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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Remo Romulo Rainsford,

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant.

No. CV-17-00530-TUC-EJM

ORDER 

Plaintiff Remo Romulo Rainsford brought this action pursuant to 42 U.S.C. § 405(g) 

seeking judicial review of a final decision by the Commissioner of Social Security 

(“Commissioner”). Plaintiff raises three issues on appeal: 1) the Administrative Law Judge

(“ALJ”) erred by failing to include all of Plaintiff’s mental limitations in the residual 

functional capacity (“RFC”) assessment; 2) the ALJ failed to fully develop the record; and 

3) the ALJ failed to provide clear and convincing reasons to discount Plaintiff’s statements 

about his bipolar disorder. (Doc. 16). 

Before the Court are Plaintiff’s Opening Brief, Defendant’s Response, and 

Plaintiff’s Reply. (Docs. 16, 17, & 18). The United States Magistrate Judge has received 

the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 

636(c) and Rule 73, Federal Rules of Civil Procedure. For the reasons stated below, the 

Court finds that the Commissioner’s decision should be affirmed. 

. . . 

. . . 
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I. Procedural History 

 Plaintiff filed an application for Supplemental Security Income on July 15, 2013.1

(Administrative Record (“AR”) 86). Plaintiff alleged disability beginning on July 15, 20132

based on back problems, bipolar disorder, and mental illness. (AR 86, 99, 217). Plaintiff’s 

application was denied upon initial review (AR 85) and on reconsideration (AR 98). A 

hearing was held on February 29, 2016 (AR 43), after which ALJ Charles Davis found, at 

Step Four, that Plaintiff was not disabled because he could perform his PRW as a dump 

truck driver. (AR 22). On August 28, 2017 the Appeals Council denied Plaintiff’s request 

to review the ALJ’s decision. (AR 1).

II. Factual History3

 Plaintiff was born on January 13, 1968, making him 45 at the AOD of his disability. 

(AR 99). He has an 11th grade education and has past relevant work as a horse caretaker, 

ranch hand, landscape laborer, vet assistant, water truck driver, and in maintenance. (AR 

83, 239). 

A. Treating Physicians 

On August 7, 2012 Plaintiff was seen at COPE Community Services for a 

psychiatric diagnostic interview. (AR 281). He had poor insight, judgment, and 

concentration, and was angry and agitated. Plaintiff was possibly under the influence, was 

not directable, and was only able to express wanting help for his elbow and stated he was 

only at COPE because he was court-ordered to be there. 

On February 5, 2013 Plaintiff was seen for medication refills for Fluoxetine for 

depression and Quetiapine for mood instability. (AR 282). He was friendly with good eye 

contact, memory appropriate, thought processes logical and coherent, and had good 

concentration, judgment, and insight. Diagnoses were bipolar II disorder and cannabis 

abuse. 

 

1 Plaintiff filed prior applications on March 30, 2010, February 10, 2006, and October 28, 

2004. (AR 87). 

2 Plaintiff’s initial application listed an AOD of September 30, 2005, but this was changed 

to July 15, 2013 on reconsideration. 

3 While the undersigned has reviewed the entirety of the record in this matter, the following 

summary includes only the information most pertinent to Plaintiff’s claims on appeal. 
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On March 5, 2013 Plaintiff was friendly with good eye contact, mood and 

concentration good, thought processes logical and coherent, and judgment fair due to illicit 

cannabis use. (AR 288). He was medication compliant and his bipolar disorder was stable 

or improved. (AR 289). 

On April 25, 2013 Plaintiff was talkative with an even mood, thought processes 

were logical and coherent, concentration, insight, and judgment good, and memory 

appropriate. (AR 286). He was medication compliant and bipolar disorder stable or 

improved. (AR 287). 

On June 3, 2013 Plaintiff asked for a seriously mentally ill (“SMI”) designation to 

help him with a disorderly conduct charge. (AR 284). His memory was appropriate, 

judgment and concentration were good, insight fair, and thought processes tangential. 

Plaintiff was medication compliant and bipolar disorder was stable or improved. (AR 285). 

On September 18, 2013 Plaintiff reported he stopped Seroquel because it made him 

twitch and that cannabis controlled his anxiety and mood instability. (AR 290). He was 

depressed because his hip hurt and frustrated. Plaintiff had good judgment, insight, and 

concentration, anxious mood, and logical and coherent thought processes. A review 

summary that same date notes that Plaintiff reported stopping his medications because they 

were causing twitches, dry mouth, and disturbed sleep. (AR 294). 

At various other non-mental health appointments, Plaintiff was described as 

tangential, talkative, and animated (AR 390, 483, 486, 502, 508), alert and oriented x3 (AR 

392, 420, 478, 481, 484, 505, 527, 532, 535), normal/appropriate affect (AR 420, 478, 519, 

527, 535), pleasant and cooperative (AR 390, 478, 519), and anxious (AR 443, 484, 505, 

510, 513). Plaintiff denied depression, bipolar disorder, and anxiety on multiple occasions 

(AR 397, 426, 530, 534) and reported using medical marijuana to relieve stress (AR 398, 

426). At an ER visit for back pain, Plaintiff had pressured speech and tangential thought 

processes and the physician believed Plaintiff had a mental health issue with mania and 

was exhibiting drug seeking behavior. (AR 480–81). At an ER visit for eye redness, the 

physician noted Plaintiff had an obvious psychiatric disturbance and required a lot of 
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redirection. (AR 502). At an ER visit for elbow pain, Plaintiff was loud, yelling, 

inappropriate, and said he wanted to hit someone with a hammer. (AR 510). When security 

arrived, Plaintiff calmed down and said he wanted to go home. 

B. Examining Physicians 

At a physical medicine consultation with Dr. Hassman on November 1, 2013, 

Plaintiff denied depression but reported anxiety. (AR 344). Plaintiff was described as 

awake and alert, oriented times three, pleasant and cooperative, and extremely verbose. 

Plaintiff had cognitive testing with Dr. Plevell on February 23, 2016. (AR 358). 

Plaintiff was described as alert and oriented with elevated affect and rapid speech, and his 

thought processes were circumstantial, tangential, and loose in association. Dr. Plevell’s 

conclusion was:

The client’s condition appeared to be most consistent with the 

diagnoses of: Bipolar Disorder; R/O Unspecified 

Neurocognitive Disorder. Testing suggested highly significant 

difficulty with processing speed and possibly with abstraction. 

