PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LARRY D. TYLER,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Case No. 3:15-cv-01879-SI

OPINION AND ORDER

Merrill Schneider, SCHNEIDER KERR LAW OFFICES, P.O. Box 14490 Portland, OR 97293. Of 

Attorney for Plaintiff.

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

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

OR 97204; Martha A. Boden, 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.

Larry Tyler (“Plaintiff”) seeks judicial review of the final decision of the Commissioner 

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

insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 1 of 15
PAGE 2 – OPINION AND ORDER

the Social Security Act. For the reasons discussed below, the Commissioner’s decision is 

AFFIRMED. 

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper 

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means 

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th 

Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 

1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 

F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 

Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the 

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 

F.3d at 1226.

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 2 of 15
PAGE 3 – OPINION AND ORDER

BACKGROUND

A. Plaintiff’s Application

Plaintiff is a sixty-three-year-old man who served in both the United States Marines and 

the National Guard until 2000. AR 640. After serving in the military, Plaintiff worked as a buffet 

server and busser until 2004, when he suffered a back injury. AR 44-6, 382. From 2006 to 2009, 

Plaintiff worked for short periods of time in various positions as a construction laborer, factory 

worker, and fast food worker. AR 376, 382. On July 11, 2012,

1

Plaintiff protectively filed an 

application for DIB and an application for SSI with an alleged disability onset date of December

31, 2004. He claimed he was unable to work due to hearing loss, high blood pressure, back 

problems, and hip problems. AR 375. 

Plaintiff’s applications were initially denied on September 11, 2012, and were again 

denied upon reconsideration on December 26, 2012. AR 19. A hearing was held on 

April 21, 2014 at Plaintiff’s request with Plaintiff’s counsel present. AR 19. A vocational expert 

(“VE”) testified at the hearing. AR 19. Upon considering the evidence, the Administrative Law 

Judge (“ALJ”) concluded that Plaintiff was not disabled as defined in the Social Security Act. 

AR 20. Plaintiff seeks review of the ALJ’s 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. 

 

1

Plaintiff also filed prior applications on May 21, 2009, alleging disability beginning on 

December 31, 2004, and on June 29, 2010 (DIB) and August 26, 2010 (SSI), alleging disability 

beginning June 1, 2008. All of these applications were denied and it does not appear that Plaintiff 

appealed those denials. AR 19. The ALJ did not, however, apply res judicata to Plaintiff’s 

applications.

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 3 of 15
PAGE 4 – OPINION AND ORDER

§ 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.

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.

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 4 of 15
PAGE 5 – OPINION AND ORDER

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.

C. The ALJ’s Decision

The ALJ applied the sequential analysis. AR 21. At step one, the ALJ found that Plaintiff 

met the insured status requirements through September 30, 2011, and that Plaintiff had not 

engaged in substantial gainful activity after the alleged onset date of December 31, 2004. AR 21. 

The ALJ noted that although Plaintiff had worked in various jobs after the alleged disability 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 5 of 15
PAGE 6 – OPINION AND ORDER

onset date, Plaintiff’s averaged earnings throughout those years did not rise to the level of 

substantial gainful activity.2 AR 22. At step two, the ALJ found that Plaintiff has the following 

severe impairments: “bilateral sensorineural hearing loss, lumbar degenerative joint 

disease/strain with pain, and left shoulder muscle pain.” AR 22. At step three, the ALJ 

determined that Plaintiff does not have an impairment or combination of impairments that meets 

or equals the requirements of a listed impairment. AR 23. The ALJ found that Plaintiff has the 

RFC to perform medium work, with some limitations. AR 23. Specifically, the ALJ found:

[T]he claimant has the residual functional capacity to perform 

medium work as defined in 20 CFR 404.1567(c) and 416.967(c) 

except he may frequently climb ramps and stairs, stoop, kneel, 

crouch and crawl. He may occasionally climb ladders, ropes, and 

scaffolds. He may frequently engage in handling and fingering 

with the right upper extremity. He may occasionally reach 

overhead with the left upper extremity. He must avoid more than 

occasional exposure to hazards such as moving machinery and 

unsecured heights. He must avoid all exposure to loud noise. He 

will perform optimally in work tasks that do not require fine 

hearing discrimination, and that can be performed in a quiet work 

environment. 

Id.

