Lewis v. Social Security Administration

Filing 13

Opinion and Order - 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. Signed on 12/30/2016 by Judge Anna J. Brown. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

STEVEN LEWIS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

JEFFREY HUGH BAIRD
Dellert Baird Law Office, PLLC
524 Tacoma Ave S.
Tacoma, WA 98402
[phone]
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
[phone]

1 - OPINION AND ORDER

3:16-CV-00241-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
LEISA A. WOLF
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Steven Lewis seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and 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 for further
proceedings.

ADMINISTRATIVE HISTORY
Plaintiff filed his applications for DIB and SSI on
July 6, 2012.

Tr. 254, 258.1

onset date of March 15, 2009.

1

Plaintiff alleged a disability
His applications were denied

Citations to the official transcript of record filed by the
Commissioner on June 17, 2016, are referred to as "Tr."
2 - OPINION AND ORDER

initially and on reconsideration.

An Administrative Law Judge

(ALJ) held a hearing on July 31, 2014.

Tr. 57-112.

hearing Plaintiff was represented by an attorney.

At the

Plaintiff, a

lay witness, and a vocational expert (VE) testified at the
hearing.
The ALJ issued a decision on August 15, 2014, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 36-51.

Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on
January 28, 2016, when the Appeals Council denied Plaintiff's
request for review.

Tr. 1-7.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND
Plaintiff was born on March 26, 1984, and was 30 years old
at the time of the hearing.
high school.

Tr. 62.

Tr. 272.

Plaintiff graduated from

Plaintiff has past relevant work

experience as a price marker.

Tr. 50.

Plaintiff alleges

disability due to various mental-health impairments, a seizure
disorder, and obesity.

Tr. 41-42.

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. 48-49.

3 - OPINION AND ORDER

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

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

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."
§ 423(d)(1)(A).

42 U.S.C.

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.
U.S.C. § 405(g).

42

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.”

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.
at 690).
4 - OPINION AND ORDER

Id. (citing Valentine, 574 F.3d

The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

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

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
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.
2011).
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairments or combination of impairments.
5 - OPINION AND ORDER

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.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

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.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

“A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *1.

20 C.F.R.

SSR 96-8p,

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

work he has done in the past.
416.920(a)(4)(iv).

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.
416.920(a)(4)(v).

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 (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 since his March 15, 2009, alleged
onset date.

Tr. 41.

At Step Two the ALJ found Plaintiff has the severe
impairments of organic brain syndrome, seizure disorder, and
obesity.

Tr. 41.

At Step Three the ALJ concluded Plaintiff's medically

7 - OPINION AND ORDER

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 a

full range of work at all exertional levels.

Tr. 44.

The ALJ,

however, found Plaintiff should never work at heights or climb
ladders, ropes, or scaffolds.

Tr. 44.

The ALJ also found

Plaintiff is “able to remember, understand, and carryout [sic]
instructions and tasks generally required by occupations with an
SVP of 1-2" and he should be limited to jobs that do not require
“more than infrequent reading; . . . occasional superficial
interaction with the general public; [and] . . . occasional
interaction with coworkers and supervisors.”

Tr. 45.

The ALJ

found Plaintiff could not perform “job tasks [that] require
independent goal setting or planning” and Plaintiff’s “job tasks
should be primarily non verbal [sic] with little need for
instruction once learned.”

Tr. 45.

At Step Four the ALJ concluded Plaintiff could perform his
past relevant work as a price marker.

Tr. 50.

At Step Five the ALJ concluded, in the alternative, that
Plaintiff could perform jobs that exist in significant numbers in
the national economy.

Tr. 50.

Plaintiff is not disabled.

8 - OPINION AND ORDER

Accordingly, the ALJ found

DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
weighed the opinions of Plaintiff’s treating and examining
physicians and (2) improperly weighed lay-witness opinions.
I.

