PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARTIN O. TADLOCK,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant,

Case No. 6:15-cv-0770-SI

OPINION AND ORDER

Drew L. Johnson, OSB 752000, 170 Valley River Dr., Eugene, OR 97401; John E. Haapala, Jr., 

OSB 061739, 410 E. 10th Ave. Ste. 240, Eugene, OR, 97401. Of Attorneys for Plaintiff.

Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States 

Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, 

Suite 600, Portland, OR 97204-2902; Martha A. Boden, Special Assistant United States 

Attorney, Office of the General Counsel, Social Security Administration, 701 Fifth Avenue, 

Suite 2900 M/S 221A, Seattle, WA 98104. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Mr. Martin O. Tadlock (“Plaintiff”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”) under 42 U.S.C.

§ 405(g) denying his application for Disability Insurance Benefits (“DIB”). For the following 

reasons, the Commissioner’s decision is AFFIRMED.

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PAGE 2 – OPINION AND ORDER

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper 

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means 

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th 

Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 

1193 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 

F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 

Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the 

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 

F.3d at 1226.

BACKGROUND

A. Plaintiff’s Application

Plaintiff received disability benefits from the Social Security Administration from 

February 2006 to September 2007. AR 15. The Commissioner found that Plaintiff’s medical 

improvement resulted in a change of status to not disabled as of September 4, 2007. Id. Plaintiff

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again filed for DIB on February 7, 2011, alleging disability beginning on August 27, 2010. 

AR 224. Plaintiff was born on January 25, 1966, and was 44 years old on the alleged onset date. 

Id. He alleges disability due to post-traumatic stress disorder (“PTSD”), adjustment disorder with 

depressed mood, paranoid personality disorder, chronic prostatitis, hypertension, and headaches. 

AR 886-87. The Commissioner denied Plaintiff’s application initially and upon reconsideration; 

thereafter, he requested a hearing before an Administrative Law Judge (“ALJ”). AR 108-09, 142. 

Plaintiff appeared at an administrative hearing before ALJ Marilyn Maurer on March 13, 2013, 

and again at a supplemental hearing on August 6, 2013. AR 38, 70. The ALJ found Plaintiff not 

disabled from August 27, 2010 through the date of her decision. AR 26. On March 6, 2015, the 

Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final 

decision of the Commissioner. AR 1. Plaintiff now seeks judicial review of that decision. 

Additionally, the Veteran’s Administration (“VA”) found Plaintiff entitled to individual 

unemployability as of April 16, 2010. AR 322. The VA rated Plaintiff as 30 percent disabled by 

his prostatitis and 50 percent disabled from depression. Id.

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which . . . has lasted or 

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. 

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act.” 

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is 

potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential 

process asks the following series of questions:

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1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An 

impairment or combination of impairments is “severe” if it significantly 

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, 

this impairment must have lasted or be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the 

claimant does not have a severe impairment, the analysis ends. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe 

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis continues. At that point, the ALJ must 

evaluate medical and other relevant evidence to assess and determine the 

claimant’s “residual functional capacity” (“RFC”). This is an assessment 

of work-related activities that the claimant may still perform on a regular 

and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis 

proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or 

she is disabled. Id.

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See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert 482 U.S. at 140-41. The

Commissioner bears the burden of proof at step five. Tackett 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy, “taking into consideration the claimant’s residual functional 

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 

(describing “work which exists in the national economy”). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante 262 F.3d at 953-54; 

Tackett 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ began her opinion by noting that Plaintiff met the insured status requirements of 

the Social Security Act through September 30, 2015. AR 18. Because Plaintiff had been found 

disabled and subsequently not disabled in previous disability determinations, the ALJ considered 

applying the Chavez presumption of continuing non-disability. See Chavez v. Bowen, 844 

F.2d 691, 693-94 (1988). The ALJ ultimately concluded that applying Chavez would not be 

helpful because the previous ALJ did not assign Plaintiff a Residual Functional Capacity 

(“RFC”). AR 16. Without an RFC, it would be impossible to determine any degree of changed 

circumstances after the original closed period of disability. Id. 

