IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DENISE SUZANNE MORTSON, 

Plaintiff, 

v. 

.\ 

CAROLYN W. COLVIN, 

ACTING COMMISSIONER OF 

SOCIAL SECURITY, 

Defendant. 

PANNER, District Judge. 

Civ. No. 1:14~cv-00915-PA 

ORDER 

Plaintiff Denise Mortson ("Plaintiff') seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration ("Commissioner") finding her not disabled 

under Titles II and XVI of the Social Security Act. For the reasons below, the Commissioner's 

decision is AFFIRMED. 

BACKGROUND 

Born in March 1964, Plaintiff was 46 years old on the alleged disability onset date of 

April 12, 2010. Tr. 87. Plaintiff speaks English and holds aGED. Tr. 44. This appeal arises 

from Plaintiffs second application for benefits. Plaintiff first filed for disability insurance 

benefits and social security income on July 21, 2008. Tr. 12. Her first application was denied 

initially and upon review. !d. Plaintiff requested and was granted a hearing before an 

Administrative Law Judge ("ALJ"~, which was held on February 3, 2010. !d.; Tr. 73-82. The 

ALJ issued a decision finding Plaintiff not disabled on March 22, 2010. Tr. 82. The Appeals 

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Council upheld the unfavorable decision on June 8, 2011. Tr. 12. Plaintiff did not seek judicial 

review of that decision. 

In April 2010, Plaintiff filed her second application for benefits while the unfavorable 

decision of her first application was still under review by the Appeals Council. Tr. .87. In her 

second application, Plaintiff alleged disability due to pituitary adenoma brain tumor, anxiety, 

depression, vision problems, facial numbness in the forehead and mouth, hormonal imbalance 

from the tumor, and bipolar disorder. Tr. 87. 

The Commissioner denied Plaintiffs application for benefits initially and upon 

reconsideration and she requested a hearing before an Administrative Law Judge. Tr. 12. After 

an administrative hearing on May 1, 2012, ALJ John Madden Jr. issued a decision finding 

Plaintiff not disabled. Tr. 12-23. The Appeals Council denied Plaintiffs subsequent request for 

review, making the ALJ's decision the final Agency decision. Tr. 1-3; 20 C.F.R. § 422.210. 

Plaintiff now appeals the denial of her second application for benefits. 

DISABILITY ANALYSIS 

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which ... has lasted or 

can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. 

§ 423(d)(l)(A). "Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act." 

Keyser v. Comm 'r, 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 

C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following 

series of questions: 

1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving 

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significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner's 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless 

expected to result in death, an impairment is "severe" if it significantly 

limits the claimant's physical or mental ability to do basic work activities. 

20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted 

or must be expected to last for a continuous period of at least 12 months. 

20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe 

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 

416.920( a)( 4 )(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 

416.920(a)(4)(iii). Ifthe impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds beyond step three. At that 

point, the ALJ must evaluate medical and other relevant evidence to assess 

and determine the claimant's "residual functional capacity" ("RFC"). This 

is an assessment of work-related activities that the claimant may still 

perform on a regular and continuing basis, despite any limitations imposed 

by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 

416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, 

the analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 

404.1560(c); 416.960(c). Ifthe claimant cannot perform such work, he or 

she is disabled. Id. 

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). 

The claimant bears the burden of proof at steps one through four. Id. at 953. The 

Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

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numbers in the national economy, "taking into consideration the claimant's residual functional 

capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 

1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national 

economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant 

is able to perform other work existing in significant numbers in the national economy, the 

claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099. 

THE ALJ'S FINDINGS 

The ALJ performed the sequential analysis. At step one, the ALJ found that Plaintiff had 

not engaged in substantial gainful activity since her alleged onset date of March 23, 2010. Tr. 

15. At step two, the ALJ found that Plaintiff had the following severe impairments: bipolar 

disorder, attention deficit hyperactivity disorder, borderline personality disorder, and posttraumatic stress disorder. !d. At step three, the ALJ found that Plaintiffs impairments did not 

meet or medically equal a listed impairment. !d. 

In assessing the Plaintiffs RFC, the ALJ found that Plaintiff had the residual functional 

capacity to perform a full range of work at all exertional levels, but with the following nonexertionallimitations: Plaintiff could not work with the general public. Tr. 17. 

