UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

WESLEY J. RICHARDSON,

Plaintiff,

v. 

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant.

Case No. 6:15-cv-00428-KI

OPINION AND ORDER

Kathryn Tassinari

Robert A. Baron

Harder, Wells, Baron & Manning, P.C.

474 Willamette, Ste. 200

Eugene, OR 97401

Attorneys for Plaintiff

Billy J. Williams

United States Attorney

District of Oregon

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Janice E. Hebert

Assistant United States Attorney

1000 SW Third Ave., Ste. 600

Portland, OR 97204-2902

John C. Lamont

Special Assistant United States Attorney

Office of the General Counsel

Social Security Administration

701 Fifth Ave., Ste. 2900 M/S 221A

Seattle, WA 98104-7075

Attorneys for Defendant

KING, Judge:

Plaintiff Wesley J. Richardson brings this action pursuant to section 205(g) of the Social

Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the

Commissioner denying plaintiff’s application for disability insurance benefits (“DIB”) and

supplemental security income benefits (“SSI”). I affirm the decision of the Commissioner.

BACKGROUND

Richardson filed an application for DIB on May 16, 2011, alleging disability as of

January 1, 2009, and an application for SSI with a protective filing date of April 12, 2011. The

applications were denied initially and upon reconsideration. After a timely request for a hearing,

Richardson, represented by counsel, appeared and testified before an Administrative Law Judge

(“ALJ”) on August 9, 2013.

On October 8, 2013, the ALJ issued a decision finding Richardson not disabled within the

meaning of the Act and therefore not entitled to benefits. This decision became the final decision

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of the Commissioner when the Appeals Council declined to review the decision of the ALJ on

January 9, 2015. 

DISABILITY ANALYSIS

The Social Security Act (the “Act”) provides for payment of disability insurance benefits 

to people who have contributed to the Social Security program and who suffer from a physical or

mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security

income benefits may be available to individuals who are age 65 or over, blind, or disabled, but

who do not have insured status under the Act. 42 U.S.C. § 1382(a).

The 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

cause death or to last for a continuous period of at least twelve months. 42 U.S.C.

§§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his

physical or mental impairments are of such severity that he is not only unable to do his previous

work but cannot, considering his age, education, and work experience, engage in any other kind

of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and

1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for

determining if a person is eligible for either DIB or SSI due to disability. The evaluation is

carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v.

Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ

determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. 

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§§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity, disability benefits are

denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a

medically severe impairment or combination of impairments. A severe impairment is one

“which significantly limits [the claimant’s] physical or mental ability to do basic work

activities[.]” 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe

impairment or combination of impairments, disability benefits are denied. 

If the impairment is severe, the ALJ proceeds to the third step to determine whether the

impairment is equivalent to one of a number of listed impairments that the Commissioner

acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d)

and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is

conclusively presumed to be disabled. If the impairment is not one that is presumed to be

disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the

claimant from performing work which the claimant performed in the past. If the claimant is able

to perform work she performed in the past, a finding of “not disabled” is made and disability

benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

If the claimant is unable to perform work performed in the past, the ALJ proceeds to the

fifth and final step to determine if the claimant can perform other work in the national economy

in light of his age, education, and work experience. The burden shifts to the Commissioner to

show what gainful work activities are within the claimant’s capabilities. Parra, 481 F.3d at 746. 

The claimant is entitled to disability benefits only if he is not able to perform other work. 20

C.F.R. §§ 404.1520(g) and 416.920(g). 

STANDARD OF REVIEW

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The court must affirm a denial of benefits if the denial is supported by substantial

evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion” and is more than a “mere scintilla” of the evidence but less

than a preponderance. Id. (internal quotation omitted). The court must uphold the ALJ’s

findings if they “are supported by inferences reasonably drawn from the record[,]” even if the

evidence is susceptible to multiple rational interpretations. Id.

