IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KENNETH M. FULLER, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

Defendant. 

Merrill Schneider 

Schneider Kerr Law Offices 

P.O. Box 14490 

Portland, OR 97293 

Attorney for plaintiff 

Janice E. Hebett 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Pottland, Oregon 97201 

Sarah L. Martin 

Social Security Administration 

Office of General Counsel 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, Washington 98104 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case No. 6:15-cv-00148-AA 

OPINION AND ORDER 
AIKEN, Judge: 

Plaintiff Kenneth M. Fuller 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 plaintiffs application for Title II disability insurance 

benefits. For the reasons set forth below, the Commissioner's decision is reversed and this case is 

remanded for an immediate award of benefits. 

PROCEDURAL BACKGROUND 

On August 30, 2010, plaintiff applied for disability insurance benefits. Tr. 195. He alleges 

disability beginning March 11, 2011. 1 Tr. 43. His application was denied initially and upon 

reconsideration. Tr. 100, 118. On July 1, 2013, a hearing was held before an Administrative Law 

Judge ("ALJ"). Tr. 33. Plaintiff, represented by counsel, testified, as did a lay witness and a 

vocational expert ("VE"). On July 23, 2013, the ALJ issued a decision finding plaintiff not disabled 

within the meaning of the Act. Tr. 26. After the Appeals Council denied his request for review, 

plaintiff filed a complaint in this Court. Tr. 1. 

STATEMENT OF FACTS 

Born October 13, 1958, plaintiff was 52 years old on the alleged onset date of disability and 

54 years old at the time of the hearing. 2 Tr. 44, 195. He has an associate's degree. Tr. 58. He 

previously worked as a warehouseman/forklift driver; warehouse lead person; security/loss 

prevention worker; and electrical assistant. Tr. 77. In 2005, plaintiff fell off an approximately 

twelve-foot platform at work. Tr. 300. He landed on his head, sustaining multiple facial fractures, 

scalp lacerations, and an epidural hematoma that required surgical intervention. In 2007, plaintiff 

1 Plaintiff originally alleged an onset date ofFebruaty 14, 2000. Tr. 195. At the hearing 

and after consulting with counsel, he amended his application to March 11, 2011, acknowledging 

substantial gainful activity precluded him from receiving disability benefits prior to that date. Tr. 

43. 

2 In his decision, the ALJ etrnneously stated plaintiff was 41 years old on the alleged 

disability onset date. Tr. 24. This etrnr, which was harmless, appears to be attributable to the 

fact plaintiff amended his onset date at the hearing, as explained in footnote 1 of this Opinion. 

Page 2 - OPINION AND ORDER 
had a heatt attack and was diagnosed with coronary disease. Tr. 350. In his application for benefits, 

he alleges disability due to traumatic brain injury and heatt disease. Tr. 199. Medical records also 

show a pre-accident history of depression. Tr. 318. 

STANDARD OF REVIEW 

A district court must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record. Hammockv. Bowen, 

879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means 

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 

Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The 

coutt must "consider the record as a whole" and weigh "both the evidence that supp01ts and detracts 

from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is 

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

The initial burden of proofrests upon the claimant to establish disability. Howardv. Heckler, 

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

"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)(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. First, the 

Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert, 

482 U.S. at 140; 20 C.F.R. § 404.1520(b). Ifso, the claimant is not disabled. 

At step two, the Commissioner evaluates whether the claimant has a "medically severe 

impaitment or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520( c). 

If the claimant does not have a severe impairment or combination of impairments, he is not disabled. 

At step three, the Commissioner determines whether the claimant's impairments, either 

Page 3 - OPINION AND ORDER 
singly or in combination, meet or equal "one of a number of listed impairments that the 

[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 

482 U.S. at 141; 20 C.F.R. § 404.1520(d). Ifso, the claimant is presumptively disabled; if not, the 

Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

At step four, the Commissioner resolves whether the claimant can still perform "past relevant 

work." 20 C.F.R. § 404.1520(£). If the claimant can work, she is not disabled; if she cannot perfonn 

past relevant work, the burden shifts to the Commissioner. Tackett v. AP.fel, 180 F.3d 1094, 1098 

(9th Cir. 1999). At step five, the Commissioner must establish that the claimant can perform other 

work existing in significant numbers in the national and local economy. Yuckert, 482 U.S. at 142; 

20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 

C.F.R. § 404.1566(c). 

