1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DALE E. JOLLIFFE,

No. 3:14-cv-01935-HZ

Plaintiff,

OPINION & ORDER

v.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

Lisa R.J. Porter

JP Law PC

5200 SW Meadows Rd., Ste. 150

Lake Oswego, OR 97035

Attorney for Plaintiff

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//

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2 - OPINION & ORDER

Billy J. Williams

Acting United States Attorney, District of Oregon

Janie E. Hebert

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97201

Courtney M. Garcia

Special Assistant United States Attorney

Social Security Administration

SSA Office of General Counsel

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

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Dale E. Jolliffe brings this action under the Social Security Act (“Act”), 42 

U.S.C. § 405(g), for judicial review of the Commissioner of Social Security’s final decision

denying his claim for Disability Insurance Benefits (“DIB”) under Title II of the Act. Because it 

is based on legally sufficient reasons supported by substantial evidence, the Commissioner’s 

decision is affirmed. 

BACKGROUND

Jolliffe applied for DIB on March 22, 2010, alleging an onset date of September 15, 

2006. Tr. 11.

1 The Commissioner denied his application, and Joliffe requested a hearing before 

an Administrative Law Judge (“ALJ”). Tr. 11. After a hearing in September of 2012, ALJ 

Timothy Mangrum found Jolliffe was not disabled. Tr. 11–26. Jolliffe appealed, but the Appeals 

Council denied his request for review, making ALJ Mangrum’s ruling the Commissioner’s final 

decision that Jolliffe now challenges in this Court. Tr. 1–3. 

 1 Citations to “Tr.” refer to pages of the administrative record transcript, filed here as Docket No. 12.

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SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if he 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)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine 

v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Each step is potentially 

dispositive. At step one, the presiding ALJ determines whether the claimant is engaged in 

“substantial gainful activity.” If so, the claimant is not disabled; if not, the analysis continues. 20 

C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has

one or more severe impairments. If not, the claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 

416.920(c). At step three, the ALJ determines whether the impairment meets or equals one of the

impairments listed in the SSA regulations and deemed “so severe as to preclude substantial 

gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. §§ 404.1520(d), 

416.920(d). If so, the claimant is conclusively presumed disabled 20 C.F.R. §§ 404.1520(d), 

416.920(d). If not, the analysis moves to step four, where the ALJ determines whether the 

claimant, despite any impairments, has the residual functional capacity (“RFC”) to perform past 

relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant cannot perform his or her 

past relevant work, the analysis moves to step five, where the ALJ determines whether the 

claimant can perform other work in the national economy considering the claimant’s RFC, age, 

education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g). 

The burden to show disability rests with the claimant at steps one through four, but if the 

analysis reaches step five, the burden shifts to the Commissioner to show that a significant 

number of jobs exist in the national economy that the claimant could perform. 20 C.F.R. §§ 

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404.1520(e) & (f), 416.920(e) & (f); Tackett v. Apfel, 180 F.3d 1094, 1098–1100 (9th Cir.

1999). If the Commissioner demonstrates a significant number of jobs exist in the national 

economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 

404.1520(g)(1), 416.920(g).

ALJ DECISION

The ALJ found that Jolliffe last met the insured status requirements of the Act on 

December 31, 2011. Tr. 13. At step one, the ALJ found that Jolliffe had not engaged in 

substantial gainful activity during the period between his alleged onset date of September 15, 

2006 and his date last insured of December 31, 2011. Tr. 13. At step two, the ALJ found that 

Jolliffe had the “following severe impairments: degenerative disk disease of the lumbar spine, 

bilateral degenerative joint disease of the knees, degenerative joint disease of the right ankle, 

obstructive sleep apnea, and obesity.” Tr. 13. At step three, the ALJ found Jolliffe’s impairments 

did not meet or equal a listed impairment. Tr. 18–19. Next, the ALJ found that Jolliffe had the 

following RFC through the date last insured:

[C]laimant had the residual functional capacity to perform sedentary work as 

defined in 20 C.F.R. 404.1567(a) except that he could crawl, crouch, kneel, stoop, 

and climb. He could frequently balance.

