Meza v. Commissioner Social Security Administration

Filing 19

Opinion and Order. Signed on 3/8/2017 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Case No. 6:15-cv-02181-MA

TROY L. MEZA,
Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
RICHARD F. McGINTY
P.O. Box 12806
Salem, OR 97309
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
LARS J. NELSON
Special Assistant United States Attorneys
Office of the General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900, MIS 221A
Seattle, WA 98104-7075
Attorneys for Defendant

1 - OPINION AND ORDER

OPINION AND ORDER

MARSH, Judge
Plaintiff Troy L. Meza seeks judicial review of the final decision of the Commissioner of
Social Security denying his application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403, and application for
Supplemental Security Income ("SSI") disability benefits under Title XVI ofthe Social Security Act,
42 U.S.C. §§ 138 l-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). For the reasons that follow, I affirm the Commissioner's decision.

FACTUAL AND PROCEDURAL BACKGROUND
On November 12, 2009, Plaintiffprotectively filed for SSI disability benefits. On November
16, 2009, Plaintiffprotectively filed for DIB benefits. In both applications Plaintiff alleged disability
beginning May 18, 2001. Plaintiffs claims were denied initially and upon reconsideration. Plaintiff
filed a request for a hearing before an administrative law judge ("ALJ"). Plaintiff received an
unfavorable decision from ALJ Richard Say on November 4, 2011. Plaintiff submitted new evidence
to the Appeals Council, but the Appeals Council denied Plaintiffs request for review. Plaintiff
appealed to the District Court and the case was remanded to consider the new evidence, reconsider
Plaintiffs RFC, and reconsider the hypothetical posed to the VE.
On remand, ALJ Dan R. Hyatt held a hearing on October 1, 2014. After the hearing, a
Cooperative Disability Investigation Unit ("CDIU") fraud investigation was performed. Plaintiffs
case was then assigned to ALJ Steve Lynch due to ALJ Hyatt's retirement. ALJ Lynch conducted
a hearing on May 4, 2015 and ordered a consultative examination. Tr. 280, 519, 540. On July 30,
2015, ALJ Lynch conducted a supplemental hearing at which Plaintiff appeared with his attorney
and testified. Special Agent Steve Armbruster with CDIU, David Davis, Plaintiffs parole officer,

2 - OPINION AND ORDER

and Paul MotTison, a Vocational Expeti, also testified at the July 30, 2015 hearing. On August 28,
2015, ALJ Lynch issued an unfavorable decision. Tr. 258. The Appeals Council denied Plaintiffs
request for review, and therefore, the ALJ' s August 2015 decision became the final decision of the
Commissioner for purposes of review.
Plaintiff was born on May 16, 197 5, and was 26 years old on the alleged onset of disability
date. Plaintiff completed high school and has worked at various jobs, but his earnings did not rise
to the level of substantial gainful activity.
THE ALJ'S DISABILITY ANALYSIS

The Commissioner has established a five-step sequential process for detennining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. Each step
is potentially dispositive. The claimant bears the burden of proof at steps one through four. See

Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the
claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153,
1161 (9th Cir. 2012).
The ALJ found that Plaintiffmet the insured status requirements through December 31, 2005.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since his
alleged onset of disability. At step two, the ALJ found that Plaintiff had the following severe
impairments: learning disorder and attention deficit hyperactivity disorder ("ADHD"). At step
three, the ALJ found that Plaintiffs impaitments, or combination of impaitments, did not meet or
medically equal a listed impaitment.

3 - OPINION AND ORDER

The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform a full
range of work at all exe1iional levels, but with the following nonexertional limitations: Plaintiff has
limited reading, writing, and math skills; he is limited to unskilled work and routine tasks involving
superficial interaction with the public and co-workers but no close cooperation or coordination; and
he should not perform fast-paced work.
At step four, the ALJ found that Plaintiff has no past relevant work. At step five, the ALJ
found that considering Plaintiffs age, education, work experience, and residual functional capacity,
jobs exist in significant numbers in the national economy that Plaintiff can perform, such as cleaner,
janitor, and scrap so1ier. Accordingly, the ALJ concluded that Plaintiff has not been under a
disability under the Social Security Act from May 18, 2001 through the date of the decision.

ISSUES ON REVIEW
On appeal to this comt, Plaintiff contends the following e!Tors were committed: (1) the ALJ
took actions beyond the scope of Judge Mosman' s remand order; and (2) the RFC fails to encompass
all of his functional limitations.

The Commissioner responds that the ALJ did not err, or

alternatively, that Plaintiff has not demonstrated harmful error.

STANDARD OF REVIEW
The District Comt must affom the Commissioner's decision ifthe Commissioner applied
proper legal standards and the findings are suppo1ted by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is
more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to suppo1t a conclusion." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The comt must weigh all the evidence, whether it supports or

4 - OPINION AND ORDER

detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);

kfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v.

Comm 'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its
judgmentforthatofthe Commissioner." Edlundv. kfassanari, 253F.3d1152, 1156 (9th Cir. 2001);

Garrison, 759 F.3d at 1010.
DISCUSSION

I.

