Mesecher v. Commissioner Social Security Administration

Filing 26

OPINION AND ORDER. The Commissioner's decision is AFFIRMED and this action is dismissed with prejudice. Signed on 11/10/2016 by Magistrate Judge John Jelderks. (jtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM E. MESECHER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
____________________________________
Kathryn Tassinari
Brent Wells
Harder Wells Baron & Manning, PC
474 Willamette Street, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff
Billy J. Williams, Acting U.S. Attorney
Janice Hebert, Asst. U.S. Attorney
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204
Sarah Moum
Special Asst. U.S. Attorney
Office of the General Counsel
OPINION AND ORDER – 1

) Civil No.: 6:14-cv-01578-JE
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) OPINION AND ORDER
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Social Security Administration
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant

JELDERKS, Magistrate Judge:
Plaintiff William Mesecher 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 Income Benefits (DIB) under the Social Security Act (the
Act). Plaintiff seeks an Order remanding the action to the Social Security Administration (the
Agency) for an award of benefits. In the alternative, Plaintiff seeks a remand for further
proceedings.
For the reasons set out below, the Commissioner’s decision is affirmed.
Procedural Background
Plaintiff filed an application for a period of disability and for DIB on September 20,
2010, alleging he had been disabled since December 7, 2007.
After his claims were denied initially and upon reconsideration, Plaintiff timely requested
an administrative hearing.
On March 20, 2013, a hearing was held before Administrative Law Judge (ALJ) Marilyn
Mauer. Plaintiff and Kay Wise, a Vocational Expert (VE), testified at the hearing. Plaintiff was
represented by counsel.
In a decision dated June 17, 2013, ALJ Maurer found that Plaintiff was not disabled
within the meaning of the Act.

OPINION AND ORDER – 2

On August 6, 2014, the Appeals Council denied Plaintiff’s request for review, rendering
the ALJ’s decision the final decision of the Commissioner. In the present action, Plaintiff
challenges that decision.
Background
Plaintiff was born in 1970 and was 43 years old at the time of the hearing in front of the
ALJ. He graduated from high school and attended culinary school. He has past relevant work as
a cruise ship cook and restaurant cook. Tr. 27.
Disability Analysis
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, 416.920. Below is a summary
of the five steps, which also are 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 (SGA). A claimant 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 such an impairment is not disabled. If the claimant
has a severe impairment, 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)

OPINION AND ORDER – 3

regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has such an impairment
is disabled. If the claimant’s impairment does not meet or equal an impairment listed in the
regulations, 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
relevant work he or she has done in the past. A claimant who can perform past relevant work is
not disabled. If the claimant demonstrates he or she cannot do work performed in the past, the
Commissioner’s evaluation of the 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 that
the claimant is able to do other work, the Commissioner must show that a significant number of
jobs exist in the national economy that the claimant can 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
can do, the claimant is not disabled. If the Commissioner does not meet this burden, the claimant
is disabled. 20 C.F.R. § 404.1520(g)(1).
At Steps One through Four, 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 that the claimant can perform
jobs that exist in significant numbers in the national economy. Id.
Medical Record and Testimony
The court has carefully reviewed the medical record and testimony and the parties are

OPINION AND ORDER – 4

familiar with both. Accordingly, the details of that evidence will be set out below only as they
are relevant to the issues before the court.
ALJ’s Decision
As an initial matter, the ALJ found that Plaintiff met the insured status requirements of
the Act through December 31, 2012.
At the first step of her disability analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity from the date of his alleged onset of disability on December 7, 2007
through his date last insured.
At the second step, the ALJ found that, through the date last insured, Plaintiff had the
following severe impairments: status-post crush injuries to left arm with open reduction internal
fixation (ORIF); status-post crush injury to right leg with resulting leg length discrepancy;
cognitive disorder status-post closed head injury; bilateral trochanteric bursitis; insulin dependent
diabetes mellitus; bilateral hearing loss corrected with hearing aids; mild lumbar degenerative
disc disease; and generalized anxiety disorder. Tr. 20.
At the third step, the ALJ found that, through the date last insured, Plaintiff did not have
an impairment or combination of impairments that met or equaled a presumptively disabling
impairment set out in the Listings, 20 C.F.R. Part 404, Subpart P, App. 1.
The ALJ next assessed Plaintiff’s residual functional capacity. She found that Plaintiff
retained the capacity to perform less than the full range of light work in that
[h]e could lift 20 pounds occasionally and 10 pounds frequently using both hands
together. He could lift no more than 5 pounds using the left arm by itself. He
could sit, stand, and walk for 6 hours each in an 8 hour workday for a combined
total of 8 hours. He required the option to sit or stand at will while still
performing essential tasks. He could never crawl or climb ladders, ropes, or
scaffolds. He could occasionally stoop, crouch, kneel, and climb ramps and stairs.
Mr. Mesecher was able to occasionally reach overhead with his left arm
occasionally (sic). He was able to handle and finger with his dominant left hand
OPINION AND ORDER – 5

