Springs v. Commissioner Social Security Administration

Filing 18

OPINION and ORDER - For the reasons stated, the Commissioner's decision is AFFIRMED and this case is DISMISSED. IT IS SO ORDERED. DATED this 8th day of February, 2016, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

STERLING W. SPRINGS,
Plaintiff,

Case No.: 6:14-CV-01195-AC
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
ACOSTA, Magistrate Judge:
Sterling Springs ("plaintiff') seeks judicial review of a final decision by the Commissioner
of Social Security ("Commissioner") denying his application for Disability Insurance Benefits
("DIB") under Title II of the Social Security Act. This Court has jurisdiction to review the
Commissioner's decision pursuant to 42 U.S.C. § 405(g). All parties have consented to allow a
Magistrate Judge enter final orders and judgment in this case in accordance with Fed. R. Civ. P. 73
and 28 U.S.C. § 636(c). Based on a careful review of the record, the Commissioner's decision is
affirmed and this case is dismissed.
Page I - OPINION AND ORDER

Procedural Background

Plaintiff applied for DIB on January 3, 2011, alleging disability as of January 27, 2010, due
to abdominal migraines, degenerative disc disease, left knee injuiy, chronic right shoulder
dislocation, anxiety, obsessive-compulsive disorder, and insomnia. 1 (Tr. 18, 166-68, 183.) His
application was denied initially and upon reconsideration. (Tr. 123-31.) A hearing was held on
August 14, 2012, before an Administrative Law Judge ("ALJ"). (Tr. 44-97.) On December 28,
2012, the ALJ issued a decision finding plaintiff not disabled. (Tr. 18-32.) Plaintiff timely requested
review of the ALJ's decision and, after the Appeals Council denied his request for review, filed a
complaint in this Court. (Tr. 1-6.)
Factual Background

Born on January 31, 1976, plaintiff was 33 years old on the alleged onset date of disability
and 36 years old at the time of the hearing. (Tr. 49, 166.) He obtained his GED and worked
previously as a prep cook, reforestation technician, and baker helper. (Tr. 31, 50, 88-89, 184.)
Standard of Review

The 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. Hammockv. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant

1

Although neither party addresses this issue and there is scant documentation thereof,
plaintiff previously applied for, and was denied, DIB on May 14, 2010. (Tr. 179); see also
Epperson-Nordlandv. Colvin, Case No. 2:12-CV-01985-AA, 2013 WL 5774110, *3-4 (D. Or.
Oct. 22, 2013) (explaining the process to reopen a prior claim or overcome the presumption of
continuing disability where the claimant has successive applications). Additionally, the record
before the Court constitutes nearly 700 pages, but with some incidences of duplication. Where
evidence occurs in the record more than once, the Court will generally cite to the transcript pages
on which that information first appears.
Page 2 - OPINION AND ORDER

evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh

"both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a

grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden ofproofrests upon the claimant to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not less
than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Conunissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.§ 404.1520. First, the
Commissioner evaluates whether a claimant is engaged in "substantial gainful activity"; if so, the
claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).
At step two, the Commissioner resolves whether the claimant has a "medically severe
impairment or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R.§ 404.1520(c).
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.

At step three, the Commissioner determines whether the claimant meets or equals "one of
a number of listed impairments that the Secretary acknowledges are so severe as to preclude
substantial gainful activity." Id.; 20 C.F.R. § 404.1520( d). If so, the claimant is presumed disabled;
if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
Page 3 - OPINION AND ORDER

At step four, the Commissioner considers whether the claimant can still perform "past
relevant work." Id.; 20 C.F.R.§ 404.1520(f). If the claimant can work, he is not disabled; if he
cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 141.
At step five, the Commissioner must establish that the claimant can perform other work existing in
significant numbers in the national or local economy. Id. at 142; 20 C.F.R. § 404.1520(g). If the
Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.
The ALJ's Findings

