Atwood v. Commissioner Social Security Administration

Filing 26

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. IT IS SO ORDERED. See attached order for further details. Signed on 4/3/19 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MERCEDES A.,1
Plaintiff,

3:18-cv-00450-BR
OPINION AND ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
TIM D. WILBORN
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, NV 89137
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
1

1 - OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
HEATHER L. GRIFFITH
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Mercedes A. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration in which the Commissioner denied Plaintiff's
applications 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.

ADMINISTRATIVE HISTORY
On April 10, 2014, Plaintiff protectively filed her
application for DIB benefits.

Tr. 24, 175.2

Plaintiff alleges a

Citations to the official transcript of record filed by
the Commissioner on August 20, 2018, are referred to as "Tr."
2

2 - OPINION AND ORDER

disability onset date of November 1, 2013.

Tr. 24, 276.

Plaintiff=s application was denied initially and on
reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on April 12, 2016.

Tr. 24, 51-90.

Plaintiff and a

vocational expert (VE) testified at the hearing.

Plaintiff was

represented by an attorney at the hearing.
On September 14, 2016, the ALJ issued an opinion in which
he found Plaintiff was disabled and entitled to benefits for a
closed period from November 1, 2013, through June 8, 2015, but
the ALJ found Plaintiff was not disabled and not entitled to
benefits beginning on June 9, 2015, through the date of the
ALJ's decision.
Appeals Council.

Tr. 24-39.

Plaintiff requested review by the

On January 26, 2018, the Appeals Council

denied Plaintiff=s request to review the ALJ=s decision, and the
ALJ=s decision became the final decision of the Commissioner.
Tr. 1-3.

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

On March 14, 2018, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner=s decision.

BACKGROUND
Plaintiff was born on December 13, 1976.

Tr. 176.

Plaintiff was 36 years old on her alleged disability onset date.

3 - OPINION AND ORDER

Tr. 187.
degree.

Plaintiff completed high school and has a master's
Tr. 34, 62.

Plaintiff has past relevant work

experience as a financial analyst and research analyst.

Tr. 34.

Plaintiff alleges disability due to Lyme disease, cognitive
problems, chronic-fatigue syndrome, postural orthostatic
tachycardia syndrome (POTS), memory problems, and allergies.
Tr. 92.
Except as 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. 28-38.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110

To meet this burden, a claimant must

demonstrate her inability Ato 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.@
U.S.C. § 423(d)(1)(A).

42

The ALJ must develop the record when

there is ambiguous evidence or when the record is inadequate to

4 - OPINION AND ORDER

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, 459B60 (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

Arelevant 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.

Id. (citing Valentine,

574 F.3d at 690).
The ALJ is responsible for evaluating a claimant=s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
(9th Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591

The court must weigh all of the evidence

whether it supports or detracts from the Commissioner's
decision.
Cir. 2008).

Ryan v. Comm=r of Soc. Sec., 528 F.3d 1194, 1198 (9th
Even when the evidence is susceptible to more than

one rational interpretation, the court must uphold the

5 - OPINION AND ORDER

Commissioner=s findings if they are supported by inferences
reasonably drawn from the record.
1047, 1051 (9th Cir. 2012).

Ludwig v. Astrue, 681 F.3d

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 (SGA).

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 impairment or combination of impairments.
§ 404.1509, 404.1520(a)(4)(ii).

20 C.F.R.

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.

6 - OPINION AND ORDER

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 her limitations.
§ 404.1520(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

AA

>regular and continuing basis= means 8 hours a day, for 5 days a
week, or an equivalent schedule.@

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm=r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she 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

7 - OPINION AND ORDER

the national economy.

20 C.F.R. § 404.1520(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

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 (or
the grids) 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 November 1, 2013, Plaintiff=s
alleged disability onset date.

Tr. 27.

At Step Two the ALJ found Plaintiff has the severe
impairments of chronic-fatigue syndrome, organic mental
disorder, and POTS.

Tr. 28.

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. 28, 35.

