OPINION & ORDER - 1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MELODY J. DORAN, ) Civil No.: 6:14-cv-01669-JE 

 ) 

Plaintiff, ) OPINION & ORDER 

 v. ) 

 ) 

CAROLYN W. COLVIN, ) 

Acting Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

__________________________________________) 

Alan Stuart Graf 

Attorney at Law 

208 Pine St. 

Floyd, VA 24091 

 Attorney for Plaintiff 

Billy J. Williams, U.S. Attorney 

Janice E. Hébert, Asst. U.S. Attorney 

1000 S.W. 3rd Avenue, Suite 600 

Portland, OR 97204-2902 

Courtney Garcia 

Special Assistant U.S. Attorney 

Social Security Administration 

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

Seattle, WA 98104-7075 

 Attorneys for Defendant 

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OPINION & ORDER - 2

JELDERKS, Magistrate Judge: 

Melody J. Doran (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and 

1381a seeking judicial review of a final decision of the Commissioner of Social Security (“the 

Commissioner”) denying her applications Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) under the Social Security Act (“the Act”). For the reasons 

that follow, the Commissioner’s decision is affirmed. 

Procedural Background

 Plaintiff filed her applications for DIB and SSI on September 3, 2009, alleging disability 

beginning August 18, 2009. Tr. 45, 310, 314. Plaintiff’s claim was denied initially and on 

reconsideration, and a hearing was held before an administrative law judge (“ALJ”), who found 

Plaintiff not disabled in a decision dated February 10, 2012. Tr. 169. Plaintiff appealed to the 

Appeals Council, which granted review of the decision. On February 7, 2013, the Appeals 

Council remanded the case back to an ALJ, with instructions. Tr. 174-78. A second hearing was 

convened on July 16, 2013, before ALJ Riley Atkins. Tr. 94-126. The ALJ issued the second 

decision on July 25, 2013, again finding Plaintiff not disabled. Tr. 21-36. The decision became 

the final decision of the Commissioner on September 16, 2014, when the Appeals Council 

denied Plaintiff’s subsequent request for review. Tr. 1-3. Plaintiff now appeals to this Court for 

review of the Commissioner’s final decision. 

Background

Born in August 1965, Plaintiff was 44 years old on the alleged onset date. Tr. 310, 314. 

Plaintiff did not graduate from high school, but earned a GED. Tr. 356. She described taking 2-3 

terms at a community college. Tr. 47. Plaintiff has no past relevant work. Tr. 119. Plaintiff 

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alleges disability due to: diabetes; anxiety; depression; ADD [attention-deficit disorder]; PTSD 

[post-traumatic stress disorder]; back and hip injuries; and asthma. Tr. 131. 

Disability Analysis

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

disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. The five step sequential 

inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 

1999). 

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

gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not 

engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s 

case under Step Two. 20 C.F.R. §§ 404.1520(b), 416.920(b). 

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

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

has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant’s 

case under Step Three. 20 C.F.R. §§ 404.1520(c), 416.920(c). 

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

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

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

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

meets a listing is disabled under the Act. If the claimant’s impairment does not meet or equal an 

impairment listed in the listings, the Commissioner’s evaluation of the claimant’s case proceeds 

under Step Four. 20 C.F.R. §§ 404.1520(d), 416.920(d). 

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OPINION & ORDER - 4

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

he or she has done in the past. A claimant who can perform past relevant work is not disabled. If 

the claimant demonstrates he or she cannot do past relevant work, the Commissioner’s 

evaluation of claimant’s case proceeds under Step Five. 20 C.F.R. §§ 404.1520(f), 416.920(f). 

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

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

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

exist in the national economy that claimant is able to do. The Commissioner may satisfy this 

burden through the testimony of a VE, or by reference to the Medical-Vocational Guidelines, 20 

C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant 

number of jobs exist in the national economy that the claimant is able to do, the claimant is not 

disabled. If the Commissioner does not meet the burden, the claimant is disabled. 20 C.F.R. §§ 

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

 At Steps One through Four of the sequential inquiry, the burden of proof is on the 

claimant. Tackett, 180 F.3d at 1098. At Step Five, the burden shifts to the Commissioner to show 

the claimant can perform jobs that exist in significant numbers in the national economy. Id. 

The ALJ’s Decision

 At the first step of the disability analysis, the ALJ found Plaintiff met the insured status 

requirements through December 31, 1994, and had not engaged in substantial gainful activity 

since February 15, 1990. 

 At the second step, the ALJ found plaintiff had the following severe impairments: organic 

mental disorder; attention-deficit hyperactivity disorder (“ADHD”) by history; affective 

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OPINION & ORDER - 5

disorder; personality disorder; and PTSD by history. Tr. 18-19. The ALJ also noted the nonsevere impairments of diabetes mellitus, asthma, and obesity. Tr. 19. 

At the third step, the ALJ found Plaintiff did not have an impairment or combination of 

impairments that met or equaled a presumptively disabling impairment set out in the Listings, 20 

C.F.R. Part 404, Subpart P, App. 1. Id. 

Before proceeding to the fourth step, the ALJ assessed Plaintiff’s residual functional 

capacity (“RFC”). He found Plaintiff retained the capacity to: 

perform a full range of work at all exertional levels but with the 

following nonexertional limitations: the claimant has sufficient 

concentration and persistence to perform simple, routine tasks. 