Behaviorally, he demonstrated rapid speech and significantly 

disorganized thought. It is unclear if these issues are due to a 

primary condition or secondary to his Bipolar Disorder. 

(AR 359). 

C. State Agency Physicians 

On initial review, state agency physician Dr. JES found that Plaintiff had mild 

restriction in activities of daily living, moderate difficulties in social functioning and in 

maintaining concentration, persistence, or pace, and one or two episodes of 

decompensation. (AR 90). Dr. JES noted that Plaintiff had a history of tangential thought 

processes and poor judgment that had gotten him into legal trouble, and was not compliant 

with his meds, which was a common problem with affective disorders and thus was 

regarded as a consequence of his mental impairment rather than a contributing factor. (AR 

91). Dr. JES assessed the following limitations: marked limitation in ability to understand 

and remember detailed instructions, carry out detailed instructions, and interact with the 

general public; moderate limitation in ability to maintain attention and concentration, 

perform activities within a schedule, maintain regular attendance, and be punctual, 
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complete a normal workday and workweek without interruption from psychologically 

based symptoms and perform at a consistent pace, accept instruction and respond 

appropriately to criticism from supervisors, and get along with coworkers and peers. (AR 

93–94). Dr. JES opined that Plaintiff could perform simple tasks on a sustained basis, 

interact with peers and supervisors on a superficial, work basis, and could adapt to a work 

situation with simple tasks and no public contact. (AR 95). These findings were affirmed 

on reconsideration. (AR 103–104, 107–108). 

D. Plaintiff’s Testimony 

On a Disability Report dated July 19, 2013 Plaintiff stated that he stopped working 

in 2008 due to personal reasons. (AR 217). On a Function Report dated October 3, 2013 

Plaintiff reported that he could not work because of pain and arthritis in his right elbow 

and pain in his right hip. (AR 231). He takes care of his pets, has no problems with personal 

care, prepares his own meals, and does chores like vacuuming, watering the plants, and 

taking out the trash. (AR 232–233). On the section about his abilities, Plaintiff did not note 

any mental-related impairments. (AR 236). For how long he can pay attention, he wrote “I 

so broke I can’t afford to pay” but checked the box indicating he can finish what he starts. 

(AR 236). For how well he can follow written instructions, Plaintiff stated he had problems 

writing because of his elbow pain, and for how well he can follow spoken instructions, 

Plaintiff wrote “what does that have to do with my hip.” (AR 236). 

At the hearing before the ALJ, Plaintiff testified he lives with his 78-year-old mother 

and that he tries to help her with yard work, watering flowers, vacuuming, and cleaning. 

(AR 51). He stated that it was frustrating because he hadn’t been able to get a full-time job 

but also that he had not applied for any; he used to do seasonal work on ranches because 

he traveled around playing polo but has not played since 2002. (AR 52). His back and 

elbow pain prevent him from working now. (AR 52, 53). 

Plaintiff’s current medications are Flucytosine for his nose and fish oil. (AR 53). At 

times he takes pain medication but mainly uses medical marijuana. (AR 55, 69). His mother 

gives him money when he helps with chores to purchase the marijuana. (AR 70). Plaintiff 
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was previously court-ordered to take Prozac and Seroquel. (AR 71–72). He did not take 

Prozac; the jail gave him Risperdal but it gave him headaches so it was changed to 

Seroquel, but that also gave him bad headaches and put him in a fog. (AR 72). Plaintiff 

reported that COPE staff told him to follow up with the doctors but that they were happy 

he was using marijuana right now. (AR 72). 

On questioning by his attorney, Plaintiff stated that he had problems processing new 

information and staying focused. (AR 62). He had problems bouncing around and changing 

the subject ever since someone gave him LSD at 4 years old; he loses track and then comes 

back to things but gets overwhelmed, confused, and anxious. (AR 62). Plaintiff stated that 

he tries to get along with everyone, but then also admitted that he had called his counsel’s 

office multiple times in a row upset and yelling because he gets agitated about things. (AR 

63). He does not like being around a lot of people and had never gotten in a fight with 

anyone, but there were allegations. (AR 64). Plaintiff received a SMI designation through 

COPE in 2013 when he was ordered to attend treatment there after being arrested for 

disorderly conduct. (AR 60–61). 

E. Lay Testimony

Plaintiff’s mother completed a Function Report–Third Party and stated that Plaintiff 

has problems walking, pain in his right elbow, and constant lower back pain. (AR 223). 

She did not report any mental impairments but did note Plaintiff has trouble completing 

tasks and does not finish what he starts, but can follow written and spoken instructions. 

(AR 228). 

F. Vocational Testimony

At the hearing before the ALJ, Connie Guillory testified as a vocational expert. The 

ALJ asked Guillory to assume an individual with Plaintiff’s age, educational background, 

and work history, who could perform a range of medium work with the following mental 

limitations: work limited to simple, routine tasks with frequent interaction with supervisors 

and coworkers on a superficial basis and no interaction with the general public. (AR 76–

77). Guillory testified such a person could do Plaintiff’s past work as a dump truck driver. 
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(AR 77). If the RFC was reduced from medium to light work with the same mental 

limitations, Guillory stated such a person could also do other jobs including hand packer, 

folder, and machine operator. (AR 78). Guillory further stated that the jobs she listed were 

simple one and two step tasks, and that an employer would tolerate a person being off task 

approximately 10 percent of the time. (AR 79, 81). 

G. ALJ’s Findings 

The ALJ found that Plaintiff had the severe impairments of degenerative disc 

disease and bipolar disorder. (AR 12). The ALJ also considered the Paragraph B criteria 

set out in the social security disability regulations for evaluating mental disorders. See 20 

C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. To satisfy the paragraph B criteria, the mental 

disorder must result in “extreme” limitation of one, or “marked” limitation of two, of the 

four areas of mental functioning. Id. The ALJ found Plaintiff had mild restriction in 

activities of daily living, moderate difficulties in social functioning and concentration, 

persistence, or pace,4

 and no episodes of decompensation of extended duration. (AR 14). 

