IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

MICHAEL JAMES FIFIELD, 

Plaintiff, 

v. 

CAROLYNW. COLVIN, 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

CLARKE, Magistrate Judge. 

Civ. No. 3:15-cv-02180-CL 

REPORT AND 

RECOMMENDATION 

Plaintiff Michael James Fifield ("Fifield") seeks judicial review of the Social Security 

Commissioner's final decision denying his applications for Disability Insurance Benefits and 

Supplemental Security Income under Titles II and XVI of the Social Security Act. This court 

has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c), and reviews to determine whether the 

Commissioner's decision is based upon substantial evidence. Treichler v. Comm 'r Soc. Sec. 

Admin., 775 F.3d 1090, 1098 (91

h Cir. 2014). The Commissioner's decision should be affirmed 

for the following reasons. 

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BACKGROUND 

Born in 1965 (Admin. R. 284), Mr. Fifield has a high school education, which included 

special education. Id. at 4 7, 348. He alleges disability beginning December 10, 2010, id. at 284, 

due to decreased mental capacity, epilepsy, high blood pressure, leg pain, and depression. Id. at 

347. 

The Commissioner makes disability determinations under the Act using a regulatory fivestep analysis. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4); Keyser v. Comm 'r Soc. Sec. Admin., 

648 F.3d 721, 724 (9th Cir. 2011) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 

1999)). 

Following a hearing, an Administrative Law Judge ("ALJ") found Mr. Fifield not 

disabled on June 23, 2014. Admin. R. 20-36. The ALJ found Mr. Fifield's borderline 

intellectual functioning, adjustment disorder, and anxiety disorder "severe" under the 

Commissioner's regulations, id. at 23, but concluded they did not meet a regulatory listing. Id. at 

25. The ALJ determined that Mr. Fifield retained the residual functional capacity ("RFC") to 

perform a "full range of work at all exertional levels," but was limited to "simple repetitive tasks 

with no public contact and only occasional contact with supervisors and coworkers." Id. at 28. 

The ALJ found that this RFC prevented Mr. Fifield from performing his past relevant work but 

concluded he could perform work in the national economy, id. at 34-35, and consequently found 

Mr. Fifield not disabled under the Act. Id. at 35. 

The Commissioner's Appeals Council denied review of the matter. Id. at 1-3. That action 

finalized the ALJ's decision, making it subject to this court's review. 20 C.F.R. § 410.670a. 

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STANDARD OF REVIEW 

This court must affirm the ALJ' s decision if it is based on proper legal standards and 

supported by substantial evidence. 42 U.S.C. § 405(g); see also Brown-Hunter v. Colvin, 806 

F.3d 487, 492 (9th Cir. 2015). "Substantial evidence" means "more than a scintilla but less than a 

preponderance." It is "such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion." Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting 

Lingenfelter v. Astrue, 504 F.3d 1029, 1035 (9th Cir. 2007)). Under this standard, the ALJ need 

not discuss every piece of evidence of record. Howard ex rel. Wolffv. Barnhart, 341F.3d1006, 

1012 (9th Cir. 2003) (quoting Black v. Apfel, 134 F.3d 383, 386 (8th Cir. 1998)). 

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. Garrison, 759 F.3d at 1010 (quoting Andrews v. Shalala, 53 F.3d 

1035, 1039 (9th Cir. 1995)). "However, a reviewing court must consider the entire record as a 

whole and may not affirm simply by isolating a specific quantum of evidence." Orn v. Astrue, 

495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 446 F.3d 880, 882 (9th 

Cir. 2006)); see also Garrison, 759 F.3d at 1009-10. Finally, the reviewing court may not affirm 

the Commissioner on grounds upon which the Commissioner did not rely. Burrell v. Colvin, 775 

F.3d 1133, 1138 (9th Cir. 2014) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)); 

see also Brown-Hunter, 806 F.3d at 1138. 

ANALYSIS 

Mr. Fifield asserts that the ALJ: (1) erroneously evaluated opinions submitted by his 

treating physician, the opinions of two examining physicians, and that of a reviewing physician; 

(2) improperly rejected his testimony and that of two lay witnesses; (3) erroneously found 

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numerous impairments non-severe under the Commissioner's regulations; (4) erroneously found 

him able to perform work in the national economy at step five in the sequential regulatory 

analysis; and (5) violated his due process rights. 

I. Medical Evidence 

A. Standards 

The Commissioner relies upon medical evidence to make disability determinations; the 

regulations distinguish between treating, examining, and reviewing physicians. 20 C.F.R. §§ 

404.1527(c) and (e); 416.927(c) and (e). The regulations reserve disability determinations to the 

Commissioner, and a physician's statement that an individual is unable to work does not direct a 

finding of disability. Id at §§ 404.1527( d)(l ); 416.927( d)(l ). The Commissioner cannot "give 

any special significance" to the source of an opinion on this issue. Id at§§ 404.1527(d)(2) and 

416.927(d)(2). 

Judicial review consequently distinguishes between treating, examining, and reviewing 

physicians. See, e.g., Garrison, 759 F.3d at 1012 (citing Lester v. Chafer, 81 F.3d 821, 830 (9th 

Cir. 1995)). A treating physician's opinion "must be given controlling weight if that opinion is 

well supported and not inconsistent with other substantial evidence in the case record." Edlund 

v. Massinari, 253 F.3d 1152, 1157 (9th Cir. 2001); see also Garrison, 759 F.3d at 1012. The ALJ 

resolves "conflicting medical evidence" on the matter, but "must present clear and convincing 

reasons for rejecting the uncontroverted opinion of a claimant's physician." Thomas v. Barnhart, 

278 F.3d 947, 956-57 (9th Cir. 2002). If the treating physician's opinion is contradicted, the ALJ 

must provide "specific and legitimate" reasons for rejecting it. Garrison, 759 F.3d at 1012 

(citing Ryan v. Comm'r Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). Here, the regulations 

direct that the Commissioner consider medical specialty, nature and extent of treating 

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relationship, supporting evidence, consistency, and other factors. Garrison, 759 F.3d at 1012 at 

n. 11; 20 C.F.R. §§ 404.1527(c)(2-6); 416.927(c)(2-6). 

An examining physician's opinion, in turn, receives greater weight than that of a 

reviewing physician, and the ALJ must set out "specific, legitimate" reasons for rejecting the 

opinion of an examining physician for that of a reviewing physician. Nguyen Chater, 100 F.3d 

at 1462, 1466 (91

h Cir. 1996) (citing Lester, 81 F .3d at 831 ). The ALJ may weight a reviewing 

physician's opinion depending "upon the degree to which" the reviewing physician supports his 

opm1on. Garrison, 759 F.3d at 1012 (quoting Ryan, 528 F.3d at 1198); 20 C.F.R. §§ 

404.1527(d)(3); 416.927(d)(3). But, a reviewing physician's opinion alone may not constitute 

substantial evidence justifying rejection of a treating or examining physician's opinion. Lester, 

81 F.3d at 831. Finally, the ALJ may reject any contradicted opinion that is "brief, conclusory, 

and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 1149 (9th 

Cir. 2005) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)). 

B. Treating Medical Source Opinion 

Mr. Fifield asserts that the ALJ erroneously "completely failed to address" the opinion of 

his treating internist Richard Howe, M.D. Pl.'s Op. Br. 7. He specifically asserts that the ALJ 

ignored Dr. Howe's December 8, 2010, hospital discharge note. Id. 

Dr. Howe and his associates provided Mr. Fifield's routine primary care in January and 

May 2008. Admin. R. 591-600. In January 2008 Dr. Howe assessed right foot pain that began 

when Mr. Fifield tripped over cats. Id. at 600-01. Imaging studies showed unrelated heel bone 

spurring and slight tissue swelling. Id. at 601. In May 2008 Dr. Howe treated a right-arm bruise 

and advised Mr. Fifield to reduce his alcohol use. Id. at 591-92. 

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Dr. Howe and his associates at the Moscow Family Medicine clinic treated Mr. Fifield 

during his 2010 hospitalizations for acute alcohol withdrawal and associated seizures. Id. at 579. 

Mr. Fifield was first admitted on August 10, 2010, for a grand mal seizure. The attending 

physician stated this was an alcohol-withdrawal seizure. Id. at 452, 583-84. Dr. Howe 

discharged Mr. Fifield against medical advice the next day, and told Mr. Fifield that he was at 

risk for further alcohol-withdrawal seizures "which could be fatal." Id. at 523-24, 579-80. 

Mr. Fifield again presented at the emergency room on December 2, 2010, in acute 

alcohol withdrawal and was admitted for detoxification. Id. at 520. Dr. Howe's associate, 

Randall Lorenz, M.D., assessed acute and chronic alcoholism and a history of alcoholwithdrawal seizures. Id. at 578. On December 3, 2010, Dr. Lorenz stated that Mr. Fifield was 

prescribed anti-seizure medication "due to history of seizures with [alcohol] withdrawal," and 

that "it has been possible to prevent recurrent seizure by Dilantin being started on admission." 

Id. 

Dr. Howe discharged Mr. Fifield from the hospital on December 8, 2010. Tr. 485-86, 

515-16 [duplicate]. Dr. Howe's discharge report stated, "Suspicion that he probably had another 

grand mal seizure secondary to alcohol withdrawal." Id. at 485, 515. The discharge summary 

also referenced "consults/procedures: cognitive evaluation by speech therapy showed significant 

cognitive impairments that make independent living and keeping a job very difficult." Id. at 484, 

515. The associated evaluation is not in the record now before the court. 

At a December 22, 2010, follow-up clinic visit Dr. Howe stated Mr. Fifield was using a 

cane for balance problems that began two weeks earlier in association with his alcoholwithdrawal seizure and fall. Id. at 512, 568. Dr. Howe reviewed Mr. Fifield' s prior history of 

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alcohol-withdrawal seizures, and prescribed seizure medication for this purpose. Id. at 513, 569. 

Dr. Howe saw Mr. Fifield for an outpatient follow-up visit on January 21, 2011. Id. at 509. 

The ALJ discussed Dr. Howe's notes, observations, and opinions throughout his decision. 

He cited this evidence by exhibit number. Id. at 23 (citing Ex. 2F, p. 3, 9,10), id. at 30 (citing 

Ex. IF, p. 3, 10, 11, 38, and Ex. 5F p. 5-9). Exhibit lF contains Gritman Medical Center 

treatment records. Admin. R. 450-506. This is the hospital where Dr. Howe treated Mr. Fifield 

as an inpatient in August and December 2010. Exhibits 2F and 5F contain Moscow Family 

Medicine Clinic notes. Id. at 507-534; 558-601. This is Dr. Howe's clinic, where he treated Mr. 

Fifield as a routine outpatient. 

The indicated exhibits contain Dr. Howe's treatment notes and opinions. The ALJ need 

not discuss a physician by name, and Mr. Fifield's submission that the ALJ "completely failed to 

address" Dr. Howe's opinions is not based upon this record. 

Mr. Fifield's specific assertion that the ALJ ignored Dr. Howe's opinion regarding his 

workplace abilities misconstrues Dr. Howe's December 8, 2011 discharge note. Dr. Howe did 

not opine that Mr. Fifield had cognitive deficits apparently assessed by the speech therapist. The 

speech therapist's notes are not in the record before the court. The ALJ's assessment of Dr. 

Howe's opinion is based upon the record and therefore should be sustained. 

C. Examining Medical Source Opinions 

1. Examining Psychologist Michael Leland, Psy. D. 

Mr. Fifield asserts that the ALJ did not address specific portions of the opinion of 

examining psychologist Michael Leland, Psy. D. Pl's Op. Br. 8. He argues that the ALJ 

therefore did not provide "specific and legitimate" reasons for rejecting it. Pl.'s Op. Br. 8. 

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Dr. Leland performed an intellectual assessment on May 17, 2011. Admin. R. 542-52. 

He reviewed limited educational and medical records, performed a clinical interview, and 

administered diagnostic testing. Id. Dr. Leland assessed a full-scale IQ of 79, which placed Mr. 

Fifield in the "borderline" range of intellectual functioning. Id. at 550. Dr. Leland diagnosed 

"history of alcohol abuse, reportedly in full sustained remission" and borderline intellectual 

functioning. Id. at 551-52. He also noted Mr. Fifield's reports of a seizure disorder and low 

back musculoskeletal complaints. Id. at 552. 

Dr. Leland concluded that Mr. Fifield "may be able to function independently in a wellsupervised employment circumstance but may find some challenges in functioning effectively in 

a truly competitive work environment," and suggested referral to vocational rehabilitation 

services for additional employment resources. Id. at 551. 

The ALJ repeatedly discussed Dr. Leland's opinion. Id. at 25-27, 29, 30. He cited Dr. 

Leland's description of Mr. Fifield's reported daily activities and work history. Id. at 25, 30. 

The ALJ accepted Dr. Leland's findings that Mr. Fifield could complete basic attentional tasks 

and understand simple oral instructions. Id. at 26. He also accepted Dr. Leland's opinion that 

Mr. Fifield's attention, concentration, and tracking were adequate, id. at 27, 33, and, finally, 

accepted Dr. Leland's IQ assessment. Id. at 29. 

Mr. Fifield does not show that the ALJ failed to address Dr. Leland's clinical 

observations and diagnostic conclusions. While the ALJ did not discuss Dr. Leland's suggestion 

that Mr. Fifield might benefit from vocational rehabilitation counselling before entering a 

competitive workplace, the ALJ need not discuss "every piece of evidence" in the record, 

especially where he provides an "in-depth discussion" of physician reports. Hughley v. Colvin, 

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628 Fed. Appx. 519, 520 (9th Cir. 2016) (not reported) 1

; Howard, 341 F.3d at 1012 (9th Cir. 

2003); see also Vincent v. Heckler, 739 F.3d F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam). 

The ALJ discussed and accepted Dr. Leland's opinion in considerable detail, Admin. R. 26, 29, 

33, and Mr. Fifield therefore fails to demonstrate legal error. 

3. Examining Physicians Donald Ramsthel, M.D., and 

Kim Webster, M.D. 

Mr. Fifeld asserts that the ALJ improperly rejected the opinion of examining physician 

Donald Ramsthel, M.D., that he could perform light work only. Pl.'s Op. Br. 9. 

Two examining physicians addressed Mr. Fifield's physical impairments. Dr. Ramsthel 

examined Mr. Fifield in April 2011. Admin. R. 536-40. In October 2012 Kim Webster, M.D., 

performed a second examination. Id. at 607-12. The ALJ relied upon both. Id. at 24, 31-32, 34. 

Dr. Ramsthel evaluated Mr. Fifield on April 23, 2011. Admin. R. 536-40. He assessed 

"seizure disorder," and stated that, based upon Mr. Fifield's report and the December 2010 

medical records available for his review, Mr. Fifield had a seizure disorder. Id. at 526. Dr. 

Ramsthel's report also relied upon Mr. Fifield's report that he had not used alcohol in two years. 

Id. at 537. In conclusion, Dr. Ramsthel assessed a seizure disorder, alcohol "abuse/dependence," 

left hip pain "possibly with early degenerative changes but no imaging studies," a learning 

disorder, anxiety, and depression. Id.at 540. Dr. Ramsthel stated that "I believe [Mr. Fifield] 

could be walking or standing for 2+ hours at a time before needing to rest, translating into 5-6 

hours of an 8-hour day." Id. 

Dr. Webster performed a second musculoskeletal evaluation on October 26, 2012. Id. at 

607-15. Dr. Webster reviewed Dr. Ramsthel's opinion (id. at 608), and noted Mr. Fifield's 

1 Cited in accordance with 9th Cir. R. 36-3. 

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reports of epilepsy without any experience of a seizure m the past three years, cognitive 

dysfunction, and left sacroiliac joint pain. Id. at 608. Dr. Webster also noted that Mr. Fifield 

did not use an assistive device, such as a cane, and did not require one. Id. at 610. He concluded 

that Mr. Fifield carried diagnoses of epilepsy, cognitive dysfunction, left sacrioilliac joint pain 

with normal examination, decreased pinprick sensation to the left leg, bilateral edema without 

evidence of symptoms of heart failure, and alcoholism "currently in recovery." Id. at 612. An 

associated left hip x-ray showed no fracture or injury to Mr. Fifield's hip or sacroiliac joint, and 

no identifiable degenerative disease. Id. at 613. 

In conclusion, Dr. Webster found "no objective evidence to limit standing, walking, 

sitting, lifting, or carrying both occasionally and frequently," no evidence or need for an assistive 

device, and "no objective evidence for postural, manipulative, visual, communicative or 

environmental limitations." Id. at 612. 

The ALJ accepted Dr. Ramsthel' s diagnostic findings and assessment, but gave 

"moderate weight to Dr. Ramsthel's opinion concerning the claimant's ability to stand, walk, and 

sit." Id. at 31. The ALJ gave "little" weight to Dr. Ramsthel's opinion that Mr. Fifield can carry 

30 pounds occasionally and 20 pounds frequently because "there is nothing in his report that 

warrants" this limitation. Id. The ALJ gave "great" weight to Dr. Webster's opinion because he 

found it "consistent with the longitudinal evidence of record and with the details of his 

examination" of Mr. Fifield. Id. at 32. 

No treating physician directly addressed Mr. Fifield's physical limitations. Because the 

opinions of the examining physicians contradict, the ALJ was required to give specific and 

legitimate reasons only for rejecting one in favor of the other. Garrison, 759 F.3d at 1012. An 

ALJ may satisfy the Act's requirement that his decision be based upon substantial evidence by 

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"setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 

stating his interpretation thereof, and making findings." Id. (quoting Reddick v. Chater, 157 F.3d 

715, 725 (9th Cir. 1998)). The ALJ's discussion was detailed, cited conflicting evidence, and 

clearly identified his conclusions. This reasoning is sufficient and should therefore be affirmed. 

C. Reviewing Medical Source Opinions 

Mr. Fifield asserts the ALJ "overlooked" the opinions of reviewing psychologist Barney 

Greenspan, Ph.D., and physician Neal Bemer, M.D. PL 's Op. Br. 9. Both reviewed Mr. 

Fifield's record for Disability Determination Services.2 

Dr. Greenspan reviewed Mr. Fifield's record and endorsed "mild" restrictions of daily 

living, "moderate" difficulties in maintaining social functioning, and "marked" limitations in 

concentration, persistence, and pace. Admin. R. 152. His narrative analysis did not discuss 

limitations in concentration, persistence, and pace. Id. at 151. Dr. Greenspan subsequently 

found Mr. Fifield "markedly" limited in his ability to understand, remember, and carry out 

detailed instructions (id. at 154-55), but otherwise "not significantly limited" in a wide variety of 

fields related to "concentration and persistence." Id. at 155. He explained: 

Id. at 155. 

[Claimant] would have some concentration difficulties [due to] 

[borderline intellectual functioning] but is able to concentrate 

sufficiently to perform simple tasks. Can make simple decisions. 

Some evidence of distractibility but this would not interfere with 

the ability to complete a normal workday/workweek performing 

simple tasks with scheduled rest periods. 

The ALJ discussed Dr. Greenspan's op1mon addressing Mr. Fifield's concentration, 

persistence, and pace. Id. at 33. He found it internally inconsistent, and inconsistent with the 

2 Disability Determination Services ("DDS") is a federally-funded state entity that makes initial disability 

determinations on behalf of the Commissioner pursuant to 42 U.S.C. § 42l(a). 

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opinions of Dr. Leland and examining psychologist Patrick Ethel-King, Ph.D. Id. at 33. The 

record above reflects this finding. A reviewing physician's opinion alone cannot constitute 

substantial evidence, Lester, 821 F.3d at 831, and the ALJ need only give sufficiently specific 

reasons for rejecting a contradicted reviewing physician's opinion. See Garrison, 759 F.3d at 

1012 (stating that an ALJ's failure to set out specific, legitimate reasons for rejecting one 

medical opinion over another is error). The ALJ's reasoning is based upon the record and 

therefore sustained. 

Dr. Bemer also reviewed the record in May 2011 and found Mr. Fifield limited to 

occasionally lifting no more than twenty pounds. Admin. R. 79-81. The ALJ need not examine 

every piece of evidence in the record. Howard, 341 F.3d at 1012. Here, the ALJ accorded 

greater weight to the opinions of numerous treating, examining, and reviewing physicians 

discussed above. This is consistent with controlling legal standards directing that the ALJ give 

greater weight to the opinions of treating and examining medical sources. Further, a reviewing 

physician's opinion alone cannot constitute substantial evidence justifying rejection of treating or 

examining physician opinions. Lester, 81 F.3d at 831. Mr. Fifield therefore fails to establish 

error. 

D. Conclusion - Medical Evidence 

In summary, the ALJ's analysis of the medical evidence above was based upon the record 

and appropriate legal standards. The ALJ' s findings should be affirmed. 

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II. Testimonial Evidence 

A. Claimant's Testimony 

1. Claimant Testimony Standards 

The Act allows consideration of a claimant's symptom testimony. Pain allegations must 

correspond to a medical impairment "which could reasonably be expected to produce the pain or 

other symptoms alleged .... " 42 U.S.C. § 423(d)(5)(A). The regulations subsequently direct 

the Commissioner to consider a claimant's statements regarding his symptoms. 20 C.F.R. §§ 

404.1529(a); 416.929(a). This analysis is individualized, but alleged pain and functional 

limitation must again relate to a medically-determinable impairment. Id. at §§ 404.1529; 

416.929. 

The Ninth Circuit consequently directs a two-step process in evaluating a claimant's pain 

and symptom testimony. First, the ALJ determines "whether the claimant has presented 

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

produce pain or other symptoms alleged." Lingenfelter, 504 F.3d at 1036. Here, the claimant 

need only show that the impairment "could reasonably have caused some degree of the 

symptom." Smolen v. Chafer, 80 F.3d 1273, 1282 (9th Cir. 1996), reaff'd by Brown-Hunter, 806 

F.3d at 493. Second, absent evidence of malingering, the ALJ may conclusively reject a 

claimant's testimony to the severity of her symptoms only by offering "specific, clear and 

convincing reasons for doing so." Brown Hunter, 806 F.3d at 493, citing Burrell, 775 F.3d at 

1136-37; see also Carmickle v. Comm 'r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008), 

citing Lingenfelter, 504 F.3d at 1036. Such findings must be "sufficiently specific to permit the 

reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." 

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Bunnell v. Sullivan, 947 F.3d 341, 345-46 (9th Cir. 1991), en bane; see also Brown-Hunter, 806 

F.3d at 493. 

2. Analysis 

The ALJ discussed Mr. Fifield's testimony in relation to his medical record, activities, 

and associated limitations throughout his opinion. Admin. R. 24-34. Mr. Fifield generally avers 

that the ALJ failed to identify sufficient reasons for rejecting his testimony. Pl.'s Op. Br. 14. He 

specifically challenges the ALJ's citation to the medical record regarding his alleged left leg and 

seizure impairments, and the ALJ' s inference that positive mental health evaluations between 

June and August 2013 suggested Mr. Fifield could perform work activity. Id at 13-14. He also 

states the ALJ failed to apply the Commissioner's administrative ruling addressing his residual 

functional capacity. Id 

a. Specific Impairments 

The ALJ found that the medical record did not show any diagnosis or impairment "which 

could reasonably be expected to result in the claimant's alleged chronic back and left leg pain." 

Admin. R. 29. The ALJ took notice of Mr. Fifield's obesity, id at 24, and discussed 

examinations and imaging studies showing normal left hip anatomy and function. Id. at 31-32. 

Mr. Fifield bears the burden of establishing a medically-determinable impairment. 42 

U.S.C. § 423(d)(5)(A); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); Tackett, 180 F.3d at 

1098; 20 C.F.R. §§ 404.1512(a); 416.912(a). He presently establishes no impairment other than 

obesity that could cause back and left leg pain. The ALJ found Mr. Fifield's obesity "severe," 

but concluded "there is no clinical evidence in the record that describes his obesity as affecting a 

weight-bearing joint." Admin. R. 24. Mr. Fifield does not now challenge this finding, and 

therefore fails to establish error. 

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Mr. Fifield also asserts that the ALJ improperly failed to consider his testimony 

addressing his seizures, and implies that these seizures are related to an ongoing epilepsy 

diagnosis. Pl.'s Op. Br. 14. He does not, however, point to specific testimony showing 

limitations relating to his seizures. 

The ALJ discussed Mr. Fifield's seizure activity, and found it related to alcohol 

withdrawal. Admin. R. 30. Mr. Fifield stipulated to this finding on April 24, 2014. Id. at 445. 

The Commissioner now asserts Mr. Fifield's seizures were related to his alcohol use, Def. 's Br. 

12, and the medical record discussed above supports this finding. The ALJ' s finding on the 

matter should therefore be affirmed. 

b. Mental Health Evaluations 

Finally, Mr. Fifield also asserts that the ALJ erroneously rejected his testimony because 

his mental health improved between June and August 2013. Pl.'s Op. Br. 14 (citing Admin. R. 

31). The ALJ's finding, in full, stated that Mr. Fifield's seizure activity and mental health 

improved when he ceased using alcohol. Admin. R. 31. While an ALJ may not cherry-pick the 

record and cite isolated instances of improvement, Garrison, 759 F.3d at 1017, the ALJ here 

correlated Mr. Fifield's improvement with his alcohol cessation. The ALJ's specific finding 

stated only that Mr. Fifield's improvement in sobriety contradicted his indication that his 

impairments have not improved since he completed initial application questionnaires. Id. (citing 

"Disability Report - Appeal [id. at 432, 437]). This citation, and the ALJ's citation to Mr. 

Fifield's medical record, discussed above, and his mental health counselling notes (Admin. R. 

625, 641) support the ALJ's analysis. Id. The ALJ's finding is based upon substantial evidence 

and should therefore be affirmed. 

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c. Social Security Ruling 96-9p 

Finally, Mr. Fifield submits that "he only asserts that he cannot maintain employment on 

a regular, continuing basis, rather than that he is incapable of all work activity." Pl. 's Op. Br. 14. 

He points to no testimony supporting this position. The Commissioner's indicated 

administrative ruling states that an individual's residual functional capacity ("RFC") is "the 

maximum remaining ability to do sustained work activities in an ordinary work setting on a 

regular and continuing basis, and the RFC assessment must include a discussion of the 

individual's abilities on that basis." Soc. Sec. Ruling 96-8p, "Assessing Residual Functional 

Capacity in Initial Claims," at* 2 (available at 1996 WL 374184). Mr. Fifield's submission fails 

to distinguish between his allegation of disability and administrative determination of his 

workplace abilities, discussed below. Mr. Fifield's citation to the Commissioner's administrative 

ruling does not now establish error in the ALJ's assessment of his testimony. 

The ALJ's evaluation of Mr. Fifield's testimony should therefore be affirmed. 

B. Lay Testimony 

1. Lay Testimony Standards 

The ALJ must give "germane" reasons for rejecting lay testimony. Dale v. Colvin, 

Comm 'r Soc. Sec., 823 F.3d 941, 943 (9th Cir. 2016); Nguyen, 100 F.3d at 1467. The ALJ may 

reject lay testimony to the extent it is consistent with similar testimony properly rejected, Molina 

v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012), but such analysis must apply to commensurate 

portions of testimony. See id.; Dale, 823 F.3d at 945-46. Discrediting a lay witness's entire 

testimony on the basis of reasoning applying to only a portion of it is erroneous. Id. at 946. 

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2. Rachel Butler 

Mr. Fifield's niece, Rachel Butler, submitted a questionnaire to the record on February 1, 

2011. Admin. R. 354-62. She stated that Mr. Fifield was temporarily staying at her home, and 

that he spends his time watching television and occasionally walks to the mall. Id. at 354. Ms. 

Butler wrote that Mr. Fifield has nighttime leg pain, and requires reminders to perform basic 

hygiene and self-care tasks. Id. at 355. She also stated that Mr. Fifield is "unsteady on his feet 

and often falls," and that he does not go out alone because he might "forget where he is." Id. at 

357. Ms. Butler repeatedly stated that Mr. Fifield is mentally slow and has difficulty with 

written instructions, id. at 357-59, but can follow spoken instructions "especially if repeated as 

he goes." Id. at 359. 

The ALJ twice reiterated Ms. Butler's testimony. Id. at 25, 33. The ALJ noted her 

observations and reports of Mr. Fifield's activities. Id. The ALJ concluded, "even if taken as 

true, Ms. Butler's statements appear to reflect only a brief period of time after the claimant was 

released from detoxification." Id. at 33. Here the ALJ cited examining psychologist Dr. 

Leland's report that Mr. Fifield "had recovered the ability to care for himself much more 

adequately" when sober. Id. The ALJ again emphasized, "Ms. Butler's statements, while 

possibly true at the time she made them, do not accurately portray the claimant's functional 

abilities over the duration of the time since the amended alleged onset date." Id. The ALJ gave 

the statements "little weight." Id. 

Mr. Fifield asserts that "while [he] has improved his ability to care for himself following 

his alcohol detoxification, his mental and physical impairments remain, so Ms. Butler's 

statement should be credited .... " Pl.'s Op. Br. 12. This submission misconstrues controlling 

legal authority. The ALJ was required to give reasons germane to Ms. Butler and her testimony 

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in weighting it. Molina, 674 F.3d at 1114. The ALJ adequately found that Ms. Butler's 

testimony addressed Mr. Fifield's functioning while intoxicated or undergoing detoxification, 

and did not address his functioning when sober. This reasoning should be sustained. 

3. Charles Ferrero 

Mr. Fifield's friend, Charlies Ferrero, submitted an additional report to the record on 

August 9, 2012. Admin. R. 422-29. Mr. Ferrero stated he has known Mr. Fifield approximately 

a year, and that Mr. Fifield speaks slowly and experiences medication side effects. Id at 422. 

Mr. Fifield no longer drives and has had difficulty finding a job. Id He requires reminders from 

his sister to complete personal care, and is "slower than average" in performing household 

chores. Id. at 424. Mr. Fifield's activities include drawing, reading, and attending Alcoholics 

Anonymous meetings. Id. at 426. He has difficulty getting along with his sister and her 

boyfriend, and is "pretty much a loner." Id. Mr. Ferraro endorsed difficulty in Mr. Fifield's 

memory and ability to talk, complete tasks, concentrate, understand and follow instructions, and 

get along with others. Id. at 427. 

The ALJ accepted these statements to the extent they were consistent with Mr. Fifield's 

accepted testimony, Admin. R. 34, but noted it "adds little of substance to the evidence." Id at 

26. The ALJ may accept or reject lay testimony predicated upon a claimant's similar testimony 

that was properly accepted or rejected. Molina, 674 F.3d at 1114-15 (citing Valentine v. 

Comm 'r, 574 F.3d 685, 694 (91h Cir. 2009)). The ALJ's reasoning should therefore be 

sustained. 

Ill 

Ill 

Ill 

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III. The ALJ's Regulatory Analysis 

A. Step Two Severity Regulations 

1. Standards 

The second step of the Commissioner's five-step regulatory analysis directs evaluation of 

an impairment's "severity." This analysis requires that the claimant show a medically 

determinable impairment which, in combination with other impairments, significantly limits his 

ability to perform workplace activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c); 

416.920(a)(4)(ii) and (c). Such impairment must last at least twelve months. 20 C.F.R. §§ 

404.1509; 416.909. The step two inquiry is a "threshold inquiry" Bowen v. Yuckert, 482 U.S. 

137, 153 (1987), and omissions are harmless if the ALJ's subsequent evaluation considered the 

impairment's effects. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 

2. Analysis 

Mr. Fifield asserts that the ALJ failed to consider his obesity, alleged epilepsy, left leg 

and hip pain, right foot heel spur, and coordination and balance issues at step two in the 

sequential proceedings. Pl.'s Op. Br. 10-11. 

The ALJ's step two analysis discussed Mr. Fifield's obesity at length. Admin. R. 24-25. 

Mr. Fifield does not challenge the ALJ's findings, and his argument that the ALJ failed to 

discuss the matter is therefore without merit. 

The ALJ discussed Mr. Fifield's seizure activity in assessing his residual functional 

capacity ("RFC"). Id. at 30-31. An omission at step two in the sequential proceedings is 

harmless if the ALJ subsequently addresses the matter. Lewis, 498 F.3d at 911 (citing Stout v. 

Comm 'r, 454 F .3d 1040, 1054-55 (9th Cir. 2007). Here, the ALJ discussed Mr. Fifield' s seizure 

activity, and found it correlated to his alcohol use based upon the medical record discussed 

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above. Admin. R. 31. Mr. Fifield also testified to this at his hearing. Id. at 52. The ALJ also 

noted Mr. Fifield's reports that he stopped using alcohol, id., and Mr. Fifield testified that the 

seizures ceased when he ceased drinking. Id. at 52. Mr. Fifield therefore fails to establish error 

in the ALJ's omission of seizure activity at step two. 

Finally, the ALJ also discussed Mr. Fifield's back, foot, and left leg pain in assessing his 

RFC. Id. at 29-32. The ALJ found no medical evidence supporting an impairment which could 

cause chronic back and left leg pain. Id. at 29. Here he cited Dr. Ramsthel's examination 

showing generally equal leg strength, id. at 31, and Mr. Fifield's report to Dr. Webster that he 

stand an hour, sit two hours, and walk a mile. Id. The ALJ also discussed an October 2012 left 

hip x-ray showing unremarkable findings and no degenerative disease. Id. at 31-32. 

For all of the reasons, Mr. Fifield fails to show that the ALJ erroneously omitted 

evaluation of his additionally alleged impairments at step two in the sequential regulatory 

analysis. 