The ALJ applied the sequential evaluation process. AR 18-26. At step one, the ALJ found 

that Plaintiff has not engaged in substantial gainful activity since the alleged onset date of 

August 27, 2010. AR 18. At step two, the ALJ found Plaintiff had two severe impairments: 

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(1) chronic prostatitis and pelvic-floor pain; and (2) adjustment disorder with depressed mood 

secondary to chronic disease. Id. At step three, the ALJ found Plaintiff did not have an 

impairment or combination of impairments that met or equaled one of the specific impairments 

listed in the regulations. AR 18-20. 

At step three, the ALJ determined Plaintiff had the RFC to:

[P]erform a range of medium work as defined in 20 CFR 

§ 404.1567(c) with the exceptions noted. He can sit, stand, and 

walk for up to 6 hours each in an 8 hour work day, for a combined 

total of 8 hours of activity. Due to pain symptoms attributable to 

prostatitis, he must be permitted to sit or stand at will while still 

performing essential work. He can understand, remember, and 

carry out simple instructions that do not involve interacting with 

the public or teamwork assignments. 

AR 20.

At step four, the ALJ found Plaintiff was unable to perform his past relevant work as a 

deputy sheriff and software user support analyst. AR 25. The ALJ called a vocational expert 

(“VE”) to testify at the hearing. AR 58-67. At step five, the ALJ found that based on the 

testimony of the VE, there are jobs existing in significant numbers in the national economy that 

Plaintiff can perform. AR 25. These jobs include stores clerk, material handler, and general 

helper. AR 25-26.Therefore, the ALJ found Plaintiff not disabled. AR 26. 

DISCUSSION

Plaintiff seeks review of the ALJ’s determination. Plaintiff argues the ALJ erred by: 

(A) finding that Plaintiff’s subjective symptom testimony was not fully credible; and 

(B) improperly discounting or ignoring the medical evidence of treating physicians Drs. Danny

Whitehead, Kenneth Walker, and Christopher Bolz.

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A. Plaintiff’s Credibility

There is a two-step process for evaluating the credibility of a claimant’s own testimony 

about the severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 

F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must determine whether the claimant has presented 

objective medical evidence of an underlying impairment ‘which could reasonably be expected to 

produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 

Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When 

doing so, “the claimant need not show that her impairment could reasonably be expected to cause 

the severity of the symptom she has alleged; she need only show that it could reasonably have 

caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the 

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting 

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must 

state which pain testimony is not credible and what evidence suggests the complaints are not 

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons 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) (citing

Bunnell, 947 F.2d at 345-46).

The ALJ may consider objective medical evidence and the claimant’s treatment history, 

as well as the claimant’s daily activities, work record, and observations of physicians and third 

parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d 

at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location, 

duration, frequency, and intensity of the individual’s pain or other symptoms; factors that 

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precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any 

medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other 

than medication, the individual receives or has received for relief of pain or other symptoms; and 

any measures other than treatment the individual uses or has used to relieve pain or other 

symptoms. See SSR 16-3p, available at 2016 WL 1119029. The ALJ may not, however, make a 

negative credibility finding “solely because” the claimant’s symptom testimony “is not 

substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883.

Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary 

techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 

statements concerning the symptoms, . . . other testimony by the claimant that appears less than 

candid[,] [and] unexplained or inadequately explained failure to seek treatment or to follow a 

prescribed course of treatment . . . .” Smolen, 80 F.3d at 1284. The ALJ’s credibility decision 

may be upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s testimony 

are upheld. See Batson, 359 F.3d at 1197.

Plaintiff states he experiences two to eight episodes of prostatitis per year, with each 

episode lasting up to six weeks. AR 299. During an episode, Plaintiff alleges fevers, chills, pain, 

exhaustion, flu-like symptoms, difficulty concentrating and remembering, and bladder 

incontinence. AR 299-300. He states that pain diminishes his ability to walk, stand, or sit for any 

period of time. AR 301-303. He also alleges constant pain in his prostate and pelvic area. 

AR 299. 