Complex tasks might be problematic with sustained employment. 

She should avoid concentrated exposure to environmental irritants, 

such as molds, gases, and fumes. She should avoid exposure to 

workplace hazards, such as heights and machinery with moving 

parts. She should avoid public contact, but can engage in routine, 

brief, normal interactions with coworkers and supervisors. 

Tr. 20. 

 At the fourth step of the disability analysis, the ALJ found Plaintiff had no past relevant 

work. Tr. 29. At step five, the ALJ determined that, based on the testimony of the VE, there were 

a significant number of other jobs in the national economy which Plaintiff retained the capacity 

to perform. Tr. 29-30. 

Accordingly, the ALJ found Plaintiff was not disabled within the meaning of the Act 

from the application date of February 15, 1990, through the date of the decision, July 25, 2013. 

Tr. 30. 

Standard of Review

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

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

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

423(d)(1)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66 

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

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

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

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

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

standards and the findings are supported by substantial evidence in the record as a whole. 42 

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

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

evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews, 53 

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

Commissioner’s decision. Martinez v. Heckler, 807 F.2d 771, 771 (9th Cir. 1986). The 

Commissioner’s decision must be upheld, however, even if “the evidence is susceptible to more 

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

Discussion

 Plaintiff raises the following issues on appeal: whether the ALJ (1) failed to provide 

legally adequate reasons to discredit her symptom allegations; (2) failed to provide adequate 

reasons to discredit lay testimony; (3) improperly evaluated medical opinion evidence; and/or (4) 

failed to develop the record regarding alleged cognitive limitations. 

I. Plaintiff’s Testimony

The ALJ found Plaintiff’s allegations regarding the intensity, persistence, and limiting 

effects of her symptoms were not fully credible. Tr. 28. The Ninth Circuit relies on a two-step 

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process for evaluating the credibility of a claimant’s testimony about the severity and limiting 

effect of the stated symptoms.1

 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing 

Lingenfelter v. Astrue, 503 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.” 

Lingenfelter, 503 F.3d at 1036 (citation and quotation marks omitted). Second, absent 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.” Smolen v. Chater, 80 F.3d 

1273, 1281 (9th Cir. 1996). However, a negative credibility finding made solely because the 

claimant’s symptom testimony “is not substantiated affirmatively by objective medical evidence”

is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 

Plaintiff made several allegations as to the severity and duration of her symptom over the 

course of both ALJ hearings.2

 She endorses difficulties with memory, completing tasks, 

concentration, understanding, following directions, and getting along with others. Tr. 52, 410. 

She also describes some limitations due to back pain. Tr. 52, 56-57, 102, 107. 

 

1 The Court notes that, although the two-step process remains operative, pursuant to SSR 16-3p, 

the ALJ is no longer tasked with making an overarching credibility determination, and instead 

assesses whether the claimant’s subjective symptom statements are consistent with the record as 

a whole. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016) (superseding SSR 96-7p). The 

ALJ’s decision was issued before SSR 16-3p became effective and there is no binding precedent 

interpreting this new ruling or whether it applies retroactively. Compare Ashlock v. Colvin, 2016 

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

decision issued prior to the effective date), with Lockwood v. Colvin, 2016 WL 2622325, *3 n.1 

(N.D. Ill. May 9, 2016) (applying SSR 16-3p retroactively to a 2013 ALJ decision). Because the 

ALJ’s findings in regard to this issue pass muster irrespective of which standard governs, the 

Court need not resolve this issue. 

2 Although the prior February 2012 ALJ decision is not under review, the ALJ of the instant case 

incorporated by reference Plaintiff’s testimony from the first ALJ hearing. Accordingly, the 

Court too has reviewed, and incorporates, Plaintiff’s testimony at both hearings in rendering this 

Opinion. See Pl.’s Br. 3-5; tr. 42-126. 

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The ALJ found Plaintiff’s physical symptom allegations were not fully credible. Tr. 21. 

Plaintiff does not contest the ALJ’s findings regarding her physical symptom allegations, 

including allegations of back pain, right hip pain, and obesity. Tr. 21. Accordingly, the ALJ’s 

findings that Plaintiff has no 10-pound lifting restriction, and is not functionally limited by any 

back injury, hip pain, or her obesity, is upheld. Id.; see Pl.’s Br. 25. 

Regarding mental limitations, the ALJ found Plaintiff’s “debilitating” symptom 

allegations were not consistent with her ADLs, good response to medications, and improvement 

over time. Tr. 21. Specifically, the ALJ noted Plaintiff was able to care for her mother and son, 

both of whom were reported to have schizophrenia, which “was in essence a ‘fulltime job.’” Tr. 

