IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LAWRENCE LEE MCLAIN, 2:15-CV-00024-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

LISA R. J. PORTER

JP Law PC

5200 S.W. Meadows Rd

Suite 150

Lake Oswego, OR 97035

(503) 245-6309 

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

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Case 2:15-cv-00024-BR Document 19 Filed 01/08/16 Page 1 of 21
DAVID MORADO

Regional Chief Counsel

HEATHER L. GRIFFITH 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-3709 

Attorneys for Defendant

BROWN, Judge.

Plaintiff Lawrence Lee McLain seeks judicial review of a

final decision of the Commissioner of the Social Security

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

for 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 filed an application for SSI on June 23, 2011, and

alleged a disability onset date of May 24, 2011.1 Tr. 305.2 His

1

 Plaintiff provided an alleged onset date of January 1,

2007, in his application, but at the hearing the ALJ accepted

Plaintiff’s request to amend his alleged onset date to May 24,

2011. Tr. 23, 47.

2

 Citations to the official transcript of record filed by

the Commissioner on May 22, 2015, are referred to as "Tr."

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application was denied initially and on reconsideration. An

Administrative Law Judge (ALJ) held a hearing on January 17,

2013. Tr. 42-90. At the hearing Plaintiff, his father, and a

vocational expert (VE) testified. Plaintiff was represented by

an attorney. 

On April 5, 2013, the ALJ issued an opinion in which she 

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

to benefits. Tr. 23-35. On November 10, 2014, that decision

became the final decision of the Commissioner when the Appeals

Council denied Plaintiff's request for review. Tr. 1-7. See

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

BACKGROUND

Plaintiff was born on October 12, 1973, and was 39 years old

at the time of the hearing. Tr. 303. Plaintiff has a GED. 

Tr. 354. He has past relevant work experience as a bicycle

assembler, a carpenter’s apprentice, a customer-service clerk,

and a telemarketer. Tr. 33. 

Plaintiff alleges disability due to obsessive compulsive

disorder (OCD), anxiety, a head injury, and “feet and leg

deformities.” Tr. 352. 

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

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medical evidence. See Tr. 29-32.

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 his

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.,

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

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at 690). 

The ALJ is responsible for determining credibility,

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

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 416.920. Each step is potentially

dispositive. 

 At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

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activity. 20 C.F.R. § 416.920(b). 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. 

§ 416.920(c). 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 a

number of listed impairments that the Commissioner acknowledges

are so severe they preclude substantial gainful activity. 20

C.F.R. § 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 his limitations. 20 C.F.R.

§ 416.945(a). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a 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.,

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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 he has done in the past. 20 C.F.R. § 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. § 416.920(a)(4)(v). See also

Keyser, 648 F.3d at 724. 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. § 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity since his May 24, 2011, amended

alleged onset date. Tr. 25.

At Step Two the ALJ found Plaintiff has the following severe

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impairments: “leg length discrepancy,” asthma, hepatitis C,

bipolar disorder, OCD, pain disorder, and attention deficit

disorder. Tr. 26. The ALJ found Plaintiff’s “alleged disability

arising, in part, from a head injury” to be nonsevere. Tr. 26. 

At Step Three the ALJ concluded Plaintiff's impairments do

not meet or equal the criteria for any Listed Impairment from 20

C.F.R. part 404, subpart P, appendix 1. The ALJ found Plaintiff

has the RFC to perform “a range of light work.” Tr. 27. The ALJ

also found Plaintiff is able to lift and to carry 20 pounds

occasionally and ten pounds frequently; to stand and to walk for

four hours in an eight-hour work day; to sit for six hours in an

eight-hour work day with a “sit/stand option in 30-minute

increments”; occasionally to operate foot controls; to climb

ramps, stairs, ladders, ropes, and scaffolds; to balance; to

stoop; and to crouch. Tr. 27-28. The ALJ found Plaintiff is

rarely able to knee or to crawl and that Plaintiff must avoid

exposure to irritants such as fumes, odors, dusts, gases, poorly

ventilated areas, hazardous machinery, unprotected heights, and

“operational control of moving machinery.” Tr. 28. The ALJ

found Plaintiff is able to perform simple, routine, and

repetitive tasks “consisting of one or two steps.” Tr. 28. The

ALJ found Plaintiff “is able to work in a low stress environment,

defined as only occasional decision-making, changes in work

setting, and judgment required on the job,” and he must not have

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any interaction with the general public. Tr. 28. Finally, the

ALJ found Plaintiff “is able to have superficial interaction with

a small group of co-workers, but cannot perform tandem tasks.” 