The ALJ considered Plaintiff’s subjective statements of disability, but found them not 

credible. AR 22-23. For example, the ALJ explained that during periods of Plaintiff’s supposed 

incapacity, Plaintiff’s objective medical findings were either normal or contradicted his 

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assertions. AR 21-22. The ALJ questioned Plaintiff’s ability to sit for thirty hours in a plane 

while travelling to Israel for a ten-day vacation during a period of purported incapacity. AR 21. 

The ALJ further noted that Plaintiff refused to follow his treating doctor’s prescribed treatment 

in favor of unorthodox and non-sanctioned treatments. AR 22. The ALJ also found Plaintiff was 

able to go back to work following the determination in 2007 that he was no longer disabled, 

despite the alleged effects of his chronic conditions. Id. Further, the ALJ documented Plaintiff’s 

tendency to make dramatic and factually false statements to medical personnel and the ALJ 

expressed concern about a potential sham transaction by Plaintiff involving the transfer of his 

home-based software business to his wife. AR 22-23. 

Plaintiff does not offer any rebuttal to the ALJ’s conclusions regarding his travel history, 

the objective findings conflicting with his statements, his refusal to follow his treating doctor’s 

course of treatment, or his ability to work from 2007 through 2010. Plaintiff challenges only the 

ALJ’s characterization that Plaintiff made overly dramatic statements and that the sale of his 

business was a sham transaction. Because Plaintiff did not object to or raise any arguments 

against the ALJ’s other credibility findings, Plaintiff has waived his right to contest those issues. 

See Gunn v. Colvin, 581 F. App’x 691, 691 (9th Cir. 2014) (noting that the court “reviews only 

issues argued specifically in a party’s opening brief”); Colter v. Colvin, 554 F. App’x 594, 595 

(9th Cir. 2014) (“Issues not discussed in the body of the opening brief are likewise waived.”);

Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (noting that the 

court “ordinarily will not consider matters on appeal that are not specifically and distinctly 

argued in an appellant's opening brief”). Therefore, the Court must determine whether the 

uncontested reasons outlined above constitute clear and convincing reasons to doubt Plaintiff’s 

credibility. 

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Testimony from physicians and third parties about the nature, severity, and effect of the 

symptoms complained of can provide a clear and convincing reason to doubt Plaintiff’s 

credibility. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Plaintiff states he is 

“absolutely unable to function” when allegedly suffering the effects of prostatitis. AR 58. As the 

ALJ notes, Dr. George Decherd, a consulting urologist, stated he had never seen a case of 

prostatitis manifest itself in the manner claimed by Plaintiff. AR 22, 23, 844. Dr. Decherd’s 

statements are testimony from a physician regarding the nature, severity, and effect of Plaintiff’s 

purported symptoms. Therefore, Dr. Decherd’s statements constitute a clear and convincing 

reason to doubt Plaintiff’s credibility cited by the ALJ. 

Inconsistencies between Plaintiff’s testimony and his conduct can provide a clear and 

convincing reason to doubt Plaintiff’s credibility. Light, 119 F.3d at 792. The ALJ contrasted 

Plaintiff’s claim that he sometimes must be hospitalized for his condition with the documented 

evidence of only a single hospitalization during the relevant period. AR 21. Additionally, the 

ALJ noted Plaintiff was able to travel to Israel on a ten-day trip, sitting for a thirty-hour flight, 

without apparent difficulty during an alleged infectious episode. Id. These instances show 

inconsistencies between Plaintiff’s testimony and conduct, another clear and convincing reason 

to doubt Plaintiff’s credibility. 

Medical noncompliance, without adequate explanation, also may provide a clear and 

convincing reason to doubt Plaintiff’s credibility. Lingenfelter, 504 F.3d at 1040. As the ALJ 

noted, Plaintiff did not follow the course of treatment prescribed by his treating physician, 

Dr. Roger McKimmy. AR 22, 572. Dr. McKimmy recommended that Plaintiff complete a course 

of physical therapy and take alpha blockers, because the doctor doubted Plaintiff suffered from 

prostatitis. AR 569, 572. Instead, Plaintiff chose to see another physician who offered alternative, 

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non-sanctioned therapies. AR 572. Such medical noncompliance is a valid rationale for doubting 

Plaintiff’s credibility. 

