1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 1

Plaintiff’s date of birth has been redacted in accordance with the General Order of the Court regarding Public Access

to Electronic Case Files, pursuant to the official policy on privacy adopted by the Judicial Conference of the United States.

REPORT AND RECOMMENDATION

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

SANDRA WHITE,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of 

Social Security,

Defendant.

CASE NO. C06-5333FDB-KLS

REPORT AND

RECOMMENDATION

Noted for January 5, 2007

Plaintiff, Sandra White, has brought this matter for judicial review of the denial of her application for

disability insurance benefits. This matter has been referred to the undersigned Magistrate Judge pursuant to

28 U.S.C. § 636(b)(1)(B) and Local Magistrates Rule MJR 4(a)(4) and as authorized by Mathews,

Secretary of H.E.W. v. Weber, 423 U.S. 261 (1976). After reviewing the parties’ briefs and the remaining

record, the undersigned submits the following Report and Recommendation for the Honorable Franklin D.

Burgess’ review.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff currently is fifty-five years old.1 Tr. 53. She has two years of college education and past

work experience as an accounts payable clerk. Tr. 97, 102, 126, 626. 

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 1 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

The Commissioner employs a five-step “sequential evaluation process” to determine whether a claimant is disabled.

See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. 

REPORT AND RECOMMENDATION

Page - 2

On September 21, 2001, plaintiff filed an application for disability insurance benefits, alleging

disability as of September 5, 2001, due to the following illnesses and conditions: fibromyalgia, foggy

thinking, intestinal infections, a growth hormone deficiency, the Epstein-Barr virus, a chronic fatigue

immune dysfunction syndrome, migraines, vomiting, seasonal affective disorder, environmental allergies and

chemical sensitivities, irritable bowel syndrome, osteoporosis, depression, and anemia. Tr. 53, 82-84, 96. 

Her application was denied initially and on reconsideration. Tr. 53-55, 61. 

A hearing was held before an administrative law judge (“ALJ”) on March 26, 2003, at which

plaintiff, represented by counsel, appeared and testified, as did a vocational expert. Tr. 31-52. On April 9,

2003, the ALJ issued a decision, determining plaintiff to be capable of returning to her past relevant work as

an accounts payable invoice clerk and therefore not disabled. Tr. 15-30. On April 28, 2003, plaintiff’s

request for review was denied by the Appeals Council. Tr. 5, 619. She appealed to this Court, where the

parties stipulated to remand the matter for further administrative proceedings. Tr. 619, 634-37. 

On remand, a second hearing was held before a different ALJ on March 7, 2006, at which plaintiff,

represented by counsel, again appeared and testified, as did two medical experts and a vocational expert. Tr.

958-996. On April 10, 2006, the ALJ issued a decision, also determining plaintiff to be not disabled, finding

specifically in relevant part:

(1) at step one of the disability evaluation process,2

 plaintiff had not engaged in

substantial gainful activity at any time relevant to the ALJ’s decision; 

(2) at step two, plaintiff had a “severe” combination of impairments consisting of

fibromyalgia, osteoporosis, mild degenerative disc disease of the lumbar spine,

migraine headaches, anemia, chronic bronchitis, gastroesophageal reflux disease,

a sleep disorder, a depressive disorder, and a somatoform disorder; 

(3) at step three, none of plaintiff’s impairments met or equaled the criteria of any of

those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; and

(4) at step four, plaintiff had the residual functional capacity to perform essentially

sedentary work, with other non-exertional limitations, which did not preclude her

from performing her past relevant work as an accounts payable clerk. 

Tr. 621-26. It does not appear from the record that the Appeals Council assumed jurisdiction of the case.

20 C.F.R. § 404.984. The ALJ’s decision therefore became the Commissioner’s final decision after sixty

days. Id. 

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 2 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

As indicated, plaintiff’s complaint was filed more than sixty days after the Commissioner issued her final decision. A

party may obtain judicial review of the Commissioner’s final decision by commencing a civil action in federal court “within sixty

days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.” 42 U.S.C. §

405(g); 20 C.F.R. §§ 404.981, 404.982, 416.1481, 416.1482. This “sixty-day time limit is not jurisdictional, but is instead a

statute of limitation which the Secretary may waive.” Banta v. Sullivan, 925 F.2d 343, 345 (9th Cir. 1991). As such, failure to

file within the sixty-day time limit is an affirmative defense, which “is properly raised in a responsive pleading.” Vernon v.

Heckler, 811 F.2d 1274, 1278 (9th Cir. 1987) (citing Federal Rule of Civil Procedure 8(c)). Because the Commissioner failed to

raise the statute of limitations as an affirmative defense in her responsive pleading, the issue is waived, and the undersigned will

deal with this matter on its merits. 

REPORT AND RECOMMENDATION

Page - 3

On June 14, 2006,3 plaintiff filed a complaint in this Court seeking review of the ALJ’s decision.

(Dkt. #1). Specifically, plaintiff argues that decision should be reversed and remanded for an award of

benefits or, in the alternative, for further administrative proceedings, for the following reasons: 

(a) the ALJ erred in evaluating the medical evidence in the record;

(b) the ALJ erred in assessing plaintiff’s residual functional capacity;

(c) the ALJ erred in assessing plaintiff’s credibility;

(d) the ALJ erred in evaluating the lay witness evidence in the record;

(e) the ALJ erred in finding plaintiff capable of returning to her past relevant work;

and

(f) in light of the vocational expert’s testimony, plaintiff should be found disabled at

step five of the disability evaluation process. 

The undersigned agrees the ALJ erred in determining plaintiff to be not disabled, but, for the reasons set

forth below, recommends that while the ALJ’s decision should be reversed, this matter should be remanded

to the Commissioner for further administrative proceedings. Although plaintiff requests oral argument in

this matter, the undersigned finds such argument to be unnecessary here. 

DISCUSSION

This Court must uphold the Commissioner’s determination that plaintiff is not disabled if the

Commissioner applied the proper legal standard and there is substantial evidence in the record as a whole to

support the decision. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). Substantial evidence is

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson

v. Perales, 402 U.S. 389, 401 (1971); Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir. 1985). It is more than

a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir.

1975); Carr v. Sullivan, 772 F. Supp. 522, 524-25 (E.D. Wash. 1991). If the evidence admits of more than

one rational interpretation, the Court must uphold the Commissioner’s decision. Allen v. Heckler, 749 F.2d

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 3 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 4

577, 579 (9th Cir. 1984). 

I. The ALJ’s Evaluation of the Medical Evidence in the Record

The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the

medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the medical evidence in the

record is not conclusive, “questions of credibility and resolution of conflicts” are solely the functions of the

ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such cases, “the ALJ’s conclusion must

be upheld.” Morgan v. Commissioner of the Social Security Administration, 169 F.3d 595, 601 (9th Cir.

1999). Determining whether inconsistencies in the medical evidence “are material (or are in fact

inconsistencies at all) and whether certain factors are relevant to discount” the opinions of medical experts

“falls within this responsibility.” Id. at 603. 