Tr. 28. 

At Step Four the ALJ concluded Plaintiff is unable to

perform his past relevant work. Tr. 33.

At Step Five the ALJ found Plaintiff can perform jobs that

exist in significant numbers in the national economy. Tr. 33. 

Accordingly, the ALJ found Plaintiff is not disabled. 

DISCUSSION

Plaintiff contends the ALJ erred when she (1) improperly

rejected Plaintiff’s testimony; (2) gave “little weight” to the

testimony of Plaintiff’s father, Michael McLain; (3) gave “little

weight” to the opinion of Plaintiff’s treating therapist, Jeff

Harmon, L.P.C.; (4) gave “some weight” to the opinion of

Plaintiff’s examining psychologist, Kenneth Dudley, Ph.D.; and

(5) failed to include all of Plaintiff’s restrictions in her

evaluation of Plaintiff’s RFC.

I. The ALJ gave clear and convincing reasons for partially

rejecting Plaintiff’s testimony.

Plaintiff alleges the ALJ erred when she failed to give

clear and convincing reasons for partially rejecting Plaintiff's

testimony at the January 2013 hearing.

In Cotton v. Bowen the Ninth Circuit established two

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requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

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

or combination of impairments could reasonably be expected to

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 pain 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).

At the March 2013 hearing Plaintiff testified he has

suffered “constant, chronic [pain], 24 hours a day” in his back,

and, as a result, he is not able to sit or to stand for more than

an hour. Tr. 50-51. Plaintiff stated “bending down and lifting

is very difficult,” and he has had nerve damage in his hands for

ten years. Tr. 58. Plaintiff also testified he survived a 120-

foot fall in “the mid-90s” that caused several mental problems. 

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Tr. 63. Plaintiff testified he cannot go into stores if there

are “too many people” in the store. Plaintiff stated he cannot

stay focused enough to read or to do paperwork. Plaintiff

testified he has suicidal thoughts that have become worse in the

past year, and, as a result, he has been hospitalized three times

“this year.” Tr. 68.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the

alleged symptoms,” but Plaintiff’s testimony “concerning the

intensity, persistence and limiting effects of [his] symptoms are

not entirely credible.” Tr. 32. The ALJ noted Plaintiff

reported to examining physician, Michael Rushton, D.P.M., on 

May 23, 2011, with a joint that was “painful, reddened and

swollen.” Tr. 485. Plaintiff stated he was having difficulty

with his daily activities due to “the sharp pain, which at times

[was] excruciating.” Tr. 485. Dr. Rushton diagnosed Plaintiff

with gout, “defer[red] a joint tap,” and discussed diet

recommendations with Plaintiff. Tr. 486. On June 8, 2011,

Plaintiff was seen by Dr. Rushton regarding joint pain, and 

Dr. Rushton again advised Plaintiff about his diet and declined

to do a joint tap. Tr. 465-66. On June 27, 2011, Plaintiff was

seen by Aaron Long, PA-C, seeking a handicap parking permit

related to his gout and right foot discomfort. Plaintiff,

however, told PA-C Long that his “foot is much better on gout

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meds” and “admit[ted] he can easily walk into stores . . .

because the distance is short.” Tr. 563. Plaintiff noted he had

“some difficulty getting the L leg up over logs in the woods at

times,” but PA-C Long noted that “would make it difficult to

justify a parking permit.” Tr. 563. Ultimately PA-C Long noted

Plaintiff “agree[d] that he ambulates effectively today and does

not need a sticker at this point. If it should get to this point

and the need is legitimate I will gladly assist.” Tr. 563. 

The ALJ noted throughout Plaintiff’s weekly counseling

sessions in 2011 and 2012 that Plaintiff reported varying levels

of anxiety, anger, and/or obsessive thoughts. Plaintiff’s

treating counselor, Jeff Harman, L.P.C., however, consistently

assessed Plaintiff with GAF3 scores in the low 60s and high 50s4

3 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)). 

4

 A GAF of 51-60 indicates 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). A GAF of 61-70 indicates "[s]ome mild symptoms (e.g.,

depressed mood and mild insomnia) or some difficulty in social,

occupational, or school functioning (e.g., occasional truancy, or

theft within the household), but generally functioning pretty

well, has some meaningful interpersonal relationships.” 

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

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from June 2011 through July 2012. In addition, although

Plaintiff testified he had been hospitalized for mental-health

reasons three times in the year before the hearing, the record

reflects only one hospitalization that occurred in September

2012. From September 2012 through November 2012 Plaintiff’s mood

continued to fluctuate, but Counselor Harman never assessed

Plaintiff with more than moderate symptoms. 