8 - OPINION AND ORDER

The ALJ found Plaintiff has the RFC to

perform sedentary work with the following limitations:

can

stand and walk for a combined total of two hours in an eighthour day; can occasionally climb ramps and stairs; should not
climb ladders, ropes, or scaffolds; can occasionally balance and
stoop; should not have exposure to hazards such as unprotected
heights and moving mechanical parts; is limited to simple,
routine, repetitive tasks with a general educational development
(GED) level of two or lower; and should have only brief and
superficial contact with the general public.

The ALJ concluded

Plaintiff would be absent from work for two or more days per
month.

Tr. 30.

At Step Four the ALJ concluded Plaintiff is unable to
perform her past relevant work.

Tr. 34, 38.

At Step Five the ALJ found there were not any jobs that
Plaintiff could perform during the closed period.

Tr. 34.

Accordingly, the ALJ found Plaintiff was disabled from
November 1, 2013, through June 8, 2015.

Tr. 35.

The ALJ,

however, found Plaintiff medically improved beginning June 9,
2015.

Tr. 36.

The ALJ reiterated his finding that Plaintiff

could perform sedentary work beginning June 9, 2015, with the
same limitations as previously indicated, but she would no
longer have to be absent for two or more days from work.

9 - OPINION AND ORDER

Tr. 36-37.

Although the ALJ found Plaintiff is still unable to

perform her past relevant work, he found from June 9, 2015,
Plaintiff could perform other jobs that exist in the national
economy such as circuit-board worker, semi-conductor worker, and
assembly worker.

Tr. 38-39.

Accordingly, the ALJ found

Plaintiff's disability ended on June 9, 2015.

Tr. 39.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed to
provide clear and convincing reasons to reject the medical
opinion of Martin Ross, M.D., an examining physician; (2) failed
to provide clear and convincing reasons for rejecting
Plaintiff's symptom testimony; (3) failed to consider properly
lay-witness testimony; (4) failed to assess Plaintiff's RFC
properly by not including that Plaintiff was limited to one- or
two-step tasks; and (5) failed to provide substantial evidence
to support his finding at Step Five that Plaintiff could perform
other work.
I.

The ALJ properly evaluated the medical opinion of Dr. Ross,
examining physician.
Plaintiff contends the ALJ erred by failing to address the

opinion of Martin Ross, M.D., an examining physician.
The Commissioner, however, contends Dr. Ross's statement is
10 - OPINION AND ORDER

not a medical opinion and is not substantially supported by the
record.
A.

Standards
AIn disability benefits cases . . . physicians may

render medical, clinical opinions, or they may render opinions
on the ultimate issue of disability C the claimant's ability to
perform work.@
2014).

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

AIn conjunction with the relevant regulations, [courts]

have . . . developed standards that guide [the] analysis of an
ALJ's weighing of medical evidence.@

Ryan v. Comm'r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Specifically, the

court must Adistinguish among the opinions of three types of
physicians:

(1) those who treat the claimant (treating

physicians); (2) those who examine but do not treat the claimant
(examining physicians); and (3) those who neither examine nor
treat the claimant (nonexamining physicians).@
F.3d at 1012.

Garrison, 759

AAs a general rule, more weight should be given to

the opinion of a treating source than to the opinion of doctors
who do not treat the claimant.@

Id.

Although the opinion of a

treating physician is entitled to greater weight than that of an
examining physician, the opinion of an examining physician is
entitled to greater weight than that of a nonexamining

11 - OPINION AND ORDER

physician.

Ryan, 528 F.3d at 1198.

AThe weight afforded a

nonexamining physician's testimony depends >on the degree to
which [he] provide[s] supporting explanations for [his]
opinions.=@

Id. (quoting 20 C.F.R. § 404.1527(d)(3)).

AIf a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only reject
it by providing specific and legitimate reasons that are
supported by substantial evidence.@

Id.

Even when contradicted,

a treating or examining physician's opinion is still owed
deference and will often be Aentitled to the greatest weight
. . . even if it does not meet the test for controlling weight.@
Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007).

