IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BRIAN OSBORN, 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

HOWARD D. OLINSKY 

Olinsky Law Group 

300 S. State St., Suite 420 

Syracuse, NY 13202 

MARK A. MANNING 

Harder Wells Baron & Manning, PC 

474 Willamette Street, Suite 200 

Eugene, OR 97401 

Attorneys for Plaintiff 

I - OPINION AND ORDER 

Case No. 2:15-cv-01807-MA 

OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 1 of 21
BILLY J. WILLIAMS 

United States Attorney 

District of Oregon 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Po1iland, OR 97204-2902 

HEATHER L. GRIFFITH 

Social Security Administration 

Office of the General Counsel 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

MARSH, Judge 

Plaintiff Brian Osborn seeks judicial review of the final decision of the Commissioner of 

Social Security denying his application for disability insurance benefits (DIB) under Title II of the 

Social Security Act, 42 U.S.C. §§ 401-403, and application for Supplemental Security Income (SSI) 

disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court 

has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, I affom 

the Commissioner's decision. 

FACTUAL AND PROCEDURAL BACKGROUND 

On December 14, 2011, Plaintiff filed an application for a period of disability and disability 

insurance benefits. On December 21, 2011, Plaintiff filed an application for SSI disability benefits. 

In both applications, Plaintiff alleges disability beginning December 13, 2011, due to fibromyalgia, 

diabetes, and pancreatitis. Plaintiffs claim was denied initially and upon reconsideration. Plaintiff 

filed a request for a hearing before an administrative law judge ("ALJ"). An ALJ held a hearing on 

April 4, 2014, at which Plaintiff appeared with his attorney and testified. A vocational expert, 

2 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 2 of 21
Daniel R. McKinney, Sr., also attended the hearing and testified. At the hearing, Plaintiff amended 

his alleged onset date to April 1, 2012. On April 18, 2014, the ALJ issued an unfavorable decision. 

The Appeals Council denied Plaintiffs request for review, and therefore, the ALJ' s decision became 

the final decision of the Commissioner for purposes of review. 

Bomin 1969, Plaintiff was 42 years old on his alleged disability onset date and 44 years old 

on the date of the ALJ's decision. Plaintiff has obtained a GED, and has past relevant work as a 

service station attendant and shuttle driver, and has worked as an assembler, catering attendant, site 

manager, and carpenter. 

THE ALJ'S DISABILITY ANALYSIS 

The Commissioner has established a five-step sequential process for determining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step 

is potentially dispositive. The claimant bears the burden of proof at steps one through four. lvfolina 

v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574 

F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the 

claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 

1161 (9th Cir. 2012). 

Plaintiff meets insured status requirements for a DIB application through September 30, 

2015. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since 

April 1, 2012, his amended alleged onset date. At step two, the ALJ found that Plaintiff has the 

following severe impairments: obesity, fibromyalgia, diabetes, pancreatitis, peripheral neuropathy, 

degenerative disc disease, depression, and anxiety. At step three, the ALJ found that Plaintiffs 

impairment or combination of impairments, did not meet or medically equal a listed impaitment. 

3 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 3 of 21
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform light work 

but with the following limitations: 

no more than occasionally climb, stoop, crouch, kneel or crawl. He is limited to 

simple, entry-level work. He can have no transactional dealings with the public and 

no more than occasional interaction with coworkers. 

Transcript of Record ("Tr."), ECF No. 12 at 17. 

At step four, the ALJ found that Plaintiff is unable to perform his past relevant work. At step 

five, the ALJ dete1mined that considering Plaintiffs age, education, work experience, and residual 

functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can 

perform, such as small product assembler and inspector packer. Accordingly, the ALJ concluded 

that Plaintiff has not been under a disability under the Social Security Act from April 1, 2012, 

through the date of the ALJ's decision, April 18, 2014. 

ISSUES ON REVIEW 

On appeal to this court, Plaintiff contends the following etTors were committed: (1) the ALJ 

improperly evaluated his testimony; (2) the ALJ improperly evaluated the opinion of his treating 

physician, Elizabeth Neeley, M.D.; (3) the ALJ improperly evaluated the lay testimony of his 

girlfriend Veronica Schuening; and (4) the ALJ failed to include all of the limitations described by 

nonexamining agency psychologist Bill Hennings, Ph.D., in the RFC and hypothetical questions 

posed to the VE. The Commissioner argues that even if the ALJ erred, Plaintiff has not 

demonstrated harmful error. 

