IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MARK B. DEMERS, 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

KATHERINE EITENMILLER 

474 Willamette Street 

Eugene, OR 97401 

Attorney for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

District of Oregon 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Ave., Suite 600 

Pmiland, OR 97204-2902 

MARTHA A. BODEN 

Social Security Administration 

Office of the General Counsel 

701 Fifth Ave., Suite 2900 

Seattle, WA 98104 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 6:15-cv-02256-MA 

OPINION AND ORDER 
MARSH, Judge 

Plaintiff Mark B. DeMers seeks judicial review of the final decision of the Commissioner 

of Social Security denying his application for a period of disability and disability insurance benefits 

("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403, and his 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, the decision of the Commissioner is affirmed. 

PROCEDURAL AND FACTUAL BACKGROUND 

Plaintiff protectively filed his application for a period of disability and DIB benefits on 

February 10, 2012. On March 14, 2014, Plaintiff protectively filed his application for SSL In both 

applications, Plaintiff alleges disability beginning June 10, 2011, due to depression, short-term 

memory loss, muscle weakness, cognitive difficulties, and tremors. Tr. Soc. Sec. Admin. R. ("Tr.") 

at 18 & 95, ECF No. 9. Plaintiffs claims were denied initially and upon reconsideration. Plaintiff 

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

July 29, 2014, at which Plaintiff appeared with his attorney and testified. A vocational expe1t, 

Jeffrey F. Tittelfitz, also appeared at the hearing and testified. On September 5, 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 ofreview. 

Plaintiff was bom in 1957, and was 53 years old on the alleged onset of disability date and 

56 on the date of the hearing. Plaintiff has eamed a GED, and has past relevant work as a bus driver, 

a delive1y driver, and inventory stock clerk. Tr. 31, 86. 

2 - OPINION AND ORDER 
THE ALJ'S DISABILITY ANALYSIS 

The Commissioner has established a five-step sequential process for dete1mining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. 

Each step is potentially dispositive. The claimant bears the burden of proof at steps one through 

four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett 

v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 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). 

The ALJ found that Plaintiff meets the insured status requirements through December 31, 

2016. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since 

his alleged onset of disability. At step two, the ALJ found that Plaintiff had the following severe 

impairments: depression, anxiety, alcohol abuse, and cannabis abuse. At step three, the ALJ found 

that Plaintiffs impairments, or combination ofimpahments, did not meet or medically equal a listed 

impairment. 

The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform a full 

range of work at all exertional levels with additional limitations: Plaintiff is able to "understand, 

remember and cany out only simple, routine, repetitive tasks and he can tolerate no more than 

occasional interaction with supervisors, coworkers and the public." Tr. 23. 

At step four, the ALJ found that Plaintiff is able to perfo1m his past relevant work as a 

delive1y driver. Tr. 31. The ALJ made alternative findings at step five, determining that 

considering Plaintiffs age, education, work experience, and residual functional capacity, other jobs 

exist in significant numbers in the national economy that Plaintiff can perform, including such 

3 - OPINION AND ORDER 
representative occupations as: janitor, hand packager, and floor attendant. Accordingly, the ALJ 

concluded that Plaintiff has not been under a disability under the Social Security Act from June 10, 

2011, through the date of the decision. 

ISSUES ON REVIEW 

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

improperly evaluated his testimony; (2) the ALJ improperly evaluated the opinions of examining 

psychologist Charlotte Higgins-Lee, Ph.D, treating psychiatrist Scott Mendelson, M.D., and 

counselor Tonya Hall, LCSW; (3) the ALJ improperly evaluated the lay testimony of his wife 

Barbara DeMers; and ( 4) the RFC fails to incorporate all his limitations. The Commissioner argues 

that the ALJ's decision is supp01ied by substantial evidence and is free oflegal error. Alternatively, 

the Commissioner contends that even ifthe ALJ erred, Plaintiff has not demonstrated hatmful enor. 

STANDARD OF REVIEW 

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

proper legal standards and the findings are supported by substantial evidence in the record. 42 

U.S.C. § 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 comi must weigh all the evidence, whether it supp01is or 

detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014); 

1\!Jartinez 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 

4 - OPINION AND ORDER 
Commissioner's conclusion, the Commissioner niust be affirmed; "the court may not substitute its 

judgment forthat of the Commissioner." Edlund>>. }vfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001 ); 

Garrison, 759 F.3d at 1010. 

DISCUSSION 

I. Plaintiff's Credibility 

To dete1mine 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. 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. lvfolina v. Astrue, 

674 F.3d 1104, I 112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (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. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th 

Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). 

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); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). 

Factors the ALJ may consider when making such credibility determinations include the objective 

medical evidence, the claimant's treatment history, the claimant's daily activities, and 

inconsistencies in testimony. 1 Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. 