At step four, the ALJ found that Plaintiff is capable of performing her past relevant work 

as a small parts assembler. Tr. 21. Although the ALJ found Plaintiff able to perform past work, 

he still conducted the step five analysis as an alternative basis for finding Plaintiff not disabled. 

Tr 22. At step five, based on the testimony of a vocational expert, the ALJ determined that 

Plaintiff could perform jobs that exist in significant numbers in the national economy, including 

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used car lot attendant, recycler, and hand packager. !d. The ALJ therefore concluded that 

Plaintiffwas not disabled. Tr. 22-23. 

STANDARD OF REVIEW 

The reviewing court must affirm the Commissioner's decision if it is based on the proper 

legal standards and the findings are sup:ported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means 

"more than a mere scintilla, but less than a preponderance." Bray v. Comm'r, 554 F.3d 1219, 

1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039(9th Cir. 1995)). It means 

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

!d. 

Where the evidence is susceptible to more than. one rational interpretation, the 

Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th 

/ 

Cir. 1982). Variable interpretations of the evidence are insignificant if the Commissioner's 

interpretation is a rational reading of the record, and this court may not substitute its judgment 

for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, a 

reviewing court must consider the entire record as a whole and may not affirm simply by 

isolating a 'specific quantum of supporting evidence."' Orn v. Astrue, 495 F.3d 625, 630 (9th 

Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 

Even where findings are supported by substantial evidence, "the decision should be set 

aside if the proper legal standards were not applied in weighing the evidence and making the 

decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 

U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a 

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judgment affirming, modifYing, or reversing the decision of the Commissioner, with or without 

remanding the case for a rehearing. 

DISCUSSION 

Plaintiff argues the ALJ erred by: (1) failing to find Plaintiffs pituitary adenoma and 

resulting headaches constituted a severe impairment; (2) improperly rejecting Plaintiffs 

testimony; (3) improperly dismissing the opinions of Plaintiffs treating physicians; ( 4) 

improperly rejecting lay witness testimony; (5) failing to account for all of Plaintiffs limitations 

in the hypothetical question posed to the vocational expert; and ( 6) failing to find that Plaintiffs 

impairments met or equaled a listed impairment. 

I. The ALJ properly assessed Plaintiff's severe and non-severe impairments. 

Plaintiff contends that the ALJ improperly assessed her chronic headaches and pituitary 

tumor as non-severe. An impairment is considered "severe" if it "significantly limits [the 

claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). 

"Basic work activities" are "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 

416.921 (b). An impairment is "not severe" if it is a "slight abnormality (or a combination of 

slight abnormalities) that has no more than a minimal effect on the ability to do basic work 

activities." SSR 96-3P, available at 1996 WL 374181, at *1. 

The ALJ found that Plaintiff had chronic headaches associated with a benign pituitary 

tumor, but determined that this impairment was non-severe because a 2012 MRI revealed that 

the tumor had decreased in size and was "almost completely resolved." Tr. 15, 715. I conclude 

that the medical evidence supported the ALJ's conclusion regarding Plaintiffs pituitary tumor 

and attendant headaches. 

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II. The ALJ properly discredited Plaintiff's testimony. 

When gauging a claimant's credibility, an ALJ must engage in a two-step process. 20 

C.F.R. §§ 404.1529, 416.929. First, the ALlmust determine whether there is objective medical 

evidence of an underlying impairment that could reasonably be expected to produce some degree 

of the alleged symptoms. Smolen v. Chafer, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, if such 

evidence exists, barring affirmative evidence of malingering, 1 the ALJ must give .clear and 

convincing reasons for discrediting the claimant's testimony regarding the severity of the 

symptoms. !d. at 1284; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). A 

general assertion that the Plaintiff is not credible is insufficient. The ALJ must identify what 

testimony is not credible and what evidence undermines the claimant's allegations. Dodrill v. 

Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 

Plaintiff testified that she had been trying different medications and almost felt normal. 

Tr. 19, 52. She testified that her social anxiety makes it difficult to speak with people, and that 

she was paranoid, fearful, and crying every day. Tr. 19. 