An ALJ can

satisfy the Asubstantial evidence@ requirement by Asetting out a
detailed and thorough summary of the facts and conflicting
clinical evidence, stating his interpretation thereof, and
making findings.@

Reddick, 157 F.3d at 725.

more than state conclusions.

AThe ALJ must do

He must set forth his own

interpretations and explain why they, rather than the doctors',
are correct.@
B.

Id. (citation omitted).

Analysis
On April 6, 2016, Dr. Ross examined Plaintiff.

Tr. 617-19.

Dr. Ross stated:

12 - OPINION AND ORDER

"Due to [Plaintiff's] POTS [she]

is not able to work because [she] cannot drive [her]self and
faint[s] often."

Tr. 617.

Dr. Ross diagnosed Plaintiff with

Lyme disease and recommended various supplements as treatment.
Tr. 619.

The ALJ, however, noted "there are no follow up

treatment notes or other records to confirm these alleged
difficulties in 2016."

Tr. 37.

The ALJ also noted Ann Wolyn,

M.D., one of Plaintiff's treating physicians, indicated
previously in July 2015 that Plaintiff was "doing much better"
after Plaintiff moved out of her home due to high levels of
formaldehyde in the floors.

Tr. 37, 605.

Dr. Wolyn also stated

Plaintiff did not have any neurological symptoms, her memory and
fatigue were better, she was walking more, she was teaching
Spanish, and she was "in a much better mood."

Id.

The ALJ also relied on the opinion of Minh Vu, M.D., a
reviewing physician.

On June 6, 2016, Dr. Vu completed a

Medical Interrogatory Physical Impairment report.

Tr. 629-31.

Dr. Vu indicated Plaintiff's Lyme disease and POTS were not
severe impairments on the basis that there is not any
documentation of frequent attacks of fainting requiring
significant medical attention.

Tr. 33, 629.

Dr. Vu also noted

there was not any objective evidence regarding limits in
Plaintiff's cardio-vascular system, neuromuscular system, or

13 - OPINION AND ORDER

hematic system.

He also found the results of Plaintiff's

physical examinations were normal, and there was not any support
for Plaintiff's objective complaints.

Tr. 33, 631.

Dr. Vu

determined Plaintiff did not have any exertional limitations,
which contradicted Dr. Ross's opinion.
Although the opinion of an examining physician is
entitled to greater weight than that of a nonexamining
physician, the weight afforded a nonexamining physician's
testimony depends on the degree to which he provides supporting
explanations for his opinion.

Ryan, 528 F.3d at 1198.

The ALJ

may reject the examining physician's opinion by providing
specific and legitimate reasons that are supported by
substantial evidence in the record.

Id.

Plaintiff relies on Gallant v. Heckler to support her
contention that the opinion of a nonexamining, nontreating
physician is not substantial evidence when contradicted by other
evidence in the record.

753 F.2d 1450, 1454 (9th Cir. 1984).

The record in this case, however, indicates Dr. Ross is an
examining physician who only examined Plaintiff once.

The ALJ

also noted there are not any follow-up treatment notes or other
records that confirm Dr. Ross's opinion.
relied on the report of Dr. Wolyn, one

14 - OPINION AND ORDER

The ALJ ultimately

of Plaintiff's treating physicians, in addition to the opinion
of Dr. Vu, a reviewing physician, to conclude that Plaintiff is
not disabled.
Based on this record the Court concludes the ALJ did
not err when he rejected Dr. Ross's opinion because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
II.

The ALJ did not err when he found Plaintiff=s testimony was
not fully credible.
Plaintiff contends the ALJ erred when he failed to provide

clear and convincing reasons for discounting Plaintiff=s symptom
testimony related to the period after June 9, 2015.
A.

Standards
The ALJ engages in a two-step analysis to determine

whether a claimant's testimony regarding subjective pain or
symptoms is credible.

AFirst, the ALJ must determine whether the

claimant has presented objective medical evidence of an
underlying impairment >which could reasonably be expected to
produce the pain or other symptoms alleged.=@

Garrison v.

Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)(quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035B36 (9th Cir. 2007)).

