IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JAMES DAVID MOODY 

Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION 

Defendant. 

JEFFERY HUGH BAIRD 

Dellert Baird Law Office, PLLC 

P.O. Box 3757 

Silverdale, WA 98383 

Attorney for Plaintiff 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204 

THOMAS M. ELSBERRY 

Social Security Administration 

Office of the General Counsel 

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

Seattle, WA 98104-7075 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 3:14-cv-01756-MA 

OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 1 of 29
MARSH, Judge 

Plaintiff James Donald Moody seeks judicial review of the 

final decision of the Commissioner of Social Security denying his 

application for Supplemental Security Income (SSI) disability 

benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 

1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. § 

1383(c) (3). For the reasons that follow, I affirm the final 

decision of the Commissioner. 

FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff filed an application for SSI on November 9, 2010, 

initially alleging disability as of April 1, 2004 due to a back 

impairment, post-traumatic stress disorder (PTSD), diabetes 

mellitus, degenerative disc disease, seizures, and depression. 

Plaintiff's claims were denied initially and upon 

reconsideration. Plaintiff filed a request for a hearing before an 

administrative law judge (ALJ). The ALJ held a hearing on April 30, 

2013, at which plaintiff appeared with his attorney and testified. 

A vocational.expert, Daniel R. McKinney, Sr., also appeared at the 

hearing and testified. At the hearing, plaintiff amended his 

alleged onset date of disability to November 9, 2010. Tr. 48. On 

July 25, 2013, the ALJ issued an unfavorable decision. The Appeals 

Council denied plaintiff's request for review and, therefore, the 

ALJ's decision became the final decision of the Commissioner for 

purposes of review. 

2 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 2 of 29
Born in 1964, plaintiff was 49 years old on the date of the 

ALJ's unfavorable decision. Plaintiff completed the eighth grade 

and later obtained a General Education Degree (GED). Plaintiff's 

infrequent work history and minimal earnings do not qualify as past 

relevant work. 

At step one, the ALJ found that plaintiff has not engaged in 

substantial gainful activity since his application date of November 

9, 2010. At step two, the ALJ found that plaintiff had the 

following severe impairments: degenerative joint disease-cervical 

spine; degenerative disc disease-lumbar spine; bilateral shoulder 

impingement syndrome; obesity; coronary artery disease-post stent 

procedure; diabetes mellitus; asthma; chronic obstructive pulmonary 

disease; seizure disorder with recent evidence of encephalomalacia 

and a history of lacunar infarcts; headaches; depressive disorder 

not otherwise specified (NOS); generalized anxiety disorder; and 

alcohol dependence disorder. At step three, the ALJ found that 

plaintiff's impairment or combination of impairments, did not meet 

or medically equal a listed impairment. 

The ALJ assessed plaintiff with a residual functional capacity 

(RFC) to light work with the following additional limitations: 

[Plaintiff] could frequently balance, kneel, and crawl; 

he could occasionally stoop, crouch, and climb ramps or 

stairs; he could never climb ladders, ropes, or 

scaffolds; he could occasionally reach overhead; he 

should avoid concentrated exposure to extreme 

temperatures and vibrations; he should avoid even 

moderate exposure to fumes, odors, dusts, gases, poor 

ventilation, and hazards; he would be limited to simple, 

3 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 3 of 29
routine tasks and well-learned, complex tasks; and he 

would be limited to no more than superficial contact with 

the general public. 

Tr. 29. 

At step four, the ALJ found that plaintiff has no past 

relevant work. At step five, the ALJ concluded that considering 

plaintiff's age, education, work experience, and residual 

functional capacity, jobs exist in significant numbers in the 

national economy that plaintiff can perform, such as small products 

assembler II, table worker, and inspector/packer. Accordingly, the 

ALJ concluded that plaintiff has not been under a disability under 

the Social Security Act from November 9, 2010 through the date of 

the decision. 

ISSUES ON REVIEW 

On appeal to this court, plaintiff contends the following 

errors were committed: (1) the ALJ failed to properly evaluate the 

medical opinion evidence; and (2) the ALJ failed to obtain a 

medical expert. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if 

the Commissioner applied the proper · legal standards and the 

findings are supported by substantial evidence in the record. 42 

U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 

2010) . "Substantial evidence is more than a mere scintilla but less 

than a preponderance; it is such relevant evidence as a reasonable 

4 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 4 of 29
mind might accept as adequate to support a conclusion." Hill v. 

Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012); Valentine v. 

Commissioner of Social Sec. Admin., 574 F. 3d 685, 690 (9th Cir. 

2009). The court must weigh all the evidence, whether it supports 

or detracts from the Commissioner's decision. Martinez v. Heckler, 

807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must 

be upheld, even if the evidence is susceptible to more than one 

rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 

359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the 

Commissioner's conclusion, the Commissioner must be affirmed; "the 

court may not substitute its judgment for that of the 

Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 

2001). 