25. Indeed, Plaintiff testified that she drove her mother to doctor appointments, drove her son to 

medical appointments and school. Tr. 61, 369-70. In written testimony, Plaintiff indicated she 

helps her son organize his pills, prepare meals, and wash his clothes. Tr. 370. She also indicated 

she cares for family pets. Id. Plaintiff further indicated that she grocery shops, enjoys scrapbooking, talking to friends online and by telephone, and belonged to a social club known as the 

“Sassy Hatters” or “Red Hatters.” Tr. 373. Plaintiff reported forming new friendships in 2012, 

and was attending church with her fiancé. Tr. 24-25, 27. Although Plaintiff also testified that she 

has “given up on” yardwork, and does not always feel able to cook, the ALJ’s finding that 

Plaintiff’s psychiatric symptoms from anxiety, depression, PTSD, and ADHD were not as 

limiting as alleged is rational and based on substantial evidence; therefore, the Court declines to 

disturb it. See tr. 371-72; Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

The ALJ further noted Plaintiff responded well to her medications, diminishing the 

veracity of her allegations of mental disability. Tr. 22. The Ninth Circuit has held that effective 

treatment is a clear and convincing reason to impugn allegations of disabling symptoms. 20 

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C.F.R. § 416.929(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). For 

instance, Plaintiff noted in July 2010 that Effexor helped her focus and concentration, and had 

facilitated some improvement with her anxiety by October 2010. Tr. 27, 563, 789. In 2012, it 

was noted that Strattera was helpful for Plaintiff’s focus and organization. Tr. 960, 962. The 

record also includes evidence that Clonazepam was effective in managing anxiety in 2010, and 

later after the dosage was increased in 2012. Tr. 27, 783, 784, 972. Further, the record supports 

the ALJ’s finding that therapy was helpful in managing Plaintiff’s symptoms by providing tools 

such as deep breathing techniques to remain calm, and in 2009, Plaintiff’s therapist noted greatly 

improved relational and communication skills through counseling. Tr. 27, 477. During the 2012 

hearing, Plaintiff testified that her various medications were helpful in managing her anxiety. Tr. 

55-56. 

Plaintiff argues that even though medication and therapy have been helpful at times, the 

record as a whole depicts a pattern of waxing and waning of mental health symptoms, arguing, 

“improvement would be followed by decline every time.” Pl.’s Br. 23. In the context of 

questioning whether Plaintiff’s symptom allegations are credible, however, the ALJ did not err in 

identifying numerous records wherein Plaintiff’s allegedly debilitating anxiety and other mental 

impairments were shown to improve with various forms of treatment. Supra. The ALJ observed 

that her symptoms were triggered by external life events such as becoming homeless when she 

was removed from her mother’s house by her brother, and by verbal and emotional abuse by her 

disabled son. Tr. 25, 552, 867, 1019. Accordingly, the ALJ found evidentiary support that 

Plaintiff’s impairments are not disabling, “minus the stress of fulltime caregiving 

responsibilities.” Tr. 26. 

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Although Plaintiff and her providers reported many instances of improvement with 

medicine and therapy, symptoms related to anxiety and depression recur throughout the record. 

Nonetheless, Plaintiff testified that despite her medications, she remains so unfocused she cannot 

“remember” how to make her bed, which appears completely at odds with her attested ability to 

care for herself, her son, and her mother. Tr. 102. Further, Plaintiff’s alleged inability to function, 

concentrate, or follow directions is belied by her own testimony that she is able to make new 

friends, manage the needs of her son and mother, and follow through with treatment. 

Accordingly, based on a thorough review of the record as a whole, the Court is satisfied that the 

ALJ’s interpretation – finding of evidence of improvement with treatment – is specific, rational, 

and supported by substantial evidence. Although the record is somewhat equivocal about 

whether treatment has engendered improvement such that Plaintiff could maintain competitive, 

full-time employment, the ALJ’s reasonable interpretation regarding the veracity of Plaintiff’s 

symptom allegations must be sustained. Burch, 400 F.3d at 679. Plaintiff has not identified 

reversible error. 

II. Lay Witness Testimony 

Plaintiff contends the ALJ did not provide legally sufficient reasons to disregard the lay 

testimony provided by her case manager, Susan McRae, who appeared at the administrative 

hearing. 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). 

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The ALJ summarized Ms. McRae’s testimony and provided several reasons for according 

it limited weight. Tr. 28. Although Ms. McRae felt Plaintiff likely has a learning disability, the 

ALJ noted Ms. McRae’s professional and educational background does not include a college 

diploma, and further, she did not administer any objective testing. Id. Additionally, although Ms. 

McRae described Plaintiff as isolated and without social contacts, the ALJ noted substantial 

evidence of record showing Plaintiff has made new friends, been attending church, and was 

recently engaged. Id. The ALJ further noted that Ms. McRae appeared to be focused on a 

discrete period of Plaintiff’s life when she was homeless, but that overall, Plaintiff’s health had 

improved, and she had procured housing. Id. For example, Ms. McRae initially testified that 

when Plaintiff’s anxiety “clouds her judgment,” she gets herself into dangerous situations, such 

as homelessness and living in her car. Tr. 114. However, upon examination by the ALJ, Ms. 

McRae acknowledged that it was not Plaintiff’s behavior or actions that resulted in her 

homelessness, but rather a family member throwing her out of the house. Tr. 28, 115. 

Plaintiff proffers an alternative interpretation, describing Ms. McRae as knowledgeable 

about Plaintiff’s limitations due to her mental impairments, including difficulty understanding 

and following directions, and reliance upon others for support. Pl.’s Br. 28-29. However, despite 

Plaintiff’s arguments, the Court is constrained to review the ALJ’s decision regarding lay witness 

testimony for reasons germane to the witness, not to reweigh the evidence. Here, the ALJ 

provided more than one valid, germane reason to accord diminished weight to the lay witness’ 

testimony. As such, the ALJ did not err. 