Plaintiff’s ability to work concurrently with his condition in the years preceding his 

disability onset date, without evidence of his condition worsening, also provides a valid reason to 

doubt his credibility. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th

Cir. 1999). Plaintiff worked from 2007, after being declared not disabled, until 2010 as a 

software database programmer while allegedly suffering from prostatitis. AR 98, 322, 880-82. 

Plaintiff’s objective medical tests from 2010 onwards do not document a significant change in 

his condition from 2007 to 2010.

The issues outlined above were uncontested by Plaintiff and provide clear and convincing 

reasons to support the ALJ’s credibility finding. Because the ALJ provided clear and convincing 

reasons to discount Plaintiff’s credibility that were not contested by Plaintiff, the Court need not 

address the two reasons provided that were contested by Plaintiff. 

B. Medical Opinions

The ALJ is responsible for resolving conflicts in the medical record, including conflicts 

among physicians’ opinions. Carmickle, 533 F.3d at 1164. The Ninth Circuit distinguishes 

between the opinions of three types of physicians: treating physicians, examining physicians, and 

non-examining physicians. Generally, “a treating physician’s opinion carries more weight than 

an examining physician’s, and an examining physician’s opinion carries more weight than a 

reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). If a treating 

physician’s opinion is supported by medically acceptable techniques and is not inconsistent with 

other substantial evidence in the record, the treating physician’s opinion is given controlling 

weight. Id.; see also 20 C.F.R. § 404.1527(d)(2). A treating doctor’s opinion that is not 

contradicted by the opinion of another physician can be rejected only for “clear and convincing” 

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reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor’s 

opinion is contradicted by the opinion of another physician, the ALJ must provide “specific and 

legitimate reasons” for discrediting the treating doctor’s opinion. Id.

In addition, the ALJ generally must accord greater weight to the opinion of an examining 

physician than that of a non-examining physician. Orn, 495 F.3d at 631. As is the case with the 

opinion of a treating physician, the ALJ must provide “clear and convincing” reasons for 

rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502, 

506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another 

physician’s opinion, the ALJ must provide “specific, legitimate reasons” for discrediting the 

examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may 

reject an examining, non-treating physician’s opinion “in favor of a nonexamining, nontreating 

physician when he gives specific, legitimate reasons for doing so, and those reasons are 

supported by substantial record evidence.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995), 

as amended (Oct. 23, 1995). 

Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance 

on a claimant’s discredited subjective complaints, inconsistency with medical records, 

inconsistency with a claimant’s testimony, and inconsistency with a claimant’s daily activities. 

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1042-43. An 

ALJ effectively rejects an opinion when he or she ignores it. Smolen, 80 F.3d at 1286.

Plaintiff challenges the ALJ’s discounting or ignoring the medical evidence from 

Drs. Whitehead, Welker, and Bolz. Each is addressed in turn.

1. Medical Opinion of Dr. Whitehead

The ALJ did not err in according Dr. Whitehead’s opinion little weight. Dr. Whitehead 

was Plaintiff’s treating physician during portions of 2011 and 2012. AR 598, 621. In 2011, 

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Dr. Whitehead diagnosed Plaintiff with chronic prostatitis, hypertension, impaired hearing, 

myopia, gastro-intestinal reflux disease, hypogonadism, PTSD, and history of traumatic brain 

injury. AR 857. In June 2012, Dr. Whitehead completed a “Physical Capacities Evaluation” for 

Plaintiff, wherein Dr. Whitehead concluded that Plaintiff could sit for a total of four hours, with 

one hour of standing or walking, in an eight-hour workday. AR 652. Dr. Whitehead further 

limited Plaintiff to two hours of sitting and one hour of standing at one time. Id. He additionally

limited Plaintiff to lifting and carrying up to nine pounds occasionally. Id. 