I. The ALJ Did Not Err in Assessing Medical Opinion Evidence 

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

weight than the opinion of an examining physician, and the opinion 

of an examining physician is afforded more weight than the opinion 

of a nonexamining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 

(9th Cir. 2014); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 

"If a treating physician's opinion is well-supported by medically 

acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in [the] case 

record, [it will be given] controlling weight." Orn, 495 F.3d at. 

631; 20 C.F.R. § 404.1527(c). To reject the uncontroverted opinion 

5 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 5 of 29
of a treating or examining physician, the ALJ must present clear 

and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 

(9th Cir. 2005). 

If a treating or examining physician's opinion is contradicted 

by another physician's opinion, it may be rejected by specific and 

legitimate reasons. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 

Cir. 2001). When evaluating conflicting opinions, an ALJ is not 

required to accept an opinion that is not supported by clinical 

findings, or is brief or conclusory. Id. at 1149. 

Plaintiff argues that the ALJ erred in evaluating the medical 

opinion evidence. Specifically, plaintiff challenges the weight 

accorded to the opinions of the following treating or examining 

sources: John Arnold, Ph.D.; William Shanks, M.D.; physician's 

assistant William Bomberger; nurse Susan Small; and Catherine 

MacLennan, Ph.D. Moreover, plaintiff argues that the ALJ erred in 

giving "significant weight" to the opinions of nonexamining 

physicians. I address each opinion in turn. 

A. John Arnold, Ph.D. 

In an October 26, 2011 consultative examination, Dr. Arnold 

opined that plaintiff would be capable of following simple 

directions and would be most successful in a job with little social 

interaction with others. Tr. 556. Dr. Arnold also opined that 

plaintiff would require direct supervision for minimal task 

completion. Id. Dr. Arnold noted that plaintiff scored a 28 out of 

6 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 6 of 29
30 on the mini-mental status examination (MMSE) and scored within 

normal limits on the Trails A & B and the Rey 15 tests. Id. Dr. 

Arnold noted that plaintiff's Minnesota Multiphasic Personality 

Inventory-2 (MMPI-2) result was invalid due to a possible overreporting of symptoms. Id. Based on the examination, Dr. Arnold 

diagnosed plaintiff with depressive disorder NOS, undifferentiated 

somatoform disorder, alcohol abuse in early partial remission, rule 

out PTSD, borderline personality disorder with anti-social 

features, and rule out borderline intellectual functioning. Tr. 

554. 

Because Dr. Arnold's opinion was contradicted, 1 the ALJ was 

required to provide specific and legitimate reasons, backed by 

substantial evidence, to reject his opinion. Bayliss, 427 F.3d at 

1216. The ALJ gave Dr. Arnold's opinion less than "significant 

weight" for three reasons: the opinion's reliance on plaintiff's 

self-reports, the invalid MMPI-2 score, and ongoing alcohol abuse. 

Tr. 35. 

I begin by noting that plaintiff does not challenge the ALJ's 

negative credibility assessment. It is well-settled that a 

physician's opinion premised upon a claimant's properly discounted 

subjective symptoms and limitations may be disregarded. Bray v. 

1 In a February 7, 2012 Physical RFC Assessment, nonexaminiμg 

physician, Alnoor Virji, M.D., opined that plaintiff could 

perform light level work with a limitation to occasional overhead 

reaching with both arms. Tr. 120-121. 

7 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 7 of 29
Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 

2009); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); Morgan v. 

Commissioner of Soc. Sec. Adm in., 169 F. 3d 595, 602 (9th Cir. 

1999). The record reveals that plaintiff is frequently noncompliant with his medications. Tr. 34, 453, 456, 510, 529. In 

April 2011, consultative examiner Debra D. Brown, Ph.D. observed 

symptom exaggeration and diagnosed plaintiff with malingering. Tr. 

443. Although not contested, I conclude that the ALJ' s adverse 

credibility determination is readily supported by substantial 

evidence as a whole. 

It is clear that Dr. Arnold's opinion relies heavily on 

plaintiff's subjective allegations. For example, Dr. Arnold opined 

that plaintiff's reports of anger issues impact his ability to 

interact socially in a work setting. Tr. 556. Noting a possible 

diagnosis of borderline intellectual functioning, Dr. Arnold relied 

on plaintiff's self-reported history of special education classes. 

Tr. 554, 556. Plaintiff also denied obtaining a GED to Dr. Arnold. 

Tr. 556. However, plaintiff testified at the hearing that he 

obtained a GED while incarcerated at age 21 and denied attending 

special education classes in his disability application. Tr. 53, 

213. Given the unchallenged adverse credibility determination, I 

conclude that the ALJ appropriately discounted Dr. Arnold's opinion 

because it is primarily based on plaintiff's subjective report of 

8 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 8 of 29
symptoms. Accordingly, I find that this is a specific and 

legitimate reason to partially discredit Dr. Arnold's opinion. 

Next, contrary to plaintiff's argument, the ALJ appropriately 

considered the invalidity of the MMPI-2 score to discount Dr. 

