IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RYAN DAVID SAUVAGEAU, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Acting Commissioner of Social Security, 

Defendant. 

Martin R. Cohen 

P.O. Box 1129 

4040 Douglas Way 

Lake Oswego, OR 97035 

Linda S. Ziskin 

P.O. Box 753833 

Las Vegas, NV 89136 

Attorneys for Plaintiff 

Billy J. Williams 

Acting United States Attorney 

District of Oregon 

Janice E. Hebert 

Assistant United States Attorney 

1000 S.W. Third Avenue 

Portland, Oregon 97204-2902 

1 - OPINION AND ORDER 

Civ. No. 3:14-cv-01932-AA 

OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 1 of 13
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Jordan D. Goddard 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth A venue, Suite 2900 MIS 901 

Seattle, Washington 98104-707 5 

Attorneys for Defendant 

AIKEN, District Judge: 

Plaintiff brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. § 

405(g), seeking judicial review of a final decision of the Commissioner of Social Security 

(Commissioner) denying plaintiffs application for Disability Insurance Benefits (DIB) and 

Supplemental Security Income (SSI). For the reasons set forth below, the Commissioner's 

decision is affirmed. 

BACKGROUND 

On November 5, 2010 and March 10, 2011, Plaintiff filed his applications for benefits, 

alleging disability since November 16, 2008, due to HIV, depression, nausea, anxiety, 

posttraumatic stress, back pain, and neuropathy. Tr. 19, 25, 223-43, 259. His applications were 

denied initially and on reconsideration. Tr. 19, 147-50, 152-56. On September 6, 2012, 

represented by an attorney, Plaintiff appeared and testified before an administrative law judge 

(ALJ). Tr. 42-80. At a second hearing on March 28, 2013, represented by an attorney, Plaintiff 

again appeared and testified. Tr. 81-107. A vocational expert also testified. Tr. 97-107. On April 

8, 2013, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. 

Tr. 19-41. On October 10, 2014, the Appeals Council denied Plaintiffs request for review, 

rendering the ALJ's decision the final decision of the Commissioner. Tr. 1-5. Plaintiff now 

seeks judicial review. 

2 - OPINION AND ORDER 

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Plaintiff was thirty-five years old at the time of the ALJ's decision. Tr. 48. Plaintiff 

earned a high school equivalency degree (G.E.D.) and attended college, but did not complete his 

degree. Tr. 48. In the past, Plaintiff worked as an order taker supervisor, call center lead, 

appointment clerk, bindery worker, and deliverer of bindery products. Tr. 98-100. 

STANDARD OF REVIEW 

This court must affirm the Commissioner's decision if it is based on the proper legal 

standards and the findings are supported by substantial evidence in the record. Hammock v. 

Bowen, 879 F .2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. 

NLRB, 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and 

detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th 

Cir. 1986). If the evidence is susceptible to more than one rational interpretation, the 

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

1982). 

COMMISSIONER'S DECISION 

The initial burden of proof rests upon the claimant to establish disability. Howard v. 

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, a claimant must demonstrate 

an "inability to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected ... to last for a continuous 

period of not less than 12 months .... " 42 U.S.C. § 423(d)(l)(A). 

The ALJ evaluated plaintiffs allegation of disability pursuant to the relevant five-step 

sequential process. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 

3 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 3 of 13
416.920. At step one, the ALJ found that plaintiff had not engaged in "substantial gainful 

activity" during the period of alleged disability. Tr. 21; 20 C.F.R. § 404.1520(b), 416.920(8). 

At step two, the ALJ found that plaintiff has "severe" impairments of anxiety disorder, 

substance additional disorders (alcohol and drugs), partial claimed remission (continued cannabis 

abuse), HIV, and left ulnar nerve problem. Tr. 21-22; C.F.R. §§ 404.1520(c), 416.920(c). 

At step three, the ALJ found that plaintiffs impairments did not meet or equal "one of a 

number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude 

gainful activity." Tr. 22; 20 C.F.R. §§ 404.1520(d), 416.920(d). 

At step four, the ALJ found that Plaintiff retained the residual functional capacity to 

perform light work. Tr. 25. Specifically, the ALJ found that Plaintiff could lift and/or carry ten 

pounds frequently and twenty pounds occasionally, and that he can stand and/or walk 

approximately six hours in an eight-hour workday. Tr. 25. Additionally, Plaintiff had no sitting 

limitations. Tr. 25. The ALJ also found that Plaintiff should avoid exposure to serious workplace 

hazards, dangerous machinery, and heights. Tr. 25. Further, Plaintiff should avoid concentrate 

exposure to environmental irritants, such as dust and noxious gases. Tr. 25. While Plaintiff can 

engage in brief and occasional contact with coworkers, the ALJ determined that he would work 

best in an atmosphere without public contact. Tr. 25. Also, even though plaintiff might encounter 

problems with persistence and more complex work tasks, he is capable of sustaining routine and 

repetitive work. Tr. 25. Based on these findings, the ALJ found that Plaintiff could not perform 

his past relevant work as an operations manager, order taker supervisor, call center lead, bindery 

worker, and worker delivering bindery products. Tr. 34-35; 20 C.F.R. §§ 404.1520(e), 

416.920(e). 

4 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 4 of 13
If the claimant is unable to perform past relevant work, the inquiry proceeds to step five, 

where the Commissioner bears the burden to establish that the claimant is capable of performing 

other work that exists in significant numbers in the national economy. Yuckert, 482 U.S. at 141-

42; 20 C.F.R. §§ 404.1520(t), 416.920(t). Relying on the testimony of the vocational expert, the 

ALJ found that Plaintiff was able to perform other work as a mail clerk, office helper, and 

document clerk. Tr. 35. Therefore, the ALJ found that Plaintiff was not disabled within the 

meaning of the Act. 

DISCUSSION 

Plaintiff asserts that the Commissioner's decision should be reversed and remanded for 

the payment of benefits. Plaintiff argues that the ALJ erred in failing to properly assess 

Plaintiffs credibility, rejecting the opinion of his treating psychologist, and failing to consider 

the lay testimony of his nurse practitioner and licensed clinical social worker. 

A. Credibility Determination 

Plaintiff argues that the ALJ failed to provide clear and convincing reasons to discount 

his credibility. Plaintiff maintains that his complaints and testimony should be accepted as true, 

rendering him disabled under the Act. 

Plaintiff testified that he suffers from anxiety, HIV, severe depression, nausea, 

posttraumatic stress, back pain, and neuropathy. Tr. 25, 51. Plaintiff also stated that his 

conditions affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, 

remember, complete tasks, concentrate, and get along with others. Tr. 25. Plaintiff maintains that 

he must rest approximately 30 to 60 minutes after walking one-quarter to one mile and does not 

finish tasks. Tr. 25. Plaintiff uses marijuana and takes Tylenol. Tr. 26. The ALJ found that 

5 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 5 of 13
Plaintiffs complaints were not fully credible, citing inconsistencies in his reported symptoms and 

the medical evidence of record. Tr. 26. 

When a plaintiff produces objective medical evidence of an impairment that reasonably 

could be expected to produce some degree of the symptoms complained of, "the ALJ may reject 

the claimant's testimony regarding the severity of symptoms only if he makes specific findings 

stating clear and convincing reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1284 (9th 

Cir. 1996); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (ALJ credibility 

findings must be "sufficiently specific to permit court to conclude that the ALJ did not arbitrarily 

discredit claimant's testimony"). In making these findings, the ALJ may consider objective 

medical evidence and the claimant's treatment history as well as any unexplained failure to seek 

treatment or follow a prescribed course of treatment. Smolen, 80 F.3d at 1284. The ALJ may 

also consider the claimant's daily activities, work record, and the observations of physicians and 

third parties with personal knowledge about the claimant's functional limitations. Id. Finally, 

the ALJ may employ ordinary techniques of credibility evaluation, such as the claimant's 

reputation for lying and prior inconsistent statements concerning the alleged symptoms. Id 

Plaintiff contends that the ALJ failed to meet this standard because the ALJ' s primary 

reason for rejecting Plaintiffs testimony was the lack of supporting medical evidence. While an 

ALJ cannot reject the severity of subjective complaints solely on the lack of objective evidence, 

the ALJ may nonetheless look to the medical record for inconsistencies. See Morgan v. Comm 'r 

of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999). Regardless, I find that the ALJ did 

not err in finding that the record does not support the level of disability alleged by Plaintiff. 

The ALJ found that Plaintiffs activities of daily living were inconsistent with his 

testimony regarding his limitations. Tr. 29-30. Daily activities that are inconsistent with alleged 

6 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 6 of 13
symptoms are a relevant credibility consideration. Rollins v. Massanari, 261 F.3d 853, 857 (9th 

Cir. 2001); Thomas, 278 F.3d at 959. Despite his allegations of disabling anxiety, Plaintiff went 

out drinking at bars and nightclubs during the alleged period of disability. Tr. 29, 416. Plaintiff 

also took a trip to Powell Butte in June 2010, contrary to his allegations. Tr. 29, 337. The ALJ 

noted that plaintiff completes chores, cooks meals, meets friends often for dinner, uses public 

transportation, paints, travels, and gardens. Tr. 30, 449, 503, 512. Consequently, the record 

supports the ALJ's finding that Plaintiffs daily activities detract from his claims. 

Additionally, Plaintiff is capable of preparing foods, and cared for his grandmother for 

two months, which included taking her to the bathroom, administering medication, and calming 

her when her dementia symptoms presented. Tr. 29-30. As such, the ALJ reasonably found that 

Plaintiffs daily activities were substantially inconsistent with Plaintiffs alleged limitations. 

The ALJ also noted that Plaintiff stopped working after being laid off from his employer 

and not from his medical condition. Tr. 29, 31. An ALJ may consider why a claimant left his last 

job when evaluating the claimant's credibility. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 

2001) (upholding credibility finding where claimant "stated at the administrative hearing and to 

at least one of his doctors that he left his job because he was laid off, rather than because he was 

injured"). At the hearing, when asked why he stopped working, Plaintiff testified, "Mostly 

because of my anxiety, but also because the business closed." Tr. 49. The ALJ similarly noted 

that Plaintiff alleged long-standing anxiety did not prevent him from successfully maintaining 

employment until his employer went out of business. Tr. 31. An ALJ may consider whether a 

longstanding impairment has prevented employment in the past when evaluating a claimant's 

limitations. See Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001); Gregory v. Bowen, 844 

F .2d 664, 667 (9th Cir. 1988). 

7 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 7 of 13
The ALJ found that Plaintiffs credibility was undermined by his inconsistent claims 

about substance abuse. Tr. 31. The ALJ noted that Plaintiff lied about using alcohol or drugs. Tr. 

456. Plaintiff also stated that he was consuming alcohol two to three times per week and 

admitted that he was still able to maintain his employment during this time. Tr. 74-75. An ALJ 

may consider inconsistent statements about drug or alcohol use when evaluating a claimant's 

credibility. Thomas, 278 F.3d at 959; Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). 

Moreover, the ALJ found that Plaintiffs routine, conservative treatment undermined his 

subjective reports of disability. Tr. 30. An ALJ may discount subjective complaints when the 

claimant's course of treatment is not consistent with the degree of dysfunction he alleged. Parra 

v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007); see also Molina v. Astrue, 674 F.3d 1104, 1113 (9th 

Cir. 2012). Additionally, the ALJ found that Plaintiff was not compliant with medical treatment 

and stopped taking medication that improved his anxiety. Tr. 26. 

Plaintiff nonetheless claims the ALJ improperly considered Plaintiffs past mmor 

criminal acts against his credibility. I find no error. As an adult, Plaintiff was convicted of 

stealing a purse in 1996. Tr. 30. The conviction involved dishonesty, and Plaintiff expressed 

concern during the alleged period of disability that this conviction would cause him difficulty 

when attempting to find another job. Tr. 30. Thereafter, Plaintiff was arrested for violating the 

conditions of his probation and consequently spent one month in jail. Tr. 30. Also, in March 

2009, Plaintiff was charged with multiple felonies, and again violated the conditions of his 

probation by being outside after hours. Tr. 30. Although a claimant's criminal history alone is an 

insufficient basis to reject claimant's testimony, it may be used to undermine the claimant's 

credibility. Smith v. Astrue, 851 F. Supp. 2d 305, 310 (D. Mass. 2012). Accordingly, the ALJ did 

8 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 8 of 13
not err in discrediting Plaintiffs credibility based on his criminal history, because such actions 

indicate significant issues with Plaintiffs sincerity and truthfulness. 

The ALJ's reasons for discrediting plaintiffs complaints are clear, convmcmg, and 

supported by the record. Thus, I find that the ALJ did not arbitrarily discredit plaintiffs 

testimony. 

B. Opinion of Examining Psychologist 

Plaintiff also maintains that the ALJ failed to give appropriate weight to the opinion of 

the examining psychologist, Dr. Wicher. The ALJ properly gave Dr. Wicher's opinion some 

weight because it was generally consistent with the record, but noted that some of Dr. Wicher' s 

opinion relied heavily on Plaintiffs subjective complaints, Tr. 32. 

In October 2012, Dr. Wicher performed a consultative, comprehensive psychodiagnostic 

evaluation. Tr. 500-07. In December 2012, Dr. Wicher answered interrogatories drafted by 

Plaintiffs representative and also wrote a letter in response to the agency's request for further 

clarification regarding her opinions. Tr. 512, 519-21. Dr. Wicher noted that Plaintiff had no 

limitations with simple instructions and had mild limitations with complex instructions and 

social interaction. Tr. 505-06. Dr. Wicher determined that Plaintiff would experience deficits in 

concentration, persistence, and pace. Tr. 506. As a result, Dr. Wicher stated that Plaintiffs 

persistence problems might require him to have more frequent or longer breaks, and Plaintiffs 

concentration deficits and slow pace could adversely affect his productivity. Tr. 520. 

The ALJ may reject the uncontradicted opinion of a treating or examining physician by 

providing clear and convincing reasons supported by substantial evidence in the record. See 

Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996); Andrews v. Shalala, 53 F.3d 1035, 1043 

(9th Cir. 1995). If contradicted, the ALJ may reject the opinion with specific and legitimate 

9 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 9 of 13
reasons. Andrews, 53 F.3d at 1043. Specific and legitimate reasons for rejecting an opinion 

include its reliance on a claimant's discredited subjective complaints or its inconsistency with 

medical records of a claimant's daily activities. Tommasetti v, Astrue, 533 F.3d 1035, 1040 

(2008); see, e.g., Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (upholding ALJ's 

rejection if treating physician's evaluation because it was based almost entirely on the claimant's 

selfreporting, lacked objective findings, and was based on doctor's assumption, without offering 

his own diagnosis, that claimant suffered from PTSD). A "physician's opinion of disability 

'premised to a large extent upon the claimant's own accounts of [her] symptoms and limitations' 

may be disregarded where those complaints have been 'properly discounted."' Morgan, 169 F.3d 

at 602 (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). 

The ALJ afforded Dr. Wicher's opinion some weight in the disability analysis to the 

extent it supported mild limitations. Tr. 32. However, the ALJ found that Plaintiff experienced 

greater social functioning deficits and lesser deficits in activities of daily living, concentration, 

persistence, and pace than Dr. Wicher had assessed. Tr. 32. In particular, the ALJ noted that Dr. 

Wicher' s assessment of moderate deficits of daily living was based largely on plaintiffs self -

reports. Tr. 32, 504, 520. The ALJ reasonably determined that Dr. Wicher relied on Plaintiffs 

self-report to assess a more severe restriction on persistence than she actually observed during 

testing. For example, Dr. Wicher's mental status testing of Plaintiff suggested "mild 

concentration difficulties," and "adequate" persistence throughout the evaluation, yet she found 

that Plaintiff "described some problems with persistence in day to day life." Tr. 504, 512. As the 

ALJ found Plaintiff to not be credible, it was not error for the ALJ to discount Dr. Wicher's 

reliance on Plaintiffs subjective complaints. 

10 - OPINION AND ORDER 

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Further, the ALJ apportioned the appropriate weight to Dr. Wicher's medical opinion in 

light of Plaintiffs demonstrated ability to concentrate in his daily activities. For instance, 

Plaintiff continued to perform routine tasks of cooking, baking, driving, playing the piano, 

crocheting, and painting. Tr. 32, 57, 288, 449, 503. Such activities, which were confirmed by 

Plaintiffs partner to be conducted on a regular basis, indicate that Plaintiffs concentration, 

persistence, or pace were not impaired to the point of disability. Tr. 288. 

In sum, I find that the ALJ provided legally sufficient reasons to limit the weight 

accorded to Dr. Wicher' s opinion. 

C. Lay Witness Statements 

Plaintiff argues that the ALJ failed to consider the statements of his nurse practitioner, 

Alicia Kamm, and licensed clinical social worker, Susan Rosenthall. However, the ALJ did not 

err in discounting these opinions. 

A lay witness statement as to a claimant's symptoms is competent evidence, which the 

Commissioner must take into account. Dodrill v. Shala/a, 12 F.3d 915, 919 (9th Cir. 1993). An 

ALJ may consider "evidence from other sources" including "nurse practitioners" and "social 

welfare agency personnel." 20 C.F.R. § 404.1513(d). While a nurse is considered a medical 

"other source," id. at § 404.1513( d)(l ), a social worker is deemed a non-medical "other source," 

id. at§ 404.1513(d)(4). After assessing the opinion evidence, the ALJ can reject the testimony of 

lay witnesses only by providing reasons germane to each witness. Molina, 674 F.3d at 1114. 

Plaintiffs nurse practitioner, Alicia Kamm, opined that Plaintiff could not tolerate the 

social interaction or stress of minimal job expectations, such as regular attendance, required to 

obtain or maintain work. Tr. 406-07. "A nurse practitioner is not considered to be a an 

'acceptable medical source' but rather falls within the category of 'other sources."' Hartman v. 

11 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 11 of 13
Colvin, 954 F. Supp. 2d 618, 643 (W.D. Ky. 2013). Thus, a nurse practitioner's assessment is 

"not entitled to the same deference" as the opinions of acceptable medical sources, Molina, 674 

F.3d at 1111, but may be used to "'show the severity of [the applicant's] impairment(s) and how 

it affects [his or her] ability to work."' Voigt v. Colvin, 781 F.3d 871, 878 (7th Cir. 2015); see 

Crysler v. Astrue, 563 F. Supp. 2d 418, 434-45 (N.D. N.Y. 2008). 

Here, the ALJ gave Ms. Kamm's opinion little weight because it was not supported by 

the record and relied heavily on Plaintiffs subjective complaints, which the ALJ found lacked 

credibility. Tr. 33. For example, the ALJ noted that Plaintiffs medical records reflected that 

when Plaintiff was taking BuSpar and abstaining from marijuana and alcohol, his symptoms 

were controlled. Tr. 26, 544. By relying on Plaintiffs own self-reported symptoms in 

conjunction with Plaintiffs lack of credibility, the ALJ did not err in finding Ms. Kamm's 

statements unsupported. Second, the ALJ afforded the opinion less weight because Ms. Kamm 

lacked medical expertise in comparison with the State agency doctors, who had superior medical 

expertise and whose opinions were accorded more weight. Tr. 33. As such, the ALJ provided 

reasons germane to discount Ms. Kamm's opinion. 

Plaintiffs social worker, Susan Rosenthall, stated that Plaintiff could not travel to a work 

setting or manage the interpersonal demands of that setting, whether from coworkers or the 

public. Tr. 403. Further, Ms. Rosenthall determined that Plaintiffs severe impairments due to 

psychiatric issues would prevent both part-time and full-time employment. Tr. 404-05. The ALJ 

afforded Ms. Rosenthall's opinion little weight because it was not supported by objective 

findings and Ms. Rosenthall lacked expertise. 

"Under the Social Security regulations, licensed clinical social workers are not 

considered 'acceptable medical sources' who can provide evidence to establish the existence of a 

12 - OPINION AND ORDER 

Case 3:14-cv-01932-AA Document 23 Filed 03/25/16 Page 12 of 13
medically determinable impairment, but as 'other medical sources' their opinions 'are important 

and should be evaluated on key issues such as impairment severity and functional effects, along 

with the other relevant evidence in the file."' Bonnell v. Astrue, 650 F.Supp.2d 948, 958 (D. Neb. 

2009). Here, the ALJ accorded the Ms. Rosenthall' s opinion little weight because she relied on 

Plaintiff's subjective complaints and lacked expertise to provide an adequate assessment of 

Plaintiff. Tr. 33. The ALJ noted that when evaluating Plaintiff, Ms. Rosenthall failed to account 

for Plaintiff not taking any medication to treat his mental health symptoms. Tr. 33. Therefore, the 

ALJ provided findings germane to Ms. Rosenthall's opinion. 

CONCLUSION 

The ALJ' s finding that plaintiff is not disabled within the meaning of the Act is supported 

by substantial evidence in the record. Accordingly, the decision of the Commissioner is 

AFFIRMED. 

IT IS SO ORDERED. 

Dated this~~ of March, 2016. 

Ann Aiken 

United States District Judge 

13 - OPINION AND ORDER 

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