OPINION & ORDER – 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TIMOTHY SAENZ,

Plaintiff,

 Case No. 3:14-cv-01696-SI

 OPINION AND ORDER

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Tim Wilborn, Wilborn Law Office, P.C., P.O. Box 370578, Las Vegas, NV 89127. Attorney for 

Plaintiff. 

Billy J. Williams, Acting United States Attorney, and Janice E. Herbert, Assistant United States 

Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, Suite 

600, Portland, OR 97204-2902; Jeffrey E. Staples, Special Assistant United States Attorney, 

Office of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 

M/S 221A, Seattle, WA 98104-2240. Attorneys for Defendant.

Michael H. Simon, District Judge.

Timothy Saenz seeks judicial review of the final decision of the Commissioner of the 

Social Security Administration (“Commissioner”) denying his applications for Supplemental 

Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). Because the

Commissioner’s decision is based on the proper legal standards and the findings are supported by 

substantial evidence, the decision is AFFIRMED.

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OPINION & ORDER – 2

STANDARD OF REVIEW

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

legal standards and the findings are supported 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 Soc. Sec. Admin., 

554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 

1995) (quotation marks omitted)). It means “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

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

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 

2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

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

for that of the Commissioner. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 

1193 (9th Cir. 2004). “[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) (quotation marks omitted)). However, a reviewing court may not affirm the Commissioner 

on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1225-26 

(citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

BACKGROUND

A. Plaintiff’s Application

Mr. Saenz filed applications for DIB and SSI on November 12, 2009, alleging disability 

as of March 1, 2007. AR 118-21, 203-04. Born in June, 1961, Mr. Saenz was 45 years old on the 

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alleged disability onset date and 50 at the time of the hearing. AR 78, 256. He speaks English 

and has earned a GED. AR 259, 263. He alleges disability due to: alcoholism, depression, and 

back problems. AR 260. The Commissioner denied his application initially and upon 

reconsideration, and he requested a hearing before an Administrative Law Judge (“ALJ”). 

AR 159, 160-61. After an administrative hearing held on August 29, 2011, the ALJ found 

Mr. Saenz not disabled in a decision dated October 11, 2011. AR 25-34. The Appeals Council 

denied Mr. Saenz’s subsequent request for review on August 27, 2014. AR 1-3. The ALJ’s 

decision thus became the final decision of the Commissioner, and Mr. Saenz sought review in 

this Court. 

B. The Sequential 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. 

§ 432(d)(1)(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 Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§ 404.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 

C.F.R. § 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 

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). An 

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impairment or combination of impairments 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). Unless expected to result in death, 

this impairment must have lasted or 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). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis continues. 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). If the 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; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. 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.” Id.; 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.

C. The ALJ’s Decision

The ALJ performed the sequential analysis. Tr. 40-52. At step one, the ALJ found 

Mr. Saenz had not engaged in substantial gainful activity since March 1, 2007, the alleged onset 

date. AR 27. At step two, the ALJ concluded that Mr. Saenz had the severe impairment of 

lumbago and degenerative disc disease of the lumbar spine. Id. At step three, the ALJ determined 

that Mr. Saenz did not have an impairment or combination of impairments that met or equaled a 

listed impairment. AR 28. 

The ALJ next assessed Mr. Saenz’s RFC and found that he could perform sedentary work 

except that he can do no more than occasional climbing, crawling, kneeling, balancing, stooping, 

and crouching. AR 28. At step four, the ALJ found that Mr. Saenz had no past relevant work. 

AR 31. At step five, based on the testimony of a vocational expert (“VE”), the ALJ concluded 

that prior to June 25, 2011, the date Mr. Saenz’s age category changed, he could perform jobs 

that exist in significant numbers in the national economy including cashier and small products 

assembly. AR 32-33. Accordingly, the ALJ found Mr. Saenz not disabled. AR 33-34.

