IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EDITH MAY HULETT, 3:15-CV-00939-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

EDWIN A. HARNDEN

Barran Liebman LLP 

601 S.W. Second Avenue, Suite 2300

Portland, OR 97204

(503) 228-0500 

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

DAVID MORADO

Regional Chief Counsel

ERIN F. HIGHLAND 

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 901

Seattle, WA 98104

(206) 615-2240 

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 1 of 26
BROWN, Judge.

Plaintiff Edith May Hulett1 seeks judicial review of the

final decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's applications

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act and Supplemental Security Income (SSI) under

Title XVI of the Social Security Act. This Court has jurisdiction to review the Commissioner's final decision pursuant to

42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff protectively filed her application for DIB on

September 29, 2010, and filed her application for SSI on 

February 25, 2011.2 Tr. 18.3 Plaintiff alleged a disability

onset date of October 28, 2008. Tr. 18. Plaintiff’s

applications were denied initially and on reconsideration. An

1

 Plaintiff is also referred to as Edith May McElroy in the

Administrative Transcript of Record.

2

 The ALJ’s decision indicates a protective filing date of

July 15, 2011, for SSI benefits. At the hearing, however,

Plaintiff’s counsel indicated the initial application was

February 25, 2011. Tr. 1415.

3

 Citations to the official transcript of record filed by

the Commissioner on January 20, 2016, are referred to as "Tr."

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Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 2 of 26
Administrative Law Judge (ALJ) held an initial hearing on 

January 15, 2013, and a supplemental hearing on July 29, 2013. 

Tr. 1359-68, 1369-1422. There was not any testimony given at the

first hearing. At the second hearing Plaintiff, a vocational

expert (VE), and a medical expert (ME) testified. Plaintiff was

represented by an attorney at both hearings. 

On August 12, 2013, the ALJ issued an opinion in which he 

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 18-31. On March 26, 2015, that decision became

the final decision of the Commissioner when the Appeals Council

denied Plaintiff's request for review. Tr. 9-11. See Sims v.

Apfel, 530 U.S. 103, 106-07 (2000).

BACKGROUND

Plaintiff was born on August 15, 1968. Tr. 604. Plaintiff

was 45 years old at the time of the hearings. Plaintiff has a

GED and an associate’s degree in accounting. Tr. 29, 1409. The

ALJ found Plaintiff has past relevant work experience as a

caregiver, customer-service employee, and telephone

surveyor/solicitor. Tr. 29. 

Plaintiff alleges disability due to diabetes mellitus with

secondary effects, gastro-intestinal disorder, coronary artery

disease, plantar fasciitis, affective disorder, and anxiety

disorder. Tr. 21. Plaintiff also alleges she suffers from

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Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 3 of 26
thyroiditis, hyperthyroidism, and hypertension. Tr. 21, 618,

1355. 

Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 24-29.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate her

inability “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). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

4 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 4 of 26
682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). It is more than a mere scintilla [of evidence]

but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

The ALJ is responsible for evaluating a claimant’s

testimony, resolving conflicts in the medical evidence, and

resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th

Cir. 2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the Commis5 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 5 of 26
sioner determines the claimant is engaged in substantial 

gainful activity (SGA). 20 C.F.R. §§ 404.1520(a)(4)(I),

416.920(a)(4)(I). See also Keyser v. Comm’r of Soc. Sec., 648

F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Keyser, 648 F.3d

at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also Keyser, 648

F.3d at 724. The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,

appendix 1 (Listed Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§§ 404.1520(e), 416.920(e). See also Social Security Ruling

(SSR) 96-8p. “A ‘regular and continuing basis’ means 8 hours a

6 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 6 of 26
day, for 5 days a week, or an equivalent schedule.” SSR 96-8p,

at *1. In other words, the Social Security Act does not require

complete incapacity to be disabled. Taylor v. Comm’r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the

burden shifts to the Commissioner to show a significant number of

jobs exist in the national economy that the claimant can perform. 

Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th

Cir. 2010). The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational

Guidelines set forth in the regulations at 20 C.F.R. part 404,

subpart P, appendix 2. If the Commissioner meets this burden, 

the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

7 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 7 of 26
ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since her October 28, 2008, alleged

onset date. Tr. 20.

