PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MATTHEW RAY LESOWSKE,

Plaintiff,

v.

NANCY A. BERRYHILL1

Commissioner of Social Security 

Administration,

Defendant.

Case No. 3:15-cv-2261-KI

OPINION AND ORDER

Merrill Schneider

Schneider Kerr Law Offices

P.O. Box 14490 

Portland, OR 97293

Attorneys for Plaintiff

Billy J. Williams 

United States Attorney

Janice E. Hebert

1000 SW Third Ave., Ste. 600

Portland, OR 97204-2902

 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting

Commissioner Carolyn W. Colvin as the defendant in this suit.

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PAGE 2 – OPINION AND ORDER

Sarah Moum

Special Assistant United States Attorney

Office of the General Counsel

Social Security Administration

701 Fifth Ave., Ste. 2900 M/S 221A

Seattle, WA 98104-2075

Attorneys for Defendant

KING, Judge:

Matthew Ray Lesowske (“Plaintiff”) seeks judicial review of the final decision of the 

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

for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social 

Security Act. For the following reasons, the Court AFFIRMS the Commissioner’s decision.

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, 

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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.

BACKGROUND

A. Plaintiff’s Application

Plaintiff filed an application for DIB on November 18, 2011, alleging disability 

beginning December 31, 2002. AR 18. He was 43 years old at the alleged disability onset date. 

AR 27. The Commissioner denied the claim initially and upon reconsideration. AR 18. Plaintiff 

thereafter requested a hearing before an Administrative Law Judge (“ALJ”). AR 18. After an 

administrative hearing, at which reviewing physician Dr. Wil Nelp testified, the ALJ ruled that 

Plaintiff was not disabled under the Social Security Act. AR 18. The Appeals Council denied 

Plaintiff’s request for review, making the ALJ’s decision the final decision of the Commissioner. 

AR 1. Plaintiff now seeks judicial review of that decision. 

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 

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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:

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 

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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.

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 began his opinion by noting that Plaintiff met the insured status requirements of 

the Act through December 31, 2007. AR 18. The ALJ further noted that Plaintiff must establish 

disability on or before that date in order to be entitled to a period of disability and disability 

benefits. Id. The ALJ then applied the sequential analysis. AR 19-32. 

At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since 

the alleged onset date of December 31, 2002. AR 20. At step two, the ALJ found that Plaintiff’s 

history of torn meniscus in the right knee and obesity were severe impairments. AR 20. At step 

three, the ALJ found Plaintiff did not have an impairment or combination of impairments that 

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met or equaled one of the specific impairments listed in the regulations. AR 24. The ALJ 

determined that “the overall medical record” suggested that from December 31, 2002 to 

December 31, 2007 (“the relevant time period”) Plaintiff had the RFC to perform light work. AR 

24. The ALJ noted the following limitations: Plaintiff can occasionally lift 20 pounds, and 

frequently lift ten; he can stand or walk for four out of eight hours combined; he can sit for six 

hours; he cannot climb ropes, ladders, or scaffolds; he cannot crawl or kneel; he can occasionally 

crouch and stoop; and he can no more than occasionally finger with his dominant hand. AR 24. 

Plaintiff should also avoid exposure to the following: heights, hazards, heavy equipment, 

vibration, cold, heat, wetness, humidity, and pulmonary irritants. AR 24. At step four, the ALJ 

found that during the relevant period, Plaintiff was unable to perform any past relevant work. AR 

31. At step five, considering Plaintiff’s age, education, work experience, and RFC, the ALJ 

found that Plaintiff could have performed jobs that existed in significant numbers in the national 

economy during the relevant period, such as assembly work. AR 32. The ALJ thus found that 

Plaintiff was not under a disability, as defined in the Social Security Act, at any time during the 

relevant period. AR 32. 

