IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JEFFREY L. ANDERSON, 6:15-CV-01319-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

RICHARD F. MCGINTY

McGinty & Belcher, Attorneys

P.O. Box 12806

Salem, OR 97301

(503) 371-9636

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1011

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Case 6:15-cv-01319-BR Document 17 Filed 07/14/16 Page 1 of 28
DAVID MORADO

Regional Chief Counsel

JUSTIN L. MARTIN 

Special Assistant United States Attorney

Social Security Administration

791 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104-7075

(206) 615-3735

Attorneys for Defendant

BROWN, Judge.

Plaintiff Jeffrey L. Anderson seeks judicial review of a

final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's applications for

Disability Insurance Benefits (DIB) and Supplemental Security

Income (SSI) under Titles II and XVI of the Social Security Act. 

This Court has jurisdiction to review the Commissioner's final

decision pursuant to 42 U.S.C. § 405(g). 

Following a review of the record, the Court reverses the

decision of the Commissioner and remands this matter pursuant to

Sentence Four, 42 U.S.C. § 405(g), for the immediate calculation

and payment of benefits to Plaintiff. 

ADMINISTRATIVE HISTORY

Plaintiff protectively filed his applications on August 8,

2011, and alleged a disability onset date of June 29, 2009. 

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Tr. 198-201, 229, 240.1 The applications were denied initially

and on reconsideration. An Administrative Law Judge (ALJ) held a

hearing on August 16, 2013. Tr. 39-92. At the hearing Plaintiff

represented himself. Plaintiff and a vocational expert (VE)

testified. 

The ALJ issued a decision on September 11, 2013, in which he

found Plaintiff is not disabled. Tr. 14-38. That decision

became the final decision of the Commissioner on May 14, 2015,

when the Appeals Council denied Plaintiff's request for review. 

Tr. 1-4. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On July 16, 2015, Plaintiff filed a Complaint in this Court

seeking review of the Commissioner’s decision.

BACKGROUND

Plaintiff was born in August 1961 and was 49 years old on

his alleged onset date. He completed four or more years of

college and has a degree as a registered nurse. Tr. 241, 968. 

Plaintiff has a radiology limited license and certifications as a

nursing assistant, medical assistant, and paramedic. Tr. 241,

968. Plaintiff has past relevant work experience as a registered

nurse at an adult corrections facility from 1996 to 2009. 

Tr. 232. 

1

 Citations to the official transcript of record filed by

the Commissioner on November 23, 2015, are referred to as "Tr."

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Plaintiff alleges disability due to “bipolar, adjustment

disorder, PTSD, chronic knee pain, left meralgia prasthica, left

ulnar neuropathy, left pre-op trigger finger, chronic left

shoulder impingement, L4-5 disc compression, high bp.” Tr. 240.

STANDARDS

The initial burden of proof rests on the claimant to

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

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

inability "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months." 42 U.S.C. 

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

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

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

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

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

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

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

“relevant evidence that a reasonable mind might accept as

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

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

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

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

at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

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

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

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

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

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

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

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). See

also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.

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2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

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

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

at 724.

At Step Three the claimant is disabled if the Commissioner

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

listed impairments that the Commissioner acknowledges are so

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

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

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

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

appendix 1 (Listed Impairments). 

If the Commissioner proceeds beyond Step Three, she must

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

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

physical and mental activities the claimant can still do on a

regular and continuing basis despite his limitations. 20 C.F.R.

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

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

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

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

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

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

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

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

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

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

If the Commissioner reaches Step Five, she must determine

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

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

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

burden shifts to the Commissioner to show a significant number of

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

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

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

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

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

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

the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity (SGA) since his June 29, 2009,

alleged onset date. Tr. 19. The ALJ found Plaintiff met the

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insured status requirements through December 31, 2014.

At Step Two the ALJ found Plaintiff has severe impairments

including left ulnar neuropathy, status post bilateral meniscus

tear, status post shoulder arthroscopy, left pinky trigger

finger, diabetes mellitus, degenerative disc disease, obstructive

sleep apnea, bipolar disorder, post-traumatic stress disorder,

and personality disorder. Tr. 19. 

