PAGE 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHAEL P. CULLEN,

 Plaintiff, 

 v. 

CAROLYN W. COLVIN, 

Acting Commissioner of Social Security, 

 Defendant. 

Case No. 6:15-cv-00517-SI 

OPINION AND ORDER

Howard D. Olinsky, Olinsky Law Group, 300 S. State Street, Suite 420, Syracuse, NY 13202; 

Philip W. Studenberg, 230 Main Street, Klamath Falls, OR 97601. Of Attorneys for Plaintiff. 

Billy J. Williams, Acting 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 97201; L. Jamala Edwards, 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.

Michael Patrick Cullen (“Plaintiff”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”), denying Plaintiff’s 

application for Disability Insurance Benefits (“DIB”). For the following reasons, the 

Commissioner’s decision is AFFIRMED. 
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 of 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 Soc. Sec. Admin., 359 F.3d 1190, 1193, 

1196 (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 protectively filed an application for DIB on October 4, 2011, alleging disability 

beginning July 4, 2011. AR 76. He was 49 years old at the alleged disability onset date. AR 77. 

He alleged disability due to back pain. AR 77, 167. The Disability Determinations Service 
PAGE 3 – OPINION AND ORDER 

denied his application initially on December 30, 2011, and upon reconsideration on 

May 23, 2012. AR 98-101, 104-06. Plaintiff subsequently requested a hearing before an 

Administrative Law Judge (“ALJ”). Id. An administrative hearing was held on August 23, 2013. 

AR 111. After considering all the evidence in the record, the ALJ concluded that Plaintiff was 

not disabled under the Social Security Act. AR 13-27. The Appeals Council considered the 

record, including additional evidence submitted, but denied Plaintiff’s request for review, 

making the ALJ’s decision the final order of the Commissioner. AR 1-5. Plaintiff now seeks 

judicial review of that final order. 

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 (Supplemental Security Income); 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: 

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 
PAGE 4 – OPINION AND ORDER 

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. 

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, 1098 (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 
PAGE 5 – OPINION AND ORDER 

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 decision by noting that Plaintiff met the insured status requirements 

of the Social Security Act through December 31, 2015.1

 AR 18. The ALJ then applied the 

sequential process. AR 18-26. At step one, the ALJ determined that Plaintiff did not engage in 

substantial gainful activity during the period from his alleged onset date through his date last 

insured. AR 18. At step two, the ALJ determined that Plaintiff’s lumbar degenerative disc 

disease and adjustment disorder with depressed mood were severe impairments. Id. The ALJ 

found Plaintiff’s tinnitus, psoriasis, polyps, and lung condition were not severe impairments, but 

“in an abundance of caution” included noise and airborne irritant restrictions in Plaintiff’s RFC. 

Id. At step three, the ALJ determined that Plaintiff’s impairments did not meet or medically 

equal the severity of one of the listed impairments. AR 20. 

The ALJ then determined Plaintiff’s RFC, finding that he can: 

perform light work as defined in 20 [C.F.R. §] 404.1567(b). The 

claimant can lift and/or carry 20 pounds occasionally, and 10 

pounds frequently. The claimant can sit for 6 hours in an 8-hour 

workday, and can stand and/or walk for 6 hours in an 8-hour 

workday. The claimant should be allowed to alternate sitting or 

standing in frequent bilateral pushing and/or pulling, and frequent 

 

1

 The ALJ’s opinion stated that the date last insured is December 31, 2016, but that appears 

to be a scrivener’s error. AR 76-77, 85. 
PAGE 6 – OPINION AND ORDER 

bilateral foot control operation. The claimant should never climb 

ladders, ropes, or scaffolds. The claimant can occasionally stoop. 

He can occasionally crouch. The claimant should avoid 

concentrated exposure to excessive noise. He should avoid 

concentrated exposure to irritants such as fumes, odors, dust, 

gases, and poorly ventilated areas. The claimant can understand 

and carry out simple instructions. He can have occasional 

interaction with the public, co-workers, and supervisors. 