The ALJs Did Not Violate the Law of the Case or Rule of Mandate

Plaintiff alleges that the ALJ took three actions that fell outside the scope of the remand
order: (1) ALJ Hyatt ordered the CDIU report; (2) ALJ Lynch admitted and considered the CDIU
rep01i and consultative examination perfo1med by Paul S. Stoltzfus, Psy.D.; and (3) the ALJ found
Plaintiffs ADHD and learning disorder severe impairments at step two. Pl. Br. at 7-8, ECFNo. 14.
Plaintiff contends the ALJ' s actions in obtaining new evidence and making new findings violate the
rule of mandate and law of the case doctrines.
In support of his applications for SSI and DIB, Plaintiff did not submit any medical evidence
from his treating providers. 1 Tr. 17. Instead, Plaintiff submitted a neuropsychological evaluation
conducted by one-time examining physician Paul E. Guastadisegni, Ph.D., dated September 15,
2009. Tr. 200-16. Dr. Guastadisegni diagnosed Plaintiff with cognitive disorder not otherwise
1

There is evidence in the record that Plaintiff attends weekly sex offender treatment
therapy sessions. Tr. 200, 239. However, Plaintiffs therapy records were not made pmi of the
administrative record. Tr. 239. Additionally, there is reference to treating providers Hung Tran,
M.D., and Anna Techentin, M.D., however, no records from either provider are included in the
record before me. Tr. 201, 532.
5 - OPINION AND ORDER

specified, depression not otherwise specified, anxiety disorder not otherwise specified, ADHD
(combined type) and personality disorder not otherwise specified with Cluster B traits. Tr. 216.
Notably, Dr. Guastadisegni opined that Plaintiff required a "structured environment that has clear
directions and allows him to process and move at his own pace." Tr. 213. However, ALJ Say
discounted much of Dr. Guastadisegni' s opinion and found that Plaintiff could perform a full range
of work at all exertional levels with some limitations, and therefore determined that Plaintiff was not
disabled. Tr. 16.
After ALJ Say's unfavorable decision, Plaintiff was referred by his attorney for a
neuropsychological evaluation performed by David M. Freed, Ph.D., dated April 4, 2012. Tr. 245.
Plaintiff submitted Dr. Freed's 2012 evaluation to the Appeals Council. Tr. 4-5. That evaluation
was made part of the administrative record, but the Appeals Council declined Plaintiffs request for
review.2 Tr. 1-6.
On appeal to the District Comi, the Honorable Michael W. Mosman remanded the case for
the ALJ to consider Dr. Freed's 2012 neuropsychological evaluation. Tr. 355. Judge Mosman
stated:
Now, I'm not suggesting that therefore we know exactly what to do with Dr.
Freed's evaluation and that it should be built into the RFC. I'm simply noting that
I do find now that this new evidence creates a problem for which remand is
appropriate.
So I'm ordering remand to evaluate this new evidence. It's kind of an
unf01iunate system where it happens this way, but there we are. And specifically to
2

It appears that Plaintiff was examined by David M. Freed, Ph.D. on May 18, 2011 and
June 1, 2011, several months prior to ALJ Say's unfavorable opinion. Dr. Freed prepared an
evaluation dated June 9, 2011. Tr. 532. Plaintiff does not offer an explanation as to why Dr.
Freed's 2011 evaluation was not provided to either ALJ Say or the Appeals Council. Tr. 4-5,
245.

6 - OPINION AND ORDER

detennine if anything in Dr. Freed's post-hearing evaluation, including impulse
control, in light of all the other evidence in the case, merits amending the RFC and
therefore amending the hypothetical to the VE. That's the scope of the order.
Tr. 355. The Appeals Council subsequently vacated ALJ Say's 2011 decision and remanded the case
to anALJ to "evaluate the new evidence ... from David M. Freed, Ph.D.," and ordered that the ALJ
"offer the claimant the opportunity for a hearing and address the additional evidence submitted, take
any further action needed to complete the administrative record and issue a new decision." Tr. 366.
On remand, ALJ Hyatt conducted a hearing on October I, 2014. Tr. 311. On December 2,
2014, the Salem disability office received an allegation that Plaintiff was attempting to obtain
disability benefits fraudulently. Tr. 525. The fraud allegation was refel1'ed to the CDIU, who
undertook an investigation and generated a report dated Februmy 5, 2015. Tr. 258, 525-531. ALJ
Hyatt retired before he issued a decision and the case was refetl'ed to ALJ Lynch for resolution. Tr.
280.
ALJ Lynch conducted a hem'ing on May 4, 2015, at which he observed that Plaintiffs SSI
claim necessarily involves a finding of ongoing disability, and indicated that he had no records in
the file dated after 2011. Tr. 280. Therefore, ALJ Lynch ordered Plaintiff to undergo a consultative
exam to fu1iher evaluate Plaintiffs SSI allegations. Tr. 266, 280, 519. Paul S. Stoltzfus performed
a psychodiagnostic evaluation on June 11, 2015. Tr. 266, 280, 519. At the July 30, 2015
supplemental hearing, Plaintiff objected to admission of the CDIU report. Tr. 289. ALJ Lynch
ove1Tuled the objection, and considered both the CDIU rep011 and Dr. Stoltzfus's 2015 evaluation
in the unfavorable August 28, 2015 decision.
In the cmTent proceeding, Plaintiff argues that the ALJ erred in obtaining new evidence and
making new step two findings because doing so is beyond the scope of Judge Mosman's remand

7 - OPINION AND ORDER

order. According to Plaintiff, ALJ Hyatt exceeded the scope of remand by ordering the CDIU
investigation and ALJ Lynch exceeded the scope ofremand by ordering the consultative examination
by Dr. Stoltzfus. Pl.'s Br. at 7-8, ECF No. 14. Plaintiff contends that under Judge Mosman's
remand order, the ALJ was solely to consider Dr. Freed's opinion and its potential impact on the
RFC and hypothetical to the VE. Without citing to legal authority, Plaintiff appears to suggest that
the ALJ failed to comply with the law of the case doctrine and the rule of mandate. I disagree.
The Ninth Circuit recently addressed the law of the case doctrine and the rule of mandate in
social security cases in Stacy v. Colvin, 825 F.3d 563, 567-68 (9th Cir. 2016). According to the