In reaching his conclusion, the ALJ considered the opinions of non-examining, testifying 

medical expert, Dr. Nelp, and treating physician, Dr. Valerie Krause. AR 27-29. Dr. Nelp 

testified that during the relevant time period, Plaintiff could stand or walk for at least four hours 

and sit for six; lift 20 pounds occasionally and less than ten pounds frequently; could only 

occasionally crawl, stoop, crouch or balance; and that Plaintiff’s bilateral overhead reaching 

would be limited due to obesity and musculoskeletal neck complaints. AR 28; AR 63-64. The 

ALJ rejected the doctor’s overhead reaching conclusion because the ALJ found that complaints 

of neck pain “do not appear until long after the claimant’s date insured,” and “obesity . . . should 

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not result in specific overhead reaching limits.” AR 28. Otherwise, the ALJ gave “great weight” 

to Dr. Nelp’s opinion because he spoke directly to Plaintiff’s functionality during the relevant 

period and because he specializes “in internal medicine, nuclear medicine and thyroid disease.” 

AR 28. The ALJ also found that Dr. Nelp had “more carefully examined only the evidence and 

impairments during the relevant period.” AR 28. 

Dr. Nelp’s opinion conflicted with Dr. Krause’s. Dr. Krause opined that the “combination 

of symptoms from the claimant’s medical and mental health diagnoses” were disabling, and 

prevented Plaintiff from working. AR 28. For instance, Dr. Krause opined that Plaintiff had 

marked limitations in activities of daily living and social functioning, and that he can never 

reach, crawl, stoop, or lift more than ten pounds. AR 28. The ALJ found that Dr. Krause’s 

conclusion—that Plaintiff’s impairments had existed at the same severity and with the same 

functional limitations prior to the date last insured—was not supported by Dr. Krause’s own 

treatment record. AR 29. The ALJ gave Dr. Krause’s opinion “little weight.” AR 29. 

The ALJ also considered Plaintiff’s testimony and statements regarding the pain and 

severity of his symptoms during the relevant period. AR 25-26. The ALJ found Plaintiff only 

partially credible. AR 26. For instance, Plaintiff appeared to testify about the severity of 

symptoms after the date last insured. AR 26. Although his impairments “worsened significantly 

in more recent years,” objective medical evidence showed his symptoms were “not as severe as 

alleged prior to the date last insured.” AR 26. Based in part upon these credibility 

determinations, the ALJ concluded that Plaintiff was not under a disability as defined in the 

Social Security Act at any time within the relevant time period.

DISCUSSION

Plaintiff argues that the ALJ erred by: (1) assigning Dr. Krause, the treating physician’s 

opinion “little weight,” and (2) assigning Plaintiff’s subjective testimony only partial weight.

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A. Medical Opinion Evidence

In response to an inquiry from Plaintiff’s attorney, in July 2013, Dr. Krause wrote a letter 

and completed a questionnaire describing Plaintiff’s impairments and Plaintiff’s residual 

functional capacity. AR 1187-1201. Dr. Krause, opined that Plaintiff’s impairments were present 

at their current severity before December 31, 2007. AR 1201. The ALJ declined to give 

Dr. Krause’s opinion full weight, because it conflicted with Dr. Nelp’s testimony, and because it 

was inconsistent with Dr. Krause’s own treatment record. AR 29. 

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

among physicians’ opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th 

Cir. 2008). The applicable regulations distinguish among the opinions of three types of 

physicians: treating physicians, examining physicians, and non-examining physicians. Holohan 

v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 20 C.F.R. § 404.1527). Generally, “a 

treating physician’s opinion carries more weight than an examining physician’s, and an 

examining physician’s opinion carries more weight than a reviewing physician’s.” Id. If a 

treating physician’s opinion is supported by medically acceptable techniques and is not 

inconsistent with other substantial evidence in the record, the treating physician’s opinion is 

given controlling weight. Id.; see also 20 C.F.R. § 404.1527(c)(2). A treating doctor’s opinion 

that is not contradicted by the opinion of another physician can be rejected only for “clear and 

convincing” reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a 

treating physician’s opinion is contradicted by another physician’s opinion, the ALJ must 

provide “specific and legitimate reasons” for discrediting the treating physician’s opinion. Id. 

The ALJ may not reject a treating physician’s opinion solely because it conflicts with a 

non-examining physician’s opinion. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 

(9th Cir. 1999) (“The opinion of a nonexamining medical advisor cannot by itself constitute 

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substantial evidence that justifies the rejection of the opinion of an examining or treating 

physician.”). The ALJ may, however, base his or her rejection “in part on the testimony of a 

nontreating, nonexamining medical advisor.” Id. (emphasis in original). When a non-examining 

physician is subject to cross-examination, the ALJ may give the non-examining physician’s 

testimony greater weight. Andrews, 53 F.3d at 1042. 