Arnold's opinion. Dr. Arnold noted that the invalid MMPI-2 score 

may indicate over-reporting of psychological symptoms, but 

ultimately attributed it to plaintiff's need for mental health 

treatment. Tr. 556. In rejecting Dr. Arnold's conclusion, the ALJ 

cited to plaintiff's "previous pattern of over-reporting 

[symptoms]" and found that plaintiff purposely over-reported 

symptoms during the MMPI-2 test. Tr. 34. 

In the context of the record as a whole, the ALJ's 

interpretation of the MMPI-2 score is reasonable. For example, in 

a March 1, 2011 examination, neurologist William L. Bender, M.D. 

noted giveaway weakness in testing of muscle strength and 

exhibition of pain behavior. Tr. 518. In an April 2011 follow-up 

examination, Dr. Bender questioned plaintiff's motivations 

regarding his care when plaintiff requested narcotic pain 

medications for headaches despite a normal EEG test. Tr. 519. Dr. 

Bender's unchallenged observation of plaintiff's symptom 

magnification supports the ALJ' s interpretation of plaintiff's 

invalid MMPI-2 test. 

Similarly, Dr. Brown reported that plaintiff's Personality 

Assessment Inventory (PAI) test, a test similar to the MMPI-2, was 

9 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 9 of 29
invalid due to over-reporting of unlikely symptoms and 

inconsistencies with his history and clinical interview. Tr. 446. 

Dr. Brown noted that plaintiff reported visual and auditory 

hallucinations but "failed to describe anything that sounded like 

psychosis." Tr. 441. Additionally, Dr. Brown's objective mental 

findings do not corroborate plaintiff's extensive report of 

symptoms. For example, Dr. Brown noted that plaintiff scored a 25 

out of 30 on the MMSE test and achieved a score within normal 

limits on the Trails A & B test. Tr. 446. Dr. Brown declined to 

provide a medical assessment of plaintiff's limitations because 

plaintiff was "not completely forthcoming in the evaluation." Tr. 

444. In fact, plaintiff does not challenge Dr. Brown's diagnosis of 

malingering or her observations of symptom magnification. I find 

that the ALJ' s rationale is readily supported by substantial 

evidence, and provides a specific and legitimate reason for 

discounting Dr. Arnold's opinion. 

Finally, the ALJ appropriately discounted Dr. Arnold's opinion 

on the basis of plaintiff's ongoing alcohol abuse. Based on 

plaintiff's self-reported sobriety, Dr. Arnold diagnosed plaintiff 

with alcohol abuse in early partial remission. Tr. 554. However, at 

the hearing, plaintiff testified to a sober date of April 22, 2012, 

six months after Dr. Arnold's examination. Tr. 60. In a March 2013 

examination, plaintiff reported sobriety as of October 2012. Tr. 

609. As the record reflects, plaintiff was widely inconsistent in 

10 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 10 of 29
reporting his sobriety, and given the unchallenged negative 

credibility determination, the ALJ appropriately discredited Dr. 

Arnold's opinion on this basis. Because the ALJ's interpretation is 

rational and is supported by substantial evidence in the record as 

a whole, it will not be disturbed. See e.g., Molina v. Astrue, 674 

F.3d 1104, 1111 (9th Cir. 2012) (ALJ's findings must be upheld if 

they are supported by reasonable inferences drawn from the 

record.). 

In summary, I conclude that the ALJ did not err in evaluating 

Dr. Arnold's opinion and provided three specific and legitimate 

reasons backed by substantial evidence in the record as a whole. 

B. William Shanks, M.D. 

Plaintiff argues that the ALJ failed to provide specific and 

legitimate reasons to discredit the opinion of William Shanks, M.D. 

Plaintiff's argument fails. 

On February 11, 2011, Dr. Shanks examined plaintiff and 

observed giveaway weakness with testing of his upper and lower 

extremity muscles. Tr. 356. Dr. Shanks noted that plaintiff 

complained of pain in his neck and back with all motion of his 

extremities. Tr. 357. Dr. Shanks also observed a slow, non-antalgic 

gait and an absence of muscle spasms in plaintiff's back. Id. Dr. 

Shanks further noted intact sensation in both upper extremities. 

Tr. 358. Dr. Shanks ordered and reviewed plaintiff's cervical and 

lumbar spine Magnetic Resonance Imagings (MRis) and x-rays. Id. 

11 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 11 of 29
Based on plaintiff's MRis, Dr. Shanks diagnosed early degenerative 

disc disease at C3-4 and C4-5 and minimal findings in the lumbar 

spine. Tr. 358. 

Dr. Shanks opined that plaintiff overreacted on his physical 

examination. Tr. 359. In a functional assessment form, Dr. Shanks 

opined that plaintiff can stand for two hours and sit for three 

hours in an eight-hour workday, lift 20 pounds occasionally and 

five pounds frequently, but further opined that these limitations 

would last for two months. Tr. 367. The ALJ provided two specific 

and legitimate reasons for according Dr. Shanks' opinion "some 

weight." Having carefully reviewed the record, I conclude that the 

ALJ's reasoning is supported by substantial evidence. 