At step one of the five-step process outlined above, the ALJ found that plaintiff had not
engaged in substantial gainful activity since the alleged onset date. (Tr. 20.) At step two, the ALJ
determined that plaintiff had the following severe impairments: "attention deficit/hyperactivity
disorder (ADHD); bipolar disorder II; generalized social phobia; alcohol dependence in current
remission; opiate addiction in remission; history ofleft posterior cruciate ligament (PCL) tear/strain
with degenerative joint disease; history of right shoulder instability status post Bankart
reconstruction and possible impingement; cervical degenerative disc disease; sleep apnea;
gastroesophageal reflux disease (GERD) vs. abdominal migraines; mild lumbar and thoracic
scoliosis; and headaches." (Tr. 20-21.) At step three, the ALJ found that plaintiffs impairments,
either singly or in combination, did not meet or equal the requirements of a listed impahment. (Tr.
22.)
As such, the ALJ continued the sequential evaluation process to determine how plaintiffs
medical limitations affected his ability to work. The ALJ resolved that plaintiff had the residual
functional capacity ("RFC") to perform medium work:
with lifting and canying of 50 pounds occasionally and 25 frequently. He can
Page 4 - OPINION AND ORDER

perform occasional overhead work with the left upper extremity and no overhead
reaching with the right upper extremity. He can perform no squatting or stooping,
or lifting from below waist level. He can understand, remember and carry out only
simple instructions that can be learned in 30 days or less.
(Tr. 24.) At step four, the ALJ concluded that plaintiff could not perform his past relevant work.
(Tr. 30.) At step five, the ALJ found, based on the testimony of a vocational expert ("VE"), that
plaintiff could perform a significant number oflight exertion, unskilled jobs existing in the national
and local economy despite his impairments, such as bakery line worker, laminating machine
operator, and dealer account representative. (Tr. 31-32.) Accordingly, the ALJ determined that
plaintiff was not disabled within the meaning of the Act. (Tr. 32.)
Discussion

Plaintiff argues that the ALJ erred by: (1) finding him not fully credible; (2) improperly
assessing medical evidence from William Trueblood, Ph.D.; and (3) formulating an incomplete RFC,
such that the step five finding was invalid. (Pl.'s Opening Br. 5-6.)

I.

Plaintiffs Credibility
Plaintiff asserts that the ALJ failed to provide a specific, clear and convincing reason,

supported by substantial evidence, for rejecting his subjective symptom testimony concerning the
severity of his impairments. When a claimant has medically documented impairments that could
reasonably be expected to produce some degree of the symptoms complained of, and the record
contains no affirmative evidence of malingering, "the ALJ canreject the claimant's testimony about
the severity of ... symptoms only by offering specific, clear and convincing reasons for doing so."
Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that

the claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible

Page 5 - OPINION AND ORDER

and what evidence suggests the complaints are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918
(9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing collli
to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a,
50 F.3d 748, 750 (9th Cir. 1995) (citation omitted). If the "ALJ's credibility finding is suppmied
by substantial evidence in the record, [the collli] may not engage in second-guessing." Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

At the hearing, plaintiff testified that he is unable to work primarily as a result of his right
shoulder impairment and abdominal migraines, which result in a limited range of motion and
constant pain, nausea, and vomiting. (Tr. 58-61, 63-64.) He also endorsed shoulder dislocations
multiple per daily, as well as extreme neck and knee pain, insomnia, headaches, numbness in his
hands and feet, and anxiety. (Tr. 62, 65-73.) As for activities of daily living, plaintiff remarked that
he "spend[s] most of the days trying to stretch [his] neck [and] back," but "really in the last few years
[can] not [even do the stretching] that much." (Tr. 74.) Instead, he currently watches television,
"pick[s] up some small clutter around the house," like clothes, and "maybe make[s] the bed with one
arm" although it "takes ... quite a while." (Id) As for functional abilities, plaintiff stated that he
can walk for"[ m]aybe a couple of blocks" before needing to rest, and stand for four minutes and sit
for "[m]aybe 20 minutes to half an hour" at one time. (Tr. 71-72.)
After summarizing his hearing testimony, the ALJ determined that plaintiffs medically
determinable impairments reasonably could be expected to produce some degree of symptoms, but
his statements regarding the extent of these symptoms were not fully credible due to his inconsistent
reports and tendency to exaggerate, as well as the lack of corroborating medical evidence. (Tr. 2530.)
Page 6 - OPINION AND ORDER