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OPINION & ORDER – 6

DISCUSSION

Mr. Saenz argues that the ALJ erred by (1) discrediting his testimony; (2) discrediting 

medical opinion evidence; (3) discrediting lay witness testimony; and (4) failing properly to 

identify jobs in the national economy at step five. 

A. Plaintiff’s Credibility

There is a two-step process for evaluating the credibility of a claimant’s testimony about 

the severity and limiting effect of the claimant’s symptoms. Vazquez v. Astrue, 572 F.3d 586, 

591 (9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented objective 

medical evidence of an underlying impairment ‘which could reasonably be expected to produce 

the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1029, 1036 (9th 

Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When 

doing so, the claimant “need not show that her impairment could reasonably be expected to cause 

the severity of the symptom she has alleged; she need only show that it could reasonably have 

caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 

Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the 

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so.’” Lingenfelter, 503 F.3d at 1036 (quoting 

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must 

state which pain testimony is not credible and what evidence suggests the complaints are not 

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be 

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily 

discredit the claimant’s testimony.” Ortez v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing 

Bunnell, 947 F.2d at 345-46).

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The ALJ may consider objective medical evidence and the claimant’s treatment history, 

daily activities, work record, and observations of physicians and third parties regarding

claimant’s alleged functional limitations. Smolen, 80 F.3d at 1284. The Commissioner 

recommends assessing the claimant’s daily activities, the location, duration, frequency, and 

intensity of the individual’s pain or other symptoms; factors that precipitate and aggravate 

symptoms; the type, dosage, effectiveness, and side effects of any medication the individual 

takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the 

individual receives or has received for relief of pain or other symptoms; and any measures other 

than treatment the individual uses or has used to relieve pain or other symptoms. See Social 

Security Ruling (“SSR”) 96-7p, available at 1996 WL 374186. The ALJ may not, however, 

make a negative credibility finding “solely because” the claimant’s symptom “is not 

substantiated affirmatively by the objective medical evidence.” Robbins, 466 F.3d at 883.

Further, the Ninth Circuit has stated that an ALJ also “may consider . . . ordinary 

techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 

statements concerning the symptoms, . . . other testimony by the claimant that appears less than 

candid [and] unexplained or inadequately explained failure to seek treatment or to follow a 

prescribed course of treatment.” Smolen, 80 F.3d at 1284. The ALJ’s credibility decision may be 

upheld overall even if not all of the ALJ’s reasons for rejecting claimant’s testimony are upheld. 

Batson, 359 F.3d at 1197. Here, the ALJ found that Mr. Saenz’s “allegations have limited 

credibility.” AR 29. In support, the ALJ explained Mr. Saenz provided inconsistent testimony 

regarding alcohol use, and noted examples where Mr. Saenz’s symptom allegations were not 

supported by the medical evidence. AR 29-31. Mr. Saenz contends that the ALJ failed to provide 

clear and convincing reasons for discrediting his testimony. 

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The ALJ provided a detailed explanation of inconsistencies in Mr. Saenz’s testimony 

regarding his use of alcohol over the years. AR 29. Mr. Saenz acknowledges that his statements 

regarding alcohol use are “inconsistent.” Pl.’s Br. 12. Mr. Saenz nonetheless argues that any 

inconsistency is explained by the fact that “[a]lcoholic binges are widely known to result in 

memory deficits . . . [i]t is entirely possible [Mr. Saenz] does not remember the circumstances 

surrounding his binge drinking and/or possible lost jobs as a result.” Id. However, whether 

alcoholic binges have affected Mr. Saenz’s recall abilities, an ALJ may rely on a claimant’s 

conflicting reports regarding alcohol consumption to support an adverse credibility finding. See 

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (finding it was appropriate for the ALJ to 

infer that the plaintiff’s lack of candor in describing her drug and alcohol use undermined her 

allegations about physical pain (citing Verduzco v. Apfel, 188 F.3d, 1087, 1090 (9th Cir. 1999) 

(relying on inconsistent statements about alcohol use to reject claimant’s testimony))). Indeed, 

inconsistent statements by a claimant provide a specific, clear, and convincing reason to discount 

credibility. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); SSR 96-7p at *5. 