Plaintiff contends that the ALJ failed to consider that Dr. 

Shanks' opinion and assessed limitations already account for 

plaintiff's symptom exaggeration. I disagree. 

The ALJ gave less weight to Dr. Shanks' opinion because 

plaintiff overreacted during the examination. Tr. 31. Specifically, 

the ALJ found that plaintiff's "presentation at Dr. Shanks' 

evaluation suggests secondary gain motivation." Id. Although Dr. 

Shanks acknowledged symptom exaggeration, his opinion is largely 

based on plaintiff's self-report of pain with range of motion in 

the neck and back. Tr. 357-58; see, Morgan, 169 F.3d at 602 (ALJ 

properly discounted medical opinions based in large part upon 

claimant's own account of mental health symptoms and limitations); 

12 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 12 of 29
see also Hayles v. Colvin, No. 6:13-cv-01714-HA, 2014 WL 6809795, 

*4 (D. Or. Dec. 2, 2014) (upholding the ALJ's finding discrediting 

an examining physician's limitations because the physician noted 

that plaintiff exaggerated during the examinat°ion). Here, Dr. 

Shanks noted relatively benign objective findings. Tr. 357-58 

(documenting a negative straight-leg raise test and intact 

sensation and that the lumbar spine MRI showed "minimal findings") . 

Based on the information presented to Dr. Shanks and the minimal 

objective findings, the ALJ could reasonably discount Dr. Shanks' 

opinion because it primarily relied on plaintiff's self-reports of 

pain during the examination. 

As the ALJ noted, other medical evidence in the record also 

suggests secondary.gain motivations. Tr. 31. As discussed above, 

Drs. Brown, Arnold, and Bender observed plaintiff's symptom 

magnification during otherwise normal examinations. Tr. 446, 518, 

556. Dr. Brown's diagnosis of malingering also supports the ALJ's 

finding of secondary gain. Tr. 33. A review of the medical record 

reflects few abnormal objective findings and further supports the 

ALJ's reasoning. See generally Tr. 451, 457, 499, 529, 610-11, 623. 

Although plaintiff attempts to provide a different interpretation 

of the medical evidence, the ALJ' s interpretation is rational, 

supported by substantial evidence, and thus, must be upheld. 

Molina, 67 4 F. 3d at 1111. Based on substantial evidence in the 

record, plaintiff's motivation for secondary gain is a specific and 

13 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 13 of 29
legitimate reason, sufficient in and of itself to reject Dr. 

Shanks' opinion. 

The ALJ also discounted Dr. Shanks' opinion based on the two 

month duration of the assessed limitations. Tr. 31. Opinions of 

temporary limitations have little bearing on a plaintiff's longterm functioning. Carmickle v. Commissioner of Soc. Sec. Admin., 

533 F.3d 1155, 1165 (9th Cir. 2008); see also Batson, 359 F.3d at 

1193-94 (plaintiff has the burden of proving an inability to engage 

in substantial gainful activity due to impairments for a continuous 

period of twelve months). 

Furthermore, plaintiff fails to cite specific evidence in the 

record demonstrating that Dr. Shanks' limitations have persisted 

beyond two months. A careful review of the record supports the 

ALJ' s interpretation. For example, an April 2011 examination 

revealed intact muscle strength, a negative straight-leg raise 

test, normal gait, intact sensation, and no pain with neck and back 

movement. Tr. 428-29. A May 2011 examination revealed a normal 

monofilament test. Tr. 454. A February 2013 examination revealed 

normal neurological testing, full motor and strength testing, and 

intact sensation. Tr. 611. Accordingly, the ALJ provided two 

specific and legitimate reasons, backed by substantial evidence, to 

partially discount Dr. Shanks' opinion. 

14 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 14 of 29
C. Lay Testimony 

Lay witness testimony as to how a claimant's symptoms affect 

his ability to work is competent evidence, which the ALJ must take 

into account. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); 

Stout v. Commissioner of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th 

Cir. 2006); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 

The ALJ is required to account for competent lay witness testimony, 

and if it is rejected, provide germane reasons for doing so. 

Valentine, 574 F.3d at 694. 

1. William Bomberger 

Physician's assistant William Bomberger began treating 

plaintiff in December 2010. Tr. 498. Mr. Bomberger examined 

plaintiff in December 2010, February 2011, and March 2011. Tr. 390, 

448, 498. In a February 22, 2011 functional assessment, Mr. 

Bomberger opined that plaintiff is able to stand for four hours in 

an eight-hour workday, sit for eight hours in an eight-hour 

workday, and lift 50 pounds occasionally and 25 pounds frequently. 

Tr. 381. Mr. Bomberger opined that these limitations would persist 

for three months, and his assessment was signed by a licensed 

physician. Tr. 382. 

In a February 22, 2011 treatment note, Mr. Bomberger noted 

that plaintiff's back impairments do not preclude him from 

performing sedentary to light work, but also indicated that 

plaintiff's epilepsy is disabling. Tr. 392. 

