DeMers v. Commissioner Social Security Administration

Filing 26

Opinion and Order. Signed on 5/16/2017 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Case No. 6:15-cv-02256-MA

MARK B. DEMERS,
Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
KATHERINE EITENMILLER
474 Willamette Street
Eugene, OR 97401
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
Pmiland, OR 97204-2902
MARTHA A. BODEN
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900
Seattle, WA 98104
Attorneys for Defendant

1 - OPINION AND ORDER

OPINION AND ORDER

MARSH, Judge
Plaintiff Mark B. DeMers 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 his application for
Supplemental Security Income ("SSI") disability benefits under Title XVI ofthe Social Security Act,
42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). For the reasons that follow, the decision of the Commissioner is affirmed.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed his application for a period of disability and DIB benefits on
February 10, 2012. On March 14, 2014, Plaintiff protectively filed his application for SSL In both
applications, Plaintiff alleges disability beginning June 10, 2011, due to depression, short-term
memory loss, muscle weakness, cognitive difficulties, and tremors. Tr. Soc. Sec. Admin. R. ("Tr.")
at 18 & 95, ECF No. 9. Plaintiffs claims were denied initially and upon reconsideration. Plaintiff
filed a request for a hearing before an administrative law judge ("ALJ"). The ALJ held a hearing on
July 29, 2014, at which Plaintiff appeared with his attorney and testified. A vocational expe1t,
Jeffrey F. Tittelfitz, also appeared at the hearing and testified. On September 5, 2014, the ALJ issued
an unfavorable decision. The Appeals Council denied Plaintiffs request for review, and therefore,
the ALJ' s decision became the final decision of the Commissioner for purposes ofreview.
Plaintiff was bom in 1957, and was 53 years old on the alleged onset of disability date and
56 on the date of the hearing. Plaintiff has eamed a GED, and has past relevant work as a bus driver,
a delive1y driver, and inventory stock clerk. Tr. 31, 86.

2 - OPINION AND ORDER

THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for dete1mining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920.
Each step is potentially dispositive. The claimant bears the burden of proof at steps one through
four. See Valentine v. Commissioner 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 Plaintiff meets the insured status requirements through December 31,
2016. 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: depression, anxiety, alcohol abuse, and cannabis abuse. At step three, the ALJ found
that Plaintiffs impairments, or combination ofimpahments, did not meet or medically equal a listed
impairment.
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform a full
range of work at all exertional levels with additional limitations: Plaintiff is able to "understand,
remember and cany out only simple, routine, repetitive tasks and he can tolerate no more than
occasional interaction with supervisors, coworkers and the public." Tr. 23.
At step four, the ALJ found that Plaintiff is able to perfo1m his past relevant work as a
delive1y driver.

Tr. 31.

The ALJ made alternative findings at step five, determining that

considering Plaintiffs age, education, work experience, and residual functional capacity, other jobs
exist in significant numbers in the national economy that Plaintiff can perform, including such

3 - OPINION AND ORDER

representative occupations as: janitor, hand packager, and floor attendant. Accordingly, the ALJ
concluded that Plaintiff has not been under a disability under the Social Security Act from June 10,
2011, through the date of the decision.
ISSUES ON REVIEW

On appeal to this court, Plaintiff contends the following enors were committed: (1) the ALJ
improperly evaluated his testimony; (2) the ALJ improperly evaluated the opinions of examining
psychologist Charlotte Higgins-Lee, Ph.D, treating psychiatrist Scott Mendelson, M.D., and
counselor Tonya Hall, LCSW; (3) the ALJ improperly evaluated the lay testimony of his wife
Barbara DeMers; and (4) the RFC fails to incorporate all his limitations. The Commissioner argues
that the ALJ's decision is supp01ied by substantial evidence and is free oflegal error. Alternatively,
the Commissioner contends that even ifthe ALJ erred, Plaintiff has not demonstrated hatmful enor.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supported 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 support a conclusion." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The comi must weigh all the evidence, whether it supp01is or
detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);
1\!Jartinez 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.
Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the

4 - OPINION AND ORDER

Commissioner's conclusion, the Commissioner niust be affirmed; "the court may not substitute its
judgment forthat of the Commissioner." Edlund>>. }vfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001 );
Garrison, 759 F.3d at 1010.
DISCUSSION

I.

