Rigole v. Commissioner Social Security Administration
OPINION AND ORDER The Commissioner's final decision was not based on substantial evidence or free of harmful legal error. Accordingly, the Commissioner's decision is REVERSED and this case REMANDED for further proceedings. See Opinion and Order for further details. Signed on 10/26/2017 by Magistrate Judge John Jelderks. (jtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
WILLIAM MORRISE RIGOLE II,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Civil No.: 6:15-cv-02072-JE
OPINION AND ORDER
Katherine L. Eitenmiller
Mark A. Manning
Harder, Wells, Baron & Manning, P.C.
474 Willamette, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff
Billy J. Williams, U.S. Attorney
Janice E. Hébert, Asst. U.S. Attorney
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204-2902
Michael S. Howard
Special Assistant U.S. Attorney
Office of the General Counsel
Social Security Administration
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security on January 20, 2017,
and is therefore substituted as the Defendant in this action pursuant to Fed. R. Civ. P. 25(d).
OPINION AND ORDER – 1
JELDERKS, Magistrate Judge:
Plaintiff William Rigole II brings this action pursuant to 42 U.S.C. §§ 405(g) seeking
judicial review of a final decision of the Commissioner of Social Security (the Commissioner)
denying his application for Disability Insurance Benefits (DIB) under the Social Security Act
(the Act). For the reasons that follow, the Commissioner’s decision is reversed and this case
remanded for further proceedings.
Plaintiff filed his application for a period of disability and DIB on July 13, 2014, alleging
disability as of March 9, 2014. Tr. 17. The Commissioner denied his application initially and on
reconsideration, and Plaintiff timely requested a hearing before an Administrative Law Judge
(ALJ). Tr. 111–12. An administrative hearing was held on June 2, 2015, before ALJ John
Michaelsen. Tr. 14–30. In a decision dated June 11, 2015, the ALJ found that Plaintiff was not
disabled within the meaning of the Act. Tr. 14–30. The ALJ’s decision became the final decision
of the Commissioner on September 9, 2015, when the Appeals Council denied Plaintiff’s request
for review. Tr. 1–3. Plaintiff now appeals to this Court for review of the Commissioner’s final
Plaintiff was born in 1980 and was 33 years old on the date he alleges he became
disabled. Tr. 75–76. Plaintiff is a military veteran and served in the Army from 1999 to 2004
during Operation Iraqi Freedom. Tr. 276, 281–83. After being honorably discharged from the
Army, Plaintiff attended two years of vocational rehabilitation training through the Veteran’s
Administration (“VA”). Tr. 281, 283. He has past relevant work as a U.S. Army infantryman and
OPINION AND ORDER – 2
a trauma surgical technician. Tr. 164, 191. Plaintiff alleges disability due to post-traumatic stress
disorder (PTSD), vision impairment, and diabetes. Pl.’s Br. at 1; Tr. 331–33, 510.
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is
disabled within the meaning of the Act. 20 C.F.R. § 404.1520. The five step sequential inquiry is
summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999).
Step One. The Commissioner determines whether the claimant is engaged in substantial
gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not
engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s
case under Step Two. 20 C.F.R. § 404.1520(b).
Step Two. The Commissioner determines whether the claimant has one or more severe
impairments. A claimant who does not have any such impairment is not disabled. If the claimant
has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant’s
case under Step Three. 20 C.F.R. § 404.1520(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the
Commissioner next determines whether the claimant’s impairment “meets or equals” one of the
presumptively disabling impairments listed in the Social Security Administration (“SSA”)
regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that
meets a listing is presumed disabled under the Act. If the claimant’s impairment does not meet or
equal an impairment listed in the listings, the Commissioner’s evaluation of the claimant’s case
proceeds under Step Four. 20 C.F.R. § 404.1520(d).
Step Four. The Commissioner determines whether the claimant is able to perform work
he or she has done in the past. A claimant who can perform past relevant work is not disabled. If
OPINION AND ORDER – 3
the claimant demonstrates he or she cannot do past relevant work, the Commissioner’s
evaluation of claimant’s case proceeds under Step Five. 20 C.F.R. § 404.1520(f).
Step Five. The Commissioner determines whether the claimant is able to do any other
work. A claimant who cannot perform other work is disabled. If the Commissioner finds
claimant is able to do other work, the Commissioner must show that a significant number of jobs
exist in the national economy that claimant is able to do. The Commissioner may satisfy this
burden through the testimony of a vocational expert (VE), or by reference to the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner
demonstrates that a significant number of jobs exist in the national economy that the claimant is
able to do, the claimant is not disabled. If the Commissioner does not meet the burden, the
claimant is disabled. 20 C.F.R. § 404.1520(g)(1).
At Steps One through Four of the sequential inquiry, the burden of proof is on the
claimant. Tackett, 180 F.3d at 1098. At step five, the burden shifts to the Commissioner to show
the claimant can perform jobs that exist in significant numbers in the national economy. Id.
As an initial matter, the ALJ found that Plaintiff met the insured status requirements
through December 31, 2018.
At the first step of his disability analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since March 9, 2014, the alleged onset date. Tr. 19.
At the second step, the ALJ found Plaintiff’s PTSD was a severe impairment. Tr. 19.
At the third step, the ALJ found Plaintiff did not have an impairment or combination of
impairments that met or equaled a presumptively disabling impairment set out in the Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
OPINION AND ORDER – 4
Before proceeding to the fourth step, the ALJ assessed Plaintiff’s residual functional
capacity (RFC). He found Plaintiff retained the functional capacity to:
[P]erform a full range of work at all exertional levels but with the following
nonexertional limitations: simple, repetitive, routine tasks requiring no more than
occasional interaction with coworkers and the general public.
Tr. 21. In making his determination, the ALJ found that Plaintiff’s statements concerning the
intensity, persistence and limiting effects of his symptoms were not entirely credible. Tr. 22.
At the fourth step of the disability analysis, the ALJ found Plaintiff was unable to
perform any of his past relevant work. Tr. 24.