Tr. 29 (some punctuation added). At step four, the ALJ determined that Jolliffe was unable to 

perform his past relevant work as an adult care provider or fast food worker. Tr. 25. At step five, 

the ALJ found that, based on his RFC and the relevant Medical-Vocational Guidelines at 20 

C.F.R. part 404, subpart P, appendix 2, there were jobs that existed in significant numbers in the 

national economy that Jolliffe could perform. Tr. 25–26. Accordingly, the ALJ found that Jolliffe 

was not disabled under the Act. Tr. 26. 

//

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STANDARD OF REVIEW

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.” Id. 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). If the evidence is susceptible to 

more than one reasonable interpretation, the court must uphold the decision. Andrews, 53 F.3d at 

1039–40. A reviewing court must consider the entire record as a whole and cannot affirm the 

Commissioner by simply isolating a specific quantum of supporting evidence. Robbins v. Soc. 

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation omitted).

DISCUSSION

Jolliffe asks the Court to find error in three different aspects of the ALJ’s decision: 1) that 

the ALJ improperly discounted Jolliffe’s credibility because he did not comply with numerous 

doctors’ advice that he lose weight; 2) that the ALJ improperly rejected portions of testimony 

from Jolliffe’s mother, Shirley Owens; and 3) that the ALJ improperly relied on the MedicalVocational Guidelines in lieu of taking testimony from a vocational expert to find that there were 

a significant number of jobs that Jolliffe could perform. Plaintiff’s Brief (“Pl. Br.”) at 18, 20, 23. 

Jolliffe makes passing reference to other purported errors, such as the ALJ’s rejection of medical 

reports from Dr. Sharf and “other physicians,” and that the ALJ’s formulation of Jolliffe’s RFC 

is “contrary to law and unsupported by the evidence because it is not based on all the evidence.” 

Pl. Br. at 24–26.

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1. Noncompliance with Treatment & Credibility

When formulating Jolliffe’s RFC, the ALJ was required to consider evidence of Jolliffe’s 

symptoms, including Jolliffe’s subjective statements about the intensity, persistence, and limiting 

effects of his symptoms. As part of that analysis, the ALJ noted that Jolliffe’s doctors repeatedly 

cited “obesity . . . as a key factor in his sleep apnea, right ankle pain, back pain, and knee pain.” 

Tr. 22. The ALJ then discounted the credibility of Jolliffe’s statements about those symptoms: 

“[Jolliffe’s] lack of devotion to weight loss detracts from his credibility as to the severity of his 

pain symptoms and his functional limitations, as he has been told by medical providers that these 

symptoms and his functional capacity will improve with weight loss.” Tr. 22. Jolliffe asserts that 

the ALJ erred by not applying the correct legal standard in finding he was noncompliant with 

numerous doctors’ recommendation that he lose weight. Pl. Br. at 18.

An ALJ analyzes the credibility of a claimant’s testimony regarding his subjective pain 

and other symptoms in two steps. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 

2007). “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.” Id. at 1036 (citation and internal quotation omitted). “The claimant, 

however, need not show that [his] impairment could reasonably be expected to cause the severity 

of the symptom [he] has alleged; [he] need only show that it could reasonably have caused some 

degree of the symptom.” Id. (citation and internal quotation omitted). Second, if the claimant 

meets the first test, and there is no evidence of malingering, the ALJ can reject his testimony 

about the severity of his symptoms only by offering specific, clear and convincing reasons for 

doing so. Id. (citation and internal quotation omitted). 

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

activities, and work record, and the observations of physicians and third parties with personal 

knowledge of the claimant’s functional limitations. Smolen v. Chater, 80 F.3d 1273, 1283 (9th 

Cir. 1996). The ALJ may also employ ordinary techniques of credibility evaluation, such as 

weighing inconsistent statements by the claimant. Id.

At step one, the ALJ found that Jolliffe’s “medically determinable impairments could 

reasonably be expected to cause the alleged symptoms.” Tr. 20. Jolliffe alleged suffering from 

debilitating pain in his back and both knees. Tr. 19. He also asserted that he is unable to work 

because of fatigue caused by obstructive sleep apnea. Tr. 19. His pain, Jolliffe claimed, limited

the time he can stand to about ten minutes and the distance he can walk to about twenty-five 

yards; his fatigue caused issues with absenteeism and daytime drowsiness. Tr. 19–20.

