PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DANIEL PATRICK CONNORS,

Plaintiff,

v.

NANCY A. BERRYHILL,

Commissioner of Social Security,

Defendant.

Case No. 6:15-cv-2365-SI

OPINION AND ORDER

Katherine L. Eitenmiller and Robert A. Baron, LAW OFFICE OF HARDER, WELLS, BARON &

MANNING, P.C., 474 Willamette, Suite 200 Eugene, OR 97401. Of Attorneys for Plaintiff.

Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States 

Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, 

OR 97204; Jordan D. Goddard, Special Assistant United States Attorney, OFFICE OF GENERAL 

COUNSEL, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 

98104. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Daniel P. Connors (“Plaintiff”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”) denying his application 

for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. Because the
PAGE 2 – OPINION AND ORDER

Commissioner’s decision was based on the proper legal standards and is supported by substantial 

evidence, the decision is AFFIRMED.

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper 

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means 

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th 

Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 

1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 

F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 

Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the 

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 

F.3d at 1226.
PAGE 3 – OPINION AND ORDER

BACKGROUND

A. Plaintiff’s application

Plaintiff was born on May 14, 1963, in Portland, Oregon. Administrative Record 

(“AR”) 29, 385. Plaintiff enlisted in the U.S. Army at 17 years o1d. AR 297. He served 

from 1981 to 1984. After that, he served with the National Guard from 1985 to 1995, and then

returned to the Army from 1995 to 2002. Id. Plaintiff worked various jobs in the Army. After 

leaving the Army, Plaintiff worked as a wildlands firefighter in 2003 to 2004 and as a grocery 

clerk in 2003. AR 92-98, 208. 

In March 2014, Plaintiff filed his application alleging disability as of January 1, 2003. 

AR 187-95. Plaintiff requested a hearing after the application was denied initially and again upon 

reconsideration. AR 135-45. After the hearing on May 5, 2015, Administrative Law Judge 

(“ALJ”) John Michaelsen found Plaintiff not disabled. AR 35-56. Plaintiff appealed ALJ 

Michaelsen’s decision to the Appeals Council and his appeal was denied review on October 26,

2015, making the ALJ’s decision final. AR 1-6. This appeal followed. 

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which . . . has lasted or 

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. 

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is 

potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential 

process asks the following series of questions:
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1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An 

impairment or combination of impairments is “severe” if it significantly 

limits the claimant’s physical or mental ability to do basic work activities. 

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, 

this impairment must have lasted or be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the 

claimant does not have a severe impairment, the analysis ends. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe 

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis continues. At that point, the ALJ must 

evaluate medical and other relevant evidence to assess and determine the 

claimant’s “residual functional capacity” (“RFC”). This is an assessment 

of work-related activities that the claimant may still perform on a regular 

and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis 

proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or 

she is disabled. Id.
PAGE 5 – OPINION AND ORDER

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy, “taking into consideration the claimant’s residual functional 

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 

(describing “work which exists in the national economy”). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099.

C. The ALJ’s decision

The ALJ denied Plaintiff’s claim for benefits using the sequential analysis. At step one, 

the ALJ noted that although Plaintiff might have engaged in substantial gainful activity in 2003 

and 2004, the record was ambiguous, and so the ALJ concluded that Plaintiff had not engaged in 

substantial gainful activity during the period of January 1, 2003, the alleged disability onset date, 

through his date last insured of March 31, 2009. AR 19. At step two, the ALJ found the 

following severe impairments: history of alcohol abuse, major depressive disorder, posttraumatic stress disorder, Attention Deficit Hyperactive Disorder (“ADHD”), mild obesity, 

degenerative disc disease of the lumbar spine, osteoarthritis of the right shoulder, and history of 

left fifth digit abduction/adduction impairment. AR 19-20. At step three, the ALJ found that none 

of the severe impairments meets or equals any impairment listed in 20 C.F.R. Part 404, Subpart 

