IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DEREK M. FLEENER, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of Social 

Security, 

Defendant. 

AIKEN, Chief Judge: 

Case No. 6:14-CV-01212-AA 

OPINION AND ORDER 

Plaintiff Derek Fleener brings this action pursuant to the 

Social Security Act (Act) to obtain judicial review of the final 

decision of the Commissioner of Social Security (Commissioner) 

denying his application for supplemental security income (SSI) 

benefits. The issues before this Court are whether the ALJ erred 

·in his determination of the medical evidence, plaintiff's 

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Case 6:14-cv-01212-AA Document 21 Filed 09/15/15 Page 1 of 19
credibility, plaintiff's mental limitations, and his evaluation 

of lay witness testimony. The Commissioner's decision is 

REVERSED and this matter is REMANDED for further proceedings. 

PROCEDURAL BACKGROUND 

On January 25, 2010, plaintiff applied for SSI. Tr. 17. The 

claim was denied initially and on reconsideration. Tr. 17. On 

September 26, 2012, plaintiff appeared before an Administrative 

Law Judge (ALJ) along with h~s attorney and a vocational expert. 

Tr. 17. On December 27, 2012, the ALJ issued a decision finding 

plaintiff not disabled. Tr. 29. On May 31, 2014, the Appeals 

Council denied plaintiff's request for review. Tr. 1-3. 

Plaintiff now seeks judicial review. 

STATEMENT OF FACTS 

Plaintiff was forty-four years old at the time of his 

amended alleged disability onset date and forty-six at the date 

the application was filed. 1 Tr. 17, 28. Plaintiff previously 

worked as an automobile detailer. Tr. 28. Plaintiff has at least 

two years of community college. Tr. 47. Plaintiff's severe 

impairments are: back disorder-status post discectomy/fusion, 

sleep apnea, gastroesophageal reflux disease, grastroparesis, 

somatoform disorder, and schizoaffective disorder. Tr. 19. 

STANDARD OF REVIEW 

1 Plaintiff initially alleged disability as of December 20, 1999. 

Tr. 17. At the hearing, plaintiff amended his alleged onset date 

to April 25, 2008. Tr. 17. 

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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 498j 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, 807 F.2d 

771, 772 (9th Cir. 1986). Variable interpretations of the 

evidence are insignificant 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 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). 

COMMISSIONER'S DECISION 

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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, 

416.920. At step one, the ALJ found that plaintiff had not 

engaged in "substantial gainful activity" since his application 

date of January 25, 2010. Tr. 19; 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," including 

back disorder-status post discectomy/fusion, sleep apnea, 

gastroesophageal reflux disease, gastroparesis, somatoform 

disorder, and schizoaffective disorder. Tr.19; Yuckert, 482 U.S. 

at 140-41; 20 C.F.R. § 416.920 (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] 

acknowledges are so severe as to preclude substantial gainful 

activity." Tr. 21; Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 

416.920 (d). 

The ALJ next found that plaintiff had the residual 

functional capacity (RFC) to: 

perform light work, which is defined as lifting and/or 

carrying twenty pounds occasionally and ten pounds 

frequently, walking and/or standing for up to six hours in 

an eight hour worked day, and sitting for up to six hours 

in an eight hour work day with normal breaks. [citation 

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omitted] .The [plaintiff] is limited to occasional climbing 

of ramps and stairs, and he can never climb ropes, ladders, 

or scaffolds. He is also limited to frequent stooping and 

occasional crawling, crouching, and kneeling. In addition, 

the claimant is limited to unskilled work with a specific 

vocational preparation (svp) rating of one or two. 

Tr. 23. 

At step four, the ALJ found that piaintiff could not 

perform his ~past relevant work." Tr. 28; 20 C.F.R. § 

416.920(f). 

