1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WOODROW A. MESSMER,

Plaintiff, Civ. No. 6:15-cv-00947-MC

v. OPINION AND ORDER

CAROLYN W. COLVIN,

Acting Commissioner of the Social Security

Administration,

Defendant.

_____________________________

MCSHANE, Judge:

Woodrow A. Messmer (“Messmer”) seeks judicial review of the final decision by the 

Social Security Commissioner (“Commissioner”) denying his application for Disability 

Insurance Benefits (“DIB”) under Title II of the Social Security Act (“SSA”). This Court has 

jurisdiction to review the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). Because the 

Commissioner’s decision is supported by substantial evidence and free from harmful error, the 

decision is AFFIRMED.

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2 – OPINION AND ORDER

PROCEDURAL AND FACTUAL BACKGROUND

Born in 1962, Messmer was 44 years old on the disability onset date and 49 years old on 

the date last insured. Tr. 27. He graduated high school and has some college experience. Tr. 39. 

He previously worked as a frame technician for a car dealership. Tr. 57. 

Messmer protectively filed for DIB on January 19, 2011, alleging disability as of January 

20, 2006 due to neck, lower back, shoulder, hip, and leg injuries. Tr. 155. His application was 

denied initially and upon reconsideration. Tr. 87, 91. A hearing was held on June 12, 2013 before 

an Administrative Law Judge (“ALJ”); Messmer was represented by counsel and testified, as did 

a vocational expert (“VE”). Tr. 34-62. On August 19, 2013, ALJ Marilyn Maurer issued a 

decision finding Messmer not disabled. Tr. 19-29. Messmer timely requested review of the 

ALJ’s decision and, after the Appeals Council denied his request for review, filed a complaint in 

this Court. Tr. 1, 14. 

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence on the record. 

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

2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is 

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” 

Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 

980 (9th.Cir. 1997)). To determine whether substantial evidence exists, this Court reviews the 

administrative record as a whole, weighing both the evidence that supports and that which

detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). 

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3 – OPINION AND ORDER

“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, 

and resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “If the 

evidence can reasonably support either affirming or reversing, ‘the reviewing court may not 

substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 

740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Charter, 157 F.3d 715, 720-21 (9th Cir. 

1996)). 

DISCUSSION

The Social Security Administration utilizes a five step sequential evaluation to determine 

whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof 

rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with 

respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 

404.1520. At step five, the Commissioner’s burden is to demonstrate that the claimant is capable 

of performing certain types of work after considering the claimant’s RFC, age, education, and 

work experience. Id. 

At step one of the sequential evaluation process outlined above, the ALJ found that 

Messmer had engaged in substantial gainful activity after the alleged onset date, January 20, 

2006, from January 20, 2006 until December 20, 2006. Tr. 22. Messmer did not engage in 

substantial gainful activity from December 20, 2006 until the date last insured. Id.

At step two, the ALJ determined Messmer had the following severe impairments: 

cervical degenerative joint disease and degenerative disc disease; right shoulder tendinosis; 

chronic lumbar strain; and obesity. Tr. 22. 

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4 – OPINION AND ORDER

At step three, the ALJ found that Messmer’s impairments, either singly or in 

combination, did not meet or equal the requirements of a listed impairment. Tr. 23. Because 

Messmer did not establish disability at step three, the ALJ continued to evaluate how Messmer’s 

impairments affected his ability to work during the relevant period. The ALJ found Messmer had 

the residual functional capacity (“RFC”) to perform light work as defined by 20 C.F.R. §

416.967(b) except: 

He can sit, stand, and walk each 6 hours in an 8-hour day for a combined total of 

8 hours of activity. He can frequently climb ramps and stairs, occasionally climb 

ladders, ropes, and scaffolds, and occasionally stoop, crouch, crawl, and kneel. He 

can occasionally reach overhead, forward and to the side with his right upper 

extremity. He can frequently reach overhead with his left upper extremity, but has 

no other limitations in the use of that arm. He must avoid hazards such as large 

moving equipment and unprotected heights.