STANDARD OF REVIEW 

The district court must affom the Commissioner's decision if the Commissioner applied the 

proper legal standards and the findings are suppmied by substantial evidence in the record. 42 U.S.C. 

4 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 4 of 21
§ 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "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, 698 F.3d at 1159 (internal quotations 

omitted); Valentine, 574 F.3d at 690. The cou1i must weigh all the evidence, whether it supp01is or 

detracts from the Commissioner's decision. lvlartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one 

rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 

2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be affinned; 

"the comi may not substitute its judgment for that of the Commissioner." Edlund v. 1'1Jassanari, 253 

F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 

DISCUSSION 

I. The ALJ Provided Clear and Convincing Reasons for Discounting Plaintiff's 

Credibility 

A. Standards 

To determine whether a claimant's testimony regarding subjective pain or symptoms is 

credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first 

stage is a threshold test in which the claimant must produce objective medical evidence of an 

underlying impairment that could reasonably be expected to produce the symptoms alleged. 1vlolina, 

674 F.3d at 1112; Tommasetti v. Astrue, 533 F.3d 1035, I 039 (9th Cir. 2008). At the second stage 

of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear 

and convincing reasons for discrediting the claimant's testimony regarding the severity of the 

symptoms. Garrison, 759 F.3d at 1014-15; Carmickle, v. Commissioner Soc. Sec. Adm in., 533 F.3d 

1155, 1166 (9th Cir. 2008). 

5 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 5 of 21
The ALJ must make findings that are sufficiently specific to pe1mit the reviewing court to 

conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 

F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when 

making such credibility determinations include the objective medical evidence, the claimant's 

treatment histmy, the claimant's daily activities, inconsistencies in testimony, effectiveness or 

adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at 

1163; Tommasetti, 533 F.3d at 1039. 

At the hearing, Plaintiff testified that he suffers from fibromyalgia, diabetes, depression and 

anxiety, and has a history of pancreatitis. Plaintiff stated that he has a GED, has training in highway 

flagging, and received cooking training in the Job Corps. Plaintiff stated that he was self-employed 

as a gold miner from 1990 to 1997, then visited Mexico, and from 1999 to 2003, was in federal 

prison. Tr. 37-38. Plaintiff testified that he cm1'ently lives with his girlfriend often years. 

Plaintiff testified that he has someone else do his laund1y because he is unable to fold it due 

to cramping and pain in his hips. Tr. 41. Plaintiff stated that he does all his own cooking. Plaintiff 

testified that he uses medical marijuana daily for pain, controls his diabetes with medication and diet, 

and has numbness in his hands that he attributes to his diabetes. Tr. 42-43, 51-52. Plaintiff 

described that he has anger issues, and was convicted of assault in 1998. Tr. 45. Plaintiff stated that 

he is overweight, but denied that his weight prevents him from working. Tr. 50. Plaintiff testified 

that he has been hospitalized three times with pancreatitis, with the last occurrence in 2011. Tr. 50. 

Plaintiff estimated that he can sit for 15 minutes before experiencing pain, then he needs to 

move around or change positions. Plaintiff estimated that he can stand for 30 minutes before 

needing to change position. Plaintiff estimated he can walk for one block before pain in his hips and 

6 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 6 of 21
knees causes him to stop. Tr. 56. Plaintiff testified that he perfonns yoga stretches two times a day 

for 15 minutes each time, then he needs to rest. Plaintiff estimated that can only use his hands 30 

percent of each day because his hands cramp up after working for 10 minutes. Tr. 57. Plaintiff also 

stated that he should not work with the public because he has a bad attitude, and was fired in 1998 

for that reason. 

In an April 6, 2012 Function Report - Adult, Plaintiff described that in a typical day, he 

wakes, takes medication, has coffee, and checks the weather on the internet. Plaintiff described that 

he watches television using a recliner, and that he must sit sideways to be comfortable. Tr. 234. 

Plaintiff stated that he needs help caring for his two dogs and one cat, and that his daughter will take 

them for walks. Plaintiff stated he is unable to go camping any longer and can fish only from the 

bank. Plaintiff stated that pain wakes him every two hours and that he has low back pain and 

cramping. Tr. 235. Plaintiff noted his is mostly independent with self-care, and does not need 

reminders to take his medication. Plaintiff indicated that he and his girlfriend take turns with 

cooking, he has trouble standing at the stove to cook, but his able to do light dishes, laundry, 

cleaning, and can drive short distances. Tr. 236-37. Plaintiff denies doing any shopping. Tr. 237. 

