IN THE UNITED ST ATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ROBERT THEODORE WOODS 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

RICHARD A. SLY 

610 S.W. Broadway, Suite 405 

Pmiland, OR 97205 

LINDA S. ZISKIN 

P.O. Box 753833 

Las Vegas, NV 89136 

Attorneys for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

District of Oregon 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204-2902 

JEFFREY E. STAPLES 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Ave., Suite 2900 MIS 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 3:14-cv-01761-MA 

OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 1 of 25
MARSH, Judge 

Plaintiff Robett Theodore Woods seeks judicial review of the final decision of the 

Commissioner of Social Security denying his application for a period of disability and disability 

insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has 

jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, I affitm the Commissioner's 

decision. 

PROCEDURAL AND FACTUAL BACKGROUND 

Plaintiff protectively filed an application for a period of disability and disability insurance 

benefits on August 15, 2011, alleging disability beginning May 2, 2007, due to pain and fatigue 

resulting from otthopedic injuries to his neck, back and knee. Plaintiffs claims were denied initially 

and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge 

("ALJ"). AnALJ held a hearing on May 30, 2013, at which plaintiff appeared with his attorney and 

testified. A vocational expett, Paul K. Morrison, also appeared at the hearing and testified. On June 

11, 2013, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiffs request 

for review, and therefore, the ALJ' s decision became the final decision of the Commissioner for 

purposes of review. 

Plaintiff was born on February 27, 1968, and was 44 years old on the date last insured. 

Plaintiff completed high school and some community college classes and has past relevant work as 

a metal fabricator and painter. 

THE ALJ'S DISABILITY ANALYSIS 

The Commissioner has established a five-step sequential process for detetmining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step 

2 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 2 of 25
is potentially dispositive. The claimant bears the burden of proof at steps one through four. See 

Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 

180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show 

that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 

1153, 1161 (9th Cir. 2012). 

The ALJ concluded that plaintiff met the insured status requirements of the Social Security 

Act tlu·ough December 31, 2012. A claimant seeking disability insurance benefits under Title II must 

establish disability on or prior to the last date insured. 42 U.S.C. § 416(1)(3); Burch v. Barnhart, 400 

F.3d 676, 679 (9th Cir. 2005). 

At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since 

his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe 

impaitments: cervical disc herniation with fusion surgery, degenerative disc disease of the lumbar 

spine, gastroesophageal reflux disease ("GERD"), and torn knee cartilage - repaired. At step tlu·ee, 

the ALJ found that plaintiffs impaitments, or combination of impairments, did not meet or 

medically equal a listed impaitment. 

The ALJ assessed plaintiff with a residual functional capacity ("RFC") to perform light work, 

except plaintiff can reach overhead occasionally; can never climb ladders, ropes or scaffolds; he can 

occasionally climb ramps and stairs; he can occasionally crouch, stoop, kneel, or crawl; he cannot 

operate foot controls; and he needs to avoid hazardous machinery. 

At step four, the ALJ found that plaintiff is unable to perfo1m any past relevant work. At step 

five, the ALJ determined that transferability of job skills is not material to the determination of 

disability because using the Medical-Vocational Rules as a framework supports a finding that 

3 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 3 of 25
plaintiff is not disabled whether or not plaintiff has transferable skills. The ALJ found that 

considering plaintiffs age, education, work experience, and residual functional capacity, jobs exist 

in significant numbers in the national economy that plaintiff can perform, such as gate guard, food 

assembler, or printed circuit board assembler. Alternatively, the ALJ found that if plaintiff were 

limited to sedentary exertional activities, plaintiff could perform the requirements of representative 

occupations such as electronics assembler, appointment clerk, or time keeper. Accordingly, the ALJ 

concluded that plaintiff has not been under a disability under the Social Security Act from May 2, 

2007, through December 31, 2012, the date last insured. 

ISSUES ON REVIEW 

On appeal to this comi, plaintiff contends the following enors were committed: (1) the ALJ 

improperly evaluated his testimony; (2) the ALJ improperly evaluated the opinion of examining 

physician Kevin Jones, M.D.; (3) the ALJ improperly evaluated the lay testimony; ( 4) the ALJ erred 

at step five by failing to find that plaintiff has transferrable skills; and (5) the ALJ erred by relying 

on testimony from the vocational expert. 

STANDARD OF REVIEW 

The district court must affom the Commissioner's decision if the Commissioner applied 

proper legal standards and the findings are supported by substantial evidence in the record. 42 

U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is 

more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable 

mind might accept as adequate to suppo1i a conclusion." Hill, 698 F.3d at 1159 (internal quotations 

omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or 

detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014); 

4 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 4 of 25
lYJartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be 

upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. 

Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supp01is the 

Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its 

judgment for that of the Commissioner." Edlundv. lYJassanari, 253 F.3d 1152, 1156 (9th Cir. 2001); 

Garrison, 759 F.3d at 1010. 

I. The ALJ Did Not Err in Discounting Plaintifrs Credibility 

To determine whether a claimant's testimony regarding subjective pain or symptoms is 

credible, an ALJ must perfo1m two stages of analysis. 20 C.F.R. § 404.1529. The first stage is a 

threshold test in which the claimant must produce objective medical evidence of an underlying 

impahment that could reasonably be expected to produce the symptoms alleged. lvfolina v. Astrue, 

674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 

At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ 

must provide clear and convincing reasons for discrediting the claimant's testimony regarding the 

severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th 

Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). 