At the fifth step, the ALJ found that Plaintiff could perform other jobs that existed in
significant numbers in the national economy. Based upon testimony from the VE, the ALJ cited
battery stacker, cleaner II, and basket filler as examples such work. Id. Having concluded that
Plaintiff could perform other work, the ALJ found Plaintiff had not been under a disability within
the meaning of the Act since March 9, 2014.
Standard of Review
A claimant is disabled if he or she is unable “to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which. . . has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala,
66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears
the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991),
and of establishing that a claimant can perform “other work” at Step Five of the disability
analysis process. Tackett, 180 F.3d at 1098.
OPINION AND ORDER – 5
The district court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews, 53
F.3d at 1039. The court must weigh all of the evidence, whether it supports or detracts from the
Commissioner’s decision. Martinez v. Heckler, 807 F.2d 771, 771 (9th Cir. 1986). The
Commissioner’s decision must be upheld if “the evidence is susceptible to more than one rational
interpretation.” Andrews, 53 F.3d at 1039–40.
On appeal, Plaintiff asserts the ALJ erred by: 1) failing to include the limiting effects of
Plaintiff’s vision impairment in the hypothetical to the VE and the RFC determination; 2) failing
to properly evaluate medical opinion evidence; 3) failing to provide clear and convincing reasons
supported by substantial evidence to discredit Plaintiff’s symptom testimony; and 4) improperly
discrediting lay witness evidence.
I. Step Two Findings
Plaintiff argues the ALJ erred in failing to find Plaintiff’s keratoconus was a severe
impairment at Step Two, and as a result, the hypothetical posed to the VE and the ALJ’s RFC
determination were defective. The Commissioner argues the ALJ did not err because Plaintiff’s
vision could be corrected, and because a reasonable person could find his eye condition caused
no significant limitation on his ability to perform work-related activities. Def.’s Br. at 2–5.
A. Standards and Analysis
An impairment or combination of impairments is considered “severe” at Step Two if it
OPINION AND ORDER – 6
significantly limits a claimant's ability to perform basic work activities. SSR 96–3p. An
impairment is not severe only if it is a slight abnormality that has no more than a minimal effect
on the ability to do such activities. Id. The “severe impairment” analysis is a “de minimis
screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th
Cir. 1996). “[A]n ALJ may find that a claimant lacks a medically severe impairment or
combination of impairments only when his conclusion is ‘clearly established by medical
evidence.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir.2005) (quoting SSR 85–28).
The ALJ asserted that Plaintiff’s eye condition “has been address [sic] successfully
through treatment, and that with appropriate corrective lenses, he has normal vision.” Tr. 20. The
ALJ also found that the medical record showed that Plaintiff’s “treating sources believed [he]
would . . . have excellent vision with use of appropriate corrective eyewear.” Tr. 20.
Plaintiff has been diagnosed with bilateral keratoconus.2 He underwent a left eye corneal
transplant in 2001. Tr. 250, 42. In April 2011, he underwent left eye cataract surgery with
“excellent result.” Tr. 244-45. At his post-operative exam, Plaintiff demonstrated 20/30 vision in
his left eye with squinting but 20/400 in his right eye. Tr. 242. In June 2011, he reported very
blurry near vision and an inability to read anything up close. Tr. 238. He underwent a Yag laser
procedure on his left eye. Id. Post-operative notes indicate that Plaintiff could not tolerate
contacts and continued to use his right eye to read. Tr. 237.
In early 2014, Plaintiff reported that his sight was “very visually impaired” and that he
could no longer perform his job because of his poor vision. Tr. 398, 400. He continued to be
intolerant of hard contact lenses. In March 2014, Plaintiff underwent a right eye corneal
Keratoconus is an eye disease that changes the structure of the cornea from round to cone shaped, thins the cornea
and results in the eye bulging out, causing vision problems. U.S. National Library of Medicine, Keratoconus,
OPINION AND ORDER – 7
transplant. Tr. 376-87, 402-07. His uncorrected visual acuity improved to 20/350 on the right
but he continued to have difficulties with his near vision and was unable to return to work. Tr.
371-72; 364; 367. In August 2014, Plaintiff was fitted with scleral contact lenses. Tr. 350-53. By
September 2014, Plaintiff had been terminated from his job due to his vision impairment. Tr. 39,
41, 348. He described significant discomfort from a trial of Rigid Gas Permeable lenses but had
not yet received the eyeglasses he had ordered in June of that year. Tr. 348. His corrected visual
acuity was 20/150 on the right and 20/50 on the left. Tr. 349. It was recommended that he order
new contact lenses. In December 2014, Plaintiff’s corrected visual acuity was measured at
20/200 on the right and 20/70 on the left. Tr. 501. He reported monocular and binocular diplopia
with and without eyeglasses. Tr. 500. Plaintiff was once again fitted with a set of scleral lenses.
Tr. 497, 499-500.
In January 2015, Plaintiff reported ongoing diplopia. He developed subepithelial
infiltrates and in February 2015 was instructed not to wear contact lenses. Tr. 491. He showed
significant improvement by early March 2015. His uncorrected visual acuity was measured at
20/100-2 on the right and 20/250 on the left. Tr. 488-89. In April 2015, Plaintiff reported
continued discomfort that was preventing him from wearing contact lenses. Tr. 485. He was
fitted for new scleral lenses and instructed to limit his use of the lenses to one hour the first day
then increase by one hour per day not to exceed four hours of wear per day until his follow-up
appointment. Id. There are no further ophthalmological records after April 6, 2015.