frequently, but not constantly. He was able to understand and carry out simple
instructions in a predictable environment with clear expectations. He could not
work in [a] position requiring public contact or teamwork assignments.
Tr. 23. In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s statements concerning the
intensity, persistence and limiting effects of his symptoms were less than fully credible.
Based upon testimony from the VE, at the fourth step of her disability analysis the ALJ
found that Plaintiff was unable to perform any of his past relevant work.
At the fifth step of her disability analysis, the ALJ found that Plaintiff could perform
other jobs that existed in substantial numbers in the national economy. Based upon the testimony
of the VE, she cited quality control/inspector of packaging, monitor of loss prevention, and label
coding and marking as examples of such work. The ALJ also noted that the VE testified that if
Plaintiff were limited to only the occasional use of his dominant left hand for handling and
fingering, he would be capable of performing the jobs of quality control/inspector of packaging,
monitor of loss prevention, and inspection of small product assembly. Having concluded that
Plaintiff could perform this work, the ALJ found that Plaintiff was not disabled within the
meaning of the Act between the date of his alleged onset of disability and his date last insured.
Standard of Review
A claimant is disabled if he or she is unable “to engage in 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),

OPINION AND ORDER – 6

and bears the burden of establishing that a claimant can perform “other work” at Step Five of the
disability analysis process. Tackett, 180 F.3d at 1098.
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, 772 (9th Cir.
1986). The Commissioner’s decision must be upheld, however, even if “the evidence is
susceptible to more than one rational interpretation.” Andrews, 53 F.3d at 1039-40.
Discussion
Plaintiff contends that the ALJ improperly rejected his testimony, failed to give legally
sufficient reasons for discounting the opinion of an examining physician, improperly rejected lay
witness evidence and failed to include all of his limitations in the RFC and in the vocational
hypothetical posed to the VE.
I. 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 allegations were not fully credible.
A. Standards
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 can reject the claimant’s testimony about the

OPINION AND ORDER – 7

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted).
Pursuant to Social Security Ruling (“SSR”) 16-3p, available at 2016 WL 1119029 (Mar.
16, 2016) (superseding SSR 96-7p), the ALJ is no longer tasked with making an overarching
credibility determination, and must assess instead whether a claimant’s subjective symptom
statements are consistent with the record as a whole. The ALJ’s decision in this case was issued
well before SSR 16-3p became effective and there is an absence of binding precedent
interpreting this new ruling or addressing whether it applies retroactively. Compare Ashlock v.
Colvin, 2016 WL 3438490, *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to
an ALJ decision issued prior to the effective date), with Lockwood v. Colvin, 2016 WL
2622325, *3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p retrospectively to a 2013 ALJ
decision).
However, SSR 16-3p is a clarification of sub-regulatory policy, rather than a new policy.
SSR 16-3p, at *1; also compare SSR 16-3p with SSR 96-7p (both policies set forth a two-step
process to be followed in evaluating a claimant's testimony and contain the same factors to be
considered in determining the intensity and persistence of a claimant's symptoms). In Andre v.
Colvin, 6:14-cv-02009-JE (D.Or. Oct. 13, 2016) I recently concluded that, for this reason,
retroactive application of the new SSR is appropriate. 1 See Smolen, 80 F.3d at1281 n.1 (“We
need not decide the issue of retroactivity [as to revised regulations] because the new regulations
are consistent with the Commissioner's prior policies and with prior Ninth Circuit case law”)
(citing Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993)) (because regulations were intended to
1

Other recent District of Oregon SSA dispositions have also incorporated SSR 16-3p into the analytical framework
for evaluating ALJ findings regarding subjective symptom testimony. See, e.g., Mesmer v. Colvin, No. 6:15-cv00947-MC, available at 2016 WL 5339728 (D.Or. Sept. 23, 2016); Burnstad v. Colvin, No. 6:15-cv-00921-SI,
available at 2016 WL 4134535 (D.Or. Aug. 2, 2016).