THE ALJ'S FINDINGS 

At step one of the process outlined above, the ALJ found plaintiff had not engaged in 

substantial gainful activity since the alleged disability onset date. Tr. 19. At step two, the ALJ 

determined plaintiffs post-traumatic brain injury, anxiety, and depression were severe impairments. 

Tr. 20. The ALJ acknowledged evidence of coronary artery disease and obesity, but deemed these 

impairments non-severe. At step three, the ALJ found plaintiffs impairments, singly and in 

combination, did not meet or equal the requirements of a listed impairment. 

The ALJ then evaluated how plaintiffs impairments affected her ability to work. The ALJ 

resolved plaintiff possessed the residual functional capacity ("RFC") to perform: 

[M]edium work as defined in 20 [C.F.R. §] 404.1567(c) except he is futiher limited 

to no more than occasional climbing and balancing. He must avoid concentrated 

exposure to moving machinety, unprotected heights, or similar workplace hazards. 

He should also avoid more than occasional exposure to flashing lights. He is limited 

to simple, repetitive, routine tasks requiring no more than occasional interaction with 

the general public. 

Tr. 21. 

At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr. 24. 

At step five, the ALJ concluded ')obs ... exist in significant numbers in the national economy that 

Page 4 - OPINION AND ORDER 
the claimant can perfmm." Tr. 25. Accordingly, the ALJ concluded plaintiff was not disabled under 

the Act. 

DISCUSSION 

Plaintiff argues the ALJ erred by (!) discrediting plaintiffs testimony without clear and 

convincing reasons for doing so; (2) improperly evaluating the lay witness statements of plaintiffs 

ex-wife and friend; and (3) discrediting the opinion of his treating physician without specific, 

legitimate reasons for doing so. 

l Credibility 

Plaintiff first argues the ALJ failed to provide clear and convincing reasons for rejecting his 

testimony concerning the severity of his symptoms. When a claimant's medically documented 

impairments reasonably could be expected to produce some degree of the symptoms complained of, 

and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's 

testimony about the severity of ... symptoms only by offering specific, clear and convincing reasons 

for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion the 

claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible and 

what evidence suggests the complaints are not credible." Dodrill v. Sha/ala, 12 F.3d 915, 918 (9th 

Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to 

conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 

F.3d 748, 750 (9th Cir. 1995). If the "ALJ's credibility finding is suppo1ted by substantial evidence 

in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 

959 (9th Cir. 2002). 

At the hearing, plaintiff testified his ability to perform his job as a warehouseman and forklift 

driver degraded over time following his accident. Tr. 42. After he had three "reportable accidents" 

while driving the forklift, plaintiffs employer took him off forklift duty and had him do paperwork 

such as inventory. Tr. 45-46, 65. The employer cut his hours from full-time to six hours per day 

because he was unable to work for a full day. Tr. 66. Later, his hours were fmther cut to four hours 

Page 5 - OPINION AND ORDER 
per day because he kept making mistakes. Tr. 42. Employer records corroborate plaintiffs account. 

See Tr. 181-82 (incident report regarding forklift accidents); tr. 179-80 (employer questionnaire 

filled out by human resources director indicating plaintiff was assigned "fewer or easier duties," "less 

hours," and "extra help/supervision" compared to employees in similar positions and assessing 

plaintiffs productivity at fifty percent or less than other employees' productivity). 

Plaintiff states he continues to engage in a variety of activities since he stopped working, 

including doing "odd jobs" such as welding and electrical work; doing projects in his shop at home; 

preparing meals; driving his teenage daughter to activities; helping with household chores; attending 

church; and shopping for groceries. Tr. 48-57. However, his fatigue affects his ability to 

concentrate, answer questions, focus, and do things without making mistakes. Tr. 230. He 

consistently testified he is primarily able to do these activities in the morning. Tr. 49, 58. He states 

doing any activity for a couple of hours "wipes [him] out" and he needs to rest or take a nap. Tr. 49, 

54, 57, 217, 219, 230. If he pushes himself to work beyond the two-hour threshold in the shop he 

makes mistakes and injures himself. Tr. 64-65. He estimates he can do five hours of"light dut[y]" 

work in a typical day with significant naps or rest breaks. Tr. 215. 