P, Appendix 1. AR 20. 
PAGE 6 – OPINION AND ORDER

The ALJ next assessed Plaintiff’s RFC, concluding that Plaintiff could perform work as 

follows:

the full range of light work as defined in 20 CFR 404.1567(b) 

subject to the following limitations: The claimant is able to lift 

and/or carry ten pounds frequently and twenty pounds 

occasionally. He is able to stand and/or walk for two hours in an 

eight-hour workday with normal breaks. He is able to sit for six 

hours in an eight-hour workday with normal breaks. He is able to 

perform work limited to no more than frequent stooping, 

crouching, crawling, kneeling, or climbing of stairs and ramps. He 

should avoid climbing ropes, ladders or scaffolds. He is able to 

perform work limited to no more than occasional reaching with his 

right upper extremity, and to no more than frequent grasping, 

handling, or fingering with his left hand. He would also need to 

avoid concentrated exposure to fumes, dusts, gases, poor 

ventilation and other noxious odors. He is able to perform work 

limited to simple, repetitive, routine tasks requiring no more than 

occasional interaction with co-workers and the general public.

AR 22. At step five, the ALJ, with the testimony of a vocational expert (“VE”), determined that 

Plaintiff could not perform any past relevant work, but is able to perform the representative job 

of security guard. AR 29-30.

DISCUSSION

Plaintiff argues that the ALJ erred by: (1) failing to provide legally sufficient reasons to 

disregard the Veteran’s Administration (“VA”) disability rating decisions, particularly the 2009 

VA rating decision; (2) failing to provide clear and convincing reasons supported by substantial 

evidence to discredit Plaintiff’s symptom testimony; and (3) failing to meet the Commissioner’s 

burden of proving that Plaintiff retains the ability to perform the requirements of “other work.”

A. VA Disability Ratings

Plaintiff argues that the ALJ improperly discredited the VA disability ratings. A 

determination by another governmental agency about whether a claimant is disabled is based on 

that agency’s rules and accordingly such determinations are not binding on the Commissioner. 
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20 C.F.R. § 404.1504. Nevertheless, an ALJ must “ordinarily give great weight to a VA 

determination of disability.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) 

(reversing a denial of benefits because the ALJ “failed to consider the VA finding and did not 

mention it in his opinion”). Because the VA’s and the Social Security Administration’s (“SSA”)

criteria for determining disability are not identical, however, an ALJ may “give less weight to a 

VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported 

by the record.” Id. Unlike the ALJ in McCartey, the ALJ here considered, but rejected, the VA’s 

disability finding. Thus, the Court must decide whether the ALJ provided persuasive, specific, 

and valid reasons for rejecting the VA’s disability finding.

The Court finds that the ALJ provided persuasive, specific, and valid reasons for 

crediting the VA rating decisions with minimal weight, rather than great weight. The ALJ found 

that the VA rating decisions should be discounted because of Plaintiff’s work history and 

because the VA’s decisions fail to describe any specific limitations attributed to Plaintiff’s 

impairment.1

1. Work History

An ALJ may consider a claimant’s work activity during the alleged period of disability, 

especially if the work ended for reasons unrelated to the alleged disability. Bruton v. 

Massanari, 268 F3d 824, 828 (9th Cir. 2001); Daley v. Commissioner of the Soc. Sec. 

Admin., 2015 WL 1524485, at *8 (D. Or. 2015). In Daley, the court found the ALJ did not err 

when discrediting the claimant’s VA rating decision, in part because the claimant worked during 

the VA disability period and was not fired for his disability. Id. at *8-9. 

 1 The ALJ also discussed Plaintiff’s daily living activities as a reason to discount the VA 

ratings, but the Court does not find this to be a specific and persuasive reason.
PAGE 8 – OPINION AND ORDER

In this case, Plaintiff worked during the VA disability rating period. In 2004, the VA 

found Plaintiff was 80 percent disabled, effective retroactively to January 2003, due to a 

combination of mental impairments (70 percent) and physical impairments (10 percent back 

pain, among other non-severe pains). AR 62, 734, 736-45. The VA’s diagnosis of Plaintiff’s 

attention deficit disorder with depression and obsessive-compulsive behavior were the primary 

bases for the VA disability rating. AR 714, 726, 736). During the time that the VA rated him 80 

percent disabled, however, Plaintiff worked two different jobs. In 2003, Plaintiff worked 

seasonally as a woodlands firefighter. AR 19, 205, 208. Also in 2003, Plaintiff worked for 

approximately four months as a grocery store clerk, but was fired for sexual harassment. AR 19, 

67, 91-92, 205. In 2004, Plaintiff returned to work as a seasonal woodlands firefighter, but 

stopped working due to a previous back injury that worsened while performing the job. AR 67,

205. For neither job did Plaintiff have to stop working due to the impairments that were the 

primary underlying bases for the VA disability ratings. 