The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and 

limiting effects of his symptoms were not entirely consistent with the objective medical 

evidence or other evidence in the record. (AR 16, 21). 

The ALJ gave some weight to Dr. Plevell’s assessment as it provided test results not 

found in the treatment records. (AR 19). The ALJ also noted that Dr. Plevell provided no 

opinion as to whether her findings suggested vocational limitations or the extent of 

limitations, if any. 

The ALJ gave great weight to the state agency consultant opinions as being 

consistent with the evidence available at the hearing. (AR 21). The ALJ also noted that no 

greater limitations were suggested by the updated medical records received at hearing level. 

 

4 The ALJ specifically noted the following: Plaintiff reported anxiety and difficulty 

focusing; Plaintiff was noncompliant with medication; limited behavioral health records noted good concentration in late 2013; cognitive testing suggested highly significant 

difficulty with processing speed and possibly with abstraction; Plaintiff demonstrated rapid 

speech and significantly disorganized thought; there is evidence of pressured speech and 

tangential thought processes but no evidence of prior cognitive complaints or testing—for 

example, treatment note described Plaintiff as having good memory of the past, good 

intellectual capacity, average intelligence, and fair insight. (AR 14–15). 
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The ALJ found that Plaintiff had the RFC to perform a range of work, with work 

limited to simple, routine, tasks with frequent interaction with supervisors and coworkers 

on a superficial work basis and no interaction with the general public. (AR 16). The ALJ 

determined that Plaintiff could perform his PRW as a dump truck driver. (AR 22). 

Alternatively, the ALJ also found that Plaintiff could perform other work existing in the 

national economy. (AR 22–23) The ALJ therefore concluded that Plaintiff was not 

disabled. (AR 23). 

III. Standard of Review

 The Commissioner employs a five-step sequential process to evaluate SSI and DIB 

claims. 20 C.F.R. §§ 404.920, 416.1520; see also Heckler v. Campbell, 461 U.S. 458, 460–

462 (1983). To establish disability the claimant bears the burden of showing he (1) is not 

working; (2) has a severe physical or mental impairment; (3) the impairment meets or 

equals the requirements of a listed impairment; and (4) the claimant’s RFC precludes him 

from performing his past work. 20 C.F.R. §§ 404.920(a)(4), 416.1520(a)(4). At Step Five, 

the burden shifts to the Commissioner to show that the claimant has the RFC to perform 

other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 

499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant 

“disabled” or “not disabled” at any point in the five-step process, she does not proceed to 

the next step. 20 C.F.R. §§ 404.920(a)(4), 416.1520(a)(4). 

Here, Plaintiff was denied at Step Four of the evaluation process. Step Four requires 

a determination of whether the claimant has sufficient RFC to perform past work. 20 C.F.R. 

§§ 404.1520(e), 416.920(e). RFC is defined as that which an individual can still do despite 

his limitations. 20 C.F.R. §§ 404.1545, 416.945. A RFC finding is based on the record as 

a whole, including all physical and mental limitations, whether severe or not, and all 

symptoms. Social Security Ruling (SSR) 96-8p. If the ALJ concludes the claimant has the 

RFC to perform past work, the claim is denied. 20 C.F.R. §§ 404.1520(f), 416.920(f). 

The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 

1383(c)(3). The court may overturn the decision to deny benefits only “when the ALJ’s 
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findings are based on legal error or are not supported by substantial evidence in the record 

as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). As set forth in 

42 U.S.C. § 405(g), “[t]he findings of the Secretary as to any fact, if supported by 

substantial evidence, shall be conclusive.” Substantial evidence “means such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion,” 

Valentine, 574 F.3d at 690 (internal quotations and citations omitted), and is “more than a 

mere scintilla, but less than a preponderance.” Aukland, 257 F.3d at 1035. The 

Commissioner’s decision, however, “cannot be affirmed simply by isolating a specific 

quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) 

(citations omitted). “Rather, a court must consider the record as a whole, weighing both 

evidence that supports and evidence that detracts from the Secretary’s conclusion.” 

Aukland, 257 F.3d at 1035 (internal quotations and citations omitted). 

The ALJ is responsible for resolving conflicts in testimony, determining credibility, 

and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When 

the evidence before the ALJ is subject to more than one rational interpretation, [the court] 

must defer to the ALJ’s conclusion.” Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 

1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must 

resolve conflicts in evidence, and if the evidence can support either outcome, the court may 

not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 

(9th Cir. 1992) (citations omitted). 

Additionally, “[a] decision of the ALJ will not be reversed for errors that are 

harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The claimant bears the 

burden to prove any error is harmful. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) 

(citing Shinseki v. Sanders, 556 U.S. 396 (2009)). An error is harmless where it is 

“inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 

1104, 1115 (9th Cir. 2012) (citations omitted); see also Stout v. Comm’r Soc. Sec. Admin., 

454 F.3d 1050, 1055 (9th Cir. 2006). “[I]n each case [the court] look[s] at the record as a 

whole to determine whether the error alters the outcome of the case.” Molina, 674 F.3d at 
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1115. In other words, “an error is harmless so long as there remains substantial evidence 

supporting the ALJ’s decision and the error does not negate the validity of the ALJ’s 

ultimate conclusion.” Id. (internal quotations and citations omitted). Finally, “[a] claimant 

is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter 

how egregious the ALJ’s errors may be.” Strauss v. Comm’r Soc. Sec. Admin., 635 F.3d 

1135, 1138 (9th Cir. 2011). 

IV. Analysis

Plaintiff argues that the ALJ erred by failing to incorporate his moderate limitations 

in maintaining concentration, persistence, and pace when determining his RFC. Plaintiff 

also argues that the ALJ erred by failing to fully develop the record regarding Plaintiff’s 

mental impairments, and that the ALJ failed to give clear and convincing reasons to 

discount Plaintiff’s testimony regarding his bipolar disorder. Plaintiff requests that the 

Court reverse and remand this matter for further administrative proceedings. 

