IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MARK A. MEYER, 

Plaintiff, 

v. 

CAROLYN w. COLVIN, 

Acting Commissioner 

Social Security, 

Defendant. 

Lisa R.J. Porter 

JP Law PC 

of 

5200 SW Meadows Rd., Suite 150 

Lake Oswego, Oregon 97035 

Attorney for plaintiff 

Billy J. Williams 

Acting United States Attorney 

Ronald K. Silver 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 972IT1 

Diana Andsager 

Case No. 3:14-cv-01698-AA 

OPINION AND ORDER 

Special Assistant Uriited States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900 M/S 221A 

Seattle, Washington 98104 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 1 of 20
AIKEN, Chief Judge: 

Plaintiff Mark Meyer brings this action pursuant to the Social 

Security Act (~Act") to obtain judicial review of a final decision 

of the Commissioner of Social Security (~Commissioner"). The 

Commissioner denied plaintiff's application for Title II disability 

insurance benefits (~DIB") under the Act. For the reasons set forth 

below, the Commissioner's decision is affirmed and this case is 

dismissed. 

PROCEDURAL BACKGROUND 

On May 26, 2010, plaintiff 

disability as of April 14, 2005. 

applied 

Tr. 18. 

for DIB, alleging 

On October 13, 2010, 

plaintiff's application was denied initially and on January 24, 

2011, was denied upon reconsideration. Id. On March 14, 2012, a 

hearing was held before an Administrative Law Judge ( ~ALJ") , 

wherein plaintiff was represented by counsel and testified. 

Subsequent to the hearing, plaintiff submitted additional medical 

evidence and a post-hearing brief by plaintiff's attorney, which 

were both added to the record. Interrogatory responses were then 

obtained from a vocational expert and were subsequently added to 

the record. Id. On March 21, 2013, the ALJ issued a decision 

finding plaintiff not disabled within the meaning of the Act. Tr. 

15. On September 2, 2014, the Appeals Council denied his request 

for review. Plaintiff then filed a complaint in this Court. 

STATEMENT OF FACTS 

Born on March 14, 1960, plaintiff was forty-nine years old on 

the date he was last insured for DIB and fifty~two years old at the 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 2 of 20
time of the hearing. Tr. 18, 27. Plaintiff has at least a high 

school education and is able to communicate in English. Tr. 27. He 

was p~eviously employed as a groundskeeper, a forklift operator, a 

warehouse worker, a shipping clerk, and a fabrication helper. Id. 

Plaintiff alleges disability due to chronic back pain, depression, 

anxiety, and post traumatic stress disorder ("PTSD"). Tr. 21, 263. 

The parties agree that plaintiff must establish disability as of 

December 31, 2009. Pl.'s Br. at 6. 

THE ALJ'S FINDINGS 

The 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. Hammock v. Bowen, 879 F.2d 498, 

501 (9th Cir. 1989) Substantial evidence is "more than a mere 

scintilla. It means such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion." Richardson v. 

Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted) . The court must weigh "both the evidence that supports and 

detracts from the [Commissioner's] conclusions." Martinez v. 

Heckler, 8 07 

interpretations 

F.2d 771, 772 (9th 

of the evidence are 

Cir. 198 6) . 

insignificant 

Variable 

if the 

Commissioner's interpretation is rational. Burch v. Barnhart, 400 

F.3d 676, 679 (9th Cir. 2005). 

The initial burden of proof rests upon the claimant to 

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th 

Cir. 1986). To meet this burden, the claimant must demonstrate an 

"inability to engage in any substantial gainful activity by reason 

Page 3 - OPINION AND ORDER 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 3 of 20
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)(1)(A). 

The Commissioner has established a five-step sequential 

process for determining whether a person is disabled. Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502. At step 

one, the ALJ determined that plaintiff had not engaged in 

"substantial gainful activity" during the period of alleged 

disability. Tr. 20; Yuckert, 482 U.S. at 140; 20 C.F.R. § 

404.1520 (b). 