THE ALJ’S DECISION

The ALJ identified Richardson’s date last insured as September 30, 2012, and noted he

had not engaged in substantial gainful activity since January 1, 2009. He thought Richardson had

the following severe impairments: hypertension, obesity, venous insufficiency, mild to moderate

bilateral hearing loss, alcohol abuse, depression, obstructive sleep apnea, coronary artery disease,

degenerative disc disease of the lumbar spine, headaches, hammer toes, and sciatica. The ALJ

found none of the impairments, either singly or in combination, met or medically equaled the

requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. 

Despite these impairments, the ALJ concluded Richardson retains the following residual

functional capacity (“RFC”): he can perform a range of light work, except he can only perform

tasks that involve up to two hours of standing/walking, and up to six hours of sitting in an eighthour workday; he must be permitted to sit or stand at will while remaining on task; he can

occasionally climb stairs and ramps, but must avoid climbing ladders, ropes, or scaffolds; he can

occasionally balance, stoop, kneel, crouch, and crawl; he can tolerate occasional public contact,

but no direct contact and no telephone work due to partial hearing loss and possible symptoms of

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PTSD; he must avoid workplace hazards, such as unprotected heights or dangerous machinery;

he can understand, remember, and carry out no more than simple instructions that can be learned

within 30 days; he is limited to low stress jobs involving no more than occasional changes in

work setting and no production line or assembly line type work; he is limited to goal-directed

work.

Given this RFC, the VE testified Richardson can no longer perform his past relevant

work. However, he can perform other jobs in the national economy, including electrical

accessories assembler, inspector/handpackager, and electronics worker.

FACTS

Richardson, 44 years old on the date of his alleged onset of disability, has a GED, two

years of college credit, and three years of service in the U.S. Army. He was self-employed for

years as a locksmith, until he went bankrupt in 2008. 

Richardson received his medical care through the Veterans Health Administration. The

earliest medical records begin in February 2011, when he had a normal cervical spine x-ray and a

negative chest x-ray. A March 2011 lumbosacral x-ray revealed a curvature to the right in the

upper lumbar area, mild to moderate disc space at L2-3 and L3-4, and facet sclerosis and

narrowing bilaterally at L5-S1. 

Later that month, Richardson went to the emergency department with a headache. He had

been drinking regularly–reporting that he drank rum in an attempt to relieve his migraine–but he

was ambulatory with a steady gait. Tr. 354. He presented as alert, overweight, disheveled, and

in moderate distress. He had a depressed mood, was anxious, with poor eye contact, but he was

not suicidal. Tr. 349. A head CT was normal on the whole, although a small abnormality was

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noted that could have been related to a microvascular injury versus migraine headaches versus

hypertension. The following day, he reported waking up shaking uncontrollably with chills and

was concerned. He reported usually drinking for pain relief, but that he had stopped.

Richardson began alcohol rehabilitation in April 2011. At an appointment in late April,

he weighed 307 pounds and reported feeling no pain. Leslie Walker, M.D., urged Richardson to

stop using alcohol for pain relief or using it to bring his blood pressure down. Richardson

informed Dr. Walker that he was caring for his mother, who was in hospice with a rapidly

progressing brain tumor. His prescriptions included medications for heart failure, topical cream

for his toenails, a diuretic, nasal allergies, and vitamin supplements.

A month later, Richardson complained of low back and neck pain, as well as a headache,

and put his pain at a 7 of 10. He denied side effects from medications. He was given options of

NSAIDs, muscle relaxants, and low-dose opioids to treat his pain. He reported increased stress

in caring for his dying mother, but that his pain was controlled (at 5 out of 10) with Norco and

Etodolac. Tr. 321-22. By August 2011, Richardson reported his headaches had almost resolved,

and he put his pain at 5 out of 10, although he still felt he had a poor ability to perform his daily

activities. Nevertheless, he reported achieving his functional goals of walking, cooking,

attending church, and reading. Tr. 314. He had no difficulty walking or getting up and down

from a chair.

The next month, Richardson put his pain level at 7 out of 10, and reported being unable to

do much due to his pain. Richardson appeared in mild distress from pain. Tr. 309. He was

instructed to start light exercises and stretching to help with pain and weight loss. 