The Commissioner argues that the ALJ’s RFC assessment properly accounted for 

the medical opinions that Plaintiff had trouble maintaining pace and is supported by the 

state agency physician findings. The Commissioner further argues that the ALJ fulfilled 

his duty to develop the record by holding the record open for Plaintiff to submit additional 

evidence. Finally, the Commissioner states that the ALJ provided clear and convincing 

reasons to discount Plaintiff’s subjective symptom testimony and that the treatment record 

does not support Plaintiff’s allegations regarding the severity of his physical and mental 

problems. 

The Court finds that the ALJ’s RFC assessment adequately captures all of the 

limitations that the ALJ found credible and supported by substantial evidence and is 

consistent with the medical testimony. The Court further finds that the ALJ did not err in 

failing to develop the record further. Finally, the Court finds that the ALJ provided clear 

and convincing reasons to discount Plaintiff’s subjective symptom testimony. Accordingly, 

the Court will affirm the Commissioner’s decision. 

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A. RFC

Plaintiff argues that the ALJ failed to include all of his limitations when considering 

his work capacity. Specifically, the ALJ found that Plaintiff had moderate limitations in 

concentration, persistence, and pace, but the only mental limitation in the RFC was a 

restriction to simple, routine tasks and no interaction with the general public. Plaintiff 

contends that the ALJ failed to explain how the RFC accounted for his moderate limitations 

in concentration, persistence, and pace, and that this error is harmful because it impacts his 

ability to sustain work. 

RFC is “the most [a claimant] can still do despite her limitations,” and includes 

assessment of the claimant’s “impairment(s), and any related symptoms, such as pain, 

[which] may cause physical and mental limitations that affect what she can do in a work 

setting.” 20 C.F.R. § 404.1545(a)(1). The Commissioner retains the ultimate responsibility 

for assessing a claimant’s RFC. 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). The ALJ was 

required to assess Plaintiff’s RFC based on all the record evidence, including medical 

sources, examinations, and information provided by Plaintiff. 20 C.F.R. §§ 

404.1545(a)(1)–(3), 416.945(a)(1)–(3). However, the ALJ need not include all possible 

limitations in the assessment of what a claimant can do, but rather is only required to ensure 

that the RFC “contain[s] all the limitations that the ALJ found credible and supported by 

the substantial evidence in the record.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 

2005); Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006); see also Dschaak v. Colvin,

2015 WL 181803, *3 (D. Or. Jan. 14, 2015) (“An ALJ’s RFC need only incorporate

credible limitations supported by substantial evidence in the record and must be consistent 

with the restrictions identified in the medical testimony.”). 

Here, the ALJ found that Plaintiff had the capacity to perform a range of work with 

a limitation to simple, routine, tasks, frequent interaction with supervisors and coworkers 

on a superficial work basis, and no interaction with the general public. (AR 16). Plaintiff 

contends that this assessment fails to account for his moderate limitations in concentration, 

persistence, and pace. Specifically, Plaintiff argues that the limitation to simple, repetitive 
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tasks only reflects his pace deficiency, but not his concentration and persistence 

deficiencies. The parties focus their arguments on this point on two cases, StubbsDanielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), and Perkins v. Colvin, 45 F.Supp.3d 

1137 (D. Ariz. 2014). 

In Stubbs-Danielson, the court found that a RFC assessment limiting the claimant 

to “simple, routine, repetitive sedentary work, requiring no interaction with the public” 

adequately captured the claimant’s concentration, persistence, or pace limitations where 

the RFC was consistent with restrictions identified in the medical testimony. In that case, 

Dr. McCollum opined that the claimant had good persistence but slow pace in thought and 

action, and could follow three-step instructions. Stubbs-Danielson, 539 F.3d at 1171. Dr. 

Eather opined she had several mental limitations and could perform simple work without 

public contact. Id. The court noted that McCollum’s opinion noted pace deficiencies, but 

did not assess whether the claimant could perform unskilled work on a sustained basis. Id. 

at 1173. Eather also identified a slow pace but concluded the claimant could carry out 

simple tasks. Id. The court reasoned that “[t]he ALJ translated Stubbs-Danielson’s 

condition, including the pace and mental limitations, into the only concrete restrictions 

available to him—Dr. Eather’s recommended restriction to ‘simple tasks.’” Id. at 1174. 

The court found this was consistent with Dr. McCollum’s opinion that the claimant was 

“not significantly limited” in her ability to “carry out very short simple instructions,” 

“maintain attention and concentration for extended periods,” and “sustain an ordinary 

routine without special supervision.” Id. The court thus concluded that “an ALJ’s 

assessment of a claimant adequately captures restrictions related to concentration, 

persistence, or pace where the assessment is consistent with restrictions identified in the 

medical testimony.” Id. 

The Stubbs-Danielson court found the Eight Circuit’s decision in Howard v. 

Massanri, 255 F.3d 577, 582 (8th Cir. 2001) directly on point. As summarized by StubbsDanielson, in Howard the court rejected a claim that “simple, routine, repetitive work” 

failed to capture deficiencies in concentration, persistence, or pace, where the state 
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psychologist identified the claimant as having these deficiencies but also opined that the 

claimant could sustain sufficient concentration and attention to perform at least simple, 

repetitive, and routine cognitive activity. Stubbs-Danielson, 539 F.3d at 1174. The StubbsDanielson court also rejected and distinguished a case from the Third Circuit where the 

court found error when the ALJ’s hypothetical failed to include specific deficiencies in 

pace where the medical testimony recommended a particularized accommodation 

(requiring close physical proximity between job site and claimant’s children) but the ALJ 

only included a limitation for a reasonable number of phone calls. 539 F.3d at 1174–75. 

In Perkins, the court held that the ALJ’s RFC assessment failed to incorporate the 

treating physician findings that the claimant had moderate difficulties in concentration, 

persistence, or pace. There, the psychologist opined that the claimant was moderately 

limited in his ability to maintain concentration for extended periods, perform activities 

within a schedule, complete a normal workday/workweek without interruption from 

psychologically based symptoms, and perform at a consistent pace. Perkins, 45 F.Supp.3d 

at 1152. The ALJ gave this opinion great weight. Id. However, the ALJ’s RFC assessment 

only limited the claimant to jobs requiring the ability to perform simple, unskilled work, 

and contained no specific concentration, persistence or pace limitations. Id. at 1153. 