The ALJ found at step two that Jolliffe’s statements about the intensity and limiting of 

effects of his symptoms were not entirely credible. Tr. 20. The ALJ discounted Jolliffe’s claims

because objective medical evidence did not support his testimony, his activity level was 

inconsistent with his reports of severe limitations, his symptoms improved with treatment, and he 

did not follow his doctors’ recommendation that he lose weight. Tr. 23–26. 

Jolliffe is correct that the ALJ improperly relied on his noncompliance with his doctors’

recommendation that he lose weight to discount his credibility. Although a failure to follow 

prescribed treatment can be a legitimate ground for discounting a claimant’s credibility, Social 

Security regulations and Ninth Circuit law limit an ALJ’s “ability to use a claimant’s failure to 

lose weight as a ground for denying benefits or making an adverse credibility finding.” Muldoon 

v. Colvin, No. CV 13-5188-DFM, 2014 WL 4494461, at *3 (C.D. Cal. Sept. 12, 2014) (citing 

SSR 02–1p, 2002 WL 34686281, at *9; Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007)). 

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Before an ALJ can rely on a claimant’s failure to follow a doctor’s recommendation to lose 

weight, the claimant must have been found disabled at least in part because of obesity. Dhillon v. 

Astrue, No. 3:11-CV-01269-JE, 2013 WL 705470, at *9 (D. Or. Jan. 30, 2013) (citing SSR 02–

1p; Orn, 495 F.3d at 633–37). Even if the ALJ makes such a finding, a failure to follow treatment 

is only relevant if “[a] treating source has prescribed treatment that is clearly expected to restore 

the ability to engage in substantial gainful activity, and [t]he evidence shows that the individual 

has failed to follow prescribed treatment without a good reason.” SSR 02-1p, 2002 WL 

34686281at *9. 

Here, Jolliffe has not been found disabled, so the regulations “preclude[] the ALJ from 

considering the effect of any failure to follow treatment for obesity.” Orn, 495 F.3d at 637. Also, 

there is no evidence in the record that any doctor prescribed a weight-loss regimen, or “clear 

evidence that the treatment would be successful.” Id. (quoting SSR 02-1p, 2002 WL 34686281 at 

*9). Therefore, Jolliffe’s failure to lose weight is not a legitimate reason to discredit his 

testimony. 

This error, however, does not necessarily require the Court to disturb the ALJ’s 

conclusion that Jolliffe’s claims are not entirely credible. If there is substantial evidence 

supporting the ALJ’s other reasons for discounting a claimant’s credibility, an error as to one 

reason “does not negate the validity of the ALJ’s ultimate [credibility] conclusion[.]” Minter v. 

Comm’r of Soc. Sec., No. 3:11-CV-00113-KI, 2012 WL 1866608, at *3 (D. Or. May 22, 2012) 

(quoting Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)).

The ALJ gave several other reasons for his adverse credibility finding, including that the 

objective medical evidence showed that the degeneration in Jolliffe’s knees and lumbar spine 

were mild, his ankle pain was mild, that his sleep apnea improved with treatment, and that his 

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9 - OPINION & ORDER

reported activities were consistent with the ability to perform sedentary work. Notably, Jolliffe 

does not challenge the ALJ’s decision on any of these grounds. The Court’s own analysis of the 

ALJ’s reasoning finds that each is supported by substantial evidence in the record. 

Numerous doctors examined Jolliffe’s back, knees, and ankles over the years, and all 

reported mild degenerative changes, normal range of motion, and largely unremarkable x-ray 

images. See Tr. 525, 531, 561, 609, 611, 844, 877, 897, 906. Jolliffe regularly reported his pain 

at a three or four out of ten. Tr. 490, 514, 828. The conflicts between these reports and Jolliffe’s 

claims of disabling pain “constitute significant and substantial reasons to find [Jolliffe’s] 

testimony less than completely credible.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). 