In making this decision, the ALJ assigned great weight to the opinion of examining 

physician Justin Rufener, M.D., and only some weight to examining physician Nancy Vinikoor, 

M.D. AR 25-6. Lower weight was assigned to Dr. Vinikoor’s opinion because the ALJ credited

Plaintiffs complaints regarding severe back pain over Dr. Vinikoor’s opinion that Plaintiff’s back 

pain would not affect occupational functioning. AR 28. The ALJ assigned only some weight to 

state agency non-examining physicians Martin Kehrli, M.D., Martin B. Lahr, M.D., and Neal 

Berner, M.D. The ALJ credited their opinions regarding Plaintiff’s hearing limitations. AR 27.

 

2

Plaintiff’s earnings from his job at McDonalds in 2008 ($8,928.87) and 2009 

($1,778.21) were below the $940 per month average for 2008 and $980 per month average in 

2009 required to trigger the presumption of substantial gainful activity. 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 6 of 15
PAGE 7 – OPINION AND ORDER

Relating to Plaintiff’s back pain, Dr. Kehrli, Dr. Lahr, and Dr. Berner opined that Plaintiff had no 

exertional limitations at the time of their opinion, but the ALJ noted that more recent evidence 

not seen by those physicians revealed that Plaintiff’s back pain had been worsening. AR 27. The 

ALJ therefore reduced the weight of those doctors’ opinions with respect to Plaintiff’s exertional 

limitations. AR 27. The ALJ assigned significant weight to state agency non-examining

physicians Robert Hander, M.D., and Sharon Eder, M.D., who opined that Plaintiff would be 

limited both by his hearing impairments and back pain. AR 28. 

The ALJ also took into account Plaintiffs activities of daily living (“ADL”) and 

Plaintiff’s work experience after the alleged onset date in determining Plaintiff’s RFC. AR 26. 

The ALJ noted that Plaintiff’s ADLs were not limited to the same extent as Plaintiff’s complaints 

of disabling symptoms. AR 26. Additionally, the ALJ remarked that Plaintiff’s work experience, 

especially as a fast food worker, showed that Plaintiff’s level of activity in those jobs belied his 

claim for disability. AR 26. The ALJ noted that Plaintiff’s girlfriend, Lucille Masterson, reported 

that Plaintiff was able to help his mother with indoor and outdoor chores, drive a car, and 

perform other significant work-like activities after the alleged onset date. AR 27. Additionally, 

the ALJ considered an opinion from a non-acceptable medical source, Stephanie Pesa, Au.D., 

who opined that if Plaintiff obtained hearing aids, Plaintiff’s ability to work would not be 

affected by his hearing problems. AR 28. 

In light of Plaintiff’s RFC, the ALJ found at step four that Plaintiff is capable of 

performing past relevant work as a buffet worker and busser. AR 28. The ALJ proceeded to step 

five to find that in the alternative, Plaintiff could perform the job of night janitor that exists in 

significant numbers in the national economy. AR 29. The ALJ based this finding on the 

testimony of the VE, who stated that the noise level of the job of night janitor as performed today

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 7 of 15
PAGE 8 – OPINION AND ORDER

is lower than the noise level indicated in the outdated job description that appears in the 

Dictionary of Occupational Titles (“DOT”). AR 30, 72. In conclusion, the ALJ found that 

Plaintiff has not been under disability from the alleged onset date of December 31, 2004, to the 

date that the ALJ rendered his decision. AR 30.

DISCUSSION

Plaintiff argues that the ALJ committed reversible error by: (A) failing to provide reasons 

for rejecting physicians’ opinions regarding Plaintiff’s hearing impairment and thereby issuing 

an RFC that is not supported by substantial evidence; and (B) issuing an RFC regarding 

Plaintiff’s back pain that is outdated and therefore not supported by substantial evidence. 

A. Plaintiff’s Hearing Impairment

Plaintiff argues that the ALJ effectively rejected the opinions of state agency nonexamining physicians by failing to take those opinions into consideration in formulating 

Plaintiff’s RFC regarding his hearing impairment. The ALJ is responsible for resolving conflicts 

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

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

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

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

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

physician’s opinion is supported by medically acceptable techniques and is not inconsistent with 

other substantial evidence in the record, the treating physician’s opinion is given controlling 

weight. Id.; see also 20 C.F.R. § 404.1527(d)(2). A treating doctor’s opinion that is not 

contradicted by the opinion of another physician can be rejected only for “clear and convincing” 

reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor’s 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 8 of 15
PAGE 9 – OPINION AND ORDER

opinion is contradicted by the opinion of another physician, the ALJ must provide “specific and 

legitimate reasons” for discrediting the treating doctor’s opinion. Id.