At Step Three the ALJ found Plaintiff’s impairments do not

meet or equal any listed impairment. Tr. 20. The ALJ found

Plaintiff has the RFC for light work, except he can occasionally

climb, kneel, crouch, and crawl. The claimant can perform only

occasional bilateral overhead lifting and simple, routine tasks

consistent with a specific vocational preparation level of one or

two. The claimant does not require over-the-shoulder

supervision. He can have occasional contact with co-workers but

not any contact with the public. Tr. 22. 

At Step Four the ALJ found Plaintiff is unable to perform

any past relevant work. Tr. 31. 

At Step Five the ALJ found Plaintiff is able to perform the

occupations of pricer, car-lot attendant, and office cleaner. 

Tr. 32. 

DISCUSSION

Plaintiff contends the ALJ erred by (1) failing to act

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fairly at the administrative hearing, (2) improperly weighing the

medical evidence, and (3) failing to formulate an appropriate RFC

assessment. 

I. The ALJ did not act unfairly at the administrative hearing.

Plaintiff contends the ALJ erred by failing to develop the

record fully and by failing to ensure Plaintiff’s interests were

fairly protected. He argues the ALJ should have provided him

with the opportunity to qualify a friend as his representative at

the hearing and should have advised him that the necessary form

could be obtained in the adjacent office. Plaintiff also

contends the ALJ erred by failing to advise him that his friend

could testify on his behalf.

Plaintiff fired his lawyer, Todd Hammond, before the August

2013 hearing. Tr. 41. He was not represented by counsel at the

hearing before the ALJ. Plaintiff brought a friend to the

hearing and sought to have the friend represent him “because he

is the only person I can trust.” Tr. 41. Plaintiff thought he

had completed the paperwork necessary to appoint his friend to be

his representative, but he had not. Tr. 42. The ALJ told

Plaintiff that “anybody can be a rep if they go through the

process, but they can’t just pop in here.” Tr. 42. The

discussion between Plaintiff and the ALJ continued as follows:

CLMT: I thought I was turning in his name . . . .

ALJ: I don’t have it.

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CLMT: Well, that’s what getting represented does for

you when you actually have one. Okay, that’s why Mr.

Hammond and I no longer work with each other. I

haven’t had any contact with him in a year, over a

year, a year-and-a-half.

ALJ: Okay, I - - it’s, it’s entirely your decision to

fire him, hire him.

CLMT: Let’s just go ahead and get this over with, sir.

ALJ: Okay.

CLMT: Thank you, I mean, Your Honor. I’m sorry. I’m

kind of nervous.

ALJ: Okay. That’s okay. So, if you want to go hire

somebody else, I’m more than willing to let you do it,

but you can’t just pop up without going through the

process, so what would you rather do? If you want to

proceed, I’m willing . . . .

CLMT: I turned in his name on my application form for

my hearing that he was going to be here. At least I

thought I did. Maybe I omitted that, but I could swear

I sent in his name and his address - -

ALJ: Okay. I’m not saying you didn’t - -

CLMT: - - on my application form.

ALJ: You may have, but after you got the new rep, I - -

you have - - you’ve had Mr. Hammond in the paperwork

since about February 2012. 

CLMT: Yeah. We haven’t had a relationship in - -

ALJ: Yeah, that, that’s - -

CLMT: - - a long time.

ALJ: Yeah, that’s okay. People hire and fire reps all

the time. It doesn’t matter to me, okay.

CLMT: Yeah.

ALJ: That met - - but I just want you to know you have

a right to have a representative. They have to go

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through the process. Most of the people who appear

before us regularly know how, like Mr. Hammond, know

how to fill out the paperwork. If you don’t, we have

like everything else, the VA, we all have our rules, so

we have to have some process.

CLMT: Yeah.

ALJ: You want to go forward then?