Because of Plaintiff’s worsened injuries, the VA increased the portion of Plaintiff’s

disability due to back pain from 10 percent to 20 percent. AR 726-35. This increase, made 

in 2006 but effective retroactively to 2005, resulted in the VA finding that Plaintiff was 100

percent unemployable. Id. The VA issued identical ratings (80 percent disabled and 100 percent 

unemployable) in 2007 and 2009. AR 706-25.2

 2 Plaintiff’s argument that the ALJ committed plain error by only considering the 

VA’s 2009 rating decision and not considering all the VA rating decisions is rejected. The ALJ 

held the record open in order to receive additional VA documents. After receiving some 

documents, the ALJ issued an opinion on July 13, 2015. Later that same day, the hearing office 

received even more VA documents from Plaintiff’s counsel, well outside the time frame in 

which the record was left open. Despite the late submission of those records, the ALJ withdrew 

his original opinion and issued the amended opinion that Plaintiff challenges here, expressly 

noting that“[a]lthough these documents do not warrant a different outcome in this case, the 

undersigned has concluded that it would be remiss not to address those records in this decision.” 
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While rated 80 percent disabled by the VA, Plaintiff worked two jobs and was not fired 

because of his disability. Despite being determined to be 80 percent disabled effective 

January 2003, Plaintiff appears to have worked the entire woodlands firefighting season in 2003 

without issue and worked four months as a grocery clerk without problems with his alleged 

disability. Moreover, Plaintiff only stopped working as a woodlands firefighter in 2004 because 

of increased back pain, not for reasons related to his purported compulsive behaviors. Plaintiff 

testified that he was able to control his mental health issues, the issues on which he was granted 

seven-eighths of his 80 percent disability rating, while working as a firefighter because he

enjoyed being around the people he worked with. AR 23, 72. Additionally, the ALJ found that “it 

does not appear that the claimant was forced to stop working due to a medical impairment at his 

store clerk job.” AR 24. 

Plaintiff argues that his termination from his clerk job for sexual harassment is 

“consistent with a finding that compulsive and inappropriate behaviors—as reported to VA 

physicians—support a finding of disability.” To support this argument, Plaintiff cites to instances

in the record of his marijuana use, nicotine addiction, and two references to his masturbation

activity. AR 298, 356, 358 (when asked what Plaintiff does for fun by himself, he answered

“[m]asturbate”). The Court is not persuaded by Plaintiff’s argument because there is no evidence 

that Plaintiff’s mental impairments compelled him to sexually harass women and no medical 

professional has opined that sexual harassment was the result of Plaintiff’s impairments or an 

expected result from at-home masturbation, marijuana use, or nicotine addiction. Thus, the Court 

concludes that Plaintiff stopped working both jobs for reasons unrelated to his mental 

 

AR 16. Although the amended opinion specifically references the VA’s 2009 decision in one 

sentence, from the text and context of the entire opinion it is clear that the ALJ considered all of 

the VA documents. For example, the ALJ discusses “[t]he VA rating documents.” AR 24 

(emphasis added).
PAGE 10 – OPINION AND ORDER

impairments. The inconsistency of working while being 80 percent disabled ( according to the 

VA) is a persuasive, specific, and valid reason for discounting the VA’s ratings decisions. 