Plaintiff's Credibility
To dete1mine whether a claimant's testimony regarding subjective pain or symptoms is

credible, an ALJ must perform two stages of analysis. 20 C.F.R. § 404.1529. The first stage is a
threshold test in which the claimant must produce objective medical evidence of an underlying
impairment that could reasonably be expected to produce the symptoms alleged. lvfolina v. Astrue,
674 F.3d 1104, I 112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ
must provide clear and convincing reasons for discrediting the claimant's testimony regarding the
severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th
Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to pe1mit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).
Factors the ALJ may consider when making such credibility determinations include the objective
medical evidence, the claimant's treatment history, the claimant's daily activities, and
inconsistencies in testimony. 1 Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
1

As the Commissioner correctly indicates, Social Security Ruling ("SSR") 16-3p
eliminated the use of the term "credibility." However, SSR 16-3p became effective March 28,
2016. I have previously dete1mined that SSR 16-3p does not apply retroactively because 42
5 - OPINION AND ORDER

At the hearing, Plaintiff testified that he became unable to work in June 2011 due to tremors,
weakness on his left side, confusion and emotional !ability. Tr. 47-48. Plaintiff stated that he was
placed on short term disability until March 2012. Tr. 49, 51. Plaintiff testified that he attempted to
return to work on a patt-time basis, but was unable to do so, then his job was eliminated by his
employer. Tr. 53-54. Plaintiff testified that alcohol did not become an issue until June 2012 when
his brother committed suicide. Tr. 55-56. Plaintiff stated that his wife left him in Janumy2013. Tr.
56. Plaintiff testified that he is in recovery for alcoholism, and has been sober for 69 days. Tr. 56.
Plaintiff testified that his cognitive issues prevent him from working, and that he has
difficulty with his shmt term mem01y. Tr. 56. Plaintiff keeps a daily journal. Plaintiff attends
counseling eve1y week and has a support network through his church. Tr. 57. Plaintiff stated that
he lives in clean and sober housing he obtained through the Veterans Administration. Tr. 59.
Plaintiff stated that he can walk to church, appointments, shopping, and to Alcoholics Anonymous
meetings three times per week. Tr. 61.
Plaintiff testified that in a typical day, he gets up, drinks coffee, writes in his journal, reads
the Bible, eats a healthy breakfast, and walks to see his brother. Tr. 62. Plaintiff stated that he is
tired in the afternoon and takes a nap. In the evening, Plaintiff testified that he typically watches a
U.S.C. § 405(g) does not contain any express authorization from Congress allowing the
Commissioner to engage in retroactive rulemaking. Smith v. Colvin, No. 6: 15-cv-O 1625-MA,
2017 WL 388814, at *4 n.2 (D. Or. Jan. 27, 2017). See, e.g., Wright v. Colvin, No. 15-cv-02495BLF, 2017 WL 697542, *9 (N.D. Cal. Feb. 22, 2017) (holding SSR 16-3p does not apply
retroactively); Thayer v. Colvin, No. 2:16-cv-00545-DWC, 2017 WL 132450, at *7 (W.D. Wash.
Jan. 13, 2017) (same). I adhere to that rationale here. Therefore, because the ALJ's decision in
this case was issued September 5, 2014-well before the effective date- SSR 16-3p does not
apply in this instance.

6 - OPINION AND ORDER

movie. Tr. 63. Plaintiff testified that he reads all the information that his counselor Ms. Hall
provides him. Tr. 63.
Plaintiff testified that he takes Cymbal ta for depression, omeprazol for acid reflux, and
terazosin for blood pressure. Tr. 65. Plaintiff stated that he did not believe he could lift 50 pounds
and be on his feet for six or eight hours a day because he would get tired. Tr. 66. Plaintiff stated that
he worked with his brother cutting Christmas trees for one day, but had to stop after four hours
because it was too physically demanding. Tr. 67. Plaintiff testified that he is unable to work full
time. Tr. 81. Plaintiff testified that three or four days each week, he does not leave his house due
to depression and because he has nothing scheduled. Tr. 78. Plaintiff expressed interest in a
working a job for 15 hours a week involving typing. Tr. 79. Plaintiff stated that he gets panic
attacks two or three times in a month. Tr. 80.
In an April 29, 2012 Function Report - Adult, Plaintiff indicated he will lift weights for an
hour, then eat breakfast. Plaintiff reported attending events for his grandson, or attending a men's
church group in the evenings, or watching television with his wife. Tr. 241. Plaintiff reported no
difficulties with self care, is able to prepare meals, enjoys planting flowers, but can sometimes forget
what he is doing. Tr. 243. Plaintiff indicated he walks a mile two to three times a week, and goes
out three to four times each week. Plaintiff noted he gets agitated in public. Tr. 243. Plaintiff
reported his wife pays the bills because he gets confused. Tr. 244.
Plaintiff expressed difficulty with lifting, standing, walking, talking, hearing, stair climbing,
memory, concentration, completing tasks, understanding, following instructions, and getting along
with others. Tr. 245. Plaintiff indicated he has trouble finishing what he has started, and has
difficulty with authority figures. Tr. 245.
7 - OPINION AND ORDER