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In November, Richardson stopped taking all his pain medications because he thought

some might be making his pain worse; he complained of a stiff back, and put his pain at 10 out of

10. He weighed 325 pounds. After discussing weight loss options with the doctor, Richardson

reported being in a self-directed weight loss program which involved walking and caring for his

father. Tr. 306. Dr. Walker encouraged selectively eliminating medications, and directed

resumption of tramadol and an NSAID. Dr. Walker ordered a hip x-ray, which was normal, and

a lumbar x-ray, which revealed the condition of Richardson’s lumbar spine continued to be

stable. Dr. Walker diagnosed him with degenerative disc disease L2-L3, and osteoarthritis with

hypertrophic spurring anteriorly at L2-L3 and L3-L4.

In December, Richardson indicated he was having difficulty walking and he was given

forearm crutches, but he noted “slight” improvement in early January 2012. He put his pain at 5

out of 10. Later that month, Richardson reported difficulties with pain medication side effects

(racing heart beat and strange feelings), so he was taking only the Etodolac which he thought

helped a little. He rated his pain at 8 out 10. He used a cane. Richardson was given a trial of

Percocet. He was doing better in March, reporting an improvement in sleep and pain with

Percocet. He put his pain at 5 out of 10. He felt he had improved in his ability to walk, cook,

and attend church. He required no assistance to walk, and had no difficulty getting up and down

from a chair. He was encouraged to stretch. 

Richardson reported to the emergency room in July 2012 complaining of chest pressure;

test results were normal. In August, Richardson’s weight appeared to be stable at 316 pounds. 

He had tried hiking the day before, which caused his hips and low back to hurt. His pain was 8

out of 10. He requested completion of an Oregon Disabilities Hunting and Fishing Permit. 

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Several weeks later, he sought care in the emergency department reporting pain in his lower left

abdomen that left him doubled over. He stated he had been wrestling with his child the previous

night, and while he felt no discomfort at the time he wondered if he had a hernia.

In November 2012, Richardson weighed 304 pounds and he put his pain at a level 8. He

was encouraged to watch his caloric intake and get more exercise. He reported his exercise

program was “Self Directed; Walking, hunting[.]” Tr. 437. Dr. Walker renewed his prescription

for oxycodone, and evaluated his hearing loss and tinnitus. He was fitted with hearing aids. 

Richardson underwent a PTSD orientation class in April 2013, and was scheduled for a

mental health assessment. Richardson met with Michael McNamara, a psychiatric/mental health

nurse practitioner in July. Richardson reported “irritability, anxiety, difficulty tolerating crowds,

‘depression from pain’, poor sleep, social isolation, generalized anger at ‘stupid people’,

intrusive memories of a traumas seen as a firefighter and policeman.” Tr. 497. He said he was

unemployed, but liked to spend his time growing bonsai trees and riding his motorcycle. Tr. 498. 

McNamara found Richardson to be alert and attentive, cooperative and reasonable, with

appropriate grooming. His speech and thought content were normal, but his mood was anxious

and dysphoric. Richardson’s memory was intact, his judgment and insight were good, and his

fund of knowledge was above average. McNamara thought it “as likely as not” that Richardson

suffered from symptoms of PTSD. Tr. 501. Richardson asked for conservative treatment, mostly

to help him sleep. McNamara assigned a Global Assessment of Functioning score of 45.1

1The GAF is a scale from 1-100, in ten point increments, that is used by clinicians to

determine the individual’s overall functioning. A GAF of 41 to 50 means “Serious symptoms

(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious

impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a

(continued...)

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When Richardson returned to McNamara in August, Richardson placed his mood at 5 out

of 10 (with 10 being the best) and that he did not feel hopeless. Richardson was taking sertraline

for mood and anxiety, and appeared brighter, used a little humor, and reported an improved

mood with less anxiety. He felt happy with his initial response to medication, although he was

getting headaches that seemed to correspond with taking the medication, so McNamara

prescribed Paxil and gabapentin. 

Richardson requested an appointment in September, feeling that the Paxil was not

working, despite being told it could take time. When Richardson met with McNamara, he

appeared agitated initially, but he calmed down over the course of the appointment. 