The ALJ must make findings that are sufficiently specific to permit the reviewing cou1i to 

conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 

F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when 

making such credibility determinations include the objective medical evidence, the claimant's 

treatment histo1y, the claimant's daily activities, inconsistencies in testimony, effectiveness or 

5 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 5 of 25
adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at 

1163; Tommasetti, 533 F.3d at 1039. 

At the hearing, plaintiff testified that he became disabled on May 2, 2007, when he was 

iJ1iured helping his son at a midget car race track. Transcript of Proceedings ("Tr."), ECF No. 13, 

at 40. Plaintiff stated that the car pulled him by the mm, injuring his neck. Tr. at 41. Plaintiff 

testified that he lives on a 26 acre farm, where he and his girlfriend raise cattle. Plaintiff said that 

he put out three bales of hay for the cattle that morning, irritating his neck. Tr. at 44. 

Plaintiff described that he has had a torn meniscus in his knee repaired, and a disc fusion on 

his neck. Tr. at 45. Plaintiff denied drinking alcohol, but uses medical marijuana. Plaintiff 

described difficulty sleeping and noted that sometimes sleep medication is helpful. Tr. at 46. 

Plaintiff explained that he has good days and bad days, and that his neck continues to give 

him trouble. Tr. at 48. Plaintiff stated that he tries to take as little pain medication as possible. 

Plaintiff complained of numbness in his fingers, causing him to drop things. Tr. at 48. Plaintiff 

testified that doctors have not identified the cause of his abdominal pain. Plaintiff stated that he 

could not work for eight hours a day, five days a week, and that he would miss at least a couple of 

days each month due to the pain in his neck. Tr. at 52-53. Plaintiff estimated his productivity to be 

half of what it used to be. Tr. at 53-54. 

In the decision, the ALJ determined that plaintiff's medically determinable impairments 

could reasonably cause his symptoms, but that his statements concerning the intensity, persistence, 

and limiting effects of those symptoms were not entirely credible. Contrary to plaintiff's asse1iion, 

the ALJ provided clear and convincing reasons, citing specific record evidence, that undermine 

plaintiff's subjective complaints. 

6 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 6 of 25
First, the ALJ discussed that the severity of plaintiffs symptoms was not supported by the 

objective medical evidence. Where a claimant's own medical record undercuts his assertions, the 

ALJ may rely upon that contradiction to discredit the claimant. Carmickle, 533 F.3d at 1161; Parra 

v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). The ALJ extensively discussed the lack of objective 

medical supp01i from Fransisco X. Soldevilla, M.D., the nuerosurgeon who performed the cervical 

diskectomy and fusion after plaintiffs May 2007 injmy. Tr. at 22. As the ALJ detailed, after 

plaintiffs injmy, an MRI showed a significant disk herniation at C5-6. Dr. Soldevilla's treatment 

notes reflect that plaintiff was in considerable pain prior to surgery, and that based on imaging of 

plaintiffs neck, surgery clearly was warranted. As the ALJ con·ectly indicated, Dr. Soldevilla' s postsurgical imaging showed a solid fusion. Tr. at 22. After surgety, Dr. Soldevilla's treatment notes 

reflect that plaintiff reported substantial improvement, except that plaintiff had developed aright foot 

drop. For example, in July 2007, plaintiff rep01ied going deep sea fishing, that he was back to work, 

and feeling "pretty good." Tr. at 294. As the ALJ specifically found, Dr. Soldevilla released him 

to light duty work in August 2007. Tr. at 294. In a May 2008 follow up, plaintiff reported to Dr. 

Soldevilla that he was "happy with his cutTent condition" and that his foot drop had "almost retmned 

to normal function." Tr. at 292. Imaging in September 2009 showed no evidence of hardware 

failure, screw loosening, or tissue swelling. Tr. at 324. The ALJ's findings are wholly supported 

by substantial evidence in the record. Based on this evidence, the ALJ appropriately, clearly and 

convincingly discounted plaintiffs allegation that he became unable to work in May of 2007. 

Additionally, as the ALJ appropriately found, contraty to plaintiffs allegations, there are no 

substantial findings to support plaintiffs allegations of disabling low back pain, knee pain, 

abdominal pain or seizures. The ALJ thoroughly discussed plaintiffs left knee meniscectomy 

7 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 7 of 25
perfo1med in November 2007, that plaintiff was doing well after surge1y, and that plaintiff was ve1y 

active post-operatively, including two hours of vacuuming the day following surgery. Tr. at 273, 

277. The ALJ discussed that contrary to plaintiffs complaints oflow back pain, his 2008 and 2012 

MRis showed mild disc bulging, without evidence of canal or foraminal stenosis. Tr. at 251, 378. 

The ALJ accurately noted that contrmy to plaintiffs complaints of longstanding abdominal pain, 

after an extensive work-up, his physician assured him the condition was benign. Tr. at 23, 413-14. 

Lastly, despite plaintiffs complaint of a seizure in September 2009, there were no abnormal findings 

at the time, and plaintiff has not reported any additional seizures, and does not take anti-seizure 

medication. Tr. at 307, 352. My careful review of the record reveals that the ALJ's findings are 

wholly supported by substantial evidence. Because the ALJ has provided other reasons for 

discounting plaintiffs credibility, I conclude the contradiction with the medical record is a clear and 

convincing reason to discount plaintiffs credibility. 

Second, as the ALJ accurately discussed, plaintiffs extensive and varied activities of daily 

living are inconsistent with the degree oflimitation he alleges. Inconsistencies between a claimant's 

self-reported daily activities and the degree of impairment alleged may support an adverse credibility 

finding. Berry, 622 F .3d at 1235. As the ALJ detailed, plaintiff is independent with self-care, shops 

in stores, perfo1ms light gardening and housekeeping, cares for animals on the fa1m, washes clothes, 

prepares meals, hunts, fishes, and watches television. The court acknowledges that a claimant's 

ability to perform some activities of daily living is not necessarily inconsistent with disability. 