At step two, the ALJ found that plaintiff has a "medically 

severe impairment or combination of impairments" through his date 

last insured ("DLI"), including degenerative disc disease of the 

cervical, lumbar, and thoracic spines. Tr. 20 The ALJ also found 

that plaintiff had no severe mental impairments between plaintiff's 

alleged onset date of disability and his DLI. Tr. 20; Yuckert, 482 

U.S. at 140-41; 20 C.F.R. § 404.1520(c). 

At step three, the ALJ found that plaintiff's impairments, 

either singly or in combination, did not meet or equal "one of a 

number of listed impairments that the [Commissioner] ack~owledges 

are so severe as to preclude substantial gainful activity." Tr. 23; 

Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(d). 

The ALJ evaluated that prior to his DLI, plaintiff had the 

residual functional capacity ("RFC") to perform a range of light 

work: 

[he] is able to lift 20 pounds occasionally and 10 pounds 

frequently. He could occasionally climb, balance, stoop, 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 4 of 20
kneel, crouch, and crawl. He has to avoid concentrated 

exposure to hazards such as machinery and heights. Tr. 

23. 

At step four, the ALJ found that plaintiff could not perform 

his "past relevant work." Tr. 27; 20 C.F.R. § 404.1520(f). 

At step five~ the ALJ found that plaintiff could perform other 

work that exists in significant numbers in the national and local 

economy, including electronics worker and small products assembler. 

Tr. 28; Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). The 

ALJ therefore concluded that plaintiff was not disabled under the 

Act. Tr. 28-29. 

DISCUSSION 

Plaintiff argues that the ALJ erred by: ( 1) finding him not 

fully credible; (2) rejecting the lay testimony of his girlfriend, 

Barbara Anderson; ( 3) improperly assessing the medical opinion 

evidence from doctors Hung Nguyen, M.D., Susan Smith, M.D., and Ani 

Kapadia, M.D.; and (4) failing to account for all of his 

limitations in the RFC, thereby rendering the step five finding 

invalid. 

I. Plaintiff's Credibility 

Plaintiff contends that the ALJ failed to articulate a clear 

and convincing reason, supported by substantial evidence, for 

rejecting his subjective symptom statements concerning the extent 

and severity of his impairments. When a claimant has medically 

documented impairments that could reasonably be expected to produce 

some degree of the symptoms complained of, and the record contains 

no affirmative evidence of malingering, "the ALJ can reject the 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 5 of 20
claimant's testimony about the severity of . . symptoms only by 

offering specific, clear and convincing reasons for doing so." 

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal 

citation omitted). A general assertion that the claimant is not 

credible is insufficient; the ALJ must "state which ... testimony 

is not credible and what evidence suggests the complaints are not 

credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 

The reasons proffered must be "sufficiently specific to permit the 

reviewing court to conclude that the ALJ did not arbitrarily 

discredit the claimant's testimony." Orteza v. Shalala, 50 F. 3d 

748, 750 (9th Cir. 1995) (internal citation omitted). If the "ALJ' s 

credibility finding is supported by substantial evidence in the 

record, [the court] may not engage in second-guessing." Thomas v. 

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation 

omitted). 

At the hearing, plaintiff testified that he was unable to work 

because, even after his most recent surgery in 2011, his pain 

progressed back to the level it was prior to the surgery. Tr. 45. 

Although Veteran Affairs ("VA") Dr. Cetas noted that after four 

weeks the plaintiff could return to work, plaintiff testified that 

he did not because of his increased pain. Tr. 45, 1714-1715. 

Plaintiff also testified that his everyday routine usually 

consisted of awaking late in the day, because of the medication he 

takes. Tr. 43. He also stated that once awake, it is a challenge to 

get out of bed, and he has to roll out of bed because of the pain. 

Id. He is usually home alone and uses a grabber to pick up things. 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 6 of 20
Id. He later clarified that he did not use things like a grabber 

until August 2011. Tr. 44. 