The Perkins court distinguished Stubbs-Danielson because in that case, “the record 

contained some evidence of the claimant’s slow pace, but the only ‘concrete’ functional 

limitation assessed . . . was a medical source opinion that, despite that slow pace, the 

claimant could perform ‘simple tasks.’” Perkins, 45 F.Supp.3d at 1153. The Perkins court 

instead found Brink v. Comm’r of Soc. Sec. Admin., 343 Fed.Appx. 211 (9th Cir. 2009) 

more on point. In Brink, the court found that the medical evidence established, and the ALJ 

accepted, that the claimant had moderate difficulties with concentration, persistence, or 

pace. 343 Fed.Appx. at 212. However, the ALJ’s hypothetical to the VE only referenced 

simple, repetitive work, and thus failed to incorporate the claimant’s concentration, 

persistence, and pace limitations. In Perkins, the court found that, like Brink, the ALJ 

accepted the physician’s opinion that the claimant had moderate limitations in 
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concentration, persistence, and pace, but that the RFC limiting the claimant to “simple, 

unskilled tasks” was incomplete because it did not adequately reflect the physician’s 

opinion regarding the limitations. Perkins, 45 F.Supp.3d at 1154. 

The Court finds that this case is more analogous to Stubb-Danielson than Perkins. 

Here, like in Stubbs-Danielson, the state agency physicians found moderate limitations in 

concentration, persistence, or pace, which the ALJ accepted. The physicians also 

specifically opined that Plaintiff could perform simple tasks, interact with peers and 

supervisors on a superficial basis, and was unable to interact with the general public. See 

also Howard, 255 F.3d at 582. These specific, concrete, functional limitations are the exact 

limitations that the ALJ adopted in the RFC assessment. The ALJ’s opinion also states that 

the RFC assessment reflects the degree of limitation that the ALJ found in the paragraph B 

mental function analysis. (AR 15). The ALJ noted a variety of findings from Plaintiff’s 

mental health appointments ranging from 2012–2015 and determined that the “limited 

treatment records and primary and emergency care observations support a finding that the 

claimant is limited to simple, routine work with superficial workplace contact and no 

contact with the general public. Further limitations are not supported by the overall 

evidence.” (AR 18–19). Thus, the RFC assessment is consistent with the medical testimony 

and adequately captures Plaintiff’s limitations.5 This is not a case like Perkins or Brink, 

where the physicians found limitations in concentration, persistence, or pace but did not 

specifically opine as to whether the claimants could perform simple, unskilled/repetitive 

work, and the only limitation in the ALJ’s RFC assessment was a restriction to simple 

unskilled/repetitive work, thus failing to adequately capture the physician findings. See 

also Lara v. Colvin, 2015 WL 1505817 (D. Ariz. Mar. 31, 2015) (ALJ limited claimant to 

simple, repetitive, unskilled tasks; this failed to incorporate specific restrictions in 

concentration, persistence, and pace where examining physician assessed greater 

restrictions than state agency physicians and opined that claimant would have moderate to 

 

5 In addition, as explained further below, examining physician Dr. Plevell assessed difficulty with processing speed and possibly with abstraction, but did not opine as to any specific functional limitations, nor does her opinion contrast with or suggest more restrictive limitations than those assessed by the state agency physicians. 
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severe difficulty sustaining an ordinary routine without special supervision, mild difficulty 

working with others and performing activities within a schedule, etc. and did not 

specifically opine that claimant could perform simple, unskilled, repetitive work). Further, 

as the Commissioner notes, the state agency physicians also found that Plaintiff had no 

significant limitations in his ability to remember locations and work-like procedures; 

understand, remember and carry out simple instructions; sustain an ordinary routine 

without special supervision; work in coordination with or proximity to others without being 

distracted by them; make simple work-related decisions; ask simple questions or request 

assistance; and maintain socially appropriate behavior. (AR 93–94). The RFC thus reflects 

the physician findings that Plaintiff does have moderate limitations in concentration, 

persistence, or pace but is not significantly limited in other areas and is still able to perform 

simple work tasks with no public contact. 

In sum, the Court finds that the ALJ’s RFC assessment contains all of the limitations 

that the ALJ found credible and supported by substantial evidence in the record and is 

consistent with the restrictions identified in the medical testimony. 

B. Duty to Develop Record 

Plaintiff contends that the ALJ failed to fulfill his duty to fully develop the record 

as to Dr. Plevell’s psychiatric opinion. Plaintiff states that if the ALJ had questions 

regarding Dr. Plevell’s opinion, then the ALJ should have ordered additional psychiatric 

testing instead of discounting the opinion because Plaintiff’s mental state is highly relevant 

to the disability determination in this case. 

While it is the claimant’s burden to prove that he is disabled, Valentine, 574 F.3d at 

689, “the ALJ has a special duty to develop the record fully and fairly and to ensure that 

the claimant’s interests are considered, even when the claimant is represented by counsel.” 

Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). “The ALJ is not a mere umpire at 

such a proceeding . . . it is incumbent upon the ALJ to scrupulously and conscientiously 

probe into, inquire of, and explore for all the relevant facts.” Celaya v. Halter, 332 F.3d 

1177, 1183 (9th Cir. 2003). An ALJ’s duty to develop the record further is triggered when 
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there is ambiguous evidence or when the record is inadequate to allow for proper evaluation 

of the evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Moreover, 

“[a] specific finding of ambiguity or inadequacy of the record is not necessary to trigger 

this duty to inquire, where the record establishes ambiguity or inadequacy.” McLeod v. 

Astrue, 640 F.3d 881, 886 (9th Cir. 2010). 

Here, the opinion in question consists of two short pages briefly describing 

Plaintiff’s mental status and history, testing results, and Dr. Plevell’s conclusion. (AR 358–

59). The opinion does not include an explanation of the test results or what tests were 

administered. Rather, in her conclusion, Dr. Plevell stated that “[t]esting suggested highly 

significant difficulty with processing speed and possibly with abstraction. Behaviorally, 

[Plaintiff] demonstrated rapid speech and significantly disorganized thought. It is unclear 

if these issues are due to a primary condition or secondary to his Bipolar Disorder.” (AR 

359). 