However, the extent and variety of activities plaintiff performs, as cited by the ALJ and revealed in 

the record as a whole, demonstrate that the ALJ appropriately discounted plaintiffs credibility on 

this basis. For example, as the ALJ noted, plaintiff occasionally moves hay bales, including the 

8 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 8 of 25
morning of the hearing, which is inconsistent with his allegation of total disability. Tr. at 44, 353. 

The record shows that plaintiffs gardening in 2010 included two hours of weed eating around a 

fence and an hour of limbing trees along the driveway. Tr. 328. Additionally, as the ALJ noted, 

plaintiff rep01ted to a chiropracter in 2010 that he was stiff and sore after a weekend of fishing and 

deer hunting and lifting parts, including an engine block and heavy batteries. Tr. at 327-29. Based 

on this evidence, the ALJ could reasonably find plaintiffs allegations of disability inconsistent with 

his activities. Based on my review of the record in its entirety, I conclude that the ALJ's findings 

are adequately supported by substantial evidence, and provide a clear and convincing reason to 

discount plaintiffs credibility. 

The ALJ also discounted plaintiffs credibility because he has received conservative medical 

treatment for his conditions, and that he has not followed his doctors' recommendations to lose 

weight and exercise. Because the ALJ' s first two reasons provide clear and convincing suppo1t to 

uphold the adverse credibility dete1mination and reasons three and four are not specifically 

challenged by plaintiff, I decline to address them in detail. I have reviewed reasons three and four 

carefully, and conclude that the ALJ' s findings are supported by substantial evidence in the record 

as a whole and lend fu1ther suppo1t to the ALJ's negative credibility determination. See Parra, 481 

F.3d at 751 (finding evidence of conservative treatment may be "sufficient to discount a claimant's 

testimony regarding severity of an impairment"); Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 

1991) (en bane) ("unexplained, or inadequately explained, failure to seek treatment or follow a 

prescribed course of treatment" is relevant credibility factor) (internal quotation marks omitted). 

In sho1t, I readily conclude that the ALJ has provided specific, clear and convincing reasons, 

backed by substantial evidence, to discount plaintiffs credibility. 

9 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 9 of 25
II. The ALJ Did Not Err in Discounting Dr. Jones's Opinion 

In general, the opinion of a treating physician is given more weight than the opinion of an 

examining physician, and the opinion of an examining physician is afforded more weight than the 

opinion of a nonexaminingphysician. Ghanim, 763 F.3d at 1160; Garrison, 759 F.3d 995, 1012 (9th 

Cir. 2-14); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "If a treating physician's opinion is 

well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling 

weight." Orn, 495 F.3d at 631 (internal quotations omitted)(alterations in original); 20 C.F.R. § 

404.1527( c ). To reject the uncontradicted opinion of a treating physician, the ALJ must provide 

"clear and convincing reasons that are supported by substantial evidence." Bayliss v. Barnhart, 427 

F.3d 1211, 1216 (9th Cir. 2005). 

If the treating physician's opinion is contradicted, the ALJ must consider how much weight 

it is entitled to considering the factors in 20 C.F.R. § 404.1527( c )(2-6). The factors include the 

length of the treatment relationship, the frequency of examination, the nature and supportability of 

the opinion, and its consistency with other evidence in the record as a whole. 20 C.F.R. § 

404.1527(d)(2-6); Ghanim, 763 F.3d at 1161. If a treating or examining doctor's opinion is 

contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons. 

Taylor v. Commissioner Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). However, "[t]he 

ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is 

brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 

947, 957 (9th Cir. 2002). 

10- OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 10 of 25
Plaintiff alleges the ALJ elTed in discounting the opinion of examining physician Kevin 

Jones, M.D. Dr. Jones conducted a consultative physical examination of plaintiff on November 14, 

2011. Tr. at 351. Dr. Jones observed that plaintiff could transfer easily from the chair to the 

examination table, could sit comfortably during the interview, he became uncomfortable on the 

examination table after 10 minutes, his gait was normal, he can squat without difficulty, and he had 

negative straight leg testing when seated but positive when lying down. Dr. Jones found that 

plaintiff had no muscle spasms or trigger points in his neck or back, but did have tenderness to 

palpation along his neck and upper lumbar spine. Tr. at 356. Dr. Jones assessed that plaintiff could 

stand and walk for up to six hours, sit for six hours, and that an ergonomic chair would provide 

optimal sitting position, and that plaintiff could lift and carry a maximum of 10 pounds. Tr. at 357. 

According to plaintiff, the ALJ failed to provide clear and convincing reasons to discount Dr. 

Jones's opinion, and thus was required to incorporate Dr. Jones's 10 pound lifting and calTying 

restriction, as well as his need for an ergonomic chair, into the RFC. The Commissioner responds 

that the ALJ provided specific and legitimate reasons for giving Dr. Jones's opinion "little weight." 

The Commissioner is co!Tect. 

Because Dr. Jones' s opinion was contradicted, 1 the ALJ was required to provide specific and 

legitimate reasons for discounting the opinion. In the decision, the ALJ rejected Dr. Jones's opinion 

1

In a December 2011 RFC assessment, nonexamining physician Neal E. Berner, M.D., 

opined that plaintiff could occasionally lift 20 pounds, and 10 pounds frequently. Tr. at 75-76. 