Stacy court, "[t]he law of the case doctrine generally prohibits a court from considering an issue that
has already been decided by that same court or a higher court in the same case." Id at 567. The
court also observed that "[t]he doctrine is concerned primarily with efficiency, and. should not be
applied when the evidence on remand is substantially different, when the controlling law has
changed, or when applying the doctrine would be unjust." Id. A district comt' s decision to apply
the law of the case doctrine is discretionary. Id
The Stacy court also addressed the rule of mandate, which it described as "similar to, but
broader than, the law of the case." Id. at 567-68. Under the rule of mandate, a "'district court that
has received the mandate of an appellate coutt cannot vary or examine that mandate for any purpose
other than executing it."' Id. at 568 (quoting Hall v. City ofLos Angeles, 697 F.3d 1059, 1067 (9th
Cir. 2012)). However, the district comt may decide matters "not foreclosed by the mandate." Id.
(internal quotation omitted). As the Stacy court observed, the rule of mandate petmits district courts
to "reexamine any issue ofremand that is not inconsistent with the mandate." Id
In Stacy, the claimant appealed his denial of social security benefits to the district court two

8 - OPINION AND ORDER

times. Id at 566. The first appeal resulted in a stipulated remand for reconsideration of m.edical
evidence, the claimant's subjective allegations, and to obtain any additional necessary evidence,
among other actions. Id. The second appeal resulted in a remand to consider lifting restrictions
erroneously omitted from the RFC, to reconsider step five, and to otherwise comply with the prior
remand. Id. at 566-67. Following the second remand, at an ALJ hearing, the claimant testified for
the first time that 70 to 7 5 percent of his previous work was supervismy in nature. Based on that
testimony, the VE testified that the claimant could perfo1m his past relevant work as a supervisor.
Id. at 567. The ALJ denied benefits at step four, determining that the claimant could perfo1m his

past relevant work. Id. On appeal for the third time, the district co mi concluded that the ALJ' s step
four findings did not violate the rule of the case or the rule of mandate. Id.
On appeal to the Ninth Circuit, the Stacy comi agreed. Although two ALJs previously
determined that the claimant could not perform his past relevant work, on remand, new probative
evidence was presented bearing directly on that finding. Thus, the Ninth Circuit concluded that the
new testimony directly suppmied the ALJ' s new finding, and therefore the district court did not
abuse its discretion in declining to apply the law of the case doctrine. Id. at 567. Similarly, the Stacy
court concluded that the remand orders were expansive, and thus, the ALJ did not violate the rule
of mandate in making new step four findings. The Ninth Circuit reasoned that by asking the "ALJ
to correct the [claimant's] RFC, Judge Mosman also impliedly instructed the ALJ to reconsider step
4 and determine whether someone with that co1Tected RFC could perfo1m [the claimant's] past
work." Id. at 568. The Stacy court concluded that it was a logical construction of the remand order
to conduct a hearing, take testimony from the claimant, and inquire about past work in order to
correctly formulate the RFC. Thus, the ALJ did not exceed her authority under the broad remand
9 - OPINION AND ORDER

order and did not violate the rule of mandate. Id. at 569.
In the instant proceeding, Plaintiff appears to suggest that ALJ Lynch violated the law of the
case by making new step two findings. In the initial hearing, ALJ Say found at step two that Plaintiff
had the seve1'e impahment of fetal alcohol syndrome, and that his ADHD was medically
determinable, but non-severe based on the examination submitted by Dr. Guastadisegni. Tr. 14-15.
On remand, ALJ Lynch revisited the step two findings and concluded that Plaintiffs ADHD and
learning disorder are severe impairments based upon Dr. Freed's 2012 evaluation. Tr. 261-62.
As discussed in Stacy, the law of the case doctrine "should not be applied when the evidence
on remand is substantially different." Stacy, 825 F.3d at 567. Here, on remand numerous pieces of
evidence came to light, including Dr. Freed's 2012 evaluation that served as the basis forthe remand.
Tr. 355. Additionally, as ALJ Lynch indicated, Dr. Freed submitted a letter dated May 23, 2012
explaining why he did not diagnose fetal alcohol syndrome, including that the DSM-IV does not
contain specific diagnostic criteria for fetal alcohol syndrome. Tr. 254, 261. The ALJ also found
that Dr. Stoltzfus's diagnoses of ADHD and math disorder were consistent with Dr. Freed's
diagnoses, also supporting the new step two findings. Tr. 261. ALJ Lynch was presented with new,
probative evidence on remand that directly related to Plaintiffs medically determinable impahments
at step two. ALJ Lynch's step two findings are supported by substantial evidence in the record as
a whole. Accordingly, ALJ Lynch did not err, and I decline to apply the law of the case.
Plaintiff also seemingly contends that ALJ Hyatt and ALJ Lynch violated the rule of mandate
by obtaining new evidence. Plaintiff argues that obtaining new evidence was beyond the scope of
Judge Mosman's remand order. Again, the analysis in Stacy is instructive.
As in Stacy, the instant case was remanded for consideration of new evidence and its
10- OPINION AND ORDER

potential impact on the RFC, "in light of all the other evidence in the case." Tr. 355; Stacy, 825 F.3d
at 568. To be sure, the Appeals Council ordered the ALJ to consider the evidence from Dr. Freed,
as well as offer Plaintiff a new hearing, address the additional evidence, and "take any further action
needed to complete the administrative record and issue a new decision." Tr. 366. As in Stacy, none
of the actions undertaken by ALJHyatt and ALJ Lynch on remand are inconsistent with the mandate.
Contrary to Plaintiffs suggestion, there is nothing in the record to indicate that ALJ Hyatt initiated
the CDIU fraud investigation. Tr. 525. Rather, the record reflects that the CDIU investigation
appears to have originated with the Salem disability office. Tr. 525. It is a logical construction of
the remand order to conduct a new hearing to consider the CDIU repo1t and new evidence from Dr.
Freed.
Additionally, as ALJ Lynch observed, a finding of disability under SSI requires establishing
ongoing disability. Tr. 280. When ALJ Lynch inquired whether more recent records were available,
Plaintiffs counsel informed him that none existed, thereby necessitating the consultative
examination with Dr. Stoltzfus to update the record. Tr. 281-82. Again, obtaining new evidence to
consider Plaintiffs RFC as it pe1tains to Plaintiffs SSI application is ce1tainly consistent with the
mandate. Stacy, 825 F.3d at 568. Given the broad nature of the remand instructions, nothing
prevented the ALJ s from conducting new hearings, taking new evidence (including additional
evidence from Dr. Freed), and considering the CDIU repo1t and the consultative examination in
order to fashion the RFC. Accordingly, the ALJ did not exceed his authority and did not violate the
rule of mandate.

II.

The ALJ's Findings are Supported by Substantial Evidence
Plaintiffs remaining challenges ultimately tum on whether the ALJ's decision is suppo1ted

11 - OPINION AND ORDER

by substantial evidence. Plaintiffs argues that: (1) the step two findings were not authorized and
are ambiguous; (2) the ALJ improperly evaluated the opinions of Drs. Freed, Guastadisengi, and
Stoltzfus; and (3) the ALJ improperly considered the lay testimony. Plaintiffs arguments are
unavailing.

A.

The ALJ Did Not Err at Step Two

ALJ Lynch found that Plaintiffs ADHD and learning disorder are severe impaitments at step
two. "At step two of the five-step inquiry, the Commissioner determines whether the claimant has
a medically severe impairment or combination of impairments." Smolen v. Chafer, 80 F.3d 1273,
1289-90 (9th Cir. 1996). As discussed above, the ALJ's step two findings are wholly supported by
substantial evidence in the record.
To the extent that Plaintiff argues that the ALJ was required to amend the RFC assessment
based on the new findings at step two, his argument is misplaced. First, an RFC is the most a
claimant can do despite his limitations, and is based upon consideration of all medically
dete1minable impairments - severe and non-severe. See 20 C.F.R. §§ 404.1545, 416.945. Second,
there is no requirement that a step two finding must result in any specific limitation reflected in the
RFC, and Plaintiff cites no authority for such a proposition. Plaintiffs argument is more properly
directed at the ALJ's RFC and is addressed below. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
2007) (noting that a step two error is harmful only if claimant's alleged functional limitations are not
accounted for in the RFC). Similarly, Plaintiffs conclusoty argument that the ALJ's step two
finding is ambiguous is without merit. "Ambiguous evidence, or the ALJ's own finding that the
record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ' s duty to
'conduct an appropriate inquiry."' Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)

12 - OPINION AND ORDER

(quoting Smolen, 80 F.3d at 1288)). After a careful review of the record, I conclude that there are
no ambiguities or inadequacies that would trigger the ALJ's duty to develop the record.
B.

The ALJ Did Not Err i11 Assessi11g the Medical Evide11ce
1.

Standards

The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians' opinions. Carmickle, v. Comm 'r Soc. Sec. Admi11., 533 F.3d 1155, 1164 (9th Cir.
2008). To reject the uncontroverted opinion of an examining physician, the ALJ must present clear
and convincing reasons. Bayliss v. Bamhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining
doctor's opinion is contradicted by another doctor's opinion, it may be rejected by specific and
legitimate reasons. Garrison, 759 F.3d at 1012; Gha11im v. Colvi11, 763 F.3d 1154, 1161 (9th Cir.
2014). When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is not
supported by clinical findings, or is brief or conclusmy. Thomas v. Barnhart, 278 F.3d 947, 957 (9th
Cir. 2014). In addition, a doctor's work restrictions based on a claimant's subjective statements
about symptoms are reasonably discounted when the ALJ finds the claimant less than fully credible.
Brayv. Comm 'r ofSoc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Batso11, 359 F.3d at 1195.
2.

Dr. Freed 's Opi11ions

Dr. Freed conducted two neuropsychological evaluations, the first dated June 9, 2011 and
the second dated April 4, 2012. 3 In Dr. Freed's 2011 evaluation, he indicated that Plaintiff was
3

Dr. Freed's 2011 and 2012 opinions are contradicted by nonexamining physicians
Robe1i Herny, Ph.D., and Sandra L. Lundblad, Psy.D., who opined that Plaintiff is capable of
perfo1ming simple work, routine tasks and instructions, in a predictable environment with
assistance in setting independent and realistic goals, with infrequent public contact and coworker contact. Tr. 217, 233, 239. Therefore, the ALJ was required to provide specific and
legitimate reasons based on substantial evidence in the record to discount the examining
physician's opinions. Thomas v. Bamhart, 278 F.3d 947, 957 (9th Cir. 2001).
13 - OPINION AND ORDER

refen-ed by his treating provider for evaluation of his alleged cognitive, behavioral, and academic
problems. Tr. 532. Plaintiff reported to Dr. Freed that he has been diagnosed previously with
ADHD, PTSD, and was seen at the Psychiatric Crisis Center with concerns of bipolar disorder. Tr.
532-33. Plaintiff reported to Dr. Freed that his biological mother used alcohol and drugs during
pregnancy, and that he was placed in foster care, and adopted at age three. Tr. 533. Plaintiff
reported that he struggled in school, was diagnosed with learning disorders, and had significant
behavioral problems.

Tr. 533.

Plaintiff reported to Dr. Freed that he frequently loses his

employment (having worked 45 different jobs), denied alcohol or drug use, and previously was
prescribed Ritalin, Zoloft, and Wellbutrin. Plaintiff also rep01ied that he has been convicted of
multiple offenses with minor women, has been incarcerated, and is a registered sex-offender. Tr.
534.
On testing, Plaintiff scored 25 out of30 on the Mini-Mental State Exam ("MMSE"), obtained
a Full Scale IQ of 104 (average range), and academic testing revealed some learning disabilities. Tr.
535. Dr. Freed observed that Plaintiff has some attention and concentration impairments, has
moderately impaired memory, he displayed above average language skills, average motor skills, and
rep01ied depressive symptoms. Tr. 535-36. Dr. Freed diagnosed Major Depressive Disorder,
recun-ent, severe, PTSD, ADHD, Inte1mittent Explosive Disorder, Mathematics Disorder, and
Disorder of Written Expression.

Dr. Freed opined that Plaintiff should consider a trial of

antidepressant medication, increased physical activity, and individual counseling to combat his
severe depressive symptoms.

Dr. Freed also noted that Plaintiff should consider additional

vocational education to improve his self-esteem and acquire additional employable skills, indicating
that Plaintiff may benefit from academic accommodations such as note-taking, additional testing
14 - OPINION AND ORDER

time, and flexibility. Tr. 538.
In Dr. Freed's 2012 evaluation, he discussed Plaintiffs background, then observed that
Plaintiffs grooming and hygience were good, he appeared depressed with a restricted range of affect,
and was occasionally tearful. Tr. 247. On testing, Plaintiff obtained a 30 out of30 on the MMSE,
obtained a Full Scale IQ of93 (average range), demonstrated some difficulty with concentration
during testing, copied simple geometric figures easily, had normal language skills, had mild to
moderate memory impairment, and possessed average motor skills. Tr. 248. On the MMPI-2,
Plaintiff obtained a valid profile, with intense anxiety and depressive symptoms. Tr. 248. Dr.
Freed's 2012 diagnoses were unchanged from 2011. Tr. 249. Dr. Freed observed that Plaintiff was
not cunently prescribed any antidepressant medication, and assumed that Plaintiff did not respond
to previous treatment. Tr. 250. Dr. Freed indicated that Plaintiffs "depressive and anxious
symptoms represent a significant impairment to social and occupational functioning." Tr. 250. Dr.
Freed noted that Plaintiff reported having suffered a traumatic brain injury and that this "injury has
contributed to the reported behavioral and mood problems." Tr. 251. Dr. Freed opined that "Due
to the confluence of angry outbursts, limited vocational skills, and chronic mental health conditions,
... [Plaintiff] is unable to maintain consistent employment." Tr. 251.
Dr. Freed also completed a Functional Assessment Fo1m dated April 16, 2012, in which he
opined that Plaintiff is moderately limited in his ability understand and remember detailed
instructions, has several moderate limitations with sustained concentration and persistence, social
interaction, and adaption. Tr. 252-53.
In the 2015 decision, ALJ Lynch thoroughly discussed Dr. Freed's 2011 and 2012
evaluations and provided several reasons for discounting Dr. Freed' s opinion that Plaintiff is unable
15 - OPINION AND ORDER

to maintain consistent employment. First, the ALJ noted that Dr. Freed's opinions are inconsistent
with his own findings and the record as a whole. Inconsistency between a treating physician's
opinion and his own treatment notes is a specific and legitimate reason for rejecting that opinion.
Ghanim, 763 F.3d at 1161. Likewise, inconsistency between a Plaintiffs opinion and the record as

a whole is a specific and legitimate reason to discount a physician's opinion. Orn v. Astrue, 495 F .3d
625, 631 (9th Cir. 2007). As the ALJ discussed, Dr. Freed's mental status examination found
problems with understanding and memmy, and sustained concentration and persistence, yet Plaintiff
scored a 30 out of 30 on the Mini Mental Status Examination, indicating no cognitive deficits. Tr.
248, 268. Where a medical opinion is contradicted by the examiner's own notes, an ALJ may
discount the opinion. Bayliss, 427 F.3d at 1216. And, the ALJ observed that in 2012, Dr. Freed
opined that Plaintiffs depressive and anxious symptoms were refractory to treatment. However, as
the ALJ con-ectly indicated, Plaintiff had not received any treatment for depression and anxiety and
later denied such symptoms during Dr. Stoltzfus's examination. Tr. 246, 250; see also Tr. 542-43.
The ALJ's findings in this regard are wholly suppmted by substantial evidence. I conclude that the
inconsistencies between Dr. Freed's testing and Dr. Freed's opinion, and their inconsistency with
record as a whole provide a specific and legitimate basis for pmtially discounting Dr. Freed's
opinion.
Second, the ALJ reasonably found that Plaintiffs rep011ed activities conflicted with Dr.
Freed's opinion.

An ALJ may discount a physician's opinion where it is inconsistent with a

claimant's activities of daily living. Rollins v. 1\Iassanari, 261 F.3d 853, 856 (9th Cir. 2001)
(affirming the ALJ's rejection of treating physician's opinion where inconsistent with the claimant's
daily activities). Dr. Freed noted a number of moderate limitations in the Functional Assessment
16 - OPINION AND ORDER

Form including memory functioning, the ability to cany out instructions, and the ability to
concentrate. Tr. 252. Dr. Freed also noted Plaintiffs inability to interact with the general public and
an impairment in occupational functioning. Tr. 250, 253. As the ALJ discussed, Plaintiff engages
in numerous activities that indicate greater functioning that alleged. The ALJ detailed that Plaintiff
had a job waiting tables, ran an advertising business called West Coast Media Solutions, and
volunteered at a drop-in shelter. Tr. 530. Plaintiffs advertising business sold advertising on behalf
of radio stations and sought clients via Craigslist. Tr. 530. Plaintiff also had a business registered
in his name, to his mailing address, known as Oregon Wedding Loft. Tr. 525. Plaintiff"described
a typical day as doing his adve1iising business, [waiting tables], and frequenting local coffee shops."
Tr. 530. As the ALJ discussed, a day before Dr. Stoltzfus's evaluation, Plaintiff repo1ied that he
worked at a church pruning bushes and doing lawn maintenance, and he was working part-time for
the Public Affairs council taking surveys via phone. Tr. 541, 545. The ALJ's findings are fully
suppo1ied by substantial evidence in the record.

Based on this multitude of activities, the ALJ

reasonably found Dr. Freed's opinion inconsistent with his activities. Accordingly, this rationale
provides another specific and legitimate basis upon which to discount Dr. Freed's opinion.
Finally, the ALJ reasonably discounted Dr. Freed' s opinion because it relied upon Plaintiffs
subjective rep01is. See Tommaselfi v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("An ALJ may
reject a treating physician's opinion ifit is based to a large extent on a claimant's self-rep01is that
have been properly discounted as incredible.") (intemal quotation marks omitted). Critically,
Plaintiff does not challenge the ALJ' s adverse credibility determination. Neve1iheless, the cou1i has
examined the ALJ's negative credibility assessment and readily concludes that it is supported by
substantial evidence in the record as a whole. The ALJ cited specific, clear and convincing reasons,
17 - OPINION AND ORDER

including but not limited to the lack of any underlying treatment records and extensive reported daily
activities, to support it. Accordingly, the ALJ appropriately discounted Dr. Freed's opinion because
it was based on Plaintiffs subjective complaints. In shmi, the ALJ provided several specific and
legitimate reasons for discounting Dr. Freed' s opinion; the ALJ did not en'.

3.

Dr. Guastadisegni 's Opinion

Dr. Guastadisegni completed a neuropsychological evaluation of Plaintiff on October 13,
2009.

Tr. 200. Dr. Guastadisegni noted that Plaintiff repotied he struggled with behavior,

impulsivity, and social judgment. Dr. Guastadisegni indicated that Plaintiff has past legal troubles
also impacting his ability to find work. Tr. 200-01. Plaintiff reported to Dr. Guastadisegni that he
had difficulty in school, was on an IEP, and repeated the sixth grade. Tr. 204. Dr. Guastadisegni
noted that Plaintiff completed an eight-week training course with the Radio Council, but had
difficulty completing community college courses. Tr. 204. Plaintiff repotied that he took Ritalin,
but indicated he was not then taking any medications. Plaintiff infotmed Dr. Guastadisegni that he
was working with Dr. Han'ington for his emotional detachment disorder. Tr. 205. Dr. Guastadisegni
indicated that Plaintiff was ttying to run an advertising business for radio, and the longest position
he has held was for two years as a server at a restaurant. Tr. 207.
On examination, Dr. Guastadisegni completed a number of tests, including the WAIS-III,
Dells Kaplan Executive Function System, Rey Complex Figure Test, Audit01y Verbal Leaming Test,
MMPI-2, Wisconsin Card Sotiing Test, and Adaptive Behavior Assessment System. Tr. 200. Dr.
Guastadisegni observed that Plaintiff has a normal IQ, with intact verbal abilities and presents well,
however, he has low average perceptual organization abilities, and struggles with visual infotmation
and processing speed. Tr. 212. Dr. Guastadisegni indicated that Plaintiff has difficulty adapting,

18 - OPINION AND ORDER

transitioning, and integrating feedback, and that he became overwhelmed when task complexity
increased. Tr. 212. Dr. Guastadisegni opined that Plaintiff has a "cognitive disorder that impacts
his ability to learn, sustain attention, and to make adaptions and transitions" and that he "should be
considered for disability benefits due to Fetal Alcohol Effects." Tr. 213. Dr. Guastadisegni further
opined that Plaintiff needs to have a "strnctured environment that has clear directions and allows him
time to process and move at his own pace." Additionally, Dr. Guastadisegni indicated that Plaintiff
needs extra breaks, repetition, and reinforcement. Tr. 213-14.
In the decision, ALJ Lynch thoroughly discussed Dr. Guastadisegni' s opinion and gave it less

than great weight.

Tr. 268.

The ALJ provided several specific and legitimate reasons for

discounting Dr. Guastadisegni's opinion. First, the ALJ reasonably found that Dr. Guastadisegni's
mental status examination conflicted with his opinion. Bayliss, 427 F.3d at 1216 (ALJ may discount
a medical opinion that is internally inconsistent). Tr. 268. Dr. Guastadisegni opined that Plaintiff
had a cognitive disorder that impacted Plaintiffs ability to learn, and that Plaintiff needed a
strnctured environment that permitted him to work at his own pace. Tr. 213. Yet, as the ALJ noted,
Dr. Guastadisegni' s examination findings presented a mixed picture of skills. For example, Plaintiff
received a high average score in the Tower Test suggesting abilities related to rnle learning and
establishing and maintaining an instructional set. Tr. 209. Plaintiffs overall score on the Wisconsin
Card Sorting Test was normal and he had an average IQ. Tr. 212.
Second, the ALJ found that Plaintiffs activities conflicted with Dr. Guastadisegni' s opinion,
establishing greater functioning than assessed. Rollins, 261 F.3d at 856; Tr. 268. Dr. Guastadisegni
opined that Plaintiff needed strncture and guidance when completing tasks. Tr. 214. However, as
discussed above, at the time of the CDIU report Plaintiff had a job waiting tables, ran an advertising

19 - OPINION AND ORDER

business, and volunteered at a drop-in shelter. Tr. 530. At the time of Dr. Stoltzfus's evaluation,
Plaintiff reported that he had worked at a church doing lawn maintenance, and he was working parttime taking surveys via phone. Tr. 541, 54 5. As the ALJ discussed, Plaintiff was capable of living
independently, cooking, cleaning, shopping, and gardening.

Based on these activities, the ALJ

reasonably found Plaintiff engaged in activities that indicate greater functioning than assessed by Dr.
Guastadisegni, and could discount the opinion on this basis. Rollins, 261 F.3d at 856.
Thus, the ALJ reasonably found that, consistent with ALJ Say's previous findings, that Dr.
Guastadisegni found that Plaintiff had the greatest difficulty with jobs that require high skill levels
and multi-tasking, and therefore his opinion was consistent with an RFC limiting Plaintiff to
unskilled work and routine tasks. The ALJ accurately summarized Dr. Guastadisegni' s opinion, and
reasonably concluded that the RFC adequately accounted for the credited limitations. The ALJ's
findings are wholly supported by substantial evidence, is a rational interpretation of the record, and
will not be disturbed. li!folina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)(stating that "[e]even
when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ' s
findings if they are supported by inferences reasonably drawn from the record.")

4.

Dr. Stoltzfi1s 's Opinion

On June 11, 2015, Dr. Stoltzfus conducted a psychodiagnostic evaluation on behalf of DDS.
Dr. Stoltzfus conducted a clinical interview, a mental status examination, a symptom checklist, and
reviewed Dr. Freed' s 2011 examination and Dr. Guastadisegni' s October 2009 evaluation. Plaintiff
repo1ied to Dr. Stoltzfus that he had been living at the Mission, and no longer had a girlfriend. Tr.
541. Dr. Stoltzfus indicated that Plaintiff reported longstanding difficulty with employment, that
he currently works part-time taking surveys on the phone for the Public Affairs Council. Plaintiff

20 - OPINION AND ORDER

infonned Dr. Stoltzfus that he becomes stressed and mentally exhausted. Tr. 541. Dr. Stoltzfus
indicated that Plaintiff repotied he was seeing a mental health counselor, suffers from PTSD, rated
his depression at a two out often, and his stress at a two out often. Tr. 543. Dr. Stoltzfus noted that
based on Plaintiffs self-report, he was highly likely to be ADHD, repo1iing a significant degree of
impulsivity, hyperactivity, fidgeting, and is distracted by those around him, has difficulty getting
started, and has difficulty with details. Tr. 543.
On examination, Dr. Stoltzfus found that Plaintiff was oriented times three, and his
immediate and delayed recall were intact. Plaintiff could repeat five digits forward ve1y slowly, and
became tearful when unable to repeat five digits backwards. Tr. 544. Plaintiff could count
backwards from 20, could spell "world" forward, but not backward, and could perform some basic
math calculations. Tr. 545. Dr. Stoltzfus diagnosed ADHD, mathematics disorder, PTSD traits, and
fetal alcohol syndrome, per neurocognitive evaluation. Tr. 545. Dr. Stoltzfus indicated that Plaintiff
presented with a positive outlook and tended to downplay difficulties, and that he repo1ted activies
requiring him to be productive for an extended time or requiring mental effott become exhausting
and his mind wanders. Tr. 546.
Dr. Stoltzfus completed a Medical Source Statement in which he indicated Plaintiff suffers
moderate limitations in the ability to understand and remember complex instructions, and had
marked limitations to cany out complex instructions and make complex work-related judgments.
Dr. Stoltzfus found Plaintiff had no limitations to understand, remember, and cany out simple
instructions and make simple work-related judgments. Tr. 54 7. Additionally, Dr. Stoltzfus indicated
that Plaintiff is markedly limited in his ability to respond appropriately to work situations and
changes in routine in a work setting, indicating that based on Plaintiffs repo1i, he cannot sustain
21 - OPINION AND ORDER

focus for an extended time, mentally exe1t himself, or stay organized. Tr. 548.
In the decision, the ALJ accurately summarized Dr. Stoltzfus's opinion and gave it "some
weight." The ALJ specifically found that Plaintiffs ability to perform simple, routine work that is
not fast-paced is consistent with Dr. Stoltzfus's assessment, and found that limiting Plaintiff to
superficial social contact with co-workers and supervisors and no cooperation or coordination
adequately accounts for Plaintiffs limitations with attention and concentration. The ALJ also
specifically discounted Dr. Stoltzfus's assessed limitations with sustainability because they were
based on Plaintiffs discredited subjective rep01ts. The ALJ's findings are wholly suppo1ted by
substantial evidence, and are a valid reason to paitially discount Dr. Stoltzfus' s opinion. Bray, 554
F.3d at 1228; Tr. 546, 548. Second, the ALJ partially discounted Dr. Stoltzfus's opinion because
it is inconsistent with Plaintiffs activities, which establish greater functioning than alleged. As
discussed at length above, Plaintiff engages in numerous activities such as working, volunteering,
and running a business, which undennine his allegations of greater limitations. Therefore, the ALJ
has provided specific and legitimate reasons, backed by substantial evidence, for partially
discounting Dr. Stoltzfus's opinion. The ALJ did not en.
C.

ALJ Lynch Properly Discredited Lay Testimony

Lay witness testimony as to a claimant's symptoms or how an impairment affects his ability
to work is competent evidence, which the ALJ must take into account. See Bruce v. Astrue, 557 F.3d
1113, 1115 (9th Cir. 2009); Stoutv. Comm 'r, Soc. Sec. Adm in., 454 F.3d 1050, 1053 (9th Cir. 2006);
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ is required to account for

competent lay witness testimony, and if it is rejected, provide germane reasons for doing so.
Valentine, 574 F.3d at 694.

22 - OPINION AND ORDER

Plaintiff argues that the ALJ has failed to properly credit the lay witness testimony of his
father Louis Meza. Mr. Meza completed a Third Party Function Report, attesting to Plaintiffs
various impairments. Tr. 154-61. Mr. Meza provided thatPlaintiffhas trouble staying on task, loses
focus, needs reminders to take care of personal needs and grooming, has a shmt attention span, has
difficulty finishing what he stmis, and has difficulty handling stress and changes in routine. Tr. 15657, 159.

Mr. Meza also indicated that Plaintiff has issues with memmy, completing tasks,

concentration, understanding, following instructions, and getting along with others. Tr. 159.
The ALJ accurately discussed Mr. Meza's testimony and gave it "some weight." Tr. 269.
The ALJ found that Mr. Meza's report was "accounted for in large pati by the residual functional
capacity assessment for simple, routine work that is not fast paced and requires limited social
interaction." Tr. 269. However, the ALJ discounted Mr. Meza's testimony because Plaintiffs
activities establish greater functioning than alleged, including Plaintiffs ability to live independently
and engaging in work activity. Tr. 269.
Here, I conclude the ALJ provided a ge1mane reason for partially discounting Mr. Meza's
testimony and is suppo1ted by substantial evidence. As discussed above, Plaintiff has lived
independently, engages in numerous activities such as waiting tables, running an adve1iising
business, and volunteering at a drop-in shelter. Tr. 530. Plaintiff has no difficulty using public
transpmiation, is capable of obtaining work, and frequents local coffee shops. Tr. 530. The ALJ's
findings are suppo1ied by substantial evidence in the record as a whole. Because the ALJ has
provided reasons germane to Mr. Meza for partially discounting his testimony, the ALJ did not err.

III.

ALJ's RFC Reasonably Accounts for All Credited Limitations
Plaintiff argues that the RFC fails to account for all of his functional limitations, including

23 - OPINION AND ORDER

his need for extra breaks and instruction, impulse control, his intermittent explosive disorder,
sustained concentration and persistence, and social interaction as diagnosed by Drs. Guastadisegni
and Freed. The RFC is the most a claimant can do despite his limitations and must include all
credited limitations supported by substantial evidence in the record. See Bayliss, 427 F.3d at 1217.
Similarly, the hypothetical question posed to the VE need only include those functional limitations
supported by substantial evidence. Id Where the ALJ credits the opinion of a physician, the ALJ
must translate the claimant's condition as described in the physician's opinion into functional
limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).
Here, Plaintiff appears to contend that the RFC fails to include all of the functional
limitations assessed by Drs. Guastadisegni and Freed. However, as thoroughly discussed above, the
ALJ did not err in discounting those opinions, and therefore was not required to include discounted
limitations. For example, the ALJ specifically indicated that Plaintiffs alleged angty outbursts were
not supported by the objective medical evidence, did not require treatment, and thus were not
accounted for in the RFC. Tr. 268. And, the ALJ incorporated Plaintiffs alleged distractability,
difficulty with appropriate social functioning, and need for breaks into the RFC by limiting him to
simple, routine work with limited cooperation and coordination. Indeed, the ALJ expressly excluded
Plaintiffs alleged sustainability limitations because they were premised on his discounted subjective
limitations. Tr. 269.
An ALJ's RFC need not correspond precisely to a physician's limitations; rather, the ALJ
must resolve ambiguities in the record and translate Plaintiffs impairments into concrete functional
limitations in the RFC. Stubbs-Danielson, 539 F.3d at 1174. In short, in this case, the RFC includes
all limitations credited by the ALJ and supported by substantial evidence in the record, and is a
24 - OPINION AND ORDER

reasonable interpretation of the record. Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015).
Therefore, the ALJ did not e11" in fashioning the RFC, and the subsequent hypothetical posed to the
VE included all credited limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001)
(holding an ALJ may "limit a hypothetical to those impairments that are suppotted by substantial
evidence in the record.")

CONCLUSION
For the reasons stated above, the Commissioner's final decision denying benefits to Plaintiff
is AFFIRMED. This action is DISMISSED.
IT IS SO ORDERED.
DATED this _!f_ day of MARCH, 2017.

Malcolm F. Marsh
United States District Judge

25 - OPINION AND ORDER