Eason v. Colvin

Filing 23

MEMORANDUM DECISION AND ORDER: the Commissioner's finding that Mr. Eason was not disabled, as defined under the Social Security Act, is AFFIRMED. The Clerk of Court shall enter judgment in favor of the Commissioner. Signed by Judge Sharon L. Gleason on 08/31/2015. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ROY EASON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.
Case No. 3:14-cv-00076-SLG
MEMORANDUM DECISION AND ORDER
Roy Eason initiated this Social Security action in federal district court after
exhausting his administrative remedies. Mr. Eason seeks the reversal of an unfavorable
disability determination by the Commissioner of Social Security. The matter has been
fully briefed. 1 Oral argument was not requested and was not necessary to the Court’s
determination.
For the reasons discussed below, the Commissioner’s determination will be
affirmed.
BACKGROUND
Mr. Eason is 47 years old and has nine years of formal education. 2 He alleges
that he is disabled due to back pain, diabetes, high cholesterol, obesity, and major

1

See Dockets 17 (Brief), 20 (Opp.), 21 (Reply).

2

See Docket 29 (Administrative Record [hereinafter A.R.]) 116, 120.

depressive disorder. 3 Mr. Eason was employed between 1996 and 2006 “fabricating
[and] building springs” and has also worked for brief periods of time as a car detailer,
seafood processor, and agricultural worker. 4 He self-reports no employment after March
2007. 5 According to his medical records, Mr. Eason was injured in a fall while working in
2007, which has caused pain in his back and lower extremities. 6
I.

Mr. Eason’s Application for Social Security Benefits
On January 30, 2012, Mr. Eason applied for disability insurance benefits under
Titles II and XVI of the Social Security Act, alleging a disability onset date of November
5, 2011. 7 On May 4, 2012, the Social Security Administration determined that Mr. Eason
was not disabled. 8 Mr. Eason promptly requested a hearing before an administrative law
judge (“ALJ”). 9 The hearing was held on November 14, 2012 before ALJ Paul Hebda. 10

II.

The Administrative Record
The record before the ALJ reflected the following:
A. Medical Evidence

3

A.R. 28, 116.

4

A.R. 272; see also A.R. 69.

5

Id.

6

A.R. 308.

7

A.R. 236. Mr. Eason had a previous claim for disability which was denied in a final decision
dated November 4, 2011. A.R. 95.

8

A.R. 103–04.

9

A.R. 166–67.

10

A.R. 41.

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The ALJ had before him approximately 90 pages of medical records documenting
Mr. Eason’s treatment, primarily for back pain and diabetes. 11

Those records are

summarized in the following paragraphs.
In January 2010, Mr. Eason was seen at the Alaska Spine Institute on referral for
pain and numbness in his lower back and extremities. 12 Records from that consultation
indicate that a December 2009 MRI of the lumbar spine showed “moderate lumbrosacral
epidural lipmatosis causing moderate central spinal canal stenosis at L2-L3
throughout.” 13

At that January 2010 visit, Mr. Eason reported his medications as

“Glipizide, hydrochlorothiazide, lisinopril, lovastatin, metformin, nortriptyline, Norvasc,
TriCor, [and] amlodipine.” 14 Alaska Spine Institute referred Mr. Eason for a neurosurgical
opinion. 15
In February 2010, Mr. Eason was seen at Alaska Neuroscience Associates by Dr.
Paul Jensen. 16 Dr. Jensen ordered a CT scan, which “corroborate[d] the known diagnosis
of facet arthropathy at L4-5 and L5-S1. There were early bridging steophytes at 5-1 and
some diastatic changes at 4-5. This again was more focal geographically with the location
of his reported pain. In terms of the findings higher in the lumbar spine at L2-3, he does

11

See A.R. 307–398.

12

A.R. 307–98.

13

A.R. 314.

14

A.R. 308.

15

A.R. 309.

16

A.R. 316–20.

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not have a consistent history of an effort-type pain where he stands and/or walks with
ensuing back pain, and obtains relief by sitting.” 17
The administrative record also included medical records from Providence Alaska
Medical Center documenting several visits by Mr. Eason including visits for back pain in
December 2009 and February 2010, knee pain in July 2010, flu-like symptoms in October
2010, and stroke symptoms in January 2011. 18
On October 13, 2011, Mr. Eason presented to Dr. Juliana Shields for a medication
refill. At that visit he admitted to “ongoing depression and dysthymia,” but denied “frank
suicidal ideation.” The record also indicates that Mr. Eason reported that he “has been
walking intermittently but not getting a significant amount of exercise. He continued to
complain of low back pain.” At that visit, Dr. Shields prescribed or refilled medications to
treat back pain, diabetes, hypertension, and depression. 19
On December 1, 2011, Mr. Eason returned to Dr. Shields.

At that visit he

requested that Dr. Shields complete a Capacity Assessment form for SSI/Disability. Dr.
Shields summarized Mr. Eason’s status, noting:
The patient reports that his pain is essentially unchanged. It
is predominantly in his low back and at worst is 9/10. It does
not radiate. I reviewed his record at length. He has seen Dr.
Gevaert at ASI and Dr. Jensen of neurosurgery. Surgical
intervention was thought unlikely to be of benefit. The patient
was offered a facet joint injection, as he does have some facet
joint arthropathy, however the patient declined secondary to
his severe phobia of needles and the fact that a steroid
17

A.R. 316.