1 As the Commissioner correctly indicates, Social Security Ruling ("SSR") 16-3p 

eliminated the use of the term "credibility." However, SSR 16-3p became effective March 28, 

2016. I have previously dete1mined that SSR 16-3p does not apply retroactively because 42 

5 - OPINION AND ORDER 
At the hearing, Plaintiff testified that he became unable to work in June 2011 due to tremors, 

weakness on his left side, confusion and emotional !ability. Tr. 47-48. Plaintiff stated that he was 

placed on short term disability until March 2012. Tr. 49, 51. Plaintiff testified that he attempted to 

return to work on a patt-time basis, but was unable to do so, then his job was eliminated by his 

employer. Tr. 53-54. Plaintiff testified that alcohol did not become an issue until June 2012 when 

his brother committed suicide. Tr. 55-56. Plaintiff stated that his wife left him in Janumy2013. Tr. 

56. Plaintiff testified that he is in recovery for alcoholism, and has been sober for 69 days. Tr. 56. 

Plaintiff testified that his cognitive issues prevent him from working, and that he has 

difficulty with his shmt term mem01y. Tr. 56. Plaintiff keeps a daily journal. Plaintiff attends 

counseling eve1y week and has a support network through his church. Tr. 57. Plaintiff stated that 

he lives in clean and sober housing he obtained through the Veterans Administration. Tr. 59. 

Plaintiff stated that he can walk to church, appointments, shopping, and to Alcoholics Anonymous 

meetings three times per week. Tr. 61. 

Plaintiff testified that in a typical day, he gets up, drinks coffee, writes in his journal, reads 

the Bible, eats a healthy breakfast, and walks to see his brother. Tr. 62. Plaintiff stated that he is 

tired in the afternoon and takes a nap. In the evening, Plaintiff testified that he typically watches a 

U.S.C. § 405(g) does not contain any express authorization from Congress allowing the 

Commissioner to engage in retroactive rulemaking. Smith v. Colvin, No. 6: 15-cv-O 1625-MA, 

2017 WL 388814, at *4 n.2 (D. Or. Jan. 27, 2017). See, e.g., Wright v. Colvin, No. 15-cv-02495-

BLF, 2017 WL 697542, *9 (N.D. Cal. Feb. 22, 2017) (holding SSR 16-3p does not apply 

retroactively); Thayer v. Colvin, No. 2:16-cv-00545-DWC, 2017 WL 132450, at *7 (W.D. Wash. 

Jan. 13, 2017) (same). I adhere to that rationale here. Therefore, because the ALJ's decision in 

this case was issued September 5, 2014-well before the effective date- SSR 16-3p does not 

apply in this instance. 

6 - OPINION AND ORDER 
movie. Tr. 63. Plaintiff testified that he reads all the information that his counselor Ms. Hall 

provides him. Tr. 63. 

Plaintiff testified that he takes Cymbal ta for depression, omeprazol for acid reflux, and 

terazosin for blood pressure. Tr. 65. Plaintiff stated that he did not believe he could lift 50 pounds 

and be on his feet for six or eight hours a day because he would get tired. Tr. 66. Plaintiff stated that 

he worked with his brother cutting Christmas trees for one day, but had to stop after four hours 

because it was too physically demanding. Tr. 67. Plaintiff testified that he is unable to work full 

time. Tr. 81. Plaintiff testified that three or four days each week, he does not leave his house due 

to depression and because he has nothing scheduled. Tr. 78. Plaintiff expressed interest in a 

working a job for 15 hours a week involving typing. Tr. 79. Plaintiff stated that he gets panic 

attacks two or three times in a month. Tr. 80. 

In an April 29, 2012 Function Report - Adult, Plaintiff indicated he will lift weights for an 

hour, then eat breakfast. Plaintiff reported attending events for his grandson, or attending a men's 

church group in the evenings, or watching television with his wife. Tr. 241. Plaintiff reported no 

difficulties with self care, is able to prepare meals, enjoys planting flowers, but can sometimes forget 

what he is doing. Tr. 243. Plaintiff indicated he walks a mile two to three times a week, and goes 

out three to four times each week. Plaintiff noted he gets agitated in public. Tr. 243. Plaintiff 

reported his wife pays the bills because he gets confused. Tr. 244. 

Plaintiff expressed difficulty with lifting, standing, walking, talking, hearing, stair climbing, 

memory, concentration, completing tasks, understanding, following instructions, and getting along 

with others. Tr. 245. Plaintiff indicated he has trouble finishing what he has started, and has 

difficulty with authority figures. Tr. 245. 

7 - OPINION AND ORDER 
In the decision, the ALJ offered several specific, clear, and convincing reasons for 

discounting Plaintiff's testimony. Brown-Hunter, 806 F.3d at 488-89. First, the ALJ discounted 

Plaintiff's testimony based on his inconsistent and unreliable reports about his alcohol consumption. 

A claimant's inconsistent repo1is can be a clear and convincing reason to discredit a claimant. See 

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) ("[C]onflicting or inconsistent 

testimony concerning alcohol use can contribute to an adverse credibility finding[.]"); Thomas v. 

