IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JULIE RENEE WENTZEK, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner of Social Security, 

Defendant. 

PAP AK, Magistrate Judge: 

PORTLAND DIVISION 

Civil No. 3:15-cv-00434-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Julie Renee Wentzek filed this action March 17, 2015, seeking judicial review of 

the Commissioner of Social Security's final decision denying her application for disability 

insurance benefits (DIB) under Title II of the Social Security Act. This court has jurisdiction 

over plaintiff's action pursuant to 42 U.S.C. § 405(g) and 1383( c )(3). 

Page l - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 1 of 17
I have considered all of the parties' briefs and all of the evidence in the administrative 

record. For the reasons set forth below, the Commissioner's final decision should be affirmed. 

BACKGROUND 

Wentzek protectively filed an application for DIB on November 16, 2004, alleging 

disability beginning on October 10, 2003, due to narcolepsy, depression, anxiety, chronic fatigue 

syndrome, fibromyalgia, post-traumatic stress disorder (PTSD), mitral valve prolapse with 

regurgitation, and back pain. Tr. 184, 197-98. The Commissioner denied her application 

initially and upon reconsideration; thereafter, she requested a hearing before an Administrative 

Law Judge (ALJ). Tr. 148-51. After a February 20, 2008 hearing, the ALJ found Wentzek not 

disabled. Tr. 33-40, 639-79. The Appeals Council granted Wentzek's request for review, 

vacated the ALJ's 2008 decision, and remanded the matter for fmiher proceedings. Tr. 25-27. 

On May 4, 2011, a second administrative hearing was held, at which Wentzek testified, as 

did a vocational expert (VE). Tr. 680-716. On May 16, 2011, the ALJ found Wentzek not 

disabled. Tr. 15-23. The Appeals Council denied review, and on September 18, 2012, Wentzek 

sought review in this court. On September 3, 2013, United States District Judge Michael H. 

Simon remanded this matter for further proceedings. Tr. 731-53. Judge Simon ordered the 

Commissioner to reassess Wentzek's credibility and to develop the record as to PTSD and other 

mental impairments, and thereafter determine whether the evidence required a reassessment of 

the claimant's residual functional capacity (RFC). Tr. 752-53. 

On October 8, 2014, a third administrative hearing was held. Tr. 966-95. Wentzek 

testified as did a medical expert and VE. Wentzek was represented by counsel. On November 

Page 2 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 2 of 17
25, 2014, the ALJ found Wentzek not disabled through her date last insured, December 31, 2008. 

Tr. 717-30. Plaintiff filed this appeal on March 17, 2015. 

Wentzek contends the ALJ erred by failing to give proper weight to medical evidence, 

failing to develop the record as to PTSD, and failing to properly assess her residual functional 

capacity after completing step three, and thereby erred by finding Wentzek capable of performing 

work at step five of the process. 

I have considered all of the patties' briefs and all of the evidence in the administrative 

record. For the reasons set forth below, the Commissioner's decision should be affirmed and this 

matter should be dismissed. 

DISABILITY ANALYSIS FRAMEWORK 

To establish disability within the meaning of the Act, 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 Commissioner has established a five-step 

sequential process for determining whether a claimant has made the requisite demonstration. See 

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 404.1520(a)(4). At the first 

four steps of the process, the burden of proof is on the claimant; only at the fifth and final step 

does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 

(9th Cir. 1999). 

At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work 

activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 404.1520(a)(4)(i). IftheALJ 

finds that the claimant is engaged in substantial gainful activity, the claimant will be found not 

Page 3 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 3 of 17
disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b). 

Otherwise, the evaluation will proceed to the second step. 

At the second step, the ALJ considers the medical severity of the claimant's impairments. 

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is 

"severe" if it significantly limits the claimant's ability to perform basic work activities and is 

expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 

20 C.F.R. § 404.1520(c). The ability to perform basic work activities is defined as "the abilities 

and aptitudes necessary to do most jobs." 20 C.F.R. § 404.152l(b); see also Bowen, 482 U.S. at 

141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration 

requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 

C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). Nevertheless, it is well established that "the step-two 

inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 

F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impairment or 

combination of impairments can be found 'not severe' only if the evidence establishes a slight 

abnormality that has 'no more than a minimal effect on an individual[']s ability to work." Id., 

quoting S.S.R. 85-28, 1985 SSR LEXIS 19 (1985). 