OPINION AND ORDER – 8

incorporate prior Social Security Administration policy, they should be applied retroactively).
The new SSR clarifies that “subjective symptom evaluation is not an examination of an
individual’s character.” Id. In other words, “[t]he focus of the evaluation of an individual’s
symptoms should not be to determine whether he or she is a truthful person.” Id. at *10. Rather,
“[a]djudicators must limit their evaluation to the individual’s statements about his or her
symptoms and the evidence in the record that is relevant to the individual’s impairments.” Id.
Thus, “it is not sufficient for our adjudicators to make a single, conclusory statement that ‘the
individual’s statements about his or her symptoms have been considered . . . .’” Id. at *9. Instead,
the finding “must contain specific reasons for the weight given to the individual’s symptoms, be
consistent with and supported by the evidence, and be clearly articulated so the individual and
any subsequent review can assess how the adjudicator evaluated the individual’s symptoms.” Id.
In evaluating a claimant’s subjective symptom testimony, an ALJ must consider the
entire record and consider 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.” 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 not correct. Carmickle v. Commissioner of Social Security, 533 F.3d 1155, 1162
(9th Cir. 2008).
B. Analysis
In his application for disability benefits, Plaintiff reported that in his previous four jobs
his speed in cutting and prepping foods had slowed and that he had been “let go” from two jobs

OPINION AND ORDER – 9

because of his slowness. He reported anxiety about whether he would be fired because of his
lack of speed and anger at himself for not being able to complete tasks as he was “supposed to.”
He wrote that he was fired from a job for his depression and anxiety. He reported that he
experienced fatigue, could only walk a couple of blocks, and could only lift 10 pounds with his
left arm. His impairments limited his ability to lift, squat, bend, stand, reach, walk, sit, kneel,
hear, climb stairs, see, remember things, complete tasks, concentrate, understand, follow
instructions, use his hands, and get along with others. He reported he “clashed with a couple of
bosses” because of their “lack of discipline” in responding to hostile work environments and the
bad performance of other employees but that he did not otherwise have a problem with authority
figures. Tr. 168-175.
At the hearing, Plaintiff testified that the prescription medications he takes are generally
effective, that he could comfortably lift 10 to 20 pounds off and on over the course of the day, he
can sit comfortably in a chair for no more than 45 minutes, can stand in place no more than an
hour before he has to sit down and can usually walk two blocks or 20 minutes. Tr. 44. He
testified that he was left-handed and had difficulty gripping, opening, moving or holding things
with his left hand. Tr. 45. He lays down at least an hour a day due to headaches and “just feeling
like junk.” Tr. 45. He had been experiencing the headaches over the last year and a half and
believed them to be migraines because they lasted most of the day. He took only acetaminophen
to relieve the headache pain, which was what he had been given by the VA.2 He testified that he
had pain in his legs, hips and left arm; and was experiencing “a little bit” of depression, which
included “anxiety and just feeling down.” Tr. 46. Plaintiff testified that he lived alone, saw
friends and family at least once a week, went to church and played cards, visited neighbors,
2

Plaintiff received his medical treatment during the relevant period through the U.S. Veterans Affairs medical
system.