At step five, the Commissioner must determine if the 

claimant can perform other work that exists in significant 

numbers in the national and local economy. Yuckert, 482 U.S. at 

141-42; 20 C.F.R. § 416.920(g). Here, the ALJ found that 

plaintiff retains the RFC to perform work existing in 

significant numbers, such as motel cleaner, cashier II, and car 

wash attendant. Tr. 29; 20 C.F.R. § 416.966. Therefore, the ALJ 

found that plaintiff was not disabled. 

DISCUSSION 

Plaintiff argues that the ALJ erred by: 1) improperly 

crediting some and rejecting other medical evidence from Dr. 

Sweet; 2) improperly evaluating Dr. Lundblad and Dr. Sweet's 

opinions in relation to each other; 3) not including all of 

plaintiff's functional limitations in the RFC determination; 4) 

improperly evaluating plaintiff's RFC; and 5) failing to credit 

the statements of plaintiff's wife, Patty Fleener. 

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I. Dr. Sweet's Medical Opinion 

Plaintiff contends that the ALJ erred by not fully 

crediting the opinion of examining psychologist David N. Sweet. 

Pl.'s Br. 6. The ALJ may reject an evaluating doctor's opinion 

that has been contradicted by another doctor only by providing 

specific and legitimate reasons that are supported by 

substantial evidence in the record. Lester v. Chater, 91 F.3d 

821, 830-831 (9th Cir. 1996). nThe ALJ can meet this burden by 

setting out a detailed and thorough summary of the facts and 

conflicting clinical evidence, stating his interpretation 

thereof, and making findings." Magallanes v. Bowen, 881 F.2d 

747, 751 (9th Cir. 1989) (citation omitted). 

In this case, Dr. Sweet was contradicted by nonexamining 

State agency psychologist Sandra L. Lundblad, Psy.D. Tr. 26-7, 

113-15, 370. The ALJ proffered two reasons for discounting Dr. 

Sweet's opinion. First, the ALJ found that Dr. Sweet's opinion 

did not match his observations, and second, Dr. Sweet based his 

opinion on plaintiff's own statements which were found to be not 

credible. Tr. 26. Plaintiff does not challenge the ALJ's 

credibility determination. 

The ALJ may discount a doctor's opinion if the opinion 

conflicts with the doctor's treatment notes. Holohan v. 

Massanari, 246 F.3d 1195,1205(9th Cir. 2008). In this case, Dr. 

Sweet opined that plaintiff nwas not capable of engaging in 

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competitive employment." Tr. 26. The ALJ disregarded this 

opinion based on Dr. Sweet's observations of plaintiff's 

"ability to cooperate and respond to questions as well as his 

ability to 'offer a great deal of information spontaneously.'" 

Tr. 26. These statements alone are an insufficient reason to 

discount Dr. Sweet's opinion given they do not explain how or 

why the ability to cooperate and answer questions would impact 

plaintiff's ability to work. 

However, the ALJ provided another valid reason to discount 

Dr. Sweet's opinion: his exclusive reliance on plaintiff's own 

statements. A "physician's opinion of disability 'premised to a 

large extent upon the claimant's own accounts of his symptoms 

and limitations' may be disregarded where those complaints have 

been 'properly discounted.'" Morgan v. Comm'r of the Soc. Sec. 

Admin., 169 F.3d 595, 602 (quoting Fair v. Bowen, 885 F.2d 597, 

605 (9th Cir. 1989)). A general assertion that the plaintiff 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). 

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In this case, the ALJ found plaintiff not credible because 

of numerous inconsistencies in plaintiff's testimony as to his 

memory and concentration, symptoms, and daily living activities. 

The ALJ found that plaintiff's alleged difficulties with 

memory and concentration do not appear as severe as suggested 

when compared to the record. Tr. 25. Plaintiff states that he 

forgets easily and has trouble with memory and concentration. 