If the claimant's impairments are severe, the evaluation will proceed to the third step, at 

which the ALJ determines whether the claimant's impairments meet or equal "one of a number of 

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

substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 

404.1520(d). If the claimant's impairments are equivalent to one of the impairments enumerated 

Page 4 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 4 of 17
in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See 

Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). 

If the claimant's impairments are not equivalent to one of the enumerated impairments, 

between the third and the fomth steps the ALJ is required to assess the claimant's residual 

functional capacity ("RFC"), based on all the relevant medical and other evidence in the 

claimant's case record. See 20 C.F.R. § 404.1520(e). The RFC is an estimate of the claimant's 

capacity to perform sustained, work-related physical and/or mental activities on a regular and 

continuing basis, 1 despite the limitations imposed by the claimant's impairments. See 20 C.F.R. 

§ 404.1545(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 

416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can 

still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 

482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(a)(4)(iv), 404.1520(±). In 

the event the claimant is no longer capable of performing his or her past relevant work, the 

evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first 

time, to the Commissioner. 

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's age, education, and work experience to determine whether a person with those 

characteristics and RFC could perform any jobs that exist in significant numbers in the national 

1 "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an 

equivalent work schedule." S.S.R. No. 96-Sp, 1996 SSR LEXIS 5 (July 2, 1996). 

Page 5 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 5 of 17
economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 

404.1560(c), 404.1566. If the Commissioner meets her burden to demonstrate the existence in 

significant numbers in the national economy of jobs capable of being performed by a person with 

the RFC assessed by the ALJ between the third and fomih steps of the five-step process, the 

claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 

404.1520(a)( 4)(v), 404,1520(g), 404.1560( c), 404.1566. A claimant will be found entitled to 

benefits ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 

142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g). 

LEGAL STANDARD 

A reviewing court must affirm an Administrative Law Judge's decision ifthe ALJ applied 

proper legal standards and his or her findings are supported by substantial evidence in the record. 

See 42 U.S.C. § 405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 

(9th Cir. 2004). '"Substantial evidence' means more than a mere scintilla, but less than a 

preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 

suppoti a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing 

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

The court must review the record as a whole, "weighing both the evidence that supports 

and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddick v. 

Chat er, 157 F Jd 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of 

the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253 

F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent 

findings of fact in determining whether the ALJ's findings are suppo1ted by substantial evidence 

Page 6 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 6 of 17
ofrecord. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chenery 

Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is 

immaterial that the evidence may be "susceptible [of] more than one rational interpretation." 

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 

1450, 1453 (9th Cir. 1984). 

SUMMARY OF ADMINISTRATIVE RECORD2 

Wentzek was 41 years old on her alleged onset date of October 10, 2003. Tr. 729.3 She 

completed a high school equivalency degree, obtained a dental ce1iification, and worked as a 

dental assistant. Tr. 553-54, 648, 650-51, 729. Wentzek alleges she cannot work due to 

narcolepsy, depression, anxiety, chronic fatigue syndrome, fibromyalgia, PTSD, mitral valve 

prolapse with regurgitation, and back pain. Tr. 184, 197-98. 

I. The Medical Record 

The parties are familiar with the extensive medical record. Therefore, it will be set out 

below when relevant. 

II. The Hearing Testimony 

On October 8, 2014, a hearing was conducted before an ALJ in connection with 

Wentzek's application. Tr. 966-94. Wentzek, her counsel, and a VE were present. Robeli J. 

McDevitt, M.D., a psychiatrist, reviewed the medical record and testified. Dr. McDevitt noted 

the medical records of Bowen S. Parsons, M.D., a psychiatrist who saw Wentzek nine times 

2 The following recitation constitutes a summary of the evidence contained within the 

Administrative Record, and does not reflect any independent finding of fact by the court. 