In an April 6, 2012 Pain and Fatigue Questionnaire, Plaintiff stated that he has intense 

burning, aching and stinging pain in all of his muscles, limbs and joints, and described it as a 

constant hum of pain. Tr. 242. Plaintiff noted the pain is all day every day and worsened by any 

activity. Plaintiff noted he does not nap, but he will rest for 45 mintues after taking the dogs outside 

for 30 minutes. Tr. 242. Plaintiff stated that he can be up and active for one hour before needing 

to rest for a few days. Tr. 242. 

7 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 7 of 21
In the decision, the ALJ provided numerous reasons for finding Plaintiffs allegations of total 

disability less than fully credible. First, the ALJ reasonably determined that the severity of Plaintiffs 

symptoms is not supp01ted by the objective medical evidence. Chaudhry v. Astrue, 688 F.3d 661, 

670-71 (9th Cir. 2012) (holding ALJ properly may rely on inconsistency with medical evidence to 

discount claimant's credibility). The ALJ coll'ectly observed that during the relevant period, Plaintiff 

has experienced no exacerbations or hospitalizations for his pancreatitis. The ALJ detailed that 

Plaintiffs complaints of severe bilateral hand limitations are unsuppotted by imaging or other 

objective testing. Tr. 22, 924, 1127. And, as the ALJ noted, the imaging of Plaintiffs lumbar spine 

reveals no abnormalities to suppott the severity of Plaintiffs symptoms. Tr. 24, 923. Contrary to 

Plaintiffs suggestion, the objective testing from the consulting neurologist found Plaintiff had full 

strength with no atrophy in his upper extremities and that his mild neuropathy did not wall'ant futther 

nerve conduction or EMG testing. Tr. 1126-27. The ALJ also discussed that Plaintiffs complaints 

of disabling depression and anxiety are not supp01ted by any objective evidence ofin-patient or outpatient treatment or counseling. Tr. 21. Instead, as the ALJ detailed, Plaintiff reported that his 

depression and anxiety were improved on Cymbalta. Tr. 1120. Substantial evidence fully supports 

the ALJ' s findings, and thus, is a reasonable basis upon which to discount Plaintiffs credibility. 

Second, the ALJ reasonably found that Plaintiffs conservative course of treatment is 

inconsistent with his allegations of disabling impairments. See Parra v. Astrue, 481 F.3d 742, 751 

(9th Cir. 2007) ("[E]vidence of 'conservative treatment' is sufficient to discount a claimant's 

testimony regarding severity of an impaitment. "). The ALJ also correctly indicated that Plaintiffs 

diabetes was controlled for many years by diet alone, and that in 2013, Plaintiff began medication 

which has been successfully controlling his symptoms. Warre v. Commissioner of Soc. Sec. Admin., 

8 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 8 of 21
439 F.3d 1001, 1006 (9th Cir. 2006) (impahments that are effectively controlled with medication 

are not disabling). The ALJ noted that Plaintiff has received routine treatment for his fibromyalgia, 

and that Cymbalta appears to be controlling his symptoms. Tr. 24, 795-96. The ALJ's findings are 

wholly supported by substantial evidence in the record. Again, the ALJ reasonably discounted 

Plaintiffs credibility on this basis. 

Third, the ALJ appropriately considered Plaintiffs sporadic work history before the onset 

of his disability as undermining his allegation that his impairments are causing his unemployment. 

See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (noting that claimant "had an extremely 

poor work history and has shown little propensity to work in her lifetime, which negatively affected 

her credibility regardingher inability to work"); 20 C.F.R. § 416.929( c )(3) (providing that prior work 

history may be considered in assessing credibility). As the ALJ noted, in the fifteen years prior to 

alleging disability, Plaintiff has only five years of earnings at the substantial gainful activity level. 

Tr. 23, 219. The ALJ's findings are wholly supported by substantial evidence in the record, are a 

reasonable interpretation of the record, and will not be disturbed. 