Substantial evidence in the medical record demonstrates that during the period at issue,
Plaintiff’s vision continually fluctuated; that he experienced diplopia with and without
eyeglasses; and, just two months before the hearing before the ALJ, Plaintiff had to be refitted
for contact lenses and could not successfully wear those lenses on a sustained basis. While the
OPINION AND ORDER – 8
use of appropriate corrective eyewear may provide Plaintiff with “normal vision,” there is no
evidence in the record supporting the conclusion that Plaintiff’s medical providers were at any
point during the relevant period, able to provide Plaintiff with “appropriate corrective eyewear”
that he could use for a sustained period. Thus, neither the ALJ’s finding that Plaintiff had
“normal vision” nor his conclusion that Plaintiff’s vision impairments caused no more than a
minimal effect on his ability to work are supported by the record. See SSR 96–3p; see also, 20
C.F.R. Pt. 404, Subpt. P, App. 1, §2.00(A)(5)(c) (“We will use the visual acuity measurements
obtained with a specialized lens only if you have demonstrated the ability to use the specialized
lens on a sustained basis.”)(emphasis added).
B. Effect of Error
An ALJ's error in the severity determination at Step Two is harmless where the ALJ
resolves Step Two in a claimant’s favor and considers any limitations posed by the omitted
impairment in his subsequent evaluation. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005);
Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.2007). Having concluded that the ALJ erred at Step
Two in omitting Plaintiff’s vision impairment, the Court must then turn to the question of
whether that error resulted in prejudice to Plaintiff in the subsequent steps of the sequential
evaluation process. See Burch, 400 F.3d at 682.
The ALJ is responsible for assessing a claimant’s RFC. 20 C.F.R. § 404.1546(c). The
RFC is the maximum a claimant can do despite his limitations. 20 C.F.R. § 404.1545. The ALJ
must consider the “total limiting effects” of all of a claimant’s medically determinable
impairments, both severe and non-severe, in formulating the claimant’s RFC. 20 C.F.R.
§ 404.1545(a)(2), (e). The ALJ must base the RFC determination on all the relevant evidence in
the record as a whole. 20 C.F.R. § 404.1520(e); SSR 96-8p. Accordingly, the ALJ must consider
OPINION AND ORDER – 9
all medical source opinions and address any conflict between a medical opinion and the RFC
assessment. SSR 96-8p.
Here, the ALJ determined that Plaintiff had the capacity to perform a full range of work
at all exertional levels and only included limitations to simple, repetitive, routine tasks requiring
no more than occasional interaction with coworkers and the general public. Tr. 21. The ALJ
assessed no limitations related to Plaintiff’s visual impairments as part of his RFC determination.
In assessing an RFC, an ALJ is bound to consider limitations and restrictions imposed by all of
an individual's impairments, even those deemed not severe. Burch, 400 F.3d at 683 (citing SSR
96-8p); 20 C.F.R. § 404.1545(a)(2).
In addition, in order to be accurate, an ALJ's vocational hypothetical presented to a VE
must set out all of a claimant's impairments and limitations. E.g., Gallant v. Heckler, 753 F.2d
1450, 1456 (9th Cir.1984). The ALJ's depiction of a claimant's limitations must be “accurate,
detailed, and supported by the medical record.” Tackett, 180 F.3d at 1101. If the assumptions set
out in the hypothetical are not supported by the record, a VE's conclusion that a claimant can
work does not have evidentiary value. Gallant, 753 F.3d at 1456. As with his RFC
determination, the ALJ’s hypothetical to the VE also omitted limitations that were supported by
substantial evidence in the record.
The ALJ’s finding that Plaintiff’s vision impairment was not severe is not supported by
substantial evidence and was, thus, error. Furthermore, the ALJ’s RFC assessment and the
hypothetical posed to the VE did not consider or incorporate any effects of Plaintiff’s visual
impairments. Therefore, as a result of the ALJ’s error at Step Two, the ALJ’s analyses at Step
Four and Five were not supported by substantial evidence in the record and were not based upon
OPINION AND ORDER – 10
proper legal standards. The ALJ’s error was not harmless and the Commissioner’s decision must
II. Evaluation of Medical Evidence
Plaintiff asserts that the ALJ improperly discounted his Veterans’ Affairs (VA) disability
rating and the opinion of his treating psychiatrist, Dr. Higginbotham.
A. Plaintiff’s VA Disability Rating
Plaintiff was rated by the VA as 70% disabled due to combat-related PTSD, and 30%
disabled due to keratoconus, for a total disability rating of 80%. Tr. 263–267. Plaintiff asserts
that the ALJ failed to provide a persuasive, specific, and valid reason for discrediting his VA
An ALJ must ordinarily give great weight to a VA determination of disability. McCartey
v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). “While a VA disability decision ‘does not
necessarily compel the SSA to reach an identical result, the ALJ must consider the VA’s findings
in reaching his decision’ because of the similarities between the VA disability program and the
Social Security disability program.” Hiler v. Astrue, 687 F.3d 1208, 1211 (9th Cir. 2012)
(quoting McCartey, 298 F.3d at 1075). However, because the VA criteria for determining
disability are not identical to those of the SSA, “the ALJ may give less weight to a VA disability
rating if he gives persuasive, specific, valid reasons for doing so that are supported by the
record.” Id. (emphasis in original).
In this case, the ALJ gave “little weight” to the VA’s disability determination. Tr. 24.
First, the ALJ stated that, “[t]here is no direct correlation between the assessed percentage and
functional limitations and therefore the rating is not indicative of particular restrictions.” Tr. 24.
This is no more than a generalized observation of the fact that the VA and SSA disability
OPINION AND ORDER – 11
ratings differ in their disability calculation. This different standard allows an ALJ to give less
weight to the VA’s determination if he provides persuasive, specific, valid reasons for doing so
that are supported by the record, but it is not, in itself, a sufficient reasons to discount the VA’s
determination. See McCartey, 298 F.3d at 1076; see also Valentine v. Comm'r Soc. Sec. Admin.,
574 F.3d 685, 695 (9th Cir. 2009)(“Insofar as the ALJ distinguished the VA's disability rating
on the general ground that the VA and SSA disability inquiries are different, her analysis fell
afoul of McCartey.”); Underhill v. Berryhill, 685 F. App’x. 522 (9th Cir. 2017) (unpublished)
(concluding that the fact that the rating system used by the VA is not the same as the system
used by the Social Security Administration, is not a valid reason to discount the VA's disability
The ALJ then continued, “it is unclear why the claimant received such a high rating in
light of his continued work activity and the lack of a treatment record.” To the extent this
statement was intended to be a reason for discounting the VA’s determination, it was neither
persuasive nor valid. First, the VA rating predates Plaintiff’s alleged onset date by over a year.