The claimant

is not required to show that his Aimpairment could reasonably be
expected to cause the severity of the symptom [he] has alleged;
15 - OPINION AND ORDER

[he] need only show that it could reasonably have caused some
degree of the symptom.@

Garrison, 759 F.3d at 1014 (quoting

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).

A

claimant is not required to produce Aobjective medical evidence
of the pain or fatigue itself, or the severity thereof.@

Id.

If the claimant satisfies the first step of this
analysis and there is not any affirmative evidence of
malingering, Athe ALJ can reject the claimant's testimony about
the severity of [his] symptoms only by offering specific, clear
and convincing reasons for doing so.@
1014-15.

Garrison, 759 F.3d at

See also Robbins v. Soc. Sec. Admin., 466 F.3d 880,

883 (9th Cir. 2006)(A[U]nless an ALJ makes a finding of
malingering based on affirmative evidence thereof, he or she may
only find an applicant not credible by making specific findings
as to credibility and stating clear and convincing reasons for
each.@).

General assertions that the claimant's testimony is not

credible are insufficient.
(9th Cir. 2007).

Parra v. Astrue, 481 F.3d 742, 750

The ALJ must identify "what testimony is not

credible and what evidence undermines the claimant's
complaints."

Id. (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)).
B.

Analysis

16 - OPINION AND ORDER

Plaintiff acknowledges the fact that the records show
her cognitive issues may have improved after the closed period,
but Plaintiff contends the record does not show her fatigue
improved, which is the primary reason she would be absent from
work for two or more days each month.

At the hearing Plaintiff

testified she attempted to teach 30-minute Spanish classes
online, but she often felt dizzy and had to cancel the classes.
Tr. 76.

She also testified she continued to experience fatigue

even after moving out of her house.

Tr. 74-75, 79.

The ALJ found Plaintiff's testimony was credible and
consistent with the evidence during the closed period of
disability between November 1, 2013, and June 8, 2015.
Tr. 30-31.

The ALJ, however, found Plaintiff's testimony

concerning the intensity, persistence, and limiting effects of
her symptoms was not entirely consistent with the medical
evidence and other evidence in the record after the closed
period ended.

Tr. 37.

For example, the ALJ noted the record

showed gradual improvement in Plaintiff's condition.

Plaintiff

stated in January 2015 that she was walking easier and that she
could be active for one day without having significant fatigue
the next day.

Tr. 36, 493.

In February 2015 Plaintiff stated

she was doing "fairly well" other than having sleep issues and

17 - OPINION AND ORDER

that she was leaving soon for a six-week trip to Spain.
489.

Tr. 36,

In June 2015 Plaintiff told her treating physician, Daniel

Newman, M.D., that she had sold her home due to high levels of
formaldehyde in the flooring, and she noticed her symptoms
tended to abate when she left her home for one or two months but
worsened when she returned.

Tr. 36, 486.

Also as noted, in

July 2015 Plaintiff told Dr. Wolyn she felt "much better."
Tr. 36, 605.
On this record the Court concludes the ALJ did not err
when he discounted Plaintiff's symptom testimony and found it
was not fully credible because the ALJ provided clear and
convincing reasons supported by substantial evidence in the
record for doing so.
III. The ALJ gave germane reasons for discounting lay-witness
testimony.
Plaintiff contends the ALJ erred when he failed to provide
germane reasons to discount the lay-witness statement of Richard
Atwood, Plaintiff’s husband, regarding Plaintiff’s limitations.
A.

Standards
Lay-witness 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."
18 - OPINION AND ORDER

Lewis v. Apfel,

236 F.3d 503, 511 (9th Cir. 2001).

The ALJ's reasons for

rejecting lay-witness testimony must also be "specific."

Stout

v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.
2006).
Germane reasons for discrediting a witness's testimony
include inconsistency with the medical evidence and the fact
that the testimony "generally repeat[s]" the properly
discredited testimony of a claimant.
F.3d 1211, 1218 (9th Cir. 2005).