AR 21. At step four, the ALJ determined that Plaintiff was unable to perform past relevant work. 

AR 25. Lastly, at step five, the ALJ reviewed Plaintiff’s RFC, age, education, and work 

experience, and determined that there exist significant numbers of jobs in the national economy 

that Plaintiff could perform. AR 26. 

DISCUSSION 

Plaintiff argues that the ALJ erred by: (A) improperly discounting Plaintiff’s credibility; 

(B) failing properly to develop the record; (C) failing to include in the RFC determination 

sufficient limitations relating to Plaintiff’s moderate difficulties in concentration, persistence, or 

pace; and (D) making an improper step five determination. 

A. Plaintiff’s Credibility 

Plaintiff argues that the ALJ’s credibility determination is not supported by substantial 

evidence because it improperly evaluated Plaintiff’s inconsistent statements and failed to address 

Plaintiff’s testimony regarding his limited participation in daily activities. 

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

about the severity and limiting effect of his or her 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 
PAGE 7 – OPINION AND ORDER 

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 

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 96-7p, available at 1996 WL 374186. The ALJ may not, however, make a 
PAGE 8 – OPINION AND ORDER 

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 held that an ALJ “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 1997. 

At the first step of the credibility framework, the ALJ found that Plaintiff’s “medically 

determinable impairments could reasonably be expected to cause some of the alleged 

symptoms . . . .” AR 22. At the second step however, the ALJ did not find Plaintiff’s statements 

“concerning these symptoms to be credible.” Id. The ALJ offered four reasons for her adverse 

credibility finding: (1) Plaintiff stopped working for reasons other than medical disability; 

(2) Plaintiff gave inconsistent statements about his capacity to work; (3) Plaintiff reported 

subjective symptoms that are inconsistent with the objective medical evidence; and (4) Plaintiff 

did not seek mental health treatment. AR 25. 

1. Plaintiff stopped work for reasons other than medical disability. 

The ALJ determined that Plaintiff “stopped working for reasons unrelated to a medical 

disability.” AR 22. In Bruton v. Massanari, the Ninth Circuit found that the claimant’s statement 

that he left his job because he was laid off, rather than because of disability, was one of three 

sufficient reasons for disregarding the claimant’s pain testimony. 268 F.3d 824, 833 (9th Cir. 

2001); see Page v. Colvin, 620 F. App’x 605, 605 (9th Cir. 2015) (noting that an ALJ’s 

credibility determination may reasonably rely on a claimant’s inconsistent statements as to why 
PAGE 9 – OPINION AND ORDER 

he left his job); see also Asbury v. Colvin, 2015 WL 6531325, at *7 (D. Or. Oct. 28, 2015) 

(holding that an ALJ properly discredited the plaintiff’s testimony because the plaintiff left his 

job for nondisability-related reasons). 

The ALJ supported her finding that Plaintiff stopped working for reasons other than 

medical disability in part by citing Plaintiff’s testimony that his most recent job ended “when he 

was laid off because the worksite was shutting down.” AR 22, 43, 92. The ALJ also explained 

that when asked whether Plaintiff could have continued to work at the previous job medically, if 

not for the lay off, Plaintiff testified that he did not know. AR 43. Additionally, the ALJ 

referenced Plaintiff’s testimony that he injured his back one and one-half days before he stopped 

working and was able to work his scheduled shifts despite his injury. AR 22. 

Plaintiff argues that the ALJ improperly concluded that Plaintiff stopped working for 

reasons other than a disabling condition. Plaintiff relies on Carlson v. Astrue, 682 F. Supp. 2d 

1156, 1167 (D. Or. 2009), which notes that a social security claimant may not be criticized for 

attempting to work despite disabling conditions and cites to Lingenfelter, 504 F.3d at 1038. In 

Carlson, the claimant had a progressively worsening condition, and worked for many years 

before the condition became disabling. 682 F. Supp at 1166. In Lingenfelter, the Ninth Circuit 

held that an ALJ may not discredit a Plaintiff’s testimony solely for the reason that Plaintiff 

“tried to work for a short period of time and, because of his impairments, failed.” 504 F.3d at 

1038 (emphasis in original). 