III. Medical Opinion Evidence 

 Plaintiff argues the ALJ failed to properly credit medical opinion evidence of several 

physicians of record. The ALJ is responsible for resolving conflicts in the medical record, 

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OPINION & ORDER - 12

including conflicting physicians’ opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 

1155, 1164 (9th Cir. 2008). 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 nontreating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating physician’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, 

however, a treating physician’s opinion is contradicted by the opinion of another physician, the 

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

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 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 (“ADLs”). Tommasetti, 533 F.3d at 

1040. 

A. Janice C. Veenhutzen, M.D. 

 Plaintiff contends the ALJ failed to properly evaluate the medical opinion of Dr. 

Veenhutzen, who co-signed some of the chart notes of Plaintiff’s therapist, Cary Zeeb, M.A., 

L.P.C. As a threshold matter, Plaintiff argues the Commissioner waived a response because Dr. 

Veenhutzen’s name was not explicitly referenced in the “Statement of Issues” portion of her 

brief. See Pl.’s Reply 1-2. While the Commissioner did mention Dr. Veenhutzen in a fairly 

lengthy footnote, Plaintiff maintains the Commissioner “has waived the opportunity to raise a 

legitimate response to these issues and arguments by addressing the issues only in a footnote and 

by omitting the issue in the summary of issue in her brief.” Pl.’s Reply 2. 

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 In support, Plaintiff directs the Court to Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 

1996). However, Hilao does not stand for the proposition that responding to an issue in a 

footnote waives the response. The Hilao court explained that “summary mention of an issue in a 

footnote, without reasoning in support of the appellant’s argument, is insufficient to raise the 

issue on appeal.” Id. at 778 n.4. In contrast to the situation in Hilao, the Commissioner’s footnote 

contains ample reasoning in support of the argument that Dr. Veenhutzen’s co-signatures do not 

transform chart notes written by non-acceptable medical sources into acceptable medical source 

documents. See Def.’s Br. 9-10 n.2. In addition, the appellant in Hilao, the estate of former 

Philippine president Ferdinand Marcos, attempted to raise an issue on appeal that was not raised 

in the original action. Hilao, 103 F.3d at 771. The posture of the instant case is such that Plaintiff 

is essentially the appellant, and therefore could waive any issue not broached in her opening 

brief. Hilao does not address any such restriction regarding the “appellee,” here, the 

Commissioner. Thus, not only is Hilao inapposite, but the Commissioner directly responded to 

the issue raised by Plaintiff. 

 Therefore, although the Commissioner’s discussion of Dr. Veenhuzen’s co-signatures is 

relegated to a footnote, it squarely addresses the issues raised by Plaintiff, and includes citations 

to the administrative record as well as relevant cases and statutes. See, e.g., Acosta-Huerta v. 

Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (“The federal rules require the brief to contain the 

contentions of the appellant with respect to the issues presented, and the reasons therefore, with 

citations to authorities, statutes, and parts of the record relied on . . . Issues raised in a brief 

which are not supported by argument are deemed abandoned . . . .”) (internal citations and 

quotation marks omitted). As such, the Commissioner has not waived the opportunity to respond. 

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 Turning to the substantive argument, Plaintiff contends that Dr. Veenhutzen’s co-signed 

chart notes and/or medical opinions constitute an “acceptable medical opinion evidence” under 

20 C.F.R. § 404.1513(a), as explained by Social Security Ruling (“SSR”) 06-03p, 2006 WL 

2329939 (Aug. 9, 2006). Plaintiff argues the mental health providers at Valley Medical Health 

“work[] together to provide clients with treatment suited to their individual needs.” Pl.’s Reply 2.

Plaintiff further asserts that the Valley Mental Health “team” is more than “separate medical 

providers on their own that occasionally read each other’s reports.” Pl.’s Reply 3. 

 However, aside from the clinic’s website marketing jargon, it is unclear whether the staff 

of Valley Medical Health actually works as a team in the manner contemplated by Social 

Security case law. As the Commissioner notes, a doctor’s co-signature on a medical document no 

longer necessarily transforms a non-acceptable medical source opinion, or, for that matter, the 

opinion of an “interdisciplinary team,” into an acceptable source opinion. See 65 Fed.Reg. 

34950, *34952 (June 1, 2000). Rather, at best, the applicable standard is whether the nonacceptable source is “working closely with, and under the supervision of” an acceptable medical 

source. Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citing 

Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996)). However, because the regulation relied 

upon by Gomez has been repealed, the precedential value of both Gomez and Taylor (which 

relied upon Gomez) has been called into doubt. See Molina v. Astrue, 674 F.3d 1104, 1111 n.3 

(9th Cir. 2012). 

