1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID P. LOYD II,

Plaintiff, Civ. No. 3:13-cv-00753-MC

v. OPINION AND ORDER

CAROLYN W. COLVIN,

Acting Commissioner of the Social Security

Administration,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff David Loyd II brings this action for judicial review of a final decision of the 

Commissioner of Social Security denying his application for disability insurance benefits (DIB) 

and supplemental security income payments (SSI) under Titles II and XVI of the Social Security 

Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). The issue before this 

Court is whether the ALJ erred in forming and applying plaintiff’s RFC under step four and five 

of the sequential evaluation, and whether the ALJ fully and fairly developed the record. Because

the ALJ properly formed and applied plaintiff’s RFC and the ALJ properly developed the record, 

the Commissioner’s decision is AFFIRMED.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff applied for DIB and SSI on November 25, 2009, alleging disability since 

December 12, 2007 (later amended to February 15, 2008). Tr. 21, 80, 180. These claims were 

denied initially on January 26, 2010, and upon reconsideration on April 9, 2010. Tr. 21. Plaintiff 

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 1 of 13
2 – OPINION AND ORDER

timely requested a hearing before an administrative law judge (ALJ), and appeared before the 

Honorable Steve Lynch on November 21, 2011. Tr. 21, 55–94. ALJ Lynch denied plaintiff’s 

claims by written decision dated December 2, 2011. Tr. 21–32. Plaintiff sought review from the 

Appeals Council, which was subsequently denied, thus rendering the ALJ’s decision final. Tr. 1–

3. Plaintiff now seeks judicial review.

Plaintiff, born on November 1, 1963, completed his freshman year of high school and has 

worked most recently as an ice cream salesman (2007–2009) and cook (2003–2007, 2008). Tr. 

31, 67, 198, 212–219. Plaintiff was forty-four at the time of alleged disability onset, tr. 31, 180, 

and forty-eight at the time of his hearing, tr. 180.

1 Plaintiff alleges disability due to degenerative 

disk disease, left wrist fusion, and osteoarthritis.2 Tr. 23

STANDARD OF REVIEW

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

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

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

2004). To determine whether substantial evidence exists, this Court reviews the administrative 

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

ALJ’s conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

DISCUSSION

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

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

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

 1 Plaintiff is a “younger person” under the Social Security Act. 20 C.F.R. §§ 404.1563(c), 416.963. 2 Plaintiff cites additional limitations not listed as severe impairments by the ALJ, including: anxiety; Asperger’s 

syndrome; back pain; depression; deviated septum; fatigue; insomnia; nausea; and sleep disturbance.. Pl.’s Br. 3–4, 

6, 9, ECF No. 17.

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 2 of 13
3 – OPINION AND ORDER

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

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

of making an adjustment to other work after considering the claimant’s residual functional 

capacity (RFC), age, education, and work experience. Id. 

Plaintiff contends that the ALJ erred in forming and applying plaintiff’s RFC under step 

four and five of the sequential evaluation. In particular, plaintiff argues: (1) the ALJ failed to 

consider the effects of plaintiff’s sleep disturbance, insomnia, fatigue, and wrist immobility; and 

(2) the ALJ failed to fully and fairly develop the record.

I. RFC Limitations

Plaintiff contends that the ALJ failed to consider plaintiff’s sleep disturbances caused by 

his deviated septum, insomnia, and resulting fatigue. Pl.’s Br. 13–14, ECF No. 17. In addition to 

these sleep-related impairments, plaintiff also alleges that the ALJ “failed to provide limitations 

caused by [plaintiff’s] left wrist immobility.” Id. at 14.