Plaintiff’s case presents a somewhat unique situation in that his alleged injury onset date 

is only one and one-half shifts before his expected layoff date. Plaintiff did work those shifts, but 

testified that his supervisor was unhappy with Plaintiff’s performance and told him that he 

needed to pick up his speed. AR 43-44. Plaintiff explains that he was barely able to work his last 
PAGE 10 – OPINION AND ORDER 

shifts because his “lower back was throbbing” and he “could [not] move fast enough.” AR 44. 

When directly questioned at his hearing, Plaintiff stated that he did not know whether he could 

have continued working beyond those one and one-half shifts with his injury. AR 43. Plaintiff 

did testify, however, that after being laid off he continued to apply for work. AR 45. 

Under these facts, it is plausible from the record that Plaintiff stopped working because 

he was laid off and was unable to find another job. It is equally plausible that Plaintiff would 

have stopped working due to his injury if his job had not concluded on July 18th. Where there 

are two rational interpretations of the evidence, the ALJ’s interpretation is upheld. See

Burch, 400 F.3d at 679; see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Thus, 

the ALJ’s finding that Plaintiff stopped working for reasons other than disability is sustained. 

2. Plaintiff gave conflicting statements about his work capacity. 

The ALJ also determined that Plaintiff “has made inconsistent statements about his 

ability to work, which undermines his credibility.” AR 22. Specifically, the ALJ noted that 

Plaintiff filed for and began receiving unemployment benefits in 2011, while simultaneously 

filing for disability in October of 2011, alleging he was injured and unable to work as of 

July 4, 2011. Id. A claimant’s receipt of unemployment benefits is an improper reason to 

discredit a claimant’s testimony, unless the record establishes that the claimant held himself out 

as being available for full-time work. Davis v. Colvin, 2016 WL 424992, at *5 (D. Or. Feb. 3, 

2016) (citing Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). 

In Plaintiff’s DIB application, he stated that he “became unable to work because of [his] 

disabling condition on July 4, 2011.” AR 134. The ALJ pointed out that Plaintiff later testified 

that he was trying to find work while he was on unemployment. AR 45. When asked specifically 

what type of work he was seeking, Plaintiff said he was looking for “anything [he] could 

possibly find,” and concentrating on “mills, trucking companies, restaurants, [and] gas stations.” 
PAGE 11 – OPINION AND ORDER 

Id. Thus, Plaintiff admittedly applied to heavy labor jobs, which directly contradicted his 

statement that he was unable to work as of July 4, 2011. It also contradicted Plaintiff’s testimony 

that his legs often go numb, and that he cannot sit for more than 15 minutes nor stand for more 

than 20 minutes. AR 50, 57-59. Plaintiff further explained that he was not asked for an interview 

from any of his applications, and thought it was because potential employers saw that he was 

limping. AR 46. The ALJ noted, however, that Plaintiff did not state he had any kind of medical 

condition on his job applications. Id. The record shows that Plaintiff held himself out to be 

available for full time work, particularly heavy labor, and thus the ALJ did not err in concluding 

this fact undermined Plaintiff’s credibility. 

Plaintiff argues that the ALJ improperly discredited Plaintiff’s testimony because he 

simultaneously sought disability and unemployment benefits. Plaintiff draws attention to the 

SSA Chief Administrative Law Judge’s position that “individuals need not choose between 

applying for unemployment insurance and Social Security disability benefits.” Memorandum 

from Chief ALJ Frank A. Cristaudo: Receipt of Unemployment Insurance Benefits by Claimant 

Applying for Disability Benefits - INFORMATION (November 15, 2006; reissued 

August 9, 2010). This Social Security Administration (“SSA”) memorandum also cautions that: 

application for unemployment benefits is evidence that the ALJ 

must consider together with all of the medical and other evidence. 

