IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

STEVEN WERNECKE, 

Plaintiff, 

v. 

CAROLYNW. COLVIN, 

Acting Commissioner of Social Security, 

) 

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) 

) 

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) 

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) 

) 

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Defendant. 

~~~~~~~~~~~~~~~~) 

JONES, J., 

Case No. 3:13-cv-00739-JO 

OPINION AND ORDER 

Plaintiff Steven Wernecke appeals the Commissioner's decision denying his applications 

for disability insurance benefits and supplemental security income under Titles II and XVI of the 

Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the 

Commissioner's decision. 

PRIOR PROCEEDINGS 

Wernecke filed his applications in August 2009, initially alleging disability beginning on 

April 1, 2005. Adm in. R. 13. He alleged he could not work due to a learning disorder and 

mental health problems. Admin. R. 251. At the administrative hearing, Wernecke amended his 

alleged onset date to January 1, 2009. Admin. R. 13. 

The Administrative Law Judge (ALJ) applied the sequential disability dete1mination 

process described in 20 C.F.R. §§ 404.1520 and 416.920. See Bowen v. Yuckert, 482 U.S. 137, 

140 (1987). At step one, the ALJ found that Wernecke had not engaged in substantial gainful 

1 Opinion and Order 

Case 3:13-cv-00739-JO Document 21 Filed 07/02/14 Page 1 of 11
activity since his amended alleged disability onset date. At step two, he found that Wernecke 

had severe impairments, specifically substance abuse (methamphetamine and cannabis), 

borderline intellectual functioning, a learning disability, an anxiety disorder and attention deficit 

hyperactivity disorder. Ad min. R. 15. At step three, the ALJ found Wernecke did not have an 

impaitment or combination of impairments that met or equaled the requirements of a listed 

impaitment. Admin. R. 16. The ALJ found that Wernecke's complaints concerning the 

intensity, persistence and limiting effects of his symptoms were not credible. Admin R. 18, 23-

25. He also determined that Wernecke had the residual functional capacity (RFC) to perfotm 

medium work, except that Wernecke would be limited to simple repetitive work. Wernecke 

could not be required to do extensive writing or more than simple math and could not have more 

than occasional interaction with coworkers, the public and his supervisor, from whom he should 

receive verbal work instructions. Admin. R. 17 

The VE testified that a person having Wernecke's age, education, work experience and 

RFC could perform jobs that exist in significant numbers in the national economy such as night 

cleaner, dishwasher/kitchen helper and addresser. Admin. R. 82-85. The ALJ concluded that 

Wernecke was not disabled as defined by the Social Security Act. Admin. R. 26. 

STANDARD OF REVIEW 

The district court must affitm the Commissioner's decision if it is based on proper legal 

standards and the findings of fact are supp01ied by substantial evidence in the record as a whole. 

42 U.S.C. § 405(g); Batson v. Comm 'r of Soc. Sec. Admin. 359 F.3d 1190, 1193 (9th Cir. 2004). 

Under this standard, the Commissioner's factual findings must be upheld if supported by 

inferences reasonably drawn from the record, even if evidence exists to supp01i another rational 

interpretation. Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1039-40 (9th Cir. 1995). 

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DISCUSSION 

Wernecke contends the ALJ did not properly evaluate the opinions of the medical 

experts. Specifically, he argues the ALJ etTed in the relative "weight" given the opinions of the 

treating psychiatrist and various examining psychologists. Wernecke also claims the ALJ 

committed reversible etTor by failing to consider Wernecke' s inability to sustain employment for 

longer than brief periods. 

A. Medical Opinions 

1. Treating physician's opinions 

Wernecke argues that the ALJ elTed by giving "little weight" to the treating psychiatrist 

Dr. Suckow' s opinion because the ALJ enoneously concluded that Dr. Suckow was a nontreating physician. Wernecke misinterprets the ALJ' s decision. In his decision, the ALJ 