At Step Two the ALJ found Plaintiff has the severe

impairments of diabetes mellitus and its secondary effects,

gastro-intestinal disorder, coronary artery disease, plantar

fasciitis, affective disorder, and anxiety disorder. Tr. 21. 

The ALJ also found Plaintiff has the nonsevere impairments of

thyroiditis, hyperthyroidism, and hypertension. Tr. 21. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, 

appendix 1. Tr. 21. The ALJ found Plaintiff’s diabetes mellitus

does not meet Listing 9.00(B)(5) because “there is no evidence

that the [Plaintiff] experiences hyperglycemia, diabetic

ketoacidosis, chronic hyperglycemia or hypoglycemia.” Tr. 22. 

The ALJ found Plaintiff has the RFC to perform sedentary work and

can occasionally lift or carry 10 pounds; can frequently lift or

carry less than 10 pounds; can stand or walk for two hours in an

eight-hour workday; can sit for six hours in an eight-hour

workday; cannot engage in climbing ropes, ladders and scaffolds;

can occasionally climb stairs as well as stoop, crawl, crouch,

and kneel; can have occasional contact with the public,

8 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 8 of 26
supervisors, and co-workers; and cannot work near hazardous

conditions or at any heights. Tr. 24. 

At Step Four the ALJ concluded Plaintiff is not capable of

performing her past relevant work as a caregiver, customerservice employee, or telephone surveyor/solicitor. Tr. 29. 

The ALJ also found at Step Five that Plaintiff could perform

other jobs that exist in the national economy. Tr. 30. 

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) failed to

conclude at Step Three that Plaintiff meets or equals Listing

9.00(B)(5); (2) improperly rejected the opinions of Plaintiff’s

treatment providers; (3) improperly rejected Plaintiff’s

subjective symptom testimony; (4) improperly gave “little weight”

to the lay-witness testimony of Plaintiff’s spouse; and 

(5) failed to include all relevant limitations in his

hypothetical posed to the VE.

I. The ALJ did not err at Step Three when he found Plaintiff

does not meet the characteristics of Listing 9.00(B)(5).

As noted, at Step Three the ALJ found Plaintiff's medically

determinable impairments do not meet or medically equal one of

the Listed Impairments. Specifically, the ALJ concluded

Plaintiff does not satisfy the criteria of Listing 9.00(B)(5)

pertaining to her diabetes mellitus. Plaintiff contends the ALJ

9 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 9 of 26
erred because the medical record is replete with references to

her hyperglycemia, diabetic ketoacidosis, chronic hyperglycemia,

and hypoglycemia. 

“To meet a listed impairment, a claimant must establish that

he or she meets each characteristic of a listed impairment

relevant to his or her claim. To equal a listed impairment, a

claimant must establish symptoms, sign and laboratory findings at

least equal in severity and duration to the characteristics of a

relevant listed impairment.” Tackett v. Apfel, 180 F.3d 1094,

1099 (9th Cir. 1999)(emphasis in original). 

Listing 9.00, which covers endocrine disorders, does not set

out specific requirements for such disorders. See 20 C.F.R. Part

404, Subpart P, Appendix I. Listing 9.00(B) provides

“impairments that result from endocrine disorders [are evaluated]

under the listing for other body systems.” Complications related

to diabetes, for example, are evaluated based on the affected

body system. Instead of analyzing a diabetic condition such as

diabetic ketoacidosis, therefore, the proper approach is to

analyze the “resulting complications” such as “cardiac

arrhythmias under 4.00, intestinal necrosis under 5.00, and

cerebral edema and seizures under 11.00.” Listing 

9.00(B)(5)(a)(I). Although the medical records contain many

references to the diabetic symptoms experienced by Plaintiff,

there is not any evidence of the resulting complications that

10 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 10 of 26
reflect the impairments found in Listing 9.00(B)(5).

 On this record the Court concludes the ALJ did not err at

Step Three because the medical records do not reflect the

characteristics of Listing 9.00(B)(5). 