The ALJ found that Plaintiffs impairments could be reasonably expected to cause her 

alleged symptoms. !d. However, he found Plaintiffs statements regarding the intensity, 

persistence, and limiting effects of these symptoms not entirely credible. !d. The ALJ provided 

three primary reasons for this determination: (1) Plaintiff provided contradictory reports of her 

symptoms and treatment history; (2) Plaintiff has engaged in drug-seeking behavior; and (3) the 

medical records indicate that Plaintiff has exaggerated her symptoms. Tr. 19-20. Plaintiff 

contends that the ALJ erred by failing to provide clear and convincing reasons for rejecting her 

testimony. 

1 The ALJ found no evidence of malingering in this case. 

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a. The ALJ properly found the Plaintiff had made inconsistent reports. 

The ALJ found that Plaintiff has made inconsistent and contradictory reports, which "cast 

significant doubt on the credibility of the claimant's allegations and the reported. severity of her 

symptoms." Tr. 19. I conclude that the record supports the ALJ' s findings. 

In considering a claimant's testimony, the ALJ may use "ordinary techniques of 

credibility evaluation," such as "inconsistencies either in the claimant's testimony or between the 

testimony and the claimant's conduct." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) 

(internal quotation marks and citation omitted). In this case, Plaintiff underwent a psychodiagnostic evaluation in 2008, during which she reported that she had never received either 

inpatient or outpatient psychological services and denied having ever engaged in suicide 

attempts. Tr. 19, 78. However, in 2009 Plaintiff told her psychiatrist that she had been 

psychiatrically hospitalized in 1997 and that she had made two suicidal gestures. Tr. 444. 

Plaintiff also reported significant difficulties with her memory, Tr. 37, 287, but was able to recall 

manias that she experienced in her teens and early twenties. Tr. 645. Furthermore, Plaintiff 

disclosed a history of substance abuse in a 2012 Bio-Psychosocial Assessment, Tr. 779, but 

denied any history of substance abuse to her psychiatrist. Tr. 654. I conclude that the ALI's 

credibility findings are supported by substantial evidence in the record. 

b. The ALJ properly considered Plaintiff's past drug-seeking behavior. 

The ALJ also noted Plaintiffs drug-seeking behavior, finding that her "misdirection, 

noncompliance, and inappropriate use of prescribed medications further erodes the claimant's 

credibility." Tr. 20. The ALJ may consider drug-seeking behavior while evaluating the 

claimant's credibility. See Alexander v. Comm'r, 373 F. App'x 741, 743-44 (9th Cir. 2010). 

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Plaintiffs drug-seeking behavior was also raised in her first application for benefits, in which the 

ALJ noted: 

[T]he claimant asked for early refills of narcotic pain medications. She would 

visit the emergency room and request narcotic pain medication, despite being 

under a pain contract with her primary care provider. In fact, the claimant's 

prescription for narcotic pain medications were stopped due to her breaking the 

pain contract. On one occasion, the claimant was seen in the emergency room for 

a headache and given a prescriptiol) for Vicodin. The claimant stated that the 

prescription did not provide enough medication and she was overheard saying 

they would "not even last with the bottle ofvodka tonight." Finally, in December 

2009, the claimant reported independently [sic] increased and then stopped 

Zyprexa without the knowledge or oversight of her psychiatrist. 

Tr. 78-79. 

In the present case, the ALJ noted the Plaintiff denied a history of substance abuse to her 

psychiatrist, despite the incidents identified in by the ALJ in her first application for benefits and 

disclosed in her own Bio-Psychosocial Assessment. Tr. 79, 654, 779. Plaintiffs psychiatrist 

relied on Plaintiffs report in prescribing medication. Tr. 654 ("So [Plaintiff] wants to 

changeover [sic] to Valium 1 Omgs bid. She has no history of drug addiction so I am comfortable 

doing this[.]"). Other evidence in the record also supports the ALJ's finding of drug-seeking 

behavior. Tr. 339, 783. 

c. The ALJ properly found that the medical record indicated Plaintiff had 

exaggerated her symptoms. 

The ALJ found that "the medical record indicates that [Plaintiff] has exaggerated some of 

her pain. Tr. 20. Evidence that a plaintiff has overstated the severity of her symptoms is 

relevant to a credibility determination. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 

2002); Tommasetti, 533 F.3d at 1040. In January 2011, Plaintiffs treating physician, Esteban 

Miller, MD, observed that Plaintiffs reported headache pain "is out of proportion to that 

expected." Tr. 480. Plaintiff argues that this note was taken out of context by the ALJ and that 

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Dr. Miller did view Plaintiffs pain as credible enough to treat. However, the specific context of 

that treatment note was Dr. Miller's decision to prescribe a much smaller dosage of opiates than 

what Plaintiff wanted. Tr. 480. Viewed in the broader context of Plaintiffs drug-seeking 

behavior, I conclude that the ALJ's interpretation is supported by substantial evidence. 