CLMT: Yeah, I believe my medical evidence should speak

for itself, and from all my readings - -

ALJ: Well, you’re well trained. You, you’ve got - - I

looked at your record, your - - you know the medical

profession well. 

CLMT: Yes I do, sir.

ALJ: Okay. All right, so you want to go ahead. You

understand you can have a - - you did have Mr. Hammond. 

You and he had a disagreement. You fired him. So,

you’re going ahead without one at this hearing.

 

Tr. 42-43. 

Thereafter the ALJ described the hearing process and

questioned Plaintiff, a medical specialist, and the VE. 

A. The ALJ did not err by failing to provide Plaintiff

 with an opportunity to qualify his representative.

Plaintiff argues the ALJ erred by failing to advise

Plaintiff that he could “qualify” his friend as his

Representative by completing a form or an equivalent written

statement. HALLEX I-1-1-11.A.2 Plaintiff cites the ALJ’s

“special duty to fully and fairly develop the record and to

2 SSA Hearings, Appeals, and Litigation Law Manual, a

publication that provides guidelines as to how ALJs are to handle

various aspects of the disability appeals process. 

https://www.ssa.gov/OP-Home/hallex/hallex.html

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ensure that the claimant’ interests are protected.” Brown v.

Heckler, 713 F.2d 441, 443 (9th Cir. 1983). “An ALJ’s duty to

develop the record further is triggered only when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence.” Mayes, 276 F.3d at 459-60. 

The record reflects Plaintiff knew he had the right to have a

representative at the hearing. Plaintiff, however, failed to

ensure that his representative was properly credentialed. The

ALJ properly found Plaintiff failed to complete the paperwork

necessary to qualify Plaintiff’s friend to be his representative. 

 On this record the Court concludes the fact that the ALJ did

not offer Plaintiff further information or an opportunity to

complete the necessary paperwork to qualify his friend to be his

representative did not violate the ALJ’s duty to develop the

record and to protect the claimant’s interests.

B. The ALJ did not err by failing to advise Plaintiff that 

 his friend could testify.

Plaintiff cross-examined the VE and delivered a summary at

the end of the hearing. Tr. 87-92. In the course of his summary

Plaintiff stated he “felt I had a representative that could at

least testify to my medical abilities that I had when I had them,

and what I’ve been doing since then . . . .” Tr. 91. Plaintiff

contends the ALJ erred by failing to develop the record when he

did not tell Plaintiff that his friend could be called to

testify. 

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The ALJ’s duty to develop the record is “triggered only when

there is ambiguous evidence or when the record is inadequate to

allow for proper evaluation of the evidence.” Mayes v.

Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). In this case

the ALJ had more than 1200 pages of medical records, Plaintiff’s

testimony, and the testimony of the medical expert. The record,

therefore, was not “inadequate to allow for proper evaluation of

the evidence.” Moreover, Plaintiff does not point to any

ambiguity in the evidence. 

On this record the Court concludes the ALJ did not err when

he did not advise Plaintiff that he could call his friend to

testify. 

C. The ALJ did not err by asking leading questions.

Plaintiff contends the ALJ asked the medical expert, Sally

Clayton, L.C.P., leading questions to obtain the “‘non-disabling’

functional limitations desired.” Pl.’s Br. at 8. 

To succeed in a claim “that the ALJ did not impartially

assess the evidence . . . [a claimant] must show that the ALJ’s

behavior, in the context of the whole case, was so extreme as to

display clear inability to render fair judgment.” Bayliss v.

Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005)(internal

quotations omitted)(quoting Rollins v. Massanari, 261 F.3d 853,

858 (9th Cir. 2001)). This Court “must begin with a presumption

that the ALJ was unbiased,” which can only be rebutted “by

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showing a ‘conflict of interest or some other specific reason for

disqualification.’” Id.

The Court notes Plaintiff has not identified a conflict of

interest or any other specific reason to disqualify the ALJ, and

the record does not reflect evidence of bias on the part of the

ALJ. On this record the Court concludes the ALJ did not err by

asking leading questions of the medical expert.

In summary, the Court concludes for these reasons the ALJ

did not act unfairly at the administrative hearing. 

