IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DARL N. RODGERS, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

ALAN STUART GRAF 

208 Pine Street 

Floyd, VA 24091 

(540) 745-2519 

Attorney for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

(503) 727-1003 

1 - OPINION AND ORDER 

6:15-CV-02236-BR 

OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 1 of 16
DAVID MORADO 

Regional Chief Counsel 

JORDAN D. GODDARD 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Avenue, Suite 2900, M/A 221A 

Seattle, WA 98104 

(206) 615-2731 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Darl N. Rodgers seeks judicial review of a final 

decision of the Commissioner of the Social Security 

Administration (SSA) in which she denied Plaintiff's application 

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

Social Security Act. This Court has jurisdiction to review the 

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court REVERSES the decision 

of the Commissioner and REMANDS this matter pursuant to sentence 

four of 42 U.S.C. § 405(g) for further proceedings. 

ADMINISTRATIVE HISTORY 

Plaintiff filed an application for DIB on August 3, 2012, 

alleging a disability onset date of April 6, 2010. Tr. 135. 1 

The application was denied initially and on reconsideration. An 

Administrative Law Judge (ALJ) held a hearing on June 16, 2014. 

1 Citations to the official transcript of record filed by 

the Commissioner on May 24, 2016, are referred to as "Tr." 

2 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 2 of 16
Tr. 35-61. Plaintiff was represented at the hearing. Plaintiff 

and a vocational expert (VE) testified. The ALJ issued a 

decision on July 23, 2014, in which she found Plaintiff is not 

disabled and, therefore, is not entitled to benefits. Tr. 21-30. 

Pursuant to 20 C.F.R. § 404.984(d), that decision became the 

final decision of the Commissioner on September 25, 2015, when 

the Appeals Council denied Plaintiff's request for review. 

Tr. 1-6. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND 

Plaintiff was born December 17, 1959, and was 54 years old 

at the time of the hearing. Tr. 135. Plaintiff completed high 

school. Tr. 40. Plaintiff has past relevant work experience as 

a cabinet maker. Tr. 58. 

Plaintiff alleges disability due to Perth's disease, leg and 

foot pain, and lower-back pain. Tr. 151. 

Except when noted, Plaintiff does not challenge the ALJ's 

summary of the medical evidence. After carefully reviewing the 

medical records, this Court adopts the ALJ's summary of the 

medical evidence. See Tr. 25-27. 

STANDARDS 

The initial burden of proof rests on the claimant to 

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

3 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 3 of 16
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 (9ili 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 

adequate to support a conclusion.n 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. 

4 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 4 of 16
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 

I. The Regulatory Sequential Evaluation 

The Commissioner has developed a five-step sequential 

inquiry to determine whether a claimant is disabled within the 

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 

2007). See also 20 C.F.R. § 404.1520. Each step is potentially 

dispositive. 

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). See also Keyser v. 

Comm' r of Soc. Sec., 648 F. 3d 721, 724 (9th Cir. 2011). 

At Step Two the claimant is not disabled if the Commissioner 

determines the claimant does not have any medically severe 

5 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 5 of 16
impairment or combination of impairments. 20 C.F.R. §§ 404.1509, 

404.1520(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) . 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). 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 *l. In other 

words, the Social Security Act does not require complete 

incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 

659 F. 3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885 

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

At Step Four the claimant is not disabled if the 

Commissioner determines the claimant retains the RFC to perform 

6 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 6 of 16
work he has done in the past. 20 C.F.R. § 404.1520(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). 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 (9'h 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). 

ALJ' S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged in 

substantial gainful activity since his April 6, 2010, alleged 

onset date. Tr. 23. 

At Step Two the ALJ found Plaintiff has the severe 

impairments of "left femoral acetabular impingement with mildly 

reduced hip range of motion; bilateral plantar pain of 

undetermined etiology; and cervicalgia with spasm but no 

associated neurological deficits." Tr. 23. The ALJ found 

7 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 7 of 16
Plaintiff's impairment of "borderline diabetes mellitus" is 

nonsevere. Tr. 24. The ALJ also found Plaintiff's alleged 

mental limitations are not a medically determinable impairment. 

Tr. 24. 

At Step Three the ALJ concluded Plaintiff's medically 

determinable impairments do not meet or medically equal one of 

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

appendix 1. Tr. 24. The ALJ found Plaintiff has the RFC to 

perform "less than light work" and that Plaintiff can frequently 

lift 20 pounds, climb ramps and stairs, and "reach all planes"; 

can occasionally stoop, crouch, kneel, and crawl; and can sit, 

stand, and walk "each for six hours for a combined total of eight 

hours . . in an eight-hour work day." Tr. 24. The ALJ found 

Plaintiff "requires the option to change positions from stand to 

sit approximately two times per hour without interrupting 

essential tasks." Tr. 24. The ALJ also found Plaintiff should 

never operate foot controls or be exposed to hazards. Tr. 24. 