15 - OPINION AND ORDER 

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In giving "some weight" to Mr. Bamberger's functional 

assessment, the ALJ adopted a majority of the limitations in Mr. 

Bamberger's opinion. Tr. 29. In fact, the ALJ found that plaintiff 

is more restricted in terms of lifting only 10 pounds frequently 

and 25 pounds occasionally. Tr. 29. The ALJ adequately discounted 

Mr. Bamberger's opinion. 

First, the ALJ rejected Mr. Bomberger' s assessed four-hour 

standing limitation because it is inconsistent with objective 

findings in the record, including his own treatment notes. See 

Lewis v. Apfel, 236 F. 3d 503, 511 (9th Cir. 2001) (inconsistency 

with medical evidence is a germane reason for rejecting lay witness 

testimony). For example, in a February 2011 examination, Mr. 

Bomberger observed normal range· of motion and tenderness in the 

back, intact sensation and motor strength, and intact gait, 

balance, and coordination. Tr. 391-92. A June 2011 examination 

revealed normal respiratory function with clear lungs. Tr. 449. An 

April 2011 examination noted intact cranial nerves and no motor or 

sensory deficits. Tr. 451. Moreover, the ALJ found that the 

objective medical record does not support Mr. Bamberger's opinion 

that plaintiff's epilepsy is disabling. Tr. 32. Thus, Mr. 

Bomberger' s opinions are inconsistent with his otherwise normal 

objective findings. 

Second, the ALJ rejected the four hour standing limitation 

because it is a short-term opinion. Carmickle, 533 F.3d at 1165. As 

16 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 16 of 29
the ALJ noted, the medical record does not support a permanent 

limitation to four hours of standing in an eight-hour workday. See 

generally, Tr. 32, 457, 459, 518, 611. Accordingly, the ALJ 

provided several germane reasons, backed by substantial evidence to 

partially accept Mr. Bamberger's functional assessment and reject 

his opinion regarding plaintiff's epilepsy. Bayliss, 427 F.3d at 

1218. 

2. Susan Small 

In an April 2, 2013 medical source statement, plaintiff's 

treating nurse, Ms. Small opined that plaintiff can stand, walk, 

and sit for less than one hour in an eight-hour workday. Tr. 606. 

Ms. Small also opined that plaintiff can occasionally lift and 

carry up to ten pounds and never lift and carry 25 pounds or more. 

Id. Ms. Small further opined that plaintiff cannot bend, squat, or 

climb but can occasionally reach. Ms. Small also opined in an April 

2012 treatment note that plaintiff is unable to work in any 

capacity. Tr. 596. The ALJ accorded Ms. Small's opinions "little 

weight" for several reasons. 

Plaintiff argues that the ALJ erred in rejecting nurse Susan 

Small's opinions. Specifically, plaintiff contends that the ALJ did 

not comply with Social Security Regulation (SSR) 06-03p in 

evaluating Ms. Small's opinions. Plaintiff's argument fails. 

"Opinions from [nurses and physician assistants], who are not 

technically deemed acceptable medical sources under our rules, are 

17 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 17 of 29
important and should be evaluated on key issues such as impairment 

severity and functional effects." Social Security Ruling 06-03p, 

2006 WL 2329939, *3 (Aug. 9, 2006). "The fact that a 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." Id. at *5. 

Here, the ALJ gave several germane reasons in accordance with 

SSR 06-03p. First, the ALJ gave Ms. Small's opinions "little 

weight" because she is not an acceptable medical source. 2 Gomez v. 

Chater, 74 F.3d 967, 970 (9th Cir. 1996) (overruled on other 

grounds) (acceptable medical source opinions may generally be 

accorded more weight than those from other sources such as a nurse 

practitioner). To be sure, the ALJ thoroughly discussed Ms. Small's 

opinions with respect to the severity of plaintiff's impairments 

and functional limitations but ultimately rejected her assessment 

2 The opinion of a nurse practitioner is not considered an 

acceptable medical source, unless the nurse worked under a 

physician's close supervision. See 20 C.F.R. §§ 404.1513(d), 

416.913(d); Taylorv. Commissioner of Soc. Sec. Admin., 659 F.3d 

1228, 1234 (9th Cir. 2011) (holding that a nurse practitioner 

could be considered a medically acceptable source where she 

worked under a physician's close supervision and acted as the 

physician's agent). In this case, plaintiff does not allege that 

Ms. Small is an acceptable medical source, and the record does 

not reflect that Ms. Small worked under a physician's close 

supervision. 

18 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 18 of 29
of plaintiff's work-related abilities. Tr. 32-33. Thus, the ALJ's 

first reason is germane. 