Fourth, substantial evidence suppo1is the ALJ' s finding that Plaintiffs activities of daily 

living are inconsistent with Plaintiffs allegations of total disability. See lvfolina, 674 F.3d at 1113 

(explaining that even activities suggesting some difficulty functioning may be grounds for 

discrediting claims of a totally debilitating impairment). As the ALJ detailed, Plaintiff is able to 

house chores, drive short distances, and enjoys cooking, suggesting that Plaintiff is able to spend a 

significant amount of time on his feet contrary to his allegations. Tr. 23. And, the ALJ found 

Plaintiffs contention of total disability inconsistent with his reports of working around the house, 

cooking, and fishing. The ALJ reasonably concluded that Plaintiffs reported activities are 

9 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 9 of 21
inconsistent with his allegations of disabling levels of pain, and reasonably discounted his testimony 

on this basis. 

Fifth, the ALJ reasonably relied upon his own observation of Plaintiff at the hearing in 

assessing Plaintiffs credibility. The ALJ indicated that Plaintiff alleged he could sit only for 15 to 

30 minutes before needing to change position, yet during the hearing, the ALJ observed Plaintiff to 

sit comfmtably throughout. Plaintiff contends that the ALJ improperly relied upon his own 

observations. I disagree. See Tonapetyan v. Halter, 242F.3d1144, 1148 (9th Cir. 2001) (noting the 

ALJ may rely on his observations as pait of an overall credibility determination); Hanes v. Colvin, 

_ F. App'x _, 2016 WL 3212172 (9th Cir. June 10, 2016) (holding ALJ did not err in giving 

slight weight to his personal observations where observations ai·e not the "sole basis" of adverse 

credibility determination). The ALJ could reasonably find the Plaintiffs allegations were 

inconsistent with his abilities based on his personal observation. The ALJ did not en in including 

this factor in the overall credibility analysis. 

Plaintiff alleges that the ALJ ened in relying on Plaintiffs receipt of unemployment benefits, 

criminal history, and lack of candor in failing to repo1t self-employment income when working as 

a gold miner when discounting his credibility. I conclude that even assuming arguendo that the ALJ 

ened in discounting Plaintiffs credibility on these grounds, the eirnr is harmless. The ALJ' s 

remaining five reasons for discounting Plaintiffs testimony readily provide clear and convincing 

support for the adverse credibility determination and are wholly supported by substantial evidence 

in the record. Carmickle, 533 F.3d at 1162-63. Examining the record as a whole a!ld the credibility 

dete1mination specifically, leaves no doubt that the alleged e11'or does "not negate the validity of the 

ALJ's ultimate [credibility] conclusion." Batson, 359 F.3d at 1197. Thus, the alleged error is 

10- OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 10 of 21
harmless. Accordingly, the ALJ's adverse credibility determination is supported by specific, clear, 

and convincing reasons, backed by substantial evidence and inferences reasonably drawn from the 

record. lvfolina, 674 F.3d at 1113. 

II. Medical Evidence 

A. Standards 

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

among physicians' opinions. Carmickle, 533 F.3d at 1164. To reject the uncontroverted opinion of 

a treating or examining physician, the ALJ must present clear and convincing reasons. Bayliss v. 

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If a treating or examining doctor's opinion is 

contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons. 

Garrison, 759 F.3d at 1012; Ghanim, 763 F.3d at 1161. When evaluating conflicting opinions, an 

ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or 

conclusory. Thomas, 278 F .3d at 957. In addition, a doctor's work restrictions based on a claimant's 

subjective statements about symptoms are reasonably discounted when the ALJ finds the claimant 

less than fully credible. Bray v. Comm 'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); 

Batson, 359 F.3d at 1195. 

B. The ALJ Provided Specific and Legitimate Reasons for Discounting Dr. Neeley 's 

Opinion 

In an April 2012 opinion, Dr. Neeley opined that Plaintiff can lift five pounds occasionally 

and two pounds frequently, can walk or stand for two hours and sit for one hour in an eight hour day 

(with normal breaks). Tr. 779. Dr. Neeley opined that these limitations are due to Plaintiffs muscle 

tenderness, and that Plaintiffs pain and fatigue greatly effect his function, and that Plaintiffs 

restrictions began in March 2012 and are expected to continue indefinitely. Tr. 779-80. 