Tr. 263. Second, the record reflects that Plaintiff was able to work despite his PTSD symptoms
because of the accommodations provided by his employer. Tr. 59-60. Plaintiff’s symptoms were
exacerbated subsequent to the VA’s determination and Plaintiff’s employer was ultimately
unable to accommodate Plaintiff’s increased vision impairment. Tr. 39, 41, 348. This is
consistent with Plaintiff’s claim, which alleges an onset date of March 2014. Third, the VA
determination clearly iterates the evidence on which it was based, which included both servicerelated and private medical records dating from 1999 to March 2013. Tr. 263-64. Finally, as
Plaintiff correctly points out, VA disability compensation is payable for partial disability and
disabled veterans may receive disability compensation while continuing to work. See 38 C.F.R.
OPINION AND ORDER – 12
§§4.1, 4.15, 4.16, 4.25. Thus, this purported basis for rejecting the VA’s determination was
The ALJ’s final basis for discounting the VA’s determination was that “the hearing
decision residual functional capacity is supported by the medical evidence of record and the
function reports . . . .” Tr. 24. This statement runs contrary to Ninth Circuit law which
disapproves of the reverse logic such reasoning represents. Cf. Laborin v. Berryhill, 867 F.3d
1151, 1154 (9th Cir. 2017)(holding credible evidence must be taken into account when
assessing a claimant’s RFC and cannot be discredited because it is inconsistent with that RFC).
The ALJ erred by discrediting the VA’s determination on the grounds that it was inconsistent
with the ALJ’s RFC determination.
The ALJ erred by failing to provide persuasive, specific, valid reasons supported by the
record for discounting the VA’s disability determination.
B. Dr. Higginbotham
As noted above, Plaintiff contends that the ALJ failed to provide legally sufficient
reasons for rejecting the opinion of treating physician, Dr. Robert Higginbotham, MD.
VA Staff Psychiatrist, Dr. Higginbotham, began treating Plaintiff in January 2014.
Plaintiff reported anxiety, depression, insomnia, nightmares and stress exacerbated by his
divorce. Tr. 308. He had previously tried to avoid psychiatric medications for his PTSD but
could no longer control his symptoms without medication. Id. Dr. Higginbotham prescribed
alprazolam (Xanax) for anxiety and fluoxetine for depression. Tr. 309. Plaintiff was also
prescribed prazosin for PTSD related nightmares. Tr. 308. Plaintiff reported that the fluoxetine
put him in a “fog” and wasn’t beneficial and that the alprazolam made him sleepy. Tr. 307. Dr.
Higginbotham replaced fluoxetine with bupropion, which provided initial but not lasting
OPINION AND ORDER – 13
improvement. Tr. 302, 305, 306, 307. Dr. Higginbotham subsequently discontinued bupropion
and prazosin but increased Plaintiff’s alprazolam dosage, and later added venlafaxine for mood
stabilization. Tr. 293-94, 303, 526.
During a visit with Dr. Higginbotham in October 2014, Plaintiff reported feeling
depressed, hopeless, and having little interest in doing things; experiencing PTSD related
nightmares; and constantly feeling on guard, watchful, or easily startled. Tr. 526-27. Dr.
Higginbotham’s notes over the treatment period remark on Plaintiff’s anxiety, depression, and
subdued mood and the complications surrounding his corneal surgery and recovery. 293-94, 302,
307, 308, 309, 526.
In May 2015, Dr. Higginbotham completed a questionnaire provided by Plaintiff’s
attorney. In his responses he opined that Plaintiff’s PTSD, anxiety, and depression decreased his
ability to concentrate and work. Tr. 531. He further opined that Plaintiff’s poor vision and
anxiety would interfere with his ability to sustain simple, low-stress work that required no public
interaction or close coordination with supervisors or co-workers. Id.
In July 2015, Dr. Higginbotham again completed an attorney-provided questionnaire. He
noted Plaintiff’s diagnoses of PTSD, diabetes, and bilateral keratoconus. He described Plaintiff’s
symptoms as including, depression, anxiety, nightmares, insomnia and intrusive thoughts, and
opined that Plaintiff was not able to work due to his PTSD and vision problems. Tr. 539. As part
of his response, Dr. Higginbotham also completed a Mental Residual Functional Capacity
(MRFC) Questionnaire. Tr. 540-544. He assessed marked limitations in Plaintiff’s abilities to
perform activities within a schedule, maintain regular attendance and be punctual within
customary tolerances; complete a normal workday and workweek without interruptions from
psychologically based symptom; and interact appropriately with the general public. He assessed
OPINION AND ORDER – 14
moderate limitations in Plaintiff’s ability to work in coordination with or proximity with others
without being distracted; get along with co-workers or peers; and accept instructions and respond
appropriately to criticism from supervisors. Id. The MRFC assessment was completed after the
hearing before the ALJ but was considered by the Appeals Council. Tr. 2-5.
The ALJ gave Dr. Higginbotham’s May 2015 opinion little weight. He cited Dr.
Higginbotham’s failure at that time to complete a MRFC form, the lack of specificity in his
responses and Dr. Higginbotham’s position as Plaintiff’s psychiatric, not physical, treatment
provider as reasons for discounting his opinion.
1. Applicable Standards
The ALJ is required to consider all medical opinion evidence and is responsible for
resolving conflicts and ambiguities in the medical testimony. Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008). In reviewing an ALJ's decision, the court does not assume the role of
fact-finder, but instead determines whether the decision is supported by substantial evidence in
light of the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992).