In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings “must be

supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this “by setting out a

detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation

thereof, and making findings.” Id. The ALJ also may draw inferences “logically flowing from the evidence.”

Sample, 694 F.2d at 642. Further, the Court itself may draw “specific and legitimate inferences from the

ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d 747, 755, (9th Cir. 1989). 

The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of

either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Even when a

treating or examining physician’s opinion is contradicted, that opinion “can only be rejected for specific and

legitimate reasons that are supported by substantial evidence in the record.” Id. at 830-31. However, the

ALJ “need not discuss all evidence presented” to him or her. Vincent on Behalf of Vincent v. Heckler, 739

F.3d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in original). The ALJ must only explain

why “significant probative evidence has been rejected.” Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07

(3d Cir. 1981); Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984). 

In general, more weight is given to a treating physician’s opinion than to the opinions of those who

do not treat the claimant. Lester, 81 F.3d at 830. On the other hand, an ALJ need not accept the opinion of

a treating physician, “if that opinion is brief, conclusory, and inadequately supported by clinical findings” or

“by the record as a whole.” Batson v. Commissioner of Social Security Administration, 359 F.3d 1190,

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 4 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 5

1195 (9th Cir.,2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242

F.3d 1144, 1149 (9th Cir. 2001). An examining physician’s opinion is “entitled to greater weight than the

opinion of a nonexamining physician.” Lester, 81 F.3d at 830-31. A non-examining physician’s opinion may

constitute substantial evidence if “it is consistent with other independent evidence in the record.” Id. at 830-

31; Tonapetyan, 242 F.3d at 1149. 

A. Dr. Meharg

Plaintiff was evaluated by Stephen S. Meharg, Ph.D., in late September 2005. Dr. Meharg noted

that while plaintiff’s medical history indicated she had been diagnosed formally with a sleep disorder, she

was “noncompliant with her prescribed” treatment therefor, a CPAP machine. Tr. 743. He further noted

that her psychiatric treatment had been “relatively limited,” although she related that Prozac, which she had

taken “for years,” had been helpful. Id. During the evaluation itself, while plaintiff exhibited “some

occasional shifting in her chair due to discomfort, no significant pain behaviors were observed.” Id. Her

pace and persistence also were average and slightly above average respectively, though she did show “some

tendency to have difficulty adjusting from one task to another.” Id. 

Plaintiff showed “excellent” attention and concentration, and described her recent mood as “kind of

down.” Id. Dr. Meharg noted she “tended to focus more on somatic symptoms of fatigue [rather] than any

clear descriptions of dysphoria or anxiety.” Id. Although plaintiff reported that the quality of her sleep

varied from night to night, she also stated that it was “generally adequate with her current medication

regimen.” Id. Further, plaintiff denied having any psychotic symptoms or “clinically significant anxiety

symptoms apart from situational tension.” Tr. 743-44. Her vocabulary, reasoning and general fund of

knowledge “were all within normal limits” as well. Tr. 744. 

Psychological testing conducted by Dr. Meharg showed plaintiff to be “in the average range of

overall intellectual functioning,” which he felt did not appear to suggest “any form of acquired cognitive

dysfunction.” Tr. 745-46. Such testing also indicated that plaintiff was not attempting to magnify her

psychiatric symptoms, though it did reveal “extreme elevations on measures of somatic preoccupation,

depression, and tendency to develop psychosomatic symptoms under stress.” Tr. 747. Dr. Meharg further

commented on this aspect of the testing results as follows:

This profile tends to represent a classic somatization syndrome, with primary symptoms

often involving pain, weakness, and profound fatigue. Although many of Ms. White’s

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 5 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 6

somatic symptoms represent emotional experiences expressed through physical means, it

is almost impossible to differentiate what symptoms are psychological and which have

the basis in genuine organic dysfunction. 

Id. 

Dr. Meharg diagnosed plaintiff with a “[p]ain disorder associated with psychological factors and a

general medical condition” and a major depressive disorder. Tr. 748. He also assessed her with a current

global assessment of functioning (“GAF”) score of 45, and noted that diagnostically, her psychological

profile, as revealed through testing, suggested “some form of somatization disorder overlaid on” her major

depression. Id. He considered “the long-term prognosis” for individuals such as her to be poor, as their

“behavior traits tend to be relatively constant and unchanging, despite what might appear to be short-lived

symptomatic relief in response to various medical and/or psychological interventions.” Tr. 747. 

Dr. Meharg opined that plaintiff herself likely was “quite unaware of the underlying psychological

processes contributing to her somatic situation,” and that she likely would not “accept any notion that her

physical symptoms have a psychological base.” Id. He further felt that her symptoms were less likely to be

supported by objective physical findings, with respect to which “traditional medicine interventions” also

were less likely to show relief, and that the ways in which her symptoms were presented and maintained

were “more influenced by emotional and social motivations (sometimes termed ‘secondary gain’).” Id. At

the same time, Dr. Meharg also completed a medical source statement of ability to do mental work-related

activities, in which he found that while plaintiff’s cognitive capacity to understand, remember and carry out

instructions remained intact, she was moderately impaired in her ability to interact appropriately with

supervisors, co-workers and the public, and markedly impaired in her ability to respond appropriately to

work pressures and changes in a work setting. Tr. 751-52. He felt her physical functioning, furthermore,

would “deteriorate quickly under stress.”

 Tr. 752. 

Plaintiff argues that while the ALJ briefly summarized portions of Dr. Meharg’s report, nowhere did

the ALJ provide any reasons for sub silentio rejecting his opined limitations. This, however, is not what the

ALJ actually did. While the ALJ did not expressly state in so many words that he was rejecting those

limitations, he did find as follows:

Stephen Meharg, Ph.D., an evaluating psychologist, opines claimant has no limitations in

her ability to understand, remember and carry out instructions. She is moderately

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 6 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 7

limited in the ability to interact with the public, coworkers and supervisors. She is

markedly limited in the ability to respond appropriately to work pressures in a usual

work setting and in the ability to respond appropriately to changes in a routine work

setting (Exhibit 30F). While the claimant’s somatic focus may result in some limitations

in her ability to interact with others and respond appropriately to changes and stress in a

work setting, the undersigned finds that in a routine type of work setting with occasional

public contact, she would be capable of interacting appropriately with others. She

would be capable of responding to work pressures and changes in a routine work

setting. Dr. [Lisa M.] Cosgrove found no impairment in her ability to maintain regular

attendance, work on a consistent basis, accept instructions from supervisors, or interact

with coworkers and the public, but noted that [the] claimant might prefer a desk job in

an independent setting (Exhibit 11F). Dr. Cosgrove’s assessment is more consistent

with the claimant’s daily functioning. She functions independently, manages finances, is

active in church activities and has required no mental health treatment. 

Charles Belleville, M.D., an evaluating psychiatrist, opined the available records did not

support that any of her medical or psychiatric conditions were preventing her from

working (Exhibit 35F). The opinion of Dr. Bellville is given significant weight. 

