Mclain v. Commissioner of Social Security

Filing 19

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 01/08/2016 by Judge Anna J. Brown. See attached 21 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LAWRENCE LEE MCLAIN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

LISA R. J. PORTER
JP Law PC
5200 S.W. Meadows Rd
Suite 150
Lake Oswego, OR 97035
[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

2:15-CV-00024-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
HEATHER L. GRIFFITH
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Lawrence Lee McLain seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI 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 AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on June 23, 2011, and
alleged a disability onset date of May 24, 2011.1

Tr. 305.2

His

1

Plaintiff provided an alleged onset date of January 1,
2007, in his application, but at the hearing the ALJ accepted
Plaintiff’s request to amend his alleged onset date to May 24,
2011. Tr. 23, 47.
2

Citations to the official transcript of record filed by
the Commissioner on May 22, 2015, are referred to as "Tr."
2 - OPINION AND ORDER

application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on January 17,
2013.

Tr. 42-90.

At the hearing Plaintiff, his father, and a

vocational expert (VE) testified.

Plaintiff was represented by

an attorney.
On April 5, 2013, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 23-35.

On November 10, 2014, that decision

became the final decision of the Commissioner 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 October 12, 1973, and was 39 years old
at the time of the hearing.
Tr. 354.

Tr. 303.

Plaintiff has a GED.

He has past relevant work experience as a bicycle

assembler, a carpenter’s apprentice, a customer-service clerk,
and a telemarketer.

Tr. 33.

Plaintiff alleges disability due to obsessive compulsive
disorder (OCD), anxiety, a head injury, and “feet and leg
deformities.”

Tr. 352.

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

3 - OPINION AND ORDER

medical evidence.

See Tr. 29-32.
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.
4 - OPINION AND ORDER

Id. (citing Valentine, 574 F.3d

at 690).
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
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

See also 20 C.F.R. § 416.920.

Each step is potentially

dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
5 - OPINION AND ORDER

activity.

20 C.F.R. § 416.920(b).

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.
§ 416.920(c).

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 a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a)(4)(iii).

20

See also Keyser, 648 F.3d at 724.

The criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s Residual Functional Capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 416.945(a).

20 C.F.R.

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

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

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

6 - OPINION AND ORDER

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 he has done in the past.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724.

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 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. § 416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since his May 24, 2011, amended
alleged onset date.

Tr. 25.

At Step Two the ALJ found Plaintiff has the following severe
7 - OPINION AND ORDER

impairments:

“leg length discrepancy,” asthma, hepatitis C,

bipolar disorder, OCD, pain disorder, and attention deficit
disorder.

Tr. 26.

The ALJ found Plaintiff’s “alleged disability

arising, in part, from a head injury” to be nonsevere.

Tr. 26.

At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.

The ALJ found Plaintiff

has the RFC to perform “a range of light work.”

Tr. 27.

The ALJ

also found Plaintiff is able to lift and to carry 20 pounds
occasionally and ten pounds frequently; to stand and to walk for
four hours in an eight-hour work day; to sit for six hours in an
eight-hour work day with a “sit/stand option in 30-minute
increments”; occasionally to operate foot controls; to climb
ramps, stairs, ladders, ropes, and scaffolds; to balance; to
stoop; and to crouch.

Tr. 27-28.

The ALJ found Plaintiff is

rarely able to knee or to crawl and that Plaintiff must avoid
exposure to irritants such as fumes, odors, dusts, gases, poorly
ventilated areas, hazardous machinery, unprotected heights, and
“operational control of moving machinery.”

Tr. 28.

The ALJ

found Plaintiff is able to perform simple, routine, and
repetitive tasks “consisting of one or two steps.”

Tr. 28.

The

ALJ found Plaintiff “is able to work in a low stress environment,
defined as only occasional decision-making, changes in work
setting, and judgment required on the job,” and he must not have

8 - OPINION AND ORDER

any interaction with the general public.

Tr. 28.

Finally, the

ALJ found Plaintiff “is able to have superficial interaction with
a small group of co-workers, but cannot perform tandem tasks.”
Tr. 28.
At Step Four the ALJ concluded Plaintiff is unable to
perform his past relevant work.

Tr. 33.

At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.

Tr. 33.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION
Plaintiff contends the ALJ erred when she (1) improperly
rejected Plaintiff’s testimony; (2) gave “little weight” to the
testimony of Plaintiff’s father, Michael McLain; (3) gave “little
weight” to the opinion of Plaintiff’s treating therapist, Jeff
Harmon, L.P.C.; (4) gave “some weight” to the opinion of
Plaintiff’s examining psychologist, Kenneth Dudley, Ph.D.; and
(5) failed to include all of Plaintiff’s restrictions in her
evaluation of Plaintiff’s RFC.
I.