OPINION AND ORDER – 10

could take public transportation, watched television, read, went shopping, and spent three or four
hours a day on the computer “surfing the internet.” Tr. 48-49.
The ALJ offered several reasons in support of her finding that Plaintiff’s statements
regarding the intensity, persistence and limiting effects of his symptoms were inconsistent with
the record as a whole.
First, the ALJ found that Plaintiff’s activities of daily living were inconsistent with
complete disability. An ALJ may support discounting a claimant’s symptom allegations by
identifying inconsistencies between the claimant's complaints and the claimant's activities of
daily living. Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir.2002). Here, the ALJ noted that
Plaintiff lived independently, was able to use public transportation, saw friends, went to church,
read, played card and board games, and spent time on the computer. The ALJ also noted that at
the hearing Plaintiff reported only a “little bit” of depression. Tr. 26. Plaintiff argues that his
social activities depend upon his mental state. Pl. Brief. at 13. However, the record shows that
Plaintiff considered himself a “loner” and enjoyed the independence brought by being “fairly
solitary.” Tr. 745.
Even if Plaintiff’s activities do not rise to the level of transferable work skills, they are
inconsistent with allegations of completely debilitating impairment. Molina v. Astrue, 674 F.3d
1104, 1113 (9th Cir.2012) (ALJ may discredit a claimant's testimony when he or she reports
activities of daily living that “indicat[e] capacities that are transferable to a work setting” or
“contradict claims of a totally debilitating impairment”) (citations omitted). Accordingly,
inconsistencies between Plaintiff's activities of daily living and his complaints provided a clear
and convincing reason to reject Plaintiff’s testimony regarding the totally debilitating effects of
his mental and physical limitations.

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The ALJ also supported her evaluation of Plaintiff’s testimony by noting inconsistencies
in Plaintiff’s reports of problems interacting with co-workers. The consistency of a claimant’s
own statements is a factor the ALJ properly considered in determining the effects of symptoms
on the ability to perform work-related activities. SSR 16-3p available at 2016 WL 1119029 at *8.
The ALJ is to compare “statements an individual makes in connection with the individual’s
claim for disability benefits with any existing statements the individual made under other
circumstances.” Id.
At the hearing, Plaintiff testified that he lost one job due to anger issues with a fellow
employee. Tr. 41. He testified that he did not get along well with “know it alls” but that there
had been not been any other instances where anger issues had affected his employment. Tr. 5758. The ALJ contrasted this testimony with reports Plaintiff had made indicating that he had been
let go from five jobs and quit two others due to interpersonal issues, Tr. 241; had often been
terminated for being slow or for personality clashes, Tr. 1054; and “citing a list of restaurants
and positions from which he had been let go for two general reasons, being slow and also having
difficulty coping with personality problems.” Tr. 1056. These inconsistencies are a sufficient
basis to support the ALJ's findings regarding Plaintiff’s subjective symptom testimony. See,
Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)(inconsistencies in claimant's testimony can
serve as clear and convincing reason for discrediting it).
Plaintiff also argues that the ALJ did not address his testimony that he had difficulty
“hanging on to things” and failed to include any limitation in grasping in her hypothetical to the
VE or in the RFC determination. Although the ALJ must identify what testimony is inconsistent
with the other evidence of record if that testimony is to be discounted, here, the ALJ incorporated
into both the hypothetical to the VE and the RFC a limitation on “handling and fingering.” I

OPINION AND ORDER – 12

agree with the Commissioner that the hearing transcript indicates that the ALJ intended
“handling and fingering” – which are the terms used in the Dictionary of Occupational Titles
(DOT) – to account for limitations in “grasping.” Tr. 60. See also, SSR 85-15 at *7 (defining
handling as “seizing, holding, grasping, turning or otherwise working primarily with the whole
hand or hands)(emphasis added). Accordingly, I conclude that Plaintiff’s argument that the ALJ
erred in her assessment of his subjective symptom testimony by omitting a discussion of
“grasping” is without merit.
Based upon a careful review of the ALJ's decision and the record, I conclude that the ALJ
provided clear and convincing reasons supporting her decision to not fully credit Plaintiff’s
subjective symptom testimony. However, the ALJ also provided other reasons that were not
legally sufficient. First, the ALJ noted that Plaintiff’s 1999 crash injuries and closed head injury
had been longstanding, had not previously prevented work and that there was no evidence of
“drastic worsening” such that the ability to work was currently prevented. Tr. 26. The record
shows that Plaintiff has not worked since his alleged onset date in 2007. Tr. 40. Although
Plaintiff worked as a cook from 2000 until 2007 and held one position for almost four years, the
record also reflects that none of his last three jobs lasted more than six months. Tr. 160. The ALJ
herself determined that Plaintiff can no longer perform his past relevant work.
A claimant's previous ability to work despite an impairment is certainly relevant in
assessing the credibility of a claimant alleging that the impairment is subsequently disabling. See
Gregory v. Bowen, 844 F.2d 664, 666–67 (9th Cir.1988). However, a work attempt that fails
because a claimant's impairments preclude satisfactory performance cannot support an adverse
finding as to Plaintiff’s subjective symptom testimony. E.g., Lingenfelter v. Astrue, 504 F.3d
1028, 1038 (9th Cir.2007).