acknowledged several times that Dr. Suckow was Wernecke's treating psychiatrist. The ALJ 

noted that "[o]n February 15, 2011, the claimant's treating psychiatrist, Joel Suckow, MD ... " 

Admin. R. 20. He refetTed to "(GAF) scores indicated by his treatment provider" citing Dr. 

Suckow's treatment notes. Admin. R. 20. Wernecke points to the sentence in the ALJ's opinion 

in which the ALJ explained his reason for giving "great weight" to Dr. Suckow's diagnostic 

assessment, but "little weight" to Dr. Suckow's assessment of overall functioning: "[Dr. 

Suckow's overall functioning assessment] is inconsistent with the assessment of other nontreating providers, the claimant's scores on objective cognitive testing as well as the claimant's 

modest activities of daily living." In this sentence, the ALJ is not saying Dr. Suckow is a nontreating physician, he is only explaining that he discounted a portion of Dr. Suckow's assessment 

because it was inconsistent with the assessment of other medical personal who were non-treating 

3 Opinion and Order 

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physicians and who had provided reports about Wernecke. The ALJ did not conclude Dr. 

Suckow was a non-treating physician. 

Wernecke next argues that because Dr. Suckow was his treating physician, the ALJ cannot 

reject Dr. Suckow's Global Assessment of Function (GAF), without providing specific and 

legitimate reasons for doing so that are supported by substantial evidence in the record. The ALJ 

must consider all medical opinion evidence. 20 C.F.R. § 404.1527(b ). Although not bound by 

an expert medical opinion on the ultimate question of disability, the ALJ must provide "specific 

and legitimate" reasons for rejecting the opinion of a treating physician. Lester v. Chafer, 81 

F .3d 821, 830-31 (9th Cir.1995). "The ALJ can meet this burden by setting out a detailed and 

thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation 

thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)(citation 

omitted). Here, the ALJ's reasons for giving "little weight" to Dr. Suckow's GAF were threefold: (1) the GAF was inconsistent with the GAF scores of other medical providers; (2) the GAF 

was inconsistent with claimant's scores on objective cognitive testing; and, (3) the GAF was 

inconsistent with claimant's modest activities of daily life. Wernecke takes issue with each of 

the reasons. 

In support of his decision, the ALJ set out a detailed and thorough summary of the facts 

and clinical evidence. Admin. R. 18-23. He reviewed Wernecke's education, work experience, 

family life and medical history. He described claimant's psychological and physical medical 

history, including anxiety, depression, anger issues, and abdominal pain. The medical record 

contained six GAF1 

scores: two provided by Dr. Suckow, who assigned Wernecke GAF scores 

of 36-44 and 45 (Admin. R. 395, 652), two from non-treating physicians, Drs. Dietlein and 

1 GAF describes an individual's psychological, social and occupational functioning, using a single measure. The 

assessment is made based either on the individual's functional impairments or his symptoms. American Psychiatric 

Ass 'n, Diagnostic & Statistical Manual oflvfental Disorders 32-34 (41

h ed. Text Revision 2000) (DSM IV-TR). 

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Spendal, who assigned GAF scores of SS (Admin. R. 3S6, 417), and two from the Polk County 

Mental Health records indicating a GAF score of SS (Admin. R. S73, S76). The ALJ concluded 

that Dr. Suckow's GAF scores were inconsistent with the GAF scores of other medical providers 

and discounted the opinion on that basis. 

In addition, the ALJ discounted Dr. Suckow' s GAF scores because they were inconsistent 

with the results of the objective tests Wernecke took. The ALJ listed the objective tests 

Wernecke took including the Wechsler Adult Intelligence Scale - 3rd Edition (WAIS-III), 

Wechsler Memory Scales, Third Edition (WMS-III), Wechsler Individual Achievement Test 

(WIAT), Wender Utah Rating Scales, Self Version (WURS), Adult Attention deficit Disorder 