90-91. Dr. Berner's opinion was affirmed on reconsideration by nonexamining physician Sharon 

B. Eder, M.D. Tr. at 90-91. Additionally, Dr. Soldevilla released plaintiff to light duty work in 

August 2007. See Johnson v. Astrue, No. C 12-01580 PJH, 2013 WI 3956248, *5-6 (N.D. Cal. 

July 30, 2013) (describing that physician's release to light duty was consistent with ALJ's RFC 

determination that claimant was capable of limited range of light work and thus not disabled), 

ajj"d, _ F. App'x _, 2015 WL 7349660 (9th Cir. Nov. 20, 2015). 

11 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 11 of 25
that plaintiff is limited to lifting and canying 10 pounds little weight because ( 1) it was inconsistent 

with plaintiffs activities of daily living, and (2) it is unsupported by the objective medical evidence. 

The ALJ' s reasoning readily meets the specific and legitimate standafd. 

First, as discussed in detail above with respect to plaintiffs credibility, the record contains 

abundant evidence of plaintiff performing activities that exceed his alleged limitations. An ALJ may 

discount physicians' opinions based on internal inconsistencies, inconsistencies between their 

opinions and other evidence in the record, or other factors the ALJ deems material to resolving 

ambiguities. ivforgan v. Comm 'r of Soc. Sec. Adm in., 169 F.3d 595, 601-02 (9th Cir. 1999)(finding 

ALJ appropriately discounted physician's opinion where it was inconsistent with plaintiffs activities 

of daily living, and where adverse credibility on that basis was upheld); Royce v. Colvin, Case No. 

3:13-cv-01490-AA, 2014 WL4838949, * 4-5 (D. Or. Sept. 14, 2014)(findingALJ provided specific 

and legitimate reasons for discounting physician's opinion where it was contradicted by claimant's 

admitted activities). The ALJ specifically highlighted only two of these instances when discounting 

Dr. Jones's opinion that plaintiff is limited to lifting and canying 10 pounds - hauling hay and 

moving furniture. Plaintiffs contention that the ALJ failed to cite to specific evidence in the record 

is e1Toneous. In the decision, the ALJ noted that plaintiff testified at the hearing to hauling hay that 

morning, and the ALJ discussed that in June 2012, plaintiff complained to his physician Daisuke 

Yamashita, M.D., of increased back pain after moving "more furniture." Tr. at 21, 23-24. The 

ALJ's findings are wholly suppo1ied by substantial evidence. Tr. at 44, 415. In short, I conclude 

the ALJ' s first reason provides specific and legitimate support for discounting Dr. Jones' s 10 pound 

lifting and carrying restriction. 

12 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 12 of 25
The ALJ's second reason, inconsistency with the objective medical evidence, also is a 

reasonable interpretation of the record. As discussed in detail above, there is little in the objective 

medical record to substantiate plaintiffs allegations of debilitating neck and back pain. AnALJ may 

appropriately discount a physician's opinion ifit is inconsistent with the objective medical record. 

Tommasetti, 533 F.3d at 1041. As the ALJ detailed, after his neck surge1y, plaintiff was released to 

light duty work in August 2007, and follow-up cervical imaging in 2009 showed a solid fusion, 

stable hardware, and no soft tissue swelling. Tr. at 294, 324. Additionally, as the ALJ discussed, 

plaintiffs lumbar imaging in 2008 and 2012 showed only mild disc bulging, with no evidence of 

canal or foraminal stenosis. Tr. at 251, 378. As plaintiff reported to Dr. Jones, he takes only 

ibuprofen and acetaminophen for pain, and the ALJ appropriately discounted plaintiffs credibility 

on this basis. Tr. at 25, 353. The ALJ's findings are suppo1ied by substantial evidence, and 

therefore, the ALJ has provided a second specific and legitimate reason for rejecting Dr. Jones' s 10 

pound lifting and canying restriction.2 

Additionally, I reject plaintiffs contention that the ALJ was required to include Dr. Jones's 

recommendation that plaintiff have an ergonomic chair into the RFC and hypothetical posed to the 

VE. Dr. Jones identified that plaintiffs "[ m ]aximum sitting capacity is up to six hours" and further 

explained that plaintiff "would need an ergonomic chair for optimal sitting position since he is 

uncomfmiable in certain positions." Tr. at 357. Dr. Jones's statement about the need for an 

2

Fmihermore, even assuming arguendo that the ALJ should have incorporated Dr. 

Jones's lifting and canying limitation, it is inconsequential to the non-disability detennination. 

The court may not reverse an ALJ's decision for an error that is harmless. Molina, 674 F.3d at 

1111. The ALJ asked the VE a hypothetical question that included the 10 pound lifting and 

carrying restriction described by Dr. Jones, and the VE identified three jobs existing in 

significant numbers in the national economy that a person with those limitations could perform: 

Electronic Assembler, Appointment Clerk, and Timekeeper. Tr. at 28. 

13 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 13 of 25
ergonomic chair to achieve "optimal sitting position" can reasonably be interpreted as a suggestion 

or recommendation, and not as a functional requirement as argued by plaintiff. An ALJ is not 

required to include physician's recommendations in the RFC. Carmickle, 533 F.3d at 1165 (finding 

ALJ was not required to include recommendation that claimant use a reclinable chair in the RFC or 

hypothetical to the VE). Where "evidence exists to support more than one rational interpretation, 

[the court] must defer to the Commissioner's decision." Batson, 359 FJd at 1193. Accordingly, 

the ALJ reasonably interpreted Dr. Jones's statement about the ergonomic chair as a 

recommendation, and its omission from the RFC or hypothetical to the VE was not e11"or. See 

Gauthier v. Commisioner Soc. Sec. Admin., Case No. 3: 13-cv-O 1234-CL, 2015 WL 2239498, *4 (D. 