The ALJ gave some weight to Dr. Plevell’s opinion because it provided test results 

not found in the treatment records. (AR 19). This is a valid reason to assign less weight to 

the opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“an ALJ need 

not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately 

supported by clinical findings”); 20 C.F.R. § 404.1527 (“The more a medical source 

presents relevant evidence to support a medical opinion, particularly medical signs and 

laboratory findings, the more weight we will give that medical opinion. The better an 

explanation a source provides for a medical opinion, the more weight we will give that 

medical opinion.”). The ALJ also noted that Dr. Plevell provided no opinion as to whether 

or not her findings suggested vocational limitations or the extent of limitations, if any. Id. 

As the Commissioner notes, Dr. Plevell’s opinion is not ambiguous, nor did the ALJ 

describe it as such. Rather, the ALJ simply pointed out what was evident from the face of 

the opinion—Dr. Plevell did not assess any specific limitations. The ALJ’s decision does 

not indicate that the ALJ found the record to be ambiguous or insufficient to properly 

evaluate Plaintiff’s mental impairments, nor does the Court find it to be inadequate. 
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Plaintiff’s attempt to persuade the Court otherwise is unwarranted. See Bayliss, 427 F.3d 

at 1217 (“An ALJ is required to recontact a doctor only if the doctor’s report is ambiguous 

or insufficient for the ALJ to make a disability determination. The ALJ, with support in the 

record, found the evidence adequate to make a determination regarding Bayliss’s disability. 

Accordingly, the ALJ did not have a duty to recontact the doctors.” (citations omitted)); 

Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (ALJ’s finding that a report of a 

physical capacity test was contradictory did not require him to recontact the evaluator to 

resolve the perceived conflict; evaluator was not a treating source and the ALJ did not 

make a finding that the report was inadequate to make a determination regarding the 

claimant’s disability, but rather, disagreed with the report’s finding that the claimant could 

be exaggerating symptoms and still produce a valid test result.); contra Tonapetyan, 242 

F.3d at 1150 (ALJ failed to fulfill his duty to develop the record where consulting medical 

expert repeatedly expressed his concern that the record was insufficient to allow him to 

render an opinion on some of claimant’s alleged severe impairments and expert explicitly 

recommended the ALJ obtain additional medical evidence from the claimant’s treating 

psychologist; ALJ gave great weight to the consulting medical expert yet failed to follow 

through with the expert’s recommendations). 

Further, following the hearing, the ALJ held the record open to allow Plaintiff to 

submit additional evidence to support his claim for disability. (AR 10, 82); see Tonapetyan, 

242 F.3d at 1150 (“The ALJ may discharge [his] duty [to develop the record] in several 

ways, including: subpoenaing the claimant’s physicians, submitting questions to the 

claimant’s physicians, continuing the hearing, or keeping the record open after the hearing 

to allow supplementation of the record.”). It is the Plaintiff’s burden to prove that he is 

disabled, and if Plaintiff wished to provide any additional information in support of his 

alleged limitations, he was afforded the opportunity to do so. 

In sum, the Court finds that the record here was not ambiguous or inadequate such 

that the ALJ was required to further develop the record to further assess Dr. Plevell’s 

opinion. As noted above, the ALJ’s RFC assessment adequately accounted for Plaintiff’s 
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mental limitations by including restrictions for simple, routine tasks and no interaction with 

the public. This is consistent both with the state agency physician findings and with Dr. 

Plevell’s conclusion that Plaintiff has difficulties with processing speed and possibly with 

abstraction. 

C. Credibility Finding

Finally, Plaintiff argues that the ALJ failed to provide clear and convincing reasons 

to discount his subjective symptom testimony regarding his bipolar disorder. Plaintiff 

challenges the ALJ’s reliance on his alleged drug-seeking behavior, failure to seek 

treatment or comply with treatment recommendations, GAF scores, activities of daily 

living, and drug use. Plaintiff further alleges that the ALJ’s credibility analysis fails to 

comply with SSR 16-3p.6

 Conversely, the Commissioner argues that the ALJ’s credibility 

finding is supported by the treatment record showing stable and unremarkable exams, noncompliance with treatment recommendations, lack of pain medications despite 

complaining of debilitating pain, and activities of daily living inconsistent with claims of 

disabling physical and mental limitations. 

“An ALJ’s assessment of symptom severity and claimant credibility is entitled to 

great weight.” Honaker v. Colvin, 2015 WL 262972, *3 (C.D. Cal. Jan. 21, 2015) (internal 

quotations and citations omitted). This is because “an ALJ cannot be required to believe 

 

6 SSR 16-3p went into effect on March 16, 2016 and supersedes SSR 96-7p, the previous policy governing the evaluation of symptoms. SSR 16-3p, 2016 WL 1119029, *1. The ruling indicates that “we are eliminating the use of the term ‘credibility’ from our sub- regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s 

character[;] [i]nstead, we will more closely follow our regulatory language regarding 

symptom evaluation.” Id. This ruling is consistent with the previous policy and clarifies 

rather than changes existing law. Under either ruling, the ALJ is required to consider the 

claimant’s report of her symptoms against the record—in SSR 96-7p, this resulted in a “credibility” analysis; in SSR 16-3, this allows the adjudicator to evaluate “consistency.” 

Compare SSR 16-3p with SSR 96-7p (both rely on two step process followed by an evaluation of claimant’s testimony and contain the same factors for consideration). “The change in wording is meant to clarify that administrative law judges aren’t in the business of impeaching claimants’ character,” but “obviously administrative law judges 

will continue to assess the credibility of pain assertions by applicants, especially as such 

assertions often cannot be either credited or rejected on the basis of medical evidence.” 

Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016). “Accordingly, the ALJ’s use of the word ‘credibility’ is not, in and of itself, error . . . because the new ruling does not alter the preexisting standards in the Ninth Circuit for evaluating a claimant’s symptom testimony.” 

Petersen v. Berryhill, 737 F. App’x 329, 332 n.1 (9th Cir. 2018). 
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every allegation of disabling pain, or else disability benefits would be available for the 

asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Treicherler v. Comm’r. Soc. 

Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 2014). “If the ALJ’s credibility finding is 

supported by substantial evidence in the record, the reviewing court may not engage in 

second-guessing.” Honaker, 2015 WL 262972 at * 3 (internal quotations and citation 

omitted). 