Evaluation Scales, SelfVersion (A-ADDES). The ALJ noted that Wernecke's scores on these 

cognitive tests ranged from low average to the borderline area, but no worse than borderline 

intellectual functioning. Admin. R. 19. The ALJ acknowledged that claimant's scores on the 

WURS and A-ADDES combined with Werncke's assertion that he could not sit still to view a 

thirty-minute television show, suggested an ADHD diagnosis. However, the ALJ remarked that 

Wernecke completed detailed cognitive testing twice, and "although he required oral directions 

and instructions repeated at times, the claimant was able to sit tlu·ough the complete battery of 

cognitive tests." Admin. R. 19. 

Finally, the ALJ discounted Dr. Suckow's GAF scores because they were inconsistent 

with Wernecke's ability to engage in modest activities of daily living. The low GAF scores 

provided by Dr. Suckow signify a patient with impairment in reality testing or communication or 

serious symptoms in several areas, such as work, school, family relations, judgment or mood. 

American Psychiatric Ass 'n, Diagnostic & Statistical },;fanual of Mental Disorders 32-34 (4th ed. 

Text Revision 2000) (DSM IV-TR). Wernecke's activities do not suggest such impairment or 

S Opinion and Order 

Case 3:13-cv-00739-JO Document 21 Filed 07/02/14 Page 5 of 11
symptoms and the ALJ found that Wernecke had only mild restrictions in daily living. The ALJ 

noted that Wernecke managed his personal care needs independently and helped care for his wife 

and children. Wernecke enjoyed working on cars and cooking; he cleaned the kitchen, did 

laundry, mowed the lawn, took out the trash, went to appointments and exercised on a daily 

basis. In social functioning, the ALJ acknowledged Wernecke's difficulties getting along with 

coworkers, his anger issues resulting in his wife getting a restraining order against him, and his 

problems with memory, task completion, concentration, understanding and following 

instructions. The ALJ concluded that Dr. Suckow's low GAF scores were inconsistent with 

Wernekce's ability to engage in the activities of daily living. 

The ALJ set out a detailed and thorough sununary of the facts and conflicting evidence. 

He provided specific and legitimate reasons to reject Dr. Suckow's low GAF scores on the bases 

of inconsistencies with other medical providers' GAF scores, with objective test results and with 

Wernecke's ability to engage in the activities of daily living. Tommasetti v. Astrue, 533 F.3d 

1035, 1038 (91

h Cir. 2008). The ALJ reasonably evaluated and weighed the treating doctor's 

medical evidence and opinion. He provided specific and legitimate reasons for discounting Dr. 

Suckow' s GAF that were supported by substantial evidence. 

2. The other medical opinions 

Wernecke contends that the ALJ en-ed in the weight given to the opinions of Dr. Nick 

Dietlein, Dr. Bill Hennings, Dr. Dorothy Anderson, Dr. Richard Frederick, Dr. Maribeth 

Kallemeyn and Dr. Jill Spendal. Specifically, he argues that the ALJ gave too much weight to 

the opinions of the examining psychologist Dietlein and the state agency examiners, Hennings 

and Anderson, but not enough weight to the opinions of examining psychologists Frederick, 

Kallemeyn, and Spendal. While I review each of Wernecke's contentions, at essence they 

6 Opinion and Order 

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involve Wernecke's displeasure that the ALJ did not adopt Wernecke's opinion of the evidence. 

"Where evidence is susceptible to more than one rational interpretation, it is the ALJ's 

conclusion that must be upheld." Burch v. Barnhart, 400 F.3d 676, 679 (91

h Cir. 2005). 

a. Allegations of too much weight given 

Wernecke complains that Dr. Dietlein examined him in 2006, more than two-and-onehalf years before the amended alleged onset date, and therefore his opinion is not relevant to 

Wernecke's functioning in 2009 and thereafter. Furthermore, he argues Dr. Dietlein's opinion is 

discredited because he did not perfo1m foimalized cognitive functioning tests on Wernecke and 

the GAF score of 55 contradicted Dr. Suckow's GAF score. The record shows that Dr. Dietlein 

conducted a psycho-diagnostic interview and concluded Wernecke had ADHD, a learning 

disorder, and gave him a GAF of 55. Admin. R. 358. Dr. Dietlein fuiiher concluded that 

Wernecke could understand and remember instructions, was able to sustain concentration and 

engage successfully in social interactions. Id. The ALJ noted that Dr. Dietlein's GAF score was 

consistent with the majority of the GAFs in the record and consistent with Wernecke's mental 

status examination and work history. Admin. R. 20. Finally, the ALJ observed that Wernecke' 

subsequent behavior corroborated Dr. Dietlein's opinion. Id. 

While it is true that Dr. Dietlein's report was issued more than two-and-one-half years 

before the amended alleged onset date, Wemecke's original alleged onset date of2005 was 

amended at the hearing only because Wernecke had significant gainful activity through 2008. 

The timing of Dr. Dietlein's opinion therefore has more bearing on Wernecke's credibility than 

on the validity of the opinion. At the time of Dr. Dietlein's assessment Wernecke indicated he 

was unable to work. However, over the next two years, Wernecke continued to work and in 

2008, worked at a nearly substantial gainful activity level. Id. Accordingly, the ALJ properly 

7 Opinion and Order 

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concluded that Dr. Dietlein's opinion offered a reasonably accurate picture of Wernecke's 

cunent condition. The ALJ provided specific and legitimate reasons for giving "significant 

weight" to Dr. Dietlein's opinion, even though it contradicted the treating physician's 

assessment. 

Wernecke next argues that the ALJ erred in giving "significant weight" to the opinion of 

Dr. Hennings, a state agency examiner. Wernecke contends that Dr. Hennings' opinion, like Dr. 

Dietlein's opinion, dates from 2006 and is not relevant. Wernecke also argues that Dr. 

Hennings, a non-treating and non-examining medical source, based his opinion on incomplete 

records because the 2009 evaluations ofDrs. Frederick, Spendal, Kallemeyn and Suckow were 

not extant and could not be reviewed. For these reasons, he argues that Dr. Hennings opinion is 

not entitled to "significant weight." 

After a thorough review of Dr. Hennings repci1t, the ALJ set out the reasons for giving 

"significant weight" to Hennings' opinion. He found Hennings' assessment consistent with the 

overall medical record, including the results of objective testing and the subsequent findings of 

Dr. Anderson. The ALJ also found Hennings' assessment consistent with Wernecke's education 

history, drug use, and sho1t-tempered self-description. In addition, Hennings' opinion was 

affamed by Dr. Boyd in 2010. Admin. R. 575. The ALJ provided specific and legitimate 

reasons supported by evidence for giving "significant weight" to Hennings' opinion. 

Similarly, the ALJ set out specific and legitimate reasons supp01ting the weight he gave 

to the opinion of Dr. Anderson. Wernecke complains that the opinion was based on a review of 

incomplete medical records. The ALJ gave "great weight" to Dr. Anderson's 2009 assessment, 

in which she opined that Wernecke had ADHD, borderline intellectual functioning and a mood 

disorder. He had mild restrictions of activities of daily living but was capable of performing 

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simple and routine tasks when .instructions were given to him verbally. Dr. Anderson's opinion 

was also reviewed and affirmed by Dr. Boyd in 2010. Admin. R. 575. As with Dr. Hennings' 

opinion, the ALJ found Anderson's opinion consistent with the outcomes of the objective testing, 

and the claimant's educational and drug use history. 

b. Allegations of too little weight given 

Wernekce objects to the weight given the opinion of Dr. Frederick. Wernecke was 

refen-ed to Dr. Frederick by Wernecke's Oregon State TANF (Temporary Assistance for Needy 

Families) caseworker for an evaluation to determine if Wernecke had a learning disability. Dr. 

Frederick administered several standardized tests as a part of the psycho-educational assessment 

and concluded that claimant "meets eligibility requirements for a learning disability ... " Admin. 