Tr. 23. At step four, the ALJ found that Messmer was unable to perform his past 

relevant work as an auto frame repairer. Tr. 27. 

At step five, based on the testimony of the VE and other evidence, the ALJ determined

Messmer could perform other work existing in significant numbers in the national and local 

economy despite his impairments, including shop estimator, electronics accessories assembler, 

marker, and wire worker. Tr. 28-29. Accordingly, the ALJ concluded Messmer was not disabled 

under the Act. Id. 

Messmer alleges the ALJ erred by improperly assessing: (1) Messmer’s symptom 

testimony; (2) Dr. Kathrin Weller’s testimony; (3) lay witness testimony; and (4) whether the 

record was fully developed.

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5 – OPINION AND ORDER

I. Messmer’s Symptom Testimony

Messmer argues the ALJ erred by rejecting his subjective symptom testimony. There is a 

two-step process for evaluating a claimant's 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 determined Messmer presented sufficient medical evidence of an underlying 

impairment that could cause some of the alleged symptoms; however, the ALJ found Messmer’s 

statements concerning the limiting effects of those symptoms were not consistent with the 

record. Tr. 25. 

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6 – OPINION AND ORDER

Effective March 16, 2016, the Commissioner superseded Social Security Ruling (“SSR”) 

96-7p governing the assessment of a claimant's “credibility” and replaced it with a new rule, SSR 

16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to 

“credibility,” clarifies that “subjective symptom evaluation is not an examination of an 

individual's character,” and requires the ALJ to consider of all of the evidence in an individual's 

record when evaluating the intensity and persistence of symptoms. Id. at l-2. The Commissioner 

recommends that the ALJ examine “the entire case record, including the objective medical 

evidence; an individual's statements about the intensity, persistence, and limiting effects of 

symptoms; statements and other information provided by medical sources and other persons; and 

any other relevant evidence in the individual's case record.” Id. at 4. The Commissioner 

recommends assessing: (1) the claimant's statements made to the Commissioner, medical 

providers, and others regarding the claimant's location, frequency and duration of symptoms, the 

impact of the symptoms on daily living activities, factors that precipitate and aggravate 

symptoms, medications and treatments used, and other methods used to alleviate symptoms; (2) 

medical source opinions, statements, and medical reports regarding the claimant's history, 

treatment, responses to treatment, prior work record, efforts to work, daily activities, and other 

information concerning the intensity, persistence, and limiting effects of an individual's 

symptoms; and (3) non-medical source statements, considering how consistent those statements 

are with the claimant's statements about his or her symptoms and other evidence in the 

file. See Id. at 6-7.

The ALJ found the record contained sufficient evidence of malingering to lower the 

evidentiary bar from clear and convincing to the more deferential substantial evidence standard 

of review. The ALJ noted that Messmer’s medical records indicate “frequent observations of 

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7 – OPINION AND ORDER

give-way weakness.” Tr. 27. Give-way weakness can occur when a physician exerts force 

against a muscle to test its strength. The Neurological Examination, AM. ACAD. OF NEUROLOGY, 

https://www.aan.com/uploadedFiles/Website_Library_Assets/Documents/4.CME_and_Training/

2.Training/4.Clerkship_and_Course_Director_Resources/FM_Chp1_Sec4%20v001.pdf (last 

visited Aug. 19, 2016). A patient’s strength will smoothly decrease in response to resistance 

when experiencing true weakness, as opposed to give-away weakness, when a patient’s strength 

suddenly and sharply decreases. Id. Give-away muscular weakness is a sign of malingering. 

Thebo v. Astrue, 436 Fed. Appx. 774, 775 (9th Cir. 2011). 

The record evinces numerous findings of give-away weakness in examinations performed 

by Dr. Weller. In October 2006, Dr. Weller tested Messmer and noted give-away weakness in 

the upper and lower right extremity, but not in the hand or wrist areas. Tr. 243. Messmer also 

displayed give-away weakness on his left side until Dr. Weller tested each muscle in isolation 

and found that each demonstrated “full strength.” Id. Dr. Weller further noted that “identification 

of true weakness is not possible with element of giveaway” with respect to Messmer’s right 

extremity. Id. Messmer continued demonstrating give-away weakness during appointments in 

January and August 2007, January 2008, February 2008, July 2010, and January 2011. Tr. 239, 

240, 255, 258, 264, 273. 