The ALJ found plaintiffs testimony about his fatigue not credible for three reasons. First, 

the ALJ noted that although plaintiffs "clu·onic fatigue and cognitive problems reportedly pre-dated 

his decision to stop working by several years," plaintiff was "nevertheless able to work 8-hour 

shifts." Tr. 22. Ordinarily, if a plaintiff has worked in the past notwithstanding an allegedly 

disabling condition, an ALJ may conclude that condition does not render the plaintiff disabled. 

Greg01y v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988). But this is not the ordinaiy case. Medical 

records show plaintiff returned to work on a pa1i-time basis after the accident. He slowly ramped 

back up to nearly full-time work, eventually reaching thitiy- hours per week. He consistently 

rep01ied fatigue and other cognitive problems to medical providers. E.g. Tr. 308 (late 2005, working 

thirty-four hours per week but "extremely fatigued, especially on his eight hour days"); Tr. 325-26 

(early 2006, "quite exhausted" with thirty-four hour per week schedule); Tr. 333 (summer 2007, 

Page 6 - OPINION AND ORDER 
"difficulty working an eight-hour day without feeling 'wiped out"'); Tr. 383 (sunnner 2009, "no 

energy and can barely function" by Thursday of workweek and "no quality of life left" after work). 

During this same period, his marriage deteriorated, as did his ability to socialize or volunteer -

activities he and his wife rep01ied he had done frequently in the past. As noted, plaintiffs testimony 

and employer records reveal his hours were cut numerous times due to his inability to perform job 

responsibilities to an acceptable standard. The record fmiher suggests plaintiff may have only been 

able to stay in his position because his employer was willing to make unusual and significant 

accommodations for his impairments-for example, the employer continued to pay him a full-time 

salary even after cutting his hours to half-time. In sum, the record shows plaintiffs fatigue and other 

mental symptoms persistently interfered with his ability to work. Under these unusual 

circumstances, plaintiffs ability to work in the years after the accident is not a convincing reason 

to discredit his testimony. 

Second, the ALJ found plaintiffs activities of daily living inconsistent with the purported 

severity of his symptoms. The ALJ noted plaintiff is able to drive; spend two hours in his shop in 

the mornings; perform welding and electrical work; go shopping; attend church; help his daughter 

with her homework; read; play computer games; and watch television. Tr. 23. However, the ALJ 

did not address plaintiffs consistent statements, both at the hearing and to providers in the medical 

records, that he is only able to sustain activity for about two hours before he needs a significant rest 

period and that his stamina deteriorates over the course of the day. Thus, substantial evidence does 

not support the ALJ' s second reason for an adverse credibility determination because plaintiffs 

statements about his ability to engage in activities for limited periods of time are fully consistent with 

the alleged severity of his fatigue. 

Finally, the ALJ concluded plaintiffs testimony he only sees a doctor eve1y six months for 

his fatigue and cognitive symptoms "reasonably suggests that his medical problems were not severe 

enough to merit more frequent medical attention." Tr. 24. Substantial evidence does not suppo1i 

this reading of the record. For years, plaintiff aggressively sought medical care and other supp01i 

Page 7 - OPINION AND ORDER 
services in an attempt to address his cognitive and emotional problems, though psychological 

evaluations, medication, counseling sessions with his wife, and vocational coaching, among other 

methods. See Tr. 275-93, 307-30, 366-71, 411-90, 507-98. At several points in the years after the 

accident, he saw Dr. Marie, his treating physician, more frequently than once month in addition to 

seeing specialists. See, e.g., Tr. 585-97 (documenting eight visits with Dr. Marie during the second 

half of 2008). Although choosing "conservative treatment" over "aggressive treatment" is a 

permissible ground for discounting a plaintiffs symptom testimony, Tommasetti v. Astrue, 533 F.3d 

1035, 1039 (9th Cir. 2008) (citation omitted), a plaintiff should not be penalized for backing off an 

aggressive treatment schedule when a zealous, years-long eff01t fails to yield significant relief. 