The ALJ also found that Jolliffe’s sleep apnea was “significantly improved by positive 

airway pressure.” Tr. 22. The ALJ explained how the objective measures of Jolliffe’s sleep apnea 

improved dramatically after he was prescribed a continuous positive airway pressure (“CPAP”) 

machine. See Tr. 22, 457, 567. The ALJ noted that in 2009, Jolliffe had attendance problems at a 

vocational training program due to absences attributed to sleep apnea. Tr. 22. Around the same 

time, Jolliffe got a different machine to help alleviate his sleep apnea symptoms, Tr. 586, and 

subsequently, Jolliffe’s training attendance significantly improved. See Tr. 285–301. The ALJ 

also noted that Jolliffe had no documented appointments regarding his sleep apnea after 

September of 2011. Tr. 22. From this evidence, the ALJ concluded that Jolliffe’s problems with 

fatigue caused by sleep apnea were improved with treatment. Impairments that can be effectively 

controlled with treatment are not considered disabling for the purposes of determining whether a 

claimant is disabled, and thus it was legitimate for the ALJ to rely on evidence of effective 

treatment to discount Jolliffe’s credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 

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2008); Espenas v. Colvin, No. 3:14-CV-00355-HZ, 2014 WL 7405655, at *3 (D. Or. Dec. 30, 

2014) (citing 20 C.F.R. § 404.1529(c)(3)(iv) & (v)). 

Finally, the ALJ found that Jolliffe’s reported activities were consistent with the ability to 

perform sedentary work. Jolliffe reported caring for his mother, preparing meals, shopping, 

caring for his personal hygiene, performing chores, and occasionally fishing. The inconsistencies 

between Jolliffe’s claims of disabling pain and fatigue and these reported activities is a legitimate 

reason for discounting his credibility. Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014).

In sum, the ALJ gave numerous, legally sufficient reasons supported by substantial 

evidence in the record for discounting Jolliffe’s claims. Therefore, the ALJ’s error in relying in 

part on Jolliffe’s failure to lose weight as one of those reasons is a harmless one that does not 

warrant overturning the ALJ’s ultimate conclusion about Jolliffe’s credibility. Carmickle, 533 

F.3d at1162 (explaining that an error in one reason for discounting credibility is harmless where 

an ALJ’s “remaining reasoning and ultimate credibility determination were adequately supported 

by substantial evidence in the record.”).

2. Lay Witness Testimony

Next, Jolliffe asserts that the ALJ “erred in failing to fully credit the observations of 

[Jolliffe’s] mother, Shirley Owens.” Pl. Br. at 20. “Lay testimony as to a claimant’s symptoms or 

how an impairment affects the claimant’s ability to work is competent evidence that the ALJ 

must take into account.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (citations 

omitted). The ALJ cannot disregard competent lay witness testimony without comment, but the 

ALJ need only give “reasons that are germane to each witness” to discount lay testimony. Id.

(citations omitted). 

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Ms. Owens described Jolliffe’s symptoms, activities, and limitations in two lay witness 

statements, one she submitted in July of 2009 and another a year later. Tr. 264–71; 351–58. Ms. 

Owens wrote that Jolliffe had difficulty walking, standing, bending over, stooping, sitting, and 

reaching because of his back and knee pain. Tr. 351–52. He spent most days watching television, 

playing video games, and using a computer. Tr. 353. He sometimes went fishing and shopping, 

and he also performed household chores and cooked, though Ms. Owens said that Jolliffe’s back 

and knee pain limited these activities. Tr. 265–68; 353–55. Ms. Owens stated that Jolliffe 

suffered from depression, and she described some symptoms of anxiety, Tr. 264; 356–57. She

also claimed Jolliffe struggled to concentrate, complete tasks, and get along with others. Tr. 264. 

The ALJ “considered” these statements and gave them “some weight.” Tr. 23. The ALJ 

explained that the medical records and Jolliffe’s reported activities did not indicate any reaching 

or sitting limitations. Tr. 23. The ALJ also noted that Ms. Owens’s report conflicted with 

evidence in the record that Jolliffe successfully completed an occupational certification program, 

during which he was noted to possess good general office skills. Tr. 23.

“The ALJ can reject lay witness testimony to the extent that it conflicts with other 

testimony, the record of the claimant’s activity or the medical evidence.” Graybeal v. Astrue, No. 