Plaintiff also alleges that the ALJ erred when considering Plaintiff’s work history while 

receiving disability because the “VA rules regarding work activity while receiving benefits 

differs from those of the SSA.” Plaintiff is correct about the difference between the two 

agencies’ definitions, but it is not “merely an example of the ways in which these federal 

programs differ.” Compare 38 C.F.R. § 4.17(a) (VA definition of total disability based on 

unemployability) with 20 C.F.R. § 416.905 (SSA definition of disability is “the inability to do 

any substantial gainful activity”). As the ALJ noted, “[b]ecause the VA and SSA criteria for 

determining disability are not identical, however, the ALJ may give less weight to a VA 

disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by 

the record.” McCartey, 298 F3d at 1076; AR 24. Here, the ALJ identified how the two programs 

were not identical because the VA rating documents do not address the inconsistency in 

collecting benefits while working, and how that inconsistency is explained by looking at the 

different definitions from each agency. The ALJ then gave a persuasive, specific, and valid 

reason for giving the VA’s rating decisions less weight, namely Plaintiff’s work history, which 

demonstrated Plaintiff did not lose his jobs because of his mental impairments. The ALJ did not 

err.

2. Limitations 

The ALJ’s second reason to give limited weight to the VA decisions, because they have

“no specific limitations [that] are attributed to the claimant’s impairments (just a disability 

percentage),” is also a persuasive, specific, and valid reason. AR 24. Under the SSA regulations, 

a claimant’s functional limitations must be compared to the claimant’s past relevant work and to 

work existing in the national economy. 42 U.S.C. § 423(d)(2)(A) (2017). To award disability 
PAGE 11 – OPINION AND ORDER

benefits, the ALJ must evaluate “the most [the claimant] can still do despite [his] limitations.” 20 

C.F.R § 404.1545. Under the VA regulations, “accurate and fully descriptive medical 

examinations are required, with emphasis upon the limitation of activity imposed by the 

disabling condition.” 38 C.F.R § 4.1 (2017). 

As the ALJ pointed out, the VA decisions do not include any of the required limitations

of activity imposed by Plaintiff’s disabling condition. AR 24. The VA concluded Plaintiff was 

unemployable based on his 80 percent disability rating, but failed to include the “limitation of 

activity imposed by the disabling condition.” AR 726-35. An absence of specific limitations is a 

persuasive reason to discredit a VA rating decision because the ALJ must determine “the most 

[the claimant] can still do despite [his] limitations.” Merely noting the disability percentage is 

not sufficient. Daley, 2015 WL 1524485, at *8 (finding that it is unclear how diabetes, which 

was rated 20 percent disabling, limited the plaintiff’s ability to work when both the doctor and 

plaintiff reported his diabetes was controlled by exercise and diet alone). 

Plaintiff argues that “it is notable that the VA has granted 100 percent unemployability 

and found Mr. Connors totally and totally [sic] and permanently disabled.” The VA decisions, 

however, do not include any of the vocational information or functional limitations necessary to 

conclude that there is no work in the national economy that Plaintiff is capable of performing. 

Additionally, for the impairments that the VA did specifically identify, the ALJ has incorporated

those impairments into the Plaintiff’s RFC. AR 24 (“The [RFC] accounts for all the various 

impairments listed in the VA decision, and has apportioned specific functional limitations.”).

Those impairments include attention deficit disorder with major depression and obsessive 

compulsive disorder; discogenic disease of L4-5 and S1 with bilateral functional dermatone 

distribution to lower extremities; right shoulder rotator cuff weakness with degenerative arthritis 
PAGE 12 – OPINION AND ORDER

of the acromioclavicular and glenohumeral joints; left ankle mortise instability and crepitus; and 

tinnitus. AR 703-04.

An ALJ does not fail to give the VA’s determination of disability proper weight when he 

includes the VA’s determination into plaintiff’s RFC. Turner v. Comm’r of Soc. Sec., 613 F.3d 

1217, 1225 (9th Cir. 2010) (finding that the ALJ did not fail to give the VA’s determination 

proper weight but instead incorporated it into plaintiff’s RFC); Axelson v. Berryhill, 2017 WL 

1788657, at *2 (D. Or. 2017). Thus, the ALJ did not fail to give the VA rating decisions proper 

weight. The ALJ incorporated the identified impairments into Plaintiff’s RFC, and the VA rating 

decisions did not include any functional limitations that the ALJ could use for determining SSA 

disability.

B. Plaintiff’s Symptom Testimony 

Plaintiff next argues that the ALJ improperly rejected Plaintiff’s symptom testimony. 