11 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 11 of 21
In Februmy 2014 Residual Functional Capacity Questionnaire, Dr. Neeley opined that 

Plaintiff can sit for five minutes and stand or walk for 10 minutes at time, would need to change 

position frequently, and would require unscheduled breaks eve1y20 minutes. Tr. 1137. Dr. Neeley 

opined that Plaintiff could occasionally lift up to 10 pounds and once a day lift 20 pounds, and could 

use his bilateral hands no more than 30 percent of the day for reaching, grasping, turning, twisting, 

and fine manipulation. Dr. Neeley opined that Plaintiff would miss work more than four times per 

month due to impairments, and is not capable of working eight hours a day, five days a week. Tr. 

1138. Dr. Neeley appears to suggest these restrictions began in 2008. Tr. 1137-39. 

Dr. Neeley also completed a Mental Capacity Assessment on Februaiy 25, 2014. Tr. 1141. 

Dr. Neeley opined that Plaintiff has moderate limitations in his ability to remember locations and 

work-like procedures, marked limitations in the ability to understand and remember short and simple 

instructions, and extreme limitations in his ability to understand and remember detailed instructions. 

Dr. Neeley opined that Plaintiff is markedly limited in his ability to cany out short and simple 

instructions, as well as detailed instructions, and perform activities within a schedule. Additionally, 

Dr. Neeley opined that Plaintiff is extremely limited in his ability to maintain concentration for 

extended periods, work in proximity to others without being distracted, complete a n01mal workday 

and workweek without interruptions from psychologically based symptoms, and perform at a 

consistent pace. Tr. 1141-42. Dr. Neeley opined that Plaintiff is markedly limited in his ability to 

deal with the general public, and extremely limited in his ability to ask simple questions or request 

assistance, respond appropriately to criticism from supervisors, or get along with coworkers without 

engaging in behavioral extremes. Finally, Dr. Neeley opined that Plaintiff is markedly limited in all 

areas of adaption, such as responding to workplace changes or setting realistic goals. Tr. 1143. Dr. 

12 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 12 of 21
Neeley indicates that the mental health opinion is suppo1ted by Plaintiffs history of head injuries, 

including two logging injuries, a motor vehicle accident, and a fall onto concrete. Tr. 1143. 

Dr. Neeley's opinions were contradicted by those of agency nonexamining physicians and 

psychologists Sharon B. Eder, M.D., Martin B. Lahr, M.D., Dorothy Anderson, Ph.D., and Bill 

Hennings, Ph.D. Thus, the ALJ was required only to provide specific and legitimate reasons for 

discounting Dr. Neeley's opinion. Plaintiff contends that the ALJ's reasoning fails to satisfy this 

standard, and therefore, has erred. I disagree. 

The ALJ provided several specific and legitimate reasons, suppo1ted by substantial evidence, 

for discounting Dr. Neeley's opinions. First, the ALJ noted that Dr. Neeley's opinions are 

inconsistent with her own treatment notes. Inconsistency between a treating physician's opinion and 

her own treatment notes is a specific and legitimate reason for rejecting that opinion. Ghanim, 763 

F.3d at 1161. Here, the ALJ discussed that Dr. Neeley's opinions reflecting such extreme physical 

limitations due to Plaintiffs muscle tenderness are inconsistent with her own treatment notes that 

Plaintiffs fibromyalgia was under good control. Tr. 19, 21-22. As the ALJ correctly summarized, 

Plaintiff complained to Dr. Neeley of all-over body aches in Februmy 2012, and that Dr. Neeley 

suspected fibromyalgia and recommended Cymbalta. Tr. 474-77. The ALJ noted that although 

Plaintiff reported continued pain, Plaintiff indicated to Dr. Neeley that his pain was 40 to 50 percent 

better after he began Cymbalta. Tr. 795-96. As the ALJ observed, in November 2012, Dr. Neeley's 

treatment notes reflect that Plaintiff reported his fibromyalgia pain under fairly good control, and that 

she prescribed Vicodin for Plaintiffs continued pain, and that Plaintiff repo1ted Vicodin was 

helping. Tr. 1133. 

13 - OPINION AND ORDER 

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Additionally, as the ALJ accurately indicated, Dr. Neeley's treatment notes reflect that 

Plaintiffs diabetes was well controlled with diet until August 2013, at which time Dr. Neeley 

prescribed glimepiride, and by the following month, Plaintiffs diabetes was under improved control. 