II. The ALJ erred by improperly assessing the medical evidence.

Plaintiff contends the ALJ erred by improperly weighing the

medical evidence.

Disability opinions are reserved for the Commissioner. 20

C.F.R. §§ 404.1527(e)(1); 416.927(e)(1). If there is not a

conflict between medical source opinions, the ALJ generally must

accord greater weight to the opinion of a treating physician than

that of an examining physician. Lester, 81 F.3d at 830. More

weight is given to the opinion of a treating physician because

the person has a greater opportunity to know and to observe the

patient as an individual. Orn v. Astrue, 495 F.3d 625, 632 (9th

Cir. 2007). In such circumstances the ALJ should also give

greater weight to the opinion of an examining physician over that

of a reviewing physician. Id. If a treating or examining

physician’s opinion is not contradicted by another physician, the

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ALJ may only reject it for clear and convincing reasons. Id.

(treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067

(9th Cir. 2006)(examining physician). 

Even if one physician is contradicted by another physician,

the ALJ may not reject the opinion without providing specific and

legitimate reasons supported by substantial evidence in the

record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The

opinion of a nonexamining physician by itself is insufficient to

constitute substantial evidence to reject the opinion of a

treating or examining physician. Widmark, 454 F.3d at 1066 n.2. 

The ALJ may reject physician opinions that are “brief,

conclusory, and inadequately supported by clinical findings.” 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

A. Opinion of Satyanarayana Chandagiri, M.D., Treating 

 Physician

 

Dr. Chandagiri, a psychiatrist at the Veterans Affairs

Medical Center, began treating Plaintiff in September 2012. On

July 22, 2013, Dr. Chandagiri conducted a disability evaluation

“to record the extent of impairment and disability due to

[Plaintiff’s] various mental health conditions that resulted in

[Plaintiff’s] inability to hold a job since June 1, 2009.” 

Tr. 1434. Dr. Chandagiri noted Plaintiff was alert and oriented

with impaired memory. Plaintiff also had a Saint Louis

University Mental Status Examination (SLUMS) score of 26, which

indicated mild cognitive disorder. Tr. 1435. Dr. Chandagiri

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found Plaintiff has pressured speech, is easily distracted, and

exhibits a stable but anxious mood. Dr. Chandagiri opined

Plaintiff “remains very severely disabled for complex medical and

psychiatric reasons and will not be able to hold any 

gainful employment in any capacity permanently.” Tr. 1435. 

Dr. Chandagiri also opined Plaintiff’s disability is likely 

to last for more than 12 months and has existed for the last

several years, and he noted Plaintiff had been treated in the

clinic since 2002. 

Dr. Chandagiri stated Plaintiff has been diagnosed with

PTSD, Bipolar disorder type 1 recurrent recent episode manic or

mixed, Personality disorder NOS, Cognitive disorder NOS, past

head injuries, obstructive sleep apnea, chronic pain, and knee

injury. He found Plaintiff’s conditions “interfere with his

ability to perform basic activities of daily living that are

essential to any work place.” Tr. 1436. Dr. Chandagiri

administered the PCL C test for PTSD on which Plaintiff scored

69, “thus indicating high levels of ongoing symptoms of PTSD.” 

Tr. 1436. Dr. Chandagiri also administered the World Health

Organization Disability Assessment Schedule 2.0 (WHODAS 2.0) on

which Plaintiff scored 134 indicating “full disability.” 

Tr. 1436. 

Dr. Chandagiri reported Plaintiff’s

severe anxiety, avoidance response, ideas of

reference, paranoia, tendency to misinterpret

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others motive, anger and rage prevents him from

going out of his home on his own. He describes

quick anger and rage and describes instances of 

severe road rage and avoidance is a way to 

compensate for his poor ability to modulate his

anger, rage and risk for violence. He has a car

but seldom drives more than two to three blocks 

and avoids going further away from home or going to

new places, crowded roads. He fears using public

transportation and hence he avoids using them. 