Tr. 626. Clearly, the ALJ rejected the limitations found by Dr. Meharg based in part on the findings and

opinions of these two other examining medical sources, which is a valid reason for doing so. See Saelee v.

Chater, 94 F.3d 520, 522 (9th Cir. 1996) (where opinion of examining physician is based on independent

clinical findings, it is within ALJ’s discretion to disregard conflicting opinion in another examining

physician’s diagnosis). 

In her reply brief, plaintiff attempts to discredit the opinions of Dr. Cosgrove and Dr. Bellville. The

undersigned finds plaintiff’s arguments in this regard to be without merit. In late February 2002, plaintiff

was referred to Dr. Cosgrove, a doctor of osteopathy, for a psychiatric evaluation by the Social Security

Administration. Tr. 406. Plaintiff appeared to be “in no acute distress,” her eye contact was appropriate,

and her attitude was “pleasant and cooperative.” Tr. 408. Her mood was euthymic and her affect broad. Id.

Dr. Cosgrove found no evidence of paranoia, delusions, hallucinations, or other issues regarding thought

content. Id. Plaintiff denied being a danger to herself or others, she was alert and oriented, and her speech,

stream of mental activity and concentration were all intact, as largely was her memory. Tr. 408-09. Insight

was deemed to be “nil,” but social functioning was thought to be “adequate.” Tr. 409. 

Dr. Cosgrove found that based on the mental status examination and plaintiff’s “continual wanting

to focus on her somatic problems,” the evidence was “suggestive of someone who has sublimated her

psychiatric conflicts into physical complaints.” Tr. 410. Thus, she diagnosed plaintiff with a somatoform

disorder, as well as dependent personality traits. Tr. 409-10. However, Dr. Cosgrove also assessed her with

a “present” GAF score of 70. Tr. 410. In terms of plaintiff’s prognosis, she opined:

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 7 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 8

Regarding the ability of the claimant’s illness to be treated, it certainly can be; however,

the claimant is somewhat defended against seeing a psychiatrist, although she has in the

past seen a counselor for a brief period of time. Therefore, likelihood of receovery

would be considered guarded.

Tr. 410. With respect to plaintiff’s functional capabilities, on the other hand, Dr. Cosgrove concluded in

relevant part as follows:

It is important to note that the claimant worked for many years with these complaints,

including working and wearing the environmental mask for almost 10 years. Therefore I

see no impairment in her ability to maintain regular attendance, work on a consistent

basis, accept instructions from supervisors, or interact with coworkers and the public. 

It [sic] realistic, however to think that she would likely prefer to be at a desk job in a

more independent setting. I would recommend that she be referred to the Department

of Vocational Rehabilitation for job skills retraining. 

Id. (emphasis in original). 

Clearly, Dr. Cosgrove’s conclusions regarding plaintiff’s work-related functional capacities are at

direct odds with those opined by Dr. Meharg. Plaintiff asserts, however, that the Court must appreciate the

time differences in the evaluations performed by these two examining medical sources. While it is true that

there is a significant time difference between the time Dr. Cosgrove issued her report and when Dr. Meharg

performed his evaluation, plaintiff fails to explain why a mere difference in time alone is cause for

discrediting Dr. Cosgrove’s findings. Although certainly where the evidence in the record as a whole

indicates there has been a change in the claimant’s profile, so that the later issued medical source opinion is

shown to more accurately reflect the true nature and effects of the alleged impairment, that later opinion

should be given greater weight. Here, however, plaintiff has made no such showing, nor does the record

indicate that this is necessarily the case. 

For example, Dr. Bellville, the other examining medical source opinion upon which the ALJ relied,

performed a psychiatric evaluation of plaintiff in mid-February 2005, less than eight months prior to the

psychological evaluation conducted by Dr. Meharg. Tr. 771. Dr. Bellville’s findings and opinion largely

comport with those of Dr. Cosgrove. Dr. Belleville observed that plaintiff “sat throughout the interview

without any significant emotional or physical distress.” Tr. 783. Her eye contact was “fairly good,” and

while her speech showed “a mild increase in latency” and was “slow and a little monotone,” it was “goaldirected and showed no signs of loose associations.” Tr. 784. Plaintiff’s use of vocabulary also was good, 

and her ability to carry on a conversation and to remember dates was intact. Id. 

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 8 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 9

Plaintiff denied, and she did not demonstrate, any psychotic symptoms, and her mood was “neutral

to mildly depressed,” while her affect was “mildly blunted.” Id. She was “fully oriented,” and her intellect,

fund of knowledge and “other executive functions” were generally intact. Id. Plaintiff was able to think

logically and abstract appropriately, and she showed “reasonably good” judgment. Tr. 784-85. Although

her insight was limited, she had no suicidal or homicidal ideations. Tr. 785. 

Dr. Bellville noted that while plaintiff “may have had major depression at times in her life,” that

appeared “currently to be in partial to full remission.” Tr. 787. Thus, he diagnosed her with dysthymia, or

chronic low-grade depression. Id. In addition, Dr. Belleville noted that there seemed to be “a question as to

somatoform disorder,” and thus that she tended “to over-focus on somatic complaints” and had “ a lot of

complaints of pain with unclear objective documentation.” Id. He also noted that there might be “a history

of generalized anxiety disorder as well as possible agoraphobia or social phobia.” Id. 

Dr. Bellville further opined, as had Dr. Cosgrove three years earlier, that her GAF score had been

“in the 65-70 range” in recent times. Tr. 788. Although Dr. Bellville noted that plaintiff appeared to have

“a number of medical problems,” and felt that the “major reason” she was not currently working was

because she over-focused on her physical symptoms and had “a longstanding history of some depression

and anxiety,” he concluded that it was “not supported by the available records that any of her medical or

psychiatric conditions” were “preventing her from working.” Tr. 785. 

Plaintiff next argues that there is no evidence in the record that Dr. Cosgrove, who, as noted above,

is a doctor of osteopathy, “was Board Certified in psychiatry.” Plaintiff’s Reply Brief, p. 4. While this may

be true, although the record is not clear either way on this issue, plaintiff has not shown exactly what being

“board certified” implies in this context in terms of the credibility of Dr. Cosgrove and her findings and

opinion. Indeed, the assumption that psychiatric or psychological evidence must be offered only by those

who have been board certified “is clearly erroneous,” as “[t]here is no such requirement in the [Social

Security] regulations.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). As such, the Court finds

this argument to be completely without merit. 

Plaintiff also attempts to discredit the findings and opinions of both Dr. Cosgrove and Dr. Bellville

by asserting that they did not conduct any psychological testing. However, neither of these medical sources

are psychologists. Accordingly, while they certainly may choose to conduct such testing when evaluating a

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 9 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 10

claimant, they do not necessarily have to do so. Indeed, at least in the case of Dr. Bellville, plaintiff has not

presented anything to show that a psychiatrist must perform psychological testing in order to be qualified to

opine on the nature of a claimant’s mental impairments and functional capabilities. 