II. The ALJ did not err when he evaluated Plaintiff’s treating

medical providers’ opinions.

Plaintiff contends the ALJ erred when he gave “little

weight” to the opinions of Plaintiff’s treating medical

providers: Steve Smart, M.D.; Elizabeth Gabay, M.D.; Paula

Wichienkuer, M.D.; Kelly Clouse, M.D.; and Nancy Lee, LMHC. 

Plaintiff argues the ALJ did not provide specific and legitimate

reasons for disregarding the opinions of these providers.

A. Standards

The opinion of a treating physician is generally accorded

greater weight than the opinion of an examining physician, and

the opinion of an examining physician is accorded greater weight

than the opinion of a reviewing physician. Ghanim v. Colvin, 763 

F.3d 1154, 1160 (9th Cir. 2014). To reject an uncontradicted

opinion of a treating physician, the ALJ must provide “clear and

convincing reasons that are supported by substantial evidence.”

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

Specific, legitimate reasons for rejecting an examining

physician's opinion may include its reliance on a claimant's

discredited subjective complaints, inconsistency with the medical

records, inconsistency with a claimant's testimony, and

11 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 11 of 26
inconsistency with a claimant's daily activities. Tommasetti v.

Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).

Medical sources are divided into two categories: 

"acceptable" and "not acceptable." 20 C.F.R. § 416.902. 

Acceptable medical sources include licensed physicians and

psychologists. 20 C.F.R. § 416.902. Medical sources classified

as "not acceptable" include, but are not limited to, nurse

practitioners, therapists, licensed clinical social workers, and

chiropractors. SSR 06-03p, at *2. Factors the ALJ should

consider when determining the weight to give an opinion from

those "important" sources include the length of time the source

has known the claimant and the number of times and frequency that

the source has seen the claimant, the consistency of the source's

opinion with other evidence in the record, the relevance of the

source's opinion, the quality of the source's explanation of his

opinion, and the source's training and expertise. SSR 06-03p, at

*4. On the basis of the particular facts and the above factors,

the ALJ may assign a not-acceptable medical source opinion either

greater or lesser weight than that of an acceptable medical

source. SSR 06-03p, at *5-6. The ALJ, however, must explain the

weight assigned to such sources to the extent that a claimant or

subsequent reviewer may follow the ALJ's reasoning. SSR 06-03p,

at *6.

12 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 12 of 26
B. Steven Smart, M.D.

The ALJ gave little weight to Dr. Smart’s opinion that

claimant’s impairments would cause her to miss more than four

days of work per month because the ALJ found Dr. Smart’s

conclusion was “inconsistent” with the medical record outlined in

his opinion. Tr. 29.

 Dr. Smart began treating Plaintiff in 2005. On

September 3, 2007, Dr. Smart completed a cardiac RFC

questionnaire in which he identified Plaintiff’s symptoms at that

time as chest pain, fatigue, weakness, palpitations, and

dizziness. Dr. Smart indicated Plaintiff was capable of “lowstress jobs,” but he estimated she would be absent from work

“about four days per month” due to her impairments. Tr. 252-56. 

Dr. Smart’s opinion was dated more than a year before 

Plaintiff’s alleged onset date of October 28, 2008. “Medical

opinions that predate the alleged onset of disability are of

limited relevance.” Carmickle v. Comm’r, Soc. Sec. Admin., 533

F.3d 155, 1165 (9th Cir. 2008). Thus, as Defendant contends, if

there was any error on the part of the ALJ when he rejected 

Dr. Smart’s opinion, it was harmless. 

On this record the Court concludes the ALJ did not err

when he gave limited weight to Dr. Smart’s opinion because 

Dr. Smart’s opinion predated Plaintiff’s alleged onset of

disability by more than a year and there is not substantial

13 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 13 of 26
medical evidence in the record to support Dr. Smart’s opinion. 

C. Elizabeth Gabay, M.D.

The ALJ gave little weight to Dr. Gabay’s opinion that

Plaintiff’s impairments would limit her ability to concentrate

and would cause her to miss 16 hours or more of work per month. 

The ALJ found “the combination of medical evidence and

[Plaintiff’s] activities of daily living do not show that her

condition is that severe.” Tr. 29. 