Plaintiff further testified that he was too disabled to work 

because in 2008, "I started reliving what happened to me in my 

childhood. Seven of us - there were nine of us kids. Seven of us 

were assaulted and molested by my mom's boyfriend. I tried to keep 

it hidden, but · it came out." Tr. 4 6. Plaintiff also endorsed 

problems with hallucinations: "[I]'ve got people talking to me in 

the house who know my name." Tr. 44. Plaintiff again clarified, in 

response to subsequent questions from his attorney, that his 

hallucinations did not start until the end of 2011. Tr. 4 4. 

Further, he reported trouble sitting for more than ten minutes at 

times. Tr. 45. Plaintiff stated that his girlfriend began doing 

all of the driving in 2010, because "a lot of times I can't keep a 

clear focus with my eyes." Tr. 45-46. Plaintiff stated he performs 

some household tasks with rest breaks; but even with accommodations 

he experienced severe pain. Tr. 49-50. 

After summarizing. plaintiff's hearing testimony and medical 

records, the ALJ found that plaintiff's medically determinable 

impairments could reasonably be expected to produce some degree of 

symptoms, but that his statements regarding the extent of these 

symptoms were not fully credible, due to his independent daily 

activities and social interaction that were inconsistent with his 

allegations of disabling functional limitations. Tr. 24. 

Notably, the ALJ determined that evidence of plaintiff's 

numerous activities suggested a greater level of functioning than 

Page 7 - OPINION AND ORDER 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 7 of 20
his alleged limitations. Tr. 21-22, 254, 285, 354, 462, 795, 863, 

942, 963, 1019. "While a claimant need not vegetate in a dark room 

in order to be eligible for benefits, the ALJ may discredit a 

claimant's testimony when the claimant reports participation in 

everyday activities indicating capabilities that are transferable 

to a work setting" Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th 

Cir. 2 012) ( citations and internal punctuation omitted) "Even where 

those activities suggest some difficulty functioning, they may be 

grounds for discrediting the claimant's testimony to the extent 

that they contradict claims of a totally debilitating impairment." 

Id. at 1113. In particular, the ALJ found "that plaintiff went to 

karaoke bars with his girlfriend, enjoyed working on computers, and 

worked on a neighbor's car in October 2008." Df.'s Br. at 6; Tr. 

22, 254, 354, 462, 1019. Additionally, the ALJ noted that in July 

2009, plaintiff reported that he served as an advocate for the 

Marine Corps League, aiding veterans and active Marines. Df.'s Br. 

at 6; Tr. 22, 942. 

Further, the ALJ found that plaintiff's credibility was 

impaired by his other activities of daily living. The record 

reveals that plaintiff enjoys working with scroll saws and craft 

projects that involved woodworking. Df.'s Br. at 6; Tr. 22, 285. 

Plaintiff also reported that he took care of his house and yard, 

his car, and helped maintain his household and care for his niece's 

two young children, before and after his DLI. Rollins v. Massanari, 

261 F. 3d 853, 857 (9th Cir. 2001); Tr. 22, 253, 353, 942. Moreover, 

plaintiff reported in 2010, that he did not leave his home due to 

Page 8 - OPINION AND ORDER 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 8 of 20
financial concerns, rather than functional limitations. Tr. 22, 

868. While variable interpretations of this evidence may exist, the 

ALJ's analysis was nonetheless reasonable, such that it must be 

upheld. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 

1198 (9th Cir. 2004) 

The ALJ also found that the medical evidence does not 

substantiate plaintiff's allegations of his disabling limitations. ~ 

Tr. 24. Substantial evidence in the record supports the ALJ' s 

conclusion. In particular, in August 2006, sixteen months after 

plaintiff's alleged disability onset date, objective examination 

findings revealed only "mild tenderness" in his back, negative 

straight leg tests, normal motor muscle strength, and intact 

neurological results. Tr. 24, 691-692. Plaintiff's treating VA 

physician Amar Bhuta, M.D., observed that plaintiff's gait was 

normal and that he demonstrated normal range of motion in all four 

extremities. Tr. 692-693. Additionally, Dr. Bhuta did not report 

that plaintiff needed or used a cane or other assistive device at 

this appointment. Tr. 691-693. In August 2008, plaintiff's treating 

VA physician Matthew Kaul, M.D., reported that plaintiff's 

bilateral lumbosacral screen was "normal" and that there was no 

evidence of radiculopathy on either side, despite plaintiff's 

complaints. Tr. 25, 1043. 

