UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

FRANCES C. LANGE,

Plaintiff,

v. 

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant.

Case No. 6:15-cv-00596-KI

OPINION AND ORDER

Katherine L. Eitenmiller

Mark A. Manning

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 Frances C. Lange 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

On October 1, 2009, Lange filed applications for DIB, alleging disability as of July 23,

2009, and SSI, alleging disability as of November 15, 2005. The applications were denied

initially and upon reconsideration. After a timely request for a hearing, and without

representation, Lange appeared and testified before an Administrative Law Judge (“ALJ”) on

December 8, 2011. The Appeals Council remanded the ALJ’s decision and Lange appeared for a

second hearing on April 12, 2013, again without representation.

On July 11, 2013, the ALJ issued a decision finding Lange was 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

February 10, 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). 

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STANDARD OF REVIEW

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

According to the ALJ, Lange’s severe impairments are: fibromyalgia, cervical

degenerative disc disease, and chondromalacia of the left knee. The ALJ concluded these

impairments, either singly or in combination, did not meet or medically equal the requirements of

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

impairments, the ALJ determined Lange’s residual functional capacity (“RFC”) allowed her to

perform light work. That is, she can lift 20 pounds occasionally and 10 pounds frequently, sit or

stand and walk six hours each for a combined total of eight hours. She cannot climb ladders,

ropes, or scaffolds. She is able to occasionally climb ramps and stairs. She is able to frequently

crouch and stoop. She is able to occasionally kneel and crawl. She should have no exposure to

unprotected heights or moving machinery. She cannot be exposed to high noise environments,

defined as no more than what is in an average office environment. Given this RFC, the ALJ

found Lange could perform her past work of front desk clerk and restaurant manager. 

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FACTS

Lange, who was 58 years old at the time of the first hearing, has a high school degree and

a work history involving a multitude of jobs including restaurant service and management work,

gas station attendant, deli clerk, hotel clerk, and radio station announcer. At the time of the first

hearing, Lange had been working part-time as a library aide. She explained she had so many jobs

because she was moving to different places and she was trying to find less physical work due to

pain in her wrists and getting older. Also, if she did not like her boss at one restaurant she could

move down the street. 

Disability Determination Services (“DDS”) sent her to Larry Maukonen, M.D., for an

examination on August 13, 2008. Lange complained of pain in her muscles and joints, beginning

in 2004. Upon examination, Lange displayed pain and stiffness in multiple joints, but her

strength was 5/5. Dr. Maukonen could not offer an opinion as to the source of her joint pain and

stiffness, but he did assess her functional limitations. Specifically, he limited her lifting to 10

pounds occasionally and less than 10 pounds frequently, and her sitting to less than six hours in

an eight-hour day, and her standing to at least two hours in an eight-hour day.

Lange reported to the Coos County Mental Health Department for mental health

treatment in September 2009. She reported past suicide attempts and seeing vague visual images

of wispy smoke that she thought might be ghosts, spirits or demons. Lange was scheduled to

meet with Nancy Strain, L.C.S.W., in three weeks’ time, but there is no indication she did.

Lange established primary care with Carlos Suarez, M.D., of the North Bend Medical

Center, in September 2009. Dr. Suarez assessed Lange with anxiety (treated with Vistaril),

multiple joint pain, fibromyalgia, and obstructive sleep apnea.

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Lange reported to the emergency room a few weeks later complaining of chest pain under

her shoulder blades radiating into her arm. Dr. Suarez treated her with aspirin and nitroglycerin,

as well as Toradol and Pepcid, without much improvement. He also treated her for dehydration. 

An electrocardiogram and chest x-ray were normal. She took Vistaril for her anxiety before she

left, and Dr. Suarez opined that her anxiety “probably accounts for many of her symptoms.” Tr.

492.

Dr. Suarez addressed a lump on Lange’s neck and her pelvic pain in October. He also

sent her for a formal sleep test. 