The Ninth Circuit distinguishes between the opinions of three types of physicians:
treating physicians, examining physicians, and non-examining physicians. Lester v. Chater, 81
F.3d 821, 830 (9th Cir.1995). Because treating physicians have a greater opportunity to know
and observe their patients, their opinions are given greater weight than the opinions of other
physicians. Rodriguez v. Bowen, 876 F.2d 759, 761–62 (9th Cir.1989). Accordingly, an ALJ
must provide clear and convincing reasons for rejecting a treating physician's uncontroverted
opinions. Lester, 81 F.3d at 830–31. An ALJ must provide “specific and legitimate reasons,”
which are supported by substantial evidence in the record, for rejecting an opinion of a treating
OPINION AND ORDER – 15
physician which is contradicted by the opinions of other doctors. Rollins v. Massanari, 261 F.3d
853, 856 (9th Cir.2001) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.1998)).
An ALJ need not accept a doctor's medical opinion that “is brief, conclusory, and
inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
Cir.2005) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.2001)). However, if a
treating physician's medical opinion regarding the nature and severity of a claimant’s
impairments is not inconsistent with other substantial evidence in the record, and is wellsupported by medically acceptable clinical findings, the treating physician's opinion is given
controlling weight. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). “[E]ven when contradicted, a treating or examining physician's
opinion is still owed deference and will often be ‘entitled to the greatest weight ... even if it does
not meet the test for controlling weight.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
2014)(quoting Orn v. Astrue, 495 F.3d 625, 633 (9th Cir.2007)).
The Commissioner argues that a “reasonable person” could agree that Dr.
Higginbotham’s opinion was entitled to little weight. Def. Brief. at 8. This, of course, is not the
standard that governs the evaluation of medical opinion evidence. The Commissioner also asserts
that the ALJ’s bases for discounting Dr. Higginbotham’s opinion were “reasonable” and
“adequate.” Def. Brief at 9. Finally, the Commissioner argues that the MRFC form that Dr.
Higginbotham completed in July 2015 is “not compelling” because it was submitted after the
ALJ hearing and stated that Plaintiff’s limitations were present only as of July 2015. The
Commissioner’s arguments are unpersuasive.
OPINION AND ORDER – 16
First, an ALJ’s reasons for discrediting the opinion of a treating physician, even when
contradicted by another physician, are held to a higher standard than “reasonable” and
“adequate.” The ALJ was required to provide specific and legitimate reasons supported by
substantial evidence. Rollins, 261 F.3d at 856. Thus, the basic premise of the Commissioner’s
argument is inaccurate.
Second, although Dr. Higginbotham’s May 2015 responses were brief, the subsequent
July 2015 opinion and MRFC assessment provided specificity, assessed functional limitations,
and referred to the record upon which he based his opinion. Tr. 538-544. This assessment was
sought prior to the hearing before the ALJ, was timely submitted to the Appeals Council for
review and is consistent with Dr. Higginbotham’s treatment notes and the overall record. The
Commissioner’s argument that the July 2015 opinion assesses limitations present only as of July
2015 is also unavailing. Dr. Higginbotham both dated the entire assessment and listed Plaintiff’s
onset date as July 8, 2015. However, he also indicated that Plaintiff’s limitations had lasted or
were expected to last 12 continuous months and that he based his opinion on Plaintiff’s record
dating back to 1999. These remarks, taken together with the fact that Dr. Higginbotham had
opined more than a month previously that Plaintiff’s anxiety and poor vision would interfere
with his ability to perform basic work functions, direct the common sense conclusion that Dr.
Higginbotham mistakenly wrote July 2015 as the onset date.
Finally, the ALJ’s assertion that Dr. Higginbotham’s opinion should be discredited
because he was Plaintiff’s mental health, not physical, treatment provider is also unavailing. The
Agency’s regulations provide for just such a situation and explain how the Agency will
determine how much weight to give a treating source’s opinion regarding an impairment for
which that source is not treating the claimant. 20 C.F.R. § 404.1527(c)(2)(ii)(2017)(“For
OPINION AND ORDER – 17
example, if your ophthalmologist notices that you have complained of neck pain during your eye
examinations, we will consider his or her opinion with respect to your neck pain, but we will
give it less weight than that of another physician who has treated you for the neck pain. When
the treating source has reasonable knowledge of your impairment(s), we will give the source's
opinion more weight than we would give it if it were from a nontreating source.”). Dr.
Higginbotham wrote his opinion after he had treated Plaintiff for over 16 months, including
throughout his corneal transplant surgery and recovery. Tr. 62, 293-94, 301-10, 506, 516-18. His
notes reflect his observations of Plaintiff’s increased symptoms due to complications arising
from his corneal transplant and document that Plaintiff could not return to work due to a
combination of vision loss and mental impairment. Tr. 293, 302, 517, 525. Under the
circumstances, the fact that Dr. Higginbotham was Plaintiff’s mental health provider was not a
specific and legitimate reason for discrediting his opinion.
In sum, the ALJ erred by failing to provide specific and legitimate reasons which were
supported by substantial evidence in the record for rejecting Dr. Higginbotham’s opinion.
III. Plaintiff’s Subjective Symptom Testimony
Plaintiff contends that the ALJ failed to articulate clear and convincing reasons,
supported by substantial evidence, for finding that his subjective symptom allegations were not
When a claimant has medically documented impairments that could reasonably be
expected to produce some degree of the symptoms alleged, and the record contains no
affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the
severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so.”
OPINION AND ORDER – 18
Garrison, 759 F.3d at 1014–15 (quoting Smolen, 80 F.3d at 1281). “The clear and convincing
standard is the most demanding required in Social Security cases.” Id. at 1015 (citations
omitted). Therefore, an ALJ “may not discredit the claimant’s testimony as to the severity of
symptoms merely because they are unsupported by objective medical evidence.” Reddick, 157
F.3d at 722.