Plaintiff, in specific reliance on his own subjective reporting to Wagner, FNP, asserts that 

an “ear/nose/throat specialist strongly recommended surgical correction” for his deviated 

septum. Id. at 13 (citing tr. 465). Plaintiff also generally relies on “physicians all routinely 

describ[ing] [his] complaints of sleep disturbance.” Id. This Court, having reviewed the 

evidentiary record, identified multiple subjective complaints relating to plaintiff’s sleep 

disturbance and/or his deviated septum. See, e.g., tr. 289, 290, 292, 294, 297, 357, 364, 432, 451; 

but see tr. 401, 453 (indicating plaintiff was “negative for fatigue”). However, the only objective

assertion of plaintiff’s fatigue identified by this Court is a questionnaire completed by Knight, 

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 3 of 13
4 – OPINION AND ORDER

MD, in February 2011. Tr. 357. The ALJ found that this opinion “receives limited weight.” 3 As 

discussed below, the ALJ provided clear and convincing reasons supported by substantial 

evidence for partially rejecting Dr. Knight’s opinion. To the extent that plaintiff argues his own 

subjective reports of fatigue were not incorporated into the RFC, the ALJ provided specific, clear 

and convincing reasons for rejecting claimant’s testimony about the severity of his symptoms. As 

discussed more thoroughly in § II, the ALJ identified malingering behavior, see supra note 14, 

and noted that plaintiff’s activities (work and daily) were “inconsistent with [plaintiff’s] 

allegations of disability.” Tr. 29; see also tr. 331, 345 (suggesting a less restrictive RFC). Thus, 

the ALJ properly rejected Dr. Knight’s opinion and plaintiff’s own subjective testimony as it 

related to his sleep related impairments.

Plaintiff also contends that ALJ erred in formulating the RFC limitations related to 

plaintiff’s wrist impairment. See, e.g., Pl.’s reply Br. 1, ECF No. 19. Defendant, in response, 

argues that the “ALJ properly accounted for [p]laintiff’s functional limitations.” Def. Br. 5, ECF 

No. 18. This Court looks to the ALJ’s RFC formulation.

At step three,4 the ALJ found that plaintiff had the severe impairment “left wrist fusion.” 

Tr. 23. The ALJ also noted:

 3 The ALJ found:

Dr. Knight saw the claimant on one occasion and proffered an opinion that [was] not 

supported by the objective medical evidence. More importantly, he appeared to base his 

opinion solely on the claimant’s subjective pain complaints. The objective medical 

evidence found in the longitudinal records does not support the level of limitation proposed 

by Dr. Knight . . . .

Tr. 30; see also tr. 29 (“Notably, the claimant saw Dr. Knight one month after Dr. Peffley suspected the claimant of 

merely attempting to accumulate evidence and denied his request for a handicap parking placard.”).

4 20 C.F.R. § 404.1520(a)(4)(iii) provides:

At the third step, we also consider the medical severity of your impairment(s). If you have 

an impairment(s) that meets or equals one of our listingsin appendix 1 of this subpart and 

meets the duration requirement, we will find that you are disabled.

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 4 of 13
5 – OPINION AND ORDER

A review of the claimant’s earnings record show that he continued to post 

income for several years after sustaining the wrist fracture. Clearly, the wrist 

fracture did not prevent the claimant from working. Nevertheless, the 

undersigned finds the claimant’s fused wrist to be a severe impairment.

Tr. 24 (citation omitted). At step four,5 the ALJ determined that plaintiff “can perform no more 

than frequent fingering [and handling]6 with his left, non-dominant hand.” Tr. 26.

Plaintiff asserts that these findings fail to incorporate plaintiff’s limited range of 

“wrist/finger motion.” Pl. Br. 15, ECF No. 17. Plaintiff directs this Court’s attention to a 

questionnaire completed by Dr. Knight in February 2011. See tr. 360. In that questionnaire, Dr. 

Knight indicated that plaintiff had “no motion in wrist,” which affected plaintiff’s “Handling 

(gross manipulation)” and “Fingering (fine manipulation).” Id. Dr. Knight’s check-list answers 

were based upon a single contact with plaintiff in April 2010. Tr. 356. 