Barnhart, 278 F.3d 947, 959 (9th Cir.2002) (upholding an adverse credibility finding where a 

claimant made inconsistent statements to her doctors about her alcohol and drug use). Here, the ALJ 

detailed that Plaintiff testified he did not start drinking until June 2012, and did not stmi drinking 

excessively until his brother's suicide in October 2012. Tr. 29. As the ALJ accurately found, 

Plaintiff's statements are contradicted by his repo1is to addiction counselors that he began drinking 

much earlier- in 2010 or 2011, even as early as 2008. Tr. 29, 924, 1012. Indeed, Plaintiff's 

allegation that his initial relapse into alcohol was caused by his brother's suicide is undermined by 

Plaintiff's statements to Dr. Turner, Plaintiff's treating psychiatrist while in inpatient alcohol 

rehabilitation. Plaintiff reported to Dr. Turner in February 2013 that he began drinking five years 

prior- well before his allegedly disabling symptoms. Tr. 923-24. And, as the ALJ co!Tectly found, 

Plaintiff repeatedly denied consuming alcohol to evaluators and primary health care providers when 

seeking care for his allegedly disabling symptoms in 2011and2012. Tr. 426, 470, 496, 525, 534, 

543, 624, 1151. The ALJ found Plaintiff's lack of truthfulness to his providers about his relapses 

compromised his credibility. The ALJ's findings are readily supported by substantial evidence in 

the record, and the ALJ could reasonably find the inconsistencies in Plaintiff's repo1ting detracted 

from his credibility. 1'.folina, 674 F.3d at 1111. 

8 - OPINION AND ORDER 
Second, the ALJ detailed numerous inconsistencies between Plaintiffs activities and his 

alleged limitations. An ALJ may consider inconsistent statements conceming symptoms and "other 

testimony by [Plaintiff] that appears less than candid in weighing Plaintiffs credibility." 

Tommasetti, 533 F.3d at 1039. The ALJ indicated that Plaintiffasse1ied his inability to get along 

with others is a significant obstacle to work. Tr. 29. The ALJ found Plaintiffs allegation of severe 

problems with social functioning unde1mined by his ability to attend group counseling sessions, 

alcoholic anonymous meetings, church services, and maintain a close relationship with his family. 

Tr. 29. There is little indication in this ve1y lengthy record that Plaintiff has difficulties getting 

along with others. As the ALJ c01Tectly found, Plaintiff regularly attended a men's church group, 

maintains a close suppo1i network of friends and family, and as the ALJ noted, generally interacted 

appropriately with providers, and frequently participated in group counseling sessions. Tr. 925, 980, 

1152, 1324-25. The ALJ findings are wholly supp01ied by substantial evidence. 

The ALJ similarly found that Plaintiffs alleged inability to sustain concentration and focus 

was undermined by his activities. The ALJ detailed that contra1y to Plaintiffs alleged limitations, 

he reported spending a great deal of time reading materials provided to him through counseling, and 

that he was able to leam computer programming quickly. Tr. 1192. Additionally, the ALJ found 

his alleged inability to focus and concentrate unde1mined by his report that he reads the Bible daily, 

and writes in a journal daily for extended periods. Tr. 62-63. The ALJ also found that Plaintiffs 

allegation of severe fatigue undermined by Plaintiffs admitted ability to walk for miles each day 

without the need to stop and rest. Tr. 60-62. Again, the ALJ's findings are readily suppo1ied by 

substantial evidence in the record and, combined with Plaintiffs inconsistent reporting about his 

9 - OPINION AND ORDER 
alcohol consumption, provide clear and convincing support for the ALJ' s adverse credibility 

determination. 1\Iolina, 674 F.3d at 1113. The ALJ did not en-. 

Third, the ALJ detailed that Plaintiffs allegations were not suppo1ied by the objective 

medical record. The lack of objective medical evidence to suppoti a claimant's allegations can be 

a clear and convincing reason to discredit a claimant, so long as it is not the only reason. Burch v. 

Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). In the decision, the ALJ detailed that Plaintiff 

complained of a constellation of neurologic symptoms, including difficulty reading, left side pressure 

in his head, short-term memo1y loss, right hand tremor, dizziness, dramatic mood swings, and 

emotional lability. Tr. 24, 29. The ALJ thoroughly examined all the medical evidence and testing. 

Tr. 24-28. The ALJ detailed that despite numerous comprehensive work-ups, Plaintiffs mentalstatus examinations were unremarkable but for "flat/blunted affect and some depressed/anxious 

moods." Tr. 29. To be sure, despite Plaintiffs insistence of some significant neurologic process, 

numerous providers ruled out multiple sclerosis, Parkinson's, lupus, and lyme disease as potential 

causes ofhis symptoms. Tr. 29-31, 471, 499, 525, 1153. As the ALJ discussed, Plaintiffs providers 

indicated that his presentation at times was inconsistent with his description of symptoms. Tr. 618, 

1153. The ALJ's detennination that the objective medical record does not support the severity of 

Plaintiffs alleged symptoms is wholly supported by substantial evidence, and lends additional clear 

and convincing support to the ALJ' s adverse credibility dete1mination. 

Lastly, the ALJ found that Plaintiff was not always compliant with medications, repeatedly 

relapsed into alcohol abuse, and tried to hide his behavior, all actions that undermined his credibility. 

It is well-established that unexplained non-compliance with treatment reflects on a claimant's 

credibility. lvfolina, 674 F.3d 1113-14; Tommasetti, 533 F.3d at 1039. The ALJ's findings are 

10- OPINION AND ORDER 
clearly supported by the record. As the ALJ correctly noted, Plaintiff stopped taking his Cymbalta 

for his depression, choosing instead to drink, despite acknowledging that the medication was helpfol. 