3:10-CV-06387-PK, 2011 WL 6019434, at *9 (D. Or. Nov. 2, 2011) (citing Bayliss v. Barnhart,

427 F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.2001)). The 

ALJ pointed out several ways in which Ms. Owens’s claims conflicted with other evidence in the 

record. That is a legitimate and germane reason to discount her statements. Also, Ms. Owens’s 

report is largely duplicative of Jolliffe’s own testimony which, as explained above, the ALJ 

found was not entirely credible. “[W] hen a family member’s testimony mirrors the plaintiff’s 

own complaints, which the ALJ has already found not credible, the ALJ has vicariously provided 

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germane reasons for rejecting the family members’ testimony.” Nelson v. Astrue, No. CIV. 10-

18-MO, 2011 WL 39826, at *6 (D. Or. Jan. 5, 2011) (citing Valentine, 574 F.3d at 694). 

The ALJ’s conclusion that Ms. Owens’s testimony was entitled to “some weight” is

supported by several germane reasons, and the Court finds no error. 

3. Medical Evidence

Jolliffe argues that the ALJ “improperly rejected the opinion from examining doctor, Dr. 

Sharf, and [Jolliffe’s] other treating sources [] by presenting medical evidence in a one-sided 

fashion, without providing the medical evidence favorable” to his case. Pl. Br. at 24.

There are three sources of medical opinion evidence in Social Security cases: treating 

physicians, examining physicians, and non-examining physicians. Valentine, 574 F.3d at 692 

(citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). “As a general rule, more weight 

should be given to the opinion of a treating source than to the opinion of doctors who do not treat 

the claimant.” Lester, 81 F.3d at 830. “The opinion of an examining physician is, in turn, entitled 

to greater weight than the opinion of a nonexamining physician.” Id. The ALJ can reject the 

uncontroverted opinion of a treating or examining physician only for “clear and convincing 

reasons” supported with substantial evidence in the record. Orn, 495 F.3d at 632 (quoting 

Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Even if a treating or examining doctor’s 

opinion is contradicted by another doctor, the ALJ can reject it only by providing “specific and 

legitimate reasons” that are supported by substantial evidence. Id.

Dr. Sharf examined Jolliffe in March 2010 as part of Jolliffe’s claim for service-related 

depression through the Veterans’ Administration.2 Dr. Sharf took notes of Jolliffe’s medical and 

psychiatric history, made observations about Jolliffe’s mental status, and wrote a paragraph 

about his impression of Jolliffe’s mental health. Tr. 676–79. The ALJ analyzed Dr. Sharf’s 

 2 Jolliffe served in the military from approximately 1987 to 1992. Tr. 248. 

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report, along with numerous other reports from examining psychologists in the record, while 

evaluating whether Jolliffe’s depression was a severe impairment at step two. Tr. 17, 18. The 

ALJ summarized Dr. Sharf’s report as follows: 

In March 2010, [Jolliffe’s] mental disorder was examined in regards to his 

compensation and pension through the VA. He again attributed his depression to 

his physical symptoms and other situational stressors. He exhibited free and 

spontaneous speech, logical and goal-directed through process, and intact 

memory, attention, and concentration. He reported that he was able to cook, drive, 

manage his finances, and perform [] most of his daily activities. His only noted 

functional limitations were physical. Dr. Sharf, the examining psychologist, noted 

that [Jolliffe] had been able to complete an occupational certification program in 

2009 despite his physical and psychological symptoms. He diagnosed [Jolliffe] 

with dysthymia, and assigned him a GAF score of 68. 

Tr. 17. Later, the ALJ gave “some weight” to Dr. Sharf’s GAF score, noting it was “consistent 

with mild symptoms and mild difficulty in social occupation, or school functioning.” Tr. 18. 

After summarizing and analyzing the other mental health evidence in the record, the ALJ 

found that Jolliffe’s “GAF scores, psychological findings, and reported activities indicate that his 

depression causes minimal, if any impact on his occupation functioning.” Tr. 18. The ALJ 

concluded that Jolliffe’s “depression does not cause him any functional limitation and . . . it is 

therefore not a severe impairment.” Tr. 18. 