For the same reason, plaintiff’s argument that Dr. Bellville’s opinion regarding plaintiff’s mental

work-related functioning must be discounted because he had no psychological evaluations to rely on when

opining that it is “not supported by the available records that any of her medical or psychiatric conditions”

were “preventing her from working,” is equally flawed. Tr. 785. Thus, whether or not the record indicates

Dr. Bellville himself is “board certified,” plaintiff has not shown that he is not a licensed psychiatrist, and

thus that he is not qualified to make findings with respect to and give an opinion on her mental functional

capabilities based on the medical evidence in the record available to him, not to mention based on his own

psychiatric evaluation. As such, the Court rejects this argument as well. 

Plaintiff also makes much of the fact that Dr. Bellville does not specifically discuss the reports of

two non-examining consultative psychologists, Bruce Eather, Ph.D., and Charles Regets, Ph.D., or the

opinion evidence from Dr. Robert M. Bennett, her rheumatologist, while he discussed others. She argues

such lack of express discussion of the medical records from Drs. Eather, Regets and Bennett, makes clear

that he did not review this evidence. First, however, Dr. Bellville does specifically mention and discuss in

his evaluation report at least some of the medical opinion evidence and clinical notes from Dr. Bennett. See

Tr. 780-82. Second, the mere fact that Dr. Bellville did not mention specifically the non-examining report

of Dr. Eather and Dr. Regets does not mean he did not consider it. Even if he did not consider it, however,

it was not necessarily remiss of him to focus only on the objective, clinical evidence in the record. Finally,

plaintiff notes that Dr. Bellville also did not mention the report of Dr. Cosgrove. As discuss above though,

Dr. Bellville’s findings and opinion are consistent with those of Dr. Cosgrove. 

B. Dr. Bennett

Plaintiff further takes issue with the ALJ’s analysis of Dr. Bennett’s opinion regarding her ability to

be consistently employed. Dr. Bennett began treating plaintiff as early as early May 1990. Tr. 273. At that

time, Dr. Bennett found that she had “the classical findings of fibromyalgia,” as well as “some significant

psychological problems.” Tr. 274-75. His clinical notes, however, show that she continued to work full

time and get good relief from myofascial trigger point injections through at least late June 2001. Tr. 211,

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 10 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 11

213, 222, 231-32, 236, 239, 246-47, 249, 251-52, 257, 259, 263-64. Indeed, in both mid-November 2000,

and late June 2001, Dr. Bennett stated he had been “quite impressed” that plaintiff had “managed to remain

fully employed despite her pain and fatigue problems.” Tr. 211, 222. In mid-November 2000, he also had

noted she was “displaying much better self-efficacy and less catastrophization.” Tr. 222. 

In a letter dated August 16, 2001, Dr. Bennett stated that plaintiff had chronic fatigue syndrome,

fybromyalgia, osteoporosis, migraine headaches and depression, this latter condition, he noted however,

“currently well controlled.” Tr. 207. In a letter dated September 4, 2001, Dr. Bennett stated that plaintiff’s

fibromyalgia, chronic fatigue syndrome, osteoporosis, and growth hormone deficiency were all “currently

incurable,” while her depression was “partially controlled.” Tr. 205. He further stated that plaintiff had

“now got to a stage in her medical problems” that made it “impossible for her to be consistently employed in

an efficient and productive manner.” Id. Thus, Dr. Bennett recommended that “she be permanently disabled

and no longer able to work” as of September 5, 2001. Id. 

The record also contains a “Proof of Disability Statement,” dated January 7, 2003, and signed by Dr.

Bennett. Tr. 615. In that statement, Dr. Bennett states that he considered plaintiff to be disabled and to be

unable to be regularly employed due to fibromyalgia, depression, and major family stressors. Id. While Dr.

Bennett states that plaintiff has had the last of these disabling conditions for the past one and a quarter

years, he further states that her “disability” occurred on September 5, 2001. Id. 

With respect the statements Dr. Bennett provided in early September 2001, and early January 2003,

regarding plaintiff’s disability, the ALJ found as follows:

Dr. Bennett’s assessment involves vocational issues of which he has no expertise. He

failed to respond to a subpoena to appear at the hearing. Therefore, the undersigned has

been unable to seek clarification of his opinion. However, Dr. Bennett did provide

additional treatment records which have been considered. As noted above, although Dr.

Bennett refers to a diagnosis of chronic fatigue syndrome, his treatment records reveal

this diagnosis was not reached despite a work-up completed specifically to evaluate her

fatigue. [Medical expert] Dr. [Frank E.] McBarron testified that she does not meet the

diagnostic criteria for chronic fatigue syndrome. He also testified claimant’s growth

hormone deficiency does not result in any work-related functional limitations. While the

claimant does have fibromyalgia and osteoporosis, there is no evidence that these are

completely debilitating conditions. She worked for many years despite these conditions

and Dr. Bennett’s treatment notes do not reflect a worsening of her condition in

September 2001. In fact, in a letter date August 16, 2001, he reported he had not seen

the claimant since December 2000 (Exhibit 6F-187). His October 2001 notes reflect

good results from injections on September 14, 2001 (Exhibit 39F-554). The opinions of

Dr. Bennett are not consistent with the treatment record and are given little weight. 

Tr. 625. While plaintiff appears to take issue with the ALJ’s analysis of Dr. Bennett’s opinions regarding

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 11 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 12

her disability, her bases for challenging that analysis are not particularly clear. 

Plaintiff first seems to imply that the ALJ did not do enough to seek clarification from Dr. Bennett,

stating that “[a]ll that was required was a simple letter requesting clarification.” Plaintiff’s Opening Brief, p.

17. However, it is not at all clear that sending an additional letter to Dr. Bennett requesting clarification,

after he already had failed to comply with the subpoena request, would have produced the desired result. 

Indeed, as noted by the ALJ, while he did not appear in response to the subpoena, Dr. Bennett did submit

additional treatment notes, indicating at least that he was aware of the need for further clarification or other

documentation regarding his findings and opinions. Thus, while the ALJ does have a duty “to fully and

fairly develop the record and to assure that the claimant’s interests are considered,” the Court finds he met

that duty here, and that he was not required to make the additional request for information plaintiff argues

he should have made here. Tonapetyan, 242 F.3d at 1150 (citations omitted). 

Plaintiff argues Dr. Bennett’s opinions are consistent with those of Drs. Meharg, McBarron, Eather

and Regets, but does not explain in what ways they are consistent. Indeed, a review of the reports and

opinions of these medical sources reveals no such consistency. For example, while Dr. Bennett opined that

plaintiff was disabled and unable to work, he did so primarily on the basis of her physical impairments and

depression. See Tr. 205, 615. On the other hand, although Dr. Meharg found plaintiff had moderate and

marked impairments in her ability to interact appropriately to co-workers, supervisors, and the public, and

to respond appropriately to work pressures and changes in a work setting based on her on her depression

(Tr. 752), he did not specifically find her disabled. Further, although Dr. Bennett, as noted above, based his

finding of disability in part on plaintiff’s depression, there is nothing in his treatment records to indicate how

he came to this conclusion. 