18

A.R. 321–43.

19

A.R. 389–91.

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injection is not likely to be definitive treatment. 20
Under “Assessment Plan,” Dr. Shields wrote
CHRONIC LOW BACK PAIN: I am unable to complete the
patient’s functional evaluation assessment. He is referred to
physical therapy for this. . . . I do not feel that I know the patient
well enough after meeting him once, nor do I know his
functional limitations well enough to complete the number of
hours he is able to work a day. Clearly due to his ongoing
limitations he is not able to work a full-time job. I have also
reviewed the previously completed Health Status
Questionnaire completed by Dr. Scofield who agreed that the
patient was not able to work either any full-time or part-time
capacity.
DEPRESSION: The patient has severe and debilitating
depression, this likely impairs his ability to work as well. He is
not able to tell me why he is not on an antidepressant at
present. He is not able to tell me with any reasonable answer
or judgment why he has not followed through with psychiatric
evaluation. I will refer him initially to our in-house psychology
for counseling, and we will initiate antidepression treatment
with amitriptyline in hopes that this will address his chronic
pain as well. I will refer him to psychiatry in the very near
future if the amitriptyline is not of significant benefit. He is not
actively suicidal. 21
On March 15, 2012, Mr. Eason was seen by Dr. Sarah Roberts for a medication
refill. Dr. Roberts noted that while Mr. Eason indicated that “he can afford his meds,” he
had been “out of ‘all’ of his meds for about 2.5 months. He continues to have chronic
back pain, but is seeking disability for this.” 22 On March 19, 2012, Mr. Eason was seen
by Dr. Jacquelyn Serrano as a follow-up for high blood pressure. Dr. Serrano indicated

20

A.R. 396.

21

A.R. 397.

22

A.R. 394.

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that Mr. Eason “reports that he had run out of his medicines and that’s why his blood
pressure was so high. He was given a refill and he started taking his medications. Now
his blood pressures have improved.” 23 Dr. Serrano also noted that Mr. Eason “is checking
his blood sugars as directed. He denies episodes of hypoglycemia. He continues to have
chronic daily back pain.” 24 Dr. Serrano also noted that Mr. Eason “walks with a cane” and
“moves very slowly as if in pain.” 25
On March 21, 2012, Mr. Eason underwent a “Physical Work Performance
Evaluation,” a two hour testing regimen conducted by an occupational therapist. 26 The
summary of that evaluation states:
Minimal Overall Level of Work: Falls within the Light
range. Exerting up to 20 pound of force occasionally, and/or
up to 10 pounds of force frequently, and/or a negligence
amount of force constantly (Constantly: activity or condition
exists 2/3 or more of the time) to move objects. Physical
demand requirements are in excess of those for Sedentary
Work. . . . Please note that the overall level of work was
significant influenced by the client’s self-limiting behavior.
Therefore, the Light level of work indicates a minimum ability
rather than a maximum ability. A maximum overall level of
work cannot be determined at this time due to the self-limiting
behavior. 27
The evaluator also stated:
Tolerance for the 8-Hour Day: Due to the client’s limited
23

A.R. 392.

24

Id.

25

A.R. 392.

26

A.R. 333–43.

27

A.R. 333 (italics in original).

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ability to walk and stand, he would have to alternate between
standing, walking and other tasks as limited in the task
performance to be able to tolerate the Light level of work for
the 8-hour day/40-hour week. Please note that the tolerance
for the 8-hour day was significantly influenced by the client’s
self-limiting behavior and indicates his minimal rather than his
maximal effort. 28
Under “Subjective Pain Statements,” the evaluator noted that Mr. Eason “states he is in
pain all the time at home; his pain wakes him up; he is not comfortable sleeping; he uses
his cane while walking due to pain and posture; he states his pain makes him angry.”
Under “Pain Behaviors and their Impacts on Test Results,” the evaluator noted “[c]ursing;
facial grimacing; pain comments; position changes. He was clearly uncomfortable even
before we started the testing.” And under “Body Mechanics and Movement Patterns,” the
evaluator noted that Mr. Eason “demonstrated impaired body mechanics and movement
patterns during the test due to pain and tightness/stiffness in his back and legs.” 29 After
detailing the individual tests and their results, the evaluator concluded that the “test
suggests he can work at the light level with a job that allows moving between sitting,
standing and walking. Unfortunately, all the jobs he’s had have been medium or higher
jobs, and he does not have a good skills set for office work. He has not graduated from
high school.”30
On April 27, 2012, Mr. Eason was again examined by Dr. Shields. Although
presenting for “hypertension, diabetes hyperlipidemia and depression,” the visit focused

28

A.R. 334 (italics in original).

29

A.R. 335.

30

A.R. 338.