Here, the ALJ presented more than one example of inconsistent statements by Mr. Saenz. 

AR 29. Mr. Saenz reported in 2009 that he was clean and sober for more than a year. AR 277. He 

explained that alcoholism has limited his ability to concentrate and maintain standard job 

requirements. AR 260. Mr. Saenz further reported that he lost jobs at a golf course and as a loss 

prevention officer due to alcohol use. AR 277, 367. During the hearing, however, Mr. Saenz 

insisted that alcohol was not a contributing factor in his work performance or marked diminution 

in earnings after 2002. AR 88-92. Instead, Mr. Saenz attributed his loss of earnings to “wearing 

down” with age. AR 92. Mr. Saenz also attributed his job loss to his brother’s homicide, 

however, as the ALJ noted, that unfortunate event did not occur until 2007 or 2008, years after 

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the period at issue. AR 90-91. As such, substantial evidence supports the ALJ’s finding of 

inconsistent testimony. 

Mr. Saenz’s assertion that “[b]efore an ALJ may properly rely on an inconsistency to find 

a claimant not credible, the inconsistency must have some bearing on the disability claim” is 

unavailing for two reasons. First, the case Mr. Saenz cites in support, Kaur v. Gonzalez, 418 

F.3d 1061 (9th Cir. 2005), involves a denial of asylum, and therefore is inapposite. Second, the

inconsistency noted by the ALJ does have bearing on the disability claim, because it illustrates 

that Mr. Saenz arguably left at least two previous jobs due to alcohol use rather than his back 

impairment. See, e.g., Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ may 

consider claimant’s reason for leaving work in assessing credibility of pain allegations). Further, 

the Ninth Circuit has long held that the ALJ may employ ordinary techniques of credibility 

evaluation when assessing a claimant’s veracity. Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th 

Cir. 1989). Such techniques may include a claimant’s reputation for lying, prior inconsistent 

statements, or vague answers regarding an alleged disability. See, e.g., Tommassetti v. 

Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008). Here, as Mr. Saenz concedes, his explanations 

regarding alcohol use were clearly inconsistent; thus, the ALJ’s finding was adequately 

supported. Moreover, even if the evidence were susceptible to more than one rational

interpretation, the ALJ’s finding must be upheld. Burch at 680-81.

The ALJ also found Mr. Saenz’s allegations regarding the severity of his impairment 

inconsistent with the objective evidence. The ALJ noted that in 2009, Donald Ramsthel, M.D.,

was unable to complete several range of motion tests due to “tremendous” pain behavior. 

AR 409. Dr. Ramsthel also indicated Mr. Saenz “seems to have a victim mentality and has 

completely given up.” AR 410. In January 2011, Bradley Bergquist, M.D., performed a 

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OPINION & ORDER – 10

consultative examination of Mr. Saenz. Dr. Bergquist reviewed an MRI scan, which he 

interpreted as showing no nerve root or spinal cord compression that would require surgery. 

AR 445. In 2010, Paul Ash, M.D., Ph.D. examined Mr. Saenz and reported “maximum deficit 

with minimal findings and negative [imaging] studies to date.” AR 434. Accordingly, the ALJ

inferred that Mr. Saenz’s extreme pain behavior and allegations of severe impairment were not 

fully credible. 