Tr. 316. However, during a 2009 examination, plaintiff recalled 

three out of three words immediately and two out of three words 

after a five-minute delay. Tr. 25. In 2010, an investigator with 

the Cooperative Disability Investigations Unit 2 visited 

plaintiff's home and observed that plaintiff "appeared to have 

good memory recall of past events, as well as short-term recall 

of recent events. He demonstrated this by his discussion of past 

employment (ten or more years past), medical events and 

treatments, their recent train travels to California ... and the 

damages done to his vehicle while they were gone." Tr. 337. 

During this investigation, plaintiff also stated that he 

cannot do chores, bathe by himself, use the toilet by himself, 

prepare his own meals, or perform house or yard work. Tr. 312-

13. However, investigators talked with a former housemate who 

observed plaintiff moving furniture, bathing a large dog, 

2 The Cooperative Disability Investigations Unit was 

investigating plaintiff for exaggerating symptoms related to his 

Title XVI claim. Tr. 332. 

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cleaning the house, grocery shopping, making house repairs as 

needed, and even working under the table at a local car lot. Tr. 

25. These investigators also found plaintiff's hygiene was 

unremarkable, with no body odor or uncleanliness, which runs 

counter to plaintiff's statements that he only bathes once a 

month and has trouble with personal care. Tr. 22, 25. 

Additionally, both Dr. Sweet and Dr. Joel Suckow, MD, remarked 

that plaintiff was "adequately groomed." Tr. 365, 403. 

The ALJ also noted plaintiff's failure to follow through on 

recommended strengthening exercises that may reduce his pain 

symptoms. Plaintiff was told repeatedly to try water aerobics, 

or back exercises to strengthen co~e muscles to relieve his pain 

symptoms. The ALJ found that plaintiff's failure to pursue such 

treatment meant that plaintiff's pain may not be as bad as 

alleged, because a reasonable person would have tried 

recommended alternative strategies in an attempt to reduce pain. 

Tr. 25; see Orn v~ Astrue, 495 F.3d 625, 638 (9th Cir. 

2007) ("if a claimant complains about disabling pain but fails to 

seek treatment, or fails to follow prescribed treatment, for the 

pain, an ALJ may use such failure as a basis for finding 

complaint unjustified or exaggerated."). 

The above inconsistencies when taken together provide clear 

and convincing reasons, supported by substantial evidence, for 

rejecting plaintiff's subjective symptom statements. Therefore, 

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the ALJ's decision to discount Dr. Sweet's opinion was not 

erroneous, b~cause it was based to a substantial degree on 

plaintiff's own statements. 

II. Dr. Sweet's Observations and Dr. Lundblad's Opinion 

Plaintiff alleges two errors with respect to the ALJ's 

findings regarding the medical opinions of Dr. Lundblad and Dr. 

Sweet. First, plaintiff argues that because the ALJ relied on 

Dr. Sweet's observations to support Dr. Lundblad's opinions, the 

ALJ should have accepted Dr. Sweet's observations as functional 

limitations. Second, plaintiff argues that the ALJ improperly 

discounted some of Dr. Lundblad's opinion that was supported by 

the record. This Court finds no error. 

A) Dr. Sweet's Observations 

The ALJ relied on Dr. Lundblad's opinion because it was 

consistent in part with Dr. Sweet's report. Tr. 27. The ALJ 

stated: 

[Dr. Lundblad] opined that [plaintiff] would be limited in 

his concentration, persistence and pace, but he would be 

capable of maintaining focus on simple tasks and routines. 

This portion of Dr. Lundblad's opinion is given great 

weight as it is consistent with the [plaintiff's] 

performance on the mental status examination administered 

by Dr. Sweet. 

Tr. 27 (internal citations omitted). Plaintiff argues that the 

ALJ therefore should have considered Dr. Sweet's observations 

that were consistent with Dr. Lundblad's opinion as functional 

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limitations in determining plaintiff's RFC. In his examination, 

Dr. Sweet observed: 

[Plaintiff's] eye contact was not adequate for the 

situation. He tended to look to the side or down most of 

the time ... Thought process and content was organized and 

disorganized and goal directed. At times he could stay on 

track but at other times he seemed to lose track of the 

conversation and [Dr. Sweet] had to redirect him ... defici ts 

are noted in attention, concentration and memory. 