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largely on Mr. Eason’s mental health, and Dr. Shields requested an immediate evaluation
for depression. 31 Mr. Eason was examined that same day by Dr. Parret, a psychologist.
Dr. Parret recorded that Mr. Eason reported “feeling depressed and isolating himself from
family.” She added that Mr. Eason reported that he had “thought about hurting himself in
the past and always has a plan, but has never acting [sic] on the plan.” Dr. Parret referred
Mr. Eason to counseling. Dr. Parret’s assessment stated:
Pt [a]ppeared depressed and not functioning well in his daily
life. He is likely in a lot of pain which is worsened by his
depressive state. He was hesitant to share much information
with this clinician which may be telling for how well he will do
participating in therapy. His guarded state is likely a protective
factor for himself, but makes it difficult to try and help him
medically as well as provide mental health services. 32
On June 20, 2012, Mr. Eason received a follow-up exam by Dr. Shields. Dr.
Shields directed Mr. Eason to call his pharmacy to refill his medications for hypertension
and diabetes. Dr. Shields noted that Mr. Eason “has ongoing difficulty with depression”
and arranged for him to contact the counseling department to schedule an appointment.
Dr. Shields also refilled Mr. Eason’s Tramadol prescription for back pain. 33
The administrative record includes counselor’s notes for four counseling sessions
that Mr. Eason attended between June and November 2012. 34 Of note is Mr. Eason’s
“Behavior Health Intake Assessment” of June 26, 2012. On that date, he reported

31

A.R. 352–53.

32

A.R. 351.

33

A.R. 349–50.

34

A.R. 354–65, 368–86.

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depression from his inability to find work due to his back injury and thoughts of self-harm.
However, Mr. Eason also reported on that date that “he could never kill himself because
he loves his three children too much.” 35
On September 18, 2012, Mr. Eason was examined by Dr. Susan Hayner for
medication refills and “blisters on his feet.” Dr. Hayner noted that Mr. Eason “doesn’t
check his sugar because he doesn’t have a meter and doesn’t like to check blood sugars.
He is very afraid of needles.”36 Dr. Hayner concluded that the blisters were likely friction
blisters, provided refills of Mr. Eason’s pain medication, and referred him to massage
therapy for his lower back pain. 37
B. Testimony of Mr. Eason
Mr. Eason attended the November 14, 2012 administrative hearing with counsel.
Under examination by his attorney, Mr. Eason testified that he had painful blisters on the
bottom of his feet that caused a burning pain and indicated that he needed to take insulin
to remedy the condition. 38 He testified that he was not taking insulin because he did not
have any, and that he did not expect to be able to pay for it in the future. 39
Mr. Eason also testified that it helps with his discomfort when he lies down. He
testified that he could sit for “an hour” and then needed to “get up and move around, walk

35

A.R. 384.

36

A.R. 387.

37

A.R. 388

38

A.R. 52.

39

A.R. 53–54.

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around a bit” with the help of a cane prescribed by a doctor. 40 He testified that he uses
the cane “all the time” and can stand with it for an hour but “not long” without it and can
walk approximately 50 feet with a tolerable amount of pain. 41 Mr. Eason added that his
back pain affects his sitting and standing and is “throbbing pain, all the time.” 42 Mr. Eason
also testified that his medications make him drowsy; as a result he does not always take
them because he is a caregiver for his two teenage boys. 43 He added that his back pain
makes his legs numb. 44
Mr. Eason also testified that he sleeps most of the day and doesn’t sleep well at
night when he takes his medication. 45 He testified that his high blood pressure makes
him dizzy, and sometimes requires multiple medications to control. 46 And he testified that
while his medical records noted that he had not taken his blood pressure medication in
the past, of late he had been taking it and as a result, he no longer had dizziness or
nosebleeds. 47 Mr. Eason testified that he has a ninth grade education and that he “cannot

40

A.R. 54. With the exception of the March 19, 2012 visit with Dr. Serrano (A.R. 392) and the
December 1, 2011 visit with Dr. Shields (A.R. 397), none of Mr. Eason’s medical professionals
record his use of a cane. No medical records document the necessity of the cane or its
prescription by a physician.
41

A.R. 55.

42

A.R. 56.

43

A.R. 56–57.

44

A.R. 58.

45

Id.

46

A.R. 60.

47

A.R. 59.

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read at all” and relies on his sons to help with taking his medications. 48
C. Testimony of Betty Ann Lees
At the hearing, Betty Ann Lees, an independent vocational expert, requested that
the ALJ ask Mr. Eason about his ability to count money and make change, given his
asserted illiteracy. Mr. Eason responded that he could count money and differentiate
between the denominations of bills. 49
Ms. Lees then testified to Mr. Eason’s previous employment and the associated
DOT classifications. 50 The ALJ then posed to Ms. Lees the following hypothetical:
An individual of the claimant’s age, education, and past work
experience who can perform light level work as defined by the
Social Security Administration with the following [sic] climbing
of ramps or stairs, ladders, ropes, scaffolding, stooping,
crouching, crawling, would all be at the occasional level.
There would be the avoidance of concentrated exposure to
extreme cold and there would be the avoidance of
concentrated exposure to excessive vibration. Work would be
limited to one to two step tasks with few if any work place
changes with more verbal than written instructions. 51
Ms. Lees testified that such an individual would not be able to perform any of Mr. Eason’s
past relevant work history. 52 But she then testified that such a person could perform the
DOT-described jobs of a thread cutter tender, a bobbin stripper, or a small products

48

A.R. 62–63.

49

A.R. 67–68.

50

A.R. 69.

51

A.R. 70.

52

Id.

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assembler in the existing national economy. Ms. Lees noted that the latter two jobs each
had an estimated 50 positions available in the Alaska economy. 53 Ms. Lees also testified
that if a one-hour sitting and standing interval was introduced, the number of available
jobs would be reduced by 50%. 54

And Ms. Lees testified that if the hypothetical

individual’s residual functional capacity was changed from “light” to “sedentary,” there
would not be any jobs that the individual could perform. 55
III.