Notably, the ALJ found that plaintiffs credibility was eroded by his contradictory statements.
(Id) Inconsistencies in a claimant's testimony or behavior can serve as a clear and convincing
reason for an adverse credibility finding. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). The
record is replete with evidence supporting the ALJ's finding, as plaintiff gave conflicting accounts
concerning his functional abilities and activities of daily living, hospitalizations, alcohol use, etc.
For instance, plaintiff stated in his January 2011 Adult Function Rep mi that he "cannot function at
all" on "bad days," which "are the majority," but may "eat, keep meds down [and] do a couple of
chores" on "good days"; he estimated that he could walk for one-half mile before needing to rest.
(Tr. 194-99.) In March 2011, plaintiff expressed to Michelle Whitehead, Ph.D., that he "rides a bike
and walks" regularly - such that he "appear[ed] healthy and in good physical shape" - and played
video games, watched television, used the internet, wrote stories, and did chores, like cleaning the
litter box, vacuuming, and folding laundry, on a daily basis. (Tr. 529-30); see also Molina v. Astrue,
674 F.3d 1104, 1112-13 (9th Cir. 2012) (daily activities may be used to discredit a claimant where
they are either "transferable to a work setting" or "contradict claims of a totally debilitating
impairment") (citations omitted). He sat for one hour during that examination with "minimal"
outward pain behavior. (Tr. 529.)
On top of"do[ing] a lot of cooking," he recited similar daily activities to Mike Henderson,
M.D. (Tr. 533.) He also repmied the ability to sit and stand for 60 minutes at one time, and walk
for one-quaiier of a mile before needing to rest. (Id) In September 2011, he recounted to a different
provider an "enjoyable" drive that he took from Bend to Salem "and back," a round-trip of
approximately five hours; he also cooked and attended a wedding, despite undergoing treatment for
an "aggressive [tooth] infection." (Tr. 644-45, 674.) In his August 2012 letter, submitted before the
Page 7 - OPINION AND ORDER

hearing, plaintiff indicated severe limitations on most days, such that he performed essentially no
daily activities. (Tr. 248-49.) While he testified that he could sit for no more than 30 minutes at one
time, plaintiff "remained seated for the 60 plus minute hearing." (Tr. 25-27, 46, 71-74. 97 .) Less
than two months later, during his return visit with Dr. Henderson, he endorsed the ability to sit for
15 minutes at one time but, upon examination, the doctor could "not find objective evidence to limit
sitting, standing or walking." (Tr. 685.)
Regarding hospitalizations for his abdominal condition, plaintiff reported to one provider in
August 2010 that he had "similar episodes of abdominal pain in 2004 [and] 2008." (Tr. 353.) In
September 2010, he specified previous "[stomach] episodes in 2003 and 2007." (Tr. 4 33 .) In March
2011, he explained to Dr. Henderson that he had only "been hospitalized 3 times in his lifetime for
abdominal pain [but] is now going to the hospital 3 times per year." (Tr. 26, 532-33.) That same
month, he communicated to Dr. Whitehead, while recounting his '"undiagnosed' stomach
problems," that "[h]e has been hospitalized five times during the past two years and ten times to the
emergency room." (Tr. 527.) During his subsequent exam with Dr. Henderson in October 2012,
plaintiff disclosed that "he has been to the ER about 30 times and admitted to the hospital
approximately 8 times in the last 10 years" for nausea and vomiting. (Tr. 26, 683.) Plaintiffs
August 2012 letter specified that, in a "good month," he "throw[s] up a couple of times a day and
a couple of times at night," and a "bad month is non stop vomiting for weeks on end," such that he
"usually come[ s] back to the E.R. eve1y few days for another month then the cycle staiis again." (Tr.
26, 248.) However, plaintiff"finally agreed at the hearing that his stomach condition had been better
over the last year" - i.e. he has been "able to eat solid food" and only "throw[s] up here and there"
- such that he had not presented to the emergency depaiiment since June 2011, when he was not
Page 8 - OPINION AND ORDER

admitted. (Tr. 26, 54, 66.) He nonetheless testified at that time that, up until June 2011, he "was
going [to the emergency room] about every month, sometimes every week."