At the time of the ALJ's decision, Social Security Ruling (“SSR”) 96-7p was in effect and
explained the factors to be considered in assessing credibility. In March 2016, that ruling was
superseded by SSR 16-3p, available at 2016 WL 1119029 (Mar. 16, 2016). Under SSR 16-3p,
the term “credibility” is eliminated from the Agency’s sub-regulatory policy and ALJs are not
tasked with making an overarching credibility determination, but must instead assess whether
subjective symptom statements are consistent with the record as a whole. Id. SSR 16-3p clarifies
that “subjective symptom evaluation is not an examination of an individual’s character.” Id.
The ALJ’s decision in this case was issued before SSR 16-3p became effective and the
Ninth Circuit has not expressly ruled on whether SSR 16-3p applies retroactively. I have
previously held that SSR 16-3p is a clarification of sub-regulatory policy rather than a new
policy and thus is appropriately applied retroactively. See, e.g., Hanson v. Colvin, No. 3:15-cv01974-JE, 2017 WL 2432159, at *7 (D. Or. May 2, 2017) (applying SSR 16-3p
retroactively)(citing Smolen, 80 F.3d at 1281 n. 1); Kunkle v. Colvin, No. 6:14-cv-01605-JE,
2016 WL 8229041, at *4 (D. Or. Dec. 13, 2016) (same); Andre v. Colvin, 6:14-cv-02009-JE (D.
Or. Oct. 13, 2016) (same).
Recently, the Ninth Circuit determined that SSR 16-3p “makes clear what our precedent
already required: that assessments of an individual's testimony by an ALJ are designed to
‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual
OPINION AND ORDER – 19
has a medically determinable impairment(s) that could reasonably be expected to produce those
symptoms,’ and not to delve into wide-ranging scrutiny of the claimant's character and apparent
(quoting SSR 16-3p)(brackets in the original).3
In evaluating a claimant’s subjective symptom testimony, an ALJ must consider the
entire record and several factors, including the claimant’s daily activities; the location, duration,
frequency, and intensity of the claimant’s pain or other symptoms; medications taken and their
effectiveness; treatment other than medication; measures other than treatment used to relieve
pain or other symptoms; and “other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.” 20 C.F.R. § 404.1529(c). If substantial evidence
supports the ALJ’s determination, it must be upheld, even if some of the reasons cited by the
ALJ are erroneous. Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008).
Plaintiff testified that he is unable to work because of the combination of his PTSD
symptoms, anxiety and vision impairments. Tr. 45–46. He testified that his vision had worsened
to the point that he could no longer see sutures or read labels and his employer terminated his
employment as a trauma surgical technician because of his poor vision. Tr. 39, 40, 41. He cannot
tolerate contact lenses and cannot wear eyeglasses until more sutures are removed from his eyes.
Tr. 57-58. Both his near and distance vision are poor and he does not drive because he has
difficulty reading road signs. Id.
Contrary to the Commissioner’s assertion, the Ninth Circuit’s unpublished opinion in Garner v. Colvin, 626 F.
App’x 699, 701 (9th Cir. 2015)(unpublished) does not stand for the proposition that SSR 16-3p only applies to ALJ
decisions from March 16, 2016 onwards. Garner addressed a different Social Security Ruling and did not make a
determination as to whether that new ruling was a clarification of existing sub-regulatory policy. The Ninth Circuit
rejected the plaintiff’s argument that it was error for the ALJ to fail to comply with the new ruling both because the
new ruling wasn’t in effect at the time of the ALJ’s decision and the plaintiff had waived the issue by failing to raise
it in the court below. Id. In any event, the ALJ's findings here fail to pass muster irrespective of which standard
governs. See Def. Br. 6 n.1.
OPINION AND ORDER – 20
At the time of the hearing Plaintiff was living with his ex-wife and his two children
because he “had nowhere else to go” and his ex-wife was willing to take him in. Tr. 47. He
avoids helping his children with homework or going to parent-teacher conferences because he’s
“not right for that.” Tr. 48. He initially tried to help with cleaning and chores but no longer does
them because of eye irritation. Tr. 49. In the past he was able to go to the store by himself but the
combination of his worsening vision and PTSD symptoms have stopped him from doing so. He
now goes with his ex-wife and only at certain times when there will be fewer people around. Id.
He attended church in the past for marriage counseling but has since stopped. Tr. 53. His life
“revolves around [his] medication. Tr. 51.
He experienced PTSD symptoms prior to March 2014 but his employer accommodated
him by giving him lighter cases when Plaintiff was stressed. Tr. 59-60. His symptoms worsened
“severely” over time and he sought help when his family left him. Tr. 61. He couldn’t tolerate
medication for night terrors so he takes Xanax so that he won’t remember the dreams. Tr. 62.
The medications he takes make him very fatigued and he naps for two or three hours during the
day. Tr. 65-66. His anxiety level is “unbelievable” and while medication helps when he is alone,
his severe anxiety returns when he is out with the public. Tr. 45-46. He has tried multiple forms
of therapy and counseling but doesn’t feel like they have helped with his symptoms. Tr. 46, 56.
Because Plaintiff's medically determinable impairments could reasonably be expected to
cause some degree of symptoms and there was no evidence of malingering, the ALJ was
required to provide clear and convincing reasons supported by substantial evidence for
discounting Plaintiff’s subjective symptom testimony.
OPINION AND ORDER – 21
The ALJ determined that Plaintiff’s symptom testimony was “not entirely credible”
because his symptom testimony contradicted his function report, was inconsistent with the
medical record, and because Plaintiff failed to seek other types of work. Tr. 22–24.
The ALJ discredited Plaintiff’s symptom testimony in part because it contradicted the
abilities he reported in an earlier function report. Plaintiff completed a function report in August,
2014. Tr. 183–90. He indicated in the report that he engaged in cleaning and laundry that took
him “all day” because he had “no energy to do anything.” He prepared his own meals, went
shopping by himself twice a month for things he needed and went to church on a regular basis.
Tr. 186-87. He indicated that he drove but also that when going out he traveled as a passenger in
a car. Tr. 186.