In the decision, the ALJ offered several specific, clear, and convincing reasons for
discounting Plaintiff's testimony. Brown-Hunter, 806 F.3d at 488-89. First, the ALJ discounted
Plaintiff's testimony based on his inconsistent and unreliable reports about his alcohol consumption.
A claimant's inconsistent repo1is can be a clear and convincing reason to discredit a claimant. See
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) ("[C]onflicting or inconsistent
testimony concerning alcohol use can contribute to an adverse credibility finding[.]"); Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir.2002) (upholding an adverse credibility finding where a
claimant made inconsistent statements to her doctors about her alcohol and drug use). Here, the ALJ
detailed that Plaintiff testified he did not start drinking until June 2012, and did not stmi drinking
excessively until his brother's suicide in October 2012. Tr. 29. As the ALJ accurately found,
Plaintiff's statements are contradicted by his repo1is to addiction counselors that he began drinking
much earlier- in 2010 or 2011, even as early as 2008. Tr. 29, 924, 1012. Indeed, Plaintiff's
allegation that his initial relapse into alcohol was caused by his brother's suicide is undermined by
Plaintiff's statements to Dr. Turner, Plaintiff's treating psychiatrist while in inpatient alcohol
rehabilitation. Plaintiff reported to Dr. Turner in February 2013 that he began drinking five years
prior- well before his allegedly disabling symptoms. Tr. 923-24. And, as the ALJ co!Tectly found,
Plaintiff repeatedly denied consuming alcohol to evaluators and primary health care providers when
seeking care for his allegedly disabling symptoms in 2011and2012. Tr. 426, 470, 496, 525, 534,
543, 624, 1151. The ALJ found Plaintiff's lack of truthfulness to his providers about his relapses
compromised his credibility. The ALJ's findings are readily supported by substantial evidence in
the record, and the ALJ could reasonably find the inconsistencies in Plaintiff's repo1ting detracted
from his credibility. 1'.folina, 674 F.3d at 1111.

8 - OPINION AND ORDER

Second, the ALJ detailed numerous inconsistencies between Plaintiffs activities and his
alleged limitations. An ALJ may consider inconsistent statements conceming symptoms and "other
testimony by [Plaintiff] that appears less than candid in weighing Plaintiffs credibility."

Tommasetti, 533 F.3d at 1039. The ALJ indicated that Plaintiffasse1ied his inability to get along
with others is a significant obstacle to work. Tr. 29. The ALJ found Plaintiffs allegation of severe
problems with social functioning unde1mined by his ability to attend group counseling sessions,
alcoholic anonymous meetings, church services, and maintain a close relationship with his family.
Tr. 29. There is little indication in this ve1y lengthy record that Plaintiff has difficulties getting
along with others. As the ALJ c01Tectly found, Plaintiff regularly attended a men's church group,
maintains a close suppo1i network of friends and family, and as the ALJ noted, generally interacted
appropriately with providers, and frequently participated in group counseling sessions. Tr. 925, 980,
1152, 1324-25. The ALJ findings are wholly supp01ied by substantial evidence.
The ALJ similarly found that Plaintiffs alleged inability to sustain concentration and focus
was undermined by his activities. The ALJ detailed that contra1y to Plaintiffs alleged limitations,
he reported spending a great deal of time reading materials provided to him through counseling, and
that he was able to leam computer programming quickly. Tr. 1192. Additionally, the ALJ found
his alleged inability to focus and concentrate unde1mined by his report that he reads the Bible daily,
and writes in a journal daily for extended periods. Tr. 62-63. The ALJ also found that Plaintiffs
allegation of severe fatigue undermined by Plaintiffs admitted ability to walk for miles each day
without the need to stop and rest. Tr. 60-62. Again, the ALJ's findings are readily suppo1ied by
substantial evidence in the record and, combined with Plaintiffs inconsistent reporting about his

9 - OPINION AND ORDER

alcohol consumption, provide clear and convincing support for the ALJ' s adverse credibility
determination. 1\Iolina, 674 F.3d at 1113. The ALJ did not en-.
Third, the ALJ detailed that Plaintiffs allegations were not suppo1ied by the objective
medical record. The lack of objective medical evidence to suppoti a claimant's allegations can be
a clear and convincing reason to discredit a claimant, so long as it is not the only reason. Burch v.

Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). In the decision, the ALJ detailed that Plaintiff
complained of a constellation of neurologic symptoms, including difficulty reading, left side pressure
in his head, short-term memo1y loss, right hand tremor, dizziness, dramatic mood swings, and
emotional lability. Tr. 24, 29. The ALJ thoroughly examined all the medical evidence and testing.
Tr. 24-28. The ALJ detailed that despite numerous comprehensive work-ups, Plaintiffs mentalstatus examinations were unremarkable but for "flat/blunted affect and some depressed/anxious
moods." Tr. 29. To be sure, despite Plaintiffs insistence of some significant neurologic process,
numerous providers ruled out multiple sclerosis, Parkinson's, lupus, and lyme disease as potential
causes ofhis symptoms. Tr. 29-31, 471, 499, 525, 1153. As the ALJ discussed, Plaintiffs providers
indicated that his presentation at times was inconsistent with his description of symptoms. Tr. 618,
1153. The ALJ's detennination that the objective medical record does not support the severity of
Plaintiffs alleged symptoms is wholly supported by substantial evidence, and lends additional clear
and convincing support to the ALJ' s adverse credibility dete1mination.
Lastly, the ALJ found that Plaintiff was not always compliant with medications, repeatedly
relapsed into alcohol abuse, and tried to hide his behavior, all actions that undermined his credibility.
It is well-established that unexplained non-compliance with treatment reflects on a claimant's
credibility. lvfolina, 674 F.3d 1113-14; Tommasetti, 533 F.3d at 1039. The ALJ's findings are

10- OPINION AND ORDER

clearly supported by the record. As the ALJ correctly noted, Plaintiff stopped taking his Cymbalta
for his depression, choosing instead to drink, despite acknowledging that the medication was helpfol.
Tr. 469, 1057. And, as the ALJ indicated, the record also reveals numerous relapses and two DUis
during the period at issue. Tr. 1002, 1169, 1171, 1324. For example, shortly after being admitted
to inpatient rehabilitation, Plaintiff left the grounds, consumed alcohol and marijuana, and returned
the following day accompanied by his twin brother. Tr. 1066, 1118. Substantial evidence amply
supports the ALJ's findings and further bolsters the ALJ's negative credibility assessment.
In summary, the ALJ has provided specific, clear and convincing reasons backed by
substantial evidence in the record as a whole to support the adverse credibility detennination.
Accordingly, the ALJ did not err.

II.

The ALJ Did Not Err in Evaluating the Medical Evidence
A.

Standards

In general, the opinion of a treating physician is given more weight than the opinion of an
examining physician, and the opinion of an examining physician is afforded more weight than the
opinion of a nonexamining physician. Ghanim, 763 F.3d at 1160; Garrison, 759 F.3d at 1012; Orn

v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "If a treating physician's opinion is well-suppotied by
medically acceptable clinical and laborato1y diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] case record, [it will be given] controlling weight." Orn, 495 F .3d
at 631 (internal quotations omitted) (alterations in original); 20 C.F.R. §§ 404.1527(c), 416.927( c).
To reject the uncontradicted opinion of a treating physician, the ALJ must provide "clear and
convincing reasons that are supp01ied by substantial evidence." Bayliss v. Barnhart, 427 F .3d 1211,
1216 (9th Cir. 2005).

11 - OPINION AND ORDER

If the treating physician's opinion is contradicted, the ALJ must consider how much weight
it is entitled to considering the factors in 20 C.F.R. § 404.1527(c)(2-6). The factors include the
length of the treatment relationship, the frequency of examination, the nature and supportability of
the opinion, and its consistency with other evidence in the record as a whole. 20 C.F.R. §
404.1527(d)(2-6); Ghanim, 763 F.3d at 1161. If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons.

Ghanim, 763 F.3d at 1161. However, "[t]he ALJ need not accept the opinion of any physician,
including a treating physician, if that opinion is brief, conclusory, and inadequately supported by
clinical findings." Thomas, 278 F.3d at 957.

B.

The ALJ Did Not Err in Discounting Dr. Higgins-Lee's Opinion

Plaintiff argues that the ALJ erred in failing to consider or assign weight to Dr. Higgins-Lee's
opinion that Plaintiff suffers from cognitive impairment in verbal processing abilities. Pl. 's Br. 12,
ECF No. 14. Plaintiff argues that the ALJ erred in finding Dr. Higgins-Lee's diagnosis of cognitive
impairment "not severe" at step two and failed to properly consider his cognitive impairments when
formulating his RFC. The court disagrees.
Dr. Higgins-Lee performed a comprehensive neuropsychological evaluation with testing
covering two days, October 11 and 15, 2011, and additional testing on October 29, 2011. Tr. 453.
Dr. Higgins-Lee conducted an extensive interview, including a discussion of Plaintiffs medical and
psychological problems, history of alcoholism, and mental status examination. Tr. 452-54. Dr.
Higgins-Lee conducted numerous tests, including WAIS-IV, Wechsler Memo1y Scale-III, Woodcock
Johnson III Tests of Achievement, Boston Naming Test, Stroop Word and Color Test, Trails A &
B, and Personality Assessment Invento1y, among others. Tr. 452. Dr. Higgins-Lee noted that
12 - OPINION AND ORDER

Plaintiffs clinical scales for anxiety and depression were ve1y elevated, and there were no
indications of alcohol or drug use. Tr. 454. Dr. Higgins-Lee indicated that Plaintiff was alert and
oriented throughout the interview and testing, and that testing revealed average sustained attention
and concentration. Tr. 454. However, on story recall, Plaintiff became flushed, dizzy, and could not
concentrate. Tr. 454-55. Dr. Higgins-Lee noted Plaintiffs scores on timed tests were consistently
low, and that Plaintiff indicated he was experiencing some specific fears and anxiety. Tr. 457. Dr.
Higgins-Lee diagnosed cognitive impaitment NOS (processing speed - verbal memory), major
depression, and generalized an,'Ciety disorder. Tr. 459.
To the extentthat Plaintiff challenges the ALJ's finding that his cognitive impairment is "not
severe" at step two, even assuming arguendo that the ALJ ened, the error would be hmmless, a point
Plaintiff concedes in his briefing. See Pl.' s Br. 13, n.2, ECF No. 13. The ALJ resolved step two in
Plaintiffs favor, continuing with the sequential analysis, and the ALJ considered Plaintiffs alleged
cognitive deficits when fashioning the RFC. Burch, 400 F.3d at 682; see also Gray v. Comm 'r Soc.