Often, the underlying circumstances will be of greater relevance 

than the mere application for and receipt of the benefits. For 

instance, the fact that a person has, during his or her alleged period 

of disability, sought employment at jobs with physical demands in 

excess of the person’s alleged limitations would be a relevant 

factor that an ALJ should take into account. 

Id. (emphasis added). In accordance with the SSA’s memo, the ALJ did not find Plaintiff to be 

less than fully credible merely because he filed for both disability and unemployment benefits, 

but because Plaintiff’s statements regarding his incapacity to work in his disability application 
PAGE 12 – OPINION AND ORDER 

were inconsistent with his applications to jobs with physical demands in excess of his alleged 

limitations. It was reasonable for the ALJ to conclude that someone whose legs go numb and 

who cannot sit or stand for more than 15 minutes would not honestly apply to jobs like trucking, 

mill work, restaurants, and gas stations. AR 45. Accordingly, the ALJ provided another clear and 

convincing reason to discount Plaintiff’s credibility. 

3. Plaintiff reported subjective symptoms inconsistent with objective evidence. 

Next, the ALJ discounted Plaintiff’s credibility because his “subjective report of back 

pain is not fully supported by the objective medical evidence.” AR 23. Although lack of medical 

evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can 

consider in his credibility analysis. Burch, 400 F.3d at 680. 

The ALJ explained that Plaintiff reported a history of back pain worsening after he lifted 

a refrigerator with his wife and “felt a pull in the left low back” on July 4, 2011. AR 23, 270. The 

ALJ also noted that Plaintiff testified to falling out of a chair six weeks after the July 4th 

accident, and felt “tingling in his left foot with cramps and low back pain ever since.” Id.

Christopher Bolz, M.D., Plaintiff’s treatment provider, reported that Plaintiff walked “very 

slowly, and was slightly flexed at the waist.” Id. Dr. Bolz’s examination also stated that Plaintiff 

could forward flex within a foot of the floor, had a positive straight leg raise test at 10-20 degrees 

bilaterally, and “had no CVA tenderness” with “some tenderness over the left SI joint and 

buttocks.” Id. Plaintiff’s lumbosacral spine x-ray showed “minimal degenerative changes from 

the T11-L5 disc spaces.” Initially, Plaintiff could not afford Dr. Bolz’s recommended MRI 

examination and physical therapy. AR 23, 264. The ALJ noted that Dr. Bolz prescribed 

stretching, Vicodin, and strongly recommended that Plaintiff lose weight and stop smoking. Id.

Additionally, Plaintiff’s October 13, 2011 lumbar MRI examination results were “completely 

normal for age.” AR 23, 261. 
PAGE 13 – OPINION AND ORDER 

After reviewing the medical evidence, the Court finds that the ALJ’s conclusion that 

Plaintiff’s subjective complaints of back pain are not consistent with the objective medical 

evidence is supported by substantial evidence in the record. 

4. Plaintiff did not seek mental health treatment. 

The ALJ determined that Plaintiff “has alleged that he has mental health problems, but he 

has not sought treatment, which further undermines his credibility.” AR 23. A relevant factor to 

an ALJ’s credibility determination may include “unexplained, or inadequately explained, failure 

to seek treatment.” Bunnell, 947 F.2d at 346 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th 

Cir. 1989)). When a plaintiff “provides evidence of a good reason for not taking medication for 

her symptoms,” however, “her symptom testimony cannot be rejected for not doing so.” 

Smolen, 80 F.3d at 1284. An ALJ may not chastise a claimant for failing to seek treatment he 

cannot afford. Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). Moreover, the Ninth Circuit 

has “criticized the use of a lack of treatment to reject mental health complaints both because 

mental illness is notoriously underreported and because ‘it is a questionable practice to chastise 

one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.’” 

Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999) (quoting 

Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). 

The ALJ supported her finding of adverse credibility with evidence that Plaintiff 

consistently alleged mental health problems but never sought treatment. On May 16, 2012, 

Plaintiff reported to Paula Belcher, Ph.D., that he feels irritable most of the time because “he 

cannot do what he wants to do.” AR 23, 277. In that same psychological assessment, Plaintiff 

explained that since he lost his job, he experiences “brief episodes of depressed mood that last up 

to a day.” AR 23, 278. Additionally, Plaintiff told Dr. Belcher that he has little energy and 

“gained 35 pounds in the past year.” Id. Dr. Belcher diagnosed Plaintiff with an Axis I 
PAGE 14 – OPINION AND ORDER 

Adjustment Disorder with Depressed Mood. AR 23, 279. Plaintiff admitted that he has never 

sought counseling and there is no evidence that he tried any medication management for his 

depression. AR 23, 278. Plaintiff also testified, however, that he could not afford extra medical 

treatment, such as an MRI and physical therapy. AR 260. Moreover, there is no evidence in the 

record that the ALJ questioned Plaintiff regarding any mental health treatment at the 

administrative hearing. AR 37-75. 

Discrediting Plaintiff for failure to seek mental health treatment is contrary to the case 

law concerning failure to seek mental health treatment. Thus, the ALJ’s use of Plaintiff’s failure 

to seek medical treatment in determining adverse credibility is error. When an ALJ makes an 

adverse credibility finding, “so long as there ‘remains substantial evidence supporting the ALJ’s 

conclusions’” regarding credibility, and “the error ‘does not negate the validity of the ALJ’s 

ultimate [credibility] conclusion,’ such is deemed harmless and does not warrant reversal.” 

Carmickle, 533 F.3d at 1162 (quoting Batson, 359 F.3d at 1197. Here, the ALJ provided three 

other clear and convincing reasons, supported by substantial evidence, to discredit Plaintiff’s 

testimony. Therefore, the ALJ’s decision regarding mental health treatment is harmless error and 

the ALJ’s overall adverse credibility finding is upheld. 

B. The Record Development 

Plaintiff argues that the ALJ failed to develop the medical opinion evidence, specifically 

by failing to request opinions regarding Plaintiff’s limitations from treating physicians Dr. Bolz 

and Marquita Belen, M.D., and by failing to request clarification from consultative examiner, 

James McHan, M.D. Plaintiff also alleges that the ALJ gave undue weight to non-examining 

physician Martin Lahr, M.D. 

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 
PAGE 15 – OPINION AND ORDER 

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” 

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). 
PAGE 16 – OPINION AND ORDER 

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. 

1. The Opinions of Drs. Bolz and Belen 

Plaintiff argues that the ALJ failed to request limitation opinions from Plaintiff’s treating 

physicians, Drs. Bolz and Belen. “An ALJ’s duty to develop the record further is triggered only 

when there is ambiguous evidence or when the record is inadequate to allow for proper 

evaluation of the evidence.” Ludwig v. Astrue, 681 F.3d 1047, 1055 n.30 (9th Cir. 2012) (citing 

Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)). Recently, in Hughley v. Colvin, the 

Ninth Circuit held that the evidence was not ambiguous and therefore did not trigger the ALJ’s 

duty, because the “voluminous medical reports contained sufficient documentations of 

[claimant’s] symptoms.” 2016 WL 145779, at *1 (9th Cir. Jan. 7, 2016). Moreover, 20 C.F.R. 

§ 404.1520b(c)(1) does not mandate that an ALJ contact treating physicians. Rather, the 

regulation gives an ALJ the discretion to contact a treating physician if the ALJ finds that the 

evidence is ambiguous. Id. 