While questions of credibility are functions solely for the ALJ, this Court “cannot 

affirm such a determination unless it is supported by specific findings and reasoning.” 

Robbins v. Comm’r Soc. Sec. Admin. 466 F.3d 880, 885 (9th Cir. 2006). “To determine 

whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ 

must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th 

Cir. 2007). “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.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 

F. 2d 341, 344 (9th Cir. 1991)). “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 

the symptoms only by offering specific, clear and convincing reasons for doing so.’” 

Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 

1996)). Further, “[t]he ALJ must specifically identify what testimony is credible and what 

testimony undermines the claimant’s complaints.” Morgan v. Comm'r of Soc. Sec. Admin., 

169 F.3d 595, 599 (9th Cir. 1999). 

While it is permissible for an ALJ to look to the objective medical evidence as one 

factor in determining credibility, the ALJ’s adverse credibility finding must be supported 

by other permissible evidence in the record. Bunnell, 947 F.2d at 346–47 (“adjudicator may 

not discredit a claimant’s testimony of pain and deny disability benefits solely because the 

degree of pain alleged by the claimant is not supported by objective medical evidence”). 

However, “an ALJ may reject a claimant’s statements about the severity of his symptoms 

and how they affect him if those statements are inconsistent with or contradicted by the 
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objective medical evidence.” Robbins, 466 F.3d at 887. “Factors that an ALJ may consider 

in weighing a claimant’s credibility include reputation for truthfulness, inconsistencies in 

testimony or between testimony and conduct, daily activities, and unexplained, or 

inadequately explained, failure to seek treatment or follow a prescribed course of 

treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal quotations and 

citations omitted). 

The ALJ did not make a finding that Plaintiff was malingering; therefore, to support 

his discounting of Plaintiff’s assertions regarding the severity of his symptoms, the ALJ 

had to provide clear and convincing, specific reasons. In his decision, the ALJ found that 

Plaintiff’s statements concerning the intensity, persistence, and limiting effects of his 

symptoms were not entirely consistent with the objective medical evidence or other 

evidence in the record. (AR 16, 21). Plaintiff specifically challenges the ALJ’s discounting 

of his testimony regarding his bipolar disorder; however, there is limited testimony from 

Plaintiff regarding his mental health problems. For example, on his Function Report, 

Plaintiff did not note any mental-health related impairments. (AR 236). For how long he 

can pay attention, he wrote “I so broke I can’t afford to pay;” for how well he can follow 

written instructions, Plaintiff stated he had problems writing because of his elbow pain;

and for how well he can follow spoken instructions, Plaintiff wrote “what does that have 

to do with my hip.” (AR 236). At the hearing before the ALJ, Plaintiff testified to having 

problems processing new information and staying focused. (AR 62). He admitted that he 

had called his counsel’s office multiple times in a row upset and yelling because he gets 

agitated about things (AR 63); he does not like being around a lot of people and had never 

gotten in a fight with anyone, but there were allegations. (AR 64). 

Plaintiff’s argument on this issue is somewhat unclear, as Plaintiff does not point to 

any specific allegation that the ALJ rejected or any specific limitation that the ALJ failed 

to include in the RFC. And, the ALJ was sensitive to Plaintiff’s complaints and did find 

that Plaintiff’s bipolar disorder was a severe impairment. The ALJ’s decision contains a 

thorough discussion of Plaintiff’s mental health treatment. (AR 18–21). After summarizing 
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these records, the ALJ concluded that the “limited treatment records and primary and 

emergency care observations support a finding that the claimant is limited to simple, 

routine work with superficial workplace contact and not contact with the general public.” 

(AR 19). In evaluating Plaintiff’s subjective symptom testimony, the ALJ noted that 

Plaintiff reported problems processing new information and staying focused, becomes 

anxious, and has difficulty getting along with people but has never been in a fight. (AR 

16). The ALJ took Plaintiff’s limitations into account by formulating a RFC with a 

restriction to simple, routine tasks and no interaction with the general public. 

The ALJ noted the record contains instances of pressured speech and tangential 

thought processes, but at other appointments Plaintiff was oriented with appropriate mood 

and affect and normal insight and judgment. (AR 18–19). The Court’s review of the record 

shows that at times Plaintiff’s symptoms improved and at times they worsened, but there 

is no medical testimony opining to more restrictive mental health limitations than those 

assessed by the ALJ, nor did Plaintiff himself testify to limitations that would support a 

more restrictive RFC. Thus, this is not a case like Caceres v. Colvin, 2015 WL 4040727, 

at *3 (W.D. Wash. July 1, 2015), where the claimant’s providers found that she 

“experienced severe limitations specifically and exclusively as a result of her bipolar 

disorder.” While the Court recognizes that “‘a person who suffers from a mental illness 

will have better days and worse days, so a snapshot of any single moment says little about 

her overall condition,’” Caceres, 2015 WL 4040727, at *6 (quoting Punzio v. Astrue, 630 

F.3d 704, 710 (9th Cir. 2011)), in this case the record taken as a whole does not support a 

finding of more restrictive limitations than those assessed by the ALJ. Plaintiff himself has 

focused on his physical complaints, and even Plaintiff’s mother, whom he lives with, failed 

to mention any mental health conditions in her third-party function report. 

The ALJ also noted that there was limited evidence of specialist treatment and some 

evidence of non-compliance with medication. (AR 18). “[I]f a claimant complains about 

disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the 

pain, an ALJ may use such failure as a basis for finding the complaint unjustified or 
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exaggerated.” Orn, 495 F.3d at 638; see also Everson v. Astrue, 2012 WL 5994972, *7 

(W.D. Wash. Oct. 22, 2012) (“Failure to assert a good reason for not seeking, or following 

a prescribed course of, treatment, or a finding that a proffered reason is not believable, can 

cast doubt on the sincerity of the claimant’s pain testimony.” (internal quotations and 

citation omitted)). While Social Security regulations require claimants to follow “treatment 

prescribed by your medical source(s)” to receive benefits, the same regulations make clear 

that if the claimant has a “good reason” and “justifiable cause” for not following the 

prescribed treatment, rejection of treatment will not be held against the claimant. 20 C.F.R. 