(Tr. 53.) An

independent review of the record reveals that plaintiff underwent two clusters of emergency
treatments related to his stomach during the relevant time period, one in August/September 2010 and
the other in December 2010. (Tr. 26, 353-62, 366, 368, 435-53, 466-73, 489-93, 535.)
Although he repeatedly told his providers that ceasing to drink improved his nausea,
vomiting, and stomach pain, he did not significantly reduce his chronic alcohol consumption until
at least the end of 2010 or beginning of 2011. (Tr. 26, 58, 76); see also (Tr. 433 (reporting in
September 2010 that he "swore off all caffeine and alcohol" when "when his most recent abdominal
syndrome and vomiting recmTed," and "has been fine since"), 444 (indicating in December 2010 that
he had resumed drinking until his last abdominal episode began), 447 (stating to another provider
in December 2010 that he "only rarely drinks"), 500 (disclosing to yet another provider in December
2010 that he is a"[d]aily," "heavy alcohol drinker"), 529-31 (remarking in March 2011 he used to
drink "heavily," "his last alcohol use was three days ago," and that he "craves to drink daily," such
that Dr. Whitehead opined "[i]t is possible [plaintiff] drinks more than he is willing to repmt"), 534
(expressing to Dr. Henderson in March 2011 that he only has "2 drinks per week"), 645 (explaining
in October 2011 that he felt an abdominal episode "coming on but 'no alcohol and rest seemed to
alleviate"' his symptoms), 673 (specifying to Dr. Trueblood in September 2012 that his "[d]rinking
was heavy from [ages] 19 to 34" - i.e. a "16 pack of beer on a daily basis or three quarters of a fifth
of rum in a day" - but "[h]e currently only has one drink about every two weeks").) As the ALJ
reasonably concluded, these inconsistencies belie plaintiffs subjective symptom statements.
The ALJ also determined plaintiffs tendency to exaggerate undermined his credibility. (Tr.

Page 9 - OPINION AND ORDER

26-28.) A tendency to exaggerate is a legitimate consideration in evaluating a claimant's credibility.

Tonapetyan v. Halter, 242 F .3d 1144, 1148 (9th Cir. 2001). Numerous providers questioned
plaintiffs effort on exams, noted "irregularities" between his behavior and test results, described him
as "overly-dramatic," and/or observed that his complaints were "excessive." (Tr. 274, 429, 530, 532,
535,568-69,683,685.)
In addition, the ALJ found that plaintiffs subjective complaints were not supported by the
medical record. (Tr. 27-28.) "While subjective pain testimony cannot be rejected on the sole ground
that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant
factor in determining the severity of the claimant's pain and its disabling effects." Rollins v.

Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, plaintiffs attestations of frequent migraine
headaches and knee pain are unsupported by the record, as he received very little treatment during
the adjudication period for these allegedly debilitating impairments. (Tr. 27, 62, 71, 83-83, 607-22,
648-54); see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may consider an
unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of
treatment in assessing credibility). Further, plaintiff testified that he needed to "brea[k] off bone
spurs" in his neck daily and was told that neck surgery would "kill [him] or paralyze [him] for life,"
yet the medical record does not contain any evidence to that effect. (Tr. 27, 62, 79-82.)
Plaintiff maintains that the ALJ "had the responsibility to develop the record in order to
obtain such medical evidence" to support his subjective symptom statements (Pl. 's Opening Br. 27;
Pl.' s Reply Br. 4, 7-11 ), but he misconstrnes the law. A claimant bears the burden of proving the
existence or extent of an impairment, such that the ALJ' s limited "duty to further develop the record
is triggered only when there is ambiguous evidence or when the record is inadequate to allow for
Page 10 - OPINION AND ORDER