In contrast, Peffley, DO, met with plaintiff eight different times. See tr. 290, 292, 294, 

296, 403, 405, 419, 421. On March 16, 2010, Dr. Peffley indicated that plaintiff had: “limited 

flexion/extension in left wrist. Intact distal strength and sensation in median, ulnar, and radial 

distribution (although the latter is more difficult to assess given the lack of wrist flexibility).” Tr. 

419. Dr. Peffley further elaborated that plaintiff declined recommended treatment7 and requested 

a handicap parking placard because “of the advice/direction he was given.” Tr. 420. On March 

 5 20 C.F.R. § 404.1520(a)(4)(iv) provides:

At the fourth step, we consider our assessment of your residual functional capacity and your 

past relevant work. If you can still do your past relevant work, we will find that you are not 

disabled.

(citations omitted).

6 The ALJ mistakenly omitted “and handling” from his RFC findings. However, during the administrative hearing, 

the ALJ included “and handling” within his hypothetical question posed to the VE. See tr. 89. Thus, any omission in 

the written decision constitutes a harmless error. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (noting 

that “[w]e have . . . deemed errors harmless where the ALJ misstated the facts . . . but we were able to conclude 

from the record that the ALJ would have reached the same result absent the error.” (citation omitted)). 7 “[Plaintiff] has not been to OT. He has no desire to go to OT (does not see the point in it because anything he does 

hurts it). OT may be able to help develop muscles and improve functionality. Patient can always request a referral 

should he decide it might be helpful. He has not seen an orthopedic surgeon since after the surgery in 2002.”

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 5 of 13
6 – OPINION AND ORDER

30, 2010, Dr. Peffley again met with plaintiff and plaintiff reported that “PT is helping a little, 

they’re starting to stretch the tendons in [plaintiff’s] hand.” Tr. 421. However, “[m]ost of this 

appointment was spent in antagonistic discussion.” Id. Following this appointment, Dr. Peffley 

indicated that he was “not sure [he] would like to continue this relationship any further.” Tr. 422.

Dr. Knight, having met with plaintiff a single time, is not a treating physician. See, e.g., 

Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir. 2003) (indicating that an 

ongoing treatment relationship with a claimant is a key factor in determining whether a physician 

is treating). “To reject his opinion, the ALJ had to give clear and convincing reasons.” 

Reginnitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (citation 

omitted). “Even if contradicted by another doctor, the opinion of an examining doctor can be 

rejected only for specific and legitimate reasons that are supported by substantial evidence in the 

record.” Id. (citation omitted). In according “limited weight” to Dr. Knight’s opinion, the ALJ 

articulated clear and convincing (and specific and legitimate) reasons supported by substantial 

evidence in the record.

First, the ALJ identified many of Dr. Peffley’s treatment notes. Dr. Peffley’s findings, 

unlike Dr. Knight’s findings, did not suggest “no motion in wrist.” Dr. Peffley found that 

plaintiff had “limited flexion/extension in left wrist.” Tr. 419; see also Morgan v. Comm’r of 

Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“The opinion of a treating physician is 

given deference because he is employed to cure and has a greater opportunity to know and 

observe the patient as an individual.” (citation and internal quotation marks omitted)). Second, 

plaintiff continued to engage in work activities after sustaining his wrist fracture inconsistent 

with “no motion” in wrist. See tr. 24; see also tr. 185 (indicating that plaintiff’s highest annual 

earnings occurred in 2006). Third, plaintiff also continued to engage in daily activities 

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 6 of 13
7 – OPINION AND ORDER

inconsistent with “no motion” in wrist. See supra § II (discussing plaintiff’s daily activities). 