At Step Four the ALJ found Plaintiff cannot perform his past 

relevant work. Tr. 28. 

At Step Five the ALJ found Plaintiff can perform jobs that 

exist in significant numbers in the national economy. Tr. 28. 

Accordingly, the ALJ found Plaintiff is not disabled. 

8 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 8 of 16
DISCUSSION 

Plaintiff contends the ALJ erred when she (1) implicitly 

rejected the opinion of Christopher Corbett, Psy.D., examining 

psychologist and (2) found at Step Two that Plaintiff's mental 

limitations are nonsevere. 

I. The ALJ erred when she failed to address Dr. Corbett's 

opinion. 

Plaintiff asserts the ALJ erred when she implicitly rejected 

Dr. Corbett's September 2013 opinion. 

An ALJ may reject an examining physician's opinion when it 

is inconsistent with the opinions of other treating or examining 

physicians if the ALJ makes ''findings setting forth specific, 

legitimate reasons for doing so that are based on substantial 

evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 

(9th Cir. 2002) (quoting Magallanes v. Bowen, 881 F. 2d 747, 751 

(9th Cir. 1989)). When the medical opinion of an examining 

physician is uncontroverted, however, the ALJ must give "clear 

and convincing reasons" for rejecting it. Thomas, 278 F.3d at 

957. See also Lester v. Chater, 81 F. 3d 821, 830-32 (9th Cir. 

1996) . 

In September 2013 Plaintiff was referred to Dr. Corbett for 

a vocational rehabilitation evaluation "to determine if 

[Plaintiff] has a neurocognitive disorder, deficit in memory, 

learning disability, or a mood or personality disorder and to 

9 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 9 of 16
recommend appropriate accommodations and services to enable him 

to be successful in educational and employment related 

activities." Tr. 388. Dr. Corbett concluded Plaintiff is 

easily overwhelmed by new or complex tasks and his 

effort fades quickly and he becomes anxious and 

agitated when he does not believe be can do 

something. [Plaintiff] has a very poor view of 

his own cognitive abilities. The testing showed 

that he struggled with some academic tasks, but he 

did not do as poorly as he believes. He reported 

multiple times that he is not able to read, but 

his testing clearly shows that he is able to read 

and write with Passage Comprehension and Writing 

Sample subtest scores in the Average Range. He 

did show significant deficits in the fluency 

subtests, which measure how quickly he is able to 

perform tasks. He doubts himself to the point 

where he does not have faith in his ability to 

complete a cognitive task quickly without 

rechecking it. [Plaintiff's] testing did not 

display a significant discrepancy between his 

measured IQ and the Broad Cluster scores on the 

achievement testing and he does not meet criteria 

for a learning disorder. 

Tr. 395. Dr. Corbett noted Plaintiff was "easily distracted" 

during his evaluation, but his "distractibility did not appear to 

be overwhelming or uncontrollable. . . . Rather than a 

significant deficit in his attention, [Plaintiff's] 

distractibility appears to be a way to change the subject or to 

avoid a task that he expects to fail." Tr. 395. 

Dr. Corbett was concerned Plaintiff 

is easily overwhelmed by tasks that should not be 

too difficult and that he gives up too easily, 

believing that he is helpless. He has very 

limited faith in his ability to perform tasks 

appropriately. While he does struggle with 

academic tasks, he is able to perform many of 

10 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 10 of 16
those tasks adequately. It is my belief that his 

fluency, or speed at which he performs a task, 

will significantly improve as he becomes more and 

more familiar with a required task. 

Tr. 395. Dr. Corbett, however opined Plaintiff's "mood, anxiety 

and self worth will likely improve significantly when he is able 

to find gainful employment." Tr. 395. Ultimately Dr. Corbett 

concluded Plaintiff "did not display any significant learning 

disabilities" and diagnosed Plaintiff with an "adjustment 

disorder with mixed depression and anxiety." Tr. 396. 

Dr. Corbett noted Plaintiff "would benefit from dictation 

software that would allow him to express something much quicker 

than if he were to write it." Tr. 397. Dr. Corbett recommended 

Plaintiff use assistance with completing job applications and 

creating a resume because his "academic skills are poor and he 

has little faith in them." Tr. 397. Dr. Corbett also 

recommended Plaintiff use a word-processing program when he has 

to perform a writing task because he has poor spelling skills. 

The ALJ concluded at Step Two that the record did not 

support a "finding of [a] learning disorder that would 

functionally limit [Plaintiff']s ability to perform basic work 

related tasks." Tr. 24. The ALJ noted Plaintiff underwent 

"neuropsychological studies" in September 2013 at the request of 

a Vocational Rehabilitation Coordinator "in which only some 

adjustment disorder with mixed depression and anxiety was 

assessed." Tr. 24. The ALJ did not directly reference or 

11 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 11 of 16
address Dr. Corbett's opinion, did not evaluate Dr. Corbett's 

opinion, and did not find Plaintiff suffered from any mental or 

psychological limitations. 