Dr. Ash further noted Mr. Saenz likely “has an exaggeration of a more mundane lumbar 

strain.” Id. The ALJ interpreted Dr. Ash’s statement to mean that Mr. Saenz was “exaggerating” 

a “mundane” lumbar strain, “as there were minimal objective findings to support the alleged 

limitations.” AR 31. Mr. Saenz argues that considering the context of Dr. Ash’s sentence, it is 

clear that “exaggeration” means “exacerbation.” Pl.’s Br. 4; AR 434. Although it is possible 

Dr. Ash’s chart note included an inadvertent word substitution, the ALJ’s interpretation of the 

notation is rational and supported by the record, and therefore upheld. Burch, 400 F.3d at 680-81.

Even assuming for the sake of argument that Dr. Ash intended to report Mr. Saenz “has an 

exacerbation of a more mundane lumbar strain,” the doctor nonetheless noted “minimal” 

objective findings and indicated that even if Mr. Saenz had a cervical radiculopathy, it did not 

cause his “apparent disability.” AR 434. Moreover, as noted above, Dr. Bergquist’s subsequent 

review of the cervical MRI showed “no significant canal or foraminal stenosis, the cord signal is 

normal and alignment is normal.” AR 444. 

Thus, for the reasons explained herein, the court is satisfied the ALJ provided legally 

sufficient rationales supported by substantial evidence in the record such that Mr. Saenz’s 

testimony was not arbitrarily discredited. Bunnell, 947 F.2d at 345.

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B. Medical Opinion Evidence

Mr. Saenz argues the ALJ improperly rejected the December 2009 functional capacity 

assessment of Dr. Ramsthel. AR 30, 410. The ALJ is responsible for resolving conflicts in the 

medical record, including conflicting physicians’ opinions. Carmickle, 533 F.3d at 1164. The 

Ninth Circuit distinguishes between the opinions of three types of physicians: treating 

physicians, examining physicians, and non-examining physicians. The opinions of treating 

physicians are generally accorded greater weight than the opinions of non-treating physicians. 

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor’s opinion that is not 

contradicted by the opinion of another physician can be rejected only for “clear and convincing” 

reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). 

If a treating doctor’s opinion is contradicted by the opinion of another physician, the ALJ 

must provide “specific, legitimate reasons” for discrediting the treating doctor’s opinion. Murray 

v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Additionally, the ALJ must accord greater weight 

to the opinion of an examining physician than that of a non-examining physician. Lester, 81 F.3d 

at 830. As is the case with a treating physician’s opinion, the ALJ must provide “clear and 

convincing” reasons for rejecting the uncontradicted opinion of an examining physician. Pitzer v. 

Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an examining physician is 

contradicted by another physician’s opinion, the ALJ must provide “specific, legitimate reasons” 

for discrediting the examining physician’s opinion. Lester, 81 F.3d at 830. Specific, legitimate 

reasons for rejecting a physician’s opinion may include its reliance on a claimant’s discredited 

subjective complaints, inconsistency with the medical records, inconsistency with a claimant’s 

testimony, or inconsistency with a claimant’s activities of daily living. Tommasetti, 533 F.3d 

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OPINION & ORDER – 12

at 1040. It is error to reject an examining physician’s medical opinion without providing reasons 

for doing so; an ALJ effectively rejects an opinion when he ignores it. Smolen, 80 F.3d at 1286.

Dr. Ramsthel’s opinion regarding Mr. Saenz limitations is contradicted by the opinions of 

reviewing physicians. State agency reviewing physician Dr. Jensen indicated Mr. Saenz could 

occasionally lift and carry ten pounds, could stand and walk two of eight hours per workday, and 

could sit up to six hours per workday. AR 390. State agency reviewing physician Dr. Eder also 

indicated less severe limitations that those noted by Dr. Ramsthel. AR 398. 

Plaintiff argues that insofar as the state agency doctors were the only physicians who 

contradicted Dr. Ramsthel, their opinions do not constitute substantial evidence, and therefore 

may not support rejection of Dr. Ramsthel’s opinion. The Ninth Circuit has, however,

“consistently upheld the Commissioner’s rejection of the opinion of a treating or examining 

physician, based in part on the testimony of a nontreating, nonexamining medical advisor.” 

Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citations omitted) 

(emphasis in original). For example, in Morgan, the court held that an examining psychologist’s 

opinion was properly discounted based on Morgan’s alcohol use and his less-than-credible 

testimony. Similarly, the ALJ in the instant case pointed to specific evidence in addition to the 

opinions of the non-examining state agency doctors in discounting Dr. Ramsthel’s opinion. The 

ALJ noted x-rays taken the same month of Dr. Ramsthel’s opinion “showed only mild lumbar 

degeneration.” AR 30, 363, 373. The ALJ further explained that Dr. Ramsthel’s opinion was 

based on an incomplete examination, inferring that the doctor’s opinion was predicated on 

subjective rather than objective evidence because Dr. Ramsthel identified abnormalities only in 

Mr. Saenz’s gait and left shoulder. AR 30, 408-10. Because the ALJ previously found Mr. Saenz 

lacked credibility, it follows that insofar as Dr. Ramsthel’s opinion was based on Mr. Saenz’s 

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OPINION & ORDER – 13

subjective complaints, it too lacked credibility. The ALJ is responsible for resolving conflicts in 

the medical testimony, and resolving ambiguity. Andrews, 53 F.3d at 1041. Here, the ALJ 

provided specific and legitimate reasons to discredit Dr. Ramsthel and adopt the functional 

capacity opinions of the state agency doctors. AR 31. Accordingly, the ALJ’s finding is upheld.

Morgan, 169 F.3d at 602.

C. Lay Witness Testimony

Mr. Saenz argues that the ALJ improperly rejected the lay testimony of his wife, 

Ida Saenz, and his friend, Jessica Fox. Ms. Saenz completed a questionnaire describing physical 

limitations and testified at the hearing, while Ms. Fox completed a questionnaire describing 

limitations. 

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

ability to work is competent evidence that an ALJ must take into account. Nguyen v. Chater, 100 

F.3d 1462, 1467 (9th Cir. 1996) (citations omitted). The ALJ must provide “reasons germane to 

each witness” in order to reject such testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) 

(citations omitted). The ALJ noted Ms. Saenz “stated that alcohol use has not been a problem 

for [Mr. Saenz], even though the claimant reported work- and domestic violence-related 

problems from daily drinking in the past.” AR 31. Statements that are inconsistent with a 

claimant’s own allegations provide a germane reason to discount a lay witness’s testimony. See 

Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Thus, the ALJ provided a 

specific, germane reason for discounting Ms. Saenz’s testimony.

The ALJ found Mr. Saenz’s friend, Ms. Fox, provided credible testimony to the extent it 

was consistent with Mr. Saenz’s reports of frequent alcohol use. AR 29, 287-94. Mr. Saenz, 

however, argues that the ALJ failed to address physical limitations Ms. Fox described in her 

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OPINION & ORDER – 14

questionnaire. For example, Ms. Fox indicated via check-boxes that Mr. Saenz’s condition 

affected his ability to lift, stand, walk, kneel, concentrate, complete tasks, and get along with 

people. AR 292. Ms. Fox’s statements, however, are not facially inconsistent with the RFC. The

ALJ found Mr. Saenz limited to sedentary work, “with no more than occasional climbing, 

crawling, kneeling, balancing, stooping, and crouching.” AR 28. Further, Ms. Fox did not 

describe the degree to which Mr. Saenz’s functional abilities were limited; she merely noted that 

certain abilities were impacted by his impairment. AR 292. Thus, the ALJ did not disregard 

Ms. Fox’s testimony, but rather considered her questionnaire testimony and provided an RFC 

that was consistent with her observations of Mr. Saenz. See Nguyen, 100 F.3d at 1467. 