Jolliffe’s argument that the ALJ “improperly rejected” Dr. Sharf’s opinion is without 

merit. First, the ALJ did not reject Dr. Sharf’s report at all. The only weight the ALJ specifically 

attributed to any part of Dr. Sharf’s report was “some weight” to the GAF score of 68. A GAF 

score of 61–70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) or 

some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft 

within the household), but generally functioning pretty well, has some meaningful interpersonal 

relationships.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental 

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Disorders (“DSM–IV”) 34 (4th ed. 2000) (emphasis omitted). That definition from the DSM-IV 

is consistent with the ALJ’s conclusion that Jolliffe’s depression caused “minimal, if any, impact 

on his occupational functioning,” Tr. 18, and the Court finds no error. See Turner v. Comm’r of 

Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (finding no error in the ALJ’s RFC formulation 

where it incorporated a treating physician’s observations). 

Second, even if Dr. Sharf’s report is somewhat conflicting in its description of Jolliffe’s 

symptoms, the ALJ did not err by considering Dr. Sharf’s report in the context of the full record 

of Jolliffe’s depressive symptoms and concluding that Jolliffe’s depression was not severe. Dr. 

Sharf wrote that Jolliffe “spoke freely and spontaneously throughout the session,” was “correctly 

oriented to person, place, time and purpose,” that Jolliffe’s “thoughts were logical and goaldirected,” and that there “were no signs of major psychopathology.” Tr. 678. Jolliffe’s “affect 

was constricted, and mood was neutral,” his “[a]ttention, concentration, and memory were 

intact,” and he “was able to abstract adequately on proverbs.” Tr. 678. Jolliffe reported the 

ability to conduct his daily activities and manage his own money without difficulty. Tr. 678. Dr. 

Sharf noted Jolliffe’s psychosocial stressors were “medical, social relationships, occupational,”

and noted Jolliffe’s Axis V current GAF was 65. Dr. Sharf concluded his report by assessing 

Jolliffe’s depression:

Mr. Jolliffe had a preexisting depressive condition caused by his abusive 

childhood. He reported no depressive symptoms up until approximately one year 

ago. It is at least as likely as not that the veteran’s service-connected knee pain 

has been a mild aggravation to his depression. Mr. Jolliffe has several other 

medical conditions which are also most likely causing depressive symptoms in the 

veteran. He talked several times about sleep apnea and his back problems, which 

also exacerbate his depression. His GAF related to his service-connected 

depression is 68. 

Tr. 679. 

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The ALJ also examined several other medical reports in the record. Tr. 16–18. First, the 

ALJ analyzed a May 2007 report from examining psychologist Dr. Sack. The ALJ accurately 

summarized Dr. Sack’s report, and noted that Dr. Sack assessed Jolliffe’s GAF score at 75, 

“indicating that [Jolliffe’s] symptoms were found to be transient and expectable reactions to 

psychosocial stressors with no more than slight impairment in social, occupational, or school 

functioning.” Tr. 16, 563–66. Similarly, the ALJ examined and summarized a January 2010 

report from Dr. Rahe, who described largely benign psychological signs, and assigned Jolliffe a 

GAF score of 65. Tr. 16–17, 705–08. 

The ALJ then went on to describe other evidence in the record that showed Jolliffe’s 

depression improved with treatment and that his depression did not interfere with his social or 

occupational functions. Tr. 17–18. Finally, the ALJ examined reports from two state agency 

psychological consultants who also concluded that Jolliffe’s depression was mild and not the 

cause of any functional limitations. Tr. 18. All of these reports support the ALJ’s conclusion that 

Jolliffe’s depression was not a severe impairment at step two. Jolliffe offers no argument for why 

the ALJ’s analysis of these reports was in error. The Court’s own review of the record shows that 

the ALJ applied the correct legal standard and supported his conclusion with substantial evidence 

in the record; that is all the law requires. Valentine, 574 F.3d at 690.

To the extent that Dr. Sharf’s report conflicted to some extent with other evidence in the 

record, it is the up to the ALJ to evaluate the evidence and resolve conflicts and ambiguities in 

the medical record. Tommasetti, 533 F.3d at 1041–42. Jolliffe’s argument about the ALJ’s 

analysis of Dr. Sharf’s report is merely an alternative interpretation of the record which is not 

sufficient to overturn the ALJ’s well-supported conclusions. Burch v. Barnhart, 400 F.3d 676, 

679 (9th Cir. 2005). 