The ALJ gave clear and convincing reasons for partially
rejecting Plaintiff’s testimony.
Plaintiff alleges the ALJ erred when she failed to give

clear and convincing reasons for partially rejecting Plaintiff's
testimony at the January 2013 hearing.
In Cotton v. Bowen the Ninth Circuit established two
9 - OPINION AND ORDER

requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.

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

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).

General assertions that the claimant's testimony is

not credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

Id. (quoting Lester, 81 F.3d at 834).

At the March 2013 hearing Plaintiff testified he has
suffered “constant, chronic [pain], 24 hours a day” in his back,
and, as a result, he is not able to sit or to stand for more than
an hour.

Tr. 50-51.

Plaintiff stated “bending down and lifting

is very difficult,” and he has had nerve damage in his hands for
ten years.

Tr. 58.

Plaintiff also testified he survived a 120-

foot fall in “the mid-90s” that caused several mental problems.
10 - OPINION AND ORDER

Tr. 63.

Plaintiff testified he cannot go into stores if there

are “too many people” in the store.

Plaintiff stated he cannot

stay focused enough to read or to do paperwork.

Plaintiff

testified he has suicidal thoughts that have become worse in the
past year, and, as a result, he has been hospitalized three times
“this year.”

Tr. 68.

The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause some of the
alleged symptoms,” but Plaintiff’s testimony “concerning the
intensity, persistence and limiting effects of [his] symptoms are
not entirely credible.”

Tr. 32.

The ALJ noted Plaintiff

reported to examining physician, Michael Rushton, D.P.M., on
May 23, 2011, with a joint that was “painful, reddened and
swollen.”

Tr. 485.

Plaintiff stated he was having difficulty

with his daily activities due to “the sharp pain, which at times
[was] excruciating.”

Tr. 485.

Dr. Rushton diagnosed Plaintiff

with gout, “defer[red] a joint tap,” and discussed diet
recommendations with Plaintiff.

Tr. 486.

On June 8, 2011,

Plaintiff was seen by Dr. Rushton regarding joint pain, and
Dr. Rushton again advised Plaintiff about his diet and declined
to do a joint tap.

Tr. 465-66.

On June 27, 2011, Plaintiff was

seen by Aaron Long, PA-C, seeking a handicap parking permit
related to his gout and right foot discomfort.

Plaintiff,

however, told PA-C Long that his “foot is much better on gout

11 - OPINION AND ORDER

meds” and “admit[ted] he can easily walk into stores . . .
because the distance is short.”

Tr. 563.

Plaintiff noted he had

“some difficulty getting the L leg up over logs in the woods at
times,” but PA-C Long noted that “would make it difficult to
justify a parking permit.”

Tr. 563.

Ultimately PA-C Long noted

Plaintiff “agree[d] that he ambulates effectively today and does
not need a sticker at this point.

If it should get to this point

and the need is legitimate I will gladly assist.”

Tr. 563.

The ALJ noted throughout Plaintiff’s weekly counseling
sessions in 2011 and 2012 that Plaintiff reported varying levels
of anxiety, anger, and/or obsessive thoughts.

Plaintiff’s

treating counselor, Jeff Harman, L.P.C., however, consistently
assessed Plaintiff with GAF3 scores in the low 60s and high 50s4

3

Although the fifth edition of the Diagnostic and
Statistical Manual of Mental Disorders issued May 27, 2013,
abandoned the GAF scale in favor of standardized assessments for
symptom severity, diagnostic severity, and disability (see
Diagnostic and Statistical Manual of Mental Disorders V (DSM-V)
16 (5th ed. 2013)), at the time of Plaintiff’s assessment and the
ALJ’s opinion the GAF scale was used to report a clinician’s
judgment of the patient’s overall level of functioning on a scale
of 1 to 100 (see Diagnostic and Statistical Manual of Mental
Disorders IV (DSM-IV) 31-34 (4th ed. 2000)).
4

A GAF of 51-60 indicates moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 indicates "[s]ome mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or
theft within the household), but generally functioning pretty
well, has some meaningful interpersonal relationships.”
Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV)
12 - OPINION AND ORDER

from June 2011 through July 2012.

In addition, although

Plaintiff testified he had been hospitalized for mental-health
reasons three times in the year before the hearing, the record
reflects only one hospitalization that occurred in September
2012.

From September 2012 through November 2012 Plaintiff’s mood

continued to fluctuate, but Counselor Harman never assessed
Plaintiff with more than moderate symptoms.
On this record the Court finds the ALJ provided clear and
convincing reasons supported by substantial evidence in the
record for finding Plaintiff's testimony was only partially
credible.