3 Citations to "Tr." refer to the page(s) indicated in the official transcript of the 

administrative record filed herein as Docket No. 14. 

Page 7 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 7 of 17
beginning in August 2007 and ending in Februaty 2008. Tr. 548-50, 546. Dr. McDevitt stated 

that diagnoses of chronic dysthymia and a history of PTSD were suppo1ted by the record. Tr. 

975. Dr. McDevitt said Wentzek's dysthymia might respond to more effective and vigorous 

psychotherapy. Id. Dr. McDevitt opined that Wentzek's chronic pain syndrome was basically 

patt of the depressive disorder. He noted the claimant had an untreated narcolepsy disorder 

which may be aggravated by the opioids she took. Tr. 976. Dr. McDevitt thought Wentzek 

capable of simple, routine work, avoiding hazards, heights, and machinery. Dr. McDevitt 

thought the claimant would have moderate limitations in persistence and pace and with 

supervision. Tr. 979-80. 

Wentzek testified that she home schooled her son for fifth and sixth grade. Tr. 982. Her 

son has reactive attachment disorder, ADD, ADHD, dyslexia, and personality disorder. They did 

not finish the sixth grade curriculum. She provided child care for her grandson two hours a day, 

three days a week, but had to stop. Tr. 984. Household chores required frequent rest breaks. 

Robert Gaffney, a VE, testified that a person limited to light work, with only occasional 

climbing of ramps and stairs, stooping, kneeling, crouching, and crawling, no climbing of 

ladders, ropes, or scaffolds, no balancing, no concentrated exposure to extremes of heat or 

hazards, and limited to unskilled, simple, routine, repetitive work with only occasional contact 

with supervisors and coworkers and no public contact would be unable to perform work as a 

dental assistant. Such a person would be able to perform work as a housekeeper or laundty 

worker. Tr. 989. 

Page 8 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 8 of 17
ALJ FINDINGS 

The ALJ applied the sequential disability determination process described above. At step 

one, the ALJ found Wentzek had not engaged in substantial gainful activity from her alleged 

onset date of October 10, 2003, through her date last insured of December 31, 2008. Tr. 722. 

At step two, the ALJ found Wentzek had the severe impairments of degenerative disc 

disease, anxiety, depression, narcolepsy, PTSD, attention deficit hyperactivity disorder, chronic 

pain syndrome and alcohol abuse in remission. Id. 

At step three, the ALJ concluded that Wentzek' s impairments do not meet or equal the 

criteria for any condition in the Listing ofimpairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1. Id. 

The ALJ found that Wentzek had the RFC to perform light work, except she must avoid 

workplace hazards such as unprotected heights and dangerous machinety. She can occasionally 

climb ramps and stairs, stoop, kneel, crouch, and crawl, no climbing of ladders, ropes or 

scaffolds, no balancing, and no concentrated exposure to extremes of heat. She is limited to 

simple routine work with occasional contact with supervisors with no over-the-shoulder type 

supervision and no production quotas, and is able to do self-paced work with superficial contact 

with coworkers, no teamwork or collaboration, and no public contact. Tr. 724. 

At step four, the ALJ concluded Wentzek was unable to perform any past relevant work. 

Tr. 729. However, at step five, the ALJ found jobs exist in significant numbers in the national 

economy that Wentzek can perform, including room cleaner and laundry worker. Tr. 729-30. As 

a result, the ALJ concluded Wentzek has not been disabled from October 10, 2003, through 

December 31, 2008, her date last insured. Id. 

Page 9 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 9 of 17
DISCUSSION 

I. Plaintiff is Precluded from Challenging Issues Already Resolved by the Court 

The law of the case doctrine "posits that when a court decides upon a rule of law, that 

decision should continue to govern the same issues in subsequent stages in the same case." U.S. 

v. Park Place Associates, Ltd., 563 F.3d 907, 925 (9th Cir. 2009)(citations and internal quotation 

marks omitted). Under the law of the case doctrine, "a co mt is generally precluded from 

reconsidering an issue that has already been decided by the same court, or a higher comt in the 

identical case." Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993), cert. denied, 508 U.S. 951 

(1993)(citation omitted). For a prior ruling to become the law of the case, "the issue in question 

must have been decided explicitly or by necessary implication in the previous disposition." 

Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)( quoting Milgard Tempering, 

Inc. V. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990)(alteration omitted). This 

District applies the law of the case doctrine in social security disability actions. Osborn v. 

Colvin, 104 F.Supp.3d 1104, 1112 (D. OR 2015). This court has already affirmed the ALJ's 

(and the Commissioner's) assessment of most of the medical evidence. Tr. 747, 12-23. 

A. Bowen S. Parsons, M.D. 

Plaintiff argues the ALJ erred by rejecting the opinion of her treating psychiatrist. 

Plaintiffs Opening Brief, 27-31. The ALJ noted Dr. Parsons' December 2007 opinion that 

Wentzek was unable to work. Tr. 25. The ALJ also noted Dr. Parsons provided no specific 

functional limitations and, thus, gave the opinion little weight. 

Dr. Parsons' opinion was contradicted by examining provider Donna Wicher, Ph.D., 

State agency medical and psychological consultants, and Dr. McDevitt. Tr. 20-22, 471-88, 544, 

Page 10 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 10 of 17
546, 552-60. This court affirmed the ALJ's rejection of the "brief and conclusory" opinion letter, 

and found the ALJ provided clear and convincing reasons, supported by substantial evidence, for 

rejecting it. Tr. 20, 546, 743-45. 

This court should find the law of the case bars Wentzek' s argument regarding Dr. 

Parson's opinion. 

B. Other Sources 

Plaintiff contends the ALJ erred by misconstruing medical testimony regarding PTSD and 

failing to develop the record on this issue, citing Theresa Ann Dudley, L.C.S.W., M.S.W. at Tr. 

321. However, the cited record appears to be a report from Linda J. Tombaugh, L.C.S.W. 

Regardless, this court has already determined the ALJ did not err in rejecting the opinions of both 

Ms. Dudley and Ms. Tombaugh. Tr. 746-47. This court found their reports "were based on onetime, initial diagnostic interviews" and "neither repoti describes any functional limitations; 

rather, both counselors' chart notes merely reflect Ms. Wentzek's statements concerning her 

relevant background information." Id 

The most recent ALJ found both counselors assessed no functional limitations and gave 

their opinions, and their GAF score assignments, little weight. Tr. 727. This comi has already 

concluded that even if the counselors reports were fully credited, it would not result in a more 

restrictive RFC. Tr. 747, 471-87, 556-61. This couti should find that Wentzek's challenge to the 

medical evidence previously considered by Judge Simon is barred by the law of the case. 

C. Somatoform Disorder 

Plaintiff argues the ALJ failed to develop the record regarding a somatoform disorder. 

Plaintiffs Opening Brief at 27. Judge Simon determined there was no medical diagnosis of a 

Page 11 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 11 of 17
somatoform disorder and no acceptable medical evidence of same. Tr. 749. Therefore, Wentzek 

should be barred by the law of the case from this argument. 

II. The Medical Expert 

Wentzek contends the ALJ failed to develop the evidence by failing to question Dr. 

McDevitt about PTSD and her other mental impairments. Plaintiffs Opening Brief at 26. Dr. 

McDevitt testified there was sufficient objective evidence to form opinions about the nature and 

severity of Wentzek' s mental impairments. Tr. 971-72. Dr. Mc Devitt testified that Plaintiff was 

on mild ("small" to "half the usual" dose) medications for her mental impairments. Tr. 973, 723. 

She was "overwhelmed by the psychosocial issues that she was struggling with." Tr. 973. Dr. 

McDevitt said the medical records documented a chronic dysthymic disorder, but did not suppo1t 

a diagnosis of panic disorder with agoraphobia. She was not hospitalized and did not require 

intensive outpatient treatment. 

Dr. McDevitt opined that Wentzek had mild restrictions in her activities of daily living, 

and moderate limitations in social functioning and with concentration, persistence, and pace. Tr. 

97 4-7 5. The ALJ noted that Dr. Mc Devitt testified that Plailntifff s hyperverbalism "might" 

result in moderate to marked restrictions in social functioning, and acknowledged he was 

speculating with regard to Plaintiffs ability to interact socially. Tr. 978-79, 723. The ALJ 

concluded Wentzek had moderate difficulties in rating the severity of mental impairments at 

steps two and three. Tr. 724. "From a formal psychiatric standpoint" Wentzek did not meet or 

equal in severity one of the Listed Impairments. Tr. 975-76. Dr. Wentzek thought plaintiff 

capable of simple, routine work. Tr. 976. Dr. McDevitt noted there was no clear diagnosis of 

PTSD, Wentzek denied flashbacks or nightmares, and complained most of depression and feeling 

Page 12 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 12 of 17
overwhelmed. 972. Wentzek's treating physician had diagnosed PTSD but Dr. McDevitt said 

"I'm really stuck." Tr. 975. 

The ALJ found Wentzek had PTSD at step two, as well as ADHD and chronic pain 

syndrome, assessed functional limitations pe1iaining to Wentzek's mental impairments in the 

RFC, and reassessed her credibility. Tr. 722, 720-30. The burden of proof is on the claimant to 

establish entitlement to disability benefits. Tidwell, 161 F .3d at 601. Wentzek argues the ALJ 

should have asked Dr. McDevitt more questions about PTSD. Pl.'s Br. at 25. However, 

Wentzek was represented by counsel who did have the oppo1iunity to question Dr. McDevitt. Tr. 

978-91. 

Plaintiff contends her PTSD symptoms included flashbacks, trigger response, 

hypervigilence, startle, and estrangement. Pis. Br. at 24. She does not identify how those 

symptoms are not adequately addressed by the simple routine work restrictions identified by the 

ALJ. 

On remand, the ALJ called a medical expert and found Wentzek had the severe 

impairment of PTSD as well as other mental impairments. Tr. 722. The ALJ considered 

Plaintiffs mental impairments in the RFC, the hypothetical to the VE, and at step five. This 

court should find the ALJ did not err by failing to develop the medical record. 

III. Residual Functional Capacity and Step Five Finding 

Wentzek argues the ALJ erred by failing to find she has moderate to marked limitations 

in social functioning and moderate limitations with concentration, persistence, and pace. 

Wentzek contends that moderate limitations with persistence and pace, and moderate limitations 

Page 13 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 13 of 17
in getting along with supervisors, is the equivalent of being off-task 20 percent of the time. Pl.'s 

Br. at 32, 978-82, 992-93. 

The ALJ gave "great weight" to the July 2008 consultative examination opinion from 

Donna Wicher, Ph.D. Tr. 727. Dr. Wicher found no gross deficits in memory or concentration. 

An MMPI-2 profile "indicated that she was clearly responding in a distorted fashion, endorsing a 

higher level of distress and impairment than could likely be supported by objective findings. 

Indeed, her score on the Fake Bad Scale was well above the cutoff which the test publisher 

indicates should raise very serious concerns about the reliability of the individual's self-repmt." 

Tr. 555. The MMPI-2 was invalid due to over-endorsement of symptoms. Dr. Wicher diagnosed 

a depressive disorder, an anxiety disorder, and alcohol abuse in remission. She opined the 

claimant had no limitation in understanding, remembering, and canying out instructions. She 

had slight limitations in the ability to interact appropriately with supervisors and coworkers and 

in the ability to respond appropriately to work pressures in a usual work setting. Wentzek had 

moderate deficits in concentration, persistence and pace. Tr. 557. 

Both Dr. Wicher and Dr. McDevitt found Wentzek had moderate deficits in 

concentration, persistence, and pace. Tr. 723, 728. The question becomes whether those 

limitations are adequately addressed by the RFC analysis which limits her to "simple routine 

work with occasional contact with supervisors with no over the shoulder type supervision and no 

production quotas, and was able to do self-paced work with superficial contact with coworkers, 

no teamwork or collaboration, and no public contact." Tr. 724. Compare Stubbs-Danielson v. 

Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) with Brink v. Comm 'r of the Soc. Sec. Admin., 343 

Fed.Appx. 211, 212 (9th Cir.2009)(mem.); see also Lubin v. Comm'r o/Soc. Sec.,507 

Page 14- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 14 of 17
Fed.Appx.709, 712 (9th Cir. 2013)(mem.)(finding the ALJ erred by accepting the claimant had 

limitations as to concentration, persistence, and pace and then failing to include those limitations 

in the RFC and the hypothetical question to the VE)4. In Stubbs-Danielson, the claimant's 

physician identified her as having "slow pace, both in thinking & actions," but found she was 

still able to "carry-out simple tasks as evidenced by her ability to do housework, shopping, work 

on hobbies, cooking and reading." 539 F.3d at 1173. The ALJ "translated" the physician's 

conclusions regarding the claimant's pace and mental limitations into a restriction to "simple 

tasks." Id. at 1174. The court found the ALJ's assessment as to the claimant's concentration, 

persistence, and pace adequately incorporated the claimant's restrictions. Id. 

In Brink the ALJ accepted the claimant had moderate restrictions as to concentration, 

persistence, and pace, but did not include those specific limitations in her hypothetical to the VE. 

343 Fed.Appx. At 212. Instead, the ALJ's hypothetical only referenced a restriction to "simple, 

repetitive work.'' Id. The court found this restriction did not adequately capture the claimant's 

restrictions because the "repetitive, assembly-line work" addressed by the VE still might require 

"extensive focus and speed." Id. The court distinguished Brink from Stubbs-Danielson because 

in that case the medical testimony had not established specific restrictions as to concentration, 

persistence, or pace. 

Similarly, this court has found that an ALJ errs when she accepts the claimant has 

moderate restrictions of concentration, persistence, and pace, but poses a hypothetical question to 

4 Although Brink and Lubin are unpublished decisions by the Ninth Circuit, and are 

therefore not precedent, they may be indicative of how the court would rule in a published 

opinion. Saucedo v. Colvin, No. 6: 12-cv-02289-AC, 2014 WL 4631225, slip op. at* 17 (D. Or. 

Sept. 15, 2014). 

Page 15 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 15 of 17
the VE limiting the claimant to "understand, remember, and carry out only simple instructions 

that can be learned by demonstration" with "little variance in assigned tasks from day to day." 

Lee v. Colvin, 80 F.Supp.3d 1137, 1151 (D. OR. 2015). The Lee court noted the hypothetical did 

not address limitations regarding persistence or pace. In addition, the jobs identified by the VE 

(auto detailer, scrap metal sorter, and agricultural produce packer) may still require "extensive 

focus or speed," similar to the repetitive, assembly-line work identified in Brink. 

Here the ALJ found Wentzek limited to simple, routine work, with occasional contact 

with supervisors and no over-the-shoulder type of supervision. Tr. 724. She is limited to selfpaced work, with no production quotas, only superficial contact with coworkers, no teamwork or 

collaboration, and no public contact. Id Accordingly the ALJ accounted for Wentzek' s 

moderate limitations in concentration, persistence, and pace, as well as moderate problems with 

supervisors. On this record, the cou1t should find the ALJ did not err in formulating Wentzek's 

RFC or at step five. 

RECOMMENDATION 

For the foregoing reasons, the Commissioner's final decision should be AFFIRMED and 

this case should be dismissed with prejudice. 

SCHEDULING ORDER 

This Findings and Recommendation will be referred to a district judge. Objections, if 

any, are due no later than fomteen (14) days after the date this recommendation is filed. If 

objections are filed, any response is due within fourteen (14) days after the date the objections are 

filed. See, FED.R.CIV.P. 72, 6. Patties are advised that the failure to file objections within the 

Page 16- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 16 of 17
specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 

F.2d 1153 (9th Cir. 1991). 

DA IBO thio 21 •tdoy of April,2016\ j / ~ '\ 

\ ..... ' l(/~ --~) Honorable Paul Papak 

United States Magistrate Judge 

Page 17 • FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00434-PK Document 22 Filed 04/21/16 Page 17 of 17