proper evaluation." Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001). In this case, plaintiff
failed to furnish evidence substantiating the majority of his claimed limitations, despite the fact the
ALJ noted these shortcomings and left the record open post-hearing to allow for supplementation.
(Tr. 58-62, 64-70, 79-82, 95-96.)
That plaintiff neglected to carry his burden of proof, in part because he did not seek regular
treatment for some of his allegedly disabling impairments, does not establish an ambiguity or
inadequacy in the record, especially in light of the fact that the ALJ refe1Ted plaintiff to two
additional consultive evaluations in order to generate additional medical evidence relating to
severity. (Tr. 95-96.) Moreover, plaintiffs argument that the ALJ's decision was deficient because
it lacked the requisite specificity is unfounded. As the foregoing discussion demonstrates, the ALJ
did not arbitrarily discredit plaintiffs self-repmts. Lastly, plaintiffs attempts to equate the ALJ's
step two determination with a positive credibility finding are misplaced; it is well-settled that step
two findings do not directly translate to the RFC, in large patt because the "the step-two inquiry is
a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290.
Similarly, plaintiff offered sworn statements that he dislocates his right shoulder multiple
times per day, such that he was prescribed a shoulder brace to wear at all times, but the medical
record neither reflects that he was prescribed a brace on those terms nor shows any significant
treatment for or limitation of that shoulder during the relevant time period. (Tr. 25, 27, 58-61, 371,
532-35, 604, 685.) In fact, although right shoulder surgery was recommended in July 2010, plaintiff
elected not to go through with it, citing financial reasons. (Tr. 335-36.) Plaintiffs surgeon was
"confused" over this choice - noting that a discounted payment plan had been offered which was "not
financially out of reach for him" - especially because plaintiff "came in to the appointment today
Page 11 - OPINION AND ORDER

explaining that his life is 'ruined' because of his right shoulder" and the surgery "would help him
dramatically." (Tr. 336.) While plaintiff offers an alternative reading of this evidence, the ALJ's
interpretation was nonetheless rationale, such that it must be upheld. Batson v. Comm 'r Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

Thus, the ALJ provided several specific, clear and convincing reasons, suppotied by
substantial evidence, for rejecting plaintiffs subjective symptom statements. As a result, this Comi
need not discuss all of the reasons provided by the ALJ because at least one legally sufficient reason
exists. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). The ALJ's
credibility finding is affirmed.
II.

Medical Opinion Evidence
Plaintiff also contends that the ALJ failed to provide a legally sufficient reason, supported

by substantial evidence, for discrediting the medical opinion Dr. Trueblood.2 There are three types
of medical opinions: those from treating, examining, and non-examining doctors. Lester v. Chater,
81 F.3d 821, 830 (9th Cir. 1995). To reject the uncontrovetied opinion of a treating or examining
doctor, the ALJ must present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005) (citation omitted). Ifa treating or examining doctor's opinion is contradicted
by another doctor's opinion, it may be rejected by specific and legitimate reasons. Id
In September 2012, Dr. Trueblood performed a one-time examination to assess plaintiffs
mental functioning. (Tr. 670-78.) Dr. Trueblood's opinion was based on plaintiffs self-repotis, a

2

In the alternative, plaintiff argues that, if there was an "ambiguity or inconsistency
between [Dr. Trueblood's opinion and the other medical evidence ofrecord, her] responsibility
was to recontact Dr. Trueblood for clarification." (Pl. 's Opening Br. 28.) For the reasons
discussed herein, the ALJ's duty to more fully develop the record was not triggered.
Page 12 - OPINION AND ORDER