The Court, therefore, concludes the ALJ did not err

when she rejected Plaintiff's testimony in part.
II.

The ALJ did not err when she gave little weight to the
November 2012 opinion of treating counselor Jeff Harman.
Plaintiff contends the ALJ erred when she gave little weight

to the November 2012 opinion of Counselor Jeff Harman.

On

November 26, 2012, Counselor Harman completed a medicalimpairment questionnaire in which he reported Plaintiff suffered
from several mental symptoms including suicidal thoughts,
impairment of impulse control, generalized anxiety, difficulty
concentrating, persistent disturbances in mood, recurrent
obsessions, “intense and unstable interpersonal relationships,”
sleep disturbance, and “easy distractability.”

31-34 (4th ed. 2000).
13 - OPINION AND ORDER

Tr. 752.

Counselor Harman declined to specifically assess Plaintiff’s
“mental abilities and aptitudes needed to do unskilled work” or
Plaintiff’s functional limitations.

Tr. 756-57.

Nevertheless,

Counselor Harman opined Plaintiff “would experience substantial
difficulty with stamina, pain or fatigue if [he] was working
. . . eight hours a day, at the light or sedentary levels of
exertion” and had a “very poor” ability “to work 8 hours a day,
40 hours a week, and maintain a normal work pace.”

Tr. 754.

Counselor Harman also reported Plaintiff would have “substantial
difficulty getting along appropriately with members of the
public” and in “getting along with supervisors or co-workers.”
Tr. 755.

Counselor Harman opined Plaintiff would be absent from

work more than four times per month.

Tr. 755.

Finally,

Counselor Harman noted Plaintiff had suffered “three episodes of
decompensation within 12 months, each at least two weeks long.”
Tr. 758.
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, nurse
practitioners, therapists, licensed clinical social workers, and
chiropractors.

SSR 06-03p, at *2.

Factors the ALJ should

consider when determining the weight to give an opinion from

14 - OPINION AND ORDER

those not acceptable sources include the length of time the
source has known the claimant and the number of times and
frequency that the source has seen the claimant, the consistency
of the source's opinion with other evidence in the record, the
relevance of the source's opinion, the quality of the source's
explanation of his opinion, and the source's training and
expertise.

SSR 06-03p, at *4.

The ALJ must explain the weight

assigned to not acceptable medical sources to the extent that a
claimant or subsequent reviewer may follow the ALJ's reasoning.
SSR 06-03p, at *6.
The ALJ rejected Counselor Harman’s opinion on the ground
that it is inconsistent with his treatment notes and the medical
record.

For example, although Counselor Harman stated Plaintiff

had suffered three episodes of decompensation within 12 months,
each at least two weeks long, Counselor Harman consistently
assessed Plaintiff with GAF scores in the low 60s and high 50s
from June 2011 through July 2012.

From September 2012 through

November 2012 Plaintiff’s mood continued to fluctuate, but
Counselor Harman never assessed Plaintiff with more than moderate
symptoms.

In addition, the record reflects Plaintiff was

hospitalized for a short period only once because of mentalhealth issues.
On this record the Court concludes the ALJ did not err when
she gave little weight to Counselor Harman’s November 2012

15 - OPINION AND ORDER

opinion because the ALJ provided legally sufficient reasons
supported by substantial evidence in the record for doing so.
III. The ALJ did not err when she gave only “some weight” to
the opinion of Plaintiff’s examining psychologist,
Dr. Dudley.
Plaintiff asserts the ALJ erred when he gave only “some
weight” to the January 6, 2013, opinion of Dr. Dudley.
On December 31, 2012, Dr. Dudley conducted a pyschodiagnostic examination of Plaintiff and found Plaintiff “endorsed
the supermajority of symptoms presented, at time with some
potential for symptoms exaggeration.”

Tr. 745.

Dr. Dudley noted

Plaintiff did not have any “difficulty with the ability to read
social and nonverbal cues” and “minimal difficulty in giving
additional information or details to his responses.”

Tr. 745.

Dr. Dudley reported Plaintiff’s mental-status examination
demonstrated Plaintiff had average reasoning ability, his
intellectual capacity was in the low-average range, and his
attention and concentration were in the low-average range.
Tr. 746.

Dr. Dudley noted the record did not contain a

neuropsychological evaluation, and he recommended “some form of
testing occur to evaluate [Plaintiff’s] level of functioning
across cognitive domains including language ability, memory,
attention and other executive functioning areas.”

Tr. 749.