He gets easily agitated and fears using public

transport or asking anyone else to give him a ride.

Tr. 1436.

Dr. Chandagiri stated Plaintiff cannot sit still for over 30

minutes without becoming agitated unless he is at home. He

avoids new places and crowds and cannot stand for long periods in

a public place. He cannot walk more than one-half mile and does

not even go out to meet his daughter.

Dr. Chandagiri noted Plaintiff’s symptoms cause social

isolation from friends, family, and former colleagues. Plaintiff

avoids conversations with strangers. Dr. Chandagiri stated 

[m]ost conversations agitate him and he starts

to have severe emotional dysregulation, 

agitation and anxiety. He avoids hospitals, 

doctors offices, law enforcement officials as 

they are all reminders of his traumatic experiences

when he worked as a Nurse in the prison system. The

traumatic memories trigger thoughts of violence and

his past experiences.

He cites multiple work related triggers, loud 

noise, certain TV shows become too distressing

and he becomes agitated, loud, restless and he

describes as having a short fuse, ill tempered

and angry and later he has rage for over several

days. He finds it hard to meet the usual social

expectations of waiting for his turn, listening

and reciprocal conversation with the situation

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emotionally dysregulating him and he ends up 

with severe rage, emotional outburst.

He experiences paranoia, ideas of reference, 

triggers self critical thoughts and this in turn

leads to avoidance response.

He continues to have significant problems with

memory. He cannot remember simple instructions

including names, telephone numbers, dates and 

appointments, times to pay bills, complete his

tax papers. He has difficulty filling out simple

forms, applications as he becomes very agitated,

restless, this tends to trigger flashbacks, anger

outbursts. His concentration is poor. Gets distracted easily. He has avoided completing a 

narrative that was asked of him to fill out the 

description of his current functioning. He has

avoided tasks or postponed completing the tasks

and has difficulty in self regulation, time 

management and identifying clear priorities. He

cannot plan and manage his own money.

 * * * 

His ongoing mood instability, impulsivity, poor

social functioning, poor self care, poor hygiene,

avoidance, hyper vigilance, poor emotional regulation, being triggered by loud sound, perceived

harm tendency to blame and overreact emotionally

with intense anger, anxiety or sex addict like 

behaviors when manic has made it difficult for 

him to interact with others, tolerate any friends

or family, go out and volunteer or apply for any

job. He is unable to withstand customary delays

in scheduling to the extent he reacts with severe

agitation and fears the worse scenario. This often

takes several days and weeks for him to reset

himself. In extreme cases he has become suspicious

of the motives of others. He is isolated. He is

unable to work as a team player. He will not be 

able to work in any team setting, deal with coworkers, take instructions and remember the 

instructions, tolerate any stress or challenges 

in work like situations or learn any new skills or

be flexible.

Tr. 1437.

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Dr. Chandagiri opined Plaintiff’s limitations satisfy the

criteria of a Social Security Listed Impairment with demonstrated

loss of cognitive functioning, affective lability, mood changes,

personality changes, thinking errors, and memory problems. He

found Plaintiff has persistent difficulties in activities of

daily living and repeated that Plaintiff was permanently disabled

and unable to work in any full-time work or work-like setting. 

Tr. 1438.

The ALJ noted Dr. Chandagiri’s opinion and stated it “is not

given great weight.” Tr. 30. The ALJ found Dr. Chandagiri's

conclusion unpersuasive “because it does not address the

claimant’s specific functional abilities, but is a conclusion

regarding the ultimate issue of disability, which is expressly

reserved to the Commissioner.” Tr. 29-30. The ALJ stated:

In addition, Dr. Chandagiri’s statement was 

based in large part on the claimant’s responses

to subjective scales, and as noted above, mental

status examination findings have been largely

unremarkable. Finally, the activities documented

in the record establish greater functioning than

assessed by Dr. Chandagiri. Because the statement

is not well supported or consistent with the 

record as a whole, which contains relatively

unremarkable findings, it is not given great weight.

Tr. 30.