cognitive screening, and the review of limited medical records. (Tr. 670.) The doctor diagnosed
plaintiff with ADHD, bipolar disorder II, generalized social phobia, and alcohol dependence in full
sustained remission. (Tr. 677.) He also listed "Cognitive Disorder NOS" as a provisional diagnosis
and "schizotypal personality characteristics" as a rule out possibility. (Id.) Dr. Trueblood assigned
plaintiff a global assessment of functioning ("GAF") score of 51, 3 classifying plaintiffs alleged
physical problems, as well as his unemployment, "mild social isolation," and financial stress, as
contributing factors. (Id.) In the narrative section of his evaluation, Dr. Trueblood denoted the
following conclusions:
This gentleman rep01is having attention problems back to childhood, with these
worsening over the last 10 years. He reports memory problems since his late teens
but these have been worse in the last 10 years. Cognitive screening results involve
normal performance on a memory screening task. There is suggestive evidence for
working memory impairment in terms of mildly impaired calculations and mildly low
digit repetition, while mental tracking performance is rated as normal. Overall
tentative impression is of acquired cognitive impairment in the milder range. I
cannot rule out that it might be greater than that. This gentleman's history that
involves a number of very plausible contributing factors to acquired cognitive or
neuropsychological impairment does lead me to believe that there likely is at least
some such impairment. Hist01y includes repeated head injuries (involvement in
mixed martial arts for a number of years), very long-term benzodiazepine use, past
alcohol abuse, bipolar disorder, and ADHD ...
Infonnation that is relevant in rating [plaintiffs] ability to understand and remember
instructions includes that there was just one instance when [heJ had any difficulty

3

To the extent he contends his GAF score, alone, establishes his entitlement to benefits,
plaintiffs argument is unpersuasive. A GAF of51to60 merely equates "[m]oderate 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
co-workers)." The American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 34 (4th ed. 2000); see also Skelton v. Comm 'r ofSoc. Sec., Case No. 6:13-CV01117-HZ, 2014 WL 4162536, *11 (D. Or. Aug. 18, 2014) (explaining that the fifth and most
recent edition of the Diagnostic and Statistical Manual of Mental Disorders abandoned the GAF
scale for several reasons, including "its lack of conceptual clarity" and "questionable
psychometrics in routine practice") (citation and internal quotations omitted).
Page 13 - OPINION AND ORDER

understanding something that I said to him[.] Overall tentative impression is that
impairment in ability to remember instructions is probably mild to moderate or less.
Again, though, it certainly is possible that the impairment is greater than that,
especially in view of the number of plausible contributing factors in this gentleman's
hist01y[.] Regarding [plaintiffs] ability to sustain attention/concentration and
persist, his presentation on this evaluation did involve tangential speech that was of
a degree and nature that leads me to believe that it probably is based in an underlying
attention disturbance. [I] suspect that there is significant impairment in this
gentleman's ability to sustain attention/concentration and persist [but it is important
to mention] that the history of holding jobs for long spans of time is some evidence
for good persistence and sustaining attention. Regarding [plaintiffs] ability to engage
in appropriate social interaction, he has some long-term friendships. He has limited
but some social contact. He does have significant temper problems and these seem
to be at a level such that he is susceptible to having incidents of loss of temper
towards strangers in public settings. There is significant interpersonal anxiety and
avoidance. This gentleman's historyofholdingjobs for long spans of time is a piece
of evidence in favor of his ability to get along with others.
(Tr. 675-77.)
On an accompanying Medical Source Statement, Dr. Trueblood checked boxes reflecting that
plaintiff was: not limited in his ability to make judgments on simple work-related decisions and to
understand, remember, and carry out simple instructions; mildly limited in his ability to interact
appropriately with co-workers; moderately limited in his ability to respond appropriately to usual
work situations, make judgments on complex work-related decisions, and understand, remember,
and carry out complex instructions; and markedly limited in his ability to interact appropriately with
the public and supervisors. 4 (Tr. 680-81.) In regard to the latter restriction, Dr. Trueblood explained
"[it is a] close call as to whether to rate interacting with the public and supervisors as marked or
moderate, but the combination of temper problems and anxiety seem to warrant [the] marked rating."