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The record reflects that Plaintiff has not worked since his alleged onset date, that his
ability to work after the date of his motor vehicle crash became increasingly unsuccessful and
that he ceased work altogether prior to his alleged onset date. Under the circumstances, the fact
that Plaintiff was able to work after the 1999 crash was not a clear and convincing reason for the
ALJ to discount his subjective symptom testimony.
The second insufficient reason is the ALJ’s assertion that Plaintiff ceased vocational
services with the Oregon Office of Vocational Rehabilitation Services (OVRS) because he was
waiting for the outcome of his disability claim and not due to an inability to complete the
assessment or participate in placement. Tr. 26. However, the record reflects that Plaintiff
reported to OVRS that he was experiencing ongoing pain, and that “due to his pain and other
physical limitations, he does not feel he can commit to working at his time.” Tr. 671. This
evidence was not inconsistent with Plaintiff’s allegations and was not a valid reason for the ALJ
to discount his testimony.
The ALJ also noted that Plaintiff had a 60% service connected disability for limitations of
his ankle, knee, and lower leg but that the VA had not declared him unemployable. Considering
that the 60% service connected disability comment was not a notice of disability rating from the
VA but appeared in a chart note that did not address other of Plaintiff’s impairments; and
because the ALJ failed to articulate the aspects of Plaintiff’s testimony that were inconsistent
with this chart note, this evidence does not provide a clear and convincing reason for discounting
Plaintiff’s testimony. See SSR 16-3p (finding must be clearly articulated so as to allow
assessment of how the adjudicator evaluated the individual’s symptoms).
Nonetheless, the ALJ's inclusion of insufficient reasons does not invalidate her finding
that Plaintiff’s subjective symptom testimony should be discounted. Where, as here, substantial

OPINION AND ORDER – 14

evidence supports the ALJ's determination despite the inadequacy of some of an ALJ's reasons,
that determination will be upheld. See Carmickle 533 F.3d at 1162.
II. Evaluating Medical Opinion
As noted above, Plaintiff contends that the ALJ failed to provide legally sufficient
reasons for rejecting the opinion of examining psychologist, Dr. Leia Hughey.
Dr. Hughey examined Plaintiff on February 25, 2013. She completed a Psychological
Evaluation Report and a Medical Source Statement of Ability to Do Work Related Activities
(Mental). Tr. 1054-1062. Dr. Hughey opined that Plaintiff had moderate to marked impairment
in his ability to interact appropriately with supervisors or coworkers, mild impairment in his
ability to interact appropriately with the public and mild to moderate impairment in his ability to
respond appropriately to usual work situations and to changes in a routine work setting. Tr. 1061.
She wrote “Mr. Mesecher is not an outgoing, warm or friendly person. He reports having lost
jobs due to conflict with coworkers.” Id. She opined that he had no limitations in understanding
and remembering simple instructions but marked limitations in carrying out complex
instructions. Dr. Hughey diagnosed Plaintiff with cognitive disorder, NOS and anxiety disorder.
Tr. 1058.
The ALJ accepted Dr. Hughey’s diagnoses of cognitive disorder and anxiety disorder as
consistent with the medical evidence of record. However, she gave Dr. Hughey’s opinions
regarding Plaintiff’s limitations in social functioning only “some weight.” The ALJ discounted
Dr. Hughey’s opinion because she was “not a neutral source” and because the social limitations
she assessed were based on Plaintiff’s self-reports of losing jobs due to conflicts, which the ALJ
found to be inconsistent with Plaintiff’s testimony at the hearing.