Tr. 474, 795, 1102-03, 1107. Moreover, as the ALJ c01Tectly found, there are no treatment notes 

in the record before me reflecting that Plaintiff suffered head injuries that Dr. Neeley contended 

support the extreme mental functioning limitations. The ALJ also discussed that Dr. Neeley' s 

treatment notes regularly include a depression diagnosis, and that they reflect improved mood and 

reduced anxiety once Plaintiff began Cymbalta. Tr. 21. To be sure, in August 2012, Dr. Neeley's 

notes reflect that Plaintiffs depression improved "significantly" on Cymbalta. Tr. 1120. As the ALJ 

discussed, Plaintiffhas not been hospitalized for his depression or anxiety, or been placed in any type 

of treatment, or counseling. Therefore, as the ALJ found, Dr. Neeley' s 2014 mental health opinion 

simply does not square with the routine, conservative psychological treatment reflected in Dr. 

Neeley's treatment notes. The ALJ's findings are wholly supported by substantial evidence. 

Therefore, based on the relatively moderate clinical findings and conservative treatment prescribed 

by Dr. Neeley, the ALJ reasonably concluded her treatment notes were inconsistent with her own 

opinions. On the record before me, this reason alone provides a specific and legitimate basis for 

discounting Dr. Neeley's opinions. Valentine, 574 F3d at 692-93 (holding inconsistency with 

physician's own treatment notes is a specific and legitimate reason to discount that opinion). 

Second, the ALJ pointed to contrary contemporaneous objective medical findings to discount 

Dr. Neeley's opinions. Contradictions between a physician's opinions and medical findings are a 

legitimate reason to discount a treating physician's opinion. See Batson, 359 F.3d at 1195 (ALJ may 

discredit treating physician's opinion that is unsuppo1ied by medical findings). As the ALJ correctly 

14 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 14 of 21
indicated, Dr. Neeley's assessed physical limitations are not supported by objective medical 

evidence. For example, as the ALJ discussed, on June 7, 2013, Plaintiff underwent a neurological 

consultation with Rodrigo Lim, M.D. Tr. 1125. Plaintiff complained of chronic lumbar and cervical 

spine pain, with atihralgias and myalgias in his upper and lower extremities. Dr. Lim found Plaintiff 

to have full motor strength with no atrophy, but diminished reflexes symmetrically. Tr. 1126. 

Plaintiff had decreased proprioception and vibratory sense at the toes, with decreased light touch in 

stocking distribution up to the ankles bilaterally. Dr. Lim diagnosed peripheral neuropathy, given 

the impaired senso1y modalities and reflexes, but considered it mild and held off ordering nerve 

conduction testing. Tr. 1127. Dr. Lim also noted Plaintiffs chronic, persistent cervical lumbosacral 

pain, and ordered CT scans of the neck and back. As the ALJ discussed, the cervical CT in June 

2013 showed n01mal vertebral heights at Cl-2 through C4-5, with mild to moderate loss of height 

at C5-6, with "no significant central canal stenosis is identified," at C6-7. Tr. 20, 924. And, as the 

ALJ indicated, Plaintiffs June 2013 lumbar CT revealed n01mal ve1iebral heights and alignment, 

no disk narrowing, and small bulges at the L4-5 and L5-S l levels with mild degenerative changes, 

and "minimal central stenosis," indicating no "definite abnormalities to account for [Plaintiffs] 

symptoms." Tr. 20, 923. 

Additionally, as the ALJ conectly observed, there is a complete absence of objective record 

support for Dr. Neeley's assessed 30 percent bilateral hand limitations. Again, Dr. Lim address 

Plaintiffs alleged neuropathy, but he found it mild and declined to conduct additional objective 

testing until to see ifthe condition would persist. Tr. 1127. To be sure, the record is devoid of any 

nerve conduction or EMO studies. 

15 - OPINION AND ORDER 

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Moreover, as the ALJ indicated, Plaintiff complained of disabling fibromyalgia, but the 

record is devoid of any rheumatologic tender point testing. As the ALJ accurately detailed, Dr. 

Neeley's treatment notes do not reflect that she conducted tender point testing to confinn her 

suspected fibromyalgia diagnosis, nor did she refer Plaintiff to a rheumatologist for follow up care. 

Tr. 19, 474; see SSR 12-2p, available at 2012 WL 3104869, at *3 (tender point testing is one 

method of diagnosing fibromyalgia). Therefore, I conclude the ALJ's finding that there is a lack of 

contemporaneous objective medical evidence to support Dr. Neeley's severe restrictions is wholly 

supported by substantial evidence and provides a second specific, legitimate basis for discounting 

her opinions. 