Second, the ALJ found that Ms. Small's opinions are 

inconsistent with the objective medical record. Bayliss, 427 F.3d 

at 1218. For example, in an April 2011 treatment note, Nedal Gara, 

M.D., noted normal respiratory function, no edema, cyanosis, or 

clubbing, and intact cranial nerves with no motor or sensory 

deficits. Tr. 451. As discussed above, the objective examinations 

of Ors. Shank, Bender, Brown, and Arnold, and Mr. Bomberger 

revealed essentially normal findings. See generally, Tr. 357-58, 

391-92, 443-44, 449, 499, 518, 556. Indeed, Ms. Small is the only 

medical provider in the record to prescribe a walker, which is also 

unsupported by objective findings in the record. Tr. 357, 499, 518, 

605. Accordingly, this is another germane reason to reject Ms. 

Small's assessment. Valentine, 574 F.3d at 694. 

Third, the ALJ properly found that Ms. Small's opinions are 

inconsistent with other medical opinions in the record. As the ALJ 

noted, Dr. Shanks and Mr. Bomberger assessed sitting, standing, and 

lifting limitations that exceed Ms. Small's functional assessment. 

Tr. 31-32, 367, 381. While plaintiff reinterprets the medical 

opinion evidence, the ALJ's interpretation must be upheld because 

it is rational and supported by substantial evidence. Molina, 674 

F. 3d at 1111. 

19 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 19 of 29
Fourth, as plaintiff correctly contends, the ALJ improperly 

discredited Ms. Small's opinions based on plaintiff's repeated 

requests for· a note from Ms. Small stating that he is unable to 

work. Tr. 33. A careful review of Ms. Small's treatment notes does 

not show plaintiff requesting such an opinion from Ms. Small. 

Although Ms. Small opined that plaintiff is unable to work in any 

capacity, this opinion is unsolicited. Tr. 596. I find the ALJ's 

final reason is not supported by substantial evidence, and thus, it 

is not germane. However, this error is harmless because the ALJ 

gave three other germane reasons to reject Ms. Small's opinions. 

See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("A 

decision of the ALJ will not be reversed for errors that are 

harmless.") . 

Accordingly, as discussed above, the ALJ provided three 

germane reasons, supported by substantial evidence for rejecting 

Ms. Small's assessment. Bayliss, 427 F.3d at 1218. 

D. Catherine MacLennan, Ph.D. 

Plaintiff challenges the ALJ's evaluation of examining 

physician Catherine MacLennan, Ph.D. In March 2009, Dr. MacLennan 

noted mild overt psychomotor agitation, irritated affect, and 

normal speech. Plaintiff obtained a low score of 21 out of 30 on 

the MMSE. Tr. 372. Dr. MacLennan diagnosed major depressive 

disorder and opined that based on plaintiff's description of his 

daily activities, he is unable to tolerate a full workday. Tr. 375. 

20 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 20 of 29
Dr. MacLennan noted that "hopefully [the state agency] has 

information that can be checked to corroborate the veracity of his 

complaints about his inability getting along with people." Tr. 37 5. 

The ALJ gave three reasons for giving "less weight" to Dr. 

MacLennan's opinion. Having carefully reviewed the record, I 

conclude that two of the ALJ's reasons are supported by substantial 

evidence. 

The ALJ rejected Dr. MacLennan's opinion because it is 

inconsistent with the objective medical evidence. A medical 

opinion's inconsistency with the objective medical record may 

constitute an adequate reason to discredit that opinion. Tommasetti 

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Plaintiff's scant 

mental health treatment notes do not support Dr. MacLennan' s 

opinion. For example, a July 2011 examination revealed appropriate 

appearance and affect, unremarkable psychomotor behavior, irritable 

and depressed mood, and logical thought processes. Tr. 529. A July 

2012 examination noted attentive appearance, calm and blunted 

affect, fair memory and concentration, and logical thought 

associations. Tr. 571-72. As discussed previously, Drs. Brown and 

Arnold noted benign mental status findings. Tr. 446, 556. Thus, the 

ALJ appropriately discredited Dr. MacLennan's opinion based on its 

inconsistency with the overall objective medical record. 

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Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 21 of 29
Plaintiff now argues that the ALJ erred in rejecting Dr. 

MacLennan' s opinion on the basis that it is two years prior to 

plaintiff's amended alleged onset date of disability. I disagree. 

"Medical opinions that predate the alleged onset date of 

disability are of limited relevance." Carmickle, 533 F.3d at 1165. 

In this case, the ALJ discussed Dr. MacLennan's opinion and gave it 

less weight because it was nearly two years prior to plaintiff's 

alleged date of disability. Tr. 28. At the hearing, plaintiff 

amended his alleged onset date of disability to November 9, 2010. 

Tr. 48. The record is silent regarding plaintiff's amendment of his 

alleged onset date of disability; I decline to speculate on the 

rationale behind plaintiff's amendment. See Pl. Reply Br. (ECF No. 

18) at 4. Therefore, it is reasonable for the ALJ to believe 

plaintiff's allegation that his disability began on November 9, 

2010. Accordingly, I find that the ALJ properly discounted Dr. 

MacLennan' s opinion on the basis that it predated plaintiff's 

alleged date of disability. 

Finally, as plaintiff correctly argues, the ALJ erred in 

rejecting Dr. MacLennan' s opinion on the basis that plaintiff 

exaggerated on the MMSE test for secondary gain. Specifically, the 

ALJ found that plaintiff's markedly low MMSE score of 21 suggests 

secondary gain because "the general cutoff [MMSE] score for 

exaggeration is 24." Tr. 34. However, there is no evidence in Dr. 

MacLennan's report or the record as a whole to support the ALJ's 

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Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 22 of 29
interpretation of plaintiff's MMSE score. Thus, with respect to 

this particular reason, I find that it is not a specific and 

legitimate reason to discount Dr. MacLennan's opinion. 

However, this error is harmless as the ALJ provided two other 

specific and legitimate reasons, supported by substantial evidence, 

to discredit Dr. MacLennan's opinion. See Burch, 400 F.3d at 679. 

Accordingly, the ALJ did not err in evaluating Dr. MacLennan' s 

opinion. 

E. Nonexamining Physician Opinions 

Plaintiff argues that the ALJ erred in giving "significant 

weight" to the opinions of nonexamining physicians. Plaintiff 

contends that Matthew Comrie, Psy.D. and Alnoor Virji, M.D. did not 

provide sufficient explanations for their opinions. This argument 

is without merit. 

In a February 2012 mental assessment, Dr. Comrie opined that 

plaintiff is capable of recalling, learning and carrying out simple 

routine work with reasonable consistency with limited public and 

social contact. Tr. 121-123. 

In a February 2012 physical assessment, Dr. Virji opined that 

plaintiff is capable of light work but is limited to occasional 

reaching overhead, occasional climbing of ramps and stairs, and 

should avoid climbing ladders, ropes, and scaffolds as well as 

concentrated exposure to machinery. Tr. 119-121. The ALJ gave 

"significant weight" to the opinions of Drs. Virji and Comrie 

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Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 23 of 29
because their opinions are consistent with the evidence as a whole. 

Tr. 35. 

Both Drs. Comrie and Virji cited to objective findings, 

plaintiff's dubious credibility, and various medical opinions in 

the record to adequately support their opinions. Tr. 117-118, 121. 

For example, Dr. Comrie cited to a treatment note indicating mental 

status findings within normal limits with an irritable and 

depressed mood. Tr. 117. As support for his opinion, Dr. Virji 

cited to the examinations and opinions of Drs. Shanks and Bender, 

and Mr. Bomberger. Tr. 118. Moreover, both physicians referenced 

plaintiff's pattern of symptom exaggeration during consultative 

examinations. Tr. 118. 

Contrary to plaintiff's argument, the ALJ has the 

responsibility, not the nonexamining physician, to weigh and 

resolve conflicting medical opinions. See Parra v. Astrue, 481 F.3d 

742, 750 (9th Cir. 2007) ("questions of credibility and resolution 

of conflicts in the testimony are functions solely for the 

agencyn). 

As discussed previously, the ALJ gave specific and legitimate 

reasons to discount conflicting medical opinions and found the 

opinions of Drs. Comrie and Virji consistent with the medical 

record. Tr. 31, 33-35; see 20 C.F.R. 416.927(c) (In evaluating a 

nonexamining physician's opinion, the ALJ may also consider factors 

such as consistency with the record and specialization of the 

24 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 24 of 29
opining physician.). For example, in January 2013, the counseling 

center discharged plaintiff for poor attendance and failing to 

return phone calls to reschedule counseling sessions. Tr. 585. 

Plaintiff's mental status findings have been essentially normal. 

See generally Tr. 463, 499, 529, 556, 571. 

Similarly, as the ALJ noted, Dr. Virji's opinion is consistent 

with the medical record. Tr. 35. Plaintiff's examinations indicate 

unremarkable objective findings. See generally, Tr. 357, 391-92, 

449, 451, 454, 499. Additionally, Dr. Virji's opinion is consistent 

with Mr. Bomberger' s functional assessment, aside from a less 

restrictive standing limitation. Tr. 381. Although Dr. Virji gave 

great weight to Dr. Shanks' opinion, the ALJ provided specific and 

legitimate reasons, as discussed above to partially reject Dr. 

Shanks' functional assessment. Indeed, plaintiff does not specify 

any additional physical or mental limitations in the record that 

the ALJ did not properly reject. 

Accordingly, I find that the opinions of Drs. Comrie and Virji 

are supported by substantial evidence in the record, and the ALJ 

did not err in relying on these opinions. Thus, the RFC finding is 

supported by substantial evidence as a whole. See Andrews v. 

Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (the opinion of a 

nonexamining physician "may serve as substantial evidence when [it 

is] supported by other evidence in the record" and consistent with 

it) . 

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Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 25 of 29
II. The ALJ Failed to Obtain Medical Expert Testimony 

The ALJ "has a special duty to fully and fairly develop the 

record and to assure that the claimant's interests are considered." 

Garcia v. Commissioner of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 

2014). However, the ALJ is generally not obligated to solicit 

hearing testimony from a medical expert. 3 See 20 C.F.R. 