OPINION AND ORDER – 15

A. 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 opinion of an examining physician is entitled to greater weight than the opinion of a
non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990). An ALJ must
provide clear and convincing reasons for rejecting the uncontradicted opinions of an examining
physician, id., and must provide specific and legitimate reasons for rejecting opinions of an
examining physician that are contradicted by another physician. Andrews, 53 F.3d at 1043. A
non-examining physician's opinion “cannot by itself constitute substantial evidence that justifies
rejection of the opinion of either an examining physician or a treating physician.” Lester v.
Chater, 81 F.3d 821, 830–31 (9th Cir.1995).
B. Analysis
As an initial matter, Plaintiff argues that Dr. Hughey’s opinion was uncontradicted
because the ALJ erred in relying on the opinions of examining psychologist Dr. Lahman and the
state agency reviewing psychologist, Dr. Lundblad. He asserts that Dr. Lahman’s opinion was
based only on a brief assessment and that Dr. Lundblad was unaware of Dr. Hughey’s “extensive
testing.” Pl. Brief at 18.
Plaintiff’s arguments are unpersuasive. In formulating his evaluation, Dr. Lahman
performed an interview, mental status examination and records review. He opined that Plaintiff’s
interaction with peers should be brief and routine and he should have minimal public interaction.

OPINION AND ORDER – 16

Tr. 807. His report reflects more than a “brief assessment.” Tr. 802-807 and the ALJ was entitled
to rely on his opinion. Furthermore, Drs. Lahman and Lundblad were necessarily unaware of Dr.
Hughey’s testing because her report was not obtained by counsel until almost two years after
they made their evaluations. Tr. 87, 802, 1054. Plaintiff’s reliance on Beecher v. Heckler, 756
F2d. 693, 694-95 (9th Cir. 1985) is inapposite. In that case, the court concluded that a psychiatric
opinion submitted by a psychiatrist/neurologist was not uncontradicted by the record where all of
the other medical opinions submitted were provided by orthopedic surgeons or chiropractors and
were based only on a consideration of the claimant’s physical impairments. Id. Here, in contrast,
Drs. Lahman and Lundblad, both psychologists, provided opinions based on evaluations of
Plaintiff’s mental capabilities. The fact that their opinions were provided prior to Dr. Hughey’s
evaluation does not negate their contradictory nature.
Because Dr. Hughey’s opinion was contradicted, the ALJ was required only to provide
specific and legitimate reasons to reject the marked social limitations she assessed. The ALJ met
this standard.
First, the ALJ gave Dr. Hughey’s opinion only “some weight” because she concluded she
was not a neutral source since her examination of Plaintiff had been arranged at the request of
Plaintiff’s attorney. Plaintiff correctly asserts that the mere fact that a medical report is provided
at the request of counsel is not a legitimate basis for rejecting that report. Reddick v. Chater, 157
F.3d 715, 726 (9th Cir.1998). However, this is true only “in the absence of other evidence to
undermine the credibility” of the report and “[e]vidence of the circumstances under which the
report was obtained and its consistency with other records, reports, or findings could ... form a
legitimate basis for evaluating the reliability of the report.” Id.

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Here, the ALJ discounted Dr. Hughey’s opinion regarding Plaintiff’s social functioning
for the additional reason that it was based on Plaintiff’s reports of losing previous jobs due to
social conflicts. As discussed above, the ALJ reasonably concluded that Plaintiff’s testimony
regarding social problems in his previous jobs was inconsistent with reports made to Dr. Hughey
and other medical providers. This was a specific and legitimate reason for rejecting Dr. Hughey’s
opinion that Plaintiff had moderate to marked limitations in interacting appropriately with
supervisors and co-workers. Because the ALJ provided at least one specific and legitimate reason
for discounting Dr. Hughey’s opinion, also including as a reason the fact that the opinion was
obtained by Plaintiff’s attorney was, at most, harmless error. Stout v. Comm'r, Soc. Sec. Admin.,
454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant mistakes harmless).
III. Lay Witness Evidence
Plaintiff’s sister, Dianna Barnett, completed a Third Party Function Report. She wrote
that Plaintiff becomes irritable “very quickly,” was “moody” and at times could not adjust to
changes in routine. Tr. 182. Plaintiff contends that although the ALJ stated that she found Ms.
Barnett’s statements generally credible, she failed to consider statements regarding Plaintiff’s
“moodiness” and quick irritability and failed to assess any resulting limitations in his ability to
respond appropriately to supervision. Plaintiff asserts that Ms. Barnett’s statements regarding his
social functioning should be fully credited. I disagree.
Ms. Barnett did not make any observations regarding Plaintiff’s interactions with
supervisors. Furthermore, the ALJ accounted for Plaintiff’s limitations in social functioning in
the RFC by limiting Plaintiff to “a predictable environment with clear expectations” and without
public contact or teamwork assignments. Tr. 23. Although Plaintiff argues that with his
moodiness and quick irritability “there is no reason to think that [he] would not be irritable with