The ALJ also noted that in February and April 2009, plaintiff 

again presented with normal gait and strength throughout his 

extremities. Tr. 25, 991, 1003. In June 2009, plaintiff's treating 

VA physician reported that he had normal motor examination findings 

Page 9 - OPINION AND ORDER 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 9 of 20
and that plaintiff's complaints were not consistent with an MRI. In 

addition, after plaintiff's DLI, the ALJ noted that plaintiff's 

report of his symptoms were out of proportion with the examination 

findings. Tr. 25, 1610. 

Furthermore, an ALJ may consider a claimant's non-prescribed 

or unwarranted use of an assisti ve device, such as a cane, to 

determine plaintiff's subjective expression of his limitations 

lacks credibility. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 

2012). Plaintiff contends that he has been prescribed a walker by 

his physician. Pl.'s Br. at 9, 20. However, the record reflects 

that plaintiff consistently presented with a normal gait prior to 

his DLI. Thus, the ALJ's finding that plaintiff's alleged need for 

an assisti ve device, in the absence of a prescription further 

diminished his credibility, is supported by specific and legitimate 

findings. Tr. 25. Thus, the ALJ reasonably concluded that 

plaintiff's allegations were inconsistent with the longitudinal 

medical record rendering him not disabled. 

In sum, the ALJ provided clear and convincing reasons, 

supported by substantial evidence, for rejecting plaintiff's 

subjective symptom statements. The ALJ' s credibility finding is 

affirmed. 

II. Lay Witness Statements 

Plaintiff also asserts that the ALJ neglected to provide a 

germane reason to reject the statements of his girlfriend, Ms. 

Anderson. Lay statements regarding a claimant's symptoms or how an 

impairment affects the claimant's ability to work is competent 

Page 10 - OPINION AND ORDER 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 10 of 20
evidence that an ALJ must take into account. Molina, 674 F.3d at 

1114 (citation omitted). The ALJ must provide "reasons germane to 

each witness" in order to reject such testimony. Id. ~(citation and 

internal quotation omitted). Nevertheless, the ALJ need not 

"discuss every witness's testimony on an individualized, witnessby-witness basis if the ALJ gives germane- reasons for 

rejecting testimony by one witness, the ALJ need only point to 

those reasons when rejecting similar testimony by a different 

witness." Id. (citations omitted). 

In August 2010, Ms. Anderson completed a Third-Party Adult 

Function Report. Tr. 343-350. Ms. Anderson stated that plaintiff 

engaged in limited housework, yard work, and shopping, used a 

computer and went to karaoke on Friday nights. Tr. 345-347. She 

nonetheless reported that plaintiff "lives in so much pain ... " and 

"sometimes [follows instructions] all the way, sometimes not," 

"doesn't handle stress well" and "is h~ving really bad dreams that 

are causing him to be afraid in the daytime." Tr. 343, 348-349. 

The ALJ discredited Ms. Anderson's third-party statements 

because her "assessment of plaintiff's symptoms, dated after his 

DLI, was similar . to plaintiff's allegations of severe pain and 

debilitating functional limitations." Tr. 24, 343-350, 351-358. The 

ALJ also found that prior to his DLI "Ms. Anderson and plaintiff 

did numerous activities together. In particular, Ms. Anderson drove 

with plaintiff down t~e Oregon Coast, plaintiff went to karaoke 

bars, cared for 

assistance to Ms. 

two young 

Anderson's 

Page 11 - OPINION AND ORDER 

children, and provided 

cousin." Tr. 21-22, 254, 

computer 

462, 795, 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 11 of 20
863, 963. In addition, the ALJ found that "Ms. Anderson's 

assessment was similar to plaintiff's symptom allegations, which 

were not credible." Tr. 24-26, 343-350. 

Lay witness testimony may be disregarded on the same basis as 

claimant's discredited subjective reports. Valentine v. Comm' r Soc. 

Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Further, nothing 

precludes an ALJ from considering the close relationship between a 

lay witness and a claimant when evaluating credibility. Greger v. 

Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). 

In this case, the ALJ provided clear and convincing reasons, 

supported by substantial evidence, to reject plaintiff's 

credibility, and these reasons are equally applicable to Ms. 

Anderson. Plaintiff's activities of daily living and social 

activities support the ALJ's credibility finding with respect to 

plaintiff's and his girlfriend's statements. See Molina, 674 F.3d 

at 1114-22 (affirming the ALJ's decision "where the same evidence 

that the ALJ referred to in discrediting the claimant's claims also 

discredits the lay witness's claims") (citation and internal 

quotations omitted). Therefore, the ALJ's decision is upheld as to 

this issue. 

III. Medical Opinion Evidence 

Plaintiff next argues that the ALJ should have given more 

weight to the March 2008 opinion of treating physician Hung Nguyen, 

M.D., the July 2010 opinion of Susan Smith, M.D., and the June 2011 

opinion of Ani Kapadia, M.D. 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 12 of 20
There are three types of medical opinions in social security 

cases: those from treating, examining, and non-examining doctors. 

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). To reject the 

uncontroverted opinion of a treating or examining doctor, the ALJ 

must present clear and convincing reasons for doing so. Bayliss, 

427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). If a treating 

or examining doctor's opinion is contradicted by another doctor's 

opinion, it may be rejected by specific and legitimate reasons. 

Id. An ALJ gives specific, legitimate reasons to discount 

contradicted opinions by providing a detailed and thorough summary 

of the facts and conflicting clinical evidence, stating his 

interpretation of the evidence, and making findings. Tommasetti v. 

Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Further, ~credibility 

determinations do bear on evaluations of medical evidence when an 

ALJ is presented with conflicting medical opinions or inconsistency 

between a claimant's subjective complaints and his diagnosed 

conditions." Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005). 

A. Dr. Nguyen's Opinion 

In March 2008, Dr. Nguyen wrote a work-release statement based 

on plaintiff's medical records and Dr. Nguyen's own examinations of 

plaintiff. Tr. 625-631. Dr. Nguyen stated that plaintiff was 

~unable to work at this time due to the exacerbation of low back 

pain." Tr. 26, 625. 

The ALJ extensively evaluated the medical evidence of the 

entire record, including the specific opinion by Dr. Nguyen, and 

ultimately found that this ~opinion was not consistent with 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 13 of 20
plaintiff's routine treatment records that revealed normal gait and 

station, normal strength, and unremarkable objective test results." 

Tr. 26, 462-463, 644, 718, 793, 991, 1003, 1043. Namely, the ALJ 

afforded less weight to Dr. Nguyen's opinion because: (1) a 

contemporaneous VA record revealed that plaintiff's lower extremity 

motor strength was grossly intact, and treating VA physician, 

Edmund Frank, M.D., recommended conservative treatment of physical 

therapy; (2) plaintiff's independent daily activities prior to his 

DLI, were inconsistent with Dr. Nguyen's opinion; and (3) Dr. 

Nguyen's opinion was based, at least in part, on p·laintiff' s selfreport which was not entirely credible. Tr. 25-26, 254, 260, 285, 

462, 623, 795, 863, 942, 963, 1019. 

It is well-established that "evidence of conservative 

treatment is sufficient to discount a claimant's testimony 

regarding severity of an impairment." Parra v. Astrue, 481 F.3d 

742, 751 (9th Cir. 2007) (internal quotations marks omitted). "[A·] n 

opinion of disability premised to a large extent upon the 

claimant's own accounts of [his] symptoms and limitations may be 

disregarded, once those complaints have themselves been properly 

discounted." Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 

1995); see also Edlund v. Massanari, 253 F. 3d 1152, 1157 (9th Cir. 

2001) (claimant's provision of misinformation, unbeknownst to a 

doctor, served as a legally sufficient reason for rejecting that 

doctor's opinion). 