In addition, the ALJ generally must accord greater weight to the opinion of an examining 

physician than that of a non-examining physician. Orn, 495 F.3d at 631. As is the case with the 

opinion of a treating physician, the ALJ must provide “clear and convincing” reasons for

rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502, 

506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another 

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

examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may 

reject an examining, non-treating physician’s opinion “in favor of a nonexamining, nontreating 

physician when he gives specific, legitimate reasons for doing so, and those reasons are 

supported by substantial record evidence.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995), 

as amended (Oct. 23, 1995). 

Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance 

on a claimant’s discredited subjective complaints, inconsistency with medical records, 

inconsistency with a claimant’s testimony, and inconsistency with a claimant’s daily activities. 

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1042-43. An 

ALJ effectively rejects an opinion when he or she ignores it. Smolen v. Chater, 80 F.3d 1273, 

1286 (9th Cir. 1996).

The RFC is the maximum a claimant can do despite their limitations. See 20 C.F.R. 

§§ 404.1545, 416.945. In determining the RFC, the ALJ must consider limitations imposed by all 

of a claimant’s impairments, even those that are not severe, and evaluate “all of the relevant 

medical and other evidence,” including the claimant’s testimony. SSR 96-8p, available at 1996 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 9 of 15
PAGE 10 – OPINION AND ORDER

WL 374184. The ALJ is responsible for resolving conflicts in the medical testimony and 

translating the claimant’s impairments into concrete functional limitations in the RFC. StubbsDanielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations supported by 

substantial evidence must be incorporated into the RFC and, by extension, the dispositive 

hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th 

Cir. 2001).

The ALJ limited Plaintiff to jobs involving exposure to at most moderate noise, or noise 

level three within the DOT. AR 24. The ALJ noted further that Plaintiff would perform optimally 

in tasks that could be performed in a quiet work environment. AR 24. Plaintiff argues that the 

proper RFC would have limited him to jobs involving exposure to at most quiet noise, or noise 

level two, based on the physicians’ opinions. The companion manual to the DOT, the Selected 

Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles 

(“SCODICOT”), provides examples of workplaces that involve noise level three, or moderate 

noise. U.S. Dept. of Labor, Employment, & Training Admin., SELECTED CHARACTERISTICS OF 

OCCUPATIONS DEFINED IN THE REVISED DICTIONARY OF OCCUPATIONAL TITLES, Appendix D: 

Environmental Conditions (1993). Those workplaces include department stores, grocery stores, 

and fast food restaurants at off hours. Id. The SCODICOT also provides the example workplaces 

of a library, private office, and golf course to represent a noise level two workplace. Id. 

Plaintiff argues that the physicians’ opinions established that Plaintiff should be limited 

to workplaces with a noise level of two or less, and that by limiting Plaintiff to workplaces with a 

noise level of three or less, the ALJ effectively rejected the physicians’ opinions without reason. 

The ALJ noted that Drs. Kehrli and Lahr opined that Plaintiff should “avoid all exposure to 

noise.” AR 27. Their opinion relating to Plaintiff’s hearing loss was given some weight by the 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 10 of 15
PAGE 11 – OPINION AND ORDER

ALJ, although the ALJ noted that Plaintiff suffered from additional limitations unrelated to 

hearing loss. Id. The ALJ further noted that Dr. Berner opined that Plaintiff “needed to work in 

quiet settings and needed to avoid concentrated exposure to noise to preserve residual hearing.” 