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supervisors,” the ALJ’s interpretation of the evidence was a rational one and will not be
overturned here. Tommasetti, 533 F.3d at 1038 (ALJ's findings must be upheld if they are
supported by reasonable inferences drawn from the record).
IV. The ALJ’s Step Five Analysis
Plaintiff contends that the ALJ did not meet the burden of establishing, at step five of the
disability analysis that he could perform other jobs that existed in substantial numbers in the
national economy because the vocational hypothetical did not accurately set out all of his
impairments. Plaintiff reiterates his arguments regarding the ALJ’s assessment of his testimony
and Dr. Hughey’s opinion. He also asserts that the ALJ’s findings that he was moderately
deficient in concentration, persistence and pace were inadequately accounted for in the RFC
limitation to performing simple tasks.
A. Plaintiff’s Limitations in Concentration, Persistence and Pace
An ALJ's residual functional capacity (RFC) assessment is separate and distinct from the
special technique analysis applied at steps two and three. See 20 C.F.R. §§ 404.1520a(b)(1),
404.1546(c), 416.920a(b)(1), 416.946(c); SSR 96–8p. As the ALJ noted in her decision, the
limitations identified in the “B” criteria “are not a residual functional capacity assessment but are
used to rate the severity of mental impairments at step 2 and 3 of the sequential evaluation
criteria.” Tr. 22. See, e.g., Dodds v. Astrue, CV No. 3:09–cv00332–AC, slip op. at 6 (D.Or. Dec.
28, 2010), available at 2010 WL 5662968 at *3 (B criteria used to determine whether impairment
is severe enough to require RFC assessment, not to determine Claimant's RFC). Therefore, the
ALJ did not err in omitting from the RFC assessment the specific finding set out at steps two and
three.

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Furthermore, the ALJ’s RFC set out that Plaintiff could “understand and carry out simple
instructions in a predictable environment with clear expectations.” Tr. 23. This limitation
adequately accounted for the deficiencies in concentration, persistence and pace that the ALJ
assessed at steps 2 and three. See Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1173–74 (9th
Cir.2008) (“an ALJ's assessment of a claimant adequately captures restrictions related to
concentration, persistence, or pace where the assessment is consistent with restrictions identified
in the medical testimony”) (citations omitted); Bickford v. Astrue, 2010 WL 4220531, *11
(D.Or. Oct. 19, 2010) (“so long as the ALJ's decision is supported by medical evidence, a
limitation to simple, repetitive work can account for moderate difficulties in concentration,
persistence or pace”) (citations omitted); Gillock v. Astrue, 2011 WL 2011 WL 4916499, *5
(D.Or. June 29), adopted by 2011 WL 4935996 (D.Or. Oct. 17, 2011) (same). In the present
action, a careful review of the medical evidence and the ALJ's decision supports the conclusion
that the ALJ's RFC adequately accounted for Plaintiff's mental limitations.
B. RFC and Vocational Hypothetical
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. If the ALJ has applied the proper legal
standard and the decision is supported by substantial evidence, the RFC assessment must be
affirmed. E.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.2005).

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A careful review of the ALJ's decision supports the conclusion that the ALJ did not err in
concluding, at step five of her analysis, that Plaintiff could perform jobs that existed in
substantial numbers in the national economy. As discussed above, the ALJ provided sufficient
reasons for discounting Plaintiff’s testimony and the statements of the lay witness. The ALJ
thoroughly summarized and evaluated relevant medical evidence in the record, and her RFC
assessment was supported by substantial evidence cited in her decision. In determining that
Plaintiff could perform jobs that existed in substantial numbers in the national economy, the ALJ
relied on the VE's response to a vocational hypothetical that included all of the limitations that
the ALJ found were credible and supported by substantial evidence in the record. That reliance
was proper. E.g., Id. at 1217–18.
Conclusion
For the reasons set forth above, the Commissioner’s decision is AFFIRMED and this
action is dismissed with prejudice.
DATED this 10th day of November, 2016.

/s/ John Jelderks
John Jelderks
U.S. Magistrate Judge

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