Tr. 469, 1057. And, as the ALJ indicated, the record also reveals numerous relapses and two DUis 

during the period at issue. Tr. 1002, 1169, 1171, 1324. For example, shortly after being admitted 

to inpatient rehabilitation, Plaintiff left the grounds, consumed alcohol and marijuana, and returned 

the following day accompanied by his twin brother. Tr. 1066, 1118. Substantial evidence amply 

supports the ALJ's findings and further bolsters the ALJ's negative credibility assessment. 

In summary, the ALJ has provided specific, clear and convincing reasons backed by 

substantial evidence in the record as a whole to support the adverse credibility detennination. 

Accordingly, the ALJ did not err. 

II. The ALJ Did Not Err in Evaluating the Medical Evidence 

A. Standards 

In general, the opinion of a treating physician is given more weight than the opinion of an 

examining physician, and the opinion of an examining physician is afforded more weight than the 

opinion of a nonexamining physician. Ghanim, 763 F.3d at 1160; Garrison, 759 F.3d at 1012; Orn 

v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "If a treating physician's opinion is well-suppotied by 

medically acceptable clinical and laborato1y diagnostic techniques and is not inconsistent with the 

other substantial evidence in [the] case record, [it will be given] controlling weight." Orn, 495 F .3d 

at 631 (internal quotations omitted) (alterations in original); 20 C.F.R. §§ 404.1527( c), 416.927( c ). 

To reject the uncontradicted opinion of a treating physician, the ALJ must provide "clear and 

convincing reasons that are supp01ied by substantial evidence." Bayliss v. Barnhart, 427 F .3d 1211, 

1216 (9th Cir. 2005). 

11 - OPINION AND ORDER 
If the treating physician's opinion is contradicted, the ALJ must consider how much weight 

it is entitled to considering the factors in 20 C.F.R. § 404.1527( c )(2-6). The factors include the 

length of the treatment relationship, the frequency of examination, the nature and supportability of 

the opinion, and its consistency with other evidence in the record as a whole. 20 C.F.R. § 

404.1527(d)(2-6); Ghanim, 763 F.3d at 1161. If a treating or examining doctor's opinion is 

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

Ghanim, 763 F.3d at 1161. However, "[t]he ALJ need not accept the opinion of any physician, 

including a treating physician, if that opinion is brief, conclusory, and inadequately supported by 

clinical findings." Thomas, 278 F.3d at 957. 

B. The ALJ Did Not Err in Discounting Dr. Higgins-Lee's Opinion 

Plaintiff argues that the ALJ erred in failing to consider or assign weight to Dr. Higgins-Lee's 

opinion that Plaintiff suffers from cognitive impairment in verbal processing abilities. Pl. 's Br. 12, 

ECF No. 14. Plaintiff argues that the ALJ erred in finding Dr. Higgins-Lee's diagnosis of cognitive 

impairment "not severe" at step two and failed to properly consider his cognitive impairments when 

formulating his RFC. The court disagrees. 

Dr. Higgins-Lee performed a comprehensive neuropsychological evaluation with testing 

covering two days, October 11 and 15, 2011, and additional testing on October 29, 2011. Tr. 453. 

Dr. Higgins-Lee conducted an extensive interview, including a discussion of Plaintiffs medical and 

psychological problems, history of alcoholism, and mental status examination. Tr. 452-54. Dr. 

Higgins-Lee conducted numerous tests, including WAIS-IV, Wechsler Memo1y Scale-III, Woodcock 

Johnson III Tests of Achievement, Boston Naming Test, Stroop Word and Color Test, Trails A & 

B, and Personality Assessment Invento1y, among others. Tr. 452. Dr. Higgins-Lee noted that 

12 - OPINION AND ORDER 
Plaintiffs clinical scales for anxiety and depression were ve1y elevated, and there were no 

indications of alcohol or drug use. Tr. 454. Dr. Higgins-Lee indicated that Plaintiff was alert and 

oriented throughout the interview and testing, and that testing revealed average sustained attention 

and concentration. Tr. 454. However, on story recall, Plaintiff became flushed, dizzy, and could not 

concentrate. Tr. 454-55. Dr. Higgins-Lee noted Plaintiffs scores on timed tests were consistently 

low, and that Plaintiff indicated he was experiencing some specific fears and anxiety. Tr. 457. Dr. 

Higgins-Lee diagnosed cognitive impaitment NOS (processing speed - verbal memory), major 

depression, and generalized an,'Ciety disorder. Tr. 459. 

To the extentthat Plaintiff challenges the ALJ's finding that his cognitive impairment is "not 

severe" at step two, even assuming arguendo that the ALJ ened, the error would be hmmless, a point 

Plaintiff concedes in his briefing. See Pl.' s Br. 13, n.2, ECF No. 13. The ALJ resolved step two in 

Plaintiffs favor, continuing with the sequential analysis, and the ALJ considered Plaintiffs alleged 

cognitive deficits when fashioning the RFC. Burch, 400 F.3d at 682; see also Gray v. Comm 'r Soc. 