The ALJ noted further evidence of malingering in Messmer’s use of his cane. Tr. 25, 27. 

Using a cane that has not been prescribed by a doctor is a valid reason to doubt a plaintiff’s 

subjective symptom testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). In 

January 2013, Dr. Patrick Sarver stated:

Of note, he walks with a cane and although I have instructed him to use the cane in his 

left hand as we were trying to support the right side, he is using the cane with his right 

hand in-step with his right foot. When he does this, he does not appear to have any 

discomfort in his shoulder.

Tr. 300.

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8 – OPINION AND ORDER

Messmer’s use of his cane is particularly troublesome. Messmer used his self-prescribed cane 

incorrectly and without apparent limitation or injury to his shoulder.

Messmer argues he feels afraid of falling without the cane, and that he cannot use the 

cane in his left hand because of pain. Specifically, Messmer stated at the hearing, “Well if I try to 

open a doorknob with it [his left hand], I get a shocking pain that goes down my neck and I sort 

of go down to the ground almost.” Tr. 45. Messmer testified he had experienced such pain since 

at least 2006. Id. However, such pain is undocumented in any of his numerous medical 

appointments. Additionally, Messmer did not offer this explanation to Dr. Sarver when 

questioned about his incorrect use of the cane. Tr. 300. The ALJ did not err in identifying this as 

evidence of malingering and a reason to doubt Messmer’s testimony.

Thus, because the ALJ proffered sufficient evidence of malingering, the substantial 

evidence standard of review applies.

The ALJ noted that secondary gain is a reason to doubt Messmer’s subjective symptom 

testimony. “Secondary gain means external and incidental advantage derived from an illness, 

such as rest, gifts, personal attention, release from responsibility, and disability benefits.” Burrell 

v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (quoting DORLAND’S ILLUSTRATED MEDICAL 

DICTIONARY 721 (29th ed.)). A plaintiff’s pursuit of a disability claim for secondary gain is a 

reason to doubt their subjective symptom testimony. Burrell, 775 F.3d at 1139-40; see SSR 16-

3p (The Commissioner recommends assessing the claimant’s efforts to work). The ALJ stated 

several reasons to support her concerns about secondary gain, including Messmer’s multiple 

workers’ compensation benefits claims and the timing for filing his DIB claim. Tr. 24. Messmer 

filed a worker’s compensation claim after his alleged injury in 2006; shortly after those benefits 

ended in 2011, Messmer filed for DIB. Messmer alleged another workplace injury in 2012, and 

applied again for worker’s compensation. Tr. 292. In 2012, Messmer expressed frustration that 

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9 – OPINION AND ORDER

his retraining program paid significantly less than his old job. Tr. 300. The ALJ stated that 

Messmer “has no interest in working at jobs that pay less than his former work.” Tr. 27. In 

reaching findings, an ALJ is “entitled to draw inferences logically flowing from the evidence.” 

Tommasetti 533 F.3d at 1040 (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). 

The ALJ’s inference that Messmer sought secondary gain, and that this motive called his 

subjective symptom testimony into doubt, is not unreasonable. 

The ALJ further noted activities of daily living that are inconsistent with Messmer’s 

reported level of disability. Inconsistencies between a plaintiff’s activities of daily living and 

alleged symptoms can be used to reject their subjective symptom testimony. Berry v. Astrue, 622 