 On this record, Dr. Veenhutzen co-signed three medical documents: an October 6, 2009 

“Mental Health Review” which was also signed by Ms. Zeeb (tr. 476-78); a May 11, 2010 

“Psychosocial Assessment – Annual Update” (tr. 552-60); and a May 27, 2011 “Adult 

Biopsychosocial Assessment/Annual Update” (tr. 810-813). Aside from Dr. Veenhutzen’s coCase 6:14-cv-01669-JE Document 29 Filed 09/15/16 Page 14 of 25
OPINION & ORDER - 15

signature, there is no evidence that the doctor was supervising Ms. Zeeb, or otherwise working 

closely with her in treating Plaintiff. Similarly, there is no evidence Dr. Veenhutzen ever 

examined or treated Plaintiff herself. Thus, the record does not support Plaintiff’s contention that 

Dr. Veenhutzen was a treating medical provider; therefore, Plaintiff’s further contention that “an 

ALJ cannot in its decision totally ignore a treating doctor and his or her notes, without even 

mentioning them,” is inapposite. Pl.’s Reply 3 (quoting Marsh v. Colvin, 792 F.3d 1170, 1172-

73 (9th Cir. 2015)). Accordingly, insofar as the records co-signed by Dr. Veenhutzen are 

considered medical opinion evidence, they do not command any special weight by virtue of the 

doctor’s co-signature. Further, to the extent Plaintiff argues the ALJ erred by failing to explicitly 

mention any of the medical opinions co-signed by Dr. Veenhutzen, the argument is factually 

inaccurate, as the ALJ noted that Ms. Zeeb’s October 2009 opinion statement was co-signed by a 

medical doctor. Tr. 27; see Pl.’s Reply 3. The ALJ did not err in assessing Dr. Veenhutzen’s 

contribution to the evidentiary record. 

B. LPC Zeeb 

 As indicated above, Ms. Zeeb is a Licensed Professional Counselor who has been 

Plaintiff’s therapist since 2009. As an LPC, she is considered a non-acceptable, “other medical 

source” under the Act. 20 C.F.R. §§ 404.1513(d), 416.913(d); SSR 06-03p, at *3. Accordingly, 

in order to disregard her written testimony, the ALJ is required to provide reasons germane to 

her. Molina, 674 F.3d at 1111 (citations omitted). 

 Ms. Zeeb provided several yearly mental health reviews of record, some of which were 

co-signed by Dr. Veenhutzen. Supra. The ALJ noted that Ms. Zeeb provided an opinion 

statement in October 2009, which he accorded little weight, finding alleged episodes of 

decompensation at work were based upon subjective reporting from Plaintiff, rather than Ms. 

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OPINION & ORDER - 16

Zeeb’s actual knowledge of Plaintiff’s performance at work. Additionally, the ALJ found Ms. 

Zeeb never administered any objective testing, although she nevertheless concluded Plaintiff has 

extreme difficulty sustaining focus to complete work tasks. Tr. 27, 478. Both rationales the ALJ 

offered are specific, and germane to Ms. Zeeb. Indeed, the rationales the ALJ invoked in 

rejecting Ms. Zeeb’s opinion would likely suffice under the more rigorous legal standards of 

specific-and-legitimate or clear-and-convincing. See Fair, 885 F.3d at 605 (ALJ may reject 

opinions based solely upon subjective reporting); Young v. Heckler, 803 F.3d 963, 968 (9th Cir. 

1986) (ALJ may reject opinion that is brief and conclusory and/or unsupported by clinical 

findings). Moreover, both are supported by substantial evidence in the record. As such, the ALJ 

did not err in according Ms. Zeeb’s October 2009 opinion little weight. 

Plaintiff assigns error to the ALJ’s failure to evaluate Ms. Zeeb’s annual assessments of 

May 14, 2009; May 11, 2010; May 27, 2011; and March 25, 2013. Pl.’s Br. 19-20. The 

Commissioner responds that the ALJ is not required to discuss every piece of evidence, but 

rather explain why “significant probative evidence has been rejected.” Def.’s Br. 13 (citing 

Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003); Vincent ex rel. Vincent 

v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)). Because the records at issue did not 

prescribe specific functional limitations, argues the Commissioner, the ALJ was not required to 

mention them. Id. 

 In the May 2009 assessment, Ms. Zeeb noted Plaintiff’s problems were multifaceted, and 

her symptoms included anxiety, fatigue, inability to sustain work, health issues, possible housing 

crisis . . , poor support system, and poor assertiveness and boundaries. Tr. 692, 697. Although 

Plaintiff assigns error to the ALJ’s failure to address the May 2009 assessment, she does not 

identify any functional limitations presented therein beyond those prescribed in the RFC, or other 

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probative content. See Pl.’s Br. 19; Pl.’s Reply 9. Accordingly, the Court does not have a basis to 

assign error. 

In the May 10, 2010 assessment, Ms. Zeeb noted that Plaintiff’s family dynamics had 

improved, and that she was making “great progress on lifelong issues.” Tr. 555, 559. Plaintiff 

argues the assessment identifies mental health symptoms and “limitations inconsistent with the 

ability to sustain work.” Pl.’s Br. 19. While the assessment notes ongoing anxiety and 

depression, health issues, and a poor support system coupled with poor assertiveness skills and 

boundaries, it does not define any specific functional limitation. See tr. 557-60. As such, the 

assessment does not represent evidence probative of her functional capacity, and therefore, the 

ALJ was not required to specifically discuss the assessment. Valentine v. Comm’r Soc. Sec. 

Admin., 574 F.3d 685, 691-92 (ALJ not required to incorporate medical opinion that does not 

define a claimant’s functional capacity). 