If an ALJ declines to give the treating physician’s opinion controlling weight the ALJ 

must consider six factors in determining the weight of any physician’s opinion. 20 C.F.R. 

§ 404.1527(c); Orn v. Astrue, 495 F.3d 625, 632–33 (9th Cir. 2007). Plaintiff argues that the ALJ 

incorrectly balanced the factors, and that a proper balance would favor Dr. Krause’s opinion.2

Because the ALJ adequately weighed and evaluated each doctor’s opinion, and gave specific and 

legitimate reasons to support his assessment, the Court rejects Plaintiff’s arguments.

The ALJ considered the treating physician’s relationship to her patient. 20 C.F.R. § 

404.1527(c)(2)(i)-(ii). The longer the treatment relationship, or the more times a treating 

physician has seen a patient, the more weight the ALJ should assign to the treating physician’s 

opinion. 20 C.F.R. § 404.1527(c)(2)(i). Additionally, the more knowledge a treating physician 

has about a claimant’s impairments, the more weight the ALJ should assign to the treating 

physician’s opinion. 20 C.F.R. § 404.1527(c)(2)(ii). The ALJ acknowledged that Dr. Krause had 

been Plaintiff’s “treating doctor since 2006,” and that she was his primary care provider. AR 28. 

Dr. Nelp, by contrast, had not treated Plaintiff. 

 2 To the extent Plaintiff argues that the ALJ failed to properly assess Dr. Krause’s opinion 

because he did not expressly discuss each factor in 20 C.F.R. § 404.1527(c), the Court rejects 

that argument. The ALJ’s opinion reflects that he considered each factor. See 20 C.F.R. § 

404.1527(c) (“Unless we give a treating source’s opinion controlling weight under paragraph 

(c)(2) of this section, we consider all of the following factors in deciding the weight we give to 

any medical opinion.”) (emphasis added); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) 

(ALJ may reject opinion by “setting out a detailed and thorough summary of the facts and 

conflicting clinical evidence, stating his interpretation thereof, and making findings.”).

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The ALJ also evaluated whether evidence supported each of the physician’s opinions, 

and the quality of the explanation for those opinions. 20 C.F.R. § 404.1527(c)(3). The ALJ found 

Dr. Nelp’s opinion warranted greater weight because Dr. Nelp “more carefully examined only 

the evidence and impairments during the relevant period, and his opinion speaks specifically to 

the claimant’s functionality during such period.” AR 28. Plaintiff argues that the ALJ improperly 

limited the non-examining physician’s review of records to those created during the relevant 

period, thus improperly precluding the doctor from drawing inferences from later records. To the 

contrary, the record from the hearing demonstrates that Dr. Nelp reviewed all the medical 

evidence in the record. AR 59. 

If an opinion is consistent with the record as a whole, it will be given more weight. 20 

C.F.R. § 1527(c)(4). The ALJ found that Dr. Krause’s opinion—that Plaintiff’s symptoms had 

existed at their present severity since before December 31, 2007—was not consistent; it was 

“simply not supported by [her] own treatment record.” AR 29, AR 1201, AR 1275. Plaintiff 

argues in his reply that the few treatment records from before 2007 do not contradict Dr. 

Krause’s medical opinion. Plaintiff admits, however, that Dr. Krause identified several 

impairments that were not causing symptoms during the relevant period. Indeed, among Dr. 

Krause’s lengthy list of medical conditions and symptoms, she included his right knee (repaired 

in 2002 without symptoms until 2008) and carpal tunnel syndrome (no pain after surgery in 

2000). Although Dr. Krause opined that Plaintiff suffered from all of his impairments, including 

diabetes, before December 31, 2007, he was not diagnosed with diabetes until February 11, 

2009. AR 29, AR 996, AR 1201, AR 1260. Dr. Krause also indicated that Plaintiff’s knee caused 

him “daily pain in spite of surgery in 2002.” AR 1187. But her treatment notes show that his 

symptoms abated after surgery in 2002, and only returned in 2008, after the date last insured. AR 