Bayliss v. Barnhart, 427

See also Williams v. Astrue,

493 F. App'x 866 (9th Cir. 2012).
B.

Analysis
On March 27, 2014, Plaintiff's husband, Richard

Atwood, completed a Third-Party Function Report.

Tr. 205-12.

Atwood stated Plaintiff was unable to work due to her lack of
energy, inability to focus, confusion, nausea, and memory loss.
Tr. 205.

Atwood also stated Plaintiff sleeps poorly at night,

she is not as social she used to be, and her ability to perform
various tasks was affected by her condition.

Tr. 206, 209-10.

The ALJ gave Atwood's statement "some weight" as to
the closed period on the ground that it was consistent with the
record.

Tr. 33-34.

The ALJ, however, gave Atwood's statement

only "limited weight" for the period beginning June 9, 2015, on

19 - OPINION AND ORDER

the grounds that the statement was given in 2014 and that Atwood
did not consider Plaintiff's recent improvement when he made the
statement.

Tr. 38.
The Ninth Circuit has held "inconsistency with medical

evidence" constitutes a "germane reason" for justifying an ALJ's
rejection of lay testimony.

Bayliss, 427 F.3d at 1218.

As

noted, this Court has concluded the ALJ did not err when he
discounted Plaintiff's symptom testimony, which, among other
things, was inconsistent with the medical evidence.
true for Atwood's statement.

The same is

In addition, Atwood's statement

was given in March 2014 over one year before the date the ALJ
found Plaintiff's symptoms had medically improved as of June
2015.
On this record the Court concludes the ALJ provided
germane reasons for discounting the lay-witness statement of
Richard Atwood.
IV.

The ALJ erred in his assessment of Plaintiff's RFC
limitations.
Plaintiff contends the ALJ failed to include in his

assessment of Plaintiff's RFC that Plaintiff could perform only
one- and two-step tasks.
A.

Standards
At Step Three if the ALJ determines the claimant=s

20 - OPINION AND ORDER

impairments are not so severe as to preclude substantial gainful
activity, the ALJ must assess the claimant=s residual functional
capacity (RFC).

20 C.F.R. § 404.1520(a)(4)(iii).

Keyser, 648 F.3d at 724.

See also

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
her limitations.

20 C.F.R. § 404.1520(e).

Security Ruling (SSR) 96-8p.

See also Social

AA >regular and continuing basis=

means 8 hours a day, for 5 days a week, or an equivalent
schedule.@
B.

SSR 96-8p, at *1.
Analysis
On June 17, 2014, Joshua Boyd, M.D., a state-agency

reviewing physician, stated Plaintiff has the ability "to
understand, remember and perform simple one- and two-step
tasks."

Tr. 100.
At Step Three the ALJ found Plaintiff has the RFC to

perform sedentary work and, among other things, is limited to
"simple, routine, repetitive tasks with a general educational
development level of 2 or lower."

Tr.

36-37.

The ALJ

expressly accepted Dr. Boyd's opinion and gave it "significant
weight" on the ground that it is consistent with the treatment
records following the closed period.

21 - OPINION AND ORDER

Tr. 38.

Plaintiff, however, asserts Dr. Boyd's opinion that
Plaintiff is limited to one- and two-step tasks is consistent
with a GED Reasoning Level of One rather than the GED Reasoning
Level of Two found by the ALJ.

Plaintiff, therefore, contends

the ALJ failed to provide legally sufficient reasons for
rejecting Dr. Boyd's limitation and not including it in
Plaintiff's RFC.
The Commissioner, in turn, contends the ALJ gave
sufficient reasons supported by substantial evidence in the
record for finding Plaintiff could perform work requiring a GED
Reasoning Level of Two and for not including Dr. Boyd's one- and
two-step task limitation in Plaintiff's RFC.
A GED Reasoning Level of Two is defined as:

"Apply

commonsense understanding to carry out detailed but uninvolved
written or oral instructions.

Deal with problems involving a

few concrete variables in or from standardized situations."
Dictionary of Occupational Titles (DOT)(4th ed. 1991), App'x C,
§ III, 1991 WL 677702.
is defined as:

A GED Reasoning Level of One, however,

"Apply commonsense understanding to carry out

simple one- or two-step instructions.