 1. Mental-Status Examinations

 To support his opinion that Plaintiff is not disabled,

the ALJ relies on multiple records documenting unremarkable

mental-status examinations. Some of those records, however, are

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not mental-health examinations, but rather reflect examinations

by providers and emergency-room personnel for Plaintiff’s knee

and back impairments. See Tr. 308, 412, 420, 425, 431, 433-34,

444, 514, 517, 520, 578, 593-94, 596, 599, 690, 743, 758, 761,

763, 801, 809. Several of the ALJ’s citations also refer to

duplicates of records previously cited. See Tr. 1062, 1150,

1163, 1166, 1169, 1269. 

The ALJ points to Plaintiff’s mental-health outpatient

counseling notes from November and December 2009 and November

2010 in which Plaintiff reported continued difficulty in

regulating his mood and presented with rapid speech and

tangential thoughts. Tr. 483, 534. In the 2010 note Plaintiff

describes experiencing anxiety and depression. Tr. 528. The ALJ

also cites December 2009 and March 2011 notes from Gregory V.

West, M.D., Plaintiff’s primary-care physician, in which the

doctor notes Plaintiff was appropriate, cooperative, and had

normal insight and judgment. Tr. 458, 525-26, 822. Dr. West

also found Plaintiff’s PTSD screen was positive and referred him

to undergo a mental-health evaluation. Tr. 525-26. The ALJ also

cites a January 2011 mental-health evaluation in which

Plaintiff’s judgment appeared grossly intact, but the examining

provider diagnosed an adjustment disorder. Tr. 783-84. In

addition, the ALJ cites a December 2011 treatment note from

Elizabeth Fernandez, M.D., in which she noted Plaintiff “seemed

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euthymic and not much pressured speech today.” Tr. 1100. 

The ALJ, however, also references a psycho-diagnostic

examination from September 2011 in which B. Scot Cook, Psy.D.,

records “strong eye contact” with a rambling speaking manner and

“obviously some issues with short-term and working memory as well

as mathematical skills.” Tr. 967. Dr. Cook diagnosed Plaintiff

with Bipolar I Disorder, depressed; PTSD, and Adjustment Disorder

with Anxiety. Tr. 970. He assessed Plaintiff with a GAF score

of 36.3 The ALJ also refers to a March 2012 Mental Status

Examination by Dr. Cook. Tr. 974. Dr. Cook stated Plaintiff

would be “hard pressed to maintain a regular schedule, relate to

workers or superiors, carry out instructions, cope with workrelated stress and setbacks, solve minor problems with people or

duties, or modulate his emotions when required.” Tr. 976. 

Dr. Cook assessed Plaintiff with a GAF of 35. Finally, the ALJ

3 Although the fifth edition of the Diagnostic and

Statistical Manual of Mental Disorders issued May 27, 2013,

abandoned the GAF scale in favor of standardized assessments for

symptom severity, diagnostic severity, and disability (see

Diagnostic and Statistical Manual of Mental Disorders V (DSM-V)

16 (5th ed. 2013)), at the time of Plaintiff’s assessment and the

ALJ’s opinion the GAF scale was used to report a clinician’s

judgment of the patient’s overall level of functioning on a scale

of 1 to 100 (see Diagnostic and Statistical Manual of Mental

Disorders IV (DSM-IV) 31-34 (4th ed. 2000)). In the fourth

edition, a GAF of 31 to 40 indicated some impairment in reality

testing or communication (e.g., speech is at times illogical,

obscure, or irrelevant) or major impairment in several areas such

as work or school, family relations, judgment, thinking or mood

(e.g., depressed man avoids friends, neglects family, and is

unable to work; child frequently beats up younger children, is

defiant at home, and is failing at school).

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Case 6:15-cv-01319-BR Document 17 Filed 07/14/16 Page 21 of 28
cites a July 2013 mental-status examination by Dr. Cook, who

reported Plaintiff made strong eye contact and that his dress,

grooming, and hygiene were adequate. Tr. 1552. Dr. Cook,

however, concluded there were not any "substantive changes in

his presentation or functional levels since my initial meeting

with this man in 2011. Once again, it is difficult to conceive

of any work-setting or employer that could work within Mr.