Based on the record, I conclude that the ALJ gave clear and convincing reasons for 

discounting Plaintiffs testimony. 

III. Evaluation of the Medical Evidence. 

Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(d)(l); 

416.927( d)(1 ). If no conflict arises between medical source opinions, the ALJ generally must 

accord greater weight to the opinion of a treating physician then that of an examining physician. 

Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). More weight is given to the opinion of a 

treating physician because the person has a greater opportunity to know and observe the patient 

as an individual. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). In such circumstances, the 

ALJ should also give greater weight to the opinion of an examining physician over that of a 

reviewing physician. Id. If a treating or examining physician's opinion is not contradicted by 

another physician, the ALJ may reject it only for clear and convincing reasons. I d.; Widmark v. 

Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). Even if one physician is contradicted by another 

physician, the ALJ may not reject the opinion without providing specific and legitimate reasons 

supported by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 

1066. The opinion of a non-examining physician, by itself, is insufficient to constitute 

substantial evidence to reject the opinion of a treating or examining physician. Widmark, 454 

F.3d at 1066, n. 2. The ALJ may reject physician opinions that are "brief, conclusory, and 

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inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 

2005). 

a. Dr. Maraire 

In 2010, J. Nozipo Maraire, M.D., Plaintiffs neurologist, stated that Plaintiff suffered 

from a benign tumor of the pituitary gland and that, as a consequence "[h ]er symptoms at present 

are debilitating." Tr. 388. In his treatment notes, Dr. Maraire stated that "at this time she cannot 

work, but once she [has] the appropriate evaluation and treatment she should be able to fully 

[integrate] into the workforce." Tr. 390. Dr. Maraire subsequently moved to South Africa and 

Plaintiffs treatment passed to other physicians. Tr. 20. The ALJ assigned Dr. Maraire's opinion 

"some weight." Id. In limiting the weight given to Dr. Maraire's opinion, the ALJ noted that 

Plaintiffs 2012 MRI showed that her tumor had shrunk considerably and was considered 

"almost completely resolved." Tr. 785. 

Plaintiff contends that the ALJ mischaracterized Dr. Maraire's opinion and argues that 

Plaintiff never received the "appropriate evaluation and treatment" that Dr. Maraire 

recommended. Dr. Maraire tied Plaintiffs limitations to her tumor, however, and the record 

shows that the tumor is "almost completely resolved," regardless of the nature and extent of the 

treatment Plaintiff received for it. I conclude that the ALJ adequately supported his decision to 

assign "some weight" to Dr. Maraire's opinion. 

b. Dr. Miller 

In 2011, Esteban Miller, M.D., Plaintiffs physician, opined that Plaintiffwas unable to 

work due to her benign pituitary microadenoma and chronic headache syndrome. Tr. 643. The 

ALJ found Dr. Miller's opinion to be conclusory and inconsistent with the 2012 MRI and gave 

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no weight to Dr. Miller's opinion. Tr. 21. Plaintiff contends that the ALJ erred by not citing 

specific or substantial evidence that Dr. Miller's opinion should be discredited. 

Statements by a medical source opining that a claimant is disabled are excluded as 

medical opinions because the final determination about a claimant's disability is reserved to the 

Commissioner. 20 C.F.R. § 404.1527(d)(l). That is, a medical source's conclusory statement 

that a claimant is "disabled" or "unable to work" does not bind the Commissioner to find the 

claimant disabled. !d. As noted, the 2012 MRI revealed that Plaintiff's pituitary tumor was 

"almost completely resolved." Tr. 785. I conclude that the ALJ adequately supported his 

decision to give no weight to Dr. Miller's opinion. 

c. Dr. Thein 

In 2010, Michael D. Thein, M.D., Plaintiff's psychiatrist, submitted a letter in which he 

stated that he had been unable to stabilize Plaintiff's ·moods through medication and that he 

believed she would be unable to work as a result. Tr. 416-17. Dr. Thein was unsure how long 

Plaintiff's inability to work would persist. !d. The ALJ found Dr. Thein's opinion to be 

inconsistent with his treatment notes and gave the opinion "limited weight." Tr. 20-21. Plaintiff 

argues that the ALJ erred in making this determination. 

A contradiction between a medical source's assessment of a claimant's disability and the 

source's other notes and observations provides a clear and convincing reason for rejecting that 

source's opinion. Bayliss, 427 F.3d at 1216. In this case, Dr. Thein's treatment notes indicate 

that he was able to stabilize Plaintiff's moods with various prescriptions. Tr. 422, 645, 651, 654, 

704. As the ALJ noted, Dr. Thein's assessment is also inconsistent with the moderate GAF 

scores that he assessed during his time treating Plaintiff. Tr. 20, 416-48, 644-58. I conclude that 

the ALJ adequately supported his decision to give limited weight to Dr. Thein's assessment. 

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d. The DDS Opinions 

The ALJ considered the opinions of the non-examining physicians and psychologists of 

the State Disability Determination Services ("DDS") and assigned them moderate weight. Tr. 

21. The DDS sources assessed Plaintiff with no exertional limitations except that she could 

balance and climb ladders, ropes, and stairs occasionally. Tr. 21, 97-99, 113-15, 132-35, 150-

153. They also found that she should avoid concentrated exposure to moderate hazards such as 

machinery and heights and that she should not work with the general public. Tr. 21, 97-99, 113-

15, 132-35, 150-153. The ALJ concluded that the DDS opinions were generally supported by 

the medical records, but that they lacked the benefit of reviewing the results of the 2012 MRI. 

Tr. 21. Plaintiff argues that the ALJ erred when he gave greater weight to the opinions of the 

non-examining medical sources than he gave to the examining and treating physicians. 

Although the opinions of treating physicians are generally accorded greater weight than 

those of reviewing physicians, the ALJ considers other factors in evaluating a medical opinion. 

20 C.P.R.§ 404.1527(c). In this case, the ALJ noted that the DDS opinions were consistent with 

the medical record. Tr. 21. Such consistency is a valid consideration in assessing the weight 

given to a medical opinion. 20 C.P.R. § 404.1527(c)(4). The ALJ gave valid reasons unrelated 

to the opinions of the DDS physicians for discounting the opinions of Plaintiffs treating 

physicians. Tr. 20-21. I find no error in the weight assigned to the opinions of the DDS 

physicians and psychologists. 

IV. Evaluation of Lay Opinion Evidence 

In June 2010, Lorin Shanley submitted a third party function report for Plaintiff. Tr. 274-

81. Shanley opined that Plaintiff was unable to work. Tr. 274. He reported that she spends 

much of her time in a dark room. Tr. 275. The ALJ gave Shanley's report little weight because 

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he found it to be inconsistent with the medical record, including Dr. Thein's treatment notes. Tr. 

21. Plaintiff argues that the ALJ erred in discounting Shanley's opinion without providing a 

germane reason. 

Lay testimony regarding a claimant's symptoms or how an impairment affects the 

claimant's ability to work is competent evidence the ALJ must take into account. Stout v. 

Comm 'r, 454 F.3d 1050, 1053 (9th Cir. 2006). The ALJ may reject lay testimony if he provides 

"arguably germane reasons" supported by substantial evidence, even if those reasons are not 

clearly linked to the ALJ's determination. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 

Inconsistency with the medical evidence constitutes a germane reason sufficient to discredit lay 

testimony. Bayliss, 427 F.3d at 1218. In this case, the ALJ found that Shanley's testimony was 

inconsistent with the treatment notes of Dr. Thein, which show that her mood stabilized with 

medication. Tr. 422, 645, 704. I conclude that the ALJ provided germane reasons for 

discounting Shanley's testimony. 

V. Vocational Expert Testimony 

At step four, the claimant has the burden to show that she can no longer perform her past 

relevant work. 20 C.F.R. §§ 404.1520(e); 416.920(e). Plaintiff contends that the ALJ erred 

when he did not include all of Plaintiffs alleged limitations in the hypothetical posed to the 

vocational expert ("VE") and when he accepted the VE' s classification of one of Plaintiffs 

previous jobs. 

a. VE Hypotheticals 

Plaintiff contends that the ALJ erred by failing to include limitations relating to 

concentration, persistence, and pace in the hypothetical questions he posed to the VE. "[A ]n 

ALJ's assessment of a claimant adequately captures restrictions related to concentration, 

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persistence, or pace where the assessment is consistent with restrictions identified in the medical 

testimony." Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 

Plaintiff cites to the findings of the DDS physicians, who assessed moderate limitations 

to Plaintiffs ability to understand and remember detailed instructions, as well as moderate 

limitations in the ability to carry out detailed instructions and maintain attention and 

concentration for extended periods. Tr. 98-99, 134. Those assessments go on to find that 

Plaintiff "is capable of understanding and remembering simple tasks" and "is capable of 

sustaining concen/attn. for simple tasks," but "[m]ay have problems w/detailed tasks." Tr. 98-

99, 134-35. 

At step three, the ALJ accepted that Plaintiff had moderate difficulties in concentration, 

persistence, and pace. Tr. 16. The ALJ's first hypothetical restricted the claimant to "unskilled 

work only with occasional contact with coworkers or the general public." Tr. 63. The ALJ's 

second hypothetical restricted Plaintiff to "no work with the general public, but could get along 

well enough to perform work activities with supervisors and coworkers." Tr. 64-65. The VE 

testified that under the limitations presented in the hypotheticals, Plaintiff could perform her past 

work as a small parts assembler, or, in the alternative, could perform work as a used car lot 

attendant, a hand packager, or a recycler. Tr. 65. 

The ALJ mighthave accounted for Plaintiffs limitations in concentration, persistence, 

and pace in his hypotheticals. See Lubin v. Comm 'r, 507 F. App'x 709, 711 (9th Cir. 2013)("The 

hypothetical question should have included Lubin's moderate limitations in concentration, 

persistence, or pace"); see also Brink v. Comm 'r, 343 F. App'x 211, 212 (9th Cir. 2009). 

However, I conclude that the ALJ' s assessment was consistent with the restrictions identified in 

the medical testimony. See Stubbs-Daniels, 539 F.3d at 1174. Furthermore, any error was 

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harmless because all of the potential jobs identified by the VE at steps four and five were 

unskilled. "Unskilled work is work which needs little or no judgment to do simple duties that 

can be learned on the job in a short amout of time." 20 C.F.R. § 404.1568(a). Plaintiffs ability 

to do such work is consistent with the findings of the DDS physicians. 

b. Plaintiff's Past Work 

One of Plaintiffs previous jobs involved manufacturing the explosive components of 

airbags. Tr. 45. In ruling on Plaintiffs first application for benefits, the ALJ classified that job 

as "process operator (DOT 550.685-090, heavy, semi-skilled, SVP 4)," and determined that 

Plaintiff was unable to perform that work. 2 Tr. 80. After hearing Plaintiffs testimony, the VEin 

the present case classified Plaintiffs previous work with air bag explosives as "small parts 

assembler," (DOT 739.687-030, available at 1991 WL 680180) which is classified as "light" and 

"unskilled" work. Tr. 21, 63. In response to a pair of hypotheticals posed by the ALJ, the VE 

testified that Plaintiff would be able to perform her past work as a small parts assembler. Tr. 64-

66. 

Plaintiff alleges error because of the inconsistency in the classification of Plaintiffs past 

work between Plaintiffs first application and the present case. I reject this argument. As noted, 

Plaintiff bears the burden of demonstrating that she is unable to perform her past work. 

Carmickle v. Comm 'r, 533 F.3d 1155, 1166 (9th Cir. 2008). Plaintiff has presented no evidence 

that her past work should be classified as a "process operator" as opposed to a "small parts 

assembler." Nor did Plaintiffs counsel object to that classification at the hearing. The ALJ 

adequately explored the scope of Plaintiffs past work and his reliance on the VE's testimony 

evaluating that work was proper. The ALJ's conclusion was based on substantial evidence. 

2 The Commissioner points out that the DOT code cited by Plaintiff, 550.685-090, is not for "process operator," but 

rather for "mixing machine tender." I note that this incorrectly identified DOT code was initially supplied by the 

ALJ in Plaintiffs first hearing, and not by Plaintiff. Tr. 80. 

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Even if the ALI's step four determination constituted error, it is harmless error in light of 

the ALI's alternative findings at step five. See Tommasetti, 533 F.3d at 1042. All of the 

alternative jobs identified by the ALJ at step five require only unskilled work and were identified 

by the VE as being within the RFC laid out in the ALI's second hypothetical. Tr. 22, 65. 

VI. Assessment of Plaintif:Ps Impairments 

Plaintiff contends that the ALJ erred at step three when he determined that Plaintiff did 

not have an impairment or combination of impairments that met or equaled a listed impairment. 

The Social Security Regulations' "Listing of Impairments" generally describes impairments that 

are so severe as to be considered presumptively disabling, without further consideration of a 

claimant's residual functioning capacity, past relevant work, or other jobs. 20 C.F.R. §§ 

404.1520( d); 416.920( d). A diagnosis of a listed impairment is not sufficient; the claimant must 

also satisfy the findings shown in the listing of that impairment. Young v. Sullivan, 911 F.2d 

180, 184 (9th Cir. 1990). A claimant has the burden to establish that he or she meets or equals 

the criteria for a listed impairment based on medical evidence. Burch, 400 F.3d at 683. 

In this case, the ALJ found that Plaintiff had severe mental health impairments and 

evaluated them under the listing Listings 12.04 (affective disorders) and 12.06 (anxiety-related 

disorders). Tr. 15. The ALJ found that Plaintiffs mental health impairments did not meet or 

equal a listed impairment. Tr. 15-17. Plaintiff contends that the ALJ erred by not evaluating 

Plaintiffs mental impairinents under 12.03 (other psychotic disorders) and 12.08 (personality 

disorders). Plaintiff summarily states that "medical evidence existed" to support such findings, 

but provides no citations to such evidence in the record. "A finding of equivalence must be 

based on medical evidence only." Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). "A 

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generalized assertion of functional problems is not enough to establish disability at step three." 

Tackett, 180 F.3d at 1100. 

Plaintiff also contends that the ALJ incorrectly assessed Plaintiffs impairments under B 

and C criteria for 12.04 and 12.06. In particular, Plaintiff asserts that the ALJ failed to assess her 

impairment under the C criteria for 12.06. An impairment meets the required level of severity 

under 12.04 if it satisfies either C criteria or the A and B criteria. 20 C.F.R. pt 404, subpt. P, app. 

1, § 12.04. An impairment meets the required level of severity under 12.06 if it satisfies the 

requirements of the A orB criteria, or the A and C criteria. Id, at § 12.06. The B criteria are 

identical under both 12.04 and 12.06 and the ALJ concluded that Plaintiff did not satisfy those 

requirements. Tr. 16. 

The C criteria of each listing, however, are different. Under 12.04, the claimant must 

have "[m]edically documented history of a chronic affective disorder of at least 2 years' duration 

that has caused more than a minimal limitation of ability to do basic work activities, with 

symptoms or signs currently attenuated by medication or psychosocial support," as well as one 

of the following: (1) "[r]epeated episodes of decompensation, each of extended duration;" (2) 

"[a] residual disease process that has resulted in such marginal adjustment that even a minimal 

increase in mental demands or change in the environment would be predicted to cause the 

individual to decompensate;" or (3) "[c]urrent history of 1 or more years' inability to function 

outside a highly supportive living arrangement, with an indication of continued need for such an 

arrangement." 20 C.F.R. pt 404, subpt. P, app. 1, § 12.04. The ALJ determined that Plaintiff did 

not meet the C criteria for 12.04. Tr. 16-17. 

The C criteria of 12.06 require a medically documented impairment "[r]esulting in 

complete inability to function independently outside the area of one's home." 20 C.F.R. pt 404, 

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subpt. P, app. 1, § 12.06. The ALJ found that Plaintiff did not meet the C criteria of 12.06, 

. although he did not explicitly list that limitation. Tr. 16. Plaintiff does not point to any evidence 

that Plaintiffs impairment resulted in a complete inability to function independently outside of 

the area of her home. Nor is that contention supported by the record, which contains evidence of 

Plaintiffs ability to function outside of her home. Tr. 284-85. 

I conclude that the ALJ' s findings at step three are adequately suppof!ed by substantial 

evidence. 

CONCLUSION 

Based on the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision 

of the Commissioner is AFFIRMEDand this action is DISMISSED. 

Page 19- ORDER 

DATEDthis ~ day of October, 2015. 

OWEN 

~'M~_/ M. PANNER 

United States District Judge 

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