 The assessment produced by Ms. Zeeb on May 27, 2011 noted that Plaintiff continued to 

have severe anxiety due to dealing with her son, but her depression had improved, as had her 

interpersonal relationships and boundary setting. Tr. 810. The assessment further observed 

apparent cognitive deficits and inability to retain employment due to anxiety, including 

“flashbacks, panic attacks, and dissociative experiences following trauma triggers which greatly 

affects her ability to function.” Tr. 813. Plaintiff argues, and the Court agrees, that frequent 

flashbacks and/or panic attacks and dissociative experiences are indeed functional limitations. 

However, even assuming Plaintiff is limited by those symptoms, she has not explained why the 

RFC is deficient, as it includes provisions limiting Plaintiff to simple and routine tasks, and 

avoidance of public contact aside from “brief, normal interactions with coworkers and 

supervisors.” Tr. 20; see Valentine, 574 F.3d at 691-92. Moreover, as noted, the record does not 

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OPINION & ORDER - 18

contain any objective evidence of Plaintiff’s alleged dissociative experiences or limitations due 

to panic attacks and/or flashbacks. Thus, the rationales the ALJ validly invoked in according Ms. 

Zeeb’s October 2009 assessment are equally applicable to the May 2011 assessment. As such, 

Plaintiff cannot show that discussion of the May 2011 assessment would likely change the 

outcome of this case. Any error in failing to discuss the May 2011 assessment is harmless. 

Ms. Zeeb’s March 2013 assessment notes that Plaintiff “often has flashbacks, panic 

attacks, and dissociative experiences following conflict or verbal aggression with others.” Tr. 

1019. However, while these symptoms indicate a level of impairment due to anxiety, the 

assessment once again lacks specifics regarding Plaintiff’s functional capacity. Although 

Plaintiff argues the assessment confirms she has trouble with inattention, concentration, and 

reacting to trauma triggers, the evidence does not necessarily support specific limitations beyond 

those set forth in the RFC. Thus, the Court’s reasoning in declining to find error with regard to 

the May 2011 assessment is equally applicable to the March 2013 assessment. Supra; Valentine, 

574 F.3d at 691-92. 

 In sum, the ALJ did not harmfully err in evaluating the records attributed to treatment by 

Ms. Zeeb. 

C. PMHNP Eriksson 

 The record reflects that, in contrast to Dr. Veenhutzen, Psychiatric-mental health nurse 

practitioner (“PMHNP”) Amber Eriksson directly examined and treated Plaintiff on several 

occasions, and produced two opinion statements. Like Ms. Zeeb, Ms. Eriksson is considered a 

non-acceptable, “other” medical source under the Act, which requires that the ALJ provide 

reasons germane to her in order to reject her opinions. The ALJ addressed both of Ms. Eriksson’s 

opinions of record separately in his decision. Tr. 26-27. Plaintiff contends the ALJ failed to 

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OPINION & ORDER - 19

properly evaluate Ms. Eriksson’s opinions by mischaracterizing the extent of Plaintiff’s 

improvement with treatment, and erroneously finding her opinions inconsistent with her own 

medical records. Pl.’s Br. 21-24. 

The ALJ first summarized Ms. Eriksson’s April 2010 opinion, noting her belief Plaintiff 

would require excessive breaks in a normal workday due to fatigue or drowsiness from 

medications, and stress and anxiety from social interactions. Tr. 26-27, 512. Ms. Eriksson rated 

Plaintiff “poor” in numerous areas of social functioning, and concluded Plaintiff has marked 

limitation in overall social functioning, marked limitation in concentration, persistence, and pace, 

and would be expected to have four or more episodes, two or more weeks in duration, of 

decompensation each year. Tr. 514. 

 The ALJ accorded the April 2010 opinion little weight. He noted that Ms. Eriksson’s 

assertion that Plaintiff would require excessive breaks due to fatigue from medication was 

inconsistent with the record, as Plaintiff repeatedly reported having no such side effects. Tr. 27. 

Indeed, only one month after Ms. Eriksson’s opinion was rendered, Ms. Eriksson noted Plaintiff 

was sleeping well with no reported side effects. Tr. 565. Three months thereafter, Ms. Eriksson 

again noted Plaintiff was tolerating her medications well and made no changes to her 

prescriptions. Tr. 783. The ALJ’s finding is further supported by numerous other chart notes 

indicating Plaintiff had no side effects from medication. Tr. 786, 802, 805, 807, 826, 828, 833, 

970, 972, 998, 1006, 1012 As such, the ALJ’s reason for disregarding Ms. Eriksson’s opinion 

regarding a need for excessive breaks due to medication side effects is well-supported in the 

record, and therefore the Court may not reverse. Batson, 359 F.3d at 1197. 

 The ALJ further found Ms. Eriksson’s opinion regarding Plaintiff’s social functioning 

inconsistent with her chart notes. For example, although Ms. Eriksson reported marked 

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OPINION & ORDER - 20

limitations in social functioning, her May 2010 yearly update noted improvement in 

interpersonal relationships over time, with therapy and medication. Tr. 27, 559-60. In July 2010, 

Plaintiff reported “greatly improved” ability to focus and concentrate after Ms. Eriksson 

increased her Effexor dosage, supporting the ALJ’s finding that even assuming Plaintiff had 

“marked” limitations in concentration, persistence, and pace in April 2010, those symptoms had 

greatly improved by July 2010. Tr. 27, 563. Although Plaintiff replies that the ALJ merely 

“cherry-picked” evidence, the ALJ successfully illustrated the contradictions between the 

conclusions set forth in the April 2010 opinion and her contemporaneous chart notes. As the 

Commissioner maintains, the ALJ’s finding is further supported by numerous examples of Ms. 

Eriksson observing stable or upbeat mood, improved social functioning, and decreased anxiety. 

Tr. 565, 567, 783, 786, 789, 805, 823, 826, 833, 960, 962, 966, 972, 974, 977. These are specific 

reasons, germane to Ms. Eriksson, to accord her opinion diminished weight. See, e.g. Bayliss v. 

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradictions between doctor’s opinion and 

doctor’s own chart notes is a clear and convincing reason to reject the opinion).

 The ALJ separately evaluated Ms. Eriksson’s June 2013 medical source statement. Tr. 

27, 955. Ms. Eriksson indicated that Plaintiff’s conditions had persisted at the level of severity 

described in the previous April 2010 opinion. Tr. 955. She explained that Plaintiff’s symptoms 

“escalated during times of high stress,” and that her PTSD and panic symptoms “continue to 

interfere with every aspect of her life, making simple activities highly difficult,” noting issues 

using public transit, going to the store, and interacting with others. Id. Plaintiff contends that the 

ALJ’s finding of improvement with therapy and medication is not based on substantial evidence 

because Ms. Eriksson opined that “any type of stressor can escalate her anxiety beyond a normal 

level.” Pl.’s Reply 12; tr. 1017. 

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OPINION & ORDER - 21

 The ALJ accorded Ms. Eriksson’s 2013 opinion only “limited weight,” and noted that 

contrary to Ms. Eriksson’s opinion, 2013 chart notes show Plaintiff frequently reported that her 

medications and calming techniques learned in therapy were helpful in treating her anxiety, and 

accordingly, Ms. Eriksson consistently reported improvement. Tr. 27, 998, 1003, 1005, 1010, 

1017. As the ALJ pointed out, the record further reflects that although Plaintiff experienced 

increased anxiety related to relationship issues with her fiancé, the situation reportedly improved 

when Plaintiff used skills learned in therapy to be more assertive. Tr. 991-92, 998, 1010, 1013, 

1017. 

 Additionally, although Ms. Eriksson indicated Plaintiff’s anxiety makes it difficult for her 

to use public transit, she reported on June 11, 2013 to Scott T. Hadden, M.D. that she had been 

“taking the bus downtown and has enjoyed exploring.” Tr. 25, 27, 951. Dr. Hadden further 

indicated Plaintiff denied fatigue and depression, although she did endorse anxiety. Tr. 952. 

Thus, although the record reflects persisting anxiety symptoms, the ALJ sufficiently provided 

examples of inconsistencies between Ms. Eriksson’s chart notes and her written opinion, and the 

contemporaneous record which undercuts her opinion as to symptom severity. The rationales 

provided by the ALJ were at least germane to Ms. Eriksson; Plaintiff’s assertion that the 

operative legal standard is specific-and-legitimate or clear-and-convincing is unavailing. See 

Pl.’s Reply 13-14. Moreover, to the extent Plaintiff argues the ALJ included only evidence that 

“looks at mental illness only in the stages when [Plaintiff] [wa]s improving,” Ms. Eriksson 

repeatedly reported improvement throughout treatment, up to and including the chronologically 

final chart note on this record, signed in August 2013. See tr. 1017. As such, even if other 

rational interpretations of the record are possible, the ALJ’s rationale interpretation must be 

sustained. Batson, 359 F.3d at 1193. 

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OPINION & ORDER - 22

D. Dr. Stradinger 

Plaintiff assigns error to the ALJ’s decision to accord “partial weight” to the January 

2010 opinion of Kay Stradinger, Psy.D., who performed a one-time examination. The ALJ 

summarized the doctor’s findings, and stated that although newer records reflect improvement in 

Plaintiff’s mental health, the RFC includes “specific cognitive and social limitations generally 

consistent with Dr. Stradinger’s assessment.” Tr. 22. However, Plaintiff argues the ALJ failed to 

capture the severity of her limitations, highlighting Dr. Stradinger’s opinion that Plaintiff “is 

capable of completing simple and repetitive work type tasks . . , would have a difficult time 

working independently, effectively, appropriately, and on a sustained basis with supervisors, 

coworkers, and the public given her anxiety and personality traits . . . would have a difficult time 

handling the usual stresses in the workplace given her anxiety and her concentration and learning 

struggles . . . [and] would probably need one-on-one training and positive reinforcement to be 

confident and successful on a job.” Pl.’s Br. 26-27; Pl.’s Reply 11; tr. 487. 

By comparison, the RFC allowed “simple, routine tasks . . .[Plaintiff] should avoid public 

contact, but can engage in routine, brief, normal interactions with coworkers and supervisors.” 

Tr. 20. Thus, the ALJ reasonably accounted for Dr. Stradinger’s limitations regarding simple and 

repetitive work, and workplace interactions with coworkers, supervisors, and the public. See 

Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th Cir. 2010) (ALJ did not err to 

formulate RFC consistent with, though not identical to, medical opinion limitations). Regarding 

Dr. Stradinger’s limitations as to “probably” needing one-on-one training, “might” do better with 

“more” support and supervision, and “might” have a difficult time learning new jobs and 

routines, the ALJ is not required to incorporate mere recommendations into the RFC. Valentine, 

574 F.3d at 691-92. 

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OPINION & ORDER - 23

Plaintiff also argues the RFC failed to account for Dr. Stradinger’s limitations regarding 

persistence, concentration, and pace. Pl.’s Reply 11. However, when a doctor recognizes 

deficiencies in concentration, persistence, or pace and translates those deficiencies into a 

limitation to simple and repetitive work, an ALJ adequately accounts for the deficiencies by 

adopting the “simple and repetitive work” limitation. See Stubbs-Danielson v. Astrue, 539 F.3d 

1169, 1174 (9th Cir. 2008); Glosenger v. Comm’r of Soc. Sec. Admin., No. 3:12-cv-1774-ST, 

available at 2014 WL 1513995, at *6 (D.Or. Apr. 16, 2014). Thus, the ALJ did not err by 

omitting limitations in concentration, persistence, or pace from the RFC. Further, to the extent 

Plaintiff argues the ALJ erroneously discredited the opinion of state agency non-examining 

physician Bill Hennings, Ph.D. because Dr. Hennings “afforded full weight” to Dr. Stradinger’s 

opinions, Dr. Hennings also translated Plaintiff’s moderate deficiencies in concentration, 

persistence, or pace into an RFC that allowed simple and routine tasks. See tr. 26, 498, 500. 

Accordingly, Plaintiff’s argument regarding Dr. Henning’s opinion fails for the same reason as 

that regarding Dr. Stradinger’s. Stubbs-Danielson, 539 F.3d at 1174. 

 In sum, the ALJ evaluation of the medical opinion evidence is based on substantial 

evidence in the record, and free of harmful legal error. 

IV. Development of Administrative Record 

 Plaintiff contends the ALJ erred by failing to further develop the record based on her 

alleged cognitive impairment. Specifically, Plaintiff alleges Dr. Stradinger diagnosed “Rule Out 

Learning Disorder,” and Ms. Zeeb and Dr. Veenhutzen “diagnosed borderline intellectual 

functioning.” Pl.’s Br. 30. However, the record does not reflect Plaintiff was diagnosed with 

borderline intellectual functioning; rather, the relevant diagnosis was “R/O [rule-out] Borderline 

Intellectual Functioning.” Tr. 558. A “rule-out” diagnosis does not constitute an actual diagnosis 

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OPINION & ORDER - 24

in either case, and further, rule-out diagnoses related to impaired intellectual functioning do not 

necessarily trigger an ALJ’s duty to further develop the record. See, e.g., Byes v. Astrue, 687 

F.3d 913, 916 (8th Cir. 2012); Simpson v. Comm’r, Soc. Sec. Admin., Civ.No. 99-1816-JO, 

2001 WL 213762, at *7-8 (D.Or. Feb. 8, 2001); Garrett v. Colvin, No. 6:15-cv-00949-BR, 2016 

WL 3382134, at *8 (D.Or. June 14, 2016). Accordingly, neither rule-out diagnosis for borderline 

intellectual functioning or learning disorder constitutes an actual diagnosis. 

 Plaintiff also contends that the ALJ was compelled to arrange IQ testing for her based on 

evidence that she had “problems at school at an early age” and “later problems with her ability to 

comprehend.” In support, Plaintiff cites Garcia v. Comm’r of Soc. Sec., 768 F.3d 925 (9th Cir. 

2014) for the proposition that “an IQ test be ordered that would produce the Full Scale, Verbal, 

and Performance Level IQs in order to fully evaluate [Plaintiff’s] cognitive limitations.” Pl.’s Br. 

31. Garcia, however, is distinguishable because there, the record established a diagnosis of 

borderline intellectual functioning which the ALJ found severe at step two. Id. at 929. The ALJ 

in Garcia found the plaintiff did not meet a Listing based on her score on one of three potentially 

qualifying IQ tests; the remaining two tests were not administered because of time constraints. 

Id. at 928-29. The Ninth Circuit determined that given Garcia’s undisputed borderline 

intellectual functioning diagnosis and incomplete IQ tests, the ALJ was obliged to remand in 

order for the IQ testing to be completed. Id. at 929. 

 In the instant case, by contrast, Plaintiff has not presented evidence establishing a valid 

diagnosis of any type of cognitive impairment, nor is there evidence of ambiguous results in 

cognitive testing. Moreover, Plaintiff did not allege disability (or that she meets Listing 12.05C) 

due to borderline intellectual functioning or learning disorder in her Social Security applications, 

in either of her two administrative hearings, nor in her submissions to the Appeals Council. Tr. 

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OPINION & ORDER - 25

350, 445-56, 468-75. Thus, Garcia is inapposite. The ALJ’s obligation to develop the record was 

not triggered. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (claimants must raise 

issues at their administrative hearings in order to preserve them on appeal); see also Jamtass v. 

Colvin, 606 Fed.Appx. 363 (9th Cir. 2015). 

Conclusion

For the reasons discussed above, the Commissioner’s ultimate decision was based on 

substantial evidence and free of harmful legal error. Accordingly, the Commissioner’s decision is 

AFFIRMED and this case DISMISSED. 

 DATED this 15th day of September, 2016. 

 _/s/ John Jelderks_________________________ 

 John Jelderks 

 U.S. Magistrate Judge 

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