Or. May 12, 2015) (rejecting claimant's argument that physician's recommendation for an ergonomic 

chair was a functional requirement that was required to be included in RFC). 

In sum, the ALJ provided specific and legitimate reasons, backed by substantial evidence in 

the record, for discounting Dr. Jones's opinion. The ALJ did not e11". 

III. The ALJ's Failure to Provide Germane Reasons for Discounting the Lay Testimony is 

Harmless 

Lay witness testimony as to a claimant's symptoms or how an impairment affects his ability 

to work is competent evidence, which the ALJ must take into account. See Bruce v. As true, 557 F.3d 

1113, 1115 (9th Cir. 2009); Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 

2006); Nguyen v. Chafer, 100 FJd 1462, 1467 (9th Cir. 1996). The ALJ need not discuss eve1y 

witness's testimony, and "if the ALJ gives gemiane reasons for rejecting testimony by one witness, 

the ALJ need only point to those reasons when rejecting similar testimony by a different witness." 

i'vfolina, 674 F.3d at 1114. Inconsistency with other evidence in the record is a germane reason for 

14- OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 14 of 25
rejecting the testimony of a lay witness. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001 ). It is not 

reversible error to reject lay testimony when "the lay testimony described the same limitations as 

[claimant's] own testimony, and the ALJ's reasons for rejecting [claimant's] testimony apply with 

equal force to the lay testimony." ·Molina, 674 F.3d at 1122. 

Plaintiff argues that the ALJ eJTed in failing to provide germane reasons for discounting the 

lay testimony of plaintiffs significant other Julie Johnston, his father Mack A. Woods, and three 

friends, Carol Clark, Richard Levine, and Roger Murphy. Plaintiff maintains that the lay testimony 

establishes that he experiences pain, can no longer perform work tasks, and has difficulty with 

activities of daily living, which supports a finding of disability. The Commissioner argues that the 

ALJ accurately discussed the lay testimony presented, but concedes that the ALJ failed to provide 

germane reasons for discounting it. The Commissioner contends, however, that because plaintiff 

has failed to identify any functional limitations described by the lay witnesses not already described 

by plaintiff, the ALJ' s error is inconsequential to the ultimate nondisability determination, and the 

ALJ' s error is harmless. I agree. 

For example, as the ALJ discussed, Ms. Johnston described that plaintiff experiences pain, 

has difficulty sleeping, experiences numbness in his legs, drops things due to numbness in his hands, 

and that she worries plaintiff might fall down the stairs. Tr. at 227. Ms. Johnston also described that 

plaintiff experiences nausea, has a poor appetite, and that after plaintiffs neck surgery, his neck and 

back pain hinder "nearly everything" such that he is unable to do most of his former hobbies. Tr. 

at 189-90. In the decision, the ALJ rejected plaintiffs testimony about the severity and limiting 

effects of his neck pain, and found his testimony that he is unable to work due to his pain 

inconsistent with his extensive activities. Tr. at 25-26. Moreover, the ALJ also accounted for 

15 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 15 of 25
plaintiffs neck and back pain in the RFC by limiting him to light or sedentaiy work, limiting his 

overhead reaching, limiting his stair and ramp climbing, and eliminating foot controls and hazardous 

machinery. Tr. 21, 28. Plaintiff points to no additional, specific workplace limitations described in 

Ms. Johnston's testimony, that if credited, establish disability. Thus, plaintiff has not established 

that the ALJ' s failure to provide a ge1mane reason discounting Ms. Johnston's testimony was 

haimful en·or. lvlolina, 674 F.3d at 1114, 1122; 1vlelton v. Astrue, 895 F.Supp.2d 1054, 1060 (D. Or. 

2012) (finding ALJ's failure to provide ge1mane reasons to discount lay testimony was haimless). 

With respect to the remaining lay testimony, the same reasons the ALJ relied upon to 

discredit plaintiff applies equally to the limitations described by plaintiffs father and friends. In a 

May 15, 2013 letter, plaintiffs father described that after plaintiffs neck and knee surgeries in 2007, 

plaintiffs pain has persisted and that plaintiff remains unable to do physical work. Tr. at 230-31. 

In a May 17, 2013 letter, Mr. Levine described that following plaintiffs 2007 accident, plaintiffs 

ability to work has slowly degraded, and that plaintiffs pain and stiffness prevents plaintiff from 

working. Tr. at232. In a May 1, 2013 letter, Ms. Clark described that plaintiff continued to have 

pain and swelling after his 2007 neck surgery, and that a follow-up MRI revealed that the screws had 

come loose. Tr. at 233. Ms. Clark fmiher noted that plaintiff has paiiicular difficulty performing 

work involving his upper body, due to pain and swelling in his neck. Id. In a May 22, 2013 letter, 

Mr. Murphy described that after plaintiffs injury in 2007, plaintiffs ability to fish and hunt has 

diminished, and that he has observed plaintiff become frustrated when working on a friend's vehicle 

due to neck pain. Tr. at 235. 

The third party statements do not differ significantly from plaintiffs, and fail to describe 

limitations beyond those rejected by the ALJ with well-supp01ied, clear and convincing reasons. 