In November, Dr. Suarez referred Lange to Anita Goel, M.D., for a rheumatologic

consultation. Lange told Dr. Goel about “intense hip pain” for at least ten years, which had

worsened the past year. She also complained of fatigue. Upon examination, Lange demonstrated

“marked diffuse soft tissue tenderness with multiple tender trigger points. Decreased ROM of

her C spine. Otherwise normal joint exam.” Tr. 470. Dr. Goel recommended a healthy diet, an

exercise program, discontinuing smoking, and avoiding stressors. She also mentioned muscle

relaxants and antidepressants as being helpful options.

Lange’s colonoscopy also in November reflected she was “in good health.” Tr. 477.

James M. Wahl, Ph.D., examined Lange at the request of DDS in January 2010. Dr.

Wahl understood Lange was applying for disability due to panic attacks and chronic pain. He

reviewed Dr. Suarez’s notes from September and October 2009, and the function report she

completed. When Lange experienced a panic attack, which was always brought on by stress, she

drove to the emergency room and parked in the parking lot until she felt better. She experienced

attacks at home and in public, they lasted about three hours, and many occurred at night. Dr.

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Wahl diagnosed her with panic disorder without agoraphobia; major depressive disorder,

recurrent, moderate; fibromyalgia, osteoporosis; and noted chronic pain, history of childhood

abuse, inadequate income, inadequate access to health care. He assigned a global assessment of

functioning (“GAF”) of 60.1

Returning to Dr. Suarez, Lange agreed to try Cymbalta to treat her fibromyalgia. 

In March 2010, Lange appeared in the emergency room complaining of shoulder pain. 

She was diagnosed with a right rotator cuff injury. She returned to the emergency room in June

and was diagnosed with sciatica. She was instructed to try a topical pain patch and her usual pain

medication.

Douglas G. Crane, M.D., also of the North Bend Medical Center, referred Lange back to

Strain at the Coos County Mental Health Department in July 2010. Lange sought counseling

about her fear over living alone. Lange appeared friendly and cooperative, relaxed, and with

normal speech and coherent thoughts. She reported feeling depressed, anxious, angry, and

irritable. She did not want to take an antidepressant. Strain diagnosed PTSD provisionally. 

Strain offered to meet with Lange over three to six therapy sessions. Lange arrived for her first

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 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 coworkers).” The American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders 34 (4th ed. 2000) (“DSM-IV”). A GAF of 61 to 70 means “Some mild symptoms

(e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or

school functioning (e.g., occasional truancy, or theft within the household), but generally

functioning pretty well, has some meaningful interpersonal relationships.” Id. 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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and second follow-up appointments, but did not return to Strain until 2013 despite multiple

outreach letters.

Dr. Crane also wrote a number of letters on Lange’s behalf to assist her in obtaining

housing. He wrote two in August 2010 reporting her “chronic orthopedic problems” and “sciatic

nerve pain” and asking for Section 8 housing in one letter, and handicap travel on Amtrak in

another. Tr. 369, 370. 

In August, Lange sought care for her shoulder pain and Dr. Crane referred her to the

South Coast Orthopaedic Associates. Lange reported pain with movement of the right arm,

difficulty sleeping, pain in elevating the arm, and intermittent numbness in her fingers. Harry

Sirounian, D.O., recommended an NSAID. Just two weeks later, Lange reported 1⁄2 pill a day

“helped her a lot. She states the shoulder pain has decreased considerably. In addition, it has

helped all of her other joints, including her knee and lower back. Her activity status has

improved.” Tr. 589. Examination of her shoulder revealed “good motion, no crepitus and no

tenderness.” Tr. 590. Dr. Sirounian recommended physical therapy, home exercises, and

NSAID use.

In January 2011, Dr. Crane again referred Lange to the South Coast Orthopaedic

Associates to examine Lange’s knees. Douglas Abbott, M.D. examined her, noting she had

fibromyalgia, was not taking regular anti-inflammatory medications but was taking occasional

Flexeril and about one-half a pain pill occasionally for her knees. In February, Dr. Abbott noted

full weight-bearing gait, excellent motion of her knee with normal stability, although the left

knee was tender. An MRI of her left knee revealed no tear, but “slight effusion to the knee joints

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and perhaps some articular cartilage change at the femoral trochlea,” and an otherwise age

appropriate knee. Tr. 572. 