Anderson’s limitations.” Tr. 1554. Thus, Dr. Cook concluded,

like Dr. Chandagiri, that Plaintiff was not able to maintain

employment.

On this record the Court concludes the ALJ’s

discounting of the opinion of Dr. Chandagiri, Plaintiff's

treating physician, on the basis of the opinions of Drs. West and

Fernandez and other unidentified medical sources is not a legally

sufficient reason supported by substantial evidence in the record

for doing so. 

 2. Activities of Daily Living

The ALJ also finds Dr. Chandragiri’s conclusion that

Plaintiff has extreme limitations in social functioning is

inconsistent with Plaintiff’s level of activity and social

interaction. Tr. 30.

The ALJ cited the January 2011 mental-health

examination by Mark Dillon, Ph.D. Tr. 411-14. Dr. Dillon noted

Plaintiff reported watching two or three television shows a day

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Case 6:15-cv-01319-BR Document 17 Filed 07/14/16 Page 22 of 28
and would only watch comedies. Tr. 412. Plaintiff told 

Dr. Dillon that he spent his time working on his house and

looking for jobs on the internet. He reported he and his fiancé

go out to dinner about once a month, and he does laundry,

cleaning, and work in the kitchen. He cleaned and organized the

shop and the garage and added he was particularly active around

the house because he was preparing it for sale. Plaintiff

reported he enjoyed camping, having friends over, barbeques, and

attending dinner parties. He stated "he primarily has friends

from work, and has seen them less in the last year.” Tr. 412. 

Dr. Dillon concluded Plaintiff’s “social functioning has

decreased at this point.” Tr. 414. 

The ALJ also noted Plaintiff’s September 2011 report to 

Dr. Cook. Tr. 27. At that time Plaintiff reported a shower and

breakfast routine, after which he searched for jobs online;

checked his email; and performed light cooking, cleaning,

laundry, dishes, and household chores. Tr. 969. Plaintiff said

he refrained from tasks involving lifting, pushing, pulling, or

other demanding physical chores. He no longer felt capable of

hunting, fishing, or camping. “Socializing is largely limited to

telephone conversations with friends. He makes some social

contact via regular church attendance.” Tr. 969. 

Mr. Anderson pointed out during [the] interview 

that he felt previous reports of his social 

activities and functioning have overestimated 

his capabilities, essentially depicting him 

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Case 6:15-cv-01319-BR Document 17 Filed 07/14/16 Page 23 of 28
as socially engaged and actively participating 

with others to a routine and normal degree.

According to him, it would be more accurate to 

say that his social activities were normal and 

routine until 3 years ago but since that time 

he has felt himself to be largely socially 

avoidant, not trusting of people, generally 

staying home to keep his social anxiety to a 

minimum. His daily routine is largely consumed 

by tinkering on the computer or with small 

household projects, and going to occasional 

appointments. 

 

Tr. 969. 

The ALJ noted Plaintiff exercised on a daily basis

including “minor weight lifting” and walking two miles. Tr. 27. 

Plaintiff, however, reported in November 2012 that he walked 

two miles a day “depend[ing] on how bad knees are feeling).” 

Tr. 1515.

On this record the Court concludes the ALJ’s

determination that Plaintiff’s activities are inconsistent with

Dr. Chandragiri’s opinion is not supported by substantial

evidence and are not legally sufficient reasons for the ALJ to

reject the opinion of Dr. Chandragiri, Plaintiff’s treating

physician.

In summary, the Court concludes the ALJ erred when he only

gave some weight to the opinion of Plaintiff’s treating

physician, Dr. Chandragiri, because the ALJ did not provide

legally sufficient reasons supported by substantial evidence in

the record for doing so.