F.3d 1228, 1235 (9th Cir. 2010). At the hearing, Messmer testified he could sit for 20 to 30 

minutes, stand for 20 to 30 minutes, walk for 10 minutes, and lift 20 pounds. Tr. 44. Messmer 

also stated he cannot walk very far without a cane. Tr. 189. However, Messmer’s activities of 

daily living belied his testimony. Messmer had no problems with personal care, drove his 

vehicle, and shopped for several hours at a time. Tr. 163-168. Furthermore, Messmer worked in 

his yard for three-to-four hour increments twice per week. Id. While doing yardwork, Messmer 

was able to start his pull mower and mow the yard, as well as pick up fallen branches weighing 

up to 25 pounds. Tr. 255. Messmer told Dr. Weller he mowed his lawn for 45 minutes with 

frequent stops to empty the clippings bag. Tr. 253. While Messmer asserted he injured himself 

performing those activities, the mere fact he attempted them suggests his capabilities exceed his 

alleged level of impairment. Finally, Messmer went fishing frequently and occasionally rode an 

all-terrain vehicle. Tr. 170, 279. The ALJ did not err in citing these activities. 

The ALJ also cited Messmer’s inconsistent testimony as a reason to doubt his subjective 

symptom allegations. An ALJ may use a claimant’s inconsistent testimony to reject their 

subjective symptom testimony. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). The 

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10 – OPINION AND ORDER

record shows Messmer’s reported pain levels were consistently between one and five out of ten. 

Tr. 264, 265, 267, 269, 275. At the hearing, however, Messmer testified his pain levels were 

eight out of ten, which is unsupported by the record. Tr. 49. Although Messmer argues for a 

different interpretation of the record, the ALJ’s interpretation is rational and supported by 

substantial evidence. Burch, 400 F.3d at 679. 

While Messmer argues other rationales set forth were erroneous, the argument is 

unavailing, as the reasons discussed above are sufficient to uphold the ALJ. Carmickle v. 

Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). 

II. Dr. Weller’s Opinion

Opinions regarding the ultimate issue of disability are reserved for the Commissioner. 20 

C.F.R. §§ 404.1527(e)(1); 416.927(e)(1). If no conflict arises between medical source opinions, 

the ALJ generally must accord greater weight to the opinion of a treating physician than that of 

an examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). More weight is 

given to the opinion of a treating physician because the person has a greater opportunity to know 

and observe the patient. Orn, 495 F.3d at 632. The ALJ should generally give greater weight to 

the opinion of an examining physician over that of a reviewing physician. Id. If a treating or 

examining physician's opinion is not contradicted by another physician, the ALJ may reject it 

only for clear and convincing reasons. Id.; Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir.

2006). Even if one physician is contradicted by another physician, the ALJ may not reject the 

opinion without providing specific and legitimate reasons supported by substantial evidence in 

the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of an nonexamining 

physician, by itself, is insufficient to constitute substantial evidence to reject the opinion of a 

treating or examining physician. Widmark, 454 F.3d at 1066 n. 2. The ALJ may reject physician 

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11 – OPINION AND ORDER

opinions that are “brief, conclusory, and inadequately supported by clinical findings.” Bayliss v. 

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

Because Dr. Sarver’s opinion contradicts Dr. Weller’s, the ALJ must provide specific and 

legitimate reasons supported by substantial evidence to reject Dr. Weller’s opinion. 

Dr. Weller treated Messmer from 2006 until early 2011 for his alleged conditions. Tr. 

236-84. At his second appointment in 2006, Dr. Weller assessed Messmer with right lower back 

pain, leg pain, and shoulder, arm, and neck pain following an on-the-job injury eight months 

prior. Tr. 276. Dr. Weller noted the MRI taken soon after the injury was normal for Messmer’s 

age and was not consistent with his pain. Id. Nonetheless, Messmer was prescribed Vicodin and 

Percocet. Tr. 275. In early 2007, Dr. Weller opined that Messmer’s conditions were treatable 

with physical therapy and manual treatment, however, he still experienced pain in his back and 

leg. Tr. 273. Dr. Weller also opined that Messmer could push, pull, or lift up to 20 pounds, and 

could eventually reach a medium capacity work level. Tr. 272. In late 2007, Messmer reported 

that his pain levels were down to one to two out of ten, although his shoulder pain was a three 

out of ten. Tr. 263. Dr. Weller believed he could perform at the light duty level, and lift ten 

pounds or more frequently. Id.

