. 796-

97. The ALJ erred in concluding plaintiffs repmted activities of daily living were inconsistent with 

Dr. Trueblood's assessment of marked difficulties in the area of concentration, persistence, or pace. 

Even though the ALJ committed several errors in evaluating Dr. Trueblood's opinion, the 

errors were harmless with respect to the step three analysis. Plaintiffs testimony about her activities 

is sufficient, standing alone, to support the ALJ's decision to discredit Dr. Trueblood's opinion 

regarding social functioning. Because she has neither marked restrictions in activities of daily living 

nor multiple episodes of decompensation, without a marked restriction in social functioning, plaintiff 

does not meet the requirements of listing 12.02.2 

However, I cam1ot conclude the errors were harmless with respect to formulation of the RFC 

and identification of available jobs at step five. As explained above, the ALJ's decision to discredit 

Dr. Trueblood's assessment of marked difficulties with concentration, persistence, or pace is not 

suppo1ted by substantial evidence. That error is only harmless if the RFC adequately accounted for 

such difficulties. The ALJ limited plaintiff to "simple, routine tasks" and "structured, low-stress 

work tasks that avoid fast-paced production work and persuasive communication tasks." The ALJ 

also noted there could be "few changes in the work setting or work progress." There is no testimony 

from the VE addressing whether those restrictions account for the limitations of an individual with 

marked difficulties with concentration, persistence, and pace. Without such testimony, it remains 

possible the error harmfully affected the analysis at step five. See Russell v. Colvin, 9 F. Supp. 3d 

1168, 1180 (D. Or. 2014) (documenting VE's testimony in Social Security disability hearing that if 

an individual has a "marked (unable to persist when it occurs occasionally) limitation on her ability 

to maintain attention and concentration even for simple, routine tasks and this were to occur on an 

2 Plaintiff also argues the ALJ erred at step three by concluding her limitations did not 

equal listing 12.02. She does not suppmt her equivalence argument with anything beyond the 

conclusmy statement that her "combined impainnents result in her being functionally and 

medically as limited as, if not more limited than, and individual whose impairments are deemed 

to meet listing 12.02." Pl. 's Br. at 14. This argument is inadequately supported and thus waived. 

Martinez v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996). 

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occasional basis such that the ability to persist for simple, routine tasks would be intenupted, then 

all jobs would be precluded"). 

II. Plaintiff's Subjective Symptom Testimony 

The ALJ also gave limited weight to plaintiffs testimony regarding the intensity, persistence, 

and limiting effect of her symptoms. I conclude that with respect to plaintiffs cognitive limitations, 

the ALJ failed to support that decision with clear, convincing reasons. 

In evaluating subjective symptom testimony, the ALJ conducts a two-step inquiry. First, the 

ALJ "must determine whether the claimant has presented objective medical evidence of an 

underlying impairment which could reasonably be expected to produce the pain or other symptoms 

alleged." Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (citation and quotation marks 

omitted). If the first step of the test is satisfied, "and there is no evidence of malingering, the ALJ 

can reject the claimant's testimony about the severity of her symptoms only by offering specific, 

clear and convincing reasons for doing so." Id. at 1015 (citation and quotation marks omitted). 

The ALJ found plaintiffs medically determinable impai1111ents could be expected to produce 

the symptoms alleged, and found no evidence of malingering. He then assigned limited weight to 

plaintiffs subjective symptom testimony for several of the reasons already addressed in this opinion: 

her seizures are now well-controlled with medication, her self-reported activities of daily living are 

inconsistent with the alleged severity of her symptoms, and she was able to work for many years after 

the car accident. The ALJ also noted the alleged onset date of disability does not clearly correspond 

to her injury date. 

As explained above, the record supports the conclusion plaintiffs seizures are wellcontrolled with medication. Unless there is new evidence introduced on remand, there is no reason 

for the ALJ to revisit his evaluation of plaintiffs subjective symptom testimony to the extent it 

addresses her seizure disorder. 

However, for the reasons explained in the previous section, I cannot determine whether 

plaintiffs ability to work at the motel constitutes a convincing reason to discredit her subjective 

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symptom testimony. Because the ALJ did not address evidence of extra supports in the work 

environment or the effect of plaintiffs part-time status, I cannot conduct a meaningful review of his 

reasoning. Similarly, I find the ALJ erred in finding plaintiffs activities of daily living inconsistent 

with her statements about her cognitive impairments. The ALJ did not adequately address Dr. 

Tmeblood 's opinion that plaintiff would have limited ability to accurately assess her own capabilities 

in this area. Finally, the ALJ erred in concluding the alleged onset date of disability does not 

correspond to plaintiffs injury date, as it followed closely on the heels of the car accident. 

I cmmot conclude these errors were harmless. Plaintiff testified she is unable to sustain fulltime work due to the combination of her impairments. Crediting that statement as tme, she would 

be found disabled. · Moreover, crediting some of plaintiffs other statements about her cognitive 

limitations as true could affect the formulation of the RFC and the analysis at step five. 

III. Step Five Jobs Analysis 

Plaintiff contends the ALJ erred at step five because all three jobs he identified cannot be 

performed by a person with plaintiffs assessed RFC. The Commissioner concedes that two of the 

three jobs identified at step five of the analysis may conflict with the RFC. The Commissioner 

nonetheless contends the ALJ properly concluded the job of infonnation router could be performed 

consistent with the RFC. Information router is a reasoning level two job and requires the employee 

to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral 

instructions" and"[ d]eal with problems involving a few concrete variables in or from standardized 

situations." Dictionary of Occupational Titles, app. C. Plaintiff contends those requirements are 

inconsistent with a limitation to simple, routine tasks. That argument has been squarely rejected by 

this Court. Gilbertv. Colvin, 2015WL1478441, *7 (D. Or. Mar. 31, 2015). The job of information 

router is consistent with plaintiffs assessed RFC. 

IV. Type of Remand 

The final question before the Court is whether to remand for further proceedings or an 

immediate award of benefits. "The issue turns on the utility of further proceedings." Petty v. Colvin, 

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20 F. Supp. 3d 770, 777 (D. Or. May 7, 2014). Although plaintiff recites the Ninth Circuit test on 

this point, she does not address the utility of further proceedings in any detail. 

In this case, further proceedings are necessary. The ALJ did not address the evidence in the 

record suggesting plaintiffs work at the motel may have been supported or sheltered. Remand will 

permit the ALJ to address this issue and supplement the record as necessary. The ALJ relied on 

plaintiffs work at the motel to discredit both Dr. Trneblood's opinion and plaintiffs subjective 

symptom testimony. Understanding the nature of her work at the hotel is therefore critical to 

determining whether the Commissioner's decision is supported by substantial evidence. 

CONCLUSION 

The Commissioner's decision is REVERSED AND REMANDED for further proceedings 

consistent with this opinion. On remand, the ALJ must: 

1. Address whether plaintiffs employment at the motel included special accommodations 

relevant to her difficulties with concentration, persistence, or pace; 

2. Reevaluate Dr. Trueblood's assessment of plaintiffs limitations in the area of 

concentration, persistence, or pace, specifically addressing Dr. Trneblood's statement that plaintiff 

is unlikely to be able to assess her own limitations in this area; 

3. Reconsider the credibility of plaintiffs subjective symptom testimony regarding her 

cognitive limitations; 

4. Reformulate the RFC as necessary; and 

5. Reassess the availability of jobs plaintiff could perform at step five. 

IT IS SO ORDERED. 

AnnAiken 

United States District Judge 

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