Lange returned to the orthopaedic clinic in April complaining of neck pain and

radiculopathy for the past four or five months. She reported difficulty holding her head up and

handling objects. She demonstrated functional range of motion and 5/5 strength. She was

scheduled for an MRI. A review of her C-spine MRI in May 2011 revealed an area consistent

with a foraminal disc herniation and nerve impingement. Surgery was not recommended, but a

cervical epidural steroid injection was discussed.

In October, Dr. Crane wrote a letter on Lange’s behalf asking for a different unit in the

apartment complex with a “bit larger bathroom.” Tr. 602. He explained Lange’s panic disorder

makes “the tight area in her bathroom quite constrictive for her and is causing emotional

distress.” Id.

In May 2012, Dr. Crane wrote that Lange should be able to move to Medford to live

closer to her son, due to her panic disorder and fear of being alone, and he asked for social

service assistance. He reiterated this request in a letter dated November 2012.

In January 2013, Lange again sought mental health care from the Coos County Mental

Health Department. She reported worsening fear of living alone, as well as agoraphobia and

depression. Strain met with Lange again and diagnosed PTSD and panic disorder with

agoraphobia. Strain reported Lange was friendly, cooperative, relaxed, without abnormal motor

movements. Her affect was sad. She did not want to take an antidepressant. Strain thought

Lange’s prognosis was good, and she recommended up to three therapy sessions and more if

necessary. Lange met with Syd Wiesel, L.C.S.W., on three occasions in March and April. Lange

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reported improvement with exercise, deep breathing and using a mantra to reduce anxiety. She

also stopped watching violent television shows and was sleeping better. At her last session, she

reported moving to Coos Bay and asked to transfer to Strain; she felt high anxiety with the

possibility of a melanoma diagnosis. She described the calming techniques as helpful.

DISCUSSION

Lange challenges the following parts of the ALJ’s decision: improper treatment of the

medical evidence, failure to consider Lange’s mental impairments as “severe,” improper

credibility assessment, failure to order a consultative psychological evaluation, and inadequate

development of the record.

I. Medical Evidence

Lange questions the ALJ’s treatment of the following medical opinions: Dr. Maukonen,

Dr. Wahl, Dr. Suarez, and Dr. Crane. The weight given to the opinion of a physician depends on

whether the physician is a treating physician, an examining physician, or a nonexamining

physician. More weight is given to the opinion of a treating physician because the person has a

greater opportunity to know and observe the patient as an individual. Orn v. Astrue, 495 F.3d

625, 632 (9th Cir. 2007). If a treating or examining physician’s opinion is not contradicted by

another physician, the ALJ may only reject it for clear and convincing reasons. Id. (treating

physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006) (examining physician). 

Even if it is contradicted by another physician, the ALJ may not reject the opinion without

providing specific and legitimate reasons supported by substantial evidence in the record. Orn,

495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of a nonexamining physician, by

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itself, is insufficient to constitute substantial evidence to reject the opinion of a treating or

examining physician. Widmark, 454 F.3d at 1066 n.2. 

Since the opinions of Drs. Maukonen, Wahl, Suarez and Crane were contradicted by the

opinions of state agency consultants Kordell Kennemer, Psy.D., Neal Berner, M.D., Joshua

Boyd, Psy.D., and Sharon Eder, M.D., the ALJ was required to provide specific and legitimate

reasons for giving the examining and treating physician opinions the weight she did.

A. Dr. Maukonen

Dr. Maukonen limited Lange to lifting 10 pounds occasionally and less than 10 pounds

frequently, and sitting to less than six hours in an eight-hour day, and standing at least two hours

in an eight-hour day.

The ALJ gave little weight to Dr. Maukonen’s opinion because the doctor conceded he

had not reviewed any records and could not determine the cause of Lange’s complaints. The ALJ

commented that just as the doctor could not opine as to the cause of her symptoms, his

assessment of her limitations appeared to be based on Lange’s reports. 