Third, the ALJ discounted Dr. Neeley's opinions because they are inconsistent with 

Plaintiffs self-reported activities of daily living. As the ALJ indicated, Plaintiffs activities of daily 

living are at odds with Dr. Neeley's assessed mental limitations, especially the number of"extreme" 

limitations in Plaintiffs concentration, persistence and pace, and social fi.mctioning. And, as the 

ALJ found, Plaintiff enjoys cooking, looked for work in 2011, and Dr. Neeley's treatment notes 

reflect that Plaintiff went fishing. Tr. 22, 1113. Examining the record as whole supports the ALJ' s 

rational inference that Dr. Neeley' s severe mental and physical limitations are inconsistent with 

Plaintiffs activities of daily living. },folina, 674 F.3d at 1111 (ALJ's finding must be upheld if they 

support more than one rational interpretation). When combined with the above reasons, this lends 

an additional legitimate basis for discounting Dr. Neeley's opinions, supported by substantial 

evidence in the record as a whole. 

Ill/ 

Ill/ 

16- OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 16 of 21
III. Lay Witness Testimony 

Lay witness testimony as to a claimant's symptoms or how an impahment affects his ability 

to work is competent evidence, which the ALJ must take into account. See Bruce v. Astrue, 557 F.3d 

1113, 1115 (9th Cir. 2009); Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 

2006); Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ is required to account for 

competent lay witness testimony, and if it is rejected, provide germane reasons for doing so. 

Valentine, 574 F.3d at 694. 

At the hearing, Plaintiffs girlfriend of ten years, Veronica Schuening, testified that Plaintiff 

has severe depression and is in severe pain. Tr. 61 -62. Ms. Scheuning testified that Plaintiffs pain 

is helped by medical marijuana. Tr. 62. Ms. Schuening also stated that Plaintiff could not work fulltime based on his impairments, that the percentage of time that Plaintiff is capable of working is low, 

and that he would need a job that is flexible to work even part-time. Tr. 63-64. 

Plaintiff argues that the ALJ erred in failing to provide germane reasons for discounting Ms. 

Scheuning's testimony. Specifically, Plaintiff contends that the ALJ ened in discounting the lay 

testimony because Ms. Scheuning may have a financial incentive in assisting Plaintiff being awarded 

disability benefits. 

In the decision, the ALJ thoroughly discussed Ms. Schuening's testimony and provided two 

germane reasons for discounting her testimony: (1) it is inconsistent with the objective medical 

record; and (2) it parroted Plaintiffs discredited testimony. As the ALJ indicated in the decision, 

Ms. Scheuning's testimony that Plaintiff suffers severe depression, leaving him unable to work fulltime is unde1mined by the largely routine and conservative treatment Plaintiff has received for his 

allegedly disabling conditions, and fails to account for the fact that Plaintiffs depression has 

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significantly improved on medication. Tr. 23. As discussed at length above, the ALJ's findings are 

wholly supp01ied by substantial evidence, and this constitutes a germane reason for discounting the 

lay testimony in this case. Bayliss, 427 F .3d at 1219 (holding inconsistency with medical evidence 

is a germane reason for discounting lay testimony). Additionally, the ALJ appropriately discounted 

Ms. Scheuning's testimony premised on Plaintiffs incredible reports. Valentine, 574 F.3d at 694 

(ALJ provides ge1mane reasons for rejecting lay testimony where that testimony is similar to 

claimant's validly rejected subjective complaints). 

I agree with Plaintiff that the ALJ inappropriately discounted Ms. Scheuning's testimony 

because she may have been financially motivated to assist Plaintiff in obtaining disability benefits. 

The record is devoid of any evidence of such a motivation. However, the error is ha1mless. lvlolina, 

674 F.3d at 1122. The ALJ has provided two other ge1mane reasons for discounting her testimony 

that are suppo11ed by substantial evidence in the record as a whole. Accordingly, the ALJ's enor is 

inconsequential to the nondisability determination, and therefore, is harmless. 

IV. The ALJ Did Not Err in Incorporating the Limitations Described by Dr. Hennings into 

the RFC 

Plaintiff contends that the ALJ did not adequately incorporate limitations described by 

nonexamining agency psychologist Dr. Hennings into the RFC and subsequent hypothetical posed 

to the VE. The RFC is the most a claimant can do despite his limitations and must include all 

credited limitations suppo1ied by substantial evidence in the record. See Bayliss, 427 F.3d at 1217. 