Fourth, the ALJ identified malingering behavior. Tr. 29 (“Notably, the claimant saw Dr. Knight 

one month after Dr. Peffley suspected the claimant of merely attempting to accumulate evidence 

and denied his request for a handicap parking placard.”); see also supra note 14. Fifth, the ALJ 

expressed concern that Dr. Knight based “his opinion solely on the claimant’s subjective pain 

complaints.” Tr. 30; see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010)

(finding that an ALJ gave specific and legitimate reasons for partially rejecting a physician’s 

opinion where the opinion was “based almost entirely on the claimant’s self-reporting.”). These 

reasons are sufficient to reject Dr. Knight’s opinion to the extent that it is inconsistent with the 

RFC.

Plaintiff appears to also suggest that Dr. Peffley’s findings in March 2010 are 

inconsistent with the ALJ’s RFC formulation. Pl.’s Reply Br. 2, ECF No. 19. Although the ALJ 

cites Dr. Peffley’s treatment notes from November 2009, see tr. 30 (citing tr. 294), the ALJ 

clearly considered Dr. Peffley’s treatment notes from both March 2010 appointments, see tr. 27–

28. Plaintiff fails to articulate how “limited flexion/extension in left wrist” is not encompassed 

within the RFC. Plaintiff was limited to light work, “lifting 20 pounds occasionally and 10 

pounds frequently,8” and “no more than frequent fingering [and handling] with his left, nondominant hand.” Tr. 25–26; see also 20 C.F.R. § 404.1567(b) (defining light work). In contrast 

to plaintiff’s suggestion, substantial evidence supports the RFC as formulated. 

For example, in January 2010, Dr. Kehlri submitted a physical assessment and found that 

plaintiff had not established any manipulative limitations (e.g., handling or fingering). Tr. 331; 

 8 “‘Frequent’ means occurring from one-third to two-thirds of the time.” SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 

1983).

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 7 of 13
8 – OPINION AND ORDER

see also tr. 345 (Dr. Berner, in April 2010, affirmed Dr. Kehlri’s suggested RFC). The ALJ 

explicitly adopted a RFC more restrictive than Dr. Kehlri’s assessment and accorded Dr. Kehlri’s 

opinion “partial weight.” Tr. 29. In November 2011, Dr. Rullman, an impartial medical expert, 

testified during the administrative hearing that he had reviewed Exhibits 1F through 15F 

(including Dr. Knight’s more restrictive findings) and concluded that “the claimant [did not] 

meet[] or equal[] any listing of the commissioner” under step three. Tr. 85; see also tr. 29 

(identifying Dr. Rullman’s opinion as “further persuasive evidence”). These findings, in 

combination with plaintiff’s work, see infra, and daily activities, see supra § II, represent

substantial evidence supporting the RFC.

II. Development of the Record

Plaintiff contends that the ALJ “improperly developed the record about plaintiff’s mental 

health conditions,” Pl.’s Reply Br. 5–6, ECF No. 19, because mental health documentation 

submitted the day of the hearing was not included in the evidentiary file considered by the ALJ, 

Pl.’s Br. 12 n. 3, ECF No. 17; see also tr. 59 (indicating that plaintiff submitted “probably three 

or [four] hundred pages of material”). In response, defendant contends that the ALJ did 

incorporate this mental health documentation into the record (tr. 363–501) and, to the extent that 

plaintiff was diagnosed with Asperger’s syndrome in mid-2011, that diagnosis constitutes new 

evidence not previously submitted. Def.’s Br. 11–12, ECF No. 18. This Court, having reviewed 

the record, finds that the ALJ did incorporate the documentation submitted the day of the 

hearing.9 The record includes no reference to Asperger’s syndrome. This Court’s remaining 

 9 Plaintiff’s former counsel submitted a cover letter in addition to a considerable number of medical records. Tr. 59; 

see also tr. 489 (cover letter). Plaintiff’s cover letter identified eight additional sources of medical information. Tr. 