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997, AR 1193. Dr. Krause additionally opined that Plaintiff suffered from severe symptoms of 

generalized anxiety disorder and major depressive disorder occurring on or before the date last 

insured. AR 1188, AR 1201, AR 1275, AR 1055 (in April 2008, Plaintiffs chalked his mood up 

to “winter blues”). But, according to Dr. Krause’s own treatment record, Plaintiff first received 

treatment with oral medication for those disorders after the date last insured. AR 986, AR 1034.3

The ALJ rationally questioned Dr. Krause’s opinion given her imprecision with respect to the 

onset date of many of Plaintiff’s impairments. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 

(9th Cir. 2008) (explaining that inconsistency with medical records is a specific, legitimate 

reason for rejecting a treating physician’s opinion). 

Specialists’ opinions may be given higher weight regarding their areas of expertise. 20 

C.F.R. § 404.1527(c)(5). The ALJ found that Dr. Nelp—“a specialist in internal medicine, 

nuclear medicine and thyroid disease”—had a “greater level of specialization” than Plaintiff’s 

primary care provider, a family practitioner. AR 28; see AR 192 (Physician’s Statement of 

Professional Qualification). Plaintiff complains of diabetes, intestinal hernias, and neck and back 

pain related to herniated discs. ECF 18 at 4, AR 236. While Plaintiff’s conditions were within 

Dr. Nelp’s specialty, since internal specialists treat adults for a wide range of conditions, this 

reason is less persuasive than other reasons given by the ALJ. 

Finally, the ALJ will consider any other factors brought to his or her attention. 20 C.F.R. 

§ 404.1527(c)(6). Here, Dr. Nelp testified at the ALJ hearing, and was subject to crossexamination. See AR 59-76. This allowed the ALJ to accord his opinion higher weight. Andrews, 

 3 Plaintiff also argues that the ALJ improperly based his decision on the inference that 

Plaintiff’s pre-2007 medical records were sparse, when, as the record shows, the Social Security 

Administration lost or destroyed some of Plaintiff’s records. AR 18; AR 311. Again, because the 

ALJ rationally questioned Dr. Krause’s opinion based on its inconsistency with the available 

medical records, particularly the available post-2007 records, the ALJ did not err.

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53 F.3d at 1042. The Court also rejects Plaintiff’s argument that the ALJ erred by failing to ask 

Dr. Nelp to infer an onset date of disability under SSR 83-20. Because the ALJ issued an 

unfavorable decision, he was not required to determine an onset date of disability under the rule. 

SSR 83-20, available at 1983 WL 31249 (“In addition to determining that an individual is 

disabled, the decisionmaker must also establish the onset date of disability.”).

In sum, although their relative specializations alone would not normally overcome the 

weight typically accorded a treating physician’s opinion—after all, Dr. Krause is a family 

practitioner who also deals with a wide range of conditions—the ALJ’s assessment of Dr. 

Krause’s opinion compared with the medical record is an additional specific and legitimate 

reason to support his assessment of Dr. Krause’s opinion. See Andrews, 53 F.3d at 1043 

(explaining that the ALJ will meet his burden if he gives “specific, legitimate reasons based on 

substantial evidence” for discounting the treating physician’s opinion); Burch, 400 F.3d at 679 

(“Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s 

conclusion that must be upheld.”).

B. Plaintiff’s Credibility

Plaintiff also challenges the ALJ’s decision giving Plaintiff’s subjective symptom 

testimony and statements only partial weight. There is a two-step process for evaluating 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 1028, 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 

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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, 504 F.3d at 1036 (quoting 

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.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing 

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

The ALJ gave only partial weight to Plaintiff’s testimony for three reasons: (1) Plaintiff 

had not consistently followed his treatment provider’s weight loss and exercise 

recommendations; (2) Plaintiff appeared to testify about the severity of his symptoms after his 

date last insured; and (3) Plaintiff’s testimony and statements were unsupported by 

contemporary, objective medical evidence. AR 25-27. Plaintiff argues none of these is a clear 

and convincing reason to discount his testimony. 