Sec. Adm in., 365 F. App'x 60, 61 (9th Cir. 2010) (rejecting argument that the ALJ ened at step two
by determining certain impaitments were nonsevere, because any alleged enor was harmless since
"the ALJ concluded that [claimant's] other medical problems were severe impairments").
The court rejects Plaintiffs contention that the ALJ ened in failing to assign specific weight
to Dr. Higgins-Lee's opinion in the decision. Dr. Higgins-Lee's opinion and diagnosis of cognitive
impairment was contradicted by the several other opinions of record, therefore, the ALJ was required
to provide specific and legitimate reasons for discounting it, backed by substantial evidence.2 An
2

Dr. Higgins-Lee's opinion that Plaintiff has a cognitive impaitment diagnosis is
contradicted by Drs. Boggs, Gibbs, Olander, and Madden.

13 - OPINION AND ORDER

ALJ satisfies the "substantial evidence" requirement by "setting out a detailed and thorough
summmy of the facts and conflicting clinical evidence, stating his interpretation thereof, and making
findings." Garrison, 759 F.3d at 1012 (internal quotations omitted). "The ALJ must do more than
state conclusions. He must set fo1ih his own interpretations and explain why they, rather than the
doctors, are correct." Id. The ALJ's reasoning readily meets this standard.
Contra1y to Plaintiffs asse1iion, the ALJ thoroughly discussed Dr. Higgins-Lee's evaluation
at step two, as well as in the discussion of the medical evidence when assessing Plaintiffs RFC.
Tr. 21, 25. At step two, the ALJ set out a detailed summary of Dr. Higgins-Lee's cognitive
impairment diagnosis, the ALJ offered his own interpretation of the evidence, and provided a host
ofreasons for discounting Dr. Higgins-Lee's opinion and diagnosis:
this diagnosis is inconsistent with the totality of the objective findings. No treating
source identified [Plaintiff! as having a cognitive disorder, instead attributing any
mild to moderate cognitive deficits as symptoms of depression/anxiety. This
explanation seems more consistent with the documented longitudinal hist01y,
[Plaintiffs] reports that he had no such problems prior to the alleged onset date, and
the lack of an intervening event (such as a head injury) to explain the development
of such deficits.
Inconsistency with the medical record as a whole is a specific and legitimate basis for
discounting a physician's opinion. Orn, 495 F.3d at 631 (consistency with the record as a whole is
a valid factor to consider when weighing medical opinions). As the ALJ discussed when evaluating
the medical evidence, Dr. Gibbs conducted a independent work-up, screened Plaintiff for cognitive
impairment, and his treatment notes reflect Plaintiff scored a 29/30 on the Mini-Mental State
Examination, indicating n01mal cognition. Tr. 473-74. Contrmy to Dr. Higgins-Lee, Dr. Gibbs
opined that severe depression "is the core of [Plaintiffs] problems." Tr. 24, 469-71. Similarly, the
ALJ noted Dr. Boggs conducted numerous diagnostic tests to rule out a neurologic disorder to

14 - OPINION AND ORDER

explain Plaintiffs symptoms, but concluded Plaintiff has an "emotional disorder of a
depressive/anxiety nature." Tr. 24, 425-26. The ALJ also discussed that due to the lack of a
neurologic explanation for Plaintiffs symptoms and a positive ANA marker, Plaintiff was refe!Ted
to William Hinz, M.D., a rheumatologist for further evaluation. Tr. 25, 494. Dr. Hinz could find
no signs of a connective tissue disorder and concluded the primmy issue was neuropsychiatric, and
recommended SSRI (antidepressant) therapy. Tr. 25, 499. Based on the lack of objective evidence
in the record, the ALJ reasonably found Dr. Higgins-Lee's diagnosis of cognitive impairment
inconsistent with the totality of other medical opinions.
Additionally, as the ALJ accurately found, none of Plaintiffs treating providers progress
notes cany a diagnosis of cognitive impairment. See, e.g., Tr. 524, 562, 613. Indeed, Terrence
Bancroft, P.A., Plaintiffs treating provider from Janumy to July 2012, did not include any type of
cognitive limitation in his diagnoses or problem list. See, e.g., Tr. 524, 531, 562. Likewise,
treatment notes from Scott Mendelson, M.D., Plaintiffs treating psychiatrist at the Veterans
Administration, do not include any type cognitive disorder diagnosis. See, e.g., Tr. 613, 640, 1178.
The ALJ' s reasoning is wholly suppmied by substantial evidence. Therefore, the inconsistency with
the other objective evidence in the record clearly provides a specific and legitimate basis for giving
Dr. Higgins-Lee's diagnosis and opinion less weight. The ALJ did not err in evaluating the opinion
Dr. Higgins-Lee.

B.

Scott 1Vfendelson, i'1LD. and Tonya Hall, LCSW

Plaintiff complains that the ALJ failed to provide specific and legitimate reasons for
discounting the August 12, 2014 opinion of Dr. Mendelson and Tonya Hall, LCSW. After the
hearing, but before the ALJ issued the decision, Dr. Mendelson and Ms. Hall prepared Mental
15- OPINION AND ORDER

Residual Functional Capacity Form ("MRFC"), in which they opined that Plaintiff has several
marked limitations and several moderate limitations. Tr. 1396-99. On the check-the-box MRFC
form, "moderate" limitations are defined as those which seriously interfere with "the individual's
ability to perfmm the designated activity on a regular and sustained basis." Tr. 1396. The MRFC
form defines "marked" limitations as those which "preclude[] the ability to perform the designated
activity on a regular and sustained basis." Tr. 1396. As the ALJ correctly indicated, Dr. Mendelson
and Ms. Hall opined that Plaintiff was moderately limited in his ability to remember locations and
work-like procedures, maintain attention and concentration for extended periods, perform activities
within a schedule, sustain an ordinmy routine without special supervision, work in proximity to
others without being distracted, make simple work-related decisions, interact appropriately with the
public, respond appropriately to criticism from supervisors, respond appropriately to changes in the
work place, take appropriate precautions around hazards, and set realistic goals. Tr. 1397-99. Dr.
Mendelson and Ms. Hall opined that Plaintiff would be markedly limited in his ability to understand,
remember, and carry out detailed instructions, complete a normal work day and work week without
interruptions from psychologically based symptoms without an unreasonable amount of rest periods,
and travel to unfamiliar places or use public transportation. Tr. 1397-99.
In the decision, the ALJ gave Dr. Mendelson and Ms. Hall's opinion "some weight" because
they failed to identify Plaintiffs diagnoses and or offer any clinical diagnoses to support the checkthe-box MRFC. Tr. 28. An ALJ may reject check-the-box forms that are inadequately explained .

.Molina, 674 F.3d at 1111; Crane v. Shala/a, 76 F.3d 251, 253 (9th Cir. 1996). As the ALJ aptly
concluded, the check the box form contains no infotmation, clinical findings, or explanation for the
boxes checked, limitations assessed, or diagnoses to support the assessed limitations. Thus, the ALJ

16 - OPINION AND ORDER

could reasonably discount the Dr. Mendelson and Ms. Hall's MRFC opinion because it lacked an
adequate explanation to support the conclusions contained therein. This is a specific and legitimate
reason for discounting the limitations assessed in the MRFC.
Additionally, the ALJ noted the limitations on the MRFC were inconsistent with degree of
restriction identified in Dr. Mendelson's treatment notes.

Tr. 30.

Inconsistency between a

physician's treatment notes and his opinion is a specific and legitimate basis to discount that opinion.

Ghanim, 763 F.3d at 1161; Tommasetti, 533 F.3d at 1041. As the ALJ discussed, Dr. Mendelson's
progress notes reflect that Plaintiff rep01ied a range of symptoms beginning in June 2011 such as
difficulty with mood !ability, impulse control, anger, and that Plaintiffreported improvement ofthese
symptoms with Cymbalta. Tr. 26, 638. Additionally, the ALJ discussed that Dr. Mendelson's notes
reflect that Plaintiff continued to complain of fatigue and shortness of breath and that
neuropsychological testing failed to reveal any cognitive dysfunction. Tr. 638. As the ALJ
accurately indicated, Plaintiffs presentation was often odd with his alleged deficits, and that his
speech, psychomotor activity and demeanor were normal. Tr. 618, 638, 1324-25. To be sure, Dr.
Mendelson's treatment notes do not reflect marked limitations in Plaintiffs ability to travel to
unfamiliar places or use public transportation, which is contrary to the limitations assessed in the
MRFC.
The cou1i is not persuaded by Plaintiffs contention that the ALJ failed to account for Dr.
Mendelson and Ms. Hall's assessed moderate limitations in Plaintiffs ability to interact with
supervisors. According to Plaintiff, this limitation fails to account for his "angry outbursts." See
Pl. 's Br. 15, ECFNo. 14. The ALJ thoroughly discussed the occasional references to ang1youtbursts
and inappropriate interactions contained in the record, and limited Plaintiff to no more than

17 - OPINION AND ORDER

occasional interaction with supervisors, coworkers, and the public in the RFC. Tr. 29-31. As the

ALI referenced, notations to "ang1y outbursts" and disrespectful behavior occuned during Plaintiffs
inpatient rehabilitation after Plaintiff left the premises on a weekend pass and consumed alcohol,
returned late from a second pass, and he ultimately was discharged from the program. Tr. 1066-67.
Rehabilitation staff indicated that Plaintiff seemed to have difficulty with the rules and committing
to the program. Tr. 1067. And, as the ALJ conectly indicated, the remaining complaints of anger
management and irritability stemmed from Plaintiffs wife. Tr. 30, 254, 425, 540. The ALJ
determined that "the social limits included in the RFC accommodate claimant's belligerent style of
interaction when drinking." Tr. 31. The ALJ's findings are wholly supported by substantial
evidence. Even if the record could support the conclusion that Plaintiff suggests, the ALJ' s findings
are supported by reasonable inferences drawn from the record and will not be disturbed. lvfolina, 674
F.3dat 1111.
Having reviewed Dr. Mendelson' s treatment notes, I conclude the ALJ could reasonably find
them inconsistent with the severity of the limitations assessed in the MRFC, and provides a specific
and legitimate basis for pmiially discounting the limitations assessed in the MRFC. Tommassetti,
533 F.3d at 1041.