Here, the ALJ reviewed the medical evidence and opinions, including the physical RFC 

assessment of Dr. Lahr and Mary Ann Westfall, M.D., the consultative examination of 

Dr. McHan, the psychological consultative examination of Dr. Belcher, the mental RFC 

assessment of Dorothy Anderson, Ph.D., and the treatment records of Drs. Bolz and Belen, in 

addition to considering lay-person testimony. The ALJ specifically discussed Dr. Bolz’s notes. 

AR 23. Dr. Bolz treated Plaintiff for back pain twice during the relevant period. AR 263. 

Dr. Bolz’s treatment notes were part of the record before the ALJ, but Dr. Bolz did not submit a 
PAGE 17 – OPINION AND ORDER 

formal opinion regarding Plaintiff’s limitations or capacity for work before the ALJ issued her 

decision on September 10, 2013. Dr. Bolz’s notes revealed that Plaintiff’s back pain continued 

throughout his treatment, but highlighted the “unremarkable” and “completely normal” MRI, and 

explained that the “most likely diagnosis is muscular strain of his low back secondary to 

deconditioning.” AR 261. Contrary to Plaintiff’s argument, the ALJ did not discount Dr. Bolz’s 

assessments. 

Next, Dr. Belen treated Plaintiff for a variety of ailments, including back pain, during the 

relevant period. AR 296-327. Dr. Belen’s treatment notes were also part of the record before the 

ALJ, but Dr. Belen did not submit a formal opinion regarding Plaintiff’s limitations or capacity 

for work before the ALJ issued her decision on September 10, 2013. Dr. Belen’s notes reveal 

that Plaintiff’s back pain continued throughout his treatment, but also noted Plaintiff’s normal 

MRI, and suggested daily exercise to decrease back pain. AR 322. The ALJ explicitly discussed 

Dr. Belen’s treatment notes when determining Plaintiff’s severe impairments. AR 19. Plaintiff 

points to nothing in Drs. Bolz or Belen’s records that raises an ambiguity sufficient to trigger the 

ALJ’s duty to develop the record further. Not every treating or examining physician must 

provide a formal assessment of a social security claimant’s limitations. Plaintiff bears the burden 

of proving his disability, and “[a]n ALJ is required to recontact a doctor only if the doctor’s 

report is ambiguous or insufficient for the ALJ to make a disability determination. Bayliss v. 

Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ did not err by failing to contact 

Plaintiff’s treating providers for further information. 

2. Dr. McHan’s Consultative Examination 

Plaintiff also argues that the ALJ failed to develop the record because she did not request 

clarification of Plaintiff’s limitations from Dr. McHan, Plaintiff’s consultative examiner. 

Dr. McHan examined Plaintiff on April 4, 2012, and diagnosed him with “low back pain with 
PAGE 18 – OPINION AND ORDER 

varying inconsistent tenderness and osteoarthritis.” AR 270, 274. Dr. McHan found that Plaintiff 

had a maximum standing and walking capacity of “probably” less than two hours, a maximum 

sitting capacity without limitation, and a maximum lifting and carrying capacity of no more than 

twenty pounds. Id. Dr. McHan stated that “all [Plaintiff’s activities] subjectively cause pain . . . 

[d]ue to poor balance climbing is limited to never.” Id. Dr. McHan found occasional reaching, 

handling, fingering, and feeling limitations for manipulative activities. Id. He noted that Plaintiff 

should have a decreased fumes working environment, “although he is still smoking.” AR 274. 