Lange points out Dr. Maukonen made objective findings, such as her slow finger-to-nose

pointing, fine movements, rapid alternating movements, and foot tapping, and stiff rising from a

seated position. While these are behaviors Dr. Maukonen observed, there is no objective support

for the lifting limitations he imposed (Lange displayed 5/5 strength), the sitting limitations he

imposed, or the noise and vibration limitations (her sensory testing was normal). When

consulting physicians Dr. Eder and Dr. Berner reviewed Dr. Maukonen’s report, they too

concluded he must have relied on Lange’s complaints rather than on objective evidence. 

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Accordingly, the ALJ gave specific and legitimate reasons supported by substantial evidence to

give little weight to Dr. Maukonen’s opinion.

B. Dr. Wahl

Dr. Wahl concluded Lange could “understand and remember at least moderately complex

instructions, but her results also suggest that her ability to sustain concentration and attention and

persist at work tasks is suspect given her chronic pain and various medical conditions.” Tr. 510. 

The doctor predicted Lange’s panic attacks and depression would continue indefinitely as she had

not utilized treatment therapies. He thought she displayed good social skills and that her PTSD

would not inhibit her ability to function at work. He noted she showed no signs of clinical

anxiety, she “displayed fairly good social skills” and that her IQ was likely in the average range.

The ALJ dismissed the GAF of 60, suggesting the score represented Lange’s chronic

pain, history of child abuse, inadequate income, and inadequate access to health care as opposed

to reflecting her psychological state. She also noted Dr. Wahl thought Lange would have no

trouble understanding and remembering moderately complex instructions, and that any

limitations in concentration, attention, and persistence were due to pain and other medical

conditions. However, the ALJ further found the extent of Lange’s pain was not supported by the

evidence.

Lange argues the ALJ misunderstood the GAF scale, asserting the DSM specifically

directs practitioners not to include “impairment in functioning due to physical (or environmental)

limitations,” and contending there is no reason Dr. Wahl would have considered inapplicable

factors when instructed not to. See DSM-IV-TR at 34. The Commissioner does not respond to

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this argument, and there is no support for the ALJ’s conclusion that Dr. Wahl incorrectly

considered these physical and environmental factors in assessing the GAF.

Nevertheless, contrary to Lange’s assertion, I see no mischaracterization or

misunderstanding in the ALJ’s representation of Dr. Wahl’s opinion. Dr. Wahl opined that any

limitations in concentration, attention and persistence were attributable to Lange’s chronic pain

and medical problems, as opposed to psychological impairments, and the ALJ properly

questioned the severity and effect of Lange’s chronic pain later in her opinion. Contrary to

Lange’s assertion, Dr. Wahl simply did not attribute any concentration and attention problems to

anxiety or depression. As a result, the ALJ’s treatment of Dr. Wahl’s opinion was not error. 

C. Dr. Suarez

Dr. Suarez treated Lange from September 2009 to January 2010. Lange contends the ALJ

erred by not addressing Dr. Suarez’s note that Lange’s anxiety “probably accounts for many of

her symptoms.” Tr. 492. Lange suggests the note is evidence Dr. Suarez believed her mental

and physical problems are related.

The Commissioner points out the ALJ need not address every piece of evidence, and

especially need not address evidence which is not probative. She contends Dr. Suarez’s

statement is not an “opinion” within the meaning of the regulations. See 20 C.F.R. §

404.1513(c)(1), (2); 416.913(c)(1), (2); see also SSR 96-5p, 1996 WL 374183, at *4 (July 2,

1996) (opinion is about “an individual’s physical or mental abilities to perform work-related

activities on a sustained basis”). Further, two of the consulting physicians did consider Dr.

Suarez’s note and concluded Lange could perform light work. Tr. 533, 568. I agree. Dr.

Suarez’s statement is not an opinion about Lange’s functional limitations affecting her ability to

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work. While it is evidence that Lange experienced chest pain which may have been attributable

to anxiety on one occasion, consideration of the note would not have changed the ALJ’s opinion

in any of the three functional areas related to severity of Lange’s mental impairments, nor would

it have changed the RFC.

D. Dr. Crane

Lange contends the ALJ was required to give controlling weight to treating physician Dr.

Crane’s multiple opinions about Lange’s disability in relation to her housing. The ALJ found the

opinions not persuasive as that level of inability to function was not reflected in the record or in

Dr. Crane’s notes. Additionally, the finding of disability is a determination left to the

Commissioner. Lange contends the record reflects, just as the ALJ found, “intermittent

complaints of anxiety or panic” and that Dr. Crane’s opinions were not on the issue of disability,

per se, but rather an assessment of her housing needs.

I agree with the ALJ’s reasons for finding Dr. Crane’s letters not entitled to any weight. 

Leaving aside the argument that Dr. Crane’s opinions contain a legal conclusion on disability,

which is generally left to the ALJ, they are entirely devoid of any reasoning to support them. 

Further, her housing needs are not probative of any functional limitations to working. An ALJ is

not required to accept the opinion of a physician, even a treating physician, if the opinion is

“conclusory, brief, and unsupported by the record as a whole[.]” Batson v. Comm’r of Soc. Sec.

Admin., 359 F.3d 1190, 1195 (9th

 Cir. 2004). The record supports the ALJ’s conclusion that

Lange’s mental impairments did not affect her ability to work. 

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II. Severe Impairments

Lange contends the ALJ should have treated her mental impairments as severe. In order

to constitute a “severe” impairment, the impairment must have “more than a minimal effect on

the person’s physical or mental ability(ies) to perform basic work activities.” SSR 85-28, 1985

WL 56856, at *3 (January 1, 1985); see also SSR 96-3p, 1996 WL 374181, at *1 (July 2, 1996)

(restating policy that “an impairment(s) is considered ‘not severe’ if it is a slight abnormality(ies)

that causes no more than minimal limitation in the individual’s ability to function independently,

appropriately, and effectively in an age-appropriate manner.”). Nevertheless, the threshold at

step two is a low one. It is a “de minimis screening device [used] to dispose of groundless

claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (internal quotation omitted). 

The ALJ’s finding that Lange did not have a severe mental impairment is supported by

substantial evidence in the record. The ALJ closely examined the evidence of mental

impairments, accorded significant weight to the opinions of the reviewing psychological

consultants, rejected Dr. Crane’s opinion, and properly characterized Dr. Wahl’s examination. 

Finally, the ALJ correctly analyzed the four “paragraph B” criteria which yielded conclusions of

only mild impairments in the three functional areas, with no episodes of decompensation. 20

C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C) (severity of a mental impairment is measured by

“assess[ing] functional limitations using the four criteria in paragraph B of the listings: 

[a]ctivities of daily living; social functioning; concentration, persistence, or pace; and episodes of

decompensation”). Substantial evidence supports the ALJ’s analysis. 

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III. Lange’s Credibility

Lange contends the ALJ failed to properly assess her credibility. The ALJ noted no

treating source had assessed Lange’s abilities, her activities of daily living were consistent with

light work, she had worked since she began experiencing anxiety-related symptoms in 1994, she

appeared relaxed, friendly and cooperative to all of her doctors despite reports of anxiety, and she

had sought care for her symptoms only sporadically. The ALJ also noted that “no treating or

examining source has set forth restrictions supporting a finding of disability[.]” Tr. 27.

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).

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As an initial matter, I do not rely on Lange’s testimony regarding her mental impairments. 

Although she testified she had no mental health problems that would affect her ability to work,

her testimony is ambiguous in a context where Lange subsequently asked the ALJ whether she

had Lange’s mental health records.

Lange does not question the ALJ’s reliance on her daily activities. Instead, Lange

contends the ALJ erred in rejecting her pain testimony, when she produced a diagnosis which

could cause some degree of pain. She also takes issue with the ALJ’s statement that no treating

or examining physician set out disabling-level restrictions. To the contrary, she points out Dr.

Maukonen limited her to sedentary work and that, as a person “closely approaching advanced

age” without any identifiable transferable skills, she is deemed disabled under the grids.2 Finally,

she argues her failure to seek treatment is a legally invalid reason to question the existence and

severity of her mental impairments. Tr. 98, 428, 510 (lacked resources for mental health

treatment); Garrison v. Colvin, 759 F.3d 995, 1018 n.24 (“questionable practice to chastise one

with a mental impairment for the exercise of poor judgment in seeking rehabilitation”); Orn, 495

F.3d at 638 (not an appropriate factor when claimant cannot afford treatment).

Although the ALJ 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,

2The Medical Vocational Guidelines, also known as “the grids” are used to determine if

substantial gainful work exists for claimants with substantially uniform levels of impairment. 

When the grids do not adequately take into account a claimant’s abilities and limitations,

however, they may be used only as a framework and a vocational expert must be consulted.

Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002).

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857 (9th

 Cir. 2001). Here, Lange complained of spasms over her whole body and extreme pain

that never stopped. Yet, objective testing revealed full strength, good weight bearing gait,

normal range of motion, and the recommended treatment was limited to NSAIDs and perhaps a

cortisone injection.

Lange is correct to question whether the ALJ’s reliance on her lack of mental health

treatment was appropriate as the ALJ should carefully examine the reasons for a claimant’s

failure to obtain treatment. Here, however, the ALJ’s conclusion was appropriate and was

supported by substantial evidence. Lange was offered mental health treatment and she failed to

follow through with it. Cf. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (internal

quotation omitted) (claimant one of millions who did not seek treatment for depression until

late). There is no evidence any impairment stopped Lange from seeking treatment, or that she

was unaware of her mental health problem in the first place. Further, despite reporting daily

anxiety attacks, she regularly presented to her medical providers without any signs of anxiety. 

Finally, there is no evidence she was denied mental health treatment because she could not afford

it. 

With respect to the ALJ’s statement that no treating or examining source had identified

restrictions supporting a finding of disability, Lange is technically correct. Nevertheless, even

Dr. Maukonen opined Lange was capable of performing sedentary work. The ALJ simply failed

to consider such a finding in the context of a person Lange’s age and skill level. Even if the ALJ

slightly misrepresented the state of the opinion evidence, the fact that the ALJ improperly

considered some reasons for finding plaintiff’s credibility undermined does not mean that the

ALJ’s entire credibility assessment is improper. Batson, 359 F.3d at 1197.

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On the whole, the ALJ’s conclusions are supported by substantial evidence and I decline

to “engage in second guessing.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)

(citation omitted).

IV. Supplement Record

Lange insists the ALJ should have obtained a second consultative examination to assess

her mental impairments, when she was unable to afford treatment. She points out Dr. Wahl

thought her depression and anxiety would continue without treatment. In addition, she

underscores she was unrepresented at the hearing and suffered from mental health impairments,

imposing on the ALJ a heightened duty to develop the record. She contends further inquiry into

her suicide attempts, panic attacks, depression, and PTSD, which affected her memory and

mood, should have been investigated further.

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 v. Halter, 242 F.3d 1144,

1150 (9th

 Cir. 2001) (internal quotation omitted). The duty is heightened if a claimant is

unrepresented or is mentally ill and cannot protect his own interests. 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, 433 F.3d at

687. The supplementation can include subpoenaing the claimant’s physicians, submitting

questions to the claimant’s physicians, continuing the hearing, or keeping the record open after

the hearing to allow the record to be supplemented. Tonapetyan, 242 F.3d at 1150.

While I disagree with the Commissioner that Lange’s testimony, when read in context, is

persuasive evidence of a lack of mental impairment, I nevertheless disagree with Lange that the

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ALJ failed to fully develop the record or that a further psychological consultation was necessary. 

Dr. Wahl completed his examination in 2010, in which he concluded any limitations were due to

physical complaints as opposed to psychological problems, and there was no evidence Lange’s

mental health dramatically changed in the intervening years. Additionally, no examining or

treating physician identified additional information that would be necessary to properly assess

Lange’s functioning. 

In sum, the ALJ did not err.

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.

IT IS SO ORDERED.

DATED this 14th day of March, 2016. 

 /s/ Garr M. King 

Garr M. King

United States District Judge

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