Sec. Adm in., 365 F. App'x 60, 61 (9th Cir. 2010) (rejecting argument that the ALJ ened at step two 

by determining certain impaitments were nonsevere, because any alleged enor was harmless since 

"the ALJ concluded that [claimant's] other medical problems were severe impairments"). 

The court rejects Plaintiffs contention that the ALJ ened in failing to assign specific weight 

to Dr. Higgins-Lee's opinion in the decision. Dr. Higgins-Lee's opinion and diagnosis of cognitive 

impairment was contradicted by the several other opinions of record, therefore, the ALJ was required 

to provide specific and legitimate reasons for discounting it, backed by substantial evidence.2 An 

2 Dr. Higgins-Lee's opinion that Plaintiff has a cognitive impaitment diagnosis is 

contradicted by Drs. Boggs, Gibbs, Olander, and Madden. 

13 - OPINION AND ORDER 
ALJ satisfies the "substantial evidence" requirement by "setting out a detailed and thorough 

summmy of the facts and conflicting clinical evidence, stating his interpretation thereof, and making 

findings." Garrison, 759 F.3d at 1012 (internal quotations omitted). "The ALJ must do more than 

state conclusions. He must set fo1ih his own interpretations and explain why they, rather than the 

doctors, are correct." Id. The ALJ's reasoning readily meets this standard. 

Contra1y to Plaintiffs asse1iion, the ALJ thoroughly discussed Dr. Higgins-Lee's evaluation 

at step two, as well as in the discussion of the medical evidence when assessing Plaintiffs RFC. 

Tr. 21, 25. At step two, the ALJ set out a detailed summary of Dr. Higgins-Lee's cognitive 

impairment diagnosis, the ALJ offered his own interpretation of the evidence, and provided a host 

ofreasons for discounting Dr. Higgins-Lee's opinion and diagnosis: 

this diagnosis is inconsistent with the totality of the objective findings. No treating 

source identified [Plaintiff! as having a cognitive disorder, instead attributing any 

mild to moderate cognitive deficits as symptoms of depression/anxiety. This 

explanation seems more consistent with the documented longitudinal hist01y, 

[Plaintiffs] reports that he had no such problems prior to the alleged onset date, and 

the lack of an intervening event (such as a head injury) to explain the development 

of such deficits. 

Inconsistency with the medical record as a whole is a specific and legitimate basis for 

discounting a physician's opinion. Orn, 495 F.3d at 631 (consistency with the record as a whole is 

a valid factor to consider when weighing medical opinions). As the ALJ discussed when evaluating 

the medical evidence, Dr. Gibbs conducted a independent work-up, screened Plaintiff for cognitive 

impairment, and his treatment notes reflect Plaintiff scored a 29/30 on the Mini-Mental State 

Examination, indicating n01mal cognition. Tr. 473-74. Contrmy to Dr. Higgins-Lee, Dr. Gibbs 

opined that severe depression "is the core of [Plaintiffs] problems." Tr. 24, 469-71. Similarly, the 

ALJ noted Dr. Boggs conducted numerous diagnostic tests to rule out a neurologic disorder to 

14 - OPINION AND ORDER 
explain Plaintiffs symptoms, but concluded Plaintiff has an "emotional disorder of a 

depressive/anxiety nature." Tr. 24, 425-26. The ALJ also discussed that due to the lack of a 

neurologic explanation for Plaintiffs symptoms and a positive ANA marker, Plaintiff was refe!Ted 

to William Hinz, M.D., a rheumatologist for further evaluation. Tr. 25, 494. Dr. Hinz could find 

no signs of a connective tissue disorder and concluded the primmy issue was neuropsychiatric, and 

recommended SSRI (antidepressant) therapy. Tr. 25, 499. Based on the lack of objective evidence 

in the record, the ALJ reasonably found Dr. Higgins-Lee's diagnosis of cognitive impairment 

inconsistent with the totality of other medical opinions. 

Additionally, as the ALJ accurately found, none of Plaintiffs treating providers progress 

notes cany a diagnosis of cognitive impairment. See, e.g., Tr. 524, 562, 613. Indeed, Terrence 

Bancroft, P.A., Plaintiffs treating provider from Janumy to July 2012, did not include any type of 

cognitive limitation in his diagnoses or problem list. See, e.g., Tr. 524, 531, 562. Likewise, 

treatment notes from Scott Mendelson, M.D., Plaintiffs treating psychiatrist at the Veterans 

Administration, do not include any type cognitive disorder diagnosis. See, e.g., Tr. 613, 640, 1178. 

The ALJ' s reasoning is wholly suppmied by substantial evidence. Therefore, the inconsistency with 

the other objective evidence in the record clearly provides a specific and legitimate basis for giving 

Dr. Higgins-Lee's diagnosis and opinion less weight. The ALJ did not err in evaluating the opinion 

Dr. Higgins-Lee. 