The ALJ’s analysis of Plaintiff’s treating and examining
psychologists and physicians.
Plaintiff alleges the ALJ erred when he (1) gave “little

weight” to the December 2010 opinion of Jay Edwards, Ph.D.,
examining psychologist; (2) gave “some weight” to the May 2012
opinion of Bruce Boyd, Ph.D., examining psychologist; (3) gave
“little weight” to the opinions of Sarah Rahkola, M.D., treating
physician; and (4) gave “some weight” to the May 2014 opinion of
Amanda Ragonesi, Psy.D., examining psychiatrist.
An ALJ may reject an examining or treating 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 or treating 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).

9 - OPINION AND ORDER

A.

Dr. Edwards’s Opinion
Dr. Edwards evaluated Plaintiff on November 2,

November 16, and December 14, 2010.

In December 2010 Dr. Edwards

issued a Psychological Assessment in which he noted Plaintiff’s
record indicates “a lifelong history of significant delays in
language, motor, memory and academic skill development.”
Tr. 440.

Dr. Edwards concluded his evaluation as follows:
[R]econfirmed [Plaintiff’s] strengths in visual
construction, visual problem solving and visual
reasoning with his WAIS-IV PRI score in the
average range. In stark contrast, [Plaintiff]
continues to show deficiencies in expressive and
receptive language . . ., Working Memory . . .,
and learning disabilities in Reading . . .,
Mathematics . . . and Written Expression. It is
unlikely that he will be successful in any area of
post-secondary education or training that requires
reading, writing or math skills beyond the middle
school level, without significant remediation and
accommodation.

Tr. 443.

Dr. Edwards suggested Plaintiff “may find a Community

College training program in welding, auto repair, or something
that plays to his strengths with hands on [sic] construction,
that is able to offer him support with the academic aspects of
the curriculum.”

Tr. 443.

Although the ALJ gave little weight to Dr. Edwards’s
opinion, the ALJ failed to point out or to identify any specific
reason for doing so based on substantial evidence in the record.
Defendant concedes the ALJ did not identify specific reasons for
giving little weight to Dr. Edwards’s opinion, but Defendant

10- OPINION AND ORDER

asserts it was not error because Dr. Edwards’s opinion does not
identify any specific limitations caused by Plaintiff’s
impairments that the ALJ failed to incorporate into his
assessment of Plaintiff’s RFC.
An ALJ is not required to discuss all of the evidence in the
record.

He must, however, explain his rejection of significant,

probative evidence.

See York-Spann v. Astrue, 400 F. App’x 207,

208 (9th Cir. 2010)(“An ALJ must explain why significant
probative evidence has been rejected.”).

Dr. Edwards diagnosed

Plaintiff with impairments that the ALJ found to be severe, and
Dr. Edwards concluded Plaintiff’s neurocognitive issues impacted
his ability to succeed in an academic or work environment.
Tr. 41.

Dr. Edwards’s findings were significant and probative of

Plaintiff’s functioning and should have been addressed by the
ALJ.
On this record, therefore, the Court concludes the ALJ erred
when he failed to set out specific, legitimate reasons for giving
Dr. Edwards’s opinion little weight based on substantial evidence
in the record.
B.

Dr. Boyd
On March 26, 2012, Dr. Boyd conducted an evaluation of

Plaintiff to determine “whether he is eligible for Developmental
Disabilities (DD) Services.”

Tr. 458.

Plaintiff with a cognitive disorder.

11- OPINION AND ORDER

Dr. Boyd diagnosed

Dr. Boyd stated Plaintiff

“functions in the Severe range of impairment.
what his overall IQ would predict.

This is well below

The most likely contributor

to this deficit is chronic memory problems.”

Tr. 462.

Dr. Boyd

opined Plaintiff is markedly limited in his ability “to maintain
attention and concentration for extended periods” and “to sustain
an ordinary routine without special supervision.”

Tr. 464.

The ALJ gave some weight to Dr. Boyd’s opinion that
Plaintiff is markedly limited in his ability “to maintain
attention and concentration for extended periods” and “to sustain
an ordinary routine without special supervision.”

Tr. 48.