489. That information is included in the evidentiary record as follows: 

Good Days, Bad Days Mental and Physical dated 11/09/2011, tr. 490–501; 

Polk County Mental Health dated 1/13/2011, tr. 424–33; 

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 8 of 13
9 – OPINION AND ORDER

inquiry focuses on whether the submitted evidence triggered the ALJ’s duty to develop the 

record.

“In Social Security cases the ALJ has a special duty to fully and fairly develop the record 

and to assure that the claimant’s interests are considered.” Smolen v. Chater, 80 F.3d 1273, 1288 

(9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)) (internal quotation 

marks omitted). “This duty exists even when the claimant is represented by counsel.” Id. (citing 

Brown, 713 F.2d at 443). “Ambiguous evidence . . . triggers the ALJ’s duty to conduct an 

appropriate inquiry.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations and 

internal quotation marks omitted). “The ALJ may discharge this duty in several ways, including: 

subpoenaing the claimant’s physicians, submitting questions to the claimant’s physicians, 

continuing the hearing, or keeping the record open after the hearing to allow supplementation of 

the record.” Id. (citations omitted).

Plaintiff argues that his statements during the administrative hearing,10 combined with an 

Adult Behavioral Health (ABH) Assessment conducted at Polk County Mental Health,11 tr. 424–

33, put the ALJ on notice that additional treatment records remained and the record needed to be 

more fully developed. Pl.’s Reply Br. 6, ECF No. 19. This Court interprets plaintiff’s argument 

 

Kaiser Health dated 12/17/2001-5/09/2002, tr. 363–98; 

Oregon Family Health dated 02/23/2010-3/30/2010, tr. 403–23; 

Flaming Medical Center dated 07/20/2007-07/09/2007, tr. 399–402;

West Valley Hospital ER record dated 10/27/2011, tr. 471–75;

Dr. Wilson dated 09/17/2007-10/31/2011, tr. 476–88; and

Northwest Human Services dated 09/16/11-03/02/201, tr. 434–70. 10 During the administrative hearing, plaintiff indicated that he had depression and that he had seen counselor Sue 

Larsen and counselor Paul Morris with Polk County Mental Health. Tr. 62–63. 11 On January 18, 2011, Larsen, LPC, CADC I, diagnosed plaintiff with 311 Depressive Disorder Not Otherwise 

Specified (NOS), but ruled out 296 Major Depressive Disorder. Tr. 433. A “311 Depressive Disorder NOS”

includes, but is not limited to “[s]ituations in which the clinician has concluded that a depressive disorder is present 

but is unable to determine whether it is primary, due to a general medical condition, or substance induced. 

Diagnostic and Statistical Manual of Mental Disorders 382 (rev. 4th ed. 2000).

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 9 of 13
10 – OPINION AND ORDER

in reply to defendant’s brief as alleging that the ALJ erred in his respective credibility 

determinations of plaintiff’s symptom testimony and counselor Larsen’s ABH assessment.

12

As to plaintiff’s credibility, an ALJ must consider a claimant’s symptom testimony, 

including statements regarding pain and workplace limitations. See 20 CFR §§ 404.1529, 

416.929. “In deciding whether to accept [this testimony], an ALJ must perform two stages of 

analysis: the Cotton analysis and an analysis of the credibility of the claimant’s testimony 

regarding the severity of [his] symptoms.” Smolen, 80 F.3d at 1281. If a claimant meets the 

Cotton analysis13 and there is no evidence of malingering, “the ALJ can reject the claimant’s 

testimony about the severity of [his] symptoms only by offering specific, clear and convincing

reasons for doing so.” Id. (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)).

The ALJ, in evaluating plaintiff’s alleged depressive disorder (among other symptoms 

and complaints), found that “there is nothing to show that they are of such severity as to cause 

more than minimal vocational limitations.” Tr. 24. First, the ALJ noted that on at least two 

occasions plaintiff indicated he sought medical attention to bolster his case. 14 Tr. 24–25, 27; see 

 12 Neither the ALJ nor counselor Larsen(nor any other expert)found that “the evidence of [plaintiff’s] mental 

impairment was ambiguous, or that [they] lacked sufficient evidence to render a decision.” Tonapetyan, 242 F.3d at 

1150.