B. Scott 1Vfendelson, i'1LD. and Tonya Hall, LCSW 

Plaintiff complains that the ALJ failed to provide specific and legitimate reasons for 

discounting the August 12, 2014 opinion of Dr. Mendelson and Tonya Hall, LCSW. After the 

hearing, but before the ALJ issued the decision, Dr. Mendelson and Ms. Hall prepared Mental 

15- OPINION AND ORDER 
Residual Functional Capacity Form ("MRFC"), in which they opined that Plaintiff has several 

marked limitations and several moderate limitations. Tr. 1396-99. On the check-the-box MRFC 

form, "moderate" limitations are defined as those which seriously interfere with "the individual's 

ability to perfmm the designated activity on a regular and sustained basis." Tr. 1396. The MRFC 

form defines "marked" limitations as those which "preclude[] the ability to perform the designated 

activity on a regular and sustained basis." Tr. 1396. As the ALJ correctly indicated, Dr. Mendelson 

and Ms. Hall opined that Plaintiff was moderately limited in his ability to remember locations and 

work-like procedures, maintain attention and concentration for extended periods, perform activities 

within a schedule, sustain an ordinmy routine without special supervision, work in proximity to 

others without being distracted, make simple work-related decisions, interact appropriately with the 

public, respond appropriately to criticism from supervisors, respond appropriately to changes in the 

work place, take appropriate precautions around hazards, and set realistic goals. Tr. 1397-99. Dr. 

Mendelson and Ms. Hall opined that Plaintiff would be markedly limited in his ability to understand, 

remember, and carry out detailed instructions, complete a normal work day and work week without 

interruptions from psychologically based symptoms without an unreasonable amount of rest periods, 

and travel to unfamiliar places or use public transportation. Tr. 1397-99. 

In the decision, the ALJ gave Dr. Mendelson and Ms. Hall's opinion "some weight" because 

they failed to identify Plaintiffs diagnoses and or offer any clinical diagnoses to support the checkthe-box MRFC. Tr. 28. An ALJ may reject check-the-box forms that are inadequately explained . 

. Molina, 674 F.3d at 1111; Crane v. Shala/a, 76 F.3d 251, 253 (9th Cir. 1996). As the ALJ aptly 

concluded, the check the box form contains no infotmation, clinical findings, or explanation for the 

boxes checked, limitations assessed, or diagnoses to support the assessed limitations. Thus, the ALJ 

16 - OPINION AND ORDER 
could reasonably discount the Dr. Mendelson and Ms. Hall's MRFC opinion because it lacked an 

adequate explanation to support the conclusions contained therein. This is a specific and legitimate 

reason for discounting the limitations assessed in the MRFC. 

Additionally, the ALJ noted the limitations on the MRFC were inconsistent with degree of 

restriction identified in Dr. Mendelson's treatment notes. Tr. 30. Inconsistency between a 

physician's treatment notes and his opinion is a specific and legitimate basis to discount that opinion. 

Ghanim, 763 F.3d at 1161; Tommasetti, 533 F.3d at 1041. As the ALJ discussed, Dr. Mendelson's 

progress notes reflect that Plaintiff rep01ied a range of symptoms beginning in June 2011 such as 

difficulty with mood !ability, impulse control, anger, and that Plaintiff reported improvement of these 

symptoms with Cymbalta. Tr. 26, 638. Additionally, the ALJ discussed that Dr. Mendelson's notes 

reflect that Plaintiff continued to complain of fatigue and shortness of breath and that 

neuropsychological testing failed to reveal any cognitive dysfunction. Tr. 638. As the ALJ 

accurately indicated, Plaintiffs presentation was often odd with his alleged deficits, and that his 

speech, psychomotor activity and demeanor were normal. Tr. 618, 638, 1324-25. To be sure, Dr. 

Mendelson's treatment notes do not reflect marked limitations in Plaintiffs ability to travel to 

unfamiliar places or use public transportation, which is contrary to the limitations assessed in the 

MRFC. 

The cou1i is not persuaded by Plaintiffs contention that the ALJ failed to account for Dr. 

Mendelson and Ms. Hall's assessed moderate limitations in Plaintiffs ability to interact with 

supervisors. According to Plaintiff, this limitation fails to account for his "angry outbursts." See 

Pl. 's Br. 15, ECFNo. 14. The ALJ thoroughly discussed the occasional references to ang1youtbursts 

and inappropriate interactions contained in the record, and limited Plaintiff to no more than 

17 - OPINION AND ORDER 
occasional interaction with supervisors, coworkers, and the public in the RFC. Tr. 29-31. As the 

ALI referenced, notations to "ang1y outbursts" and disrespectful behavior occuned during Plaintiffs 

inpatient rehabilitation after Plaintiff left the premises on a weekend pass and consumed alcohol, 

returned late from a second pass, and he ultimately was discharged from the program. Tr. 1066-67. 

Rehabilitation staff indicated that Plaintiff seemed to have difficulty with the rules and committing 

to the program. Tr. 1067. And, as the ALJ conectly indicated, the remaining complaints of anger 

management and irritability stemmed from Plaintiffs wife. Tr. 30, 254, 425, 540. The ALJ 

determined that "the social limits included in the RFC accommodate claimant's belligerent style of 

interaction when drinking." Tr. 31. The ALJ's findings are wholly supported by substantial 

evidence. Even if the record could support the conclusion that Plaintiff suggests, the ALJ' s findings 

are supported by reasonable inferences drawn from the record and will not be disturbed. lvfolina, 674 

F.3dat 1111. 

Having reviewed Dr. Mendelson' s treatment notes, I conclude the ALJ could reasonably find 

them inconsistent with the severity of the limitations assessed in the MRFC, and provides a specific 

and legitimate basis for pmiially discounting the limitations assessed in the MRFC. Tommassetti, 

533 F.3d at 1041. 

III. The ALJ Did Not Err in Discounting Lay Testimony of Plaintiff's Wife 

Lay witness testimony as to how a claimant's symptoms affect his ability to work is 

competent evidence, which the ALJ must take into account. }dolina, 674 F.3d at 1114; 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 gennane reasons for doing so. Valentine, 574 F.3d 

at 694. 

18 - OPINION AND ORDER 
In an April 30, 2012 third party Function Report, Plaintiffs wife, Barbara DeMers noted that 

she spends six hours each day with Plaintiff. Ms. DeMers indicated that Plaintiff has trouble 

remembering what he is supposed to do. She described that Plaintiff wakes up in the morning and 

writes in his journal and does his reading. She noted Plaintiff does not have any difficulty with self 

care, and can prepare his own breakfast and lunch. Tr. 249-50. Ms. DeMers indicated that Plaintiff 

can load and unload the dishwasher, folds laundry, and waters the grass. She noted that Plaintiff 

typically goes shopping with his brother, and can forget where he is going. Tr. 250. 

Ms. DeMers indicated that Plaintiff cannot pay the bills because he cannot remember who 

to pay and gets confused. Tr. 251. She reported that it can take all day for Plaintiff to write in his 

journal because he has difficulty concentrating. Ms. DeMers also indicated that Plaintiff attends 

men's group at church once a week and counseling once a week. Tr. 252. She also noted that 

Plaintiff gets disoriented in large public spaces and is not comfortable in crowds. Tr. 252. Ms. 

DeMers noted that Plaintiffhas difficulty tracking conversations, cannot follow instructions and gets 

frustrated. Tr. 253. She estimated that Plaintiff can walk one mile before needing to rest for 15 

minutes. 

The ALJ provided several reasons gennane to Ms. DeMers for discounting her testimony. 

First, the ALJ noted that Ms. DeMers' testimony parroted the allegations of Plaintiff, which the ALJ 

rejected. Here, Ms. DeMers described that Plaintiff is unable to follow simple directions, suffers 

short term memo1y loss, and has difficulty concentrating, allegations akin to those asserted by 

Plaintiff. Tr. 248-29. As discussed at length above, the ALJ appropriately discounted Plaintiffs 

similar subjective complaints. Therefore, the ALJ has provided a gennane reason for rejecting Ms. 

DeMers' comparable testimony. }vfolina, 674 F.3d at 1114; Valentine, 574 F.3d at 694. 

19. - OPINION AND ORDER 
Second, the ALJ found Ms. DeMers' testimony inconsistent with the medical evidence of 

record. Inconsistency with the medical record can be a germane reason for discounting lay 

testimony. Bayliss, 427 F.3d at 1218 (conflicts with the medical evidence a ge1mane reason to 

discount lay testimony). But, the ALJ may not discredit lay testimony because it is not conoborated 

by medical evidence. As the ALJ accurately found, contraiy to Ms. DeMers' statement that Plaintiff 

is unable to follow simple instrnctions, repeated mental status examinations show that Plaintiff is 

capable of following one to two step commands without difficulty. Tr. 473, 595-96, 624-26, 1152. 

The ALJ' s reasoning is backed by substantial evidence, and therefore provides another reason 

ge1mane to Ms. DeMers for discounting her testimony. 

Third, the ALJ found that Ms. DeMers' allegations of Plaintiffs limitations were inconsistent 

with his abilities and activities. For example, the ALJ noted that Ms. DeMers indicated that plaintiff 

had difficulty comprehending new information, yet Plaintiff admitted he learned computer 

programming quickly. Again, the ALJ findings are readily suppo1ied by substantial evidence and 

the ALJ could reasonably discredit Ms. DeMers on this basis. Accordingly, the ALJ has provided 

multiple germane reasons germane to Ms. DeMers for discounting her testimony; the ALJ did not 

err. 

IV. RFC Adequately Accounted for Any Alleged Cognitive Deficits or Problems with Pace 

Plaintiff asse1is that the ALJ' s RFC assessment restricting him to "simple" work improperly 

accounted for his alleged cognitive deficits. Pl.' s Opening Br. 14, Pl.' s Reply Br. 2-3. At step three, 

the ALJ's found that Plaintiff has "moderate" limitations in concentration, persistence, and pace. 

Tr. 22. The ALJ' s RFC assessment represents all of a claimant's work-related limitations, including 

non-severe limitations. 20 C.F.R. §§ 404.1545(a)(l-2); 416.945(a)(l-2). An RFC restricting a 

20 - OPINION AND ORDER 
claimant to "simple" tasks, if based upon the record, may be consistent with a moderate or mild 

limitation in concentration, persistence, and pace. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-

74 (9th Cir. 2008). 

Plaintiff relies on previous findings by courts in this district addressing moderate or mild 

limitations in concentration, persistence, and pace and an RFC restricting a claimant to "simple" 

work. This court has found that such a work restriction alone, without further explanation by the 

ALJ, does not adequately capture a "moderate" limitation in concentration, persistence, and pace. 

See Lee v. Colvin, 80 F.Supp.3d 1137, 1150-51 (D. Or. 2015)( concluding that moderate limitation 

in concentration, persistence, and pace was not addressed by ALJ, included in RFC or hypotheticals 

to vocational expe1t); Brinkv. Comm 'r Soc. Sec. Admin., 343 Fed. App'x 211, 212 (9th Cir. 2009) 

(finding the ALJ erred by accepting that claimant had limitations as to concentration, persistence, 

or pace but failing to include such limitations in the RFC and hypothetical questions to vocational 

expert). The comt finds these cases distinguishable. 

On July 19, 2012, Dorothy Anderson, Ph.D., a reviewing psychologist for Disability 

Determination Services ("DDS"), found that Plaintiff has "moderate" restrictions in concentration, 

persistence, and pace in the psychiatric review technique utilized for assessing the "B" criteria for 

psychological impairments. Tr. 106. However, later in the more detailed assessment of Plaintiffs 

residual functional capacity, Dr. Anderson specifically opined that Plaintiff was not significantly 

limited in his ability to understand, remember and cany out sho1t and simple instructions. Tr. 105. 

Additionally, Dr. Anderson opined that Plaintiff can "cany out and maintain" concentration, 

persistence, and pace for one to two step tasks, but is unable to do so for more complex tasks due 

to his depressive symptoms. Tr. 106. On reconsideration, Robert Herny, Ph.D., another reviewing 

21 - OPINION AND ORDER 
psychologist for DDS, likewise found Plaintiff had moderate limitations with concentration 

persistence and pace for the "B" critera. Tr. 121. Similarly, Dr. Herny provided additional detail 

when assessing Plaintiffs RFC, opining that Plaintiff is not significantly limited in understanding, 

remembering or carrying out short and simple instructions, and that Plaintiff is able to sustain and 

maintain sufficient concentration, persistence and pace for 1-2 step tasks. Tr. 123-24. The ALJ gave 

great weight to Drs. Anderson and Berny's opinions. Tr. 30. 

In contrast, as discussed at length above, the ALJ properly rejected Dr. Higgins-Lee's 

diagnosis of cognitive disorder at step two, properly rejected concentration, persistence, and pace 

limitations assessed by Dr. Mendelson, properly discounted Plaintiffs testimony concerning his 

alleged cognitive difficulties, trouble concentrating, and lack of focus, and rejected similar 

allegations from the lay witness. The ALJ found that Plaintiffs alleged difficulty following simple 

instructions was undermined by repeated mental status examinations showing him capable of 

perfo1ming one to two step commands without difficulty and attributed Plaintiffs alleged cognitive 

limitations to his depression and an.'i:iety. 

In Stubbs-Danielson, the Ninth Circuit held that "an ALJ's assessment of a claimant 

adequately captures restrictions related to concentration, persistence, or pace where the assessment 

is consistent with restrictions identified in the medical testimony." Id. at 1174. Here, the ALJ 

accepted medical testimony from Drs. Anderson and Herny, and rejected the cognitive limitations 

assessed by Dr. Higgins-Lee, Dr. Mendelson, and Plaintiffs similar subjective complaints. The 

cases cited by Plaintiff caution only that an ALJ must explain how a "simple" work restriction 

adequately captures a "moderate" limitation in concentration, persistence and pace. Here the ALJ 

22 - OPINION AND ORDER 
gave such an explanation. The ALJ's RFC limiting Plaintiff to simple, routine, repetitive tasks 

adequately captures his "moderate" limitations with concentration persistence and pace. 

Therefore, unlike Lee and Brink and akin to Stubbs-Danielson, the accepted medical 

testimony reflects that Plaintiff would have moderate limitations with detailed tasks, but he is not 

significantly limited in his ability to cany out and maintain concentration, persistence, and pace for 

simple, routine, and repetitive tasks. Tr. 106. Thus, the RFC adequately reflects the accepted 

medical testimony, is supported by substantial evidence in the record as a whole, and therefore, the 

ALJ did not e11". Stubbs-Danielson, 539 F.3d at 1174; see also Bray v. Comm 'r Soc. Sec. Admin., 

554 F.3d 1219, 1228 (ALJ did not e11" where RFC adequately accounted for limitations on detailed 

tasks); iV!itchell v. Colvin, 642 F.App'x 731, 732-33 (9th Cir. 2016) (moderate limitations in 

concentration, persistence and pace adequately captured in RFC limiting claimant to simple work); 

Hartman v. As/rue, Case No. 3:10-cv-06305-ST, 2011 WL 7452802, *8-9 (D. Or. Dec. 2, 2011) 

(same). 

CONCLUSION 

For the reasons set forth above, the Commissioner's final decision denying benefits to 

Plaintiff is AFFIRMED. This action is DISMISSED. 

·IT IS SO ORDERED. 

DATED this /~day of MAY, 2017. 

Malcolm F. Marsh 

United States District Judge 

23 - OPINION AND ORDER