IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DALE E. HAHN, JR., 6:16-cv-00317-BR

Plaintiff, OPINION AND ORDER

v.

NANCY A. BERRYHILL,1

Acting Commissioner, Social 

Security Administration,

Defendant.

KATHERINE EITENMILLER

ROBERT A. BARON

Harder Wells Baron & Manning, PC

474 Willamette Street

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1

 On January 23, 2017, Nancy A. Berryhill was appointed the

Acting Commissioner of the Social Security Administration and

pursuant to Federal Rule of Civil Procedure 25(d) is substituted

as Defendant in this action. 

1 - OPINION AND ORDER
DAVID MORADO

Regional Chief Counsel

HEATHER L. GRIFFITH 

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-3709 

Attorneys for Defendant

BROWN, Judge.

Plaintiff, Dale E. Hahn, Jr., seeks judicial review of the

final decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff’s applications

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act and Supplemental Security Income (SSI) under

Title XVI of the Social Security Act. This Court has jurisdiction to review the Commissioner’s final decision pursuant to

42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff protectively filed his applications for DIB and

SSI on February 22, 2012. Tr. 18, 205, 215.2 Plaintiff alleged

a disability onset date of December 9, 2011. Tr. 205, 215. 

2

 Citations to the official transcript of record filed by

the Commissioner on September 6, 2016, are referred to as “Tr.”

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Plaintiff’s applications were denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held an

initial hearing on February 26, 2014, at which time Plaintiff’s

counsel and the ALJ agreed a psychological evaluation should take

place before the hearing on the merits of Plaintiff’s

application. Tr. 71-77. The ALJ conducted a second hearing on

April 23, 2014. Tr. 35-70. Plaintiff and a vocational expert

(VE) testified at the April 23, 2014, hearing. Plaintiff was

represented by an attorney at both hearings. 

On July 22, 2014, the ALJ issued an opinion in which she 

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 18-29. On December 18, 2015, the Appeals

Council denied Plaintiff’s request to review the ALJ’s decision,

and the ALJ’s decision became the final decision of the

Commissioner. Tr. 1-4. See Sims v. Apfel, 530 U.S. 103, 106-07

(2000).

On February 22, 2016, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner’s decision.

BACKGROUND

Plaintiff was born on March 24, 1978. Tr. 205, 215. 

Plaintiff was 36 years old at the time of the hearing on the

merits of his application. Plaintiff has a tenth-grade

education. Tr. 42, 244. The ALJ found Plaintiff has past

3 - OPINION AND ORDER
relevant work experience as a resident-care aide and a

construction worker. Tr. 27, 64-64. 

Plaintiff alleges disability due to kidney cancer, a bulging

disc in his lower back, “right knee fractures,” and injuries to

his anterior cruciate ligament (ACL) and meniscus. Tr. 243. 

Except as noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. See Tr. 20-27. After carefully

reviewing the medical records, this Court adopts the ALJ’s

summary of the medical evidence.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate his

inability “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). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner’s decision

4 - OPINION AND ORDER
if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). It is more than a mere scintilla [of evidence]

but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

The ALJ is responsible for evaluating a claimant’s

testimony, resolving conflicts in the medical evidence, and

resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th

Cir. 2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 

(9th Cir. 2006). 

5 - OPINION AND ORDER
DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial 

gainful activity (SGA). 20 C.F.R. §§ 404.1520(a)(4)(I),

416.920(a)(4)(I). See also Keyser v. Comm’r of Soc. Sec., 648

F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Keyser, 648 F.3d

at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also Keyser, 648

F.3d at 724. The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,

appendix 1 (Listed Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

6 - OPINION AND ORDER
regular and continuing basis despite his limitations. 20 C.F.R.

§§ 404.1520(e), 416.920(e). See also Social Security Ruling

(SSR) 96-8p. “A ‘regular and continuing basis’ means 8 hours a

day, for 5 days a week, or an equivalent schedule.” SSR 96-8p,

at *1. In other words, the Social Security Act does not require

complete incapacity to be disabled. Taylor v. Comm’r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair

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

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work he has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the

burden shifts to the Commissioner to show a significant number of

jobs exist in the national economy that the claimant can perform. 

Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th

Cir. 2010). The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational

Guidelines set forth in the regulations at 20 C.F.R. part 404,

subpart P, appendix 2. If the Commissioner meets this burden,

7 - OPINION AND ORDER
the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

ALJ’S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since December 9, 2011, his alleged

onset date. Tr. 20.

At Step Two the ALJ found Plaintiff has the severe

impairments of renal-cell carcinoma, right-knee fracture and torn

meniscus status-post ACL reconstruction, lumbar degenerative disc

disease, urinary frequency, “unspecified depressive disorder,”

“unspecified anxiety disorder,” and “somatic symptom disorder.” 

Tr. 20-21. 

At Step Three the ALJ concluded Plaintiff’s medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, 

appendix 1. Tr. 21-22. The ALJ found Plaintiff has the RFC to

perform less than the full range of light work except that there

must be a restroom on the work premises, Plaintiff must be able

to alternate between sitting and standing positions as needed, 

and Plaintiff can only occasionally stoop or crouch. In

addition, the ALJ found Plaintiff can carry out “simple

instructions in work involving only simple work-related decisions

with few, if any, workplace changes.” Tr. 22-27. 

8 - OPINION AND ORDER
At Step Four the ALJ concluded Plaintiff is incapable of

performing his past relevant work. Tr. 27.

At Step Five the ALJ found Plaintiff could perform other

jobs that exist in the national economy, including storagefacility rental clerk, electrical worker, and assembler of

electronic accessories. Tr. 28-29. Accordingly, the ALJ found

Plaintiff is not disabled. Tr. 29.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) failed to

order a comprehensive physical examination for Plaintiff and 

(2) discredited Plaintiff’s testimony.

I. Failure to Order a Comprehensive Physical Examination

“The Social Security Administration . . . has broad latitude

in ordering consultative examinations.” Taylor v. Astrue, 386 F.

App’x 629, 632 (9th Cir. 2010). See also Reed v. Massanari, 270

F.3d 838, 842 (9th Cir. 2001). “Some kinds of cases, however, do

‘normally require a consultative examination,’ including those in

which ‘additional evidence needed is not contained in the records

of [the claimant’s] medical sources,’ and those involving an

‘ambiguity or insufficiency in the evidence [that] must be

resolved.’” Reed, 270 F.3d at 842. When, however, the ALJ finds

the evidence is sufficient to support her decision, she is not

required to order a consultative examination. See Taylor, 386 F.

9 - OPINION AND ORDER
App’x at 632-33. See also Reed, 270 F.3d at 843 (reversing the

ALJ’s decision on the basis that “the ALJ’s decision to proceed

without ordering a consultative examination by a rheumatologist

was not based on a determination that the evidence already in the

record was sufficient.”).

The Commissioner contends the ALJ did not err when she did

not order a consultative examination, and, in any event, the

Commissioner contends Plaintiff waived this argument by failing

to request a consultative examination at either hearing. “[A]t

least when claimants are represented by counsel, they must raise

all issues and evidence at their administrative hearings in order

to preserve them on appeal.” Meanel v. Apfel, 172 F.3d 111, 1115

(9th Cir. 1999). See also Phillips v. Colvin, 593 F. App’x 683,

684 (9th Cir. 2015). A court will “only excuse a failure to

comply with this rule when necessary to avoid a manifest

injustice.” Meanel, 172 F.3d at 1115.

At the first hearing on February 26, 2014, Plaintiff’s

counsel and the ALJ extensively discussed the steps that were

necessary in order to complete the record. Tr. 71-77. 

Plaintiff’s counsel requested the ALJ to order a comprehensive

psychological examination for Plaintiff and to keep the record

open for an additional period to permit Plaintiff to submit more

records as to his physical impairments. Tr. 75-76. The ALJ

granted both requests. Tr. 75-76. At the second hearing on

10 - OPINION AND ORDER
April 23, 2014, Plaintiff’s counsel requested the ALJ to keep the

record open for an additional 30 days to permit Plaintiff’s

counsel to submit additional medical evidence. Tr. 38-39. The

ALJ also granted that request. Tr. 39. 