At a September 2013 emergency department visit, Richardson complained of stabbing

back pain that was unaffected by his oxycodone. He was diagnosed with a lumbar back sprain

and prednisone.

When Richardson returned to McNamara in October, he appeared calmer, with good

activities of daily living. He reported some difficulty concentrating, but he got mostly A’s in

college. He was feeling less agitated and in better spirits. At his primary care appointment,

Arlene Bradley, M.D., urged back-specific exercises to help reduce pain. Richardson said he had

an eleven-year-old son whom he liked to play with and hike with, and Dr. Bradley encouraged

1

(...continued)

job).” A GAF of 51 to 60 means “Moderate symptoms (e.g., flat affect and circumstantial

speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school

functioning (e.g., few friends, conflicts with peers or co-workers).” The American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th

 ed. 2000) (“DSMIV”). The most recent edition of the DSM eliminated the GAF scale. Diagnostic and Statistical

Manual of Mental Disorders 16 (5th ed. 2012). 

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Richardson to exercise with his son at least twice a day. She refilled Richardson’s NSAID and

his oxycodone, but encouraged him to use only what he needed. 

DISCUSSION

Richardson challenges the ALJ’s credibility analysis and disputes the ALJ’s rejection of

McNamara’s opinion or, alternatively, argues his condition called for a psychological evaluation. 

I. Richardson’s Credibility

Richardson testified he could not do a simple job because he had a hard time focusing due

to his pain. He reported feeling like he needed to lie down and put his feet up, and that he could

not stand or sit for long periods of time. He testified he felt pain in his lower back, shoulder, and

neck. He thought he could stand ten or 12 minutes, and could sit from five to 20 minutes

depending on the chair. He felt numbness in his arms, hands and wrists, but had never sought

treatment for it. He lived with his wife and eleven-year-old son, both of whom received social

security disability. He testified he became disabled on January 1, 2009 due to pain, and also that

his living situation changed when he went through a divorce and filed for bankruptcy. He

explained that he had only recently sought treatment for depression and anxiety because he does

not like doctors. He said the depression made him feel he has no will to live. On a typical day,

he soaked in the hot tub, watched television, and paced; he made his own lunch, he went on short

drives in the mountains to get out of the house, and took care of about 100 bonsai trees. 

The ALJ opined that Richardson’s “inability to work without some pain and discomfort . .

. does not necessarily satisfy the test for disability under the provisions of the Act.” Tr. 23. He

felt that Richardson could manage his pain with medication to allow him to engage in light tasks

requiring limited standing or walking. 

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When deciding whether to accept the subjective symptom testimony of a claimant, the

ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective

medical evidence of one or more impairments which could reasonably be expected to produce

some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th

 Cir. 2007). The

claimant is not required to show that the impairment could reasonably be expected to cause the

severity of the symptom, but only to show that it could reasonably have caused some degree of

the symptom. In the second stage of the analysis, the ALJ must assess the credibility of the

claimant’s testimony regarding the severity of the symptoms. Id. The ALJ “must specifically

identify the testimony she or he finds not to be credible and must explain what evidence

undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). 

General findings are insufficient to support an adverse credibility determination and the ALJ

must rely on substantial evidence. Id. “[U]nless an ALJ makes a finding of malingering based

on affirmative evidence thereof, he or she may only find an applicant not credible by making

specific findings as to credibility and stating clear and convincing reasons for each.” Robbins v.

Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). Here, the ALJ concluded Richardson’s

testimony was not entirely credible for a number of reasons. 

First, Richardson’s activities included caring for his mother until she died in 2011. He

also cared for his disabled son, gardened 100 bonsai trees, drove places for enjoyment, and

attended church. In addition, he reported to one of his doctors that he had been hiking, and he

sought a hunting and fishing permit. Richardson disputes the ALJ’s reading of the record, noting

that Richardson’s mother passed away quickly, and that at one point he told his doctor he would

be able to care for his mother if only he could reduce his pain. In addition, when he told his

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doctor he had been hiking, it was to note the pain he felt afterward, and there is no evidence he

went hunting or fishing. Finally, he argues caring for bonsai trees is consistent with his physical

limitations. 