On this record the Court finds the ALJ provided clear and

convincing reasons supported by substantial evidence in the

record for finding Plaintiff's testimony was only partially

credible. The Court, therefore, concludes the ALJ did not err

when she rejected Plaintiff's testimony in part.

II. The ALJ did not err when she gave little weight to the 

November 2012 opinion of treating counselor Jeff Harman.

Plaintiff contends the ALJ erred when she gave little weight

to the November 2012 opinion of Counselor Jeff Harman. On

November 26, 2012, Counselor Harman completed a medicalimpairment questionnaire in which he reported Plaintiff suffered

from several mental symptoms including suicidal thoughts,

impairment of impulse control, generalized anxiety, difficulty

concentrating, persistent disturbances in mood, recurrent

obsessions, “intense and unstable interpersonal relationships,”

sleep disturbance, and “easy distractability.” Tr. 752. 

31-34 (4th ed. 2000).

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Counselor Harman declined to specifically assess Plaintiff’s

“mental abilities and aptitudes needed to do unskilled work” or

Plaintiff’s functional limitations. Tr. 756-57. Nevertheless,

Counselor Harman opined Plaintiff “would experience substantial

difficulty with stamina, pain or fatigue if [he] was working 

. . . eight hours a day, at the light or sedentary levels of

exertion” and had a “very poor” ability “to work 8 hours a day,

40 hours a week, and maintain a normal work pace.” Tr. 754. 

Counselor Harman also reported Plaintiff would have “substantial

difficulty getting along appropriately with members of the

public” and in “getting along with supervisors or co-workers.” 

Tr. 755. Counselor Harman opined Plaintiff would be absent from

work more than four times per month. Tr. 755. Finally,

Counselor Harman noted Plaintiff had suffered “three episodes of

decompensation within 12 months, each at least two weeks long.” 

Tr. 758. 

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

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those not acceptable 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. The ALJ must explain the weight

assigned to not acceptable medical sources to the extent that a

claimant or subsequent reviewer may follow the ALJ's reasoning. 

SSR 06-03p, at *6.

The ALJ rejected Counselor Harman’s opinion on the ground

that it is inconsistent with his treatment notes and the medical

record. For example, although Counselor Harman stated Plaintiff

had suffered three episodes of decompensation within 12 months,

each at least two weeks long, Counselor Harman consistently

assessed Plaintiff with GAF scores in the low 60s and high 50s

from June 2011 through July 2012. From September 2012 through

November 2012 Plaintiff’s mood continued to fluctuate, but

Counselor Harman never assessed Plaintiff with more than moderate

symptoms. In addition, the record reflects Plaintiff was

hospitalized for a short period only once because of mentalhealth issues. 

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

she gave little weight to Counselor Harman’s November 2012

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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 she gave only “some weight” to 

the opinion of Plaintiff’s examining psychologist, 

Dr. Dudley.

Plaintiff asserts the ALJ erred when he gave only “some

weight” to the January 6, 2013, opinion of Dr. Dudley.

On December 31, 2012, Dr. Dudley conducted a pyschodiagnostic examination of Plaintiff and found Plaintiff “endorsed

the supermajority of symptoms presented, at time with some

potential for symptoms exaggeration.” Tr. 745. Dr. Dudley noted

Plaintiff did not have any “difficulty with the ability to read

social and nonverbal cues” and “minimal difficulty in giving

additional information or details to his responses.” Tr. 745. 

Dr. Dudley reported Plaintiff’s mental-status examination

demonstrated Plaintiff had average reasoning ability, his

intellectual capacity was in the low-average range, and his

attention and concentration were in the low-average range. 

Tr. 746. Dr. Dudley noted the record did not contain a

neuropsychological evaluation, and he recommended “some form of

testing occur to evaluate [Plaintiff’s] level of functioning

across cognitive domains including language ability, memory,

attention and other executive functioning areas.” Tr. 749. 

Dr. Dudley also opined Plaintiff was able to “recall and act on

simply commands (1-2 steps) with no anticipated impairment,” but

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he would likely have “a severe level of impairment [in his

ability to sustain concentration and attention] in most

situations due to mood, anxiety and social deficits.” Tr. 749. 

Dr. Dudley opined Plaintiff “would be expected to be able to

maintain a brief level of [social interaction], [but] his ability

to sustain these [sic] over the course of a typical work day or

across a typical work week would be impaired.” Tr. 750. 