§ 416.930; SSR 82-59; SSR 16-3p. Here, Plaintiff notes that the ALJ discussed his reasons 

for stopping his medication due to side effects, but then alleges that the ALJ apparently 

rejected this explanation. (Doc. 16 at 15). The ALJ makes no such statement in his decision 

and the Court will not imply one here. Plaintiff also alleges that the ALJ erred by failing to 

ask him why he stopped treatment at COPE or did not pursue other mental health treatment. 

(Doc. 16 at 15). As Plaintiff notes and the record reflects, Plaintiff has been more focused 

on his physical impairments than his mental impairments, and there is little opinion 

testimony in the record recommending limitations specific to Plaintiff’s bipolar disorder. 

It is the claimant’s burden to prove disability, and it was incumbent on Plaintiff and his 

counsel to obtain and present evidence in support of Plaintiff’s claims. The fact that the 

ALJ noted there was “limited evidence of specialist treatment” does not correlate to an 

affirmative duty for the ALJ to inquire why Plaintiff did not pursue other mental health 

treatment; rather, this is a valid reason suggesting that Plaintiff’s mental health complaints 

may not be as severe as alleged. 

The ALJ noted that Plaintiff’s GAF scores indicated moderate symptoms. (AR 20–

21). However, the ALJ also stated that GAF scores do not correlate to the regulatory 

definition of disability and cannot be used directly to assess disability, but were considered 

as part of the evidence of Plaintiff’s functioning and addressed in the RFC limiting Plaintiff 

to simple work. Id. Plaintiff suggests that because the ALJ noted Plaintiff’s GAF scores 

were in the moderate range, this implies that the ALJ used the GAF scores as a reason to 
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discount Plaintiff’s subjective symptom testimony. (Doc. 16 at 16). The ALJ makes no 

such conclusion in his decision and the Court will not assume one here. 

 Plaintiff contends that the ALJ also discounted his testimony because of his alleged 

drug-seeking behavior. Plaintiff’s argument on this point is confusing—he contends that 

the ER note stating that he had a mental health issue and was exhibiting drug-seeking 

behavior could be a valid reason to discount his statements regarding his physical 

impairments (if a patient is exaggerating pain to obtain pain medications, that could 

indicate that the claimant’s statements about the limiting effects of his pain are not as severe 

as alleged), but that the note indicates nothing about his mental health issues and thus the 

ALJ cannot use this incident to discount his testimony regarding his bipolar disorder. (Doc. 

16 at 14). But Plaintiff then also says that his presentation in the ER was probably due to a 

symptom of his mania. In any event, the ALJ gave great weight to the ER physician’s report 

and discussed the report in terms of Plaintiff’s alleged back pain, noting that Plaintiff 

exhibited no signs of back discomfort and moved without difficulty after being told he 

would not be given morphine. (AR 18–20). The ALJ did not specifically find that this 

instance of drug-seeking behavior supported or undermined Plaintiff’s mental health 

allegations, and the Court will not read into the record something that the ALJ did not 

actually say. However, to the extent that the ALJ relied on this incident to find that 

Plaintiff’s statements were not entirely consistent with the objective record, the ALJ did 

not err because Plaintiff’s presentation in the ER undermines his allegations of disabling 

back pain. 

Plaintiff contends that the fact that he helps his mother with chores when he can is 

not inconsistent with a disabling impairment, especially given the cyclical nature of bipolar 

disorder. (Doc. 16 at 17). However, in his decision, the ALJ did not comment on Plaintiff’s 

chores specifically in relation to Plaintiff’s mental limitations. Rather, the ALJ summarized 

Plaintiff’s mother’s testimony regarding his physical impairments and noted that Plaintiff 

received money from his mother in exchange for doing chores. (AR 21). The ALJ found 

this was inconsistent with disabling limitations. Id. Given Plaintiff’s allegations that he is 
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unable to work due to pain in his back and elbow, the ALJ could properly consider that 

Plaintiff’s daily activity of doing chores for money was inconsistent with his allegations of 

physically disabling pain.7 See Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (“we 

have held that ‘[o]nly if [her] level of activity were inconsistent with [a claimant’s] claimed 

limitations would these activities have any bearing on [her] credibility.’” (quoting Reddick 

v. Chater, 157 F.3d at 722 (citations omitted))); Molina, 674 F.3d at 1112–13 (ADL “may 

be grounds for discrediting the claimant’s testimony to the extent that they contradict the 

claims of a totally debilitating impairment”). 

In sum, the Court finds that the ALJ provided clear and convincing, specific reasons 

to find that Plaintiff’s statements concerning the intensity, persistence, and limiting effects 

of his symptoms were not entirely consistent with the objective medical evidence or other 

evidence in the record. Further, even if the ALJ did err in relying on any of the above 

reasons to find that Plaintiff’s subjective testimony was not entirely consistent with the 

objective record, any error was harmless. See Batson v. Comm’r of Soc. Sec. Admin., 359 

F.3d 1190, 1195–97 (9th Cir. 2004) (so long as there remains “substantial evidence 

supporting the ALJ’s decision” and the error “does not negate the validity of the ALJ’s 

ultimate conclusion,” such error is deemed harmless and does not warrant reversal); see 

also Stout, 454 F.3d at 1055 (defining harmless error as such error that is “inconsequential 

to the ultimate nondisability determination”). 

V. Remedy

A federal court may affirm, modify, reverse, or remand a social security case. 42 

U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ’s 

findings, this Court is required to affirm the ALJ’s decision. After considering the record 

as a whole, this Court simply determines whether there is substantial evidence for a 

reasonable trier of fact to accept as adequate to support the ALJ’s decision. Valentine, 574 

F.3d at 690. Here, the record contains sufficient substantial evidence to meet this standard. 

 

7 As the Commissioner notes, the issue is not whether Plaintiff’s ability to do chores 

establishes his ability to function in a work environment; the issue is whether Plaintiff’s 

daily activities are inconsistent with the limitations he endorsed. 
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The Court concludes that the ALJ’s findings are supported by substantial evidence and 

there is no legal basis for reversing or remanding his decision. Therefore, Plaintiff is not 

entitled to relief. 

VI. Conclusion 

In light of the foregoing, IT IS HEREBY ORDERED that the decision of the 

Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly 

and close its file on this matter. 

Dated this 11th day of December, 2018.