R. 390. The ALJ gave "some weight" to Dr. Frederick's opinion as evidenced by the ALJ's step 

two findings, which included a "learning disability." Admin. R. 15. Later in his opinion, the 

ALJ commented that Dr. Frederick's assessment was done in the context of a state rather than a 

federal disability assessment. Wernecke's misinterprets the ALJ's comment as a basis to 

discount the weight given to Dr. Frederick's opinion. Rather, the ALJ was merely distinguishing 

the state assessment from a DDS evaluation. The ALJ agreed with Dr. Frederick's conclusions, 

found them to be consistent with other medical opinion and the claimant's educational history, 

and adopted them. 

Next, Wernecke claims the ALJ erred in giving only "some weight" to the opinion of Dr. 

Kallemeyn. In his brief, Wernecke sets out three of Dr. Kallemeyn's findings: that Wernecke 

was not malingering; that he put foith adequate effort during the testing; and, that his test scores 

could be mildly elevated due to practice effects. However, Wernecke does not allege that the 

ALJ discounted or dismissed these findings. Indeed, Wernecke fails to identify any specific 

9 Opinion and Order 

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finding the ALJ discounted or dismissed. I find no error and Wernecke failed to specify an error 

made by the ALJ. See Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 n.2 

(9111 Cir. 2008). 

Wernecke also argues that the ALJ's reasons for discounting the opinion of Dr. Spendal 

do not constitute substantial evidence. Dr. Spendal opined that numerous baniers exist that 

block Wernecke's road to employment, including ADHD, depression, anxiety and learning 

disabilities. Dr. Spendal concluded: "It is not believed that [Wernecke] will be able to work at 

this time." In giving Dr. Spendal's opinions "little weight," the ALJ provided three reasons: (1) 

Dr. Spendal appeared to be unaware ofWernecke's significant past drng problem and marijuana 

usage, (2) her assessment was inconsistent with the GAF score (55) she assigned; and (3) her 

assessment was inconsistent with the treating physician's, Dr. Suckow's, opinion regarding 

Wernecke's ability to work. The ALJ provided specific and legitimate reasons to give little 

weight to Dr. Spendal's opinion. 

B. RFC determination 

. Wernecke contends the ALJ failed to consider his inability to sustain employment on a 

regular and continuing basis. The ALJ' s decision reflects that he considered the evidence of 

Wernecke's work history. Wernecke was tenninated from work requiring reading and writing 

and the ALJ removed such occupations from Wernecke's RFC. Indeed, the ALJ considered all 

the evidence of functional limitations and reached an RFC assessment based on the limitations 

supported by the record as a whole. The ALJ was not required to incorporate additional 

limitations he found unsuppmied by the record. Batson, 359 F3d at 1197-98; Osenbrock v. 

Apfel, 240 F3d 1157, 1163-65 (9th Cir 2001); lvfagallanes v. Bowen, 881 F2d 747, 756-57 (9th 

Cir 1989). Wernecke's argument regarding his alleged inability to sustain employment fails 

10 Opinion and Order 

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because he did not meet his burden of proving such an impailment. See Mayes v. 1Vfassanari, 

262 F.3d 963, 968 (9th Cir. 2001) (Claimant has the burden of proving all medically 

dete1minable impailments and their effect on the ability to work on a sustained basis). The ALJ 

reasonably determined Wemecke's RFC and supp011ed his determination with substantial 

evidence from the record. 

CONCLUSION 

The ALJ evaluation of the medical opinions in this case was based on substantial 

evidence and he gave specific and legitimate reasons for adopting or rejecting the opinions. The 

ALJ also properly evaluated claimant's RFC and supported his decision with substantial 

evidence from the record. For these reason, the Commissioner's final decision is AFFIRMED. 

DATED this ;\u9 day of July, 2014. 

11 Opinion and Order 

Robeyt'E. Jo)les, Senior Judge 

Unit6d.-Srai~s District Comt 

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