There is a two-step process for evaluating the credibility of a claimant’s testimony about the 

severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 

(9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented objective 

medical evidence of an underlying impairment ‘which could reasonably be expected to produce 

the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1029, 1036 (9th Cir. 

2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, 

the claimant “need not show that her impairment could reasonably be expected to cause the

severity of the symptom she has alleged; she need only show that it could reasonably have 

caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the 

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so.’” Lingenfelter, 503 F.3d at 1036 (quoting 
PAGE 13 – OPINION AND ORDER

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must 

state which pain testimony is not credible and what evidence suggests the complaints are not 

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be 

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily 

discredit the claimant’s testimony.” Ortez v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing 

Bunnell, 947 F.2d at 345-46).

Effective March 16, 2016, the Commissioner superseded Social Security Ruling 

(“SSR”) 96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with 

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

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

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

record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The 

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

medical evidence and individual’s statements about the intensity, persistence, and limiting 

effects of symptoms statements and other information provided by medical sources and other 

persons; and any other relevant evidence in the individual’s case record.” Id. at *4. The 

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

medical providers, and others regarding the claimant’s location, frequency and duration of 

symptoms, the impact of the symptoms on daily living activities, and other methods used to 

alleviate symptoms; (2) medical source opinions, statements, and medical reports regarding the 

claimant’s history, treatment, responses to treatment, prior work record, efforts to work, daily 

activities, and other information concerning the intensity, persistence, and limiting effects of an 

individual’s symptoms; and (3) non-medical source statements, considering how consistent those 
PAGE 14 – OPINION AND ORDER

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

the file. See id. at *6-7. 

The ALJ’s credibility decision may be upheld overall even if not all of the ALJ’s reasons 

for rejecting the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may 

not, however, make a negative credibility finding “solely because” the claimant’s symptom 

testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d 

at 883. 

At the administrative hearing, Plaintiff testified that he was significantly limited by his 

obsessive-compulsive disorder, specifically the compulsion to choke himself. AR 71, 78, 82. He 

testified that when working as a grocery clerk in 2003, he would go into the freezer to choke 

himself hundreds of times a day and that he had spent most of his time between 2006 and 2014 at 

home, in the dark, choking himself. AR 72-73, 82. He also testified that at his grocery job, he

would seek solitude where he could choke himself, but when firefighting, he did not because he 

enjoyed the people he was around. AR 72. Additionally, when Plaintiff had to leave the house 

during the period at issue, he testified that if he “ma[de] up [his] mind to get out and do 

something in the day or make a plan like today, [he]’ll self-medicate and won’t have to [choke 

himself] for a little while.” AR 80. 

In his written decision, the ALJ considered Plaintiff’s testimony following the two-step 

process articulated by the Ninth Circuit. AR 22-29; Vasquez, 572 F.3d at 591. The ALJ found 

Plaintiff’s impairments could be expected to cause some of the alleged symptoms, but that 

Plaintiff’s statements regarding his symptoms are not fully consistent with, or corroborated by,

the evidence in the record. 
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1. Onset Date

As a first reason for discounting Plaintiff’s symptom testimony, the ALJ noted that “there 

is nothing of significance around the claimant’s alleged disability onset date that would indicate 

a worsening of symptoms, illness, or injury.” AR 23. An onset date must be supported by 

substantial evidence, and an ALJ should not question whether another date could have 

reasonably been chosen. Dunn v. Sullivan, 1992 WL 92728, at *3 (9th Cir.); see also Swanson v. 

Sec’y of Health & Human Servs., 763 F.2d 1061, 1065 (9th Cir. 1985). The court in Dunn found 

that “an onset date is, of necessity, somewhat arbitrary; that will always be the case where the 

statute requires line-drawing but where a claimant’s condition was gradually worsening.” 1992 

WL 92728 at *3 (quotations omitted). At the hearing, Plaintiff explained he picked his 

January 2003 onset date, because that was the day the VA rated him 80 percent disabled. AR 66. 

There is substantial evidence to support Plaintiff’s onset date and that Plaintiff struggled with a 

gradually worsening condition. AR 84 (Plaintiff explained he has been choking himself 

since 1984), 292 (Plaintiff has been diagnosed with ADHD since second grade), 301 (when 

describing his self-choking, “it’s getting worse and worse all the time”). Plaintiff’s choice of 

onset date is not a clear and convincing reason for rejecting Plaintiff’s symptom testimony.