B. Residual Functional Capacity and Step Five Findings 

Mr. Fifield asserts that the ALJ's Residual Functional Capacity ("RFC") formulation was 

incomplete, and that his finding that he could perform work existing in the national economy was 

consequently erroneous. Pl.'s Op. Br.14-15. 

The ALJ's RFC assessment is a statement describing a claimant's workplace abilities 

following analysis of the evidence of record under the standards discussed above. 20 C.F.R. §§ 

404.1545; 416.945. It represents the most a claimant can do despite his limitations. 20 C.F.R. 

§§ 404.1545(a)(l); 416.945(a)(l). Mr. Fifield does not now point to specific limitations 

improperly omitted, nor does he establish error in the ALJ' s evaluation of the evidence, 

discussed above. Consequently, Mr. Fifield establishes no error in the ALJ's RFC evaluation. 

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At step five in the sequential proceedings, the ALJ determines whether the claimant can 

perform work existing in the national economy in significant numbers. 20 C.F.R. §§ 

404.1520(a)(4)(v); 416.920(a)(4)(v). Here the ALJ may draw upon a vocational expert's 

testimony to show that a claimant can perform such work. 20 C.F.R. §§ 404.1566(d)-(e); 

416.966(d)-(e). The ALJ's questions to the vocational expert must include all properlysupported limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1665-66 (9th Cir. 2001). 

Mr. Fifield's RFC included "capacity to perform a full range of work at all exertional 

levels but with the following nonexertional limitations: He is limited to simple repetitive tasks 

with no public contact and only occasional contact with supervisors and coworkers." Admin. R. 

28. The ALJ presently asked the vocational expert to consider an individual limited to simple 

and repetitive tasks, no public contact, and occasional coworker and supervisor interactions. Id. 

at 35, 57-58. This questioning includes all limitations assessed in Mr. Fifield's RFC. Mr. 

Fifield therefore fails to establish error. 

IV. Due Process Challenge 

Finally, Mr. Fifield asserts that the ALJ violated his due process rights. Pl.'s Op. Br. 15-

16. He specifically states that the ALJ should have developed the record, and that the ALJ 

improperly truncated his hearing. Id. at 16. 

The Ninth Circuit has addressed due process in this context on several occasions. To 

succeed in showing violation of due process rights, a social security claimant must show that 

"the ALJ's behavior, in the context of the whole case, was so extreme as to display clear inability 

to render fair judgment." Bayliss v. Barnhart, 427 F3.d 1211, 1214-15 (9th Cir. 2005) (quoting 

Rollins v. Massinari, 261 F.3d 853, 858 (9th Cir. 2001)) (internal quotations omitted). 

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Although the record suggests that Mr. Fifield's administrative hearing was relatively 

short (Admin. R. 46-59), Mr. Fifield's counsel also stated that he had no further questions, id. at 

55, and declined to ask further questions of the vocational expert testifying at the hearing. Id. at 

59. The ALJ issued a sixteen-page decision which discussed the evidence above and other 

matters in considerable detail. This Court therefore finds no egregious behavior tantamount to 

due process violation. 

Mr. Fifield finally contends that the ALJ erred in failing to order a requested 

neuropsychological evaluation. Pl.' s Op. Br., 16. He theorizes that, because he was evaluated 

with a full-scale IQ score of 79, further testing should have been ordered to establish his Verbal 

IQ and Performance IQ. Id. 

Mr. Fifield's indicated citation addresses a claim for benefits due to intellectual disability 

(formerly termed "mental retardation"). Garcia v. Comm 'r Soc. Sec., 768 F.3d 925, 926 (9th Cir. 

2014). The Commissioner's intellectual disability regulations apply to individuals with an IQ of 

70 or lower only, beginning before age 22. 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.05. The 

Ninth Circuit reasoned that, in a case that turned "on whether a claimant has an intellectual 

disability and in which IQ scores are relied upon for the purpose of assessing disability" it 

followed that full-scale IQ scores were necessary. Garcia, 768 F.3d at 930-31. The court looked 

to the regulations addressing intellectual disability, and noted that they disfavored abbreviated IQ 

test results. Id. at 931. 

Mr. Fifield made no allegation of "intellectual disability" pursuant to§ 12.05, and did not 

assert such at any stage of the proceedings. He asserts mental "slowness" only, which does not 

require full-scale IQ evaluation under the indicated authorities. This argument therefore fails. 

Ill 

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RECOMMENDATION 

The Commissioner's decision that Mr. Fifield is not entitled to benefits under Titles II 

and XVI of the Social Security Act is based upon substantial evidence and the proper legal 

standards. It should therefore be AFFIRMED. 

This Report and Recommendation will be referred to a district judge. Objections, if any, 

are due no later than fourteen (14) days after the date this recommendation is filed. FED. R. C1v. 

P. 72. If objections are filed, any response is due within fourteen (14) days after being served 

with a copy of the objections. Id. Parties are advised that the failure to file objections within the 

specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 

1153 (9th Cir. 1991). 

IT IS SO ORDERED. 

DATED this _/_V ___ day of January, 2017. 

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