The ALJ gave little weight to Dr. Whitehead’s assessment of Plaintiff’s capabilities. 

AR 23. The ALJ found Dr. Whitehead’s assessment was inconsistent with other medical sources 

of record, and not supported by objective medical evidence. Id. Plaintiff argues that 

Dr. Whitehead’s opinion is supported by a preponderance of medical sources and objective 

evidence of record.

Dr. Whitehead’s assessment was contradicted by Drs. Decherd, Martin Kehrli, and 

Sharon Eder. AR 102, 113-14, 838-46. Thus the ALJ needed to provide specific, legitimate 

reasons for giving little weight to Dr. Whitehead’s opinion. 

Plaintiff argues that all other treating physicians agreed with Dr. Whitehead, and the 

opinions of non-examining physicians do not constitute substantial evidence sufficient to 

discount Dr. Whitehead’s opinion. Indeed, “[t]he opinion of a non examining physician cannot 

by itself constitute substantial evidence that justifies the rejection of the opinion of either an 

examining physician or a treating physician.” Lester, 81 F.3d at 830 (emphasis in original). 

However, a non-examining physician’s opinion can constitute substantial evidence if it is 

supported by other evidence in the record. Morgan, 169 F.3d at 600-601.

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Dr. Decherd’s opinion, in conjunction with the opinions of Drs. Kehrli and Eder,

constitutes substantial evidence. Although Dr. Decherd was a non-examining physician in this 

case, his opinion concerns matters related to his specialty. The regulations give more weight to 

the opinions of specialists concerning matters relating to their specialty than to the opinions of 

nonspecialists. 20 C.F.R. § 404.1527(c)(5); Holohan, 246 F.3d at 1202. Because Dr. Decherd is a 

urologist, and gave an opinion on a urological matter, his opinion is entitled to greater weight 

than a nonspecialist non-examining physician.

Furthermore, Dr. Decherd gave the most recent report on Plaintiff’s condition. When a 

claimant’s condition is progressively deteriorating, the most recent medical report is the most 

probative. Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986). Plaintiff alleges that his 

condition has progressively deteriorated since the disability onset date. 

Finally, Dr. Decherd’s opinion was consistent with the opinions of two other nonexamining physicians. Thus, while the opinion of a non-examining physician cannot, by itself, 

constitute substantial evidence that justifies rejecting a treating physicians opinion, Lester, 81 

F.3d at 831, Dr. Decherd’s opinion is corroborated by other medical opinions of record.

Therefore, the ALJ satisfied her duty to provide a specific, legitimate reason, supported by 

substantial evidence, for according more weight to Dr. Decherd’s opinion than the opinion of 

Dr. Whitehead. 

The ALJ also accorded little weight to Dr. Whitehead’s opinion because it was not 

supported by objective medical findings in the record. Plaintiff argues that Dr. Whitehead’s 

opinion was well supported by objective medical findings in the record, and lists numerous 

appointments and test results in support. The Commissioner responds that most of the evidence 

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referenced by Plaintiff is subjective symptom testimony, and nearly all objective medical tests 

were negative for infection and the condition described by Plaintiff. 

An ALJ can reject a medical opinion that is brief, conclusory, and inadequately supported 

by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). After Plaintiff’s 

alleged onset date, nearly all evidence in the record indicates normal tests and negative cultures 

for infection. Thus, contrary to Plaintiff’s contention that he is frequently afflicted with 

infections and fevers, the objective clinical findings were generally normal. See AR 346, 381, 

561, 572-73, 576, 577, 579-80, 582, 586, 608, 609, 612, 617-18, 627, 630, 694, 696, 780, 793-

94, 824-25, 861, 863-64, 904, 906. Plaintiff argues that the record is replete with examples of 

infections, but offers only an isolated report of an enlarged and boggy prostate as objective 

evidence. AR 395. The ALJ’s conclusion that the objective medical evidence did not support Dr. 

Whitehead’s opinion is a reasonable and rational interpretation of the record, and therefore must 

be upheld even if Plaintiff offers another rational interpretation of the evidence. Burch, 400 F.3d 

at 679 (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s 

conclusion that must be upheld.”).