Deal with standardized

situations with occasional or no variables in or from these
situations encountered on the job."

22 - OPINION AND ORDER

Id.

In Rounds v. Commissioner of Social Security the Ninth
Circuit stated an RFC allowing for one- or two-step tasks is not
compatible with the demands of a GED Reasoning Level of Two.
807 F.3d 996, 1003 (9th Cir. 2015).

The court held the ALJ in

that case was required to resolve the apparent conflict between
his assessed limitation in Plaintiff's RFC and jobs that
required Level Two reasoning.

807 F.3d at 1004.

A similar

conflict exists in this case.
Here the ALJ accepted Dr. Boyd's opinion without
qualification or further explanation.

Dr. Boyd's opinion

included a limitation for one- and two-step tasks.

The ALJ,

however, did not include that limitation, and in his evaluation
of Plaintiff's RFC the ALJ assessed Plaintiff as being able to
perform tasks with a GED Reasoning Level of Two or lower, which
conflicts with Dr. Boyd's opinion.
Based on this record the Court concludes the ALJ erred
by failing to provide legally sufficient reasons supported by
substantial evidence in the record for not including Plaintiff's
limitation to one- and two-step tasks as stated by Dr. Boyd
and/or by failing to address the apparent conflict between the
limitations stated by Dr. Boyd and the requirements of jobs
involving Level Two reasoning.

23 - OPINION AND ORDER

V.

The ALJ erred at Step Five when he failed to include all of
Plaintiff's limitations in his hypothetical posed to the
VE.
Plaintiff contends the ALJ erred when he failed to include

in his hypothetical to the VE all of Plaintiff's limitations
alleged by Plaintiff, included in
the statements of the lay witness, and set out in the opinions
of Drs. Ross and Boyd.
A.

Standards
"An ALJ must propound a hypothetical question that is

based on medical assumptions supported by substantial evidence
in the record that reflects all the claimant's
limitations."
2001).

Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir.

"The hypothetical should be 'accurate, detailed, and

supported by the medical record.'"
F.3d at 1101).

Id. (quoting Tackett, 180

It is, however, proper for an ALJ to limit a

hypothetical to those impairments that are supported by
substantial evidence in the record.
B.

Id.

Analysis
At the hearing on April 12, 2016, the ALJ posed a

hypothetical to the VE based on an individual with Plaintiff's
age, education, work experience, and work-related functional
limitations consistent with the ALJ's assessment of Plaintiff's

24 - OPINION AND ORDER

RFC, including sedentary work limited to simple, routing,
repetitive tasks with a GED Reasoning Level of Two.

Tr. 86-87.

The VE testified such a person could perform other occupations
that include circuit-board worker, semi-conductor worker, and
assembly worker.

Tr. 87.

The ALJ did not include the

limitation of one- or two-step tasks diagnosed by Dr. Boyd.
As noted, the Court has found the ALJ erred by failing
to address the apparent conflict between the limitations in
Plaintiff's RFC and Dr. Boyd's opinion regarding one- or twostep tasks and Reasoning Level Two.

Accordingly, the Court

concludes the ALJ erred at Step Five by also failing to include
this limitation in his hypothetical to the VE.

REMAND

The Court must determine whether to remand this matter for
further proceedings or to remand for the calculation of
benefits.
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

25 - OPINION AND ORDER

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."
1178 (9th Cir. 2000).

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

The court should grant an immediate award

of benefits when
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such 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.
As noted, the Court concludes the ALJ failed to provide
legally sufficient reasons supported by substantial evidence in
the record for not including the limitation of one- or two-step
tasks as stated by Dr. Boyd and by failing to address the
apparent conflict between that limitation expressed by Dr. Boyd
and the requirements of jobs involving Level Two reasoning.
The Court, therefore, remands this matter to the ALJ for
further administrative proceedings consistent with this Opinion.

26 - OPINION AND ORDER

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.
IT IS SO ORDERED.
DATED this 3rd day of April, 2019.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge

27 - OPINION AND ORDER