16 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 16 of 25
Because I am confident that the ALJ' s failure to provide reasons germane to each lay witness for 

rejecting the lay testimony did not alter the nondisability dete1mination, I conclude the ALJ' s error 

was harmless. See Jvfolina, 674 F.3d at 1114, 1122 ("if the ALJ gives germane reasons for rejecting 

testimony by one witness, the ALJ need only point to those reasons when rejecting similar testimony 

by a different witness"); Valentine, 574 F.3d at 694 ("In light of our conclusion that the ALJ 

provided clear and convincing reasons for rejecting [Mr.] Valentine's own subjective complaints, and 

because Ms. Valentine's testimony was similar to such complaints, it follows that the ALJ also gave 

germane reasons for rejecting her testimony."). 

IV. ALJ Did Not Err At Step Five 

A. Standards 

At step five, the Commissioner has the burden to identify jobs that exist in significant 

numbers in the national economy that the claimant can perform, despite his limitations. Zavalin v. 

Colvin, 778 F.3d 842, 845 (9th Cir. 2015). After dete1mining the claimant's RFC, the "ALJ then 

considers potential occupations that the claimant may be able to perform." Id.; see 20 C.F.R. § 

404.1566. In doing so, the ALJ relies upon the DOT, "which is the SSA's 'primary source ofreliable 

job information' regarding jobs that exist in the national economy." Zavalin, 778 F.3d at 845-46 

(quoting Teny v. Sullivan, 903 F.2d 1273, 1276 (9th Cir.1990)). The ALJ may also rely upon the 

"testimony of vocational experts who testify about specific occupations that a claimant can perfo1m 

in light of his residual functional capacity." Zavalin, 778 F.3d at 846; Valentine, 574 F.3d at 689. 

B. ALJ Did Not Err Finding Transferability of Skills Not Material 

Plaintiff argues that the ALJ erred at step five in finding that transferability of skills was not 

material to this case. Plaintiff contends that under Social Security Ruling ("SSR") 82-41, because 

17 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 17 of 25
his past relevant work occupations as a metal fabricator and painter were "skilled," the ALJ was 

required to provide written findings as to which skills plaintiff possessed that could be transfenable 

to the semi-skilled jobs identified by the VE, relying on Brayv. Comm 'r Soc. Sec. Adm in., 554 F.3d 

1219 (9th Cir. 2009). 

The Commissioner contends that the ALJ co1Tectly determined transferability of jobs skills 

was not material to the nondisability detennination. The Commissioner argues that under the 

applicable Medical-Vocational Rules ("the Grids"), a finding of"not disabled" was directed whether 

or not plaintiff had transferable skills. The Commissioner is conect. 

Social Security Ruling 82-41 provides: 

1. When transferability of work skills is at issue. Transferability of skills is an issue 

only when an individual's impairment(s), though severe, does not meet or equal the 

criteria in the Listing of Impairments in Appendix 1 of the regulations but does 

prevent the perfonnance of past relevant work (PRW), and that work has been 

detennined to be skilled or semiskilled .... When the table rules in Appendix 2 are 

applicable to a case, transferability will be decisive in the conclusion of "disabled" 

or "not disabled" in only a relatively few instances because, even if it is determined 

that there are no transferable skills, a finding of"not disabled" may be based on the 

ability to do unskilled work. 

SSR 82-41 § 1, available at 1982 WL 31389, *l. SSR 82-41 further states that "when the issue of 

skills and their transferability must be decided, the adjudicator or ALJ is required to make ce1tain 

findings of fact and include them in the written decision. Findings should be supported with 

appropriate documentation." Id. at§ 6. 

In this case, the ALJ appropriately used the Grids as a framework because plaintiff does not 

have the RFC to perform a full range of light work, but instead is limited by other factors. Thomas, 

278 F.3d at 960 (stating that when the Grids "do not adequately take into account claimant's abilities 

and limitations, the Grids are to be used only as a framework, and a vocational expert must be 

18 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 18 of 25
consulted."). Moreover, based on plaintiffs age ( 44 - a "younger individual") and education (high 

school), the ALJ appropriately applied Rules 202.21 and 202.22, and correctly determined that 

transferability of job skills is not material to the detennination of disability because the Grids direct 

a finding of "not disabled" whether or not plaintiff has transferable skills. See 20 C.F.R. Pt. 404, 

Subpt.P. App.2 § 202.21 (directing a finding of"not disabled for a "younger individual" with a high 

school education where previous work is skilled - skills not transferrable ); id at § 202.22 (directing 

a finding of "not disabled" for a younger individual with a high school education where previous 

work is skilled - skills transfe1Table ). 

Plaintiffs reliance on Bray is misplaced. In Bray, the Ninth Circuit determined that the ALJ 

erred by finding the claimant had transferable skills but failed to mticulate a clear basis for the 

assumption, contra1yto SSR 82-41. Bray, 554 F.3d at 1229. In Bray, the issue of transferability of 

skills was dispositive because the claimant was of advanced age and, under the Grids, the claimant 

would be found disabled unless she had readily transferable skills. Id. at 1229 n. 9. Unlike Bray, 

here the Grids direct a finding of "not disabled" regm·dless of whether he has transferable skills. 

Thus, the issue of transferability of skills did not need to be decided and the ALJ did not run afoul 

of either SSR 82-41 or Bray by failing to make specific findings. Applegate v. Comm 'r Soc. Sec. 

Admin., No. 3:13-cv-02295-KI, 2015 WL 1825405 (D. Or. Apr. 22, 2015); James v. Colvin, No. 

3:12-cv-01815-JO, 2013 WL 6145297, *3-4 (D. Or. Nov. 21, 2013) (finding transferability of skills 

was not material, ALJ was not required under SSR 82-41 to make specific findings of transferable 

skills). Thus, I conclude the ALJ did not err. 