With respect to Dr. Eather and Dr. Regets, as psychologists not surprisingly they made no findings

regarding plaintiff’s physical symptoms or impairments. Indeed, even their mental functional capabilities

assessment is not particularly consistent with those of either Dr. Bennett or Dr. Meharg. That is, although

Dr. Bennett found plaintiff to be disabled in part due to her depression, and Dr. Meharg opined she had

moderate to marked limitations as a result thereof, Drs. Eather and Regets found that she had only mild to

moderate mental functional limitations based on a somatoform disorder. Tr. 435-36. 

Unlike Dr. Bennett, furthermore, Dr. McBarron testified that he could not see where the diagnosis

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 12 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 13

of growth hormone deficiency had any meaning. Tr. 977. In addition, in regard to the issue of plaintiff’s

chronic fatigue syndrome, “nowhere in the record” could Dr. McBarron find the criteria for that condition

had been looked at, let alone met. Tr. 978. Dr. McBarron also testified that a number of her conditions,

including her fibromyalgia and sleep disorder, could account for plaintiff’s symptoms of fatigue, although he

felt her sleep disorder and de-conditioning to be the causes “more than anything else.” Tr. 979-80. Yet, at

no point during the administrative hearing did Dr. McBarron testify or indicate any of plaintiff’s alleged

impairments, physical or mental, were at all disabling. 

Finally, the Court notes that the specific reasons the ALJ provided for discounting the opinions of

Dr. Bennett regarding plaintiff’s disability were specific and legitimate. First, the ALJ appropriately may

decline to accept even a treating physician’s opinion regarding a claimant’s condition, vocational outlook,

or even “the ultimate issue of disability,” if supported by the record. Magellanes v. Bowen, 881 F.2d 747,

751 (9th Cir. 1989). Here, the record contains such support. As noted by the ALJ, there is no indication in

either Dr. Bennett’s treatment notes or elsewhere in the record that plaintiff’s chronic fatigue syndrome,

growth hormone deficiency, fibromyalgia or osteoporosis are of disabling severity. Indeed, in addition to

Dr. McBarron, at least one other medical source found her chronic fatigue syndrome, fibromyalgia and

oseoporosis did not disqualify her from all work. Tr. 428-33. 

Both Dr. Bennett and the ALJ also noted that plaintiff had managed to work for many years despite

the presence of the above conditions. In addition, the ALJ pointed out that it had been over eight months

since Dr. Bennett last saw plaintiff when he issued his first statement of disability. See Tr. 207. Lastly, at

least with respect to her fibromyalgia, again, as noted by the ALJ, plaintiff showed good responses to her

trigger point injections, which she had continued to receive for a number of years and well into late 2001. 

Thus, for all of these reasons, the ALJ properly gave little weight to Dr. Bennett’s opinions. 

II. The ALJ’s Assessment of Plaintiff’s Residual Functional Capacity

If a disability determination “cannot be made on the basis of medical factors alone at step three of

the evaluation process,” the ALJ must identify the claimant’s “functional limitations and restrictions” and

assess his or her “remaining capacities for work-related activities.” SSR 96-8p, 1996 WL 374184 *2. A

claimant’s residual functional capacity assessment is used at step four to determine whether he or she can do

his or her past relevant work, and at step five to determine whether he or she can do other work. Id. It thus

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 13 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 14

is what the claimant “can still do despite his or her limitations.” Id. 

A claimant’s residual functional capacity is the maximum amount of work the claimant is able to

perform based on all of the relevant evidence in the record. Id. However, a claimant’s inability to work

must result from his or her “physical or mental impairment(s).” Id. Thus, the ALJ must consider only those

limitations and restrictions “attributable to medically determinable impairments.” Id. In assessing a

claimant’s residual functional capacity, the ALJ also is required to discuss why the claimant’s “symptomrelated functional limitations and restrictions can or cannot reasonably be accepted as consistent with the

medical or other evidence.” Id. at *7. 

Here, the ALJ assessed plaintiff with the following residual functional capacity:

[The] claimant has the residual functional capacity to lift 10 pounds occasionally and less

than 10 pounds frequently. She can stand and walk 2 hours out of an 8-hour day and sit

6 hours out of an 8-hour day. She can occasionally climb, balance, stoop, kneel, crouch

and crawl. She is capable of simple, and some complex repetitive activities. She is

limited to occasional contact with the general public. 

Tr. 622. 

A. Dr. Eather and Dr. Regets

Dr. Eather and Dr. Regets completed a psychiatric review technique form in early March 2002. 

Based on their review of the record, they diagnosed plaintiff with a somatoform disorder, which they found

resulted in moderate restrictions in her activities of daily living, moderate difficulties in maintaining social

functioning and in maintaining concentration, persistence or pace, and no episodes of decompensation. Tr.

445, 449. In a mental residual functional capacity assessment form completed at the same time, Dr. Eather

and Dr. Regets found her moderately limited in her ability to: understand, remember and carry out detailed

instructions; maintain attention and concentration for extended periods; complete a normal workday and

workweek; perform at a consistent pace; interact appropriately with the general public; accept instructions

and respond appropriately to criticism from supervisors; and respond appropriately to changes in the work

setting. Tr. 435-36. Drs. Eather and Regests further opined that she was “capable of simple and some

complex repetitive activity on a persistent basis,” and “would likely work more successfully away from the

general public.” Tr. 437. 

Plaintiff argues the ALJ erred in evaluating the mental residual functional capacity assessment form

completed by Dr. Eather and Dr. Regets, by failing to specifically discuss the moderate mental functional

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 14 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 15

limitations contained therein, and why he did not accept all of them. The undersigned agrees. In his

decision, the ALJ stated that he gave the state agency consultant opinions “significant weight,” which found

plaintiff to be “capable of simple, and some complex repetitive activities,” and “would likely work more

successfully away from the general public.” Tr. 626. However, as noted above, plaintiff also was found to

be moderately limited in her ability to: maintain attention and concentration for extended periods; complete

a normal workday and workweek; perform at a consistent pace; accept instructions and respond

appropriately to criticism from supervisors; and respond appropriately to changes in the work setting. 

Nowhere in his discussion of plaintiff’s residual functional capacity though, did the ALJ state why he did not

adopt these additional limitations. This was error. 

On the other hand, it is not clear that the ALJ was required to include these additional more specific

limitations in his assessment of plaintiff’s residual functional capacity, or that he even considered them. For

example, as discussed above, the ALJ did not err in rejecting the opinion of Dr. Meharg, who found her to

be moderately limited in her ability to interact appropriately with co-workers and supervisors. In addition,

Dr. Bellville found no similar mental functional limitations, and Dr. Cosgrove expressly found she would

have “no impairment in her ability to maintain regular attendance, work on a consistent basis, and accept

instructions from supervisors, or interact with coworkers.” Tr. 410. Dr. Cosgrove, furthermore, found no

problems with plaintiff’s concentration during her evaluation. Tr. 409. 