AR 27. Similar to the ALJ’s treatment of Drs. Kehrli and Lahr, the ALJ gave Dr. Berner’s 

opinion some weight relating to Dr. Berner’s opinion of limitations from hearing loss but the 

ALJ again noted that more recent evidence showed Plaintiff had additional non-hearing related 

limitations. The ALJ also considered the opinions of Dr. Hander and Dr. Eder by noting that they 

opined that Plaintiff “should avoid even moderate exposure to noise.” AR 28. The ALJ 

specifically noted that the opinions of these doctors are “well supported by the medical 

evidence” and that “significant weight has been given their opinions.” Id. The ALJ also noted the 

opinion of Ms. Pesa, a non-acceptable medical source, but the ALJ found her opinion should be 

given only some weight because the ALJ found that Plaintiff’s hearing impairment warranted 

more limitation than opined-to by Ms. Pesa. Finally, the ALJ noted that he gave great weight to 

Dr. Rufener’s opinion that Plaintifff “may have some difficulty hearing, particularly in noisy 

environments.” AR 27.

The ALJ gave some weight to three of the agency consulting doctors who assigned 

Plaintiff limitations relating to his hearing loss, and the ALJ gave significant weight to the 

opinions of Drs. Hander and Eder, emphasizing how well-supported their opinions were. As 

noted above, Drs. Hander and Eder opined that Plaintiff “should avoid even moderate exposure 

to noise.” AR 28 (emphasis added). The ALJ did not, however, incorporate this limitation in the 

RFC, which only precludes Plaintiff from “exposure to loud noise.” AR 24 (emphasis added). 

The ALJ provided no reason for failing to incorporate the limitation that Plaintiff should not be 

subjected to even moderate exposure to noise from Drs. Hander and Eder’s opinion. Although 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 11 of 15
PAGE 12 – OPINION AND ORDER

Drs. Hander and Eder phrased the limitation as “moderate exposure to noise” instead of 

“moderate noise,” it is a logical inference that those doctors meant to restrict Plaintiff to jobs at 

the quiet level, or DOT noise level two, in saying that Plaintiff should avoid exposure to 

moderate noise (DOT noise level three). Although the doctors did not use those precise words, as 

the ALJ noted, the doctors are disability agency consultants and are “considered experts in the 

Social Security Disability programs.” AR 28. Use of “moderate” was not an accident. Further, 

this interpretation of Drs. Hander and Eder’s medical opinion is supported by the opinions of 

Drs. Kehrli and Lahr (that Plaintiff should “avoid all exposure to noise”) and Dr. Berner (that 

Plaintiff needed quiet settings and to avoid concentrated exposure to noise). All three of these 

doctors are also agency medical consultants and therefore experts in Social Security Disability 

programs. Accordingly, the ALJ erred by not limiting Plaintiff only to jobs involving quiet noise, 

or DOT noise level two.

This error by the ALJ, however, is harmless. Assuming that Plaintiff had to be limited to 

jobs with a noise level of two rather than three, Plaintiff would still be able to perform the job of 

night janitor, which exists in significant numbers in the national economy. AR 29. Although that 

job is listed in the DOT as having a noise level of three, the VE testified at hearing that the DOT

listing is outdated. AR 72. The VE stated that as the job of night janitor is currently performed, 

the appropriate noise level designation is level two, or quiet. Id. An ALJ may rely on a VE’s 

response to vocational hypotheticals when determining a claimant’s disability. Osenbrock, 240 

F.3d at 1162. Based on the VE’s testimony, Plaintiff would be capable of performing the job of 

night janitor even if his RFC was limited to jobs with no greater than a noise level of two, as 

Plaintiff advocates would be appropriate.

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 12 of 15
PAGE 13 – OPINION AND ORDER

B. Plaintiff’s Back Pain

1. Degree of Limitation

Plaintiff argues that the ALJ’s RFC regarding Plaintiff’s back pain was not supported by 

substantial evidence because it was based on outdated medical information. In formulating the 

RFC, the ALJ found that Plaintiff was limited to medium work due to his back pain. AR 23-4.

The evidence that Plaintiff argues was not incorporated into the ALJ’s formulation of the RFC

was imaging performed in 2013 of Plaintiff’s spine, which showed “moderate degenerative 

changes . . . most prominent at L5-S1.” AR 745. The ALJ considered this piece of evidence in 

his analysis of the medical record and opinion evidence, and in formulating the RFC. The ALJ 

noted “X-rays of the lumbar spine performed on January 4, 2013, revealed moderate 

degenerative changes most prominent at L5-S1.” AR 25-6. Before 2013, four physicians opined 

that Plaintiff had no exertional limitations resulting from his back pain. AR 27. The ALJ

illustrated consideration of the new imaging evidence by reducing the weight given to those

opinions, stating, “more recent evidence shows that the claimant is further limited by back pain 

associated with degenerative joint disease and left shoulder muscle pain to no more than medium 

work.” Id. 