The Court concludes on this record that the ALJ erred when 

she failed to evaluate Dr. Corbett's opinion because she did not 

provide clear and convincing reasons supported by substantial 

evidence in the record for not assessing Dr. Corbett's finding 

that Plaintiff suffered from an adjustment disorder with mixed 

depression and anxiety. 

II. The ALJ erred at Step Two. 

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. Stout, 454 F.3d at 

1052. See also 20 C.F.R. §§ 404.1509, 404.1520(a) (4) (ii). A 

severe impairment "significantly limits" a claimant's "physical 

or mental ability to do basic work activities." 20 C.F.R. 

§ 404.152l(a). See also Ukolov, 420 F.3d at 1003. The ability 

to do basic work activities is defined as ''the abilities and 

aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(a), 

(b). Such abilities and aptitudes include walking, standing, 

sitting, lifting, pushing, pulling, reaching, carrying, handling, 

seeing, hearing, speaking; understanding, carrying out, and 

remembering simple instructions; using judgment; responding 

appropriately to supervision, co-workers, and usual work 

12 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 12 of 16
situations; and dealing with changes in a routine work setting. 

Id. 

The Step Two threshold is low: 

[A)n impairment can be considered as not severe only if 

it is a slight abnormality which has such a minimal 

effect on the individual that it would not be expected 

to interfere with the individual's ability to work 

[T)he severity regulation is to do no more 

than allow the Secretary to deny benefits summarily to 

those applicants with impairments of a minimal nature 

which could never prevent a person from working. 

SSR 85-28, at *2 (Nov. 30, 1984) (internal quotations omitted). 

The "step-two inquiry is 'a de minimis screening device to 

dispose of groundless claims.'" Edlund v. Massanari, 253 F.3d 

1152, 1158 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 

1273, 1290 (9ili Cir. 1996)). 

The Ninth Circuit has held when the ALJ has resolved Step 

Two in a claimant's favor, any error in designating specific 

impairments as severe at Step Two does not prejudice a claimant 

if the ALJ considered the impairments when formulating his 

assessment of Plaintiff's RFC. Burch v. Barnhart, 400 F.3d 676, 

682 (9th Cir. 2005) (any error in omitting an impairment from the 

severe impairments identified at Step Two was harmless when Step 

Two was resolved in claimant's favor). 

Plaintiff asserts the ALJ erred at Step Two when she found 

Plaintiff did not have any mental limitations that constituted 

severe impairments because in so doing the ALJ failed to evaluate 

Dr. Corbett's opinion. As noted, the ALJ's sole reference to 

13 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 13 of 16
Dr. Corbett's opinion was the statement that Plaintiff underwent 

neuropsychological evaluation and was assessed with ~only some 

adjustment disorder with mixed depression and anxiety." Tr. 24. 

The Court has already concluded the ALJ erred when she 

failed to evaluate Dr. Corbett's opinion. On this record, 

therefore, the Court also concludes ALJ erred at Step Two when 

she found Plaintiff's mental limitations are nonsevere because 

she did not reach that conclusion based on substantial evidence 

in the record. In addition, the Court concludes the error is not 

harmless because the ALJ did not include any mental limitations 

in her assessment of Plaintiff's RFC. See Burch, 400 F.3d at 

682. 

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, 

11 79 (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 

the discretion of the court. Harman, 211 F.3d 1178. 

14 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 14 of 16
The decision whether to remand for further proceedings or 

for immediate payment of benefits generally turns on the likely 

utility of further proceedings. Id. at 1179. The court may 

"direct an award of benefits where the record has been fully 

developed and where further administrative proceedings would 

serve no useful purpose." Smolen, 80 F.3d at 1292. 

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. 

The Court has determined the ALJ erred when she failed to 

address Dr. Corbett's September 2013 opinion. Dr. Corbett, 

however, did not opine Plaintiff is disabled or unable to do any 

work as a result of his mental limitations, and it is not clear 

on this record whether the ALJ would have found Plaintiff 

disabled if the ALJ had credited Dr. Corbett's opinion. The 

Court, therefore, concludes this matter must be remanded. 

15 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 15 of 16
Accordingly, the Court remands this matter for further 

administrative proceedings consistent with this Opinion and Order 

specifically to allow the ALJ to evaluate Dr. Corbett's opinion, 

to reassess Plaintiff's RFC, and to determine whether Plaintiff 

is disabled of the ALJ's assessment of Dr Corbett's opinion and 

Plaintiff's RFC. 

CONCLUSION 

For these reasons, the Court REVERSES the decision of 

the Commissioner and REMANDS this matter pursuant to sentence 

four of 42 U.S.C. § 405(g) for further administrative proceedings 

consistent with this Opinion and Order. 

IT IS SO ORDERED. 

DATED this 7th day of February, 2017. 

ANNA J. BROWN 

United States District Judge 

16 - OPINION AND ORDER 

Case 6:15-cv-02236-BR Document 21 Filed 02/10/17 Page 16 of 16