The ALJ found that inconsistencies between these statements and Plaintiff’s hearing
testimony “reflect[ed] negatively on his credibility surrounding the degree of limitation asserted
in his testimony.” Tr. 22. This was not a clear and convincing reason for discounting Plaintiff’s
testimony. Almost a year had passed between the date of Plaintiff’s function report and his
hearing testimony. At the time of the function report, Plaintiff was living on his own, whereas at
the time of the hearing, he had moved back in with his family and his ex-wife was a “care-giver”
for him. Tr.183, 47. The statements which the ALJ purported to find inconsistent reflected
ongoing changes in Plaintiff’s living situation and symptom severity that were supported by the
record. The function report overall mirrors Plaintiff’s hearing testimony regarding his vision
impairments and his ability to function in public, handle stress, and interact socially. The ALJ’s
use of selective portions of Plaintiff’s function report to discredit the entirety of his symptom
testimony was improper. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.
2007); accord Garrison, 759 F.3d at 1015. Alleged inconsistencies in Plaintiff’s statements were
OPINION AND ORDER – 22
not a clear and convincing reason supported by substantial evidence for discrediting Plaintiff’s
Plaintiff asserts that the ALJ also erred in discounting his symptom testimony as
inconsistent with medical records. I agree. First, for the reasons discussed at I.A., supra, the ALJ
improperly discounted Plaintiff’s testimony regarding his ability to correct his vision with the
use of contact lenses.
Second, the ALJ asserted that the medical records “document few complaints and good
response to the little treatment [Plaintiff] engaged in concerning PTSD.” The ALJ cited a 2011
psychological examination report that indicated that Plaintiff’s symptoms interfered less with his
work than with his social and family relationships; a “confusing” discussion of Plaintiff’s
nightmare symptoms in that same report; and conservative “medical management” of his PTSD
symptoms. Tr. 23, 284, 286. A thorough review of the record does not support the ALJ’s
reasoning. In 2011, Dr. Rex Turner diagnosed Plaintiff with PTSD; major depression, recurrent,
severe, with agitation; generalized anxiety disorder, extremely severe, with panic attacks; and a
GAF score of 52. Tr. 289. Dr. Turner noted that “[s]leep impairment was evident and reported.”
Tr. 286. Plaintiff reported chronic disturbing nightmares. Id.4 Plaintiff’s marriage subsequently
ended due to his PTSD symptoms. Tr. 188. In early November 2013, Plaintiff’s PTSD symptoms
worsened and Plaintiff was prescribed sertraline, lorazepam and prazosin by his primary care
physician. Tr. 318, 320. Plaintiff testified that he had tried multiple forms of counseling and nonmedical therapy but without beneficial results. Tr. 46, 56.
In December of 2013, Plaintiff initiated care with VA psychiatrist, Dr. Higginbotham.
Tr. 311. As detailed above, Dr. Higginbotham continuously prescribed a variety of medication
Although Dr. Turner wrote “The veteran does not complain of troubling nightmares . . . ,” the inclusion of the
word “not” is obviously a scrivener’s error as it is completely inconsistent with the remainder of his report.
OPINION AND ORDER – 23
combinations to combat Plaintiff’s symptoms while taking into account side effects and
Plaintiff’s tolerances. While medication helped to a certain extent, Plaintiff continued to
experience anxiety in public, sleep disturbances and medication side effects. Tr. 45, 62, 65-66.
Thus, contrary to the ALJ’s assertions and the Commissioner’s argument, the record
does not support the conclusion that Plaintiff “sought relatively little treatment,” or mere
“medical management.” Tr. 23, Def. Brief at 6-7. See SSR 16-3p, 96-7p (persistent attempts to
obtain relief of pain or other symptoms such as increasing dosages, trials of a variety of
treatment modalities to find those that are effective or without side effects generally support
allegations that those symptoms are intense and persistent). Thus, this was not a legally sufficient
reason for discounting Plaintiff’s symptom testimony.
Lastly, the ALJ found Plaintiff’s symptom testimony less than fully credible because he
did not seek other types of work after he could no longer perform his job as a trauma surgical
technician. Plaintiff argues that it is the combination of his impairments that are disabling. Reply
at 9. Plaintiff worked, despite PTSD symptoms, prior to his alleged onset date. He testified that
his employer was aware of his condition and accommodated him when he was overly stressed.
Tr. 59-60. The addition of his significant visual impairment then precluded his ability to perform
the job. Tr. 41, 348. Plaintiff testified that his PTSD symptoms have “severely” worsened over
time, that he continues to experience sleep disturbances and anxiety in public. The ALJ failed to
identify how these allegations of disabling symptoms were undermined by the fact that Plaintiff
did not seek other types of work and, therefore, this reason was not a legally sufficient basis for
discounting that testimony.
The ALJ failed to provide legally sufficient reasons for discrediting Plaintiff’s subjective
symptom testimony and remand is warranted.
OPINION AND ORDER – 24
IV. Lay Witness Testimony
Lay testimony as to a claimant's symptoms or as to how an impairment affects a
claimant's ability to work is competent evidence which an ALJ must consider. Molina v. Astrue,
674 F.3d 1104, 1114 (9th Cir.2012) (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th
Cir.1995); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993)). An ALJ who rejects the
testimony of lay witnesses must provide reasons for doing so that are “germane” as to each
witness. Id. Here, the ALJ discredited written statements from Plaintiff’s ex-wife and parents. Tr.
22, 205-12, 233-34.
Plaintiff’s ex-wife completed a third party function report dated August 23, 2014. Tr.
205-12. The ALJ noted that some of her comments corroborated Plaintiff’s August 2014
function report and contradicted Plaintiff’s hearing testimony. He then went on to reject her
comments regarding his functioning as not supported by the medical evidence. Tr. 22. Agency
regulations and Ninth Circuit law are clear that such a basis is legally insufficient. See Bruce v.
Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009)(“Nor under our law could the ALJ discredit
[claimant’s wife’s] lay testimony as not supported by medical evidence in the
record”)(citing Smolen, 80 F.3d at 1289 and SSR 88–13).