13 “The Cotton test imposes only two requires on the claimant: (1) she must produce objective medical evidence of 

an impairment or impairments; and (2) she must show that the impairment or combination of impairments could 

reasonably be expected to (not that it did in fact) produce some degree of symptom.” Smolen, 80 F.3d at 1282 (citing 

Cotton v. Bowen, 799 F.2d 1403, 1407–408 (9th Cir. 1986)). 14 On March 16, 2010, Dr. Peffley noted:

Near the end of the visit, the patient remembered one last thing the lawyer recommended. 

He stated that if he could get a handicap parking placard, “it would help my case.” He states 

this would help him if he went to a “big store” and had to walk all the way to the back of 

the parking lot with “a lot of stuff.” When I offered that he could push a cart instead of 

carrying it, he stated, “There are still some times that it would be really helpful to have 

that.”

. . .

At the end of the visit when I told him I was not inclined to sign a Handicap Parking Pass 

for him, he stated, “If I promise not to use it, would that help you make up your mind?” I 

told him that indeed it would. It confirms my decision to NOT sign one. I stated that he has 

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 10 of 13
11 – OPINION AND ORDER

also Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (“An adjudicator may use ordinary 

techniques of credibility evaluation to test a claimant’s credibility.” (citation and internal 

quotation marks omitted)). Second, the ALJ found that “[t]he claimant’s daily activities are 

consistent with the [RFC].” Tr. 29. The ALJ specifically referred to an evaluation conducted by 

Kruger, Psy.D., in January 2010 and found:

[Plaintiff] typically woke up at 7:00 AM, and then drove his girlfriend to her 

job in Salem. Thereafter, he would return home, watch television, sit in his 

recliner, and relax. He performed household chores when his back was not 

“aggravated.” The chores included washing the dishes and laundry. He 

picked his girlfriend up from work in the afternoon, and upon returning 

home, they would have something to eat and watch television. He typically 

went to bed between midnight and 1:00AM. The claimant also reported 

being independent with self-care, meal preparation, and managing his 

hygiene.

Tr. 29 (citing tr. 303–304); see also Morgan, 169 F.3d at 600 (finding that a claimant’s ability to 

“fix meals, do laundry, work in the yard, and occasionally care for his friend’s child” evidenced 

an ability to work). In contrast, during his administrative hearing, plaintiff testified that his daily 

activities were more limited. See, e.g., tr. 65 (“I stay home pretty much all the time. The only 

time I really get out of the house is if I have a counselor appointment or a doctor’s 

appointment.”). The ALJ pointed out that this decline was not supported by medical evidence. 

 

not needed one up to this point and is clearly asking for it now because of the 

advise/direction he was given. He again stated, “Well it would really help out sometimes.” I 

told him I’m sure it would, but I was reserving those Placards for patients who needed them

EVERY time.

Tr. 419–20. On January 18, 2011, counselor Larsendocumented, in relevant part:

David is self-referred. He says part of the reason he is here is because he is applying for 

Social Security and they have added depression into his other physical health concerns and 

he says he needs to show that he is working on both of these issues.

Tr. 424.

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 11 of 13
12 – OPINION AND ORDER

Tr. 29. Third, in reliance on Dr. Kruger’s evaluation, Dr. Hennings’s psychiatric review,

15 Dr.

Boyd’s mental summary,

16 and shortcomings within counselor Larsen’s ABH Assessment, see

infra, the ALJ found “there is nothing to show that [plaintiff’s symptoms and complaints relating 

to depression] are of such severity as to cause more than minimal vocational limitations,” tr. 24. 

In reference to Dr. Kruger’s January 2010 evaluation, the ALJ found:

The claimant reported never having any psychiatric hospitalization. 