Fmihennore, to the extent that plaintiff contends that the ALJ' s detennination that he is able 

to perform semi-skilled work implicitly requires a finding that he possesses transferable skills, this 

19 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 19 of 25
argument is meritless. The Honorable Paul J. Papak recently rejected this argument in Craft v. 

Colvin, No. 3: l 4-cv-00592-PK, 2015 WL 4673601, *7 (D. Or. Aug. 6, 2015). In Craft, Judge Papak 

observed that semi-skilled work is defined as work that "needs some skills," and may require 

"alertness and close attention," or "coordination and dexterity," and that the work duties are less 

complex than skilled work, but more complex than unskilled work. Id at *7 (quoting 20 C.F.R. § 

404.1568). Moreover, Judge Papak reasoned since SSR 82-41 contemplates that "some kinds of 

semi-skilled work does not result in a person acquiring transferable skills," a claimant logically could 

not be required to possess transferable skills in order to perfonn semi-skilled work. Id Therefore, 

the Craft court rejected the claimant's suggestion that specific findings of transferable skills are 

always required in order to find a claimant able perform to semi-skilled work. Id at *8. 

I agree with this rationale. Contra1y to plaintiffs suggestion, nothing in SSR 82-41 or 20 

C.F.R. § 404.1568 requires the ALJ to make specific written findings of transferable skills in order 

to find plaintiff able to perfo1m semi-skilled work in this instance. Accordingly, I conclude that the 

ALJ did not e1T in finding the transferability of skills was not material. See also Watterson v. Astrue, 

Case No. 10-cv-060-JE, 2011 WL 7139424, *12 (D. Or. Nov. 16, 2011) (concluding transferability 

was not material to finding the claimant capable of performing semi-skilled jobs at step five). 

C. No Apparent Conflict Exists Between VE Testimony and DOT 

Plaintiff contends that the ALJ failed to resolve an apparent conflict between the jobs 

identified by the VE and the DOT. According to plaintiff, the ALJ el1'ed in relying on the VE's 

explanation, thus requiring remand for fmiher vocational evidence. The Ninth Circuit has explained 

that "[w]hen there is an apparent conflict between the vocational expe1i's testimony and the DOT 

- for example, expert testimony that a claimant can perform an occupation involving DOT 

20 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 20 of 25
requirements that appear more than the claimant can handle - the ALJ is required to reconcile the 

inconsistency." Zavalin, 778 F.3d at 846. "The ALJ must ask the expert to explain the conflict and 

then determine whether the vocational expert's explanation for the conflict is reasonable before 

relying on the expert's testimony to reach a disability dete1mination." Id (internal quotation marks 

omitted) (citing SSR 00-4p); Nlassachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). 

In the RFC, the ALJ limited plaintiff to occasional overhead reaching. Tr. at 21. At the 

hearing, the ALJ posed two hypotheticals to the VE including the occasional overhead reaching 

limitation; the first at the light exertion level, the second at the sedentmy exertion level. Tr. at 60-61 

The VE identified three representative jobs that plaintiff could perform at the light level: Gate 

Guard, DOT #372.667-030, available at 1991 WL 673099 (reaching occasionally present); Food 

Assembler, DOT #319.4840-010, available at 1991 WL 672769 (reaching frequently present); and 

Printed Circuit Board Assembler, DOT #726.684-070, available at 1991 WL 679606 (reaching 

frequently present). Tr. at 61. And, the VE identified three representative jobs plaintiff could 

perform at the sedentary level - Electronic Assembler, DOT #726.684-034, available at 1991 WL 

679599 (reaching frequently present); Appointment Clerk, DOT #237.367-010, available at 1991 

WL 672185 (reaching frequently present); and Timekeeper, DOT #215.362-022, available at 1991 

WL 671904 (reaching "Not Present"). Tr. at 62. Following the VE's testimony, the ALJ indicated 

that some of the jobs identified require reaching in at least some directions, and the ALJ noted that 

the DOT does not distinguish between overhead reaching and reaching in any direction. Tr. at 63. 

The VE confirmed that the DOT does not make such a distinction, but that he believed an individual 

with an occasional overhead reaching limitation could perfmm the jobs identified based on his 28 

21- OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 21 of 25
years' of experience as a rehabilitation counselor. Tr. at 63. The VE further testified that his 

testimony was otherwise consistent with the DOT. Id. 

The comt readily concludes that plaintiff has failed to identify an apparent conflict between 

the VE's testimony and the DOT. Two of the jobs identified by the VE are within plaintiffs RFC. 

The gate guard position requires only occasional reaching, and the timekeeper position requires no 

reaching whatsoever. As the VE testified, the gate guard has 129,000 positions nationally and 900 

in Oregon, and the timekeeper position has 7,700 positions nationally and 106 in Oregon. Tr. at 61-

62. Because these jobs constitute a significant number of jobs in the region where plaintiff lives and 

in several regions of the country, the ALJ's step five findings are readily supp01ted by substantial 

evidence. Gutierrez v. Commissioner Soc. Sec. Admin., 740 F.3d 519, 528 (9th Cir. 2014) (holding 

25,000 jobs in the national economy significant and 2,500 in California significant); iV!oore v. Apfel, 

216 F.3d 864, 869 (9th Cir. 2000) (finding 125,000 jobs nationally significant). 

Additionally, the courts in this District have unifotmly concluded that no apparent conflict 

exists between an occasional overhead reaching limitation and DOT descriptions requiring frequent 

reaching in any direction. 3 As thoroughly discussed by the Honorable Michael Simon in Lee v. 

Astrue: 

There is no direct conflict between the DOT and the VE's testimony. For the 

Coutt to find a conflict on these facts, it would have to read into the DOT' s 

description of the mail clerk and office helper occupations a requirement of overhead 

reaching with both arms on a more-than-occasional basis (which the DOT defines as 

more than one-third of the time). In this regard, the Comt notes that the DOT's 

3

Several comts outside the District of Oregon have found apparent conflict in similar 

circumstances. See, e.g., Marquez v. Astrue, No. CV-11-339-TUC-JGZ-DTF, 2012 WL 

3011778, *3-4 (D. Ariz. May 2, 2012); 1'vfeyer v. As/rue, No. 1:09-cv-01448-JLT, 2010 WL 

3943519, *9 (E.D. Cal. Oct. 1, 2010); l'vfarshall v. Astrue, No. 08CV1735-L(WMC), 2010 WL 

841252, *6 (S.D. Cal. Mar. 10, 2010). 

22 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 22 of 25
general descriptions for these occupations do not include work activities involving 

frequent bilateral overhead reaching. . .. Although there may be situations where a 

contradiction is not explicit, the potential conflict identified by Ms. Lee appears to 

be speculative at best. 

Case No. 6:12-cv-00084-SI, 2013 WL 1296071, * 11 (D. Or. Mar. 28, 2013) (footnotes omitted); 

accord Stalford v. Colvin, Case No. 6:14-cv-01085-AA, 2015 WL 3826506, *5 (D. Or. June 17, 

2015) (finding no apparent conflict between VE testimony that claimant could perform occasional 

overhead reaching and DOT description requiring frequent reaching in any direction); Sterba v. 

Colvin, Case. No. 3:13-cv-008590TC, 2014 WL 7228989, *2 (D. Or. Dec. 16, 2014) (same); 

Gonzalesv. Colvin, No. 3:12--cv-01068-AA, 2013 WL 3199656, *4 (D. Or. June 19, 2013)(same); 

Lemear v. Colvin, No. 3:13-cv-01319-AC, 2014 WL 6809751, *2 (D. Or. Dec. 1, 2014)(finding no 

conflict between VE testimony that claimant could perf01m work with occasional overhead reaching 

and manipulative restrictions and DOT description requiring frequent handling, fingering and 

reaching); see also Sankhar v. Colvin, Case No. 3:14-cv-01644-HZ, 2015 WL 5664285, *4 (D. Or. 

Sept. 21, 2015) (finding no apparent conflict between VE testimony and DOT description concerning 

visual acuity in both eyes). 

I am persuaded by the thoughtful rationale expressed by Judge Simon and others, and absent 

contra1y Ninth Circuit authority, follow that reasoning here. I note that the job descriptions for food 

assembler, printed circuit board assembler, appointment clerk, and electronics assembler all require 

frequent reaching, but do not list any overhead activities. Where overhead work is required, the 

DOT typically includes that info1mation in the description. Gonzales, 2013 WL 3199656 at *4 

(indicating that DOT narrative job descriptions explicitly include overhead work where required, 

providing examples). Thus, the conflict identified by plaintiff in this instance appears speculative. 

23 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 23 of 25
Plaintiffs argument would require this comi to read into each of the above DOT job descriptions 

a requirement of more-than-occasional overhead reaching, a requirement not cutl'ently present. 

Therefore, I conclude that plaintiff has failed to identify an apparent conflict between the VE's 

testimony and the DOT. Accordingly, the ALJ's step five findings are supported by substantial 

evidence. 

Finally, I am not persuaded by plaintiffs contention that the ALJ should not have relied upon 

the VE' s explanation. Here, the ALJ asked the VE for an explanation about the discrepancy between 

overhead reaching and reaching generally and whether plaintiff could perfo1m the jobs identified. 

The VE responded that he was relying upon his lengthy experience as vocational rehabilitation 

counselor. Plaintiff submits that the VE's response was less than satisfactory, and indicates that 

there appeared to be an interpersonal conflict between plaintiffs attorney and the VE. Although 

detailed information from the VE as to which specific job requirements match plaintiffs abilities 

and limitations is desirable, it was unnecessary in this instance as discussed above. Moreover, 

plaintiff makes no argument as to why or how any of the jobs identified by the VE exceed his 

capabilities, and plaintiff did not challenge or object to the VE's qualifications at the hearing. Thus, 

the ALJ' s reliance on the VE' s explanation was reasonable under these circumstances. See Johnson 

v. Sha/ala, 60 F.3d 1428, 1435-46 (9th Cir. 1995) (noting the ALJ may rely on expert testimony that 

contradicts the DOT where the record contains persuasive evidence to suppo1i the deviation). 

Because the VE identified jobs existing in significant numbers that plaintiff could perfo1m, an 

additional explanation was not required. 

24 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 24 of 25
For all these reasons, the conclude that the ALJ did not en in relying upon the VE's 

testimony, and the ALJ' s Step Five determination is supp01ied by substantial evidence in the record 

as a whole. 

CONCLUSION 

For the reasons set f01ih above, the Commissioner's final decision denying benefits to 

plaintiff is AFFIRtV!ED. This action is DISMISSED. 

IT IS SO ORDERED. 

DATED this __I'L day of JANUARY, 2016. 

Malcolm F. Marsh 

United States District Judge 

25 - OPINION AND ORDER 

Case 3:14-cv-01761-MA Document 29 Filed 01/19/16 Page 25 of 25