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Finally, Jolliffe vaguely references the ALJ’s rejection of “other treating sources,” but he 

does not develop the argument any further. Pl. Br. at 24. Accordingly, that argument is waived. 

See Carmickle, 533 F.3d at 1161 (declining to consider a matter that was not “specifically and 

distinctly argued in an . . . opening brief.”); Locastro v. Colvin, No. C14-5499TSZ, 2015 WL 

917616, at *2 (W.D. Wash. Mar. 3, 2015) (“The Court may deem arguments that are 

unsupported by explanation to be waived.”) (citations omitted); Demelo v. Colvin, No. 1:13-CV1247 BAM, 2015 WL 1320213, at *4 (E.D. Cal. Mar. 24, 2015) (“Given that Plaintiff has failed 

to properly develop the argument . . . . the Court considers [it] waived and will not consider this 

issue.”) (citing Independent Towers of Washington, 350 F.3d 925, 929 (9th Cir. 2003)).

4. Jolliffe’s RFC

Jolliffe makes a similarly undeveloped argument that the ALJ’s “RFC is contrary to law 

and unsupported by the evidence because it is not based upon all the evidence.” Pl. Br. at 25. To 

the extent that Jolliffe is arguing that the ALJ should have included Jolliffe’s alleged 

nonexertional limitations, such as his depression, fatigue, and headaches in his RFC formulation, 

that argument is unavailing. 

The ALJ analyzed Jolliffe’s claim that his headaches limited his ability to work at step 

two. Tr. 15–18. At step two, the claimant bears the burden to show the existence of a severe 

impairment or combination of impairments—medically determinable conditions that have more 

than a minimal effect on the claimant’s ability to perform work-related activities. 20 C.F.R. § 

404.1520(a)(4)(ii); Tackett, 180 F.3d at 1099. A physical or mental impairment must be 

established by medical evidence consisting of signs, symptoms, and laboratory findings, and 

cannot be established on the basis of a claimant’s symptoms alone. 20 C.F.R. § 404.1508.

According to the regulations, “an impairment is not severe if it does not significantly limit [the 

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claimant’s] physical ability to do basic work activities.” 20 C.F.R. § 404.1521(a). Basic work 

activities are “abilities and aptitudes necessary to do most jobs, including, for example, walking, 

standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.” 20 C.F.R. § 

404.1521(b). An impairment is “not severe” only if the evidence establishes a slight abnormality 

that has “no more than a minimal effect on an individual’s ability to work.” Yuckert v. Bowen,

841 F.2d 303, 306 (9th Cir.1988); Colter v. Colvin, No. 3:14-CV-00896-SI, 2015 WL 2250460, 

at *5 (D. Or. May 13, 2015).

The ALJ found Jolliffe’s headaches were not a severe impairment in part because 

Jolliffe’s “own description of the frequency of his headaches suggest[ed] that they only 

occasionally interfere with his daily functioning.” Tr. 15. “At the hearing,” the ALJ explained, 

Jolliffe stated that he had severe headaches approximately twice per month, each lasting about 

three hours. [Jolliffe] stated that he also had mild headaches throughout the month, which he 

asserted he was able to ignore.” Tr. 15. The ALJ then found that Jolliffe’s hearing testimony 

about his headaches conflicted with evidence in the record because Jolliffe repeatedly denied 

having headaches during medical appointments in July 2009, November 2009, February 2010, 

and February 2011. Tr. 15, 1159, 1220, 1239, 1263, 1280. The ALJ’s conclusion that Jolliffe 

“[did] not have a medically established pattern of severe headaches” is thus supported by 

substantial evidence in the record and the Court finds no error. 

As mentioned above, the ALJ also found at step two that Jolliffe’s depression was not 

severe. Without repeating the analysis set out above about Dr. Sharf and the other doctors who 

analyzed Jolliffe’s depression, the Court finds that the ALJ applied the correct legal standard and 

supported his conclusion about Jolliffe’s depression with substantial evidence in the record. And 

also as explained above, the ALJ analyzed Jolliffe’s complaints of fatigue caused by sleep apnea 

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and properly discounted those claims because the evidence in the record showed his sleep apnea 

improved with treatment. 