In November of 2007 an MRI revealed tendinosis in Messmer’s right shoulder, with a 

possible tear. Tr. 260. Dr. Weller prescribed physical therapy and a possible consult with an 

orthopedic surgeon. Id. In early 2008, Dr. Weller declared Messmer’s lower back injury 

medically stationary; Messmer reported daily treadmill use for 25 to 30 minutes as well as core 

strengthening three times per week, in addition to his frequent yard work. Tr. 253. However, 

Messmer continued to allege shoulder pain and impingement. Id. In June 2008, Dr. Weller 

released him to work with a 35 pound lifting restriction. Tr. 252. Dr. Weller did not see Messmer 

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12 – OPINION AND ORDER

from August 2008 until October 2009, when they discussed the results of a September 2009 

MRI. Tr. 238. The MRI revealed some cervical spondylosis and disc space narrowing at the C6-7 

level, although no functional limitations were assessed. Tr. 238. Dr. Weller saw Messmer again 

in July 2010, where he refused to take a “tox screen,” and therefore could not receive Vicodin. 

Tr. 239. Dr. Weller noted some tenderness in the lower spine, and a reduced right arm swing. Id.

Dr. Weller saw Messmer six months later, in early 2011, and opined that “the patient’s combined 

condition [is] limiting his ability to perform even a light level of work activity on a regular fulltime basis.” Tr. 241. 

Dr. Weller wrote a letter for Messmer over one year later, in early 2012, opining that 

Messmer became disabled in 2009 due to cervical spondylosis, right rotator cuff tendinosis, and 

chronic low back pain. Tr. 237. In support of her opinion, Dr. Weller cited the 2007 and 2009 

MRIs. Id.

The ALJ gave little weight to Dr. Weller’s opinion because it was inconsistent with other 

evidence in the record, conclusory, unaccompanied by relevant evidence to support the opinion, 

and largely based on Messmer’s subjective pain complaints. Tr. 27. 

The ALJ noted that Dr. Weller’s opinion was inconsistent with other evidence in the 

record. Inconsistency with other medical evidence in the record is a specific and legitimate 

reason to discount a physician’s opinion. Tommasetti, 533 F.3d at 1041. As late as July 2010, Dr. 

Weller’s notes show no evidence of a completely disabling impairment; while Messmer 

displayed some tenderness in the spine and give-away weakness in the right hip, his gait 

displayed no significant antalgia and he only “slightly guarded” his right shoulder, resulting in 

“reduced arm swing.” Tr. 239. Dr. Weller did not diagnose any functional limitations at this 

appointment and took Messmer off his Vicodin prescription. Id. Messmer’s January 2011 

appointment evinced serious symptoms that prompted Dr. Weller to discuss the possibility of 

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13 – OPINION AND ORDER

disability with Messmer for the first time. Tr. 241. However, Dr. Weller’s use of the term 

“disability” does not align with its legal definition. During that appointment she wrote, “[t]he 

patient’s combined condition limiting his ability to perform even a light level of work activity on 

a regular full-time basis.” Id. Dr. Weller failed to note whether Messmer was capable of 

performing work at the sedentary level, and instead skipped from the light duty work level 

straight to disability. Dr. Weller’s medical records do not provide support for the limitations set 

out in the opinion. The ALJ did not err in identifying these inconsistencies.

The ALJ also gave little weight to Dr. Weller’s opinion because it was conclusory and 

unsupported by relevant evidence. An ALJ may reject a treating physician’s opinion when that 

opinion is conclusory. Batson, 359 F.3d at 1195. Although the ALJ cited two MRIs displaying 

shoulder tendinosis and cervical spondylosis, Dr. Weller failed to explain how those conditions 

resulted in functional limitations such that Messmer could not work. Tr. 327. The ALJ did not err 

in her characterization of Dr. Weller’s opinion. 