The ALJ’s analysis was not only limited to information preceding the 2013 imaging. At 

the 2014 hearing, Plaintiff explained that he could be on his feet all day so long as he got to 

move around, and that he could walk one mile before having to rest. AR 25, 48. The ALJ 

considered this testimony, the imaging evidence from 2013, and all of the other medical evidence 

and opinion evidence, and concluded that Plaintiff was limited to no more than medium work. 

AR 27. Although Plaintiff contends that the ALJ should have reached a different RFC based on 

the evidence, the Commissioner’s conclusion must be upheld where the evidence is susceptible 

to more than one rational interpretation. Burch, 400 F.3d at 679. The Commissioner’s decision to 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 13 of 15
PAGE 14 – OPINION AND ORDER

limit Plaintiff to medium work in the RFC was a rational interpretation of the medical and 

opinion evidence, and was supported by substantial evidence. 

2. Duty to Develop the Record

Plaintiff also argues that the ALJ had a duty to develop the record in light of new medical 

evidence. “The ALJ has a special duty to develop the record fully and fairly and to ensure that 

the claimant’s interests are considered, even when the claimant is represented by counsel.” 

Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the claimant is unrepresented, 

represented by a lay person, or suffering from a mental illness rendering him or her unable to 

protect his or her own interests, then “the ALJ must be especially diligent in exploring for all of 

the relevant facts.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citation omitted). 

“Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to allow for proper 

evaluation of the evidence, triggers the ALJ’s duty to ‘conduct an appropriate inquiry.’” Id.

(quoting Smolen, 80 F.3d at 1288). 

“No authority suggests that the regulations require the ALJ to continue developing the 

record until disability is established; the regulations require only that the ALJ assist the claimant 

in developing a complete record.” Hampton v. Astrue, 2009 WL 2351703, at *11 (D. Or. July 27, 

2009) (citing Yuckert, 482 U.S. at 146). Additionally, the Commissioner “has broad latitude in 

ordering a consultative examination.” Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001) 

(quoting Diaz v. Sec’y of Human Health and Servs., 898 F.2d 774, 778 (10th Cir. 1990). The 

government is only required to bear the burden of expense for an examination if additional 

evidence that is not in the medical record is necessary to resolve ambiguity. Id. 

Plaintiff contends that because of the 2013 imaging, the ALJ’s duty to develop the record 

required the ALJ to order a consultative examination of Plaintiff. Although the ALJ generally 

had a duty to develop the record, the ALJ did not find the evidence to be ambiguous or 

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 14 of 15
PAGE 15 – OPINION AND ORDER

inadequate regarding the severity of Plaintiff’s back pain. Additionally, Plaintiff was represented 

by counsel at his hearing, so a heightened duty for the ALJ was not triggered. As explained 

above, the ALJ considered the 2013 imaging in his analysis of the medical evidence, and reduced 

the weight given to the medical opinion evidence in light of the later-conducted imaging. AR 24-

28. The ALJ also considered Plaintiff’s testimony regarding the severity of his back pain, 

Plaintiff’s ADLs, lay person testimony, and opinions from six physicians regarding Plaintiff’s 

exertional limits, along with the objective medical evidence. AR 24-28. The ALJ included some 

back-related limitations in the RFC. There were no glaring ambiguities made apparent to the 

ALJ, so the duty to order a consultative examination or conduct further inquiry was not 

triggered. 

Although there were no physician opinions rendered after 2013, the ALJ accounted for 

the 2013 imaging of Plaintiff’s back in calculating Plaintiff’s RFC. Despite Plaintiff’s 

contentions regarding further inquiry that the ALJ should have taken, the burden of establishing

disability lies with Plaintiff. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The ALJ 

acted within the bounds of his discretion in not ordering a consultative examination and 

evaluating the evidence as it stood. Thus, Plaintiff’s RFC that limited him to medium work due 

to back pain is supported by substantial evidence. The ALJ did not err in formulating Plaintiff’s 

RFC.

CONCLUSION

The Commissioner’s decision that Plaintiff is not disabled is AFFIRMED.

IT IS SO ORDERED.

DATED this 28th day of July, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 3:15-cv-01879-SI Document 17 Filed 07/28/16 Page 15 of 15