416. 927 (f) (2) (iii) (An ALJ "may ... ask for and consider opinions 

from medical experts on the nature and severity of [a claimant's] 

impairment ( s) . ") . 

A careful review of the record reveals that th~ ALJ 

appropriately declined to obtain medical expert testimony. The ALJ 

assessed plaintiff's mental and physical limitations based on an 

unambiguous and adequately developed record. See Tonapetyan, 242 

F.3d at 1150 ("ambiguous evidence, or the ALJ's own finding that 

the record is inadequate .. triggers the ALJ's duty to 'conduct 

an appropriate inquiry'"). 

Plaintiff appears to argue that the record was inadequately 

developed with respect to his seizure impairment and that medical 

3 The Ninth Circuit has recognized an exception to the ALJ's 

otherwise permissive use of medical expert testimony where "the 

medical evidence is not definite concerning the onset date [of 

disability] and medical inferences need to be made." Armstrong v. 

Commissioner of Soc . Sec. Admin., 160 F.3d 587, 590 (9th Cir. 

1998). In a case involving an indefinite onset date, "SSR 83-20 

requires the [ALJ] to call upon the services of a medical advisor 

and to obtain all evidence which is available to make the 

determination." Id. The onset date of disability is not at issue 

in this case. 

26 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 26 of 29
expert testimony was necessary to interpret his brain MRI and 

assess functional limitations resulting from his seizures. 

Plaintiff is incorrect. 

With respect to plaintiff's brain MRI, the ALJ appropriately 

relied on the evaluation of neurologist Marie Atkinson, M.D. In a 

February 2013 examination, Dr. Atkinson observed relatively normal 

neurological findings with the exception of a slightly antalgic 

gait. Tr. 610-11. Dr. Atkinson noted that plaintiff's brain MRI 

revealed encephalomalacia in the left temporal region and multiple 

white matter ischemic changes. Tr. 33, 658. Dr. Atkinson also noted 

that the structural change involving his left temporal lobe is an 

underlying risk factor for epilepsy. Tr. 608. Dr. Atkinson 

attributed the multiple lacunar infarcts to his uncontrolled 

hypertension, diabetes, and smoking. Tr. 611. Dr. Atkinson also 

noted that plaintiff's February 2013 EEG test was negative. Tr. 

613. 

As the ALJ noted, Dr. Atkinson prescribed Dilantin, an antiseizure medication and strongly advised plaintiff to stop smoking. 

Tr. 33, 611. Plaintiff reported to Nurse Small that his seizures 

markedly improved after starting anti-seizure ~edication. Tr. 628. 

Dr. Atkinson also noted that plaintiff's excessive coughing 

episodes, triggered by smoking, may cause seizures due to a lack of 

oxygen. Tr. 611. Moreover, Dr. Atkinson only assessed seizure 

precautions such as avoiding driving, operating heavy machinery, 

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Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 27 of 29
swimming or climbing heights, which are reflected in the RFC 

finding. Id.; see Tr. 29 (limitations in RFC finding such as 

avoiding concentrated exposure to vibration and hazards and never 

climbing ladders, ropes, or scaffolds). 

Moreover, I am unpersuaded by plaintiff's argument that Dr. 

Atkinson did not assess any work-related limitations because 

plaintiff was not currently working. "The claimant bears the burden 

of proving [he) is disabled." Meanel v. Apfel, 172 F.3d 1111, 1113 

(9th Cir. 1999) ([Plaintiff) must present complete and detailed 

objective medical reports of [his) condition from licensed medical 

professionals."). Here, Dr. Atkinson's evaluation occurred two 

months before plaintiff's hearing. At the hearing, the ALJ informed 

plaintiff that he would keep the record open for at least 30 days 

for plaintiff to submit records of Dr. Atkinson's evaluation. Tr. 

93. Consequently, it is reasonable for the ALJ to conclude that Dr. 

Atkinson did not assess functional limitations beyond seizure 

precautions because plaintiff's impairment did not cause further 

restrictions. 

Indeed, as discussed above, the ALJ's RFC finding is supported 

by substantial evidence. Tr. 499, 518, 610-11. The RFC finding 

adequately reflects plaintiff's mental and physical limitations. 

Tr. 29. To be sure, plaintiff does not specify any additional 

cognitive or physical limitations that the ALJ failed to include in 

the RFC. Given Dr. Atkinson's detailed assessment and the medical 

28 - OPINION AND ORDER 

Case 3:14-cv-01756-MA Document 19 Filed 11/10/15 Page 28 of 29
evidence as a whole, the ALJ's evaluation of plaintiff's brain 

impairment and its resulting limitations is supported by 

substantial evidence. 

In summary, the record is unambiguous and adequately 

developed, and the ALJ did not err in declining to obtain medical 

expert testimony. 

CONCLUSION 

For the reasons stated above, the Commissioner's final 

decision is AFFIRMED. This action is DISMISSED. 

IT IS SO ORDERED. 

DATED this (cJ day of NOVEMBER, 2015. 

Malcolm F. Marsh 

United States District Judge 

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