An ALJ also may give little weight to a physician’s opinion when there are 

inconsistencies between the opinion and the plaintiff’s stated activities. See Reams v. Comm’r of 

Soc. Sec. Admin., 116 F. App’x 881, 882 (9th Cir. 2004); Tommasetti, 533 F.3d at 1039, 1041-

41. Dr. Whitehead opined that Plaintiff could sit for up to four hours at a time and stand or walk 

for one hour during an eight-hour workday. AR 652-53. However, Plaintiff traveled to Israel for

ten days, which involved “more than thirty hours of sitting and remaining awake” during his

return flight. AR 572. Dr. Whitehead’s opinion is inconsistent with Plaintiff’s demonstrated 

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ability to sit for an extended period of time. Therefore, the ALJ did not err in giving little weight 

to Dr. Whitehead’s opinion. 

2. Medical Opinion of Dr. Welker

Dr. Welker provided Plaintiff with antibiotics, hydrogen peroxide injections, prostatic 

massage, and intravenous treatments of nano-particle silver. AR 674, 681. Dr. Welker opined 

that antibiotics were increasingly ineffective in fighting Plaintiff’s prostatitis and that Plaintiff’s 

prostatitis would preclude him from gainful employment. AR 950. 

The ALJ noted that the treatments used by Dr. Welker were unorthodox, and not

endorsed by Dr. Nina Davis, Plaintiff’s treating urologist. Id. The ALJ also found that there was 

no evidence to support Dr. Welker’s statement that “an anti-microbial course has been the only 

one that has been successful in keeping [Plaintiff] out of the hospital.” Id. Finally, the ALJ 

questioned Dr. Welker’s diagnosis of prostatitis, stating Plaintiff’s symptoms could be attributed 

to pelvic floor dysfunction. Id.

The ALJ correctly gave Dr. Welker’s assessment little weight because Dr. Welker’s 

treatments were not endorsed by Dr. Davis or the scientific community. The ALJ recited

evidence indicating that the American Medical Association does not endorse the treatments 

favored by Dr. Welker, and that the American Cancer Society deems them dangerous. AR 22. 

Dr. Davis, Plaintiff’s treating urologist, had no knowledge of this form of therapy, and the 

medical establishment either does not endorse it or deems it dangerous. The standards for 

evaluating medical opinions put great weight on scientifically demonstrable findings. See 20 

C.F.R. § 404.1527(a)(1) (“impairment...[must be] demonstrable by medically acceptable clinical 

and laboratory diagnostic techniques”); 20 C.F.R. § 404.1527(c)(3) (“The more a medical source 

presents relevant evidence to support an opinion, particularly medical signs and laboratory 

findings, the more weight we will give that opinion.”). Furthermore, Plaintiff’s argument that 

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Dr. Davis tacitly supported the therapies because Plaintiff reported improvements does not 

accurately reflect the record. Dr. Davis endorsed Plaintiff’s happiness, not the treatment methods 

that allegedly helped Plaintiff achieve that happiness. AR 630. The ALJ reasonably found that 

Dr. Welker’s therapies were not supported by Dr. Davis, scientific findings, or scientific

institutions.

The ALJ further found that there was no evidence to support Dr. Welker’s statement, “an 

anti-microbial course has been the only one that has been successful in keeping [Plaintiff] out of 

the hospital.” AR 22. Plaintiff essentially argues that because he sought, and was prescribed 

antibiotics, only antibiotic treatments are effective. Therapies other than antibiotics, however,

were effective on several different occasions. In March 2011, Plaintiff reported to Dr. Welker 

that he experienced less pain and anxiety, and had better energy due to testosterone injections. 

AR 556-57. In March 2012, Plaintiff told Dr. Davis that Dr. Welker’s hydrogen peroxide 

injections and silver treatments worked wonders, and that he felt significantly better when using 

those treatments than when using antibiotics. AR 630. Plaintiff also informed Dr. Welker that he 

preferred hydrogen peroxide injections to antibiotics, and that his issues with prostatitis were 

lessened, despite being off antibiotics. AR 680-81. 