However, he reported receiving some counseling in 2001, after the break-up 

of a relationship. Upon examination, Dr. Kruger described the claimant as 

cooperative, please mild mannered, in fair spirits. He appeared to sit 

comfortably during the evaluation. He was an adequate historian. He was 

fully oriented and showed a fair ability to sustain attention on brief, basic, 

routine repetitive tasks. He repeated seven digits forward and four digits 

backward. His immediate, recent past, and remote memories appeared to be 

intact. He performed simply mathematic problems.

. . .

According to Dr. Kruger, the claimant neither demonstrated nor reported 

any psychiatric symptoms reflective of either a psychotic or an anxiety 

disorder.

Tr. 24 (citing 303–306). Overall, these reasons are specific, clear and convincing; sufficient to 

reject claimant’s testimony about the severity of his symptoms.

As to counselor Larsen’s ABH assessment, the ALJ found “[b]ased on the totality of the 

record . . . the counselor’s assessment [is not] persuasive evidence.” Tr. 25. Counselor Larsen, a 

non-physician, diagnosed plaintiff with 311 Depressive Disorder NOS in January 2011. Tr. 433.

Dr. Kruger, in contrast, diagnosed plaintiff with “309.0 Adjustment disorder with depressed 

mood.” Tr. 306; see also SSR 06-03P, 2006 WL 2329939, at *5 (Aug. 9, 2006) (“The fact that a 

 15 On January 20, 2010, Dr. Hennings, having reviewed Dr. Kruger’s evaluation, concluded that plaintiff’s 

functional limitations included: (1) no restrictions of activities of daily living; (2) no difficulties in maintaining 

social functioning; (3) mild difficulties in maintaining concentration, persistence or pace; and (4) no episodes of 

decompensation, each of extended duration. Tr. 324. Dr. Hennings also indicated that plaintiff had “adjustment d/o 

w/depressed mood” that was not severe. Tr. 314, 319.

16 On March 26, 2010, Dr. Boyd affirmed Dr. Henning’s RFC conclusions.Tr. 344.

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 12 of 13
13 – OPINION AND ORDER

medical opinion is from an ‘acceptable medical source’ is a factor that may justify giving that 

opinion greater weight than an opinion from a medical source who is not an ‘acceptable medical 

source’ because . . . ‘acceptable medical sources’ ‘are the most qualified health care 

professionals.’”). Dr. Hennings, having reviewed Dr. Kruger’s evaluation, determined that 

plaintiff’s only functional limitation was “mild” “difficulties in maintaining concentration, 

persistence or pace.” Tr. 324; see also tr. 319 (diagnosing plaintiff with “adjustment disorder and 

depressed mood”). Boyd subsequently reviewed and affirmed Dr. Hennings’s findings. Tr. 344. 

The ALJ explicitly adopted Dr. Hennings’s assessment and noted that “Dr. Boyd’s summary is 

further persuasive evidence.” Tr. 25. In addition to this medical evidence, the ALJ also 

emphasized that plaintiff sought the ABH assessment “not for genuine treatment, but instead to 

generate evidence for this appeal.” Tr. 25; see also supra note 14. Combined, these reasons are 

sufficient to reject counselor Larsen’s ABH assessment.

In any event, plaintiff has not shown that his “mild” difficulties in maintaining 

concentration, persistence or pace resulted in any functional limitations that the ALJ failed to 

consider. See Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 2005). “The ALJ presented all of 

[plaintiff’s] limitations and restrictions supported by the record to the [VE].” Id.

CONCLUSION

For these reasons, the Commissioner’s final decision is AFFIRMED.

IT IS SO ORDERED.

DATED this 21st day of July, 2014.

________s/ Michael J. McShane___________

Michael J. McShane

United States District Judge

Case 3:13-cv-00753-MC Document 20 Filed 07/21/14 Page 13 of 13