B. Plaintiff’s Somataform Disorder

Plaintiff argues the ALJ erred in failing to include in his assessment of her residual functional

capacity, any limitations resulting from her somatoform disorder, even though that disorder was found by

the ALJ to be severe. She asserts the ALJ failed to include any such limitations because he did not

understand that a somatoform disorder involves both physical and mental limitations. Plaintiff points to

several cases that deal with somatoform, or somatization, disorders as asserted bases for claiming disability

to support her argument. The Court, however, finds that none of those cases help her. 

At least two courts have noted or adopted the following definition of these types of disorders:

[T]he essential features of this group of disorders are physical symptoms suggesting

physical disorder, transience, somatoform, for which [sic] are no demonstrable organic

findings or known physiological mechanism and for which there is positive evidence or a

strong presumption that the symptoms are [linked] to psychological factors or conflicts. 

Carr v. Sullivan, 772 F.Supp. 522, 530 (E.D. Wash. 1991) (citation omitted); see also Parks v. Sullivan, 766

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 15 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 16

F.Supp. 627, 635 (N.D. Ill. 1991). Courts also “have recognized the disabling nature of somatoform

disorders, especially when they combine with physical impairments.” Carr, 772 F.Supp. at 530 (citing Teter

v. Heckler, 775 F.2d 1104, 1106 (10th Cir. 1985); Carrillo v. Bowen, 636 F.Supp. 97, 101 (D. Ariz. 1986)). 

Thus, “[c]omplaints of pain cannot be dismissed as incredible merely because they stem in part from a

psychological abnormality, so long as the abnormality is shown by ‘medical signs and findings, established

by medically acceptable clinical or laboratory diagnostic techniques.’” Teter, 775 F.2d at 1106 (quoting 42

U.S.C. § 423(d)(5)(A)(1985 Supp.); Carr, 772 F.Supp. at 530. 

While it may be that an ALJ may not merely consider the psychiatric and psychological evidence

relating to a claimant’s somatoform disorder only so far as it concerns the claimant’s “ability to perform

mentally and emotionally,” because such an approach “reflects a lack of understanding and appreciation of

the diagnoses of that mental disorder,” such is not the case here. Parks, 766 F.Supp. at 637. There is no

indication that the ALJ misunderstood the nature of the diagnosis. Indeed, as noted by plaintiff herself, the

ALJ found her somatoform disorder to be “severe.” 

Plaintiff implies this finding alone – i.e., a finding of severity – requires that limitations from the

particular impairment must be included in the ALJ’s residual functional capacity assessment. The step two

severity inquiry, however, is merely a de minimis screening device used to dispose of groundless claims. 

Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). In other words, just because a claimant is found to

have a severe impairment or combination of impairments, does not itself mean the substantial evidence in

the record supports inclusion of any limitations that may stem therefrom in the residual functional capacity

assessment. Other than the moderate mental functional limitations discussed above that the ALJ failed to

address, plaintiff has pointed to no other limitations stemming from her somatoform disorder that the ALJ

failed to consider or was required to include in her residual functional capacity assessment. 

In each of the cases cited by plaintiff, furthermore, not only was there a failure to understand by the

Commissioner the nature of a somatoform disorder, but the weight of the medical evidence supported a

finding of disability on the basis of that impairment. In one case, for example, the court expressly found the

ALJ had ignored the “overwhelming psychiatric and psychological findings” that the claimant was

“experiencing real pain that would render her unable to perform physically in a work environment.” Parks,

766 F.Supp. at 637. In another case, the court determined that the Appeals Council improperly discounted

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 16 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 17

substantial evidence in the record, which indicated the claimant was experiencing “anxieties regarding his

physical condition which” were “somatically manifested and preclusive of his ability to function in a work

environment.” Carrillo, 636 F.Supp. at 100. 

As before, plaintiff argues the ALJ erred in evaluating the opinion of Dr. Meharg. The Court has

explained already why the ALJ did not err in this regard, and will not do so again. Plaintiff further argues

the ALJ’s reliance on the evaluations and opinions of Drs. Bellville and Cosgrove was improper, pointing to

the fact that neither medical source conducted any psychological testing. Once more, for the reasons set

forth above, the Court rejects this basis for discounting their opinions. Plaintiff also now raises the issue

that Dr. Cosgrove had no medical evidence to review at the time of her report. However, plaintiff makes no

persuasive argument that a review by Dr. Cosgrove of other medical evidence in the record was needed,

particularly in light of the fact that she did her own psychiatric examination and, as a doctor of osteopathy,

also had a legitimate background for assessing plaintiff’s physical condition as well. 

Next, plaintiff asserts Dr. Cosgrove conceded that as a result of her somatoform disorder and

depression, she was limited to occasional contact with the general public and only capable of simple and

some complex tasks. While Dr. Cosgrove did diagnose plaintiff with a somatoform disorder, she made no

such findings regarding the above limitations. Rather, it was the opinion of Dr. Eather and Dr. Regets that

plaintiff had these limitations based on her somatoform disorder. Even so, as discussed above, the ALJ in

fact included these limitations in his assessment of plaintiff’s residual functional capacity, and the Court, also

as discussed above, already has found the ALJ erred in failing to address the other specific moderate mental

functional limitations found by Drs. Eather and Regets. 

Plaintiff argues the ALJ ignored or overlooked the fact that Dr. Bellville listed her “[c]ontributing

physical problems” of fibromyalgia, osteoporosis, and sleep apnea, among other alleged impairments as

found in the record. See Tr. 787. There is no evidence in the record or the ALJ’s decision that the ALJ

ignored or overlooked this notation of Dr. Bellville’s. Even if the ALJ did not specifically consider it,

however, plaintiff has not shown what bearing this would have on the issue of which limitations she feels

should have been included in her residual functional capacity assessment. Indeed, as noted by the ALJ and

discussed above, Dr. Bellville expressly opined that the evidence did not support a finding that any of her

medical or psychiatric conditions were preventing her from working. Tr. 785. 

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 17 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 18

Plaintiff points to the other statement in his report that the main reason she was not working was

because she over-focused on her physical symptoms and had a long-standing history of some depression and

anxiety, as being consistent with a somatoform disorder. Tr. 785. Plaintiff further asserts that this is

consistent with the testimony of Dr. Robert John McDevitt, who noted there were indications in the record

of diagnoses of somataform disorder. See 984-85. As such, plaintiff argues Dr. Bellville “simply missed”

this diagnosis. Plaintiff’s Opening Brief, p. 22. Again, though, the mere existence of an impairment does

not establish disability, and Dr. Bellville did opine that plaintiff was capable of working. See Matthews v.