4

This form defined "moderate" as "more than a slight limitation in this area but the
individual is still able to function satisfactorily" and "marked" as less than "extreme" - i.e.
"[t]here is serious limitation in this area [and] a substantial loss in the ability to effectively
function." (Tr. 680.)
Page 14 - OPINION AND ORDER

(Tr. 681.)
The ALJ accepted the majority of Dr. Trueblood's opinion and therefore limited plaintiff to
work involving "only simple instructions that can be learned in 30 days or less." (Tr. 24, 30.)
However, on the narrow issue of the plaintiff's social functioning, the ALJ gave Dr. Trueblood's
assessment "limited weight" because: (1) his formulation of plaintiff's anxiety was "ill-defined"; (2)
plaintiff"did not allege the same socially based issues to Dr. Whitehead previously"; and (3) there
is "little" in the record to support such limitations, as plaintiff's own remarks indicate that "job
losses have been due to physical problems" and he "denied ever losing a job due to problems getting
along with others." (Tr. 30.)
Initially, an ALJ is not required to accept medical limitations plu·ased equivocally. Valentine
v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009). An ALJ may also discredit a
medical opinion that is "conclus01y, brief, and unsupported by the record as a whole [or] by objective
medical findings." Batson, 359 F.3d at 1195 (citation omitted). Moreover, an ALJ can satisfy the
"substantial evidence" requirement by "setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v.
Chafer, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).
Here, the ALJ did not err to the extent she afforded less weight to Dr. Trueblood's opinion.
As both the narrative portion of his assessment and his check-the-box explanation demonstrate, Dr.
Trueblood's discussions of plaintiff's social limitations were phrased in noncommital terms. He
recorded plaintiff's temper problems, which were not independently observed, and anxiety, but he
also noted plaintiff's history oflong-term friendships, limited but nonetheless existent social contact,
and ability to hold jobs for long periods of time with no interpersonal issues. (Tr. 671-77.) In other
Page 15 - OPINION AND ORDER

words, as Dr. Trueblood resolved on the check-the-box form, the extent of plaintiffs social
impairment was unclear and he gave plaintiff the benefit of the doubt due to plaintiffs self-repo1is.
(Tr. 681.) Accordingly, it was reasonable for the ALJ to construe Dr. Trueblood' s vaguely-defined
social restrictions as "not represent[ing] work-related limitations offunction that need to be reflected
in the RFC." Griffith v. Colvin, Case No. 3:13-CV-00585-HZ, 2014 WL 1303102, *5 n.3 (D. Or.
Mar. 30, 2014); see also Glosenger v. Comm 'r a/Soc. Sec. Admin., Case No. 3:12-CV-1774-ST,
2014 WL 1513995, *6 (D. Or. Apr. 16, 2014) (affirming the ALJ's rejection of functional
restrictions because the doctor used "equivocal language ('might do better' and 'would also likely
require')").
Further, an independent review of the record evinces that plaintiff has no significant issues
getting along with others. See, e.g., (Tr. 56, 77-78, 200, 248-50, 428-30, 527-30, 617-18, 643-46,
648-49, 652.) Namely, plaintiff did not disclose psychological symptoms at the hearing, despite
being provided an ample opp01iunity to do so, or in his August 2012 letter; in his January 2011 Adult
Function Repo1i, he expressly denied ever being "fired or laid off from a job because of problems
getting along with other people" and stated that he got along "okay" with "authority figures [such
as] bosses." (Tr. 49-87, 95, 200, 248-49.) Plaintiffs statements to Dr. Trueblood distinctly diverged
from those furnished to Dr. Whitehead in that he did not endorse having extreme anger and anxiety
problems, or a "ve1y hard time being out in public," to Dr. Whitehead. (Tr. 527-31, 671-74.) As
such, neither Dr. Whitehead nor the state agency consulting sources found restrictions in social
functioning. (Tr. 103, 115-16, 531.) In fact, as the ALJ noted, plaintiff was still receiving
unemployment benefits at the time of Dr. Whitehead's March 2011 assessment, meaning that he was
publicly holding himself out as capable of working. (Tr. 29, 429, 529); see also Ghanim v. Colvin,
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763 FJd 1154, 1165 (9th Cir. 2014) ("receipt of unemployment benefits does cast doubt on a claim
of disability") (citation omitted). Regardless, as Dr. Trueblood acknowledged, plaintiffs self-repmis
did not indicate any problems with authority figures and revealed that he is capable of engaging in
long-term romantic, platonic, and professional relationships. (Tr. 671-77 .) For example, he
recounted living a relatively harmoniously life with his wife, whom he had been married to for
several years, "visiting occasionally with a neighbor," and "having contact in person every two
weeks with one of his close friends." (Id.) He also told Dr. Trueblood that he has only been fired
twice, once for "goofing off" and the other time for physical reasons. (Tr. 673-74.) The foregoing
lends additional support to the ALJ' s finding that plaintiff was not markedly limited in his ability
to interact appropriately with supervisors and the public.
Even assuming, that the ALJ erred in rejecting Dr. Trueblood's social limitations, such an
error was harmless. See Stout v. Comm 'r, Soc. Sec. Admin., 454 FJd 1050, 1055 (9th Cir. 2006)
(mistakes that are "nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability
conclusion" are harmless). The representative occupations identified by the VE are all unskilled,
meaning that they "involve dealing primarily with objects, rather than with data or people." (Tr. 9091 ); SSR 85-15, available at 1985 WL 56857; 20 C.F.R. § 404.1568(a). As a result, in perfmming
these positions, plaintiff would not be required to come into contact with the public or to coordinate
closely with a supervisor. See McCown v. Colvin, Case No. 6: 13-CV-01716-AA, 2015 WL 106056,
*6 (D. Or. Jan. 6, 2015) (affirming the ALJ's decision under analogous circumstances).
In sum, the ALJ provided a detailed and thorough sunnnary of the record, and reasonably
found, based on this evidence, including plaintiffs own prior accounts, that there was no basis for
a social restriction in the RFC. (Tr. 21-30.) The ALJ's assessment of Dr. Trueblood's opinion is
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affirmed.
III.