Tr. 369. 

Plaintiff argues that the above observations "would affect 

[plaintiff's] social interactions related to the general public, 

co-workers and supervisors" and "[a] need for redirection would 

disrupt the work process and require an excessive amount of 

supervisory intervention." Pl.'s Br. at 8-9. However, these are 

plaintiff's own conclusions about Dr. Sweet's findings, not the 

conclusions of an accepted medical source. Dr. Sweet did not 

state how these observations translated into workplace 

functional limitations, or even that they would. Therefore, the 

ALJ did not err by not considering Dr. Sweet's observations as 

functional limitations. 

B) Dr. Lundblad's Opinion 

Similarly, plaintiff argues that the ALJ should have given 

weight to Dr. Lundblad's statement that plaintiff had "social 

interaction limitations," because they were supported by the 

record. The ALJ can reject a non-examining physician's opinion 

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with reference to specific evidence in the record. Sousa v. 

Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). 

According to the record in this case, plaintiff has "good 

friends and support from his spouse and family," he has "friends 

in Portland and Oregon City that he calls occasionally," and he 

discussed traveling to California to see family and friends. Tr. 

513, 367, 337. The ALJ determined the ability to travel and to 

make and keep friends does not support a finding of social 

interaction limitations. If there is evidence that supports more 

than one rational interpretation, the court must defer to the 

ALJ's decision. Batson v. Comm'r of the Soc. Sec. Admin., 359 

F. 3d 1190, 1193 (9th Cir. 2 0 04. ) Therefore, this court defers to 

the ALJ's evaluation of Dr. Lundblad's opinion. 

III. Plaintiff's RFC 

Plaintiff contends the ALJ erred in assessing plaintiff's 

RFC by not adequately addressing plaintiff's mental activities 

and by not including a limitation due to plaintiff's fatigue. 

This court finds that the ALJ erred in assessing plaintiff's 

mental limitations as set forth in the RFC determination, but he 

did not err in assessing plaintiff's alleged fatigue. 

A) PlaintiffJs Mental Limitations 

Plaintiff argues that the ALJ's RFC statement limiting 

plaintiff to "unskilled work with a [SVP] rating of one or two" 

was insufficient because it failed to include plaintiff's 

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moderate limitations in concentration, persistence, and pace. I 

agree. 

The ALJ is responsible for resolving conflicts in the 

medical testimony and translating the claimant's impairments 

into concrete functional limitations in the RFC. StubbsDanielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 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). 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. 

"An ALJ's assessment of a claimant adequately captures 

restrictions related to concentration, persistence, and pace 

where the assessment is consistent with restrictions identified 

in the medical testimony." Stubbs-Danielson v. Astrue, 539 F.3d 

1169, 1174 (9th Cir. 2008). In Stubbs-Danielson, the court 

upheld an RFC determination that only limited a plaintiff to 

"simple tasks" when the record reflected limitations in pace. 

Id. In contrast, in Brink v. Comm'r of the Soc. Sec. Admin., the 

court held that Stubbs-Danielson does not apply when an ALJ 

makes an actual finding of a moderate limitation in 

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concentration, persistence, and pace. Brink v. Comm'r of the 

Soc. Sec. Admin., 343 Fed. Appx. 211, 212 (9th Cir. 2009). The 

court held that such moderate limitations, when found by the 

ALJ, must be included in the RFC and hypothetical provided to 

the VE. Id.; Lubin v. Comm'r of the Soc. Sec. Admin., 507 Fed. 

Appx. 709, 712 (9th Cir. 2013); Lee v. Colvin, 80 F. Supp. 3d 

1137 (D. Or. Jan. 6, 2015). 