Despite two separate conversations with the ALJ about steps

necessary to complete the record, Plaintiff did not raise the

need to order a comprehensive physical examination of Plaintiff. 

Accordingly, the Court concludes Plaintiff, by not raising the

issue before the ALJ, waived any challenge to the ALJ’s failure

to develop the record further by ordering a comprehensive

physical examination. Moreover, the Court declines to excuse

Plaintiff’s waiver of this issue on the basis that it does not

result in manifest injustice. The Court finds the ALJ could

reasonably conclude the record was sufficiently complete to

render a disability decision because it contained 272 pages of

medical records, including 50 pages of records from Plaintiff’s

primary-care physician who treated Plaintiff for his back pain. 

Thus, even if Plaintiff had requested the ALJ to order a

comprehensive physical examination for Plaintiff, the ALJ would

have had “broad latitude” to deny that request. See Taylor v.

Astrue, 386 F. App’x at 632.

On this record, therefore, the Court concludes Plaintiff

waived any assignment of error regarding the ALJ’s failure to

obtain a comprehensive physical examination of Plaintiff.

11 - OPINION AND ORDER
II. Plaintiff’s Testimony

Plaintiff next contends the ALJ erred when she discredited

Plaintiff’s testimony.

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009). The claimant, however, need not produce

objective medical evidence of the actual symptoms or their

severity. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 

See also Delgado v. Commissioner of Social Sec. Admin., 500 F.

App’x 570, 570 (9th Cir. 2012).

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant’s pain testimony only if she provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). General assertions that the claimant’s

testimony is not credible are insufficient. Id. The ALJ must

identify “what testimony is not credible and what evidence

undermines the claimant’s complaints.” Id. (quoting Lester, 

12 - OPINION AND ORDER
81 F.3d at 834).

At the April 23, 2014, hearing Plaintiff stated he was

diagnosed with kidney cancer after he started to feel ill in

December 2011 resulting in his left kidney being removed. Tr.

45-46. Plaintiff stated he has back pain caused by “bulging and

compressed discs” that results in “really bad sciatica pain in

both legs.” Tr. 47. Although Plaintiff’s last back MRI was

taken in 2003, Plaintiff stated his back pain has grown worse

since that time. Tr. 59. Plaintiff also stated he has pain in

his right knee. Tr. 47. Plaintiff testified he has urinary

incontinence and frequency as a result of his back condition

causing him to have to urgently use the restroom three or four

times per day. Tr. 56-57.

Plaintiff testified he has used a cane to walk “off and on

for six years” and that he “usually won’t stray far without it.” 

Tr. 50-51. Plaintiff stated he no longer hunts, hikes, goes

fishing, or rides motorcycles due to “lack of desire” and pain. 

Tr. 52. Plaintiff testified he spends “two to three hours” per

day sitting in a recliner. Tr. 61.

Plaintiff testified his back begins to hurt if he performs

household activities like washing dishes or vacuuming “for more

than a couple minutes.” Tr. 53. Plaintiff stated he is unable

to sit or to stand for a “a period of time” and that he would

have to “move around a lot or stretch a lot” if he had a job

13 - OPINION AND ORDER
where he had to sit or to stand. Tr. 60.

In his Adult Function Report dated April 24, 2012, Plaintiff

stated he cannot bend or sit for “too long” and cannot lift over

10 pounds. Tr. 265. Plaintiff stated he has difficulty sleeping

due to his back and sciatic-nerve pain. Tr. 266. Plaintiff

reported he has difficulty washing below his knees while bathing

because bending over causes pain. Tr. 267. Plaintiff stated he

does not do yard work because he is in “to[o] much pain at [the]

current time.” Tr. 268. As noted, Plaintiff listed fishing and

hunting as among his interests, but noted he has not been able to

participate in those activities because he “cannot lift more than

10 [pounds] or walk on [the] river bank safely.” Tr. 269. 