Shalala, 10 F.3d 678, 680 (9th Cir. 1993). To the extent that opinion may be inconsistent with his remarks

concerning the “main reason” plaintiff was not working, furthermore, that conflict is solely for the ALJ to

decide. See Reddick, 157 F.3d at 722; Sample, 694 F.2d at 642. 

In addition, while Dr. Bellville himself may not have come outright and stated plaintiff suffered from

a somatoform disorder, he did note there was at least a question of that diagnosis in the record and that she

tended to “over-focus on somatic complaints.” Tr. 787. Therefore, plaintiff’s attempts to convince this

Court otherwise notwithstanding, she has not shown Dr. Bellville “simply missed” her true diagnosis or that

he was unaware of the nature of somatization type disorders. Indeed, as indicated above, he appears to be

well aware of their nature, as one would expect of a licensed psychiatrist, i.e., one who is trained to deal

with both the mental and physical aspects of medical care. In any event, also as discussed above, Dr.

Bellville’s findings and opinion are largely consistent with those of Dr. Cosgrove, who herself did diagnose

plaintiff outright with a somatoform disorder. 

III. The ALJ Properly Assessed Plaintiff’s Credibility

Questions of credibility are solely within the control of the ALJ. Sample v. Schweiker, 694 F.2d

639, 642 (9th Cir. 1982). The Court should not “second-guess” this credibility determination. Allen, 749

F.2d at 580. In addition, the Court may not reverse a credibility determination where that determination is

based on contradictory or ambiguous evidence. Id. at 579. That some of the reasons for discrediting a

claimant’s testimony should properly be discounted does not render the ALJ’s determination invalid, as long

as that determination is supported by substantial evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th

Cir. 2001). 

To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent reasons for the

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 18 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 19

disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (citation omitted). The ALJ “must identify

what testimony is not credible and what evidence undermines the claimant’s complaints.” Id.; Dodrill v.

Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence shows the claimant is malingering,

the ALJ’s reasons for rejecting the claimant’s testimony must be “clear and convincing.” Lester, 81 F.2d at

834. The evidence as a whole must support a finding of malingering. O’Donnell v. Barnhart, 318 F.3d 811,

818 (8th Cir. 2003). 

In determining a claimant’s credibility, the ALJ may consider “ordinary techniques of credibility

evaluation,” such as reputation for lying, prior inconsistent statements concerning symptoms, and other

testimony that “appears less than candid.” Smolen, 80 F.3d 1273 at 1284. The ALJ also may consider a

claimant’s work record and observations of physicians and other third parties regarding the nature, onset,

duration, and frequency of symptoms. Id. 

The ALJ found plaintiff’s “statements concerning the intensity, duration and limiting effects” of her

symptoms to be “not entirely credible.” Tr. 623. For example, the ALJ found her allegations of debilitating

fatigue to be “not entirely credible in light of her lack of compliance with treatment recommendations for

sleep apnea.” Id.; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (claimant’s failure to assert good reason

for not following prescribed course of treatment can cast doubt on sincerity pain testimony). In addition,

the ALJ noted that while plaintiff alleged debilitating pain, trigger point injections consistently resulted in

good relief and her migraines were well-controlled by medication. Tr. 623-24; Morgan v. Commissioner of

Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (ALJ may discount claimant’s credibility on basis of

medical improvement); see also Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). 

The ALJ further noted other areas where plaintiff’s complaints were inconsistent with the medical

evidence in the record. Tr. 623-24; Regennitter v. Commissioner of SSA, 166 F.3d 1294, 1297 (9th Cir.

1998) (ALJ determination that claimant’s complaints are inconsistent with clinical observations can satisfy

clear and convincing requirement). While plaintiff makes a general assertion that the ALJ erred in

discounting her credibility, she points out no specific instances of impropriety. However, such a broad,

unsubstantiated allegation is wholly insufficient to prevail on this issue. Plaintiff does state that the lay

witness statements in the record supported plaintiff’s testimony. However, even if this were a proper basis

on which to challenge the ALJ’s credibility assessment, a finding the undersigned does not make, the ALJ,

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 19 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 20

as discussed below, also properly evaluated the lay witness statements contained in the record. 

IV. The ALJ Did Not Err in Evaluating the Lay Witness Statements in the Record

Lay testimony regarding a claimant’s symptoms “is competent evidence that an ALJ must take into

account,” unless the ALJ “expressly determines to disregard such testimony and gives reasons germane to

each witness for doing so.” Lewis v. Apfel, 236 F.3d, 503, 511 (9th Cir. 2001). An ALJ may discount lay

testimony if it conflicts with the medical evidence. Id.; Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.

1984) (proper for ALJ to discount lay testimony that conflicts with available medical evidence). In rejecting

lay testimony, the ALJ need not cite the specific record as long as “arguably germane reasons” for

dismissing the testimony are noted, even though the ALJ does “not clearly link his determination to those

reasons,” and substantial evidence supports the ALJ’s decision. Lewis, 236 F.3d at 512. The ALJ also may

“draw inferences logically flowing from the evidence.” Sample, 694 F.2d at 642. 

Plaintiff submitted the statements of three lay witnesses with her application. The ALJ discounted

all three such statements for the following reasons:

Bill White, the claimant’s spouse, reported in October 2001 that she could move about

for about one hour. She sometimes used a scooter. Carrying objects made her hands

cramp up. When tired she turned words around. Writing for a long time made her

shoulder muscles ache. She was in a better frame of mind since quitting her job (Exhibit

4E). The observations of Mr. White are not entirely credible in light of the treatment

record. While the claimant may use a motorized scooter, this has not been medically

prescribed. There is no evidence of a hand impairment. The claimant reports playing

the keyboard (Exhibit 36F-498). Psychological evaluations have revealed no evidence

of communication difficulties. 

Laura Keesee, a friend of the claimant reported in April 2002 that she moved slowly and

stiffly. She used a mobile shopping cart at the store and a wheelchair at parks and

stores. She had difficulty with climbing stairs. She did not lift heavy things. She rested

often. Her hands cramped up after writing for awhile. She had migraine headaches

which took her off her feet for days. She was on a lot of medications (Exhibit 7E). The

observations of Ms. Keesee are not entirely credible. While the claimant may use a

motorized scooter, this has not been medically prescribed. There is no evidence of a

hand impairment and no evidence that her migraine headaches are not controlled with

medication. 

Kandi Haynes, a friend of the claimant, reported in April 2002 that [the] claimant was

extremely limited due to weakness. She could walk 1⁄4 to 1⁄2 block (Exhibit 8E). The

report of Ms. Haynes is not consistent with the claimant’s own statements that she is

able to stand and walk up to one hour before resting (Exhibits 3E, 9E). 

Tr. 624-25. Plaintiff argues these are not germane reasons for rejecting the lay witness statements in the

record. The undersigned disagrees. 