The ALJ gave Dr. McHan’s opinion “little weight.” AR 24. The ALJ provided three 

specific reasons for discounting Dr. McHan’s opinion: (1) Dr. McHan’s single examination relies 

heavily on Plaintiff’s subjective complaints; (2) Dr. McHan’s opinion is inconsistent with the 

“benign objective examination findings”; and (3) Dr. McHan’s opinion is inconsistent with 

Plaintiff’s report “that he is able to do home exercises, take walks with his wife, and camp when 

he has the money.” Id. All three reasons are specific, legitimate reasons for giving Dr. McHan’s 

opinion little weight that are endorsed by the Ninth Circuit. See Tommasetti, 533 F.3d at 1040-

42. They are also supported by substantial evidence in the record.2

 

The ALJ did not express any concern about ambiguity in the evidence. The ALJ is not 

required to request clarification of a medical examination if she finds no ambiguity, and the ALJ 

stated specific and legitimate reasons for giving Dr. McHan’s assessment little weight. 20 C.F.R. 

§ 404.1520b(c). 

 

2

 The ALJ’s adverse credibility determination regarding Plaintiff’s testimony supports 

discounting Dr. McHan’s opinion because the opinion was primarily based on Plaintiff’s 

subjective comments concerning his condition. Notably, Dr. McHan acknowledged that 

Plaintiff’s “maximum standing and walking capacity is based on subjective complaints.” 

AR 274. Additionally, after performing a range of motion testing, Dr. McHan found “slight to 1+ 

spasm and tenderness in the paravertebral muscles” but “no point tenderness,” and “no 

significant deformities except mild kypholordosis.” AR 273. These unremarkable findings do not 

support the limitations that Dr. McHan described. 
PAGE 19 – OPINION AND ORDER 

3. Dr. Lahr’s Physical RFC Assessment 

Plaintiff further argues that the ALJ gave Dr. Lahr’s physical RFC assessment too much 

weight because Dr. Lahr is a non-examining physician and his opinion is not supported by 

substantial evidence in the record. The opinions of non-treating or non-examining physicians 

may serve as substantial evidence when the opinions are consistent with independent clinical 

findings or other evidence in the record. Morgan v. Comm’r, 169 F.3d 595, 600 (9th Cir. 1999). 

The ALJ explained that she gave substantial weight to Dr. Lahr’s April 19, 2012 

assessment. AR 23. The ALJ noted that Dr. Lahr’s opinion is consistent with the evidence, 

including Plaintiff’s lumbar x-ray report, “which showed minimal degenerative changes from the 

T11 through L5 disc spaces.” AR 23. The ALJ also supported her determination by stating that 

Dr. Lahr’s opinion is consistent with Plaintiff’s statements regarding his hobbies and daily living 

activities. AR 23. Based on the clear and specific reasons for giving Dr. Lahr’s non-examining 

assessment substantial weight, the Court finds that the ALJ properly evaluated the medical 

evidence. 

C. The RFC Determination 

Plaintiff also argues that the ALJ’s RFC determination failed to reconcile the ALJ’s 

finding of moderate limitations regarding “concentration, persistence, or pace” at the listing 

stage. AR 20. Mental impairments are evaluated at steps two and three of the five-step sequential 

evaluation process using the special psychiatric review technique. 20 C.F.R. §§ 404.1520a(a), 

416.920a(a). Using that technique, the ALJ first rates the degree of functional limitation resulting 

from a claimant’s impairments, then determines the severity of those impairments. 20 C.F.R. 

§§ 404.1520a(b), 416.920a(b). Functional limitations are determined by assessing the functional 

areas of: (1) daily living activities; (2) social functioning; (3) concentration, persistence, or pace; 

and (4) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c), 416.920a(c). After the 
PAGE 20 – OPINION AND ORDER 

functional limitations are determined, the ALJ determines if the severity of the impairment meets 

or equals a listed impairment. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). If the impairment does 

not meet or equal a listing, the ALJ must then assess the claimant’s mental RFC. 20 C.F.R. 

§§ 404.1520a(e), 416.920a(e). 

The ALJ specifically found that Plaintiff has moderate difficulties “with regard to 

concentration persistence or pace” at the listing stage. AR 20. When an ALJ makes a finding of 

moderate limitations in concentration, persistence, or pace in step three, those limitations must be 

reflected in the RFC assessment. Saucedo v. Colvin, 2014 WL 4631225, at *17–18 (D. Or. 