The government points to medical records stating plaintiffs head injmy alone could not have 

caused such chronic, significant fatigue. See Tr. 90 (agency nonexamining physician opining "injury 

such as the clmt sustained is not consistent with a gradual decline-type pattern but is rather of a type 

that stabilizes w/in about 6 mos to one year."); Tr. 344 (examining physician opining "[i]t is 

extremely unlikely ... that a closed head injmy without cognitive deficits ... would result in chronic 

significant fatigue"). The ALJ did not directly list this as a reason for the adverse credibility finding, 

and in fact specifically found plaintiffs "medically determinable impairments could reasonably be 

expected to cause the alleged symptoms." Tr. 22. 

Nonetheless, the ALJ does make some statements arguably suggesting skepticism the head 

injury alone caused the fatigue and mental symptoms. See Tr. 23 (noting "mild" and "intermittent" 

cognitive difficulties after the accident). Neither the government nor the ALJ acknowledges, 

however, that a number of plaintiffs examining physicians suggest his symptoms may have been 

caused by a combination of the brain injmy, heart attack, and depression. See Tr. 341 (examining 

psychologist characterizing plaintiff as "medically complex because he also suffers from major 

depression and heart disease, which certainly can have influences on his symptoms"); Tr. 370 

(examining neuropsychologist stating "preexisting depression ... might well have a synergistic 

influence on injmy-related distress, paiticularly as the injury has been complicated by a subsequent 

Page 8 - OPINION AND ORDER 
serious medical event [the heart attack]"); Tr. 386 (examining neurologist hypothesizing fatigue is 

"multifactorial" with multiple causes). Thus, the ALJ ell'ed to the extent he discredited plaintiffs 

symptom testimony as lacking a reasonable basis in the medical evidence. The ALJ failed to provide 

clear and convincing reasons for rejecting plaintiffs subjective symptom statements. 

fl Lay Witness Testimony 

Plaintiff also argues the ALJ improperly discredited written statements from plaintiffs exwife, Jan Fuller ("Fuller"), and the hearing testimony of plaintiffs friend, Darien Fadeley 

("Fadeley"). Generally, lay witness testimony describing a plaintiffs symptoms is "competent 

evidence that the ALJ must take into account." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 

2012). "[I]n order to discount competent lay witness testimony, the ALJ 'must give reasons that are 

germane to each witness."' Id (citing Dodrill, 12 F.3d at 919). 

The statements of Fuller and Fadeley corroborate plaintiffs testimony about his fatigue and 

other cognitive symptoms. Although plaintiff and Fuller are divorced, they still live together. Tr. 

52. Fuller stated the brain injury "severely affected [plaintiffs] ability to reason, problem solve, 

manage himself and deal with others." Tr. 222. Although plaintiff continues to provide some help 

around the house by vacuuming, putting away clothes, cooking, mowing the lawn, and doing minor 

repairs, Fuller reported he has only "two to tlu·ee 'good' hours of productive activity in a day." Tr. 

224, 295. 

Fadeley testified plaintiff does minor electrical projects at her farm about once a month. She 

rep01ied she "really ha[ s] to get him early in the morning ... [b ]ecause ... he doesn't have the 

energy or the stamina to be able to do anything more than that." Tr. 72. Moreover, Fadeley reported 

plaintiffs quality of work "degrad[es] from the time that he staiis to the time he's finished with it." 

Tr. 72. She limits his projects to a couple of hours at a time because "that's all he is effective for." 

Tr. 73. She also has downgraded the difficulty level of the jobs plaintiff does; although he did 

"major electrical work" on the fatm about fifteen years ago, he now replaces lightbulbs or does 

Page 9 - OPINION AND ORDER 
projects such as installing outdoor lighting with simple wiring purchased in a kit at a home 

improvement store. Tr. 74-75. 

The ALJ gave partial weight to the lay witness statements, crediting them to the extent they 

supported a conclusion plaintiff could not engage in past work and would have to be limited to less 

cognitively demanding tasks. Tr. 23-24. The only reason the ALJ gave for discrediting the lay 

witnesses' statements regarding plaintiffs limited stamina and number of"good" hours in a day was 

to characterize those statements as inconsistent with plaintiffs account of his activities of daily 

living. For the reasons set forth in the section addressing plaintiffs credibility, this is not a germane 

reason to discredit Fuller's and Fadeley's statements. 

Ill Treating Physician 

Plaintiff next asserts the ALJ erred in giving little weight to the opinion of Sally Suzanne 

Marie, M.D., plaintiffs treating physician since 1999. Tr. 603. Dr. Marie opined plaintiff could 

work no more than four hours per day consistently, predicted more than sixteen hours of absences 

per month stemming from his impairments, and assessed that fifty percent of the work day plaintiffs 

attention and concentration would be so impaired he "could not be expected to perform even simple 

tasks." Tr. 516, 603-06. When a treating 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, 81F.3d821, 830 (9th Cir. 1995). 

The ALJ interpreted Dr. Marie's hours restrictions and predictions regarding absenteeism as 

relating only to plaintiffs past work as a warehouseman and forklift driver, refusing to apply those 

predictions to a less cognitively demanding position. Tr. 24. This is not a reasonable way to read 

Dr. Marie's opinion. Although Dr. Marie lists plaintiffs hours restrictions at his prior job as a 

reason underlying her predictions, the predictions themselves are in response to broad questions 

about future employment. 

Dr. Marie's opinion does appear to rest, in part, on premises contradicted by the record. She 

writes plaintiff is unable to do outdoor chores or go grocety shopping, Tr. 605, yet plaintiff and the 

Page 10- OPINION AND ORDER 
lay witnesses testified plaintiff is able to perform these activities. This minor contradiction appears, 

based on Dr. Marie's statement plaintiff is able to do indoor chores, to be related to plaintiffs 

sensitivity to light and sound, a condition not at issue in this appeal. It is questionable whether 

internal conflict on such a minor issue is a sufficient reason to give little weight to the opinion of the 

physician who treated plaintiff for more than a decade. It is not necessa1y to resolve this issue, 

though, because even assuming substantial evidence suppo1ts the ALJ's treatment of Dr. Marie's 

opinion, the ALJ' s other errors require remand. 

IV. Instructions on Remand 

When the ALJ errs in denying a plaintiffs disability claim, the typical remedy is a remand 

for further proceedings. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). However, a district 

court should instead remand for an immediate award of benefits where"(!) the record has been fully 

developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has 

failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 

medical opinion; and (3) ifthe improperly discredited evidence were credited as true, the ALJ would 

be required to find the claimant disabled on remand." Id When these three requirements are met, 

remand for fmther proceedings is appropriate only if "an evaluation of the record as a whole creates 

serious doubt that a claimant is, in fact, disabled." Id at 1021. 

The requirements for a remand for award of benefits are met here. As explained above, the 

ALJ failed to provide legally sufficient reasons for rejecting plaintiffs testimony and the lay witness 

statements. Further, crediting that improperly discredited evidence as true, a finding of disability 

would be required. The VE testified ten percent "off task" time in an eight-hour work day would 

be "a problem" and twenty percent "off task" time would mean plaintiff "simply cannot hold or 

maintain competitive work." Tr. 81. Crediting plaintiffs testimony and the lay witness statements 

about fatigue and stamina as true, his "off task" time would approach fifty percent, far in excess of 

the twenty percent threshold. Moreover, the medical record in this case is amply developed, and I 

find it creates no serious doubt as to whether plaintiff is disabled. Because fmther administrative 

Page 11 - OPINION AND ORDER 
proceedings would serve no useful purpose in this case, it is remanded for an immediate award of 

benefits.3 

CONCLUSION 

The Commissioner's decision is REVERSED and REMANDED for an immediate 

calculation of benefits. 

IT IS SO ~Rl)f~~· 

Dated thisl.3day of February 2016. 

Ann Aiken 

United States District Judge 

3 The government argues remand for fu11her proceedings is the only available relief in this 

case because plaintiff failed to "clearly and distinctly" argue why an immediate award of benefits 

is justified in his opening brief. See Avila v. Los Angeles Police Dep 't, 758 F.3d 1096, 1101 (9th 

Cir. 2014) (articulating the waiver rule). To the contrary, I find plaintiff's request for remand for 

an immediate award of benefits in his opening brief was sufficiently clear and distinct to raise the 

issue. 

Page 12 - OPINION AND ORDER