The ALJ’s Decision and Mr. Eason’s Appeal
On December 20, 2012, the ALJ issued a decision finding Mr. Eason had not been

under a disability within the meaning of the Social Security Act since November 5, 2011,
the date his application was filed. 56 Mr. Eason timely requested review by the Social
Security Appeals Council. 57 On February 11, 2014, the Appeals Council denied that
request for review. 58
Mr. Eason then sought judicial review of the ALJ’s findings by this Court pursuant
to 42 U.S.C. § 405(g). 59

53

A.R. 71–72. Ms. Lees testified that 15,980 positions for a bobbin stripper and 235,910 positions
for a small products assembler exist in the national economy.
54

A.R. 73.

55

A.R. 72.

56

A.R. 22.

57

A.R. 18.

58

A.R. 1.

59

Docket 1 (Complaint) at 1.

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DISCUSSION
I.

The Disability Determination Process and the ALJ’s Findings
The Social Security Act provides for the payment of benefits to disabled individuals
who satisfy certain income and resource eligibility criteria. 60 Disability is defined as an
inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12
months.”61
The Social Security Commissioner has established a five-step process for
determining disability. 62 At Steps 1 through 4, the claimant bears the burden of proving
his entitlement to disability benefits; at Step 5, the burden shifts to the Social Security
Commissioner to show there is gainful activity the claimant can perform. 63
At Step 1, the claimant must show he is not currently engaged in substantial gainful
activity. 64 At Step 2, the claimant must demonstrate that his impairment is “severe,” i.e.,
an impairment that “significantly limits [his] physical or mental ability to do basic work

60

42 U.S.C. §§ 1381–1382; 42 U.S.C. § 423.

61

42 U.S.C. § 1382c(a)(3)(A). This definition of disability for SSI purposes mirrors the definition
of disability for DIB purposes. See 42 U.S.C. § 423(d)(1)(A). Disability regulations for the SSI
and DIB programs also mirror each other. Accordingly, case law dealing with one program is
generally relevant to both programs. In setting out the legal standard, the Court cites to
regulations for both programs.

62

20 C.F.R. § 404.1520(a)(1); 20 C.F.R. § 416.920(a)(4).

63

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting Tidwell v. Apfel, 161 F.3d 599,
601 (9th Cir. 1998)).
64

20 C.F.R. § 404.1520(a)(4)(i); 20 C.F.R. § 416.920(a)(4)(i).

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activities” that has lasted or is expected to last for at least twelve months. 65 At Step 3, if
the claimant proves his impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix
1, then the ALJ must conclude the claimant is disabled. 66 If not, then the ALJ determines
the claimant’s residual functional capacity (“RFC”), which is the most work the claimant
can still do despite his limitations. 67 At Step 4, the ALJ uses the RFC to determine
whether the claimant is capable of performing his past relevant work. 68 If the claimant
proves he cannot perform his past relevant work, then at Step 5 the Social Security
Commissioner must show—based on the claimant’s RFC, age, education, and work
experience—that the claimant is capable of performing other work that exists in significant
numbers in the national economy. 69 If the claimant can make an adjustment to such other
work, he is not disabled. If he is not able to do any other work, then he is considered
disabled. 70
In this case, prior to applying the five-step approach, the ALJ concluded that due
to Mr. Eason’s deepening depression, the presumption of continuing non-disability that

65

20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R. § 404.1509; 20 C.F.R. § 416.920(a)(4)(ii), (c); 20
C.F.R. § 416.909.

66

20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. § 416.920(a)(4)(iii).

67

20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.945(a)(1). The ALJ makes the RFC
determination based on “all of the relevant medical and other evidence,” including “descriptions
and observations of [the claimant’s] limitations” provided by the claimant and others. Id. §
404.1545(a)(3); 416.945(a)(3);.
68

20 C.F.R. § 404.1520(a)(4)(iv); 20 C.F.R. § 416.945(a)(4)(iv).

69

20 C.F.R. § 404.1520(a)(4)(v); 20 C.F.R. § 416.945(a)(4)(v); 20 C.F.R. § 404.1566 (defining
the “significant numbers” requirement).

70

Id.

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would otherwise result from his prior denial of benefits did not apply. 71 At Step 1, the ALJ
found that Mr. Eason had not engaged in substantial gainful activity since the alleged
onset date of November 5, 2011. 72 At Step 2, the ALJ found that Mr. Eason had the
following severe impairments: facet arthropathy of the lumbar spine, diabetes mellitus,
hypertension, obesity, and depression. 73 At Step 3, the ALJ found that Mr. Eason did not
have an impairment or combination of impairments that met or medically equaled the
severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 74
The ALJ then determined that Mr. Eason had the RFC to
perform light work . . . except the claimant is limited to
occasional climbing of ramps, stairs, ladders, ropes or
scaffolds; occasional stooping, crouching and crawling; must
avoid concentrated exposure to extreme cold and excessive
vibration; and is limited to work involving 1- to 2-step tasks
with few workplace changes and providing verbal rather than
written instructions. 75
In making his finding, the ALJ discussed Mr. Eason’s alleged impairments and symptoms,
including those he self-reported. Although the ALJ found that Mr. Eason’s “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms,” he did not find Mr. Eason’s “statements concerning the intensity, persistence,

71

A.R. 22–23; see supra note 6; Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988) (“The claimant,
in order to overcome the presumption of continuing nondisability arising from the first
administrative law judge’s findings of nondisability, must prove changed circumstances indicating
a greater disability.”) (internal quotation marks omitted).
72

A.R. 24.

73

Id.

74

A.R. 25.

75

A.R. 27.

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and limiting effects of these symptoms wholly credible.” 76 At Step 4, the ALJ found that
Mr. Eason was unable to perform any past relevant work. 77 At Step 5, the ALJ found that
“considering [Mr. Eason’s] age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that [Mr.
Eason] can perform.” 78 Specifically, based on the testimony of Ms. Lees, the ALJ found
that Mr. Eason could perform the jobs of thread-cutter tender, bobbin stripper, or small
product assembler. 79 Accordingly, the ALJ determined that Mr. Eason had not been
under a disability, as defined by the Social Security Act, since November 5, 2011. 80
II.

Standard of Review
The ALJ’s denial of benefits to Mr. Eason should be set aside “only if it is not
supported by substantial evidence or is based on legal error.” 81 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support [the
ALJ’s] conclusion.”82 An ALJ’s determination is based on legal error if the ALJ failed to
apply the proper legal standard. 83 This Court “review[s] only the reasons provided by the

76

A.R. 28–29.

77

A.R. 34.

78

Id.

79

A.R. 35.

80

Id.

81

Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)).

82

Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).

83

See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

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ALJ in the disability determination and may not affirm the ALJ on a ground upon which he
did not rely.” 84
III.

Analysis
Mr. Eason presents four arguments in this appeal. First, Mr. Eason asserts that
the ALJ erred in formulating the RFC by failing to account for Mr. Eason’s use of a cane.
Second, Mr. Eason asserts that the RFC failed to account for Mr. Eason’s asserted need
to alternate positions. Third, Mr. Eason asserts that the RFC failed to account for the
ALJ’s finding that Mr. Eason experienced moderate limitations of concentration,
persistence, and pace. Fourth, Mr. Eason asserts that the ALJ erred in making findings
as to the jobs that Mr. Eason could perform in the national economy because the ALJ
improperly relied on the testimony of the Vocational Expert regarding the number of steps
in a job that Mr. Eason could perform.
A. Formulation of Mr. Eason’s RFC
i. Use of a cane
Mr. Eason asserts that the ALJ clearly erred by failing to include or account for Mr.
Eason’s need to use a cane in the RFC. Mr. Eason identifies the following evidence in
support of his need for a cane: the medical evidence that Mr. Eason suffers from back
pain and has difficulty walking; the observation of Dr. Shields that Mr. Eason was using a
cane; the Third Party Function Report submitted by Mr. Eason’s longtime friend; and Mr.
Eason’s own testimony that he uses a cane that was prescribed for him by his prior

84

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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primary care physician. 85 Mr. Eason asserts that the ALJ erred because “an ALJ must
always include all of the limitations demonstrated in the record in his RFC finding or
explain why they were excluded.”86 The Commissioner responds that the ALJ set forth
reasons to discredit Mr. Eason’s testimony and the third party report, and adequately
explained that although the “medical evidence shows that [Mr. Eason] did use a cane
some of the time, [it] did not establish he actually needed to use a cane.”87
Mr. Eason asserts that unambiguous agency policy requires the ALJ to address
Mr. Eason’s use of a cane in the RFC, citing Social Security Ruling 96-9p’s statement
that “the RFC assessment is a function-by-function assessment based upon all of the
relevant evidence of an individual’s ability to perform work-related activities.” 88 However,
an ALJ is not obligated to analyze an alleged physical limitation in the RFC when
substantial evidence in the record as a whole does not support that the alleged limitation
is, in fact, a limitation. 89

Rather, the ALJ is obligated to adequately explain his

consideration of the evidence in the record and then formulate an RFC based on that

85

See Docket 17 (Brief) at 12; see id. at 8–11.

86

Id. at 6.

87

Docket 21 (Opp.) at 7–8.

88

SSR 96-9P, 1996 WL 374185, *2; see Docket 17 (Brief) at 12.

89

See Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (“An ALJ may rely on a vocational
expert’s testimony that is based on a hypothetical that ‘contain[s] all of the limitations that the ALJ
found credible and supported by substantial evidence in the record.’”) (quoting Bayliss v. Barnhart,
427 F.3d 1211 (9th Cir. 2005)); Bayliss, 427 F.3d at 1217 (“Preparing a function-by-function
analysis for medical conditions or impairments that the ALJ found neither credible nor supported
by the record is unnecessary.”).

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evidence. 90 Here, there was no medical source testimony that the cane was prescribed
or medically necessary. 91 And Mr. Eason’s counsel did not seek testimony from the
Vocational Expert regarding the impact of the use of a cane and did not advocate to the
ALJ that the cane was an additional limitation. 92 Mr. Eason’s use of a cane was noted by
the ALJ as part of Mr. Eason’s subjective severity of symptoms testimony. 93 The ALJ
found that “the claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms.” 94 However, the ALJ went on to reject some
of Mr. Eason’s statements as to the severity of his symptoms.
“[T]he ALJ may reject the claimant's testimony regarding the severity of her
symptoms only if he makes specific findings stating clear and convincing reasons for
doing so.” 95

“General findings are insufficient; rather, the ALJ must identify what

testimony is not credible and what evidence undermines the claimant's complaints.”96
90

See SSR 96-5P, 1996 WL 374183, *5 (“Adjudicators must weigh medical source statements
under the rules set out in 20 CFR 404.1527 and 416.927, providing appropriate explanations for
accepting or rejecting such opinions.”); SSR 96-7P, 1996 WL 374186, *5 (“When evaluating the
credibility of an individual's statements, the adjudicator must consider the entire case record and
give specific reasons for the weight given to the individual's statements.”).