The ALJ’s conclusion is supported by substantial evidence in the record. In this case,

Richardson’s daily activities were inconsistent with his testimony purporting to be limited in his

ability to sit, stand, walk, and concentrate. Orn v. Astrue, 495 F.3d 625, 639 (9th

 Cir. 2007). 

Although on one occasion, he indicated his goal was to be free of pain in order to care for his

mother, on several other occasions he reported actually serving as her care giver. Tr. 326, 321. 

Similarly, while Richardson reported pain after hiking, it did not stop him from inquiring about a

hunting and fishing permit and he reported on several other occasions that his self-directed

exercise plan consisted of walking, hunting and hiking. Tr. 437, 537. He testified at the hearing

to driving in the mountains for enjoyment and told one provider he enjoyed riding his

motorcycle. Tr. 498. Richardson’s activities, which are inconsistent with his testimony, is a

clear and convincing reason, and the ALJ’s analysis is supported by substantial evidence in the

record.

The ALJ also commented on the dearth of medical evidence supporting Richardson’s

testimony about pain in his shoulders, fingers, and hands, and Richardson’s own testimony

conceding he had not sought treatment. A tendency to exaggerate symptoms is another valid

reason to support a negative credibility finding. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th

Cir. 2001). 

The ALJ pointed out Richardson is described as “pleasant” and in no acute distress in his

medical records, and Richardson did not report medication side effects. Although the ALJ

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cannot reject subjective pain testimony solely because it was not fully corroborated by objective

medical evidence, medical evidence is still a relevant factor in determining the severity of the

pain and its disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 

Richardson insists he reported side effects that the ALJ did not address. However, as often as

Richardson reported side effects, his medications were adjusted. Further, he regularly denied

medication side effects, as the Commissioner notes, citing Tr. 279, 300, 325, 327, 420, 431, 455,

548, and 559.

Finally, Richardson conceded he did not seek mental health treatment until after he filed

for disability, explaining that he does not like doctors. While the ALJ must proceed cautiously in

questioning a claimant’s failure to seek psychiatric treatment for a mental condition, Nguyen v.

Chater, 100 F.3d 1462, 1465 (9th Cir. 1996), here Richardson repeatedly denied having any

symptoms associated with depression and, further, when he began treatment his symptoms

improved. Tr. 343 (not feeling hopeless in March 2011); Tr. 281 (psych appropriate, no suicidal

ideation in January 2012); Tr. 465 (same in July 2012); Tr. 442 (same in August 2012); Tr. 495

(no suicide risk in July 2013); Tr. 509 (same in August 2013); Tr. 555 (same in September

2013); Tr. 542 (same in October 2013); Tr. 532 (not hopeless in November 2013); Tr. 501-11

(response to medication); Tr. 547-48 (calmer after medication adjustment). Richardson points to

a time when a doctor described him as disheveled and anxious, but that was when he appeared in

the emergency room for treatment of a headache that he tried to cure by drinking rum. Tr. 353. 

In short, the ALJ could rationally conclude that Richardson’s dislike of doctors was not a

persuasive explanation for his failure to seek mental health care earlier, and that it suggested his

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mental symptoms were not as debilitating as he alleged, particularly given his regular access to

doctors and medical treatment for his physical problems.

The Commissioner does not defend a few of the reasons given by the ALJ, such as

Richardson’s spotty work history, the reason for his decision to cease working, and his

inconsistent statements about alcohol use, but she does not concede them. Even assuming any of

these reasons are not clear and convincing, a fact of which I am not convinced, some improper

reasons does not mean the ALJ’s entire credibility assessment is improper. Batson v. Comm’r of

Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th

 Cir. 2004). In sum, considering the ALJ’s entire

credibility assessment, the ALJ gave clear and convincing reasons, supported by substantial

evidence in the record, to find Richardson capable of performing at a higher functional level than

he reported.