In this case, the ALJ explicitly found that plaintiff has 

moderate limitations in concentration, persistence and pace but 

is capable of maintaining focus on simple tasks and routines. 

Tr. 23, 27. However, in his RFC determination and subsequent 

hypothetical to the VE, the ALJ's only mental limitation was to 

"unskilled work with a [SVP] rating of one or two." 3 Tr. 23, 65-

67. While a SVP measures how long it takes a worker to learn a 

position, it does not address a plaintiff's limitations related 

to concentration, persistence, or pace or other non-exertional 

restrictions. See DOT, Appx. C § II. At best, a SVP of one or 

two corresponds to unskilled work. SSR 00-4p, 2000 WL 1898704 at 

*3. Therefore, the ALJ essentially limited plaintiff to all 

3 A SVP "[i]s defined as the amount of lapsed time required by a 

typical worker to learn the techniques, acquire the information, 

and develop the facility needed for an average performance in a 

specific job-worker situation." U.S. Dep't of Labor, Dictionary 

of Occupational Titles (DOT) available at 1991 WL 688702, Appx. 

C, § II (4th ed. 1991). 

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unskilled work. At issue here is whether ~unskilled work" is an 

adequate translation of plaintiff's mental limitations. 

The Commissioner argues that the ALJ's RFC limitation 

necessarily presumed that Plaintiff retained the ability to 

perform the basic mental demands of competitive, 

remunerative, unskilled work that includes the abilities 

(on a sustained basis) to understand, carry out, and 

remember simple instructions; to respond appropriately to 

supervision, coworkers and usual work situations; and to 

deal with changes in a routine work setting. 

Def.'s Br. 11. 4 However, the ALJ did not make these findings and 

did not present them in the hypothetical presented to the VE. 

Further, when the ALJ specifically asked the VE about the 

capability of a person limited to unskilled work and who is ~off 

task, low focus, low concentration for 10 percent of the 

workday," the VE responded that such a person would be precluded 

from gainful activity. Tr. 66-67. Thus, the VE's response 

demonstrates that unskilled work does not necessarily address 

limitations in concentration, persistence, and pace. Other 

district courts have reached similar conclusions. See Doty v. 

Astrue 2014 WL 1269479, at *3 (D. Or. Mar. 26, 2014) (~Unskilled 

work by itself does not adequately capture plaintiff's 'moderate 

limitation' with regard to concentration, persistence and 

pace."); Oberg v. Colvin, 2014 WL 3695609, at *13-14 (D. Or. 

July 24, 2014) (~a limitation to 'unskilled work,' without more, 

4 Defendant cites to: SSR 85-15, available at 1985 WL 56857, *1; 

SSR .96-8p, available at 1996 WL 374184, *6; and SSR 00-4p, 

available at 2000 WL 1898704, *3. 

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is insufficient to incorporate [plaintiff's] moderate limitation 

on concentration, persistence, or pace.N); Juarez v. Colvin, 

2014 WL 1155408, at *7 (C .. D. Cal. Mar. 20, 2014) ("The ALJ' s RFC 

determination should have included not only the limitation to 

unskilled work but also a moderate limitation in maintaining 

concentration, persistence, and pace.N). 

Therefore, the ALJ erred by failing to incorporate 

plaintiff's full mental limitations in the RFC determination and 

resulting hypotheticals to the VE. 

B. Plaintiff's Fatigue 

Plaintiff argues the ALJ discounted his fatigue symptoms 

because they were a side effect of methadone and because 

stopping or reducing methadone treatment may reduce these 

symptoms. Plaintiff cites to 20 C.F.R. § 416.929(c) (3) (iv) for 

the proposition that "adverse side effects of medication should 

be included in the [RFC.] .N Pl.'s Br. 12-13. However, this 

regulation does not require adverse side effects to be included 

in the RFC. It refers to only "evidence the Commissioner should 

consider in determining how a claimant's symptoms may affect her 

capacity to function under the guidelines.N Vasquez v. Astrue, 

572 F.3d 586, 592 (9th Cir. 2008). In other words, it requires 

the ALJ to take consider side effects when making an RFC 

determination. 