III.

The ALJ Did Not Err in Discounting Lay Testimony of Plaintiff's Wife
Lay witness testimony as to how a claimant's symptoms affect his ability to work is

competent evidence, which the ALJ must take into account. }dolina, 674 F.3d at 1114; Nguyen v.
Chafer, 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 gennane reasons for doing so. Valentine, 574 F.3d
at 694.

18 - OPINION AND ORDER

In an April 30, 2012 third party Function Report, Plaintiffs wife, Barbara DeMers noted that
she spends six hours each day with Plaintiff. Ms. DeMers indicated that Plaintiff has trouble
remembering what he is supposed to do. She described that Plaintiff wakes up in the morning and
writes in his journal and does his reading. She noted Plaintiff does not have any difficulty with self
care, and can prepare his own breakfast and lunch. Tr. 249-50. Ms. DeMers indicated that Plaintiff
can load and unload the dishwasher, folds laundry, and waters the grass. She noted that Plaintiff
typically goes shopping with his brother, and can forget where he is going. Tr. 250.
Ms. DeMers indicated that Plaintiff cannot pay the bills because he cannot remember who
to pay and gets confused. Tr. 251. She reported that it can take all day for Plaintiff to write in his
journal because he has difficulty concentrating. Ms. DeMers also indicated that Plaintiff attends
men's group at church once a week and counseling once a week. Tr. 252. She also noted that
Plaintiff gets disoriented in large public spaces and is not comfortable in crowds. Tr. 252. Ms.
DeMers noted that Plaintiffhas difficulty tracking conversations, cannot follow instructions and gets
frustrated. Tr. 253. She estimated that Plaintiff can walk one mile before needing to rest for 15
minutes.
The ALJ provided several reasons gennane to Ms. DeMers for discounting her testimony.
First, the ALJ noted that Ms. DeMers' testimony parroted the allegations of Plaintiff, which the ALJ
rejected. Here, Ms. DeMers described that Plaintiff is unable to follow simple directions, suffers
short term memo1y loss, and has difficulty concentrating, allegations akin to those asserted by
Plaintiff. Tr. 248-29. As discussed at length above, the ALJ appropriately discounted Plaintiffs
similar subjective complaints. Therefore, the ALJ has provided a gennane reason for rejecting Ms.
DeMers' comparable testimony. }vfolina, 674 F.3d at 1114; Valentine, 574 F.3d at 694.

19. - OPINION AND ORDER

Second, the ALJ found Ms. DeMers' testimony inconsistent with the medical evidence of
record.

Inconsistency with the medical record can be a germane reason for discounting lay

testimony. Bayliss, 427 F.3d at 1218 (conflicts with the medical evidence a ge1mane reason to
discount lay testimony). But, the ALJ may not discredit lay testimony because it is not conoborated
by medical evidence. As the ALJ accurately found, contraiy to Ms. DeMers' statement that Plaintiff
is unable to follow simple instrnctions, repeated mental status examinations show that Plaintiff is
capable of following one to two step commands without difficulty. Tr. 473, 595-96, 624-26, 1152.
The ALJ' s reasoning is backed by substantial evidence, and therefore provides another reason
ge1mane to Ms. DeMers for discounting her testimony.
Third, the ALJ found that Ms. DeMers' allegations ofPlaintiffs limitations were inconsistent
with his abilities and activities. For example, the ALJ noted that Ms. DeMers indicated that plaintiff
had difficulty comprehending new information, yet Plaintiff admitted he learned computer
programming quickly. Again, the ALJ findings are readily suppo1ied by substantial evidence and
the ALJ could reasonably discredit Ms. DeMers on this basis. Accordingly, the ALJ has provided
multiple germane reasons germane to Ms. DeMers for discounting her testimony; the ALJ did not
err.

IV.

RFC Adequately Accounted for Any Alleged Cognitive Deficits or Problems with Pace
Plaintiff asse1is that the ALJ' s RFC assessment restricting him to "simple" work improperly

accounted for his alleged cognitive deficits. Pl.' s Opening Br. 14, Pl.' s Reply Br. 2-3. At step three,
the ALJ's found that Plaintiff has "moderate" limitations in concentration, persistence, and pace.
Tr. 22. The ALJ' s RFC assessment represents all of a claimant's work-related limitations, including
non-severe limitations. 20 C.F.R. §§ 404.1545(a)(l-2); 416.945(a)(l-2). An RFC restricting a