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Case 6:15-cv-01319-BR Document 17 Filed 07/14/16 Page 24 of 28
B. Opinions of Cartel Kennemer, Psy.D., and Robert Henry,

Ph.D., Reviewing Physicians 

 

Dr. Kennemer reviewed Plaintiff’s medical records and opined

in December 2011 that Plaintiff had moderate limitations in his 

ability to understand, to remember, and to carry out detailed

instructions; to maintain attention and concentration for

extended periods; and to interact appropriately with the general

public. Tr. 104-06. Dr. Henry reviewed Plaintiff’s medical

records in July 2012 and agreed with Dr. Kennemer. Tr. 120-21. 

Both psychological consultants stated Plaintiff was able to

“understand, remember, and carry out short instruction (1-2

steps). [Claimant] is not able to understand, remember, and

carry out more detailed instructions, so tasks should be broken

down into simple task sequences.” Tr. 104, 120. The

consultants’ opinion regarding “one to two step instructions” is

uncontradicted. The ALJ gave some “weight” to the reviewing

consultants. Tr. 29.

The ALJ found Plaintiff “can perform simple, routine tasks

consistent with a specific vocational preparation (SVP) level of

1 or 2,” but he did not adopt the limitation articulated by the

reviewing consultants to “one to two step” instructions. Tr. 22. 

Moreover, the ALJ did not provide any specific reasons supported

by substantial evidence in the record for rejecting the reviewing

consultants' opinions as to Plaintiff's limitation to “one to two

step” instructions.

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Case 6:15-cv-01319-BR Document 17 Filed 07/14/16 Page 25 of 28
In addition, an RFC limitation that specifically requires

“one or two step instructions” is inconsistent with SVP level 2. 

This phrasing is “a nearly verbatim recital” of the definition of

reasoning level 1. See Dictionary of Occupational Titles (DOT)

App’x C (9th ed. 1991)(available at 1991 WL 688702) definition of

reasoning level 1. See also Whitlock v. Astrue, Case No. 3:10-

cv-357-AC, 2011 WL 3793347, at *5 (D. Or. Aug. 24, 2011).

On this record the Court concludes the ALJ erred by failing

to incorporate into Plaintiff’s RFC the reviewing consultants' 

assessment of Plaintiff as being limited to “one to two step”

instructions, and, as a result, the ALJ posed an inaccurate

hypothetical to the VE at Step Five.

 REMAND

The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely

utility of further proceedings. Harman v. Apfel, 211 F.3d 1172,

1179 (9th Cir. 2000). When "the record has been fully developed

and further administrative proceedings would serve no useful

purpose, the district court should remand for an immediate award

of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004). 

The decision whether to remand this case for further

proceedings or for the payment of benefits is a decision within

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Case 6:15-cv-01319-BR Document 17 Filed 07/14/16 Page 26 of 28
the discretion of the court. Harman, 211 F.3d 1178.

The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman, 211 F.3d at 1178. The

court should grant an immediate award of benefits when

(1) the ALJ has failed to provide legally

sufficient reasons for rejecting . . .

evidence, (2) there are no outstanding issues

that must be resolved before a determination

of disability can be made, and (3) it is

clear from the record that the ALJ would be

required to find the claimant disabled were

such evidence credited. 

Id. The second and third prongs of the test often merge into a

single question: Whether the ALJ would have to award benefits if

the case were remanded for further proceedings. Id. at 1178 n.2.

This Court has determined the ALJ erred when he rejected the

opinions of Drs. Kennemer, Henry, and Chandragiri. If credited,

those opinions establish Plaintiff is disabled. Thus, the Court

concludes Plaintiff is disabled based on this record and that no

useful purpose would be served by a remand of this matter for

further proceedings. See Harman, 211 F.3d at 117.

CONCLUSION

For these reasons, the Court REVERSES the decision of the

Commissioner and REMANDS this matter to the Commissioner pursuant

to Sentence Four, 42 U.S.C. § 405(g), for the immediate

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Case 6:15-cv-01319-BR Document 17 Filed 07/14/16 Page 27 of 28
calculation and payment of benefits to Plaintiff.

IT IS SO ORDERED.

DATED this 14th day of July, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

 

 

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