The record demonstrates that Dr. Nguyen based his opinion, at 

least in part, on plaintiff's uncredible subjective symptom 

Page 14 - OPINION AND ORDER 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 14 of 20
statements. Tr. 625-631. However, the ALJ found that plaintiff's 

subjective symptom statements and Dr. Nguyen's opinion contradicted 

other physicians' reports around the same time. For example, in 

February 2008, plaintiff went to the emergency room for back pain, 

but his examination revealed only minimal back swelling, a negative 

straight leg raise test, and that he was able to walk without 

difficulty. Tr. 25. Additionally, in March 2008, Dr. Frank, a staff 

physician in neurosurgery, reported that plaintiff's lower 

extremity motor strength was mostly intact and that an MRI revealed 

moderate degenerative disc disease, but there was no major cauda 

equine compression. Tr. 2 5, 62 3-62 4. Indeed, Dr. Nguyen 

acknowledged plaintiff's self-reports in his March 2008 opinion. 

Tr. 2 6. As such, the ALJ provided legally sufficient reasons, 

supported by substantial evidence, to give little weight to the 

opinion of Dr. Nguyen. Thus, the ALJ's evaluation of Dr. Nguyen's 

opinion is therefore affirmed. 

B. Dr. Smith's Opinion 

In July 2 010, Dr. Smith filled out a "Mental Impairment 

Questionnaire" given to her by plaintiff's attorney to assess 

plaintiff's mental capacity. Tr. 1089-1096. Dr. Smith's assessment 

was based on eight visits with plaintiff in the clinic and four 

phone calls with plaintiff. Id. Dr. Smith found that plaintiff had 

a severe mental health condition with "marked" limitations in 

social and cognitive functioning. Tr. 26, 1090-1092, 1094-1096. 

The ALJ gave reduced weight to the mental functional 

assessment of Dr. Smith for many reasons, including: ( 1) Dr. 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 15 of 20
Smith's admitted reliance, at least in part, on the subjective 

statements of plaintiff; ( 2) Dr. Smith's opinion of such severe 

limitations was not consistent with plaintiff's longitudinal 

treatment records and daily activities; and (3) Dr. Smith's global 

assessment of functioning (GAF) score of 45 was not consistent with 

plaintiff's March 2010 and April 2010 mental status examin0tions 

and the GAF score of 65 Dr. Smith assessed four months earlier in 

March 2010. Tr. 22, 24-26, 254, 260, 285, 462, 795-796, 812, 814-

815, 863, 942, 963, 1019, 1092-1093, 1095. Additionally, as noted 

by the defendant, the ALJ did not find that plaintiff had a severe 

mental impairment and plaintiff did not challenge the ALJ's finding 

at step two regarding his alleged mental impairment. See Bray, 554 

F.3d at 1226 n.7. 

As discussed above, an ALJ may reject a medical opinion that 

is based on a claimant's discredited self-reports. Andrews, 53 F.3d 

at 1043; see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 

Cir. 2001) (affirming the rejection of a treating source's opinion 

that "relied only on [the claimant's] subjective complaints"); see 

also Bray, 554 F.3d at 1228. Moreover, the ALJ is responsible for 

resolving conflicts in the medical testimony and translating the 

claimant's impairments into concrete functional limitations in the 

RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 

2008) . 

Here, Dr. Smith's assessment was based in part on plaintiff's 

subjective statements. For instance, 

"does the psychiatric condition 

Page 16 - OPINION AND ORDER 

in response to the question 

exacerbate your patient's 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 16 of 20
experience of pain or any other physical symptoms," Dr. Smith wrote 

"[plaintiff] reports that when under more stress and more anxious 

and depressed that headaches and back pain worsen." Tr. 1093. Dr. 

Smith also utilized the phrases to answer the questionnaire 

"plaintiff reports or per plaintiff's report" a few times 

throughout her report, nonetheless overall relying in part on 

plaintiff's self-reported symptoms to her, to fill out the 

questionnaire. Tr. 1092-1093, 1095. Accordingly, the ALJ reasonably 

disregarded Dr. Smith's opinion to the extent it was premised on 

plaintiff's self-reports. Further, the ALJ rationally found that 

Dr. Smith's opinion conflicted with other medical evidence in the 

record. Thus, the ALJ' s evaluation of Dr. Smith's opinion is 

therefore affirmed. 