Plaintiff is correct that his failure to follow a weight loss and exercise regime is not a 

clear and convincing reason to discount his subjective testimony, and the Commissioner does not 

rely on this reason. See ECF 20 at 8 n. 3; Orn, 495 F.3d at 638 (“[T]he failure to follow treatment 

for obesity tells us little or nothing about a claimant’s credibility.”). Nonetheless, substantial 

evidence in the record supports the ALJ’s other credibility findings. Batson, 359 F.3d at 1197 

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(explaining that the ALJ’s overall credibility determination may be upheld even if not all of the 

ALJ’s reasons for rejecting the claimant’s testimony are upheld). 

That Plaintiff testified about symptoms after the date last insured supports the ALJ’s 

decision to give Plaintiff’s testimony only partial weight. Tidwell v. Apfel, 161 F.3d 599, 601 

(9th Cir. 1999) (“At all times, the burden is on the claimant to establish her entitlement to 

disability insurance benefits. . . . Appellant must establish that her disability existed on or before 

[the last date insured].”). During the administrative hearing, the ALJ cautioned Plaintiff multiple 

times to speak only about the relevant period. AR 43, AR 45, AR 47, AR 76. But, at times, 

Plaintiff testified about pain and symptoms around the date of the hearing, and conflated those 

symptoms with what he felt before the date last insured. For instance, Plaintiff testified that a 

surgery in January 2007 had remedied symptoms related to his hernia “until just recently.” AR 

47. Plaintiff also indicated that Methadone, which he has been prescribed since 2002, “takes care 

of [his] pains,” although, without Methadone the pain would be unbearable. AR 51. Plaintiff 

appeared to refer to his pain as of the hearing date—implying that it was under control—but also 

suggested that the prescribed treatment adequately controlled his pain throughout the relevant 

period. Plaintiff also responded to questions by his counsel about his knee pain at the hearing, 

saying that he was seeing a doctor for his knee pain in 2006 and 2007. AR 48-49. But, as he 

admitted in his reply brief, after his 2002 knee surgery, the pain “did not recur until 2008.” ECF 

21 at 2. Plaintiff’s testimony was thus confusing as to the onset date and led the ALJ to 

reasonably question the severity of Plaintiff’s pain during the relevant period. 

The objective medical record also did not support Plaintiff’s subjective statements about 

pain and severity. The ALJ noted that: 

During the relevant period, there are only limited treatment 

records, no evidence of diabetes or significant treatment for 

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depression/anxiety, little evidence of pain complaints regarding the 

claimant’s neck, knees or hands, indications that the claimant’s 

hernia condition improved and that his hepatitis C did not require 

the interferon treatment.

AR 26.

As discussed above, Plaintiff was not treated for severe symptoms resulting from his general 

anxiety disorder and depressive disorder, suggesting these symptoms did not rise to a severe 

level until after the date last insured. AR 986, AR 1034. Plaintiff’s testimony, that he “was 

having a lot of problems mentally” within the relevant time period, thus conflicts with the 

objective medical record. AR 49-50. Plaintiff’s subjective testimony regarding his pain is also 

unsupported by the objective medical record. Although Plaintiff does not assert debilitating 

symptoms, he testified that his knee pain within the relevant period was “still giving [him] 

problems.” AR 49. The medical record shows that in December 2004 and February 2005 

“physical examination[s] revealed a normal gait.” AR 26 (citing AR 1213-14; AR 1224). 

Additionally, a medical report dated June 30, 2006 indicated that Plaintiff did not require 

interferon treatment for his hepatitis C. AR 1205-06. 

Because the ALJ identified the specific testimony he discounted, and gave clear and 

convincing reasons that were supported by substantial evidence in the record, this Court must 

uphold the ALJ’s credibility determination. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 

2001) (holding that even where the record evidence is somewhat equivocal, a court should not 

second-guess the ALJ's judgment when it is supported by substantial evidence).

///

///

Case 3:15-cv-02261-KI Document 22 Filed 03/07/17 Page 15 of 16
PAGE 16 – OPINION AND ORDER

CONCLUSION

The ALJ properly discounted the treating physician’s credibility and Plaintiff’s 

credibility. The Commissioner’s decision that Matthew Lesowske is not suffering from a 

disability is therefore AFFIRMED. 

IT IS SO ORDERED.

DATED this _ 7 _th day of __March______, 20_17_.

/s/ GarrM. King____________

Garr M. King

United States District Judge

Case 3:15-cv-02261-KI Document 22 Filed 03/07/17 Page 16 of 16