Dr. Gabay completed a treating-physician questionnaire

in January 2012. Tr. 1187-90. She had treated Plaintiff

“intermittently” since November 2011. Dr. Gabay estimated

Plaintiff’s ability to concentrate is impaired by “50%,” and

Plaintiff would be absent from a job for 16 hours or more a month

as a result of “uncontrolled diabetes, uncontrolled anxiety and

depression, leg and shoulder pains, frequent diarrhea, probably

from diabetes.” Tr. 1189-90. 

The ALJ concluded the medical evidence did not support

Dr. Gabay’s opinion. Although Plaintiff has diabetic foot

ulcers, she walks without assistance, has a normal gait, is able

to bear full weight on her left foot, and wears normal shoes. 

Tr. 26. The record also reflects Plaintiff’s diabetes is

controlled with treatment, she has received conservative care for

her gastro-intestinal disorder, her diarrhea is intermittent, and

she takes over-the-counter medications to treat her diarrhea. 

14 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 14 of 26
Tr. 26. 

The ALJ also concluded the earlier medical records did

not support Dr. Gabay’s opinion. For example, in July 2010

Plaintiff reported she suffered from stress and anxiety as a

result of her family dynamics and social situation arising

primarily from the “circumstances” of her eldest daughter. 

Tr. 891. The treating physician at that time reported these

“social stressors” suggested Plaintiff’s stress was mostly

situational and were contributing to Plaintiff’s mental state. 

Tr. 892. In a November 2010 emergency-room visit Plaintiff was

oriented and she had normal affect, concentration, judgment,

insight, and memory. Tr. 1053. In March 2011 Plaintiff was not

experiencing anxiety, was cooperative, had normal judgment, and

was alert and oriented. Tr. 1120-21. In February 2012 and 

March 2012 Dr. Gabay noted Plaintiff was alert; cooperative; and

had normal mood, affect, attention span, and concentration. 

Tr. 1258, 1269. In August 2012 Dr. Gabay reiterated these same

findings. Tr. 1246. 

On this record the Court finds the ALJ did not err when

he gave limited weight to Dr. Gabay’s opinion because the ALJ

provided legally sufficient reasons supported by substantial

evidence in the record for doing so.

 D. Paula Wichienkuer, M.D.

The ALJ gave “some weight” to Dr. Wichienkuer’s

15 - OPINION AND ORDER

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assessment that Plaintiff has a less than sedentary RFC, but the

ALJ gave “little weight” to Dr. Wichienkuer’s opinion that

Plaintiff has marked mental-health limitations. Tr. 28.

Dr. Wichienkuer completed a questionnaire in July 2013

regarding her treatment of Plaintiff. Tr. 1209-13. Although her

evaluation of Plaintiff was similar to Dr. Gabay’s evaluation and

Dr. Wichienkuer indicated she had treated Plaintiff beginning in

July 2011, Dr. Wichienkuer appears as the attending physician for

Plaintiff on only one medical-record entry dated August 2011,

which was almost two years before she completed the

questionnaire. Tr. 1332. In addition, the ALJ pointed out that

the medical record overall does not support Dr. Wichienkuer’s

opinion. 

“Generally, the longer a treating source has treated [a

claimant] and the more times [the claimant] ha[s] been seen by a

treating source, the more weight we will give to the source’s

medical opinion.” 20 C.F.R. §§ 404.1527(c)(2)(I).

Here the ALJ evaluated Dr. Wichienkuer’s opinion, but

the ALJ properly took into account that Dr. Wichienkuer only saw

Plaintiff once, that Dr. Wichienkuer had limited knowledge of

Plaintiff’s limitations, and that the medical record did not

support Dr. Wichienkuer’s opinion. See Holohan v. Massanari, 246

F.3d 1195, 1202 n.2 (9th Cir. 2001)(noting the ALJ may discount

the opinion of a treating physician who has not seen the patient

16 - OPINION AND ORDER

Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 16 of 26
long enough to develop a “longitudinal picture”). 