II. McNamara’s Opinion

On December 1, 2013, after the ALJ issued her decision, McNamara completed and

submitted a mental residual functional report. He opined that ten percent of the day, Richardson

would have difficulty remembering locations and work-like procedures, carrying out detailed

instructions, performing activities within a schedule, asking simple questions, getting along with

co-workers, maintaining socially appropriate behavior, and being aware of normal hazards. For

15 percent of the day, McNamara thought Richardson would be unable to understand, remember

and carry out even very short and simple instructions, maintain attention for extended periods,

work in proximity to others, complete a normal workday, interact with the general public, accept

instructions and criticism from supervisors, respond to changes in the work setting, travel to

unfamiliar places, and set realistic goals. The only tasks McNamara thought Richardson could

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perform most of the time was making simple work-related decisions and sustaining an ordinary

routine without supervision.

Additional evidence presented to the Appeals Council but not seen by the ALJ may be

considered in determining if the ALJ’s denial of benefits is supported by substantial evidence. 

Harman v. Apfel, 211 F.3d 1172, 1180 (9th

 Cir. 2000). The question is “whether, in light of the

record as a whole, the ALJ’s decision was supported by substantial evidence and was free of

legal error.” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011) (citing

Ramirez v. Shalala, 8 F.3d 1449, 1451-54 (9th

 Cir. 1993)). 

Here, the ALJ pointed out McNamara is not considered an acceptable medical source. 

20 C.F.R. §§ 404.1513(d), 416.913(d) (other sources may be considered when evaluating severity

of impairments). As a result, his opinions are subject to rejection on the basis of reasons that are

“germane” to that source. Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th Cir.

2010). The ALJ pointed out that the GAF score of 45–which represents “serious

symptoms”–seemed to be based on Richardson’s reports of his symptoms and not supported by

the objective evidence. For example, McNamara’s own notes described Richardson as

“brighter,” with “a little humor and laugh[ing] appropriately.” Tr. 25. 

Considering substantial evidence supports the ALJ’s conclusion that Richardson’s mental

health symptoms are not as debilitating as he represented, that McNamara’s treatment notes do

not support the GAF score he assigned, that McNamara relied on Richardson’s reports and did

not explain why he found Richardson as functionally limited as he did in his post-hearing report,

I find McNamara’s functional statement does not undermine the substantial evidence supporting

the ALJ’s decision.

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Alternatively, Richardson contends a consultative examination was required to establish

the extent of Richardson’s mental health impairment. A Social Security ALJ has an

“independent duty to fully and fairly develop the record and to assure that the claimant’s interests

are considered.” Tonapetyan, 242 F.3d at 1150 (internal quotation omitted). The ALJ must

supplement the record if: (1) there is ambiguous evidence; (2) the ALJ finds that the record is

inadequate; or (3) the ALJ relies on an expert’s conclusion that the evidence is ambiguous. Webb

v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). None of these circumstances exist. Richardson

prevailed at step two, when the Commissioner relied on the opinion of the state agency

consultant and found Richardson had a medically determinable mental impairment, but partially

relied on McNamara’s treatment records and other evidence of record to find the impairment

severe. Tr. 124 (Megan D. Nicoloff, PsyD, opined the affective disorder was not severe); Tr. 25

(referencing state agency consultant’s conclusion that Richardson’s mental impairments are not

severe).2 McNamara’s treatment of Richardson was sufficient to provide the ALJ with enough

evidence to assess Richardson’s functional limitations caused by his mental impairment.

CONCLUSION

The findings of the Commissioner are based upon substantial evidence in the record and

the correct legal standards. For these reasons, the court affirms the decision of the

Commissioner.

2

 Thus, contrary to Richardson’s suggestion, the ALJ did not rely on a nurse practitioner

to establish the existence of a medically determinable impairment. In fact, the ALJ specifically

rejected McNamara’s diagnoses of PTSD and dysthymia as coming from a non-acceptable

medical source. Tr. 20.

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IT IS SO ORDERED.

DATED this 6th day of May, 2016. 

 /s/ Garr M. King 

Garr M. King

United States District Judge

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