Similarly, the hypothetical question posed to the VE need only include those functional limitations 

supp011ed by substantial evidence. Id. Where the ALJ credits the opinion of a physician, the ALJ 

must translate the claimant's condition as described in the physician's opinion into functional 

limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 

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Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 18 of 21
On August 27, 2012, Dr. Hennings completed a Mental Residual Functional Capacity 

Assessment (MRFC), in which he opined that Plaintiff has no limitations in understanding and 

memory, concentration, persistence and pace, but has some limitations in social interaction. Tr. 105. 

Specifically, Dr. Hennings opined that Plaintiff is moderately limited in his ability to "interact 

appropriately with the general public" and is moderately limited in his ability to "accept instructions 

and respond appropriately to criticism from supervisors." Tr. 105. Dr. Hennings explained that 

Plaintiffrepotts attitude problems when dealing with authority figures and frustration when dealing 

with the public. Tr. 105. To accommodate those limitations, Dr. Hennings recommended that 

Plaintiffs interactions with the general public be limited to occasional, and that supervisors "present 

instructions and criticism in a normative manner." Tr. 105. 

In the decision, the ALJ accurately summarized Dr. Hennings' opinion, gave it "great 

weight," and indicated that Plaintiff would be given the "benefit of the doubt as to his complaints 

of difficulties with mentation and interactivity." Tr. 22. The ALJ incorporated Dr. Hennings' 

opinion into the RFC by limiting Plaintiff to "simple entry-level work" and that he "can have no 

transactional dealings with the public and no more than occasional interaction with coworkers." Tr. 

17. The ALJ did not include the specific language regarding supervisors presenting instructions and 

criticism in a "normative manner" into the RFC or hypothetical. 

Plaintiff argues that the ALJ's RFC and subsequent hypothetical fails to adequately 

incorporate Dr. Hennings' assessed moderate limitations concerning interactions with supervisors. 

Plaintiff maintains that including this additional limitation to the RFC may erode the occupational 

base, and therefore, the ALJ's step five findings are not suppo1ted by substantial evidence and the 

case must be remanded. Plaintiffs argument misses the mark. 

19 - OPINION AND ORDER 

Case 2:15-cv-01807-MA Document 22 Filed 10/19/16 Page 19 of 21
Here, the ALJ credited Dr. Hennings' opinion concerning Plaintiffs "mentation and 

interactivity" by giving Plaintiff the benefit of the doubt. Tr. 22. However, the ALJ did not credit 

Dr. Hennings opinion concerning Plaintiffs interaction with supervisors and that supervisors present 

instructions and criticism in a "no1mative mal'Uler." As discussed above, the ALJ appropriately 

rejected Dr. Neeley's opinion that Plaintiff has "extreme" limitations in his ability to accept 

instruction and respond appropriately to criticism from supervisors because those limitations are 

unsupported by clinical findings, unsupported by Dr. Neeley's treatment notes, and are inconsistent 

with Plaintiffs noted mood improvement on medication and conservative treatment. Thus, this 

limitation has been validly discredited elsewhere in the opinion. 

Moreover, Plaintiff does not suggest any concrete functional limitations resulting from Dr. 

Hennings' opinion that criticism and instructions from a supervisor be presented in a "normative 

mal'Uler." An ALJ' s RFC need not coITespond precisely to a physician's limitations; rather, the ALJ 

must resolve ambiguities in the record and translate Plaintiffs impairments into concrete functional 

limitations in the RFC. Stubbs-Danielson, 539 F.3d at 1174. The ALJ's determination to not 

include limitations concerning supervisors is a reasonable interpretation of the record, supported by 

substantial evidence in the record as a whole. Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 

2015). Therefore, the ALJ did not err in fashioning the RFC, and the subsequent hypothetical posed 

to the VE included all credited limitations. Osenbrock, 240 F.3d atl 165 (holding an ALJ may "limit 

a hypothetical to those impahments that are suppo1ied by substantial evidence in the record.") 

/Ill 

/Ill 

/Ill 

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CONCLUSION 

For the reasons set forth above, the Commissioner's final decision is AFFIRMED. This 

action is DISMISSED. 

IT IS SO ORDERED. 

DATED this _J5Z_ day of OCTOBER, 2016. 

Macolm F. Marsh 

United States District Judge 

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