Further, even if the ALJ failed to incorporate specific limitations discussed by the lay 

witnesses, any error was harmless. Where an ALJ fails to explain the reasons for rejecting lay 

witness testimony, or a portion thereof, the error is harmless when the lay witness testimony does 

not describe limitations beyond those already described by a plaintiff who has properly been

found not credible. Molina, 674 F.3d at 1122 (finding that “an ALJ’s failure to comment upon 

lay witness testimony is harmless where ‘the same evidence that the ALJ referred to in 

discrediting [the claimant’s] claims also discredits [the lay witness’s] claims.’” (alterations in 

original) (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). Further, because

opinions from medical sources are generally more credible than testimony from lay witnesses, an 

ALJ may choose not to adopt every limitation proffered by a lay witness when the testimony is 

inconsistent with the medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th 

Cir. 2005). Accordingly, to the extent the ALJ erred in not discussing each impairment noted by 

the lay witnesses, any error was harmless. 

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D. Step Five Findings

Mr. Saenz argues the ALJ erred at step five by finding that Mr. Saenz was able to 

perform the occupations of cashier and small product assembler before June 25, 2011. 

Specifically, Mr. Saenz contends the ALJ failed to comply with SSR 00-4p, available at 2000 

WL 1898704, which provides that step five findings must either be consistent with the 

Dictionary of Occupational Titles (“DOT”) or supported by persuasive evidence to justify a 

deviation from it. 

During the hearing, the VE identified a light exertional level cashier job in response to 

the ALJ’s hypothetical question limiting a person to sedentary work. AR 116. The VE explained 

“the DOT classification for [cashier] is light, unskilled, SVP 2[,] but from my experience there 

are sedentary jobs.” Id. Although Mr. Saenz contends that the ALJ failed persuasively to resolve 

the conflict between the DOT and the VE’s testimony, the argument is unavailing. The Ninth 

Circuit has allowed the VE, as an “expert of the existence and characteristics of jobs available,” 

to provide testimony that a claimant can work in jobs the DOT categorizes as “light,” despite the 

claimant’s restriction to sedentary work. See, e.g., Johnson, 60 F.3d at 1436. Here, the VE 

asserted that there were cashier jobs in the national and local economies that Mr. Saenz could 

perform at a sedentary exertional level. AR 116. Accordingly, the VE adequately rebutted the 

presumption that Mr. Saenz could not perform the cashier position, and the ALJ subsequently 

resolved the conflict by determining the VE’s explanation provided a reasonable basis upon 

which to rely. AR 33, 116; see SSR 00-4p at *4. 

Mr. Saenz also argues that the ALJ’s identification of small products assembler was 

erroneous, because it is “unlikely this occupation exists in significant numbers in Oregon or 

nationwide.” In support, Mr. Saenz invites the court to entertain a scenario involving a 

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OPINION & ORDER – 16

hypothetical Oregon sunglasses factory employing 1,500 product assemblers and “several 

thousand if not tens of thousands of people to build the entire pairs of sunglasses. Mr. Saenz 

contends that since “[w]e haven’t heard about such a huge sunglasses manufacturing facility . . . 

common sense demonstrates that the vocational expert’s testimony is simply wrong.”

Mr. Saenz’s argument lacks merit. The VE is not charged with identifying a single 

facility where all local small product assemblers could be employed. Mr. Saenz fails to provide 

any support, aside from hyperbole, that small product assembly job numbers are inadequate 

statewide or nationwide. Id. The VE’s testimony that substantial numbers of relevant jobs exist

in the local and national economies provides sufficient foundation for the ALJ’s findings. 

Bayliss, 427 F.3d at 1218. The ALJ did not err at step five. 

CONCLUSION

The Commissioner’s decision that Mr. Saenz was not disabled prior to June 25, 2011 is 

based on proper legal standards and the findings are supported by substantial evidence; thus, 

Mr. Saenz’s request for remand (Dkt. 1) is DENIED. The Commissioner’s decision is 

AFFIRMED.

DATED this 16th day of October, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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