Plaintiff indicated his conditions affect his abilities to

lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs,

complete tasks, and concentrate. Tr. 270. Plaintiff reported he

can walk only 50-80 yards before needing to rest depending on the

terrain, and severe pain affects his concentration. Tr. 270. 

Plaintiff indicated he uses a cane approximately 40-50% of the

time and that the cane was prescribed to him by a doctor. 

Tr. 271.

The ALJ discredited Plaintiff’s testimony because the extent

of Plaintiff’s allegations relating to severe limitations caused

by chronic pain were not supported, and in some instances were

contradicted, by the medical record. 

14 - OPINION AND ORDER
For example, the ALJ correctly noted the medical record did

not support Plaintiff’s testimony that he had been prescribed a

cane to use for the six years leading up to the April 2014

hearing and his presentation at the hearing ambulating with a

cane. The only reports in the medical record of Plaintiff using

a cane appear on a November 23, 2010, chart note after Plaintiff

suffered a major knee injury while dirt biking and before he

underwent surgery to repair the damage and on February 16, 2011,

while Plaintiff was recovering from that surgery. Tr. 502, 545. 

Notably, however, Plaintiff was capable of full weight-bearing by

March 2011 (Tr. 482) and was “released to work without

restrictions” on August 11, 2011. Tr. 477. Throughout the

remainder of the record it was frequently noted that Plaintiff

had a steady gait or walked with a mild limp, but Plaintiff was

not observed to be ambulating with a cane aside from the period

immediately surrounding his knee injury and surgery. See, e.g.,

Tr. 514, 515, 520, 526, 529, 542. The ALJ’s observation,

therefore, that the medical record did not support Plaintiff’s

allegations regarding his need to ambulate with a cane strongly

supports the ALJ’s finding that Plaintiff exaggerated the extent

of his limitations.

The ALJ also found Plaintiff’s reports of hunting to be

inconsistent with the extent of his allegations about his back

pain and his limitations with respect to standing and walking. 

15 - OPINION AND ORDER
For example, on October 13, 2011, Plaintiff told his primary-care

physician, Darryl George, DO, that he had “been out hunting, but

limited [with] walking” because his right knee limited his

ability to go up and down hills. Tr. 535. Plaintiff, however,

stated he managed to go hunting using a knee brace and walking

stick and had his partner’s help with packing out their “kills.” 

Tr. 535. That same day Plaintiff told Dr. George that he took

“overnight hunts [of] up to five nights.” Tr. 535. The ALJ

reasonably found this report inconsistent with Plaintiff’s

testimony in which he stated in April 2012 that he was unable to

hunt or to fish. Tr. 269. Moreover, the ALJ reasonably found

Plaintiff’s report of multi-day hunting trips inconsistent with

the allegations of significant walking, lifting, and standing

limitations in Plaintiff’s April 2012 Adult Function Report as

well as in Plaintiff’s April 2014 hearing testimony. 

The ALJ also identified other inconsistencies in Plaintiff’s

symptom reporting throughout the medical record. For instance,

the ALJ correctly pointed out that although Plaintiff reported to

Dr. George on March 5, 2013, that an incisional hernia from his

kidney surgery was causing him pain (Tr. 521), he denied

experiencing any pain from the incisional hernia in an

appointment with his urologist, Christopher Kyle, M.D., on 

March 15, 2013. Tr. 461. Although Dr. Kyle gave Plaintiff a

referral to a general surgeon to repair the incisional hernia, as

16 - OPINION AND ORDER
of December 11, 2013, Plaintiff had not yet made an appointment

to do so. Tr. 456. In addition, the ALJ noted that even though

Plaintiff alleged his back pain was longstanding and that he has

used narcotics and marijuana to treat it since at least mid-2010

(Tr. 556), Plaintiff was able to ride dirt bikes as recently as

October 2010 when he tore his ACL doing so. Tr. 351.

Accordingly, on this record the Court concludes the ALJ did

not err when he discredited Plaintiff’s testimony because he

provided legally sufficient reasons supported by substantial

evidence for doing so.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter pursuant to sentence four

of 42 U.S.C. § 405(g).

IT IS SO ORDERED.

DATED this 30th day of June, 2017.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

17 - OPINION AND ORDER