Specifically, Plaintiff 

would be able to manage interaction with a

supervisor/manager in regards to receiving

directions and requesting information, but would

not be able to manage ongoing demands of

interaction with the general public.

Tr. 750. Finally, Dr. Dudley opined Plaintiff would have

“minimal impairment in written communication. Verbal

communication was unimpaired.” Tr. 750.

An ALJ may reject an examining physician's opinion when it

is inconsistent with the opinions of other treating or examining

physicians if the ALJ makes "findings setting forth specific,

legitimate reasons for doing so that are based on substantial

evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751

(9th Cir. 1989)). When the medical opinion of an examining

physician is uncontroverted, however, the ALJ must give "clear

and convincing reasons" for rejecting it. Thomas, 278 F.3d at

957. See also Lester v. Chater, 81 F.3d 821, 830-32.

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The ALJ gave some weight to Dr. Dudley’s January 6, 2013,

opinion. For example, the ALJ found Dr. Dudley’s opinions

regarding Plaintiff’s inability to deal with the general public

and Plaintiff’s ability to maintain a brief level of interaction

with a supervisor or manager are supported by the record. The

ALJ also found Dr. Dudley’s opinion regarding Plaintiff’s ability

to recall and to act only on simple 1-2 step instructions was

supported by the record. The ALJ, therefore, incorporated those

restrictions into Plaintiff’s RFC. The ALJ, however, rejected

Dr. Dudley’s opinion that Plaintiff is unable to sustain

concentration and/or social functioning over the course of a

typical workday or work week because it was based, in part, on

Plaintiff’s self report and Dr. Dudley had noted Plaintiff

“endorsed the supermajority of symptoms presented . . . with some

potential for symptoms exaggeration.” In addition, the ALJ noted

Counselor Harman reported over the course of more than a year

that Plaintiff’s symptoms fluctuated but Counselor Harmon never

assessed more than moderate limitations.

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

she gave only some weight to the January 6, 2013, opinion of 

Dr. Dudley because the ALJ provided legally sufficient reasons

supported by substantial evidence in the record for doing so.

IV. The ALJ did not err when she gave little weight to the

testimony of Plaintiff’s father, Michael McLain.

At the hearing on January 17, 2013, Plaintiff’s father

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testified the depth of Plaintiff’s depression had become more

severe in the “past couple of years.” Tr. 73. Michael McLain

stated Plaintiff suffers from “total hopelessness” and is

“helpless.” Tr. 73. Michael McLain testified in the year before

the hearing that Plaintiff “gained most of his strength back, but

. . . his problem is depression.” Tr. 74. Michael McLain also

stated Plaintiff cannot get out of bed or go to work on one of

Plaintiff’s “bad days,” and Plaintiff does not have “any control

over how he’s going to feel from day to day.” Tr. 75. Michael

McLain testified Plaintiff’s condition is getting worse, and “for

days he won’t even leave the cabin because . . . [of] anxiety.” 

Tr. 76-77.

Lay testimony regarding a claimant's symptoms is competent

evidence that the ALJ must consider unless she "expressly

determines to disregard such testimony and gives reasons germane

to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511

(9th Cir. 2001). See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000) ("[A]n ALJ, in determining a

claimant's disability, must give full consideration to the

testimony of friends and family members."). The ALJ's reasons

for rejecting lay-witness testimony must also be "specific." 

Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).

The ALJ gave little weight to Michael McLain’s testimony on

the ground that it was not supported by the medical evidence such

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as Counselor Harman’s assessments throughout 2011 and 2012 that

Plaintiff did not suffer from more than moderate symptoms and 

Dr. Dudley’s opinion.

The Court concludes on this record that the ALJ did not err

when she gave little weight to the testimony of Michael McLain

because the ALJ gave reasons germane the witness for doing so.

V. The ALJ did not err in her assessment of Plaintiff's RFC.

Plaintiff contends the ALJ erred in her assessment of

Plaintiff's RFC because the ALJ failed to include Plaintiff's

limitations set out Plaintiff’s testimony and in the opinions of

Counselor Harman and Dr. Dudley.

Because the Court has found the ALJ properly rejected

Plaintiff’s testimony in part, properly gave little weight to

Counselor Harman’s opinion, and properly gave some weight to the

opinion of Dr. Dudley, the Court concludes the ALJ did not err

when she did not consider all of the limitations included in

Plaintiff’s testimony or in the opinions of Counselor Harmon and

Dr. Dudley when she assessed Plaintiff's RFC. 

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the 

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Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 8th day of January, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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