The

ALJ, however, noted Dr. Boyd’s opinion in those areas was
inconsistent with Plaintiff’s activities of daily living.

For

example, Plaintiff reported to Dr. Boyd that he “can spend eight
hours a day [playing] video games.”

Tr. 459.

Similarly, Rodney

Gregg, Plaintiff’s County Service Coordinator, testified at the
hearing that Plaintiff “is limited on focus and direction on what
to do outside of his living environment . . . other than
preferred activities. . . .

Part of his diagnosis . . . is that

. . . it’s hard for [Plaintiff] to actually concentrate on
anything [that] he’s not interested in.”

Tr. 101-02.

The ALJ noted Plaintiff successfully worked at his
“last job” loading and unloading freight without any special
supervision.

Tr. 48, 647-50.

Plaintiff also worked for four

months at Fry’s “price marking” products.

12- OPINION AND ORDER

Tr. 67-68.

Plaintiff

asked for a promotion at Fry’s, received a promotion, and moved
onto the sales floor, which resulted in him quitting because it
was not a good fit for him due to his memory and cognitive
issues.

Tr. 69-70.
On this record the Court concludes the ALJ did not err

when he gave some weight to Dr. Boyd’s opinion because he
provided clear and convincing reasons based on substantial
evidence in the record for doing so.
C.

Dr. Rahkola
On October 24, 2012, Dr. Rahkola, Plaintiff’s treating

physician, submitted a letter of “formal appeal” for the denial
of Plaintiff’s applications for SSI and DIB.

Dr. Rahkola stated

Plaintiff “displays consistent and pervasive difficulties with
short-term memory and cognition that have made it difficult for
him to complete ‘Instrumental Activities of Daily Living’ without
constant assistance.”

Tr. 693.

Dr. Rahkola also stated

Plaintiff “has been unable to maintain employment due to these
disabilities.”

Tr. 693.

On July 21, 2014, Dr. Rahkola completed a Medical
Source Statement in which she opined Plaintiff suffered from a
marked inability to understand and to remember detailed
instructions, to carry out detailed instructions, to “deal with
stress of semi-skilled and skilled work,” to “respond
appropriately to changes in a routine work setting,” to travel in

13- OPINION AND ORDER

unfamiliar places, and to “set realistic goals or make plans
independently of others.”

Tr. 731-32.

The ALJ gave little weight to Dr. Rahkola’s opinions on
the grounds that Dr. Rahkola did not cite “any objective basis or
to [sic] support her opinions [and] she has taken on an advocacy
role, which undercuts the reliability of her assessments.”
Tr. 48.
Dr. Rahkola’s October 2012 opinion is one page and does
not reference the medical record.

Dr. Rahkola states she has

been Plaintiff’s treating physician since October 2010, states
she is “familiar with his medical history and developmental
background,” and asserts her opinion is consistent with
Dr. Boyd’s neuropsychiatric assessment.

Tr. 693.

Dr. Rhakola

notes she sees Plaintiff two-to-three times per year.

Thus, in

October 2012 she had seen Plaintiff approximately 4-6 times.
Dr. Rahkola’s July 2014 Medical Source Statement is a check-thebox form.

“The ALJ need not accept the opinion of any physician,

including a treating physician, if that opinion is brief,
conclusory, and inadequately supported by clinical findings.”
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
In addition, “an ALJ may reject a treating physician's
opinion [when] the physician has shifted roles from a medical
provider to a disability advocate for a plaintiff.”

Stein v.

Comm’r Soc. Sec. Admin., 6:15–cv–00894–YY, 2016 WL 6902345, at *6

14- OPINION AND ORDER

(D. Or. Nov. 23, 2016)(citing Bagoyan Sulakhyan v. Astrue, 456 F.
App’x 679, 682 (9th Cir. 2011); Buckner–Larkin v. Astrue, 450 F.
App’x 626, 628 (9th Cir. 2011); Pryor v. Barnhart, 137 F. App’x
955, 957 (9th Cir. 2005)).

As noted, Dr. Rahkola’s October 24,

2012, opinion was “a formal appeal of [the] denial of
[Plaintiff’s] application for Social Security Disability.”
Tr. 693.

In her opinion Dr. Rahkola stated Plaintiff
requires SSD in order to provide stable housing,
longer-term availability of medical insurance, and
assistive brokerage support. At this time he has
family members “filling the gap”, and these kind
individuals are in danger of losing their own
means of support and the safety of their living
environments in order to provide for [Plaintiff]
what we are requesting from the Social Security
Administration.

Tr. 693.

These statements in Dr. Rahkola’s letter suggest

Dr. Rahkola “stepped out of the treating [physician] role to
become an advocate for [her] patient in presenting a meaningful
petition for Social Security benefits,” and, therefore, the ALJ
was “entitled to give less weight to [Dr. Rahkola’s] medical
opinion.”

Krauser v. Colvin, 2:16-cv-00059-RBL-DWC, 2016 WL

6694066, at *5 (W.D. Wa. Oct. 26, 2016)(citing Matney v.
Sullivan, 981 F.2d 1016, 1020 (9t Cir. 1992); Helmke v.
Astrue, 371 F. App’x 748, 749 (9th Cir. 2010); Lewin v. Colvin,
No. 6:15-CV-00474-TC, 2016 WL 3267287, at *5 (D. Or. June 6,
2016)).
Accordingly, the Court concludes the ALJ did not err

15- OPINION AND ORDER

when he gave little weight to the October 2012 and July 2014
opinions of Dr. Rahkola because he provided clear and convincing
reasons based on substantial evidence in the record for doing so.
D.

Dr. Ragonesi
In May 2014 Dr. Ragonesi conducted a psychological

evaluation of Plaintiff.

Dr. Ragonesi noted Plaintiff “continues

to struggle with verbal reasoning skills and working memory
tasks.”

Tr. 707.

Specifically, Dr. Ragonesi noted Plaintiff’s

“[r]esults from memory testing were . . . reflective of deficits
in [Plaintiff’s] ability to attend to, hold, and process
information in short-term memory.

Results from achievement

testing were reflective of deficits in mathematic skills . . .,
passage comprehension, reading fluency, and writing ability.”
Tr. 708.

Dr. Ragonesi opined Plaintiff’s
learning and working memory difficulties are
likely to negatively impact his ability to
function in a typical work setting. . . . He is
likely to continue to struggle with learning work
related tasks/procedures due to struggles with
working memory. He is also likely to have
difficulty remembering and completing multi-step
instructions across setting [sic].

Tr. 708.

Dr. Ragonesi noted Plaintiff “is likely to benefit from

having ample time to process new information” and “may benefit
from having information in writing to refer to as needed.”
Tr. 708.
The ALJ gave Dr. Ragonesi’s opinion some weight.
Specifically, the ALJ gave weight to Dr. Ragonesi’s objective
16- OPINION AND ORDER

testing, “which shows major deficits in reading, written
expression, and spelling as well as processing verbal
information.”

Tr. 49.

The ALJ accommodated those limitations in

his assessment of Plaintiff’s RFC.

The ALJ gave “less weight” to

Dr. Ragonesi’s opinion that Plaintiff has marked limitations in
his ability to complete a normal work day without interruptions
from psychologically-based symptoms, to perform at a consistent
pace without an unreasonable number and length of rest periods,
to accept instructions and to respond appropriately to criticism
from supervisors, and to respond to changes in a routine work
setting.

In his weighing of Dr. Ragonesi’s opinion, the ALJ

noted Dr. Ragonesi relied in part on interviews with Plaintiff’s
mother during the assessment, and the record reflects Plaintiff’s
mother “has a vested interest in . . . [Plaintiff’s] disability
and has encouraged him not to seek full-time employment.”
Tr. 49.

Dr. Ragonesi noted Plaintiff was “initially reluctant to

discuss his concerns” and “attempted to defer to his mother.”
Tr. 700.

In addition, Plaintiff “continued to rely upon his

mother to provide details, especially dates, of his psychological
history.”

Tr. 700.

The record reflects Plaintiff’s mother

provided Dr. Ragonesi with information related to her pregnancy,
Plaintiff’s early childhood, Plaintiff’s dates of employment, and
the assistance she provided to Plaintiff with his activities of
daily living.

The record, however, also reflects Dr. Ragonesi

17- OPINION AND ORDER

conducted several tests and provided more than ten pages of
narrative setting out her evaluation of Plaintiff’s test results
and Plaintiff’s impairments.

When

a treating provider's opinions are based “to a
large extent” on an applicant's self-reports and
not on clinical evidence, and the ALJ finds the
applicant not credible, the ALJ may discount the
treating provider's opinion. However, when an
opinion is not more heavily based on a patient's
self-reports than on clinical observations, there
is no evidentiary basis for rejecting the opinion.
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)(citations
omitted).

There is not any indication in the record that

Dr. Ragonesi relied more extensively on the statements of
Plaintiff’s mother than on the medical records of Plaintiff that
Dr. Ragonesi reviewed, the interview she conducted, the results
of Plaintiff’s mental-status examination, or the testing she
administered.

Thus, the Court concludes the ALJ did not provide

a legitimate reason to discount portions of Dr. Ragonesi’s
opinion.
The ALJ also found the marked limitations assessed by
Dr. Ragonesi are inconsistent with the record, with Plaintiff’s
work experience at Fry’s, and with his work experience at his job
unloading freight.

As noted, the record reflects Plaintiff

performed well at his jobs at Fry’s and unloading freight.

In

fact, Plaintiff asked for and received a promotion at Fry’s and
quit only after the position to which he was promoted proved to
be too complex for him.
18- OPINION AND ORDER

Plaintiff’s RFC as assessed by the ALJ

includes limitations that would indicate Plaintiff could not
perform the job to which he was promoted at Fry’s.
On this record the Court concludes the ALJ did not err
when he gave some weight to Dr. Ragonesi’s opinion.
II.

The ALJ’s evaluation of lay-witness statements and
testimony.
Plaintiff alleges the ALJ erred when he gave “little weight”

to the statements of Chrissy Fuchs, M.S.W., and Sally Martin,
L.C.S.W., and to the testimony of Rodney Gregg.
Medical sources are divided into two categories:
"acceptable" and "not acceptable."

20 C.F.R. § 416.902.

Acceptable medical sources include licensed physicians and
psychologists.

20 C.F.R. § 416.902.

Medical sources classified

as "not acceptable" include, but are not limited to, . . .
licensed clinical social workers. . . .

SSR 06-03p, at *2.

The

ALJ may assign a not-acceptable medical source either greater or
lesser weight than that of an acceptable medical source.
03p, at *5-6.

SSR 06-

The ALJ, however, must explain the weight assigned

to such sources to the extent that a claimant or subsequent
reviewer may follow the ALJ's reasoning.

SSR 06-03p, at *6.

Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."

19- OPINION AND ORDER

Lewis v. Apfel, 236 F.3d 503, 511

(9th Cir. 2001).

See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").

The ALJ's reasons

for rejecting lay-witness testimony must also be "specific."
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).
A.

Chrissy Fuchs
Chrissy Fuchs was Plaintiff’s Service Coordinator with

Yamhill County Community Developmental Disabilities Program.

At

some point Fuchs wrote a letter containing information she
believed would be “helpful in the decision making process
regarding [Plaintiff’s] eligibility for SSI/SSDI.”

Tr. 718.

Fuchs explained she had worked with Plaintiff since June 2012 to
“access services needed to support him that are directly related
to his developmental disability.”

Tr. 718.

Fuchs noted

Plaintiff “required the assistance of a professional job
developer and job coach to secure a job unloading/loading
freight.

He was unable to maintain the job . . . due to his

limitations in understanding the part-time, on-call schedule and
recordkeeping requirements of the independent contractor work.”
Tr. 718.