2. Daily Living Activities

As a second reason for discounting Plaintiff’s symptom testimony, the ALJ found that 

Plaintiff’s “statements regarding his activities of daily living and his statements during the period 

at issue showing relatively good functioning lessen the credibility of his limitation allegations.”

AR 28. An ALJ may discount a claimant’s testimony if it is inconsistent with the claimant’s 

daily activities. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). The ALJ noted that 

in 2015, at the time of the hearing, Plaintiff reported “very limited activities, including 

performing his own laundry tasks, driving, and grocery shopping, and denied providing care for 
PAGE 16 – OPINION AND ORDER

his daughter.” AR 27, 75, 78, 80. The ALJ also noted that in 2006, however, Plaintiff reported to 

an examiner his ability to

wake up every day at six a.m., perform personal care and his 

‘morning routine’ independently, care for his daughter and get her 

off to school, watch television until noon and smoke marijuana 

with friends, pick up his child from school, prepare dinner, eat with 

his family, watch television and smoke more marijuana,

AR 24. The fact that in 2006 Plaintiff could groom himself, take his daughter to and from school, 

and watch television is not inconsistent with the limitations Plaintiff alleges are caused by his 

self-choking. Additionally, Plaintiff’s statements regarding his daily living activities in 2006, 

versus his hearing testimony in 2015, are not inconsistent, particularly in light of the fact that 

Plaintiff suffers from a combination of conditions that have been worsening, and the purported 

inconsistencies is not a clear and convincing reason to reject his symptom testimony.3

3. Inconsistencies and Lack of Record Evidence

Although the reasons discussed above are not clear and convincing, the ALJ did provide 

reasons that meet the required standard. The ALJ found that Plaintiff’s subjective testimony 

regarding his self-choking behavior is not supported by the record. AR 26. Plaintiff alleges that

he cannot work because he chokes himself “hundreds” of times a day. AR 72. The ALJ noted, 

however, several exceptions to that behavior. AR 23, 27. While it is not sufficient for the ALJ to

“make only general findings,” he did state what symptom testimony was not credible and “what

evidence suggests the complaints are not credible.” Dodrill, 12 F.3d at 918; cf. Brown-Hunter v. 

 3 The ALJ discussed additional reasons for discrediting Plaintiff’s symptom testimony, 

including his marijuana consumption (AR 23, 26-27), his back pain and gait (AR 25), the care of 

his daughter (AR 23, 27), the fact that an examiner noted Plaintiff’s “attention and concentration 

were in the normal range” despite his reported ADHD since second grade (AR 26), his evasive 

answers to job history (AR 27), and the psychological results on the Minnesota Multiphasic 

Personality Inventory suggesting his “over-endorsement” of distressing items (AR 27). The 

Court finds none of these reasons rise to the level of clear and convincing. 
PAGE 17 – OPINION AND ORDER

Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (finding legal error because the ALJ failed to identify 

the testimony she found not credible and did not link that testimony to the particular parts of the 

record). For example, the ALJ noted that Plaintiff testified he never engaged in self-choking

when he was working full-time as a firefighter in 2003 and 2004 because “there were always 

people around” and he “enjoyed the people being around.” AR 23, 72. In 2005, he took a threeweek vacation to Jamaica and reported he did not choke himself for the entirety of the trip, with

only one exception. AR 27, 302, 304; see also Tommasetti v. Astrue, 533 F.3d 1035, 1040 

(finding Plaintiff’s extended trip to Venezuela allowed the ALJ to “properly infer from this fact 

that [Plaintiff] was not as physically limited as he purported to be.). Additionally, when doing 

volunteer work in 2005, Plaintiff’s self-choking behavior also decreased. AR 305. Plaintiff also

admitted to an examining psychologist that boredom is “the major factor in his OCD like [selfchoking] behavior.” AR 304; see also AR 27, 302, 304. The ALJ did not err in finding that 

Plaintiff’s subjective testimony regarding the severity and limiting effects of his self-choking 

behavior is not supported by the record. Thus, the ALJ gave a clear and convincing reason for 

discounting Plaintiff’s symptom testimony.