RFC and Step Five Finding
Finally, plaintiff argues that the ALJ's RFC and step five finding are enoneous because they

did not account for all of the limitations set forth in his testimony and the opinion of Dr. Trueblood.
Although not elaborated upon in great detail or explicitly laid out as part of his RFC/step five
challenge, plaintiff also asserts that "[t]he ALJ did not properly consider the combined effect of[his]
multiple impairments, severe and non-severe."5 Pl.'s Opening Br. 6.
The RFC is the maximum a claimant can do despite his limitations. 20 CFR § 404.1545. In
determining the RFC, the ALJ must consider limitations imposed by all of a claimant's impairments,
even those that are not severe, and evaluate "all of the relevant medical and other evidence,"
including the claimant's testimony. SSR 96-8p, available at 1996 WL 374184. Only limitations
supported by substantial evidence must be incorporated into the RFC and, by extension, the
dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F3d 1157, 1163-65 (9th
Cir. 2001).
As addressed herein, the ALJ properly discredited plaintiff and Dr. Trueblood, and there is
no indication, outside of this evidence, that plaintiff suffered from functional limitations beyond
those outlined in the RFC during the relevant time period. In fact, no medical source opined that he
is disabled or otherwise unable to work. Furthermore, the record controverts plaintiffs assertion that
the ALJ failed to consider the combined effect of his mental and physical impainnents, both severe
and non-severe. (Tr. 21-30.) Therefore, plaintiffs arguments, which are contingent upon a finding

5

Plaintiffs reply brief implies that this argument is simply a different iteration of his
RFC and step five challenge. See, e.g., (Pl.'s Reply Br. 14.) Nevertheless, in order to provide
the most complete review of this appeal, the Court treats this issue separately.
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ofharmful error in regard to the aforementioned issues, are without merit. Bayliss, 427 F3d at 121718; Stubbs-Danielson v. Astrue, 539 F3d 1169, 1175-76 (9th Cir. 2008). The ALJ's RFC and step
five finding are upheld.

Conclusion
For the reasons stated above, the Commissioner's decision is AFFIRMED and this case is
DISMISSED.
IT IS SO ORDERED.
DATED this _ _ day of February 2016.

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JOBN V. ACOSTA
United. States Magistrate Judge
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