The ALJ was not required to incorporate into the RFC “medical conditions or 

impairments that the ALJ found neither credible nor supported by the record[.]” Bayliss v. 

Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Therefore, the ALJ did not err in formulating 

Jolliffe’s RFC without including his alleged fatigue, headaches, or depression. 

5. Medical-Vocational Guidelines

Finally, Jolliffe argues that the ALJ erred at step five by relying solely on the MedicalVocational Guidelines to conclude there were jobs in significant numbers in the national 

economy that Jolliffe could perform. Pl. Br. at 23. Jolliffe argues that his nonextertional 

limitations such as depression, fatigue, and headaches were sufficiently severe to require the ALJ 

to take testimony from a vocational expert. Pl. Br. at 24. 

“At step five, the Commissioner’s burden is to demonstrate that the claimant is capable of 

making an adjustment to other work that exists in significant numbers in the national economy 

after considering the claimant's RFC, age, education, and work experience. Larson v. Colvin, No. 

3:13-CV-01643-MC, 2015 WL 225819, at *8 (D. Or. Jan. 16, 2015) (internal quotation marks 

omitted) (citing 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)). “To assist in the step-five 

determination, the Social Security Administration established the Medical–Vocational

Guidelines (the grids), which ‘consist of a matrix of [the four factors] and set forth rules that 

identify whether jobs requiring a specific combination of these factors exist in significant 

numbers in the national economy.’ ” Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007)

(quoting Heckler v. Campbell, 461 U.S. 458, 461–62 (1983)). “When the grids match the 

claimant’s qualifications, the guidelines direct a conclusion as to whether work exists that the 

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claimant could perform.” Id. (quotation and citation omitted). If the grids do not match the 

claimant’s qualifications, “the ALJ can either (1) use the grids as a framework and make a 

determination of what work exists that the claimant can perform, or (2) rely on a vocational 

expert when the claimant has significant non-exertional limitations.” Id. (citations omitted). “An 

ALJ may use the grids without VE testimony if a claimant’s non-exertional limitations are not 

‘sufficiently severe so as to significantly limit the range of work permitted by the claimant’s 

exertional limitations.’ ” Larson v. Colvin, No. 3:13-CV-01643-MC, 2015 WL 225819, at *9 (D. 

Or. Jan. 16, 2015) (quoting Hoopai, 499 F.3d at 1075). 

The ALJ found that Jolliffe “had the residual functional capacity to perform sedentary 

work . . . except that he could crawl, crouch, kneel, stoop, climb [and] frequently balance.” Tr. 

19. As previously explained, the ALJ did not err formulating Jolliffe’s RFC without 

incorporating into it any limitations resulting from his claimed headaches, fatigue, or depression.

The ALJ determined that Jolliffe’s credible limitations fell within the grids, and found that he 

was not disabled because he could perform a full range of sedentary work. Tr. 25–26. SSR 96-9p 

provides that “[p]ostural limitations or restrictions related to such activities as climbing ladders, 

ropes, or scaffolds, balancing, kneeling, crouching, or crawling would not usually erode the 

occupational base for a full range of unskilled sedentary work significantly because those 

activities are not usually required in sedentary work.” 1996 WL 374185 at *7. Further, a 

“restriction to occasional stooping should, by itself, only minimally erode the unskilled 

occupational base of sedentary work.” Id. at *8. Since Jolliffe’s limitations do not have a 

significant effect on his ability to perform sedentary work, the Court finds that the ALJ did not 

err in relying on the grids alone at step five. Hoopai, 499 F.3d at 1075–76 (“a vocational expert 

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is required only when there are significant and ‘sufficiently severe’ non-exertional limitations not 

accounted for in the grid.”). 

CONCLUSION

For the reasons stated, the Commissioner’s decision is affirmed. 

IT IS SO ORDERED.

Dated this _________ day of _______January__________, 2016. 

____________________________________

MARCO A. HERNÁNDEZ

United States District Judge

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