Finally, the ALJ gave great weight to Dr. Sarver’s opinion. Tr. 27. Dr. Sarver also treated 

Messmer, taking over for Dr. Weller in December 2011. Tr. 287-304. Dr. Sarver consistently 

approved Messmer for light duty work. Id. The non-examining Agency physicians, Drs. Sharon 

Eder and Richard Alley, also opined that Messmer was not disabled. Tr. 74, 86. Messmer argues 

that Dr. Weller’s opinion should be given more weight because she is a rehabilitation specialist 

and her opinion touches on her specialty. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 

2001). However, given the reasons outlined above, the ALJ did not err in giving more weight to 

Dr. Sarver’s opinion. 

The ALJ erred by stating Dr. Weller’s opinion largely reflected Messmer’s subjective 

symptom testimony. However, this error was harmless as the ALJ gave several specific and

legitimate reasons for giving little weight to Dr. Weller’s opinion.

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14 – OPINION AND ORDER

III. Third Party Testimony

Messmer argues the ALJ failed to articulate legally sufficient reasons for only mentioning 

the lay witness testimony of Mr. William Campbell. Lay witness evidence is competent and 

cannot be disregarded without comment. Tobeler v. Colvin, 749 F.3d 830, 833-34 (9th Cir. 

2014). An ALJ may reject lay witness testimony by giving germane reasons for doing so. Lewis 

v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 

Messmer’s friend, Mr. Campbell, testified that he sees Messmer two days per week to 

fish or talk. Tr. 170. Mr. Campbell testified that Messmer watches television, performs some 

household chores and yardwork, shops for necessities, takes care of his cat, and cannot “do 

mutch [sic] anymore.” Tr. 171. Regarding Messmer’s overall condition, Mr. Campbell stated that 

Messmer does not sleep well, is constantly in pain, and is often grumpy as a result. Tr. 170, 171, 

174. Additionally, he stated that Messmer could walk at least one block without resting. Tr. 175. 

The ALJ mentioned Mr. Campbell’s testimony only briefly, noting that the two go 

fishing and spend time together weekly. Tr. 24. She further acknowledged Mr. Campbell’s 

observation that Messmer frequently suffered from pain. Id. She also stated that, according to 

Mr. Campbell, Messmer does house and yard work two times per week for three to four hours 

each session. Id. After this recitation, the ALJ analyzed the testimony of both Messmer and Mr. 

Campbell by stating, “Mr. Messmer’s and third-party statements concerning the intensity, 

persistence and limiting effects of these symptoms are not entirely credible for the reasons 

explained in this decision.” Tr. 25. Therefore, the ALJ’s analysis of Messmer’s subjective 

symptom testimony simultaneously served as an analysis of Mr. Campbell’s testimony. Because 

the court found the ALJ gave substantial reasons for doubting Messmer’s testimony, it follows 

those reasons satisfy the germane standard for lay witness testimony. The ALJ did not err in 

declining to rely on Mr. Campbell’s testimony more fully. 

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15 – OPINION AND ORDER

IV. Developing the Record

An ALJ in social security cases has a duty to fully and fairly develop the record to assure 

that the claimant's interests are considered. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 

2001). However, the claimant bears the burden of proving the existence or extent of an 

impairment, such that the ALJ’s limited “duty to further develop the record is triggered only 

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

evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001).

Messmer argues the ALJ erred because finding Dr. Weller’s opinion inconsistent with 

other evidence triggered her duty to develop the record. As stated previously, the ALJ found Dr. 

Weller’s opinion inconsistent with other medical evidence. Tr. 27. Messmer confuses 

“inconsistent” evidence, which does not trigger a duty to further develop the record, with 

“ambiguous” evidence, which does. Because the record before the court is unambiguous, the 

ALJ satisfied her duty to develop the record.

CONCLUSION

For the above reasons I find that the ALJ supported his findings with substantial evidence 

in the record. As such, this Court holds that the ALJ’s RFC is free from legal error and therefore 

the Commissioner’s decision denying Messmer’s application for DIB is AFFIRMED.

IT IS SO ORDERED.

DATED this 23rd day of September, 2016.

 s/ Michael J. McShane 

Michael J. McShane

United States District Judge

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