91

See A.R. 28, 32–33; Lewis v. Apfel, 236 F.3d 503, 512–13 (9th Cir. 2001) (ALJ did not err when,
despite failing to make specific findings as to nature and frequency of claimant’s seizures, he
discussed and evaluated evidence to support his conclusion that claimant’s symptoms did not
persist when on medication).
92

See A.R. 303–04 (Letter to ALJ).

93

A.R. 28 (“He reported that he uses a walking cane every day.”).

94

A.R. 28.

95

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citing Dodrill v. Shalala, 12 F.3d 915,
918 (9th Cir. 1993)).

96

Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).

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Here, the ALJ addressed why Mr. Eason’s testimony was given limited weight. 97 After
discussing the medical records regarding Mr. Eason’s back injuries, the ALJ found that
“[c]onsidering the radiographic evidence, the EMG/NCV report, the lack of consistent
clinical examination findings, the conservative nature of the treatment, and the evidence
suggesting the claimant did not give a full effort during examinations, I find that the
claimant’s allegations of back pain and lower extremity symptoms are not wholly
credible.” 98 And after discussing Mr. Eason’s medical records regarding diabetes, the
ALJ found that “[c]onsidering the lack of supporting objective evidence, the lack of
persistent symptoms, and the claimant’s refusal to follow his doctor’s recommendations,
I find no credible evidence that the claimant experiences disabling . . . lower extremity
pain and numbness.”99 Although the ALJ did not specifically reject Mr. Eason’s testimony
that he requires a cane to function, the ALJ presented clear and convincing reasons for
rejecting Mr. Eason’s subjective testimony as to the severity of those symptoms that
would require him to use a cane. In light of the ALJ’s adverse credibility determination
and paucity of medical source evidence demonstrating that the cane was a medical
necessity, 100 the Court finds that the ALJ did not err in not including Mr. Eason’s use of a
cane as a limitation in the RFC. And as a consequence, Mr. Eason’s arguments that the
ALJ’s job findings constituted clear error because the RFC failed to include mobility

97

See A.R. 28–29 (credibility finding as to Mr. Eason); A.R. 33 (credibility finding as to Ms. Tinal,
Mr. Eason’s friend who submitted a Third-Party Function Report).
98

A.R. 30.

99

A.R. 30.

100

See supra note 40.

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limitations due to use of a cane are likewise unpersuasive.
ii. Failure to include a limitation of physically alternating positions
through the day
Mr. Eason asserts that the ALJ erred by failing to include as a limitation in the RFC
a need for Mr. Eason to physically alternate positions throughout the workday. He cites
to a portion of the Physical Work Performance Evaluation that states that “[d]ue to [Mr.
Eason’s] limited ability to walk and stand, he would have to alternate between standing,
walking, and other tasks as listed in the task performance table to be able to tolerate the
Light level of work for the 8-hour day/40 hour week.” 101 But that assessment also states
“[p]lease note that the tolerance for the 8-hour day was significantly influenced by [Mr.
Eason’s] self-limiting behavior and indicates his minimal rather than his maximal
ability.” 102
The ALJ noted both the evaluator’s finding and Mr. Eason’s self-limiting behavior
during the evaluation in his decision. 103

And the ALJ elicited testimony from the

Vocational Expert on “a sit/stand option . . . allowing the individual to alternate sitting or
standing positions at one hour intervals throughout the day.” 104 The Vocational Expert
testified that the additional restriction would “erode the numbers” of available jobs in the

101

Docket 17 (Brief) at 15 (citing A.R. 334).

102

A.R. 334. Similarly, Dr. Shields noted that Mr. Eason “[c]annot do heavy or medium level
work, but could do light level with [the accommodation of changing positions].” A.R. 344.
103

A.R. 30.

104

A.R. 73.

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national economy by “approximately 50 percent.”105 In light of the Vocational Expert’s
testimony that there would still be suitable positions for Mr. Eason with a sit/stand
limitation, the failure to expressly include an alternating-positions restriction in the RFC,
if in error, was harmless. 106
iii. Failure to account for finding of moderate limitation of concentration,
persistence, and pace
Mr. Eason’s RFC specified that he is “limited to work involving 1- to 2- step tasks
with few workplace changes and providing verbal rather than written instructions.”107 Mr.
Eason asserts that the ALJ erred because the RFC failed to adequately reflect the ALJ’s
finding that “[w]ith regard to concentration, persistence or pace, the claimant has
moderate difficulties.” 108 Specifically in this regard, the ALJ found that:
With regard to concentration, persistence or pace, the
claimant has moderate difficulties. The claimant alleges
severe cognitive limitations. However, the medical evidence
of record reveals no objective evidence of significant cognitive
limitations. However, his symptoms’ persistence suggests
depression interferes with his ability to sustain concentration,
persistence or pace to some degree. 109
105

A.R. 73.

106

See Garcia v. Comm. of Soc. Sec., 708 F.3d 925, 932 (9th Cir. 2014) (“We will not reverse an
ALJ’s decision on the basis of a harmless error, which exists when it is clear from the record that
the ALJ’s error was inconsequential to the ultimate nondisability determination.”) (citation and
internal quotation marks omitted); Docket 17 (Brief) at 16 (“Although this additional testimony,
standing alone, might be considered ‘harmless error,’ in combination with the other errors of the
ALJ set forth above, this additional erosion of the job base cannot be said, as a matter of law, to
be harmless since additional vocational testimony which considers all of Mr. Eason’s work-related
limitations is the only remedy which can address the ALJ’s errors.”) (emphasis in original).
107

A.R. 27.

108

A.R. 26.

109

A.R. 26.

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In Stubbs-Danielson, the Ninth Circuit upheld an RFC that limited a claimant to
“simple, routine, repetitive sedentary work” to reflect medical evidence that the claimant
had “a slow pace, both in thinking & actions” and had “several moderate limitations in
other mental areas.”110 The Circuit Court noted that “[t]he ALJ translated [the claimant’s]
condition, including the pace and mental limitations, into the only concrete restrictions
available to him—[a doctor’s] recommended restriction to ‘simple tasks.’” 111 Citing similar
holdings in two other circuits, the Ninth Circuit held that “an ALJ’s assessment of a
claimant adequately captures restrictions related to concentration, persistence, or pace
where the assessment is consistent with restrictions identified in the medical
testimony.” 112
Here, unlike in Stubbs-Danielson, the nature of Mr. Eason’s cognitive limitations
are only evidenced in the record by Mr. Eason’s self-reporting to his medical providers
and testimony at the administrative hearing. 113 And while there is significant medical
source evidence that Mr. Eason suffered from depression, the ALJ found that
“[c]onsidering the lack of treatment for depression related symptoms until well after the
alleged disability onset date, the lack of significant clinical findings suggesting limitations,

110

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173–74 (9th Cir. 2008).

111

Id. at 1174.

112

Id. at 1174 (citing Howard v. Massanari, 255 F.3d 577, 582 (8th Cir.2001); Smith v. Halter, 307
F.3d 377, 379 (6th Cir.2001)).

113

See A.R. 289. Likewise, Mr. Eason’s illiteracy is unsupported in the record beyond his own
testimony (A.R. 32), but was incorporated into the RFC by the limitation that Mr. Eason receive
“verbal rather than written instructions” in his employment.

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and the apparent effectiveness of treatment, I do not find the claimant’s depression
related allegations wholly credible.” 114 With limited evidence of cognitive limitations
before him, the ALJ concluded that the fact that Mr. Eason’s “depression interferes with
his ability to sustain concentration, persistence or pace to some degree” supported an
RFC limitation of “limited to work involving 1- to 2- step tasks with few workplace changes
and providing verbal rather than written instructions.” After reviewing that evidence, the
Court finds that the ALJ’s approach is consistent with Stubbs-Danielson and adequately
captured the nature of Mr. Eason’s mental limitations in the RFC. 115

114

A.R. 32.

115

Moreover, it is notable that the ALJ found Mr. Eason’s self-reported limitations not wholly
credible. A.R. 31–32. Given the lack of medical evidence of Mr. Eason’s cognitive limitations,
the ALJ’s finding of moderate cognitive limitations could be set aside as not supported by
substantial evidence, in which case the additional limitations in the RFC would be harmless error
because they favored Mr. Eason.
Mr. Eason’s citation to Brink v. Comm’r Social Sec. Admin., 343 F. App’x 211 (9th Cir. 2009) is
not persuasive. As an initial matter, that case is an unpublished memorandum disposition that
contains only limited factual background. In Brink, the ALJ accepted medical evidence that the
claimant had difficulties with concentration, persistence, and pace. The ALJ posed a hypothetical
to a Vocational Expert that included a limitation of “simple, repetitive work,” and the Vocational
Expert testified that jobs existed for the hypothetical person. The ALJ then posed a hypothetical
that included a limitation for “moderate to marked attention and concentration deficits,” and the
Vocational Expert testified that the hypothetical person would be unable to perform any jobs with
that limitation. The ALJ ultimately found the claimant not disabled using the “simple, repetitive
work” limitation. The Circuit Court found that only the ALJ’s second hypothetical incorporated the
claimant’s cognitive limitations and that because the ALJ made his findings relying on the
Vocational Expert’s testimony as to his first hypothetical only, his findings were not supported by
substantial evidence. Id. at 212. Unlike in Brink, the ALJ here clearly intended for his hypothetical
to incorporate Mr. Eason’s cognitive limitations, evinced most notably by the hypothetical
limitation to verbal instructions. And unlike in Brink, there is limited medical evidence of cognitive
impairment in the record in this case. Having already found that the RFC adequately captured
the nature of Mr. Eason’s cognitive limitations, the ALJ did not err in formulating his hypothetical
and therefore could rely on the Vocational Expert’s responsive testimony as substantial evidence
to conclude that jobs existed in the national economy that Mr. Eason could perform.

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B. The ALJ’s reliance on the Vocational Expert’s evidence to identify jobs
Mr. Eason could perform
Mr. Eason asserts that each of the three jobs the Vocational Expert identified as
jobs Mr. Eason could perform given his RFC require more than 1 to 2 steps. Accordingly,
Mr. Eason asserts that the ALJ erred in relying on the Vocational Expert’s testimony
without addressing the discrepancy between the DOT descriptions of those positions and
Ms. Lees’s testimony that Mr. Eason could perform those jobs. 116 In her opposition brief,
the Commissioner concedes that the job of thread cutter tender, with a reasoning level of
3, “may be precluded in this case” due to Mr. Eason’s alleged illiteracy. 117 But the
Commissioner asserts that for the other two jobs, Mr. Eason conflates the number of tasks
required by each job with the number of steps required to perform any given listed task. 118
The Court finds that one of the jobs identified by Ms. Lees—bobbin stripper—has
a DOT description that requires tasks of more than 1 to 2 steps. 119 The “task” in the
description of that job is the overall tending of the stripper, which clearly involves
numerous sequential steps. 120 The ALJ provided no explanation for the conflict between

116

Docket 17 (Motion) at 4–8.

117

Docket 21 (Opp.) at 19.

118

Docket 21 (Opp.) at 16–18.

119

Bobbin stripper: DOT Code 689.685-022: Tends stripper that removes thread residue from
brass bobbins to prepare bobbins for rewinding: Loads bobbins on shaft of stripping device and
ties thread ends to reel at bottom of stripper. Pulls lever to start device that strips thread from
bobbins and winds thread onto reel. Removes bobbins from shaft and holds bobbins in front of
light to detect thread particles clinging to base or sides of bobbin. Inserts searcher between disks
to remove thread particles.

120

See Docket 17 (Brief) at 6.

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his determination that Mr. Eason’s RFC required him to perform light work involving 1- to
2-step tasks, Ms. Lees’s determination that Mr. Eason could perform the work of bobbin
stripper, and the DOT’s description of those tasks as requiring more than one or two
steps. Because Social Security regulations require such an explanation before the ALJ
may rely on a Vocational Expert’s evidence, the ALJ erred in relying on the Vocational
Expert’s evidence that Mr. Eason could perform the bobbin stripper job. And without
consideration of the evidence of the Vocational Expert, the Court finds that the ALJ’s
determination that Mr. Eason could perform the job of bobbin stripper was not supported
by substantial evidence. 121
Unlike the description for bobbin stripper, the DOT description for “small products
assembler” describes a series of discrete, repetitive tasks that such a worker might
engage in. 122 However, Mr. Eason asserts that the ALJ erred in finding that Mr. Eason’s
RFC permitted him to perform that job because Mr. Eason’s RFC limits him to workplaces

121

See SSR 00-4p (requiring that “before relying on [Vocational Expert] evidence to support a
disability determination or decision” adjudicators must “[id]entify and obtain a reasonable
explanation for any conflicts between occupational evidence provided” and information in the DOT
and “[e]xplain in the determination or decision how any conflict that has been identified was
resolved”).

122

Small products assembler: DOT Code 706.684-022: Performs any of a combination of
following repetitive tasks on assembly line to mass produce small products, such as ball bearings,
automobile door locking units, speedometers, condensers, distributors, ignition coils, drafting
table subassemblies, or carburetors: Positions parts in specified relationship to each other, using
hands, tweezers, or tongs. Bolts, screws, clips, cements, or otherwise fastens parts together by
hand or using handtools or portable powered tools. Frequently works at bench as member of
assembly group assembling one or two specific parts and passing unit to another worker. Loads
and unloads previously setup machines, such as arbor presses, drill presses, taps, spot-welding
machines, riveting machines, milling machines, or broaches, to perform fastening, force fitting, or
light metal-cutting operation on assembly line. May be assigned to different work stations as
production needs require or shift from one station to another to reduce fatigue factor. May be
known according to product assembled.

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“with few workplace changes and providing verbal rather than written instructions,” while
the small products assembler position notes that a worker “may be assigned to different
work stations as production needs require or shift from one station to another to reduce
fatigue factor.” 123 However, the Court agrees with the Commissioner that the DOT
description contemplates “routine variations in the same job” and does not directly conflict
with Mr. Eason’s RFC.
Mr. Eason raises an additional challenge to the finding that he can perform the
duties of a small products assembler. He asserts that the DOT description of small
products assembler has a “reasoning level” of 2, and therefore the job is “plainly
inconsistent with a limitation to 1-2 step tasks; jobs requiring 1-2 step tasks are explicitly
defined in the DOT as ‘reasoning level 1.’” 124 The Commissioner responds that numerous
district and circuit courts have held that a limitation to 1- to 2-step tasks in a claimant’s
RFC does not limit the claimant to only those jobs having a reasoning level of 1. Upon
review of those cases, the Court agrees that no inherent conflict exists between the small
products assembler position’s reasoning level of 2 and the RFC’s 1- to 2-step task
limitation. 125 Because substantial evidence supports the determination that Mr. Eason
can perform the job of a small products assembler with a limitation of physically alternating
positions, a job which exists in significant numbers in the national economy, the
Commissioner’s finding that Mr. Eason was not disabled will be affirmed.

123

Docket 17 (Motion) at 6.

124

Docket 17 (Motion) at 7–8.

125

The Court found particularly helpful the analysis of the interaction between the social security
regulations and DOT descriptions in Meissl v. Barnhart, 403 F. Supp. 2d 981 (C.D. Cal. 2005).

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CONCLUSION
For the reasons set forth above, the Commissioner’s finding that Mr. Eason was
not disabled, as defined under the Social Security Act, is AFFIRMED. The Clerk of Court
shall enter judgment in favor of the Commissioner.
DATED this 31st day of August, 2015.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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