Inconsistencies between a physician’s opinion and that physician’s own clinical notes are 

a specific and legitimate reason to accord little weight to the opinion. Bayliss v. Barnhart, 427 

F.3d 1211, 1216 (9th Cir. 2005). Not only did Dr. Welker’s opinion lack affirmative evidence 

that Plaintiff required antibiotics, but there was countervailing evidence in the doctor’s own 

notes documenting effective non-antibiotic treatments. For these reasons, the ALJ did not 

erroneously assess Dr. Welker’s opinion.

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3. Medical Opinion of Dr. Bolz

The ALJ erred by failing to address the opinion of treating physician Dr. Christopher 

Bolz, but ultimately the error was harmless. The ALJ must consider all medical opinions in the 

record. 20 C.F.R. § 404.1527(c). On March 1, 2013, Dr. Bolz performed a one-time evaluation of 

Plaintiff’s impairments, specifically his alleged prostatitis. AR 821-24. Dr. Bolz wrote that 

Plaintiff suffered from “recurrent bacterial prostatitis which has caused disability, cannot 

maintain even part time employment.” AR 825. Additionally, Dr. Bolz reported that Plaintiff’s 

treatment options were limited to antibiotics for a duration of months, with a high chance of 

complications. Id. Plaintiff argues that the ALJ impermissibly ignored Dr. Bolz’s opinion in her 

opinion. The Commissioner responds that Dr. Bolz’s notes do not constitute a medical opinion, 

and even if the notes constituted a medical opinion, failing to include them was harmless error.

“Medical opinions are statements from physicians and psychologists or other acceptable 

medical sources that reflect judgments about the nature and severity of your impairment(s), 

including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), 

and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Dr. Bolz wrote that 

Plaintiff suffered from diffuse arthralgia of particular severity, and that Plaintiff’s prostatitis 

caused an inability to maintain even part-time employment. AR 824-25. The Commissioner 

argues that Dr. Bolz’s statements are merely recordings of Plaintiff’s complaints, and therefore 

are not the independent judgment of the doctor. Review of the record indicates that Dr. Bolz’s 

note regarding Plaintiff’s diffuse arthralgia is merely a recitation of Plaintiff’s complaint, as it 

appears in the area of the chart for gathering subjective symptom information from Plaintiff.

AR 824. Dr. Bolz’s comments regarding Plaintiff’s prostatitis and its effect on his ability to 

work, however, are not mere recitations of Plaintiff’s complaints. Id. Rather, those comments 

appear in the section of the chart labeled “assessments,” suggesting Dr. Bolz exercised his own 

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judgment in deciding Plaintiff’s prostatitis rendered him disabled. Id. Because substantial 

evidence directs that Dr. Bolz exercised his own judgment in assessing Plaintiff’s symptoms, his 

comments constitute a medical opinion and therefore must be considered.

Nonetheless, the ALJ’s failure to consider Dr. Bolz’s opinion was harmless. A legal error 

is harmless when it is “inconsequential to the ultimate nondisability determination.” See Molina

v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The harmless error analysis is fact-intensive, and 

harmlessness must be analyzed in light of the circumstances of the case, viewing the record as a 

whole. See id.; Robbins, 466 F.3d at 885. 

The ALJ’s failure to consider Dr. Bolz’s opinion was inconsequential because his opinion 

was consistent with the opinions of Drs. Whitehead and Welker. Drs. Whitehead and Welker 

both stated that Plaintiff could not work full time due to his impairments. AR 652-53, 950-51. 

The ALJ gave little weight to both physicians’ opinions and the Court has found that the ALJ did 

not err in doing so. The same considerations in discounting the opinions of Drs. Whitehead and 

Welker apply to Dr. Bolz’s opinion. Therefore, the ALJ’s error in failing to consider Dr. Bolz’s 

opinion was harmless. 

CONCLUSION

Based on the foregoing, the Commissioner’s decision is AFFIRMED and the case 

DISMISSED.

IT IS SO ORDERED.

DATED this 31st day of May, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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