As noted above, the ALJ may discount lay testimony if it conflicts with the medical evidence in the

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 20 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 21

record. Lewis, 236 F.3d at 511; Vincent, 739 F.2d st 1395. For example, here the ALJ correctly noted that

while Mr. White and Ms. Keesee stated plaintiff used a motorized scooter to get around at times and that

her hands cramped up, no such scooter was ever medically prescribed and there was no objective medical

evidence of a hand impairment. Plaintiff argues the ALJ ignored the testimony of Dr. McBarron and his

own determination that she had a “severe” somatoform disorder. Dr. McBarron, however, never provided

any testimony regarding any hand impairment or the need for a motorized scooter, and, as discussed above,

the mere fact that the ALJ found plaintiff’s somatoform disorder to be severe does not in itself necessarily

support the additional mental or physical limitations testified to by these lay witnesses. 

Plaintiff next argues Ms. Hanes’ lay witness statement regarding the limitations on her ability to

walk in April 2002, reflected the ability to walk at that particular time and was consistent with plaintiff’s

testimony that some days were worse than others. As discussed above, however, the ALJ did not err in

discounting plaintiff’s credibility regarding her symptoms and impairments. In addition, the testimony of

Ms. Hanes concerning plaintiff’s ability to walk is not necessarily consistent with claims that some days are

worse than others, and, even if it could be so argued, the ALJ’s interpretation is equally valid. See Reddick,

157 F.3d at 722 (ALJ is responsible for determining credibility and resolving ambiguities and conflicts in

evidence); Allen, 749 F.2d at 579 (court may not reverse credibility determination where that determination

is based on contradictory or ambiguous evidence). Finally, as noted by the ALJ, Ms. Hanes’ testimony

contradicted plaintiff’s own testimony on the specific subject of her walking ability. 

V. The ALJ Erred in Finding Plaintiff Capable of Returning to Her Past Relevant Work

Plaintiff has the burden at step four of the disability evaluation process to show that she is unable to

return to her past relevant work. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). Here, the ALJ

found plaintiff’s residual functional capacity, as set forth above, did not preclude her from returning to her

past relevant work as an accounts payable clerk. Tr. 626. Plaintiff argues the limitation to “simple, and

some complex repetitive activities” contained in that assessment precludes her from being able to perform

this particular job. Tr. 622. The undersigned agrees. 

Plaintiff asserts the job of accounts payable clerk as identified by the vocational expert and defined

by the Dictionary of Occupational Titles (“DOT”) requires a specific vocational preparation (“SVP”) level

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 21 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

The term “SVP” is defined as “the amount of lapsed time required by a typical worker to learn the techniques, acquire

the information, and develop the facility needed for average performance in a specific job-worker situation.” DOT, Appendix C.

An SVP level of 5 is “[o]ver 6 months up to and including 1 year.” Id.; DOT 216.482-010. 

5

While the vocational expert did not attach a DOT job number to the accounts payable job he identified, defendant has

not objected to the DOT job description referred to by plaintiff. Accordingly, the undersigned adopts that description as well. 

REPORT AND RECOMMENDATION

Page - 22

of 5,4 which constitutes it “skilled” work. DOT 216.482-010 (accounting clerk).5 The ALJ also found that

this job required a SVP level of 5, and was skilled work. Tr. 626. Plaintiff further points out that the job of

accounting clerk requires a reasoning level of 4, which is defined as follows:

Apply principles of rational systems to solve practical problems and deal with a variety

of concrete variables in situations where only limited standardization exists. Interpret a

variety of instructions furnished in written, oral, diagrammatic, or schedule form.

Examples of rational systems are: bookkeeping, internal combustion engines, electric

wiring systems, house building, farm management, and navigation. 

DOT 216.482-010; see also DOT, Appendix C. 

Plaintiff argues skilled work requires more than the ability to perform “simple, and some complex

repetitive activities,” which, she asserts, is much more analogous to level 1 rather than level 4 reasoning. 

The DOT defines Level 1 through 3 reasoning as follows:

LEVEL 3

Apply commonsense understanding to carry out instructions furnished in written, oral,

or diagrammatic form. Deal with problems involving several concrete variables in or

from standardized situations.

LEVEL 2

Apply commonsense understanding to carry out detailed but uninvolved written or oral

instructions. Deal with problems involving a few concrete variables in or from

standardized situations.

LEVEL 1

Apply commonsense understanding to carry out simple one- or two-step instructions.

Deal with standardized situations with occasional or no variables in or from these

situations encountered on the job.

DOT, Appendix C. The definition of Level 1 reasoning expressly references “simple one- or two-step

instructions,” whereas the definitions of Level 2 and 3 reasoning deal with somewhat more “detailed” or

complex instructions. Id. Level 4 reasoning, on the other hand, clearly requires the ability to function in

situations that involve much more complexity. Id. Thus, while the DOT does not explicitly state which of

the above levels of reasoning corresponds to simple, and some complex repetitive tasks, a commonsense

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 22 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 23

reading of the DOT’s definitions indicates that it is less than Level 4. 

VI. This Matter Should Be Remanded For Further Administrative Proceedings

The Court may remand this case “either for additional evidence and findings or to award benefits.”

Smolen, 80 F.3d at 1292. Generally, when the Court reverses an ALJ’s decision, “the proper course,

except in rare circumstances, is to remand to the agency for additional investigation or explanation.”

Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Thus, it is “the unusual case in

which it is clear from the record that the claimant is unable to perform gainful employment in the national

economy,” that “remand for an immediate award of benefits is appropriate.” Id. 

Benefits may be awarded where “the record has been fully developed” and “further administrative

proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v. Massanari, 246 F.3d

1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where:

(1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s]

evidence, (2) there are no outstanding issues that must be resolved before a

determination of disability can be made, and (3) it is clear from the record that the ALJ

would be required to find the claimant disabled were such evidence credited.

Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). Plaintiff

argues this matter should be remanded to the Commissioner for an outright award of benefits in light of the

marked limitations found by Dr. Meharg, which she asserts the Court should credit as true. As discussed

above though, the ALJ properly discounted those findings. Thus, while it may be that the vocational expert

testified that plaintiff would not be able to sustain employment at a competitive level “over the long haul”

based on those limitations, that testimony is of no import. Tr. 994-95. 

Accordingly, because issues remain with respect to plaintiff’s residual functional capacity, and

because a determination regarding her ability to perform other work existing in significant numbers in the

national economy at step five of the disability evaluation process is still needed, this matter should be

remanded to the Commissioner for further administrative proceedings. 

CONCLUSION

Based on the foregoing discussion, the Court should find the ALJ improperly concluded plaintiff

was not disabled, and should reverse the ALJ’s decision and remand this matter to the Commissioner for

further administrative proceedings in accordance with the findings contained herein. 

Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 72(b),

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 23 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 24

the parties shall have ten (10) days from service of this Report and Recommendation to file written

objections thereto. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those

objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit

imposed by Fed. R. Civ. P. 72(b), the clerk is directed set this matter for consideration on January 5, 2007,

as noted in the caption. 

DATED this 14th day of December, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:06-cv-05333-FDB Document 14 Filed 12/14/06 Page 24 of 24