On this record the Court concludes the ALJ did not err

when he gave limited weight to Dr. Wichienkuer’s opinion because

the ALJ provided legally sufficient reasons supported by

substantial evidence in the record for doing so. 

E. Kelly Clouse, M.D.

Dr. Clouse treated Plaintiff between December 2005 and

August 2007 regarding her depression and anxiety disorder. 

During that time Dr. Clouse assessed Plaintiff with Global

Assessment of Functioning (GAF) scores4 ranging between 51 and 58

at various times during that period. Tr. 268-301.

A GAF score is merely a rough estimate of an

individual’s psychological, social, or occupational functioning

used to reflect an individual’s need for treatment, but it does

not have any direct correlative work-related or functional

limitations. Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th

4

 Although the fifth edition of the Diagnostic and

Statistical Manual of Mental Disorders issued May 27, 2013,

abandoned the GAF scale in favor of standardized assessments for

symptom severity, diagnostic severity, and disability (see

Diagnostic and Statistical Manual of Mental Disorders V (DSM-V)

16 (5th ed. 2013)), at the time of Plaintiff’s assessment and the

ALJ’s opinion the GAF scale was used to report a clinician’s

judgment of the patient’s overall level of functioning on a scale

of 1 to 100 (see Diagnostic and Statistical Manual of Mental

Disorders IV (DSM-IV) 31-34 (4th ed. 2000)). In the fourth

edition, a GAF of 51-60 indicated moderate symptoms (e.g., flat

affect and circumstantial speech, occasional panic attacks) or

moderate difficulty in social, occupational, or school

functioning (e.g., few friends, conflicts with peers or coworkers).

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Cir. 1998). See also 65 Fed.Reg. 50746, 50764–65 (Aug. 21, 2000)

(“The GAF scale . . . is the scale used in the multiaxial

evaluation system endorsed by the American Psychiatric

Association. It does not have a direct correlation to the

severity requirements in our mental disorders listings.”). See

also McFarland v. Astrue, 288 Fed. App’x. 357, 359 (9th Cir.

2008). 

The ALJ weighed Dr. Clouse’s assessment of Plaintiff’s

GAF scores and gave “some weight” to the higher GAF score, but

gave “little weight” to the lower GAF scores as “inconsistent”

with the medical record and Plaintiff’s activities of daily

living. Tr. 28. For example, as noted, in July 2010 Plaintiff

reported she suffered from stress and anxiety as a result of her

family dynamics and social situation arising primarily from the

circumstances of her eldest daughter. Tr. 891. The treating

physician at that time reported these “social stressors”

suggested Plaintiff’s stress was mostly situational and were

contributing to Plaintiff’s mental state. Tr. 892. In March

2011 during an emergency-room examination regarding her foot,

Plaintiff was not experiencing anxiety, was cooperative, had

normal judgment, was alert, and was not in acute distress.

Tr. 1120-21. The ALJ noted the medical records reflect even

though Plaintiff has diabetic foot ulcers, she walks without

assistance, has a normal gait, is able to bear full weight on her

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Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 18 of 26
left foot, and wears normal shoes. Tr. 26. The medical records

also reflect Plaintiff’s diabetes is controlled with treatment,

she has received conservative care for her gastro-intestinal

disorder, her diarrhea is intermittent, and she takes over-thecounter medications to treat her diarrhea. Tr. 26. 

As noted, Dr. Clouse’s various GAF assessments predated

the alleged onset of Plaintiff’s disability date of October 28,

2008. Tr. 267-307. Dr. Clouse’s assessment of Plaintiff’s GAF

as between 51 and 58 was made during the period of December 2005-

August 2007. Although GAF scores of 51-60 indicate moderate

symptoms or moderate difficulty in social, occupational, or

school functioning, Dr. Clouse did not indicate Plaintiff has any

corollary functional limitations. 

 The Court concludes, therefore, the ALJ did not err

when he gave little weight to Dr. Clouse’s opinion because it

predated Plaintiff’s alleged onset of disability; Dr, Clouse’s 

opinion did not include any functional limitations; and, as

noted, there is not substantial medical evidence in the record to

support Dr. Clouse’s opinion. 