20 - OPINION AND ORDER

claimant to "simple" tasks, if based upon the record, may be consistent with a moderate or mild
limitation in concentration, persistence, and pace. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 117374 (9th Cir. 2008).
Plaintiff relies on previous findings by courts in this district addressing moderate or mild
limitations in concentration, persistence, and pace and an RFC restricting a claimant to "simple"
work. This court has found that such a work restriction alone, without further explanation by the
ALJ, does not adequately capture a "moderate" limitation in concentration, persistence, and pace.
See Lee v. Colvin, 80 F.Supp.3d 1137, 1150-51 (D. Or. 2015)(concluding that moderate limitation

in concentration, persistence, and pace was not addressed by ALJ, included in RFC or hypotheticals
to vocational expe1t); Brinkv. Comm 'r Soc. Sec. Admin., 343 Fed. App'x 211, 212 (9th Cir. 2009)
(finding the ALJ erred by accepting that claimant had limitations as to concentration, persistence,
or pace but failing to include such limitations in the RFC and hypothetical questions to vocational
expert). The comt finds these cases distinguishable.
On July 19, 2012, Dorothy Anderson, Ph.D., a reviewing psychologist for Disability
Determination Services ("DDS"), found that Plaintiff has "moderate" restrictions in concentration,
persistence, and pace in the psychiatric review technique utilized for assessing the "B" criteria for
psychological impairments. Tr. 106. However, later in the more detailed assessment of Plaintiffs
residual functional capacity, Dr. Anderson specifically opined that Plaintiff was not significantly
limited in his ability to understand, remember and cany out sho1t and simple instructions. Tr. 105.
Additionally, Dr. Anderson opined that Plaintiff can "cany out and maintain" concentration,
persistence, and pace for one to two step tasks, but is unable to do so for more complex tasks due
to his depressive symptoms. Tr. 106. On reconsideration, Robert Herny, Ph.D., another reviewing

21 - OPINION AND ORDER

psychologist for DDS, likewise found Plaintiff had moderate limitations with concentration
persistence and pace for the "B" critera. Tr. 121. Similarly, Dr. Herny provided additional detail
when assessing Plaintiffs RFC, opining that Plaintiff is not significantly limited in understanding,
remembering or carrying out short and simple instructions, and that Plaintiff is able to sustain and
maintain sufficient concentration, persistence and pace for 1-2 step tasks. Tr. 123-24. The ALJ gave
great weight to Drs. Anderson and Berny's opinions. Tr. 30.
In contrast, as discussed at length above, the ALJ properly rejected Dr. Higgins-Lee's

diagnosis of cognitive disorder at step two, properly rejected concentration, persistence, and pace
limitations assessed by Dr. Mendelson, properly discounted Plaintiffs testimony concerning his
alleged cognitive difficulties, trouble concentrating, and lack of focus, and rejected similar
allegations from the lay witness. The ALJ found that Plaintiffs alleged difficulty following simple
instructions was undermined by repeated mental status examinations showing him capable of
perfo1ming one to two step commands without difficulty and attributed Plaintiffs alleged cognitive
limitations to his depression and an.'i:iety.
In Stubbs-Danielson, the Ninth Circuit held that "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." Id. at 1174. Here, the ALJ
accepted medical testimony from Drs. Anderson and Herny, and rejected the cognitive limitations
assessed by Dr. Higgins-Lee, Dr. Mendelson, and Plaintiffs similar subjective complaints. The
cases cited by Plaintiff caution only that an ALJ must explain how a "simple" work restriction
adequately captures a "moderate" limitation in concentration, persistence and pace. Here the ALJ

22 - OPINION AND ORDER

gave such an explanation. The ALJ's RFC limiting Plaintiff to simple, routine, repetitive tasks
adequately captures his "moderate" limitations with concentration persistence and pace.
Therefore, unlike Lee and Brink and akin to Stubbs-Danielson, the accepted medical
testimony reflects that Plaintiff would have moderate limitations with detailed tasks, but he is not
significantly limited in his ability to cany out and maintain concentration, persistence, and pace for
simple, routine, and repetitive tasks. Tr. 106. Thus, the RFC adequately reflects the accepted
medical testimony, is supported by substantial evidence in the record as a whole, and therefore, the
ALJ did not e11". Stubbs-Danielson, 539 F.3d at 1174; see also Bray v. Comm 'r Soc. Sec. Admin.,
554 F.3d 1219, 1228 (ALJ did not e11" where RFC adequately accounted for limitations on detailed
tasks); iV!itchell v. Colvin, 642 F.App'x 731, 732-33 (9th Cir. 2016) (moderate limitations in
concentration, persistence and pace adequately captured in RFC limiting claimant to simple work);
Hartman v. As/rue, Case No. 3:10-cv-06305-ST, 2011 WL 7452802, *8-9 (D. Or. Dec. 2, 2011)

(same).
CONCLUSION

For the reasons set forth above, the Commissioner's final decision denying benefits to
Plaintiff is AFFIRMED. This action is DISMISSED.
·IT IS SO ORDERED.
DATED this /~day of MAY, 2017.

Malcolm F. Marsh
United States District Judge

23 - OPINION AND ORDER