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In this case, the ALJ appropriately considered plaintiff's 

fatigue and properly determined it was under control and should 

not be included in the RFC. The ALJ noted that in 2010, 

plaintiff was able to sleep through the night without 

interruption when using a CPAP machine and Ambien. Tr. 19. In 

2011, plaintiff again had trouble with daytime sleepiness but 

was prescribed Adderall which improved his daytime fatigue. Tr. 

19-20. These statements demonstrate that the ALJ did in fact 

consider plaintiff's fatigue and determined that it was under 

control. Therefore the ALJ did not err by not including a 

fatigue limitation in the RFC. 

IV. Vocational Expert 

"If a vocational expert's hypothetical does not reflect all 

the claimant's limitations, then the ... testimony has no 

evidentiary value." Matthews v. Shalala, 10 F.3d 678, 681 (9th 

Cir. 1993) (citations and internal quotation marks omitted). 

Because the ALJ did not include all of plaintiff's mental 

limitations in the RFC and subsequent hypothetical to the VE, 

the VE's testimony cannot support the ALJ's findings. Therefore, 

plaintiff's arguments regarding the VE's testimony are moot. 

V. Lay Witness Statements· 

Finally, plaintiff asserts that the ALJ neglected to 

provide a germane reason to reject the testimony of plaintiff's 

wife, Patty Fleener. The ALJ can reject the testimony of lay 

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witnesses only by providing reasons germane to each witness. 

Smolen v. Chater, 80 F.3d 1273, 1288(9th Cir. 1996). 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). 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). However, lay 

witness testimony may not be rejected just because the lay 

witness is an "interested party." Valentine v. Comm'r Soc. Sec. 

Admin., 574 F.3d at 694. 

Here, the ALJ gave no weight to Ms. Fleener's statements 

because "she appears to have potential secondary gain issues." 

Tr. 27. The ALJ cannot rely on characteristics common to all 

spouses as reason to discount .a spouse's testimony. Valentine v. 

Comm'r Soc. Sec. Admin., 574 F.3d at 694. Therefore, Ms. 

Fleener's "potential secondary gain issue" is not a germane 

reason to discredit her testimony. 

However, in this case, the error was harmless because Ms. 

Fleener's statements were similar to plaintiff's, which the ALJ 

rejected. An ALJ's failure to articulate a germane reason is 

nonetheless harmless if that "testimony does not describe any 

limitations not already described by the claimant, and the ALJ's 

well-supported reasons for rejecting the claimant's testimony 

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apply equally well to the lay witness testimony." Molina v. 

Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012). 

In this case, Ms. Fleener submitted a third-party function 

report on February 16, 2010. Tr. 303-10. In this report, Ms. 

Fleener stated plaintiff had difficulties with sleeping, 

personal care, depression,. mental illness, back pain, and 

concentration. Tr. 303-10. She also mentions that plaintiff "is 

schizoaffective with depression and has psychotic episodes with. 

chronic back pain with restriction." Tr. 310. This testimony is 

generally similar to plaintiff's own testimony and allegations 

in his function report. Tr. 312-18. Thus, even assuming the ALJ 

failed to provide a germane reason to discount Ms. Fleener, such 

an error was harmless. 

CONCLUSION 

For these reasons, the Commissioner's final decision is 

REVERSED and this matter is REMANDED for further proceedings. 

Upon remand, the ALJ shall incorporate accepted mental 

limitations into plaintiff's RFC and into the relevant 

hypothetical questions posed to the VE. 

IT IS SO ORDERED. 

DATED this ;si;}J of September, 2015. 

Ann Aiken 

United States District Judge 

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