Plaintiff’s parents submitted a letter in May 2015 describing their observations of the
combined effects of Plaintiff’s mental and visual impairments. Tr. 333-34. The ALJ rejected
these statements as unsupported by the medical record and because they “reiterate[d]
information” in the record and did not “add anything of substance.” Tr. 22. As just discussed,
this first reason fails to provide a legitimate basis for rejecting lay witness evidence.
OPINION AND ORDER – 25
The remaining reasons are also inadequate. Plaintiff’s parents’ statements add substantial
insight into their son’s impairments.5 For example, they describe how, because of his poor vision
and difficulties with concentration, Plaintiff sends them copies of letters and documents he
receives so that they can read them to him. They also described the side effects Plaintiff
experiences due to his psychiatric medications, including “amotivational symptoms, difficulty
staying focused on tasks, and other psychophysiological manifestations.” Tr. 233. They
explained that he has experienced outbursts of anger, is emotionally withdrawn and has had
“extreme difficulty in establishing and maintaining effective work and social relationships.” Tr.
234. In addition to corroborating Plaintiff’s testimony and the medical record, these opinions
augment the record with more complete observations of the combined effects of Plaintiff’s
mental and visual impairments and the side effects of his treatment.
The ALJ failed to provide legally sufficient reasons for rejecting the lay witness evidence
from Plaintiff’s ex-wife and parents.
The decision whether to remand for further proceedings or for immediate payment of
benefits is within the discretion of the court. 42 U.S.C. § 405(g); Treichler v. Comm’r Soc. Sec.
Admin., 775 F.3d 1090, 1099 (9th Cir. 2014); Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.
2000), cert. denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings.
A remand for an award of benefits is appropriate when no useful purpose would be served by
further administrative proceedings or when the record has been fully developed and the evidence
is insufficient to support the Commissioner’s decision. Strauss v. Comm’r, 635 F.3d 1135, 1138–
39 (9th Cir. 2011) (citing Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The court
These insights are especially persuasive in light of the fact that Plaintiff’s father is a retired California state clinical
social worker with multiple decades of experience providing services to veterans. Tr. 233
OPINION AND ORDER – 26
may not award benefits punitively and must conduct a “credit-as-true” analysis to determine if a
claimant is disabled under the Act. Id. at 1138.
Under the “credit-as-true” doctrine, evidence should be credited and an immediate award
of benefits directed where: (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 “credit-as-true”
doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in
determining whether to enter an award of benefits upon reversing the Commissioner’s decision.
Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (citing Bunnell v. Sullivan, 947 F.2d 341,
348 (9th Cir. 1991) (en banc)).
Even if all of the requisites are met, the court may still remand for further proceedings
“when the record as a whole creates serious doubt as to whether the claimant is, in fact,
disabled.” Id. at 1021. “Serious doubt” can arise when there are “inconsistencies between the
claimant’s testimony and the medical evidence,” or if the Commissioner “has pointed to
evidence in the record the ALJ overlooked and explained how that evidence casts into
serious doubt” whether the claimant is disabled under the Act. Dominguez v. Colvin, 808
F.3d 403, 407 (9th Cir. 2015) (citing Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014)
(internal quotation marks omitted)).
Here, the ALJ failed to provide legally sufficient reasons for rejecting Plaintiff’s
symptom testimony, the opinion of Dr. Higginbotham, Plaintiff’s VA disability rating, and lay
witness statements. The ALJ also committed harmful error in failing to account for limitations
OPINION AND ORDER – 27
associated with Plaintiff’s visual impairments in his RFC determination and the hypothetical
presented to the VE. Thus, the first requisite is satisfied.
Nevertheless, I cannot conclude on this record that “further administrative proceedings
would serve no useful purpose.” Garrison, 759 F.3d at 1020. “The touchstone for an award of
benefits is the existence of a disability” rather than an ALJ’s error. Brown-Hunter v. Colvin, 806
F.3d 487, 495 (9th Cir.2015) (citations omitted). Thus, the court must assess whether outstanding
issues remain before considering whether to credit erroneously rejected evidence as a matter of
law. Id. Here, broad ranging errors in the Commissioner’s decision precluded any meaningful
assessment of the improperly discounted evidence and hampered full development of the record
with regard to the functional limitations imposed by Plaintiff’s PTSD symptoms. Filling in those
gaps is essential, especially in a case involving an impairment as complex and varied as PTSD.
In addition, further proceedings are required because the record is incomplete concerning the
combined effects of Plaintiff’s mental and visual impairments, which Plaintiff himself asserts is
the basis for his claim. Reply at 9. The ALJ assessed no limitations related to Plaintiff’s visual
impairments as part of his RFC determination. The ALJ’s hypothetical to the VE likewise
omitted these limitations. Because the record is not fully developed with regard to the extent of
the limitations imposed by Plaintiff’s combined impairments, further investigation and
assessment is required. Accordingly, remand for an award of benefits is not appropriate.
For the reasons discussed above, the Commissioner’s final decision was not based on
substantial evidence or free of harmful legal error. Accordingly, the Commissioner’s decision is
REVERSED and this case REMANDED for further proceedings. On remand, the ALJ must (1)
at Step Two, deem Plaintiff’s keratoconus a “severe” impairment; (2) in formulating the RFC,
OPINION AND ORDER – 28
expressly consider the limitations caused by this impairment both independently and in
conjunction with Plaintiff’s other medically determinable impairments;(3) credit the VA
determination and Dr. Higginbotham’s opinion or provided legally sufficient reasons for not
doing so; (4) reassess Plaintiff’s subjective symptom testimony and the evidence presented by
lay witnesses in light of the reevaluated record and credit the evidence or provide legally
sufficient reasons for not doing so; (5) reassess Plaintiff’s RFC and develop the record as
necessary based on the new RFC; (6) reassess whether Plaintiff is disabled within the meaning of
the Act based on the fully developed and properly evaluated record.
DATED this 26th day of October, 2017.
/s/ John Jelderks
U.S. Magistrate Judge
OPINION AND ORDER – 29
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