4. Work History

The ALJ also relied on Plaintiff’s work history to discount Plaintiff’s testimony about his 

limitations. AR 22-23. An ALJ can consider work history for weighing a plaintiff’s symptom 

testimony when an alleged impairment is not the reason the plaintiff stopped working. 

Bruton, 268 F.3d at 828 (9th Cir. 2001) (finding a plaintiff’s pain complaints not credible 

because he stopped working because he was laid off, not because he was injured); see also

Tommasetti, 533 F.3d at 1040 (noting a plaintiff’s severe diabetes was not the reason he stopped 

working). Plaintiff alleges that he could not work prior to his date last insured due to mental 

health issues, but as the ALJ pointed out, Plaintiff was fired from his grocery job for sexual 
PAGE 18 – OPINION AND ORDER

harassment. AR 22-23. As discussed above, the Court rejects Plaintiff’s argument that his sexual 

harassment was caused by his mental impairments. 

Plaintiff also testified that he has never worked at a job more than six months because of 

his self-choking, but as the ALJ noted, Plaintiff testified that he never engaged in that behavior 

while at his firefighting job because he enjoyed his co-workers. AR 23. Additionally, Plaintiff’s 

employment was not terminated at his grocery clerk job because of Plaintiff’s self-choking 

behavior. Thus, Plaintiff’s work history was a second clear and convincing reason to discount 

Plaintiff’s testimony. 

Although some of the reasons given by the ALJ to discount Plaintiff’s testimony are

legally insufficient, an ALJ’s decision to discount the limitations testified to by a claimant may 

be sustained even if not all of the ALJ’s reasons for rejecting the testimony are upheld. See 

Batson, 359 F.3d at 1197. Accordingly, the ALJ’s assessment of Plaintiff’s subjective symptom 

testimony is upheld.

C. Plaintiff’s Ability to Perform “other work”

Plaintiff alleges that the Commissioner failed to meet her burden of proving that Plaintiff 

retains the ability to perform the requirements of “other work,” specifically, the security guard 

job. Plaintiff argues that when his subjective symptom testimony is fully credited, then the record 

indicates he would be unable to perform a security guard job because his self-choking behavior 

would require him to leave the workstation frequently. To meet the Commissioner’s burden, the 

hypothetical posed to the VE must consider all of the claimant’s limitations supported by the 

record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2005). The hypothetical posed 

to the VE was stated as follows:

So, Mr. McGowan, if you would, please assume an

individual with the same age, education, work experience as

the claimant who is limited to light work, but who is
PAGE 19 – OPINION AND ORDER

further limited to no more than frequent stooping,

crouching, crawling, kneeling or climbing of stairs and

ramps. This individual would need to avoid climbing ropes,

ladders and scaffolds. He is limited to no more than

occasional reaching with his right upper extremity, and to

no more than frequent grasping, handling or fingering with his left 

hand.

* * * *

Please assume that this individual would also need

to avoid concentrated exposure to fumes, dusts, gases, poor

ventilation and other obnoxious odors. And, please also

assume that he would be limited to simple, repetitive,

routine tasks requiring no more than occasional interaction

with co-workers and the general public.

AR 98-99. The ALJ included all of the identified impairments from the VA documents, 

specifically Plaintiff’s attention deficit disorder with major depression and obsessive compulsive 

disorder, lower back impairment, right shoulder rotator cuff weakness, tinnitus, moderate limited 

motion in left ankle, and left fifth finger impairment. AR 714-45. Additionally, “no treating 

physician opined that the claimant has greater limitations during the period at issue than those 

accounted for in [the hypothetical].” AR 28. Moreover, the Court has found that the ALJ 

provided clear and convincing reasons for discounting Plaintiff’s symptom testimony. 

Accordingly, the Commissioner did not fail to meet her burden and the hypothetical posed to the 

VE took into account all of Plaintiff’s impairments that were supported by the record. 

CONCLUSION

The findings of the Commissioner are based upon substantial evidence in the record and 

the correct legal standards. For these reasons, the Court AFFIRMS the Commissioner’s decision.

IT IS SO ORDERED.

DATED this 6th day of July, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge