OPINION AND ORDER – 1 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WILLIAM E. MESECHER, ) Civil No.: 6:14-cv-01578-JE 

 ) 

 Plaintiff, ) OPINION AND ORDER 

 ) 

 v. ) 

 ) 

CAROLYN W. COLVIN, ) 

Acting Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

____________________________________ ) 

 Kathryn Tassinari 

 Brent Wells 

 Harder Wells Baron & Manning, PC 

 474 Willamette Street, Suite 200 

 Eugene, OR 97401 

 

 Attorneys for Plaintiff 

 Billy J. Williams, Acting U.S. Attorney 

 Janice Hebert, Asst. U.S. Attorney 

 1000 S.W. 3rd Avenue, Suite 600 

 Portland, OR 97204 

 Sarah Moum 

 Special Asst. U.S. Attorney 

 Office of the General Counsel 

Case 6:14-cv-01578-JE Document 26 Filed 11/10/16 Page 1 of 21
OPINION AND ORDER – 2 

 Social Security Administration 

 701 5th Avenue, Suite 2900 M/S 221A 

 Seattle, WA 98104-7075 

 Attorneys for Defendant 

JELDERKS, Magistrate Judge: 

 Plaintiff William Mesecher brings this action pursuant to 42 U.S.C. §405(g) seeking 

judicial review of a final decision of the Commissioner of Social Security (the Commissioner) 

denying his application for Disability Income Benefits (DIB) under the Social Security Act (the 

Act). Plaintiff seeks an Order remanding the action to the Social Security Administration (the 

Agency) for an award of benefits. In the alternative, Plaintiff seeks a remand for further 

proceedings. 

 For the reasons set out below, the Commissioner’s decision is affirmed. 

Procedural Background 

 Plaintiff filed an application for a period of disability and for DIB on September 20, 

2010, alleging he had been disabled since December 7, 2007. 

 After his claims were denied initially and upon reconsideration, Plaintiff timely requested 

an administrative hearing. 

 On March 20, 2013, a hearing was held before Administrative Law Judge (ALJ) Marilyn 

Mauer. Plaintiff and Kay Wise, a Vocational Expert (VE), testified at the hearing. Plaintiff was 

represented by counsel. 

 In a decision dated June 17, 2013, ALJ Maurer found that Plaintiff was not disabled 

within the meaning of the Act. 

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OPINION AND ORDER – 3 

 On August 6, 2014, the Appeals Council denied Plaintiff’s request for review, rendering 

the ALJ’s decision the final decision of the Commissioner. In the present action, Plaintiff 

challenges that decision. 

Background 

 Plaintiff was born in 1970 and was 43 years old at the time of the hearing in front of the 

ALJ. He graduated from high school and attended culinary school. He has past relevant work as 

a cruise ship cook and restaurant cook. Tr. 27. 

Disability Analysis 

 The ALJ engages in a five-step sequential inquiry to determine whether a claimant is 

disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. Below is a summary 

of the five steps, which also are described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 

1999). 

 Step One. The Commissioner determines whether the claimant is engaged in substantial 

gainful activity (SGA). A claimant engaged in such activity is not disabled. If the claimant is 

not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s 

case under Step Two. 20 C.F.R. § 404.1520(b). 

 Step Two. The Commissioner determines whether the claimant has one or more severe 

impairments. A claimant who does not have such an impairment is not disabled. If the claimant 

has a severe impairment, the Commissioner proceeds to evaluate the claimant’s case under Step 

Three. 20 C.F.R. § 404.1520(c). 

 Step Three. Disability cannot be based solely on a severe impairment; therefore, the 

Commissioner next determines whether the claimant’s impairment “meets or equals” one of the 

presumptively disabling impairments listed in the Social Security Administration (SSA) 

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OPINION AND ORDER – 4 

regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has such an impairment 

is disabled. If the claimant’s impairment does not meet or equal an impairment listed in the 

regulations, the Commissioner’s evaluation of the claimant’s case proceeds under Step Four. 

20 C.F.R. § 404.1520(d). 

 Step Four. The Commissioner determines whether the claimant is able to perform 

relevant work he or she has done in the past. A claimant who can perform past relevant work is 

not disabled. If the claimant demonstrates he or she cannot do work performed in the past, the 

Commissioner’s evaluation of the claimant’s case proceeds under Step Five. 20 C.F.R. 

§ 404.1520(f). 

 Step Five. The Commissioner determines whether the claimant is able to do any other 

work. A claimant who cannot perform other work is disabled. If the Commissioner finds that 

the claimant is able to do other work, the Commissioner must show that a significant number of 

jobs exist in the national economy that the claimant can do. The Commissioner may satisfy this 

burden through the testimony of a vocational expert (VE) or by reference to the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner 

demonstrates that a significant number of jobs exist in the national economy that the claimant 

can do, the claimant is not disabled. If the Commissioner does not meet this burden, the claimant 

is disabled. 20 C.F.R. § 404.1520(g)(1). 

 At Steps One through Four, the burden of proof is on the claimant. Tackett, 180 F.3d at 

1098. At Step Five, the burden shifts to the Commissioner to show that the claimant can perform 

jobs that exist in significant numbers in the national economy. Id. 

Medical Record and Testimony 

 The court has carefully reviewed the medical record and testimony and the parties are 

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OPINION AND ORDER – 5 

familiar with both. Accordingly, the details of that evidence will be set out below only as they 

are relevant to the issues before the court. 

ALJ’s Decision 

 As an initial matter, the ALJ found that Plaintiff met the insured status requirements of 

the Act through December 31, 2012. 

 At the first step of her disability analysis, the ALJ found that Plaintiff had not engaged in 

substantial gainful activity from the date of his alleged onset of disability on December 7, 2007 

through his date last insured. 

 At the second step, the ALJ found that, through the date last insured, Plaintiff had the 

following severe impairments: status-post crush injuries to left arm with open reduction internal 

fixation (ORIF); status-post crush injury to right leg with resulting leg length discrepancy; 

cognitive disorder status-post closed head injury; bilateral trochanteric bursitis; insulin dependent 

diabetes mellitus; bilateral hearing loss corrected with hearing aids; mild lumbar degenerative 

disc disease; and generalized anxiety disorder. Tr. 20. 

 At the third step, the ALJ found that, through the date last insured, Plaintiff did not have 

an impairment or combination of impairments that met or equaled a presumptively disabling 

impairment set out in the Listings, 20 C.F.R. Part 404, Subpart P, App. 1. 

 The ALJ next assessed Plaintiff’s residual functional capacity. She found that Plaintiff 

retained the capacity to perform less than the full range of light work in that 

[h]e could lift 20 pounds occasionally and 10 pounds frequently using both hands 

together. He could lift no more than 5 pounds using the left arm by itself. He 

could sit, stand, and walk for 6 hours each in an 8 hour workday for a combined 

total of 8 hours. He required the option to sit or stand at will while still 

performing essential tasks. He could never crawl or climb ladders, ropes, or 

scaffolds. He could occasionally stoop, crouch, kneel, and climb ramps and stairs. 

Mr. Mesecher was able to occasionally reach overhead with his left arm 

occasionally (sic). He was able to handle and finger with his dominant left hand 

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OPINION AND ORDER – 6 

frequently, but not constantly. He was able to understand and carry out simple 

instructions in a predictable environment with clear expectations. He could not 

work in [a] position requiring public contact or teamwork assignments. 

Tr. 23. In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s statements concerning the 

intensity, persistence and limiting effects of his symptoms were less than fully credible. 

 Based upon testimony from the VE, at the fourth step of her disability analysis the ALJ 

found that Plaintiff was unable to perform any of his past relevant work. 

 At the fifth step of her disability analysis, the ALJ found that Plaintiff could perform 

other jobs that existed in substantial numbers in the national economy. Based upon the testimony 

of the VE, she cited quality control/inspector of packaging, monitor of loss prevention, and label 

coding and marking as examples of such work. The ALJ also noted that the VE testified that if 

Plaintiff were limited to only the occasional use of his dominant left hand for handling and 

fingering, he would be capable of performing the jobs of quality control/inspector of packaging, 

monitor of loss prevention, and inspection of small product assembly. Having concluded that 

Plaintiff could perform this work, the ALJ found that Plaintiff was not disabled within the 

meaning of the Act between the date of his alleged onset of disability and his date last insured. 

Standard of Review

 A claimant is disabled if he or she is unable “to engage in substantial gainful activity by 

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

be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. 

§ 423(d)(1)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 

66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears 

the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), 

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OPINION AND ORDER – 7 

and bears the burden of establishing that a claimant can perform “other work” at Step Five of the 

disability analysis process. Tackett, 180 F.3d at 1098. 

 The district court must affirm the Commissioner’s decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record as a whole. 

42 U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 

“Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 

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

Andrews, 53 F.3d at 1039. The court must weigh all of the evidence, whether it supports or 

detracts from the Commissioner’s decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 

1986). The Commissioner’s decision must be upheld, however, even if “the evidence is 

susceptible to more than one rational interpretation.” Andrews, 53 F.3d at 1039-40. 

Discussion 

 Plaintiff contends that the ALJ improperly rejected his testimony, failed to give legally 

sufficient reasons for discounting the opinion of an examining physician, improperly rejected lay 

witness evidence and failed to include all of his limitations in the RFC and in the vocational 

hypothetical posed to the VE. 

I. Plaintiff’s Subjective Symptom Testimony 

 Plaintiff contends that the ALJ failed to articulate clear and convincing reasons, 

supported by substantial evidence, for finding that his allegations were not fully credible. 

A. Standards 

 When a claimant has medically documented impairments that could reasonably be 

expected to produce some degree of the symptoms complained of, and the record contains no 

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the 

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OPINION AND ORDER – 8 

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” 

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). 

 Pursuant to Social Security Ruling (“SSR”) 16-3p, available at 2016 WL 1119029 (Mar. 

16, 2016) (superseding SSR 96-7p), the ALJ is no longer tasked with making an overarching 

credibility determination, and must assess instead whether a claimant’s subjective symptom 

statements are consistent with the record as a whole. The ALJ’s decision in this case was issued 

well before SSR 16-3p became effective and there is an absence of binding precedent 

interpreting this new ruling or addressing whether it applies retroactively. Compare Ashlock v. 

Colvin, 2016 WL 3438490, *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to 

an ALJ decision issued prior to the effective date), with Lockwood v. Colvin, 2016 WL 

2622325, *3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p retrospectively to a 2013 ALJ 

decision). 

 However, SSR 16-3p is a clarification of sub-regulatory policy, rather than a new policy. 

SSR 16-3p, at *1; also compare SSR 16-3p with SSR 96-7p (both policies set forth a two-step 

process to be followed in evaluating a claimant's testimony and contain the same factors to be 

considered in determining the intensity and persistence of a claimant's symptoms). In Andre v. 

Colvin, 6:14-cv-02009-JE (D.Or. Oct. 13, 2016) I recently concluded that, for this reason, 

retroactive application of the new SSR is appropriate. 1 See Smolen, 80 F.3d at1281 n.1 (“We 

need not decide the issue of retroactivity [as to revised regulations] because the new regulations 

are consistent with the Commissioner's prior policies and with prior Ninth Circuit case law”) 

(citing Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993)) (because regulations were intended to 

 

1

 Other recent District of Oregon SSA dispositions have also incorporated SSR 16-3p into the analytical framework 

for evaluating ALJ findings regarding subjective symptom testimony. See, e.g., Mesmer v. Colvin, No. 6:15-cv00947-MC, available at 2016 WL 5339728 (D.Or. Sept. 23, 2016); Burnstad v. Colvin, No. 6:15-cv-00921-SI, 

available at 2016 WL 4134535 (D.Or. Aug. 2, 2016). 

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OPINION AND ORDER – 9 

incorporate prior Social Security Administration policy, they should be applied retroactively). 

 The new SSR clarifies that “subjective symptom evaluation is not an examination of an 

individual’s character.” Id. In other words, “[t]he focus of the evaluation of an individual’s 

symptoms should not be to determine whether he or she is a truthful person.” Id. at *10. Rather, 

“[a]djudicators must limit their evaluation to the individual’s statements about his or her 

symptoms and the evidence in the record that is relevant to the individual’s impairments.” Id. 

Thus, “it is not sufficient for our adjudicators to make a single, conclusory statement that ‘the 

individual’s statements about his or her symptoms have been considered . . . .’” Id. at *9. Instead, 

the finding “must contain specific reasons for the weight given to the individual’s symptoms, be 

consistent with and supported by the evidence, and be clearly articulated so the individual and 

any subsequent review can assess how the adjudicator evaluated the individual’s symptoms.” Id. 

 In evaluating a claimant’s subjective symptom testimony, an ALJ must consider the 

entire record and consider several factors, including the claimant's daily activities; the location, 

duration, frequency, and intensity of the claimant’s pain or other symptoms; medications taken 

and their effectiveness; treatment other than medication; measures other than treatment used to 

relieve pain or other symptoms; and “other factors concerning the individual's functional 

limitations and restrictions due to pain or other symptoms.” C.F.R. §404.1529(c). If substantial 

evidence supports the ALJ's determination, it must be upheld, even if some of the reasons cited 

by the ALJ are not correct. Carmickle v. Commissioner of Social Security, 533 F.3d 1155, 1162 

(9th Cir. 2008). 

B. Analysis 

 In his application for disability benefits, Plaintiff reported that in his previous four jobs 

his speed in cutting and prepping foods had slowed and that he had been “let go” from two jobs 

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OPINION AND ORDER – 10 

because of his slowness. He reported anxiety about whether he would be fired because of his 

lack of speed and anger at himself for not being able to complete tasks as he was “supposed to.” 

He wrote that he was fired from a job for his depression and anxiety. He reported that he 

experienced fatigue, could only walk a couple of blocks, and could only lift 10 pounds with his 

left arm. His impairments limited his ability to lift, squat, bend, stand, reach, walk, sit, kneel, 

hear, climb stairs, see, remember things, complete tasks, concentrate, understand, follow 

instructions, use his hands, and get along with others. He reported he “clashed with a couple of 

bosses” because of their “lack of discipline” in responding to hostile work environments and the 

bad performance of other employees but that he did not otherwise have a problem with authority 

figures. Tr. 168-175. 

 At the hearing, Plaintiff testified that the prescription medications he takes are generally 

effective, that he could comfortably lift 10 to 20 pounds off and on over the course of the day, he 

can sit comfortably in a chair for no more than 45 minutes, can stand in place no more than an 

hour before he has to sit down and can usually walk two blocks or 20 minutes. Tr. 44. He 

testified that he was left-handed and had difficulty gripping, opening, moving or holding things 

with his left hand. Tr. 45. He lays down at least an hour a day due to headaches and “just feeling 

like junk.” Tr. 45. He had been experiencing the headaches over the last year and a half and 

believed them to be migraines because they lasted most of the day. He took only acetaminophen 

to relieve the headache pain, which was what he had been given by the VA.2

 He testified that he 

had pain in his legs, hips and left arm; and was experiencing “a little bit” of depression, which 

included “anxiety and just feeling down.” Tr. 46. Plaintiff testified that he lived alone, saw 

friends and family at least once a week, went to church and played cards, visited neighbors, 

 

2

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

system. 

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OPINION AND ORDER – 11 

could take public transportation, watched television, read, went shopping, and spent three or four 

hours a day on the computer “surfing the internet.” Tr. 48-49. 

 The ALJ offered several reasons in support of her finding that Plaintiff’s statements 

regarding the intensity, persistence and limiting effects of his symptoms were inconsistent with 

the record as a whole. 

 First, the ALJ found that Plaintiff’s activities of daily living were inconsistent with 

complete disability. An ALJ may support discounting a claimant’s symptom allegations by 

identifying inconsistencies between the claimant's complaints and the claimant's activities of 

daily living. Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir.2002). Here, the ALJ noted that 

Plaintiff lived independently, was able to use public transportation, saw friends, went to church, 

read, played card and board games, and spent time on the computer. The ALJ also noted that at 

the hearing Plaintiff reported only a “little bit” of depression. Tr. 26. Plaintiff argues that his 

social activities depend upon his mental state. Pl. Brief. at 13. However, the record shows that 

Plaintiff considered himself a “loner” and enjoyed the independence brought by being “fairly 

solitary.” Tr. 745. 

 Even if Plaintiff’s activities do not rise to the level of transferable work skills, they are 

inconsistent with allegations of completely debilitating impairment. Molina v. Astrue, 674 F.3d 

1104, 1113 (9th Cir.2012) (ALJ may discredit a claimant's testimony when he or she reports 

activities of daily living that “indicat[e] capacities that are transferable to a work setting” or 

“contradict claims of a totally debilitating impairment”) (citations omitted). Accordingly, 

inconsistencies between Plaintiff's activities of daily living and his complaints provided a clear 

and convincing reason to reject Plaintiff’s testimony regarding the totally debilitating effects of 

his mental and physical limitations. 

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OPINION AND ORDER – 12 

 The ALJ also supported her evaluation of Plaintiff’s testimony by noting inconsistencies 

in Plaintiff’s reports of problems interacting with co-workers. The consistency of a claimant’s 

own statements is a factor the ALJ properly considered in determining the effects of symptoms 

on the ability to perform work-related activities. SSR 16-3p available at 2016 WL 1119029 at *8. 

The ALJ is to compare “statements an individual makes in connection with the individual’s 

claim for disability benefits with any existing statements the individual made under other 

circumstances.” Id. 

 At the hearing, Plaintiff testified that he lost one job due to anger issues with a fellow 

employee. Tr. 41. He testified that he did not get along well with “know it alls” but that there 

had been not been any other instances where anger issues had affected his employment. Tr. 57-

58. The ALJ contrasted this testimony with reports Plaintiff had made indicating that he had been 

let go from five jobs and quit two others due to interpersonal issues, Tr. 241; had often been 

terminated for being slow or for personality clashes, Tr. 1054; and “citing a list of restaurants 

and positions from which he had been let go for two general reasons, being slow and also having 

difficulty coping with personality problems.” Tr. 1056. These inconsistencies are a sufficient 

basis to support the ALJ's findings regarding Plaintiff’s subjective symptom testimony. See,

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)(inconsistencies in claimant's testimony can 

serve as clear and convincing reason for discrediting it). 

 Plaintiff also argues that the ALJ did not address his testimony that he had difficulty 

“hanging on to things” and failed to include any limitation in grasping in her hypothetical to the 

VE or in the RFC determination. Although the ALJ must identify what testimony is inconsistent 

with the other evidence of record if that testimony is to be discounted, here, the ALJ incorporated 

into both the hypothetical to the VE and the RFC a limitation on “handling and fingering.” I 

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OPINION AND ORDER – 13 

agree with the Commissioner that the hearing transcript indicates that the ALJ intended 

“handling and fingering” – which are the terms used in the Dictionary of Occupational Titles 

(DOT) – to account for limitations in “grasping.” Tr. 60. See also, SSR 85-15 at *7 (defining 

handling as “seizing, holding, grasping, turning or otherwise working primarily with the whole 

hand or hands)(emphasis added). Accordingly, I conclude that Plaintiff’s argument that the ALJ 

erred in her assessment of his subjective symptom testimony by omitting a discussion of 

“grasping” is without merit. 

 Based upon a careful review of the ALJ's decision and the record, I conclude that the ALJ 

provided clear and convincing reasons supporting her decision to not fully credit Plaintiff’s 

subjective symptom testimony. However, the ALJ also provided other reasons that were not 

legally sufficient. First, the ALJ noted that Plaintiff’s 1999 crash injuries and closed head injury 

had been longstanding, had not previously prevented work and that there was no evidence of 

“drastic worsening” such that the ability to work was currently prevented. Tr. 26. The record 

shows that Plaintiff has not worked since his alleged onset date in 2007. Tr. 40. Although 

Plaintiff worked as a cook from 2000 until 2007 and held one position for almost four years, the 

record also reflects that none of his last three jobs lasted more than six months. Tr. 160. The ALJ 

herself determined that Plaintiff can no longer perform his past relevant work. 

 A claimant's previous ability to work despite an impairment is certainly relevant in 

assessing the credibility of a claimant alleging that the impairment is subsequently disabling. See

Gregory v. Bowen, 844 F.2d 664, 666–67 (9th Cir.1988). However, a work attempt that fails 

because a claimant's impairments preclude satisfactory performance cannot support an adverse 

finding as to Plaintiff’s subjective symptom testimony. E.g., Lingenfelter v. Astrue, 504 F.3d 

1028, 1038 (9th Cir.2007). 

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OPINION AND ORDER – 14 

 The record reflects that Plaintiff has not worked since his alleged onset date, that his 

ability to work after the date of his motor vehicle crash became increasingly unsuccessful and 

that he ceased work altogether prior to his alleged onset date. Under the circumstances, the fact 

that Plaintiff was able to work after the 1999 crash was not a clear and convincing reason for the 

ALJ to discount his subjective symptom testimony. 

 The second insufficient reason is the ALJ’s assertion that Plaintiff ceased vocational 

services with the Oregon Office of Vocational Rehabilitation Services (OVRS) because he was 

waiting for the outcome of his disability claim and not due to an inability to complete the 

assessment or participate in placement. Tr. 26. However, the record reflects that Plaintiff 

reported to OVRS that he was experiencing ongoing pain, and that “due to his pain and other 

physical limitations, he does not feel he can commit to working at his time.” Tr. 671. This 

evidence was not inconsistent with Plaintiff’s allegations and was not a valid reason for the ALJ 

to discount his testimony. 

 The ALJ also noted that Plaintiff had a 60% service connected disability for limitations of 

his ankle, knee, and lower leg but that the VA had not declared him unemployable. Considering 

that the 60% service connected disability comment was not a notice of disability rating from the 

VA but appeared in a chart note that did not address other of Plaintiff’s impairments; and 

because the ALJ failed to articulate the aspects of Plaintiff’s testimony that were inconsistent 

with this chart note, this evidence does not provide a clear and convincing reason for discounting 

Plaintiff’s testimony. See SSR 16-3p (finding must be clearly articulated so as to allow 

assessment of how the adjudicator evaluated the individual’s symptoms). 

 Nonetheless, the ALJ's inclusion of insufficient reasons does not invalidate her finding 

that Plaintiff’s subjective symptom testimony should be discounted. Where, as here, substantial 

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OPINION AND ORDER – 15 

evidence supports the ALJ's determination despite the inadequacy of some of an ALJ's reasons, 

that determination will be upheld. See Carmickle 533 F.3d at 1162. 

II. Evaluating Medical Opinion 

As noted above, Plaintiff contends that the ALJ failed to provide legally sufficient 

reasons for rejecting the opinion of examining psychologist, Dr. Leia Hughey. 

 Dr. Hughey examined Plaintiff on February 25, 2013. She completed a Psychological 

Evaluation Report and a Medical Source Statement of Ability to Do Work Related Activities 

(Mental). Tr. 1054-1062. Dr. Hughey opined that Plaintiff had moderate to marked impairment 

in his ability to interact appropriately with supervisors or coworkers, mild impairment in his 

ability to interact appropriately with the public and mild to moderate impairment in his ability to 

respond appropriately to usual work situations and to changes in a routine work setting. Tr. 1061. 

She wrote “Mr. Mesecher is not an outgoing, warm or friendly person. He reports having lost 

jobs due to conflict with coworkers.” Id. She opined that he had no limitations in understanding 

and remembering simple instructions but marked limitations in carrying out complex 

instructions. Dr. Hughey diagnosed Plaintiff with cognitive disorder, NOS and anxiety disorder. 

Tr. 1058. 

 The ALJ accepted Dr. Hughey’s diagnoses of cognitive disorder and anxiety disorder as 

consistent with the medical evidence of record. However, she gave Dr. Hughey’s opinions 

regarding Plaintiff’s limitations in social functioning only “some weight.” The ALJ discounted 

Dr. Hughey’s opinion because she was “not a neutral source” and because the social limitations 

she assessed were based on Plaintiff’s self-reports of losing jobs due to conflicts, which the ALJ 

found to be inconsistent with Plaintiff’s testimony at the hearing. 

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OPINION AND ORDER – 16 

A. Standards 

 The ALJ is required to consider all medical opinion evidence and is responsible for 

resolving conflicts and ambiguities in the medical testimony. Tommasetti v. Astrue, 533 F.3d 

1035, 1041 (9th Cir. 2008). In reviewing an ALJ's decision, the court does not assume the role of 

fact-finder, but instead determines whether the decision is supported by substantial evidence in 

light of the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992). 

 The opinion of an examining physician is entitled to greater weight than the opinion of a 

non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990). An ALJ must 

provide clear and convincing reasons for rejecting the uncontradicted opinions of an examining 

physician, id., and must provide specific and legitimate reasons for rejecting opinions of an 

examining physician that are contradicted by another physician. Andrews, 53 F.3d at 1043. A 

non-examining physician's opinion “cannot by itself constitute substantial evidence that justifies 

rejection of the opinion of either an examining physician or a treating physician.” Lester v. 

Chater, 81 F.3d 821, 830–31 (9th Cir.1995). 

B. Analysis 

 As an initial matter, Plaintiff argues that Dr. Hughey’s opinion was uncontradicted 

because the ALJ erred in relying on the opinions of examining psychologist Dr. Lahman and the 

state agency reviewing psychologist, Dr. Lundblad. He asserts that Dr. Lahman’s opinion was 

based only on a brief assessment and that Dr. Lundblad was unaware of Dr. Hughey’s “extensive 

testing.” Pl. Brief at 18. 

 Plaintiff’s arguments are unpersuasive. In formulating his evaluation, Dr. Lahman 

performed an interview, mental status examination and records review. He opined that Plaintiff’s 

interaction with peers should be brief and routine and he should have minimal public interaction. 

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OPINION AND ORDER – 17 

Tr. 807. His report reflects more than a “brief assessment.” Tr. 802-807 and the ALJ was entitled 

to rely on his opinion. Furthermore, Drs. Lahman and Lundblad were necessarily unaware of Dr. 

Hughey’s testing because her report was not obtained by counsel until almost two years after 

they made their evaluations. Tr. 87, 802, 1054. Plaintiff’s reliance on Beecher v. Heckler, 756 

F2d. 693, 694-95 (9th Cir. 1985) is inapposite. In that case, the court concluded that a psychiatric 

opinion submitted by a psychiatrist/neurologist was not uncontradicted by the record where all of 

the other medical opinions submitted were provided by orthopedic surgeons or chiropractors and 

were based only on a consideration of the claimant’s physical impairments. Id. Here, in contrast, 

Drs. Lahman and Lundblad, both psychologists, provided opinions based on evaluations of 

Plaintiff’s mental capabilities. The fact that their opinions were provided prior to Dr. Hughey’s 

evaluation does not negate their contradictory nature. 

 Because Dr. Hughey’s opinion was contradicted, the ALJ was required only to provide 

specific and legitimate reasons to reject the marked social limitations she assessed. The ALJ met 

this standard. 

 First, the ALJ gave Dr. Hughey’s opinion only “some weight” because she concluded she 

was not a neutral source since her examination of Plaintiff had been arranged at the request of 

Plaintiff’s attorney. Plaintiff correctly asserts that the mere fact that a medical report is provided 

at the request of counsel is not a legitimate basis for rejecting that report. Reddick v. Chater, 157 

F.3d 715, 726 (9th Cir.1998). However, this is true only “in the absence of other evidence to 

undermine the credibility” of the report and “[e]vidence of the circumstances under which the 

report was obtained and its consistency with other records, reports, or findings could ... form a 

legitimate basis for evaluating the reliability of the report.” Id. 

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OPINION AND ORDER – 18 

 Here, the ALJ discounted Dr. Hughey’s opinion regarding Plaintiff’s social functioning 

for the additional reason that it was based on Plaintiff’s reports of losing previous jobs due to 

social conflicts. As discussed above, the ALJ reasonably concluded that Plaintiff’s testimony 

regarding social problems in his previous jobs was inconsistent with reports made to Dr. Hughey 

and other medical providers. This was a specific and legitimate reason for rejecting Dr. Hughey’s 

opinion that Plaintiff had moderate to marked limitations in interacting appropriately with 

supervisors and co-workers. Because the ALJ provided at least one specific and legitimate reason 

for discounting Dr. Hughey’s opinion, also including as a reason the fact that the opinion was 

obtained by Plaintiff’s attorney was, at most, harmless error. Stout v. Comm'r, Soc. Sec. Admin., 

454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant mistakes harmless). 

III. Lay Witness Evidence 

 Plaintiff’s sister, Dianna Barnett, completed a Third Party Function Report. She wrote 

that Plaintiff becomes irritable “very quickly,” was “moody” and at times could not adjust to 

changes in routine. Tr. 182. Plaintiff contends that although the ALJ stated that she found Ms. 

Barnett’s statements generally credible, she failed to consider statements regarding Plaintiff’s 

“moodiness” and quick irritability and failed to assess any resulting limitations in his ability to 

respond appropriately to supervision. Plaintiff asserts that Ms. Barnett’s statements regarding his 

social functioning should be fully credited. I disagree. 

 Ms. Barnett did not make any observations regarding Plaintiff’s interactions with 

supervisors. Furthermore, the ALJ accounted for Plaintiff’s limitations in social functioning in 

the RFC by limiting Plaintiff to “a predictable environment with clear expectations” and without 

public contact or teamwork assignments. Tr. 23. Although Plaintiff argues that with his 

moodiness and quick irritability “there is no reason to think that [he] would not be irritable with 

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OPINION AND ORDER – 19 

supervisors,” the ALJ’s interpretation of the evidence was a rational one and will not be 

overturned here. Tommasetti, 533 F.3d at 1038 (ALJ's findings must be upheld if they are 

supported by reasonable inferences drawn from the record). 

IV. The ALJ’s Step Five Analysis 

 Plaintiff contends that the ALJ did not meet the burden of establishing, at step five of the 

disability analysis that he could perform other jobs that existed in substantial numbers in the 

national economy because the vocational hypothetical did not accurately set out all of his 

impairments. Plaintiff reiterates his arguments regarding the ALJ’s assessment of his testimony 

and Dr. Hughey’s opinion. He also asserts that the ALJ’s findings that he was moderately 

deficient in concentration, persistence and pace were inadequately accounted for in the RFC 

limitation to performing simple tasks. 

A. Plaintiff’s Limitations in Concentration, Persistence and Pace 

 An ALJ's residual functional capacity (RFC) assessment is separate and distinct from the 

special technique analysis applied at steps two and three. See 20 C.F.R. §§ 404.1520a(b)(1), 

404.1546(c), 416.920a(b)(1), 416.946(c); SSR 96–8p. As the ALJ noted in her decision, the 

limitations identified in the “B” criteria “are not a residual functional capacity assessment but are 

used to rate the severity of mental impairments at step 2 and 3 of the sequential evaluation 

criteria.” Tr. 22. See, e.g., Dodds v. Astrue, CV No. 3:09–cv00332–AC, slip op. at 6 (D.Or. Dec. 

28, 2010), available at 2010 WL 5662968 at *3 (B criteria used to determine whether impairment 

is severe enough to require RFC assessment, not to determine Claimant's RFC). Therefore, the 

ALJ did not err in omitting from the RFC assessment the specific finding set out at steps two and 

three. 

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OPINION AND ORDER – 20 

 Furthermore, the ALJ’s RFC set out that Plaintiff could “understand and carry out simple 

instructions in a predictable environment with clear expectations.” Tr. 23. This limitation 

adequately accounted for the deficiencies in concentration, persistence and pace that the ALJ 

assessed at steps 2 and three. See Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1173–74 (9th 

Cir.2008) (“an ALJ's assessment of a claimant adequately captures restrictions related to 

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

in the medical testimony”) (citations omitted); Bickford v. Astrue, 2010 WL 4220531, *11 

(D.Or. Oct. 19, 2010) (“so long as the ALJ's decision is supported by medical evidence, a 

limitation to simple, repetitive work can account for moderate difficulties in concentration, 

persistence or pace”) (citations omitted); Gillock v. Astrue, 2011 WL 2011 WL 4916499, *5 

(D.Or. June 29), adopted by 2011 WL 4935996 (D.Or. Oct. 17, 2011) (same). In the present 

action, a careful review of the medical evidence and the ALJ's decision supports the conclusion 

that the ALJ's RFC adequately accounted for Plaintiff's mental limitations. 

B. RFC and Vocational Hypothetical 

 In order to be accurate, an ALJ's vocational hypothetical presented to a VE must set out 

all of a claimant's impairments and limitations. E.g., Gallant v. Heckler, 753 F.2d 1450, 1456 

(9th Cir.1984). The ALJ's depiction of a claimant's limitations must be “accurate, detailed, and 

supported by the medical record.” Tackett, 180 F.3d at 1101. If the assumptions set out in the 

hypothetical are not supported by the record, a VE's conclusion that a claimant can work does 

not have evidentiary value. Gallant, 753 F.3d at 1456. If the ALJ has applied the proper legal 

standard and the decision is supported by substantial evidence, the RFC assessment must be 

affirmed. E.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.2005). 

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OPINION AND ORDER – 21 

 A careful review of the ALJ's decision supports the conclusion that the ALJ did not err in 

concluding, at step five of her analysis, that Plaintiff could perform jobs that existed in 

substantial numbers in the national economy. As discussed above, the ALJ provided sufficient 

reasons for discounting Plaintiff’s testimony and the statements of the lay witness. The ALJ 

thoroughly summarized and evaluated relevant medical evidence in the record, and her RFC 

assessment was supported by substantial evidence cited in her decision. In determining that 

Plaintiff could perform jobs that existed in substantial numbers in the national economy, the ALJ 

relied on the VE's response to a vocational hypothetical that included all of the limitations that 

the ALJ found were credible and supported by substantial evidence in the record. That reliance 

was proper. E.g., Id. at 1217–18.

Conclusion 

 For the reasons set forth above, the Commissioner’s decision is AFFIRMED and this 

action is dismissed with prejudice. 

 DATED this 10th day of November, 2016. 

 

 /s/ John Jelderks 

 John Jelderks 

 U.S. Magistrate Judge 

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