Fuchs also noted Plaintiff “struggled to communicate

. . . [with] his supervisor and the job coach.”

Tr. 718.

The ALJ gave little weight to Fuchs’s letter on the
ground that the record reflects Plaintiff performed well at the

20- OPINION AND ORDER

job loading and unloading freight, “but there were concerns about
the effect of his work on [his] eligibility for benefits.”
Tr. 49.

In addition, the ALJ noted he accounted for Plaintiff’s

communication problems in his evaluation of Plaintiff’s RFC.
On this record the Court concludes the ALJ did not err
when he gave little weight to Fuchs’s letter because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
B.

Sally Martin
Sally Martin was Plaintiff’s Vocational Rehabilitation

Counselor from April 2014 until July 2014.

On July 17, 2014,

Martin completed a letter form provided by Plaintiff in which she
indicated Plaintiff is markedly limited in his ability “to
maintain attention and concentration for extended periods,” to
“sustain an ordinary routine without special supervision,” to
“interact appropriately with the general public,” to “get along
with coworkers or peer without distracting them or exhibiting
extreme behaviors,” and to “respond appropriately to changes in
the work setting.”

Tr. 727.

Martin stated Plaintiff was “unable

to keep jobs” due to “his limited ability to learn, follow
instructions, recall information, communicate & interact
effectively & maintain effective work habits.”

Tr. 727.

The ALJ gave little weight to Martin’s letter on the
ground that her opinion is “inconsistent with objective testing

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and the overall medical evidence of record.”

For example, the

ALJ noted the record reflects Plaintiff left his various previous
jobs for reasons unrelated to his disability, “which suggests
. . . his actual functioning is inconsistent with marked
limitations.”

Tr. 49.

On this record the Court concludes the ALJ did not err
when he gave little weight to Martin’s letter because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
C.

Rodney Gregg
Yamhill County Developmental Disabilities Service

Coordinator Rodney Gregg testified at the July 31, 2014, hearing.
Gregg testified he helps Plaintiff “get connected with services”
and “navigate the bureaucracy for [Plaintiff] to . . . apply for
services that he needs.”

Tr. 96.

Gregg stated Plaintiff’s

“short-term and long-term memory is impaired.”

Tr. 100.

Gregg

opined “unless the . . . work environment was very catered to
[Plaintiff], he would not be very successful.

He would need

continual ongoing support to maintain a job.”

Tr. 102.

Gregg

testified Plaintiff could do “one simple thing and learn it very
quickly, but if it was . . . three, four, five multiple steps, he
would get the first couple of steps and then . . . forget the
rest of it and then it would take longer to keep building on it
. . . .

And then the repetitiveness would become boring and

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distracting and then [Plaintiff] would lose interest.”

Tr. 103.

The ALJ gave little weight to Gregg’s testimony on the
grounds that it was inconsistent with Dr. Ragonesi’s objective
testing in which Plaintiff tested in the low-to-average range on
memory.

Tr. 47.

The ALJ also noted Gregg’s testimony indicated

Plaintiff “does what he is interested [in] such as playing video
games for 8 hours a day.

He does not do what he is not

interested in such as laundry.”

Tr. 47.

The ALJ also accounted

for Plaintiff’s memory and learning issues with limitations in
his evaluation of Plaintiff’s RFC.
On this record the Court concludes the ALJ did not err
when he gave little weight to Gregg’s testimony because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.

REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
1179 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

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).

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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.

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 concluded the ALJ erred when he gave “little
weight” to Dr. Edwards’s December 2010 opinion without providing
legally sufficient reasons for doing so.

It is not clear on this

record, however, whether the ALJ would have found Plaintiff
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disabled if the ALJ had fully credited Dr. Edwards’s opinion.
The Court, therefore, concludes this matter must be remanded.
Accordingly, the Court remands this matter for further
administrative proceedings consistent with this Opinion and Order
specifically to allow the ALJ to determine whether Plaintiff is
disabled if Dr. Edwards’s opinion is credited fully.

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 30th day of December, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

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