Dr. Dudley also opined Plaintiff was able to “recall and act on
simply commands (1-2 steps) with no anticipated impairment,” but

16 - OPINION AND ORDER

he would likely have “a severe level of impairment [in his
ability to sustain concentration and attention] in most
situations due to mood, anxiety and social deficits.”

Tr. 749.

Dr. Dudley opined Plaintiff “would be expected to be able to
maintain a brief level of [social interaction], [but] his ability
to sustain these [sic] over the course of a typical work day or
across a typical work week would be impaired.”

Tr. 750.

Specifically, Plaintiff
would be able to manage interaction with a
supervisor/manager in regards to receiving
directions and requesting information, but would
not be able to manage ongoing demands of
interaction with the general public.
Tr. 750.

Finally, Dr. Dudley opined Plaintiff would have

“minimal impairment in written communication.
communication was unimpaired.”

Verbal

Tr. 750.

An ALJ may reject an examining physician's opinion when it
is inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record."

Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989)).

When the medical opinion of an examining

physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
957.

Thomas, 278 F.3d at

See also Lester v. Chater, 81 F.3d 821, 830-32.

17 - OPINION AND ORDER

The ALJ gave some weight to Dr. Dudley’s January 6, 2013,
opinion.

For example, the ALJ found Dr. Dudley’s opinions

regarding Plaintiff’s inability to deal with the general public
and Plaintiff’s ability to maintain a brief level of interaction
with a supervisor or manager are supported by the record.

The

ALJ also found Dr. Dudley’s opinion regarding Plaintiff’s ability
to recall and to act only on simple 1-2 step instructions was
supported by the record.

The ALJ, therefore, incorporated those

restrictions into Plaintiff’s RFC.

The ALJ, however, rejected

Dr. Dudley’s opinion that Plaintiff is unable to sustain
concentration and/or social functioning over the course of a
typical workday or work week because it was based, in part, on
Plaintiff’s self report and Dr. Dudley had noted Plaintiff
“endorsed the supermajority of symptoms presented . . . with some
potential for symptoms exaggeration.”

In addition, the ALJ noted

Counselor Harman reported over the course of more than a year
that Plaintiff’s symptoms fluctuated but Counselor Harmon never
assessed more than moderate limitations.
On this record the Court concludes the ALJ did not err when
she gave only some weight to the January 6, 2013, opinion of
Dr. Dudley because the ALJ provided legally sufficient reasons
supported by substantial evidence in the record for doing so.
IV.

The ALJ did not err when she gave little weight to the
testimony of Plaintiff’s father, Michael McLain.
At the hearing on January 17, 2013, Plaintiff’s father

18 - OPINION AND ORDER

testified the depth of Plaintiff’s depression had become more
severe in the “past couple of years.”

Tr. 73.

Michael McLain

stated Plaintiff suffers from “total hopelessness” and is
“helpless.”

Tr. 73.

Michael McLain testified in the year before

the hearing that Plaintiff “gained most of his strength back, but
. . . his problem is depression.”
stated

Tr. 74.

Michael McLain also

Plaintiff cannot get out of bed or go to work on one of

Plaintiff’s “bad days,” and Plaintiff does not have “any control
over how he’s going to feel from day to day.”

Tr. 75.

Michael

McLain testified Plaintiff’s condition is getting worse, and “for
days he won’t even leave the cabin because . . . [of] anxiety.”
Tr. 76-77.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless she "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
(9th Cir. 2001).

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

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).
The ALJ gave little weight to Michael McLain’s testimony on
the ground that it was not supported by the medical evidence such

19 - OPINION AND ORDER

as Counselor Harman’s assessments throughout 2011 and 2012 that
Plaintiff did not suffer from more than moderate symptoms and
Dr. Dudley’s opinion.
The Court concludes on this record that the ALJ did not err
when she gave little weight to the testimony of Michael McLain
because the ALJ gave reasons germane the witness for doing so.
V.

The ALJ did not err in her assessment of Plaintiff's RFC.
Plaintiff contends the ALJ erred in her assessment of

Plaintiff's RFC because the ALJ failed to include Plaintiff's
limitations set out Plaintiff’s testimony and in the opinions of
Counselor Harman and Dr. Dudley.
Because the Court has found the ALJ properly rejected
Plaintiff’s testimony in part, properly gave little weight to
Counselor Harman’s opinion, and properly gave some weight to the
opinion of Dr. Dudley, the Court concludes the ALJ did not err
when she did not consider all of the limitations included in
Plaintiff’s testimony or in the opinions of Counselor Harmon and
Dr. Dudley when she assessed Plaintiff's RFC.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the

20 - OPINION AND ORDER

Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 8th day of January, 2016.

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

21 - OPINION AND ORDER