F. Nancy Lee, LMHC

On December 19, 2011, LMHC Lee, a licensed mentalhealth care professional, performed a consultative evaluation of

Plaintiff. Tr. 1324. LMHC Lee diagnosed Plaintiff with

depression and anxiety disorder. Tr. 1330. The ALJ gave 

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Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 19 of 26
LMHC Lee’s opinion only “some weight” on the basis that there was

insufficient evidence to support her opinion that Plaintiff’s

limitations were disabling. Tr. 28.

Defendant contends the ALJ properly discounted LMHC 

Lee’s opinion because she did not assess any functional

limitations. Defendant also contends to the extent there was any

error, it was harmless because the ALJ found Plaintiff has the

severe impairments of affective disorder and anxiety disorder. 

Tr. 21.

As noted, medical sources are divided into two

categories: "acceptable" and "not acceptable." 20 C.F.R. 

§ 416.902. Acceptable medical sources include licensed

physicians and psychologists. 20 C.F.R. § 416.902. Medical

sources classified as "not acceptable" include, but are not

limited to, nurse practitioners, therapists, licensed clinical

social workers, and chiropractors. SSR 06-03p, at *2. Factors

the ALJ should consider when determining the weight to give an

opinion from those "important" sources include the length of time

the source has known the claimant and the number of times and

frequency that the source has seen the claimant, the consistency

of the source's opinion with other evidence in the record, the

relevance of the source's opinion, the quality of the source's

explanation of his opinion, and the source's training and

expertise. SSR 06-03p, at *4. On the basis of the particular

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Case 3:15-cv-00939-BR Document 27 Filed 11/23/16 Page 20 of 26
facts and the above factors, the ALJ may assign a not-acceptable

medical source either greater or lesser weight than that of an

acceptable medical source. SSR 06-03p, at *5-6. Similarly, when 

a source’s opinion does not assign any specific limitations, an

ALJ need not provide reasons for rejecting the opinion because

none of the conclusions were actually rejected. Turner v.

Comm’r. Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010). 

Here, although LMHC Lee concluded Plaintiff suffered

from depression and anxiety, she did not identify any specific

work-related or functional limitations nor express an opinion as

to Plaintiff’s ability to work. 

The Court concludes, therefore, that the ALJ did not

err when he gave only “some weight” to LMHC Lee’s opinion because

the ALJ provided legally sufficient reasons supported by

substantial evidence in the record for doing so.

III. The ALJ did not err when he found Plaintiff’s testimony was

not fully credible.

Plaintiff alleges the ALJ erred by failing to provide clear

and convincing reasons to support his finding that Plaintiff’s

testimony was not entirely credible.

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and must show the impairment or

combination of impairments could reasonably be expected to

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produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant's testimony only if he provides clear and convincing

reasons for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th

Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

1995)). General assertions that the claimant's testimony is not

credible are insufficient. Id. The ALJ must identify "what

testimony is not credible and what evidence undermines the

claimant's complaints." Id. (quoting Lester, 81 F.3d at 834).

Plaintiff testified at the hearing on July 29, 2013, that

she stays in her room most of the time and only goes out for

doctors’ appointments. She does not prepare meals, but she is

able to take care of her personal needs. Tr. 1393, 1412-13. 

Plaintiff cared for her father who lived with her until 2010. 

Tr. 1398. She also helped take care of her granddaughter to a

limited extent and has changed her diaper when needed. Tr. 1396. 

As recently as December 2012 Plaintiff indicated she walked seven

times per week for exercise. Tr. 1236. Plaintiff stated her

most serious conditions were diabetic neuropathy and diarrhea. 

Tr. 1399-1400. She also stated she was losing her eyesight, had

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uncontrolled diabetes, and experienced anxiety and depression. 

Tr. 1401, 1403, 1406. 

The ALJ concluded Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the

alleged symptoms. However, [Plaintiff’s] statements concerning

the intensity, persistence and limiting effect of these symptoms

are not entirely credible.” Tr. 25. The ALJ cited numerous

examples from the medical records when he determined the medical

evidence did not support Plaintiff’s allegations. Tr. 26-27. 