Sept. 15, 2014) (failure to include limitations regarding concentration, persistence, or pace in the 

RFC is reversible error if the ALJ found such limitations at step three); see also Lubin v. Comm’r 

Soc. Sec. Admin., 507 F. App’x 709, 712 (9th Cir. 2013) (“The ALJ must include all restrictions 

in the [RFC] determination . . . including moderate limitations in concentration, persistence, or 

pace”). An “ALJ’s assessment of a claimant adequately captures restrictions related to 

concentration, persistence, or 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); see 

also Brink v. Comm’r of the Soc. Sec. Admin., 343 F. App’x 211, 212 (9th Cir. 2009) (holding 

that an “ALJ’s findings must be consistent with the restrictions supported in the medical 

testimony”). 

The ALJ supported her finding of moderate difficulties with Plaintiff’s statement that his 

ability to follow instructions is “moderate” to “fair.” AR 20, 187. The ALJ also noted that when 

Dr. Belcher interviewed Plaintiff, twice he “denied any problems with concentration . . . and 

spends time working on models . . . .” AR 278. Additionally, the ALJ points to Plaintiff’s test 

performance on his mental status examination that indicated that he had “mild to moderate 
PAGE 21 – OPINION AND ORDER 

impairment in concentration and memory.” AR 21, 278. Next, the ALJ incorporated the step 

three finding of moderate difficulties into Plaintiff’s RFC by determining that Plaintiff “can 

understand and carry out simple instructions.” AR 21. Plaintiff argues that this RFC does not 

properly account for the ALJ’s step three finding of moderate difficulties. “[S]o long as the 

ALJ’s decision is supported by medical evidence, a limitation to simple, repetitive work can 

account for moderate difficulties in concentration, persistence or pace.” Bickford v. Astrue, 2010 

WL 4220531, at *11 (D. Or. Oct.19, 2010) (citing Stubbs–Danielson, 539 F.3d at 1174). 

The ALJ’s RFC limitation to “simple instructions” is supported in the medical record, 

specifically, Drs. Belcher’s and Anderson’s reports. AR 24. Dr. Belcher’s psychological 

consultative examination noted that testing data “indicate that the client may have some mild to 

moderate impairment in concentration and memory.” AR 276 (emphasis added). Dr. Belcher also 

noted that Plaintiff completed serial three’s slowly with errors and could recall only one of three 

words when asked to remember 10 minutes later. AR 24, 276. Dr. Anderson noted that Plaintiff’s 

“ability to understand and remember” and “to carry out . . . simple instructions” was “not 

significantly limited.” AR 94. Dr. Anderson’s mental RFC assessment concluded that Plaintiff 

can “carry out and maintain [concentration, persistence, or pace] for 1-2 step tasks.” AR 24, 95. 

The Court finds that the RFC determination that Plaintiff can “understand and carry out simple 

instructions,” properly incorporates the medical evidence of Plaintiff’s limitations regarding 

concentration, persistence, or pace. 

D. Step Five Determination 

Finally, Plaintiff argues that the ALJ’s hypothetical question to the vocational expert 

(“VE”) was reversible error because the question was not formulated based on substantial 

evidence in the record. Only limitations supported by substantial evidence may be incorporated 

into the RFC and, by extension, the dispositive hypothetical question posed to the VE. 
PAGE 22 – OPINION AND ORDER 

Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). The Court found that the ALJ’s 

RFC determination was supported by substantial evidence in the record. Thus, the hypothetical 

question, which reflects the limitations identified in the RFC, is sustained. 

CONCLUSION 

The Commissioner’s decision is based on substantial evidence in the record. The ALJ’s 

decision that Plaintiff is not disabled is AFFIRMED. 

IT IS SO ORDERED. 

DATED this 22nd day of February, 2016. 

 /s/ Michael H. Simon 

Michael H. Simon 

 United States District Judge