C. Dr. Kapadia's Opinion 

In June 2011, Dr. Kapadia filled out a form regarding 

plaintiff's ability to do "Work-Related Activities;" the form was 

given to her by plaintiff's attorney to assess plaintiff's workrelated capabilities. Tr. 1089-1096. Dr. Kapadia became plaintiff's 

primary care physician in February 2011 and thus, did not treat 

plaintiff until more than a year after his DLI. Tr. 26, 1652; Df.'s 

Br. at 10. Dr. Kapadia based her assessment on plaintiff's past 

MRis and past medication history. Tr. 1652, 1655; Pl.'s Br. at 28. 

Dr. Kapadia also described her own observations that plaintiff can 

only sit or walk for a short period of time and that plaintiff's 

foot drags when he walks. Tr. 1654. 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 17 of 20
The ALJ gave reduced weight to Dr. Kapadia's June 2011 opinion 

because she did not start treating plaintiff until 2011, such that 

"any information about plaintiff's functional limitations due to 

pain during the relevant period must have come from plaintiff, and 

the ALJ reasonably found his symptom allegations not credible." Tr. 

22, 24-26, 1652-1653, 1655-1657. As discussed above, an ALJ may 

reject a medical opinion that is based on a claimant's discredited 

self-reports. Andrews, 53 F.3d at 1043; see also Bray, 554 F.3d at 

1228. 

Here, Dr. Kapadia's assessment was based in part on 

plaintiff's subjective statements, which the ALJ reasonably 

concluded were not credible. Additionally, the ALJ did not err in 

concluding that Dr. Kapadia's assessment was not relevant to the 

period of alleged disability. Tr. 26; Pl.'s Br. at 11. Accordingly, 

the ALJ did not err in rejecting Dr. Kapadia's opinion. 

Essentially, as the defendant notes, the reduced weight given 

to the three medical opinions discussed above were supported by 

several specific and legitimate reasons, based on substantial 

evidence in the record. After reviewing the record, the Court 

cannot conclude that the ALJ acted unreasonably in finding that the 

·above medical opinions should be given reduced weight. For the 

reasons stated above, the ALJ's assessment of the medical opinion 

evidence is upheld. 

IV. RFC Assessment and Step Five Findings 

Finally, plaintiff argues that the ALJ's RFC and step five 

findings are erroneous because they do not account for the 

Page 18 - OPINION AND ORDER 

Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 18 of 20
functional limitations described in his testimony and the thirdparty statements by his girlfriend, as well as in the medical 

opinion evidence furnished by Drs. Nguyen, Smith, and Kapadia. 

A claimant's RFC is the maximum activity a claimant can do 

despite his limitations. See 20 C.F.R. § 404.1545. In determining 

the RFC, the ALJ must consider limitations imposed by all of a 

claimant's impairments, even those that· are not severe, and 

evaluate "all of the relevant medical and other evidence," 

including the claimant's testimony. SSR 96-8p, available at 1996 WL 

374184. Only limitations supported by substantial evidence must be 

incorporated into the RFC and, by extension, the dispositive 

hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d 

1157, 1163-65 (9th Cir. 2001). 

As discussed above, the ALJ did not err in rejecting or giving 

less weight to the statements of plaintiff, Ms. Anderson, Dr. 

Nguyen, Dr. Smith, and Dr. Kapadia. Accordingly, plaintiff's 

argument, which is contingent upon a finding of harmful error in 

regard to the aforementioned issues, is without merit. Bayliss, 427 

F.3d at 1217-18; Stubbs-Danielson, 539 F.3d at 1175-76. The ALJ's 

RFC and step five finding are upheld. 

CONCLUSION 

For the foregoing reasons, the Commissioner's decision is 

AFFIRMED and this case is DISMISSED. 

IT IS SO ORDERE~ 

Dated this /Q day of September, 2015. 

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Case 3:14-cv-01698-AA Document 21 Filed 09/10/15 Page 19 of 20
~Qg(/>. ____) . Ann Alken 

United States District Judge 

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