For example, although Plaintiff has diabetic foot ulcers, she

walks without assistance, has a normal gait, is able to bear full

weight on her left foot, and wears normal shoes. Tr. 26. 

Moreover, Plaintiff’s diabetes is controlled with treatment, she

has received conservative care for her gastro-intestinal

disorder, her diarrhea is intermittent, and she takes over-thecounter medications to treat the diarrhea. Tr. 26. 

On this record the Court finds the ALJ did not err when he

found Plaintiff was not fully credible because the ALJ provided

clear and convincing reasons supported by substantial evidence in

the record for doing so.

IV. The ALJ did not err when he found the lay-witness testimony

of Roger Hulett, Plaintiff’s husband, was not credible.

Plaintiff contends the ALJ erred when he rejected the laywitness testimony of Plaintiff's husband, Roger Hulett. In his

Third-Party Function Report dated April 30, 2011, Roger Hulett

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indicated Plaintiff stays in her room most of the time, she has

anxiety issues, and she has diabetes problems. Tr. 638-45. The

ALJ gave “little weight” to the opinion of Roger Hulett “as he

merely corroborates [Plaintiff’s] subjective symptoms” that the

ALJ properly found were not credible. Tr. 29. 

When determining whether a claimant is disabled, the ALJ

must consider lay-witness testimony concerning a claimant’s

limitations and ability to work. Molina v. Astrue, 674 F.3d

1104, 1114 (9th Cir. 2012). If the ALJ wishes to discount the

testimony of lay witnesses, he “must give reasons that are

germane to each witness.” Id. (quoting Nguyen v. Chater, 100

F.3d 1462, 1467 (9th Cir. 1996)). Germane reasons for

discrediting a witness's testimony include inconsistency with the

medical evidence and the fact that the testimony “generally

repeat[s]” the properly discredited testimony of a claimant. 

Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). See

also Williams v. Astrue, 493 Fed. App'x 866 (9th Cir. 2012). 

Here the ALJ found Roger Hulett’s testimony was merely “a

corroboration” of Plaintiff’s testimony which the ALJ properly

discredited on the ground that Plaintiff’s statements regarding

her impairments and limitations were not supported by her daily

activities nor by the medical record. 

On this record the Court concludes the ALJ provided legally

sufficient reasons for rejecting the lay-witness testimony of

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Roger Hulett.

V. The ALJ did not pose an inaccurate hypothetical to the VE at

Step Five. 

Plaintiff contends the ALJ erred at Step Five when he found

Plaintiff is able to perform jobs that exist in the national

economy. Plaintiff asserts the ALJ failed to include all of

Plaintiff’s limitations in his hypothetical posed to the VE. 

“An ALJ must propound a hypothetical question that is based

on medical assumptions supported by substantial evidence in the

record that reflects all the claimant’s limitations.” Osenbrock

v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). “The hypothetical

should be ‘accurate, detailed, and supported by the medical

record.’” Id. (quoting Tackett, 180 F.3d at 1101). It is,

however, proper for an ALJ to limit a hypothetical to those

impairments that are supported by “substantial evidence in the

record.” Id.

As noted, the ALJ found Plaintiff has the RFC to perform

sedentary work and can occasionally lift or carry 10 pounds; can

frequently lift or carry less than 10 pounds; can stand or walk

for two hours in an eight-hour workday; can sit six hours in an

eight-hour workday; cannot engage in climbing ropes, ladders and

scaffolds; can occasionally climb stairs as well as stoop, crawl,

crouch, and kneel; can have occasional contact with the public,

supervisors, and co-workers; and cannot work near hazardous

conditions or at any heights. Tr. 24. At the July 2013 hearing

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the ALJ posed a hypothetical to the VE that included all of the

limitations from his evaluation of Plaintiff’s RFC. Tr. 1418-20. 

Based on that hypothetical, the VE testified a claimant with

those limitations could perform the sedentary jobs of nut-sorter,

final assembler-optical goods, and wireworker-semiconductors. 

Tr. 30, 1419-20. 

On this record the Court concludes the ALJ did not err at

Step Five when he relied on the VE’s testimony and found

Plaintiff could perform other jobs that exist in the national

economy. 

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 23rd day of November, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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